FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”? Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." <jhofheimer@sidley.com<mailto:jhofheimer@sidley.com>> Date: donderdag 11 juni 2015 06:09 To: "ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com<mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com<mailto:jhofheimer@sidley.com> www.sidley.com<http://www.sidley.com/> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<http://www.sidley.com/> SIDLEY AUSTIN LLP From:ccwg-accountability5-bounces@icann.org<mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com<mailto:thilton@sidley.com> www.sidley.com<http://www.sidley.com> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<http://www.sidley.com/> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************
Roelof, As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.” B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz From: Roelof Meijer <Roelof.Meijer@sidn.nl<mailto:Roelof.Meijer@sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”? Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." <jhofheimer@sidley.com<mailto:jhofheimer@sidley.com>> Date: donderdag 11 juni 2015 06:09 To: "ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com<mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com<mailto:jhofheimer@sidley.com> www.sidley.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=> SIDLEY AUSTIN LLP From:ccwg-accountability5-bounces@icann.org<mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com<mailto:thilton@sidley.com> www.sidley.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************
Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn't that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, don't we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO's are legal entities doesn't change this. Unless they are members of ICANN, they are not a party to the bylaws "contract." B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz> From: Roelof Meijer <Roelof.Meijer@sidn.nl<mailto:Roelof.Meijer@sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC's, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions"? Most members of SO's are legal entities, many members of AC's are too, couldn't those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses "to go". The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the "old" board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." <jhofheimer@sidley.com<mailto:jhofheimer@sidley.com>> Date: donderdag 11 juni 2015 06:09 To: "ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com<mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models - Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com<mailto:jhofheimer@sidley.com> www.sidley.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=> SIDLEY AUSTIN LLP From:ccwg-accountability5-bounces@icann.org<mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com<mailto:thilton@sidley.com> www.sidley.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************
Very interesting point Keith. On 6/12/2015 5:05 PM, Drazek, Keith wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards, Keith
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Burr, Becky *Sent:* Friday, June 12, 2015 11:07 AM *To:* Roelof Meijer; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz <http://www.neustar.biz>
*From: *Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> *Date: *Friday, June 12, 2015 at 8:18 AM *To: *Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
*From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com <mailto:jhofheimer@sidley.com>> *Date: *donderdag 11 juni 2015 06:09 *To: *"ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>> *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
*JOSHUA**HOFHEIMER *
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <mailto:jhofheimer@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=>*SIDLEY AUSTIN LLP*
*From:*ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org] *On Behalf Of *Hilton, Tyler *Sent:* Monday, June 08, 2015 8:29 PM *To:* ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org> *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
*TYLER**HILTON* Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <mailto:thilton@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=>*SIDLEY AUSTIN LLP*
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It sure is Best, Roelof From: Matthew Shears <mshears@cdt.org<mailto:mshears@cdt.org>> Date: vrijdag 12 juni 2015 19:18 To: Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, Becky Burr <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>>, Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Very interesting point Keith. On 6/12/2015 5:05 PM, Drazek, Keith wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.” B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz> From: Roelof Meijer <Roelof.Meijer@sidn.nl<mailto:Roelof.Meijer@sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”? Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." <jhofheimer@sidley.com<mailto:jhofheimer@sidley.com>> Date: donderdag 11 juni 2015 06:09 To: "ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com<mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com<mailto:jhofheimer@sidley.com> www.sidley.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=> SIDLEY AUSTIN LLP From:ccwg-accountability5-bounces@icann.org<mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com<mailto:thilton@sidley.com> www.sidley.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ 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 -- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 (0)771 247 2987
Dear Mathieu, Keith Referring to Californian Attorney role, pls clarify in which domain that authority to be shared with community? I hope we are not proposing to share any responsibility which are outside the Our activities Kavouss Sent from my iPhone
On 12 Jun 2015, at 19:18, Matthew Shears <mshears@cdt.org> wrote:
Very interesting point Keith.
On 6/12/2015 5:05 PM, Drazek, Keith wrote: Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards, Keith
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz
From: Roelof Meijer <Roelof.Meijer@sidn.nl> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community <accountability-cross-community@icann.org> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
From: <Hofheimer>, "Joshua T." <jhofheimer@sidley.com> Date: donderdag 11 juni 2015 06:09 To: "ccwg-accountability5@icann.org" <ccwg-accountability5@icann.org> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com>, ICANN-Adler <ICANN@adlercolvin.com> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
JOSHUA HOFHEIMER
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com www.sidley.com
SIDLEY AUSTIN LLP
From:ccwg-accountability5-bounces@icann.org [mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
TYLER HILTON Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com www.sidley.com
SIDLEY AUSTIN LLP
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
****************************************************************************************************
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-- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 (0)771 247 2987 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi, Good way of putting the issue. I especially hang on to the words: through its existing structures -- the SOs and ACs. avri On 12-Jun-15 12:05, Drazek, Keith wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards, Keith
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Burr, Becky *Sent:* Friday, June 12, 2015 11:07 AM *To:* Roelof Meijer; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz <http://www.neustar.biz>
*From: *Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> *Date: *Friday, June 12, 2015 at 8:18 AM *To: *Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
*From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com <mailto:jhofheimer@sidley.com>> *Date: *donderdag 11 juni 2015 06:09 *To: *"ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>> *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
*JOSHUA* *HOFHEIMER *
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <mailto:jhofheimer@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
*From:*ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org] *On Behalf Of *Hilton, Tyler *Sent:* Monday, June 08, 2015 8:29 PM *To:* ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org> *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
*TYLER* *HILTON* Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <mailto:thilton@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
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_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Greetings All, 1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it? 2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard? Cheers, Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards, Keith
From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz <http://www.neustar.biz/>
From: Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
From: <Hofheimer>, "Joshua T." <jhofheimer@sidley.com <mailto:jhofheimer@sidley.com>> Date: donderdag 11 juni 2015 06:09 To: "ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
JOSHUA HOFHEIMER
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <mailto:jhofheimer@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP
From:ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
TYLER HILTON Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <mailto:thilton@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
****************************************************************************************************
_______________________________________________ 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 <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
Chris We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur. Paul -- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain < ceo@auda.org.au> :
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com > wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org ] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.” B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office : + 1.202.533.2932 Mobile : +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz From: Roelof Meijer < Roelof.Meijer@sidn.nl > Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < accountability-cross-community@icann.org > Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: " If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but t here would be no mechanism to restrain ICANN from acting contrary to these decisions , nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal " no mechanism to restrain ICANN from acting contrary to these decisions”? Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com > Date: donderdag 11 juni 2015 06:09 To: " ccwg-accountability5@icann.org " < ccwg-accountability5@icann.org > Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com >, ICANN-Adler < ICANN@adlercolvin.com > Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 ( LA direct) +1.650.565.7561 ( PA direct) +1.323.708.2405 ( cell) jhofheimer@sidley.com www.sidley.com SIDLEY AUSTIN LLP From: ccwg-accountability5-bounces@icann.org [ mailto:ccwg-accountability5-bounces@icann.org ] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com www.sidley.com SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
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Hi Paul, I was specifically responding to Keith’s point so hardly a non-sequitur. Cheers, Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android
Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>>:
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards, Keith
From: accountability-cross-community-bounces@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org>] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <x-msg://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz> / www.neustar.biz <http://www.neustar.biz/>
From: Roelof Meijer <Roelof.Meijer@sidn.nl <x-msg://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community <accountability-cross-community@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
From: <Hofheimer>, "Joshua T." <jhofheimer@sidley.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>> Date: donderdag 11 juni 2015 06:09 To: "ccwg-accountability5@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>" <ccwg-accountability5@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
JOSHUA HOFHEIMER
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP
From:ccwg-accountability5-bounces@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
TYLER HILTON Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP
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Chris, NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change. If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself? If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision? Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG. I'm in favor of the latter. Regards, Keith On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Hi Paul, I was specifically responding to Keith’s point so hardly a non-sequitur. Cheers, Chris On 14 Jun 2015, at 02:29 , Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Chris We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur. Paul -- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>>: Greetings All, 1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it? 2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard? Cheers, Chris On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com<x-msg://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: accountability-cross-community-bounces@icann.org<x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org>] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.” B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<x-msg://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz> / http://www.neustar.biz<http://www.neustar.biz/> From: Roelof Meijer <Roelof.Meijer@sidn.nl<x-msg://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community <accountability-cross-community@icann.org<x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”? Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." <jhofheimer@sidley.com<x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>> Date: donderdag 11 juni 2015 06:09 To: "ccwg-accountability5@icann.org<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>" <ccwg-accountability5@icann.org<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com<x-msg://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com<x-msg://e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com<x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com> http://www.sidley.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=> SIDLEY AUSTIN LLP From:ccwg-accountability5-bounces@icann.org<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com<x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com> http://www.sidley.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=RZAttuK9gIR-rWhgnzzBCJwmd-AX6TvLB6W-cfwGyV4&e=> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. 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Dear Co-Chairs, the below statement is not entirely accurate. el -- Sent from Dr Lisse's iPad mini
On Jun 14, 2015, at 02:52, Drazek, Keith <kdrazek@verisign.com> wrote:
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
[...]
Eberhard, Please elaborate. Are you saying NTIA's indirect enforcement power doesn't exist or that it doesn't work? Or that it is not set to change? Thanks, Keith
On Jun 14, 2015, at 4:06 AM, Dr Eberhard W Lisse <el@lisse.na> wrote:
Dear Co-Chairs,
the below statement is not entirely accurate.
el
-- Sent from Dr Lisse's iPad mini
On Jun 14, 2015, at 02:52, Drazek, Keith <kdrazek@verisign.com> wrote:
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
[...]
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Co-Chairs, why are we doing this? Because of the sterling past behavior? el -- Sent from Dr Lisse's iPad mini
On Jun 14, 2015, at 16:47, Drazek, Keith <kdrazek@verisign.com> wrote:
Eberhard,
Please elaborate. Are you saying NTIA's indirect enforcement power doesn't exist or that it doesn't work? Or that it is not set to change?
Thanks, Keith
On Jun 14, 2015, at 4:06 AM, Dr Eberhard W Lisse <el@lisse.na> wrote:
Dear Co-Chairs,
the below statement is not entirely accurate.
el
-- Sent from Dr Lisse's iPad mini
On Jun 14, 2015, at 02:52, Drazek, Keith <kdrazek@verisign.com> wrote:
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
[...]
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Keith, I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without. I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that. Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Chris, NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change. If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself? If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision? Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG. I'm in favor of the latter. Regards, Keith On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Hi Paul, I was specifically responding to Keith’s point so hardly a non-sequitur. Cheers, Chris On 14 Jun 2015, at 02:29 , Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Chris We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur. Paul -- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>>: Greetings All, 1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it? 2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard? Cheers, Chris On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com<x-msg://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: accountability-cross-community-bounces@icann.org<x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org>] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.” B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<x-msg://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz> / http://www.neustar.biz<http://www.neustar.biz/> From: Roelof Meijer <Roelof.Meijer@sidn.nl<x-msg://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community <accountability-cross-community@icann.org<x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”? Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." <jhofheimer@sidley.com<x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>> Date: donderdag 11 juni 2015 06:09 To: "ccwg-accountability5@icann.org<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>" <ccwg-accountability5@icann.org<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com<x-msg://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com<x-msg://e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com<x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com> http://www.sidley.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=> SIDLEY AUSTIN LLP From:ccwg-accountability5-bounces@icann.org<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com<x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com> http://www.sidley.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=RZAttuK9gIR-rWhgnzzBCJwmd-AX6TvLB6W-cfwGyV4&e=> [http://www.sidley.com/files/upload/signatures/SA-autosig.png]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. 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In a typical RIR environment where there is proper membership setup, it's members "trusts" it's board members to abide by the bylaw there has not been any reason to go by legal means on board. Worse case is that the board gets spilled. These folks are human beings and it would be almost impossible for them to go against an unanimous will of the community. What I think may have been missing within ICANN bylaw are adequate text that ensure community engagement which I think the ccwg has done a good job on in it's recommendation/report. Let's then see if ICANN board would refuse to abide by it's own bylaw as amended. sent from Google nexus 4 kindly excuse brevity and typos. On 15 Jun 2015 08:04, "Roelof Meijer" <Roelof.Meijer@sidn.nl> wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au> Cc: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au> wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au> :
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards, Keith *From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Burr, Becky *Sent:* Friday, June 12, 2015 11:07 AM *To:* Roelof Meijer; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / http://www.neustar.biz
*From: *Roelof Meijer <Roelof.Meijer@sidn.nl> *Date: *Friday, June 12, 2015 at 8:18 AM *To: *Accountability Community <accountability-cross-community@icann.org> *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
*From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com> *Date: *donderdag 11 juni 2015 06:09 *To: *"ccwg-accountability5@icann.org" <ccwg-accountability5@icann.org> *Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com>, ICANN-Adler < ICANN@adlercolvin.com> *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
*JOSHUA* *HOFHEIMER *
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com http://www.sidley.com
[image: http://www.sidley.com/files/upload/signatures/SA-autosig.png] *SIDLEY AUSTIN LLP*
*From:*ccwg-accountability5-bounces@icann.org [ mailto:ccwg-accountability5-bounces@icann.org] *On Behalf Of *Hilton, Tyler *Sent:* Monday, June 08, 2015 8:29 PM *To:* ccwg-accountability5@icann.org *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
*TYLER* *HILTON* Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com http://www.sidley.com
[image: http://www.sidley.com/files/upload/signatures/SA-autosig.png] *SIDLEY AUSTIN LLP*
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Hi, I agree with those who are argue that there is far greater power in the Cooperative Model, aka Sidley's misnamed voluntary model, we currently have than people are acknowledging. This is especially so with the many improvements we have been discussing. As we have seen on occasion when enough of us work together, the multistakeholder process can force the Board/Staff's hand. I think people exagerate the power exercised by the NTIA and its threat of contract non-renewal. Also remember that we will still have a possible RFP event; the IANA Functions Review and the Separation Cross Community WG can serve as the same forcing function if that is the only sort of thing that convinces corporate ICANN. Not only will be able to use the combined stakeholder power to force issues as we done before, we will still have the whole pro intergovernmental crowd waiting for us to fail so that they save the day at the ITU or some other IGO. That should be enough to inspire us. If it doesn't, I do not see how something dragging through the courts for years will make much of a difference. As I have argued before, I think the whole membership route offers first a set of delays while we try to agree on it with the Board, and then allows for a new set of accountability holes we have yet to fully explore or discover - my greatest concern. I believe we are rushing into someting I think we just don't need for the transition. But if we go with a membership model as so many insist, I believe that only one where the SO or AC is the UA should be considered. avri On 15-Jun-15 03:03, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android
Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>>:
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards, Keith
*From:* accountability-cross-community-bounces@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org>] *On Behalf Of *Burr, Becky *Sent:* Friday, June 12, 2015 11:07 AM *To:* Roelof Meijer; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <x-msg://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz> / http://www.neustar.biz <http://www.neustar.biz/>
*From: *Roelof Meijer <Roelof.Meijer@sidn.nl <x-msg://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>> *Date: *Friday, June 12, 2015 at 8:18 AM *To: *Accountability Community <accountability-cross-community@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>> *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
*From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>> *Date: *donderdag 11 juni 2015 06:09 *To: *"ccwg-accountability5@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>" <ccwg-accountability5@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>> *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
*JOSHUA* *HOFHEIMER *
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com> http://www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
*From:*ccwg-accountability5-bounces@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>] *On Behalf Of *Hilton, Tyler *Sent:* Monday, June 08, 2015 8:29 PM *To:* ccwg-accountability5@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org> *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
*TYLER* *HILTON* Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com> http://www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
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+1 to Avri. By the way, i am not sure so many still insist on going the membership route. Maybe we need to check that row call again. From the few comments to PC that i have read i think those that supported membership route had quite a number of "but"/reservations about it. Membership route would most likely open up can of worms that the community may not be prepared for. We create so much firepower for ourselves and forget that its use may ultimately affect us. The more i think about the membership route within a structure like ICANN, the more unrealistic it seem for it to be efficient. Regards On Mon, Jun 15, 2015 at 3:02 PM, Avri Doria <avri@acm.org> wrote:
Hi,
I agree with those who are argue that there is far greater power in the Cooperative Model, aka Sidley's misnamed voluntary model, we currently have than people are acknowledging. This is especially so with the many improvements we have been discussing.
As we have seen on occasion when enough of us work together, the multistakeholder process can force the Board/Staff's hand. I think people exagerate the power exercised by the NTIA and its threat of contract non-renewal. Also remember that we will still have a possible RFP event; the IANA Functions Review and the Separation Cross Community WG can serve as the same forcing function if that is the only sort of thing that convinces corporate ICANN.
Not only will be able to use the combined stakeholder power to force issues as we done before, we will still have the whole pro intergovernmental crowd waiting for us to fail so that they save the day at the ITU or some other IGO. That should be enough to inspire us. If it doesn't, I do not see how something dragging through the courts for years will make much of a difference.
As I have argued before, I think the whole membership route offers first a set of delays while we try to agree on it with the Board, and then allows for a new set of accountability holes we have yet to fully explore or discover - my greatest concern. I believe we are rushing into someting I think we just don't need for the transition.
But if we go with a membership model as so many insist, I believe that only one where the SO or AC is the UA should be considered.
avri
On 15-Jun-15 03:03, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android
Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>>:
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com <x-msg://
e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>>
wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards, Keith
*From:* accountability-cross-community-bounces@icann.org <x-msg://
e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org
<x-msg://
e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org>] *On
Behalf Of *Burr, Becky *Sent:* Friday, June 12, 2015 11:07 AM *To:* Roelof Meijer; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 /
becky.burr@neustar.biz
<x-msg://
e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz> / http://www.neustar.biz
*From: *Roelof Meijer <Roelof.Meijer@sidn.nl <x-msg://
e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>>
*Date: *Friday, June 12, 2015 at 8:18 AM *To: *Accountability Community <accountability-cross-community@icann.org <x-msg://
e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org
*Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
*From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com <x-msg://
e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>>
*Date: *donderdag 11 juni 2015 06:09 *To: *"ccwg-accountability5@icann.org <x-msg://
e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>"
<ccwg-accountability5@icann.org <x-msg://
e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>>
*Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com <x-msg://
e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>,
ICANN-Adler <ICANN@adlercolvin.com <x-msg://
e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>>
*Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
*JOSHUA* *HOFHEIMER *
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <x-msg://
e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>
https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...
http://www.sidley.com/files/upload/signatures/SA-autosig.png <
https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY
AUSTIN LLP*
*From:*ccwg-accountability5-bounces@icann.org <x-msg://
e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org
<x-msg://
e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>] *On
Behalf Of *Hilton, Tyler *Sent:* Monday, June 08, 2015 8:29 PM *To:* ccwg-accountability5@icann.org <x-msg://
e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>
*Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
*TYLER* *HILTON* Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com> http://www.sidley.com <
https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...
http://www.sidley.com/files/upload/signatures/SA-autosig.png <
https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY
AUSTIN LLP*
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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 !
On Monday 15 June 2015 07:55 PM, Seun Ojedeji wrote:
+1 to Avri. By the way, i am not sure so many still insist on going the membership route. Maybe we need to check that row call again. From the few comments to PC that i have read i think those that supported membership route had quite a number of "but"/reservations about it.
Membership route would most likely open up can of worms that the community may not be prepared for. We create so much firepower for ourselves and forget that its use may ultimately affect us.
There was a certain unclear 'us' in Avri's email, while I was still pondering over it, I see Seun's email with a heavily reinforced 'us'... Who is this 'us', which it seems many here take for granted, and have not questioned even. If there is a code word that I have missed, I will like to enlightened. parminder
The more i think about the membership route within a structure like ICANN, the more unrealistic it seem for it to be efficient.
Regards
On Mon, Jun 15, 2015 at 3:02 PM, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
I agree with those who are argue that there is far greater power in the Cooperative Model, aka Sidley's misnamed voluntary model, we currently have than people are acknowledging. This is especially so with the many improvements we have been discussing.
As we have seen on occasion when enough of us work together, the multistakeholder process can force the Board/Staff's hand. I think people exagerate the power exercised by the NTIA and its threat of contract non-renewal. Also remember that we will still have a possible RFP event; the IANA Functions Review and the Separation Cross Community WG can serve as the same forcing function if that is the only sort of thing that convinces corporate ICANN.
Not only will be able to use the combined stakeholder power to force issues as we done before, we will still have the whole pro intergovernmental crowd waiting for us to fail so that they save the day at the ITU or some other IGO. That should be enough to inspire us. If it doesn't, I do not see how something dragging through the courts for years will make much of a difference.
As I have argued before, I think the whole membership route offers first a set of delays while we try to agree on it with the Board, and then allows for a new set of accountability holes we have yet to fully explore or discover - my greatest concern. I believe we are rushing into someting I think we just don't need for the transition.
But if we go with a membership model as so many insist, I believe that only one where the SO or AC is the UA should be considered.
avri
On 15-Jun-15 03:03, Roelof Meijer wrote: > Keith, > > I wonder if with "If a future ICANN Board were to jump the tracks, the > community will no longer have the NTIA backstop. Without legal > enforceability, the community would have to trust future ICANN Boards > and trust future California Attorney Generals. “ you’re not > oversimplifying or over-contrasting between the situation with legal > enforceability and without. > > I think that in a situation where the board “jump the track”, the > community ultimately goes through its process to spill the board and > the board refuses to go, that board would be paralyzed in all ways, > face shame and defamation individually on a global scale and would > ruin their personal careers completely. > They would dimply not do that. > > Best, > > Roelof > > From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com> > <mailto:kdrazek@verisign.com <mailto:kdrazek@verisign.com>>> > Date: zondag 14 juni 2015 03:52 > To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au> <mailto:ceo@auda.org.au <mailto:ceo@auda.org.au>>> > Cc: "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>" > <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>> > Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, > Voluntary Model > > Chris, > > NTIA's current enforcement powers are indirect but very real. Through > its existing ability to re-bid the IANA Functions contract, NTIA > ensures that ICANN and its Board of Directors remain true to its > bylaws. That unique role is set to change. > > If a future ICANN Board were to jump the tracks, the community will no > longer have the NTIA backstop. Without legal enforceability, the > community would have to trust future ICANN Boards and trust future > California Attorney Generals. Why shouldn't we instead trust the > global multi-stakeholder community itself? > > If a future ICANN community were to try to spill the board, wouldn't > we want that consensus decision to be legally enforceable? Or do we > want to allow a future Board to tell the community it was wrong and, > claiming fiduciary responsibility to the corporation, reject the decision? > > Ultimately, we're deciding whether authority should rest with the > ICANN Board and the California AG, or with the ICANN community and the > California AG. > > I'm in favor of the latter. > > Regards, > Keith > > > On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au> > <mailto:ceo@auda.org.au <mailto:ceo@auda.org.au>>> wrote: > >> Hi Paul, >> >> I was specifically responding to Keith’s point so hardly a non-sequitur. >> >> >> >> Cheers, >> >> >> Chris >> >> >>> On 14 Jun 2015, at 02:29 , Paul Rosenzweig >>> <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> >>> <mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>> wrote: >>> >>> Chris >>> >>> We need more formal powers for the community because much of the >>> power of the NTIA was informal. The only thing that could replace >>> the NTIA precisely would be the NTIA. I get that you don't like the >>> membership model. But asking why a non-governmental solution is >>> different from a governmental one is just a non sequitur. >>> >>> Paul >>> >>> -- >>> Sent from myMail app for Android >>> >>> Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain >>> <ceo@auda.org.au <mailto:ceo@auda.org.au> <mailto:ceo@auda.org.au <mailto:ceo@auda.org.au>>>: >>> >>> Greetings All, >>> >>> 1. on Becky’s comment below: if that is correct then surely the >>> same applies to the relationship between the SO/AC and its >>> Unincorporated Association. If a court cannot enforce a Board >>> spill by the SOs/ACs then a court can also not make the UA do >>> what the SO or AC wants. Can it? >>> >>> 2. on Keith’s comment below: How does the NTIA currently have >>> powers of enforcement over ICANN outside of matters covered in >>> the IANA contract? If NTIA was/is prepared to enter into an >>> Affirmation of Commitment with ICANN which can be terminated by >>> either party and is not legally enforceable, why should we >>> insist on a higher standard? >>> >>> >>> >>> Cheers, >>> >>> >>> Chris >>> >>> >>>> On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com <mailto:kdrazek@verisign.com> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com <http://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>>> >>>> wrote: >>>> >>>> Thanks Becky, >>>> >>>> I think you highlight a key point. >>>> >>>> Currently, NTIA and the California Attorney General are the >>>> only enforcement bodies ensuring ICANN remains committed to its >>>> bylaws. >>>> >>>> The membership structure would give some of that authority to >>>> the ICANN community through its existing structures -- the SOs >>>> and ACs. >>>> >>>> Isn’t that the definition of transitioning the United States >>>> government (in its various forms) out of its unique role? >>>> >>>> After NTIA disengages, don’t we want the community to have >>>> shared authority for enforcement, rather than leaving it to the >>>> California Attorney General alone? >>>> >>>> Regards, >>>> Keith >>>> >>>> *From:* accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org <http://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org>> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org <http://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org>>] *On >>>> Behalf Of *Burr, Becky >>>> *Sent:* Friday, June 12, 2015 11:07 AM >>>> *To:* Roelof Meijer; Accountability Cross Community >>>> *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised >>>> Powers Chart, Voluntary Model >>>> >>>> >>>> Roelof, >>>> >>>> shi >>>> >>>> As I understand it, Courts view the bylaws as a contract >>>> between a corporation and its members/shareholders. If ICANN >>>> has no members, the bylaws are not a contract with anyone, so >>>> the only party with authority to enforce would be the Attorney >>>> General. (As discussed elsewhere, this is extremely unlikely >>>> to happen outside of a fraud/corruption situation.) >>>> >>>> >>>> >>>> The fact that members of SO’s are legal entities doesn’t change >>>> this. Unless they are members of ICANN, they are not a party >>>> to the bylaws “contract.” >>>> >>>> >>>> >>>> B >>>> >>>> J. Beckwith Burr >>>> >>>> *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer >>>> >>>> 1775 Pennsylvania Avenue NW, Washington, DC 20006 >>>> >>>> Office: + >>>> 1.202.533.2932 Mobile: +1.202.352.6367 <tel:%2B1.202.352.6367> / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz <http://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz>> / http://www.neustar.biz >>>> <http://www.neustar.biz/> >>>> >>>> >>>> >>>> *From: *Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl <http://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>>> >>>> *Date: *Friday, June 12, 2015 at 8:18 AM >>>> *To: *Accountability Community >>>> <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org <http://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>>> >>>> *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers >>>> Chart, Voluntary Model >>>> >>>> >>>> >>>> Dear all, and especially dear legal colleagues, >>>> >>>> >>>> >>>> The memo states: >>>> >>>> >>>> >>>> "If there were a dispute between ICANN and an SO/AC, the >>>> parties could agree to an IRP and binding arbitration, but >>>> there would be no mechanism to restrain ICANN from acting >>>> contrary to these decisions, nor would there be a mechanism to >>>> challenge an arbitration decision that exceeded the scope of >>>> authority of the arbitration panel, outside an unlikely, >>>> independent intervention by the California Attorney General. " >>>> >>>> >>>> >>>> I understand that the SO/AC’s, not being legal entities, cannot >>>> take legal action to enforce. However, does that really equal >>>> "no mechanism to restrain ICANN from acting contrary to these >>>> decisions”? >>>> >>>> >>>> >>>> Most members of SO’s are legal entities, many members of AC’s >>>> are too, couldn’t those members, being affected parties, >>>> individually or collectively take legal action? >>>> >>>> >>>> >>>> Alternatively, I would assume that before the ultimate step of >>>> talking legal action against ICANN, the community will have >>>> escalated through its powers and thus has completed the >>>> procedure to recall the entire board. The power to recall the >>>> entire board will have to be combined with the power to in one >>>> way or another appoint an interim board. So, the community, >>>> through due process, recalls the board. The board, in >>>> contradiction with the bylaws, refuses “to go”. The community >>>> has recalled the board and thus, through the defined process >>>> (also in the bylaws), appoints an interim board. According to >>>> the bylaws, this interim board is now the legal representative >>>> of ICANN. And can take the required legal action (if necessary) >>>> to force the “old” board to go away and get lost. >>>> >>>> >>>> >>>> Would one of these two work? >>>> >>>> >>>> >>>> Best, >>>> >>>> >>>> >>>> Roelof Meijer >>>> >>>> >>>> >>>> *From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com <mailto:jhofheimer@sidley.com> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com <http://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>>> >>>> *Date: *donderdag 11 juni 2015 06:09 >>>> *To: *"ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org <http://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>>" >>>> <ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org <http://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>>> >>>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com <http://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>>, >>>> ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com <http://e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>>> >>>> *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary >>>> Model >>>> >>>> >>>> >>>> Dear Legal Sub-Team, >>>> >>>> >>>> >>>> Further to the CCWG request on the call last Friday, attached >>>> is a memo revising the summary chart describing the viability >>>> of the enumerated powers under the three models – Member model, >>>> Designator Model and Voluntary Model. We also explore the >>>> impact of not having the SO/ACs organized legal persons to >>>> represent their interests. >>>> >>>> >>>> >>>> Cheers, >>>> >>>> Josh >>>> >>>> *JOSHUA* *HOFHEIMER * >>>> >>>> Sidley Austin LLP >>>> +1.213.896.6061 <tel:%2B1.213.896.6061> (LA direct) >>>> +1.650.565.7561 <tel:%2B1.650.565.7561> (PA direct) >>>> +1.323.708.2405 <tel:%2B1.323.708.2405> (cell) >>>> jhofheimer@sidley.com <mailto:jhofheimer@sidley.com> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com <http://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>> >>>> http://www.sidley.com >>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> >>>> >>>> http://www.sidley.com/files/upload/signatures/SA-autosig.png >>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY >>>> AUSTIN LLP* >>>> >>>> >>>> >>>> >>>> *From:*ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org <http://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>> [mailto:ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org <http://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>>] *On >>>> Behalf Of *Hilton, Tyler >>>> *Sent:* Monday, June 08, 2015 8:29 PM >>>> *To:* ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org <http://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>> >>>> *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions >>>> >>>> >>>> >>>> Dear Legal Sub-team, >>>> >>>> >>>> >>>> Attached please find a memo responding to the list of questions >>>> from the Governmental Advisory Committee (GAC) provided to us >>>> on June 5, 2015. >>>> >>>> >>>> >>>> Best, >>>> >>>> >>>> >>>> *TYLER* *HILTON* >>>> Associate >>>> >>>> Sidley Austin LLP >>>> 555 West Fifth Street >>>> Los Angeles, CA 90013 >>>> +1.213.896.6130 <tel:%2B1.213.896.6130> >>>> thilton@sidley.com <mailto:thilton@sidley.com> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com <http://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com>> >>>> http://www.sidley.com >>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...> >>>> >>>> http://www.sidley.com/files/upload/signatures/SA-autosig.png >>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY >>>> AUSTIN LLP* >>>> >>>> >>>> >>>> >>>> **************************************************************************************************** >>>> This e-mail is sent by a law firm and may contain information >>>> that is privileged or confidential. >>>> If you are not the intended recipient, please delete the e-mail >>>> and any attachments and notify us >>>> immediately. >>>> >>>> **************************************************************************************************** >>>> >>>> _______________________________________________ >>>> Accountability-Cross-Community mailing list >>>> Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3aAccountability%2dCross%2dCommunity@icann.org <http://e-aj.my.com/compose/?mailto=mailto%3aAccountability%2dCross%2dCommunity@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> >>> <x-msg://1/compose?To=Accountability%2dCross%2dCommunity@icann.org <mailto:Accountability%252dCross%252dCommunity@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> >> <mailto: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
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The key to understanding is humility - my view !
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Dear All I do not agree that Bylaws is a contract between ICANN and srakeholdets/community for the reasons Provided in my earlier message Kavouss Sent from my iPhone
On 15 Jun 2015, at 17:06, parminder <parminder@itforchange.net> wrote:
On Monday 15 June 2015 07:55 PM, Seun Ojedeji wrote: +1 to Avri. By the way, i am not sure so many still insist on going the membership route. Maybe we need to check that row call again. From the few comments to PC that i have read i think those that supported membership route had quite a number of "but"/reservations about it.
Membership route would most likely open up can of worms that the community may not be prepared for. We create so much firepower for ourselves and forget that its use may ultimately affect us.
There was a certain unclear 'us' in Avri's email, while I was still pondering over it, I see Seun's email with a heavily reinforced 'us'... Who is this 'us', which it seems many here take for granted, and have not questioned even. If there is a code word that I have missed, I will like to enlightened.
parminder
The more i think about the membership route within a structure like ICANN, the more unrealistic it seem for it to be efficient.
Regards
On Mon, Jun 15, 2015 at 3:02 PM, Avri Doria <avri@acm.org> wrote: Hi,
I agree with those who are argue that there is far greater power in the Cooperative Model, aka Sidley's misnamed voluntary model, we currently have than people are acknowledging. This is especially so with the many improvements we have been discussing.
As we have seen on occasion when enough of us work together, the multistakeholder process can force the Board/Staff's hand. I think people exagerate the power exercised by the NTIA and its threat of contract non-renewal. Also remember that we will still have a possible RFP event; the IANA Functions Review and the Separation Cross Community WG can serve as the same forcing function if that is the only sort of thing that convinces corporate ICANN.
Not only will be able to use the combined stakeholder power to force issues as we done before, we will still have the whole pro intergovernmental crowd waiting for us to fail so that they save the day at the ITU or some other IGO. That should be enough to inspire us. If it doesn't, I do not see how something dragging through the courts for years will make much of a difference.
As I have argued before, I think the whole membership route offers first a set of delays while we try to agree on it with the Board, and then allows for a new set of accountability holes we have yet to fully explore or discover - my greatest concern. I believe we are rushing into someting I think we just don't need for the transition.
But if we go with a membership model as so many insist, I believe that only one where the SO or AC is the UA should be considered.
avri
On 15-Jun-15 03:03, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android
Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>>:
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
> On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com > <x-msg://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> > wrote: > > Thanks Becky, > > I think you highlight a key point. > > Currently, NTIA and the California Attorney General are the > only enforcement bodies ensuring ICANN remains committed to its > bylaws. > > The membership structure would give some of that authority to > the ICANN community through its existing structures -- the SOs > and ACs. > > Isn’t that the definition of transitioning the United States > government (in its various forms) out of its unique role? > > After NTIA disengages, don’t we want the community to have > shared authority for enforcement, rather than leaving it to the > California Attorney General alone? > > Regards, > Keith > > *From:* accountability-cross-community-bounces@icann.org > <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org > <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org>] *On > Behalf Of *Burr, Becky > *Sent:* Friday, June 12, 2015 11:07 AM > *To:* Roelof Meijer; Accountability Cross Community > *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised > Powers Chart, Voluntary Model > > > Roelof, > > shi > > As I understand it, Courts view the bylaws as a contract > between a corporation and its members/shareholders. If ICANN > has no members, the bylaws are not a contract with anyone, so > the only party with authority to enforce would be the Attorney > General. (As discussed elsewhere, this is extremely unlikely > to happen outside of a fraud/corruption situation.) > > > > The fact that members of SO’s are legal entities doesn’t change > this. Unless they are members of ICANN, they are not a party > to the bylaws “contract.” > > > > B > > J. Beckwith Burr > > *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer > > 1775 Pennsylvania Avenue NW, Washington, DC 20006 > > Office: + > 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz > <x-msg://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz> / http://www.neustar.biz > <http://www.neustar.biz/> > > > > *From: *Roelof Meijer <Roelof.Meijer@sidn.nl > <x-msg://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>> > *Date: *Friday, June 12, 2015 at 8:18 AM > *To: *Accountability Community > <accountability-cross-community@icann.org > <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>> > *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers > Chart, Voluntary Model > > > > Dear all, and especially dear legal colleagues, > > > > The memo states: > > > > "If there were a dispute between ICANN and an SO/AC, the > parties could agree to an IRP and binding arbitration, but > there would be no mechanism to restrain ICANN from acting > contrary to these decisions, nor would there be a mechanism to > challenge an arbitration decision that exceeded the scope of > authority of the arbitration panel, outside an unlikely, > independent intervention by the California Attorney General. " > > > > I understand that the SO/AC’s, not being legal entities, cannot > take legal action to enforce. However, does that really equal > "no mechanism to restrain ICANN from acting contrary to these > decisions”? > > > > Most members of SO’s are legal entities, many members of AC’s > are too, couldn’t those members, being affected parties, > individually or collectively take legal action? > > > > Alternatively, I would assume that before the ultimate step of > talking legal action against ICANN, the community will have > escalated through its powers and thus has completed the > procedure to recall the entire board. The power to recall the > entire board will have to be combined with the power to in one > way or another appoint an interim board. So, the community, > through due process, recalls the board. The board, in > contradiction with the bylaws, refuses “to go”. The community > has recalled the board and thus, through the defined process > (also in the bylaws), appoints an interim board. According to > the bylaws, this interim board is now the legal representative > of ICANN. And can take the required legal action (if necessary) > to force the “old” board to go away and get lost. > > > > Would one of these two work? > > > > Best, > > > > Roelof Meijer > > > > *From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com > <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>> > *Date: *donderdag 11 juni 2015 06:09 > *To: *"ccwg-accountability5@icann.org > <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>" > <ccwg-accountability5@icann.org > <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>> > *Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com > <x-msg://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, > ICANN-Adler <ICANN@adlercolvin.com > <x-msg://e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>> > *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary > Model > > > > Dear Legal Sub-Team, > > > > Further to the CCWG request on the call last Friday, attached > is a memo revising the summary chart describing the viability > of the enumerated powers under the three models – Member model, > Designator Model and Voluntary Model. We also explore the > impact of not having the SO/ACs organized legal persons to > represent their interests. > > > > Cheers, > > Josh > > *JOSHUA* *HOFHEIMER * > > Sidley Austin LLP > +1.213.896.6061 (LA direct) > +1.650.565.7561 (PA direct) > +1.323.708.2405 (cell) > jhofheimer@sidley.com > <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com> > http://www.sidley.com > <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> > > http://www.sidley.com/files/upload/signatures/SA-autosig.png > <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY > AUSTIN LLP* > > > > > *From:*ccwg-accountability5-bounces@icann.org > <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org > <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>] *On > Behalf Of *Hilton, Tyler > *Sent:* Monday, June 08, 2015 8:29 PM > *To:* ccwg-accountability5@icann.org > <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org> > *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions > > > > Dear Legal Sub-team, > > > > Attached please find a memo responding to the list of questions > from the Governmental Advisory Committee (GAC) provided to us > on June 5, 2015. > > > > Best, > > > > *TYLER* *HILTON* > Associate > > Sidley Austin LLP > 555 West Fifth Street > Los Angeles, CA 90013 > +1.213.896.6130 > thilton@sidley.com > <x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com> > http://www.sidley.com > <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...> > > http://www.sidley.com/files/upload/signatures/SA-autosig.png > <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY > AUSTIN LLP* > > > > > **************************************************************************************************** > This e-mail is sent by a law firm and may contain information > that is privileged or confidential. > If you are not the intended recipient, please delete the e-mail > and any attachments and notify us > immediately. > > **************************************************************************************************** > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org > <x-msg://e-aj.my.com/compose/?mailto=mailto%3aAccountability%2dCross%2dCommunity@icann.org> > https://mm.icann.org/mailman/listinfo/accountability-cross-community
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The key to understanding is humility - my view !
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Re my previous comment: As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) To Kavouss – my comment is simply a restatement of applicable law, and how the Courts in the US would interpret the Board’s obligations in the Bylaws. I was not taking any position on whether this is good, bad, desirable, not, etc. To Chris re infinite regress. Ultimately, yes. On the question of IRP/arbitration v. court, I am now quite confident that as a matter of law we should be able to require members to resolve disputes – including disputes related to breach of charitable trust/fiduciary duty – through the IRP. There are no guarantees in life, however, and courts in California – just like courts anywhere in the world – sometimes do surprising things. But putting aside some real corner cases, the Federal Arbitration Act, as interpreted by the US Supreme Court, is increasingly deferential to properly crafted choice of forum provisions in contracts, including bylaws in company/shareholder/member disputes. So we should take the “endless litigation” and decisions by California courts out of the debate on the “voluntary/cooperative” model vs. the “enforcement/membership” model please. I know that won’t resolve the debate, but try to focus on other concerns.
Becky Thank you for reply, According to all applicable international law every organisation , state, institution has a Constitution, convention, charter and ,,,, the Bylaws is the ICANN charter which governs its activities. It is NOT a contract at all . From international customary law the definition of contract is quite different from the charter, convention, treaty, agreement . ICANN community are spread over the whole world and should not be subordinated to something which inconsistent with all norms rules . Regards Kavouss Sent from my iPhone
On 15 Jun 2015, at 20:23, Burr, Becky <Becky.Burr@neustar.biz> wrote:
Re my previous comment:
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
To Kavouss – my comment is simply a restatement of applicable law, and how the Courts in the US would interpret the Board’s obligations in the Bylaws. I was not taking any position on whether this is good, bad, desirable, not, etc.
To Chris re infinite regress. Ultimately, yes.
On the question of IRP/arbitration v. court, I am now quite confident that as a matter of law we should be able to require members to resolve disputes – including disputes related to breach of charitable trust/fiduciary duty – through the IRP. There are no guarantees in life, however, and courts in California – just like courts anywhere in the world – sometimes do surprising things. But putting aside some real corner cases, the Federal Arbitration Act, as interpreted by the US Supreme Court, is increasingly deferential to properly crafted choice of forum provisions in contracts, including bylaws in company/shareholder/member disputes.
So we should take the “endless litigation” and decisions by California courts out of the debate on the “voluntary/cooperative” model vs. the “enforcement/membership” model please. I know that won’t resolve the debate, but try to focus on other concerns.
Dear Co-Chairs, International law has nothing to do with this. And I think we have discussed what International law does/is previously. el On 2015-06-15 21:11 , Kavouss Arasteh wrote:
Becky Thank you for reply, According to all applicable international law every organisation , state, institution has a Constitution, convention, charter and ,,,, the Bylaws is the ICANN charter which governs its activities. It is NOT a contract at all . From international customary law the definition of contract is quite different from the charter, convention, treaty, agreement . ICANN community are spread over the whole world and should not be subordinated to something which inconsistent with all norms rules . Regards Kavouss
Sent from my iPhone
On 15 Jun 2015, at 20:23, Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:
Re my previous comment:
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
To Kavouss – my comment is simply a restatement of applicable law, and how the Courts in the US would interpret the Board’s obligations in the Bylaws. I was not taking any position on whether this is good, bad, desirable, not, etc.
To Chris re infinite regress. Ultimately, yes.
On the question of IRP/arbitration v. court, I am now quite confident that as a matter of law we should be able to require members to resolve disputes – including disputes related to breach of charitable trust/fiduciary duty – through the IRP. There are no guarantees in life, however, and courts in California – just like courts anywhere in the world – sometimes do surprising things. But putting aside some real corner cases, the Federal Arbitration Act, as interpreted by the US Supreme Court, is increasingly deferential to properly crafted choice of forum provisions in contracts, including bylaws in company/shareholder/member disputes.
So we should take the “endless litigation” and decisions by California courts out of the debate on the “voluntary/cooperative” model vs. the “enforcement/membership” model please. I know that won’t resolve the debate, but try to focus on other concerns.
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Dear All, I wrote Customary law Tks Kavousd Sent from my iPhone
On 15 Jun 2015, at 22:16, Dr Eberhard W Lisse <el@lisse.NA> wrote:
Dear Co-Chairs,
International law has nothing to do with this. And I think we have discussed what International law does/is previously.
el
On 2015-06-15 21:11 , Kavouss Arasteh wrote: Becky Thank you for reply, According to all applicable international law every organisation , state, institution has a Constitution, convention, charter and ,,,, the Bylaws is the ICANN charter which governs its activities. It is NOT a contract at all . From international customary law the definition of contract is quite different from the charter, convention, treaty, agreement . ICANN community are spread over the whole world and should not be subordinated to something which inconsistent with all norms rules . Regards Kavouss
Sent from my iPhone
On 15 Jun 2015, at 20:23, Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:
Re my previous comment:
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) To Kavouss – my comment is simply a restatement of applicable law, and how the Courts in the US would interpret the Board’s obligations in the Bylaws. I was not taking any position on whether this is good, bad, desirable, not, etc.
To Chris re infinite regress. Ultimately, yes.
On the question of IRP/arbitration v. court, I am now quite confident that as a matter of law we should be able to require members to resolve disputes – including disputes related to breach of charitable trust/fiduciary duty – through the IRP. There are no guarantees in life, however, and courts in California – just like courts anywhere in the world – sometimes do surprising things. But putting aside some real corner cases, the Federal Arbitration Act, as interpreted by the US Supreme Court, is increasingly deferential to properly crafted choice of forum provisions in contracts, including bylaws in company/shareholder/member disputes.
So we should take the “endless litigation” and decisions by California courts out of the debate on the “voluntary/cooperative” model vs. the “enforcement/membership” model please. I know that won’t resolve the debate, but try to focus on other concerns.
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Dear Co-Chairs, please forward the question to the legal advisers, just in case there is something like international customary law. greetings, el On 2015-06-15 21:43 , Kavouss Arasteh wrote:
Dear All, I wrote Customary law Tks Kavousd
Sent from my iPhone
On 15 Jun 2015, at 22:16, Dr Eberhard W Lisse <el@lisse.NA> wrote:
Dear Co-Chairs,
International law has nothing to do with this. And I think we have discussed what International law does/is previously.
el
On 2015-06-15 21:11 , Kavouss Arasteh wrote: Becky Thank you for reply, According to all applicable international law every organisation , state, institution has a Constitution, convention, charter and ,,,, the Bylaws is the ICANN charter which governs its activities. It is NOT a contract at all . From international customary law the definition of contract is quite different from the charter, convention, treaty, agreement . ICANN community are spread over the whole world and should not be subordinated to something which inconsistent with all norms rules . Regards Kavouss
Sent from my iPhone
On 15 Jun 2015, at 20:23, Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:
Re my previous comment:
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) To Kavouss – my comment is simply a restatement of applicable law, and how the Courts in the US would interpret the Board’s obligations in the Bylaws. I was not taking any position on whether this is good, bad, desirable, not, etc.
To Chris re infinite regress. Ultimately, yes.
On the question of IRP/arbitration v. court, I am now quite confident that as a matter of law we should be able to require members to resolve disputes – including disputes related to breach of charitable trust/fiduciary duty – through the IRP. There are no guarantees in life, however, and courts in California – just like courts anywhere in the world – sometimes do surprising things. But putting aside some real corner cases, the Federal Arbitration Act, as interpreted by the US Supreme Court, is increasingly deferential to properly crafted choice of forum provisions in contracts, including bylaws in company/shareholder/member disputes.
So we should take the “endless litigation” and decisions by California courts out of the debate on the “voluntary/cooperative” model vs. the “enforcement/membership” model please. I know that won’t resolve the debate, but try to focus on other concerns.
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Becky, all, I agree we should try not to get derailed by the litigation/court discussion but focus on the other, more practical and more likely aspects when comparing the pros and cons of the models on the table. Best, Thomas ======== rickert.net PS - Sent from my cell. Please excuse typos and brevity.
Am 15.06.2015 um 19:23 schrieb Burr, Becky <Becky.Burr@neustar.biz>:
Re my previous comment:
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
To Kavouss – my comment is simply a restatement of applicable law, and how the Courts in the US would interpret the Board’s obligations in the Bylaws. I was not taking any position on whether this is good, bad, desirable, not, etc.
To Chris re infinite regress. Ultimately, yes.
On the question of IRP/arbitration v. court, I am now quite confident that as a matter of law we should be able to require members to resolve disputes – including disputes related to breach of charitable trust/fiduciary duty – through the IRP. There are no guarantees in life, however, and courts in California – just like courts anywhere in the world – sometimes do surprising things. But putting aside some real corner cases, the Federal Arbitration Act, as interpreted by the US Supreme Court, is increasingly deferential to properly crafted choice of forum provisions in contracts, including bylaws in company/shareholder/member disputes.
So we should take the “endless litigation” and decisions by California courts out of the debate on the “voluntary/cooperative” model vs. the “enforcement/membership” model please. I know that won’t resolve the debate, but try to focus on other concerns.
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I am not sure if I have posting privileges, so will copy Seun and Avri who might forward my post. I have many questions about membership organizations. such groups are subject to capture in ways that we [most of us] do not find comforting. M From: seun.ojedeji@gmail.com Date: Mon, 15 Jun 2015 15:25:11 +0100 To: avri@acm.org CC: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model +1 to Avri. By the way, i am not sure so many still insist on going the membership route. Maybe we need to check that row call again. From the few comments to PC that i have read i think those that supported membership route had quite a number of "but"/reservations about it. Membership route would most likely open up can of worms that the community may not be prepared for. We create so much firepower for ourselves and forget that its use may ultimately affect us. The more i think about the membership route within a structure like ICANN, the more unrealistic it seem for it to be efficient. Regards On Mon, Jun 15, 2015 at 3:02 PM, Avri Doria <avri@acm.org> wrote: Hi, I agree with those who are argue that there is far greater power in the Cooperative Model, aka Sidley's misnamed voluntary model, we currently have than people are acknowledging. This is especially so with the many improvements we have been discussing. As we have seen on occasion when enough of us work together, the multistakeholder process can force the Board/Staff's hand. I think people exagerate the power exercised by the NTIA and its threat of contract non-renewal. Also remember that we will still have a possible RFP event; the IANA Functions Review and the Separation Cross Community WG can serve as the same forcing function if that is the only sort of thing that convinces corporate ICANN. Not only will be able to use the combined stakeholder power to force issues as we done before, we will still have the whole pro intergovernmental crowd waiting for us to fail so that they save the day at the ITU or some other IGO. That should be enough to inspire us. If it doesn't, I do not see how something dragging through the courts for years will make much of a difference. As I have argued before, I think the whole membership route offers first a set of delays while we try to agree on it with the Board, and then allows for a new set of accountability holes we have yet to fully explore or discover - my greatest concern. I believe we are rushing into someting I think we just don't need for the transition. But if we go with a membership model as so many insist, I believe that only one where the SO or AC is the UA should be considered. avri On 15-Jun-15 03:03, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the
community will no longer have the NTIA backstop. Without legal
enforceability, the community would have to trust future ICANN Boards
and trust future California Attorney Generals. “ you’re not
oversimplifying or over-contrasting between the situation with legal
enforceability and without.
I think that in a situation where the board “jump the track”, the
community ultimately goes through its process to spill the board and
the board refuses to go, that board would be paralyzed in all ways,
face shame and defamation individually on a global scale and would
ruin their personal careers completely.
They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com
<mailto:kdrazek@verisign.com>>
Date: zondag 14 juni 2015 03:52
To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>>
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-ACCT] [Acct-Legal] Memo - Revised Powers Chart,
Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through
its existing ability to re-bid the IANA Functions contract, NTIA
ensures that ICANN and its Board of Directors remain true to its
bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no
longer have the NTIA backstop. Without legal enforceability, the
community would have to trust future ICANN Boards and trust future
California Attorney Generals. Why shouldn't we instead trust the
global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't
we want that consensus decision to be legally enforceable? Or do we
want to allow a future Board to tell the community it was wrong and,
claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the
ICANN Board and the California AG, or with the ICANN community and the
California AG.
I'm in favor of the latter.
Regards,
Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au
<mailto:ceo@auda.org.au>> wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig
<paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
Chris
We need more formal powers for the community because much of the
power of the NTIA was informal. The only thing that could replace
the NTIA precisely would be the NTIA. I get that you don't like the
membership model. But asking why a non-governmental solution is
different from a governmental one is just a non sequitur.
Paul
--
Sent from myMail app for Android
Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain
<ceo@auda.org.au <mailto:ceo@auda.org.au>>:
Greetings All,
1. on Becky’s comment below: if that is correct then surely the
same applies to the relationship between the SO/AC and its
Unincorporated Association. If a court cannot enforce a Board
spill by the SOs/ACs then a court can also not make the UA do
what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have
powers of enforcement over ICANN outside of matters covered in
the IANA contract? If NTIA was/is prepared to enter into an
Affirmation of Commitment with ICANN which can be terminated by
either party and is not legally enforceable, why should we
insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com
<x-msg://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>>
wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the
only enforcement bodies ensuring ICANN remains committed to its
bylaws.
The membership structure would give some of that authority to
the ICANN community through its existing structures -- the SOs
and ACs.
Isn’t that the definition of transitioning the United States
government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have
shared authority for enforcement, rather than leaving it to the
California Attorney General alone?
Regards,
Keith
*From:* accountability-cross-community-bounces@icann.org
<x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org
<x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org>] *On
Behalf Of *Burr, Becky
*Sent:* Friday, June 12, 2015 11:07 AM
*To:* Roelof Meijer; Accountability Cross Community
*Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised
Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract
between a corporation and its members/shareholders. If ICANN
has no members, the bylaws are not a contract with anyone, so
the only party with authority to enforce would be the Attorney
General. (As discussed elsewhere, this is extremely unlikely
to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change
this. Unless they are members of ICANN, they are not a party
to the bylaws “contract.”
B
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: +
1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz
<x-msg://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz> / http://www.neustar.biz
*From: *Roelof Meijer <Roelof.Meijer@sidn.nl
<x-msg://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>>
*Date: *Friday, June 12, 2015 at 8:18 AM
*To: *Accountability Community
<accountability-cross-community@icann.org
<x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>>
*Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers
Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the
parties could agree to an IRP and binding arbitration, but
there would be no mechanism to restrain ICANN from acting
contrary to these decisions, nor would there be a mechanism to
challenge an arbitration decision that exceeded the scope of
authority of the arbitration panel, outside an unlikely,
independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot
take legal action to enforce. However, does that really equal
"no mechanism to restrain ICANN from acting contrary to these
decisions”?
Most members of SO’s are legal entities, many members of AC’s
are too, couldn’t those members, being affected parties,
individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of
talking legal action against ICANN, the community will have
escalated through its powers and thus has completed the
procedure to recall the entire board. The power to recall the
entire board will have to be combined with the power to in one
way or another appoint an interim board. So, the community,
through due process, recalls the board. The board, in
contradiction with the bylaws, refuses “to go”. The community
has recalled the board and thus, through the defined process
(also in the bylaws), appoints an interim board. According to
the bylaws, this interim board is now the legal representative
of ICANN. And can take the required legal action (if necessary)
to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
*From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com
<x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>>
*Date: *donderdag 11 juni 2015 06:09
*To: *"ccwg-accountability5@icann.org
<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>"
<ccwg-accountability5@icann.org
<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>>
*Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com
<x-msg://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>,
ICANN-Adler <ICANN@adlercolvin.com
<x-msg://e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>>
*Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary
Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached
is a memo revising the summary chart describing the viability
of the enumerated powers under the three models – Member model,
Designator Model and Voluntary Model. We also explore the
impact of not having the SO/ACs organized legal persons to
represent their interests.
Cheers,
Josh
*JOSHUA* *HOFHEIMER *
Sidley Austin LLP
+1.213.896.6061 (LA direct)
+1.650.565.7561 (PA direct)
+1.323.708.2405 (cell)
jhofheimer@sidley.com
<x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY
AUSTIN LLP*
*From:*ccwg-accountability5-bounces@icann.org
<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org
<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>] *On
Behalf Of *Hilton, Tyler
*Sent:* Monday, June 08, 2015 8:29 PM
*To:* ccwg-accountability5@icann.org
<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>
*Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions
from the Governmental Advisory Committee (GAC) provided to us
on June 5, 2015.
Best,
*TYLER* *HILTON*
Associate
Sidley Austin LLP
555 West Fifth Street
Los Angeles, CA 90013
+1.213.896.6130
thilton@sidley.com
<x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com>
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY
AUSTIN LLP*
****************************************************************************************************
This e-mail is sent by a law firm and may contain information
that is privileged or confidential.
If you are not the intended recipient, please delete the e-mail
and any attachments and notify us
immediately.
****************************************************************************************************
_______________________________________________
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--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community -- ------------------------------------------------------------------------ Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng Mobile: +2348035233535 alt email: seun.ojedeji@fuoye.edu.ng The key to understanding is humility - my view ! _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Marilyn, Thank you very much for your message. Could you please expand on the ways under which the model could be captured? Kind regards , León Enviado desde el móvil. Disculpa brevedad y errores tipográficos.
El jun 15, 2015, a las 12:00 PM, Marilyn Cade <marilynscade@hotmail.com> escribió:
I am not sure if I have posting privileges, so will copy Seun and Avri who might forward my post.
I have many questions about membership organizations. such groups are subject to capture in ways that we [most of us] do not find comforting.
M
From: seun.ojedeji@gmail.com Date: Mon, 15 Jun 2015 15:25:11 +0100 To: avri@acm.org CC: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
+1 to Avri. By the way, i am not sure so many still insist on going the membership route. Maybe we need to check that row call again. From the few comments to PC that i have read i think those that supported membership route had quite a number of "but"/reservations about it.
Membership route would most likely open up can of worms that the community may not be prepared for. We create so much firepower for ourselves and forget that its use may ultimately affect us.
The more i think about the membership route within a structure like ICANN, the more unrealistic it seem for it to be efficient.
Regards
On Mon, Jun 15, 2015 at 3:02 PM, Avri Doria <avri@acm.org> wrote: Hi,
I agree with those who are argue that there is far greater power in the Cooperative Model, aka Sidley's misnamed voluntary model, we currently have than people are acknowledging. This is especially so with the many improvements we have been discussing.
As we have seen on occasion when enough of us work together, the multistakeholder process can force the Board/Staff's hand. I think people exagerate the power exercised by the NTIA and its threat of contract non-renewal. Also remember that we will still have a possible RFP event; the IANA Functions Review and the Separation Cross Community WG can serve as the same forcing function if that is the only sort of thing that convinces corporate ICANN.
Not only will be able to use the combined stakeholder power to force issues as we done before, we will still have the whole pro intergovernmental crowd waiting for us to fail so that they save the day at the ITU or some other IGO. That should be enough to inspire us. If it doesn't, I do not see how something dragging through the courts for years will make much of a difference.
As I have argued before, I think the whole membership route offers first a set of delays while we try to agree on it with the Board, and then allows for a new set of accountability holes we have yet to fully explore or discover - my greatest concern. I believe we are rushing into someting I think we just don't need for the transition.
But if we go with a membership model as so many insist, I believe that only one where the SO or AC is the UA should be considered.
avri
On 15-Jun-15 03:03, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android
Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>>:
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards, Keith
*From:* accountability-cross-community-bounces@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org>] *On Behalf Of *Burr, Becky *Sent:* Friday, June 12, 2015 11:07 AM *To:* Roelof Meijer; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <x-msg://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz> / http://www.neustar.biz <http://www.neustar.biz/>
*From: *Roelof Meijer <Roelof.Meijer@sidn.nl <x-msg://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>> *Date: *Friday, June 12, 2015 at 8:18 AM *To: *Accountability Community <accountability-cross-community@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>> *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
*From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>> *Date: *donderdag 11 juni 2015 06:09 *To: *"ccwg-accountability5@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>" <ccwg-accountability5@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>> *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
*JOSHUA* *HOFHEIMER *
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com> http://www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
*From:*ccwg-accountability5-bounces@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>] *On Behalf Of *Hilton, Tyler *Sent:* Monday, June 08, 2015 8:29 PM *To:* ccwg-accountability5@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org> *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
*TYLER* *HILTON* Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com> http://www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
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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 !
_______________________________________________ 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 Co-Chairs, you might want to explain to your Co-Chair that where there is a will there is a way. el -- Sent from Dr Lisse's iPhone 6
On Jun 15, 2015, at 18:12, León Felipe Sánchez Ambía <leonfelipe@sanchez.mx> wrote:
Dear Marilyn,
Thank you very much for your message. Could you please expand on the ways under which the model could be captured?
Kind regards ,
León
Enviado desde el móvil. Disculpa brevedad y errores tipográficos.
El jun 15, 2015, a las 12:00 PM, Marilyn Cade <marilynscade@hotmail.com> escribió:
I am not sure if I have posting privileges, so will copy Seun and Avri who might forward my post.
I have many questions about membership organizations. such groups are subject to capture in ways that we [most of us] do not find comforting.
M
From: seun.ojedeji@gmail.com Date: Mon, 15 Jun 2015 15:25:11 +0100 To: avri@acm.org CC: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
+1 to Avri. By the way, i am not sure so many still insist on going the membership route. Maybe we need to check that row call again. From the few comments to PC that i have read i think those that supported membership route had quite a number of "but"/reservations about it.
Membership route would most likely open up can of worms that the community may not be prepared for. We create so much firepower for ourselves and forget that its use may ultimately affect us.
The more i think about the membership route within a structure like ICANN, the more unrealistic it seem for it to be efficient.
Regards
On Mon, Jun 15, 2015 at 3:02 PM, Avri Doria <avri@acm.org> wrote: Hi,
I agree with those who are argue that there is far greater power in the Cooperative Model, aka Sidley's misnamed voluntary model, we currently have than people are acknowledging. This is especially so with the many improvements we have been discussing.
As we have seen on occasion when enough of us work together, the multistakeholder process can force the Board/Staff's hand. I think people exagerate the power exercised by the NTIA and its threat of contract non-renewal. Also remember that we will still have a possible RFP event; the IANA Functions Review and the Separation Cross Community WG can serve as the same forcing function if that is the only sort of thing that convinces corporate ICANN.
Not only will be able to use the combined stakeholder power to force issues as we done before, we will still have the whole pro intergovernmental crowd waiting for us to fail so that they save the day at the ITU or some other IGO. That should be enough to inspire us. If it doesn't, I do not see how something dragging through the courts for years will make much of a difference.
As I have argued before, I think the whole membership route offers first a set of delays while we try to agree on it with the Board, and then allows for a new set of accountability holes we have yet to fully explore or discover - my greatest concern. I believe we are rushing into someting I think we just don't need for the transition.
But if we go with a membership model as so many insist, I believe that only one where the SO or AC is the UA should be considered.
avri
On 15-Jun-15 03:03, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android
Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>>:
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards, Keith
*From:* accountability-cross-community-bounces@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org>] *On Behalf Of *Burr, Becky *Sent:* Friday, June 12, 2015 11:07 AM *To:* Roelof Meijer; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <x-msg://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz> / http://www.neustar.biz <http://www.neustar.biz/>
*From: *Roelof Meijer <Roelof.Meijer@sidn.nl <x-msg://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>> *Date: *Friday, June 12, 2015 at 8:18 AM *To: *Accountability Community <accountability-cross-community@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>> *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
*From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>> *Date: *donderdag 11 juni 2015 06:09 *To: *"ccwg-accountability5@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>" <ccwg-accountability5@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>> *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
*JOSHUA* *HOFHEIMER *
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com> http://www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
*From:*ccwg-accountability5-bounces@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>] *On Behalf Of *Hilton, Tyler *Sent:* Monday, June 08, 2015 8:29 PM *To:* ccwg-accountability5@icann.org <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org> *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
*TYLER* *HILTON* Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com> http://www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
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The key to understanding is humility - my view !
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Hi Avri,
As we have seen on occasion when enough of us work together, the multistakeholder process can force the Board/Staff's hand. I think people exagerate the power exercised by the NTIA and its threat of contract non-renewal.
I don't. In every reconsideration request I've written I have noted A o C commitments that have been violated and state my intention to file complaints with the DOC if Board action is not reversed. The only reason I have not done so is this Accountability effort commenced. The NTIA, along with the Attorney General of California, have been the true ultimate guarantors of the integrity of ICANN's governance model.
Not only will be able to use the combined stakeholder power to force issues as we done before, we will still have the whole pro intergovernmental crowd waiting for us to fail so that they save the day at the ITU or some other IGO.
I'm looking to bring stability, certainty and professionalism to this corporation. I'm not looking to create a system that depends upon incentivising the community to act out of fear other groups would be displeased.
, I do not see how something dragging through the courts for years will make much of a difference.
Keep seeing things like "dragging through the courts for years". Bollocks. Judicial processes are far more efficient than those who ridicule them suggest. One should also be reminded that ICANN itself is nothing more than a legal construct - a corporation - whose affairs need always be judged by the institutions empowered to render assessments of propriety regarding corporate structure and activity. It should be noted that nothing this group does will give immunity to ICANN. Third parties will still bone able to sue ICANN at will, regardless of what happens here. The only question here is whether units of the community will have the same rights, and others delegated to it by California's statutes, as everyone else on earth.
As I have argued before, I think the whole membership route offers first a set of delays while we try to agree on it with the Board, and then allows for a new set of accountability holes we have yet to fully explore or discover - my greatest concern.
I share your concern regarding the accountability and transparency practices of those admitted as members of the corporation. We need to ensure that we are not merely proposing a change from a relatively unaccountable Board-centric system of governance to a relatively unaccountable Member-centric system of corporate organisation.
I believe we are rushing into someting I think we just don't need for the transition.
Absent concrete, sustainable and enforceable instruments of accountability there should be and I assume will not be any transition. There may be a few ways of doing this but the 'let's all be friends' model I'd suggest is not one of them.
But if we go with a membership model as so many insist, I believe that only one where the SO or AC is the UA should be considered.
For various reasons I'm not a big fan of the UA and believe each member should be allowed to determine which form of legal personality it assumes to participate in ICANN. Nice to close in agreement: totally support your view that SOAC's should be the base member organising unit. Ed
Avery
On 15-Jun-15 03:03, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android
Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>>:
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com <x-msg://
e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>>
wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards, Keith
*From:* accountability-cross-community-bounces@icann.org <x-msg://
e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org
<x-msg://
e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org>] *On
Behalf Of *Burr, Becky *Sent:* Friday, June 12, 2015 11:07 AM *To:* Roelof Meijer; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 /
becky.burr@neustar.biz
<x-msg://
e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz> / http://www.neustar.biz
*From: *Roelof Meijer <Roelof.Meijer@sidn.nl <x-msg://
e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>>
*Date: *Friday, June 12, 2015 at 8:18 AM *To: *Accountability Community <accountability-cross-community@icann.org <x-msg://
e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org
*Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
*From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com <x-msg://
e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>>
*Date: *donderdag 11 juni 2015 06:09 *To: *"ccwg-accountability5@icann.org <x-msg://
e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>"
<ccwg-accountability5@icann.org <x-msg://
e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>>
*Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com <x-msg://
e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>,
ICANN-Adler <ICANN@adlercolvin.com <x-msg://
e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>>
*Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
*JOSHUA* *HOFHEIMER *
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <x-msg://
e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>
https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...
http://www.sidley.com/files/upload/signatures/SA-autosig.png <
https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY
AUSTIN LLP*
*From:*ccwg-accountability5-bounces@icann.org <x-msg://
e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org
<x-msg://
e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>] *On
Behalf Of *Hilton, Tyler *Sent:* Monday, June 08, 2015 8:29 PM *To:* ccwg-accountability5@icann.org <x-msg://
e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>
*Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
*TYLER* *HILTON* Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com> http://www.sidley.com <
https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...
http://www.sidley.com/files/upload/signatures/SA-autosig.png <
https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY
AUSTIN LLP*
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On 15-Jun-15 10:53, Edward Morris wrote:
, I do not see how something dragging through the courts for years will make much of a difference.
Keep seeing things like "dragging through the courts for years". Bollocks. Judicial processes are far more efficient than those who ridicule them suggest.
Out of curiosity: Of the times that ICANN has been involved in court cases, how long have they lasted? And are there any general CA statistics for the duration of cases of the type of issues we are discussing? Then we can determine whether the expletive was deserved. I admit it may just be my sense of the anecdotal evidence that leads me to such assumptions. Seeing some statistical information on the frequency and duraction of such cases might help resolve this wide difference of opinion. BTW, I also assume that any court ruling would also be able to avail itself of the CA and US appeals system if it wished. What are the stats on that? thanks avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
Looking at a random selection of (notable enough to be listed) corporate governance cases listed here: http://www.law.du.edu/index.php/corporate-governance/governance-cases It seems most last 4-7 months. But these are just a random selection and not nessesarily 100% reflective but should give us a guideline of some sort. -James -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Monday, June 15, 2015 10:58 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model On 15-Jun-15 10:53, Edward Morris wrote:
, I do not see how something dragging through the courts for years will make much of a difference.
Keep seeing things like "dragging through the courts for years". Bollocks. Judicial processes are far more efficient than those who ridicule them suggest.
Out of curiosity: Of the times that ICANN has been involved in court cases, how long have they lasted? And are there any general CA statistics for the duration of cases of the type of issues we are discussing? Then we can determine whether the expletive was deserved. I admit it may just be my sense of the anecdotal evidence that leads me to such assumptions. Seeing some statistical information on the frequency and duraction of such cases might help resolve this wide difference of opinion. BTW, I also assume that any court ruling would also be able to avail itself of the CA and US appeals system if it wished. What are the stats on that? thanks avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi Avri, You raise a number of good questions for which I'm not sure the data exists. Perhaps Sam would be able to provide some information here that isn't readily available to non-specialists like ourselves.
Out of curiosity: Of the times that ICANN has been involved in court cases, how long have they lasted?
If the litigation pages are correct ICANN has rarely been sued in the Superior Court of California, Los Angeles County. Presumably that would be the location of any action arising under the Bylaws and thus is the relevant jurisdictional measure. Of the four cases listed on the ICANN litigation web page as being situated at that court the average duration from the filing of the first document in the matter to the last document is exactly 9 months. The range was 3 months to 15 months. Auerbach v ICANN, which concerned issues similar to that which might be raised by members, lasted 138 days between Karl's filing of his petition and Judge Janavs' ruling.
And are there any general CA statistics for the duration of cases of the type of issues we are discussing?
I haven't been able to find any. That itself is telling. Derivative lawsuits are extraordinarily rare and, frankly, involve the types of issues the California AG might interest herself in if there were no members. Likewise, member lawsuits against PBC boards are also extremely rare. I welcome statistical information of this sort if it can be found. Quick searches on Lexis and Westlaw have come up empty. I would note that a lawsuit by a member against a corporation or board thereof would not normally lead itself to lengthy duration. These cases would generally not involve a jury, the parties and issues would likely be clearly delineated, facts would generally be agreed and not in significant contention and the question largely would be one of law. These are not usually time consuming.
Then we can determine whether the expletive was deserved. I admit it may just be my sense of the anecdotal evidence that leads me to such assumptions. Seeing some statistical information on the frequency and duraction of such cases might help resolve this wide difference of opinion.
I agree. I hope somebody can find some. These cases are not common. Lacking other benchmarks I'd suggest the Auerbach matter needs to be considered as typical in some regards. Yes, the main branch of the court is in the same building where the O.J. Simpson trial occurred. That took a long time. There is no other similarity between that case and those that can be expected to be raised by members. Again, a membership corporate structure does not do anything one way or the other to increase or decrease ICANN's susceptibility to third party lawsuits. These are still going to take place regardless of anything the CCWG does. Any increased exposure to litigation would be that filed by members after exhausting all internal processes. Are we that afraid of the litigious nature of ourselves that we need to be restrained? Ed
Hi Edward, Robin might have some inputs too, as a fellow member of the California bar. The length of time that suits take can vary - it depends on a lot of factors. Of the recent California cases that ICANN has been involved in, those tend NOT to go to trial, but rather are dismissed on summary grounds, such as failure to state a case from the outset (possibly reached within a 3 month window), or a judge's determination that on specific issues, and after discovery, the facts do not support a cause of action (longer, at least 9 months). Without researching this, my sense is to agree with Edward on his assessment that the types of issues here could be amenable to a judge's determination of facts, as opposed to needing to go all the way to trial in front of a judge or a jury (but I could be wrong). Generally, the clearer the case is, the quicker it will be disposed of. If it requires more interpretation or seems novel (which we could imagine some challenges within the membership model to be), the longer it will take. It's hard to use cases as old as Karl's as a test of the duration of cases, though I tend to agree it's the best we have on limited information. The California courts are perpetually hit by budget issues and we've seen some judges with very heavy case burdens, which would often mean a case would take longer. There are also some "fast track" court rooms that are generally concluded within 1-2 years at max. The California Court System has a goal to have cases disposed of within 5 years, but it would be a very extraordinary suit - and probably not one that would arise out of ICANN on a discrete issue - that would take that long. Without commissioning more research at this time, it may be worth asking our Sidley/Adler Colvin folks if they've been involved in these types of derivative suits (regardless of jurisdiction) to see if they can provide us with some anecdotal information on the general duration. I hope this helps. Looking forward to seeing many of you in B.A. Best, Sam From: Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> Date: Monday, June 15, 2015 at 5:04 PM To: Avri Doria <avri@acm.org<mailto:avri@acm.org>> Cc: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Hi Avri, You raise a number of good questions for which I'm not sure the data exists. Perhaps Sam would be able to provide some information here that isn't readily available to non-specialists like ourselves. Out of curiosity: Of the times that ICANN has been involved in court cases, how long have they lasted? If the litigation pages are correct ICANN has rarely been sued in the Superior Court of California, Los Angeles County. Presumably that would be the location of any action arising under the Bylaws and thus is the relevant jurisdictional measure. Of the four cases listed on the ICANN litigation web page as being situated at that court the average duration from the filing of the first document in the matter to the last document is exactly 9 months. The range was 3 months to 15 months. Auerbach v ICANN, which concerned issues similar to that which might be raised by members, lasted 138 days between Karl's filing of his petition and Judge Janavs' ruling. And are there any general CA statistics for the duration of cases of the type of issues we are discussing? I haven't been able to find any. That itself is telling. Derivative lawsuits are extraordinarily rare and, frankly, involve the types of issues the California AG might interest herself in if there were no members. Likewise, member lawsuits against PBC boards are also extremely rare. I welcome statistical information of this sort if it can be found. Quick searches on Lexis and Westlaw have come up empty. I would note that a lawsuit by a member against a corporation or board thereof would not normally lead itself to lengthy duration. These cases would generally not involve a jury, the parties and issues would likely be clearly delineated, facts would generally be agreed and not in significant contention and the question largely would be one of law. These are not usually time consuming. Then we can determine whether the expletive was deserved. I admit it may just be my sense of the anecdotal evidence that leads me to such assumptions. Seeing some statistical information on the frequency and duraction of such cases might help resolve this wide difference of opinion. I agree. I hope somebody can find some. These cases are not common. Lacking other benchmarks I'd suggest the Auerbach matter needs to be considered as typical in some regards. Yes, the main branch of the court is in the same building where the O.J. Simpson trial occurred. That took a long time. There is no other similarity between that case and those that can be expected to be raised by members. Again, a membership corporate structure does not do anything one way or the other to increase or decrease ICANN's susceptibility to third party lawsuits. These are still going to take place regardless of anything the CCWG does. Any increased exposure to litigation would be that filed by members after exhausting all internal processes. Are we that afraid of the litigious nature of ourselves that we need to be restrained? Ed
"Derivative lawsuits are extraordinarily rare and, frankly, involve the types of issues the California AG might interest herself in if there were no members. Likewise, member lawsuits against PBC boards are also extremely rare" Interesting… Cheers, Roelof From: Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> Date: dinsdag 16 juni 2015 02:04 To: Avri Doria <avri@acm.org<mailto:avri@acm.org>> Cc: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Hi Avri, You raise a number of good questions for which I'm not sure the data exists. Perhaps Sam would be able to provide some information here that isn't readily available to non-specialists like ourselves. Out of curiosity: Of the times that ICANN has been involved in court cases, how long have they lasted? If the litigation pages are correct ICANN has rarely been sued in the Superior Court of California, Los Angeles County. Presumably that would be the location of any action arising under the Bylaws and thus is the relevant jurisdictional measure. Of the four cases listed on the ICANN litigation web page as being situated at that court the average duration from the filing of the first document in the matter to the last document is exactly 9 months. The range was 3 months to 15 months. Auerbach v ICANN, which concerned issues similar to that which might be raised by members, lasted 138 days between Karl's filing of his petition and Judge Janavs' ruling. And are there any general CA statistics for the duration of cases of the type of issues we are discussing? I haven't been able to find any. That itself is telling. Derivative lawsuits are extraordinarily rare and, frankly, involve the types of issues the California AG might interest herself in if there were no members. Likewise, member lawsuits against PBC boards are also extremely rare. I welcome statistical information of this sort if it can be found. Quick searches on Lexis and Westlaw have come up empty. I would note that a lawsuit by a member against a corporation or board thereof would not normally lead itself to lengthy duration. These cases would generally not involve a jury, the parties and issues would likely be clearly delineated, facts would generally be agreed and not in significant contention and the question largely would be one of law. These are not usually time consuming. Then we can determine whether the expletive was deserved. I admit it may just be my sense of the anecdotal evidence that leads me to such assumptions. Seeing some statistical information on the frequency and duraction of such cases might help resolve this wide difference of opinion. I agree. I hope somebody can find some. These cases are not common. Lacking other benchmarks I'd suggest the Auerbach matter needs to be considered as typical in some regards. Yes, the main branch of the court is in the same building where the O.J. Simpson trial occurred. That took a long time. There is no other similarity between that case and those that can be expected to be raised by members. Again, a membership corporate structure does not do anything one way or the other to increase or decrease ICANN's susceptibility to third party lawsuits. These are still going to take place regardless of anything the CCWG does. Any increased exposure to litigation would be that filed by members after exhausting all internal processes. Are we that afraid of the litigious nature of ourselves that we need to be restrained? Ed
Avri, I agree with everything you said. I admit that the membership model has some merit, but it brings several problems that have been raised in our WG and reiterated in the public comments. ---------------------------------------------------------------------------- ---- 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 ---------------------------------------------------------------------------- ---- -----Message d'origine----- De : accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] De la part de Avri Doria Envoyé : lundi 15 juin 2015 15:03 À : accountability-cross-community@icann.org Objet : Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Hi, I agree with those who are argue that there is far greater power in the Cooperative Model, aka Sidley's misnamed voluntary model, we currently have than people are acknowledging. This is especially so with the many improvements we have been discussing. As we have seen on occasion when enough of us work together, the multistakeholder process can force the Board/Staff's hand. I think people exagerate the power exercised by the NTIA and its threat of contract non-renewal. Also remember that we will still have a possible RFP event; the IANA Functions Review and the Separation Cross Community WG can serve as the same forcing function if that is the only sort of thing that convinces corporate ICANN. Not only will be able to use the combined stakeholder power to force issues as we done before, we will still have the whole pro intergovernmental crowd waiting for us to fail so that they save the day at the ITU or some other IGO. That should be enough to inspire us. If it doesn't, I do not see how something dragging through the courts for years will make much of a difference. As I have argued before, I think the whole membership route offers first a set of delays while we try to agree on it with the Board, and then allows for a new set of accountability holes we have yet to fully explore or discover - my greatest concern. I believe we are rushing into someting I think we just don't need for the transition. But if we go with a membership model as so many insist, I believe that only one where the SO or AC is the UA should be considered. avri On 15-Jun-15 03:03, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the
community will no longer have the NTIA backstop. Without legal
enforceability, the community would have to trust future ICANN Boards
and trust future California Attorney Generals. youre not
oversimplifying or over-contrasting between the situation with legal
enforceability and without.
I think that in a situation where the board jump the track, the
community ultimately goes through its process to spill the board and
the board refuses to go, that board would be paralyzed in all ways,
face shame and defamation individually on a global scale and would
ruin their personal careers completely.
They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com
<mailto:kdrazek@verisign.com>>
Date: zondag 14 juni 2015 03:52
To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>>
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-ACCT] [Acct-Legal] Memo - Revised Powers Chart,
Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through
its existing ability to re-bid the IANA Functions contract, NTIA
ensures that ICANN and its Board of Directors remain true to its
bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no
longer have the NTIA backstop. Without legal enforceability, the
community would have to trust future ICANN Boards and trust future
California Attorney Generals. Why shouldn't we instead trust the
global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't
we want that consensus decision to be legally enforceable? Or do we
want to allow a future Board to tell the community it was wrong and,
claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the
ICANN Board and the California AG, or with the ICANN community and the
California AG.
I'm in favor of the latter.
Regards,
Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au
<mailto:ceo@auda.org.au>> wrote:
Hi Paul,
I was specifically responding to Keiths point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig
<paul.rosenzweig@redbranchconsulting.com
<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
Chris
We need more formal powers for the community because much of the
power of the NTIA was informal. The only thing that could replace
the NTIA precisely would be the NTIA. I get that you don't like the
membership model. But asking why a non-governmental solution is
different from a governmental one is just a non sequitur.
Paul
--
Sent from myMail app for Android
Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain
<ceo@auda.org.au <mailto:ceo@auda.org.au>>:
Greetings All,
1. on Beckys comment below: if that is correct then surely the
same applies to the relationship between the SO/AC and its
Unincorporated Association. If a court cannot enforce a Board
spill by the SOs/ACs then a court can also not make the UA do
what the SO or AC wants. Can it?
2. on Keiths comment below: How does the NTIA currently have
powers of enforcement over ICANN outside of matters covered in
the IANA contract? If NTIA was/is prepared to enter into an
Affirmation of Commitment with ICANN which can be terminated by
either party and is not legally enforceable, why should we
insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com
<x-msg://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>>
wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the
only enforcement bodies ensuring ICANN remains committed to its
bylaws.
The membership structure would give some of that authority to
the ICANN community through its existing structures -- the SOs
and ACs.
Isnt that the definition of transitioning the United States
government (in its various forms) out of its unique role?
After NTIA disengages, dont we want the community to have
shared authority for enforcement, rather than leaving it to the
California Attorney General alone?
Regards,
Keith
*From:* accountability-cross-community-bounces@icann.org
<x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommu nity%2dbounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org
<x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommu nity%2dbounces@icann.org>] *On
Behalf Of *Burr, Becky
*Sent:* Friday, June 12, 2015 11:07 AM
*To:* Roelof Meijer; Accountability Cross Community
*Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised
Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract
between a corporation and its members/shareholders. If ICANN
has no members, the bylaws are not a contract with anyone, so
the only party with authority to enforce would be the Attorney
General. (As discussed elsewhere, this is extremely unlikely
to happen outside of a fraud/corruption situation.)
The fact that members of SOs are legal entities doesnt change
this. Unless they are members of ICANN, they are not a party
to the bylaws contract.
B
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: +
1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz
<x-msg://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz> / http://www.neustar.biz
*From: *Roelof Meijer <Roelof.Meijer@sidn.nl
<x-msg://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>>
*Date: *Friday, June 12, 2015 at 8:18 AM
*To: *Accountability Community
<accountability-cross-community@icann.org
<x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommu nity@icann.org>>
*Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers
Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the
parties could agree to an IRP and binding arbitration, but
there would be no mechanism to restrain ICANN from acting
contrary to these decisions, nor would there be a mechanism to
challenge an arbitration decision that exceeded the scope of
authority of the arbitration panel, outside an unlikely,
independent intervention by the California Attorney General. "
I understand that the SO/ACs, not being legal entities, cannot
take legal action to enforce. However, does that really equal
"no mechanism to restrain ICANN from acting contrary to these
decisions?
Most members of SOs are legal entities, many members of ACs
are too, couldnt those members, being affected parties,
individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of
talking legal action against ICANN, the community will have
escalated through its powers and thus has completed the
procedure to recall the entire board. The power to recall the
entire board will have to be combined with the power to in one
way or another appoint an interim board. So, the community,
through due process, recalls the board. The board, in
contradiction with the bylaws, refuses to go. The community
has recalled the board and thus, through the defined process
(also in the bylaws), appoints an interim board. According to
the bylaws, this interim board is now the legal representative
of ICANN. And can take the required legal action (if necessary)
to force the old board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
*From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com
<x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>>
*Date: *donderdag 11 juni 2015 06:09
*To: *"ccwg-accountability5@icann.org
<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.o rg>"
<ccwg-accountability5@icann.org
<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.o rg>>
*Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com
<x-msg://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>,
ICANN-Adler <ICANN@adlercolvin.com
<x-msg://e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>>
*Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary
Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached
is a memo revising the summary chart describing the viability
of the enumerated powers under the three models Member model,
Designator Model and Voluntary Model. We also explore the
impact of not having the SO/ACs organized legal persons to
represent their interests.
Cheers,
Josh
*JOSHUA* *HOFHEIMER *
Sidley Austin LLP
+1.213.896.6061 (LA direct)
+1.650.565.7561 (PA direct)
+1.323.708.2405 (cell)
jhofheimer@sidley.com
<x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>
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<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF- g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Q OhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZ lGqNG7PIfFS4&e=> *SIDLEY
AUSTIN LLP*
*From:*ccwg-accountability5-bounces@icann.org
<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounc es@icann.org> [mailto:ccwg-accountability5-bounces@icann.org
<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounc es@icann.org>] *On
Behalf Of *Hilton, Tyler
*Sent:* Monday, June 08, 2015 8:29 PM
*To:* ccwg-accountability5@icann.org
<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.o rg>
*Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions
from the Governmental Advisory Committee (GAC) provided to us
on June 5, 2015.
Best,
*TYLER* *HILTON*
Associate
Sidley Austin LLP
555 West Fifth Street
Los Angeles, CA 90013
+1.213.896.6130
thilton@sidley.com
<x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com>
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AUSTIN LLP*
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I cant agree more Roelof. ---------------------------------------------------------------------------- ---- 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 ---------------------------------------------------------------------------- ---- De : accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] De la part de Roelof Meijer Envoyé : lundi 15 juin 2015 08:04 À : Drazek, Keith; Chris Disspain Cc : accountability-cross-community@icann.org Objet : Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Keith, I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. youre not oversimplifying or over-contrasting between the situation with legal enforceability and without. I think that in a situation where the board jump the track, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that. Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au> Cc: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Chris, NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change. If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself? If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision? Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG. I'm in favor of the latter. Regards, Keith On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au> wrote: Hi Paul, I was specifically responding to Keiths point so hardly a non-sequitur. Cheers, Chris On 14 Jun 2015, at 02:29 , Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote: Chris We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur. Paul -- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au>: Greetings All, 1. on Beckys comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it? 2. on Keiths comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard? Cheers, Chris On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com <x-msg://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com> > wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isnt that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, dont we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommu nity%2dbounces@icann.org> accountability-cross-community-bounces@icann.org [ <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommu nity%2dbounces@icann.org> mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SOs are legal entities doesnt change this. Unless they are members of ICANN, they are not a party to the bylaws contract. B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / <x-msg://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz> becky.burr@neustar.biz / <http://www.neustar.biz/> http://www.neustar.biz From: Roelof Meijer < <x-msg://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl> Roelof.Meijer@sidn.nl> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommu nity@icann.org> accountability-cross-community@icann.org> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/ACs, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions? Most members of SOs are legal entities, many members of ACs are too, couldnt those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses to go. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the old board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." < <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com> jhofheimer@sidley.com> Date: donderdag 11 juni 2015 06:09 To: " <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.o rg> ccwg-accountability5@icann.org" < <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.o rg> ccwg-accountability5@icann.org> Cc: Sidley ICANN CCWG < <x-msg://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com> sidleyicannccwg@sidley.com>, ICANN-Adler < <x-msg://e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com> ICANN@adlercolvin.com> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com> jhofheimer@sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF- g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Q OhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZ lGqNG7PIfFS4&e=> http://www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF- g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Q OhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZ lGqNG7PIfFS4&e=> Image supprimée par l'expéditeur. http://www.sidley.com/files/upload/signatures/SA-autosig.png SIDLEY AUSTIN LLP From: <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounc es@icann.org> ccwg-accountability5-bounces@icann.org [ <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounc es@icann.org> mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.o rg> ccwg-accountability5@icann.org Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 <x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com> thilton@sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g &c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QO hQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=RZAttuK9gIR-rWhgnzzBCJwmd-AX6TvL B6W-cfwGyV4&e=> http://www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF- g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Q OhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZ lGqNG7PIfFS4&e=> Image supprimée par l'expéditeur. http://www.sidley.com/files/upload/signatures/SA-autosig.png SIDLEY AUSTIN LLP **************************************************************************** ************************ This e-mail is sent by a law firm and may contain information that is privileged or confidential. 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This tends to pretty well correlate with the position that most in the ALAC have supported. Alan At 15/06/2015 03:03 AM, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. youre not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board jump the track, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <<mailto:kdrazek@verisign.com>kdrazek@verisign.com> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <<mailto:ceo@auda.org.au>ceo@auda.org.au> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <<mailto:ceo@auda.org.au>ceo@auda.org.au> wrote:
Hi Paul,
I was specifically responding to Keiths point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig <<mailto:paul.rosenzweig@redbranchconsulting.com>paul.rosenzweig@redbranchconsulting.com> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <<mailto:ceo@auda.org.au>ceo@auda.org.au>:
Greetings All,
1. on Beckys comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keiths comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith <<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>kdrazek@verisign.com> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isnt that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, dont we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards, Keith From: <https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org>accountability-cross-community-bounces@icann.org [<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org>mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SOs are legal entities doesnt change this. Unless they are members of ICANN, they are not a party to the bylaws contract.
B
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / <https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz>becky.burr@neustar.biz / <http://www.neustar.biz/>http://www.neustar.biz
From: Roelof Meijer <<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>Roelof.Meijer@sidn.nl> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community <<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>accountability-cross-community@icann.org> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/ACs, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions?
Most members of SOs are legal entities, many members of ACs are too, couldnt those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses to go. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the old board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
From: <Hofheimer>, "Joshua T." <<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>jhofheimer@sidley.com> Date: donderdag 11 juni 2015 06:09 To: "<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>ccwg-accountability5@icann.org" <<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>ccwg-accountability5@icann.org> Cc: Sidley ICANN CCWG <<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>sidleyicannccwg@sidley.com>, ICANN-Adler <<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>ICANN@adlercolvin.com> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
JOSHUA HOFHEIMER
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) <https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>jhofheimer@sidley.com http://www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP
From:<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>ccwg-accountability5-bounces@icann.org [<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: <https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>ccwg-accountability5@icann.org Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
TYLER HILTON Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 <https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com>thilton@sidley.com http://www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP
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Keith, I would welcome a reaction to my email? Cheers, Roelof From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: dinsdag 16 juni 2015 04:09 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model This tends to pretty well correlate with the position that most in the ALAC have supported. Alan At 15/06/2015 03:03 AM, Roelof Meijer wrote: Keith, I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without. I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that. Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Chris, NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change. If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself? If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision? Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG. I'm in favor of the latter. Regards, Keith On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Hi Paul, I was specifically responding to Keith’s point so hardly a non-sequitur. Cheers, Chris On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Chris We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur. Paul -- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>>: Greetings All, 1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it? 2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard? Cheers, Chris On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountabil...> [ mailto:accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountabil...>] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.” B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@...> / http://www.neustar.biz<http://www.neustar.biz/> From: Roelof Meijer < Roelof.Meijer@sidn.nl<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < accountability-cross-community@icann.org<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”? Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>> Date: donderdag 11 juni 2015 06:09 To: " ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2dacco...>" < ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>> Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler < ICANN@adlercolvin.com<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP From: ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2dacco...> [ mailto:ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2dacco...>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2dacco...> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sid...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3aAccountabil...> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg://1/compose?To=Accountability%2dCross%2dCommunity@...> 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
Hi Roelof, You believe that a future Board would never reject the community's will. I believe it's a possibility we need to protect against. You're willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable. You're willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN's global multi-stakeholder community through its current and future SO-AC structures. In the spirit of consensus-building, I hope we're able to find a way to bridge these gaps. I believe we can. Best, Keith From: Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] Sent: Friday, June 19, 2015 9:57 AM To: Alan Greenberg; Drazek, Keith; Chris Disspain Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Keith, I would welcome a reaction to my email? Cheers, Roelof From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: dinsdag 16 juni 2015 04:09 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model This tends to pretty well correlate with the position that most in the ALAC have supported. Alan At 15/06/2015 03:03 AM, Roelof Meijer wrote: Keith, I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. " you're not oversimplifying or over-contrasting between the situation with legal enforceability and without. I think that in a situation where the board "jump the track", the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that. Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Chris, NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change. If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself? If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision? Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG. I'm in favor of the latter. Regards, Keith On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Hi Paul, I was specifically responding to Keith's point so hardly a non-sequitur. Cheers, Chris On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Chris We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur. Paul -- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>>: Greetings All, 1. on Becky's comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it? 2. on Keith's comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard? Cheers, Chris On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn't that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, don't we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...> [ mailto:accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...>] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO's are legal entities doesn't change this. Unless they are members of ICANN, they are not a party to the bylaws "contract." B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3abecky.burr@n...> / http://www.neustar.biz<http://www.neustar.biz/> From: Roelof Meijer < Roelof.Meijer@sidn.nl<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < accountability-cross-community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC's, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions"? Most members of SO's are legal entities, many members of AC's are too, couldn't those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses "to go". The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the "old" board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>> Date: donderdag 11 juni 2015 06:09 To: " ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>" < ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>> Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler < ICANN@adlercolvin.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models - Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@s...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP From: ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> [ mailto:ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3athilton@sidl...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aAccountabili...> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/1/compose?To=Accountability%2dCross%2dCommunity@i...> 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
sent from Google nexus 4 kindly excuse brevity and typos. On 19 Jun 2015 14:11, "Drazek, Keith" <kdrazek@verisign.com> wrote:
Hi Roelof,
Hi, While I am not Roelof, I like your approach in summarizing differences and I like to give my personal believe as well. Kindly find online:
You believe that a future Board would never reject the community’s will.
I believe it’s a possibility we need to protect against.
SO: I believe board could indeed reject the community's will so long as the reasons are justified because the community is not always 100% accurate/correct as well. Overall there is no always right and always wrong on both sides.
You’re willing to rely on trust in a future, unknown Board. I believe we
need to ensure future communities have the tools to hold the Board accountable.
SO: Unknown would perhaps become relevant if you refer to nomcom appointed board members and even that is limited because of the intense process involved in the selection. That said, I share in your believe about holding the board accountable.
You’re willing to leave ultimate authority with the Board. I believe
ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.
SO: As an organisation, I believe ultimate authority should always be with the board otherwise the community won't have a basis to hold them accountable.
In the spirit of consensus-building, I hope we’re able to find a way to
bridge these gaps. I believe we can.
SO: Yes I do as well. Regards
Best,
Keith
From: Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] Sent: Friday, June 19, 2015 9:57 AM To: Alan Greenberg; Drazek, Keith; Chris Disspain Cc: accountability-cross-community@icann.org
Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart,
Voluntary Model
Keith,
I would welcome a reaction to my email?
Cheers,
Roelof
From: Alan Greenberg <alan.greenberg@mcgill.ca> Date: dinsdag 16 juni 2015 04:09 To: Roelof Meijer <roelof.meijer@sidn.nl>, Keith Drazek <
kdrazek@verisign.com>, Chris Disspain <ceo@auda.org.au>
Cc: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
This tends to pretty well correlate with the position that most in the ALAC have supported.
Alan
At 15/06/2015 03:03 AM, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au> Cc: " accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au> wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au :
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards,
Keith
From: accountability-cross-community-bounces@icann.org [ mailto: accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky
Sent: Friday, June 12, 2015 11:07 AM
To: Roelof Meijer; Accountability Cross Community
Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / http://www.neustar.biz
From: Roelof Meijer < Roelof.Meijer@sidn.nl>
Date: Friday, June 12, 2015 at 8:18 AM
To: Accountability Community < accountability-cross-community@icann.org>
Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com>
Date: donderdag 11 juni 2015 06:09
To: " ccwg-accountability5@icann.org" < ccwg-accountability5@icann.org>
Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com>, ICANN-Adler < ICANN@adlercolvin.com>
Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
JOSHUA HOFHEIMER
Sidley Austin LLP
+1.213.896.6061 (LA direct)
+1.650.565.7561 (PA direct)
+1.323.708.2405 (cell)
jhofheimer@sidley.com
SIDLEY AUSTIN LLP
From: ccwg-accountability5-bounces@icann.org [ mailto: ccwg-accountability5-bounces@icann.org] On Behalf Of Hilton, Tyler
Sent: Monday, June 08, 2015 8:29 PM
To: ccwg-accountability5@icann.org
Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
TYLER HILTON
Associate
Sidley Austin LLP
555 West Fifth Street
Los Angeles, CA 90013
+1.213.896.6130
thilton@sidley.com
SIDLEY AUSTIN LLP
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immediately.
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Very well put Keith +1. -James From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Drazek, Keith" Date: Friday 19 June 2015 10:11 To: Roelof Meijer, Alan Greenberg, Chris Disspain Cc: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Hi Roelof, You believe that a future Board would never reject the community’s will. I believe it’s a possibility we need to protect against. You’re willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable. You’re willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures. In the spirit of consensus-building, I hope we’re able to find a way to bridge these gaps. I believe we can. Best, Keith From: Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] Sent: Friday, June 19, 2015 9:57 AM To: Alan Greenberg; Drazek, Keith; Chris Disspain Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Keith, I would welcome a reaction to my email? Cheers, Roelof From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: dinsdag 16 juni 2015 04:09 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model This tends to pretty well correlate with the position that most in the ALAC have supported. Alan At 15/06/2015 03:03 AM, Roelof Meijer wrote: Keith, I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without. I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that. Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Chris, NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change. If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself? If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision? Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG. I'm in favor of the latter. Regards, Keith On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Hi Paul, I was specifically responding to Keith’s point so hardly a non-sequitur. Cheers, Chris On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Chris We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur. Paul -- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>>: Greetings All, 1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it? 2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard? Cheers, Chris On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...> [ mailto:accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...>] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.” B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3abecky.burr@n...> / http://www.neustar.biz<http://www.neustar.biz/> From: Roelof Meijer < Roelof.Meijer@sidn.nl<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < accountability-cross-community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”? Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>> Date: donderdag 11 juni 2015 06:09 To: " ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>" < ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>> Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler < ICANN@adlercolvin.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@s...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP From: ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> [ mailto:ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3athilton@sidl...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aAccountabili...> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/1/compose?To=Accountability%2dCross%2dCommunity@i...> 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
Agree - we are building for 5, 10 + years from now and will see new CEOs, new Boards, new community compositions, etc. On 6/19/2015 2:51 PM, James Gannon wrote:
Very well put Keith +1.
-James
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Drazek, Keith" Date: Friday 19 June 2015 10:11 To: Roelof Meijer, Alan Greenberg, Chris Disspain Cc: "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Hi Roelof,
You believe that a future Board would never reject the community’s will. I believe it’s a possibility we need to protect against.
You’re willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable.
You’re willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.
In the spirit of consensus-building, I hope we’re able to find a way to bridge these gaps. I believe we can.
Best,
Keith
*From:*Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] *Sent:* Friday, June 19, 2015 9:57 AM *To:* Alan Greenberg; Drazek, Keith; Chris Disspain *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Keith,
I would welcome a reaction to my email?
Cheers,
Roelof
*From: *Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>> *Date: *dinsdag 16 juni 2015 04:09 *To: *Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>>, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> *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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
This tends to pretty well correlate with the position that most in the ALAC have supported.
Alan
At 15/06/2015 03:03 AM, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>>:
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards,
Keith
From: accountability-cross-community-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...> [mailto:accountability-cross-community-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...>] On Behalf Of Burr, Becky
Sent: Friday, June 12, 2015 11:07 AM
To: Roelof Meijer; Accountability Cross Community
Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3abecky.burr@n...> / http://www.neustar.biz <http://www.neustar.biz/>
From: Roelof Meijer <Roelof.Meijer@sidn.nl <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>>
Date: Friday, June 12, 2015 at 8:18 AM
To: Accountability Community <accountability-cross-community@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>>
Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
From: <Hofheimer>, "Joshua T." <jhofheimer@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>>
Date: donderdag 11 juni 2015 06:09
To: "ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>" <ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>>
Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>>
Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
JOSHUA HOFHEIMER
Sidley Austin LLP
+1.213.896.6061 (LA direct)
+1.650.565.7561 (PA direct)
+1.323.708.2405 (cell)
jhofheimer@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@s...>
http://www.sidley.com <http://www.sidley.com/>
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
SIDLEY AUSTIN LLP
From: ccwg-accountability5-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> [mailto:ccwg-accountability5-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>] On Behalf Of Hilton, Tyler
Sent: Monday, June 08, 2015 8:29 PM
To: ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>
Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
TYLER HILTON
Associate
Sidley Austin LLP
555 West Fifth Street
Los Angeles, CA 90013
+1.213.896.6130
thilton@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3athilton@sidl...>
http://www.sidley.com <http://www.sidley.com/>
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
SIDLEY AUSTIN LLP
****************************************************************************************************
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immediately.
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-- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 (0)771 247 2987
Yes I agree, I think our mindset needs to be doing this once and doing this well. My fear is that with some models we may face ourselves being back in 5/10 years doing Accountability version 2 as we had found that the model we went with did not end up providing the full extent of needs that the community required. I would want a model that will give us the powers that we have identified now, and caters for ones that we have not though of right now, ones that may become apparent in 3/5/10 years from now so that we don’t need to go through this process again. A model that caters to the concepts and processes rather than just the exact powers that we are working to at the moment, and a model that will survive the test of time, and changes in the world of ICANN over the years to come. -James From: Matthew Shears Date: Friday 19 June 2015 11:00 To: James Gannon, "Drazek, Keith", Roelof Meijer, Alan Greenberg, Chris Disspain Cc: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Agree - we are building for 5, 10 + years from now and will see new CEOs, new Boards, new community compositions, etc. On 6/19/2015 2:51 PM, James Gannon wrote: Very well put Keith +1. -James From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Drazek, Keith" Date: Friday 19 June 2015 10:11 To: Roelof Meijer, Alan Greenberg, Chris Disspain Cc: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Hi Roelof, You believe that a future Board would never reject the community’s will. I believe it’s a possibility we need to protect against. You’re willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable. You’re willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures. In the spirit of consensus-building, I hope we’re able to find a way to bridge these gaps. I believe we can. Best, Keith From: Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] Sent: Friday, June 19, 2015 9:57 AM To: Alan Greenberg; Drazek, Keith; Chris Disspain Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Keith, I would welcome a reaction to my email? Cheers, Roelof From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: dinsdag 16 juni 2015 04:09 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model This tends to pretty well correlate with the position that most in the ALAC have supported. Alan At 15/06/2015 03:03 AM, Roelof Meijer wrote: Keith, I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without. I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that. Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Chris, NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change. If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself? If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision? Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG. I'm in favor of the latter. Regards, Keith On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Hi Paul, I was specifically responding to Keith’s point so hardly a non-sequitur. Cheers, Chris On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Chris We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur. Paul -- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>>: Greetings All, 1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it? 2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard? Cheers, Chris On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...> [ mailto:accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...>] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.” B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3abecky.burr@n...> / http://www.neustar.biz<http://www.neustar.biz/> From: Roelof Meijer < Roelof.Meijer@sidn.nl<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < accountability-cross-community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”? Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>> Date: donderdag 11 juni 2015 06:09 To: " ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>" < ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>> Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler < ICANN@adlercolvin.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@s...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP From: ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> [ mailto:ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3athilton@sidl...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aAccountabili...> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/1/compose?To=Accountability%2dCross%2dCommunity@i...> 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 _______________________________________________ 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 -- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 (0)771 247 2987
Hi, Well, With a continuation of Accountability and Transparency Review Team every 5 years, we actually to plan to come back every while to check on the health of the system and decide if something more needs to happen. The idea of future proofing ignores the fact that the future is unknown. We do out best today and keep coming back to check if something needs to be fixed. Oh course we need to do the best we can. But we don't need guarantees against futures we cannot know. So contrary to what James hope, I expect us to be back in 5 years to check and see what we got right and what we didn't get quite right. avri On 19-Jun-15 11:06, James Gannon wrote:
Yes I agree, I think our mindset needs to be doing this once and doing this well. My fear is that with some models we may face ourselves being back in 5/10 years doing Accountability version 2 as we had found that the model we went with did not end up providing the full extent of needs that the community required.
I would want a model that will give us the powers that we have identified now, and caters for ones that we have not though of right now, ones that may become apparent in 3/5/10 years from now so that we don’t need to go through this process again. A model that caters to the concepts and processes rather than just the exact powers that we are working to at the moment, and a model that will survive the test of time, and changes in the world of ICANN over the years to come.
-James
From: Matthew Shears Date: Friday 19 June 2015 11:00 To: James Gannon, "Drazek, Keith", Roelof Meijer, Alan Greenberg, Chris Disspain Cc: "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Agree - we are building for 5, 10 + years from now and will see new CEOs, new Boards, new community compositions, etc.
On 6/19/2015 2:51 PM, James Gannon wrote:
Very well put Keith +1.
-James
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Drazek, Keith" Date: Friday 19 June 2015 10:11 To: Roelof Meijer, Alan Greenberg, Chris Disspain Cc: "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Hi Roelof,
You believe that a future Board would never reject the community’s will. I believe it’s a possibility we need to protect against.
You’re willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable.
You’re willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.
In the spirit of consensus-building, I hope we’re able to find a way to bridge these gaps. I believe we can.
Best,
Keith
*From:*Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] *Sent:* Friday, June 19, 2015 9:57 AM *To:* Alan Greenberg; Drazek, Keith; Chris Disspain *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Keith,
I would welcome a reaction to my email?
Cheers,
Roelof
*From: *Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>> *Date: *dinsdag 16 juni 2015 04:09 *To: *Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>>, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> *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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
This tends to pretty well correlate with the position that most in the ALAC have supported.
Alan
At 15/06/2015 03:03 AM, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>>:
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards,
Keith
From: accountability-cross-community-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...> [mailto:accountability-cross-community-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...>] On Behalf Of Burr, Becky
Sent: Friday, June 12, 2015 11:07 AM
To: Roelof Meijer; Accountability Cross Community
Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3abecky.burr@n...> / http://www.neustar.biz <http://www.neustar.biz/>
From: Roelof Meijer <Roelof.Meijer@sidn.nl <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>>
Date: Friday, June 12, 2015 at 8:18 AM
To: Accountability Community <accountability-cross-community@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>>
Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
From: <Hofheimer>, "Joshua T." <jhofheimer@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>>
Date: donderdag 11 juni 2015 06:09
To: "ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>" <ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>>
Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>>
Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
JOSHUA HOFHEIMER
Sidley Austin LLP
+1.213.896.6061 (LA direct)
+1.650.565.7561 (PA direct)
+1.323.708.2405 (cell)
jhofheimer@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@s...>
http://www.sidley.com <http://www.sidley.com/>
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
SIDLEY AUSTIN LLP
From: ccwg-accountability5-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> [mailto:ccwg-accountability5-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>] On Behalf Of Hilton, Tyler
Sent: Monday, June 08, 2015 8:29 PM
To: ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>
Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
TYLER HILTON
Associate
Sidley Austin LLP
555 West Fifth Street
Los Angeles, CA 90013
+1.213.896.6130
thilton@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3athilton@sidl...>
http://www.sidley.com <http://www.sidley.com/>
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
SIDLEY AUSTIN LLP
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I'm a huge fan of checking back to see if the recommended changes brought about the desired result. I'm less of a fan of constantly reconvening to find that the recommended changes never happened. Jonathan Zuck President ACT: The App Association Www.ACTonline.org From: avri<mailto:avri@acm.org> Sent: Friday, June 19, 2015 1:34 PM To: Accountability CCWG<mailto:accountability-cross-community@icann.org> Hi, Well, With a continuation of Accountability and Transparency Review Team every 5 years, we actually to plan to come back every while to check on the health of the system and decide if something more needs to happen. The idea of future proofing ignores the fact that the future is unknown. We do out best today and keep coming back to check if something needs to be fixed. Oh course we need to do the best we can. But we don't need guarantees against futures we cannot know. So contrary to what James hope, I expect us to be back in 5 years to check and see what we got right and what we didn't get quite right. avri On 19-Jun-15 11:06, James Gannon wrote:
Yes I agree, I think our mindset needs to be doing this once and doing this well. My fear is that with some models we may face ourselves being back in 5/10 years doing Accountability version 2 as we had found that the model we went with did not end up providing the full extent of needs that the community required.
I would want a model that will give us the powers that we have identified now, and caters for ones that we have not though of right now, ones that may become apparent in 3/5/10 years from now so that we don’t need to go through this process again. A model that caters to the concepts and processes rather than just the exact powers that we are working to at the moment, and a model that will survive the test of time, and changes in the world of ICANN over the years to come.
-James
From: Matthew Shears Date: Friday 19 June 2015 11:00 To: James Gannon, "Drazek, Keith", Roelof Meijer, Alan Greenberg, Chris Disspain Cc: "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Agree - we are building for 5, 10 + years from now and will see new CEOs, new Boards, new community compositions, etc.
On 6/19/2015 2:51 PM, James Gannon wrote:
Very well put Keith +1.
-James
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Drazek, Keith" Date: Friday 19 June 2015 10:11 To: Roelof Meijer, Alan Greenberg, Chris Disspain Cc: "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Hi Roelof,
You believe that a future Board would never reject the community’s will. I believe it’s a possibility we need to protect against.
You’re willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable.
You’re willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.
In the spirit of consensus-building, I hope we’re able to find a way to bridge these gaps. I believe we can.
Best,
Keith
*From:*Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] *Sent:* Friday, June 19, 2015 9:57 AM *To:* Alan Greenberg; Drazek, Keith; Chris Disspain *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Keith,
I would welcome a reaction to my email?
Cheers,
Roelof
*From: *Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>> *Date: *dinsdag 16 juni 2015 04:09 *To: *Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>>, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> *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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
This tends to pretty well correlate with the position that most in the ALAC have supported.
Alan
At 15/06/2015 03:03 AM, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>>:
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards,
Keith
From: accountability-cross-community-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...> [mailto:accountability-cross-community-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...>] On Behalf Of Burr, Becky
Sent: Friday, June 12, 2015 11:07 AM
To: Roelof Meijer; Accountability Cross Community
Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3abecky.burr@n...> / http://www.neustar.biz <http://www.neustar.biz/>
From: Roelof Meijer <Roelof.Meijer@sidn.nl <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>>
Date: Friday, June 12, 2015 at 8:18 AM
To: Accountability Community <accountability-cross-community@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>>
Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
From: <Hofheimer>, "Joshua T." <jhofheimer@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>>
Date: donderdag 11 juni 2015 06:09
To: "ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>" <ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>>
Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>>
Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
JOSHUA HOFHEIMER
Sidley Austin LLP
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From: ccwg-accountability5-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> [mailto:ccwg-accountability5-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>] On Behalf Of Hilton, Tyler
Sent: Monday, June 08, 2015 8:29 PM
To: ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>
Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
TYLER HILTON
Associate
Sidley Austin LLP
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Los Angeles, CA 90013
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Thanks Avri. I agree with much of your assessment, with one notable exception. When the ICANN Accountability CCWG work was split into Work Stream 1 (pre-transition) and Work Stream 2 (post-transition), one of the core deliverables of Work Stream 1 was to ensure the community has the power to ensure the longer-term Work Stream 2 items could be completed and implemented. We accepted the need to bifurcate the accountability process due to the pressing timeline associated with the IANA Stewardship transition, but only agreed to do so if WS-1 guaranteed the community's ability to effect later reforms after the transition took place. Without community authority over the Board, we do not have that guarantee. Giving the community such authority would provide confidence that the continued evolution of ICANN's accountability will occur, no matter what the unknown future holds. Best, Keith -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Friday, June 19, 2015 1:34 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Hi, Well, With a continuation of Accountability and Transparency Review Team every 5 years, we actually to plan to come back every while to check on the health of the system and decide if something more needs to happen. The idea of future proofing ignores the fact that the future is unknown. We do out best today and keep coming back to check if something needs to be fixed. Oh course we need to do the best we can. But we don't need guarantees against futures we cannot know. So contrary to what James hope, I expect us to be back in 5 years to check and see what we got right and what we didn't get quite right. avri On 19-Jun-15 11:06, James Gannon wrote:
Yes I agree, I think our mindset needs to be doing this once and doing this well. My fear is that with some models we may face ourselves being back in 5/10 years doing Accountability version 2 as we had found that the model we went with did not end up providing the full extent of needs that the community required.
I would want a model that will give us the powers that we have identified now, and caters for ones that we have not though of right now, ones that may become apparent in 3/5/10 years from now so that we don't need to go through this process again. A model that caters to the concepts and processes rather than just the exact powers that we are working to at the moment, and a model that will survive the test of time, and changes in the world of ICANN over the years to come.
-James
From: Matthew Shears Date: Friday 19 June 2015 11:00 To: James Gannon, "Drazek, Keith", Roelof Meijer, Alan Greenberg, Chris Disspain Cc: "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Agree - we are building for 5, 10 + years from now and will see new CEOs, new Boards, new community compositions, etc.
On 6/19/2015 2:51 PM, James Gannon wrote:
Very well put Keith +1.
-James
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Drazek, Keith" Date: Friday 19 June 2015 10:11 To: Roelof Meijer, Alan Greenberg, Chris Disspain Cc: "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Hi Roelof,
You believe that a future Board would never reject the community's will. I believe it's a possibility we need to protect against.
You're willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable.
You're willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN's global multi-stakeholder community through its current and future SO-AC structures.
In the spirit of consensus-building, I hope we're able to find a way to bridge these gaps. I believe we can.
Best,
Keith
*From:*Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] *Sent:* Friday, June 19, 2015 9:57 AM *To:* Alan Greenberg; Drazek, Keith; Chris Disspain *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Keith,
I would welcome a reaction to my email?
Cheers,
Roelof
*From: *Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>> *Date: *dinsdag 16 juni 2015 04:09 *To: *Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>>, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> *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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
This tends to pretty well correlate with the position that most in the ALAC have supported.
Alan
At 15/06/2015 03:03 AM, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. " you're not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board "jump the track", the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Hi Paul,
I was specifically responding to Keith's point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>>:
Greetings All,
1. on Becky's comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith's comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3akdra zek@verisign.com>> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn't that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don't we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards,
Keith
From: accountability-cross-community-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aacco untability%2dcross%2dcommunity%2dbounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aacco untability%2dcross%2dcommunity%2dbounces@icann.org>] On Behalf Of Burr, Becky
Sent: Friday, June 12, 2015 11:07 AM
To: Roelof Meijer; Accountability Cross Community
Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO's are legal entities doesn't change this. Unless they are members of ICANN, they are not a party to the bylaws "contract."
B
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
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From: Roelof Meijer <Roelof.Meijer@sidn.nl <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aRoel of.Meijer@sidn.nl>>
Date: Friday, June 12, 2015 at 8:18 AM
To: Accountability Community <accountability-cross-community@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aacco untability%2dcross%2dcommunity@icann.org>>
Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC's, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions"?
Most members of SO's are legal entities, many members of AC's are too, couldn't those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses "to go". The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the "old" board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
From: <Hofheimer>, "Joshua T." <jhofheimer@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhof heimer@sidley.com>>
Date: donderdag 11 juni 2015 06:09
To: "ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>" <ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg %2daccountability5@icann.org>>
Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3asidl eyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aICAN N@adlercolvin.com>>
Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models - Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
JOSHUA HOFHEIMER
Sidley Austin LLP
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From: ccwg-accountability5-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg %2daccountability5%2dbounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg %2daccountability5%2dbounces@icann.org>] On Behalf Of Hilton, Tyler
Sent: Monday, June 08, 2015 8:29 PM
To: ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg %2daccountability5@icann.org>
Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
TYLER HILTON
Associate
Sidley Austin LLP
555 West Fifth Street
Los Angeles, CA 90013
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Hi, I believe it is unlikely, but possible. And that is why we need the ability of each SOAC to remove their director if that become the case, and for the community to remove an Nomcom Appointed Director. avri On 19-Jun-15 10:11, Drazek, Keith wrote:
Hi Roelof,
You believe that a future Board would never reject the community’s will. I believe it’s a possibility we need to protect against.
You’re willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable.
You’re willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.
In the spirit of consensus-building, I hope we’re able to find a way to bridge these gaps. I believe we can.
Best,
Keith
*From:*Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] *Sent:* Friday, June 19, 2015 9:57 AM *To:* Alan Greenberg; Drazek, Keith; Chris Disspain *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Keith,
I would welcome a reaction to my email?
Cheers,
Roelof
*From: *Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>> *Date: *dinsdag 16 juni 2015 04:09 *To: *Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>>, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> *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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
This tends to pretty well correlate with the position that most in the ALAC have supported.
Alan
At 15/06/2015 03:03 AM, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>>:
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards,
Keith
From: accountability-cross-community-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...> [mailto:accountability-cross-community-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...>] On Behalf Of Burr, Becky
Sent: Friday, June 12, 2015 11:07 AM
To: Roelof Meijer; Accountability Cross Community
Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3abecky.burr@n...> / http://www.neustar.biz <http://www.neustar.biz/>
From: Roelof Meijer <Roelof.Meijer@sidn.nl <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>>
Date: Friday, June 12, 2015 at 8:18 AM
To: Accountability Community <accountability-cross-community@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>>
Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
From: <Hofheimer>, "Joshua T." <jhofheimer@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>>
Date: donderdag 11 juni 2015 06:09
To: "ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>" <ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>>
Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>>
Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
JOSHUA HOFHEIMER
Sidley Austin LLP
+1.213.896.6061 (LA direct)
+1.650.565.7561 (PA direct)
+1.323.708.2405 (cell)
jhofheimer@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@s...>
http://www.sidley.com <http://www.sidley.com/>
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
SIDLEY AUSTIN LLP
From: ccwg-accountability5-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> [mailto:ccwg-accountability5-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>] On Behalf Of Hilton, Tyler
Sent: Monday, June 08, 2015 8:29 PM
To: ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>
Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
TYLER HILTON
Associate
Sidley Austin LLP
555 West Fifth Street
Los Angeles, CA 90013
+1.213.896.6130
thilton@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3athilton@sidl...>
http://www.sidley.com <http://www.sidley.com/>
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
SIDLEY AUSTIN LLP
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Keith, Here’s your bridge across the gap: "I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.” I fully share that belief. Where we differ is that you feel that authority will have to be legally enforceable. I belief that is unnecessary (and introduces all kinds of unwanted side effects), because it is "socially enforceable” (for lack of a better term; see my " that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely”) Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: vrijdag 19 juni 2015 15:11 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Hi Roelof, You believe that a future Board would never reject the community’s will. I believe it’s a possibility we need to protect against. You’re willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable. You’re willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures. In the spirit of consensus-building, I hope we’re able to find a way to bridge these gaps. I believe we can. Best, Keith From: Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] Sent: Friday, June 19, 2015 9:57 AM To: Alan Greenberg; Drazek, Keith; Chris Disspain Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Keith, I would welcome a reaction to my email? Cheers, Roelof From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: dinsdag 16 juni 2015 04:09 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model This tends to pretty well correlate with the position that most in the ALAC have supported. Alan At 15/06/2015 03:03 AM, Roelof Meijer wrote: Keith, I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without. I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that. Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Chris, NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change. If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself? If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision? Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG. I'm in favor of the latter. Regards, Keith On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Hi Paul, I was specifically responding to Keith’s point so hardly a non-sequitur. Cheers, Chris On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Chris We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur. Paul -- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>>: Greetings All, 1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it? 2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard? Cheers, Chris On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...> [ mailto:accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...>] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.” B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3abecky.burr@n...> / http://www.neustar.biz<http://www.neustar.biz/> From: Roelof Meijer < Roelof.Meijer@sidn.nl<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < accountability-cross-community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”? Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>> Date: donderdag 11 juni 2015 06:09 To: " ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>" < ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>> Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler < ICANN@adlercolvin.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@s...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP From: ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> [ mailto:ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3athilton@sidl...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aAccountabili...> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/1/compose?To=Accountability%2dCross%2dCommunity@i...> 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
Roelof, Exceptionally well put! Cheers, Chris
On 20 Jun 2015, at 03:38 , Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:
Keith,
Here’s your bridge across the gap:
"I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.”
I fully share that belief. Where we differ is that you feel that authority will have to be legally enforceable. I belief that is unnecessary (and introduces all kinds of unwanted side effects), because it is "socially enforceable” (for lack of a better term; see my " that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely”)
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: vrijdag 19 juni 2015 15:11 To: Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>>, Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>>, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Hi Roelof,
You believe that a future Board would never reject the community’s will. I believe it’s a possibility we need to protect against.
You’re willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable.
You’re willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.
In the spirit of consensus-building, I hope we’re able to find a way to bridge these gaps. I believe we can.
Best, Keith
From: Roelof Meijer [mailto:Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>] Sent: Friday, June 19, 2015 9:57 AM To: Alan Greenberg; Drazek, Keith; Chris Disspain Cc: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Keith,
I would welcome a reaction to my email?
Cheers,
Roelof
From: Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>> Date: dinsdag 16 juni 2015 04:09 To: Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>>, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
This tends to pretty well correlate with the position that most in the ALAC have supported.
Alan
At 15/06/2015 03:03 AM, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>>:
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards, Keith From: accountability-cross-community-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...> [ mailto:accountability-cross-community-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...>] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3abecky.burr@n...> / http://www.neustar.biz <http://www.neustar.biz/>
From: Roelof Meijer < Roelof.Meijer@sidn.nl <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < accountability-cross-community@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>> Date: donderdag 11 juni 2015 06:09 To: " ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>" < ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>> Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler < ICANN@adlercolvin.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
JOSHUA HOFHEIMER
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@s...> http://www.sidley.com <http://www.sidley.com/>
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP
From: ccwg-accountability5-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> [ mailto:ccwg-accountability5-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
TYLER HILTON Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3athilton@sidl...> http://www.sidley.com <http://www.sidley.com/>
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP
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+1, but also a question for you Roelof: The unintended side effects you mention - are they the ones associated with the well-canvassed concerns around UAs, or do they go more broadly to the allocation of authority beyond the Board of directors? Or something else? Is it something you've teased out in a previous note? cheers Jordan On 19 June 2015 at 14:44, Chris Disspain <ceo@auda.org.au> wrote:
Roelof,
Exceptionally well put!
Cheers,
Chris
On 20 Jun 2015, at 03:38 , Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:
Keith,
Here’s your bridge across the gap:
"I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures. ”
I fully share that belief. Where we differ is that you feel that authority will have to be legally enforceable. I belief that is unnecessary (and introduces all kinds of unwanted side effects), because it is "socially enforceable” (for lack of a better term; see my " that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely”)
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com> Date: vrijdag 19 juni 2015 15:11 To: Roelof Meijer <roelof.meijer@sidn.nl>, Alan Greenberg < alan.greenberg@mcgill.ca>, Chris Disspain <ceo@auda.org.au> Cc: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Hi Roelof,
You believe that a future Board would never reject the community’s will. I believe it’s a possibility we need to protect against.
You’re willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable.
You’re willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.
In the spirit of consensus-building, I hope we’re able to find a way to bridge these gaps. I believe we can.
Best, Keith
*From:* Roelof Meijer [mailto:Roelof.Meijer@sidn.nl <Roelof.Meijer@sidn.nl>] *Sent:* Friday, June 19, 2015 9:57 AM *To:* Alan Greenberg; Drazek, Keith; Chris Disspain *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Keith,
I would welcome a reaction to my email?
Cheers,
Roelof
*From: *Alan Greenberg <alan.greenberg@mcgill.ca> *Date: *dinsdag 16 juni 2015 04:09 *To: *Roelof Meijer <roelof.meijer@sidn.nl>, Keith Drazek < kdrazek@verisign.com>, Chris Disspain <ceo@auda.org.au> *Cc: *"accountability-cross-community@icann.org" < accountability-cross-community@icann.org> *Subject: *Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
This tends to pretty well correlate with the position that most in the ALAC have supported.
Alan
At 15/06/2015 03:03 AM, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au> Cc: " accountability-cross-community@icann.org <accountability-cross-community@icann.org>" < accountability-cross-community@icann.org <accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au> wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com <paul.rosenzweig@redbranchconsulting.com>> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au
:
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: accountability-cross-community-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...> [ mailto:accountability-cross-community-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...>] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3abecky.burr@n...> / http://www.neustar.biz
From: Roelof Meijer < Roelof.Meijer@sidn.nl <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meije...>
Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < accountability-cross-community@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...>
Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@s...>
Date: donderdag 11 juni 2015 06:09 To: " ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>" < ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>
Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler < ICANN@adlercolvin.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aICANN@adlerc...>
Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@s...> http://www.sidley.com
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP
From: ccwg-accountability5-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> [ mailto:ccwg-accountability5-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
TYLER HILTON
Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3athilton@sidl...> http://www.sidley.com
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us
immediately.
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-- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter *A better world through a better Internet *
Jordan, I am not sure if all concerns are “well canvassed” already, but I am not adding any (or hiding now to spring on you later) new ones Cheers, Roelof From: Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Date: vrijdag 19 juni 2015 19:50 To: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> Cc: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, "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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model +1, but also a question for you Roelof: The unintended side effects you mention - are they the ones associated with the well-canvassed concerns around UAs, or do they go more broadly to the allocation of authority beyond the Board of directors? Or something else? Is it something you've teased out in a previous note? cheers Jordan On 19 June 2015 at 14:44, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Roelof, Exceptionally well put! Cheers, Chris On 20 Jun 2015, at 03:38 , Roelof Meijer <Roelof.Meijer@sidn.nl<mailto:Roelof.Meijer@sidn.nl>> wrote: Keith, Here’s your bridge across the gap: "I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.” I fully share that belief. Where we differ is that you feel that authority will have to be legally enforceable. I belief that is unnecessary (and introduces all kinds of unwanted side effects), because it is "socially enforceable” (for lack of a better term; see my " that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely”) Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: vrijdag 19 juni 2015 15:11 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Hi Roelof, You believe that a future Board would never reject the community’s will. I believe it’s a possibility we need to protect against. You’re willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable. You’re willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures. In the spirit of consensus-building, I hope we’re able to find a way to bridge these gaps. I believe we can. Best, Keith From: Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] Sent: Friday, June 19, 2015 9:57 AM To: Alan Greenberg; Drazek, Keith; Chris Disspain Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Keith, I would welcome a reaction to my email? Cheers, Roelof From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: dinsdag 16 juni 2015 04:09 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model This tends to pretty well correlate with the position that most in the ALAC have supported. Alan At 15/06/2015 03:03 AM, Roelof Meijer wrote: Keith, I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without. I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that. Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Chris, NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change. If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself? If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision? Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG. I'm in favor of the latter. Regards, Keith On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Hi Paul, I was specifically responding to Keith’s point so hardly a non-sequitur. Cheers, Chris On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Chris We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur. Paul -- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>>: Greetings All, 1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it? 2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard? Cheers, Chris On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...> [ mailto:accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...>] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.” B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932<tel:%2B%201.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / becky.burr@neustar.biz<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3abecky.burr@n...> / http://www.neustar.biz<http://www.neustar.biz/> From: Roelof Meijer < Roelof.Meijer@sidn.nl<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < accountability-cross-community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”? Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>> Date: donderdag 11 juni 2015 06:09 To: " ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>" < ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>> Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler < ICANN@adlercolvin.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061<tel:%2B1.213.896.6061> (LA direct) +1.650.565.7561<tel:%2B1.650.565.7561> (PA direct) +1.323.708.2405<tel:%2B1.323.708.2405> (cell) jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@s...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP From: ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> [ mailto:ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130<tel:%2B1.213.896.6130> thilton@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3athilton@sidl...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aAccountabili...> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/1/compose?To=Accountability%2dCross%2dCommunity@i...> 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 _______________________________________________ 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 -- Jordan Carter Chief Executive InternetNZ 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter A better world through a better Internet
If only ICANN history bore this out. It's one thing to assert this notion of “social accountability" and it is another to document it. ICANN as an institution has systematically resisted real accountability for years and no amount of “social shaming" (at the public forum for example) has made a bit of a difference. The ONLY instances of real movement (however minor) towards accountability have been with the resistance of the organization and in the context of the role played by the USG. As I mentioned this morning, the two instances have been the AoC in 2009 and the current expiration of the IANA functions contract. Every other effort at accountability (and I don't just mean opportunities to advise), has led nowhere. “Social enforcement" has been an unmitigated failure. Jonathan Zuck President ACT: The App Association Www.ACTonline.org From: Chris Disspain<mailto:ceo@auda.org.au> Sent: Friday, June 19, 2015 2:44 PM To: Roelof Meijer<mailto:Roelof.Meijer@sidn.nl> Cc: Accountability CCWG<mailto:accountability-cross-community@icann.org> Roelof, Exceptionally well put! Cheers, Chris On 20 Jun 2015, at 03:38 , Roelof Meijer <Roelof.Meijer@sidn.nl<mailto:Roelof.Meijer@sidn.nl>> wrote: Keith, Here’s your bridge across the gap: "I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.” I fully share that belief. Where we differ is that you feel that authority will have to be legally enforceable. I belief that is unnecessary (and introduces all kinds of unwanted side effects), because it is "socially enforceable” (for lack of a better term; see my " that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely”) Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: vrijdag 19 juni 2015 15:11 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Hi Roelof, You believe that a future Board would never reject the community’s will. I believe it’s a possibility we need to protect against. You’re willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable. You’re willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures. In the spirit of consensus-building, I hope we’re able to find a way to bridge these gaps. I believe we can. Best, Keith From: Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] Sent: Friday, June 19, 2015 9:57 AM To: Alan Greenberg; Drazek, Keith; Chris Disspain Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Keith, I would welcome a reaction to my email? Cheers, Roelof From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: dinsdag 16 juni 2015 04:09 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model This tends to pretty well correlate with the position that most in the ALAC have supported. Alan At 15/06/2015 03:03 AM, Roelof Meijer wrote: Keith, I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without. I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that. Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Chris, NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change. If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself? If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision? Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG. I'm in favor of the latter. Regards, Keith On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Hi Paul, I was specifically responding to Keith’s point so hardly a non-sequitur. Cheers, Chris On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Chris We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur. Paul -- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>>: Greetings All, 1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it? 2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard? Cheers, Chris On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:kdrazek%40verisign.com>> wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:accountability...> [ mailto:accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:accountability...>] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.” B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:becky.burr%40n...> / http://www.neustar.biz<http://www.neustar.biz/> From: Roelof Meijer < Roelof.Meijer@sidn.nl<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:Roelof.Meijer%40sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < accountability-cross-community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:accountability-cross-community%40icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”? Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:jhofheimer%40sidley.com>> Date: donderdag 11 juni 2015 06:09 To: " ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...>" < ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountability5%40icann.org>> Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:sidleyicannccwg%40sidley.com>>, ICANN-Adler < ICANN@adlercolvin.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ICANN%40adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:jhofheimer%40s...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP From: ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...> [ mailto:ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:thilton%40sidl...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:Accountability...> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/1/compose?To=Accountability-Cross-Community%40ica...> 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
Irrespective of the history, it would be utterly irresponsible of us to devolve responsibility for a resource that is fundamentally critical to the global economy and the global public interest to an organization which would be held to account only by an indefinite sense of social responsibility. That would be both tragic and deeply flawed. Indeed, relying on social controls to govern behaviour is the very antithesis of accountability and, therefore, a deriliction of our duty. Paul -- Sent from myMail app for Android Friday, 19 June 2015, 01:57PM -04:00 from Jonathan Zuck < JZuck@actonline.org> :
If only ICANN history bore this out. It's one thing to assert this notion of “social accountability" and it is another to document it. ICANN as an institution has systematically resisted real accountability for years and no amount of “social shaming" (at the public forum for example) has made a bit of a difference. The ONLY instances of real movement (however minor) towards accountability have been with the resistance of the organization and in the context of the role played by the USG. As I mentioned this morning, the two instances have been the AoC in 2009 and the current expiration of the IANA functions contract.
Every other effort at accountability (and I don't just mean opportunities to advise), has led nowhere. “Social enforcement" has been an unmitigated failure.
Jonathan Zuck President ACT: The App Association Www.ACTonline.org
From: Chris Disspain Sent: Friday, June 19, 2015 2:44 PM To: Roelof Meijer Cc: Accountability CCWG
Roelof,
Exceptionally well put!
Cheers,
Chris
On 20 Jun 2015, at 03:38 , Roelof Meijer < Roelof.Meijer@sidn.nl > wrote: Keith,
Here’s your bridge across the gap:
" I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures. ”
I fully share that belief. Where we differ is that you feel that authority will have to be legally enforceable. I belief that is unnecessary (and introduces all kinds of unwanted side effects), because it is "socially enforceable ” (for lack of a better term; see my " that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely”)
Best,
Roelof
From: <Drazek>, Keith Drazek < kdrazek@verisign.com > Date: vrijdag 19 juni 2015 15:11 To: Roelof Meijer < roelof.meijer@sidn.nl >, Alan Greenberg < alan.greenberg@mcgill.ca >, Chris Disspain < ceo@auda.org.au > Cc: " accountability-cross-community@icann.org " < accountability-cross-community@icann.org > Subject: RE: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Hi Roelof, You believe that a future Board would never reject the community’s will. I believe it’s a possibility we need to protect against. You’re willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable. You’re willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures. In the spirit of consensus-building, I hope we’re able to find a way to bridge these gaps. I believe we can. Best, Keith From: Roelof Meijer [ mailto:Roelof.Meijer@sidn.nl ] Sent: Friday, June 19, 2015 9:57 AM To: Alan Greenberg; Drazek, Keith; Chris Disspain Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Keith, I would welcome a reaction to my email? Cheers, Roelof From: Alan Greenberg < alan.greenberg@mcgill.ca > Date: dinsdag 16 juni 2015 04:09 To: Roelof Meijer < roelof.meijer@sidn.nl >, Keith Drazek < kdrazek@verisign.com >, Chris Disspain < ceo@auda.org.au > Cc: " accountability-cross-community@icann.org " < accountability-cross-community@icann.org > Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model This tends to pretty well correlate with the position that most in the ALAC have supported.
Alan
At 15/06/2015 03:03 AM, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek < kdrazek@verisign.com > Date: zondag 14 juni 2015 03:52 To: Chris Disspain < ceo@auda.org.au > Cc: " accountability-cross-community@icann.org " < accountability-cross-community@icann.org > Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain < ceo@auda.org.au > wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com > wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain < ceo@auda.org.au >: Greetings All, 1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it? 2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com > wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org ] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.” B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / http://www.neustar.biz From: Roelof Meijer < Roelof.Meijer@sidn.nl > Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < accountability-cross-community@icann.org > Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”? Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com > Date: donderdag 11 juni 2015 06:09 To: " ccwg-accountability5@icann.org " < ccwg-accountability5@icann.org > Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com >, ICANN-Adler < ICANN@adlercolvin.com > Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com http://www.sidley.com
SIDLEY AUSTIN LLP From: ccwg-accountability5-bounces@icann.org [ mailto:ccwg-accountability5-bounces@icann.org ] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com http://www.sidley.com
SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ 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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ICANN as an institution has systematically resisted real accountability for years
It is one thing to assert this and another to document it. Cheers, Chris
On 20 Jun 2015, at 03:57 , Jonathan Zuck <JZuck@actonline.org> wrote:
If only ICANN history bore this out. It's one thing to assert this notion of “social accountability" and it is another to document it. ICANN as an institution has systematically resisted real accountability for years and no amount of “social shaming" (at the public forum for example) has made a bit of a difference. The ONLY instances of real movement (however minor) towards accountability have been with the resistance of the organization and in the context of the role played by the USG. As I mentioned this morning, the two instances have been the AoC in 2009 and the current expiration of the IANA functions contract.
Every other effort at accountability (and I don't just mean opportunities to advise), has led nowhere. “Social enforcement" has been an unmitigated failure.
Jonathan Zuck President ACT: The App Association Www.ACTonline.org <http://www.actonline.org/>
From: Chris Disspain <mailto:ceo@auda.org.au> Sent: Friday, June 19, 2015 2:44 PM To: Roelof Meijer <mailto:Roelof.Meijer@sidn.nl> Cc: Accountability CCWG <mailto:accountability-cross-community@icann.org>
Roelof,
Exceptionally well put!
Cheers,
Chris
On 20 Jun 2015, at 03:38 , Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> wrote:
Keith,
Here’s your bridge across the gap:
"I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.”
I fully share that belief. Where we differ is that you feel that authority will have to be legally enforceable. I belief that is unnecessary (and introduces all kinds of unwanted side effects), because it is "socially enforceable” (for lack of a better term; see my " that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely”)
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: vrijdag 19 juni 2015 15:11 To: Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>>, Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>>, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Hi Roelof,
You believe that a future Board would never reject the community’s will. I believe it’s a possibility we need to protect against.
You’re willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable.
You’re willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.
In the spirit of consensus-building, I hope we’re able to find a way to bridge these gaps. I believe we can.
Best, Keith
From: Roelof Meijer [mailto:Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>] Sent: Friday, June 19, 2015 9:57 AM To: Alan Greenberg; Drazek, Keith; Chris Disspain Cc: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Keith,
I would welcome a reaction to my email?
Cheers,
Roelof
From: Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>> Date: dinsdag 16 juni 2015 04:09 To: Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>>, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
This tends to pretty well correlate with the position that most in the ALAC have supported.
Alan
At 15/06/2015 03:03 AM, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>>:
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:kdrazek%40verisign.com>> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards, Keith From: accountability-cross-community-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:accountability...> [ mailto:accountability-cross-community-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:accountability...>] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:becky.burr%40n...> / http://www.neustar.biz <http://www.neustar.biz/>
From: Roelof Meijer < Roelof.Meijer@sidn.nl <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:Roelof.Meijer%40sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < accountability-cross-community@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:accountability-cross-community%40icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:jhofheimer%40sidley.com>> Date: donderdag 11 juni 2015 06:09 To: " ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...>" < ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountability5%40icann.org>> Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:sidleyicannccwg%40sidley.com>>, ICANN-Adler < ICANN@adlercolvin.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ICANN%40adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
JOSHUA HOFHEIMER
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:jhofheimer%40s...> http://www.sidley.com <http://www.sidley.com/>
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP
From: ccwg-accountability5-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...> [ mailto:ccwg-accountability5-bounces@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
TYLER HILTON Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:thilton%40sidl...> http://www.sidley.com <http://www.sidley.com/>
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP
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On 19/06/2015 19:14, Chris Disspain wrote:
ICANN as an institution has systematically resisted real accountability for years
It is one thing to assert this and another to document it.
Well, not strictly an ICANN view, but closely associated with a key ICANN leader, there's this: http://forum.icann.org/lists/comments-ccwg-accountability-draft-proposal-04m... -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Sigh. Okay. 1. Failed thus far to develop binding accountability mechanisms. 2. Failed to adhere to policies around publication of documents prior to meetings. 3. Failed to prevent decision making prior to termination of comment periods. 4. Developed no standard for review during the previous attempt at accountability reform (2006?) 5. Failed to develop public metrics to hold ICANN institutions to account (such as contract compliance) 6. Failed to listen to community consensus on singular/plural and controlled the outcome of the redress mechanisms through overly narrow mandate. 7. Pushed ahead with new gTLD program despite a lack of operational readiness, again without consequences. 8. Launched a staff lead review of the new gTLD program prior to any input from the community. 9. Scheduled new round of applications (at least initially) prior to scheduled reviews. 10. Failed to reign in the Net Mundial initiative despite community objection or specify any consequences for secret board resolutions, etc. 11. Accepted the GC advice to protect the corporation instead of the public interest. 12. Weakened rather than strengthened the IRP. 13. Allowed staff to unilaterally change community agreement on registry agreements and imposed the unilateral right to amend registry agreements. 14. Failed to implement half of the ATRT1 recommendations, again without consequences. 15. Supported the practice of passing off all responsibility to third parties so ICANN has no risk. (.SUCKS is the latest example) 16. First attempted to prevent an accountability component to the IANA transition and then tried to control it, insert experts, etc. rather than trusting the community to organize itself. Just a few thoughts off the top of my head. Your turn. Jonathan Zuck President ACT: The App Association Www.ACTonline.org From: Chris Disspain<mailto:ceo@auda.org.au> Sent: Friday, June 19, 2015 3:15 PM To: Jonathan Internal Zyck<mailto:JZuck@actonline.org> Cc: Accountability CCWG<mailto:accountability-cross-community@icann.org> ICANN as an institution has systematically resisted real accountability for years It is one thing to assert this and another to document it. Cheers, Chris On 20 Jun 2015, at 03:57 , Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: If only ICANN history bore this out. It's one thing to assert this notion of “social accountability" and it is another to document it. ICANN as an institution has systematically resisted real accountability for years and no amount of “social shaming" (at the public forum for example) has made a bit of a difference. The ONLY instances of real movement (however minor) towards accountability have been with the resistance of the organization and in the context of the role played by the USG. As I mentioned this morning, the two instances have been the AoC in 2009 and the current expiration of the IANA functions contract. Every other effort at accountability (and I don't just mean opportunities to advise), has led nowhere. “Social enforcement" has been an unmitigated failure. Jonathan Zuck President ACT: The App Association Www.ACTonline.org<http://www.actonline.org/> From: Chris Disspain<mailto:ceo@auda.org.au> Sent: Friday, June 19, 2015 2:44 PM To: Roelof Meijer<mailto:Roelof.Meijer@sidn.nl> Cc: Accountability CCWG<mailto:accountability-cross-community@icann.org> Roelof, Exceptionally well put! Cheers, Chris On 20 Jun 2015, at 03:38 , Roelof Meijer <Roelof.Meijer@sidn.nl<mailto:Roelof.Meijer@sidn.nl>> wrote: Keith, Here’s your bridge across the gap: "I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.” I fully share that belief. Where we differ is that you feel that authority will have to be legally enforceable. I belief that is unnecessary (and introduces all kinds of unwanted side effects), because it is "socially enforceable” (for lack of a better term; see my " that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely”) Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: vrijdag 19 juni 2015 15:11 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Hi Roelof, You believe that a future Board would never reject the community’s will. I believe it’s a possibility we need to protect against. You’re willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable. You’re willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures. In the spirit of consensus-building, I hope we’re able to find a way to bridge these gaps. I believe we can. Best, Keith From: Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] Sent: Friday, June 19, 2015 9:57 AM To: Alan Greenberg; Drazek, Keith; Chris Disspain Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Keith, I would welcome a reaction to my email? Cheers, Roelof From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: dinsdag 16 juni 2015 04:09 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model This tends to pretty well correlate with the position that most in the ALAC have supported. Alan At 15/06/2015 03:03 AM, Roelof Meijer wrote: Keith, I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without. I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that. Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Chris, NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change. If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself? If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision? Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG. I'm in favor of the latter. Regards, Keith On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Hi Paul, I was specifically responding to Keith’s point so hardly a non-sequitur. Cheers, Chris On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Chris We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur. Paul -- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>>: Greetings All, 1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it? 2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard? Cheers, Chris On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:kdrazek%40verisign.com>> wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:accountability...> [ mailto:accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:accountability...>] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.” B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:becky.burr%40n...> / http://www.neustar.biz<http://www.neustar.biz/> From: Roelof Meijer < Roelof.Meijer@sidn.nl<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:Roelof.Meijer%40sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < accountability-cross-community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:accountability-cross-community%40icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”? Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:jhofheimer%40sidley.com>> Date: donderdag 11 juni 2015 06:09 To: " ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...>" < ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountability5%40icann.org>> Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:sidleyicannccwg%40sidley.com>>, ICANN-Adler < ICANN@adlercolvin.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ICANN%40adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:jhofheimer%40s...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP From: ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...> [ mailto:ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:thilton%40sidl...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:Accountability...> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/1/compose?To=Accountability-Cross-Community%40ica...> 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
Dear Ch-Chairs, not that I disagree, but does this not conflict with the "modest proposal" ventilated by same on 2015-04-31? greetings, el -- Sent from Dr Lisse's iPhone 5s
On Jun 19, 2015, at 15:48, Jonathan Zuck <JZuck@actonline.org> wrote:
Sigh. Okay. Failed thus far to develop binding accountability mechanisms. Failed to adhere to policies around publication of documents prior to meetings. Failed to prevent decision making prior to termination of comment periods. Developed no standard for review during the previous attempt at accountability reform (2006?) Failed to develop public metrics to hold ICANN institutions to account (such as contract compliance) Failed to listen to community consensus on singular/plural and controlled the outcome of the redress mechanisms through overly narrow mandate. Pushed ahead with new gTLD program despite a lack of operational readiness, again without consequences. Launched a staff lead review of the new gTLD program prior to any input from the community. Scheduled new round of applications (at least initially) prior to scheduled reviews. Failed to reign in the Net Mundial initiative despite community objection or specify any consequences for secret board resolutions, etc. Accepted the GC advice to protect the corporation instead of the public interest. Weakened rather than strengthened the IRP. Allowed staff to unilaterally change community agreement on registry agreements and imposed the unilateral right to amend registry agreements. Failed to implement half of the ATRT1 recommendations, again without consequences. Supported the practice of passing off all responsibility to third parties so ICANN has no risk. (.SUCKS is the latest example) First attempted to prevent an accountability component to the IANA transition and then tried to control it, insert experts, etc. rather than trusting the community to organize itself.
Just a few thoughts off the top of my head. Your turn.
Jonathan Zuck President ACT: The App Association Www.ACTonline.org
From: Chris Disspain Sent: Friday, June 19, 2015 3:15 PM To: Jonathan Internal Zyck Cc: Accountability CCWG
ICANN as an institution has systematically resisted real accountability for years
It is one thing to assert this and another to document it.
Cheers,
Chris
On 20 Jun 2015, at 03:57 , Jonathan Zuck <JZuck@actonline.org> wrote:
If only ICANN history bore this out. It's one thing to assert this notion of “social accountability" and it is another to document it. ICANN as an institution has systematically resisted real accountability for years and no amount of “social shaming" (at the public forum for example) has made a bit of a difference. The ONLY instances of real movement (however minor) towards accountability have been with the resistance of the organization and in the context of the role played by the USG. As I mentioned this morning, the two instances have been the AoC in 2009 and the current expiration of the IANA functions contract.
Every other effort at accountability (and I don't just mean opportunities to advise), has led nowhere. “Social enforcement" has been an unmitigated failure.
Jonathan Zuck President ACT: The App Association Www.ACTonline.org
From: Chris Disspain Sent: Friday, June 19, 2015 2:44 PM To: Roelof Meijer Cc: Accountability CCWG
Roelof,
Exceptionally well put!
Cheers,
Chris
On 20 Jun 2015, at 03:38 , Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:
Keith,
Here’s your bridge across the gap:
"I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.”
I fully share that belief. Where we differ is that you feel that authority will have to be legally enforceable. I belief that is unnecessary (and introduces all kinds of unwanted side effects), because it is "socially enforceable” (for lack of a better term; see my " that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely”)
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com> Date: vrijdag 19 juni 2015 15:11 To: Roelof Meijer <roelof.meijer@sidn.nl>, Alan Greenberg <alan.greenberg@mcgill.ca>, Chris Disspain <ceo@auda.org.au> Cc: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Hi Roelof,
You believe that a future Board would never reject the community’s will. I believe it’s a possibility we need to protect against.
You’re willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable.
You’re willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.
In the spirit of consensus-building, I hope we’re able to find a way to bridge these gaps. I believe we can.
Best, Keith
From: Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] Sent: Friday, June 19, 2015 9:57 AM To: Alan Greenberg; Drazek, Keith; Chris Disspain Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Keith,
I would welcome a reaction to my email?
Cheers,
Roelof
From: Alan Greenberg <alan.greenberg@mcgill.ca> Date: dinsdag 16 juni 2015 04:09 To: Roelof Meijer <roelof.meijer@sidn.nl>, Keith Drazek <kdrazek@verisign.com>, Chris Disspain <ceo@auda.org.au> Cc: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
This tends to pretty well correlate with the position that most in the ALAC have supported.
Alan
At 15/06/2015 03:03 AM, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au> Cc: " accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au> wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au>:
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards, Keith From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / http://www.neustar.biz
From: Roelof Meijer < Roelof.Meijer@sidn.nl> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < accountability-cross-community@icann.org> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com> Date: donderdag 11 juni 2015 06:09 To: " ccwg-accountability5@icann.org" < ccwg-accountability5@icann.org> Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com>, ICANN-Adler < ICANN@adlercolvin.com> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
JOSHUA HOFHEIMER
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com http://www.sidley.com
SIDLEY AUSTIN LLP
From: ccwg-accountability5-bounces@icann.org [ mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
TYLER HILTON Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com http://www.sidley.com
SIDLEY AUSTIN LLP
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Yes it does. I apologize. I was challenging the efficacy of a proposed accountability mechanism and was asked to support my argument. I probably should have ignored what was likely a rhetorical request but I didn't. Sent from my Windows Phone ________________________________ From: Dr Eberhard W Lisse<mailto:epilisse@gmail.com> Sent: 6/19/2015 5:28 PM To: CCWG Accountability<mailto:accountability-cross-community@icann.org> Cc: Lisse Eberhard<mailto:directors@omadhina.NET> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Ch-Chairs, not that I disagree, but does this not conflict with the "modest proposal" ventilated by same on 2015-04-31? greetings, el -- Sent from Dr Lisse's iPhone 5s On Jun 19, 2015, at 15:48, Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: Sigh. Okay. 1. Failed thus far to develop binding accountability mechanisms. 2. Failed to adhere to policies around publication of documents prior to meetings. 3. Failed to prevent decision making prior to termination of comment periods. 4. Developed no standard for review during the previous attempt at accountability reform (2006?) 5. Failed to develop public metrics to hold ICANN institutions to account (such as contract compliance) 6. Failed to listen to community consensus on singular/plural and controlled the outcome of the redress mechanisms through overly narrow mandate. 7. Pushed ahead with new gTLD program despite a lack of operational readiness, again without consequences. 8. Launched a staff lead review of the new gTLD program prior to any input from the community. 9. Scheduled new round of applications (at least initially) prior to scheduled reviews. 10. Failed to reign in the Net Mundial initiative despite community objection or specify any consequences for secret board resolutions, etc. 11. Accepted the GC advice to protect the corporation instead of the public interest. 12. Weakened rather than strengthened the IRP. 13. Allowed staff to unilaterally change community agreement on registry agreements and imposed the unilateral right to amend registry agreements. 14. Failed to implement half of the ATRT1 recommendations, again without consequences. 15. Supported the practice of passing off all responsibility to third parties so ICANN has no risk. (.SUCKS is the latest example) 16. First attempted to prevent an accountability component to the IANA transition and then tried to control it, insert experts, etc. rather than trusting the community to organize itself. Just a few thoughts off the top of my head. Your turn. Jonathan Zuck President ACT: The App Association Www.ACTonline.org<http://Www.ACTonline.org> From: Chris Disspain<mailto:ceo@auda.org.au> Sent: Friday, June 19, 2015 3:15 PM To: Jonathan Internal Zyck<mailto:JZuck@actonline.org> Cc: Accountability CCWG<mailto:accountability-cross-community@icann.org> ICANN as an institution has systematically resisted real accountability for years It is one thing to assert this and another to document it. Cheers, Chris On 20 Jun 2015, at 03:57 , Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: If only ICANN history bore this out. It's one thing to assert this notion of “social accountability" and it is another to document it. ICANN as an institution has systematically resisted real accountability for years and no amount of “social shaming" (at the public forum for example) has made a bit of a difference. The ONLY instances of real movement (however minor) towards accountability have been with the resistance of the organization and in the context of the role played by the USG. As I mentioned this morning, the two instances have been the AoC in 2009 and the current expiration of the IANA functions contract. Every other effort at accountability (and I don't just mean opportunities to advise), has led nowhere. “Social enforcement" has been an unmitigated failure. Jonathan Zuck President ACT: The App Association Www.ACTonline.org<http://www.actonline.org/> From: Chris Disspain<mailto:ceo@auda.org.au> Sent: Friday, June 19, 2015 2:44 PM To: Roelof Meijer<mailto:Roelof.Meijer@sidn.nl> Cc: Accountability CCWG<mailto:accountability-cross-community@icann.org> Roelof, Exceptionally well put! Cheers, Chris On 20 Jun 2015, at 03:38 , Roelof Meijer <Roelof.Meijer@sidn.nl<mailto:Roelof.Meijer@sidn.nl>> wrote: Keith, Here’s your bridge across the gap: "I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.” I fully share that belief. Where we differ is that you feel that authority will have to be legally enforceable. I belief that is unnecessary (and introduces all kinds of unwanted side effects), because it is "socially enforceable” (for lack of a better term; see my " that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely”) Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: vrijdag 19 juni 2015 15:11 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Hi Roelof, You believe that a future Board would never reject the community’s will. I believe it’s a possibility we need to protect against. You’re willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable. You’re willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures. In the spirit of consensus-building, I hope we’re able to find a way to bridge these gaps. I believe we can. Best, Keith From: Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] Sent: Friday, June 19, 2015 9:57 AM To: Alan Greenberg; Drazek, Keith; Chris Disspain Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Keith, I would welcome a reaction to my email? Cheers, Roelof From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: dinsdag 16 juni 2015 04:09 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model This tends to pretty well correlate with the position that most in the ALAC have supported. Alan At 15/06/2015 03:03 AM, Roelof Meijer wrote: Keith, I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without. I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that. Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Chris, NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change. If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself? If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision? Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG. I'm in favor of the latter. Regards, Keith On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Hi Paul, I was specifically responding to Keith’s point so hardly a non-sequitur. Cheers, Chris On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Chris We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur. Paul -- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>>: Greetings All, 1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it? 2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard? Cheers, Chris On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:kdrazek%40verisign.com>> wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:accountability...> [ mailto:accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:accountability...>] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.” B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:becky.burr%40n...> / http://www.neustar.biz<http://www.neustar.biz/> From: Roelof Meijer < Roelof.Meijer@sidn.nl<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:Roelof.Meijer%40sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < accountability-cross-community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:accountability-cross-community%40icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”? Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:jhofheimer%40sidley.com>> Date: donderdag 11 juni 2015 06:09 To: " ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...>" < ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountability5%40icann.org>> Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:sidleyicannccwg%40sidley.com>>, ICANN-Adler < ICANN@adlercolvin.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ICANN%40adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:jhofheimer%40s...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP From: ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...> [ mailto:ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:thilton%40sidl...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:Accountability...> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/1/compose?To=Accountability-Cross-Community%40ica...> 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 _______________________________________________ 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
ROTLPIMPHMSBAH el -- Sent from Dr Lisse's iPad mini
On Jun 19, 2015, at 17:35, Jonathan Zuck <JZuck@actonline.org> wrote:
Yes it does. I apologize. I was challenging the efficacy of a proposed accountability mechanism and was asked to support my argument. I probably should have ignored what was likely a rhetorical request but I didn't.
Sent from my Windows Phone From: Dr Eberhard W Lisse Sent: 6/19/2015 5:28 PM To: CCWG Accountability Cc: Lisse Eberhard Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Ch-Chairs,
not that I disagree, but does this not conflict with the "modest proposal" ventilated by same on 2015-04-31?
greetings, el
-- Sent from Dr Lisse's iPhone 5s
On Jun 19, 2015, at 15:48, Jonathan Zuck <JZuck@actonline.org> wrote:
Sigh. Okay. Failed thus far to develop binding accountability mechanisms. Failed to adhere to policies around publication of documents prior to meetings. Failed to prevent decision making prior to termination of comment periods. Developed no standard for review during the previous attempt at accountability reform (2006?) Failed to develop public metrics to hold ICANN institutions to account (such as contract compliance) Failed to listen to community consensus on singular/plural and controlled the outcome of the redress mechanisms through overly narrow mandate. Pushed ahead with new gTLD program despite a lack of operational readiness, again without consequences. Launched a staff lead review of the new gTLD program prior to any input from the community. Scheduled new round of applications (at least initially) prior to scheduled reviews. Failed to reign in the Net Mundial initiative despite community objection or specify any consequences for secret board resolutions, etc. Accepted the GC advice to protect the corporation instead of the public interest. Weakened rather than strengthened the IRP. Allowed staff to unilaterally change community agreement on registry agreements and imposed the unilateral right to amend registry agreements. Failed to implement half of the ATRT1 recommendations, again without consequences. Supported the practice of passing off all responsibility to third parties so ICANN has no risk. (.SUCKS is the latest example) First attempted to prevent an accountability component to the IANA transition and then tried to control it, insert experts, etc. rather than trusting the community to organize itself.
Just a few thoughts off the top of my head. Your turn.
Jonathan Zuck President ACT: The App Association Www.ACTonline.org
[...]
Dear Co-Chairs, Please inform our colleague that he appears to have sat on his device. Regards, Keith On Jun 19, 2015, at 7:02 PM, Dr Eberhard W Lisse <el@lisse.na<mailto:el@lisse.na>> wrote: ROTLPIMPHMSBAH el -- Sent from Dr Lisse's iPad mini On Jun 19, 2015, at 17:35, Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: Yes it does. I apologize. I was challenging the efficacy of a proposed accountability mechanism and was asked to support my argument. I probably should have ignored what was likely a rhetorical request but I didn't. Sent from my Windows Phone ________________________________ From: Dr Eberhard W Lisse<mailto:epilisse@gmail.com> Sent: 6/19/2015 5:28 PM To: CCWG Accountability<mailto:accountability-cross-community@icann.org> Cc: Lisse Eberhard<mailto:directors@omadhina.NET> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Ch-Chairs, not that I disagree, but does this not conflict with the "modest proposal" ventilated by same on 2015-04-31? greetings, el -- Sent from Dr Lisse's iPhone 5s On Jun 19, 2015, at 15:48, Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> wrote: Sigh. Okay. 1. Failed thus far to develop binding accountability mechanisms. 2. Failed to adhere to policies around publication of documents prior to meetings. 3. Failed to prevent decision making prior to termination of comment periods. 4. Developed no standard for review during the previous attempt at accountability reform (2006?) 5. Failed to develop public metrics to hold ICANN institutions to account (such as contract compliance) 6. Failed to listen to community consensus on singular/plural and controlled the outcome of the redress mechanisms through overly narrow mandate. 7. Pushed ahead with new gTLD program despite a lack of operational readiness, again without consequences. 8. Launched a staff lead review of the new gTLD program prior to any input from the community. 9. Scheduled new round of applications (at least initially) prior to scheduled reviews. 10. Failed to reign in the Net Mundial initiative despite community objection or specify any consequences for secret board resolutions, etc. 11. Accepted the GC advice to protect the corporation instead of the public interest. 12. Weakened rather than strengthened the IRP. 13. Allowed staff to unilaterally change community agreement on registry agreements and imposed the unilateral right to amend registry agreements. 14. Failed to implement half of the ATRT1 recommendations, again without consequences. 15. Supported the practice of passing off all responsibility to third parties so ICANN has no risk. (.SUCKS is the latest example) 16. First attempted to prevent an accountability component to the IANA transition and then tried to control it, insert experts, etc. rather than trusting the community to organize itself. Just a few thoughts off the top of my head. Your turn. Jonathan Zuck President ACT: The App Association http://Www.ACTonline.org [...] _______________________________________________ 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
Dear Co-Chairs, please inform our colleague that appearances can be deceiving and in any case I have rows of witnesses that I didn't. I am however willing to explain to him in person what the variation of the well known Usenet Abbreviation ROFL means. Greetings, el -- Sent from Dr Lisse's iPad mini
On Jun 19, 2015, at 19:06, Drazek, Keith <kdrazek@verisign.com> wrote:
Dear Co-Chairs,
Please inform our colleague that he appears to have sat on his device.
Regards, Keith
On Jun 19, 2015, at 7:02 PM, Dr Eberhard W Lisse <el@lisse.na> wrote:
ROTLPIMPHMSBAH
el
-- Sent from Dr Lisse's iPad mini
On Jun 19, 2015, at 17:35, Jonathan Zuck <JZuck@actonline.org> wrote:
Yes it does. I apologize. I was challenging the efficacy of a proposed accountability mechanism and was asked to support my argument. I probably should have ignored what was likely a rhetorical request but I didn't.
Sent from my Windows Phone From: Dr Eberhard W Lisse Sent: 6/19/2015 5:28 PM To: CCWG Accountability Cc: Lisse Eberhard Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Ch-Chairs,
not that I disagree, but does this not conflict with the "modest proposal" ventilated by same on 2015-04-31?
greetings, el
-- Sent from Dr Lisse's iPhone 5s
On Jun 19, 2015, at 15:48, Jonathan Zuck <JZuck@actonline.org> wrote:
Sigh. Okay. Failed thus far to develop binding accountability mechanisms. Failed to adhere to policies around publication of documents prior to meetings. Failed to prevent decision making prior to termination of comment periods. Developed no standard for review during the previous attempt at accountability reform (2006?) Failed to develop public metrics to hold ICANN institutions to account (such as contract compliance) Failed to listen to community consensus on singular/plural and controlled the outcome of the redress mechanisms through overly narrow mandate. Pushed ahead with new gTLD program despite a lack of operational readiness, again without consequences. Launched a staff lead review of the new gTLD program prior to any input from the community. Scheduled new round of applications (at least initially) prior to scheduled reviews. Failed to reign in the Net Mundial initiative despite community objection or specify any consequences for secret board resolutions, etc. Accepted the GC advice to protect the corporation instead of the public interest. Weakened rather than strengthened the IRP. Allowed staff to unilaterally change community agreement on registry agreements and imposed the unilateral right to amend registry agreements. Failed to implement half of the ATRT1 recommendations, again without consequences. Supported the practice of passing off all responsibility to third parties so ICANN has no risk. (.SUCKS is the latest example) First attempted to prevent an accountability component to the IANA transition and then tried to control it, insert experts, etc. rather than trusting the community to organize itself.
Just a few thoughts off the top of my head. Your turn.
Jonathan Zuck President ACT: The App Association http://Www.ACTonline.org [...]
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Well, Jonathan, it seems that I do not share your frustration. I’ve been in this sector for 10 years now, which is a relatively short time compared to many. So I probably missed a lot. During these 10 years, I have seen the ICANN board struggling with complex issues and widely diverging interests and opinions of stakeholders. I have witnessed mistakes, individual disfunctioning (both of which we all have in our organizations), but generally I have seen a collective of intelligent professionals trying to come to conclusions that would best serve "most of the interests of mosts of the publics". A group of people I like to work with, exchange with. Not a collective enemy. Cheers, Roelof From: Jonathan Zuck <JZuck@actonline.org<mailto:JZuck@actonline.org>> Date: vrijdag 19 juni 2015 19:57 To: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>>, Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>> Cc: Accountability CCWG <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model If only ICANN history bore this out. It's one thing to assert this notion of “social accountability" and it is another to document it. ICANN as an institution has systematically resisted real accountability for years and no amount of “social shaming" (at the public forum for example) has made a bit of a difference. The ONLY instances of real movement (however minor) towards accountability have been with the resistance of the organization and in the context of the role played by the USG. As I mentioned this morning, the two instances have been the AoC in 2009 and the current expiration of the IANA functions contract. Every other effort at accountability (and I don't just mean opportunities to advise), has led nowhere. “Social enforcement" has been an unmitigated failure. Jonathan Zuck President ACT: The App Association Www.ACTonline.org From: Chris Disspain<mailto:ceo@auda.org.au> Sent: Friday, June 19, 2015 2:44 PM To: Roelof Meijer<mailto:Roelof.Meijer@sidn.nl> Cc: Accountability CCWG<mailto:accountability-cross-community@icann.org> Roelof, Exceptionally well put! Cheers, Chris On 20 Jun 2015, at 03:38 , Roelof Meijer <Roelof.Meijer@sidn.nl<mailto:Roelof.Meijer@sidn.nl>> wrote: Keith, Here’s your bridge across the gap: "I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.” I fully share that belief. Where we differ is that you feel that authority will have to be legally enforceable. I belief that is unnecessary (and introduces all kinds of unwanted side effects), because it is "socially enforceable” (for lack of a better term; see my " that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely”) Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: vrijdag 19 juni 2015 15:11 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Hi Roelof, You believe that a future Board would never reject the community’s will. I believe it’s a possibility we need to protect against. You’re willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable. You’re willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures. In the spirit of consensus-building, I hope we’re able to find a way to bridge these gaps. I believe we can. Best, Keith From: Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] Sent: Friday, June 19, 2015 9:57 AM To: Alan Greenberg; Drazek, Keith; Chris Disspain Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Keith, I would welcome a reaction to my email? Cheers, Roelof From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: dinsdag 16 juni 2015 04:09 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model This tends to pretty well correlate with the position that most in the ALAC have supported. Alan At 15/06/2015 03:03 AM, Roelof Meijer wrote: Keith, I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without. I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that. Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Chris, NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change. If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself? If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision? Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG. I'm in favor of the latter. Regards, Keith On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Hi Paul, I was specifically responding to Keith’s point so hardly a non-sequitur. Cheers, Chris On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Chris We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur. Paul -- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>>: Greetings All, 1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it? 2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard? Cheers, Chris On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:kdrazek%40verisign.com>> wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:accountability...> [ mailto:accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:accountability...>] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.” B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:becky.burr%40n...> / http://www.neustar.biz<http://www.neustar.biz/> From: Roelof Meijer < Roelof.Meijer@sidn.nl<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:Roelof.Meijer%40sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < accountability-cross-community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:accountability-cross-community%40icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”? Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:jhofheimer%40sidley.com>> Date: donderdag 11 juni 2015 06:09 To: " ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...>" < ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountability5%40icann.org>> Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:sidleyicannccwg%40sidley.com>>, ICANN-Adler < ICANN@adlercolvin.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ICANN%40adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:jhofheimer%40s...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP From: ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...> [ mailto:ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:ccwg-accountab...> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:thilton%40sidl...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto:Accountability...> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/1/compose?To=Accountability-Cross-Community%40ica...> 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
Thanks Roelof. You've defined the gap perfectly, not the bridge. We're defining "authority" differently: Legal vs. Social. Enforceability vs. trust. Predictability vs. uncertainty. Let's keep working on it. Regards, Keith From: Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] Sent: Friday, June 19, 2015 2:38 PM To: Drazek, Keith; Alan Greenberg; Chris Disspain Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Keith, Here's your bridge across the gap: "I believe ultimate authority must be with ICANN's global multi-stakeholder community through its current and future SO-AC structures." I fully share that belief. Where we differ is that you feel that authority will have to be legally enforceable. I belief that is unnecessary (and introduces all kinds of unwanted side effects), because it is "socially enforceable" (for lack of a better term; see my " that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely") Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: vrijdag 19 juni 2015 15:11 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Hi Roelof, You believe that a future Board would never reject the community's will. I believe it's a possibility we need to protect against. You're willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable. You're willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN's global multi-stakeholder community through its current and future SO-AC structures. In the spirit of consensus-building, I hope we're able to find a way to bridge these gaps. I believe we can. Best, Keith From: Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] Sent: Friday, June 19, 2015 9:57 AM To: Alan Greenberg; Drazek, Keith; Chris Disspain Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Keith, I would welcome a reaction to my email? Cheers, Roelof From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: dinsdag 16 juni 2015 04:09 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model This tends to pretty well correlate with the position that most in the ALAC have supported. Alan At 15/06/2015 03:03 AM, Roelof Meijer wrote: Keith, I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. " you're not oversimplifying or over-contrasting between the situation with legal enforceability and without. I think that in a situation where the board "jump the track", the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that. Best, Roelof From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> 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-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Chris, NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change. If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself? If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision? Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG. I'm in favor of the latter. Regards, Keith On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Hi Paul, I was specifically responding to Keith's point so hardly a non-sequitur. Cheers, Chris On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Chris We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur. Paul -- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>>: Greetings All, 1. on Becky's comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it? 2. on Keith's comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard? Cheers, Chris On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>> wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn't that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, don't we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...> [ mailto:accountability-cross-community-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountabili...>] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO's are legal entities doesn't change this. Unless they are members of ICANN, they are not a party to the bylaws "contract." B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3abecky.burr@n...> / http://www.neustar.biz<http://www.neustar.biz/> From: Roelof Meijer < Roelof.Meijer@sidn.nl<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < accountability-cross-community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC's, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions"? Most members of SO's are legal entities, many members of AC's are too, couldn't those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses "to go". The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the "old" board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>> Date: donderdag 11 juni 2015 06:09 To: " ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>" < ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>> Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>, ICANN-Adler < ICANN@adlercolvin.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models - Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@s...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP From: ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> [ mailto:ccwg-accountability5-bounces@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccou...> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3athilton@sidl...> http://www.sidley.com<http://www.sidley.com/> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aAccountabili...> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/x-msg:/1/compose?To=Accountability%2dCross%2dCommunity@i...> 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
Well to the extent that the SO/AC determines board members (by voting/selection/removal processes) then we could say the ultimate authority lies with the community. However in practice, by electing/selecting board members, we have entrusted them the authority to act in the interest of the organisation and community as a whole. The team who decides whether to implement the community's view or not IMO opinion has the authority and that just seem normal to me. Regards sent from Google nexus 4 kindly excuse brevity and typos. On 19 Jun 2015 21:38, "Roelof Meijer" <Roelof.Meijer@sidn.nl> wrote:
Keith,
Here’s your bridge across the gap:
"I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures. ”
I fully share that belief. Where we differ is that you feel that authority will have to be legally enforceable. I belief that is unnecessary (and introduces all kinds of unwanted side effects), because it is "socially enforceable” (for lack of a better term; see my " that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely”)
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com> Date: vrijdag 19 juni 2015 15:11 To: Roelof Meijer <roelof.meijer@sidn.nl>, Alan Greenberg < alan.greenberg@mcgill.ca>, Chris Disspain <ceo@auda.org.au> Cc: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Hi Roelof,
You believe that a future Board would never reject the community’s will. I believe it’s a possibility we need to protect against.
You’re willing to rely on trust in a future, unknown Board. I believe we need to ensure future communities have the tools to hold the Board accountable.
You’re willing to leave ultimate authority with the Board. I believe ultimate authority must be with ICANN’s global multi-stakeholder community through its current and future SO-AC structures.
In the spirit of consensus-building, I hope we’re able to find a way to bridge these gaps. I believe we can.
Best,
Keith
*From:* Roelof Meijer [mailto:Roelof.Meijer@sidn.nl] *Sent:* Friday, June 19, 2015 9:57 AM *To:* Alan Greenberg; Drazek, Keith; Chris Disspain *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Keith,
I would welcome a reaction to my email?
Cheers,
Roelof
*From: *Alan Greenberg <alan.greenberg@mcgill.ca> *Date: *dinsdag 16 juni 2015 04:09 *To: *Roelof Meijer <roelof.meijer@sidn.nl>, Keith Drazek < kdrazek@verisign.com>, Chris Disspain <ceo@auda.org.au> *Cc: *"accountability-cross-community@icann.org" < accountability-cross-community@icann.org> *Subject: *Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
This tends to pretty well correlate with the position that most in the ALAC have supported.
Alan
At 15/06/2015 03:03 AM, Roelof Meijer wrote:
Keith,
I wonder if with "If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. “ you’re not oversimplifying or over-contrasting between the situation with legal enforceability and without.
I think that in a situation where the board “jump the track”, the community ultimately goes through its process to spill the board and the board refuses to go, that board would be paralyzed in all ways, face shame and defamation individually on a global scale and would ruin their personal careers completely. They would dimply not do that.
Best,
Roelof
From: <Drazek>, Keith Drazek <kdrazek@verisign.com> Date: zondag 14 juni 2015 03:52 To: Chris Disspain <ceo@auda.org.au> Cc: " accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Chris,
NTIA's current enforcement powers are indirect but very real. Through its existing ability to re-bid the IANA Functions contract, NTIA ensures that ICANN and its Board of Directors remain true to its bylaws. That unique role is set to change.
If a future ICANN Board were to jump the tracks, the community will no longer have the NTIA backstop. Without legal enforceability, the community would have to trust future ICANN Boards and trust future California Attorney Generals. Why shouldn't we instead trust the global multi-stakeholder community itself?
If a future ICANN community were to try to spill the board, wouldn't we want that consensus decision to be legally enforceable? Or do we want to allow a future Board to tell the community it was wrong and, claiming fiduciary responsibility to the corporation, reject the decision?
Ultimately, we're deciding whether authority should rest with the ICANN Board and the California AG, or with the ICANN community and the California AG.
I'm in favor of the latter.
Regards, Keith
On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo@auda.org.au> wrote:
Hi Paul,
I was specifically responding to Keith’s point so hardly a non-sequitur.
Cheers,
Chris
On 14 Jun 2015, at 02:29 , Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
Chris
We need more formal powers for the community because much of the power of the NTIA was informal. The only thing that could replace the NTIA precisely would be the NTIA. I get that you don't like the membership model. But asking why a non-governmental solution is different from a governmental one is just a non sequitur.
Paul
-- Sent from myMail app for Android Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo@auda.org.au
:
Greetings All,
1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it?
2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard?
Cheers,
Chris
On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek@verisign.com> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards,
Keith
From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky
Sent: Friday, June 12, 2015 11:07 AM
To: Roelof Meijer; Accountability Cross Community
Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / http://www.neustar.biz
From: Roelof Meijer < Roelof.Meijer@sidn.nl>
Date: Friday, June 12, 2015 at 8:18 AM
To: Accountability Community < accountability-cross-community@icann.org>
Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
From: <Hofheimer>, "Joshua T." < jhofheimer@sidley.com>
Date: donderdag 11 juni 2015 06:09
To: " ccwg-accountability5@icann.org" < ccwg-accountability5@icann.org>
Cc: Sidley ICANN CCWG < sidleyicannccwg@sidley.com>, ICANN-Adler < ICANN@adlercolvin.com>
Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
JOSHUA HOFHEIMER
Sidley Austin LLP
+1.213.896.6061 (LA direct)
+1.650.565.7561 (PA direct)
+1.323.708.2405 (cell)
jhofheimer@sidley.com
SIDLEY AUSTIN LLP
From: ccwg-accountability5-bounces@icann.org [ mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of Hilton, Tyler
Sent: Monday, June 08, 2015 8:29 PM
To: ccwg-accountability5@icann.org
Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
TYLER HILTON
Associate
Sidley Austin LLP
555 West Fifth Street
Los Angeles, CA 90013
+1.213.896.6130
thilton@sidley.com
SIDLEY AUSTIN LLP
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Agree with Chris -------------------------------------------------------------------------------- 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 -------------------------------------------------------------------------------- De : accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] De la part de Chris Disspain Envoyé : samedi 13 juin 2015 04:12 À : Accountability Cross Community Objet : Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Greetings All, 1. on Becky’s comment below: if that is correct then surely the same applies to the relationship between the SO/AC and its Unincorporated Association. If a court cannot enforce a Board spill by the SOs/ACs then a court can also not make the UA do what the SO or AC wants. Can it? 2. on Keith’s comment below: How does the NTIA currently have powers of enforcement over ICANN outside of matters covered in the IANA contract? If NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN which can be terminated by either party and is not legally enforceable, why should we insist on a higher standard? Cheers, Chris On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek@verisign.com> wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role? After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone? Regards, Keith From: <mailto:accountability-cross-community-bounces@icann.org> accountability-cross-community-bounces@icann.org [ <mailto:accountability-cross-community-bounces@icann.org> mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.” B J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / <mailto:becky.burr@neustar.biz> becky.burr@neustar.biz / <http://www.neustar.biz/> www.neustar.biz From: Roelof Meijer < <mailto:Roelof.Meijer@sidn.nl> Roelof.Meijer@sidn.nl> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community < <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”? Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost. Would one of these two work? Best, Roelof Meijer From: <Hofheimer>, "Joshua T." < <mailto:jhofheimer@sidley.com> jhofheimer@sidley.com> Date: donderdag 11 juni 2015 06:09 To: " <mailto:ccwg-accountability5@icann.org> ccwg-accountability5@icann.org" < <mailto:ccwg-accountability5@icann.org> ccwg-accountability5@icann.org> Cc: Sidley ICANN CCWG < <mailto:sidleyicannccwg@sidley.com> sidleyicannccwg@sidley.com>, ICANN-Adler < <mailto:ICANN@adlercolvin.com> ICANN@adlercolvin.com> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) <mailto:jhofheimer@sidley.com> jhofheimer@sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> Image supprimée par l'expéditeur. http://www.sidley.com/files/upload/signatures/SA-autosig.png SIDLEY AUSTIN LLP From: <mailto:ccwg-accountability5-bounces@icann.org> ccwg-accountability5-bounces@icann.org [ <mailto:ccwg-accountability5-bounces@icann.org> mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: <mailto:ccwg-accountability5@icann.org> ccwg-accountability5@icann.org Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 <mailto:thilton@sidley.com> thilton@sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> Image supprimée par l'expéditeur. http://www.sidley.com/files/upload/signatures/SA-autosig.png SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org> Accountability-Cross-Community@icann.org <https://mm.icann.org/mailman/listinfo/accountability-cross-community> https://mm.icann.org/mailman/listinfo/accountability-cross-community --- Ce courrier électronique ne contient aucun virus ou logiciel malveillant parce que la protection avast! Antivirus est active. https://www.avast.com/antivirus
On Friday 12 June 2015 09:35 PM, Drazek, Keith wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
Being at definitional matters; in my understanding, the definition of 'transitioning the US government (in its various forms) out if its unique role' is that the US government, and its agencies, have no role that is not equivalent to that of any other government and its agencies. That has always been the intent and purpose of the long standing global demand for getting rid of US's unilateral oversight over ICANN. A wrong definition of the problem obviously leads to wrong solutions, as is happening currently with the 'transition process'.
After NTIA disengages, don’t we want the community to have shared authority for enforcement,
As you mention in an earlier part of your email, with community you of course mean 'ICANN community'. Whatever be the intention of the 'ICANN community', even NTIA's announcement asked for the oversight to pass to 'global multistakeholder community' and not to the 'ICANN community'. Now if the 'ICANN community' being in charge of running the transition process appropriates that new (partly) transitioned oversight role to itself, it is perhaps an understandable human failing, but that would normally be called as an illegitimate capture. parminder
rather than leaving it to the California Attorney General alone?
Regards, Keith
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Burr, Becky *Sent:* Friday, June 12, 2015 11:07 AM *To:* Roelof Meijer; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz <http://www.neustar.biz>
*From: *Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> *Date: *Friday, June 12, 2015 at 8:18 AM *To: *Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
*From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com <mailto:jhofheimer@sidley.com>> *Date: *donderdag 11 juni 2015 06:09 *To: *"ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>> *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
*JOSHUA* *HOFHEIMER *
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <mailto:jhofheimer@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
*From:*ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org] *On Behalf Of *Hilton, Tyler *Sent:* Monday, June 08, 2015 8:29 PM *To:* ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org> *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
*TYLER* *HILTON* Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <mailto:thilton@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
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Hi, We have a difference in perception on this. Whereas I believe you think of ICANN as a closed community that excludes, I see the ICANN community as an open community that reaches out to all participants and is always reaching towards the global multistakeholder community. There is an ICANN subgroup ready to welcome and include anyone interested. And if some set of people approaches the ICANN community and says there is no place for them, and indeed we find there there isn't, then something will be done accommodate that new need. Even though it is an open community that welcomes everyone who wants to get involved, it recognizes that not all can or would join in this open community. To make sure they are not left out of the processes, they are always open to those others who do not wish to associate with the ICANN community, but want to participate nonetheless. Nt only can they participate fully in building the consensus in the working groups, they can stand on the outside, follow the process and submit comments. Comments that a taken quite seriously by the working group. Between these two elements, I see the process as indeed inclusive of the global multistakeholder community. I can think of no better existing process for doing so, though readily acknowledge that of course the process needs to do ever better at outreach and ever better at inclusion. avri On 13-Jun-15 01:52, parminder wrote:
On Friday 12 June 2015 09:35 PM, Drazek, Keith wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
Being at definitional matters; in my understanding, the definition of 'transitioning the US government (in its various forms) out if its unique role' is that the US government, and its agencies, have no role that is not equivalent to that of any other government and its agencies. That has always been the intent and purpose of the long standing global demand for getting rid of US's unilateral oversight over ICANN.
A wrong definition of the problem obviously leads to wrong solutions, as is happening currently with the 'transition process'.
After NTIA disengages, don’t we want the community to have shared authority for enforcement,
As you mention in an earlier part of your email, with community you of course mean 'ICANN community'. Whatever be the intention of the 'ICANN community', even NTIA's announcement asked for the oversight to pass to 'global multistakeholder community' and not to the 'ICANN community'. Now if the 'ICANN community' being in charge of running the transition process appropriates that new (partly) transitioned oversight role to itself, it is perhaps an understandable human failing, but that would normally be called as an illegitimate capture.
parminder
rather than leaving it to the California Attorney General alone?
Regards, Keith
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Burr, Becky *Sent:* Friday, June 12, 2015 11:07 AM *To:* Roelof Meijer; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz <http://www.neustar.biz>
*From: *Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> *Date: *Friday, June 12, 2015 at 8:18 AM *To: *Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
*From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com <mailto:jhofheimer@sidley.com>> *Date: *donderdag 11 juni 2015 06:09 *To: *"ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>> *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
*JOSHUA* *HOFHEIMER *
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <mailto:jhofheimer@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
*From:*ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org] *On Behalf Of *Hilton, Tyler *Sent:* Monday, June 08, 2015 8:29 PM *To:* ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org> *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
*TYLER* *HILTON* Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <mailto:thilton@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
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I support Avris approach. If the IANA Transition is completed, ICANN will be much closer to the IETF model. However, one important difference is probably that in the ICANN enmvironment you ned a much higher level of cross community/stakeholder communication, coordination and collaboration. Insofar, the processes which has started under the CCWG acronym has still a lot of potential for future enhancements. It will not end with WS 2... Wolfgang -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org im Auftrag von Avri Doria Gesendet: Sa 13.06.2015 09:10 An: accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Hi, We have a difference in perception on this. Whereas I believe you think of ICANN as a closed community that excludes, I see the ICANN community as an open community that reaches out to all participants and is always reaching towards the global multistakeholder community. There is an ICANN subgroup ready to welcome and include anyone interested. And if some set of people approaches the ICANN community and says there is no place for them, and indeed we find there there isn't, then something will be done accommodate that new need. Even though it is an open community that welcomes everyone who wants to get involved, it recognizes that not all can or would join in this open community. To make sure they are not left out of the processes, they are always open to those others who do not wish to associate with the ICANN community, but want to participate nonetheless. Nt only can they participate fully in building the consensus in the working groups, they can stand on the outside, follow the process and submit comments. Comments that a taken quite seriously by the working group. Between these two elements, I see the process as indeed inclusive of the global multistakeholder community. I can think of no better existing process for doing so, though readily acknowledge that of course the process needs to do ever better at outreach and ever better at inclusion. avri On 13-Jun-15 01:52, parminder wrote:
On Friday 12 June 2015 09:35 PM, Drazek, Keith wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn't that the definition of transitioning the United States government (in its various forms) out of its unique role?
Being at definitional matters; in my understanding, the definition of 'transitioning the US government (in its various forms) out if its unique role' is that the US government, and its agencies, have no role that is not equivalent to that of any other government and its agencies. That has always been the intent and purpose of the long standing global demand for getting rid of US's unilateral oversight over ICANN.
A wrong definition of the problem obviously leads to wrong solutions, as is happening currently with the 'transition process'.
After NTIA disengages, don't we want the community to have shared authority for enforcement,
As you mention in an earlier part of your email, with community you of course mean 'ICANN community'. Whatever be the intention of the 'ICANN community', even NTIA's announcement asked for the oversight to pass to 'global multistakeholder community' and not to the 'ICANN community'. Now if the 'ICANN community' being in charge of running the transition process appropriates that new (partly) transitioned oversight role to itself, it is perhaps an understandable human failing, but that would normally be called as an illegitimate capture.
parminder
rather than leaving it to the California Attorney General alone?
Regards, Keith
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Burr, Becky *Sent:* Friday, June 12, 2015 11:07 AM *To:* Roelof Meijer; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO's are legal entities doesn't change this. Unless they are members of ICANN, they are not a party to the bylaws "contract."
B
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz <http://www.neustar.biz>
*From: *Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> *Date: *Friday, June 12, 2015 at 8:18 AM *To: *Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC's, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions"?
Most members of SO's are legal entities, many members of AC's are too, couldn't those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses "to go". The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the "old" board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
*From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com <mailto:jhofheimer@sidley.com>> *Date: *donderdag 11 juni 2015 06:09 *To: *"ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>> *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models - Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
*JOSHUA* *HOFHEIMER *
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <mailto:jhofheimer@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
*From:*ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org] *On Behalf Of *Hilton, Tyler *Sent:* Monday, June 08, 2015 8:29 PM *To:* ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org> *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
*TYLER* *HILTON* Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <mailto:thilton@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
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Dear All It is said" Bylaw is a contract between ICANN( corporation ) and its member " and it goes saying " if ICANN has no member the Bylaw is not a contract" Today ICANN ga no member then what is the status if current Bylaw? Are we further pushing to the direction that apart from exercising power in a membership model, it would also enforce the status of Bylaw? Regards Kavouss Sent from my iPhone
On 13 Jun 2015, at 09:10, Avri Doria <avri@acm.org> wrote:
Hi,
We have a difference in perception on this.
Whereas I believe you think of ICANN as a closed community that excludes, I see the ICANN community as an open community that reaches out to all participants and is always reaching towards the global multistakeholder community. There is an ICANN subgroup ready to welcome and include anyone interested. And if some set of people approaches the ICANN community and says there is no place for them, and indeed we find there there isn't, then something will be done accommodate that new need.
Even though it is an open community that welcomes everyone who wants to get involved, it recognizes that not all can or would join in this open community. To make sure they are not left out of the processes, they are always open to those others who do not wish to associate with the ICANN community, but want to participate nonetheless. Nt only can they participate fully in building the consensus in the working groups, they can stand on the outside, follow the process and submit comments. Comments that a taken quite seriously by the working group.
Between these two elements, I see the process as indeed inclusive of the global multistakeholder community. I can think of no better existing process for doing so, though readily acknowledge that of course the process needs to do ever better at outreach and ever better at inclusion.
avri
On 13-Jun-15 01:52, parminder wrote:
On Friday 12 June 2015 09:35 PM, Drazek, Keith wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
Being at definitional matters; in my understanding, the definition of 'transitioning the US government (in its various forms) out if its unique role' is that the US government, and its agencies, have no role that is not equivalent to that of any other government and its agencies. That has always been the intent and purpose of the long standing global demand for getting rid of US's unilateral oversight over ICANN.
A wrong definition of the problem obviously leads to wrong solutions, as is happening currently with the 'transition process'.
After NTIA disengages, don’t we want the community to have shared authority for enforcement,
As you mention in an earlier part of your email, with community you of course mean 'ICANN community'. Whatever be the intention of the 'ICANN community', even NTIA's announcement asked for the oversight to pass to 'global multistakeholder community' and not to the 'ICANN community'. Now if the 'ICANN community' being in charge of running the transition process appropriates that new (partly) transitioned oversight role to itself, it is perhaps an understandable human failing, but that would normally be called as an illegitimate capture.
parminder
rather than leaving it to the California Attorney General alone?
Regards, Keith
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Burr, Becky *Sent:* Friday, June 12, 2015 11:07 AM *To:* Roelof Meijer; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz <http://www.neustar.biz>
*From: *Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> *Date: *Friday, June 12, 2015 at 8:18 AM *To: *Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
*From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com <mailto:jhofheimer@sidley.com>> *Date: *donderdag 11 juni 2015 06:09 *To: *"ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>> *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
*JOSHUA* *HOFHEIMER *
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <mailto:jhofheimer@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
*From:*ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org] *On Behalf Of *Hilton, Tyler *Sent:* Monday, June 08, 2015 8:29 PM *To:* ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org> *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
*TYLER* *HILTON* Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <mailto:thilton@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
****************************************************************************************************
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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On Saturday 13 June 2015 12:40 PM, Avri Doria wrote:
Hi,
We have a difference in perception on this.
I agree, and can understand that. What however I cannot understand is why the perspective that I present - seeking external accountability mechanism - has not been given adequate consideration by the CCWG. And questions arising from this perspective have never been responded to properly. Does that not put in question the fairness of the process, especially when the perspective that you hold and which is overwhelming dominant in the process, to the complete exclusion of the other one, is in favour of giving ultimate power to the SO/ACs (or the ICANN community) whose reps also happen to fully dominate the process. Do you not find something problematic here? But perhaps one may want to argue that my perspective is a fringe view with little or no support. Before I (once again) argue the rationale of this perspective, let me present some empirical points. The public submission by Roberto Bissio who serves as an advisor to the CCWG process says that the two issues of jurisdiction and external accountability were raised in the advisory group meetings but "were not taken into account or properly responded to in the draft recommendations". Further, in the last few weeks I have been at two meetings organised in India on the IANA transition issue, organised by groups that clearly have no unfriendliness towards ICANN. Both meetings were attended by a full range of stakeholders. In both the meetings there was clearly a preponderance of view that (1) jurisdiction and (2) even more, 'external accountability' are the key issues that should be focussed on. The organisers of one of these meetings did a extensive survey of views of different stakeholders and the report that was presented at the meeting again focussed on external accountability. These are the only two meetings that I know to have taken place in India in the last many weeks, and which included a full range of stakeholders. If the general outcomes of both these meetings (plus the survey) tend towards seekinfg focus on 'external accountability' than I think it means that this perhaps is what the overwhelming number of people in India want. India has about a 7th of the world's population. I dont think China with about one sixth would be thinking any differently. In fact, I am convinced that all developing countries will be thinking quite similarly. Among US allied developed countries there may be slightly greater ambiguity, but I still think a very big majority which if asked would be inclined towards external accountability. Not sure about people in the US though bec they do have considerable leverage over ICANN through various institutions of the US state, though I think most people understand the need for clear mechanisms of external accountability for such institutions like ICANN. Many governments' current submissions, including India's and Brazil's, seek mechanisms of external accountability, and I am sure their reps would have said things to that effect during the process. Very interestingly, the NetMundial statement, much respected and celebrated by the ICANN community, says that “it is expected that the process of globalization of ICANN speeds up leading to a truly international and global organization serving the public interest with clearly implementable and verifiable accountability and transparency mechanisms that */*satisfy requirements from both internal stakeholders and the global community*/*” (emphasis added). So, no, my perspective is not fringe, and it can be empirically shown that it is not fringe. I would rather think that the view presented and pressed by the ICANN community (AO/SCs) is largely just the view of the ICANN community, with has little support outside it. And when this view is in fact for ICANN community retaining or taking up full and final power in all ICANN affairs, for the CWCG process, itself made up mostly of the ICANN community, to unilaterally proceed with it as a kind of received wisdom, to the complete exclusion of the other perspective (calling for 'external accountability'), really throws up extremely troubling questions. Someone must explain why the other perspective was not taken seriously by the CCWG, and its all requirements and possibilities not fully explored. Why did it just got shut up, when there has been so much support for it. It is extremely clear that *at least* a very large number, if not a very large majority of people (which is in fact the case), *do not* consider ICANN community as being adequately representative of the global community which is why they are asking for 'external accountability'. This is empirically provable, and this proof provides enough basis why this perspective should have been fully and thoroughly considered, which did not happen. The further fact that such a partisan take actually benefits the same community that dominates the process in my view fully vitiates it. As for the arguments by Avri, supported by Wolfgang, that the ICANN community does in fact adequately represent the global community, or is adequately inclusive of it - just by the fact of formal openness of its design, I strongly disagree with it and but will respond to it in a separate email. I do not want to mix a logical argument with one based on empirical facts that are immediately verifiable, about (1) there being a very large support for instituting 'external accountability' mechanisms and (2) it having not been considered or responded to properly . parminder
Whereas I believe you think of ICANN as a closed community that excludes, I see the ICANN community as an open community that reaches out to all participants and is always reaching towards the global multistakeholder community. There is an ICANN subgroup ready to welcome and include anyone interested. And if some set of people approaches the ICANN community and says there is no place for them, and indeed we find there there isn't, then something will be done accommodate that new need.
Even though it is an open community that welcomes everyone who wants to get involved, it recognizes that not all can or would join in this open community. To make sure they are not left out of the processes, they are always open to those others who do not wish to associate with the ICANN community, but want to participate nonetheless. Nt only can they participate fully in building the consensus in the working groups, they can stand on the outside, follow the process and submit comments. Comments that a taken quite seriously by the working group.
Between these two elements, I see the process as indeed inclusive of the global multistakeholder community. I can think of no better existing process for doing so, though readily acknowledge that of course the process needs to do ever better at outreach and ever better at inclusion.
avri
On 13-Jun-15 01:52, parminder wrote:
On Friday 12 June 2015 09:35 PM, Drazek, Keith wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
Being at definitional matters; in my understanding, the definition of 'transitioning the US government (in its various forms) out if its unique role' is that the US government, and its agencies, have no role that is not equivalent to that of any other government and its agencies. That has always been the intent and purpose of the long standing global demand for getting rid of US's unilateral oversight over ICANN.
A wrong definition of the problem obviously leads to wrong solutions, as is happening currently with the 'transition process'.
After NTIA disengages, don’t we want the community to have shared authority for enforcement,
As you mention in an earlier part of your email, with community you of course mean 'ICANN community'. Whatever be the intention of the 'ICANN community', even NTIA's announcement asked for the oversight to pass to 'global multistakeholder community' and not to the 'ICANN community'. Now if the 'ICANN community' being in charge of running the transition process appropriates that new (partly) transitioned oversight role to itself, it is perhaps an understandable human failing, but that would normally be called as an illegitimate capture.
parminder
rather than leaving it to the California Attorney General alone?
Regards, Keith
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Burr, Becky *Sent:* Friday, June 12, 2015 11:07 AM *To:* Roelof Meijer; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz <http://www.neustar.biz>
*From: *Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> *Date: *Friday, June 12, 2015 at 8:18 AM *To: *Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
*From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com <mailto:jhofheimer@sidley.com>> *Date: *donderdag 11 juni 2015 06:09 *To: *"ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>> *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
*JOSHUA* *HOFHEIMER *
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <mailto:jhofheimer@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
*From:*ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org] *On Behalf Of *Hilton, Tyler *Sent:* Monday, June 08, 2015 8:29 PM *To:* ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org> *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
*TYLER* *HILTON* Associate
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On 14-Jun-15 01:46, parminder wrote:
But perhaps one may want to argue that my perspective is a fringe view with little or no support. Before I (once again) argue the rationale of this perspective, let me present some empirical points.
No what I said. My arguments are so often fringe in this community I would hardly be in a position to define someone's views as fringe. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
Parminder - Could I ask you to explain what you mean by “external” accountability mechanisms? ICANN has both internal and external mechanisms designed to ensure that it is accountable to the global Internet community. Are you referring to courts or another body as the source of external accountability? Thank you. Becky J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz From: parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>> Date: Sunday, June 14, 2015 at 1:46 AM To: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model On Saturday 13 June 2015 12:40 PM, Avri Doria wrote: Hi, We have a difference in perception on this. I agree, and can understand that. What however I cannot understand is why the perspective that I present - seeking external accountability mechanism - has not been given adequate consideration by the CCWG. And questions arising from this perspective have never been responded to properly. Does that not put in question the fairness of the process, especially when the perspective that you hold and which is overwhelming dominant in the process, to the complete exclusion of the other one, is in favour of giving ultimate power to the SO/ACs (or the ICANN community) whose reps also happen to fully dominate the process. Do you not find something problematic here? But perhaps one may want to argue that my perspective is a fringe view with little or no support. Before I (once again) argue the rationale of this perspective, let me present some empirical points. The public submission by Roberto Bissio who serves as an advisor to the CCWG process says that the two issues of jurisdiction and external accountability were raised in the advisory group meetings but "were not taken into account or properly responded to in the draft recommendations". Further, in the last few weeks I have been at two meetings organised in India on the IANA transition issue, organised by groups that clearly have no unfriendliness towards ICANN. Both meetings were attended by a full range of stakeholders. In both the meetings there was clearly a preponderance of view that (1) jurisdiction and (2) even more, 'external accountability' are the key issues that should be focussed on. The organisers of one of these meetings did a extensive survey of views of different stakeholders and the report that was presented at the meeting again focussed on external accountability. These are the only two meetings that I know to have taken place in India in the last many weeks, and which included a full range of stakeholders. If the general outcomes of both these meetings (plus the survey) tend towards seekinfg focus on 'external accountability' than I think it means that this perhaps is what the overwhelming number of people in India want. India has about a 7th of the world's population. I dont think China with about one sixth would be thinking any differently. In fact, I am convinced that all developing countries will be thinking quite similarly. Among US allied developed countries there may be slightly greater ambiguity, but I still think a very big majority which if asked would be inclined towards external accountability. Not sure about people in the US though bec they do have considerable leverage over ICANN through various institutions of the US state, though I think most people understand the need for clear mechanisms of external accountability for such institutions like ICANN. Many governments' current submissions, including India's and Brazil's, seek mechanisms of external accountability, and I am sure their reps would have said things to that effect during the process. Very interestingly, the NetMundial statement, much respected and celebrated by the ICANN community, says that “it is expected that the process of globalization of ICANN speeds up leading to a truly international and global organization serving the public interest with clearly implementable and verifiable accountability and transparency mechanisms that *satisfy requirements from both internal stakeholders and the global community*” (emphasis added). So, no, my perspective is not fringe, and it can be empirically shown that it is not fringe. I would rather think that the view presented and pressed by the ICANN community (AO/SCs) is largely just the view of the ICANN community, with has little support outside it. And when this view is in fact for ICANN community retaining or taking up full and final power in all ICANN affairs, for the CWCG process, itself made up mostly of the ICANN community, to unilaterally proceed with it as a kind of received wisdom, to the complete exclusion of the other perspective (calling for 'external accountability'), really throws up extremely troubling questions. Someone must explain why the other perspective was not taken seriously by the CCWG, and its all requirements and possibilities not fully explored. Why did it just got shut up, when there has been so much support for it. It is extremely clear that *at least* a very large number, if not a very large majority of people (which is in fact the case), *do not* consider ICANN community as being adequately representative of the global community which is why they are asking for 'external accountability'. This is empirically provable, and this proof provides enough basis why this perspective should have been fully and thoroughly considered, which did not happen. The further fact that such a partisan take actually benefits the same community that dominates the process in my view fully vitiates it. As for the arguments by Avri, supported by Wolfgang, that the ICANN community does in fact adequately represent the global community, or is adequately inclusive of it - just by the fact of formal openness of its design, I strongly disagree with it and but will respond to it in a separate email. I do not want to mix a logical argument with one based on empirical facts that are immediately verifiable, about (1) there being a very large support for instituting 'external accountability' mechanisms and (2) it having not been considered or responded to properly . parminder Whereas I believe you think of ICANN as a closed community that excludes, I see the ICANN community as an open community that reaches out to all participants and is always reaching towards the global multistakeholder community. There is an ICANN subgroup ready to welcome and include anyone interested. And if some set of people approaches the ICANN community and says there is no place for them, and indeed we find there there isn't, then something will be done accommodate that new need. Even though it is an open community that welcomes everyone who wants to get involved, it recognizes that not all can or would join in this open community. To make sure they are not left out of the processes, they are always open to those others who do not wish to associate with the ICANN community, but want to participate nonetheless. Nt only can they participate fully in building the consensus in the working groups, they can stand on the outside, follow the process and submit comments. Comments that a taken quite seriously by the working group. Between these two elements, I see the process as indeed inclusive of the global multistakeholder community. I can think of no better existing process for doing so, though readily acknowledge that of course the process needs to do ever better at outreach and ever better at inclusion. avri On 13-Jun-15 01:52, parminder wrote: On Friday 12 June 2015 09:35 PM, Drazek, Keith wrote: Thanks Becky, I think you highlight a key point. Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws. The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs. Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role? Being at definitional matters; in my understanding, the definition of 'transitioning the US government (in its various forms) out if its unique role' is that the US government, and its agencies, have no role that is not equivalent to that of any other government and its agencies. That has always been the intent and purpose of the long standing global demand for getting rid of US's unilateral oversight over ICANN. A wrong definition of the problem obviously leads to wrong solutions, as is happening currently with the 'transition process'. After NTIA disengages, don’t we want the community to have shared authority for enforcement, As you mention in an earlier part of your email, with community you of course mean 'ICANN community'. Whatever be the intention of the 'ICANN community', even NTIA's announcement asked for the oversight to pass to 'global multistakeholder community' and not to the 'ICANN community'. Now if the 'ICANN community' being in charge of running the transition process appropriates that new (partly) transitioned oversight role to itself, it is perhaps an understandable human failing, but that would normally be called as an illegitimate capture. parminder rather than leaving it to the California Attorney General alone? Regards, Keith *From:*accountability-cross-community-bounces@icann.org<mailto:*accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Burr, Becky *Sent:* Friday, June 12, 2015 11:07 AM *To:* Roelof Meijer; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Roelof, shi As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.) The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.” B J. Beckwith Burr *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<mailto:becky.burr@neustar.biz><mailto:becky.burr@neustar.biz><mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz><http://www.neustar.biz><http://www.neustar.biz> *From: *Roelof Meijer <Roelof.Meijer@sidn.nl<mailto:Roelof.Meijer@sidn.nl><mailto:Roelof.Meijer@sidn.nl><mailto:Roelof.Meijer@sidn.nl>> *Date: *Friday, June 12, 2015 at 8:18 AM *To: *Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org><mailto:accountability-cross-community@icann.org><mailto:accountability-cross-community@icann.org>> *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear all, and especially dear legal colleagues, The memo states: "If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. " I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”? Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action? Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost. Would one of these two work? Best, Roelof Meijer *From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com<mailto:jhofheimer@sidley.com><mailto:jhofheimer@sidley.com><mailto:jhofheimer@sidley.com>> *Date: *donderdag 11 juni 2015 06:09 *To: *"ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org><mailto:ccwg-accountability5@icann.org><mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org> <mailto:ccwg-accountability5@icann.org><mailto:ccwg-accountability5@icann.org>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com<mailto:sidleyicannccwg@sidley.com><mailto:sidleyicannccwg@sidley.com><mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com> <mailto:ICANN@adlercolvin.com><mailto:ICANN@adlercolvin.com>> *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Dear Legal Sub-Team, Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests. Cheers, Josh *JOSHUA* *HOFHEIMER * Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com<mailto:jhofheimer@sidley.com> <mailto:jhofheimer@sidley.com><mailto:jhofheimer@sidley.com>www.sidley.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMD-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NEQCuKxgzBGINaKYToS1ZKhmB4LB1F9b0TgX1tYAW90&s=pPlologuN9DxNa1GiZvRQWzs6WUNvBkRSAf8sB4Xsq4&e=><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=>http://www.sidley.com/files/upload/signatures/SA-autosig.png<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_files_upload_signatures_SA-2Dautosig.png&d=AwMD-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NEQCuKxgzBGINaKYToS1ZKhmB4LB1F9b0TgX1tYAW90&s=1ObJ9pEAN3l1QxB-0XXgl1pM_KtluxcynWOP1tXuqiY&e=><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=> *SIDLEY AUSTIN LLP* *From:*ccwg-accountability5-bounces@icann.org<mailto:*ccwg-accountability5-bounces@icann.org> <mailto:ccwg-accountability5-bounces@icann.org><mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org] *On Behalf Of *Hilton, Tyler *Sent:* Monday, June 08, 2015 8:29 PM *To:* ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org><mailto:ccwg-accountability5@icann.org><mailto:ccwg-accountability5@icann.org> *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions Dear Legal Sub-team, Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015. Best, *TYLER* *HILTON* Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com<mailto:thilton@sidley.com> <mailto:thilton@sidley.com><mailto:thilton@sidley.com>www.sidley.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMD-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NEQCuKxgzBGINaKYToS1ZKhmB4LB1F9b0TgX1tYAW90&s=pPlologuN9DxNa1GiZvRQWzs6WUNvBkRSAf8sB4Xsq4&e=><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=RZAttuK9gIR-rWhgnzzBCJwmd-AX6TvLB6W-cfwGyV4&e=><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=RZAttuK9gIR-rWhgnzzBCJwmd-AX6TvLB6W-cfwGyV4&e=>http://www.sidley.com/files/upload/signatures/SA-autosig.png<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_files_upload_signatures_SA-2Dautosig.png&d=AwMD-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NEQCuKxgzBGINaKYToS1ZKhmB4LB1F9b0TgX1tYAW90&s=1ObJ9pEAN3l1QxB-0XXgl1pM_KtluxcynWOP1tXuqiY&e=><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=> *SIDLEY AUSTIN LLP* **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. 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Dear Colleagues, Dear Parminder, Noting that Parminder's feedback on external accountability reflects a discussion that takes place regularly when reaching out of the Icann community to discuss about the current transition process, I think it's worth our time reflecting on how our group discussions took it into account. First, the term "external accountability", while frequently used, may have different meanings for different stakeholders. I concur with Becky who suggested that you clarify your meaning. If external accountability means "Icann is accountable to an overseeing body outside of Icann", then we should note that we had this very discussion several times in the requirement phase, and tended to conclude that, because of the "who guards the guardian" issue, our group's preferred option was to find an internal option which would introduce better checks and balances ("mutual accountability"). If external accountability means accountability to stakeholders outside of the regular Icann participants, then I think our current proposals introduce significant enhancements : - the IRP is accessible to any materially affected party, made more accessible and, above all, becomes binding on the Board. - the current discussions on SO/AC accountability, diversity within the community and the accountability mechanisms, are all related to this issue of accountability to external stakeholders. It is perfectly fair and welcome to challenge these options, which does not mean that have not been considered. Our role as a group will be respond to such concern properly, but also to identify associated requirements. I am confident we'll find some in the public comments, as well as in further discussions of our group. Best, Mathieu Le 14/06/2015 07:46, parminder a écrit :
On Saturday 13 June 2015 12:40 PM, Avri Doria wrote:
Hi,
We have a difference in perception on this.
I agree, and can understand that. What however I cannot understand is why the perspective that I present - seeking external accountability mechanism - has not been given adequate consideration by the CCWG. And questions arising from this perspective have never been responded to properly. Does that not put in question the fairness of the process, especially when the perspective that you hold and which is overwhelming dominant in the process, to the complete exclusion of the other one, is in favour of giving ultimate power to the SO/ACs (or the ICANN community) whose reps also happen to fully dominate the process. Do you not find something problematic here?
But perhaps one may want to argue that my perspective is a fringe view with little or no support. Before I (once again) argue the rationale of this perspective, let me present some empirical points.
The public submission by Roberto Bissio who serves as an advisor to the CCWG process says that the two issues of jurisdiction and external accountability were raised in the advisory group meetings but "were not taken into account or properly responded to in the draft recommendations".
Further, in the last few weeks I have been at two meetings organised in India on the IANA transition issue, organised by groups that clearly have no unfriendliness towards ICANN. Both meetings were attended by a full range of stakeholders. In both the meetings there was clearly a preponderance of view that (1) jurisdiction and (2) even more, 'external accountability' are the key issues that should be focussed on. The organisers of one of these meetings did a extensive survey of views of different stakeholders and the report that was presented at the meeting again focussed on external accountability.
These are the only two meetings that I know to have taken place in India in the last many weeks, and which included a full range of stakeholders. If the general outcomes of both these meetings (plus the survey) tend towards seekinfg focus on 'external accountability' than I think it means that this perhaps is what the overwhelming number of people in India want. India has about a 7th of the world's population. I dont think China with about one sixth would be thinking any differently. In fact, I am convinced that all developing countries will be thinking quite similarly. Among US allied developed countries there may be slightly greater ambiguity, but I still think a very big majority which if asked would be inclined towards external accountability. Not sure about people in the US though bec they do have considerable leverage over ICANN through various institutions of the US state, though I think most people understand the need for clear mechanisms of external accountability for such institutions like ICANN.
Many governments' current submissions, including India's and Brazil's, seek mechanisms of external accountability, and I am sure their reps would have said things to that effect during the process.
Very interestingly, the NetMundial statement, much respected and celebrated by the ICANN community, says that “it is expected that the process of globalization of ICANN speeds up leading to a truly international and global organization serving the public interest with clearly implementable and verifiable accountability and transparency mechanisms that */*satisfy requirements from both internal stakeholders and the global community*/*” (emphasis added).
So, no, my perspective is not fringe, and it can be empirically shown that it is not fringe. I would rather think that the view presented and pressed by the ICANN community (AO/SCs) is largely just the view of the ICANN community, with has little support outside it. And when this view is in fact for ICANN community retaining or taking up full and final power in all ICANN affairs, for the CWCG process, itself made up mostly of the ICANN community, to unilaterally proceed with it as a kind of received wisdom, to the complete exclusion of the other perspective (calling for 'external accountability'), really throws up extremely troubling questions.
Someone must explain why the other perspective was not taken seriously by the CCWG, and its all requirements and possibilities not fully explored. Why did it just got shut up, when there has been so much support for it.
It is extremely clear that *at least* a very large number, if not a very large majority of people (which is in fact the case), *do not* consider ICANN community as being adequately representative of the global community which is why they are asking for 'external accountability'. This is empirically provable, and this proof provides enough basis why this perspective should have been fully and thoroughly considered, which did not happen. The further fact that such a partisan take actually benefits the same community that dominates the process in my view fully vitiates it.
As for the arguments by Avri, supported by Wolfgang, that the ICANN community does in fact adequately represent the global community, or is adequately inclusive of it - just by the fact of formal openness of its design, I strongly disagree with it and but will respond to it in a separate email. I do not want to mix a logical argument with one based on empirical facts that are immediately verifiable, about (1) there being a very large support for instituting 'external accountability' mechanisms and (2) it having not been considered or responded to properly .
parminder
Whereas I believe you think of ICANN as a closed community that excludes, I see the ICANN community as an open community that reaches out to all participants and is always reaching towards the global multistakeholder community. There is an ICANN subgroup ready to welcome and include anyone interested. And if some set of people approaches the ICANN community and says there is no place for them, and indeed we find there there isn't, then something will be done accommodate that new need.
Even though it is an open community that welcomes everyone who wants to get involved, it recognizes that not all can or would join in this open community. To make sure they are not left out of the processes, they are always open to those others who do not wish to associate with the ICANN community, but want to participate nonetheless. Nt only can they participate fully in building the consensus in the working groups, they can stand on the outside, follow the process and submit comments. Comments that a taken quite seriously by the working group.
Between these two elements, I see the process as indeed inclusive of the global multistakeholder community. I can think of no better existing process for doing so, though readily acknowledge that of course the process needs to do ever better at outreach and ever better at inclusion.
avri
On 13-Jun-15 01:52, parminder wrote:
On Friday 12 June 2015 09:35 PM, Drazek, Keith wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
Being at definitional matters; in my understanding, the definition of 'transitioning the US government (in its various forms) out if its unique role' is that the US government, and its agencies, have no role that is not equivalent to that of any other government and its agencies. That has always been the intent and purpose of the long standing global demand for getting rid of US's unilateral oversight over ICANN.
A wrong definition of the problem obviously leads to wrong solutions, as is happening currently with the 'transition process'.
After NTIA disengages, don’t we want the community to have shared authority for enforcement,
As you mention in an earlier part of your email, with community you of course mean 'ICANN community'. Whatever be the intention of the 'ICANN community', even NTIA's announcement asked for the oversight to pass to 'global multistakeholder community' and not to the 'ICANN community'. Now if the 'ICANN community' being in charge of running the transition process appropriates that new (partly) transitioned oversight role to itself, it is perhaps an understandable human failing, but that would normally be called as an illegitimate capture.
parminder
rather than leaving it to the California Attorney General alone?
Regards, Keith
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Burr, Becky *Sent:* Friday, June 12, 2015 11:07 AM *To:* Roelof Meijer; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 /becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> /www.neustar.biz <http://www.neustar.biz>
*From: *Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> *Date: *Friday, June 12, 2015 at 8:18 AM *To: *Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
*From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com <mailto:jhofheimer@sidley.com>> *Date: *donderdag 11 juni 2015 06:09 *To: *"ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>> *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
*JOSHUA* *HOFHEIMER *
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <mailto:jhofheimer@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
*From:*ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org] *On Behalf Of *Hilton, Tyler *Sent:* Monday, June 08, 2015 8:29 PM *To:*ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org> *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
*TYLER* *HILTON* Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <mailto:thilton@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
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****************************************************************************************************
_______________________________________________ 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 *****************************
So the successful lawsuit(s) of Board Member(s) to get to docoments or whatever it was were not yo enforce the bylaws? el -- Sent from Dr Lisse's iPhone 6
On Jun 12, 2015, at 17:05, Drazek, Keith <kdrazek@verisign.com> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards, Keith
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz
From: Roelof Meijer <Roelof.Meijer@sidn.nl> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community <accountability-cross-community@icann.org> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
From: <Hofheimer>, "Joshua T." <jhofheimer@sidley.com> Date: donderdag 11 juni 2015 06:09 To: "ccwg-accountability5@icann.org" <ccwg-accountability5@icann.org> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com>, ICANN-Adler <ICANN@adlercolvin.com> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
JOSHUA HOFHEIMER
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com www.sidley.com
SIDLEY AUSTIN LLP
From:ccwg-accountability5-bounces@icann.org [mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
TYLER HILTON Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com www.sidley.com
SIDLEY AUSTIN LLP
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
****************************************************************************************************
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear All, There is no direct relation between the status of Bylaw and type of membership(Member Model And Designator Model) The two issues are almost independent vehicles Kavouss Sent from my iPhone
On 13 Jun 2015, at 09:02, Dr Eberhard W Lisse <el@lisse.na> wrote:
So the successful lawsuit(s) of Board Member(s) to get to docoments or whatever it was were not yo enforce the bylaws?
el
-- Sent from Dr Lisse's iPhone 6
On Jun 12, 2015, at 17:05, Drazek, Keith <kdrazek@verisign.com> wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
After NTIA disengages, don’t we want the community to have shared authority for enforcement, rather than leaving it to the California Attorney General alone?
Regards, Keith
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Friday, June 12, 2015 11:07 AM To: Roelof Meijer; Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz
From: Roelof Meijer <Roelof.Meijer@sidn.nl> Date: Friday, June 12, 2015 at 8:18 AM To: Accountability Community <accountability-cross-community@icann.org> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
From: <Hofheimer>, "Joshua T." <jhofheimer@sidley.com> Date: donderdag 11 juni 2015 06:09 To: "ccwg-accountability5@icann.org" <ccwg-accountability5@icann.org> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com>, ICANN-Adler <ICANN@adlercolvin.com> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
JOSHUA HOFHEIMER
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com www.sidley.com
SIDLEY AUSTIN LLP
From:ccwg-accountability5-bounces@icann.org [mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
TYLER HILTON Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com www.sidley.com
SIDLEY AUSTIN LLP
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
****************************************************************************************************
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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participants (25)
-
"Kleinwächter, Wolfgang" -
Alan Greenberg -
Avri Doria -
Burr, Becky -
Chris Disspain -
Dr Eberhard W Lisse -
Dr Eberhard W Lisse -
Drazek, Keith -
Edward Morris -
James Gannon -
Jonathan Zuck -
Jordan Carter -
Kavouss Arasteh -
León Felipe Sánchez Ambía -
Malcolm Hutty -
Marilyn Cade -
Mathieu Weill -
Matthew Shears -
parminder -
Paul Rosenzweig -
Roelof Meijer -
Samantha Eisner -
Seun Ojedeji -
Thomas Rickert -
Tijani BEN JEMAA