Jordan,

that the only way they can make decisions is on the resolution of the relevant SO or AC council.

In the same way that one needs a legal entity to be able to force ICANN to abide by its bylaws in a court, one needs a legal entity to force the UA to abide by its rules. So although the rules of the UA may say that it can only make decisions based on the resolution of the relevant SO (just like ICANN’s fundamental bylaws will say ICANN can only do X if the SOs/ACs agree) the SO cannot itself enforce that rule. As I understand it, since the SO would not be a legal entity, the SO cannot make the UA abide by its rules. Thus, using the simplest case as an example, where the UA has a single member (the Chair of the SO as Alan has suggested) and that member started to not abide by the rules then the SO would need to use an agreed mechanism to replace the Chair as member. And if the Chair refused to stand aside as member then the ‘new chair’ would have to bring proceedings against the him/her and have a court order that the the ‘correct’ member is the ‘new chair’. I think I’ve got that right but stand to be corrected. Cheers, Chris

On 19 May 2015, at 14:56 , Jordan Carter <jordan@internetnz.net.nz> wrote:

hi all, hi Alan

I think these are exactly the sorts of questions we do need to unpick.

My own preference is that the UAs are almost total shells - that the only way they can make decisions is on the resolution of the relevant SO or AC council. That way, there's no need for "Representatives" to be appointed. The lawyers have confirmed that this approach works at a high level.

It avoids all the concerns about who needs to be chosen etc.

I really hope we can all unpick these issues to find the best model, one that is both enforceable, clear and simple. I'm confident we'll get there. We just have to wear the fact that the set of changes we are contemplating is going to be complicated to implement. It's once we get there that it has to be simple and clean.

cheers Jordan

On 19 May 2015 at 16:03, Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>> wrote: I believe I understand the issues regarding UAs as shadow organizations for the AC/SOs. Although I still have strong reservations and am not sure we need the legal enforceability that they provide, I am willing to accept that they will work.

But I also feel that using such structures will be difficult for the overall community to understand (on an ongoing basis).

I have a simple question. Instead of having a UA and the AC/SO naming people to be their formal representatives in the UA, why can we not simply have the AC/SO Chair or their Delegate(s) be the Members or Designators. These people have legal status, so why do we need the UAs?

I will not be able to join the call in a few hours, but will listen to the recording later in the day.

Alan

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An Unincorporated Association (UA) requires at least two legal persons (which can be people or legal entities) to be members. In other words, you need two legal persons to "associate" with each other. So, if we use UAs, we'll need to have at least those two members in the UA, though we could have many more. They could be the Chair and Vice Chair, or they could be two or more of the members of the SO/AC (or even all the members of the SO/AC). I believe we intend to give the SO/ACs fairly broad discretion to establish their UAs as they see fit (including using legal entities other than UAs, such as non-profit corporations or LLCs), while providing them with some high level standards and guidelines so that they work as intended. On a technical legal level, I don't believe there is a bar to having the Members of ICANN be natural persons (i.e., people) rather than UAs acting as alter egos for the SO/ACs. This creates some secondary issues. Legal entities have Bylaws or similar rules; people don't. So, the behavior of a natural person acting as an alter ego for a SO/AC would have to be regulated entirely by a contract between the SO/AC and the natural person. With the UA, most of the rules about how the UA acts can be embodied in its bylaws, and the contract between the SO/AC and the UA (if one is even needed) would be much simpler. If a natural person is a member, I think the membership would change every time the natural person changed; so you would have to go through a process of members resigning and joining fairly regularly. With the UAs, the membership would remain constant (subject to further changes in ICANN governance and the ICANN community's structures and organizations). Another complication arises in considering how to recall the board; most likely, this would require a contractual agreement among the members to act in concert and have each SO/AC remove the board member(s) that SO/AC appointed. This agreement could remain constant if we use legal entities; if we use natural persons, the agreement will need to be amended and re-executed (at least in part), whenever there is member turnover. Finally, there is just the "optic" of having, e.g., Alan Greenberg as a Member of ICANN, rather than having "ALAC Prime, an Unincorporated Association" as a Member of ICANN. Greg On Tue, May 19, 2015 at 12:56 AM, Jordan Carter <jordan@internetnz.net.nz> wrote:

hi all, hi Alan

I think these are exactly the sorts of questions we do need to unpick.

My own preference is that the UAs are almost total shells - that the only way they can make decisions is on the resolution of the relevant SO or AC council. That way, there's no need for "Representatives" to be appointed. The lawyers have confirmed that this approach works at a high level.

It avoids all the concerns about who needs to be chosen etc.

I really hope we can all unpick these issues to find the best model, one that is both enforceable, clear and simple. I'm confident we'll get there. We just have to wear the fact that the set of changes we are contemplating is going to be complicated to implement. It's once we get there that it has to be simple and clean.

cheers Jordan

On 19 May 2015 at 16:03, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:

...

I believe I understand the issues regarding UAs as shadow organizations for the AC/SOs. Although I still have strong reservations and am not sure we need the legal enforceability that they provide, I am willing to accept that they will work.

But I also feel that using such structures will be difficult for the overall community to understand (on an ongoing basis).

I have a simple question. Instead of having a UA and the AC/SO naming people to be their formal representatives in the UA, why can we not simply have the AC/SO Chair or their Delegate(s) be the Members or Designators. These people have legal status, so why do we need the UAs?

I will not be able to join the call in a few hours, but will listen to the recording later in the day.

Alan

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Given the time zone (going on 2 AM here), I'll probably be less coherent than I was earlier. Sam, I do expect that Alan would be serving in his capacity as ALAC Chair, and not in a truly "personal" capacity. Nonetheless, he would be the flesh-and-blood "legal person" that was the Member representing ALAC's interests. I'm not sure whether the fact that he was serving in his capacity as ALAC Chair would be sufficient to allow him to automatically become the ALAC's Member (and then his successor as Chair to become the ALAC's member automatically and so forth). We would have to ask Sidley/Adler to pin that one down. I do think the behaviour of Alan as the Member could be in the ALAC's bylaws rather than in an agreement, as could the methods of removing Alan if he goes rogue. It's probably all similar language anyway, whatever legal "container" we put it in. There may be an enforcement issue regarding the SO/AC's bylaw, since the SO/AC is not a legal person (of course, that means the SO/AC couldn't enter into a binding agreement with the natural person either -- a flaw in my earlier email). Since the SO/ACs are creations of the ICANN Bylaws, it's possible that ICANN itself could be the legal entity used as a vehicle to enforce the SO/AC's bylaws (or, for that matter, to enter into a binding agreement with the natural person). Greg On Tue, May 19, 2015 at 1:34 AM, Samantha Eisner <Samantha.Eisner@icann.org> wrote:

While I'm not clear on the positives or negatives of having singular people serving as members, I'd imagine that they could be identified within the ICANN bylaws through ex officio titles. So, keeping Alan as the example, if there was a determination that the chair of the ALAC would be the "member" for ALAC as defined in the Bylaws, then Alan would have assumed that membership role immediately upon his assuming the ALAC chair role. I'd imagine that the operating rules of the ALAC, or any other organization, would specify how the member is expected to behave when it's time to exercise the member powers. It's not clear to me that detailed contracts would be necessary between the group and the representative member.

On May 18, 2015, at 10:20 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:

An Unincorporated Association (UA) requires at least two legal persons (which can be people or legal entities) to be members. In other words, you need two legal persons to "associate" with each other. So, if we use UAs, we'll need to have at least those two members in the UA, though we could have many more. They could be the Chair and Vice Chair, or they could be two or more of the members of the SO/AC (or even all the members of the SO/AC). I believe we intend to give the SO/ACs fairly broad discretion to establish their UAs as they see fit (including using legal entities other than UAs, such as non-profit corporations or LLCs), while providing them with some high level standards and guidelines so that they work as intended.

On a technical legal level, I don't believe there is a bar to having the Members of ICANN be natural persons (i.e., people) rather than UAs acting as alter egos for the SO/ACs. This creates some secondary issues. Legal entities have Bylaws or similar rules; people don't. So, the behavior of a natural person acting as an alter ego for a SO/AC would have to be regulated entirely by a contract between the SO/AC and the natural person. With the UA, most of the rules about how the UA acts can be embodied in its bylaws, and the contract between the SO/AC and the UA (if one is even needed) would be much simpler. If a natural person is a member, I think the membership would change every time the natural person changed; so you would have to go through a process of members resigning and joining fairly regularly. With the UAs, the membership would remain constant (subject to further changes in ICANN governance and the ICANN community's structures and organizations). Another complication arises in considering how to recall the board; most likely, this would require a contractual agreement among the members to act in concert and have each SO/AC remove the board member(s) that SO/AC appointed. This agreement could remain constant if we use legal entities; if we use natural persons, the agreement will need to be amended and re-executed (at least in part), whenever there is member turnover. Finally, there is just the "optic" of having, e.g., Alan Greenberg as a Member of ICANN, rather than having "ALAC Prime, an Unincorporated Association" as a Member of ICANN.

Greg

On Tue, May 19, 2015 at 12:56 AM, Jordan Carter <jordan@internetnz.net.nz> wrote:

...

hi all, hi Alan

I think these are exactly the sorts of questions we do need to unpick.

My own preference is that the UAs are almost total shells - that the only way they can make decisions is on the resolution of the relevant SO or AC council. That way, there's no need for "Representatives" to be appointed. The lawyers have confirmed that this approach works at a high level.

It avoids all the concerns about who needs to be chosen etc.

I really hope we can all unpick these issues to find the best model, one that is both enforceable, clear and simple. I'm confident we'll get there. We just have to wear the fact that the set of changes we are contemplating is going to be complicated to implement. It's once we get there that it has to be simple and clean.

cheers Jordan

On 19 May 2015 at 16:03, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:

...

I believe I understand the issues regarding UAs as shadow organizations for the AC/SOs. Although I still have strong reservations and am not sure we need the legal enforceability that they provide, I am willing to accept that they will work.

But I also feel that using such structures will be difficult for the overall community to understand (on an ongoing basis).

I have a simple question. Instead of having a UA and the AC/SO naming people to be their formal representatives in the UA, why can we not simply have the AC/SO Chair or their Delegate(s) be the Members or Designators. These people have legal status, so why do we need the UAs?

I will not be able to join the call in a few hours, but will listen to the recording later in the day.

Alan

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04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter

*A better world through a better Internet *

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Hi Greg, This comment has confused me:

and the contract between the SO/AC and the UA (if one is even needed) would be much simpler.

How can there be a contract between the SO/AC if the SO/AC is not a legal entity? Cheers, Chris

On 19 May 2015, at 15:19 , Greg Shatan <gregshatanipc@gmail.com> wrote:

An Unincorporated Association (UA) requires at least two legal persons (which can be people or legal entities) to be members. In other words, you need two legal persons to "associate" with each other. So, if we use UAs, we'll need to have at least those two members in the UA, though we could have many more. They could be the Chair and Vice Chair, or they could be two or more of the members of the SO/AC (or even all the members of the SO/AC). I believe we intend to give the SO/ACs fairly broad discretion to establish their UAs as they see fit (including using legal entities other than UAs, such as non-profit corporations or LLCs), while providing them with some high level standards and guidelines so that they work as intended.

On a technical legal level, I don't believe there is a bar to having the Members of ICANN be natural persons (i.e., people) rather than UAs acting as alter egos for the SO/ACs. This creates some secondary issues. Legal entities have Bylaws or similar rules; people don't. So, the behavior of a natural person acting as an alter ego for a SO/AC would have to be regulated entirely by a contract between the SO/AC and the natural person. With the UA, most of the rules about how the UA acts can be embodied in its bylaws, and the contract between the SO/AC and the UA (if one is even needed) would be much simpler. If a natural person is a member, I think the membership would change every time the natural person changed; so you would have to go through a process of members resigning and joining fairly regularly. With the UAs, the membership would remain constant (subject to further changes in ICANN governance and the ICANN community's structures and organizations). Another complication arises in considering how to recall the board; most likely, this would require a contractual agreement among the members to act in concert and have each SO/AC remove the board member(s) that SO/AC appointed. This agreement could remain constant if we use legal entities; if we use natural persons, the agreement will need to be amended and re-executed (at least in part), whenever there is member turnover. Finally, there is just the "optic" of having, e.g., Alan Greenberg as a Member of ICANN, rather than having "ALAC Prime, an Unincorporated Association" as a Member of ICANN.

Greg

On Tue, May 19, 2015 at 12:56 AM, Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> wrote: hi all, hi Alan

I think these are exactly the sorts of questions we do need to unpick.

My own preference is that the UAs are almost total shells - that the only way they can make decisions is on the resolution of the relevant SO or AC council. That way, there's no need for "Representatives" to be appointed. The lawyers have confirmed that this approach works at a high level.

It avoids all the concerns about who needs to be chosen etc.

I really hope we can all unpick these issues to find the best model, one that is both enforceable, clear and simple. I'm confident we'll get there. We just have to wear the fact that the set of changes we are contemplating is going to be complicated to implement. It's once we get there that it has to be simple and clean.

cheers Jordan

On 19 May 2015 at 16:03, Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>> wrote: I believe I understand the issues regarding UAs as shadow organizations for the AC/SOs. Although I still have strong reservations and am not sure we need the legal enforceability that they provide, I am willing to accept that they will work.

But I also feel that using such structures will be difficult for the overall community to understand (on an ongoing basis).

I have a simple question. Instead of having a UA and the AC/SO naming people to be their formal representatives in the UA, why can we not simply have the AC/SO Chair or their Delegate(s) be the Members or Designators. These people have legal status, so why do we need the UAs?

I will not be able to join the call in a few hours, but will listen to the recording later in the day.

Alan

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People have different understanding of UA It is necessary to clarify the followings: 1. When we refer to UA ,are we talking about two or more( say three) natural persons , as chair and vice chair or their representatives within a SO or an AC establishing that UA ,? OR 2.When we refer to UA, we are talking about two or more so and AC establishing an UA ? In case of the first one, is it necessary that UA established within that SO or AC also establish another UA among themselves or it is no longer necessary? Regards Kavouss 2015-05-19 8:05 GMT+02:00 Greg Shatan <gregshatanipc@gmail.com>:

Chris,

Yes, I recognized this flaw myself in my follow-up email replying to Sam a few minutes ago.... Please see that email for my revised thinking.

Greg

On Tue, May 19, 2015 at 2:03 AM, Chris Disspain <ceo@auda.org.au> wrote:

...

Hi Greg,

This comment has confused me:

and the contract between the SO/AC and the UA (if one is even needed) would be much simpler.

How can there be a contract between the SO/AC if the SO/AC is not a legal entity?

Cheers,

Chris

On 19 May 2015, at 15:19 , Greg Shatan <gregshatanipc@gmail.com> wrote:

An Unincorporated Association (UA) requires at least two legal persons (which can be people or legal entities) to be members. In other words, you need two legal persons to "associate" with each other. So, if we use UAs, we'll need to have at least those two members in the UA, though we could have many more. They could be the Chair and Vice Chair, or they could be two or more of the members of the SO/AC (or even all the members of the SO/AC). I believe we intend to give the SO/ACs fairly broad discretion to establish their UAs as they see fit (including using legal entities other than UAs, such as non-profit corporations or LLCs), while providing them with some high level standards and guidelines so that they work as intended.

On a technical legal level, I don't believe there is a bar to having the Members of ICANN be natural persons (i.e., people) rather than UAs acting as alter egos for the SO/ACs. This creates some secondary issues. Legal entities have Bylaws or similar rules; people don't. So, the behavior of a natural person acting as an alter ego for a SO/AC would have to be regulated entirely by a contract between the SO/AC and the natural person. With the UA, most of the rules about how the UA acts can be embodied in its bylaws, and the contract between the SO/AC and the UA (if one is even needed) would be much simpler. If a natural person is a member, I think the membership would change every time the natural person changed; so you would have to go through a process of members resigning and joining fairly regularly. With the UAs, the membership would remain constant (subject to further changes in ICANN governance and the ICANN community's structures and organizations). Another complication arises in considering how to recall the board; most likely, this would require a contractual agreement among the members to act in concert and have each SO/AC remove the board member(s) that SO/AC appointed. This agreement could remain constant if we use legal entities; if we use natural persons, the agreement will need to be amended and re-executed (at least in part), whenever there is member turnover. Finally, there is just the "optic" of having, e.g., Alan Greenberg as a Member of ICANN, rather than having "ALAC Prime, an Unincorporated Association" as a Member of ICANN.

Greg

On Tue, May 19, 2015 at 12:56 AM, Jordan Carter <jordan@internetnz.net.nz

...

wrote:

...

hi all, hi Alan

I think these are exactly the sorts of questions we do need to unpick.

My own preference is that the UAs are almost total shells - that the only way they can make decisions is on the resolution of the relevant SO or AC council. That way, there's no need for "Representatives" to be appointed. The lawyers have confirmed that this approach works at a high level.

It avoids all the concerns about who needs to be chosen etc.

I really hope we can all unpick these issues to find the best model, one that is both enforceable, clear and simple. I'm confident we'll get there. We just have to wear the fact that the set of changes we are contemplating is going to be complicated to implement. It's once we get there that it has to be simple and clean.

cheers Jordan

On 19 May 2015 at 16:03, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:

...

I believe I understand the issues regarding UAs as shadow organizations for the AC/SOs. Although I still have strong reservations and am not sure we need the legal enforceability that they provide, I am willing to accept that they will work.

But I also feel that using such structures will be difficult for the overall community to understand (on an ongoing basis).

I have a simple question. Instead of having a UA and the AC/SO naming people to be their formal representatives in the UA, why can we not simply have the AC/SO Chair or their Delegate(s) be the Members or Designators. These people have legal status, so why do we need the UAs?

I will not be able to join the call in a few hours, but will listen to the recording later in the day.

Alan

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04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter

*A better world through a better Internet *

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Balder, As mentioned in my last email to Chris Disspain, I recognized that inaccuracy as I was writing to Sam Eisner and referred to it in my email to her, which I reproduce below for your convenience. I'm not sure what you mean by keeping "it simple and clear in the makings from the start." If you mean that this should be set forth in the Bylaws of the UA and/or the SOAC, then I agree. Greg My email to Sam: An Unincorporated Association (UA) requires at least two legal persons (which can be people or legal entities) to be members. In other words, you need two legal persons to "associate" with each other. So, if we use UAs, we'll need to have at least those two members in the UA, though we could have many more. They could be the Chair and Vice Chair, or they could be two or more of the members of the SO/AC (or even all the members of the SO/AC). I believe we intend to give the SO/ACs fairly broad discretion to establish their UAs as they see fit (including using legal entities other than UAs, such as non-profit corporations or LLCs), while providing them with some high level standards and guidelines so that they work as intended. On a technical legal level, I don't believe there is a bar to having the Members of ICANN be natural persons (i.e., people) rather than UAs acting as alter egos for the SO/ACs. This creates some secondary issues. Legal entities have Bylaws or similar rules; people don't. So, the behavior of a natural person acting as an alter ego for a SO/AC would have to be regulated entirely by a contract between the SO/AC and the natural person. With the UA, most of the rules about how the UA acts can be embodied in its bylaws, and the contract between the SO/AC and the UA (if one is even needed) would be much simpler. If a natural person is a member, I think the membership would change every time the natural person changed; so you would have to go through a process of members resigning and joining fairly regularly. With the UAs, the membership would remain constant (subject to further changes in ICANN governance and the ICANN community's structures and organizations). Another complication arises in considering how to recall the board; most likely, this would require a contractual agreement among the members to act in concert and have each SO/AC remove the board member(s) that SO/AC appointed. This agreement could remain constant if we use legal entities; if we use natural persons, the agreement will need to be amended and re-executed (at least in part), whenever there is member turnover. Finally, there is just the "optic" of having, e.g., Alan Greenberg as a Member of ICANN, rather than having "ALAC Prime, an Unincorporated Association" as a Member of ICANN. On Tue, May 19, 2015 at 4:27 PM, Balder Sørensen <dataekspert@gmail.com> wrote:

Hi Greg.

This comment has also confused me to:

The contract between the SO/AC and the UA (if one is even needed) would be much simpler.

What is the point of a contract between the SO/AC if the SO/AC is not a legal entity in the first place? Just asking as it make no sense.

Why not keep it simple and clear in the makings from the start?

Sound like a better plan, so less problems arise later.

Regards

Balder

2015-05-19 14:01 GMT+02:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>:

...

People have different understanding of UA It is necessary to clarify the followings:

1. When we refer to UA ,are we talking about two or more( say three) natural persons , as chair and vice chair or their representatives within a SO or an AC establishing that UA ,? OR 2.When we refer to UA, we are talking about two or more so and AC establishing an UA ? In case of the first one, is it necessary that UA established within that SO or AC also establish another UA among themselves or it is no longer necessary? Regards Kavouss

2015-05-19 8:05 GMT+02:00 Greg Shatan <gregshatanipc@gmail.com>:

...

Chris,

Yes, I recognized this flaw myself in my follow-up email replying to Sam a few minutes ago.... Please see that email for my revised thinking.

Greg

On Tue, May 19, 2015 at 2:03 AM, Chris Disspain <ceo@auda.org.au> wrote:

...

Hi Greg,

This comment has confused me:

and the contract between the SO/AC and the UA (if one is even needed) would be much simpler.

How can there be a contract between the SO/AC if the SO/AC is not a legal entity?

Cheers,

Chris

On 19 May 2015, at 15:19 , Greg Shatan <gregshatanipc@gmail.com> wrote:

An Unincorporated Association (UA) requires at least two legal persons (which can be people or legal entities) to be members. In other words, you need two legal persons to "associate" with each other. So, if we use UAs, we'll need to have at least those two members in the UA, though we could have many more. They could be the Chair and Vice Chair, or they could be two or more of the members of the SO/AC (or even all the members of the SO/AC). I believe we intend to give the SO/ACs fairly broad discretion to establish their UAs as they see fit (including using legal entities other than UAs, such as non-profit corporations or LLCs), while providing them with some high level standards and guidelines so that they work as intended.

On a technical legal level, I don't believe there is a bar to having the Members of ICANN be natural persons (i.e., people) rather than UAs acting as alter egos for the SO/ACs. This creates some secondary issues. Legal entities have Bylaws or similar rules; people don't. So, the behavior of a natural person acting as an alter ego for a SO/AC would have to be regulated entirely by a contract between the SO/AC and the natural person. With the UA, most of the rules about how the UA acts can be embodied in its bylaws, and the contract between the SO/AC and the UA (if one is even needed) would be much simpler. If a natural person is a member, I think the membership would change every time the natural person changed; so you would have to go through a process of members resigning and joining fairly regularly. With the UAs, the membership would remain constant (subject to further changes in ICANN governance and the ICANN community's structures and organizations). Another complication arises in considering how to recall the board; most likely, this would require a contractual agreement among the members to act in concert and have each SO/AC remove the board member(s) that SO/AC appointed. This agreement could remain constant if we use legal entities; if we use natural persons, the agreement will need to be amended and re-executed (at least in part), whenever there is member turnover. Finally, there is just the "optic" of having, e.g., Alan Greenberg as a Member of ICANN, rather than having "ALAC Prime, an Unincorporated Association" as a Member of ICANN.

Greg

On Tue, May 19, 2015 at 12:56 AM, Jordan Carter < jordan@internetnz.net.nz> wrote:

...

hi all, hi Alan

I think these are exactly the sorts of questions we do need to unpick.

My own preference is that the UAs are almost total shells - that the only way they can make decisions is on the resolution of the relevant SO or AC council. That way, there's no need for "Representatives" to be appointed. The lawyers have confirmed that this approach works at a high level.

It avoids all the concerns about who needs to be chosen etc.

I really hope we can all unpick these issues to find the best model, one that is both enforceable, clear and simple. I'm confident we'll get there. We just have to wear the fact that the set of changes we are contemplating is going to be complicated to implement. It's once we get there that it has to be simple and clean.

cheers Jordan

On 19 May 2015 at 16:03, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:

...

I believe I understand the issues regarding UAs as shadow organizations for the AC/SOs. Although I still have strong reservations and am not sure we need the legal enforceability that they provide, I am willing to accept that they will work.

But I also feel that using such structures will be difficult for the overall community to understand (on an ongoing basis).

I have a simple question. Instead of having a UA and the AC/SO naming people to be their formal representatives in the UA, why can we not simply have the AC/SO Chair or their Delegate(s) be the Members or Designators. These people have legal status, so why do we need the UAs?

I will not be able to join the call in a few hours, but will listen to the recording later in the day.

Alan

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Hi all This thread is useful to tease out some of the questions and concerns and confusions with the UA model, and as rapporteur for the WP responsible for refining this part of the proposal I am reading it avidly. I just want to take the opportunity to remind us all why membership (or something analogous) is an important aspect of the reforms we are proposing - no matter the precise details. At the moment without members, ICANN is fundamentally controlled by the Board. The only external constraint is the IANA functions contract with NTIA. The long list of community concerns and examples detailed by our earlier work in this CCWG shows that even with that constraint, accountability isn't up to scratch. We are working on a settlement without that NTIA contract. Accountability has to get better even *with* the contract. Fundamentally better, without it. Either we have a membership structure or some other durable approach that firmly embeds the stewardship of ICANN and the DNS in the ICANN community, or... we remain with Board control. Given ICANN's history, anyone who is advocating a continuation of Board control is arguing for a model that can't be suitably accountable, and that seems highly likely to fail over time, with real risks to the security and stability of the DNS. A real, fundamental source of power over the company absent the contract *has* to be established. The membership model is the most suitable one to achieve that that we have considered so far. So: we need to be creative and thoughtful in how we make that model work in a fashion that disrupts ICANN's general operation as little as possible. But the key there is "as possible." Real change is needed and much refinement and comment is needed. If there are proposals to achieve the same shift in control from ICANN the corporation to ICANN the community, I hope they come through in the comment period. So far, none have - but there are still two weeks of comments to go. cheers Jordan On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net> wrote:

This whole thread seems to have massively overcomplicated the question.

Unless I have missed something, the only reason we need "members" is to stand as plaintiff-of-record in a lawsuit against the ICANN Board complaining that the Board has failed to adhere to the corporations bylaws. Such a lawsuit would in reality be conducted by an SO or AC, but a person with legal personality needs to act as plaintiff-of-record.

Why not simply proceed, as Samantha suggested, with the SOACs' Chairs as the members of the corporation? Could the Articles (or Bylaws, as appropriate) not simply identify the SOACs' Chairs as the members, ex officio and pro tempore?

An SOAC Chair that refused to act as plaintiff-of-record when required to do so by his SOAC could simply be replaced. Likewise a Chair that went rogue and initiated a lawsuit without their consent.

You can't make the SOAC a member without turning them into UAs, with all the attendent complexity. But I don't see that there should be any such problem with designating the chair of a SOAC, who will be a natural person, as a member of the corporation; the fact that the SOAC is not a UA is then irrelevant.

In the event that there were any dispute as to whether a particular person is in truth an SOAC Chair, this would surely be a simple preliminary matter of fact for the court. It is surely beyond dispute that if the Articles designated "Alan Greenberg" as the member, it would be a matter of fact as to whether or not the person before the court was indeed Alan Greenberg; surely it is the same as to whether the person before the court is "the current Chair of ALAC", if that should be what is specified in the Articles?

Malcolm.

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Hi, I think I understand the argument about members becoming that to which ICANN, and its Board, are responsible and accountable. From that perspective it sounds really good. What I have having trouble understanding is an accountability structure were there is a discontinuity between the SOAC and the UA. If each of the Board designating SOAC were the UA, it think I would understand. But I just do not see how the UA are accountable to the people and organizations that participate in each of the SOAC. Yes, the SOAC designates it UA representative, but how is (s)electing one of these any more accountable than (s)electing the Board as we do now. Don't we just move the perceived/possible unaccountability down a layer in the hierarchy? I think I am as comfortable with complexity as the next person. And I understand how in computer science any problem can solved by adding another layer of indirection, but in this case the extra layer we are creating does not seem to really be accountable to anyone but itself, except by (s)election procedures. I am sure I am missing some critical bit of understanding and hope someone can explain the chain of accountability in the membership model. I feel that we are still hand-waving a bit in the explanations. In a sense it seems as if we are creating a 'council' that is omnipotent in the powers it is given, except that they can somehow be replaced. Thanks and apologies for my persistent confusion. avri On 20-May-15 01:14, Jordan Carter wrote:

Hi all

This thread is useful to tease out some of the questions and concerns and confusions with the UA model, and as rapporteur for the WP responsible for refining this part of the proposal I am reading it avidly.

I just want to take the opportunity to remind us all why membership (or something analogous) is an important aspect of the reforms we are proposing - no matter the precise details.

At the moment without members, ICANN is fundamentally controlled by the Board. The only external constraint is the IANA functions contract with NTIA. The long list of community concerns and examples detailed by our earlier work in this CCWG shows that even with that constraint, accountability isn't up to scratch.

We are working on a settlement without that NTIA contract. Accountability has to get better even *with* the contract. Fundamentally better, without it.

Either we have a membership structure or some other durable approach that firmly embeds the stewardship of ICANN and the DNS in the ICANN community, or... we remain with Board control.

Given ICANN's history, anyone who is advocating a continuation of Board control is arguing for a model that can't be suitably accountable, and that seems highly likely to fail over time, with real risks to the security and stability of the DNS.

A real, fundamental source of power over the company absent the contract *has* to be established. The membership model is the most suitable one to achieve that that we have considered so far.

So: we need to be creative and thoughtful in how we make that model work in a fashion that disrupts ICANN's general operation as little as possible. But the key there is "as possible." Real change is needed and much refinement and comment is needed.

If there are proposals to achieve the same shift in control from ICANN the corporation to ICANN the community, I hope they come through in the comment period. So far, none have - but there are still two weeks of comments to go.

cheers Jordan

On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>> wrote:

This whole thread seems to have massively overcomplicated the question.

Unless I have missed something, the only reason we need "members" is to stand as plaintiff-of-record in a lawsuit against the ICANN Board complaining that the Board has failed to adhere to the corporations bylaws. Such a lawsuit would in reality be conducted by an SO or AC, but a person with legal personality needs to act as plaintiff-of-record.

Why not simply proceed, as Samantha suggested, with the SOACs' Chairs as the members of the corporation? Could the Articles (or Bylaws, as appropriate) not simply identify the SOACs' Chairs as the members, ex officio and pro tempore?

An SOAC Chair that refused to act as plaintiff-of-record when required to do so by his SOAC could simply be replaced. Likewise a Chair that went rogue and initiated a lawsuit without their consent.

You can't make the SOAC a member without turning them into UAs, with all the attendent complexity. But I don't see that there should be any such problem with designating the chair of a SOAC, who will be a natural person, as a member of the corporation; the fact that the SOAC is not a UA is then irrelevant.

In the event that there were any dispute as to whether a particular person is in truth an SOAC Chair, this would surely be a simple preliminary matter of fact for the court. It is surely beyond dispute that if the Articles designated "Alan Greenberg" as the member, it would be a matter of fact as to whether or not the person before the court was indeed Alan Greenberg; surely it is the same as to whether the person before the court is "the current Chair of ALAC", if that should be what is specified in the Articles?

Malcolm.

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Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it. But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing. Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years. The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub. Alan At 20/05/2015 12:41 AM, Avri Doria wrote:

Hi,

I think I understand the argument about members becoming that to which ICANN, and its Board, are responsible and accountable. From that perspective it sounds really good.

What I have having trouble understanding is an accountability structure were there is a discontinuity between the SOAC and the UA. If each of the Board designating SOAC were the UA, it think I would understand. But I just do not see how the UA are accountable to the people and organizations that participate in each of the SOAC. Yes, the SOAC designates it UA representative, but how is (s)electing one of these any more accountable than (s)electing the Board as we do now. Don't we just move the perceived/possible unaccountability down a layer in the hierarchy?

I think I am as comfortable with complexity as the next person. And I understand how in computer science any problem can solved by adding another layer of indirection, but in this case the extra layer we are creating does not seem to really be accountable to anyone but itself, except by (s)election procedures.

I am sure I am missing some critical bit of understanding and hope someone can explain the chain of accountability in the membership model. I feel that we are still hand-waving a bit in the explanations. In a sense it seems as if we are creating a 'council' that is omnipotent in the powers it is given, except that they can somehow be replaced.

Thanks and apologies for my persistent confusion.

avri

On 20-May-15 01:14, Jordan Carter wrote:

...

Hi all

This thread is useful to tease out some of the questions and concerns and confusions with the UA model, and as rapporteur for the WP responsible for refining this part of the proposal I am reading it avidly.

I just want to take the opportunity to remind us all why membership (or something analogous) is an important aspect of the reforms we are proposing - no matter the precise details.

At the moment without members, ICANN is fundamentally controlled by the Board. The only external constraint is the IANA functions contract with NTIA. The long list of community concerns and examples detailed by our earlier work in this CCWG shows that even with that constraint, accountability isn't up to scratch.

We are working on a settlement without that NTIA contract. Accountability has to get better even *with* the contract. Fundamentally better, without it.

Either we have a membership structure or some other durable approach that firmly embeds the stewardship of ICANN and the DNS in the ICANN community, or... we remain with Board control.

Given ICANN's history, anyone who is advocating a continuation of Board control is arguing for a model that can't be suitably accountable, and that seems highly likely to fail over time, with real risks to the security and stability of the DNS.

A real, fundamental source of power over the company absent the contract *has* to be established. The membership model is the most suitable one to achieve that that we have considered so far.

So: we need to be creative and thoughtful in how we make that model work in a fashion that disrupts ICANN's general operation as little as possible. But the key there is "as possible." Real change is needed and much refinement and comment is needed.

If there are proposals to achieve the same shift in control from ICANN the corporation to ICANN the community, I hope they come through in the comment period. So far, none have - but there are still two weeks of comments to go.

cheers Jordan

On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>> wrote:

This whole thread seems to have massively overcomplicated the question.

Unless I have missed something, the only reason we need "members" is to stand as plaintiff-of-record in a lawsuit against the ICANN Board complaining that the Board has failed to adhere to the corporations bylaws. Such a lawsuit would in reality be conducted by an SO or AC, but a person with legal personality needs to act as plaintiff-of-record.

Why not simply proceed, as Samantha suggested, with the SOACs' Chairs as the members of the corporation? Could the Articles (or Bylaws, as appropriate) not simply identify the SOACs' Chairs as the members, ex officio and pro tempore?

An SOAC Chair that refused to act as plaintiff-of-record when required to do so by his SOAC could simply be replaced. Likewise a Chair that went rogue and initiated a lawsuit without their consent.

You can't make the SOAC a member without turning them into UAs, with all the attendent complexity. But I don't see that there should be any such problem with designating the chair of a SOAC, who will be a natural person, as a member of the corporation; the fact that the SOAC is not a UA is then irrelevant.

In the event that there were any dispute as to whether a particular person is in truth an SOAC Chair, this would surely be a simple preliminary matter of fact for the court. It is surely beyond dispute that if the Articles designated "Alan Greenberg" as the member, it would be a matter of fact as to whether or not the person before the court was indeed Alan Greenberg; surely it is the same as to whether the person before the court is "the current Chair of ALAC", if that should be what is specified in the Articles?

Malcolm.

-- Malcolm Hutty | tel: +44 20 7645 3523 <tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/

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Jordan, All, Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues. First of all, I want to acknowledge that I concur with you on a number points. I agree that we need to develop a model that disrupts ICANN’s operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed. I also agree that levels of accountability are not “up to scratch” and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported. However, where I disagree with you is in respect to the absolute need for an additional mechanism, to supersede the current IANA functions contract, in order to ensure that the community can ‘control’ the Board because it has the right to bring a legal action in a US court. I disagree with the characterisation that the purpose of the CCWG’s work is to wrest “control” from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to “enforceability”, neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above. The need to assert absolute “control” or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, binding arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require? Further, you refer to a “long list” of community concerns about ICANN’s current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN’s bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board. To be clear – I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms. I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption. Cheers, Chris

On 20 May 2015, at 15:33 , Jordan Carter <jordan@internetnz.net.nz> wrote:

We need legal persons to be members of ICANN.

They can be individual humans or they can be organisations.

UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould.

I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....)

cheers Jordan

On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>> wrote: Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it.

But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing.

Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years.

The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub.

Alan

At 20/05/2015 12:41 AM, Avri Doria wrote: Hi,

I think I understand the argument about members becoming that to which ICANN, and its Board, are responsible and accountable. From that perspective it sounds really good.

What I have having trouble understanding is an accountability structure were there is a discontinuity between the SOAC and the UA. If each of the Board designating SOAC were the UA, it think I would understand. But I just do not see how the UA are accountable to the people and organizations that participate in each of the SOAC. Yes, the SOAC designates it UA representative, but how is (s)electing one of these any more accountable than (s)electing the Board as we do now. Don't we just move the perceived/possible unaccountability down a layer in the hierarchy?

I think I am as comfortable with complexity as the next person. And I understand how in computer science any problem can solved by adding another layer of indirection, but in this case the extra layer we are creating does not seem to really be accountable to anyone but itself, except by (s)election procedures.

I am sure I am missing some critical bit of understanding and hope someone can explain the chain of accountability in the membership model. I feel that we are still hand-waving a bit in the explanations. In a sense it seems as if we are creating a 'council' that is omnipotent in the powers it is given, except that they can somehow be replaced.

Thanks and apologies for my persistent confusion.

avri

On 20-May-15 01:14, Jordan Carter wrote:

...

Hi all

This thread is useful to tease out some of the questions and concerns and confusions with the UA model, and as rapporteur for the WP responsible for refining this part of the proposal I am reading it avidly.

I just want to take the opportunity to remind us all why membership (or something analogous) is an important aspect of the reforms we are proposing - no matter the precise details.

At the moment without members, ICANN is fundamentally controlled by the Board. The only external constraint is the IANA functions contract with NTIA. The long list of community concerns and examples detailed by our earlier work in this CCWG shows that even with that constraint, accountability isn't up to scratch.

We are working on a settlement without that NTIA contract. Accountability has to get better even *with* the contract. Fundamentally better, without it.

Either we have a membership structure or some other durable approach that firmly embeds the stewardship of ICANN and the DNS in the ICANN community, or... we remain with Board control.

Given ICANN's history, anyone who is advocating a continuation of Board control is arguing for a model that can't be suitably accountable, and that seems highly likely to fail over time, with real risks to the security and stability of the DNS.

A real, fundamental source of power over the company absent the contract *has* to be established. The membership model is the most suitable one to achieve that that we have considered so far.

So: we need to be creative and thoughtful in how we make that model work in a fashion that disrupts ICANN's general operation as little as possible. But the key there is "as possible." Real change is needed and much refinement and comment is needed.

If there are proposals to achieve the same shift in control from ICANN the corporation to ICANN the community, I hope they come through in the comment period. So far, none have - but there are still two weeks of comments to go.

cheers Jordan

On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net> <mailto:malcolm@linx.net <mailto:malcolm@linx.net>>> wrote:

This whole thread seems to have massively overcomplicated the question.

Unless I have missed something, the only reason we need "members" is to stand as plaintiff-of-record in a lawsuit against the ICANN Board complaining that the Board has failed to adhere to the corporations bylaws. Such a lawsuit would in reality be conducted by an SO or AC, but a person with legal personality needs to act as plaintiff-of-record.

Why not simply proceed, as Samantha suggested, with the SOACs' Chairs as the members of the corporation? Could the Articles (or Bylaws, as appropriate) not simply identify the SOACs' Chairs as the members, ex officio and pro tempore?

An SOAC Chair that refused to act as plaintiff-of-record when required to do so by his SOAC could simply be replaced. Likewise a Chair that went rogue and initiated a lawsuit without their consent.

You can't make the SOAC a member without turning them into UAs, with all the attendent complexity. But I don't see that there should be any such problem with designating the chair of a SOAC, who will be a natural person, as a member of the corporation; the fact that the SOAC is not a UA is then irrelevant.

In the event that there were any dispute as to whether a particular person is in truth an SOAC Chair, this would surely be a simple preliminary matter of fact for the court. It is surely beyond dispute that if the Articles designated "Alan Greenberg" as the member, it would be a matter of fact as to whether or not the person before the court was indeed Alan Greenberg; surely it is the same as to whether the person before the court is "the current Chair of ALAC", if that should be what is specified in the Articles?

Malcolm.

-- Malcolm Hutty | tel: +44 20 7645 3523 <tel:%2B44%2020%207645%203523> <tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ <http://publicaffairs.linx.net/>

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Hi Chris, I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power. Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve. You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community. We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone? The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability. You asked, "Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" I believe the answer is yes. Not only worth it, but necessary. Regards, Keith On May 20, 2015, at 2:40 AM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: For clarity, the last sentence of paragraph 8 below should read: "However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board." Cheers, Chris On 20 May 2015, at 16:13 , Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Jordan, All, Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues. First of all, I want to acknowledge that I concur with you on a number points. I agree that we need to develop a model that disrupts ICANN’s operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed. I also agree that levels of accountability are not “up to scratch” and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported. However, where I disagree with you is in respect to the absolute need for an additional mechanism, to supersede the current IANA functions contract, in order to ensure that the community can ‘control’ the Board because it has the right to bring a legal action in a US court. I disagree with the characterisation that the purpose of the CCWG’s work is to wrest “control” from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to “enforceability”, neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above. The need to assert absolute “control” or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, binding arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require? Further, you refer to a “long list” of community concerns about ICANN’s current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN’s bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board. To be clear – I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms. I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption. Cheers, Chris On 20 May 2015, at 15:33 , Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: We need legal persons to be members of ICANN. They can be individual humans or they can be organisations. UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould. I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....) cheers Jordan On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> wrote: Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it. But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing. Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years. The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub. Alan At 20/05/2015 12:41 AM, Avri Doria wrote: Hi, I think I understand the argument about members becoming that to which ICANN, and its Board, are responsible and accountable. From that perspective it sounds really good. What I have having trouble understanding is an accountability structure were there is a discontinuity between the SOAC and the UA. If each of the Board designating SOAC were the UA, it think I would understand. But I just do not see how the UA are accountable to the people and organizations that participate in each of the SOAC. Yes, the SOAC designates it UA representative, but how is (s)electing one of these any more accountable than (s)electing the Board as we do now. Don't we just move the perceived/possible unaccountability down a layer in the hierarchy? I think I am as comfortable with complexity as the next person. And I understand how in computer science any problem can solved by adding another layer of indirection, but in this case the extra layer we are creating does not seem to really be accountable to anyone but itself, except by (s)election procedures. I am sure I am missing some critical bit of understanding and hope someone can explain the chain of accountability in the membership model. I feel that we are still hand-waving a bit in the explanations. In a sense it seems as if we are creating a 'council' that is omnipotent in the powers it is given, except that they can somehow be replaced. Thanks and apologies for my persistent confusion. avri On 20-May-15 01:14, Jordan Carter wrote:

Hi all

This thread is useful to tease out some of the questions and concerns and confusions with the UA model, and as rapporteur for the WP responsible for refining this part of the proposal I am reading it avidly.

I just want to take the opportunity to remind us all why membership (or something analogous) is an important aspect of the reforms we are proposing - no matter the precise details.

At the moment without members, ICANN is fundamentally controlled by the Board. The only external constraint is the IANA functions contract with NTIA. The long list of community concerns and examples detailed by our earlier work in this CCWG shows that even with that constraint, accountability isn't up to scratch.

We are working on a settlement without that NTIA contract. Accountability has to get better even *with* the contract. Fundamentally better, without it.

Either we have a membership structure or some other durable approach that firmly embeds the stewardship of ICANN and the DNS in the ICANN community, or... we remain with Board control.

Given ICANN's history, anyone who is advocating a continuation of Board control is arguing for a model that can't be suitably accountable, and that seems highly likely to fail over time, with real risks to the security and stability of the DNS.

A real, fundamental source of power over the company absent the contract *has* to be established. The membership model is the most suitable one to achieve that that we have considered so far.

So: we need to be creative and thoughtful in how we make that model work in a fashion that disrupts ICANN's general operation as little as possible. But the key there is "as possible." Real change is needed and much refinement and comment is needed.

If there are proposals to achieve the same shift in control from ICANN the corporation to ICANN the community, I hope they come through in the comment period. So far, none have - but there are still two weeks of comments to go.

cheers Jordan

On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net> <mailto:malcolm@linx.net<mailto:malcolm@linx.net>>> wrote:

This whole thread seems to have massively overcomplicated the question.

Unless I have missed something, the only reason we need "members" is to stand as plaintiff-of-record in a lawsuit against the ICANN Board complaining that the Board has failed to adhere to the corporations bylaws. Such a lawsuit would in reality be conducted by an SO or AC, but a person with legal personality needs to act as plaintiff-of-record.

Why not simply proceed, as Samantha suggested, with the SOACs' Chairs as the members of the corporation? Could the Articles (or Bylaws, as appropriate) not simply identify the SOACs' Chairs as the members, ex officio and pro tempore?

An SOAC Chair that refused to act as plaintiff-of-record when required to do so by his SOAC could simply be replaced. Likewise a Chair that went rogue and initiated a lawsuit without their consent.

You can't make the SOAC a member without turning them into UAs, with all the attendent complexity. But I don't see that there should be any such problem with designating the chair of a SOAC, who will be a natural person, as a member of the corporation; the fact that the SOAC is not a UA is then irrelevant.

In the event that there were any dispute as to whether a particular person is in truth an SOAC Chair, this would surely be a simple preliminary matter of fact for the court. It is surely beyond dispute that if the Articles designated "Alan Greenberg" as the member, it would be a matter of fact as to whether or not the person before the court was indeed Alan Greenberg; surely it is the same as to whether the person before the court is "the current Chair of ALAC", if that should be what is specified in the Articles?

Malcolm.

-- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> <tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/

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-- Jordan Carter

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/A better world through a better Internet /

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Agreed and exceptionally well put. Thanks Keith.

On May 20, 2015, at 12:44 PM, Drazek, Keith <kdrazek@verisign.com> wrote:

Hi Chris,

I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power.

Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve.

You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community.

We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone?

The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability.

You asked, "Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" I believe the answer is yes. Not only worth it, but necessary.

Regards, Keith

On May 20, 2015, at 2:40 AM, Chris Disspain <ceo@auda.org.au> wrote:

...

For clarity, the last sentence of paragraph 8 below should read:

"However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board."

Cheers,

Chris

...

On 20 May 2015, at 16:13 , Chris Disspain <ceo@auda.org.au> wrote:

Jordan, All,

Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues.

First of all, I want to acknowledge that I concur with you on a number points.

I agree that we need to develop a model that disrupts ICANN’s operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed.

I also agree that levels of accountability are not “up to scratch” and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported.

However, where I disagree with you is in respect to the absolute need for an additional mechanism, to supersede the current IANA functions contract, in order to ensure that the community can ‘control’ the Board because it has the right to bring a legal action in a US court.

I disagree with the characterisation that the purpose of the CCWG’s work is to wrest “control” from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to “enforceability”, neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above.

The need to assert absolute “control” or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, binding arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?

Further, you refer to a “long list” of community concerns about ICANN’s current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN’s bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board.

To be clear – I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms.

I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption.

Cheers,

Chris

...

On 20 May 2015, at 15:33 , Jordan Carter <jordan@internetnz.net.nz> wrote:

We need legal persons to be members of ICANN.

They can be individual humans or they can be organisations.

UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould.

I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....)

cheers Jordan

...

On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg@mcgill.ca> wrote: Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it.

But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing.

Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years.

The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub.

Alan

At 20/05/2015 12:41 AM, Avri Doria wrote:

...

Hi,

I think I understand the argument about members becoming that to which ICANN, and its Board, are responsible and accountable. From that perspective it sounds really good.

What I have having trouble understanding is an accountability structure were there is a discontinuity between the SOAC and the UA. If each of the Board designating SOAC were the UA, it think I would understand. But I just do not see how the UA are accountable to the people and organizations that participate in each of the SOAC. Yes, the SOAC designates it UA representative, but how is (s)electing one of these any more accountable than (s)electing the Board as we do now. Don't we just move the perceived/possible unaccountability down a layer in the hierarchy?

I think I am as comfortable with complexity as the next person. And I understand how in computer science any problem can solved by adding another layer of indirection, but in this case the extra layer we are creating does not seem to really be accountable to anyone but itself, except by (s)election procedures.

I am sure I am missing some critical bit of understanding and hope someone can explain the chain of accountability in the membership model. I feel that we are still hand-waving a bit in the explanations. In a sense it seems as if we are creating a 'council' that is omnipotent in the powers it is given, except that they can somehow be replaced.

Thanks and apologies for my persistent confusion.

avri

On 20-May-15 01:14, Jordan Carter wrote: > Hi all > > This thread is useful to tease out some of the questions and concerns > and confusions with the UA model, and as rapporteur for the WP > responsible for refining this part of the proposal I am reading it avidly. > > I just want to take the opportunity to remind us all why membership > (or something analogous) is an important aspect of the reforms we are > proposing - no matter the precise details. > > At the moment without members, ICANN is fundamentally controlled by > the Board. The only external constraint is the IANA functions contract > with NTIA. The long list of community concerns and examples detailed > by our earlier work in this CCWG shows that even with that constraint, > accountability isn't up to scratch. > > We are working on a settlement without that NTIA contract. > Accountability has to get better even *with* the contract. > Fundamentally better, without it. > > Either we have a membership structure or some other durable approach > that firmly embeds the stewardship of ICANN and the DNS in the ICANN > community, or... we remain with Board control. > > Given ICANN's history, anyone who is advocating a continuation of > Board control is arguing for a model that can't be suitably > accountable, and that seems highly likely to fail over time, with real > risks to the security and stability of the DNS. > > A real, fundamental source of power over the company absent the > contract *has* to be established. The membership model is the most > suitable one to achieve that that we have considered so far. > > So: we need to be creative and thoughtful in how we make that model > work in a fashion that disrupts ICANN's general operation as little as > possible. But the key there is "as possible." Real change is needed > and much refinement and comment is needed. > > If there are proposals to achieve the same shift in control from ICANN > the corporation to ICANN the community, I hope they come through in > the comment period. So far, none have - but there are still two weeks > of comments to go. > > cheers > Jordan > > > On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net > <mailto:malcolm@linx.net>> wrote: > > This whole thread seems to have massively overcomplicated the > question. > > > Unless I have missed something, the only reason we need "members" > is to > stand as plaintiff-of-record in a lawsuit against the ICANN Board > complaining that the Board has failed to adhere to the corporations > bylaws. Such a lawsuit would in reality be conducted by an SO or > AC, but > a person with legal personality needs to act as plaintiff-of-record. > > Why not simply proceed, as Samantha suggested, with the SOACs' > Chairs as > the members of the corporation? Could the Articles (or Bylaws, as > appropriate) not simply identify the SOACs' Chairs as the members, ex > officio and pro tempore? > > An SOAC Chair that refused to act as plaintiff-of-record when required > to do so by his SOAC could simply be replaced. Likewise a Chair that > went rogue and initiated a lawsuit without their consent. > > You can't make the SOAC a member without turning them into UAs, > with all > the attendent complexity. But I don't see that there should be any > such > problem with designating the chair of a SOAC, who will be a natural > person, as a member of the corporation; the fact that the SOAC is > not a > UA is then irrelevant. > > In the event that there were any dispute as to whether a particular > person is in truth an SOAC Chair, this would surely be a simple > preliminary matter of fact for the court. It is surely beyond dispute > that if the Articles designated "Alan Greenberg" as the member, it > would > be a matter of fact as to whether or not the person before the > court was > indeed Alan Greenberg; surely it is the same as to whether the person > before the court is "the current Chair of ALAC", if that should be > what > is specified in the Articles? > > Malcolm. > > -- > Malcolm Hutty | tel: +44 20 7645 3523 > <tel:%2B44%2020%207645%203523> > 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 > > > _______________________________________________ > 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 / > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Steve, your point doesn't quite seem to fit here. Keith was making the argument that there is currently a legally enforceable constraint or outside source of accountability via the NTIA contract. If the NTIA contract ends and that's it, then there is no longer an external/enforceable authority over ICANN. If a membership model was implemented, through whatever means, then again there is an enforceable constraint that can hold the company to account. Those are all straightforward observations. The intention that sits behind the framework here is a very simple division of powers, of the sort we are all familiar with through our various constitutional systems of government. It isn't about arguing that proposed members or board members are more or less reliable. It is that by structuring the relationship the right way (our proposal, a membership model), you systemically create a balance. That balance is similar to what we all enjoy today with the NTIA contract. I am not sure what it is you'd like Keith to apologise for, but I personally largely agree with all he wrote. best, Jordan On Thursday, 21 May 2015, Steve Crocker <steve@shinkuro.com> wrote:

On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek@verisign.com <javascript:_e(%7B%7D,'cvml','kdrazek@verisign.com');>> wrote:

Hi Chris,

I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power.

Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve.

You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community.

Keith, Edward and Edward,

We have covered the point above several times and it's long past time to stop throwing this half-trust around. Yes, ICANN is legally a corporation, and, yes, directors of a corporation have a duty to protect the corporation. But that generality has a far different meaning in a for profit corporation like Verisign than it does in a not-for-profit public benefit corporation like ICANN. The directors are obliged to pursue the purpose and mission stated in the incorporation papers and the bylaws. The directors serve the community, and we do so by exercising oversight over the corporation toward that end.

There will always be differences of opinion about the particular details, but those sorts of differences of opinion will arise in *any* governance model. The prevailing assumption in much of the correspondence on this list is that the proposed members will somehow be more balanced, more inclusive and more trustworthy in protecting the interests of the overall community than the ICANN Board is. That's simply false. And I think you know that it is.

Please correct yourself and apologize.

Thanks,

Steve

We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone?

The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability.

You asked, *"**Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" *I believe the answer is yes. Not only worth it, but necessary.

Regards, Keith

On May 20, 2015, at 2:40 AM, Chris Disspain <ceo@auda.org.au <javascript:_e(%7B%7D,'cvml','ceo@auda.org.au');>> wrote:

For clarity, the last sentence of paragraph 8 below should read:

"However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board."

Cheers,

Chris

On 20 May 2015, at 16:13 , Chris Disspain <ceo@auda.org.au <javascript:_e(%7B%7D,'cvml','ceo@auda.org.au');>> wrote:

Jordan, All,

Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues.

First of all, I want to acknowledge that I concur with you on a number points.

I agree that we need to develop a model that disrupts ICANN's operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed.

I also agree that levels of accountability are not "up to scratch" and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported.

However, where I disagree with you is in respect to the absolute need for an *additional* mechanism, to supersede the current IANA functions contract, in order to ensure that the community can 'control' the Board because it has the right to bring a legal action in a US court.

I disagree with the characterisation that the purpose of the CCWG's work is to wrest "control" from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to "enforceability", neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above.

The need to assert absolute "control" or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, *binding *arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn't the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?

Further, you refer to a "long list" of community concerns about ICANN's current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN's bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board.

To be clear - I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms.

I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption.

Cheers,

Chris

On 20 May 2015, at 15:33 , Jordan Carter <jordan@internetnz.net.nz <javascript:_e(%7B%7D,'cvml','jordan@internetnz.net.nz');>> wrote:

We need legal persons to be members of ICANN.

They can be individual humans or they can be organisations.

UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould.

I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....)

cheers Jordan

On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg@mcgill.ca <javascript:_e(%7B%7D,'cvml','alan.greenberg@mcgill.ca');>> wrote:

...

Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it.

But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing.

Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years.

The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub.

Alan

At 20/05/2015 12:41 AM, Avri Doria wrote:

...

Hi,

I think I understand the argument about members becoming that to which ICANN, and its Board, are responsible and accountable. From that perspective it sounds really good.

What I have having trouble understanding is an accountability structure were there is a discontinuity between the SOAC and the UA. If each of the Board designating SOAC were the UA, it think I would understand. But I just do not see how the UA are accountable to the people and organizations that participate in each of the SOAC. Yes, the SOAC designates it UA representative, but how is (s)electing one of these any more accountable than (s)electing the Board as we do now. Don't we just move the perceived/possible unaccountability down a layer in the hierarchy?

I think I am as comfortable with complexity as the next person. And I understand how in computer science any problem can solved by adding another layer of indirection, but in this case the extra layer we are creating does not seem to really be accountable to anyone but itself, except by (s)election procedures.

I am sure I am missing some critical bit of understanding and hope someone can explain the chain of accountability in the membership model. I feel that we are still hand-waving a bit in the explanations. In a sense it seems as if we are creating a 'council' that is omnipotent in the powers it is given, except that they can somehow be replaced.

Thanks and apologies for my persistent confusion.

avri

On 20-May-15 01:14, Jordan Carter wrote:

...

Hi all

This thread is useful to tease out some of the questions and concerns and confusions with the UA model, and as rapporteur for the WP responsible for refining this part of the proposal I am reading it avidly.

I just want to take the opportunity to remind us all why membership (or something analogous) is an important aspect of the reforms we are proposing - no matter the precise details.

At the moment without members, ICANN is fundamentally controlled by the Board. The only external constraint is the IANA functions contract with NTIA. The long list of community concerns and examples detailed by our earlier work in this CCWG shows that even with that constraint, accountability isn't up to scratch.

We are working on a settlement without that NTIA contract. Accountability has to get better even *with* the contract. Fundamentally better, without it.

Either we have a membership structure or some other durable approach that firmly embeds the stewardship of ICANN and the DNS in the ICANN community, or... we remain with Board control.

Given ICANN's history, anyone who is advocating a continuation of Board control is arguing for a model that can't be suitably accountable, and that seems highly likely to fail over time, with real risks to the security and stability of the DNS.

A real, fundamental source of power over the company absent the contract *has* to be established. The membership model is the most suitable one to achieve that that we have considered so far.

So: we need to be creative and thoughtful in how we make that model work in a fashion that disrupts ICANN's general operation as little as possible. But the key there is "as possible." Real change is needed and much refinement and comment is needed.

If there are proposals to achieve the same shift in control from ICANN the corporation to ICANN the community, I hope they come through in the comment period. So far, none have - but there are still two weeks of comments to go.

cheers Jordan

On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net <javascript:_e(%7B%7D,'cvml','malcolm@linx.net');> <mailto:malcolm@linx.net <javascript:_e(%7B%7D,'cvml','malcolm@linx.net');>>> wrote:

This whole thread seems to have massively overcomplicated the question.

Unless I have missed something, the only reason we need "members" is to stand as plaintiff-of-record in a lawsuit against the ICANN Board complaining that the Board has failed to adhere to the corporations bylaws. Such a lawsuit would in reality be conducted by an SO or AC, but a person with legal personality needs to act as plaintiff-of-record.

Why not simply proceed, as Samantha suggested, with the SOACs' Chairs as the members of the corporation? Could the Articles (or Bylaws, as appropriate) not simply identify the SOACs' Chairs as the members, ex officio and pro tempore?

An SOAC Chair that refused to act as plaintiff-of-record when required to do so by his SOAC could simply be replaced. Likewise a Chair that went rogue and initiated a lawsuit without their consent.

You can't make the SOAC a member without turning them into UAs, with all the attendent complexity. But I don't see that there should be any such problem with designating the chair of a SOAC, who will be a natural person, as a member of the corporation; the fact that the SOAC is not a UA is then irrelevant.

In the event that there were any dispute as to whether a particular person is in truth an SOAC Chair, this would surely be a simple preliminary matter of fact for the court. It is surely beyond dispute that if the Articles designated "Alan Greenberg" as the member, it would be a matter of fact as to whether or not the person before the court was indeed Alan Greenberg; surely it is the same as to whether the person before the court is "the current Chair of ALAC", if that should be what is specified in the Articles?

Malcolm.

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Jordan, Steve, Keith, Chris, etc. I thought Keith’s post raised valid points and didn’t see them as provocative or inaccurate. In fact, I think I recall hearing similar statements going back to ATRT 1. It’s worth reinforcing that this topic doesn't refer to current or past Board members or actions, but is exploring mechanisms to future-proof the Board against members who interpret their roles differently. J. From: Steve Crocker <steve@shinkuro.com<mailto:steve@shinkuro.com>> Date: Wednesday, May 20, 2015 at 6:13 To: Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Question regarding UAs Jordan, et al It is this assertion the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation, said as if it is a complete and accurate description of the role of the Board that I am taking issue with. This is inaccurate and misleading, and its insertion into the dialog is a disservice to both the Board and to the people who are less familiar with the actual state of affairs. Steve On May 20, 2015, at 9:05 AM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: Steve, your point doesn't quite seem to fit here. Keith was making the argument that there is currently a legally enforceable constraint or outside source of accountability via the NTIA contract. If the NTIA contract ends and that's it, then there is no longer an external/enforceable authority over ICANN. If a membership model was implemented, through whatever means, then again there is an enforceable constraint that can hold the company to account. Those are all straightforward observations. The intention that sits behind the framework here is a very simple division of powers, of the sort we are all familiar with through our various constitutional systems of government. It isn't about arguing that proposed members or board members are more or less reliable. It is that by structuring the relationship the right way (our proposal, a membership model), you systemically create a balance. That balance is similar to what we all enjoy today with the NTIA contract. I am not sure what it is you'd like Keith to apologise for, but I personally largely agree with all he wrote. best, Jordan On Thursday, 21 May 2015, Steve Crocker <steve@shinkuro.com<mailto:steve@shinkuro.com>> wrote: On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek@verisign.com<javascript:_e(%7B%7D,'cvml','kdrazek@verisign.com');>> wrote: Hi Chris, I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power. Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve. You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community. Keith, Edward and Edward, We have covered the point above several times and it’s long past time to stop throwing this half-trust around. Yes, ICANN is legally a corporation, and, yes, directors of a corporation have a duty to protect the corporation. But that generality has a far different meaning in a for profit corporation like Verisign than it does in a not-for-profit public benefit corporation like ICANN. The directors are obliged to pursue the purpose and mission stated in the incorporation papers and the bylaws. The directors serve the community, and we do so by exercising oversight over the corporation toward that end. There will always be differences of opinion about the particular details, but those sorts of differences of opinion will arise in *any* governance model. The prevailing assumption in much of the correspondence on this list is that the proposed members will somehow be more balanced, more inclusive and more trustworthy in protecting the interests of the overall community than the ICANN Board is. That’s simply false. And I think you know that it is. Please correct yourself and apologize. Thanks, Steve We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone? The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability. You asked, "Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" I believe the answer is yes. Not only worth it, but necessary. Regards, Keith On May 20, 2015, at 2:40 AM, Chris Disspain <ceo@auda.org.au<javascript:_e(%7B%7D,'cvml','ceo@auda.org.au');>> wrote: For clarity, the last sentence of paragraph 8 below should read: "However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board." Cheers, Chris On 20 May 2015, at 16:13 , Chris Disspain <ceo@auda.org.au<javascript:_e(%7B%7D,'cvml','ceo@auda.org.au');>> wrote: Jordan, All, Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues. First of all, I want to acknowledge that I concur with you on a number points. I agree that we need to develop a model that disrupts ICANN’s operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed. I also agree that levels of accountability are not “up to scratch” and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported. However, where I disagree with you is in respect to the absolute need for an additional mechanism, to supersede the current IANA functions contract, in order to ensure that the community can ‘control’ the Board because it has the right to bring a legal action in a US court. I disagree with the characterisation that the purpose of the CCWG’s work is to wrest “control” from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to “enforceability”, neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above. The need to assert absolute “control” or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, binding arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require? Further, you refer to a “long list” of community concerns about ICANN’s current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN’s bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board. To be clear – I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms. I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption. Cheers, Chris On 20 May 2015, at 15:33 , Jordan Carter <jordan@internetnz.net.nz<javascript:_e(%7B%7D,'cvml','jordan@internetnz.net.nz');>> wrote: We need legal persons to be members of ICANN. They can be individual humans or they can be organisations. UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould. I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....) cheers Jordan On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg@mcgill.ca<javascript:_e(%7B%7D,'cvml','alan.greenberg@mcgill.ca');>> wrote: Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it. But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing. Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years. The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub. Alan At 20/05/2015 12:41 AM, Avri Doria wrote: Hi, I think I understand the argument about members becoming that to which ICANN, and its Board, are responsible and accountable. From that perspective it sounds really good. What I have having trouble understanding is an accountability structure were there is a discontinuity between the SOAC and the UA. If each of the Board designating SOAC were the UA, it think I would understand. But I just do not see how the UA are accountable to the people and organizations that participate in each of the SOAC. Yes, the SOAC designates it UA representative, but how is (s)electing one of these any more accountable than (s)electing the Board as we do now. Don't we just move the perceived/possible unaccountability down a layer in the hierarchy? I think I am as comfortable with complexity as the next person. And I understand how in computer science any problem can solved by adding another layer of indirection, but in this case the extra layer we are creating does not seem to really be accountable to anyone but itself, except by (s)election procedures. I am sure I am missing some critical bit of understanding and hope someone can explain the chain of accountability in the membership model. I feel that we are still hand-waving a bit in the explanations. In a sense it seems as if we are creating a 'council' that is omnipotent in the powers it is given, except that they can somehow be replaced. Thanks and apologies for my persistent confusion. avri On 20-May-15 01:14, Jordan Carter wrote:

Hi all

This thread is useful to tease out some of the questions and concerns and confusions with the UA model, and as rapporteur for the WP responsible for refining this part of the proposal I am reading it avidly.

I just want to take the opportunity to remind us all why membership (or something analogous) is an important aspect of the reforms we are proposing - no matter the precise details.

At the moment without members, ICANN is fundamentally controlled by the Board. The only external constraint is the IANA functions contract with NTIA. The long list of community concerns and examples detailed by our earlier work in this CCWG shows that even with that constraint, accountability isn't up to scratch.

We are working on a settlement without that NTIA contract. Accountability has to get better even *with* the contract. Fundamentally better, without it.

Either we have a membership structure or some other durable approach that firmly embeds the stewardship of ICANN and the DNS in the ICANN community, or... we remain with Board control.

Given ICANN's history, anyone who is advocating a continuation of Board control is arguing for a model that can't be suitably accountable, and that seems highly likely to fail over time, with real risks to the security and stability of the DNS.

A real, fundamental source of power over the company absent the contract *has* to be established. The membership model is the most suitable one to achieve that that we have considered so far.

So: we need to be creative and thoughtful in how we make that model work in a fashion that disrupts ICANN's general operation as little as possible. But the key there is "as possible." Real change is needed and much refinement and comment is needed.

If there are proposals to achieve the same shift in control from ICANN the corporation to ICANN the community, I hope they come through in the comment period. So far, none have - but there are still two weeks of comments to go.

cheers Jordan

On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net<javascript:_e(%7B%7D,'cvml','malcolm@linx.net');> <mailto:malcolm@linx.net<javascript:_e(%7B%7D,'cvml','malcolm@linx.net');>>> wrote:

This whole thread seems to have massively overcomplicated the question.

Unless I have missed something, the only reason we need "members" is to stand as plaintiff-of-record in a lawsuit against the ICANN Board complaining that the Board has failed to adhere to the corporations bylaws. Such a lawsuit would in reality be conducted by an SO or AC, but a person with legal personality needs to act as plaintiff-of-record.

Why not simply proceed, as Samantha suggested, with the SOACs' Chairs as the members of the corporation? Could the Articles (or Bylaws, as appropriate) not simply identify the SOACs' Chairs as the members, ex officio and pro tempore?

An SOAC Chair that refused to act as plaintiff-of-record when required to do so by his SOAC could simply be replaced. Likewise a Chair that went rogue and initiated a lawsuit without their consent.

You can't make the SOAC a member without turning them into UAs, with all the attendent complexity. But I don't see that there should be any such problem with designating the chair of a SOAC, who will be a natural person, as a member of the corporation; the fact that the SOAC is not a UA is then irrelevant.

In the event that there were any dispute as to whether a particular person is in truth an SOAC Chair, this would surely be a simple preliminary matter of fact for the court. It is surely beyond dispute that if the Articles designated "Alan Greenberg" as the member, it would be a matter of fact as to whether or not the person before the court was indeed Alan Greenberg; surely it is the same as to whether the person before the court is "the current Chair of ALAC", if that should be what is specified in the Articles?

Malcolm.

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--- This email has been checked for viruses by Avast antivirus software. http://www.avast.com<http://www.avast.com/> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community@icann.org');> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<javascript:_e(%7B%7D,'cvml','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<javascript:_e(%7B%7D,'cvml','jordan@internetnz.net.nz');> Skype: jordancarter A better world through a better Internet _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community@icann.org');> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community@icann.org');> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community@icann.org');> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community@icann.org');> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Chief Executive, InternetNZ +64-21-442-649 | jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Sent on the run, apologies for brevity

No, because the power the NTIA has is in excess of anything that is proposed in our work. It can remove the IANA functions and ICANN's relevance, its reason for being. Nothing the CWG or CCWG have proposed comes close. JTC On Thursday, 21 May 2015, Chris Disspain <ceo@auda.org.au> wrote:

Keith, Jordan,

I will respond in detail tomorrow but in the meantime please help me out here...

That balance is similar to what we all enjoy today with the NTIA contract.

Are you really suggesting that the current contract with NTIA gives NTIA the powers that you are seeking to place in the hands of the community? How is that so?

Cheers,

Chris

On 20 May 2015, at 23:05 , Jordan Carter <jordan@internetnz.net.nz <javascript:_e(%7B%7D,'cvml','jordan@internetnz.net.nz');>> wrote:

Steve, your point doesn't quite seem to fit here. Keith was making the argument that there is currently a legally enforceable constraint or outside source of accountability via the NTIA contract.

If the NTIA contract ends and that's it, then there is no longer an external/enforceable authority over ICANN.

If a membership model was implemented, through whatever means, then again there is an enforceable constraint that can hold the company to account.

Those are all straightforward observations.

The intention that sits behind the framework here is a very simple division of powers, of the sort we are all familiar with through our various constitutional systems of government. It isn't about arguing that proposed members or board members are more or less reliable. It is that by structuring the relationship the right way (our proposal, a membership model), you systemically create a balance.

That balance is similar to what we all enjoy today with the NTIA contract.

I am not sure what it is you'd like Keith to apologise for, but I personally largely agree with all he wrote.

best, Jordan

On Thursday, 21 May 2015, Steve Crocker <steve@shinkuro.com <javascript:_e(%7B%7D,'cvml','steve@shinkuro.com');>> wrote:

...

On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek@verisign.com> wrote:

Hi Chris,

I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power.

Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve.

You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community.

Keith, Edward and Edward,

We have covered the point above several times and it's long past time to stop throwing this half-trust around. Yes, ICANN is legally a corporation, and, yes, directors of a corporation have a duty to protect the corporation. But that generality has a far different meaning in a for profit corporation like Verisign than it does in a not-for-profit public benefit corporation like ICANN. The directors are obliged to pursue the purpose and mission stated in the incorporation papers and the bylaws. The directors serve the community, and we do so by exercising oversight over the corporation toward that end.

There will always be differences of opinion about the particular details, but those sorts of differences of opinion will arise in *any* governance model. The prevailing assumption in much of the correspondence on this list is that the proposed members will somehow be more balanced, more inclusive and more trustworthy in protecting the interests of the overall community than the ICANN Board is. That's simply false. And I think you know that it is.

Please correct yourself and apologize.

Thanks,

Steve

We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone?

The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability.

You asked, *"**Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" *I believe the answer is yes. Not only worth it, but necessary.

Regards, Keith

On May 20, 2015, at 2:40 AM, Chris Disspain <ceo@auda.org.au> wrote:

For clarity, the last sentence of paragraph 8 below should read:

"However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board."

Cheers,

Chris

On 20 May 2015, at 16:13 , Chris Disspain <ceo@auda.org.au> wrote:

Jordan, All,

Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues.

First of all, I want to acknowledge that I concur with you on a number points.

I agree that we need to develop a model that disrupts ICANN's operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed.

I also agree that levels of accountability are not "up to scratch" and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported.

However, where I disagree with you is in respect to the absolute need for an *additional* mechanism, to supersede the current IANA functions contract, in order to ensure that the community can 'control' the Board because it has the right to bring a legal action in a US court.

I disagree with the characterisation that the purpose of the CCWG's work is to wrest "control" from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to "enforceability", neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above.

The need to assert absolute "control" or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, *binding *arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn't the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?

Further, you refer to a "long list" of community concerns about ICANN's current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN's bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board.

To be clear - I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms.

I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption.

Cheers,

Chris

On 20 May 2015, at 15:33 , Jordan Carter <jordan@internetnz.net.nz> wrote:

We need legal persons to be members of ICANN.

They can be individual humans or they can be organisations.

UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould.

I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....)

cheers Jordan

On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:

...

Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it.

But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing.

Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years.

The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub.

Alan

At 20/05/2015 12:41 AM, Avri Doria wrote:

...

Hi,

I think I understand the argument about members becoming that to which ICANN, and its Board, are responsible and accountable. From that perspective it sounds really good.

What I have having trouble understanding is an accountability structure were there is a discontinuity between the SOAC and the UA. If each of the Board designating SOAC were the UA, it think I would understand. But I just do not see how the UA are accountable to the people and organizations that participate in each of the SOAC. Yes, the SOAC designates it UA representative, but how is (s)electing one of these any more accountable than (s)electing the Board as we do now. Don't we just move the perceived/possible unaccountability down a layer in the hierarchy?

I think I am as comfortable with complexity as the next person. And I understand how in computer science any problem can solved by adding another layer of indirection, but in this case the extra layer we are creating does not seem to really be accountable to anyone but itself, except by (s)election procedures.

I am sure I am missing some critical bit of understanding and hope someone can explain the chain of accountability in the membership model. I feel that we are still hand-waving a bit in the explanations. In a sense it seems as if we are creating a 'council' that is omnipotent in the powers it is given, except that they can somehow be replaced.

Thanks and apologies for my persistent confusion.

avri

On 20-May-15 01:14, Jordan Carter wrote:

...

Hi all

This thread is useful to tease out some of the questions and concerns and confusions with the UA model, and as rapporteur for the WP responsible for refining this part of the proposal I am reading it avidly.

I just want to take the opportunity to remind us all why membership (or something analogous) is an important aspect of the reforms we are proposing - no matter the precise details.

At the moment without members, ICANN is fundamentally controlled by the Board. The only external constraint is the IANA functions contract with NTIA. The long list of community concerns and examples detailed by our earlier work in this CCWG shows that even with that constraint, accountability isn't up to scratch.

We are working on a settlement without that NTIA contract. Accountability has to get better even *with* the contract. Fundamentally better, without it.

Either we have a membership structure or some other durable approach that firmly embeds the stewardship of ICANN and the DNS in the ICANN community, or... we remain with Board control.

Given ICANN's history, anyone who is advocating a continuation of Board control is arguing for a model that can't be suitably accountable, and that seems highly likely to fail over time, with real risks to the security and stability of the DNS.

A real, fundamental source of power over the company absent the contract *has* to be established. The membership model is the most suitable one to achieve that that we have considered so far.

So: we need to be creative and thoughtful in how we make that model work in a fashion that disrupts ICANN's general operation as little as possible. But the key there is "as possible." Real change is needed and much refinement and comment is needed.

If there are proposals to achieve the same shift in control from ICANN the corporation to ICANN the community, I hope they come through in the comment period. So far, none have - but there are still two weeks of comments to go.

cheers Jordan

On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>> wrote:

This whole thread seems to have massively overcomplicated the question.

Unless I have missed something, the only reason we need "members" is to stand as plaintiff-of-record in a lawsuit against the ICANN Board complaining that the Board has failed to adhere to the corporations bylaws. Such a lawsuit would in reality be conducted by an SO or AC, but a person with legal personality needs to act as plaintiff-of-record.

Why not simply proceed, as Samantha suggested, with the SOACs' Chairs as the members of the corporation? Could the Articles (or Bylaws, as appropriate) not simply identify the SOACs' Chairs as the members, ex officio and pro tempore?

An SOAC Chair that refused to act as plaintiff-of-record when required to do so by his SOAC could simply be replaced. Likewise a Chair that went rogue and initiated a lawsuit without their consent.

You can't make the SOAC a member without turning them into UAs, with all the attendent complexity. But I don't see that there should be any such problem with designating the chair of a SOAC, who will be a natural person, as a member of the corporation; the fact that the SOAC is not a UA is then irrelevant.

In the event that there were any dispute as to whether a particular person is in truth an SOAC Chair, this would surely be a simple preliminary matter of fact for the court. It is surely beyond dispute that if the Articles designated "Alan Greenberg" as the member, it would be a matter of fact as to whether or not the person before the court was indeed Alan Greenberg; surely it is the same as to whether the person before the court is "the current Chair of ALAC", if that should be what is specified in the Articles?

Malcolm.

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*A better world through a better Internet *

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Sent on the run, apologies for brevity

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Chris, Jordan, all, I think they are quite different. As Jordan says, the NTIA presently has the power to contract another party than ICANN for the IANA function. However, it is a power that is practically impossible to execute. Which is why many call it the “nuclear option" : unpredictable, long lasting mass collateral damage. The power to remove the board is executable. Difficult, the impact is high, but it happens in real life. The power to remove a single or multiple directors is very executable. The NTIA has neither of those powers (formally). I am convinced that if we were not having a transition and if it could be arranged, the NTIA would be very happy to swap its nuke for the jet-fighters, the tanks and the troops.. Cheers, Roelof From: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> Date: woensdag 20 mei 2015 15:25 To: Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Question regarding UAs So, then you are not saying that the balance is similar or you are saying it is? Cheers, Chris On 20 May 2015, at 23:22 , Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: No, because the power the NTIA has is in excess of anything that is proposed in our work. It can remove the IANA functions and ICANN's relevance, its reason for being. Nothing the CWG or CCWG have proposed comes close. JTC On Thursday, 21 May 2015, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Keith, Jordan, I will respond in detail tomorrow but in the meantime please help me out here… That balance is similar to what we all enjoy today with the NTIA contract. Are you really suggesting that the current contract with NTIA gives NTIA the powers that you are seeking to place in the hands of the community? How is that so? Cheers, Chris On 20 May 2015, at 23:05 , Jordan Carter <jordan@internetnz.net.nz<javascript:_e(%7B%7D,'cvml','jordan@internetnz.net.nz');>> wrote: Steve, your point doesn't quite seem to fit here. Keith was making the argument that there is currently a legally enforceable constraint or outside source of accountability via the NTIA contract. If the NTIA contract ends and that's it, then there is no longer an external/enforceable authority over ICANN. If a membership model was implemented, through whatever means, then again there is an enforceable constraint that can hold the company to account. Those are all straightforward observations. The intention that sits behind the framework here is a very simple division of powers, of the sort we are all familiar with through our various constitutional systems of government. It isn't about arguing that proposed members or board members are more or less reliable. It is that by structuring the relationship the right way (our proposal, a membership model), you systemically create a balance. That balance is similar to what we all enjoy today with the NTIA contract. I am not sure what it is you'd like Keith to apologise for, but I personally largely agree with all he wrote. best, Jordan On Thursday, 21 May 2015, Steve Crocker <steve@shinkuro.com<javascript:_e(%7B%7D,'cvml','steve@shinkuro.com');>> wrote: On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek@verisign.com> wrote: Hi Chris, I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power. Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve. You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community. Keith, Edward and Edward, We have covered the point above several times and it’s long past time to stop throwing this half-trust around. Yes, ICANN is legally a corporation, and, yes, directors of a corporation have a duty to protect the corporation. But that generality has a far different meaning in a for profit corporation like Verisign than it does in a not-for-profit public benefit corporation like ICANN. The directors are obliged to pursue the purpose and mission stated in the incorporation papers and the bylaws. The directors serve the community, and we do so by exercising oversight over the corporation toward that end. There will always be differences of opinion about the particular details, but those sorts of differences of opinion will arise in *any* governance model. The prevailing assumption in much of the correspondence on this list is that the proposed members will somehow be more balanced, more inclusive and more trustworthy in protecting the interests of the overall community than the ICANN Board is. That’s simply false. And I think you know that it is. Please correct yourself and apologize. Thanks, Steve We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone? The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability. You asked, "Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" I believe the answer is yes. Not only worth it, but necessary. Regards, Keith On May 20, 2015, at 2:40 AM, Chris Disspain <ceo@auda.org.au> wrote: For clarity, the last sentence of paragraph 8 below should read: "However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board." Cheers, Chris On 20 May 2015, at 16:13 , Chris Disspain <ceo@auda.org.au> wrote: Jordan, All, Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues. First of all, I want to acknowledge that I concur with you on a number points. I agree that we need to develop a model that disrupts ICANN’s operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed. I also agree that levels of accountability are not “up to scratch” and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported. However, where I disagree with you is in respect to the absolute need for an additional mechanism, to supersede the current IANA functions contract, in order to ensure that the community can ‘control’ the Board because it has the right to bring a legal action in a US court. I disagree with the characterisation that the purpose of the CCWG’s work is to wrest “control” from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to “enforceability”, neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above. The need to assert absolute “control” or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, binding arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require? Further, you refer to a “long list” of community concerns about ICANN’s current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN’s bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board. To be clear – I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms. I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption. Cheers, Chris On 20 May 2015, at 15:33 , Jordan Carter <jordan@internetnz.net.nz> wrote: We need legal persons to be members of ICANN. They can be individual humans or they can be organisations. UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould. I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....) cheers Jordan On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg@mcgill.ca> wrote: Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it. But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing. Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years. The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub. Alan At 20/05/2015 12:41 AM, Avri Doria wrote: Hi, I think I understand the argument about members becoming that to which ICANN, and its Board, are responsible and accountable. From that perspective it sounds really good. What I have having trouble understanding is an accountability structure were there is a discontinuity between the SOAC and the UA. If each of the Board designating SOAC were the UA, it think I would understand. But I just do not see how the UA are accountable to the people and organizations that participate in each of the SOAC. Yes, the SOAC designates it UA representative, but how is (s)electing one of these any more accountable than (s)electing the Board as we do now. Don't we just move the perceived/possible unaccountability down a layer in the hierarchy? I think I am as comfortable with complexity as the next person. And I understand how in computer science any problem can solved by adding another layer of indirection, but in this case the extra layer we are creating does not seem to really be accountable to anyone but itself, except by (s)election procedures. I am sure I am missing some critical bit of understanding and hope someone can explain the chain of accountability in the membership model. I feel that we are still hand-waving a bit in the explanations. In a sense it seems as if we are creating a 'council' that is omnipotent in the powers it is given, except that they can somehow be replaced. Thanks and apologies for my persistent confusion. avri On 20-May-15 01:14, Jordan Carter wrote:

Hi all

This thread is useful to tease out some of the questions and concerns and confusions with the UA model, and as rapporteur for the WP responsible for refining this part of the proposal I am reading it avidly.

I just want to take the opportunity to remind us all why membership (or something analogous) is an important aspect of the reforms we are proposing - no matter the precise details.

At the moment without members, ICANN is fundamentally controlled by the Board. The only external constraint is the IANA functions contract with NTIA. The long list of community concerns and examples detailed by our earlier work in this CCWG shows that even with that constraint, accountability isn't up to scratch.

We are working on a settlement without that NTIA contract. Accountability has to get better even *with* the contract. Fundamentally better, without it.

Either we have a membership structure or some other durable approach that firmly embeds the stewardship of ICANN and the DNS in the ICANN community, or... we remain with Board control.

Given ICANN's history, anyone who is advocating a continuation of Board control is arguing for a model that can't be suitably accountable, and that seems highly likely to fail over time, with real risks to the security and stability of the DNS.

A real, fundamental source of power over the company absent the contract *has* to be established. The membership model is the most suitable one to achieve that that we have considered so far.

So: we need to be creative and thoughtful in how we make that model work in a fashion that disrupts ICANN's general operation as little as possible. But the key there is "as possible." Real change is needed and much refinement and comment is needed.

If there are proposals to achieve the same shift in control from ICANN the corporation to ICANN the community, I hope they come through in the comment period. So far, none have - but there are still two weeks of comments to go.

cheers Jordan

On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>> wrote:

This whole thread seems to have massively overcomplicated the question.

Unless I have missed something, the only reason we need "members" is to stand as plaintiff-of-record in a lawsuit against the ICANN Board complaining that the Board has failed to adhere to the corporations bylaws. Such a lawsuit would in reality be conducted by an SO or AC, but a person with legal personality needs to act as plaintiff-of-record.

Why not simply proceed, as Samantha suggested, with the SOACs' Chairs as the members of the corporation? Could the Articles (or Bylaws, as appropriate) not simply identify the SOACs' Chairs as the members, ex officio and pro tempore?

An SOAC Chair that refused to act as plaintiff-of-record when required to do so by his SOAC could simply be replaced. Likewise a Chair that went rogue and initiated a lawsuit without their consent.

You can't make the SOAC a member without turning them into UAs, with all the attendent complexity. But I don't see that there should be any such problem with designating the chair of a SOAC, who will be a natural person, as a member of the corporation; the fact that the SOAC is not a UA is then irrelevant.

In the event that there were any dispute as to whether a particular person is in truth an SOAC Chair, this would surely be a simple preliminary matter of fact for the court. It is surely beyond dispute that if the Articles designated "Alan Greenberg" as the member, it would be a matter of fact as to whether or not the person before the court was indeed Alan Greenberg; surely it is the same as to whether the person before the court is "the current Chair of ALAC", if that should be what is specified in the Articles?

Malcolm.

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I didn’t take it personally. I took it as a factually inaccurate statement that creates misunderstanding. Future boards are bound by the same rules as the past and current boards. The language you used is taken by many as a basis for believing there is a significant difference in alignment toward public responsibility between the ICANN Board and some newly invented grouping of community members. It ain’t so and it’s inappropriate to suggest so. Steve On May 20, 2015, at 9:39 AM, Drazek, Keith <kdrazek@verisign.com> wrote:

Steve,

With all due respect, I think you’re taking this too personally and/or making it too personal. This is not about the current ICANN Board.

None of us know what future ICANN Boards will do, or what future ICANN Boards will permit ICANN’s management to do. Will future Boards always exercise appropriate oversight over management? Could there be instances where ICANN’s legal counsel advises a future Board to make a decision that is counter to the interests of the community to protect the financial interests of the corporation?

I see the proposed community membership structure simply as a check on the power of the Board, nothing more. It’s not about “controlling” or replacing the Board. The Board has its legitimate function, but its decisions cannot be unchallengeable. The community must have the ability to tell the Board it got a decision wrong and to enforce the will of the multi-stakeholder community in rare/limited instances and based on a very high threshold of community agreement/consensus.

I would certainly trust the proposed community members, representing their SOs and ACs, to be balanced, inclusive and trustworthy in protecting the interests of the overall community -- in their role as the aforementioned check on the powers of the Board. Not as a replacement.

Would you trust a future Board of sixteen unknown individuals more than you trust the multi-stakeholder, bottom-up, consensus-based community and process? It appears so.

I stand by and reaffirm my previous email. I hope my clarification helps.

Sincerely,

Keith

From: Steve Crocker [mailto:steve@shinkuro.com] Sent: Wednesday, May 20, 2015 8:27 AM To: Drazek, Keith Cc: Stephen D. Crocker; Chris Disspain; Accountability Cross Community; mshears@cdt.org; egmorris1@toast.net Subject: Re: [CCWG-ACCT] Question regarding UAs

On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek@verisign.com> wrote:

Hi Chris,

I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power.

Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve.

You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community.

Keith, Edward and Edward,

We have covered the point above several times and it’s long past time to stop throwing this half-trust around. Yes, ICANN is legally a corporation, and, yes, directors of a corporation have a duty to protect the corporation. But that generality has a far different meaning in a for profit corporation like Verisign than it does in a not-for-profit public benefit corporation like ICANN. The directors are obliged to pursue the purpose and mission stated in the incorporation papers and the bylaws. The directors serve the community, and we do so by exercising oversight over the corporation toward that end.

There will always be differences of opinion about the particular details, but those sorts of differences of opinion will arise in *any* governance model. The prevailing assumption in much of the correspondence on this list is that the proposed members will somehow be more balanced, more inclusive and more trustworthy in protecting the interests of the overall community than the ICANN Board is. That’s simply false. And I think you know that it is.

Please correct yourself and apologize.

Thanks,

Steve

We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone?

The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability.

You asked, "Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" I believe the answer is yes. Not only worth it, but necessary.

Regards, Keith

On May 20, 2015, at 2:40 AM, Chris Disspain <ceo@auda.org.au> wrote:

For clarity, the last sentence of paragraph 8 below should read:

"However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board."

Cheers,

Chris

On 20 May 2015, at 16:13 , Chris Disspain <ceo@auda.org.au> wrote:

Jordan, All,

Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues.

First of all, I want to acknowledge that I concur with you on a number points.

I agree that we need to develop a model that disrupts ICANN’s operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed.

I also agree that levels of accountability are not “up to scratch” and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported.

However, where I disagree with you is in respect to the absolute need for an additional mechanism, to supersede the current IANA functions contract, in order to ensure that the community can ‘control’ the Board because it has the right to bring a legal action in a US court.

I disagree with the characterisation that the purpose of the CCWG’s work is to wrest “control” from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to “enforceability”, neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above.

The need to assert absolute “control” or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, binding arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?

Further, you refer to a “long list” of community concerns about ICANN’s current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN’s bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board.

To be clear – I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms.

I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption.

Cheers,

Chris

On 20 May 2015, at 15:33 , Jordan Carter <jordan@internetnz.net.nz> wrote:

We need legal persons to be members of ICANN.

They can be individual humans or they can be organisations.

UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould.

I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....)

cheers Jordan

On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg@mcgill.ca> wrote: Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it.

But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing.

Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years.

The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub.

Alan

At 20/05/2015 12:41 AM, Avri Doria wrote: Hi,

I think I understand the argument about members becoming that to which ICANN, and its Board, are responsible and accountable. From that perspective it sounds really good.

What I have having trouble understanding is an accountability structure were there is a discontinuity between the SOAC and the UA. If each of the Board designating SOAC were the UA, it think I would understand. But I just do not see how the UA are accountable to the people and organizations that participate in each of the SOAC. Yes, the SOAC designates it UA representative, but how is (s)electing one of these any more accountable than (s)electing the Board as we do now. Don't we just move the perceived/possible unaccountability down a layer in the hierarchy?

I think I am as comfortable with complexity as the next person. And I understand how in computer science any problem can solved by adding another layer of indirection, but in this case the extra layer we are creating does not seem to really be accountable to anyone but itself, except by (s)election procedures.

I am sure I am missing some critical bit of understanding and hope someone can explain the chain of accountability in the membership model. I feel that we are still hand-waving a bit in the explanations. In a sense it seems as if we are creating a 'council' that is omnipotent in the powers it is given, except that they can somehow be replaced.

Thanks and apologies for my persistent confusion.

avri

On 20-May-15 01:14, Jordan Carter wrote:

...

Hi all

This thread is useful to tease out some of the questions and concerns and confusions with the UA model, and as rapporteur for the WP responsible for refining this part of the proposal I am reading it avidly.

I just want to take the opportunity to remind us all why membership (or something analogous) is an important aspect of the reforms we are proposing - no matter the precise details.

At the moment without members, ICANN is fundamentally controlled by the Board. The only external constraint is the IANA functions contract with NTIA. The long list of community concerns and examples detailed by our earlier work in this CCWG shows that even with that constraint, accountability isn't up to scratch.

We are working on a settlement without that NTIA contract. Accountability has to get better even *with* the contract. Fundamentally better, without it.

Either we have a membership structure or some other durable approach that firmly embeds the stewardship of ICANN and the DNS in the ICANN community, or... we remain with Board control.

Given ICANN's history, anyone who is advocating a continuation of Board control is arguing for a model that can't be suitably accountable, and that seems highly likely to fail over time, with real risks to the security and stability of the DNS.

A real, fundamental source of power over the company absent the contract *has* to be established. The membership model is the most suitable one to achieve that that we have considered so far.

So: we need to be creative and thoughtful in how we make that model work in a fashion that disrupts ICANN's general operation as little as possible. But the key there is "as possible." Real change is needed and much refinement and comment is needed.

If there are proposals to achieve the same shift in control from ICANN the corporation to ICANN the community, I hope they come through in the comment period. So far, none have - but there are still two weeks of comments to go.

cheers Jordan

On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>> wrote:

This whole thread seems to have massively overcomplicated the question.

Unless I have missed something, the only reason we need "members" is to stand as plaintiff-of-record in a lawsuit against the ICANN Board complaining that the Board has failed to adhere to the corporations bylaws. Such a lawsuit would in reality be conducted by an SO or AC, but a person with legal personality needs to act as plaintiff-of-record.

Why not simply proceed, as Samantha suggested, with the SOACs' Chairs as the members of the corporation? Could the Articles (or Bylaws, as appropriate) not simply identify the SOACs' Chairs as the members, ex officio and pro tempore?

An SOAC Chair that refused to act as plaintiff-of-record when required to do so by his SOAC could simply be replaced. Likewise a Chair that went rogue and initiated a lawsuit without their consent.

You can't make the SOAC a member without turning them into UAs, with all the attendent complexity. But I don't see that there should be any such problem with designating the chair of a SOAC, who will be a natural person, as a member of the corporation; the fact that the SOAC is not a UA is then irrelevant.

In the event that there were any dispute as to whether a particular person is in truth an SOAC Chair, this would surely be a simple preliminary matter of fact for the court. It is surely beyond dispute that if the Articles designated "Alan Greenberg" as the member, it would be a matter of fact as to whether or not the person before the court was indeed Alan Greenberg; surely it is the same as to whether the person before the court is "the current Chair of ALAC", if that should be what is specified in the Articles?

Malcolm.

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I don’t think there’s any question that the Board’s primary duty (not their only duty) is to ICANN the Corporation. In addition to Mike’s citation of ICANN bylaws Section 7 (below), see ICANN’s Management Operating Principles (2008): "The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations.” Source: ICANN Accountability & Transparency Frameworks and Principles, Jan-2008, p.5, at https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles... From: "Chartier, Mike S" Date: Wednesday, May 20, 2015 at 9:56 AM To: Steve Crocker, Keith Drazek Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs No comment on actual practice, but from a textual basis (which is what matters now since we are debating new text), I can’t see any inconsistency between the following statements: “Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.” “the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation,” From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Steve Crocker Sent: Wednesday, May 20, 2015 9:47 AM To: Drazek, Keith Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs I didn’t take it personally. I took it as a factually inaccurate statement that creates misunderstanding. Future boards are bound by the same rules as the past and current boards. The language you used is taken by many as a basis for believing there is a significant difference in alignment toward public responsibility between the ICANN Board and some newly invented grouping of community members. It ain’t so and it’s inappropriate to suggest so. Steve On May 20, 2015, at 9:39 AM, Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> wrote: Steve, With all due respect, I think you’re taking this too personally and/or making it too personal. This is not about the current ICANN Board. None of us know what future ICANN Boards will do, or what future ICANN Boards will permit ICANN’s management to do. Will future Boards always exercise appropriate oversight over management? Could there be instances where ICANN’s legal counsel advises a future Board to make a decision that is counter to the interests of the community to protect the financial interests of the corporation? I see the proposed community membership structure simply as a check on the power of the Board, nothing more. It’s not about “controlling” or replacing the Board. The Board has its legitimate function, but its decisions cannot be unchallengeable. The community must have the ability to tell the Board it got a decision wrong and to enforce the will of the multi-stakeholder community in rare/limited instances and based on a very high threshold of community agreement/consensus. I would certainly trust the proposed community members, representing their SOs and ACs, to be balanced, inclusive and trustworthy in protecting the interests of the overall community -- in their role as the aforementioned check on the powers of the Board. Not as a replacement. Would you trust a future Board of sixteen unknown individuals more than you trust the multi-stakeholder, bottom-up, consensus-based community and process? It appears so. I stand by and reaffirm my previous email. I hope my clarification helps. Sincerely, Keith From: Steve Crocker [mailto:steve@shinkuro.com] Sent: Wednesday, May 20, 2015 8:27 AM To: Drazek, Keith Cc: Stephen D. Crocker; Chris Disspain; Accountability Cross Community; mshears@cdt.org<mailto:mshears@cdt.org>; egmorris1@toast.net<mailto:egmorris1@toast.net> Subject: Re: [CCWG-ACCT] Question regarding UAs On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> wrote: Hi Chris, I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power. Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve. You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community. Keith, Edward and Edward, We have covered the point above several times and it’s long past time to stop throwing this half-trust around. Yes, ICANN is legally a corporation, and, yes, directors of a corporation have a duty to protect the corporation. But that generality has a far different meaning in a for profit corporation like Verisign than it does in a not-for-profit public benefit corporation like ICANN. The directors are obliged to pursue the purpose and mission stated in the incorporation papers and the bylaws. The directors serve the community, and we do so by exercising oversight over the corporation toward that end. There will always be differences of opinion about the particular details, but those sorts of differences of opinion will arise in *any* governance model. The prevailing assumption in much of the correspondence on this list is that the proposed members will somehow be more balanced, more inclusive and more trustworthy in protecting the interests of the overall community than the ICANN Board is. That’s simply false. And I think you know that it is. Please correct yourself and apologize. Thanks, Steve We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone? The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability. You asked, "Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" I believe the answer is yes. Not only worth it, but necessary. Regards, Keith On May 20, 2015, at 2:40 AM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: For clarity, the last sentence of paragraph 8 below should read: "However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board." Cheers, Chris On 20 May 2015, at 16:13 , Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Jordan, All, Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues. First of all, I want to acknowledge that I concur with you on a number points. I agree that we need to develop a model that disrupts ICANN’s operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed. I also agree that levels of accountability are not “up to scratch” and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported. However, where I disagree with you is in respect to the absolute need for an additional mechanism, to supersede the current IANA functions contract, in order to ensure that the community can ‘control’ the Board because it has the right to bring a legal action in a US court. I disagree with the characterisation that the purpose of the CCWG’s work is to wrest “control” from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to “enforceability”, neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above. The need to assert absolute “control” or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, binding arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require? Further, you refer to a “long list” of community concerns about ICANN’s current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN’s bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board. To be clear – I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms. I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption. Cheers, Chris On 20 May 2015, at 15:33 , Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: We need legal persons to be members of ICANN. They can be individual humans or they can be organisations. UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould. I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....) cheers Jordan On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> wrote: Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it. But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing. Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years. The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub. Alan At 20/05/2015 12:41 AM, Avri Doria wrote: Hi, I think I understand the argument about members becoming that to which ICANN, and its Board, are responsible and accountable. From that perspective it sounds really good. What I have having trouble understanding is an accountability structure were there is a discontinuity between the SOAC and the UA. If each of the Board designating SOAC were the UA, it think I would understand. But I just do not see how the UA are accountable to the people and organizations that participate in each of the SOAC. Yes, the SOAC designates it UA representative, but how is (s)electing one of these any more accountable than (s)electing the Board as we do now. Don't we just move the perceived/possible unaccountability down a layer in the hierarchy? I think I am as comfortable with complexity as the next person. And I understand how in computer science any problem can solved by adding another layer of indirection, but in this case the extra layer we are creating does not seem to really be accountable to anyone but itself, except by (s)election procedures. I am sure I am missing some critical bit of understanding and hope someone can explain the chain of accountability in the membership model. I feel that we are still hand-waving a bit in the explanations. In a sense it seems as if we are creating a 'council' that is omnipotent in the powers it is given, except that they can somehow be replaced. Thanks and apologies for my persistent confusion. avri On 20-May-15 01:14, Jordan Carter wrote:

Hi all

This thread is useful to tease out some of the questions and concerns and confusions with the UA model, and as rapporteur for the WP responsible for refining this part of the proposal I am reading it avidly.

I just want to take the opportunity to remind us all why membership (or something analogous) is an important aspect of the reforms we are proposing - no matter the precise details.

At the moment without members, ICANN is fundamentally controlled by the Board. The only external constraint is the IANA functions contract with NTIA. The long list of community concerns and examples detailed by our earlier work in this CCWG shows that even with that constraint, accountability isn't up to scratch.

We are working on a settlement without that NTIA contract. Accountability has to get better even *with* the contract. Fundamentally better, without it.

Either we have a membership structure or some other durable approach that firmly embeds the stewardship of ICANN and the DNS in the ICANN community, or... we remain with Board control.

Given ICANN's history, anyone who is advocating a continuation of Board control is arguing for a model that can't be suitably accountable, and that seems highly likely to fail over time, with real risks to the security and stability of the DNS.

A real, fundamental source of power over the company absent the contract *has* to be established. The membership model is the most suitable one to achieve that that we have considered so far.

So: we need to be creative and thoughtful in how we make that model work in a fashion that disrupts ICANN's general operation as little as possible. But the key there is "as possible." Real change is needed and much refinement and comment is needed.

If there are proposals to achieve the same shift in control from ICANN the corporation to ICANN the community, I hope they come through in the comment period. So far, none have - but there are still two weeks of comments to go.

cheers Jordan

On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net> <mailto:malcolm@linx.net<mailto:malcolm@linx.net>>> wrote:

This whole thread seems to have massively overcomplicated the question.

Unless I have missed something, the only reason we need "members" is to stand as plaintiff-of-record in a lawsuit against the ICANN Board complaining that the Board has failed to adhere to the corporations bylaws. Such a lawsuit would in reality be conducted by an SO or AC, but a person with legal personality needs to act as plaintiff-of-record.

Why not simply proceed, as Samantha suggested, with the SOACs' Chairs as the members of the corporation? Could the Articles (or Bylaws, as appropriate) not simply identify the SOACs' Chairs as the members, ex officio and pro tempore?

An SOAC Chair that refused to act as plaintiff-of-record when required to do so by his SOAC could simply be replaced. Likewise a Chair that went rogue and initiated a lawsuit without their consent.

You can't make the SOAC a member without turning them into UAs, with all the attendent complexity. But I don't see that there should be any such problem with designating the chair of a SOAC, who will be a natural person, as a member of the corporation; the fact that the SOAC is not a UA is then irrelevant.

In the event that there were any dispute as to whether a particular person is in truth an SOAC Chair, this would surely be a simple preliminary matter of fact for the court. It is surely beyond dispute that if the Articles designated "Alan Greenberg" as the member, it would be a matter of fact as to whether or not the person before the court was indeed Alan Greenberg; surely it is the same as to whether the person before the court is "the current Chair of ALAC", if that should be what is specified in the Articles?

Malcolm.

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Exactly. Thanks Becky. Best, Keith On May 20, 2015, at 5:52 PM, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: The “enforceability" issue is not about litigation at all, and it isn’t really about whether the Board or some newly invented group is more likely to get it right. Rather, it’s about checks and balances. Without the membership structure, the revised bylaws that empower the community to block certain actions, for example, are by definition advisory – they impose no legal obligation whatsoever on the Board and staff. I don’t dispute that the Board would have a compelling interest in respecting community input, but as a legal matter without the membership structure, the Board would be required to treat any community vote to block, for example, as merely advisory and would have an affirmative obligation to do what it concludes is consistent with its fiduciary duty. The membership model affirmatively shifts some of that fiduciary responsibility to the community. It’s not a statement of who is right or wrong, but who has authority. Steve raises a reasonable question about how the members/unincorporated associations are accountable to their respective communities. But IMHO, the legitimate questions and concerns in this debate are getting obscured by polarizing language and assertions that it’s inappropriate to express a particular point of view. The argument that there are no examples of situations that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board.” The community has never had any authority or tool to do so, so the fact that it never has is irrelevant and the assertion that it would not have is speculation. I certainly would have tried to get the community to overturn the Board’s decision to abandon the substantive standard for IRPs in favor of the “good faith” test. As it happens, none of the existing review and redress mechanisms would have worked in that case, and they probably wouldn’t work in the future either. 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> / http://www.neustar.biz From: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> Date: Wednesday, May 20, 2015 at 12:37 PM To: "Chartier, Mike S" <mike.s.chartier@intel.com<mailto:mike.s.chartier@intel.com>>, Steve Crocker <steve@shinkuro.com<mailto:steve@shinkuro.com>>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Question regarding UAs I don’t think there’s any question that the Board’s primary duty (not their only duty) is to ICANN the Corporation. In addition to Mike’s citation of ICANN bylaws Section 7 (below), see ICANN’s Management Operating Principles (2008): "The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations.” Source: ICANN Accountability & Transparency Frameworks and Principles, Jan-2008, p.5, at https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles-10jan08-en.pdf<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system_files_files_acct-2Dtrans-2Dframeworks-2Dprinciples-2D10jan08-2Den.pdf&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=N94BFwt7XlN1luKY2YsAlg92HkXfJ8UfYuQCH-3B3bY&s=-nHIJ38MbHZo2QiXUiLPqBi6YeaesFEbRqTO3RL3Jew&e=> From: "Chartier, Mike S" Date: Wednesday, May 20, 2015 at 9:56 AM To: Steve Crocker, Keith Drazek Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs No comment on actual practice, but from a textual basis (which is what matters now since we are debating new text), I can’t see any inconsistency between the following statements: “Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.” “the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation,” From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Steve Crocker Sent: Wednesday, May 20, 2015 9:47 AM To: Drazek, Keith Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs I didn’t take it personally. I took it as a factually inaccurate statement that creates misunderstanding. Future boards are bound by the same rules as the past and current boards. The language you used is taken by many as a basis for believing there is a significant difference in alignment toward public responsibility between the ICANN Board and some newly invented grouping of community members. It ain’t so and it’s inappropriate to suggest so. Steve On May 20, 2015, at 9:39 AM, Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> wrote: Steve, With all due respect, I think you’re taking this too personally and/or making it too personal. This is not about the current ICANN Board. None of us know what future ICANN Boards will do, or what future ICANN Boards will permit ICANN’s management to do. Will future Boards always exercise appropriate oversight over management? Could there be instances where ICANN’s legal counsel advises a future Board to make a decision that is counter to the interests of the community to protect the financial interests of the corporation? I see the proposed community membership structure simply as a check on the power of the Board, nothing more. It’s not about “controlling” or replacing the Board. The Board has its legitimate function, but its decisions cannot be unchallengeable. The community must have the ability to tell the Board it got a decision wrong and to enforce the will of the multi-stakeholder community in rare/limited instances and based on a very high threshold of community agreement/consensus. I would certainly trust the proposed community members, representing their SOs and ACs, to be balanced, inclusive and trustworthy in protecting the interests of the overall community -- in their role as the aforementioned check on the powers of the Board. Not as a replacement. Would you trust a future Board of sixteen unknown individuals more than you trust the multi-stakeholder, bottom-up, consensus-based community and process? It appears so. I stand by and reaffirm my previous email. I hope my clarification helps. Sincerely, Keith From: Steve Crocker [mailto:steve@shinkuro.com] Sent: Wednesday, May 20, 2015 8:27 AM To: Drazek, Keith Cc: Stephen D. Crocker; Chris Disspain; Accountability Cross Community; mshears@cdt.org<mailto:mshears@cdt.org>; egmorris1@toast.net<mailto:egmorris1@toast.net> Subject: Re: [CCWG-ACCT] Question regarding UAs On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> wrote: Hi Chris, I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power. Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve. You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community. Keith, Edward and Edward, We have covered the point above several times and it’s long past time to stop throwing this half-trust around. Yes, ICANN is legally a corporation, and, yes, directors of a corporation have a duty to protect the corporation. But that generality has a far different meaning in a for profit corporation like Verisign than it does in a not-for-profit public benefit corporation like ICANN. The directors are obliged to pursue the purpose and mission stated in the incorporation papers and the bylaws. The directors serve the community, and we do so by exercising oversight over the corporation toward that end. There will always be differences of opinion about the particular details, but those sorts of differences of opinion will arise in *any* governance model. The prevailing assumption in much of the correspondence on this list is that the proposed members will somehow be more balanced, more inclusive and more trustworthy in protecting the interests of the overall community than the ICANN Board is. That’s simply false. And I think you know that it is. Please correct yourself and apologize. Thanks, Steve We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone? The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability. You asked, "Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" I believe the answer is yes. Not only worth it, but necessary. Regards, Keith On May 20, 2015, at 2:40 AM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: For clarity, the last sentence of paragraph 8 below should read: "However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board." Cheers, Chris On 20 May 2015, at 16:13 , Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Jordan, All, Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues. First of all, I want to acknowledge that I concur with you on a number points. I agree that we need to develop a model that disrupts ICANN’s operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed. I also agree that levels of accountability are not “up to scratch” and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported. However, where I disagree with you is in respect to the absolute need for an additional mechanism, to supersede the current IANA functions contract, in order to ensure that the community can ‘control’ the Board because it has the right to bring a legal action in a US court. I disagree with the characterisation that the purpose of the CCWG’s work is to wrest “control” from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to “enforceability”, neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above. The need to assert absolute “control” or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, binding arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require? Further, you refer to a “long list” of community concerns about ICANN’s current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN’s bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board. To be clear – I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms. I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption. Cheers, Chris On 20 May 2015, at 15:33 , Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: We need legal persons to be members of ICANN. They can be individual humans or they can be organisations. UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould. I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....) cheers Jordan On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> wrote: Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it. But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing. Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years. The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub. Alan At 20/05/2015 12:41 AM, Avri Doria wrote: Hi, I think I understand the argument about members becoming that to which ICANN, and its Board, are responsible and accountable. From that perspective it sounds really good. What I have having trouble understanding is an accountability structure were there is a discontinuity between the SOAC and the UA. If each of the Board designating SOAC were the UA, it think I would understand. But I just do not see how the UA are accountable to the people and organizations that participate in each of the SOAC. Yes, the SOAC designates it UA representative, but how is (s)electing one of these any more accountable than (s)electing the Board as we do now. Don't we just move the perceived/possible unaccountability down a layer in the hierarchy? I think I am as comfortable with complexity as the next person. And I understand how in computer science any problem can solved by adding another layer of indirection, but in this case the extra layer we are creating does not seem to really be accountable to anyone but itself, except by (s)election procedures. I am sure I am missing some critical bit of understanding and hope someone can explain the chain of accountability in the membership model. I feel that we are still hand-waving a bit in the explanations. In a sense it seems as if we are creating a 'council' that is omnipotent in the powers it is given, except that they can somehow be replaced. Thanks and apologies for my persistent confusion. avri On 20-May-15 01:14, Jordan Carter wrote:

Hi all

This thread is useful to tease out some of the questions and concerns and confusions with the UA model, and as rapporteur for the WP responsible for refining this part of the proposal I am reading it avidly.

I just want to take the opportunity to remind us all why membership (or something analogous) is an important aspect of the reforms we are proposing - no matter the precise details.

At the moment without members, ICANN is fundamentally controlled by the Board. The only external constraint is the IANA functions contract with NTIA. The long list of community concerns and examples detailed by our earlier work in this CCWG shows that even with that constraint, accountability isn't up to scratch.

We are working on a settlement without that NTIA contract. Accountability has to get better even *with* the contract. Fundamentally better, without it.

Either we have a membership structure or some other durable approach that firmly embeds the stewardship of ICANN and the DNS in the ICANN community, or... we remain with Board control.

Given ICANN's history, anyone who is advocating a continuation of Board control is arguing for a model that can't be suitably accountable, and that seems highly likely to fail over time, with real risks to the security and stability of the DNS.

A real, fundamental source of power over the company absent the contract *has* to be established. The membership model is the most suitable one to achieve that that we have considered so far.

So: we need to be creative and thoughtful in how we make that model work in a fashion that disrupts ICANN's general operation as little as possible. But the key there is "as possible." Real change is needed and much refinement and comment is needed.

If there are proposals to achieve the same shift in control from ICANN the corporation to ICANN the community, I hope they come through in the comment period. So far, none have - but there are still two weeks of comments to go.

cheers Jordan

On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net> <mailto:malcolm@linx.net<mailto:malcolm@linx.net>>> wrote:

This whole thread seems to have massively overcomplicated the question.

Unless I have missed something, the only reason we need "members" is to stand as plaintiff-of-record in a lawsuit against the ICANN Board complaining that the Board has failed to adhere to the corporations bylaws. Such a lawsuit would in reality be conducted by an SO or AC, but a person with legal personality needs to act as plaintiff-of-record.

Why not simply proceed, as Samantha suggested, with the SOACs' Chairs as the members of the corporation? Could the Articles (or Bylaws, as appropriate) not simply identify the SOACs' Chairs as the members, ex officio and pro tempore?

An SOAC Chair that refused to act as plaintiff-of-record when required to do so by his SOAC could simply be replaced. Likewise a Chair that went rogue and initiated a lawsuit without their consent.

You can't make the SOAC a member without turning them into UAs, with all the attendent complexity. But I don't see that there should be any such problem with designating the chair of a SOAC, who will be a natural person, as a member of the corporation; the fact that the SOAC is not a UA is then irrelevant.

In the event that there were any dispute as to whether a particular person is in truth an SOAC Chair, this would surely be a simple preliminary matter of fact for the court. It is surely beyond dispute that if the Articles designated "Alan Greenberg" as the member, it would be a matter of fact as to whether or not the person before the court was indeed Alan Greenberg; surely it is the same as to whether the person before the court is "the current Chair of ALAC", if that should be what is specified in the Articles?

Malcolm.

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Becky, Keith, Jordan, All, Thank you. I think Becky is spot on and has illustrated to me that I am not being as clear as I need to be. First, let’s be clear what we mean by “the Board’s responsibility to act in the best interests of the corporation”. The best interests of the corporation are defined by ICANN’s mission. And the fiduciary duty of the Board means (as Sidley have said in one of their memos) that Directors are obligated by these duties to disregard a process or decisions that do not comply with law or the mission or core purpose of ICANN as articulated in the bylaws. This in turn means that the community, even with bylaw or contractual provisions, cannot compel the board to act in a manner contrary to the duties. Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms: 1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board. Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making. If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission. Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever. Cheers, Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au <mailto:ceo@auda.org.au> | W: www.auda.org.au <http://www.auda.org.au/> auDA – Australia’s Domain Name Administrator Important Notice - This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. Please consider the environment before printing this email.

On 21 May 2015, at 07:51 , Burr, Becky <Becky.Burr@neustar.biz> wrote:

The “enforceability" issue is not about litigation at all, and it isn’t really about whether the Board or some newly invented group is more likely to get it right. Rather, it’s about checks and balances. Without the membership structure, the revised bylaws that empower the community to block certain actions, for example, are by definition advisory – they impose no legal obligation whatsoever on the Board and staff. I don’t dispute that the Board would have a compelling interest in respecting community input, but as a legal matter without the membership structure, the Board would be required to treat any community vote to block, for example, as merely advisory and would have an affirmative obligation to do what it concludes is consistent with its fiduciary duty. The membership model affirmatively shifts some of that fiduciary responsibility to the community. It’s not a statement of who is right or wrong, but who has authority. Steve raises a reasonable question about how the members/unincorporated associations are accountable to their respective communities. But IMHO, the legitimate questions and concerns in this debate are getting obscured by polarizing language and assertions that it’s inappropriate to express a particular point of view.

The argument that there are no examples of situations that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board.” The community has never had any authority or tool to do so, so the fact that it never has is irrelevant and the assertion that it would not have is speculation. I certainly would have tried to get the community to overturn the Board’s decision to abandon the substantive standard for IRPs in favor of the “good faith” test. As it happens, none of the existing review and redress mechanisms would have worked in that case, and they probably wouldn’t work in the future either.

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: Steve DelBianco <sdelbianco@netchoice.org <mailto:sdelbianco@netchoice.org>> Date: Wednesday, May 20, 2015 at 12:37 PM To: "Chartier, Mike S" <mike.s.chartier@intel.com <mailto:mike.s.chartier@intel.com>>, Steve Crocker <steve@shinkuro.com <mailto:steve@shinkuro.com>>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Cc: Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Question regarding UAs

I don’t think there’s any question that the Board’s primary duty (not their only duty) is to ICANN the Corporation. In addition to Mike’s citation of ICANN bylaws Section 7 (below), see ICANN’s Management Operating Principles (2008):

...

"The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations.”

Source: ICANN Accountability & Transparency Frameworks and Principles, Jan-2008, p.5, at https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles... <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system...>

From: "Chartier, Mike S" Date: Wednesday, May 20, 2015 at 9:56 AM To: Steve Crocker, Keith Drazek Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs

No comment on actual practice, but from a textual basis (which is what matters now since we are debating new text), I can’t see any inconsistency between the following statements:

...

“Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.” “the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation,”

  <> 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 Steve Crocker Sent: Wednesday, May 20, 2015 9:47 AM To: Drazek, Keith Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs

I didn’t take it personally. I took it as a factually inaccurate statement that creates misunderstanding. Future boards are bound by the same rules as the past and current boards. The language you used is taken by many as a basis for believing there is a significant difference in alignment toward public responsibility between the ICANN Board and some newly invented grouping of community members. It ain’t so and it’s inappropriate to suggest so.

Steve

On May 20, 2015, at 9:39 AM, Drazek, Keith <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> wrote:

...

Steve,

With all due respect, I think you’re taking this too personally and/or making it too personal. This is not about the current ICANN Board.

None of us know what future ICANN Boards will do, or what future ICANN Boards will permit ICANN’s management to do. Will future Boards always exercise appropriate oversight over management? Could there be instances where ICANN’s legal counsel advises a future Board to make a decision that is counter to the interests of the community to protect the financial interests of the corporation?

I see the proposed community membership structure simply as a check on the power of the Board, nothing more. It’s not about “controlling” or replacing the Board. The Board has its legitimate function, but its decisions cannot be unchallengeable. The community must have the ability to tell the Board it got a decision wrong and to enforce the will of the multi-stakeholder community in rare/limited instances and based on a very high threshold of community agreement/consensus.

I would certainly trust the proposed community members, representing their SOs and ACs, to be balanced, inclusive and trustworthy in protecting the interests of the overall community -- in their role as the aforementioned check on the powers of the Board. Not as a replacement.

Would you trust a future Board of sixteen unknown individuals more than you trust the multi-stakeholder, bottom-up, consensus-based community and process? It appears so.

I stand by and reaffirm my previous email. I hope my clarification helps.

Sincerely,

Keith

From: Steve Crocker [mailto:steve@shinkuro.com <mailto:steve@shinkuro.com>] Sent: Wednesday, May 20, 2015 8:27 AM To: Drazek, Keith Cc: Stephen D. Crocker; Chris Disspain; Accountability Cross Community; mshears@cdt.org <mailto:mshears@cdt.org>; egmorris1@toast.net <mailto:egmorris1@toast.net> Subject: Re: [CCWG-ACCT] Question regarding UAs

On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> wrote:

Hi Chris,

I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power.

Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve.

You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community.

Keith, Edward and Edward,

We have covered the point above several times and it’s long past time to stop throwing this half-trust around. Yes, ICANN is legally a corporation, and, yes, directors of a corporation have a duty to protect the corporation. But that generality has a far different meaning in a for profit corporation like Verisign than it does in a not-for-profit public benefit corporation like ICANN. The directors are obliged to pursue the purpose and mission stated in the incorporation papers and the bylaws. The directors serve the community, and we do so by exercising oversight over the corporation toward that end.

There will always be differences of opinion about the particular details, but those sorts of differences of opinion will arise in *any* governance model. The prevailing assumption in much of the correspondence on this list is that the proposed members will somehow be more balanced, more inclusive and more trustworthy in protecting the interests of the overall community than the ICANN Board is. That’s simply false. And I think you know that it is.

Please correct yourself and apologize.

Thanks,

Steve

We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone?

The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability.

You asked, "Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" I believe the answer is yes. Not only worth it, but necessary.

Regards, Keith

On May 20, 2015, at 2:40 AM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:

...

For clarity, the last sentence of paragraph 8 below should read:

"However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board."

Cheers,

Chris

...

On 20 May 2015, at 16:13 , Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:

Jordan, All,

Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues.

First of all, I want to acknowledge that I concur with you on a number points.

I agree that we need to develop a model that disrupts ICANN’s operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed.

I also agree that levels of accountability are not “up to scratch” and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported.

However, where I disagree with you is in respect to the absolute need for an additional mechanism, to supersede the current IANA functions contract, in order to ensure that the community can ‘control’ the Board because it has the right to bring a legal action in a US court.

I disagree with the characterisation that the purpose of the CCWG’s work is to wrest “control” from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to “enforceability”, neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above.

The need to assert absolute “control” or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, binding arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?

Further, you refer to a “long list” of community concerns about ICANN’s current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN’s bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board.

To be clear – I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms.

I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption.

Cheers,

Chris

...

On 20 May 2015, at 15:33 , Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> wrote:

We need legal persons to be members of ICANN.

They can be individual humans or they can be organisations.

UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould.

I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....)

cheers Jordan

On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>> wrote: Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it.

But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing.

Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years.

The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub.

Alan

At 20/05/2015 12:41 AM, Avri Doria wrote: Hi,

I think I understand the argument about members becoming that to which ICANN, and its Board, are responsible and accountable. From that perspective it sounds really good.

What I have having trouble understanding is an accountability structure were there is a discontinuity between the SOAC and the UA. If each of the Board designating SOAC were the UA, it think I would understand. But I just do not see how the UA are accountable to the people and organizations that participate in each of the SOAC. Yes, the SOAC designates it UA representative, but how is (s)electing one of these any more accountable than (s)electing the Board as we do now. Don't we just move the perceived/possible unaccountability down a layer in the hierarchy?

I think I am as comfortable with complexity as the next person. And I understand how in computer science any problem can solved by adding another layer of indirection, but in this case the extra layer we are creating does not seem to really be accountable to anyone but itself, except by (s)election procedures.

I am sure I am missing some critical bit of understanding and hope someone can explain the chain of accountability in the membership model. I feel that we are still hand-waving a bit in the explanations. In a sense it seems as if we are creating a 'council' that is omnipotent in the powers it is given, except that they can somehow be replaced.

Thanks and apologies for my persistent confusion.

avri

On 20-May-15 01:14, Jordan Carter wrote:

...

Hi all

This thread is useful to tease out some of the questions and concerns and confusions with the UA model, and as rapporteur for the WP responsible for refining this part of the proposal I am reading it avidly.

I just want to take the opportunity to remind us all why membership (or something analogous) is an important aspect of the reforms we are proposing - no matter the precise details.

At the moment without members, ICANN is fundamentally controlled by the Board. The only external constraint is the IANA functions contract with NTIA. The long list of community concerns and examples detailed by our earlier work in this CCWG shows that even with that constraint, accountability isn't up to scratch.

We are working on a settlement without that NTIA contract. Accountability has to get better even *with* the contract. Fundamentally better, without it.

Either we have a membership structure or some other durable approach that firmly embeds the stewardship of ICANN and the DNS in the ICANN community, or... we remain with Board control.

Given ICANN's history, anyone who is advocating a continuation of Board control is arguing for a model that can't be suitably accountable, and that seems highly likely to fail over time, with real risks to the security and stability of the DNS.

A real, fundamental source of power over the company absent the contract *has* to be established. The membership model is the most suitable one to achieve that that we have considered so far.

So: we need to be creative and thoughtful in how we make that model work in a fashion that disrupts ICANN's general operation as little as possible. But the key there is "as possible." Real change is needed and much refinement and comment is needed.

If there are proposals to achieve the same shift in control from ICANN the corporation to ICANN the community, I hope they come through in the comment period. So far, none have - but there are still two weeks of comments to go.

cheers Jordan

On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net> <mailto:malcolm@linx.net <mailto:malcolm@linx.net>>> wrote:

This whole thread seems to have massively overcomplicated the question.

Unless I have missed something, the only reason we need "members" is to stand as plaintiff-of-record in a lawsuit against the ICANN Board complaining that the Board has failed to adhere to the corporations bylaws. Such a lawsuit would in reality be conducted by an SO or AC, but a person with legal personality needs to act as plaintiff-of-record.

Why not simply proceed, as Samantha suggested, with the SOACs' Chairs as the members of the corporation? Could the Articles (or Bylaws, as appropriate) not simply identify the SOACs' Chairs as the members, ex officio and pro tempore?

An SOAC Chair that refused to act as plaintiff-of-record when required to do so by his SOAC could simply be replaced. Likewise a Chair that went rogue and initiated a lawsuit without their consent.

You can't make the SOAC a member without turning them into UAs, with all the attendent complexity. But I don't see that there should be any such problem with designating the chair of a SOAC, who will be a natural person, as a member of the corporation; the fact that the SOAC is not a UA is then irrelevant.

In the event that there were any dispute as to whether a particular person is in truth an SOAC Chair, this would surely be a simple preliminary matter of fact for the court. It is surely beyond dispute that if the Articles designated "Alan Greenberg" as the member, it would be a matter of fact as to whether or not the person before the court was indeed Alan Greenberg; surely it is the same as to whether the person before the court is "the current Chair of ALAC", if that should be what is specified in the Articles?

Malcolm.

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Thanks James…I appreciate the question. I’m tied up this afternoon. I’ll respond as soon as I can. Cheers, Chris

On 21 May 2015, at 14:00 , James M. Bladel <jbladel@godaddy.com> wrote:

Chris-

Thank you for this detailed explanation. Question: IF the Board was unified in its opinion that the decision/issue was counter to ICANNs mission, per the Fundamental Bylaws, and IF the Community was unanimous in its disagreement with the Board on this point, then I'd it reasonable to assume that somewhere between 6 and 7 there would be a move to modify even the Fundamental Bylaws to accommodate the Board's concerns?

It's a heavy lift, but faster & cheaper than going to court, no?

Thank you,

J. ____________ James Bladel GoDaddy

On May 20, 2015, at 19:46, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:

...

Becky, Keith, Jordan, All,

Thank you. I think Becky is spot on and has illustrated to me that I am not being as clear as I need to be.

First, let’s be clear what we mean by “the Board’s responsibility to act in the best interests of the corporation”. The best interests of the corporation are defined by ICANN’s mission. And the fiduciary duty of the Board means (as Sidley have said in one of their memos) that Directors are obligated by these duties to disregard a process or decisions that do not comply with law or the mission or core purpose of ICANN as articulated in the bylaws. This in turn means that the community, even with bylaw or contractual provisions, cannot compel the board to act in a manner contrary to the duties.

Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms:

1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California.

As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.

Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.

If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.

Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.

Cheers,

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On 21 May 2015, at 07:51 , Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:

The “enforceability" issue is not about litigation at all, and it isn’t really about whether the Board or some newly invented group is more likely to get it right. Rather, it’s about checks and balances. Without the membership structure, the revised bylaws that empower the community to block certain actions, for example, are by definition advisory – they impose no legal obligation whatsoever on the Board and staff. I don’t dispute that the Board would have a compelling interest in respecting community input, but as a legal matter without the membership structure, the Board would be required to treat any community vote to block, for example, as merely advisory and would have an affirmative obligation to do what it concludes is consistent with its fiduciary duty. The membership model affirmatively shifts some of that fiduciary responsibility to the community. It’s not a statement of who is right or wrong, but who has authority. Steve raises a reasonable question about how the members/unincorporated associations are accountable to their respective communities. But IMHO, the legitimate questions and concerns in this debate are getting obscured by polarizing language and assertions that it’s inappropriate to express a particular point of view.

The argument that there are no examples of situations that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board.” The community has never had any authority or tool to do so, so the fact that it never has is irrelevant and the assertion that it would not have is speculation. I certainly would have tried to get the community to overturn the Board’s decision to abandon the substantive standard for IRPs in favor of the “good faith” test. As it happens, none of the existing review and redress mechanisms would have worked in that case, and they probably wouldn’t work in the future either.

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From: Steve DelBianco <sdelbianco@netchoice.org <mailto:sdelbianco@netchoice.org>> Date: Wednesday, May 20, 2015 at 12:37 PM To: "Chartier, Mike S" <mike.s.chartier@intel.com <mailto:mike.s.chartier@intel.com>>, Steve Crocker <steve@shinkuro.com <mailto:steve@shinkuro.com>>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Cc: Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Question regarding UAs

I don’t think there’s any question that the Board’s primary duty (not their only duty) is to ICANN the Corporation. In addition to Mike’s citation of ICANN bylaws Section 7 (below), see ICANN’s Management Operating Principles (2008):

...

"The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations.”

Source: ICANN Accountability & Transparency Frameworks and Principles, Jan-2008, p.5, at https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles... <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system...>

From: "Chartier, Mike S" Date: Wednesday, May 20, 2015 at 9:56 AM To: Steve Crocker, Keith Drazek Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs

No comment on actual practice, but from a textual basis (which is what matters now since we are debating new text), I can’t see any inconsistency between the following statements:

...

“Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.” “the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation,”

  <> 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 Steve Crocker Sent: Wednesday, May 20, 2015 9:47 AM To: Drazek, Keith Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs

I didn’t take it personally. I took it as a factually inaccurate statement that creates misunderstanding. Future boards are bound by the same rules as the past and current boards. The language you used is taken by many as a basis for believing there is a significant difference in alignment toward public responsibility between the ICANN Board and some newly invented grouping of community members. It ain’t so and it’s inappropriate to suggest so.

Steve

On May 20, 2015, at 9:39 AM, Drazek, Keith <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> wrote:

...

Steve,

With all due respect, I think you’re taking this too personally and/or making it too personal. This is not about the current ICANN Board.

None of us know what future ICANN Boards will do, or what future ICANN Boards will permit ICANN’s management to do. Will future Boards always exercise appropriate oversight over management? Could there be instances where ICANN’s legal counsel advises a future Board to make a decision that is counter to the interests of the community to protect the financial interests of the corporation?

I see the proposed community membership structure simply as a check on the power of the Board, nothing more. It’s not about “controlling” or replacing the Board. The Board has its legitimate function, but its decisions cannot be unchallengeable. The community must have the ability to tell the Board it got a decision wrong and to enforce the will of the multi-stakeholder community in rare/limited instances and based on a very high threshold of community agreement/consensus.

I would certainly trust the proposed community members, representing their SOs and ACs, to be balanced, inclusive and trustworthy in protecting the interests of the overall community -- in their role as the aforementioned check on the powers of the Board. Not as a replacement.

Would you trust a future Board of sixteen unknown individuals more than you trust the multi-stakeholder, bottom-up, consensus-based community and process? It appears so.

I stand by and reaffirm my previous email. I hope my clarification helps.

Sincerely,

Keith

From: Steve Crocker [mailto:steve@shinkuro.com <mailto:steve@shinkuro.com>] Sent: Wednesday, May 20, 2015 8:27 AM To: Drazek, Keith Cc: Stephen D. Crocker; Chris Disspain; Accountability Cross Community; mshears@cdt.org <mailto:mshears@cdt.org>; egmorris1@toast.net <mailto:egmorris1@toast.net> Subject: Re: [CCWG-ACCT] Question regarding UAs

On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> wrote:

Hi Chris,

I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power.

Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve.

You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community.

Keith, Edward and Edward,

We have covered the point above several times and it’s long past time to stop throwing this half-trust around. Yes, ICANN is legally a corporation, and, yes, directors of a corporation have a duty to protect the corporation. But that generality has a far different meaning in a for profit corporation like Verisign than it does in a not-for-profit public benefit corporation like ICANN. The directors are obliged to pursue the purpose and mission stated in the incorporation papers and the bylaws. The directors serve the community, and we do so by exercising oversight over the corporation toward that end.

There will always be differences of opinion about the particular details, but those sorts of differences of opinion will arise in *any* governance model. The prevailing assumption in much of the correspondence on this list is that the proposed members will somehow be more balanced, more inclusive and more trustworthy in protecting the interests of the overall community than the ICANN Board is. That’s simply false. And I think you know that it is.

Please correct yourself and apologize.

Thanks,

Steve

We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone?

The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability.

You asked, "Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" I believe the answer is yes. Not only worth it, but necessary.

Regards, Keith

On May 20, 2015, at 2:40 AM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:

...

For clarity, the last sentence of paragraph 8 below should read:

"However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board."

Cheers,

Chris

...

On 20 May 2015, at 16:13 , Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:

Jordan, All,

Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues.

First of all, I want to acknowledge that I concur with you on a number points.

I agree that we need to develop a model that disrupts ICANN’s operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed.

I also agree that levels of accountability are not “up to scratch” and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported.

However, where I disagree with you is in respect to the absolute need for an additional mechanism, to supersede the current IANA functions contract, in order to ensure that the community can ‘control’ the Board because it has the right to bring a legal action in a US court.

I disagree with the characterisation that the purpose of the CCWG’s work is to wrest “control” from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to “enforceability”, neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above.

The need to assert absolute “control” or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, binding arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?

Further, you refer to a “long list” of community concerns about ICANN’s current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN’s bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board.

To be clear – I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms.

I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption.

Cheers,

Chris

> On 20 May 2015, at 15:33 , Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> wrote: > > We need legal persons to be members of ICANN. > > They can be individual humans or they can be organisations. > > UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould. > > I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....) > > cheers > Jordan > > > On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>> wrote: > Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it. > > But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing. > > Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years. > > The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub. > > Alan > > > At 20/05/2015 12:41 AM, Avri Doria wrote: > Hi, > > I think I understand the argument about members becoming that to which > ICANN, and its Board, are responsible and accountable. From that > perspective it sounds really good. > > What I have having trouble understanding is an accountability structure > were there is a discontinuity between the SOAC and the UA. If each of > the Board designating SOAC were the UA, it think I would understand. > But I just do not see how the UA are accountable to the people and > organizations that participate in each of the SOAC. Yes, the SOAC > designates it UA representative, but how is (s)electing one of these any > more accountable than (s)electing the Board as we do now. Don't we just > move the perceived/possible unaccountability down a layer in the hierarchy? > > I think I am as comfortable with complexity as the next person. And I > understand how in computer science any problem can solved by adding > another layer of indirection, but in this case the extra layer we are > creating does not seem to really be accountable to anyone but itself, > except by (s)election procedures. > > I am sure I am missing some critical bit of understanding and hope > someone can explain the chain of accountability in the membership > model. I feel that we are still hand-waving a bit in the explanations. > In a sense it seems as if we are creating a 'council' that is omnipotent > in the powers it is given, except that they can somehow be replaced. > > Thanks and apologies for my persistent confusion. > > avri > > > > On 20-May-15 01:14, Jordan Carter wrote: > > Hi all > > > > This thread is useful to tease out some of the questions and concerns > > and confusions with the UA model, and as rapporteur for the WP > > responsible for refining this part of the proposal I am reading it avidly. > > > > I just want to take the opportunity to remind us all why membership > > (or something analogous) is an important aspect of the reforms we are > > proposing - no matter the precise details. > > > > At the moment without members, ICANN is fundamentally controlled by > > the Board. The only external constraint is the IANA functions contract > > with NTIA. The long list of community concerns and examples detailed > > by our earlier work in this CCWG shows that even with that constraint, > > accountability isn't up to scratch. > > > > We are working on a settlement without that NTIA contract. > > Accountability has to get better even *with* the contract. > > Fundamentally better, without it. > > > > Either we have a membership structure or some other durable approach > > that firmly embeds the stewardship of ICANN and the DNS in the ICANN > > community, or... we remain with Board control. > > > > Given ICANN's history, anyone who is advocating a continuation of > > Board control is arguing for a model that can't be suitably > > accountable, and that seems highly likely to fail over time, with real > > risks to the security and stability of the DNS. > > > > A real, fundamental source of power over the company absent the > > contract *has* to be established. The membership model is the most > > suitable one to achieve that that we have considered so far. > > > > So: we need to be creative and thoughtful in how we make that model > > work in a fashion that disrupts ICANN's general operation as little as > > possible. But the key there is "as possible." Real change is needed > > and much refinement and comment is needed. > > > > If there are proposals to achieve the same shift in control from ICANN > > the corporation to ICANN the community, I hope they come through in > > the comment period. So far, none have - but there are still two weeks > > of comments to go. > > > > cheers > > Jordan > > > > > > On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net> > > <mailto:malcolm@linx.net <mailto:malcolm@linx.net>>> wrote: > > > > This whole thread seems to have massively overcomplicated the > > question. > > > > > > Unless I have missed something, the only reason we need "members" > > is to > > stand as plaintiff-of-record in a lawsuit against the ICANN Board > > complaining that the Board has failed to adhere to the corporations > > bylaws. Such a lawsuit would in reality be conducted by an SO or > > AC, but > > a person with legal personality needs to act as plaintiff-of-record. > > > > Why not simply proceed, as Samantha suggested, with the SOACs' > > Chairs as > > the members of the corporation? Could the Articles (or Bylaws, as > > appropriate) not simply identify the SOACs' Chairs as the members, ex > > officio and pro tempore? > > > > An SOAC Chair that refused to act as plaintiff-of-record when required > > to do so by his SOAC could simply be replaced. Likewise a Chair that > > went rogue and initiated a lawsuit without their consent. > > > > You can't make the SOAC a member without turning them into UAs, > > with all > > the attendent complexity. But I don't see that there should be any > > such > > problem with designating the chair of a SOAC, who will be a natural > > person, as a member of the corporation; the fact that the SOAC is > > not a > > UA is then irrelevant. > > > > In the event that there were any dispute as to whether a particular > > person is in truth an SOAC Chair, this would surely be a simple > > preliminary matter of fact for the court. It is surely beyond dispute > > that if the Articles designated "Alan Greenberg" as the member, it > > would > > be a matter of fact as to whether or not the person before the > > court was > > indeed Alan Greenberg; surely it is the same as to whether the person > > before the court is "the current Chair of ALAC", if that should be > > what > > is specified in the Articles? > > > > Malcolm. > > > > -- > > Malcolm Hutty | tel: +44 20 7645 3523 <tel:%2B44%2020%207645%203523> > > <tel:%2B44%2020%207645%203523 <tel:%2B44%2020%207645%203523>> > > Head of Public Affairs | Read the LINX Public Affairs blog > > London Internet Exchange | http://publicaffairs.linx.net/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__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 > > > > > > _______________________________________________ > > 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 <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > > > > > > > > > > -- > > Jordan Carter > > > > Chief Executive > > *InternetNZ* > > > > 04 495 2118 <tel:04%20495%202118> (office) | +64 21 442 649 <tel:%2B64%2021%20442%20649> (mob) > > jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> > > Skype: jordancarter > > > > /A better world through a better Internet / > > > > > > > > _______________________________________________ > > 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > > > --- > This email has been checked for viruses by Avast antivirus software. > http://www.avast.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.avast.com_&d=AwMGaQ&...> > > _______________________________________________ > 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > > _______________________________________________ > 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > > > > -- > 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 > > _______________________________________________ > 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>

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The scenario is all the more interesting in light of Jan Scholte's regular reminders that we need to consider accountability of the community as well. Alan At 20/05/2015 09:45 PM, Chris Disspain wrote:

Becky, Keith, Jordan, All,

Thank you. I think Becky is spot on and has illustrated to me that I am not being as clear as I need to be.

First, let’s be clear what we mean by “the Board’s responsibility to act in the best interests of the corporation”. The best interests of the corporation are defined by ICANN’s mission. And the fiduciary duty of the Board means (as Sidley have said in one of their memos) that Directors are obligated by these duties to disregard a process or decisions that do not comply with law or the mission or core purpose of ICANN as articulated in the bylaws. This in turn means that the community, even with bylaw or contractual provisions, cannot compel the board to act in a manner contrary to the duties.

Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms:

1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California.

As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.

Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.

If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.

Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.

Cheers,

Chris Disspain | Chief Executive Officer

.au Domain Administration Ltd

T: +61 3 8341 4111 | F: +61 3 8341 4112

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Important Notice - This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. Please consider the environment before printing this email.

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On 21 May 2015, at 07:51 , Burr, Becky <<mailto:Becky.Burr@neustar.biz>Becky.Burr@neustar.biz> wrote:

The “enforceability" issue is not about litigation at all, and it isn’t really about whether the Board or some newly invented group is more likely to get it right. Rather, it’s about checks and balances. Without the membership structure, the revised bylaws that empower the community to block certain actions, for example, are by definition advisory – they impose no legal obligation whatsoever on the Board and staff. I don’t dispute that the Board would have a compelling interest in respecting community input, but as a legal matter without the membership structure, the Board would be required to treat any community vote to block, for example, as merely advisory and would have an affirmative obligation to do what it concludes is consistent with its fiduciary duty. The membership model affirmatively shifts some of that fiduciary responsibility to the community. It’s not a statement of who is right or wrong, but who has authority. Steve raises a reasonable question about how the members/unincorporated associations are accountable to their respective communities. But IMHO, the legitimate questions and concerns in this debate are getting obscured by polarizing language and assertions that it’s inappropriate to express a particular point of view.

The argument that there are no examples of situations that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board.” The community has never had any authority or tool to do so, so the fact that it never has is irrelevant and the assertion that it would not have is speculation. I certainly would have tried to get the community to overturn the Board’s decision to abandon the substantive standard for IRPs in favor of the “good faith” test. As it happens, none of the existing review and redress mechanisms would have worked in that case, and they probably wouldn’t work in the future either.

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 / www.neustar.biz

From: Steve DelBianco <<mailto:sdelbianco@netchoice.org>sdelbianco@netchoice.org> Date: Wednesday, May 20, 2015 at 12:37 PM To: "Chartier, Mike S" <<mailto:mike.s.chartier@intel.com>mike.s.chartier@intel.com>, Steve Crocker <<mailto:steve@shinkuro.com>steve@shinkuro.com>, Keith Drazek <<mailto:kdrazek@verisign.com>kdrazek@verisign.com> Cc: Accountability Community <<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Question regarding UAs

I don’t think there’s any question that the Board’s primary duty (not their only duty) is to ICANN the Corporation. In addition to Mike’s citation of ICANN bylaws Section 7 (below), see ICANN’s Management Operating Principles (2008):

...

"The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations.”

Source: ICANN Accountability & Transparency Frameworks and Principles, Jan-2008, p.5, at <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system_files_files_acct-2Dtrans-2Dframeworks-2Dprinciples-2D10jan08-2Den.pdf&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=N94BFwt7XlN1luKY2YsAlg92HkXfJ8UfYuQCH-3B3bY&s=-nHIJ38MbHZo2QiXUiLPqBi6YeaesFEbRqTO3RL3Jew&e=>https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles-10jan08-en.pdf

From: "Chartier, Mike S" Date: Wednesday, May 20, 2015 at 9:56 AM To: Steve Crocker, Keith Drazek Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs

No comment on actual practice, but from a textual basis (which is what matters now since we are debating new text), I can’t see any inconsistency between the following statements:

...

“Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.” “the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation,”

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 Steve Crocker Sent: Wednesday, May 20, 2015 9:47 AM To: Drazek, Keith Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs

I didn’t take it personally. I took it as a factually inaccurate statement that creates misunderstanding. Future boards are bound by the same rules as the past and current boards. The language you used is taken by many as a basis for believing there is a significant difference in alignment toward public responsibility between the ICANN Board and some newly invented grouping of community members. It ain’t so and it’s inappropriate to suggest so.

Steve

On May 20, 2015, at 9:39 AM, Drazek, Keith <<mailto:kdrazek@verisign.com>kdrazek@verisign.com> wrote:

...

Steve,

With all due respect, I think you’re taking this too personally and/or making it too personal. This is not about the current ICANN Board.

None of us know what future ICANN Boards will do, or what future ICANN Boards will permit ICANN’s management to do. Will future Boards always exercise appropriate oversight over management? Could there be instances where ICANN’s legal counsel advises a future Board to make a decision that is counter to the interests of the community to protect the financial interests of the corporation?

I see the proposed community membership structure simply as a check on the power of the Board, nothing more. It’s not about “controlling” or replacing the Board. The Board has its legitimate function, but its decisions cannot be unchallengeable. The community must have the ability to tell the Board it got a decision wrong and to enforce the will of the multi-stakeholder community in rare/limited instances and based on a very high threshold of community agreement/consensus.

I would certainly trust the proposed community members, representing their SOs and ACs, to be balanced, inclusive and trustworthy in protecting the interests of the overall community -- in their role as the aforementioned check on the powers of the Board. Not as a replacement.

Would you trust a future Board of sixteen unknown individuals more than you trust the multi-stakeholder, bottom-up, consensus-based community and process? It appears so.

I stand by and reaffirm my previous email. I hope my clarification helps.

Sincerely,

Keith

From: Steve Crocker [<mailto:steve@shinkuro.com>mailto:steve@shinkuro.com] Sent: Wednesday, May 20, 2015 8:27 AM To: Drazek, Keith Cc: Stephen D. Crocker; Chris Disspain; Accountability Cross Community; <mailto:mshears@cdt.org>mshears@cdt.org; <mailto:egmorris1@toast.net>egmorris1@toast.net Subject: Re: [CCWG-ACCT] Question regarding UAs

On May 20, 2015, at 7:44 AM, Drazek, Keith <<mailto:kdrazek@verisign.com>kdrazek@verisign.com> wrote:

Hi Chris,

I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power.

Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve.

You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community.

Keith, Edward and Edward,

We have covered the point above several times and it’s long past time to stop throwing this half-trust around. Yes, ICANN is legally a corporation, and, yes, directors of a corporation have a duty to protect the corporation. But that generality has a far different meaning in a for profit corporation like Verisign than it does in a not-for-profit public benefit corporation like ICANN. The directors are obliged to pursue the purpose and mission stated in the incorporation papers and the bylaws. The directors serve the community, and we do so by exercising oversight over the corporation toward that end.

There will always be differences of opinion about the particular details, but those sorts of differences of opinion will arise in *any* governance model. The prevailing assumption in much of the correspondence on this list is that the proposed members will somehow be more balanced, more inclusive and more trustworthy in protecting the interests of the overall community than the ICANN Board is. That’s simply false. And I think you know that it is.

Please correct yourself and apologize.

Thanks,

Steve

We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone?

The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability.

You asked, "Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" I believe the answer is yes. Not only worth it, but necessary.

Regards, Keith

On May 20, 2015, at 2:40 AM, Chris Disspain <<mailto:ceo@auda.org.au>ceo@auda.org.au> wrote:

...

For clarity, the last sentence of paragraph 8 below should read:

"However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board."

Cheers,

Chris

...

On 20 May 2015, at 16:13 , Chris Disspain <<mailto:ceo@auda.org.au>ceo@auda.org.au> wrote:

Jordan, All,

Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues.

First of all, I want to acknowledge that I concur with you on a number points.

I agree that we need to develop a model that disrupts ICANN’s operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed.

I also agree that levels of accountability are not “up to scratch” and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported.

However, where I disagree with you is in respect to the absolute need for an additional mechanism, to supersede the current IANA functions contract, in order to ensure that the community can ‘control’ the Board because it has the right to bring a legal action in a US court.

I disagree with the characterisation that the purpose of the CCWG’s work is to wrest “control” from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to “enforceability”, neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above.

The need to assert absolute “control” or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, binding arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?

Further, you refer to a “long list” of community concerns about ICANN’s current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN’s bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board.

To be clear – I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms.

I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption.

Cheers,

Chris

...

On 20 May 2015, at 15:33 , Jordan Carter <<mailto:jordan@internetnz.net.nz>jordan@internetnz.net.nz> wrote:

We need legal persons to be members of ICANN.

They can be individual humans or they can be organisations.

UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould.

I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....)

cheers Jordan

On 20 May 2015 at 17:21, Alan Greenberg <<mailto:alan.greenberg@mcgill.ca>alan.greenberg@mcgill.ca> wrote: Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it.

But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing.

Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years.

The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub.

Alan

At 20/05/2015 12:41 AM, Avri Doria wrote: Hi,

I think I understand the argument about members becoming that to which ICANN, and its Board, are responsible and accountable. From that perspective it sounds really good.

What I have having trouble understanding is an accountability structure were there is a discontinuity between the SOAC and the UA. If each of the Board designating SOAC were the UA, it think I would understand. But I just do not see how the UA are accountable to the people and organizations that participate in each of the SOAC. Yes, the SOAC designates it UA representative, but how is (s)electing one of these any more accountable than (s)electing the Board as we do now. Don't we just move the perceived/possible unaccountability down a layer in the hierarchy?

I think I am as comfortable with complexity as the next person. And I understand how in computer science any problem can solved by adding another layer of indirection, but in this case the extra layer we are creating does not seem to really be accountable to anyone but itself, except by (s)election procedures.

I am sure I am missing some critical bit of understanding and hope someone can explain the chain of accountability in the membership model. I feel that we are still hand-waving a bit in the explanations. In a sense it seems as if we are creating a 'council' that is omnipotent in the powers it is given, except that they can somehow be replaced.

Thanks and apologies for my persistent confusion.

avri

On 20-May-15 01:14, Jordan Carter wrote: > Hi all > > This thread is useful to tease out some of the questions and concerns > and confusions with the UA model, and as rapporteur for the WP > responsible for refining this part of the proposal I am reading it avidly. > > I just want to take the opportunity to remind us all why membership > (or something analogous) is an important aspect of the reforms we are > proposing - no matter the precise details. > > At the moment without members, ICANN is fundamentally controlled by > the Board. The only external constraint is the IANA functions contract > with NTIA. The long list of community concerns and examples detailed > by our earlier work in this CCWG shows that even with that constraint, > accountability isn't up to scratch. > > We are working on a settlement without that NTIA contract. > Accountability has to get better even *with* the contract. > Fundamentally better, without it. > > Either we have a membership structure or some other durable approach > that firmly embeds the stewardship of ICANN and the DNS in the ICANN > community, or... we remain with Board control. > > Given ICANN's history, anyone who is advocating a continuation of > Board control is arguing for a model that can't be suitably > accountable, and that seems highly likely to fail over time, with real > risks to the security and stability of the DNS. > > A real, fundamental source of power over the company absent the > contract *has* to be established. The membership model is the most > suitable one to achieve that that we have considered so far. > > So: we need to be creative and thoughtful in how we make that model > work in a fashion that disrupts ICANN's general operation as little as > possible. But the key there is "as possible." Real change is needed > and much refinement and comment is needed. > > If there are proposals to achieve the same shift in control from ICANN > the corporation to ICANN the community, I hope they come through in > the comment period. So far, none have - but there are still two weeks > of comments to go. > > cheers > Jordan > > > On 20 May 2015 at 10:45, Malcolm Hutty <<mailto:malcolm@linx.net>malcolm@linx.net > <mailto:malcolm@linx.net>> wrote: > > This whole thread seems to have massively overcomplicated the > question. > > > Unless I have missed something, the only reason we need "members" > is to > stand as plaintiff-of-record in a lawsuit against the ICANN Board > complaining that the Board has failed to adhere to the corporations > bylaws. Such a lawsuit would in reality be conducted by an SO or > AC, but > a person with legal personality needs to act as plaintiff-of-record. > > Why not simply proceed, as Samantha suggested, with the SOACs' > Chairs as > the members of the corporation? Could the Articles (or Bylaws, as > appropriate) not simply identify the SOACs' Chairs as the members, ex > officio and pro tempore? > > An SOAC Chair that refused to act as plaintiff-of-record when required > to do so by his SOAC could simply be replaced. Likewise a Chair that > went rogue and initiated a lawsuit without their consent. > > You can't make the SOAC a member without turning them into UAs, > with all > the attendent complexity. But I don't see that there should be any > such > problem with designating the chair of a SOAC, who will be a natural > person, as a member of the corporation; the fact that the SOAC is > not a > UA is then irrelevant. > > In the event that there were any dispute as to whether a particular > person is in truth an SOAC Chair, this would surely be a simple > preliminary matter of fact for the court. It is surely beyond dispute > that if the Articles designated "Alan Greenberg" as the member, it > would > be a matter of fact as to whether or not the person before the > court was > indeed Alan Greenberg; surely it is the same as to whether the person > before the court is "the current Chair of ALAC", if that should be > what > is specified in the Articles? > > Malcolm. > > -- > Malcolm Hutty | tel: <tel:%2B44%2020%207645%203523>+44 20 7645 3523 > <<tel:%2B44%2020%207645%203523>tel:%2B44%2020%207645%203523> > Head of Public Affairs | Read the LINX Public Affairs blog > London Internet Exchange | <https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=N94BFwt7XlN1luKY2YsAlg92HkXfJ8UfYuQCH-3B3bY&s=PujqDBGqGixKBOrunqLkoUHDthIag7v0xY8FdvW-Sx0&e=>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 > > > _______________________________________________ > Accountability-Cross-Community mailing list > <mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community@icann.org > <mailto:Accountability-Cross-Community@icann.org> > <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=N94BFwt7XlN1luKY2YsAlg92HkXfJ8UfYuQCH-3B3bY&s=Q-eiGB-sv0V29BiD3kbPQqSJQp1CknEJTAoowRdEcME&e=>https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > > -- > Jordan Carter > > Chief Executive > *InternetNZ* > > <tel:04%20495%202118>04 495 2118 (office) | <tel:%2B64%2021%20442%20649>+64 21 442 649 (mob) > <mailto:jordan@internetnz.net.nz>jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> > Skype: jordancarter > > /A better world through a better Internet / > > > > _______________________________________________ > 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

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Chris, Though you say that Becky is spot on, you seemed to miss her point-- that this is not about litigation, this is about checks and balances. If the present were as utopian as you say it is, we would not be having this conversation. If the future were likely to be as dystopian as you project it to be, no one in their right mind would propose what the CCWG is proposing. Indeed, no one would ever have a membership non-profit, this future, where we have a rogue board and a litigation-happy community, at least one of which seems to be getting it utterly wrong as to ICANN's mission, seems straight out of "Mad Max." The creation of an a legally viable set of accountability measures does not spell the end of the multi stakeholder model, it heralds its maturation. If the ICANN community is not ready to take on the responsibilities of membership (where members sit above the board in certain circumstances) we have bigger problems than this. Maybe we're not ready for the NTIA to cut the (umbilical) cord. Thankfully, I don't believe that's the case -- I think we are ready, willing and able and ICANN the corporation and ICANN the community will both be the better for it. As will the Internet. Greg On Wednesday, May 20, 2015, Chris Disspain <ceo@auda.org.au> wrote:

Becky, Keith, Jordan, All,

Thank you. I think Becky is spot on and has illustrated to me that I am not being as clear as I need to be.

First, let’s be clear what we mean by “the Board’s responsibility to act in the best interests of the corporation”. The best interests of the corporation are defined by ICANN’s mission. And the fiduciary duty of the Board means (as Sidley have said in one of their memos) that Directors are obligated by these duties to disregard a process or decisions that do not comply with law or the mission or core purpose of ICANN as articulated in the bylaws. This in turn means that the community, even with bylaw or contractual provisions, cannot compel the board to act in a manner contrary to the duties.

Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms:

1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California.

As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.

Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.

If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.

Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.

Cheers,

Chris Disspain | Chief Executive Officer

.au Domain Administration Ltd

T: +61 3 8341 4111 | F: +61 3 8341 4112

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On 21 May 2015, at 07:51 , Burr, Becky <Becky.Burr@neustar.biz <javascript:_e(%7B%7D,'cvml','Becky.Burr@neustar.biz');>> wrote:

The “enforceability" issue is not about litigation at all, and it isn’t really about whether the Board or some newly invented group is more likely to get it right. Rather, it’s about checks and balances. Without the membership structure, the revised bylaws that empower the community to block certain actions, for example, are by definition advisory – they impose no *legal* obligation whatsoever on the Board and staff. I don’t dispute that the Board would have a compelling interest in respecting community input, but as a legal matter without the membership structure, the Board would be *required* to treat any community vote to block, for example, as merely advisory and would have an affirmative obligation to do what it concludes is consistent with its fiduciary duty. The membership model affirmatively shifts some of that fiduciary responsibility to the community. It’s not a statement of who is right or wrong, but who has authority. Steve raises a reasonable question about how the members/unincorporated associations are accountable to their respective communities. But IMHO, the legitimate questions and concerns in this debate are getting obscured by polarizing language and assertions that it’s inappropriate to express a particular point of view.

The argument that there are no examples of situations that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board.” The community has never had any authority or tool to do so, so the fact that it never has is irrelevant and the assertion that it would not have is speculation. I certainly would have tried to get the community to overturn the Board’s decision to abandon the substantive standard for IRPs in favor of the “good faith” test. As it happens, none of the existing review and redress mechanisms would have worked in that case, and they probably wouldn’t work in the future either.

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 <javascript:_e(%7B%7D,'cvml','becky.burr@neustar.biz');> / www.neustar.biz

From: Steve DelBianco <sdelbianco@netchoice.org <javascript:_e(%7B%7D,'cvml','sdelbianco@netchoice.org');>> Date: Wednesday, May 20, 2015 at 12:37 PM To: "Chartier, Mike S" <mike.s.chartier@intel.com <javascript:_e(%7B%7D,'cvml','mike.s.chartier@intel.com');>>, Steve Crocker <steve@shinkuro.com <javascript:_e(%7B%7D,'cvml','steve@shinkuro.com');>>, Keith Drazek < kdrazek@verisign.com <javascript:_e(%7B%7D,'cvml','kdrazek@verisign.com');>> Cc: Accountability Community <accountability-cross-community@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community@icann.org');>

...

Subject: Re: [CCWG-ACCT] Question regarding UAs

I don’t think there’s any question that the Board’s primary duty (not their only duty) is to ICANN the Corporation. In addition to Mike’s citation of ICANN bylaws Section 7 (below), see ICANN’s Management Operating Principles (2008):

"The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations.”

Source: ICANN Accountability & Transparency Frameworks and Principles, Jan-2008, p.5, at https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles... <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system...>

From: "Chartier, Mike S" Date: Wednesday, May 20, 2015 at 9:56 AM To: Steve Crocker, Keith Drazek Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs

No comment on actual practice, but from a textual basis (which is what matters now since we are debating new text), I can’t see any inconsistency between the following statements:

“Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.” “the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation,”

*From:*accountability-cross-community-bounces@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community-bounces@icann.org');> [mailto:accountability-cross-community-bounces@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community-bounces@icann.org');> ] *On Behalf Of *Steve Crocker *Sent:* Wednesday, May 20, 2015 9:47 AM *To:* Drazek, Keith *Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Question regarding UAs

I didn’t take it personally. I took it as a factually inaccurate statement that creates misunderstanding. Future boards are bound by the same rules as the past and current boards. The language you used is taken by many as a basis for believing there is a significant difference in alignment toward public responsibility between the ICANN Board and some newly invented grouping of community members. It ain’t so and it’s inappropriate to suggest so.

Steve

On May 20, 2015, at 9:39 AM, Drazek, Keith <kdrazek@verisign.com <javascript:_e(%7B%7D,'cvml','kdrazek@verisign.com');>> wrote:

Steve,

With all due respect, I think you’re taking this too personally and/or making it too personal. This is not about the current ICANN Board.

None of us know what future ICANN Boards will do, or what future ICANN Boards will permit ICANN’s management to do. Will future Boards always exercise appropriate oversight over management? Could there be instances where ICANN’s legal counsel advises a future Board to make a decision that is counter to the interests of the community to protect the financial interests of the corporation?

I see the proposed community membership structure simply as a check on the power of the Board, nothing more. It’s not about “controlling” or replacing the Board. The Board has its legitimate function, but its decisions cannot be unchallengeable. The community must have the ability to tell the Board it got a decision wrong and to enforce the will of the multi-stakeholder community in rare/limited instances and based on a very high threshold of community agreement/consensus.

I would certainly trust the proposed community members, representing their SOs and ACs, to be balanced, inclusive and trustworthy in protecting the interests of the overall community -- in their role as the aforementioned check on the powers of the Board. Not as a replacement.

Would you trust a future Board of sixteen unknown individuals more than you trust the multi-stakeholder, bottom-up, consensus-based community and process? It appears so.

I stand by and reaffirm my previous email. I hope my clarification helps.

Sincerely,

Keith

*From:* Steve Crocker [mailto:steve@shinkuro.com <javascript:_e(%7B%7D,'cvml','steve@shinkuro.com');>] *Sent:* Wednesday, May 20, 2015 8:27 AM *To:* Drazek, Keith *Cc:* Stephen D. Crocker; Chris Disspain; Accountability Cross Community; mshears@cdt.org <javascript:_e(%7B%7D,'cvml','mshears@cdt.org');>; egmorris1@toast.net <javascript:_e(%7B%7D,'cvml','egmorris1@toast.net');> *Subject:* Re: [CCWG-ACCT] Question regarding UAs

On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek@verisign.com <javascript:_e(%7B%7D,'cvml','kdrazek@verisign.com');>> wrote:

Hi Chris,

I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power.

Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve.

You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community.

Keith, Edward and Edward,

We have covered the point above several times and it’s long past time to stop throwing this half-trust around. Yes, ICANN is legally a corporation, and, yes, directors of a corporation have a duty to protect the corporation. But that generality has a far different meaning in a for profit corporation like Verisign than it does in a not-for-profit public benefit corporation like ICANN. The directors are obliged to pursue the purpose and mission stated in the incorporation papers and the bylaws. The directors serve the community, and we do so by exercising oversight over the corporation toward that end.

There will always be differences of opinion about the particular details, but those sorts of differences of opinion will arise in *any* governance model. The prevailing assumption in much of the correspondence on this list is that the proposed members will somehow be more balanced, more inclusive and more trustworthy in protecting the interests of the overall community than the ICANN Board is. That’s simply false. And I think you know that it is.

Please correct yourself and apologize.

Thanks,

Steve

We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone?

The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability.

You asked, *"Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" *I believe the answer is yes. Not only worth it, but necessary.

Regards, Keith

On May 20, 2015, at 2:40 AM, Chris Disspain <ceo@auda.org.au <javascript:_e(%7B%7D,'cvml','ceo@auda.org.au');>> wrote:

For clarity, the last sentence of paragraph 8 below should read:

"However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board."

Cheers,

Chris

On 20 May 2015, at 16:13 , Chris Disspain <ceo@auda.org.au <javascript:_e(%7B%7D,'cvml','ceo@auda.org.au');>> wrote:

Jordan, All,

Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues.

First of all, I want to acknowledge that I concur with you on a number points.

I agree that we need to develop a model that disrupts ICANN’s operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed.

I also agree that levels of accountability are not “up to scratch” and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported.

However, where I disagree with you is in respect to the absolute need for an *additional* mechanism, to supersede the current IANA functions contract, in order to ensure that the community can ‘control’ the Board because it has the right to bring a legal action in a US court.

I disagree with the characterisation that the purpose of the CCWG’s work is to wrest “control” from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to “enforceability”, neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above.

The need to assert absolute “control” or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, *binding *arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?

Further, you refer to a “long list” of community concerns about ICANN’s current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN’s bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board.

To be clear – I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms.

I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption.

Cheers,

Chris

On 20 May 2015, at 15:33 , Jordan Carter <jordan@internetnz.net.nz <javascript:_e(%7B%7D,'cvml','jordan@internetnz.net.nz');>> wrote:

We need legal persons to be members of ICANN.

They can be individual humans or they can be organisations.

UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould.

I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....)

cheers Jordan

On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg@mcgill.ca <javascript:_e(%7B%7D,'cvml','alan.greenberg@mcgill.ca');>> wrote: Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it.

But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing.

Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years.

The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub.

Alan

At 20/05/2015 12:41 AM, Avri Doria wrote: Hi,

I think I understand the argument about members becoming that to which ICANN, and its Board, are responsible and accountable. From that perspective it sounds really good.

What I have having trouble understanding is an accountability structure were there is a discontinuity between the SOAC and the UA. If each of the Board designating SOAC were the UA, it think I would understand. But I just do not see how the UA are accountable to the people and organizations that participate in each of the SOAC. Yes, the SOAC designates it UA representative, but how is (s)electing one of these any more accountable than (s)electing the Board as we do now. Don't we just move the perceived/possible unaccountability down a layer in the hierarchy?

I think I am as comfortable with complexity as the next person. And I understand how in computer science any problem can solved by adding another layer of indirection, but in this case the extra layer we are creating does not seem to really be accountable to anyone but itself, except by (s)election procedures.

I am sure I am missing some critical bit of understanding and hope someone can explain the chain of accountability in the membership model. I feel that we are still hand-waving a bit in the explanations. In a sense it seems as if we are creating a 'council' that is omnipotent in the powers it is given, except that they can somehow be replaced.

Thanks and apologies for my persistent confusion.

avri

On 20-May-15 01:14, Jordan Carter wrote:

...

Hi all

This thread is useful to tease out some of the questions and concerns and confusions with the UA model, and as rapporteur for the WP responsible for refining this part of the proposal I am reading it avidly.

I just want to take the opportunity to remind us all why membership (or something analogous) is an important aspect of the reforms we are proposing - no matter the precise details.

At the moment without members, ICANN is fundamentally controlled by the Board. The only external constraint is the IANA functions contract with NTIA. The long list of community concerns and examples detailed by our earlier work in this CCWG shows that even with that constraint, accountability isn't up to scratch.

We are working on a settlement without that NTIA contract. Accountability has to get better even *with* the contract. Fundamentally better, without it.

Either we have a membership structure or some other durable approach that firmly embeds the stewardship of ICANN and the DNS in the ICANN community, or... we remain with Board control.

Given ICANN's history, anyone who is advocating a continuation of Board control is arguing for a model that can't be suitably accountable, and that seems highly likely to fail over time, with real risks to the security and stability of the DNS.

A real, fundamental source of power over the company absent the contract *has* to be established. The membership model is the most suitable one to achieve that that we have considered so far.

So: we need to be creative and thoughtful in how we make that model work in a fashion that disrupts ICANN's general operation as little as possible. But the key there is "as possible." Real change is needed and much refinement and comment is needed.

If there are proposals to achieve the same shift in control from ICANN the corporation to ICANN the community, I hope they come through in the comment period. So far, none have - but there are still two weeks of comments to go.

cheers Jordan

On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net <javascript:_e(%7B%7D,'cvml','malcolm@linx.net');> <mailto:malcolm@linx.net <javascript:_e(%7B%7D,'cvml','malcolm@linx.net');>>> wrote:

This whole thread seems to have massively overcomplicated the question.

Unless I have missed something, the only reason we need "members" is to stand as plaintiff-of-record in a lawsuit against the ICANN Board complaining that the Board has failed to adhere to the corporations bylaws. Such a lawsuit would in reality be conducted by an SO or AC, but a person with legal personality needs to act as plaintiff-of-record.

Why not simply proceed, as Samantha suggested, with the SOACs' Chairs as the members of the corporation? Could the Articles (or Bylaws, as appropriate) not simply identify the SOACs' Chairs as the members, ex officio and pro tempore?

An SOAC Chair that refused to act as plaintiff-of-record when required to do so by his SOAC could simply be replaced. Likewise a Chair that went rogue and initiated a lawsuit without their consent.

You can't make the SOAC a member without turning them into UAs, with all the attendent complexity. But I don't see that there should be any such problem with designating the chair of a SOAC, who will be a natural person, as a member of the corporation; the fact that the SOAC is not a UA is then irrelevant.

In the event that there were any dispute as to whether a particular person is in truth an SOAC Chair, this would surely be a simple preliminary matter of fact for the court. It is surely beyond dispute that if the Articles designated "Alan Greenberg" as the member, it would be a matter of fact as to whether or not the person before the court was indeed Alan Greenberg; surely it is the same as to whether the person before the court is "the current Chair of ALAC", if that should be what is specified in the Articles?

Malcolm.

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Dear As just another member of the community, trying to stay the course on accountability measures, I am inclined to agree with Mr Zuck here and add No.3... No enforceable accountability measures equals no IANA transition. Because my understanding of the process is, ' enforceable accountability measures need to be at minimum have the weight of the present NTIA AoC. But I have a question, ..is the board's fiduciary responsibility currently subservient to its responsibility to the global community? If so, then we the community needs to design a toolkit to manage the possible COI that may threaten the well being of the board to serve its community. https://www.icann.org/resources/pages/governance/coi-en I guess that there may be semantics here, but implementation surely is the acid test and would the NTIA agree? RD On May 21, 2015 2:35 AM, "Jonathan Zuck" <JZuck@actonline.org> wrote:

+1 Greg

The long diatribes in this thread represent some sort of warped beauty contest between the board the community and, in my opinion, are *totally* irrelevant. Here’s the point:

1. Everyone agrees (or says they do) that the board should be accountable to the community 2. Without enforceability this is no accountability.

That’s it. Period. The rest is kabuki theater. Putting the word accountability in the name of some initiative doesn’t mean any accountability has actually been created. If you cannot be “held to account” there is no accountability. Why are we making this so complicated? The rest is implementation details.

Jonathan

From: Greg Shatan Date: Thursday, May 21, 2015 at 7:34 AM To: Chris Disspain Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs

Chris,

Though you say that Becky is spot on, you seemed to miss her point-- that this is not about litigation, this is about checks and balances.

If the present were as utopian as you say it is, we would not be having this conversation.

If the future were likely to be as dystopian as you project it to be, no one in their right mind would propose what the CCWG is proposing. Indeed, no one would ever have a membership non-profit, this future, where we have a rogue board and a litigation-happy community, at least one of which seems to be getting it utterly wrong as to ICANN's mission, seems straight out of "Mad Max."

The creation of an a legally viable set of accountability measures does not spell the end of the multi stakeholder model, it heralds its maturation. If the ICANN community is not ready to take on the responsibilities of membership (where members sit above the board in certain circumstances) we have bigger problems than this. Maybe we're not ready for the NTIA to cut the (umbilical) cord. Thankfully, I don't believe that's the case -- I think we are ready, willing and able and ICANN the corporation and ICANN the community will both be the better for it. As will the Internet.

Greg

On Wednesday, May 20, 2015, Chris Disspain <ceo@auda.org.au> wrote:

...

Becky, Keith, Jordan, All,

Thank you. I think Becky is spot on and has illustrated to me that I am not being as clear as I need to be.

First, let’s be clear what we mean by “the Board’s responsibility to act in the best interests of the corporation”. The best interests of the corporation are defined by ICANN’s mission. And the fiduciary duty of the Board means (as Sidley have said in one of their memos) that Directors are obligated by these duties to disregard a process or decisions that do not comply with law or the mission or core purpose of ICANN as articulated in the bylaws. This in turn means that the community, even with bylaw or contractual provisions, cannot compel the board to act in a manner contrary to the duties.

Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms:

1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California.

As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.

Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.

If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.

Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.

Cheers,

Chris Disspain | Chief Executive Officer

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On 21 May 2015, at 07:51 , Burr, Becky <Becky.Burr@neustar.biz> wrote:

The “enforceability" issue is not about litigation at all, and it isn’t really about whether the Board or some newly invented group is more likely to get it right. Rather, it’s about checks and balances. Without the membership structure, the revised bylaws that empower the community to block certain actions, for example, are by definition advisory – they impose no *legal* obligation whatsoever on the Board and staff. I don’t dispute that the Board would have a compelling interest in respecting community input, but as a legal matter without the membership structure, the Board would be *required* to treat any community vote to block, for example, as merely advisory and would have an affirmative obligation to do what it concludes is consistent with its fiduciary duty. The membership model affirmatively shifts some of that fiduciary responsibility to the community. It’s not a statement of who is right or wrong, but who has authority. Steve raises a reasonable question about how the members/unincorporated associations are accountable to their respective communities. But IMHO, the legitimate questions and concerns in this debate are getting obscured by polarizing language and assertions that it’s inappropriate to express a particular point of view.

The argument that there are no examples of situations that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board.” The community has never had any authority or tool to do so, so the fact that it never has is irrelevant and the assertion that it would not have is speculation. I certainly would have tried to get the community to overturn the Board’s decision to abandon the substantive standard for IRPs in favor of the “good faith” test. As it happens, none of the existing review and redress mechanisms would have worked in that case, and they probably wouldn’t work in the future either.

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: Steve DelBianco <sdelbianco@netchoice.org> Date: Wednesday, May 20, 2015 at 12:37 PM To: "Chartier, Mike S" <mike.s.chartier@intel.com>, Steve Crocker < steve@shinkuro.com>, Keith Drazek <kdrazek@verisign.com> Cc: Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Question regarding UAs

I don’t think there’s any question that the Board’s primary duty (not their only duty) is to ICANN the Corporation. In addition to Mike’s citation of ICANN bylaws Section 7 (below), see ICANN’s Management Operating Principles (2008):

"The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations.”

Source: ICANN Accountability & Transparency Frameworks and Principles, Jan-2008, p.5, at https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles... <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system...>

From: "Chartier, Mike S" Date: Wednesday, May 20, 2015 at 9:56 AM To: Steve Crocker, Keith Drazek Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs

No comment on actual practice, but from a textual basis (which is what matters now since we are debating new text), I can’t see any inconsistency between the following statements:

“Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.” “the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation,”

*From:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Steve Crocker *Sent:* Wednesday, May 20, 2015 9:47 AM *To:* Drazek, Keith *Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Question regarding UAs

I didn’t take it personally. I took it as a factually inaccurate statement that creates misunderstanding. Future boards are bound by the same rules as the past and current boards. The language you used is taken by many as a basis for believing there is a significant difference in alignment toward public responsibility between the ICANN Board and some newly invented grouping of community members. It ain’t so and it’s inappropriate to suggest so.

Steve

On May 20, 2015, at 9:39 AM, Drazek, Keith <kdrazek@verisign.com> wrote:

Steve,

With all due respect, I think you’re taking this too personally and/or making it too personal. This is not about the current ICANN Board.

None of us know what future ICANN Boards will do, or what future ICANN Boards will permit ICANN’s management to do. Will future Boards always exercise appropriate oversight over management? Could there be instances where ICANN’s legal counsel advises a future Board to make a decision that is counter to the interests of the community to protect the financial interests of the corporation?

I see the proposed community membership structure simply as a check on the power of the Board, nothing more. It’s not about “controlling” or replacing the Board. The Board has its legitimate function, but its decisions cannot be unchallengeable. The community must have the ability to tell the Board it got a decision wrong and to enforce the will of the multi-stakeholder community in rare/limited instances and based on a very high threshold of community agreement/consensus.

I would certainly trust the proposed community members, representing their SOs and ACs, to be balanced, inclusive and trustworthy in protecting the interests of the overall community -- in their role as the aforementioned check on the powers of the Board. Not as a replacement.

Would you trust a future Board of sixteen unknown individuals more than you trust the multi-stakeholder, bottom-up, consensus-based community and process? It appears so.

I stand by and reaffirm my previous email. I hope my clarification helps.

Sincerely,

Keith

*From:* Steve Crocker [mailto:steve@shinkuro.com] *Sent:* Wednesday, May 20, 2015 8:27 AM *To:* Drazek, Keith *Cc:* Stephen D. Crocker; Chris Disspain; Accountability Cross Community; mshears@cdt.org; egmorris1@toast.net *Subject:* Re: [CCWG-ACCT] Question regarding UAs

On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek@verisign.com> wrote:

Hi Chris,

I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power.

Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve.

You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community.

Keith, Edward and Edward,

We have covered the point above several times and it’s long past time to stop throwing this half-trust around. Yes, ICANN is legally a corporation, and, yes, directors of a corporation have a duty to protect the corporation. But that generality has a far different meaning in a for profit corporation like Verisign than it does in a not-for-profit public benefit corporation like ICANN. The directors are obliged to pursue the purpose and mission stated in the incorporation papers and the bylaws. The directors serve the community, and we do so by exercising oversight over the corporation toward that end.

There will always be differences of opinion about the particular details, but those sorts of differences of opinion will arise in *any* governance model. The prevailing assumption in much of the correspondence on this list is that the proposed members will somehow be more balanced, more inclusive and more trustworthy in protecting the interests of the overall community than the ICANN Board is. That’s simply false. And I think you know that it is.

Please correct yourself and apologize.

Thanks,

Steve

We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone?

The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability.

You asked, *"Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" *I believe the answer is yes. Not only worth it, but necessary.

Regards, Keith

On May 20, 2015, at 2:40 AM, Chris Disspain <ceo@auda.org.au> wrote:

For clarity, the last sentence of paragraph 8 below should read:

"However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board."

Cheers,

Chris

On 20 May 2015, at 16:13 , Chris Disspain <ceo@auda.org.au> wrote:

Jordan, All,

Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues.

First of all, I want to acknowledge that I concur with you on a number points.

I agree that we need to develop a model that disrupts ICANN’s operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed.

I also agree that levels of accountability are not “up to scratch” and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported.

However, where I disagree with you is in respect to the absolute need for an *additional* mechanism, to supersede the current IANA functions contract, in order to ensure that the community can ‘control’ the Board because it has the right to bring a legal action in a US court.

I disagree with the characterisation that the purpose of the CCWG’s work is to wrest “control” from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to “enforceability”, neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above.

The need to assert absolute “control” or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, *binding *arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?

Further, you refer to a “long list” of community concerns about ICANN’s current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN’s bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board.

To be clear – I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms.

I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption.

Cheers,

Chris

On 20 May 2015, at 15:33 , Jordan Carter <jordan@internetnz.net.nz> wrote:

We need legal persons to be members of ICANN.

They can be individual humans or they can be organisations.

UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould.

I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....)

cheers Jordan

On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg@mcgill.ca> wrote: Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it.

But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing.

Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years.

The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub.

Alan

At 20/05/2015 12:41 AM, Avri Doria wrote: Hi,

I think I understand the argument about members becoming that to which ICANN, and its Board, are responsible and accountable. From that perspective it sounds really good.

What I have having trouble understanding is an accountability structure were there is a discontinuity between the SOAC and the UA. If each of the Board designating SOAC were the UA, it think I would understand. But I just do not see how the UA are accountable to the people and organizations that participate in each of the SOAC. Yes, the SOAC designates it UA representative, but how is (s)electing one of these any more accountable than (s)electing the Board as we do now. Don't we just move the perceived/possible unaccountability down a layer in the hierarchy?

I think I am as comfortable with complexity as the next person. And I understand how in computer science any problem can solved by adding another layer of indirection, but in this case the extra layer we are creating does not seem to really be accountable to anyone but itself, except by (s)election procedures.

I am sure I am missing some critical bit of understanding and hope someone can explain the chain of accountability in the membership model. I feel that we are still hand-waving a bit in the explanations. In a sense it seems as if we are creating a 'council' that is omnipotent in the powers it is given, except that they can somehow be replaced.

Thanks and apologies for my persistent confusion.

avri

On 20-May-15 01:14, Jordan Carter wrote:

...

Hi all

This thread is useful to tease out some of the questions and concerns and confusions with the UA model, and as rapporteur for the WP responsible for refining this part of the proposal I am reading it avidly.

I just want to take the opportunity to remind us all why membership (or something analogous) is an important aspect of the reforms we are proposing - no matter the precise details.

At the moment without members, ICANN is fundamentally controlled by the Board. The only external constraint is the IANA functions contract with NTIA. The long list of community concerns and examples detailed by our earlier work in this CCWG shows that even with that constraint, accountability isn't up to scratch.

We are working on a settlement without that NTIA contract. Accountability has to get better even *with* the contract. Fundamentally better, without it.

Either we have a membership structure or some other durable approach that firmly embeds the stewardship of ICANN and the DNS in the ICANN community, or... we remain with Board control.

Given ICANN's history, anyone who is advocating a continuation of Board control is arguing for a model that can't be suitably accountable, and that seems highly likely to fail over time, with real risks to the security and stability of the DNS.

A real, fundamental source of power over the company absent the contract *has* to be established. The membership model is the most suitable one to achieve that that we have considered so far.

So: we need to be creative and thoughtful in how we make that model work in a fashion that disrupts ICANN's general operation as little as possible. But the key there is "as possible." Real change is needed and much refinement and comment is needed.

If there are proposals to achieve the same shift in control from ICANN the corporation to ICANN the community, I hope they come through in the comment period. So far, none have - but there are still two weeks of comments to go.

cheers Jordan

On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>> wrote:

This whole thread seems to have massively overcomplicated the question.

Unless I have missed something, the only reason we need "members" is to stand as plaintiff-of-record in a lawsuit against the ICANN Board complaining that the Board has failed to adhere to the corporations bylaws. Such a lawsuit would in reality be conducted by an SO or AC, but a person with legal personality needs to act as plaintiff-of-record.

Why not simply proceed, as Samantha suggested, with the SOACs' Chairs as the members of the corporation? Could the Articles (or Bylaws, as appropriate) not simply identify the SOACs' Chairs as the members, ex officio and pro tempore?

An SOAC Chair that refused to act as plaintiff-of-record when required to do so by his SOAC could simply be replaced. Likewise a Chair that went rogue and initiated a lawsuit without their consent.

You can't make the SOAC a member without turning them into UAs, with all the attendent complexity. But I don't see that there should be any such problem with designating the chair of a SOAC, who will be a natural person, as a member of the corporation; the fact that the SOAC is not a UA is then irrelevant.

In the event that there were any dispute as to whether a particular person is in truth an SOAC Chair, this would surely be a simple preliminary matter of fact for the court. It is surely beyond dispute that if the Articles designated "Alan Greenberg" as the member, it would be a matter of fact as to whether or not the person before the court was indeed Alan Greenberg; surely it is the same as to whether the person before the court is "the current Chair of ALAC", if that should be what is specified in the Articles?

Malcolm.

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Hi, I just want to add that even some of us US citizens are very wary of giving US courts any say over ICANN. I have never seen a court that I would trust. And well dealing with something as unique as the ICANN multistakeholder model, I would be surprised to find a court that could be trusted to understand. Is there any way to add a clause that indicates a binding arbitration/mediation, perhaps an international binding arbitration/mediation would be the required escalation point? avri On 21-May-15 08:36, Chris Disspain wrote:

I believe that the threat of ICANN collapsing would be enough to convince an ICANN Board, put there by the community, and that very same community to get together and solve the issues between them. You believe that that is not enough and that there should be an option for that whole community to have a Californian court step in.

I believe that the contortions required to turn ICANN into a membership organisation are incredibly complicated and disempowering to non-US members of the community. You disagree.

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All, Like several others, I believe we’re over-complicating things. This discussion is about giving the ICANN community standing to be able to challenge Board decisions in court, as a measure of last resort. Without that standing, the Board is free to ignore or reject the will of the community and the rest of our existing and proposed accountability mechanisms are only advisory. Unless a court can order a board to take an action, or stop taking an action, or determine if the board acted improperly, then there is no real accountability because there is no ultimate power to compel corrective action. The problem right now with ICANN is that no one in the community has standing to go to court. Under a membership model, members will have standing, similar to the standing shareholders have in a typical public company. Currently, as Ed correctly outlined in his email below, the Attorney General of the State of California has standing, but we the ICANN community do not. As such, I don’t understand claims that securing community powers (our goal) through legal enforceability and membership (as mechanisms to deliver that goal) somehow disenfranchises non-US ICANN participants, or how legal enforceability, in the words of auDA, “would also serve to further concentrate power in the United States.” A membership structure that gives the ICANN community standing and legal recourse in ICANN’s current jurisdiction would actually enhance and expand the role of the global multi-stakeholder community, not diminish it from today’s status quo. I find suggestions that membership and legal recourse are somehow threatening to non-US residents to be misguided or misplaced. As established in its current bylaws and articles of incorporation, ICANN is headquartered in California and is already subject to California law. Why shouldn’t the community have standing under ICANN’s existing jurisdiction to challenge Board decisions, as a measure of last resort? If I’m missing something, I’m happy to be educated further, but I don’t see those US-centric claims as having any factual basis. Regards, Keith From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Edward Morris Sent: Thursday, May 21, 2015 5:50 AM To: Chris Disspain Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs Hi Chris, I am against handing that ultimate authority to a Californian court. I am against that for many reasons not the least of which is that, as a lawyer, I am extremely aware of just how unpredictable and dangerous courts can be. I understand your concern and believe it is a valid one. However, I feel compelled to point out that since it's inception the ultimate authority over ICANN has, in fact, been the State of California and it's executive, legislative and judicial systems. Per California Corporations Code §5250: A corporation is subject at all times to examination by the Attorney General, on behalf of the state, to ascertain the condition of its affairs and to what extent, if at all, it fails to comply with trusts which it has assumed or has departed from the purposes for which it is formed. In case of any such failure or departure the Attorney General may institute, in the name of the state, the proceeding necessary to correct the noncompliance or departure. I do acknowledge that under the CCWG proposal there may be a greater chance of legal action as the scope of potential litigation is increased. However under the escalated scenario you have kindly provided the issue at hand would likely be so fundamental that it would already have precipitated a call for action by the California Attorney General under Corporations Code §5250. I would suggest that under the proposed accountability reforms there would be a better chance of compromise, due to the forces in play, prior to litigation than is now the case. In any fundamental dispute, today or in the proposed future, the courts of the State of California would/are the ultimate 'decider', subject to overrule on certain issues by the federal judiciary. I'd suggest that the proposed structure where, if litigation on fundamental matters is necessary, the instigator would / could be the community rather than the California AG, as is now the case, is a better one. Of course, given the provisional remedies under consideration it would be hoped that affairs would never bubble up to this level of acrimonious discongruence. Thanks for raising the issue. Accountability has many moving parts and it's good we're having this discussion. Best, Edward Morris

Hi Edward,

I understand your concern and believe it is a valid one. However, I feel compelled to point out that since it's inception the ultimate authority over ICANN has, in fact, been the State of California and it's executive, legislative and judicial systems. Per California Corporations Code §5250:

Correct. These are the powers of the AG which the CCWG has felt are insufficient.

I do acknowledge that under the CCWG proposal there may be a greater chance of legal action as the scope of potential litigation is increased.

This is a key part of auDA's concerns.

Of course, given the provisional remedies under consideration it would be hoped that affairs would never bubble up to this level of acrimonious discongruence.

I agree that, under the proposed accountability reforms, there would be a greater chance of “compromise” prior to litigation. That is precisely why we are supporting the reforms. We not only “hope” that “affairs would never bubble up to this level of acrimonious discongruence” but believe that improved accountability and escalation mechanisms provide sufficient assurance that they never would. Cheers, Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au <mailto:ceo@auda.org.au> | W: www.auda.org.au <http://www.auda.org.au/> auDA – Australia’s Domain Name Administrator

On 21 May 2015, at 19:49 , Edward Morris <egmorris1@toast.net> wrote:

Hi Chris,

I am against handing that ultimate authority to a Californian court. I am against that for many reasons not the least of which is that, as a lawyer, I am extremely aware of just how unpredictable and dangerous courts can be.

I understand your concern and believe it is a valid one. However, I feel compelled to point out that since it's inception the ultimate authority over ICANN has, in fact, been the State of California and it's executive, legislative and judicial systems. Per California Corporations Code §5250:

A corporation is subject at all times to examination by the Attorney General, on behalf of the state, to ascertain the condition of its affairs and to what extent, if at all, it fails to comply with trusts which it has assumed or has departed from the purposes for which it is formed. In case of any such failure or departure the Attorney General may institute, in the name of the state, the proceeding necessary to correct the noncompliance or departure.

I do acknowledge that under the CCWG proposal there may be a greater chance of legal action as the scope of potential litigation is increased. However under the escalated scenario you have kindly provided the issue at hand would likely be so fundamental that it would already have precipitated a call for action by the California Attorney General under Corporations Code §5250. I would suggest that under the proposed accountability reforms there would be a better chance of compromise, due to the forces in play, prior to litigation than is now the case. In any fundamental dispute, today or in the proposed future, the courts of the State of California would/are the ultimate 'decider', subject to overrule on certain issues by the federal judiciary. I'd suggest that the proposed structure where, if litigation on fundamental matters is necessary, the instigator would / could be the community rather than the California AG, as is now the case, is a better one. Of course, given the provisional remedies under consideration it would be hoped that affairs would never bubble up to this level of acrimonious discongruence.

Thanks for raising the issue. Accountability has many moving parts and it's good we're having this discussion.

Best,

Edward Morris

Thanks Mathieu. Excellent questions. I’ll work on a response and get back to you asap. Cheers, Chris

On 21 May 2015, at 17:14 , Mathieu Weill <mathieu.weill@afnic.fr> wrote:

Dear Chris, All,

Many thanks for explaining the concern through this step by step scenario. This is taking us closer to a stress test approach, which is not only valuable but also mandatory for our group, as per our Charter. I understand your concern is (quoting your email) "handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission."

There is however something I do not understand in your "steps":

Le 21/05/2015 03:45, Chris Disspain a écrit :

...

Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms:

1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California.

I have four questions : - In your scenario the community would "mission creep". I am not clear how in our report the community would direct the Board to do X. Community powers as we have defined them are restricted to reject / review on budgets or bylaws. Could you clarify this part of the scenario ? - If the Board refuses to act on the arbitrator findings, why would the community turn to California Court instead of recall the Board ? - Given that there was a a binding arbitration decision directing Icann to do X, my understanding was that the court of California would have very limited grounds to turn the decision around. Is that not already addressing the concern of allowing a court of california to decide on what is or is not within Icann's mission ? - And finally, is it not the case today that a Court of California could make such a binding decision ?

Best Mathieu

...

As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.

Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.

If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.

Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.

Cheers,

Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au <mailto:ceo@auda.org.au> | W: www.auda.org.au <http://www.auda.org.au/> auDA – Australia’s Domain Name Administrator

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On 21 May 2015, at 07:51 , Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:

The “enforceability" issue is not about litigation at all, and it isn’t really about whether the Board or some newly invented group is more likely to get it right. Rather, it’s about checks and balances. Without the membership structure, the revised bylaws that empower the community to block certain actions, for example, are by definition advisory – they impose no legal obligation whatsoever on the Board and staff. I don’t dispute that the Board would have a compelling interest in respecting community input, but as a legal matter without the membership structure, the Board would be required to treat any community vote to block, for example, as merely advisory and would have an affirmative obligation to do what it concludes is consistent with its fiduciary duty. The membership model affirmatively shifts some of that fiduciary responsibility to the community. It’s not a statement of who is right or wrong, but who has authority. Steve raises a reasonable question about how the members/unincorporated associations are accountable to their respective communities. But IMHO, the legitimate questions and concerns in this debate are getting obscured by polarizing language and assertions that it’s inappropriate to express a particular point of view.

The argument that there are no examples of situations that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board.” The community has never had any authority or tool to do so, so the fact that it never has is irrelevant and the assertion that it would not have is speculation. I certainly would have tried to get the community to overturn the Board’s decision to abandon the substantive standard for IRPs in favor of the “good faith” test. As it happens, none of the existing review and redress mechanisms would have worked in that case, and they probably wouldn’t work in the future either.

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: Steve DelBianco <sdelbianco@netchoice.org <mailto:sdelbianco@netchoice.org>> Date: Wednesday, May 20, 2015 at 12:37 PM To: "Chartier, Mike S" <mike.s.chartier@intel.com <mailto:mike.s.chartier@intel.com>>, Steve Crocker <steve@shinkuro.com <mailto:steve@shinkuro.com>>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Cc: Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Question regarding UAs

I don’t think there’s any question that the Board’s primary duty (not their only duty) is to ICANN the Corporation. In addition to Mike’s citation of ICANN bylaws Section 7 (below), see ICANN’s Management Operating Principles (2008):

...

"The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations.”

Source: ICANN Accountability & Transparency Frameworks and Principles, Jan-2008, p.5, at https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles... <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system...>

From: "Chartier, Mike S" Date: Wednesday, May 20, 2015 at 9:56 AM To: Steve Crocker, Keith Drazek Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs

No comment on actual practice, but from a textual basis (which is what matters now since we are debating new text), I can’t see any inconsistency between the following statements:

...

“Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.” “the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation,”

  <> 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 Steve Crocker Sent: Wednesday, May 20, 2015 9:47 AM To: Drazek, Keith Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs

I didn’t take it personally. I took it as a factually inaccurate statement that creates misunderstanding. Future boards are bound by the same rules as the past and current boards. The language you used is taken by many as a basis for believing there is a significant difference in alignment toward public responsibility between the ICANN Board and some newly invented grouping of community members. It ain’t so and it’s inappropriate to suggest so.

Steve

On May 20, 2015, at 9:39 AM, Drazek, Keith <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> wrote:

...

Steve,

With all due respect, I think you’re taking this too personally and/or making it too personal. This is not about the current ICANN Board.

None of us know what future ICANN Boards will do, or what future ICANN Boards will permit ICANN’s management to do. Will future Boards always exercise appropriate oversight over management? Could there be instances where ICANN’s legal counsel advises a future Board to make a decision that is counter to the interests of the community to protect the financial interests of the corporation?

I see the proposed community membership structure simply as a check on the power of the Board, nothing more. It’s not about “controlling” or replacing the Board. The Board has its legitimate function, but its decisions cannot be unchallengeable. The community must have the ability to tell the Board it got a decision wrong and to enforce the will of the multi-stakeholder community in rare/limited instances and based on a very high threshold of community agreement/consensus.

I would certainly trust the proposed community members, representing their SOs and ACs, to be balanced, inclusive and trustworthy in protecting the interests of the overall community -- in their role as the aforementioned check on the powers of the Board. Not as a replacement.

Would you trust a future Board of sixteen unknown individuals more than you trust the multi-stakeholder, bottom-up, consensus-based community and process? It appears so.

I stand by and reaffirm my previous email. I hope my clarification helps.

Sincerely,

Keith

From: Steve Crocker [mailto:steve@shinkuro.com <mailto:steve@shinkuro.com>] Sent: Wednesday, May 20, 2015 8:27 AM To: Drazek, Keith Cc: Stephen D. Crocker; Chris Disspain; Accountability Cross Community; mshears@cdt.org <mailto:mshears@cdt.org>; egmorris1@toast.net <mailto:egmorris1@toast.net> Subject: Re: [CCWG-ACCT] Question regarding UAs

On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> wrote:

Hi Chris,

I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power.

Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve.

You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community.

Keith, Edward and Edward,

We have covered the point above several times and it’s long past time to stop throwing this half-trust around. Yes, ICANN is legally a corporation, and, yes, directors of a corporation have a duty to protect the corporation. But that generality has a far different meaning in a for profit corporation like Verisign than it does in a not-for-profit public benefit corporation like ICANN. The directors are obliged to pursue the purpose and mission stated in the incorporation papers and the bylaws. The directors serve the community, and we do so by exercising oversight over the corporation toward that end.

There will always be differences of opinion about the particular details, but those sorts of differences of opinion will arise in *any* governance model. The prevailing assumption in much of the correspondence on this list is that the proposed members will somehow be more balanced, more inclusive and more trustworthy in protecting the interests of the overall community than the ICANN Board is. That’s simply false. And I think you know that it is.

Please correct yourself and apologize.

Thanks,

Steve

We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone?

The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability.

You asked, "Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" I believe the answer is yes. Not only worth it, but necessary.

Regards, Keith

On May 20, 2015, at 2:40 AM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:

...

For clarity, the last sentence of paragraph 8 below should read:

"However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board."

Cheers,

Chris

...

On 20 May 2015, at 16:13 , Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:

Jordan, All,

Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues.

First of all, I want to acknowledge that I concur with you on a number points.

I agree that we need to develop a model that disrupts ICANN’s operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed.

I also agree that levels of accountability are not “up to scratch” and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported.

However, where I disagree with you is in respect to the absolute need for an additional mechanism, to supersede the current IANA functions contract, in order to ensure that the community can ‘control’ the Board because it has the right to bring a legal action in a US court.

I disagree with the characterisation that the purpose of the CCWG’s work is to wrest “control” from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to “enforceability”, neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above.

The need to assert absolute “control” or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, binding arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?

Further, you refer to a “long list” of community concerns about ICANN’s current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN’s bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board.

To be clear – I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms.

I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption.

Cheers,

Chris

> On 20 May 2015, at 15:33 , Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> wrote: > > We need legal persons to be members of ICANN. > > They can be individual humans or they can be organisations. > > UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould. > > I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....) > > cheers > Jordan > > > On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>> wrote: > Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it. > > But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing. > > Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years. > > The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub. > > Alan > > > At 20/05/2015 12:41 AM, Avri Doria wrote: > Hi, > > I think I understand the argument about members becoming that to which > ICANN, and its Board, are responsible and accountable. From that > perspective it sounds really good. > > What I have having trouble understanding is an accountability structure > were there is a discontinuity between the SOAC and the UA. If each of > the Board designating SOAC were the UA, it think I would understand. > But I just do not see how the UA are accountable to the people and > organizations that participate in each of the SOAC. Yes, the SOAC > designates it UA representative, but how is (s)electing one of these any > more accountable than (s)electing the Board as we do now. Don't we just > move the perceived/possible unaccountability down a layer in the hierarchy? > > I think I am as comfortable with complexity as the next person. And I > understand how in computer science any problem can solved by adding > another layer of indirection, but in this case the extra layer we are > creating does not seem to really be accountable to anyone but itself, > except by (s)election procedures. > > I am sure I am missing some critical bit of understanding and hope > someone can explain the chain of accountability in the membership > model. I feel that we are still hand-waving a bit in the explanations. > In a sense it seems as if we are creating a 'council' that is omnipotent > in the powers it is given, except that they can somehow be replaced. > > Thanks and apologies for my persistent confusion. > > avri > > > > On 20-May-15 01:14, Jordan Carter wrote: > > Hi all > > > > This thread is useful to tease out some of the questions and concerns > > and confusions with the UA model, and as rapporteur for the WP > > responsible for refining this part of the proposal I am reading it avidly. > > > > I just want to take the opportunity to remind us all why membership > > (or something analogous) is an important aspect of the reforms we are > > proposing - no matter the precise details. > > > > At the moment without members, ICANN is fundamentally controlled by > > the Board. The only external constraint is the IANA functions contract > > with NTIA. The long list of community concerns and examples detailed > > by our earlier work in this CCWG shows that even with that constraint, > > accountability isn't up to scratch. > > > > We are working on a settlement without that NTIA contract. > > Accountability has to get better even *with* the contract. > > Fundamentally better, without it. > > > > Either we have a membership structure or some other durable approach > > that firmly embeds the stewardship of ICANN and the DNS in the ICANN > > community, or... we remain with Board control. > > > > Given ICANN's history, anyone who is advocating a continuation of > > Board control is arguing for a model that can't be suitably > > accountable, and that seems highly likely to fail over time, with real > > risks to the security and stability of the DNS. > > > > A real, fundamental source of power over the company absent the > > contract *has* to be established. The membership model is the most > > suitable one to achieve that that we have considered so far. > > > > So: we need to be creative and thoughtful in how we make that model > > work in a fashion that disrupts ICANN's general operation as little as > > possible. But the key there is "as possible." Real change is needed > > and much refinement and comment is needed. > > > > If there are proposals to achieve the same shift in control from ICANN > > the corporation to ICANN the community, I hope they come through in > > the comment period. So far, none have - but there are still two weeks > > of comments to go. > > > > cheers > > Jordan > > > > > > On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net> > > <mailto:malcolm@linx.net <mailto:malcolm@linx.net>>> wrote: > > > > This whole thread seems to have massively overcomplicated the > > question. > > > > > > Unless I have missed something, the only reason we need "members" > > is to > > stand as plaintiff-of-record in a lawsuit against the ICANN Board > > complaining that the Board has failed to adhere to the corporations > > bylaws. Such a lawsuit would in reality be conducted by an SO or > > AC, but > > a person with legal personality needs to act as plaintiff-of-record. > > > > Why not simply proceed, as Samantha suggested, with the SOACs' > > Chairs as > > the members of the corporation? Could the Articles (or Bylaws, as > > appropriate) not simply identify the SOACs' Chairs as the members, ex > > officio and pro tempore? > > > > An SOAC Chair that refused to act as plaintiff-of-record when required > > to do so by his SOAC could simply be replaced. Likewise a Chair that > > went rogue and initiated a lawsuit without their consent. > > > > You can't make the SOAC a member without turning them into UAs, > > with all > > the attendent complexity. But I don't see that there should be any > > such > > problem with designating the chair of a SOAC, who will be a natural > > person, as a member of the corporation; the fact that the SOAC is > > not a > > UA is then irrelevant. > > > > In the event that there were any dispute as to whether a particular > > person is in truth an SOAC Chair, this would surely be a simple > > preliminary matter of fact for the court. It is surely beyond dispute > > that if the Articles designated "Alan Greenberg" as the member, it > > would > > be a matter of fact as to whether or not the person before the > > court was > > indeed Alan Greenberg; surely it is the same as to whether the person > > before the court is "the current Chair of ALAC", if that should be > > what > > is specified in the Articles? > > > > Malcolm. > > > > -- > > Malcolm Hutty | tel: +44 20 7645 3523 <tel:%2B44%2020%207645%203523> > > <tel:%2B44%2020%207645%203523 <tel:%2B44%2020%207645%203523>> > > Head of Public Affairs | Read the LINX Public Affairs blog > > London Internet Exchange | http://publicaffairs.linx.net/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__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 > > > > > > _______________________________________________ > > 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 <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > > > > > > > > > > -- > > Jordan Carter > > > > Chief Executive > > *InternetNZ* > > > > 04 495 2118 <tel:04%20495%202118> (office) | +64 21 442 649 <tel:%2B64%2021%20442%20649> (mob) > > jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> > > Skype: jordancarter > > > > /A better world through a better Internet / > > > > > > > > _______________________________________________ > > 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > > > --- > This email has been checked for viruses by Avast antivirus software. > http://www.avast.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.avast.com_&d=AwMGaQ&...> > > _______________________________________________ > 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > > _______________________________________________ > 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > > > > -- > 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 > > _______________________________________________ > 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>

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-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr> Twitter : @mathieuweill ***************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community>

With all due respect, the California court argument is a red herring. The issue is authority. Without members, no matter what the bylaws say, the role of the community is in fact advisory. As far as I have heard, that is the case in other jurisdictions such as Switzerland. I start from the assumption that the Board will comply with applicable law and respect the community's LEGAL AUTHORITY in a membership structure, making resort to litigation unnecessary. Absent a membership structure, the board CANNOT legally defer to the community's "advice", it MUST fulfill its fiduciary obligations (and I agree with Steve C. that those obligations are far more nuanced then simply ensuring the continued existence of the corporation). FWIW, the "mission creep" example doesn't work. The revised IRP would give the community a tool to prevent mission creep. Likewise, the community power to block fundamental bylaws changes is a tool to prevent mission creep. I'm not aware that we have proposed anything that would empower community-driven mission creep, and I would oppose any such power. If there was a dispute between the board and the community about whether an action or inaction constituted mission creep, that dispute would be resolved by the IRP through binding arbitration using a sitting and diverse panel of international law experts. The role of a California court would be limited to enforcing the IRP's decision. Questions about how UAs are accountable are real; questions about the level of understanding and comfort with UAs are also real. But waving the "California court" menace around only serves to raise anxiety and sow confusion. If ICANN was incorporated in Switzerland, the same -limited and hypothetical -issue would exist. The only way ICANN can avoid the ultimate jurisdiction of some court somewhere is to buy an aircraft carrier and conduct all business in international waters. Sent from my iPad

On May 21, 2015, at 4:23 AM, Malcolm Hutty <malcolm@linx.net> wrote:

...

On 21/05/2015 08:14, Mathieu Weill wrote: I have four questions : - If the Board refuses to act on the arbitrator findings, why would the community turn to California Court instead of recall the Board ?

I expect that people's views on that would depend on the circumstances.

Suppose (for the sake of example) that the problem was that the Board had inserted something crazy and wildly out of scope into the RAA, without any support from the PDP and in defiance of an IRP ruling instructing the Board to desist (but maybe at the behest of a particular class of stakeholder).

In such circumstances, the gTLD community might feel that turning to the court for enforcement of the IRP ruling was a less extreme measure than spilling the whole Board.

Or they might try to spill the Board, but find that neither the ccNSO nor the ASO would support them, as neither ccNSO nor ASO are directly affected by the RAA themselves.

Additionally, there is one special circumstance in which referral to a court would be the only possible recourse: in the event that the community tries to exercise its power to spill the Board, and the Board insists on remaining in office nonetheless.

Malcolm.

P.S. I am talking, of course, of extreme scenarios that no previous Board ever came close to, nor would I expect the current Board would dream of enacting. I have great respect for the integrity of the current incumbents. But our job is to propose the reforms necessary to provide assurance that this will continue for all future Boards; considering extreme scenarios is our responsibility, and cast no aspersions on the personal integrity of current or past Board members. This has been said many times before, but our conversation has recently been joined by others who have clearly not heard it.

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+1 Mathieu and exactly right. It is convenient, I think, to conflate the new membership structure issue with the “jurisdiction” issue of where litigation might occur. But the reality (as I wrote about in this blog: http://www.lawfareblog.com/2015/04/on-the-issue-of-jurisdiction-over-icann/) is that ICANN will be subject to suit in many places in the world, including California, no matter what it does in terms of membership structures or place of incorporation. I dare say, without having researched the matter in detail, that by virtue of its hub offices in Turkey and Singapore, the scenario Chis posits could also quite colorably result in law suit in those countries – where the courts would certainly assert personal jurisdiction over the corporation. I do not know how choice of law rules operate in those jurisdictions (i.e. which substantive law they would choose to apply), nor do I know whether the courts in those jurisdictions would defer to the arbitral ruling or revisit it de novo. One of the advantages of California law is that arbitration decisions are given great deference (a principle also embodied in the Federal Arbitration Act). In short, there is no way to avoid the possibility that ICANN, wherever it is located, and whatever its structure, will be haled into court in any jurisdiction around the globe. Frankly, if Chris were the aggrieved party – say as future chair of ICANN :) -- I imagine he might bring the suit for declaratory judgment in Australia … Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> Link to my PGP Key From: Mathieu Weill [mailto:mathieu.weill@afnic.fr] Sent: Thursday, May 21, 2015 3:14 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Question regarding UAs Dear Chris, All, Many thanks for explaining the concern through this step by step scenario. This is taking us closer to a stress test approach, which is not only valuable but also mandatory for our group, as per our Charter. I understand your concern is (quoting your email) "handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission." There is however something I do not understand in your "steps": Le 21/05/2015 03:45, Chris Disspain a écrit : Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms: 1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. I have four questions : - In your scenario the community would "mission creep". I am not clear how in our report the community would direct the Board to do X. Community powers as we have defined them are restricted to reject / review on budgets or bylaws. Could you clarify this part of the scenario ? - If the Board refuses to act on the arbitrator findings, why would the community turn to California Court instead of recall the Board ? - Given that there was a a binding arbitration decision directing Icann to do X, my understanding was that the court of California would have very limited grounds to turn the decision around. Is that not already addressing the concern of allowing a court of california to decide on what is or is not within Icann's mission ? - And finally, is it not the case today that a Court of California could make such a binding decision ? Best Mathieu As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board. Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making. If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission. Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever. Cheers, Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: <mailto:ceo@auda.org.au> ceo@auda.org.au | W: <http://www.auda.org.au/> www.auda.org.au auDA – Australia’s Domain Name Administrator Important Notice - This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. Please consider the environment before printing this email. On 21 May 2015, at 07:51 , Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> > wrote: The “enforceability" issue is not about litigation at all, and it isn’t really about whether the Board or some newly invented group is more likely to get it right. Rather, it’s about checks and balances. Without the membership structure, the revised bylaws that empower the community to block certain actions, for example, are by definition advisory – they impose no legal obligation whatsoever on the Board and staff. I don’t dispute that the Board would have a compelling interest in respecting community input, but as a legal matter without the membership structure, the Board would be required to treat any community vote to block, for example, as merely advisory and would have an affirmative obligation to do what it concludes is consistent with its fiduciary duty. The membership model affirmatively shifts some of that fiduciary responsibility to the community. It’s not a statement of who is right or wrong, but who has authority. Steve raises a reasonable question about how the members/unincorporated associations are accountable to their respective communities. But IMHO, the legitimate questions and concerns in this debate are getting obscured by polarizing language and assertions that it’s inappropriate to express a particular point of view. The argument that there are no examples of situations that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board.” The community has never had any authority or tool to do so, so the fact that it never has is irrelevant and the assertion that it would not have is speculation. I certainly would have tried to get the community to overturn the Board’s decision to abandon the substantive standard for IRPs in favor of the “good faith” test. As it happens, none of the existing review and redress mechanisms would have worked in that case, and they probably wouldn’t work in the future either. 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: Steve DelBianco < <mailto:sdelbianco@netchoice.org> sdelbianco@netchoice.org> Date: Wednesday, May 20, 2015 at 12:37 PM To: "Chartier, Mike S" < <mailto:mike.s.chartier@intel.com> mike.s.chartier@intel.com>, Steve Crocker < <mailto:steve@shinkuro.com> steve@shinkuro.com>, Keith Drazek < <mailto:kdrazek@verisign.com> kdrazek@verisign.com> Cc: Accountability Community < <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Question regarding UAs I don’t think there’s any question that the Board’s primary duty (not their only duty) is to ICANN the Corporation. In addition to Mike’s citation of ICANN bylaws Section 7 (below), see ICANN’s Management Operating Principles (2008): "The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations.” Source: ICANN Accountability & Transparency Frameworks and Principles, Jan-2008, p.5, at <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_syste m_files_files_acct-2Dtrans-2Dframeworks-2Dprinciples-2D10jan08-2Den.pdf&d=Aw MGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k& m=N94BFwt7XlN1luKY2YsAlg92HkXfJ8UfYuQCH-3B3bY&s=-nHIJ38MbHZo2QiXUiLPqBi6Yeae sFEbRqTO3RL3Jew&e=> https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles -10jan08-en.pdf From: "Chartier, Mike S" Date: Wednesday, May 20, 2015 at 9:56 AM To: Steve Crocker, Keith Drazek Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs No comment on actual practice, but from a textual basis (which is what matters now since we are debating new text), I can’t see any inconsistency between the following statements: “Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.” “the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation,” 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 Steve Crocker Sent: Wednesday, May 20, 2015 9:47 AM To: Drazek, Keith Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs I didn’t take it personally. I took it as a factually inaccurate statement that creates misunderstanding. Future boards are bound by the same rules as the past and current boards. The language you used is taken by many as a basis for believing there is a significant difference in alignment toward public responsibility between the ICANN Board and some newly invented grouping of community members. It ain’t so and it’s inappropriate to suggest so. Steve On May 20, 2015, at 9:39 AM, Drazek, Keith < <mailto:kdrazek@verisign.com> kdrazek@verisign.com> wrote: Steve, With all due respect, I think you’re taking this too personally and/or making it too personal. This is not about the current ICANN Board. None of us know what future ICANN Boards will do, or what future ICANN Boards will permit ICANN’s management to do. Will future Boards always exercise appropriate oversight over management? Could there be instances where ICANN’s legal counsel advises a future Board to make a decision that is counter to the interests of the community to protect the financial interests of the corporation? I see the proposed community membership structure simply as a check on the power of the Board, nothing more. It’s not about “controlling” or replacing the Board. The Board has its legitimate function, but its decisions cannot be unchallengeable. The community must have the ability to tell the Board it got a decision wrong and to enforce the will of the multi-stakeholder community in rare/limited instances and based on a very high threshold of community agreement/consensus. I would certainly trust the proposed community members, representing their SOs and ACs, to be balanced, inclusive and trustworthy in protecting the interests of the overall community -- in their role as the aforementioned check on the powers of the Board. Not as a replacement. Would you trust a future Board of sixteen unknown individuals more than you trust the multi-stakeholder, bottom-up, consensus-based community and process? It appears so. I stand by and reaffirm my previous email. I hope my clarification helps. Sincerely, Keith From: Steve Crocker [ <mailto:steve@shinkuro.com> mailto:steve@shinkuro.com] Sent: Wednesday, May 20, 2015 8:27 AM To: Drazek, Keith Cc: Stephen D. Crocker; Chris Disspain; Accountability Cross Community; <mailto:mshears@cdt.org> mshears@cdt.org; <mailto:egmorris1@toast.net> egmorris1@toast.net Subject: Re: [CCWG-ACCT] Question regarding UAs On May 20, 2015, at 7:44 AM, Drazek, Keith < <mailto:kdrazek@verisign.com> kdrazek@verisign.com> wrote: Hi Chris, I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power. Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve. You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community. Keith, Edward and Edward, We have covered the point above several times and it’s long past time to stop throwing this half-trust around. Yes, ICANN is legally a corporation, and, yes, directors of a corporation have a duty to protect the corporation. But that generality has a far different meaning in a for profit corporation like Verisign than it does in a not-for-profit public benefit corporation like ICANN. The directors are obliged to pursue the purpose and mission stated in the incorporation papers and the bylaws. The directors serve the community, and we do so by exercising oversight over the corporation toward that end. There will always be differences of opinion about the particular details, but those sorts of differences of opinion will arise in *any* governance model. The prevailing assumption in much of the correspondence on this list is that the proposed members will somehow be more balanced, more inclusive and more trustworthy in protecting the interests of the overall community than the ICANN Board is. That’s simply false. And I think you know that it is. Please correct yourself and apologize. Thanks, Steve We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone? The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability. You asked, "Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" I believe the answer is yes. Not only worth it, but necessary. Regards, Keith On May 20, 2015, at 2:40 AM, Chris Disspain < <mailto:ceo@auda.org.au> ceo@auda.org.au> wrote: For clarity, the last sentence of paragraph 8 below should read: "However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board." Cheers, Chris On 20 May 2015, at 16:13 , Chris Disspain < <mailto:ceo@auda.org.au> ceo@auda.org.au> wrote: Jordan, All, Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues. First of all, I want to acknowledge that I concur with you on a number points. I agree that we need to develop a model that disrupts ICANN’s operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed. I also agree that levels of accountability are not “up to scratch” and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported. However, where I disagree with you is in respect to the absolute need for an additional mechanism, to supersede the current IANA functions contract, in order to ensure that the community can ‘control’ the Board because it has the right to bring a legal action in a US court. I disagree with the characterisation that the purpose of the CCWG’s work is to wrest “control” from the ICANN Board and deliver it to the community.

From your email, I gather that you are fundamentally tying the concept of control to “enforceability”, neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above.

The need to assert absolute “control” or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, binding arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require? Further, you refer to a “long list” of community concerns about ICANN’s current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN’s bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board. To be clear – I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms. I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption. Cheers, Chris On 20 May 2015, at 15:33 , Jordan Carter < <mailto:jordan@internetnz.net.nz> jordan@internetnz.net.nz> wrote: We need legal persons to be members of ICANN. They can be individual humans or they can be organisations. UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould. I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....) cheers Jordan On 20 May 2015 at 17:21, Alan Greenberg < <mailto:alan.greenberg@mcgill.ca> alan.greenberg@mcgill.ca> wrote: Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it. But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing. Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years. The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub. Alan At 20/05/2015 12:41 AM, Avri Doria wrote: Hi, I think I understand the argument about members becoming that to which ICANN, and its Board, are responsible and accountable. From that perspective it sounds really good. What I have having trouble understanding is an accountability structure were there is a discontinuity between the SOAC and the UA. If each of the Board designating SOAC were the UA, it think I would understand. But I just do not see how the UA are accountable to the people and organizations that participate in each of the SOAC. Yes, the SOAC designates it UA representative, but how is (s)electing one of these any more accountable than (s)electing the Board as we do now. Don't we just move the perceived/possible unaccountability down a layer in the hierarchy? I think I am as comfortable with complexity as the next person. And I understand how in computer science any problem can solved by adding another layer of indirection, but in this case the extra layer we are creating does not seem to really be accountable to anyone but itself, except by (s)election procedures. I am sure I am missing some critical bit of understanding and hope someone can explain the chain of accountability in the membership model. I feel that we are still hand-waving a bit in the explanations. In a sense it seems as if we are creating a 'council' that is omnipotent in the powers it is given, except that they can somehow be replaced. Thanks and apologies for my persistent confusion. avri On 20-May-15 01:14, Jordan Carter wrote:

Hi all

This thread is useful to tease out some of the questions and concerns and confusions with the UA model, and as rapporteur for the WP responsible for refining this part of the proposal I am reading it avidly.

I just want to take the opportunity to remind us all why membership (or something analogous) is an important aspect of the reforms we are proposing - no matter the precise details.

At the moment without members, ICANN is fundamentally controlled by the Board. The only external constraint is the IANA functions contract with NTIA. The long list of community concerns and examples detailed by our earlier work in this CCWG shows that even with that constraint, accountability isn't up to scratch.

We are working on a settlement without that NTIA contract. Accountability has to get better even *with* the contract. Fundamentally better, without it.

Either we have a membership structure or some other durable approach that firmly embeds the stewardship of ICANN and the DNS in the ICANN community, or... we remain with Board control.

Given ICANN's history, anyone who is advocating a continuation of Board control is arguing for a model that can't be suitably accountable, and that seems highly likely to fail over time, with real risks to the security and stability of the DNS.

A real, fundamental source of power over the company absent the contract *has* to be established. The membership model is the most suitable one to achieve that that we have considered so far.

So: we need to be creative and thoughtful in how we make that model work in a fashion that disrupts ICANN's general operation as little as possible. But the key there is "as possible." Real change is needed and much refinement and comment is needed.

If there are proposals to achieve the same shift in control from ICANN the corporation to ICANN the community, I hope they come through in the comment period. So far, none have - but there are still two weeks of comments to go.

cheers Jordan

On 20 May 2015 at 10:45, Malcolm Hutty < <mailto:malcolm@linx.net> malcolm@linx.net <mailto: <mailto:malcolm@linx.net> malcolm@linx.net>> wrote:

This whole thread seems to have massively overcomplicated the question.

Unless I have missed something, the only reason we need "members" is to stand as plaintiff-of-record in a lawsuit against the ICANN Board complaining that the Board has failed to adhere to the corporations bylaws. Such a lawsuit would in reality be conducted by an SO or AC, but a person with legal personality needs to act as plaintiff-of-record.

Why not simply proceed, as Samantha suggested, with the SOACs' Chairs as the members of the corporation? Could the Articles (or Bylaws, as appropriate) not simply identify the SOACs' Chairs as the members, ex officio and pro tempore?

An SOAC Chair that refused to act as plaintiff-of-record when required to do so by his SOAC could simply be replaced. Likewise a Chair that went rogue and initiated a lawsuit without their consent.

You can't make the SOAC a member without turning them into UAs, with all the attendent complexity. But I don't see that there should be any such problem with designating the chair of a SOAC, who will be a natural person, as a member of the corporation; the fact that the SOAC is not a UA is then irrelevant.

In the event that there were any dispute as to whether a particular person is in truth an SOAC Chair, this would surely be a simple preliminary matter of fact for the court. It is surely beyond dispute that if the Articles designated "Alan Greenberg" as the member, it would be a matter of fact as to whether or not the person before the court was indeed Alan Greenberg; surely it is the same as to whether the person before the court is "the current Chair of ALAC", if that should be what is specified in the Articles?

Malcolm.

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Chris, Thank you so much because I think this is a very useful discussion. I would try and reformulate to check if we are communicating before turning to lawyers or any further work : 1) The scenario to assess is the case where the community rejects a budget because the community would like Icann to expand its actions into something that the Community feels is within the Mission while the Board feels it is outside of Icann's Mission, as described in the Bylaws. The Board would then be "stuck" between the community and its perceived obligation to not mission creep. Basically, our discussion is starting to look like a stress test of this particular scenario: what would the current accountability mechanism enable ? what enhancements or changes would be brought by the proposed accountability framework ? 2) It is clear to me that our initial report does NOT say that legal action could only be undertaken if all other remedies have been exhausted (I don't even think it would be legally feasible). 3) You are asking clarification of several questions : * what the limited grounds are for a California Court to overturn an arbitration (IRP) decision ? (my own recollection of the IRP memos we received from counsel was : arbitration scope or procedure) * whether the proposed membership model would enable each UA to initiate legal action against Icann irrespective of what other parts of the community think ? (my understanding is : yes. But I guess that today if NARALO felt a decision was causing them prejudice they could sue Icann as well, so maybe we should reframe the question into : would there be a significant increase of the risk for Icann to be sued ?) Can you please confirm that we are on the same page here ? best Mathieu Le 22/05/2015 08:47, Chris Disspain a écrit :

Mathieu,

You've asked a series of questions which I have thought about very carefully. I acknowledge that the scenario I suggest is unlikely but your questions have led me to a further question which I pose below my responses to yours.

/- In your scenario the community would "mission creep". I am not clear how in our report the community would direct the Board to do X. Community powers as we have defined them are restricted to reject / review on budgets or bylaws. Could you clarify this part of the scenario ?/

I do believe that it is feasible that the Board could refuse the follow a community veto on a budget item because the board believes to do so would be a breach of the Board’s fiduciary duties to act in the interests of ICANN in accordance with ICANN’s mission.

/- If the Board refuses to act on the arbitrator findings, why would the community turn to California Court instead of recall the Board ? /

They may well turn to the recall mechanism but would they HAVE TO. Is it anticipated that the resort to legal action would only be possible once ALL OTHER REMEDIES have been exhausted? In other words, in effect the only thing a court would ever be asked to do is to enforce the communities spill of the Board? Or is it perhaps anticipated that the community to resort to the court at any stage along the escalation process?

/Given that there was a a binding arbitration decision directing Icann to do X, my understanding was that the court of California would have very limited grounds to turn the decision around. Is that not already addressing the concern of allowing a court of california to decide on what is or is not within Icann's mission ?/

The key point is that irrespective of whether there are “limited grounds” for the court to reverse a decision or take a decision contrary to the views of the community,it could happen. The ultimate authority becomes the Californian legal system.

/And finally, is it not the case today that a Court of California could make such a binding decision ? /

I don’t believe so but stand to be corrected.

My question is an extension of the point I’ve made above about when the community can go to court.

Am I correct in my understanding that once we become a member based organisation, it would be open to any of the member UAs to use the court system to bring an action against ICANN. In other words if the ALAC UA (and I’m just using ALAC as an example) was concerned about ICANN’s interpretation of one of its non-fundamental by-laws then ALAC UA would have legal standing to bring an action in California irrespective of what other members think?

May I ask that we get legal clarification on this point please?

Cheers,

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...

On 21 May 2015, at 17:14 , Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>> wrote:

Dear Chris, All,

Many thanks for explaining the concern through this step by step scenario. This is taking us closer to a stress test approach, which is not only valuable but also mandatory for our group, as per our Charter. I understand your concern is (quoting your email) "handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission."

There is however something I do not understand in your "steps":

Le 21/05/2015 03:45, Chris Disspain a écrit :

...

Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms:

1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold forsupport, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California.

I have four questions : - In your scenario the community would "mission creep". I am not clear how in our report the community would direct the Board to do X. Community powers as we have defined them are restricted to reject / review on budgets or bylaws. Could you clarify this part of the scenario ? - If the Board refuses to act on the arbitrator findings, why would the community turn to California Court instead ofrecall the Board ? - Given that there was a a binding arbitration decision directing Icann to do X, my understanding was that the court of California would have very limited grounds to turn the decision around. Is that not already addressing the concern of allowing a court of california to decide on what is or is not within Icann's mission ? - And finally, is it not the case today that a Court of California could make such a binding decision ?

Best Mathieu

...

As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.

Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.

If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.

Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.

Cheers,

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On 21 May 2015, at 07:51 , Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:

The “enforceability" issue is not about litigation at all, and it isn’t really about whether the Board or some newly invented group is more likely to get it right. Rather, it’s about checks and balances. Without the membership structure, the revised bylaws that empower the community to block certain actions, for example, are by definition advisory – they impose no/*legal*/obligation whatsoever on the Board and staff. I don’t dispute that the Board would have a compelling interest in respecting community input, but as a legal matter without the membership structure, the Board would be *required* to treat any community vote to block, for example, as merely advisory and would have an affirmative obligation to do what it concludes is consistent with its fiduciary duty. The membership model affirmatively shifts some of that fiduciary responsibility to the community. It’s not a statement of who is right or wrong, but who has authority. Steve raises a reasonable question about how the members/unincorporated associations are accountable to their respective communities. But IMHO, the legitimate questions and concerns in this debate are getting obscured by polarizing language and assertions that it’s inappropriate to express a particular point of view.

The argument that there are no examples of situations that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board.” The community has never had any authority or tool to do so, so the fact that it never has is irrelevant and the assertion that it would not have is speculation. I certainly would have tried to get the community to overturn the Board’s decision to abandon the substantive standard for IRPs in favor of the “good faith” test. As it happens, none of the existing review and redress mechanisms would have worked in that case, and they probably wouldn’t work in the future either.

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:Steve DelBianco <sdelbianco@netchoice.org <mailto:sdelbianco@netchoice.org>> Date:Wednesday, May 20, 2015 at 12:37 PM To:"Chartier, Mike S" <mike.s.chartier@intel.com <mailto:mike.s.chartier@intel.com>>, Steve Crocker <steve@shinkuro.com <mailto:steve@shinkuro.com>>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Cc:Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject:Re: [CCWG-ACCT] Question regarding UAs

I don’t think there’s any question that the Board’s primary duty (not their only duty) is to ICANN the Corporation. In addition to Mike’s citation of ICANN bylaws Section 7 (below), see ICANN’s Management Operating Principles (2008):

...

"The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations.”

Source: ICANN Accountability & Transparency Frameworks and Principles, Jan-2008, p.5, athttps://www.icann.org/en/system/files/files/acct-trans-frameworks-principles... <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system...>

From:"Chartier, Mike S" Date:Wednesday, May 20, 2015 at 9:56 AM To:Steve Crocker, Keith Drazek Cc:Accountability Cross Community Subject:Re: [CCWG-ACCT] Question regarding UAs

No comment on actual practice, but from a textual basis (which is what matters now since we are debating new text), I can’t see any inconsistency between the following statements:

...

“Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.” “the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation,” *From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>[mailto:accountability-cross-community-bounces@icann.org]*On Behalf Of*Steve Crocker *Sent:*Wednesday, May 20, 2015 9:47 AM *To:*Drazek, Keith *Cc:*Accountability Cross Community *Subject:*Re: [CCWG-ACCT] Question regarding UAs I didn’t take it personally. I took it as a factually inaccurate statement that creates misunderstanding. Future boards are bound by the same rules as the past and current boards. The language you used is taken by many as a basis for believing there is a significant difference in alignment toward public responsibility between the ICANN Board and some newly invented grouping of community members. It ain’t so and it’s inappropriate to suggest so. Steve On May 20, 2015, at 9:39 AM, Drazek, Keith <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> wrote:

Steve, With all due respect, I think you’re taking this too personally and/or making it too personal. This is not about the current ICANN Board. None of us know what future ICANN Boards will do, or what future ICANN Boards will permit ICANN’s management to do. Will future Boards always exercise appropriate oversight over management? Could there be instances where ICANN’s legal counsel advises a future Board to make a decision that is counter to the interests of the community to protect the financial interests of the corporation? I see the proposed community membership structure simply as a check on the power of the Board, nothing more. It’s not about “controlling” or replacing the Board. The Board has its legitimate function, but its decisions cannot be unchallengeable. The community must have the ability to tell the Board it got a decision wrong and to enforce the will of the multi-stakeholder community in rare/limited instances and based on a very high threshold of community agreement/consensus. I would certainly trust the proposed community members, representing their SOs and ACs, to be balanced, inclusive and trustworthy in protecting the interests of the overall community -- in their role as the aforementioned check on the powers of the Board. Not as a replacement. Would you trust a future Board of sixteen unknown individuals more than you trust the multi-stakeholder, bottom-up, consensus-based community and process? It appears so. I stand by and reaffirm my previous email. I hope my clarification helps. Sincerely, Keith *From:*Steve Crocker [mailto:steve@shinkuro.com] *Sent:*Wednesday, May 20, 2015 8:27 AM *To:*Drazek, Keith *Cc:*Stephen D. Crocker; Chris Disspain; Accountability Cross Community;mshears@cdt.org <mailto:mshears@cdt.org>;egmorris1@toast.net <mailto:egmorris1@toast.net> *Subject:*Re: [CCWG-ACCT] Question regarding UAs On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> wrote:

Hi Chris, I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power. Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve. You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community. Keith, Edward and Edward, We have covered the point above several times and it’s long past time to stop throwing this half-trust around. Yes, ICANN is legally a corporation, and, yes, directors of a corporation have a duty to protect the corporation. But that generality has a far different meaning in a for profit corporation like Verisign than it does in a not-for-profit public benefit corporation like ICANN. The directors are obliged to pursue the purpose and mission stated in the incorporation papers and the bylaws. The directors serve the community, and we do so by exercising oversight over the corporation toward that end. There will always be differences of opinion about the particular details, but those sorts of differences of opinion will arise in *any* governance model. The prevailing assumption in much of the correspondence on this list is that the proposed members will somehow be more balanced, more inclusive and more trustworthy in protecting the interests of the overall community than the ICANN Board is. That’s simply false. And I think you know that it is. Please correct yourself and apologize. Thanks, Steve

We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone? The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majorityof the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability. You asked, /"Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?"/I believe the answer is yes. Not only worth it, but necessary. Regards, Keith

On May 20, 2015, at 2:40 AM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:

...

For clarity, the last sentence of paragraph 8 below should read: "However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board."

Cheers, Chris > On 20 May 2015, at 16:13 , Chris Disspain <ceo@auda.org.au > <mailto:ceo@auda.org.au>> wrote: > Jordan, All, > Thank you Jordan, for attempting to bring some focus to the > current discussion about the UA model, membership structures and > all of the related issues. > First of all, I want to acknowledge that I concur with you on a > number points. > I agree that we need to develop a model that disrupts ICANN’s > operation as little as possible. We can argue about how much > disruption is either possible or preferable, but the principle > is agreed. > I also agree that levels of accountability are not “up to > scratch” and, irrespective of the model we arrive at > post-transition, these need to be improved. Many of the > improvements proposed by the CCWG: to the IRP, reconsideration > mechanisms and the role of the ombudsman, the introduction of > fundamental bylaws and binding arbitration, and the empowerment > of the community to spill the ICANN Board, are also supported. > However, where I disagree with you is in respect to the absolute > need for an /additional/ mechanism, to supersede the current > IANA functions contract, in order to ensure that the community > can ‘control’ the Board because it has the right to bring a > legal action in a US court. > I disagree with the characterisation that the purpose of the > CCWG’s work is to wrest “control” from the ICANN Board and > deliver it to the community. From your email, I gather that you > are fundamentally tying the concept of control to > “enforceability”, neither of which are goals for the current > process. Rather, I believe we are aiming to deliver a structure > where ICANN and its Board are held accountable to the community, > via the number of improvements I mentioned above. > The need to assert absolute “control” or enforceability could > only arise in the most catastrophic of circumstances. If we > assume a situation where proposed mechanisms for escalation, > independent review, /binding /arbitration and direct instruction > by the SOs and ACs are not acknowledged by ICANN, wouldn’t the > entire multi-stakeholder model be irreparably broken? Is > addressing this most unlikely scenario worth the significant > structural changes a membership model would require? > Further, you refer to a “long list” of community concerns about > ICANN’s current operations. I wonder whether these concerns are > actually held by individuals (or individual constituencies) on > particular issues and have been aggregated in to a larger > picture of overall community dissatisfaction? Concerns by > distinct groups on particular topics can certainly be dealt with > by the increased robustness proposed to ICANN’s bylaws and > operations.However, I cannot think of a single example of a > failure throughout the history of ICANN that did result or would > have resulted in the community as one against an action or > decision of the ICANN Board. > To be clear – I am 100% supportive of improvements to > accountability. I believe that the CCWG has initiated extremely > useful work in identifying these mechanisms. > I remain unconvinced regarding the argument that > accountability=control=enforceability, and the subsequent > recommendations of the CCWG that arise from this assumption. > Cheers, > Chris >> On 20 May 2015, at 15:33 , Jordan Carter >> <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> wrote: >> We need legal persons to be members of ICANN. >> They can be individual humans or they can be organisations. >> UAs are the lightest touch, most easily controlled, non-human >> form of person that can fit this mould. >> I do not understand the propensity of parts of our community to >> over-complicate things that look reasonably straight forward >> from other points of view. Has ICANN always been like this? >> (Answers own question - it can't have been, otherwise it would >> never be organised the way it is today....) >> cheers >> Jordan >> On 20 May 2015 at 17:21, Alan >> Greenberg<alan.greenberg@mcgill.ca >> <mailto:alan.greenberg@mcgill.ca>>wrote: >> Avri, I think that you are generally correct. We are putting >> this entire infrastructure in place because we want to be able >> to take ICANN or the Board to court if they do not follow the >> rules. I tend to agree with the auDA comment that if it ever >> gets to that stage, we are REALLY in trouble, and a simple >> court decision is not likelt to fix it. >> >> But that nothwithstanding, we supposedly ned that UA because >> they can take legal action. But if the UA representativesdo not >> listen to the SO/AC. the SO/AC cannot take that rep to court, >> because the SO/AC has no legal persona. So we are again left >> with a discontinuity where something is largely unenforceable >> and we have to take it on faith that they will do the right thing. >> >> Of course, the UA reps and the Board members we select are >> basically drawn from the same pool, perhaps separated by a few >> years. >> >> The difference between a Board member and a UA rep is the Board >> member has a duty to the corporation, and the UA rep can, in >> theory, be required to take instruction from the SO/AC. But >> enforcing that theory may be the rub. >> >> Alan >> >> >> At 20/05/2015 12:41 AM, Avri Doria wrote: >> Hi, >> >> I think I understand the argument about members becoming that >> to which >> ICANN, and its Board, are responsible and accountable. From that >> perspective it sounds really good. >> >> What I have having trouble understanding is an accountability >> structure >> were there is a discontinuity between the SOAC and the UA. If >> each of >> the Board designating SOAC were the UA, it think I would >> understand. >> But I just do not see how the UA are accountable to the people and >> organizations that participate in each of the SOAC. Yes, the SOAC >> designates it UA representative, but how is (s)electing one of >> these any >> more accountable than (s)electing the Board as we do now. Don't >> we just >> move the perceived/possible unaccountability down a layer in >> the hierarchy? >> >> I think I am as comfortable with complexity as the next >> person. And I >> understand how in computer science any problem can solved by adding >> another layer of indirection, but in this case the extra layer >> we are >> creating does not seem to really be accountable to anyone but >> itself, >> except by (s)election procedures. >> >> I am sure I am missing some critical bit of understanding and hope >> someone can explain the chain of accountability in the membership >> model. I feel that we are still hand-waving a bit in the >> explanations. >> In a sense it seems as if we are creating a 'council' that is >> omnipotent >> in the powers it is given, except that they can somehow be >> replaced. >> >> Thanks and apologies for my persistent confusion. >> >> avri >> >> >> >> On 20-May-15 01:14, Jordan Carter wrote: >> > Hi all >> > >> > This thread is useful to tease out some of the questions and >> concerns >> > and confusions with the UA model, and as rapporteur for the WP >> > responsible for refining this part of the proposal I am >> reading it avidly. >> > >> > I just want to take the opportunity to remind us all why >> membership >> > (or something analogous) is an important aspect of the >> reforms we are >> > proposing - no matter the precise details. >> > >> > At the moment without members, ICANN is fundamentally >> controlled by >> > the Board. The only external constraint is the IANA functions >> contract >> > with NTIA. The long list of community concerns and examples >> detailed >> > by our earlier work in this CCWG shows that even with that >> constraint, >> > accountability isn't up to scratch. >> > >> > We are working on a settlement without that NTIA contract. >> > Accountability has to get better even *with* the contract. >> > Fundamentally better, without it. >> > >> > Either we have a membership structure or some other durable >> approach >> > that firmly embeds the stewardship of ICANN and the DNS in >> the ICANN >> > community, or... we remain with Board control. >> > >> > Given ICANN's history, anyone who is advocating a continuation of >> > Board control is arguing for a model that can't be suitably >> > accountable, and that seems highly likely to fail over time, >> with real >> > risks to the security and stability of the DNS. >> > >> > A real, fundamental source of power over the company absent the >> > contract *has* to be established. The membership model is the >> most >> > suitable one to achieve that that we have considered so far. >> > >> > So: we need to be creative and thoughtful in how we make that >> model >> > work in a fashion that disrupts ICANN's general operation as >> little as >> > possible. But the key there is "as possible." Real change is >> needed >> > and much refinement and comment is needed. >> > >> > If there are proposals to achieve the same shift in control >> from ICANN >> > the corporation to ICANN the community, I hope they come >> through in >> > the comment period. So far, none have - but there are still >> two weeks >> > of comments to go. >> > >> > cheers >> > Jordan >> > >> > >> > On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net >> <mailto:malcolm@linx.net> >> > <mailto:malcolm@linx.net <mailto:malcolm@linx.net>>> wrote: >> > >> > This whole thread seems to have massively overcomplicated the >> > question. >> > >> > >> > Unless I have missed something, the only reason we need >> "members" >> > is to >> > stand as plaintiff-of-record in a lawsuit against the >> ICANN Board >> > complaining that the Board has failed to adhere to the >> corporations >> > bylaws. Such a lawsuit would in reality be conducted by an SO or >> > AC, but >> > a person with legal personality needs to act as >> plaintiff-of-record. >> > >> > Why not simply proceed, as Samantha suggested, with the >> SOACs' >> > Chairs as >> > the members of the corporation? Could the Articles (or >> Bylaws, as >> > appropriate) not simply identify the SOACs' Chairs as the >> members, ex >> > officio and pro tempore? >> > >> > An SOAC Chair that refused to act as plaintiff-of-record >> when required >> > to do so by his SOAC could simply be replaced. Likewise a >> Chair that >> > went rogue and initiated a lawsuit without their consent. >> > >> > You can't make the SOAC a member without turning them >> into UAs, >> > with all >> > the attendent complexity. But I don't see that there >> should be any >> > such >> > problem with designating the chair of a SOAC, who will be a >> natural >> > person, as a member of the corporation; the fact that the >> SOAC is >> > not a >> > UA is then irrelevant. >> > >> > In the event that there were any dispute as to whether a >> particular >> > person is in truth an SOAC Chair, this would surely be a simple >> > preliminary matter of fact for the court. It is surely >> beyond dispute >> > that if the Articles designated "Alan Greenberg" as the >> member, it >> > would >> > be a matter of fact as to whether or not the person >> before the >> > court was >> > indeed Alan Greenberg; surely it is the same as to whether >> the person >> > before the court is "the current Chair of ALAC", if that >> should be >> > what >> > is specified in the Articles? >> > >> > Malcolm. >> > >> > -- >> > Malcolm Hutty | tel:+44 20 7645 3523 >> <tel:%2B44%2020%207645%203523> >> > <tel:%2B44%2020%207645%203523> >> > Head of Public Affairs | Read the LINX Public Affairs blog >> > London Internet Exchange |http://publicaffairs.linx.net/ >> <https://urldefense.proofpoint.com/v2/url?u=http-3A__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 >> > >> > >> > _______________________________________________ >> > 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 >> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> >> > >> > >> > >> > >> > -- >> > Jordan Carter >> > >> > Chief Executive >> > *InternetNZ* >> > >> >04 495 2118 <tel:04%20495%202118>(office) |+64 21 442 649 >> <tel:%2B64%2021%20442%20649>(mob) >> >jordan@internetnz.net.nz >> <mailto:jordan@internetnz.net.nz><mailto:jordan@internetnz.net.nz >> <mailto:jordan@internetnz.net.nz>> >> > Skype: jordancarter >> > >> > /A better world through a better Internet / >> > >> > >> > >> > _______________________________________________ >> > 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> >> >> >> --- >> This email has been checked for viruses by Avast antivirus >> software. >> http://www.avast.com >> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.avast.com_&d=AwMGaQ&...> >> >> _______________________________________________ >> 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> >> >> _______________________________________________ >> 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> >> >> >> -- >> >> 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 / >> >> _______________________________________________ >> 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > > _______________________________________________ > 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>

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Chris, My understanding is that in the US anyone can sue anyone and venue is to a large extent choice of plaintiff. el -- Sent from Dr Lisse's iPhone 6

On May 22, 2015, at 13:29, Chris Disspain <ceo@auda.org.au> wrote:

Hi Mathieu,

See below. And thanks!

Cheers,

Chris

...

On 22 May 2015, at 20:16 , Mathieu Weill <mathieu.weill@afnic.fr> wrote:

Chris,

Thank you so much because I think this is a very useful discussion. I would try and reformulate to check if we are communicating before turning to lawyers or any further work :

1) The scenario to assess is the case where the community rejects a budget because the community would like Icann to expand its actions into something that the Community feels is within the Mission while the Board feels it is outside of Icann's Mission, as described in the Bylaws. The Board would then be "stuck" between the community and its perceived obligation to not mission creep.

Basically, our discussion is starting to look like a stress test of this particular scenario: what would the current accountability mechanism enable ? what enhancements or changes would be brought by the proposed accountability framework ?

Yes, I agree that this is, in effect a stress test. My view is that such a scenario under our current structures would be sorted out between us all.

...

2) It is clear to me that our initial report does NOT say that legal action could only be undertaken if all other remedies have been exhausted (I don't even think it would be legally feasible).

So, that means that that in my scenario the community could go straight to court at any point that the Board ‘refuses’ to act. I’m not saying that is necessarily ‘bad’ but it’s important to understand.

...

3) You are asking clarification of several questions : * what the limited grounds are for a California Court to overturn an arbitration (IRP) decision ? (my own recollection of the IRP memos we received from counsel was : arbitration scope or procedure)

Not sure I understand this. I don’t think the courts in California currently have jurisdiction so I’m not sure that they can, today, involve themselves as you suggest.

...

* whether the proposed membership model would enable each UA to initiate legal action against Icann irrespective of what other parts of the community think ? (my understanding is : yes. But I guess that today if NARALO felt a decision was causing them prejudice they could sue Icann as well, so maybe we should reframe the question into : would there be a significant increase of the risk for Icann to be sued ?)

I don’t know what the status of NARALO is (are they a legal entity) and I don’t know if they could in fact bring proceedings against ICANN. And if they could the question would be ‘about what could they sue?’. Obviously, a gTLD registry has a contract with ICANN and could therefore sue ICANN (and vice versa) in respect to the contract. But I don’t think they could sue in respect to ICANN’s bylaws generally. And neither I suspect could NARALO.

So, yes, the question;

...

would there be a significant increase of the risk for Icann to be sued ?

is a relevant one provided you and I are right and any member will be able to sue ICANN about any interpretation ICANN makes about its bylaws. Thinking about it, we should probably get clarity on all the areas that a member could sue on.

...

Can you please confirm that we are on the same page here ?

Assuming you’re fine with the above the, yes, we are on the same page.

...

best Mathieu

Le 22/05/2015 08:47, Chris Disspain a écrit :

...

Mathieu,

You've asked a series of questions which I have thought about very carefully. I acknowledge that the scenario I suggest is unlikely but your questions have led me to a further question which I pose below my responses to yours.

- In your scenario the community would "mission creep". I am not clear how in our report the community would direct the Board to do X. Community powers as we have defined them are restricted to reject / review on budgets or bylaws. Could you clarify this part of the scenario ?

I do believe that it is feasible that the Board could refuse the follow a community veto on a budget item because the board believes to do so would be a breach of the Board’s fiduciary duties to act in the interests of ICANN in accordance with ICANN’s mission.

- If the Board refuses to act on the arbitrator findings, why would the community turn to California Court instead of recall the Board ?

They may well turn to the recall mechanism but would they HAVE TO. Is it anticipated that the resort to legal action would only be possible once ALL OTHER REMEDIES have been exhausted? In other words, in effect the only thing a court would ever be asked to do is to enforce the communities spill of the Board? Or is it perhaps anticipated that the community to resort to the court at any stage along the escalation process?

Given that there was a a binding arbitration decision directing Icann to do X, my understanding was that the court of California would have very limited grounds to turn the decision around. Is that not already addressing the concern of allowing a court of california to decide on what is or is not within Icann's mission ?

The key point is that irrespective of whether there are “limited grounds” for the court to reverse a decision or take a decision contrary to the views of the community,it could happen. The ultimate authority becomes the Californian legal system.

And finally, is it not the case today that a Court of California could make such a binding decision ?

I don’t believe so but stand to be corrected.

My question is an extension of the point I’ve made above about when the community can go to court.

Am I correct in my understanding that once we become a member based organisation, it would be open to any of the member UAs to use the court system to bring an action against ICANN. In other words if the ALAC UA (and I’m just using ALAC as an example) was concerned about ICANN’s interpretation of one of its non-fundamental by-laws then ALAC UA would have legal standing to bring an action in California irrespective of what other members think?

May I ask that we get legal clarification on this point please?

Cheers,

Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au | W: www.auda.org.au auDA – Australia’s Domain Name Administrator

...

On 21 May 2015, at 17:14 , Mathieu Weill <mathieu.weill@afnic.fr> wrote:

Dear Chris, All,

Many thanks for explaining the concern through this step by step scenario. This is taking us closer to a stress test approach, which is not only valuable but also mandatory for our group, as per our Charter. I understand your concern is (quoting your email) "handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission."

There is however something I do not understand in your "steps":

Le 21/05/2015 03:45, Chris Disspain a écrit :

...

Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms:

1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California.

I have four questions : - In your scenario the community would "mission creep". I am not clear how in our report the community would direct the Board to do X. Community powers as we have defined them are restricted to reject / review on budgets or bylaws. Could you clarify this part of the scenario ? - If the Board refuses to act on the arbitrator findings, why would the community turn to California Court instead of recall the Board ? - Given that there was a a binding arbitration decision directing Icann to do X, my understanding was that the court of California would have very limited grounds to turn the decision around. Is that not already addressing the concern of allowing a court of california to decide on what is or is not within Icann's mission ? - And finally, is it not the case today that a Court of California could make such a binding decision ?

Best Mathieu

...

As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.

Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.

If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.

Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.

Cheers,

Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au | W: www.auda.org.au auDA – Australia’s Domain Name Administrator

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On 21 May 2015, at 07:51 , Burr, Becky <Becky.Burr@neustar.biz> wrote:

The “enforceability" issue is not about litigation at all, and it isn’t really about whether the Board or some newly invented group is more likely to get it right. Rather, it’s about checks and balances. Without the membership structure, the revised bylaws that empower the community to block certain actions, for example, are by definition advisory – they impose no legal obligation whatsoever on the Board and staff. I don’t dispute that the Board would have a compelling interest in respecting community input, but as a legal matter without the membership structure, the Board would be required to treat any community vote to block, for example, as merely advisory and would have an affirmative obligation to do what it concludes is consistent with its fiduciary duty. The membership model affirmatively shifts some of that fiduciary responsibility to the community. It’s not a statement of who is right or wrong, but who has authority. Steve raises a reasonable question about how the members/unincorporated associations are accountable to their respective communities. But IMHO, the legitimate questions and concerns in this debate are getting obscured by polarizing language and assertions that it’s inappropriate to express a particular point of view.

The argument that there are no examples of situations that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board.” The community has never had any authority or tool to do so, so the fact that it never has is irrelevant and the assertion that it would not have is speculation. I certainly would have tried to get the community to overturn the Board’s decision to abandon the substantive standard for IRPs in favor of the “good faith” test. As it happens, none of the existing review and redress mechanisms would have worked in that case, and they probably wouldn’t work in the future either.

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: Steve DelBianco <sdelbianco@netchoice.org> Date: Wednesday, May 20, 2015 at 12:37 PM To: "Chartier, Mike S" <mike.s.chartier@intel.com>, Steve Crocker <steve@shinkuro.com>, Keith Drazek <kdrazek@verisign.com> Cc: Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Question regarding UAs

I don’t think there’s any question that the Board’s primary duty (not their only duty) is to ICANN the Corporation. In addition to Mike’s citation of ICANN bylaws Section 7 (below), see ICANN’s Management Operating Principles (2008): > > "The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations.” > > Source: ICANN Accountability & Transparency Frameworks and Principles, Jan-2008, p.5, at https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles...

From: "Chartier, Mike S" Date: Wednesday, May 20, 2015 at 9:56 AM To: Steve Crocker, Keith Drazek Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs

No comment on actual practice, but from a textual basis (which is what matters now since we are debating new text), I can’t see any inconsistency between the following statements: > “Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.” > “the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation,”

From:accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Steve Crocker Sent: Wednesday, May 20, 2015 9:47 AM To: Drazek, Keith Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs

I didn’t take it personally. I took it as a factually inaccurate statement that creates misunderstanding. Future boards are bound by the same rules as the past and current boards. The language you used is taken by many as a basis for believing there is a significant difference in alignment toward public responsibility between the ICANN Board and some newly invented grouping of community members. It ain’t so and it’s inappropriate to suggest so.

Steve

> On May 20, 2015, at 9:39 AM, Drazek, Keith <kdrazek@verisign.com> wrote: > > Steve, > > With all due respect, I think you’re taking this too personally and/or making it too personal. This is not about the current ICANN Board. > > None of us know what future ICANN Boards will do, or what future ICANN Boards will permit ICANN’s management to do. Will future Boards always exercise appropriate oversight over management? Could there be instances where ICANN’s legal counsel advises a future Board to make a decision that is counter to the interests of the community to protect the financial interests of the corporation? > > I see the proposed community membership structure simply as a check on the power of the Board, nothing more. It’s not about “controlling” or replacing the Board. The Board has its legitimate function, but its decisions cannot be unchallengeable. The community must have the ability to tell the Board it got a decision wrong and to enforce the will of the multi-stakeholder community in rare/limited instances and based on a very high threshold of community agreement/consensus. > > I would certainly trust the proposed community members, representing their SOs and ACs, to be balanced, inclusive and trustworthy in protecting the interests of the overall community -- in their role as the aforementioned check on the powers of the Board. Not as a replacement. > > Would you trust a future Board of sixteen unknown individuals more than you trust the multi-stakeholder, bottom-up, consensus-based community and process? It appears so. > > I stand by and reaffirm my previous email. I hope my clarification helps. > > Sincerely, > > Keith > > > From: Steve Crocker [mailto:steve@shinkuro.com] > Sent: Wednesday, May 20, 2015 8:27 AM > To: Drazek, Keith > Cc: Stephen D. Crocker; Chris Disspain; Accountability Cross Community; mshears@cdt.org; egmorris1@toast.net > Subject: Re: [CCWG-ACCT] Question regarding UAs > > > On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek@verisign.com> wrote: > > > > Hi Chris, > > I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power. > > Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve. > > You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community. > > Keith, Edward and Edward, > > We have covered the point above several times and it’s long past time to stop throwing this half-trust around. Yes, ICANN is legally a corporation, and, yes, directors of a corporation have a duty to protect the corporation. But that generality has a far different meaning in a for profit corporation like Verisign than it does in a not-for-profit public benefit corporation like ICANN. The directors are obliged to pursue the purpose and mission stated in the incorporation papers and the bylaws. The directors serve the community, and we do so by exercising oversight over the corporation toward that end. > > There will always be differences of opinion about the particular details, but those sorts of differences of opinion will arise in *any* governance model. The prevailing assumption in much of the correspondence on this list is that the proposed members will somehow be more balanced, more inclusive and more trustworthy in protecting the interests of the overall community than the ICANN Board is. That’s simply false. And I think you know that it is. > > Please correct yourself and apologize. > > Thanks, > > Steve > > > > > > > > We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone? > > The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability. > > You asked, "Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" I believe the answer is yes. Not only worth it, but necessary. > > Regards, > Keith > > >> On May 20, 2015, at 2:40 AM, Chris Disspain <ceo@auda.org.au> wrote: >> >> For clarity, the last sentence of paragraph 8 below should read: >> >> "However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board." >> >> >> >> >> Cheers, >> >> Chris >> >>> On 20 May 2015, at 16:13 , Chris Disspain <ceo@auda.org.au> wrote: >>> >>> Jordan, All, >>> >>> Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues. >>> >>> First of all, I want to acknowledge that I concur with you on a number points. >>> >>> I agree that we need to develop a model that disrupts ICANN’s operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed. >>> >>> I also agree that levels of accountability are not “up to scratch” and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported. >>> >>> However, where I disagree with you is in respect to the absolute need for an additional mechanism, to supersede the current IANA functions contract, in order to ensure that the community can ‘control’ the Board because it has the right to bring a legal action in a US court. >>> >>> I disagree with the characterisation that the purpose of the CCWG’s work is to wrest “control” from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to “enforceability”, neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above. >>> >>> The need to assert absolute “control” or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, binding arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require? >>> >>> Further, you refer to a “long list” of community concerns about ICANN’s current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN’s bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board. >>> >>> To be clear – I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms. >>> >>> I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption. >>> >>> >>> Cheers, >>> >>> Chris >>> >>>> On 20 May 2015, at 15:33 , Jordan Carter <jordan@internetnz.net.nz> wrote: >>>> >>>> We need legal persons to be members of ICANN. >>>> >>>> They can be individual humans or they can be organisations. >>>> >>>> UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould. >>>> >>>> I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....) >>>> >>>> cheers >>>> Jordan >>>> >>>> >>>> On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg@mcgill.ca> wrote: >>>> Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it. >>>> >>>> But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing. >>>> >>>> Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years. >>>> >>>> The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub. >>>> >>>> Alan >>>> >>>> >>>> At 20/05/2015 12:41 AM, Avri Doria wrote: >>>> Hi, >>>> >>>> I think I understand the argument about members becoming that to which >>>> ICANN, and its Board, are responsible and accountable. From that >>>> perspective it sounds really good. >>>> >>>> What I have having trouble understanding is an accountability structure >>>> were there is a discontinuity between the SOAC and the UA. If each of >>>> the Board designating SOAC were the UA, it think I would understand. >>>> But I just do not see how the UA are accountable to the people and >>>> organizations that participate in each of the SOAC. Yes, the SOAC >>>> designates it UA representative, but how is (s)electing one of these any >>>> more accountable than (s)electing the Board as we do now. Don't we just >>>> move the perceived/possible unaccountability down a layer in the hierarchy? >>>> >>>> I think I am as comfortable with complexity as the next person. And I >>>> understand how in computer science any problem can solved by adding >>>> another layer of indirection, but in this case the extra layer we are >>>> creating does not seem to really be accountable to anyone but itself, >>>> except by (s)election procedures. >>>> >>>> I am sure I am missing some critical bit of understanding and hope >>>> someone can explain the chain of accountability in the membership >>>> model. I feel that we are still hand-waving a bit in the explanations. >>>> In a sense it seems as if we are creating a 'council' that is omnipotent >>>> in the powers it is given, except that they can somehow be replaced. >>>> >>>> Thanks and apologies for my persistent confusion. >>>> >>>> avri >>>> >>>> >>>> >>>> On 20-May-15 01:14, Jordan Carter wrote: >>>> > Hi all >>>> > >>>> > This thread is useful to tease out some of the questions and concerns >>>> > and confusions with the UA model, and as rapporteur for the WP >>>> > responsible for refining this part of the proposal I am reading it avidly. >>>> > >>>> > I just want to take the opportunity to remind us all why membership >>>> > (or something analogous) is an important aspect of the reforms we are >>>> > proposing - no matter the precise details. >>>> > >>>> > At the moment without members, ICANN is fundamentally controlled by >>>> > the Board. The only external constraint is the IANA functions contract >>>> > with NTIA. The long list of community concerns and examples detailed >>>> > by our earlier work in this CCWG shows that even with that constraint, >>>> > accountability isn't up to scratch. >>>> > >>>> > We are working on a settlement without that NTIA contract. >>>> > Accountability has to get better even *with* the contract. >>>> > Fundamentally better, without it. >>>> > >>>> > Either we have a membership structure or some other durable approach >>>> > that firmly embeds the stewardship of ICANN and the DNS in the ICANN >>>> > community, or... we remain with Board control. >>>> > >>>> > Given ICANN's history, anyone who is advocating a continuation of >>>> > Board control is arguing for a model that can't be suitably >>>> > accountable, and that seems highly likely to fail over time, with real >>>> > risks to the security and stability of the DNS. >>>> > >>>> > A real, fundamental source of power over the company absent the >>>> > contract *has* to be established. The membership model is the most >>>> > suitable one to achieve that that we have considered so far. >>>> > >>>> > So: we need to be creative and thoughtful in how we make that model >>>> > work in a fashion that disrupts ICANN's general operation as little as >>>> > possible. But the key there is "as possible." Real change is needed >>>> > and much refinement and comment is needed. >>>> > >>>> > If there are proposals to achieve the same shift in control from ICANN >>>> > the corporation to ICANN the community, I hope they come through in >>>> > the comment period. So far, none have - but there are still two weeks >>>> > of comments to go. >>>> > >>>> > cheers >>>> > Jordan >>>> > >>>> > >>>> > On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net >>>> > <mailto:malcolm@linx.net>> wrote: >>>> > >>>> > This whole thread seems to have massively overcomplicated the >>>> > question. >>>> > >>>> > >>>> > Unless I have missed something, the only reason we need "members" >>>> > is to >>>> > stand as plaintiff-of-record in a lawsuit against the ICANN Board >>>> > complaining that the Board has failed to adhere to the corporations >>>> > bylaws. Such a lawsuit would in reality be conducted by an SO or >>>> > AC, but >>>> > a person with legal personality needs to act as plaintiff-of-record. >>>> > >>>> > Why not simply proceed, as Samantha suggested, with the SOACs' >>>> > Chairs as >>>> > the members of the corporation? Could the Articles (or Bylaws, as >>>> > appropriate) not simply identify the SOACs' Chairs as the members, ex >>>> > officio and pro tempore? >>>> > >>>> > An SOAC Chair that refused to act as plaintiff-of-record when required >>>> > to do so by his SOAC could simply be replaced. Likewise a Chair that >>>> > went rogue and initiated a lawsuit without their consent. >>>> > >>>> > You can't make the SOAC a member without turning them into UAs, >>>> > with all >>>> > the attendent complexity. But I don't see that there should be any >>>> > such >>>> > problem with designating the chair of a SOAC, who will be a natural >>>> > person, as a member of the corporation; the fact that the SOAC is >>>> > not a >>>> > UA is then irrelevant. >>>> > >>>> > In the event that there were any dispute as to whether a particular >>>> > person is in truth an SOAC Chair, this would surely be a simple >>>> > preliminary matter of fact for the court. It is surely beyond dispute >>>> > that if the Articles designated "Alan Greenberg" as the member, it >>>> > would >>>> > be a matter of fact as to whether or not the person before the >>>> > court was >>>> > indeed Alan Greenberg; surely it is the same as to whether the person >>>> > before the court is "the current Chair of ALAC", if that should be >>>> > what >>>> > is specified in the Articles? >>>> > >>>> > Malcolm. >>>> > >>>> > -- >>>> > Malcolm Hutty | tel: +44 20 7645 3523 >>>> > <tel:%2B44%2020%207645%203523> >>>> > 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 >>>> > >>>> > >>>> > _______________________________________________ >>>> > 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 / >>>> > >>>> > >>>> > >>>> > _______________________________________________ >>>> > Accountability-Cross-Community mailing list >>>> > Accountability-Cross-Community@icann.org >>>> > https://mm.icann.org/mailman/listinfo/accountability-cross-community >>>> >>>> >>>> --- >>>> This email has been checked for viruses by Avast antivirus software. >>>> http://www.avast.com >>>> >>>> _______________________________________________ >>>> 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 >>>> >>>> >>>> >>>> -- >>>> 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 >>>> >>>> _______________________________________________ >>>> Accountability-Cross-Community mailing list >>>> Accountability-Cross-Community@icann.org >>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community >>> >>> >>> _______________________________________________ >>> Accountability-Cross-Community mailing list >>> Accountability-Cross-Community@icann.org >>> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org >> https://mm.icann.org/mailman/listinfo/accountability-cross-community > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Dear All, This a tottaly confusing discussion .The wholée thing is based on worse case which may not have been ever occurred. May we engage in some practical and not totally theoretical cases. We are discussing lawsuit and lawsuit since we have been very skeptical and perhaps negative oriented manner. ICANN is now about 17 years. Pls provide ststistics of cases that ICANN wilingly r efused to act inaccordance with Bylaws and/ or Articles . Howmany cases 1, 2. or 5 or many ? THERE IS A WORKING MECHANISM WE ARE PUSHED TO MAKE IT UNWORKABLE TOTALLY. Regards Kavouss 2015-05-22 19:05 GMT+02:00 Burr, Becky <Becky.Burr@neustar.biz>:

I have added some questions and comments in* blue italics* below

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: Chris Disspain <ceo@auda.org.au> Date: Friday, May 22, 2015 at 5:29 AM To: "Mathieu.Weill@afnic.fr" <Mathieu.Weill@afnic.fr> Cc: Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Question regarding UAs

Hi Mathieu,

See below. And thanks!

Cheers,

Chris

On 22 May 2015, at 20:16 , Mathieu Weill <mathieu.weill@afnic.fr> wrote:

Chris,

Thank you so much because I think this is a very useful discussion. I would try and reformulate to check if we are communicating before turning to lawyers or any further work :

1) The scenario to assess is the case where the community rejects a budget because the community would like Icann to expand its actions into something that the Community feels is within the Mission while the Board feels it is outside of Icann's Mission, as described in the Bylaws. The Board would then be "stuck" between the community and its perceived obligation to not mission creep.

Basically, our discussion is starting to look like a stress test of this particular scenario: what would the current accountability mechanism enable ? what enhancements or changes would be brought by the proposed accountability framework ?

Yes, I agree that this is, in effect a stress test. My view is that such a scenario under our current structures would be sorted out between us all.

2) It is clear to me that our initial report does NOT say that legal action could only be undertaken if all other remedies have been exhausted (I don't even think it would be legally feasible). *Clearly this could not be mandatory in all circumstances, but **I think you could take steps to encourage arbitration over resort to court if it really made sense to do that.*

So, that means that that in my scenario the community could go straight to court at any point that the Board ‘refuses’ to act. I’m not saying that is necessarily ‘bad’ but it’s important to understand. *Not sure I understand this. If the community vetoed a proposed budget, but the Board refused to honor that veto, the community **could seek to have its legal rights enforced – either in court or through arbitration. But under a member/designator model, the Board would be violating its legal obligation to honor the community veto. Why would it do that? *

3) You are asking clarification of several questions : * what the limited grounds are for a California Court to overturn an arbitration (IRP) decision ? (my own recollection of the IRP memos we received from counsel was : arbitration scope or procedure)

Not sure I understand this. I don’t think the courts in California currently have jurisdiction so I’m not sure that they can, today, involve themselves as you suggest. *Confused here. If ICANN violated its fiduciary duties, breached a contractual obligation, or engaged in tortious conduct, a California court – along with lots of other courts – would have jurisdiction. With respect to fiduciary duties and contract breaches, California law would likely apply wherever the case was brought, though applicable law would vary in the case of tort claims. In the event the IRP became binding, a claimant could go to Court in California to force ICANN to honor the panel’s decision. Again, though, if the IRP decision was binding, ICANN would have a legal obligation to honor it, so why would it refuse to do so?*

* whether the proposed membership model would enable each UA to initiate legal action against Icann irrespective of what other parts of the community think ? (my understanding is : yes. But I guess that today if NARALO felt a decision was causing them prejudice they could sue Icann as well, so maybe we should reframe the question into : would there be a significant increase of the risk for Icann to be sued ?)

I don’t know what the status of NARALO is (are they a legal entity) and I don’t know if they could in fact bring proceedings against ICANN. And if they could the question would be ‘about what could they sue?’. Obviously, a gTLD registry has a contract with ICANN and could therefore sue ICANN (and vice versa) in respect to the contract. But I don’t think they could sue in respect to ICANN’s bylaws generally. And neither I suspect could NARALO.

So, yes, the question;

would there be a significant increase of the risk for Icann to be sued ?

is a relevant one provided you and I are right and any member will be able to sue ICANN about any interpretation ICANN makes about its bylaws. Thinking about it, we should probably get clarity on all the areas that a member could sue on.

*I am confused. If ICANN refuses to honor a community veto of a budget or bylaw change, one or more of the UAs/members could use the IRP or go to court. Why is that a problem, if the budget has been vetoed with the support of the broader community as required to veto in the first place? More to the point, why would the Board refuse to honor a veto imposed consistent with the requirements? We are making assumptions about lawlessness that seem odd to me. And if the Board is willing to ignore its legal obligation to accept a properly imposed community veto, why shouldn’t the members be able to enforce their legal authority? If you are worried that one UA would claim that the community had vetoed a budget when that wasn’t what happened, any lawsuit could be pretty readily disposed of by affidavits from other UAs.*

Can you please confirm that we are on the same page here ?

Assuming you’re fine with the above the, yes, we are on the same page.

best Mathieu

Le 22/05/2015 08:47, Chris Disspain a écrit :

Mathieu,

You've asked a series of questions which I have thought about very carefully. I acknowledge that the scenario I suggest is unlikely but your questions have led me to a further question which I pose below my responses to yours.

*- In your scenario the community would "mission creep". I am not clear how in our report the community would direct the Board to do X. Community powers as we have defined them are restricted to reject / review on budgets or bylaws. Could you clarify this part of the scenario ? *

I do believe that it is feasible that the Board could refuse the follow a community veto on a budget item because the board believes to do so would be a breach of the Board’s fiduciary duties to act in the interests of ICANN in accordance with ICANN’s mission.

*- If the Board refuses to act on the arbitrator findings, why would the community turn to California Court instead of recall the Board ? *

They may well turn to the recall mechanism but would they HAVE TO. Is it anticipated that the resort to legal action would only be possible once ALL OTHER REMEDIES have been exhausted? In other words, in effect the only thing a court would ever be asked to do is to enforce the communities spill of the Board? Or is it perhaps anticipated that the community to resort to the court at any stage along the escalation process?

*Given that there was a a binding arbitration decision directing Icann to do X, my understanding was that the court of California would have very limited grounds to turn the decision around. Is that not already addressing the concern of allowing a court of california to decide on what is or is not within Icann's mission ? *

The key point is that irrespective of whether there are “limited grounds” for the court to reverse a decision or take a decision contrary to the views of the community,it could happen. The ultimate authority becomes the Californian legal system.

*And finally, is it not the case today that a Court of California could make such a binding decision ? *

I don’t believe so but stand to be corrected.

My question is an extension of the point I’ve made above about when the community can go to court.

Am I correct in my understanding that once we become a member based organisation, it would be open to any of the member UAs to use the court system to bring an action against ICANN. In other words if the ALAC UA (and I’m just using ALAC as an example) was concerned about ICANN’s interpretation of one of its non-fundamental by-laws then ALAC UA would have legal standing to bring an action in California irrespective of what other members think?

May I ask that we get legal clarification on this point please?

Cheers,

Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au | W: www.auda.org.au <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.auda.org.au_&d=AwMF-...>

auDA – Australia’s Domain Name Administrator

On 21 May 2015, at 17:14 , Mathieu Weill <mathieu.weill@afnic.fr> wrote:

Dear Chris, All,

Many thanks for explaining the concern through this step by step scenario. This is taking us closer to a stress test approach, which is not only valuable but also mandatory for our group, as per our Charter. I understand your concern is (quoting your email) "handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission."

There is however something I do not understand in your "steps":

Le 21/05/2015 03:45, Chris Disspain a écrit :

Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms:

1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California.

I have four questions : - In your scenario the community would "mission creep". I am not clear how in our report the community would direct the Board to do X. Community powers as we have defined them are restricted to reject / review on budgets or bylaws. Could you clarify this part of the scenario ? - If the Board refuses to act on the arbitrator findings, why would the community turn to California Court instead of recall the Board ? - Given that there was a a binding arbitration decision directing Icann to do X, my understanding was that the court of California would have very limited grounds to turn the decision around. Is that not already addressing the concern of allowing a court of california to decide on what is or is not within Icann's mission ? - And finally, is it not the case today that a Court of California could make such a binding decision ?

Best Mathieu

As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.

Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.

If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.

Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.

Cheers,

Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au | W: www.auda.org.au <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.auda.org.au_&d=AwMF-...>

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On 21 May 2015, at 07:51 , Burr, Becky <Becky.Burr@neustar.biz> wrote:

The “enforceability" issue is not about litigation at all, and it isn’t really about whether the Board or some newly invented group is more likely to get it right. Rather, it’s about checks and balances. Without the membership structure, the revised bylaws that empower the community to block certain actions, for example, are by definition advisory – they impose no *legal* obligation whatsoever on the Board and staff. I don’t dispute that the Board would have a compelling interest in respecting community input, but as a legal matter without the membership structure, the Board would be *required* to treat any community vote to block, for example, as merely advisory and would have an affirmative obligation to do what it concludes is consistent with its fiduciary duty. The membership model affirmatively shifts some of that fiduciary responsibility to the community. It’s not a statement of who is right or wrong, but who has authority. Steve raises a reasonable question about how the members/unincorporated associations are accountable to their respective communities. But IMHO, the legitimate questions and concerns in this debate are getting obscured by polarizing language and assertions that it’s inappropriate to express a particular point of view.

The argument that there are no examples of situations that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board.” The community has never had any authority or tool to do so, so the fact that it never has is irrelevant and the assertion that it would not have is speculation. I certainly would have tried to get the community to overturn the Board’s decision to abandon the substantive standard for IRPs in favor of the “good faith” test. As it happens, none of the existing review and redress mechanisms would have worked in that case, and they probably wouldn’t work in the future either.

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: Steve DelBianco <sdelbianco@netchoice.org> Date: Wednesday, May 20, 2015 at 12:37 PM To: "Chartier, Mike S" <mike.s.chartier@intel.com>, Steve Crocker < steve@shinkuro.com>, Keith Drazek <kdrazek@verisign.com> Cc: Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Question regarding UAs

I don’t think there’s any question that the Board’s primary duty (not their only duty) is to ICANN the Corporation. In addition to Mike’s citation of ICANN bylaws Section 7 (below), see ICANN’s Management Operating Principles (2008):

"The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations.”

Source: ICANN Accountability & Transparency Frameworks and Principles, Jan-2008, p.5, at https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles... <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system...>

From: "Chartier, Mike S" Date: Wednesday, May 20, 2015 at 9:56 AM To: Steve Crocker, Keith Drazek Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Question regarding UAs

No comment on actual practice, but from a textual basis (which is what matters now since we are debating new text), I can’t see any inconsistency between the following statements:

“Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.” “the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation,”

*From:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Steve Crocker *Sent:* Wednesday, May 20, 2015 9:47 AM *To:* Drazek, Keith *Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Question regarding UAs

I didn’t take it personally. I took it as a factually inaccurate statement that creates misunderstanding. Future boards are bound by the same rules as the past and current boards. The language you used is taken by many as a basis for believing there is a significant difference in alignment toward public responsibility between the ICANN Board and some newly invented grouping of community members. It ain’t so and it’s inappropriate to suggest so.

Steve

On May 20, 2015, at 9:39 AM, Drazek, Keith <kdrazek@verisign.com> wrote:

Steve,

With all due respect, I think you’re taking this too personally and/or making it too personal. This is not about the current ICANN Board.

None of us know what future ICANN Boards will do, or what future ICANN Boards will permit ICANN’s management to do. Will future Boards always exercise appropriate oversight over management? Could there be instances where ICANN’s legal counsel advises a future Board to make a decision that is counter to the interests of the community to protect the financial interests of the corporation?

I see the proposed community membership structure simply as a check on the power of the Board, nothing more. It’s not about “controlling” or replacing the Board. The Board has its legitimate function, but its decisions cannot be unchallengeable. The community must have the ability to tell the Board it got a decision wrong and to enforce the will of the multi-stakeholder community in rare/limited instances and based on a very high threshold of community agreement/consensus.

I would certainly trust the proposed community members, representing their SOs and ACs, to be balanced, inclusive and trustworthy in protecting the interests of the overall community -- in their role as the aforementioned check on the powers of the Board. Not as a replacement.

Would you trust a future Board of sixteen unknown individuals more than you trust the multi-stakeholder, bottom-up, consensus-based community and process? It appears so.

I stand by and reaffirm my previous email. I hope my clarification helps.

Sincerely,

Keith

*From:* Steve Crocker [mailto:steve@shinkuro.com <steve@shinkuro.com>] *Sent:* Wednesday, May 20, 2015 8:27 AM *To:* Drazek, Keith *Cc:* Stephen D. Crocker; Chris Disspain; Accountability Cross Community; mshears@cdt.org; egmorris1@toast.net *Subject:* Re: [CCWG-ACCT] Question regarding UAs

On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek@verisign.com> wrote:

Hi Chris,

I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power.

Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve.

You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community.

Keith, Edward and Edward,

We have covered the point above several times and it’s long past time to stop throwing this half-trust around. Yes, ICANN is legally a corporation, and, yes, directors of a corporation have a duty to protect the corporation. But that generality has a far different meaning in a for profit corporation like Verisign than it does in a not-for-profit public benefit corporation like ICANN. The directors are obliged to pursue the purpose and mission stated in the incorporation papers and the bylaws. The directors serve the community, and we do so by exercising oversight over the corporation toward that end.

There will always be differences of opinion about the particular details, but those sorts of differences of opinion will arise in *any* governance model. The prevailing assumption in much of the correspondence on this list is that the proposed members will somehow be more balanced, more inclusive and more trustworthy in protecting the interests of the overall community than the ICANN Board is. That’s simply false. And I think you know that it is.

Please correct yourself and apologize.

Thanks,

Steve

We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone?

The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability.

You asked, *"Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" *I believe the answer is yes. Not only worth it, but necessary.

Regards, Keith

On May 20, 2015, at 2:40 AM, Chris Disspain <ceo@auda.org.au> wrote:

For clarity, the last sentence of paragraph 8 below should read:

"However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board."

Cheers,

Chris

On 20 May 2015, at 16:13 , Chris Disspain <ceo@auda.org.au> wrote:

Jordan, All,

Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues.

First of all, I want to acknowledge that I concur with you on a number points.

I agree that we need to develop a model that disrupts ICANN’s operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed.

I also agree that levels of accountability are not “up to scratch” and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported.

However, where I disagree with you is in respect to the absolute need for an *additional* mechanism, to supersede the current IANA functions contract, in order to ensure that the community can ‘control’ the Board because it has the right to bring a legal action in a US court.

I disagree with the characterisation that the purpose of the CCWG’s work is to wrest “control” from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to “enforceability”, neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above.

The need to assert absolute “control” or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, *binding *arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?

Further, you refer to a “long list” of community concerns about ICANN’s current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN’s bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board.

To be clear – I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms.

I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption.

Cheers,

Chris

On 20 May 2015, at 15:33 , Jordan Carter <jordan@internetnz.net.nz> wrote:

We need legal persons to be members of ICANN.

They can be individual humans or they can be organisations.

UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould.

I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....)

cheers Jordan

On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg@mcgill.ca> wrote: Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it.

But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing.

Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years.

The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub.

Alan

At 20/05/2015 12:41 AM, Avri Doria wrote: Hi,

I think I understand the argument about members becoming that to which ICANN, and its Board, are responsible and accountable. From that perspective it sounds really good.

What I have having trouble understanding is an accountability structure were there is a discontinuity between the SOAC and the UA. If each of the Board designating SOAC were the UA, it think I would understand. But I just do not see how the UA are accountable to the people and organizations that participate in each of the SOAC. Yes, the SOAC designates it UA representative, but how is (s)electing one of these any more accountable than (s)electing the Board as we do now. Don't we just move the perceived/possible unaccountability down a layer in the hierarchy?

I think I am as comfortable with complexity as the next person. And I understand how in computer science any problem can solved by adding another layer of indirection, but in this case the extra layer we are creating does not seem to really be accountable to anyone but itself, except by (s)election procedures.

I am sure I am missing some critical bit of understanding and hope someone can explain the chain of accountability in the membership model. I feel that we are still hand-waving a bit in the explanations. In a sense it seems as if we are creating a 'council' that is omnipotent in the powers it is given, except that they can somehow be replaced.

Thanks and apologies for my persistent confusion.

avri

On 20-May-15 01:14, Jordan Carter wrote:

...

Hi all

This thread is useful to tease out some of the questions and concerns and confusions with the UA model, and as rapporteur for the WP responsible for refining this part of the proposal I am reading it avidly.

I just want to take the opportunity to remind us all why membership (or something analogous) is an important aspect of the reforms we are proposing - no matter the precise details.

At the moment without members, ICANN is fundamentally controlled by the Board. The only external constraint is the IANA functions contract with NTIA. The long list of community concerns and examples detailed by our earlier work in this CCWG shows that even with that constraint, accountability isn't up to scratch.

We are working on a settlement without that NTIA contract. Accountability has to get better even *with* the contract. Fundamentally better, without it.

Either we have a membership structure or some other durable approach that firmly embeds the stewardship of ICANN and the DNS in the ICANN community, or... we remain with Board control.

Given ICANN's history, anyone who is advocating a continuation of Board control is arguing for a model that can't be suitably accountable, and that seems highly likely to fail over time, with real risks to the security and stability of the DNS.

A real, fundamental source of power over the company absent the contract *has* to be established. The membership model is the most suitable one to achieve that that we have considered so far.

So: we need to be creative and thoughtful in how we make that model work in a fashion that disrupts ICANN's general operation as little as possible. But the key there is "as possible." Real change is needed and much refinement and comment is needed.

If there are proposals to achieve the same shift in control from ICANN the corporation to ICANN the community, I hope they come through in the comment period. So far, none have - but there are still two weeks of comments to go.

cheers Jordan

On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>> wrote:

This whole thread seems to have massively overcomplicated the question.

Unless I have missed something, the only reason we need "members" is to stand as plaintiff-of-record in a lawsuit against the ICANN Board complaining that the Board has failed to adhere to the corporations bylaws. Such a lawsuit would in reality be conducted by an SO or AC, but a person with legal personality needs to act as plaintiff-of-record.

Why not simply proceed, as Samantha suggested, with the SOACs' Chairs as the members of the corporation? Could the Articles (or Bylaws, as appropriate) not simply identify the SOACs' Chairs as the members, ex officio and pro tempore?

An SOAC Chair that refused to act as plaintiff-of-record when required to do so by his SOAC could simply be replaced. Likewise a Chair that went rogue and initiated a lawsuit without their consent.

You can't make the SOAC a member without turning them into UAs, with all the attendent complexity. But I don't see that there should be any such problem with designating the chair of a SOAC, who will be a natural person, as a member of the corporation; the fact that the SOAC is not a UA is then irrelevant.

In the event that there were any dispute as to whether a particular person is in truth an SOAC Chair, this would surely be a simple preliminary matter of fact for the court. It is surely beyond dispute that if the Articles designated "Alan Greenberg" as the member, it would be a matter of fact as to whether or not the person before the court was indeed Alan Greenberg; surely it is the same as to whether the person before the court is "the current Chair of ALAC", if that should be what is specified in the Articles?

Malcolm.

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I am entering a debate between two lawyers with some trepidation, but her goes. I know that in contracts, one can agree to use binding arbitration instead of the courts. Can we do so here? With one exception. Members can go to court to enforce a recall/dismissal of Board members. It strikes me that if we can do that, we address all of the concerns. Arbitration does not, I think, set a precedent that must be honored in the future, so Chris's worry about the courts defining the ICANN mission is no longer an issue. The Board could still defy the community. But they could either discuss the situation, as Chris is convinced would happen, or ultimately if they refuse, or the outcome is not to the community's satisfaction, we have the right to remove those members of the Board who are standing in the way (or the entire Board). This could not be defied, because we COULD go to court over that. Would this work? Alan At 24/05/2015 09:39 PM, Chris Disspain wrote:

Hi Becky,

...

So, that means that that in my scenario the community could go straight to court at any point that the Board ‘refuses’ to act. I’m not saying that is necessarily ‘bad’ but it’s important to understand. Not sure I understand this. If the community vetoed a proposed budget, but the Board refused to honor that veto, the community could seek to have its legal rights enforced – either in court or through arbitration. But under a member/designator model, the Board would be violating its legal obligation to honor the community veto. Why would it do that?

Surely irrespective of the obligation set out in the bylaw being legally enforceable, the Board would be obliged to refuse to honour the veto if it was advised that to do so would mean that ICANN was acting outside of its mission.

In the membership model the community could then go to court in California and ask the court to require the Board to honour the veto and the court would do so PROVIDED THAT it found that to do so was not outside the the mission. That would become a binding, precedent setting interpretation of ICANN’s mission by a US court.

In the non-membership model the community and the board would sit down together and work out a way through.

...

Not sure I understand this. I don’t think the courts in California currently have jurisdiction so I’m not sure that they can, today, involve themselves as you suggest. Confused here. If ICANN violated its fiduciary duties, breached a contractual obligation, or engaged in tortious conduct, a California court – along with lots of other courts – would have jurisdiction. With respect to fiduciary duties and contract breaches, California law would likely apply wherever the case was brought, though applicable law would vary in the case of tort claims. In the event the IRP became binding, a claimant could go to Court in California to force ICANN to honor the panel’s decision. Again, though, if the IRP decision was binding, ICANN would have a legal obligation to honor it, so why would it refuse to do so?

Yes, where there is a contract (registries, registrars) the California court has jurisdiction. But we are not discussing that. We are discussing changing the current structure so that the SOs and ACs have the right to make the Board do the stuff they would be obliged to do pursuant to the new set of bylaws.

You say, in the event that the IRP became binding, because the Board would have a legal obligation to honour the decision, why would they not? I say, if it is made binding under the fundamental bylaws, even if the Board could not be legally forced to honour the decision, why would they not? I accept they CAN refuse to honour it. Why WOULD they refuse to honour it?

...

I am confused.

Sorry for not being clear.

...

If ICANN refuses to honor a community veto of a budget or bylaw change, one or more of the UAs/members could use the IRP or go to court. Why is that a problem, if the budget has been vetoed with the support of the broader community as required to veto in the first place?

So you’re saying legal action CAN be launched at any stage by a single member irrespective of what the other members think?

...

More to the point, why would the Board refuse to honor a veto imposed consistent with the requirements?

As I’ve said above, if the board is advised that to honour the veto is a breach of their fiduciary duty then they would likely have to refuse.

...

We are making assumptions about lawlessness that seem odd to me. And if the Board is willing to ignore its legal obligation to accept a properly imposed community veto, why shouldn’t the members be able to enforce their legal authority? If you are worried that one UA would claim that the community had vetoed a budget when that wasn’t what happened, any lawsuit could be pretty readily disposed of by affidavits from other UAs.

Not what I meant.

As I understand it, the membership model would mean that any member could go to court in respect to the Board’s interpretation of any bylaw, not just the fundamental ones. So, if one SO or AC member (or their shadow entity) believed that a budget line item was outside of ICANN’s mission then as a member that SO or AC could launch court proceedings in California for a ruling as to whether that was or was not the case.

Am I correct in my understanding?

Cheers,

Chris

...

On 23 May 2015, at 03:05 , Burr, Becky <<mailto:Becky.Burr@neustar.biz>Becky.Burr@neustar.biz> wrote:

I have added some questions and comments in blue italics below

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 / www.neustar.biz

From: Chris Disspain <<mailto:ceo@auda.org.au>ceo@auda.org.au> Date: Friday, May 22, 2015 at 5:29 AM To: "<mailto:Mathieu.Weill@afnic.fr>Mathieu.Weill@afnic.fr" <<mailto:Mathieu.Weill@afnic.fr>Mathieu.Weill@afnic.fr> Cc: Accountability Community <<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Question regarding UAs

Hi Mathieu,

See below. And thanks!

Cheers,

Chris

...

On 22 May 2015, at 20:16 , Mathieu Weill <<mailto:mathieu.weill@afnic.fr>mathieu.weill@afnic.fr> wrote:

Chris,

Thank you so much because I think this is a very useful discussion. I would try and reformulate to check if we are communicating before turning to lawyers or any further work :

1) The scenario to assess is the case where the community rejects a budget because the community would like Icann to expand its actions into something that the Community feels is within the Mission while the Board feels it is outside of Icann's Mission, as described in the Bylaws. The Board would then be "stuck" between the community and its perceived obligation to not mission creep.

Basically, our discussion is starting to look like a stress test of this particular scenario: what would the current accountability mechanism enable ? what enhancements or changes would be brought by the proposed accountability framework ?

Yes, I agree that this is, in effect a stress test. My view is that such a scenario under our current structures would be sorted out between us all.

...

2) It is clear to me that our initial report does NOT say that legal action could only be undertaken if all other remedies have been exhausted (I don't even think it would be legally feasible). Clearly this could not be mandatory in all circumstances, but I think you could take steps to encourage arbitration over resort to court if it really made sense to do that.

So, that means that that in my scenario the community could go straight to court at any point that the Board ‘refuses’ to act. I’m not saying that is necessarily ‘bad’ but it’s important to understand. Not sure I understand this. If the community vetoed a proposed budget, but the Board refused to honor that veto, the community could seek to have its legal rights enforced – either in court or through arbitration. But under a member/designator model, the Board would be violating its legal obligation to honor the community veto. Why would it do that?

...

3) You are asking clarification of several questions : * what the limited grounds are for a California Court to overturn an arbitration (IRP) decision ? (my own recollection of the IRP memos we received from counsel was : arbitration scope or procedure)

Not sure I understand this. I don’t think the courts in California currently have jurisdiction so I’m not sure that they can, today, involve themselves as you suggest. Confused here. If ICANN violated its fiduciary duties, breached a contractual obligation, or engaged in tortious conduct, a California court – along with lots of other courts – would have jurisdiction. With respect to fiduciary duties and contract breaches, California law would likely apply wherever the case was brought, though applicable law would vary in the case of tort claims. In the event the IRP became binding, a claimant could go to Court in California to force ICANN to honor the panel’s decision. Again, though, if the IRP decision was binding, ICANN would have a legal obligation to honor it, so why would it refuse to do so?

...

* whether the proposed membership model would enable each UA to initiate legal action against Icann irrespective of what other parts of the community think ? (my understanding is : yes. But I guess that today if NARALO felt a decision was causing them prejudice they could sue Icann as well, so maybe we should reframe the question into : would there be a significant increase of the risk for Icann to be sued ?)

I don’t know what the status of NARALO is (are they a legal entity) and I don’t know if they could in fact bring proceedings against ICANN. And if they could the question would be ‘about what could they sue?’. Obviously, a gTLD registry has a contract with ICANN and could therefore sue ICANN (and vice versa) in respect to the contract. But I don’t think they could sue in respect to ICANN’s bylaws generally. And neither I suspect could NARALO.

So, yes, the question;

...

would there be a significant increase of the risk for Icann to be sued ?

is a relevant one provided you and I are right and any member will be able to sue ICANN about any interpretation ICANN makes about its bylaws. Thinking about it, we should probably get clarity on all the areas that a member could sue on.

I am confused. If ICANN refuses to honor a community veto of a budget or bylaw change, one or more of the UAs/members could use the IRP or go to court. Why is that a problem, if the budget has been vetoed with the support of the broader community as required to veto in the first place? More to the point, why would the Board refuse to honor a veto imposed consistent with the requirements? We are making assumptions about lawlessness that seem odd to me. And if the Board is willing to ignore its legal obligation to accept a properly imposed community veto, why shouldn’t the members be able to enforce their legal authority? If you are worried that one UA would claim that the community had vetoed a budget when that wasn’t what happened, any lawsuit could be pretty readily disposed of by affidavits from other UAs.

...

Can you please confirm that we are on the same page here ?

Assuming you’re fine with the above the, yes, we are on the same page.

...

best Mathieu

Le 22/05/2015 08:47, Chris Disspain a écrit :

...

Mathieu,

You've asked a series of questions which I have thought about very carefully. I acknowledge that the scenario I suggest is unlikely but your questions have led me to a further question which I pose below my responses to yours.

- In your scenario the community would "mission creep". I am not clear how in our report the community would direct the Board to do X. Community powers as we have defined them are restricted to reject / review on budgets or bylaws. Could you clarify this part of the scenario ?

I do believe that it is feasible that the Board could refuse the follow a community veto on a budget item because the board believes to do so would be a breach of the Board’s fiduciary duties to act in the interests of ICANN in accordance with ICANN’s mission.

- If the Board refuses to act on the arbitrator findings, why would the community turn to California Court instead of recall the Board ?

They may well turn to the recall mechanism but would they HAVE TO. Is it anticipated that the resort to legal action would only be possible once ALL OTHER REMEDIES have been exhausted? In other words, in effect the only thing a court would ever be asked to do is to enforce the communities spill of the Board? Or is it perhaps anticipated that the community to resort to the court at any stage along the escalation process?

Given that there was a a binding arbitration decision directing Icann to do X, my understanding was that the court of California would have very limited grounds to turn the decision around. Is that not already addressing the concern of allowing a court of california to decide on what is or is not within Icann's mission ?

The key point is that irrespective of whether there are “limited grounds” for the court to reverse a decision or take a decision contrary to the views of the community,it could happen. The ultimate authority becomes the Californian legal system.

And finally, is it not the case today that a Court of California could make such a binding decision ?

I don’t believe so but stand to be corrected.

My question is an extension of the point I’ve made above about when the community can go to court.

Am I correct in my understanding that once we become a member based organisation, it would be open to any of the member UAs to use the court system to bring an action against ICANN. In other words if the ALAC UA (and I’m just using ALAC as an example) was concerned about ICANN’s interpretation of one of its non-fundamental by-laws then ALAC UA would have legal standing to bring an action in California irrespective of what other members think?

May I ask that we get legal clarification on this point please?

Cheers,

Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: <mailto:ceo@auda.org.au>ceo@auda.org.au | W: <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.auda.org.au_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=k40QcYrN1KaFaeNZfrsd0inmO_CPudQGxgLkAcJpI84&s=tgbw5jdvQjnbs273SFDGMfRb4NKfyuozXIaECldB7Rc&e=>www.auda.org.au

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...

On 21 May 2015, at 17:14 , Mathieu Weill <<mailto:mathieu.weill@afnic.fr>mathieu.weill@afnic.fr> wrote:

Dear Chris, All,

Many thanks for explaining the concern through this step by step scenario. This is taking us closer to a stress test approach, which is not only valuable but also mandatory for our group, as per our Charter. I understand your concern is (quoting your email) "handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission."

There is however something I do not understand in your "steps":

Le 21/05/2015 03:45, Chris Disspain a écrit :

...

Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms:

1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California.

I have four questions : - In your scenario the community would "mission creep". I am not clear how in our report the community would direct the Board to do X. Community powers as we have defined them are restricted to reject / review on budgets or bylaws. Could you clarify this part of the scenario ? - If the Board refuses to act on the arbitrator findings, why would the community turn to California Court instead of recall the Board ? - Given that there was a a binding arbitration decision directing Icann to do X, my understanding was that the court of California would have very limited grounds to turn the decision around. Is that not already addressing the concern of allowing a court of california to decide on what is or is not within Icann's mission ? - And finally, is it not the case today that a Court of California could make such a binding decision ?

Best Mathieu

...

As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.

Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.

If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.

Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.

Cheers,

Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: <mailto:ceo@auda.org.au>ceo@auda.org.au | W: <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.auda.org.au_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=k40QcYrN1KaFaeNZfrsd0inmO_CPudQGxgLkAcJpI84&s=tgbw5jdvQjnbs273SFDGMfRb4NKfyuozXIaECldB7Rc&e=>www.auda.org.au

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>On 21 May 2015, at 07:51 , Burr, Becky ><<mailto:Becky.Burr@neustar.biz>Becky.Burr@neustar.biz> wrote: > >The “enforceability" issue is not about >litigation at all, and it isn’t really >about whether the Board or some newly >invented group is more likely to get it >right. Rather, it’s about checks and >balances. Without the membership >structure, the revised bylaws that empower >the community to block certain actions, >for example, are by definition advisory – >they impose no legal obligation whatsoever >on the Board and staff. I don’t dispute >that the Board would have a compelling >interest in respecting community input, >but as a legal matter without the >membership structure, the Board would be >required to treat any community vote to >block, for example, as merely advisory and >would have an affirmative obligation to do >what it concludes is consistent with its >fiduciary duty. The membership model >affirmatively shifts some of that >fiduciary responsibility to the >community. It’s not a statement of who is >right or wrong, but who has >authority. Steve raises a reasonable >question about how the >members/unincorporated associations are >accountable to their respective >communities. But IMHO, the legitimate >questions and concerns in this debate are >getting obscured by polarizing language >and assertions that it’s inappropriate to express a particular point of view. > >The argument that there are no examples of >situations that did result or would have >resulted in the community acting as one >against an action or decision of the ICANN >Board.” The community has never had any >authority or tool to do so, so the fact >that it never has is irrelevant and the >assertion that it would not have is >speculation. I certainly would have tried >to get the community to overturn the >Board’s decision to abandon the >substantive standard for IRPs in favor of >the “good faith” test. As it >happens, none of the existing review and >redress mechanisms would have worked in >that case, and they probably wouldn’t work in the future either. > > > >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 / www.neustar.biz > >From: Steve DelBianco ><<mailto:sdelbianco@netchoice.org>sdelbianco@netchoice.org> >Date: Wednesday, May 20, 2015 at 12:37 PM >To: "Chartier, Mike S" ><<mailto:mike.s.chartier@intel.com>mike.s.chartier@intel.com>, >Steve Crocker ><<mailto:steve@shinkuro.com>steve@shinkuro. >com>, Keith Drazek <<mailto:kdrazek@verisign.com>kdrazek@verisign.com> >Cc: Accountability Community ><<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org> >Subject: Re: [CCWG-ACCT] Question regarding UAs > >I don’t think there’s any question that >the Board’s primary duty (not their only >duty) is to ICANN the Corporation. In >addition to Mike’s citation of ICANN >bylaws Section 7 (below), see ICANN’s Management Operating Principles (2008): >> >>"The third and perhaps most critical >>point of tension is between the >>accountability to the participating >>community to perform functions in keeping >>with the expectations of the community >>and the corporate and legal >>responsibilities of the Board to meet its fiduciary obligations.” >> >>Source: ICANN Accountability & >>Transparency Frameworks and Principles, >>Jan-2008, p.5, at >><https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system_files_files_acct-2Dtrans-2Dframeworks-2Dprinciples-2D10jan08-2Den.pdf&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=N94BFwt7XlN1luKY2YsAlg92HkXfJ8UfYuQCH-3B3bY&s=-nHIJ38MbHZo2QiXUiLPqBi6YeaesFEbRqTO3RL3Jew&e=>https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles-10jan08-en.pdf >> > >From: "Chartier, Mike S" >Date: Wednesday, May 20, 2015 at 9:56 AM >To: Steve Crocker, Keith Drazek >Cc: Accountability Cross Community >Subject: Re: [CCWG-ACCT] Question regarding UAs > >No comment on actual practice, but from a >textual basis (which is what matters now >since we are debating new text), I can’t >see any inconsistency between the following statements: >>“Directors shall serve as individuals who >>have the duty to act in what they >>reasonably believe are the best interests >>of ICANN and not as representatives of >>the entity that selected them, their >>employers, or any other organizations or constituencies.” >>“the ICANN Board, which has a fiduciary >>obligation to first serve the interests of the corporation,” >> > >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 Steve Crocker >Sent: Wednesday, May 20, 2015 9:47 AM >To: Drazek, Keith >Cc: Accountability Cross Community >Subject: Re: [CCWG-ACCT] Question regarding UAs > >I didn’t take it personally. I took it as >a factually inaccurate statement that >creates misunderstanding. Future boards >are bound by the same rules as the past >and current boards. The language you used >is taken by many as a basis for believing >there is a significant difference in >alignment toward public responsibility >between the ICANN Board and some newly >invented > grouping of community members. It >ain’t so and it’s inappropriate to suggest so. > >Steve > > >On May 20, 2015, at 9:39 AM, Drazek, Keith ><<mailto:kdrazek@verisign.com>kdrazek@verisign.com> wrote: >> >>Steve, >> >>With all due respect, I think you’re >>taking this too personally and/or making >>it too personal. This is not about the current ICANN Board. >> >>None of us know what future ICANN Boards >>will do, or what future ICANN Boards will >>permit ICANN’s management to do. Will >>future Boards always exercise appropriate >>oversight over management? Could there be >>instances where ICANN’s legal counsel >>advises a future Board to make a decision >>that is counter to the interests of the >>community to protect the financial interests of the corporation? >> >>I see the proposed community membership >>structure simply as a check on the power >>of the Board, nothing more. It’s not >>about “controlling” or replacing the >>Board. The Board has its legitimate >>function, but its decisions cannot be >>unchallengeable. The community must have >>the ability to tell the Board it got a >>decision wrong and to enforce the will of >>the multi-stakeholder community in >>rare/limited instances and based on a >>very high threshold of community agreement/consensus. >> >>I would certainly trust the proposed >>community members, representing their SOs >>and ACs, to be balanced, inclusive and >>trustworthy in protecting the interests >>of the overall community -- in their role >>as the aforementioned check on the powers of the Board. Not as a replacement. >> >>Would you trust a future Board of sixteen >>unknown individuals more than you trust >>the multi-stakeholder, bottom-up, >>consensus-based community and process? It appears so. >> >>I stand by and reaffirm my previous >>email. I hope my clarification helps. >> >>Sincerely, >> >>Keith >> >> >>From: Steve Crocker >>[<mailto:steve@shinkuro.com>mailto:steve@shinkuro.com] >>Sent: Wednesday, May 20, 2015 8:27 AM >>To: Drazek, Keith >>Cc: Stephen D. Crocker; Chris Disspain; >>Accountability Cross Community; >><mailto:mshears@cdt.org>mshears@cdt.org; >><mailto:egmorris1@toast.net>egmorris1@toast.net >>Subject: Re: [CCWG-ACCT] Question regarding UAs >> >> >>On May 20, 2015, at 7:44 AM, Drazek, >>Keith <<mailto:kdrazek@verisign.com>kdrazek@verisign.com> wrote: >> >> >> >>Hi Chris, >> >>I think there's a fundamental flaw in >>your assessment. You appear to be looking >>at this question through the lens of the >>past and present, where NTIA holds the >>enforcement function ("enforceability") >>through its ability to rebid and transfer >>the IANA functions contract if the ICANN >>Board and management acts >>inappropriately. That is the existing and >>necessary check on the Board's decision-making power. >> >>Without NTIA in its current role, the >>community MUST have the ability to check >>the Board's power, and the only way to >>secure that check is to create legal >>enforceability. Otherwise, the Board has >>ultimate authority, even if its decisions >>are inconsistent with the interests and >>desires of the community ICANN is supposed to serve. >> >>You are proposing a transfer of power >>from NTIA to the ICANN Board, which has a >>fiduciary obligation to first serve the >>interests of the corporation. >>Alternatively, proponents of legal >>enforceability are in favor of >>transferring final authority to ICANN's multi-stakeholder community. >> >>Keith, Edward and Edward, >> >>We have covered the point above several >>times and it’s long past time to stop >>throwing this half-trust around. Yes, >>ICANN is legally a corporation, and, yes, >>directors of a corporation have a duty to >>protect the corporation. But that >>generality has >>a >>far different meaning in a for profit >>corporation like Verisign than it does in >>a not-for-profit public benefit >>corporation like ICANN. The directors >>are obliged to pursue the purpose and >>mission stated in the incorporation >>papers and the bylaws. The directors >>serve the community, and we do so by >>exercising oversight over the corporation toward that end. >> >>There will always be differences of >>opinion about the particular details, but >>those sorts of differences of opinion >>will arise in *any* governance >>model. The prevailing assumption in much >>of the correspondence on this list is >>that the proposed members will somehow be >>more balanced, more inclusive and more >>trustworthy in protecting the interests >>of the overall community than the ICANN >>Board is. That’s simply false. And I think you know that it is. >> >>Please correct yourself and apologize. >> >>Thanks, >> >>Steve >> >> >> >> >> >> >> >>We should all be looking at this through >>the lens of the future, when NTIA no >>longer holds the tether and is only >>participating through the GAC. How do we, >>the multi-stakeholder community, ensure >>that ICANN and its future Boards and >>management are truly accountable once the NTIA back-stop is gone? >> >>The answer is to ensure the Board's >>decisions, in very limited areas, can be >>challenged and overturned by a >>significant >>majority >>of the community. We need to protect >>against the "catastrophic" scenario you >>referenced. According to our independent >>legal advisors, the best (and perhaps >>only) way to guarantee this is through legal enforceability. >> >>You asked, "Is addressing this most >>unlikely scenario worth the significant >>structural changes a membership model >>would require?" I believe the answer is yes. Not only worth it, but necessary. >> >>Regards, >>Keith >> >> >> >>On May 20, 2015, at 2:40 AM, Chris >>Disspain <<mailto:ceo@auda.org.au>ceo@auda.org.au> wrote: >>>For clarity, the last sentence of paragraph 8 below should read: >>> >>>"However, I cannot think of a single >>>example of a failure throughout the >>>history of ICANN that did result or >>>would have resulted in the community >>>acting as one against an action or decision of the ICANN Board." >>> >>> >>> >>> >>>Cheers, >>> >>>Chris >>> >>>>On 20 May 2015, at 16:13 , Chris >>>>Disspain <<mailto:ceo@auda.org.au>ceo@auda.org.au> wrote: >>>> >>>>Jordan, All, >>>> >>>>Thank you Jordan, for attempting to >>>>bring some focus to the current >>>>discussion about the UA model, >>>>membership structures and all of the related issues. >>>> >>>>First of all, I want to acknowledge >>>>that I concur with you on a number points. >>>> >>>>I agree that we need to develop a model >>>>that disrupts ICANN’s operation as >>>>little as possible. We can argue about >>>>how much disruption is either possible >>>>or preferable, but the principle is agreed. >>>> >>>>I also agree that levels of >>>>accountability are not “up to scratch” >>>>and, irrespective of the model we >>>>arrive at post-transition, these need >>>>to be improved. Many of the >>>>improvements proposed by the CCWG: to >>>>the IRP, reconsideration mechanisms and >>>>the role of the ombudsman, the >>>>introduction of fundamental bylaws and >>>>binding arbitration, and the >>>>empowerment of the community to spill the ICANN Board, are also supported. >>>> >>>>However, where I disagree with you is >>>>in respect to the absolute need for an >>>>additional mechanism, to supersede the >>>>current IANA functions contract, in >>>>order to ensure that the community can >>>>‘control’ the Board because it has the >>>>right to bring a legal action in a US court. >>>> >>>>I disagree with the characterisation >>>>that the purpose of the CCWG’s work is >>>>to wrest “control” from the ICANN Board >>>>and deliver it to the community. From >>>>your email, I gather that you are >>>>fundamentally tying the concept of >>>>control to “enforceability”, neither of >>>>which are goals for the current >>>>process. Rather, I believe we are >>>>aiming to deliver a structure where >>>>ICANN and its Board are held >>>>accountable to the community, via the number of improvements I mentioned above. >>>> >>>>The need to assert absolute “control” >>>>or enforceability could only arise in >>>>the most catastrophic of circumstances. >>>>If we assume a situation where proposed >>>>mechanisms for escalation, independent >>>>review, binding arbitration and direct >>>>instruction by the SOs and ACs are not >>>>acknowledged by ICANN, wouldn’t the >>>>entire multi-stakeholder model be >>>>irreparably broken? Is addressing this >>>>most unlikely scenario worth the >>>>significant structural changes a membership model would require? >>>> >>>>Further, you refer to a “long list” of >>>>community concerns about ICANN’s >>>>current operations. I wonder whether >>>>these concerns are actually held by >>>>individuals (or individual >>>>constituencies) on particular issues >>>>and have been aggregated in to a larger >>>>picture of overall community >>>>dissatisfaction? Concerns by distinct >>>>groups on particular topics can >>>>certainly be dealt with by the >>>>increased robustness proposed to >>>>ICANN’s bylaws and operations. However, >>>>I cannot think of a single example of a >>>>failure throughout the history of ICANN >>>>that did result or would have resulted >>>>in the community as one against an action or decision of the ICANN Board. >>>> >>>>To be clear – I am 100% supportive of >>>>improvements to accountability. I >>>>believe that the CCWG has initiated >>>>extremely useful work in identifying these mechanisms. >>>> >>>>I remain unconvinced regarding the >>>>argument that >>>>accountability=control=enforceability, >>>>and the subsequent recommendations of the CCWG that arise from this assumption. >>>> >>>> >>>>Cheers, >>>> >>>>Chris >>>> >>>>>On 20 May 2015, at 15:33 , Jordan >>>>>Carter <<mailto:jordan@internetnz.net.nz>jordan@internetnz.net.nz> wrote: >>>>> >>>>>We need legal persons to be members of ICANN. >>>>> >>>>>They can be individual humans or they can be organisations. >>>>> >>>>>UAs are the lightest touch, most >>>>>easily controlled, non-human form of person that can fit this mould. >>>>> >>>>>I do not understand the propensity of >>>>>parts of our community to >>>>>over-complicate things that look >>>>>reasonably >>>>>straight >>>>> forward from other points >>>>>of view. Has ICANN always been like >>>>>this? (Answers own question - it can't >>>>>have been, otherwise it would never be organised the way it is today....) >>>>> >>>>>cheers >>>>>Jordan >>>>> >>>>> >>>>>On 20 May 2015 at 17:21, Alan >>>>>Greenberg <<mailto:alan.greenberg@mcgill.ca>alan.greenberg@mcgill.ca> wrote: >>>>>Avri, I think that you are generally >>>>>correct. We are putting this entire >>>>>infrastructure in place because we >>>>>want to be able to take ICANN or the >>>>>Board to court if they do not follow >>>>>the rules. I tend to agree with the >>>>>auDA comment that if it ever gets to >>>>>that stage, we are REALLY in trouble, >>>>>and a simple court decision is not likelt to fix it. >>>>> >>>>>But that nothwithstanding, we >>>>>supposedly ned that UA because they >>>>>can take legal action. But if the UA >>>>>representatives >>>>>do not listen to the SO/AC. the SO/AC >>>>>cannot take that rep to court, because >>>>>the SO/AC has no legal persona. So we >>>>>are again left with a discontinuity >>>>>where something is largely >>>>>unenforceable and we have to take it >>>>>on faith that they will do the right thing. >>>>> >>>>>Of course, the UA reps and the Board >>>>>members we select are basically drawn >>>>>from the same pool, perhaps separated by a few years. >>>>> >>>>>The difference between a Board member >>>>>and a UA rep is the Board member has a >>>>>duty to the corporation, and the UA >>>>>rep can, in theory, be required to >>>>>take instruction from the SO/AC. But enforcing that theory may be the rub. >>>>> >>>>>Alan >>>>> >>>>> >>>>>At 20/05/2015 12:41 AM, Avri Doria wrote: >>>>>Hi, >>>>> >>>>>I think I understand the argument >>>>>about members becoming that to which >>>>>ICANN, and its Board, are responsible and accountable. From that >>>>>perspective it sounds really good. >>>>> >>>>>What I have having trouble >>>>>understanding is an accountability structure >>>>>were there is a discontinuity between >>>>>the SOAC and the UA. If each of >>>>>the Board designating SOAC were the UA, it think I would understand. >>>>>But I just do not see how the UA are accountable to the people and >>>>>organizations that participate in each of the SOAC. Yes, the SOAC >>>>>designates it UA representative, but >>>>>how is (s)electing one of these any >>>>>more accountable than (s)electing the >>>>>Board as we do now. Don't we just >>>>>move the perceived/possible >>>>>unaccountability down a layer in the hierarchy? >>>>> >>>>>I think I am as comfortable with >>>>>complexity as the next person. And I >>>>>understand how in computer science any problem can solved by adding >>>>>another layer of indirection, but in >>>>>this case the extra layer we are >>>>>creating does not seem to really be >>>>>accountable to anyone but itself, >>>>>except by (s)election procedures. >>>>> >>>>>I am sure I am missing some critical bit of understanding and hope >>>>>someone can explain the chain of accountability in the membership >>>>>model. I feel that we are still >>>>>hand-waving a bit in the explanations. >>>>>In a sense it seems as if we are >>>>>creating a 'council' that is omnipotent >>>>>in the powers it is given, except that they can somehow be replaced. >>>>> >>>>>Thanks and apologies for my persistent confusion. >>>>> >>>>>avri >>>>> >>>>> >>>>> >>>>>On 20-May-15 01:14, Jordan Carter wrote: >>>>> > Hi all >>>>> > >>>>> > This thread is useful to tease out >>>>> some of the questions and concerns >>>>> > and confusions with the UA model, and as rapporteur for the WP >>>>> > responsible for refining this part >>>>> of the proposal I am reading it avidly. >>>>> > >>>>> > I just want to take the opportunity >>>>> to remind us all why membership >>>>> > (or something analogous) is an >>>>> important aspect of the reforms we are >>>>> > proposing - no matter the precise details. >>>>> > >>>>> > At the moment without members, >>>>> ICANN is fundamentally controlled by >>>>> > the Board. The only external >>>>> constraint is the IANA functions contract >>>>> > with NTIA. The long list of >>>>> community concerns and examples detailed >>>>> > by our earlier work in this CCWG >>>>> shows that even with that constraint, >>>>> > accountability isn't up to scratch. >>>>> > >>>>> > We are working on a settlement without that NTIA contract. >>>>> > Accountability has to get better even *with* the contract. >>>>> > Fundamentally better, without it. >>>>> > >>>>> > Either we have a membership >>>>> structure or some other durable approach >>>>> > that firmly embeds the stewardship >>>>> of ICANN and the DNS in the ICANN >>>>> > community, or... we remain with Board control. >>>>> > >>>>> > Given ICANN's history, anyone who is advocating a continuation of >>>>> > Board control is arguing for a model that can't be suitably >>>>> > accountable, and that seems highly >>>>> likely to fail over time, with real >>>>> > risks to the security and stability of the DNS. >>>>> > >>>>> > A real, fundamental source of power over the company absent the >>>>> > contract *has* to be established. >>>>> The membership model is the most >>>>> > suitable one to achieve that that we have considered so far. >>>>> > >>>>> > So: we need to be creative and >>>>> thoughtful in how we make that model >>>>> > work in a fashion that disrupts >>>>> ICANN's general operation as little as >>>>> > possible. But the key there is "as >>>>> possible." Real change is needed >>>>> > and much refinement and comment is needed. >>>>> > >>>>> > If there are proposals to achieve >>>>> the same shift in control from ICANN >>>>> > the corporation to ICANN the >>>>> community, I hope they come through in >>>>> > the comment period. So far, none >>>>> have - but there are still two weeks >>>>> > of comments to go. >>>>> > >>>>> > cheers >>>>> > Jordan >>>>> > >>>>> > >>>>> > On 20 May 2015 at 10:45, Malcolm >>>>> Hutty <<mailto:malcolm@linx.net>malcolm@linx.net >>>>> > <mailto:malcolm@linx.net>> wrote: >>>>> > >>>>> > This whole thread seems to have massively overcomplicated the >>>>> > question. >>>>> > >>>>> > >>>>> > Unless I have missed something, >>>>> the only reason we need "members" >>>>> > is to >>>>> > stand as plaintiff-of-record in >>>>> a lawsuit against the ICANN Board >>>>> > complaining that the Board has >>>>> failed to adhere to the corporations >>>>> > bylaws. Such a lawsuit would in >>>>> reality be conducted by an SO or >>>>> > AC, but >>>>> > a person with legal personality >>>>> needs to act as plaintiff-of-record. >>>>> > >>>>> > Why not simply proceed, as Samantha suggested, with the SOACs' >>>>> > Chairs as >>>>> > the members of the corporation? >>>>> Could the Articles (or Bylaws, as >>>>> > appropriate) not simply identify >>>>> the SOACs' Chairs as the members, ex >>>>> > officio and pro tempore? >>>>> > >>>>> > An SOAC Chair that refused to >>>>> act as plaintiff-of-record when required >>>>> > to do so by his SOAC could >>>>> simply be replaced. Likewise a Chair that >>>>> > went rogue and initiated a lawsuit without their consent. >>>>> > >>>>> > You can't make the SOAC a member >>>>> without turning them into UAs, >>>>> > with all >>>>> > the attendent complexity. But I >>>>> don't see that there should be any >>>>> > such >>>>> > problem with designating the >>>>> chair of a SOAC, who will be a natural >>>>> > person, as a member of the >>>>> corporation; the fact that the SOAC is >>>>> > not a >>>>> > UA is then irrelevant. >>>>> > >>>>> > In the event that there were any >>>>> dispute as to whether a particular >>>>> > person is in truth an SOAC >>>>> Chair, this would surely be a simple >>>>> > preliminary matter of fact for >>>>> the court. It is surely beyond dispute >>>>> > that if the Articles designated >>>>> "Alan Greenberg" as the member, it >>>>> > would >>>>> > be a matter of fact as to whether or not the person before the >>>>> > court was >>>>> > indeed Alan Greenberg; surely it >>>>> is the same as to whether the person >>>>> > before the court is "the current >>>>> Chair of ALAC", if that should be >>>>> > what >>>>> > is specified in the Articles? >>>>> > >>>>> > Malcolm. >>>>> > >>>>> > -- >>>>> > Malcolm Hutty | tel: >>>>> <tel:%2B44%2020%207645%203523>+44 20 7645 3523 >>>>> > <<tel:%2B44%2020%207645%203523>tel:%2B44%2020%207645%203523> >>>>> > Head of Public Affairs | Read the LINX Public Affairs blog >>>>> > London Internet Exchange | >>>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=N94BFwt7XlN1luKY2YsAlg92HkXfJ8UfYuQCH-3B3bY&s=PujqDBGqGixKBOrunqLkoUHDthIag7v0xY8FdvW-Sx0&e=>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 >>>>> > >>>>> > >>>>> > _______________________________________________ >>>>> > Accountability-Cross-Community mailing list >>>>> > >>>>> <mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community@icann.org >>>>> > <mailto:Accountability-Cross-Community@icann.org> >>>>> > >>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=N94BFwt7XlN1luKY2YsAlg92HkXfJ8UfYuQCH-3B3bY&s=Q-eiGB-sv0V29BiD3kbPQqSJQp1CknEJTAoowRdEcME&e=>https://mm.icann.org/mailman/listinfo/accountability-cross-community >>>>> > >>>>> > >>>>> > >>>>> > >>>>> > -- >>>>> > Jordan Carter >>>>> > >>>>> > Chief Executive >>>>> > *InternetNZ* >>>>> > >>>>> > <tel:04%20495%202118>04 495 2118 >>>>> (office) | <tel:%2B64%2021%20442%20649>+64 21 442 649 (mob) >>>>> > >>>>> <mailto:jordan@internetnz.net.nz>jordan@internetnz.net.nz >>>>> <mailto:jordan@internetnz.net.nz> >>>>> > Skype: jordancarter >>>>> > >>>>> > /A better world through a better Internet / >>>>> > >>>>> > >>>>> > >>>>> > _______________________________________________ >>>>> > 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 >>>>> >>>>> >>>>>--- >>>>>This email has been checked for viruses by Avast antivirus software. >>>>><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.avast.com_&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=N94BFwt7XlN1luKY2YsAlg92HkXfJ8UfYuQCH-3B3bY&s=xbjKy9osurgbceJkE1Q_MWeBGs9WL5ueoUj8U9f2Djc&e=>http://www.avast.com >>>>> >>>>>_______________________________________________ >>>>>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 >>>>> >>>>>_______________________________________________ >>>>>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 >>>>> >>>>> >>>>> >>>>>-- >>>>> >>>>>Jordan Carter >>>>> >>>>>Chief Executive >>>>>InternetNZ >>>>> >>>>>04 495 2118 (office) | +64 21 442 649 (mob) >>>>><mailto:jordan@internetnz.net.nz>jordan@internetnz.net.nz >>>>>Skype: jordancarter >>>>> >>>>>A better world through a better Internet >>>>>_______________________________________________ >>>>>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 >>>> >>>>_______________________________________________ >>>>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 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