[CCWG-Accountability] Regarding Non-profit and public-benefit legal structure
Hello Phil,
I would envisage the Board having to be compliance with all Corporate Governance Codes specific to Companies Law in the country of incorporation, subject to a community consensus override. But what is its corporate status - not for profit or for profit - as different codes would apply ?
The legal status of ICANN is as specified in its articles of incorporation: https://www.icann.org/resources/pages/articles-2012-02-25-en "This Corporation is a non-profit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Non-profit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code." Also from: http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation "A public-benefit non-profit corporation is a type of non-profit corporation chartered by a state government, and organized primarily or exclusively for social, educational, recreational or charitable purposes by like-minded citizens. Public-benefit nonprofit corporations are distinct in the law from mutual-benefit nonprofit corporations in that they are organized for the general public benefit, rather than for the interest of its members." I believe it was deliberately set up as public benefit rather than a member organization - to avoid the situation where the members become limited to say gTLD registries and registrars and hence it ends up operating primarily for the benefit of the domain name registration industry. Any move away from a public-benefit corporation to a membership corporation - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members as interest in "ICANN" drops over time. I.e. a failure scenario of membership organisation is what happens to the membership base over time and how it can be protected from capture. I have seen some membership based ccTLDs get into problems when their membership becomes dominated by domain name investors for example. Regards, Bruce Tonkin
What Bruce has set forth is close to correct. However, I can't help but do a little legal nit-picking. "Public benefit corporation" is a term used in California (among other places) as a term for non-profit corporations generally. (In New York State, we use the term "not-for-profit corporation" to mean basically the same thing as a California "public benefit corporation" (and we use the term "public benefit corporation" to mean something quite different -- a quasi-public corporation like the Metropolitan Transport Authority).) California public benefit corporations are not really "chartered by the state" (though New York ones like the MTA are chartered by the state). [Wikipedia isn't always a great source....] In California, public benefit corporations may be created with or without members, or may convert from member to non-member and vice versa. However, a public benefit corporation with members is still a public benefit corporation. (California also has "mutual benefit corporations" which are non-profit but never charitable (and are also not tax-exempt). Mutual benefit corporations are run for the benefit of their members, and not for the benefit of the general public.) The term "member" can also be used to mean people (or organizations) who aren't really members. For instance, when you become a "member" of a museum, you are not becoming a member of the corporation (i.e., what some in ICANN-land have termed a "statutory member"). These non-statutory "memberships" are more for marketing purposes and have no governance role. "Statutory members" on the other hand, have a role in governance (which can vary markedly depending on the by-laws of the particular corporation. Hope this helps. Best regards, Greg Shatan (Speaking for myself, and not giving legal advice as I am not a member of the California Bar) On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote: > Hello Phil, > > > >> I would envisage the Board having to be compliance with all Corporate > Governance Codes specific to Companies Law in the country of incorporation, > subject to a community consensus override. But what is its corporate status > - not for profit or for profit - as different codes would apply ? > > The legal status of ICANN is as specified in its articles of > incorporation: > > https://www.icann.org/resources/pages/articles-2012-02-25-en > > "This Corporation is a non-profit public benefit corporation and is not > organized for the private gain of any person. It is organized under the > California Non-profit Public Benefit Corporation Law for charitable and > public purposes. The Corporation is organized, and will be operated, > exclusively for charitable, educational, and scientific purposes within the > meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended > (the "Code"), or the corresponding provision of any future United States > tax code. Any reference in these Articles to the Code shall include the > corresponding provisions of any further United States tax code." > > Also from: > > http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation > > "A public-benefit non-profit corporation is a type of non-profit > corporation chartered by a state government, and organized primarily or > exclusively for social, educational, recreational or charitable purposes by > like-minded citizens. Public-benefit nonprofit corporations are distinct > in the law from mutual-benefit nonprofit corporations in that they are > organized for the general public benefit, rather than for the interest of > its members." > > I believe it was deliberately set up as public benefit rather than a > member organization - to avoid the situation where the members become > limited to say gTLD registries and registrars and hence it ends up > operating primarily for the benefit of the domain name registration > industry. > > Any move away from a public-benefit corporation to a membership > corporation - would need to carefully consider how to ensure that the > members are reflective of the broader Internet community and don't become > limited to a few members as interest in "ICANN" drops over time. I.e. a > failure scenario of membership organisation is what happens to the > membership base over time and how it can be protected from capture. I > have seen some membership based ccTLDs get into problems when their > membership becomes dominated by domain name investors for example. > > Regards, > Bruce Tonkin > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community >
It helps (me at least) enormously Greg... Thanks *Cheryl Langdon-O**rr ... *(CLO) about.me/cheryl.LangdonOrr [image: Cheryl Langdon-Orr on about.me] <http://about.me/cheryl.LangdonOrr> On 7 January 2015 at 11:40, Greg Shatan <gregshatanipc@gmail.com> wrote:
What Bruce has set forth is close to correct. However, I can't help but do a little legal nit-picking.
"Public benefit corporation" is a term used in California (among other places) as a term for non-profit corporations generally. (In New York State, we use the term "not-for-profit corporation" to mean basically the same thing as a California "public benefit corporation" (and we use the term "public benefit corporation" to mean something quite different -- a quasi-public corporation like the Metropolitan Transport Authority).) California public benefit corporations are not really "chartered by the state" (though New York ones like the MTA are chartered by the state). [Wikipedia isn't always a great source....]
In California, public benefit corporations may be created with or without members, or may convert from member to non-member and vice versa. However, a public benefit corporation with members is still a public benefit corporation. (California also has "mutual benefit corporations" which are non-profit but never charitable (and are also not tax-exempt). Mutual benefit corporations are run for the benefit of their members, and not for the benefit of the general public.)
The term "member" can also be used to mean people (or organizations) who aren't really members. For instance, when you become a "member" of a museum, you are not becoming a member of the corporation (i.e., what some in ICANN-land have termed a "statutory member"). These non-statutory "memberships" are more for marketing purposes and have no governance role. "Statutory members" on the other hand, have a role in governance (which can vary markedly depending on the by-laws of the particular corporation.
Hope this helps.
Best regards,
Greg Shatan (Speaking for myself, and not giving legal advice as I am not a member of the California Bar)
On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Phil,
I would envisage the Board having to be compliance with all Corporate Governance Codes specific to Companies Law in the country of incorporation, subject to a community consensus override. But what is its corporate status - not for profit or for profit - as different codes would apply ?
The legal status of ICANN is as specified in its articles of incorporation:
https://www.icann.org/resources/pages/articles-2012-02-25-en
"This Corporation is a non-profit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Non-profit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code."
Also from:
http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation
"A public-benefit non-profit corporation is a type of non-profit corporation chartered by a state government, and organized primarily or exclusively for social, educational, recreational or charitable purposes by like-minded citizens. Public-benefit nonprofit corporations are distinct in the law from mutual-benefit nonprofit corporations in that they are organized for the general public benefit, rather than for the interest of its members."
I believe it was deliberately set up as public benefit rather than a member organization - to avoid the situation where the members become limited to say gTLD registries and registrars and hence it ends up operating primarily for the benefit of the domain name registration industry.
Any move away from a public-benefit corporation to a membership corporation - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members as interest in "ICANN" drops over time. I.e. a failure scenario of membership organisation is what happens to the membership base over time and how it can be protected from capture. I have seen some membership based ccTLDs get into problems when their membership becomes dominated by domain name investors for example.
Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Group Members: This excellent input from both Bruce and Greg exemplifies the power of this group to brainstorm positively and cohesively. Such progress is enriching this experience. Thanks to all who are active. Let's keep the conversations going. Best regards, Drew Noyes Managing Director One Stop Legal Services Pattaya Thailand Www.onestoplegalservice.com
I am not interested much in the details, interesting as they are :-)-O, but would like to pick up on Bruce's last paragraph, because in my view, the "membership supervision" is not going to help much as it is prone to capture, quite the opposite of the accountability we want. greetings, el Sent from Dr Lisse's iPad mini
On Jan 7, 2015, at 02:40, Greg Shatan <gregshatanipc@gmail.com> wrote:
What Bruce has set forth is close to correct. However, I can't help but do a little legal nit-picking.
"Public benefit corporation" is a term used in California (among other places) as a term for non-profit corporations generally. (In New York State, we use the term "not-for-profit corporation" to mean basically the same thing as a California "public benefit corporation" (and we use the term "public benefit corporation" to mean something quite different -- a quasi-public corporation like the Metropolitan Transport Authority).) California public benefit corporations are not really "chartered by the state" (though New York ones like the MTA are chartered by the state). [Wikipedia isn't always a great source....]
In California, public benefit corporations may be created with or without members, or may convert from member to non-member and vice versa. However, a public benefit corporation with members is still a public benefit corporation. (California also has "mutual benefit corporations" which are non-profit but never charitable (and are also not tax-exempt). Mutual benefit corporations are run for the benefit of their members, and not for the benefit of the general public.)
The term "member" can also be used to mean people (or organizations) who aren't really members. For instance, when you become a "member" of a museum, you are not becoming a member of the corporation (i.e., what some in ICANN-land have termed a "statutory member"). These non-statutory "memberships" are more for marketing purposes and have no governance role. "Statutory members" on the other hand, have a role in governance (which can vary markedly depending on the by-laws of the particular corporation.
Hope this helps.
Best regards,
Greg Shatan (Speaking for myself, and not giving legal advice as I am not a member of the California Bar)
On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote: Hello Phil,
I would envisage the Board having to be compliance with all Corporate Governance Codes specific to Companies Law in the country of incorporation, subject to a community consensus override. But what is its corporate status - not for profit or for profit - as different codes would apply ?
The legal status of ICANN is as specified in its articles of incorporation:
https://www.icann.org/resources/pages/articles-2012-02-25-en
"This Corporation is a non-profit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Non-profit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code."
Also from:
http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation
"A public-benefit non-profit corporation is a type of non-profit corporation chartered by a state government, and organized primarily or exclusively for social, educational, recreational or charitable purposes by like-minded citizens. Public-benefit nonprofit corporations are distinct in the law from mutual-benefit nonprofit corporations in that they are organized for the general public benefit, rather than for the interest of its members."
I believe it was deliberately set up as public benefit rather than a member organization - to avoid the situation where the members become limited to say gTLD registries and registrars and hence it ends up operating primarily for the benefit of the domain name registration industry.
Any move away from a public-benefit corporation to a membership corporation - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members as interest in "ICANN" drops over time. I.e. a failure scenario of membership organisation is what happens to the membership base over time and how it can be protected from capture. I have seen some membership based ccTLDs get into problems when their membership becomes dominated by domain name investors for example.
Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Colleagues, Many thanks for this very valuable discussion. While it confirms that our initial orientation towards the ability to, somehow, oversee the Board, is relevant and worth exploring, the latest comments (regarding risk of capture) highlight that we should also anticipate on the accountability of the overseeing mechanism itself. If "the community" (through a mechanism yet to be determined) oversees Board and staff, can we ensure all stakeholders, especially those who are less familiar with Icann, that "the community", in turn, is accountable (ie has the relevant independent checks and balances, review and redress mechanisms) ? A significant challenge, but I'm confident our group can address that. This aspect might, however, need to be addressed in our definition of WS1, if there is agreement that is a necessary element for the transition to take place. Best, Mathieu Le 07/01/2015 09:07, Dr Eberhard W Lisse a écrit :
I am not interested much in the details, interesting as they are :-)-O, but would like to pick up on Bruce's last paragraph, because in my view, the "membership supervision" is not going to help much as it is prone to capture, quite the opposite of the accountability we want.
greetings, el
Sent from Dr Lisse's iPad mini
On Jan 7, 2015, at 02:40, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
What Bruce has set forth is close to correct. However, I can't help but do a little legal nit-picking.
"Public benefit corporation" is a term used in California (among other places) as a term for non-profit corporations generally. (In New York State, we use the term "not-for-profit corporation" to mean basically the same thing as a California "public benefit corporation" (and we use the term "public benefit corporation" to mean something quite different -- a quasi-public corporation like the Metropolitan Transport Authority).) California public benefit corporations are not really "chartered by the state" (though New York ones like the MTA are chartered by the state). [Wikipedia isn't always a great source....]
In California, public benefit corporations may be created with or without members, or may convert from member to non-member and vice versa. However, a public benefit corporation with members is still a public benefit corporation. (California also has "mutual benefit corporations" which are non-profit but never charitable (and are also not tax-exempt). Mutual benefit corporations are run for the benefit of their members, and not for the benefit of the general public.)
The term "member" can also be used to mean people (or organizations) who aren't really members. For instance, when you become a "member" of a museum, you are not becoming a member of the corporation (i.e., what some in ICANN-land have termed a "statutory member"). These non-statutory "memberships" are more for marketing purposes and have no governance role. "Statutory members" on the other hand, have a role in governance (which can vary markedly depending on the by-laws of the particular corporation.
Hope this helps.
Best regards,
Greg Shatan (Speaking for myself, and not giving legal advice as I am not a member of the California Bar)
On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au>> wrote:
Hello Phil,
>> I would envisage the Board having to be compliance with all Corporate Governance Codes specific to Companies Law in the country of incorporation, subject to a community consensus override. But what is its corporate status - not for profit or for profit - as different codes would apply ?
The legal status of ICANN is as specified in its articles of incorporation:
https://www.icann.org/resources/pages/articles-2012-02-25-en
"This Corporation is a non-profit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Non-profit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code."
Also from:
http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation
"A public-benefit non-profit corporation is a type of non-profit corporation chartered by a state government, and organized primarily or exclusively for social, educational, recreational or charitable purposes by like-minded citizens. Public-benefit nonprofit corporations are distinct in the law from mutual-benefit nonprofit corporations in that they are organized for the general public benefit, rather than for the interest of its members."
I believe it was deliberately set up as public benefit rather than a member organization - to avoid the situation where the members become limited to say gTLD registries and registrars and hence it ends up operating primarily for the benefit of the domain name registration industry.
Any move away from a public-benefit corporation to a membership corporation - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members as interest in "ICANN" drops over time. I.e. a failure scenario of membership organisation is what happens to the membership base over time and how it can be protected from capture. I have seen some membership based ccTLDs get into problems when their membership becomes dominated by domain name investors for example.
Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************
I think that the potential for capture of the outside member group is the reason that the accountability system probably needs to be linked to an independent judicial/arbitral function to resolve disputes. [Of course that institution, too, could be captured but at some point we have to end the who guards the guardians? question]. And that, in turn emphasizes why it is necessary as part of the transition to define the Boards/ICANNs scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing. Hence the bottom line: We need a) an outside accountability mechanism representing the community; b) an independent dispute resolution mechanism; and c) clearly articulated standards against which to measure and resolve any dispute Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> Link to my PGP Key From: Mathieu Weill [mailto:mathieu.weill@afnic.fr] Sent: Wednesday, January 7, 2015 9:04 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure Dear Colleagues, Many thanks for this very valuable discussion. While it confirms that our initial orientation towards the ability to, somehow, oversee the Board, is relevant and worth exploring, the latest comments (regarding risk of capture) highlight that we should also anticipate on the accountability of the overseeing mechanism itself. If "the community" (through a mechanism yet to be determined) oversees Board and staff, can we ensure all stakeholders, especially those who are less familiar with Icann, that "the community", in turn, is accountable (ie has the relevant independent checks and balances, review and redress mechanisms) ? A significant challenge, but I'm confident our group can address that. This aspect might, however, need to be addressed in our definition of WS1, if there is agreement that is a necessary element for the transition to take place. Best, Mathieu Le 07/01/2015 09:07, Dr Eberhard W Lisse a écrit : I am not interested much in the details, interesting as they are :-)-O, but would like to pick up on Bruce's last paragraph, because in my view, the "membership supervision" is not going to help much as it is prone to capture, quite the opposite of the accountability we want. greetings, el Sent from Dr Lisse's iPad mini On Jan 7, 2015, at 02:40, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > wrote: What Bruce has set forth is close to correct. However, I can't help but do a little legal nit-picking. "Public benefit corporation" is a term used in California (among other places) as a term for non-profit corporations generally. (In New York State, we use the term "not-for-profit corporation" to mean basically the same thing as a California "public benefit corporation" (and we use the term "public benefit corporation" to mean something quite different -- a quasi-public corporation like the Metropolitan Transport Authority).) California public benefit corporations are not really "chartered by the state" (though New York ones like the MTA are chartered by the state). [Wikipedia isn't always a great source....] In California, public benefit corporations may be created with or without members, or may convert from member to non-member and vice versa. However, a public benefit corporation with members is still a public benefit corporation. (California also has "mutual benefit corporations" which are non-profit but never charitable (and are also not tax-exempt). Mutual benefit corporations are run for the benefit of their members, and not for the benefit of the general public.) The term "member" can also be used to mean people (or organizations) who aren't really members. For instance, when you become a "member" of a museum, you are not becoming a member of the corporation (i.e., what some in ICANN-land have termed a "statutory member"). These non-statutory "memberships" are more for marketing purposes and have no governance role. "Statutory members" on the other hand, have a role in governance (which can vary markedly depending on the by-laws of the particular corporation. Hope this helps. Best regards, Greg Shatan (Speaking for myself, and not giving legal advice as I am not a member of the California Bar) On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au> > wrote: Hello Phil, >> I would envisage the Board having to be compliance with all Corporate Governance Codes specific to Companies Law in the country of incorporation, subject to a community consensus override. But what is its corporate status - not for profit or for profit - as different codes would apply ? The legal status of ICANN is as specified in its articles of incorporation: https://www.icann.org/resources/pages/articles-2012-02-25-en "This Corporation is a non-profit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Non-profit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code." Also from: http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation "A public-benefit non-profit corporation is a type of non-profit corporation chartered by a state government, and organized primarily or exclusively for social, educational, recreational or charitable purposes by like-minded citizens. Public-benefit nonprofit corporations are distinct in the law from mutual-benefit nonprofit corporations in that they are organized for the general public benefit, rather than for the interest of its members." I believe it was deliberately set up as public benefit rather than a member organization - to avoid the situation where the members become limited to say gTLD registries and registrars and hence it ends up operating primarily for the benefit of the domain name registration industry. Any move away from a public-benefit corporation to a membership corporation - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members as interest in "ICANN" drops over time. I.e. a failure scenario of membership organisation is what happens to the membership base over time and how it can be protected from capture. I have seen some membership based ccTLDs get into problems when their membership becomes dominated by domain name investors for example. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr> Twitter : @mathieuweill *****************************
I would not rush to the conclusion that a membership group is per se prone to capture. A poorly designed membership group, yes. The devil is in the details -- who are the members? if they are individuals, who do they represent? how do they act? when can they act, and how quickly? how many of them are there? what are their powers? who is excluded? are there classes of members? is voting weighted? Also, I'm not sure if (or why) the community accountability mechanism needs to be "outside" (depending on what that means). Members in a membership corporation are not really outside, unless I am not getting the sense of the word as used here. As for the dispute resolution mechanism, that will depend on the other two factors (among other things). If the members have the "last word" on something, and the board fails to act, binding arbitration (or litigation) would be a reasonable step (although some escalation mechanisms might be appropriate before getting there). Greg Shatan Greg Shatan On Wed, Jan 7, 2015 at 10:37 AM, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote: > I think that the potential for capture of the outside member group is the > reason that the accountability system probably needs to be linked to an > independent judicial/arbitral function to resolve disputes. [Of course > that institution, too, could be captured … but at some point we have to end > the “who guards the guardians?” question]. And that, in turn emphasizes > why it is necessary as part of the transition to define the Board’s/ICANN’s > scope of authority. A judicial/arbitral function can only resolve disputes > and cabin capture/abuse if it has an articulated standard against which to > measure the dispute. In the absence of such pre-existing guidance the > judiciary/arbiter is simply substituting his/her/its own judgment for the > Board and the Community, which is not a good thing. > > > > Hence the bottom line: We need a) an outside accountability mechanism > representing the community; b) an independent dispute resolution mechanism; > and c) clearly articulated standards against which to measure and resolve > any dispute > > > > Paul > > > > ***NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 **** > > 509 C St. NE > > Washington, DC 20002 > > > > Paul Rosenzweig > > paul.rosenzweig@redbranchconsulting.com > <paul.rosenzweigesq@redbranchconsulting.com> > > O: +1 (202) 547-0660 > > M: +1 (202) 329-9650 > > Skype: +1 (202) 738-1739 or paul.rosenzweig1066 > > Link to my PGP Key > <http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9> > > > > *From:* Mathieu Weill [mailto:mathieu.weill@afnic.fr] > *Sent:* Wednesday, January 7, 2015 9:04 AM > *To:* accountability-cross-community@icann.org > *Subject:* Re: [CCWG-Accountability] Regarding Non-profit and > public-benefit legal structure > > > > Dear Colleagues, > > Many thanks for this very valuable discussion. > > While it confirms that our initial orientation towards the ability to, > somehow, oversee the Board, is relevant and worth exploring, the latest > comments (regarding risk of capture) highlight that we should also > anticipate on the accountability of the overseeing mechanism itself. > > If "the community" (through a mechanism yet to be determined) oversees > Board and staff, can we ensure all stakeholders, especially those who are > less familiar with Icann, that "the community", in turn, is accountable (ie > has the relevant independent checks and balances, review and redress > mechanisms) ? A significant challenge, but I'm confident our group can > address that. > > This aspect might, however, need to be addressed in our definition of WS1, > if there is agreement that is a necessary element for the transition to > take place. > > Best, > Mathieu > > > > Le 07/01/2015 09:07, Dr Eberhard W Lisse a écrit : > > I am not interested much in the details, interesting as they are :-)-O, > but would like to pick up on Bruce's last paragraph, because in my view, > the "membership supervision" is not going to help much as it is prone to > capture, quite the opposite of the accountability we want. > > > > greetings, el > > > Sent from Dr Lisse's iPad mini > > > On Jan 7, 2015, at 02:40, Greg Shatan <gregshatanipc@gmail.com> wrote: > > What Bruce has set forth is close to correct. However, I can't help but > do a little legal nit-picking. > > > > "Public benefit corporation" is a term used in California (among other > places) as a term for non-profit corporations generally. (In New York > State, we use the term "not-for-profit corporation" to mean basically the > same thing as a California "public benefit corporation" (and we use the > term "public benefit corporation" to mean something quite different -- a > quasi-public corporation like the Metropolitan Transport Authority).) > California public benefit corporations are not really "chartered by the > state" (though New York ones like the MTA are chartered by the state). > [Wikipedia isn't always a great source....] > > > > In California, public benefit corporations may be created with or without > members, or may convert from member to non-member and vice versa. However, > a public benefit corporation with members is still a public benefit > corporation. > > (California also has "mutual benefit corporations" which are non-profit > but never charitable (and are also not tax-exempt). Mutual benefit > corporations are run for the benefit of their members, and not for the > benefit of the general public.) > > > > The term "member" can also be used to mean people (or organizations) who > aren't really members. For instance, when you become a "member" of a > museum, you are not becoming a member of the corporation (i.e., what some > in ICANN-land have termed a "statutory member"). These non-statutory > "memberships" are more for marketing purposes and have no governance role. > "Statutory members" on the other hand, have a role in governance (which > can vary markedly depending on the by-laws of the particular corporation. > > > > Hope this helps. > > > > > > Best regards, > > > > Greg Shatan > > (Speaking for myself, and not giving legal advice as I am not a member of > the California Bar) > > > > On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin < > Bruce.Tonkin@melbourneit.com.au> wrote: > > Hello Phil, > > > >> I would envisage the Board having to be compliance with all Corporate > Governance Codes specific to Companies Law in the country of incorporation, > subject to a community consensus override. But what is its corporate status > - not for profit or for profit - as different codes would apply ? > > The legal status of ICANN is as specified in its articles of > incorporation: > > https://www.icann.org/resources/pages/articles-2012-02-25-en > > "This Corporation is a non-profit public benefit corporation and is not > organized for the private gain of any person. It is organized under the > California Non-profit Public Benefit Corporation Law for charitable and > public purposes. The Corporation is organized, and will be operated, > exclusively for charitable, educational, and scientific purposes within the > meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended > (the "Code"), or the corresponding provision of any future United States > tax code. Any reference in these Articles to the Code shall include the > corresponding provisions of any further United States tax code." > > Also from: > > http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation > > "A public-benefit non-profit corporation is a type of non-profit > corporation chartered by a state government, and organized primarily or > exclusively for social, educational, recreational or charitable purposes by > like-minded citizens. Public-benefit nonprofit corporations are distinct > in the law from mutual-benefit nonprofit corporations in that they are > organized for the general public benefit, rather than for the interest of > its members." > > I believe it was deliberately set up as public benefit rather than a > member organization - to avoid the situation where the members become > limited to say gTLD registries and registrars and hence it ends up > operating primarily for the benefit of the domain name registration > industry. > > Any move away from a public-benefit corporation to a membership > corporation - would need to carefully consider how to ensure that the > members are reflective of the broader Internet community and don't become > limited to a few members as interest in "ICANN" drops over time. I.e. a > failure scenario of membership organisation is what happens to the > membership base over time and how it can be protected from capture. I > have seen some membership based ccTLDs get into problems when their > membership becomes dominated by domain name investors for example. > > Regards, > Bruce Tonkin > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > > _______________________________________________ > > Accountability-Cross-Community mailing list > > Accountability-Cross-Community@icann.org > > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > -- > > ***************************** > > Mathieu WEILL > > AFNIC - directeur général > > Tél: +33 1 39 30 83 06 > > mathieu.weill@afnic.fr > > Twitter : @mathieuweill > > ***************************** > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > >
I am not rushing into anything, but we have SEEN this... el -- Sent from Dr Lisse's iPhone 5s
On Jan 7, 2015, at 19:45, Greg Shatan <gregshatanipc@gmail.com> wrote:
I would not rush to the conclusion that a membership group is per se prone to capture. A poorly designed membership group, yes. The devil is in the details -- who are the members? if they are individuals, who do they represent? how do they act? when can they act, and how quickly? how many of them are there? what are their powers? who is excluded? are there classes of members? is voting weighted?
Also, I'm not sure if (or why) the community accountability mechanism needs to be "outside" (depending on what that means). Members in a membership corporation are not really outside, unless I am not getting the sense of the word as used here.
As for the dispute resolution mechanism, that will depend on the other two factors (among other things). If the members have the "last word" on something, and the board fails to act, binding arbitration (or litigation) would be a reasonable step (although some escalation mechanisms might be appropriate before getting there).
Greg Shatan
Greg Shatan
On Wed, Jan 7, 2015 at 10:37 AM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote: I think that the potential for capture of the outside member group is the reason that the accountability system probably needs to be linked to an independent judicial/arbitral function to resolve disputes. [Of course that institution, too, could be captured … but at some point we have to end the “who guards the guardians?” question]. And that, in turn emphasizes why it is necessary as part of the transition to define the Board’s/ICANN’s scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing.
Hence the bottom line: We need a) an outside accountability mechanism representing the community; b) an independent dispute resolution mechanism; and c) clearly articulated standards against which to measure and resolve any dispute
Paul
**NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ***
509 C St. NE
Washington, DC 20002
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660
M: +1 (202) 329-9650
Skype: +1 (202) 738-1739 or paul.rosenzweig1066
Link to my PGP Key
From: Mathieu Weill [mailto:mathieu.weill@afnic.fr] Sent: Wednesday, January 7, 2015 9:04 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure
Dear Colleagues,
Many thanks for this very valuable discussion.
While it confirms that our initial orientation towards the ability to, somehow, oversee the Board, is relevant and worth exploring, the latest comments (regarding risk of capture) highlight that we should also anticipate on the accountability of the overseeing mechanism itself.
If "the community" (through a mechanism yet to be determined) oversees Board and staff, can we ensure all stakeholders, especially those who are less familiar with Icann, that "the community", in turn, is accountable (ie has the relevant independent checks and balances, review and redress mechanisms) ? A significant challenge, but I'm confident our group can address that.
This aspect might, however, need to be addressed in our definition of WS1, if there is agreement that is a necessary element for the transition to take place.
Best, Mathieu
Le 07/01/2015 09:07, Dr Eberhard W Lisse a écrit :
I am not interested much in the details, interesting as they are :-)-O, but would like to pick up on Bruce's last paragraph, because in my view, the "membership supervision" is not going to help much as it is prone to capture, quite the opposite of the accountability we want.
greetings, el
Sent from Dr Lisse's iPad mini
On Jan 7, 2015, at 02:40, Greg Shatan <gregshatanipc@gmail.com> wrote:
What Bruce has set forth is close to correct. However, I can't help but do a little legal nit-picking.
"Public benefit corporation" is a term used in California (among other places) as a term for non-profit corporations generally. (In New York State, we use the term "not-for-profit corporation" to mean basically the same thing as a California "public benefit corporation" (and we use the term "public benefit corporation" to mean something quite different -- a quasi-public corporation like the Metropolitan Transport Authority).) California public benefit corporations are not really "chartered by the state" (though New York ones like the MTA are chartered by the state). [Wikipedia isn't always a great source....]
In California, public benefit corporations may be created with or without members, or may convert from member to non-member and vice versa. However, a public benefit corporation with members is still a public benefit corporation.
(California also has "mutual benefit corporations" which are non-profit but never charitable (and are also not tax-exempt). Mutual benefit corporations are run for the benefit of their members, and not for the benefit of the general public.)
The term "member" can also be used to mean people (or organizations) who aren't really members. For instance, when you become a "member" of a museum, you are not becoming a member of the corporation (i.e., what some in ICANN-land have termed a "statutory member"). These non-statutory "memberships" are more for marketing purposes and have no governance role. "Statutory members" on the other hand, have a role in governance (which can vary markedly depending on the by-laws of the particular corporation.
Hope this helps.
Best regards,
Greg Shatan
(Speaking for myself, and not giving legal advice as I am not a member of the California Bar)
On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Phil,
I would envisage the Board having to be compliance with all Corporate Governance Codes specific to Companies Law in the country of incorporation, subject to a community consensus override. But what is its corporate status - not for profit or for profit - as different codes would apply ?
The legal status of ICANN is as specified in its articles of incorporation:
https://www.icann.org/resources/pages/articles-2012-02-25-en
"This Corporation is a non-profit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Non-profit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code."
Also from:
http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation
"A public-benefit non-profit corporation is a type of non-profit corporation chartered by a state government, and organized primarily or exclusively for social, educational, recreational or charitable purposes by like-minded citizens. Public-benefit nonprofit corporations are distinct in the law from mutual-benefit nonprofit corporations in that they are organized for the general public benefit, rather than for the interest of its members."
I believe it was deliberately set up as public benefit rather than a member organization - to avoid the situation where the members become limited to say gTLD registries and registrars and hence it ends up operating primarily for the benefit of the domain name registration industry.
Any move away from a public-benefit corporation to a membership corporation - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members as interest in "ICANN" drops over time. I.e. a failure scenario of membership organisation is what happens to the membership base over time and how it can be protected from capture. I have seen some membership based ccTLDs get into problems when their membership becomes dominated by domain name investors for example.
Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Some clarifications about the Member concept, as described on the Work Area 2 inventory<https://community.icann.org/pages/viewpage.action?pageId=51416471>: Members are not outside of ICANN — they are designated by their respective AC/SO/Constituencies. So not sure there is much risk that a majority of these Members could be captured. Members would be given only these enumerated powers: Appoint members of Affirmation Review teams Review [and perhaps reverse] any board decision. Non-approval would send decision back to bottom-up policy development process. Approve proposed changes to ICANN Bylaws or Articles of Incorporation. Approve annual proposed budget Members could not re-write contracts or budgets or bylaws. If a bottom-up consensus process generated a bylaws change that was rejected by the board, the Members could reverse that decision, however. Steve DelBianco From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Wednesday, January 7, 2015 at 12:45 PM Cc: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure I would not rush to the conclusion that a membership group is per se prone to capture. A poorly designed membership group, yes. The devil is in the details -- who are the members? if they are individuals, who do they represent? how do they act? when can they act, and how quickly? how many of them are there? what are their powers? who is excluded? are there classes of members? is voting weighted? Also, I'm not sure if (or why) the community accountability mechanism needs to be "outside" (depending on what that means). Members in a membership corporation are not really outside, unless I am not getting the sense of the word as used here. As for the dispute resolution mechanism, that will depend on the other two factors (among other things). If the members have the "last word" on something, and the board fails to act, binding arbitration (or litigation) would be a reasonable step (although some escalation mechanisms might be appropriate before getting there). Greg Shatan On Wed, Jan 7, 2015 at 10:37 AM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: I think that the potential for capture of the outside member group is the reason that the accountability system probably needs to be linked to an independent judicial/arbitral function to resolve disputes. [Of course that institution, too, could be captured … but at some point we have to end the “who guards the guardians?” question]. And that, in turn emphasizes why it is necessary as part of the transition to define the Board’s/ICANN’s scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing. Hence the bottom line: We need a) an outside accountability mechanism representing the community; b) an independent dispute resolution mechanism; and c) clearly articulated standards against which to measure and resolve any dispute Paul From: Mathieu Weill [mailto:mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>] Sent: Wednesday, January 7, 2015 9:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure Dear Colleagues, Many thanks for this very valuable discussion. While it confirms that our initial orientation towards the ability to, somehow, oversee the Board, is relevant and worth exploring, the latest comments (regarding risk of capture) highlight that we should also anticipate on the accountability of the overseeing mechanism itself. If "the community" (through a mechanism yet to be determined) oversees Board and staff, can we ensure all stakeholders, especially those who are less familiar with Icann, that "the community", in turn, is accountable (ie has the relevant independent checks and balances, review and redress mechanisms) ? A significant challenge, but I'm confident our group can address that. This aspect might, however, need to be addressed in our definition of WS1, if there is agreement that is a necessary element for the transition to take place. Best, Mathieu Le 07/01/2015 09:07, Dr Eberhard W Lisse a écrit : I am not interested much in the details, interesting as they are :-)-O, but would like to pick up on Bruce's last paragraph, because in my view, the "membership supervision" is not going to help much as it is prone to capture, quite the opposite of the accountability we want. greetings, el Sent from Dr Lisse's iPad mini On Jan 7, 2015, at 02:40, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: What Bruce has set forth is close to correct. However, I can't help but do a little legal nit-picking. "Public benefit corporation" is a term used in California (among other places) as a term for non-profit corporations generally. (In New York State, we use the term "not-for-profit corporation" to mean basically the same thing as a California "public benefit corporation" (and we use the term "public benefit corporation" to mean something quite different -- a quasi-public corporation like the Metropolitan Transport Authority).) California public benefit corporations are not really "chartered by the state" (though New York ones like the MTA are chartered by the state). [Wikipedia isn't always a great source....] In California, public benefit corporations may be created with or without members, or may convert from member to non-member and vice versa. However, a public benefit corporation with members is still a public benefit corporation. (California also has "mutual benefit corporations" which are non-profit but never charitable (and are also not tax-exempt). Mutual benefit corporations are run for the benefit of their members, and not for the benefit of the general public.) The term "member" can also be used to mean people (or organizations) who aren't really members. For instance, when you become a "member" of a museum, you are not becoming a member of the corporation (i.e., what some in ICANN-land have termed a "statutory member"). These non-statutory "memberships" are more for marketing purposes and have no governance role. "Statutory members" on the other hand, have a role in governance (which can vary markedly depending on the by-laws of the particular corporation. Hope this helps. Best regards, Greg Shatan (Speaking for myself, and not giving legal advice as I am not a member of the California Bar) On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Phil,
I would envisage the Board having to be compliance with all Corporate Governance Codes specific to Companies Law in the country of incorporation, subject to a community consensus override. But what is its corporate status - not for profit or for profit - as different codes would apply ?
The legal status of ICANN is as specified in its articles of incorporation: https://www.icann.org/resources/pages/articles-2012-02-25-en "This Corporation is a non-profit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Non-profit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code." Also from: http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation "A public-benefit non-profit corporation is a type of non-profit corporation chartered by a state government, and organized primarily or exclusively for social, educational, recreational or charitable purposes by like-minded citizens. Public-benefit nonprofit corporations are distinct in the law from mutual-benefit nonprofit corporations in that they are organized for the general public benefit, rather than for the interest of its members." I believe it was deliberately set up as public benefit rather than a member organization - to avoid the situation where the members become limited to say gTLD registries and registrars and hence it ends up operating primarily for the benefit of the domain name registration industry. Any move away from a public-benefit corporation to a membership corporation - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members as interest in "ICANN" drops over time. I.e. a failure scenario of membership organisation is what happens to the membership base over time and how it can be protected from capture. I have seen some membership based ccTLDs get into problems when their membership becomes dominated by domain name investors for example. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06<tel:%2B33%201%2039%2030%2083%2006> mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr> Twitter : @mathieuweill ***************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
One of the concerns I have with this proposed model is how non-commercial users as a whole would be treated. Non-commercial users had to fight for many years simply to achieve parity in representation with commercial users within the GNSO. My concern is that this type of model simply re-opens the door for non-commercial users to go back to a model of inequality with commercial users (if representation rights are given to "constituencies" rather than "stakeholder groups"). NCSG has members who do not belong to any constituency or who belong to more than one. So the devil is in the details of how these models are created. The same old battles fought among stakeholders for greater proportional representation will carry over to the development of the "member" model. It isn't a simple solution when you get into the specific details of precisely how representation is apportioned. Details like whether it is to "constituencies" or to "stakeholder groups" have a lot of impact and will be hard fought as a result. So this 1 example illustrates the concern I have about how this model could impact the stakeholder group I represent and perhaps not be quite as simple as it seems at first glance. I'm sure other stakeholders might have similar concerns. Who is a "member" and how much proportional representation is afforded will present the same old battles, just in a new suit. Thanks, Robin On Jan 7, 2015, at 11:08 AM, Steve DelBianco wrote:
Some clarifications about the Member concept, as described on the Work Area 2 inventory:
Members are not outside of ICANN — they are designated by their respective AC/SO/Constituencies. So not sure there is much risk that a majority of these Members could be captured.
Members would be given only these enumerated powers:
Appoint members of Affirmation Review teams Review [and perhaps reverse] any board decision. Non-approval would send decision back to bottom-up policy development process. Approve proposed changes to ICANN Bylaws or Articles of Incorporation. Approve annual proposed budget
Members could not re-write contracts or budgets or bylaws. If a bottom-up consensus process generated a bylaws change that was rejected by the board, the Members could reverse that decision, however.
Steve DelBianco
From: Greg Shatan <gregshatanipc@gmail.com> Date: Wednesday, January 7, 2015 at 12:45 PM Cc: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure
I would not rush to the conclusion that a membership group is per se prone to capture. A poorly designed membership group, yes. The devil is in the details -- who are the members? if they are individuals, who do they represent? how do they act? when can they act, and how quickly? how many of them are there? what are their powers? who is excluded? are there classes of members? is voting weighted?
Also, I'm not sure if (or why) the community accountability mechanism needs to be "outside" (depending on what that means). Members in a membership corporation are not really outside, unless I am not getting the sense of the word as used here.
As for the dispute resolution mechanism, that will depend on the other two factors (among other things). If the members have the "last word" on something, and the board fails to act, binding arbitration (or litigation) would be a reasonable step (although some escalation mechanisms might be appropriate before getting there).
Greg Shatan
On Wed, Jan 7, 2015 at 10:37 AM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
I think that the potential for capture of the outside member group is the reason that the accountability system probably needs to be linked to an independent judicial/arbitral function to resolve disputes. [Of course that institution, too, could be captured … but at some point we have to end the “who guards the guardians?” question]. And that, in turn emphasizes why it is necessary as part of the transition to define the Board’s/ICANN’s scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing. Hence the bottom line: We need a) an outside accountability mechanism representing the community; b) an independent dispute resolution mechanism; and c) clearly articulated standards against which to measure and resolve any dispute Paul
From: Mathieu Weill [mailto:mathieu.weill@afnic.fr] Sent: Wednesday, January 7, 2015 9:04 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure
Dear Colleagues,
Many thanks for this very valuable discussion.
While it confirms that our initial orientation towards the ability to, somehow, oversee the Board, is relevant and worth exploring, the latest comments (regarding risk of capture) highlight that we should also anticipate on the accountability of the overseeing mechanism itself.
If "the community" (through a mechanism yet to be determined) oversees Board and staff, can we ensure all stakeholders, especially those who are less familiar with Icann, that "the community", in turn, is accountable (ie has the relevant independent checks and balances, review and redress mechanisms) ? A significant challenge, but I'm confident our group can address that.
This aspect might, however, need to be addressed in our definition of WS1, if there is agreement that is a necessary element for the transition to take place.
Best, Mathieu
Le 07/01/2015 09:07, Dr Eberhard W Lisse a écrit :
I am not interested much in the details, interesting as they are :-)-O, but would like to pick up on Bruce's last paragraph, because in my view, the "membership supervision" is not going to help much as it is prone to capture, quite the opposite of the accountability we want.
greetings, el
Sent from Dr Lisse's iPad mini
On Jan 7, 2015, at 02:40, Greg Shatan <gregshatanipc@gmail.com> wrote:
What Bruce has set forth is close to correct. However, I can't help but do a little legal nit-picking.
"Public benefit corporation" is a term used in California (among other places) as a term for non-profit corporations generally. (In New York State, we use the term "not-for-profit corporation" to mean basically the same thing as a California "public benefit corporation" (and we use the term "public benefit corporation" to mean something quite different -- a quasi-public corporation like the Metropolitan Transport Authority).) California public benefit corporations are not really "chartered by the state" (though New York ones like the MTA are chartered by the state). [Wikipedia isn't always a great source....]
In California, public benefit corporations may be created with or without members, or may convert from member to non-member and vice versa. However, a public benefit corporation with members is still a public benefit corporation. (California also has "mutual benefit corporations" which are non-profit but never charitable (and are also not tax-exempt). Mutual benefit corporations are run for the benefit of their members, and not for the benefit of the general public.)
The term "member" can also be used to mean people (or organizations) who aren't really members. For instance, when you become a "member" of a museum, you are not becoming a member of the corporation (i.e., what some in ICANN-land have termed a "statutory member"). These non-statutory "memberships" are more for marketing purposes and have no governance role. "Statutory members" on the other hand, have a role in governance (which can vary markedly depending on the by-laws of the particular corporation.
Hope this helps.
Best regards,
Greg Shatan (Speaking for myself, and not giving legal advice as I am not a member of the California Bar)
On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Phil,
> I would envisage the Board having to be compliance with all Corporate Governance Codes specific to Companies Law in the country of incorporation, subject to a community consensus override. But what is its corporate status - not for profit or for profit - as different codes would apply ?
The legal status of ICANN is as specified in its articles of incorporation:
https://www.icann.org/resources/pages/articles-2012-02-25-en
"This Corporation is a non-profit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Non-profit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code."
Also from:
http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation
"A public-benefit non-profit corporation is a type of non-profit corporation chartered by a state government, and organized primarily or exclusively for social, educational, recreational or charitable purposes by like-minded citizens. Public-benefit nonprofit corporations are distinct in the law from mutual-benefit nonprofit corporations in that they are organized for the general public benefit, rather than for the interest of its members."
I believe it was deliberately set up as public benefit rather than a member organization - to avoid the situation where the members become limited to say gTLD registries and registrars and hence it ends up operating primarily for the benefit of the domain name registration industry.
Any move away from a public-benefit corporation to a membership corporation - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members as interest in "ICANN" drops over time. I.e. a failure scenario of membership organisation is what happens to the membership base over time and how it can be protected from capture. I have seen some membership based ccTLDs get into problems when their membership becomes dominated by domain name investors for example.
Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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A few comments on some quite interesting posts: 1. I think it is important to acknowledge at the outset that the only way we will be able to create and implement any type of membership based organisational structure is if everyone 1) checks their egos at the door, 2) actually listen to the concerns and needs of the other groups and 3) understands there will have to be a lot of compromises to get to a product we can all live with, if not completely agree with in every detail. I'm as big a supporter of creating a membership based ICANN as you're likely going to find in the noncommercial community yet Robin is right: I could never sell an organisational scheme to my colleagues that is based upon what we consider to be the unequal and biased representation scheme embedded in the constituency model. Yet I realise the commercial community, registrars - on down the line - all groups have their own needs, wants and desires. We're going to have to be creative, perhaps, for example, by creating different membership classes, while recognising that 1) we don't have the time to re-fight past battles and 2) every group in ICANN will have to buy into the final product or we will not succeed. There are a lot of people on the outside who believe we are destined to fail: let's not prove them right. 2. I agree with Greg: it's too early to sort exactly what powers we want to give to Members. That said, if we are to become a California Public Benefits Corporation with members, there are two potent statutory provisions of the California Corporations Code that are designed to make the Board accountable to its Members: a. California Corporations Code §5222 allows Members to remove Board members without cause provided certain voting thresholds are met. The general rule is that a majority vote would suffice for the removal, but the statute has a number of provisions that makes things a bit more complex. The threshold is generally not something we would decide, it's there in the statute. b. California Corporations Code §5710 allows for Members Derivative Actions. A derivative action is perhaps the most potent accountability tool available for Members / shareholders in any corporation: the right to sue on behalf of the corporation those harming the corporation. Well, it's a bit more complicated than that but that is the general idea. I'm a huge supporter of derivative actions as a means of ensuring the ultimate accountability of the Board. I realise, however, not everyone shares my enthusiasm and this may be a lightening rod for those opposing the membership scheme. 3. I just wanted to briefly note that California Corporations Code §5152 does provide for something called "delegates" which have "some or all of the authority of members". This could be considered if we decide to go to a membership type based organization but don't want to give all of the statutory powers provided under California law to our members. Thanks to everyone for contributing to such a lively and important conversation. Best, Ed Morris -----Original Message----- From: Robin Gross <robin@ipjustice.org> To: Accountability Cross Community <accountability-cross-community@icann.org> Date: Wed, 7 Jan 2015 11:44:28 -0800 Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure One of the concerns I have with this proposed model is how non-commercial users as a whole would be treated. Non-commercial users had to fight for many years simply to achieve parity in representation with commercial users within the GNSO. My concern is that this type of model simply re-opens the door for non-commercial users to go back to a model of inequality with commercial users (if representation rights are given to "constituencies" rather than "stakeholder groups"). NCSG has members who do not belong to any constituency or who belong to more than one. So the devil is in the details of how these models are created. The same old battles fought among stakeholders for greater proportional representation will carry over to the development of the "member" model. It isn't a simple solution when you get into the specific details of precisely how representation is apportioned. Details like whether it is to "constituencies" or to "stakeholder groups" have a lot of impact and will be hard fought as a result. So this 1 example illustrates the concern I have about how this model could impact the stakeholder group I represent and perhaps not be quite as simple as it seems at first glance. I'm sure other stakeholders might have similar concerns. Who is a "member" and how much proportional representation is afforded will present the same old battles, just in a new suit. Thanks, Robin On Jan 7, 2015, at 11:08 AM, Steve DelBianco wrote: Some clarifications about the Member concept, as described on the Work Area 2 inventory: Members are not outside of ICANN — they are designated by their respective AC/SO/Constituencies. So not sure there is much risk that a majority of these Members could be captured. Members would be given only these enumerated powers: Appoint members of Affirmation Review teams Review [and perhaps reverse] any board decision. Non-approval would send decision back to bottom-up policy development process. Approve proposed changes to ICANN Bylaws or Articles of Incorporation. Approve annual proposed budget Members could not re-write contracts or budgets or bylaws. If a bottom-up consensus process generated a bylaws change that was rejected by the board, the Members could reverse that decision, however. Steve DelBianco From: Greg Shatan <gregshatanipc@gmail.com> Date: Wednesday, January 7, 2015 at 12:45 PM Cc: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure I would not rush to the conclusion that a membership group is per se prone to capture. A poorly designed membership group, yes. The devil is in the details -- who are the members? if they are individuals, who do they represent? how do they act? when can they act, and how quickly? how many of them are there? what are their powers? who is excluded? are there classes of members? is voting weighted? Also, I'm not sure if (or why) the community accountability mechanism needs to be "outside" (depending on what that means). Members in a membership corporation are not really outside, unless I am not getting the sense of the word as used here. As for the dispute resolution mechanism, that will depend on the other two factors (among other things). If the members have the "last word" on something, and the board fails to act, binding arbitration (or litigation) would be a reasonable step (although some escalation mechanisms might be appropriate before getting there). Greg Shatan On Wed, Jan 7, 2015 at 10:37 AM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote: I think that the potential for capture of the outside member group is the reason that the accountability system probably needs to be linked to an independent judicial/arbitral function to resolve disputes. [Of course that institution, too, could be captured … but at some point we have to end the “who guards the guardians?” question]. And that, in turn emphasizes why it is necessary as part of the transition to define the Board’s/ICANN’s scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing. Hence the bottom line: We need a) an outside accountability mechanism representing the community; b) an independent dispute resolution mechanism; and c) clearly articulated standards against which to measure and resolve any dispute Paul From: Mathieu Weill [mailto:mathieu.weill@afnic.fr] Sent: Wednesday, January 7, 2015 9:04 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure Dear Colleagues, Many thanks for this very valuable discussion. While it confirms that our initial orientation towards the ability to, somehow, oversee the Board, is relevant and worth exploring, the latest comments (regarding risk of capture) highlight that we should also anticipate on the accountability of the overseeing mechanism itself. If "the community" (through a mechanism yet to be determined) oversees Board and staff, can we ensure all stakeholders, especially those who are less familiar with Icann, that "the community", in turn, is accountable (ie has the relevant independent checks and balances, review and redress mechanisms) ? A significant challenge, but I'm confident our group can address that. This aspect might, however, need to be addressed in our definition of WS1, if there is agreement that is a necessary element for the transition to take place. Best, Mathieu Le 07/01/2015 09:07, Dr Eberhard W Lisse a écrit : I am not interested much in the details, interesting as they are :-)-O, but would like to pick up on Bruce's last paragraph, because in my view, the "membership supervision" is not going to help much as it is prone to capture, quite the opposite of the accountability we want. greetings, el Sent from Dr Lisse's iPad mini On Jan 7, 2015, at 02:40, Greg Shatan <gregshatanipc@gmail.com> wrote: What Bruce has set forth is close to correct. However, I can't help but do a little legal nit-picking. "Public benefit corporation" is a term used in California (among other places) as a term for non-profit corporations generally. (In New York State, we use the term "not-for-profit corporation" to mean basically the same thing as a California "public benefit corporation" (and we use the term "public benefit corporation" to mean something quite different -- a quasi-public corporation like the Metropolitan Transport Authority).) California public benefit corporations are not really "chartered by the state" (though New York ones like the MTA are chartered by the state). [Wikipedia isn't always a great source....] In California, public benefit corporations may be created with or without members, or may convert from member to non-member and vice versa. However, a public benefit corporation with members is still a public benefit corporation. (California also has "mutual benefit corporations" which are non-profit but never charitable (and are also not tax-exempt). Mutual benefit corporations are run for the benefit of their members, and not for the benefit of the general public.) The term "member" can also be used to mean people (or organizations) who aren't really members. For instance, when you become a "member" of a museum, you are not becoming a member of the corporation (i.e., what some in ICANN-land have termed a "statutory member"). These non-statutory "memberships" are more for marketing purposes and have no governance role. "Statutory members" on the other hand, have a role in governance (which can vary markedly depending on the by-laws of the particular corporation. Hope this helps. Best regards, Greg Shatan (Speaking for myself, and not giving legal advice as I am not a member of the California Bar) On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote: Hello Phil, >> I would envisage the Board having to be compliance with all Corporate Governance Codes specific to Companies Law in the country of incorporation, subject to a community consensus override. But what is its corporate status - not for profit or for profit - as different codes would apply ? The legal status of ICANN is as specified in its articles of incorporation: https://www.icann.org/resources/pages/articles-2012-02-25-en "This Corporation is a non-profit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Non-profit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code." Also from: http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation "A public-benefit non-profit corporation is a type of non-profit corporation chartered by a state government, and organized primarily or exclusively for social, educational, recreational or charitable purposes by like-minded citizens. Public-benefit nonprofit corporations are distinct in the law from mutual-benefit nonprofit corporations in that they are organized for the general public benefit, rather than for the interest of its members." I believe it was deliberately set up as public benefit rather than a member organization - to avoid the situation where the members become limited to say gTLD registries and registrars and hence it ends up operating primarily for the benefit of the domain name registration industry. Any move away from a public-benefit corporation to a membership corporation - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members as interest in "ICANN" drops over time. I.e. a failure scenario of membership organisation is what happens to the membership base over time and how it can be protected from capture. I have seen some membership based ccTLDs get into problems when their membership becomes dominated by domain name investors for example. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill ***************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
They are not a corporation. ICANN is a non-profit that jumped from over $72,000,000 in 2012 reported to almost $250,000,000 in 2013 reported. Where are you getting this "corporate" notion from? Is ICANN planning to shift from non-profit to profit? On Wed, Jan 7, 2015 at 11:06 PM, Edward Morris <emorris@milk.toast.net> wrote:
A few comments on some quite interesting posts:
1. I think it is important to acknowledge at the outset that the only way we will be able to create and implement any type of membership based organisational structure is if everyone 1) checks their egos at the door, 2) actually listen to the concerns and needs of the other groups and 3) understands there will have to be a lot of compromises to get to a product we can all live with, if not completely agree with in every detail.
I'm as big a supporter of creating a membership based ICANN as you're likely going to find in the noncommercial community yet Robin is right: I could never sell an organisational scheme to my colleagues that is based upon what we consider to be the unequal and biased representation scheme embedded in the constituency model. Yet I realise the commercial community, registrars - on down the line - all groups have their own needs, wants and desires. We're going to have to be creative, perhaps, for example, by creating different membership classes, while recognising that 1) we don't have the time to re-fight past battles and 2) every group in ICANN will have to buy into the final product or we will not succeed. There are a lot of people on the outside who believe we are destined to fail: let's not prove them right.
2. I agree with Greg: it's too early to sort exactly what powers we want to give to Members. That said, if we are to become a California Public Benefits Corporation with members, there are two potent statutory provisions of the California Corporations Code that are designed to make the Board accountable to its Members:
a. California Corporations Code §5222 allows Members to remove Board members without cause provided certain voting thresholds are met. The general rule is that a majority vote would suffice for the removal, but the statute has a number of provisions that makes things a bit more complex. The threshold is generally not something we would decide, it's there in the statute.
b. California Corporations Code §5710 allows for Members Derivative Actions. A derivative action is perhaps the most potent accountability tool available for Members / shareholders in any corporation: the right to sue on behalf of the corporation those harming the corporation. Well, it's a bit more complicated than that but that is the general idea. I'm a huge supporter of derivative actions as a means of ensuring the ultimate accountability of the Board. I realise, however, not everyone shares my enthusiasm and this may be a lightening rod for those opposing the membership scheme.
3. I just wanted to briefly note that California Corporations Code §5152 does provide for something called "delegates" which have "some or all of the authority of members". This could be considered if we decide to go to a membership type based organization but don't want to give all of the statutory powers provided under California law to our members.
Thanks to everyone for contributing to such a lively and important conversation.
Best,
Ed Morris
-----Original Message----- From: Robin Gross <robin@ipjustice.org> To: Accountability Cross Community < accountability-cross-community@icann.org> Date: Wed, 7 Jan 2015 11:44:28 -0800 Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure
One of the concerns I have with this proposed model is how non-commercial users as a whole would be treated. Non-commercial users had to fight for many years simply to achieve parity in representation with commercial users within the GNSO. My concern is that this type of model simply re-opens the door for non-commercial users to go back to a model of inequality with commercial users (if representation rights are given to "constituencies" rather than "stakeholder groups"). NCSG has members who do not belong to any constituency or who belong to more than one. So the devil is in the details of how these models are created. The same old battles fought among stakeholders for greater proportional representation will carry over to the development of the "member" model. It isn't a simple solution when you get into the specific details of precisely how representation is apportioned. Details like whether it is to "constituencies" or to "stakeholder groups" have a lot of impact and will be hard fought as a result. So this 1 example illustrates the concern I have about how this model could impact the stakeholder group I represent and perhaps not be quite as simple as it seems at first glance. I'm sure other stakeholders might have similar concerns. Who is a "member" and how much proportional representation is afforded will present the same old battles, just in a new suit.
Thanks, Robin
On Jan 7, 2015, at 11:08 AM, Steve DelBianco wrote:
Some clarifications about the Member concept, as described on the Work Area 2 inventory <https://community.icann.org/pages/viewpage.action?pageId=51416471>:
Members are not outside of ICANN — they are designated by their respective AC/SO/Constituencies. So not sure there is much risk that a majority of these Members could be captured.
Members would be given only these enumerated powers:
Appoint members of Affirmation Review teams Review [and perhaps reverse] any board decision. Non-approval would send decision back to bottom-up policy development process. Approve proposed changes to ICANN Bylaws or Articles of Incorporation. Approve annual proposed budget
Members could *not* re-write contracts or budgets or bylaws. If a bottom-up consensus process generated a bylaws change that was rejected by the board, the Members could reverse that decision, however.
Steve DelBianco
From: Greg Shatan < gregshatanipc@gmail.com> Date: Wednesday, January 7, 2015 at 12:45 PM Cc: " accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure
I would not rush to the conclusion that a membership group is per se prone to capture. A poorly designed membership group, yes. The devil is in the details -- who are the members? if they are individuals, who do they represent? how do they act? when can they act, and how quickly? how many of them are there? what are their powers? who is excluded? are there classes of members? is voting weighted?
Also, I'm not sure if (or why) the community accountability mechanism needs to be "outside" (depending on what that means). Members in a membership corporation are not really outside, unless I am not getting the sense of the word as used here.
As for the dispute resolution mechanism, that will depend on the other two factors (among other things). If the members have the "last word" on something, and the board fails to act, binding arbitration (or litigation) would be a reasonable step (although some escalation mechanisms might be appropriate before getting there).
Greg Shatan
On Wed, Jan 7, 2015 at 10:37 AM, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
I think that the potential for capture of the outside member group is the reason that the accountability system probably needs to be linked to an independent judicial/arbitral function to resolve disputes. [Of course that institution, too, could be captured … but at some point we have to end the “who guards the guardians?” question]. And that, in turn emphasizes why it is necessary as part of the transition to define the Board’s/ICANN’s scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing. Hence the bottom line: We need a) an outside accountability mechanism representing the community; b) an independent dispute resolution mechanism; and c) clearly articulated standards against which to measure and resolve any dispute Paul
*From:* Mathieu Weill [mailto: mathieu.weill@afnic.fr] *Sent:* Wednesday, January 7, 2015 9:04 AM *To:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure
Dear Colleagues,
Many thanks for this very valuable discussion.
While it confirms that our initial orientation towards the ability to, somehow, oversee the Board, is relevant and worth exploring, the latest comments (regarding risk of capture) highlight that we should also anticipate on the accountability of the overseeing mechanism itself.
If "the community" (through a mechanism yet to be determined) oversees Board and staff, can we ensure all stakeholders, especially those who are less familiar with Icann, that "the community", in turn, is accountable (ie has the relevant independent checks and balances, review and redress mechanisms) ? A significant challenge, but I'm confident our group can address that.
This aspect might, however, need to be addressed in our definition of WS1, if there is agreement that is a necessary element for the transition to take place.
Best, Mathieu
Le 07/01/2015 09:07, Dr Eberhard W Lisse a écrit :
I am not interested much in the details, interesting as they are :-)-O, but would like to pick up on Bruce's last paragraph, because in my view, the "membership supervision" is not going to help much as it is prone to capture, quite the opposite of the accountability we want.
greetings, el
Sent from Dr Lisse's iPad mini
On Jan 7, 2015, at 02:40, Greg Shatan < gregshatanipc@gmail.com> wrote:
What Bruce has set forth is close to correct. However, I can't help but do a little legal nit-picking.
"Public benefit corporation" is a term used in California (among other places) as a term for non-profit corporations generally. (In New York State, we use the term "not-for-profit corporation" to mean basically the same thing as a California "public benefit corporation" (and we use the term "public benefit corporation" to mean something quite different -- a quasi-public corporation like the Metropolitan Transport Authority).) California public benefit corporations are not really "chartered by the state" (though New York ones like the MTA are chartered by the state). [Wikipedia isn't always a great source....]
In California, public benefit corporations may be created with or without members, or may convert from member to non-member and vice versa. However, a public benefit corporation with members is still a public benefit corporation. (California also has "mutual benefit corporations" which are non-profit but never charitable (and are also not tax-exempt). Mutual benefit corporations are run for the benefit of their members, and not for the benefit of the general public.)
The term "member" can also be used to mean people (or organizations) who aren't really members. For instance, when you become a "member" of a museum, you are not becoming a member of the corporation (i.e., what some in ICANN-land have termed a "statutory member"). These non-statutory "memberships" are more for marketing purposes and have no governance role. "Statutory members" on the other hand, have a role in governance (which can vary markedly depending on the by-laws of the particular corporation.
Hope this helps.
Best regards,
Greg Shatan (Speaking for myself, and not giving legal advice as I am not a member of the California Bar)
On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Phil,
I would envisage the Board having to be compliance with all Corporate Governance Codes specific to Companies Law in the country of incorporation, subject to a community consensus override. But what is its corporate status - not for profit or for profit - as different codes would apply ?
The legal status of ICANN is as specified in its articles of incorporation:
https://www.icann.org/resources/pages/articles-2012-02-25-en
"This Corporation is a non-profit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Non-profit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code."
Also from:
http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation
"A public-benefit non-profit corporation is a type of non-profit corporation chartered by a state government, and organized primarily or exclusively for social, educational, recreational or charitable purposes by like-minded citizens. Public-benefit nonprofit corporations are distinct in the law from mutual-benefit nonprofit corporations in that they are organized for the general public benefit, rather than for the interest of its members."
I believe it was deliberately set up as public benefit rather than a member organization - to avoid the situation where the members become limited to say gTLD registries and registrars and hence it ends up operating primarily for the benefit of the domain name registration industry.
Any move away from a public-benefit corporation to a membership corporation - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members as interest in "ICANN" drops over time. I.e. a failure scenario of membership organisation is what happens to the membership base over time and how it can be protected from capture. I have seen some membership based ccTLDs get into problems when their membership becomes dominated by domain name investors for example.
Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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-- Sincerely CARRIE Devorah 562 688 2883 DISCLAIMER : With the continuing crossing and interfacing of platforms both on & off line both with & without our knowledge nor approval to note nothing sent over the Internet anymore is ever private nor should be presumed to be so. If it is that much of a secret, say nothing. If you must? Take a lesson from our military- hand write the note, chew then swallow
On Thu, Jan 8, 2015 at 5:07 AM, Carrie Devorah <carriedev@gmail.com> wrote: They are not a corporation. ICANN is a non-profit that jumped from over $72,000,000 in 2012 reported to almost $250,000,000 in 2013 reported. Where are you getting this "corporate" notion from? Is ICANN planning to shift from non-profit to profit? HI Carrie, Sorry to differ. The Internet Corporation for Assigned Names and Numbers is a California public benefits corporation, governed by §5110-§6910 of the California Corporations Code. ICANN's articles of incorporation were filed on September 30, 1998 and it is California entity number C2121683. Corporation, per se, is a term that can be applied to both for-profit and not-for-profit entities. I'm unaware of any current plan to shift ICANN status from non-profit to profit, although some have called for such a change (see, for example: http://thehill.com/blogs/congress-blog/technology/227726-icanns-number-is-up ). On Wed, Jan 7, 2015 at 11:06 PM, Edward Morris <emorris@milk.toast.net> wrote: A few comments on some quite interesting posts:
Hello Edward,
I'm unaware of any current plan to shift ICANN status from non-profit to profit, although some have called for such a change (see, for example: http://thehill.com/blogs/congress-blog/technology/227726-icanns-number-is-up ).
That is right - there is no plan from either the Board or staff to change from being a non-profit entity, and I haven't heard any SO or AC make that suggestion either. Regards, Bruce Tonkin
Thank you Bruce. But according to Ed 's California corporation registration number they have registered already as a ca corp. please explain how this occurs being a corp on CA at the same time registered as a non profit w the IRS ? Sent from my iPhone
On Jan 8, 2015, at 7:57 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Edward,
I'm unaware of any current plan to shift ICANN status from non-profit to profit, although some have called for such a change (see, for example: http://thehill.com/blogs/congress-blog/technology/227726-icanns-number-is-up ).
That is right - there is no plan from either the Board or staff to change from being a non-profit entity, and I haven't heard any SO or AC make that suggestion either.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Carrie: That's exactly how it works, and the only way it works. Remember that the US is a federal system with two pertinent tiers of laws -- state and federal. Organizations are created under state law, not under federal law (with extremely rare exceptions). Federal tax exemption is handled (by definition) at the federal level. A not-for-profit organization must first incorporate under state law, and then proceed to seek a federal tax exemption as a non-profit under 501(c)(3) (or other relevant subsections for particular types of organizations). In other words, an organization cannot apply for federal tax exemption under 501(c)(3) *until* it has incorporated as a non-profit under the law of a state of the U.S. [While there are organizations other than corporations that may qualify for federal tax exemptions, such as trusts and "community chests," they are not relevant to this discussion.] Hope this helps. Greg Shatan On Thu, Jan 8, 2015 at 8:02 AM, Carrie <carriedev@gmail.com> wrote:
Thank you Bruce. But according to Ed 's California corporation registration number they have registered already as a ca corp. please explain how this occurs being a corp on CA at the same time registered as a non profit w the IRS ?
Sent from my iPhone
On Jan 8, 2015, at 7:57 AM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Edward,
I'm unaware of any current plan to shift ICANN status from non-profit to profit, although some have called for such a change (see, for example: http://thehill.com/blogs/congress-blog/technology/227726-icanns-number-is-up ).
That is right - there is no plan from either the Board or staff to change from being a non-profit entity, and I haven't heard any SO or AC make that suggestion either.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Though the co-chairs, AGAIN, can we PLEASE dispense with trying to explain the basics to someone who most definitively has not taken the opportunity to do her homework in this regard? This is a reasonably high volume Mailing List and it is difficult enough to try and keep up without these distractions. el -- Sent from Dr Lisse's iPhone 5s
On Jan 8, 2015, at 16:07, Greg Shatan <gregshatanipc@gmail.com> wrote:
Carrie:
That's exactly how it works, and the only way it works. Remember that the US is a federal system with two pertinent tiers of laws -- state and federal.
Organizations are created under state law, not under federal law (with extremely rare exceptions). Federal tax exemption is handled (by definition) at the federal level. A not-for-profit organization must first incorporate under state law, and then proceed to seek a federal tax exemption as a non-profit under 501(c)(3) (or other relevant subsections for particular types of organizations).
In other words, an organization cannot apply for federal tax exemption under 501(c)(3) until it has incorporated as a non-profit under the law of a state of the U.S. [While there are organizations other than corporations that may qualify for federal tax exemptions, such as trusts and "community chests," they are not relevant to this discussion.]
Hope this helps.
Greg Shatan
On Thu, Jan 8, 2015 at 8:02 AM, Carrie <carriedev@gmail.com> wrote: Thank you Bruce. But according to Ed 's California corporation registration number they have registered already as a ca corp. please explain how this occurs being a corp on CA at the same time registered as a non profit w the IRS ?
Sent from my iPhone
On Jan 8, 2015, at 7:57 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Edward,
I'm unaware of any current plan to shift ICANN status from non-profit to profit, although some have called for such a change (see, for example: http://thehill.com/blogs/congress-blog/technology/227726-icanns-number-is-up ).
That is right - there is no plan from either the Board or staff to change from being a non-profit entity, and I haven't heard any SO or AC make that suggestion either.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dr. Lisse There are also local laws that are too often overlooked but no less laws that must be complied with, as there are Regulatory oversite that ends up in Slap in the Wrist results most often and when necessary turned over to the DOJ. We all have different approaches and POV's on this conversation. TBR, to be respected. Carrie Devorah www.centerforcopyrightintegrity.com On Thu, Jan 8, 2015 at 1:03 PM, Dr Eberhard W Lisse <epilisse@gmail.com> wrote:
Though the co-chairs, AGAIN,
can we PLEASE dispense with trying to explain the basics to someone who most definitively has not taken the opportunity to do her homework in this regard?
This is a reasonably high volume Mailing List and it is difficult enough to try and keep up without these distractions.
el
-- Sent from Dr Lisse's iPhone 5s
On Jan 8, 2015, at 16:07, Greg Shatan <gregshatanipc@gmail.com> wrote:
Carrie:
That's exactly how it works, and the only way it works. Remember that the US is a federal system with two pertinent tiers of laws -- state and federal.
Organizations are created under state law, not under federal law (with extremely rare exceptions). Federal tax exemption is handled (by definition) at the federal level. A not-for-profit organization must first incorporate under state law, and then proceed to seek a federal tax exemption as a non-profit under 501(c)(3) (or other relevant subsections for particular types of organizations).
In other words, an organization cannot apply for federal tax exemption under 501(c)(3) *until* it has incorporated as a non-profit under the law of a state of the U.S. [While there are organizations other than corporations that may qualify for federal tax exemptions, such as trusts and "community chests," they are not relevant to this discussion.]
Hope this helps.
Greg Shatan
On Thu, Jan 8, 2015 at 8:02 AM, Carrie <carriedev@gmail.com> wrote:
Thank you Bruce. But according to Ed 's California corporation registration number they have registered already as a ca corp. please explain how this occurs being a corp on CA at the same time registered as a non profit w the IRS ?
Sent from my iPhone
On Jan 8, 2015, at 7:57 AM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Edward,
I'm unaware of any current plan to shift ICANN status from non-profit to profit, although some have called for such a change (see, for example: http://thehill.com/blogs/congress-blog/technology/227726-icanns-number-is-up ).
That is right - there is no plan from either the Board or staff to change from being a non-profit entity, and I haven't heard any SO or AC make that suggestion either.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Sincerely CARRIE Devorah 562 688 2883 DISCLAIMER : With the continuing crossing and interfacing of platforms both on & off line both with & without our knowledge nor approval to note nothing sent over the Internet anymore is ever private nor should be presumed to be so. If it is that much of a secret, say nothing. If you must? Take a lesson from our military- hand write the note, chew then swallow
Dear co-chairs, I apologize having emailed that person directly. Most likely because of the iPhone not displaying the addresses like Thinderbird wjich I am used to. I will try to avoid this in the futre. el -- Sent from Dr Lisse's iPhone 5s
On Jan 8, 2015, at 20:53, Carrie Devorah <carriedev@gmail.com> wrote:
Dr. Lisse There are also local laws that are too often overlooked but no less laws that must be complied with, as there are Regulatory oversite that ends up in Slap in the Wrist results most often and when necessary turned over to the DOJ. We all have different approaches and POV's on this conversation. TBR, to be respected. Carrie Devorah www.centerforcopyrightintegrity.com
On Thu, Jan 8, 2015 at 1:03 PM, Dr Eberhard W Lisse <epilisse@gmail.com> wrote: Though the co-chairs, AGAIN,
can we PLEASE dispense with trying to explain the basics to someone who most definitively has not taken the opportunity to do her homework in this regard?
This is a reasonably high volume Mailing List and it is difficult enough to try and keep up without these distractions.
el
-- Sent from Dr Lisse's iPhone 5s
On Jan 8, 2015, at 16:07, Greg Shatan <gregshatanipc@gmail.com> wrote:
Carrie:
That's exactly how it works, and the only way it works. Remember that the US is a federal system with two pertinent tiers of laws -- state and federal.
Organizations are created under state law, not under federal law (with extremely rare exceptions). Federal tax exemption is handled (by definition) at the federal level. A not-for-profit organization must first incorporate under state law, and then proceed to seek a federal tax exemption as a non-profit under 501(c)(3) (or other relevant subsections for particular types of organizations).
In other words, an organization cannot apply for federal tax exemption under 501(c)(3) until it has incorporated as a non-profit under the law of a state of the U.S. [While there are organizations other than corporations that may qualify for federal tax exemptions, such as trusts and "community chests," they are not relevant to this discussion.]
Hope this helps.
Greg Shatan
On Thu, Jan 8, 2015 at 8:02 AM, Carrie <carriedev@gmail.com> wrote: Thank you Bruce. But according to Ed 's California corporation registration number they have registered already as a ca corp. please explain how this occurs being a corp on CA at the same time registered as a non profit w the IRS ?
Sent from my iPhone
On Jan 8, 2015, at 7:57 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Edward,
> I'm unaware of any current plan to shift ICANN status from non-profit to profit, although some have called for such a change (see, for example: http://thehill.com/blogs/congress-blog/technology/227726-icanns-number-is-up ).
That is right - there is no plan from either the Board or staff to change from being a non-profit entity, and I haven't heard any SO or AC make that suggestion either.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Sincerely CARRIE Devorah 562 688 2883
DISCLAIMER : With the continuing crossing and interfacing of platforms both on & off line both with & without our knowledge nor approval to note nothing sent over the Internet anymore is ever private nor should be presumed to be so. If it is that much of a secret, say nothing. If you must? Take a lesson from our military- hand write the note, chew then swallow
El You did ok emailing me directly after all, ICANN is about transparency. Correct? If you have something to say, I do want to hear about it. If you have questions you want to ask or references for precedence, let me know. The coordinated work here is about building the better mousetrap together. IF you chose not to be open, then, well, you fly in the face of what ICANN purports to be... Carrie Devorah www.centerforcopyrightintegrity.com On Thu, Jan 8, 2015 at 1:59 PM, Dr Eberhard WLisse <epilisse@gmail.com> wrote:
Dear co-chairs, I apologize having emailed that person directly. Most likely because of the iPhone not displaying the addresses like Thinderbird wjich I am used to.
I will try to avoid this in the futre.
el
-- Sent from Dr Lisse's iPhone 5s
On Jan 8, 2015, at 20:53, Carrie Devorah <carriedev@gmail.com> wrote:
Dr. Lisse There are also local laws that are too often overlooked but no less laws that must be complied with, as there are Regulatory oversite that ends up in Slap in the Wrist results most often and when necessary turned over to the DOJ. We all have different approaches and POV's on this conversation. TBR, to be respected. Carrie Devorah www.centerforcopyrightintegrity.com
On Thu, Jan 8, 2015 at 1:03 PM, Dr Eberhard W Lisse <epilisse@gmail.com> wrote:
Though the co-chairs, AGAIN,
can we PLEASE dispense with trying to explain the basics to someone who most definitively has not taken the opportunity to do her homework in this regard?
This is a reasonably high volume Mailing List and it is difficult enough to try and keep up without these distractions.
el
-- Sent from Dr Lisse's iPhone 5s
On Jan 8, 2015, at 16:07, Greg Shatan <gregshatanipc@gmail.com> wrote:
Carrie:
That's exactly how it works, and the only way it works. Remember that the US is a federal system with two pertinent tiers of laws -- state and federal.
Organizations are created under state law, not under federal law (with extremely rare exceptions). Federal tax exemption is handled (by definition) at the federal level. A not-for-profit organization must first incorporate under state law, and then proceed to seek a federal tax exemption as a non-profit under 501(c)(3) (or other relevant subsections for particular types of organizations).
In other words, an organization cannot apply for federal tax exemption under 501(c)(3) *until* it has incorporated as a non-profit under the law of a state of the U.S. [While there are organizations other than corporations that may qualify for federal tax exemptions, such as trusts and "community chests," they are not relevant to this discussion.]
Hope this helps.
Greg Shatan
On Thu, Jan 8, 2015 at 8:02 AM, Carrie <carriedev@gmail.com> wrote:
Thank you Bruce. But according to Ed 's California corporation registration number they have registered already as a ca corp. please explain how this occurs being a corp on CA at the same time registered as a non profit w the IRS ?
Sent from my iPhone
On Jan 8, 2015, at 7:57 AM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Edward,
I'm unaware of any current plan to shift ICANN status from non-profit to profit, although some have called for such a change (see, for example: http://thehill.com/blogs/congress-blog/technology/227726-icanns-number-is-up ).
That is right - there is no plan from either the Board or staff to change from being a non-profit entity, and I haven't heard any SO or AC make that suggestion either.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Sincerely CARRIE Devorah 562 688 2883
DISCLAIMER : With the continuing crossing and interfacing of platforms both on & off line both with & without our knowledge nor approval to note nothing sent over the Internet anymore is ever private nor should be presumed to be so. If it is that much of a secret, say nothing. If you must? Take a lesson from our military- hand write the note, chew then swallow
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Sincerely CARRIE Devorah 562 688 2883 DISCLAIMER : With the continuing crossing and interfacing of platforms both on & off line both with & without our knowledge nor approval to note nothing sent over the Internet anymore is ever private nor should be presumed to be so. If it is that much of a secret, say nothing. If you must? Take a lesson from our military- hand write the note, chew then swallow
Dear All, Thank you very much for the indepth review of the possible options . However, there is one problem and that is the way in which the issue is pursued. We need to strat to draft something and amend that as per received comments .The way we progress is that we are opening too many Windows and would be difficult how to converge. Some people are very pessimistic about members and their authorities. I do not see any problem as such since members act according to their rights and responsibilities. Another issue is that we have concentrated on California Laws only. Is that the only possible law Under which the ICANN could function ? KAVOUSS 2015-01-08 20:09 GMT+01:00 Carrie Devorah <carriedev@gmail.com>:
El You did ok emailing me directly after all, ICANN is about transparency. Correct? If you have something to say, I do want to hear about it. If you have questions you want to ask or references for precedence, let me know. The coordinated work here is about building the better mousetrap together. IF you chose not to be open, then, well, you fly in the face of what ICANN purports to be... Carrie Devorah www.centerforcopyrightintegrity.com
On Thu, Jan 8, 2015 at 1:59 PM, Dr Eberhard WLisse <epilisse@gmail.com> wrote:
Dear co-chairs, I apologize having emailed that person directly. Most likely because of the iPhone not displaying the addresses like Thinderbird wjich I am used to.
I will try to avoid this in the futre.
el
-- Sent from Dr Lisse's iPhone 5s
On Jan 8, 2015, at 20:53, Carrie Devorah <carriedev@gmail.com> wrote:
Dr. Lisse There are also local laws that are too often overlooked but no less laws that must be complied with, as there are Regulatory oversite that ends up in Slap in the Wrist results most often and when necessary turned over to the DOJ. We all have different approaches and POV's on this conversation. TBR, to be respected. Carrie Devorah www.centerforcopyrightintegrity.com
On Thu, Jan 8, 2015 at 1:03 PM, Dr Eberhard W Lisse <epilisse@gmail.com> wrote:
Though the co-chairs, AGAIN,
can we PLEASE dispense with trying to explain the basics to someone who most definitively has not taken the opportunity to do her homework in this regard?
This is a reasonably high volume Mailing List and it is difficult enough to try and keep up without these distractions.
el
-- Sent from Dr Lisse's iPhone 5s
On Jan 8, 2015, at 16:07, Greg Shatan <gregshatanipc@gmail.com> wrote:
Carrie:
That's exactly how it works, and the only way it works. Remember that the US is a federal system with two pertinent tiers of laws -- state and federal.
Organizations are created under state law, not under federal law (with extremely rare exceptions). Federal tax exemption is handled (by definition) at the federal level. A not-for-profit organization must first incorporate under state law, and then proceed to seek a federal tax exemption as a non-profit under 501(c)(3) (or other relevant subsections for particular types of organizations).
In other words, an organization cannot apply for federal tax exemption under 501(c)(3) *until* it has incorporated as a non-profit under the law of a state of the U.S. [While there are organizations other than corporations that may qualify for federal tax exemptions, such as trusts and "community chests," they are not relevant to this discussion.]
Hope this helps.
Greg Shatan
On Thu, Jan 8, 2015 at 8:02 AM, Carrie <carriedev@gmail.com> wrote:
Thank you Bruce. But according to Ed 's California corporation registration number they have registered already as a ca corp. please explain how this occurs being a corp on CA at the same time registered as a non profit w the IRS ?
Sent from my iPhone
On Jan 8, 2015, at 7:57 AM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Edward,
> I'm unaware of any current plan to shift ICANN status from non-profit to profit, although some have called for such a change (see, for example: http://thehill.com/blogs/congress-blog/technology/227726-icanns-number-is-up ).
That is right - there is no plan from either the Board or staff to change from being a non-profit entity, and I haven't heard any SO or AC make that suggestion either.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Sincerely CARRIE Devorah 562 688 2883
DISCLAIMER : With the continuing crossing and interfacing of platforms both on & off line both with & without our knowledge nor approval to note nothing sent over the Internet anymore is ever private nor should be presumed to be so. If it is that much of a secret, say nothing. If you must? Take a lesson from our military- hand write the note, chew then swallow
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Sincerely CARRIE Devorah 562 688 2883
DISCLAIMER : With the continuing crossing and interfacing of platforms both on & off line both with & without our knowledge nor approval to note nothing sent over the Internet anymore is ever private nor should be presumed to be so. If it is that much of a secret, say nothing. If you must? Take a lesson from our military- hand write the note, chew then swallow
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On Thu, Jan 8, 2015 at 7:03 PM, Dr Eberhard W Lisse <epilisse@gmail.com> wrote:
Though the co-chairs, AGAIN,
can we PLEASE dispense with trying to explain the basics to someone who most definitively has not taken the opportunity to do her homework in this regard?
One can also say the devil is in the basis; so it may be important to clarify the basis whenever someone asks for clarification. Its not entirely appropriate to categorise people in a manner as you've done above.
This is a reasonably high volume Mailing List and it is difficult enough to try and keep up without these distractions.
There is a filtering rule in every email client, also there is the delete feature Cheers!
el
-- Sent from Dr Lisse's iPhone 5s
On Jan 8, 2015, at 16:07, Greg Shatan <gregshatanipc@gmail.com> wrote:
Carrie:
That's exactly how it works, and the only way it works. Remember that the US is a federal system with two pertinent tiers of laws -- state and federal.
Organizations are created under state law, not under federal law (with extremely rare exceptions). Federal tax exemption is handled (by definition) at the federal level. A not-for-profit organization must first incorporate under state law, and then proceed to seek a federal tax exemption as a non-profit under 501(c)(3) (or other relevant subsections for particular types of organizations).
In other words, an organization cannot apply for federal tax exemption under 501(c)(3) *until* it has incorporated as a non-profit under the law of a state of the U.S. [While there are organizations other than corporations that may qualify for federal tax exemptions, such as trusts and "community chests," they are not relevant to this discussion.]
Hope this helps.
Greg Shatan
On Thu, Jan 8, 2015 at 8:02 AM, Carrie <carriedev@gmail.com> wrote:
Thank you Bruce. But according to Ed 's California corporation registration number they have registered already as a ca corp. please explain how this occurs being a corp on CA at the same time registered as a non profit w the IRS ?
Sent from my iPhone
On Jan 8, 2015, at 7:57 AM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Edward,
I'm unaware of any current plan to shift ICANN status from non-profit to profit, although some have called for such a change (see, for example: http://thehill.com/blogs/congress-blog/technology/227726-icanns-number-is-up ).
That is right - there is no plan from either the Board or staff to change from being a non-profit entity, and I haven't heard any SO or AC make that suggestion either.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* The key to understanding is humility - my view !
Dear Co-Chairs, can you please instruct this person to refrain from addressing me directly. Even if his emails hand content. greetings, el Sent from Dr Lisse's iPad mini
On Jan 12, 2015, at 15:36, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On Thu, Jan 8, 2015 at 7:03 PM, Dr Eberhard W Lisse <epilisse@gmail.com> wrote: Though the co-chairs, AGAIN,
can we PLEASE dispense with trying to explain the basics to someone who most definitively has not taken the opportunity to do her homework in this regard?
One can also say the devil is in the basis; so it may be important to clarify the basis whenever someone asks for clarification. Its not entirely appropriate to categorise people in a manner as you've done above.
This is a reasonably high volume Mailing List and it is difficult enough to try and keep up without these distractions.
There is a filtering rule in every email client, also there is the delete feature
Cheers!
el
-- Sent from Dr Lisse's iPhone 5s
On Jan 8, 2015, at 16:07, Greg Shatan <gregshatanipc@gmail.com> wrote:
Carrie:
That's exactly how it works, and the only way it works. Remember that the US is a federal system with two pertinent tiers of laws -- state and federal.
Organizations are created under state law, not under federal law (with extremely rare exceptions). Federal tax exemption is handled (by definition) at the federal level. A not-for-profit organization must first incorporate under state law, and then proceed to seek a federal tax exemption as a non-profit under 501(c)(3) (or other relevant subsections for particular types of organizations).
In other words, an organization cannot apply for federal tax exemption under 501(c)(3) until it has incorporated as a non-profit under the law of a state of the U.S. [While there are organizations other than corporations that may qualify for federal tax exemptions, such as trusts and "community chests," they are not relevant to this discussion.]
Hope this helps.
Greg Shatan
On Thu, Jan 8, 2015 at 8:02 AM, Carrie <carriedev@gmail.com> wrote: Thank you Bruce. But according to Ed 's California corporation registration number they have registered already as a ca corp. please explain how this occurs being a corp on CA at the same time registered as a non profit w the IRS ?
Sent from my iPhone
On Jan 8, 2015, at 7:57 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Edward,
> I'm unaware of any current plan to shift ICANN status from non-profit to profit, although some have called for such a change (see, for example: http://thehill.com/blogs/congress-blog/technology/227726-icanns-number-is-up ).
That is right - there is no plan from either the Board or staff to change from being a non-profit entity, and I haven't heard any SO or AC make that suggestion either.
Regards, Bruce Tonkin
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-- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng Mobile: +2348035233535 alt email: seun.ojedeji@fuoye.edu.ng
The key to understanding is humility - my view !
This is great information Ed, many thanks for it. I have only one comment to add: You say “it is too early to sort out exactly what powers we want to give to Members.” May I offer the respectful view that the time for that discussion is now…. If we think that Membership control is critical (an assumption not yet adopted by this group, but indulge me) and if such a change would require amendment of the Bylaws and/or articles of incorporation (clearly so) and if we accept Bruce’s input that a Bylaw change would require on the order of 60-90 days with the Board (as he has previously said) and finally, if we accept that the Board needs to convey its proposal to ICANN no later than July 31, then, working backwards, a Bylaw amendment proposal that we think is necessary for accountability must go to the board by April 30 …. More or less. Time is fleeting …. Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key From: Edward Morris [mailto:emorris@milk.toast.net] Sent: Wednesday, January 7, 2015 11:06 PM To: Robin Gross; Accountability Cross Community Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure A few comments on some quite interesting posts: 1. I think it is important to acknowledge at the outset that the only way we will be able to create and implement any type of membership based organisational structure is if everyone 1) checks their egos at the door, 2) actually listen to the concerns and needs of the other groups and 3) understands there will have to be a lot of compromises to get to a product we can all live with, if not completely agree with in every detail. I'm as big a supporter of creating a membership based ICANN as you're likely going to find in the noncommercial community yet Robin is right: I could never sell an organisational scheme to my colleagues that is based upon what we consider to be the unequal and biased representation scheme embedded in the constituency model. Yet I realise the commercial community, registrars - on down the line - all groups have their own needs, wants and desires. We're going to have to be creative, perhaps, for example, by creating different membership classes, while recognising that 1) we don't have the time to re-fight past battles and 2) every group in ICANN will have to buy into the final product or we will not succeed. There are a lot of people on the outside who believe we are destined to fail: let's not prove them right. 2. I agree with Greg: it's too early to sort exactly what powers we want to give to Members. That said, if we are to become a California Public Benefits Corporation with members, there are two potent statutory provisions of the California Corporations Code that are designed to make the Board accountable to its Members: a. California Corporations Code §5222 allows Members to remove Board members without cause provided certain voting thresholds are met. The general rule is that a majority vote would suffice for the removal, but the statute has a number of provisions that makes things a bit more complex. The threshold is generally not something we would decide, it's there in the statute. b. California Corporations Code §5710 allows for Members Derivative Actions. A derivative action is perhaps the most potent accountability tool available for Members / shareholders in any corporation: the right to sue on behalf of the corporation those harming the corporation. Well, it's a bit more complicated than that but that is the general idea. I'm a huge supporter of derivative actions as a means of ensuring the ultimate accountability of the Board. I realise, however, not everyone shares my enthusiasm and this may be a lightening rod for those opposing the membership scheme. 3. I just wanted to briefly note that California Corporations Code §5152 does provide for something called "delegates" which have "some or all of the authority of members". This could be considered if we decide to go to a membership type based organization but don't want to give all of the statutory powers provided under California law to our members. Thanks to everyone for contributing to such a lively and important conversation. Best, Ed Morris -----Original Message----- From: Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org> > To: Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > Date: Wed, 7 Jan 2015 11:44:28 -0800 Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure One of the concerns I have with this proposed model is how non-commercial users as a whole would be treated. Non-commercial users had to fight for many years simply to achieve parity in representation with commercial users within the GNSO. My concern is that this type of model simply re-opens the door for non-commercial users to go back to a model of inequality with commercial users (if representation rights are given to "constituencies" rather than "stakeholder groups"). NCSG has members who do not belong to any constituency or who belong to more than one. So the devil is in the details of how these models are created. The same old battles fought among stakeholders for greater proportional representation will carry over to the development of the "member" model. It isn't a simple solution when you get into the specific details of precisely how representation is apportioned. Details like whether it is to "constituencies" or to "stakeholder groups" have a lot of impact and will be hard fought as a result. So this 1 example illustrates the concern I have about how this model could impact the stakeholder group I represent and perhaps not be quite as simple as it seems at first glance. I'm sure other stakeholders might have similar concerns. Who is a "member" and how much proportional representation is afforded will present the same old battles, just in a new suit. Thanks, Robin On Jan 7, 2015, at 11:08 AM, Steve DelBianco wrote: Some clarifications about the Member concept, as described on the Work Area 2 inventory <https://community.icann.org/pages/viewpage.action?pageId=51416471> : Members are not outside of ICANN — they are designated by their respective AC/SO/Constituencies. So not sure there is much risk that a majority of these Members could be captured. Members would be given only these enumerated powers: Appoint members of Affirmation Review teams Review [and perhaps reverse] any board decision. Non-approval would send decision back to bottom-up policy development process. Approve proposed changes to ICANN Bylaws or Articles of Incorporation. Approve annual proposed budget Members could not re-write contracts or budgets or bylaws. If a bottom-up consensus process generated a bylaws change that was rejected by the board, the Members could reverse that decision, however. Steve DelBianco From: Greg Shatan < gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > Date: Wednesday, January 7, 2015 at 12:45 PM Cc: " accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> " < accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure I would not rush to the conclusion that a membership group is per se prone to capture. A poorly designed membership group, yes. The devil is in the details -- who are the members? if they are individuals, who do they represent? how do they act? when can they act, and how quickly? how many of them are there? what are their powers? who is excluded? are there classes of members? is voting weighted? Also, I'm not sure if (or why) the community accountability mechanism needs to be "outside" (depending on what that means). Members in a membership corporation are not really outside, unless I am not getting the sense of the word as used here. As for the dispute resolution mechanism, that will depend on the other two factors (among other things). If the members have the "last word" on something, and the board fails to act, binding arbitration (or litigation) would be a reasonable step (although some escalation mechanisms might be appropriate before getting there). Greg Shatan On Wed, Jan 7, 2015 at 10:37 AM, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > wrote: I think that the potential for capture of the outside member group is the reason that the accountability system probably needs to be linked to an independent judicial/arbitral function to resolve disputes. [Of course that institution, too, could be captured … but at some point we have to end the “who guards the guardians?” question]. And that, in turn emphasizes why it is necessary as part of the transition to define the Board’s/ICANN’s scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing. Hence the bottom line: We need a) an outside accountability mechanism representing the community; b) an independent dispute resolution mechanism; and c) clearly articulated standards against which to measure and resolve any dispute Paul From: Mathieu Weill [mailto: mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr> ] Sent: Wednesday, January 7, 2015 9:04 AM To: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure Dear Colleagues, Many thanks for this very valuable discussion. While it confirms that our initial orientation towards the ability to, somehow, oversee the Board, is relevant and worth exploring, the latest comments (regarding risk of capture) highlight that we should also anticipate on the accountability of the overseeing mechanism itself. If "the community" (through a mechanism yet to be determined) oversees Board and staff, can we ensure all stakeholders, especially those who are less familiar with Icann, that "the community", in turn, is accountable (ie has the relevant independent checks and balances, review and redress mechanisms) ? A significant challenge, but I'm confident our group can address that. This aspect might, however, need to be addressed in our definition of WS1, if there is agreement that is a necessary element for the transition to take place. Best, Mathieu Le 07/01/2015 09:07, Dr Eberhard W Lisse a écrit : I am not interested much in the details, interesting as they are :-)-O, but would like to pick up on Bruce's last paragraph, because in my view, the "membership supervision" is not going to help much as it is prone to capture, quite the opposite of the accountability we want. greetings, el Sent from Dr Lisse's iPad mini On Jan 7, 2015, at 02:40, Greg Shatan < gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > wrote: What Bruce has set forth is close to correct. However, I can't help but do a little legal nit-picking. "Public benefit corporation" is a term used in California (among other places) as a term for non-profit corporations generally. (In New York State, we use the term "not-for-profit corporation" to mean basically the same thing as a California "public benefit corporation" (and we use the term "public benefit corporation" to mean something quite different -- a quasi-public corporation like the Metropolitan Transport Authority).) California public benefit corporations are not really "chartered by the state" (though New York ones like the MTA are chartered by the state). [Wikipedia isn't always a great source....] In California, public benefit corporations may be created with or without members, or may convert from member to non-member and vice versa. However, a public benefit corporation with members is still a public benefit corporation. (California also has "mutual benefit corporations" which are non-profit but never charitable (and are also not tax-exempt). Mutual benefit corporations are run for the benefit of their members, and not for the benefit of the general public.) The term "member" can also be used to mean people (or organizations) who aren't really members. For instance, when you become a "member" of a museum, you are not becoming a member of the corporation (i.e., what some in ICANN-land have termed a "statutory member"). These non-statutory "memberships" are more for marketing purposes and have no governance role. "Statutory members" on the other hand, have a role in governance (which can vary markedly depending on the by-laws of the particular corporation. Hope this helps. Best regards, Greg Shatan (Speaking for myself, and not giving legal advice as I am not a member of the California Bar) On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au> > wrote: Hello Phil,
I would envisage the Board having to be compliance with all Corporate Governance Codes specific to Companies Law in the country of incorporation, subject to a community consensus override. But what is its corporate status - not for profit or for profit - as different codes would apply ?
The legal status of ICANN is as specified in its articles of incorporation: https://www.icann.org/resources/pages/articles-2012-02-25-en "This Corporation is a non-profit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Non-profit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code." Also from: http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation "A public-benefit non-profit corporation is a type of non-profit corporation chartered by a state government, and organized primarily or exclusively for social, educational, recreational or charitable purposes by like-minded citizens. Public-benefit nonprofit corporations are distinct in the law from mutual-benefit nonprofit corporations in that they are organized for the general public benefit, rather than for the interest of its members." I believe it was deliberately set up as public benefit rather than a member organization - to avoid the situation where the members become limited to say gTLD registries and registrars and hence it ends up operating primarily for the benefit of the domain name registration industry. Any move away from a public-benefit corporation to a membership corporation - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members as interest in "ICANN" drops over time. I.e. a failure scenario of membership organisation is what happens to the membership base over time and how it can be protected from capture. I have seen some membership based ccTLDs get into problems when their membership becomes dominated by domain name investors for example. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org> Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> <https://mm.icann.org/mailman/listinfo/accountability-cross-community> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 <tel:%2B33%201%2039%2030%2083%2006> mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr> Twitter : @mathieuweill ***************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
On 1/7/15 11:08 AM, Steve DelBianco wrote:
Some clarifications about the Member concept, as described on the Work Area 2 inventory <https://community.icann.org/pages/viewpage.action?pageId=51416471>:
Steve, Thank you for reference to the WS2 collection -- as I've not followed WS2 I've no idea which of the items referencing "members" is final and ready for reference to the entire WG for consideration. In any case ...
Members are not outside of ICANN — they are designated by their respective AC/SO/Constituencies. So not sure there is much risk that a majority of these Members could be captured.
I'm glad you recognize that, assuming several possible models for "membership", some will, from time to time, be captured by the parties with substantial material interest in the corporation's momentary and long-term policies and governance, though perhaps not a majority. Personally I would not fixate on "majority", as policy decision making has been, and may continue to be, by groups of interests, for which much less than "majority capture" may be sufficient to determine outcomes. In what follows (below) shouldn't these "member" references be "proposed members", with a reference to a specific membership proposal somewhere in the WS2 work product? I'd like to know what "member" means, and I expect that what is needed for each notion of "member" is the proposed Bylaws language for that proposed notion of "member" and the rights and duties associated. Best, Eric Brunner-Williams Eugene, Oregon
Members would be given only these enumerated powers:
Appoint members of Affirmation Review teams Review [and perhaps reverse] any board decision. Non-approval would send decision back to bottom-up policy development process. Approve proposed changes to ICANN Bylaws or Articles of Incorporation. Approve annual proposed budget
Members could _not_ re-write contracts or budgets or bylaws. If a bottom-up consensus process generated a bylaws change that was rejected by the board, the Members could reverse that decision, however.
Steve DelBianco
From: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> Date: Wednesday, January 7, 2015 at 12:45 PM Cc: "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure
I would not rush to the conclusion that a membership group is per se prone to capture. A poorly designed membership group, yes. The devil is in the details -- who are the members? if they are individuals, who do they represent? how do they act? when can they act, and how quickly? how many of them are there? what are their powers? who is excluded? are there classes of members? is voting weighted?
Also, I'm not sure if (or why) the community accountability mechanism needs to be "outside" (depending on what that means). Members in a membership corporation are not really outside, unless I am not getting the sense of the word as used here.
As for the dispute resolution mechanism, that will depend on the other two factors (among other things). If the members have the "last word" on something, and the board fails to act, binding arbitration (or litigation) would be a reasonable step (although some escalation mechanisms might be appropriate before getting there).
Greg Shatan
On Wed, Jan 7, 2015 at 10:37 AM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
I think that the potential for capture of the outside member group is the reason that the accountability system probably needs to be linked to an independent judicial/arbitral function to resolve disputes. [Of course that institution, too, could be captured … but at some point we have to end the “who guards the guardians?” question]. And that, in turn emphasizes why it is necessary as part of the transition to define the Board’s/ICANN’s scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing.
Hence the bottom line: We need a) an outside accountability mechanism representing the community; b) an independent dispute resolution mechanism; and c) clearly articulated standards against which to measure and resolve any dispute
Paul
*From:*Mathieu Weill [mailto:mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>] *Sent:* Wednesday, January 7, 2015 9:04 AM *To:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure
Dear Colleagues,
Many thanks for this very valuable discussion.
While it confirms that our initial orientation towards the ability to, somehow, oversee the Board, is relevant and worth exploring, the latest comments (regarding risk of capture) highlight that we should also anticipate on the accountability of the overseeing mechanism itself.
If "the community" (through a mechanism yet to be determined) oversees Board and staff, can we ensure all stakeholders, especially those who are less familiar with Icann, that "the community", in turn, is accountable (ie has the relevant independent checks and balances, review and redress mechanisms) ? A significant challenge, but I'm confident our group can address that.
This aspect might, however, need to be addressed in our definition of WS1, if there is agreement that is a necessary element for the transition to take place.
Best, Mathieu
Le 07/01/2015 09:07, Dr Eberhard W Lisse a écrit :
I am not interested much in the details, interesting as they are :-)-O, but would like to pick up on Bruce's last paragraph, because in my view, the "membership supervision" is not going to help much as it is prone to capture, quite the opposite of the accountability we want.
greetings, el
Sent from Dr Lisse's iPad mini
On Jan 7, 2015, at 02:40, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
What Bruce has set forth is close to correct. However, I can't help but do a little legal nit-picking.
"Public benefit corporation" is a term used in California (among other places) as a term for non-profit corporations generally. (In New York State, we use the term "not-for-profit corporation" to mean basically the same thing as a California "public benefit corporation" (and we use the term "public benefit corporation" to mean something quite different -- a quasi-public corporation like the Metropolitan Transport Authority).) California public benefit corporations are not really "chartered by the state" (though New York ones like the MTA are chartered by the state). [Wikipedia isn't always a great source....]
In California, public benefit corporations may be created with or without members, or may convert from member to non-member and vice versa. However, a public benefit corporation with members is still a public benefit corporation.
(California also has "mutual benefit corporations" which are non-profit but never charitable (and are also not tax-exempt). Mutual benefit corporations are run for the benefit of their members, and not for the benefit of the general public.)
The term "member" can also be used to mean people (or organizations) who aren't really members. For instance, when you become a "member" of a museum, you are not becoming a member of the corporation (i.e., what some in ICANN-land have termed a "statutory member"). These non-statutory "memberships" are more for marketing purposes and have no governance role. "Statutory members" on the other hand, have a role in governance (which can vary markedly depending on the by-laws of the particular corporation.
Hope this helps.
Best regards,
Greg Shatan
(Speaking for myself, and not giving legal advice as I am not a member of the California Bar)
On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au>> wrote:
Hello Phil,
>> I would envisage the Board having to be compliance with all Corporate Governance Codes specific to Companies Law in the country of incorporation, subject to a community consensus override. But what is its corporate status - not for profit or for profit - as different codes would apply ?
The legal status of ICANN is as specified in its articles of incorporation:
https://www.icann.org/resources/pages/articles-2012-02-25-en
"This Corporation is a non-profit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Non-profit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code."
Also from:
http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation
"A public-benefit non-profit corporation is a type of non-profit corporation chartered by a state government, and organized primarily or exclusively for social, educational, recreational or charitable purposes by like-minded citizens. Public-benefit nonprofit corporations are distinct in the law from mutual-benefit nonprofit corporations in that they are organized for the general public benefit, rather than for the interest of its members."
I believe it was deliberately set up as public benefit rather than a member organization - to avoid the situation where the members become limited to say gTLD registries and registrars and hence it ends up operating primarily for the benefit of the domain name registration industry.
Any move away from a public-benefit corporation to a membership corporation - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members as interest in "ICANN" drops over time. I.e. a failure scenario of membership organisation is what happens to the membership base over time and how it can be protected from capture. I have seen some membership based ccTLDs get into problems when their membership becomes dominated by domain name investors for example.
Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Tél:+33 1 39 30 83 06 <tel:%2B33%201%2039%2030%2083%2006>
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Steve: Not all Board decisions are related to policy or within the scope of policy development processes or even the sole responsibility of an SO (which is currently the only place that policy development occurs). Use of the word "back" implies that is where all decisions start - again not the case. I also would strongly argue against the inclusion of "Constituencies". With an upper case C, they are the sole construct of the GNSO, and with a lower case C the term is close to meaningless. Also, it is a mechanism by which a SG could create Constituencies and de facto increase their representation. I would argue for a methodology not unlike that used in the Stewardship CWG and this CCWG, allocating a specific number of seats to each AC/SO and allow then to sub-allocate as appropriate to their internal structure. Alan At 07/01/2015 02:08 PM, Steve DelBianco wrote:
Some clarifications about the Member concept, as described on the <https://community.icann.org/pages/viewpage.action?pageId=51416471>Work Area 2 inventory: Members are not outside of ICANN they are designated by their respective AAC/SO/Constituencies. So not sure there is much risk that a majority of these Members could be captured. Members would be given only these enumerated powers: Appoint members of Affirmation Review teams Review [and perhaps reverse] any board decision. Non-approval would send decision back to bottom-up policy development process. Approve proposed changes to ICANN Bylaws or Articles of Incorporation. Approve annual proposed budget
Members could not re-write contracts or budgets or bylaws. If a bottom-up consensus process generated a bylaws change that was rejected by the board, the Members could reverse that decision, however.
Steve DelBianco
From: Greg Shatan <<mailto:gregshatanipc@gmail.com>gregshatanipc@gmail.com> Date: Wednesday, January 7, 2015 at 12:45 PM Cc: "<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org" <<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure
I would not rush to the conclusion that a membership group is per se prone to capture. A poorly designed membership group, yes. The devil is in the details -- who are the members? if they are individuals, who do they represent? how do they act? when can they act, and how quickly? how many of them are there? what are their powers? who is excluded? are there classes of members? is voting weighted?
Also, I'm not sure if (or why) the community accountability mechanism needs to be "outside" (depending on what that means). Members in a membership corporation are not really outside, unless I am not getting the sense of the word as used here.
As for the dispute resolution mechanism, that will depend on the other two factors (among other things). If the members have the "last word" on something, and the board fails to act, binding arbitration (or litigation) would be a reasonable step (although some escalation mechanisms might be appropriate before getting there).
Greg Shatan
On Wed, Jan 7, 2015 at 10:37 AM, Paul Rosenzweig <<mailto:paul.rosenzweig@redbranchconsulting.com>paul.rosenzweig@redbranchconsulting.com> wrote: I think that the potential for capture of the outside member group is the reason that the accountability system probably needs to be linked to an independent judicial/arbitral function to resolve disputes. [Of course that institution, too, could be captured but att some point we have to end the âwho guards the guardians?â question]. And that, in turn emphasizes why it is necessary as part of the transition to define the Boardâs/ICANNâs scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing.
Hence the bottom line: We need a) an outside accountability mechanism representing the community; b) an independent dispute resolution mechanism; and c) clearly articulated standards against which to measure and resolve any dispute Paul
From: Mathieu Weill [mailto:mathieu.weill@afnic.fr] Sent: Wednesday, January 7, 2015 9:04 AM To: <mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org
Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure
Dear Colleagues, Many thanks for this very valuable discussion. While it confirms that our initial orientation towards the ability to, somehow, oversee the Board, is relevant and worth exploring, the latest comments (regarding risk of capture) highlight that we should also anticipate on the accountability of the overseeing mechanism itself. If "the community" (through a mechanism yet to be determined) oversees Board and staff, can we ensure all stakeholders, especially those who are less familiar with Icann, that "the community", in turn, is accountable (ie has the relevant independent checks and balances, review and redress mechanisms) ? A significant challenge, but I'm confident our group can address that. This aspect might, however, need to be addressed in our definition of WS1, if there is agreement that is a necessary element for the transition to take place. Best, Mathieu
Le 07/01/2015 09:07, Dr Eberhard W Lisse a écrit :
I am not interested much in the details, interesting as they are :-)-O, but would like to pick up on Bruce's last paragraph, because in my view, the "membership supervision" is not going to help much as it is prone to capture, quite the opposite of the accountability we want.
greetings, el
Sent from Dr Lisse's iPad mini
On Jan 7, 2015, at 02:40, Greg Shatan <<mailto:gregshatanipc@gmail.com>gregshatanipc@gmail.com> wrote:
What Bruce has set forth is close to correct. However, I can't help but do a little legal nit-picking.
"Public benefit corporation" is a term used in California (among other places) as a term for non-profit corporations generally. (In New York State, we use the term "not-for-profit corporation" to mean basically the same thing as a California "public benefit corporation" (and we use the term "public benefit corporation" to mean something quite different -- a quasi-public corporation like the Metropolitan Transport Authority).) California public benefit corporations are not really "chartered by the state" (though New York ones like the MTA are chartered by the state). [Wikipedia isn't always a great source....]
In California, public benefit corporations may be created with or without members, or may convert from member to non-member and vice versa. However, a public benefit corporation with members is still a public benefit corporation. (California also has "mutual benefit corporations" which are non-profit but never charitable (and are also not tax-exempt). Mutual benefit corporations are run for the benefit of their members, and not for the benefit of the general public.)
The term "member" can also be used to mean people (or organizations) who aren't really members. For instance, when you become a "member" of a museum, you are not becoming a member of the corporation (i.e., what some in ICANN-land have termed a "statutory member"). These non-statutory "memberships" are more for marketing purposes and have no governance role. "Statutory members" on the other hand, have a role in governance (which can vary markedly depending on the by-laws of the particular corporation.
Hope this helps.
Best regards,
Greg Shatan (Speaking for myself, and not giving legal advice as I am not a member of the California Bar)
On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin <<mailto:Bruce.Tonkin@melbourneit.com.au>Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Phil,
I would envisage the Board having to be compliance with all Corporate Governance Codes specific to Companies Law in the country of incorporation, subject to a community consensus override. But what is its corporate status - not for profit or for profit - as different codes would apply ? The legal status of ICANN is as specified in its articles of incorporation:
<https://www.icann.org/resources/pages/articles-2012-02-25-en>https://www.icann.org/resources/pages/articles-2012-02-25-en "This Corporation is a non-profit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Non-profit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code." Also from:
<http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation>http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation "A public-benefit non-profit corporation is a type of non-profit corporation chartered by a state government, and organized primarily or exclusively for social, educational, recreational or charitable purposes by like-minded citizens. Public-benefit nonprofit corporations are distinct in the law from mutual-benefit nonprofit corporations in that they are organized for the general public benefit, rather than for the interest of its members." I believe it was deliberately set up as public benefit rather than a member organization - to avoid the situation where the members become limited to say gTLD registries and registrars and hence it ends up operating primarily for the benefit of the domain name registration industry. Any move away from a public-benefit corporation to a membership corporation - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members as interest in "ICANN" drops over time. I.e. a failure scenario of membership organisation is what happens to the membership base over time and how it can be protected from capture. I have seen some membership based ccTLDs get into problems when their membership becomes dominated by domain name investors for example. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community@icann.org
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It seems a little early in the process to definitively state what the powers of the Members will be and won't be. Even the document you link to has a broader list of Members' potential powers: · Appoint members of *Affirmation* review teams · Review any board decision. Non-approval would send decision back to bottom-up policy development process. · [Alt:] Refer any board decision to an *independent* review panel. The CWG believes this should be binding for IANA functions. · Approve changes to ICANN bylaws or Articles, with 2/3 majority · Approve annual proposed ICANN budget [vote threshold?] · Recall one or all ICANN Board members [vote threshold?] This is not to say it's completely "open season" on empowering the Membership; but we shouldn't cut off discussion at this very early stage. Greg On Wed, Jan 7, 2015 at 2:08 PM, Steve DelBianco <sdelbianco@netchoice.org> wrote:
Some clarifications about the Member concept, as described on the Work Area 2 inventory <https://community.icann.org/pages/viewpage.action?pageId=51416471>:
Members are not outside of ICANN — they are designated by their respective AC/SO/Constituencies. So not sure there is much risk that a majority of these Members could be captured.
Members would be given only these enumerated powers:
Appoint members of Affirmation Review teams Review [and perhaps reverse] any board decision. Non-approval would send decision back to bottom-up policy development process. Approve proposed changes to ICANN Bylaws or Articles of Incorporation. Approve annual proposed budget
Members could *not* re-write contracts or budgets or bylaws. If a bottom-up consensus process generated a bylaws change that was rejected by the board, the Members could reverse that decision, however.
Steve DelBianco
From: Greg Shatan <gregshatanipc@gmail.com> Date: Wednesday, January 7, 2015 at 12:45 PM Cc: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure
I would not rush to the conclusion that a membership group is per se prone to capture. A poorly designed membership group, yes. The devil is in the details -- who are the members? if they are individuals, who do they represent? how do they act? when can they act, and how quickly? how many of them are there? what are their powers? who is excluded? are there classes of members? is voting weighted?
Also, I'm not sure if (or why) the community accountability mechanism needs to be "outside" (depending on what that means). Members in a membership corporation are not really outside, unless I am not getting the sense of the word as used here.
As for the dispute resolution mechanism, that will depend on the other two factors (among other things). If the members have the "last word" on something, and the board fails to act, binding arbitration (or litigation) would be a reasonable step (although some escalation mechanisms might be appropriate before getting there).
Greg Shatan
On Wed, Jan 7, 2015 at 10:37 AM, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
I think that the potential for capture of the outside member group is the reason that the accountability system probably needs to be linked to an independent judicial/arbitral function to resolve disputes. [Of course that institution, too, could be captured … but at some point we have to end the “who guards the guardians?” question]. And that, in turn emphasizes why it is necessary as part of the transition to define the Board’s/ICANN’s scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing.
Hence the bottom line: We need a) an outside accountability mechanism representing the community; b) an independent dispute resolution mechanism; and c) clearly articulated standards against which to measure and resolve any dispute
Paul
*From:* Mathieu Weill [mailto:mathieu.weill@afnic.fr] *Sent:* Wednesday, January 7, 2015 9:04 AM *To:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure
Dear Colleagues,
Many thanks for this very valuable discussion.
While it confirms that our initial orientation towards the ability to, somehow, oversee the Board, is relevant and worth exploring, the latest comments (regarding risk of capture) highlight that we should also anticipate on the accountability of the overseeing mechanism itself.
If "the community" (through a mechanism yet to be determined) oversees Board and staff, can we ensure all stakeholders, especially those who are less familiar with Icann, that "the community", in turn, is accountable (ie has the relevant independent checks and balances, review and redress mechanisms) ? A significant challenge, but I'm confident our group can address that.
This aspect might, however, need to be addressed in our definition of WS1, if there is agreement that is a necessary element for the transition to take place.
Best, Mathieu
Le 07/01/2015 09:07, Dr Eberhard W Lisse a écrit :
I am not interested much in the details, interesting as they are :-)-O, but would like to pick up on Bruce's last paragraph, because in my view, the "membership supervision" is not going to help much as it is prone to capture, quite the opposite of the accountability we want.
greetings, el
Sent from Dr Lisse's iPad mini
On Jan 7, 2015, at 02:40, Greg Shatan <gregshatanipc@gmail.com> wrote:
What Bruce has set forth is close to correct. However, I can't help but do a little legal nit-picking.
"Public benefit corporation" is a term used in California (among other places) as a term for non-profit corporations generally. (In New York State, we use the term "not-for-profit corporation" to mean basically the same thing as a California "public benefit corporation" (and we use the term "public benefit corporation" to mean something quite different -- a quasi-public corporation like the Metropolitan Transport Authority).) California public benefit corporations are not really "chartered by the state" (though New York ones like the MTA are chartered by the state). [Wikipedia isn't always a great source....]
In California, public benefit corporations may be created with or without members, or may convert from member to non-member and vice versa. However, a public benefit corporation with members is still a public benefit corporation.
(California also has "mutual benefit corporations" which are non-profit but never charitable (and are also not tax-exempt). Mutual benefit corporations are run for the benefit of their members, and not for the benefit of the general public.)
The term "member" can also be used to mean people (or organizations) who aren't really members. For instance, when you become a "member" of a museum, you are not becoming a member of the corporation (i.e., what some in ICANN-land have termed a "statutory member"). These non-statutory "memberships" are more for marketing purposes and have no governance role. "Statutory members" on the other hand, have a role in governance (which can vary markedly depending on the by-laws of the particular corporation.
Hope this helps.
Best regards,
Greg Shatan
(Speaking for myself, and not giving legal advice as I am not a member of the California Bar)
On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Phil,
I would envisage the Board having to be compliance with all Corporate Governance Codes specific to Companies Law in the country of incorporation, subject to a community consensus override. But what is its corporate status - not for profit or for profit - as different codes would apply ?
The legal status of ICANN is as specified in its articles of incorporation:
https://www.icann.org/resources/pages/articles-2012-02-25-en
"This Corporation is a non-profit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Non-profit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code."
Also from:
http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation
"A public-benefit non-profit corporation is a type of non-profit corporation chartered by a state government, and organized primarily or exclusively for social, educational, recreational or charitable purposes by like-minded citizens. Public-benefit nonprofit corporations are distinct in the law from mutual-benefit nonprofit corporations in that they are organized for the general public benefit, rather than for the interest of its members."
I believe it was deliberately set up as public benefit rather than a member organization - to avoid the situation where the members become limited to say gTLD registries and registrars and hence it ends up operating primarily for the benefit of the domain name registration industry.
Any move away from a public-benefit corporation to a membership corporation - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members as interest in "ICANN" drops over time. I.e. a failure scenario of membership organisation is what happens to the membership base over time and how it can be protected from capture. I have seen some membership based ccTLDs get into problems when their membership becomes dominated by domain name investors for example.
Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________
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Mathieu WEILL
AFNIC - directeur général
Tél: +33 1 39 30 83 06
mathieu.weill@afnic.fr
Twitter : @mathieuweill
*****************************
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On 1/7/15 12:36 PM, Greg Shatan wrote:
It seems a little early in the process to definitively state what the powers of the Members will be and won't be.
I'd like to see the eligibility (to become a member) or eligibilies (assuming classes of members) defined prior to, or at the same time as, defining the "powers of members". Eric Brunner-Williams Eugene, Oregon
Even the document you link to has a broader list of Members' potential powers:
·Appoint members of /Affirmation/ review teams
·Review any board decision. Non-approval would send decision back to bottom-up policy development process.
·[Alt:] Refer any board decision to an _independent_ review panel. The CWG believes this should be binding for IANA functions.
·Approve changes to ICANN bylaws or Articles, with 2/3 majority
·Approve annual proposed ICANN budget [vote threshold?]
·Recall one or all ICANN Board members [vote threshold?]
This is not to say it's completely "open season" on empowering the Membership; but we shouldn't cut off discussion at this very early stage.
Greg
On Wed, Jan 7, 2015 at 2:08 PM, Steve DelBianco <sdelbianco@netchoice.org <mailto:sdelbianco@netchoice.org>> wrote:
Some clarifications about the Member concept, as described on the Work Area 2 inventory <https://community.icann.org/pages/viewpage.action?pageId=51416471>:
Members are not outside of ICANN — they are designated by their respective AC/SO/Constituencies. So not sure there is much risk that a majority of these Members could be captured.
Members would be given only these enumerated powers:
Appoint members of Affirmation Review teams Review [and perhaps reverse] any board decision. Non-approval would send decision back to bottom-up policy development process. Approve proposed changes to ICANN Bylaws or Articles of Incorporation. Approve annual proposed budget
Members could _not_ re-write contracts or budgets or bylaws. If a bottom-up consensus process generated a bylaws change that was rejected by the board, the Members could reverse that decision, however.
Steve DelBianco
From: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> Date: Wednesday, January 7, 2015 at 12:45 PM Cc: "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure
I would not rush to the conclusion that a membership group is per se prone to capture. A poorly designed membership group, yes. The devil is in the details -- who are the members? if they are individuals, who do they represent? how do they act? when can they act, and how quickly? how many of them are there? what are their powers? who is excluded? are there classes of members? is voting weighted?
Also, I'm not sure if (or why) the community accountability mechanism needs to be "outside" (depending on what that means). Members in a membership corporation are not really outside, unless I am not getting the sense of the word as used here.
As for the dispute resolution mechanism, that will depend on the other two factors (among other things). If the members have the "last word" on something, and the board fails to act, binding arbitration (or litigation) would be a reasonable step (although some escalation mechanisms might be appropriate before getting there).
Greg Shatan
On Wed, Jan 7, 2015 at 10:37 AM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
I think that the potential for capture of the outside member group is the reason that the accountability system probably needs to be linked to an independent judicial/arbitral function to resolve disputes. [Of course that institution, too, could be captured … but at some point we have to end the “who guards the guardians?” question]. And that, in turn emphasizes why it is necessary as part of the transition to define the Board’s/ICANN’s scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing.
Hence the bottom line: We need a) an outside accountability mechanism representing the community; b) an independent dispute resolution mechanism; and c) clearly articulated standards against which to measure and resolve any dispute
Paul
*From:*Mathieu Weill [mailto:mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>]
*Sent:* Wednesday, January 7, 2015 9:04 AM *To:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure
Dear Colleagues,
Many thanks for this very valuable discussion.
While it confirms that our initial orientation towards the ability to, somehow, oversee the Board, is relevant and worth exploring, the latest comments (regarding risk of capture) highlight that we should also anticipate on the accountability of the overseeing mechanism itself.
If "the community" (through a mechanism yet to be determined) oversees Board and staff, can we ensure all stakeholders, especially those who are less familiar with Icann, that "the community", in turn, is accountable (ie has the relevant independent checks and balances, review and redress mechanisms) ? A significant challenge, but I'm confident our group can address that.
This aspect might, however, need to be addressed in our definition of WS1, if there is agreement that is a necessary element for the transition to take place.
Best, Mathieu
Le 07/01/2015 09:07, Dr Eberhard W Lisse a écrit :
I am not interested much in the details, interesting as they are :-)-O, but would like to pick up on Bruce's last paragraph, because in my view, the "membership supervision" is not going to help much as it is prone to capture, quite the opposite of the accountability we want.
greetings, el
Sent from Dr Lisse's iPad mini
On Jan 7, 2015, at 02:40, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
What Bruce has set forth is close to correct. However, I can't help but do a little legal nit-picking.
"Public benefit corporation" is a term used in California (among other places) as a term for non-profit corporations generally. (In New York State, we use the term "not-for-profit corporation" to mean basically the same thing as a California "public benefit corporation" (and we use the term "public benefit corporation" to mean something quite different -- a quasi-public corporation like the Metropolitan Transport Authority).) California public benefit corporations are not really "chartered by the state" (though New York ones like the MTA are chartered by the state). [Wikipedia isn't always a great source....]
In California, public benefit corporations may be created with or without members, or may convert from member to non-member and vice versa. However, a public benefit corporation with members is still a public benefit corporation.
(California also has "mutual benefit corporations" which are non-profit but never charitable (and are also not tax-exempt). Mutual benefit corporations are run for the benefit of their members, and not for the benefit of the general public.)
The term "member" can also be used to mean people (or organizations) who aren't really members. For instance, when you become a "member" of a museum, you are not becoming a member of the corporation (i.e., what some in ICANN-land have termed a "statutory member"). These non-statutory "memberships" are more for marketing purposes and have no governance role. "Statutory members" on the other hand, have a role in governance (which can vary markedly depending on the by-laws of the particular corporation.
Hope this helps.
Best regards,
Greg Shatan
(Speaking for myself, and not giving legal advice as I am not a member of the California Bar)
On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au>> wrote:
Hello Phil,
>> I would envisage the Board having to be compliance with all Corporate Governance Codes specific to Companies Law in the country of incorporation, subject to a community consensus override. But what is its corporate status - not for profit or for profit - as different codes would apply ?
The legal status of ICANN is as specified in its articles of incorporation:
https://www.icann.org/resources/pages/articles-2012-02-25-en
"This Corporation is a non-profit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Non-profit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code."
Also from:
http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation
"A public-benefit non-profit corporation is a type of non-profit corporation chartered by a state government, and organized primarily or exclusively for social, educational, recreational or charitable purposes by like-minded citizens. Public-benefit nonprofit corporations are distinct in the law from mutual-benefit nonprofit corporations in that they are organized for the general public benefit, rather than for the interest of its members."
I believe it was deliberately set up as public benefit rather than a member organization - to avoid the situation where the members become limited to say gTLD registries and registrars and hence it ends up operating primarily for the benefit of the domain name registration industry.
Any move away from a public-benefit corporation to a membership corporation - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members as interest in "ICANN" drops over time. I.e. a failure scenario of membership organisation is what happens to the membership base over time and how it can be protected from capture. I have seen some membership based ccTLDs get into problems when their membership becomes dominated by domain name investors for example.
Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Hi Bruce, I believe it was deliberately set up as public benefit rather than a member organization - to avoid the situation where the members become limited to say gTLD registries and registrars and hence it ends up operating primarily for the benefit of the domain name registration industry. Sorry, Bruce, this just isn't accurate. Under the California Corporations Code § 5310(a) a Public Benefits Corporation can chose to 1) have or 2) not have members. There are California Public Benefit Corporations with members and California Public Benefit Corporations without members. All are public benefit corporations with the same responsibility to serve the public. The differentiation in California law is not between public benefit corporations and member organisations, as may be inferred from your comment, but between PBC's and Nonprofit Mutual Benefit Corporations which, likewise, may or may not have members but are not imbued with the wider social purpose of a PBC. The Corporate Flexibility Act of 2011 created a new type of corporate vehicle in California, the California Benefit Corporation, which frankly is something that if we were operating in an ideal world we might want to consider. It is designed for for-profit corporations but requires Board members to consider multiple factors (commonly referred to as "people, profit and planet") in making decisions and not solely to consider the institutions provincial best interests in decision making processes. I'm not sure your view of history is completely accurate. Certainly in reading Karl Auerbach's archives ( http://www.cavebear.com/cbblog/ ), and others, one gets the impression that membership was rejected in an attempt to marginalise those who held differing perspectives from the individuals perceived to then be running things at ICANN (One L.A. law firm in particular). I'm not sure anyone would claim the Karl himself, or others supporting the membership option, at that time were interested in benefitting the domain name industry. Of course, I'm sure there are differing views amongst those involved in things at that time, and times have changed - just wanted to point out that things aren't as cut and dry as some may wish to present. Any move away from a public-benefit corporation to a membership corporation Again, there would be no such move. We would merely change ICANN from being a PBC without members to being a PBC with members, per California Corporations Code §5310-§5313. Absolutely no change of corporate type, merely an internal change within the statutes governing California PBC's. ICANN would still be a Public Benefit Corporation with the same public service commitment, merely one with Members. - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members I am in complete agreement with you here. We need to be creative and inclusive in creating membership vehicles. There needs to be a place for anyone and everyone in a new membership based ICANN. Lots of politics, lots of compromises, but it can be and should be done. We're supposed to be a BOTTOM UP multi-stakeholder organization. Properly designed, nothing is more bottom up than an inclusive organisational structure where the Board answers direct to Members who themselves consist of the diverse, broad and global internet community. The other option - some sort of appellate board regulating our current Board - is just more top down in a process whose legitimacy is based upon it being bottom up. Kind Regards, Ed Morris
Hello Edward,
Again, there would be no such move. We would merely change ICANN from being a PBC without members to being a PBC with members, per California Corporations Code §5310-§5313. Absolutely no change of corporate type, merely an internal change within the statutes governing California PBC's. ICANN would still be a Public Benefit Corporation with the same public service commitment, merely one with Members.
Ah - that is good to know. - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members
We need to be creative and inclusive in creating membership vehicles. There needs to be a place for anyone and everyone in a new membership based ICANN. Lots of politics, lots of compromises, but it can be and should be done. We're supposed to be a BOTTOM UP multi-stakeholder organization. Properly designed, nothing is more bottom up than an inclusive organisational structure where the Board answers direct to Members who themselves consist of the diverse, broad and global internet community.
Personally that makes sense to me. I am familiar with the model in Australia where the .au ccTLD manager is set up as a membership organization. Regards, Bruce Tonkin
Hello Bruce,( & Greg), Thanks for your sterling work here as Board liaison. What I can't get my head around is that ICANN is projecting / budgeting 15M gTLD registrations ( down from an original 33M ) by the end of 2015 ( I think ) , maybe 2016. With each new registry(1400) paying $25000 pa + 25cents for each registration over 50000 to ICANN + potential huge $M from auctions - how can ICANN be called a "not for profit " anymore. Surely its tax and legal status will have to change ( under Californian law). (This is where a UK accountant bows out). Perhaps I'm going too deep / off topic now. Regards, Phil -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: 06 January 2015 23:54 To: accountability-cross-community@icann.org Subject: [CCWG-Accountability] Regarding Non-profit and public-benefit legal structure Hello Phil, >> I would envisage the Board having to be compliance with all Corporate Governance Codes specific to Companies Law in the country of incorporation, subject to a community consensus override. But what is its corporate status - not for profit or for profit - as different codes would apply ? The legal status of ICANN is as specified in its articles of incorporation: https://www.icann.org/resources/pages/articles-2012-02-25-en "This Corporation is a non-profit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Non-profit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code." Also from: http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation "A public-benefit non-profit corporation is a type of non-profit corporation chartered by a state government, and organized primarily or exclusively for social, educational, recreational or charitable purposes by like-minded citizens. Public-benefit nonprofit corporations are distinct in the law from mutual-benefit nonprofit corporations in that they are organized for the general public benefit, rather than for the interest of its members." I believe it was deliberately set up as public benefit rather than a member organization - to avoid the situation where the members become limited to say gTLD registries and registrars and hence it ends up operating primarily for the benefit of the domain name registration industry. Any move away from a public-benefit corporation to a membership corporation - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members as interest in "ICANN" drops over time. I.e. a failure scenario of membership organisation is what happens to the membership base over time and how it can be protected from capture. I have seen some membership based ccTLDs get into problems when their membership becomes dominated by domain name investors for example. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Speaking as a California attorney, being a non-profit corporation doesn't actually mean that the corporation doesn't make a profit. It means that the profit made by the corporation isn't distributed to share-holders (owners). So ICANN can make a gazillion dollars in profit, as long as that profit is spent by the corporation in ways other than share-holder distributions. Best, Robin On Jan 6, 2015, at 5:50 PM, Phil Buckingham wrote: > Hello Bruce,( & Greg), > > Thanks for your sterling work here as Board liaison. > > What I can't get my head around is that ICANN is projecting / budgeting 15M > gTLD registrations ( down from an original 33M ) by the end of 2015 ( I > think ) , maybe 2016. > With each new registry(1400) paying $25000 pa + 25cents for each > registration over 50000 to ICANN + potential huge $M from auctions - how can > ICANN be called a "not for profit " anymore. Surely its tax and legal status > will have to change ( under Californian law). (This is where a UK accountant > bows out). > > Perhaps I'm going too deep / off topic now. > > Regards, > > Phil > > > > -----Original Message----- > From: accountability-cross-community-bounces@icann.org > [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bruce > Tonkin > Sent: 06 January 2015 23:54 > To: accountability-cross-community@icann.org > Subject: [CCWG-Accountability] Regarding Non-profit and public-benefit legal > structure > > Hello Phil, > > >>> I would envisage the Board having to be compliance with all Corporate > Governance Codes specific to Companies Law in the country of incorporation, > subject to a community consensus override. But what is its corporate status > - not for profit or for profit - as different codes would apply ? > > The legal status of ICANN is as specified in its articles of incorporation: > > https://www.icann.org/resources/pages/articles-2012-02-25-en > > "This Corporation is a non-profit public benefit corporation and is not > organized for the private gain of any person. It is organized under the > California Non-profit Public Benefit Corporation Law for charitable and > public purposes. The Corporation is organized, and will be operated, > exclusively for charitable, educational, and scientific purposes within the > meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as amended > (the "Code"), or the corresponding provision of any future United States tax > code. Any reference in these Articles to the Code shall include the > corresponding provisions of any further United States tax code." > > Also from: > > http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation > > "A public-benefit non-profit corporation is a type of non-profit > corporation chartered by a state government, and organized primarily or > exclusively for social, educational, recreational or charitable purposes by > like-minded citizens. Public-benefit nonprofit corporations are distinct in > the law from mutual-benefit nonprofit corporations in that they are > organized for the general public benefit, rather than for the interest of > its members." > > I believe it was deliberately set up as public benefit rather than a member > organization - to avoid the situation where the members become limited to > say gTLD registries and registrars and hence it ends up operating primarily > for the benefit of the domain name registration industry. > > Any move away from a public-benefit corporation to a membership corporation > - would need to carefully consider how to ensure that the members are > reflective of the broader Internet community and don't become limited to a > few members as interest in "ICANN" drops over time. I.e. a failure > scenario of membership organisation is what happens to the membership base > over time and how it can be protected from capture. I have seen some > membership based ccTLDs get into problems when their membership becomes > dominated by domain name investors for example. > > Regards, > Bruce Tonkin > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community >
Speaking as a California attorney, being a non-profit corporation doesn't actually mean that the corporation doesn't make a profit. It means that the profit made by the corporation isn't distributed to share-holders (owners). So ICANN can make a gazillion dollars in profit, as long as that profit is spent by the corporation in ways other than share-holder distributions.
Also from the articles of incorporation: "Notwithstanding any other provision (other than Article 8) of these Articles: a. The Corporation shall not carry on any other activities not permitted to be carried on (i) by a corporation exempt from United States income tax under § 501 (c)(3) of the Code or (ii) by a corporation, contributions to which are deductible under § 170 (c)(2) of the Code. b. No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall be empowered to make the election under § 501 (h) of the Code. c. The Corporation shall not participate in, or intervene in (including the publishing or distribution of statements) any political campaign on behalf of or in opposition to any candidate for public office. d. No part of the net earnings of the Corporation shall inure to the benefit of or be distributable to its members, directors, trustees, officers, or other private persons, except that the Corporation shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes set forth in Article 3 hereof. e. In no event shall the Corporation be controlled directly or indirectly by one or more "disqualified persons" (as defined in § 4946 of the Code) other than foundation managers and other than one or more organizations described in paragraph (1) or (2) of § 509 (a) of the Code. " Regards, Bruce Tonkin
Colleagues, I'm not going to repeat the corrections offered by Greg, but having known Bruce since the Melbourne IT investment in NeuLevel circa 2001, that is, from shortly after the selection of the first six entities to become registrars accredited by the corporation several Boards and Executives ago, during the first "6-10 new gTLD" round, I'm going to comment.
I believe it was deliberately set up as public benefit rather than a member organization - to avoid the situation where the members become limited to say gTLD registries and registrars and hence it ends up operating primarily for the benefit of the domain name registration industry.
Bruce errs, as Greg has pointed out, in that California allows both member and non-member forms of non-profit corporations, but he does not err in attributing fundamental importance, even to the form of incorporation, to an attempt to avoid, what is known as "agency capture" in Administrative Law -- and Network Solutions loomed very large in the minds of many involved in the formation of the initial constituencies and in the minds of the founding staffers. Whether "agency capture" was avoided is a matter of opinion, or perspective, but regardless of Bruce's attribution, the intent to {rule make | technically coordinate} independent of the legacy monopoly incumbent, and subsequently its sales channels with market power, was genuine and Bruce correct in expressing general intent of the first and early Boards -- though not to the issue of choice of corporate forms. The sentiment Bruce shared is correct, though the specifics, 16 years later, are not.
Any move away from a public-benefit corporation to a membership corporation - would need to carefully consider how to ensure that the members are reflective of the broader Internet community and don't become limited to a few members as interest in "ICANN" drops over time. I.e. a failure scenario of membership organisation is what happens to the membership base over time and how it can be protected from capture. I have seen some membership based ccTLDs get into problems when their membership becomes dominated by domain name investors for example.
Without commenting on the problems of ccTLDs I will share my personal experience as a member of the Membership Implementation Task Force (Indigenous Peoples with John Afele of Ghana) in 2000, an effort which eventually lead to the notion of a source of input to the corporation outside of the parties, most with some degree of economic self-interest, which formed the first constituencies -- this was the "At Large" project, which eventually was incorporated into the Bylaws in October, 2002. I still consider the "membership problem" non-tractible. One either ends up with a wicked small group of "members" capable of governing a corporation (in the usual sense) which affects directly the lives of many orders of magnitude more people who have no "representation" in the consequences of these governing decisions, or one ends up with a wicked huge group of "members" incapable of governing a corporation (in the usual sense). We would be less than accountable ourselves were we to fail to observe that some of the Bylaws entities or their component sub-entities have, as Bruce observes, "become limited to a few members as interest in 'ICANN' drops over time". I've observed this first hand in the PSO, in parts of the GNSO, and in one of the AC entities. Protecting the integrity of the membership base is necessary to prevent institutional capture. The sentiment Bruce shared is correct, though the specifics, 16 years later, are not, and I broadly share the sentiments he expressed. Cheers, Eric Brunner-Williams Eugene, Oregon
Dear all, If we read the articles of incorporation <https://www.icann.org/resources/pages/articles-2012-02-25-en> https://www.icann.org/resources/pages/articles-2012-02-25-en , we can find that: "This Corporation is a non-profit public benefit corporation and is not organized for the private gain of any person..". Acting for the public interest should then be clearly mentioned as one of the purposes of the ICANN accountability. I understand the fears from different interpretations of the public interest, but we may use detailed and exhaustive explanation with useful examples to define the public interest. ---------------------------------------------------------------------------- ---- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: + 216 41 649 605 Mobile: + 216 98 330 114 Fax: + 216 70 853 376 ---------------------------------------------------------------------------- ---- --- Ce courrier électronique ne contient aucun virus ou logiciel malveillant parce que la protection avast! Antivirus est active. http://www.avast.com
participants (20)
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Alan Greenberg -
Bruce Tonkin -
Carrie -
Carrie Devorah
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Cheryl Langdon-Orr -
Dr Eberhard W Lisse -
Dr Eberhard W Lisse -
Dr Eberhard WLisse
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Drew Noyes -
Edward Morris -
Eric Brunner-Williams -
Greg Shatan -
Kavouss Arasteh -
Mathieu Weill -
Paul Rosenzweig -
Phil Buckingham -
Robin Gross -
Seun Ojedeji -
Steve DelBianco -
Tijani BEN JEMAA