Re: [CCWG-ACCT] Regarding members
While I still have issuess with the shell UA concept and believe the SOAC would need to become UA (which I understand is a problem for some stakeholders), I think this is a good explanation of issues with using natural persons as members. avri Sent from a T-Mobile 4G LTE Device <div>-------- Original message --------</div><div>From: Edward Morris <egmorris1@toast.net> </div><div>Date:05/24/2015 1:19 AM (GMT-05:00) </div><div>To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> </div><div>Cc: accountability-cross-community@icann.org </div><div>Subject: Re: [CCWG-ACCT] Regarding members </div><div> </div>Although something we certainly should explore and consider I would proceed very cautiously in anointing natural persons as members. My concern has to do more with statutory rights that come with membership than anything we're proposing for internal governance. Although perhaps initially easier to conceptualize organizationally, the use of some rights granted may be less easy to understand or implement under a natural person model. Do we want to rest in an individual the right and / or obligation for filing requests for documents or for litigation under the derivative lawsuit powers granted members? Do we want a situation where lawsuits would be Greenberg v. ICANN rather than ALAC v. ICANN, for example? Do we really intend to force community members, SG's or Constituencies for example, to have to go through a natural person to obtain access to ICANN corporate records as provided for in the California Corporations Code? My initial impulse would be to suggest that the shell U A model would be a better vehicle in which to actually use the powers granted members although the natural person model might be a bit easier to understand at conception. I look forward to input from independent counsel and for further discussion on this matter. Sent from my iPad
On May 23, 2015, at 11:41 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello All,
I have been reading the various discussions on the topic of using members as a way of holding ICANN accountable.
Speaking personally - I think the concept of members can work.
My advice though would be to try to keep it simple. The idea of creating separate unincorporated versions of the GAC, ccNSO etc - just adds complexity that makes it more and more difficult for outsiders to really understand how ICANN works. It already takes years to understand how the GNSO or ALAC processes work.
From my personal perspective - we should just allow the SOs and ACs to appoint their chairs/vice-chairs or nominated representatives as "members" of ICANN for a term that matches the term of their office. This seems to require minimal change in ICANN's existing structure.
Each individual that is selected to become a member of ICANN could then sign an agreement with ICANN that ensures that ICANN provides some indemnity for the member, provided that the member operates in accordance with the direction of their SO and AC through a properly constituted motion according to the procedures of that group. Ie the member would have a very narrow role to basically convey the decision of the respective SO and AC.
Regards, Bruce Tonkin
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Dear All Dear Avri To whom these natural persons are accountable? Kavouss Sent from my iPhone
On 24 May 2015, at 07:51, avri doria <avri@ella.com> wrote:
While I still have issuess with the shell UA concept and believe the SOAC would need to become UA (which I understand is a problem for some stakeholders), I think this is a good explanation of issues with using natural persons as members.
avri
Sent from a T-Mobile 4G LTE Device
-------- Original message -------- From: Edward Morris <egmorris1@toast.net> Date:05/24/2015 1:19 AM (GMT-05:00) To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Regarding members
Although something we certainly should explore and consider I would proceed very cautiously in anointing natural persons as members. My concern has to do more with statutory rights that come with membership than anything we're proposing for internal governance. Although perhaps initially easier to conceptualize organizationally, the use of some rights granted may be less easy to understand or implement under a natural person model. Do we want to rest in an individual the right and / or obligation for filing requests for documents or for litigation under the derivative lawsuit powers granted members? Do we want a situation where lawsuits would be Greenberg v. ICANN rather than ALAC v. ICANN, for example? Do we really intend to force community members, SG's or Constituencies for example, to have to go through a natural person to obtain access to ICANN corporate records as provided for in the California Corporations Code? My initial impulse would be to suggest that the shell U A model would be a better vehicle in which to actually use the powers granted members although the natural person model might be a bit easier to understand at conception. I look forward to input from independent counsel and for further discussion on this matter.
Sent from my iPad
On May 23, 2015, at 11:41 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello All,
I have been reading the various discussions on the topic of using members as a way of holding ICANN accountable.
Speaking personally - I think the concept of members can work.
My advice though would be to try to keep it simple. The idea of creating separate unincorporated versions of the GAC, ccNSO etc - just adds complexity that makes it more and more difficult for outsiders to really understand how ICANN works. It already takes years to understand how the GNSO or ALAC processes work.
From my personal perspective - we should just allow the SOs and ACs to appoint their chairs/vice-chairs or nominated representatives as "members" of ICANN for a term that matches the term of their office. This seems to require minimal change in ICANN's existing structure.
Each individual that is selected to become a member of ICANN could then sign an agreement with ICANN that ensures that ICANN provides some indemnity for the member, provided that the member operates in accordance with the direction of their SO and AC through a properly constituted motion according to the procedures of that group. Ie the member would have a very narrow role to basically convey the decision of the respective SO and AC.
Regards, Bruce Tonkin
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Dear Kavouss, If the members were SOAC chairs ex officio, they would be accountable to the SOACs, at whose pleasure and subject to whose rules they serve. Malcolm
On 24 May 2015, at 08:09, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear All Dear Avri To whom these natural persons are accountable? Kavouss
Sent from my iPhone
On 24 May 2015, at 07:51, avri doria <avri@ella.com> wrote:
While I still have issuess with the shell UA concept and believe the SOAC would need to become UA (which I understand is a problem for some stakeholders), I think this is a good explanation of issues with using natural persons as members.
avri
Sent from a T-Mobile 4G LTE Device
-------- Original message -------- From: Edward Morris <egmorris1@toast.net> Date:05/24/2015 1:19 AM (GMT-05:00) To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Regarding members
Although something we certainly should explore and consider I would proceed very cautiously in anointing natural persons as members. My concern has to do more with statutory rights that come with membership than anything we're proposing for internal governance. Although perhaps initially easier to conceptualize organizationally, the use of some rights granted may be less easy to understand or implement under a natural person model. Do we want to rest in an individual the right and / or obligation for filing requests for documents or for litigation under the derivative lawsuit powers granted members? Do we want a situation where lawsuits would be Greenberg v. ICANN rather than ALAC v. ICANN, for example? Do we really intend to force community members, SG's or Constituencies for example, to have to go through a natural person to obtain access to ICANN corporate records as provided for in the California Corporations Code? My initial impulse would be to suggest that the shell U A model would be a better vehicle in which to actually use the powers granted members although the natural person model might be a bit easier to understand at conception. I look forward to input from independent counsel and for further discussion on this matter.
Sent from my iPad
On May 23, 2015, at 11:41 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello All,
I have been reading the various discussions on the topic of using members as a way of holding ICANN accountable.
Speaking personally - I think the concept of members can work.
My advice though would be to try to keep it simple. The idea of creating separate unincorporated versions of the GAC, ccNSO etc - just adds complexity that makes it more and more difficult for outsiders to really understand how ICANN works. It already takes years to understand how the GNSO or ALAC processes work.
From my personal perspective - we should just allow the SOs and ACs to appoint their chairs/vice-chairs or nominated representatives as "members" of ICANN for a term that matches the term of their office. This seems to require minimal change in ICANN's existing structure.
Each individual that is selected to become a member of ICANN could then sign an agreement with ICANN that ensures that ICANN provides some indemnity for the member, provided that the member operates in accordance with the direction of their SO and AC through a properly constituted motion according to the procedures of that group. Ie the member would have a very narrow role to basically convey the decision of the respective SO and AC.
Regards, Bruce Tonkin
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Dear Malcolm What are those terns and conditions as well as applicable rules? I imagine all those discussed will no longer applicable since every SO and AC need to develop their respective accountability and if those natural persons do not Apply the rules and do not act Properly , they should be recalled and fir that new rules and procedure are required . Tks Kavouss Sent from my iPhone
On 24 May 2015, at 10:09, Malcolm Hutty <malcolm@linx.net> wrote:
Dear Kavouss,
If the members were SOAC chairs ex officio, they would be accountable to the SOACs, at whose pleasure and subject to whose rules they serve.
Malcolm
On 24 May 2015, at 08:09, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear All Dear Avri To whom these natural persons are accountable? Kavouss
Sent from my iPhone
On 24 May 2015, at 07:51, avri doria <avri@ella.com> wrote:
While I still have issuess with the shell UA concept and believe the SOAC would need to become UA (which I understand is a problem for some stakeholders), I think this is a good explanation of issues with using natural persons as members.
avri
Sent from a T-Mobile 4G LTE Device
-------- Original message -------- From: Edward Morris <egmorris1@toast.net> Date:05/24/2015 1:19 AM (GMT-05:00) To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Regarding members
Although something we certainly should explore and consider I would proceed very cautiously in anointing natural persons as members. My concern has to do more with statutory rights that come with membership than anything we're proposing for internal governance. Although perhaps initially easier to conceptualize organizationally, the use of some rights granted may be less easy to understand or implement under a natural person model. Do we want to rest in an individual the right and / or obligation for filing requests for documents or for litigation under the derivative lawsuit powers granted members? Do we want a situation where lawsuits would be Greenberg v. ICANN rather than ALAC v. ICANN, for example? Do we really intend to force community members, SG's or Constituencies for example, to have to go through a natural person to obtain access to ICANN corporate records as provided for in the California Corporations Code? My initial impulse would be to suggest that the shell U A model would be a better vehicle in which to actually use the powers granted members although the natural person model might be a bit easier to understand at conception. I look forward to input from independent counsel and for further discussion on this matter.
Sent from my iPad
On May 23, 2015, at 11:41 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello All,
I have been reading the various discussions on the topic of using members as a way of holding ICANN accountable.
Speaking personally - I think the concept of members can work.
My advice though would be to try to keep it simple. The idea of creating separate unincorporated versions of the GAC, ccNSO etc - just adds complexity that makes it more and more difficult for outsiders to really understand how ICANN works. It already takes years to understand how the GNSO or ALAC processes work.
From my personal perspective - we should just allow the SOs and ACs to appoint their chairs/vice-chairs or nominated representatives as "members" of ICANN for a term that matches the term of their office. This seems to require minimal change in ICANN's existing structure.
Each individual that is selected to become a member of ICANN could then sign an agreement with ICANN that ensures that ICANN provides some indemnity for the member, provided that the member operates in accordance with the direction of their SO and AC through a properly constituted motion according to the procedures of that group. Ie the member would have a very narrow role to basically convey the decision of the respective SO and AC.
Regards, Bruce Tonkin
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On 24/05/2015 09:29, Kavouss Arasteh wrote:
Dear Malcolm What are those terns and conditions as well as applicable rules?
The SOACs make their own rules. Unless a SOAC creates a rule to the contrary, a chair can be dismissed at will be a SOAC. This makes them completely accountable to the SOAC. That said, I think worrying about the misuse of the power of membership is misplaced. As I understand it, the only powers that members have are i) to go to court alleging that ICANN has not followed its own Bylaws; and ii) to inspect a few formal documents that the company is required to have by law. Is there anything else of which I'm unaware? I can't see any reason to worry about excessive or inappropriate use of such powers. Courts are familiar with frivolous litigation, and prepared to suppress and sanction it - nor could we immunise ICANN against being sued by anybody in the world on other grounds, even if we tried. If this is not a worry, and if there are no other relevant powers of which I'm unaware, there is an even simpler option that perhaps we should consider: that the members of ICANN can be anybody in the world who applies to become a member. This would resolve one of the problems with having part of "the community" as members: that they may decline to go to court when they ought to. Personally, I think that Chris' scenario of a member going to court to try to force ICANN to act in a way the Board deems to be outside ICANN's powers is pretty fanciful. Such a lawsuit would be doomed to failure: no court will order a corporation to act in a particular way merely because a member asks it, even if the corporation had erred in believing itself precluded from acting in that way. But a much more realistic scenario is that of a member going to court to restrain the ICANN from acting in a way the Board consider within ICANN's powers, but that the member considers outside scope. A court could rule on whether a given action is outside a corporation's powers, and if it finds that it is, order the corporation to desist. However, there is a problem: if the Board is acting outside ICANN's scope, quite likely this will not be a rogue Board acting in defiance of the community, but rather a Board acting with the full support of the SOACs: a "rogue community" asking ICANN to act outside its proper scope. Who then is to restrain them? Having a broad membership would address this problem. So I ask this group, what (if any) problems might be caused by such an option? Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Dear Malcolm Tks again I hope/ wish it would as simple as you mentioned, However, it is dangerous to delegate all such authority to one person. In case of more than one , how decision will be made . In case of majority , would the community be able to dismiss all even the minority one? In the interval between meeting how community will act? Kavouss Sent from my iPhone
On 24 May 2015, at 12:17, Malcolm Hutty <malcolm@linx.net> wrote:
On 24/05/2015 09:29, Kavouss Arasteh wrote: Dear Malcolm What are those terns and conditions as well as applicable rules?
The SOACs make their own rules. Unless a SOAC creates a rule to the contrary, a chair can be dismissed at will be a SOAC. This makes them completely accountable to the SOAC.
That said, I think worrying about the misuse of the power of membership is misplaced.
As I understand it, the only powers that members have are i) to go to court alleging that ICANN has not followed its own Bylaws; and ii) to inspect a few formal documents that the company is required to have by law.
Is there anything else of which I'm unaware?
I can't see any reason to worry about excessive or inappropriate use of such powers. Courts are familiar with frivolous litigation, and prepared to suppress and sanction it - nor could we immunise ICANN against being sued by anybody in the world on other grounds, even if we tried.
If this is not a worry, and if there are no other relevant powers of which I'm unaware, there is an even simpler option that perhaps we should consider: that the members of ICANN can be anybody in the world who applies to become a member.
This would resolve one of the problems with having part of "the community" as members: that they may decline to go to court when they ought to.
Personally, I think that Chris' scenario of a member going to court to try to force ICANN to act in a way the Board deems to be outside ICANN's powers is pretty fanciful. Such a lawsuit would be doomed to failure: no court will order a corporation to act in a particular way merely because a member asks it, even if the corporation had erred in believing itself precluded from acting in that way.
But a much more realistic scenario is that of a member going to court to restrain the ICANN from acting in a way the Board consider within ICANN's powers, but that the member considers outside scope. A court could rule on whether a given action is outside a corporation's powers, and if it finds that it is, order the corporation to desist.
However, there is a problem: if the Board is acting outside ICANN's scope, quite likely this will not be a rogue Board acting in defiance of the community, but rather a Board acting with the full support of the SOACs: a "rogue community" asking ICANN to act outside its proper scope. Who then is to restrain them?
Having a broad membership would address this problem. So I ask this group, what (if any) problems might be caused by such an option?
Malcolm.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Two points: 1. The SO/AC could well delegate multiple people. That is why we have suggested a weight of 5 for SO/ACs. In the case of the ALAC, it could well be one person per region (perhaps the five members of the ALAC Leadership Team (ALT) which is regionally balanced). 2. I cannot speak to other groups, but the ALAC has specific and very clear rules for removing its Chair, any member of the ALT, or in fact any appointee to any position. See <http://tinyurl.com/ALAC-RoP-2013-04>http://tinyurl.com/ALAC-RoP-2013-04, sections 20 and 22. If we were to go the way of specific people being ICANN Members, we would likely add explicit provisions for this appointment as well. Alan At 24/05/2015 09:19 AM, Kavouss Arasteh wrote:
Dear Malcolm Tks again I hope/ wish it would as simple as you mentioned, However, it is dangerous to delegate all such authority to one person. In case of more than one , how decision will be made . In case of majority , would the community be able to dismiss all even the minority one? In the interval between meeting how community will act? Kavouss
Sent from my iPhone
On 24 May 2015, at 12:17, Malcolm Hutty <malcolm@linx.net> wrote:
On 24/05/2015 09:29, Kavouss Arasteh wrote: Dear Malcolm What are those terns and conditions as well as applicable rules?
The SOACs make their own rules. Unless a SOAC creates a rule to the contrary, a chair can be dismissed at will be a SOAC. This makes them completely accountable to the SOAC.
That said, I think worrying about the misuse of the power of membership is misplaced.
As I understand it, the only powers that members have are i) to go to court alleging that ICANN has not followed its own Bylaws; and ii) to inspect a few formal documents that the company is required to have by law.
Is there anything else of which I'm unaware?
I can't see any reason to worry about excessive or inappropriate use of such powers. Courts are familiar with frivolous litigation, and prepared to suppress and sanction it - nor could we immunise ICANN against being sued by anybody in the world on other grounds, even if we tried.
If this is not a worry, and if there are no other relevant powers of which I'm unaware, there is an even simpler option that perhaps we should consider: that the members of ICANN can be anybody in the world who applies to become a member.
This would resolve one of the problems with having part of "the community" as members: that they may decline to go to court when they ought to.
Personally, I think that Chris' scenario of a member going to court to try to force ICANN to act in a way the Board deems to be outside ICANN's powers is pretty fanciful. Such a lawsuit would be doomed to failure: no court will order a corporation to act in a particular way merely because a member asks it, even if the corporation had erred in believing itself precluded from acting in that way.
But a much more realistic scenario is that of a member going to court to restrain the ICANN from acting in a way the Board consider within ICANN's powers, but that the member considers outside scope. A court could rule on whether a given action is outside a corporation's powers, and if it finds that it is, order the corporation to desist.
However, there is a problem: if the Board is acting outside ICANN's scope, quite likely this will not be a rogue Board acting in defiance of the community, but rather a Board acting with the full support of the SOACs: a "rogue community" asking ICANN to act outside its proper scope. Who then is to restrain them?
Having a broad membership would address this problem. So I ask this group, what (if any) problems might be caused by such an option?
Malcolm.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
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Alan Tks for explanation You did not address my last point, in case of decision making , say 5 appointees by majority and disagreement of community for the decision made followed by dismissal, all 5 would be dismissed or only those who voted for that contested decision? Tks Kavouss Sent from my iPhone
On 24 May 2015, at 17:47, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
Two points:
1. The SO/AC could well delegate multiple people. That is why we have suggested a weight of 5 for SO/ACs. In the case of the ALAC, it could well be one person per region (perhaps the five members of the ALAC Leadership Team (ALT) which is regionally balanced).
2. I cannot speak to other groups, but the ALAC has specific and very clear rules for removing its Chair, any member of the ALT, or in fact any appointee to any position. See http://tinyurl.com/ALAC-RoP-2013-04, sections 20 and 22. If we were to go the way of specific people being ICANN Members, we would likely add explicit provisions for this appointment as well.
Alan
At 24/05/2015 09:19 AM, Kavouss Arasteh wrote:
Dear Malcolm Tks again I hope/ wish it would as simple as you mentioned, However, it is dangerous to delegate all such authority to one person. In case of more than one , how decision will be made . In case of majority , would the community be able to dismiss all even the minority one? In the interval between meeting how community will act? Kavouss
Sent from my iPhone
On 24 May 2015, at 12:17, Malcolm Hutty <malcolm@linx.net> wrote:
On 24/05/2015 09:29, Kavouss Arasteh wrote: Dear Malcolm What are those terns and conditions as well as applicable rules?
The SOACs make their own rules. Unless a SOAC creates a rule to the contrary, a chair can be dismissed at will be a SOAC. This makes them completely accountable to the SOAC.
That said, I think worrying about the misuse of the power of membership is misplaced.
As I understand it, the only powers that members have are i) to go to court alleging that ICANN has not followed its own Bylaws; and ii) to inspect a few formal documents that the company is required to have by law.
Is there anything else of which I'm unaware?
I can't see any reason to worry about excessive or inappropriate use of such powers. Courts are familiar with frivolous litigation, and prepared to suppress and sanction it - nor could we immunise ICANN against being sued by anybody in the world on other grounds, even if we tried.
If this is not a worry, and if there are no other relevant powers of which I'm unaware, there is an even simpler option that perhaps we should consider: that the members of ICANN can be anybody in the world who applies to become a member.
This would resolve one of the problems with having part of "the community" as members: that they may decline to go to court when they ought to.
Personally, I think that Chris' scenario of a member going to court to try to force ICANN to act in a way the Board deems to be outside ICANN's powers is pretty fanciful. Such a lawsuit would be doomed to failure: no court will order a corporation to act in a particular way merely because a member asks it, even if the corporation had erred in believing itself precluded from acting in that way.
But a much more realistic scenario is that of a member going to court to restrain the ICANN from acting in a way the Board consider within ICANN's powers, but that the member considers outside scope. A court could rule on whether a given action is outside a corporation's powers, and if it finds that it is, order the corporation to desist.
However, there is a problem: if the Board is acting outside ICANN's scope, quite likely this will not be a rogue Board acting in defiance of the community, but rather a Board acting with the full support of the SOACs: a "rogue community" asking ICANN to act outside its proper scope. Who then is to restrain them?
Having a broad membership would address this problem. So I ask this group, what (if any) problems might be caused by such an option?
Malcolm.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
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Kavouss, We obviously have no specific rules for "ICANN Members" since that position does not currently exist. For all other appointments, we can recall on a person by person basis and I would expect that to not change if we enact specific rules for ICANN Members. Of course, that is just my expectation and cannot control the outcome, but I am not sure why we would do all or nothing. I do note that elsewhere in our rules, we require people appointed to represent us to, where possible and practical, to consult the ALAC on their position on a given topic, and to follow such advice if given. Alan At 24/05/2015 01:27 PM, Kavouss Arasteh wrote:
Alan Tks for explanation You did not address my last point, in case of decision making , say 5 appointees by majority and disagreement of community for the decision made followed by dismissal, all 5 would be dismissed or only those who voted for that contested decision? Tks Kavouss
Sent from my iPhone
On 24 May 2015, at 17:47, Alan Greenberg <<mailto:alan.greenberg@mcgill.ca>alan.greenberg@mcgill.ca> wrote:
Two points:
1. The SO/AC could well delegate multiple people. That is why we have suggested a weight of 5 for SO/ACs. In the case of the ALAC, it could well be one person per region (perhaps the five members of the ALAC Leadership Team (ALT) which is regionally balanced).
2. I cannot speak to other groups, but the ALAC has specific and very clear rules for removing its Chair, any member of the ALT, or in fact any appointee to any position. See <http://tinyurl.com/ALAC-RoP-2013-04>http://tinyurl.com/ALAC-RoP-2013-04, sections 20 and 22. If we were to go the way of specific people being ICANN Members, we would likely add explicit provisions for this appointment as well.
Alan
At 24/05/2015 09:19 AM, Kavouss Arasteh wrote:
Dear Malcolm Tks again I hope/ wish it would as simple as you mentioned, However, it is dangerous to delegate all such authority to one person. In case of more than one , how decision will be made . In case of majority , would the community be able to dismiss all even the minority one? In the interval between meeting how community will act? Kavouss
Sent from my iPhone
On 24 May 2015, at 12:17, Malcolm Hutty <<mailto:malcolm@linx.net>malcolm@linx.net> wrote:
On 24/05/2015 09:29, Kavouss Arasteh wrote: Dear Malcolm What are those terns and conditions as well as applicable rules?
The SOACs make their own rules. Unless a SOAC creates a rule to the contrary, a chair can be dismissed at will be a SOAC. This makes them completely accountable to the SOAC.
That said, I think worrying about the misuse of the power of membership is misplaced.
As I understand it, the only powers that members have are i) to go to court alleging that ICANN has not followed its own Bylaws; and ii) to inspect a few formal documents that the company is required to have by law.
Is there anything else of which I'm unaware?
I can't see any reason to worry about excessive or inappropriate use of such powers. Courts are familiar with frivolous litigation, and prepared to suppress and sanction it - nor could we immunise ICANN against being sued by anybody in the world on other grounds, even if we tried.
If this is not a worry, and if there are no other relevant powers of which I'm unaware, there is an even simpler option that perhaps we should consider: that the members of ICANN can be anybody in the world who applies to become a member.
This would resolve one of the problems with having part of "the community" as members: that they may decline to go to court when they ought to.
Personally, I think that Chris' scenario of a member going to court to try to force ICANN to act in a way the Board deems to be outside ICANN's powers is pretty fanciful. Such a lawsuit would be doomed to failure: no court will order a corporation to act in a particular way merely because a member asks it, even if the corporation had erred in believing itself precluded from acting in that way.
But a much more realistic scenario is that of a member going to court to restrain the ICANN from acting in a way the Board consider within ICANN's powers, but that the member considers outside scope. A court could rule on whether a given action is outside a corporation's powers, and if it finds that it is, order the corporation to desist.
However, there is a problem: if the Board is acting outside ICANN's scope, quite likely this will not be a rogue Board acting in defiance of the community, but rather a Board acting with the full support of the SOACs: a "rogue community" asking ICANN to act outside its proper scope. Who then is to restrain them?
Having a broad membership would address this problem. So I ask this group, what (if any) problems might be caused by such an option?
Malcolm.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
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Alan,Leon Tks Still I am not sure the workability of empowering the community to exercise their rights on an accountability which is dependant on another accountability . I suspect that the very objectives of what we have discussed for months may not be acheived. Let ius hear from others .Anyhow thank you again and thanks Malcolm. Bruce, Chris ,,,, and other contributing to find a more simpler way how to create a member mofdel without a real need to UA which I confess would be legally complex to establish and to implement Let us also asking LEON TO SEEK ADVICE FROM OUR LEGAL ADVISER. Regards Kavouss 2015-05-24 19:36 GMT+02:00 Alan Greenberg <alan.greenberg@mcgill.ca>:
Kavouss,
We obviously have no specific rules for "ICANN Members" since that position does not currently exist. For all other appointments, we can recall on a person by person basis and I would expect that to not change if we enact specific rules for ICANN Members. Of course, that is just my expectation and cannot control the outcome, but I am not sure why we would do all or nothing.
I do note that elsewhere in our rules, we require people appointed to represent us to, where possible and practical, to consult the ALAC on their position on a given topic, and to follow such advice if given.
Alan
At 24/05/2015 01:27 PM, Kavouss Arasteh wrote:
Alan Tks for explanation You did not address my last point, in case of decision making , say 5 appointees by majority and disagreement of community for the decision made followed by dismissal, all 5 would be dismissed or only those who voted for that contested decision? Tks Kavouss
Sent from my iPhone
On 24 May 2015, at 17:47, Alan Greenberg <alan.greenberg@mcgill.ca > wrote:
Two points:
1. The SO/AC could well delegate multiple people. That is why we have suggested a weight of 5 for SO/ACs. In the case of the ALAC, it could well be one person per region (perhaps the five members of the ALAC Leadership Team (ALT) which is regionally balanced).
2. I cannot speak to other groups, but the ALAC has specific and very clear rules for removing its Chair, any member of the ALT, or in fact any appointee to any position. See http://tinyurl.com/ALAC-RoP-2013-04, sections 20 and 22. If we were to go the way of specific people being ICANN Members, we would likely add explicit provisions for this appointment as well.
Alan
At 24/05/2015 09:19 AM, Kavouss Arasteh wrote:
Dear Malcolm Tks again I hope/ wish it would as simple as you mentioned, However, it is dangerous to delegate all such authority to one person. In case of more than one , how decision will be made . In case of majority , would the community be able to dismiss all even the minority one? In the interval between meeting how community will act? Kavouss
Sent from my iPhone
On 24 May 2015, at 12:17, Malcolm Hutty <malcolm@linx.net> wrote:
On 24/05/2015 09:29, Kavouss Arasteh wrote: Dear Malcolm What are those terns and conditions as well as applicable rules?
The SOACs make their own rules. Unless a SOAC creates a rule to the contrary, a chair can be dismissed at will be a SOAC. This makes them completely accountable to the SOAC.
That said, I think worrying about the misuse of the power of membership is misplaced.
As I understand it, the only powers that members have are i) to go to court alleging that ICANN has not followed its own Bylaws; and ii) to inspect a few formal documents that the company is required to have by law.
Is there anything else of which I'm unaware?
I can't see any reason to worry about excessive or inappropriate use of such powers. Courts are familiar with frivolous litigation, and prepared to suppress and sanction it - nor could we immunise ICANN against being sued by anybody in the world on other grounds, even if we tried.
If this is not a worry, and if there are no other relevant powers of which I'm unaware, there is an even simpler option that perhaps we should consider: that the members of ICANN can be anybody in the world who applies to become a member.
This would resolve one of the problems with having part of "the community" as members: that they may decline to go to court when they ought to.
Personally, I think that Chris' scenario of a member going to court to try to force ICANN to act in a way the Board deems to be outside ICANN's powers is pretty fanciful. Such a lawsuit would be doomed to failure: no court will order a corporation to act in a particular way merely because a member asks it, even if the corporation had erred in believing itself precluded from acting in that way.
But a much more realistic scenario is that of a member going to court to restrain the ICANN from acting in a way the Board consider within ICANN's powers, but that the member considers outside scope. A court could rule on whether a given action is outside a corporation's powers, and if it finds that it is, order the corporation to desist.
However, there is a problem: if the Board is acting outside ICANN's scope, quite likely this will not be a rogue Board acting in defiance of the community, but rather a Board acting with the full support of the SOACs: a "rogue community" asking ICANN to act outside its proper scope. Who then is to restrain them?
Having a broad membership would address this problem. So I ask this group, what (if any) problems might be caused by such an option?
Malcolm.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
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Dear All Dear Avri Pls kindly read the legal view of Sidley to ensure that without UA natural persons could become members . Pls also indicate those who have problem to establish UA . I am not partisan of UA but just to understand the situation Moreover , if we empower chairs and vice chairs how we ensure their accountability and avoid misuse of their power. Does such approach not creating an unhealthy and political environment at SO /AC ? What is the legal opinion if Sidley on that Kavouss Sent from my iPhone
On 24 May 2015, at 07:51, avri doria <avri@ella.com> wrote:
While I still have issuess with the shell UA concept and believe the SOAC would need to become UA (which I understand is a problem for some stakeholders), I think this is a good explanation of issues with using natural persons as members.
avri
Sent from a T-Mobile 4G LTE Device
-------- Original message -------- From: Edward Morris <egmorris1@toast.net> Date:05/24/2015 1:19 AM (GMT-05:00) To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Regarding members
Although something we certainly should explore and consider I would proceed very cautiously in anointing natural persons as members. My concern has to do more with statutory rights that come with membership than anything we're proposing for internal governance. Although perhaps initially easier to conceptualize organizationally, the use of some rights granted may be less easy to understand or implement under a natural person model. Do we want to rest in an individual the right and / or obligation for filing requests for documents or for litigation under the derivative lawsuit powers granted members? Do we want a situation where lawsuits would be Greenberg v. ICANN rather than ALAC v. ICANN, for example? Do we really intend to force community members, SG's or Constituencies for example, to have to go through a natural person to obtain access to ICANN corporate records as provided for in the California Corporations Code? My initial impulse would be to suggest that the shell U A model would be a better vehicle in which to actually use the powers granted members although the natural person model might be a bit easier to understand at conception. I look forward to input from independent counsel and for further discussion on this matter.
Sent from my iPad
On May 23, 2015, at 11:41 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello All,
I have been reading the various discussions on the topic of using members as a way of holding ICANN accountable.
Speaking personally - I think the concept of members can work.
My advice though would be to try to keep it simple. The idea of creating separate unincorporated versions of the GAC, ccNSO etc - just adds complexity that makes it more and more difficult for outsiders to really understand how ICANN works. It already takes years to understand how the GNSO or ALAC processes work.
From my personal perspective - we should just allow the SOs and ACs to appoint their chairs/vice-chairs or nominated representatives as "members" of ICANN for a term that matches the term of their office. This seems to require minimal change in ICANN's existing structure.
Each individual that is selected to become a member of ICANN could then sign an agreement with ICANN that ensures that ICANN provides some indemnity for the member, provided that the member operates in accordance with the direction of their SO and AC through a properly constituted motion according to the procedures of that group. Ie the member would have a very narrow role to basically convey the decision of the respective SO and AC.
Regards, Bruce Tonkin
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Dear Avri Dear All We intended to address the accountability at a level A(ICANN Board) for that the membership model with UA was considered . Now we do not want UA as it may have problem with some group?? Now we want membership without UA? Does that serve the sane purpose? Don, t we transfer the issue to another level? As we do not know to whom these natural persons without UA eould be responsible? And how the intended accountability is implemented . In Fact some level group ( natural persons ) who should be accountable to their respective community( I do not know how?)are expected to discharge/ oversight accountability of ICANN ( level A). How? Then who is accountable to whom? Regards Kavouss Sent from my iPhone
On 24 May 2015, at 07:51, avri doria <avri@ella.com> wrote:
While I still have issuess with the shell UA concept and believe the SOAC would need to become UA (which I understand is a problem for some stakeholders), I think this is a good explanation of issues with using natural persons as members.
avri
Sent from a T-Mobile 4G LTE Device
-------- Original message -------- From: Edward Morris <egmorris1@toast.net> Date:05/24/2015 1:19 AM (GMT-05:00) To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Regarding members
Although something we certainly should explore and consider I would proceed very cautiously in anointing natural persons as members. My concern has to do more with statutory rights that come with membership than anything we're proposing for internal governance. Although perhaps initially easier to conceptualize organizationally, the use of some rights granted may be less easy to understand or implement under a natural person model. Do we want to rest in an individual the right and / or obligation for filing requests for documents or for litigation under the derivative lawsuit powers granted members? Do we want a situation where lawsuits would be Greenberg v. ICANN rather than ALAC v. ICANN, for example? Do we really intend to force community members, SG's or Constituencies for example, to have to go through a natural person to obtain access to ICANN corporate records as provided for in the California Corporations Code? My initial impulse would be to suggest that the shell U A model would be a better vehicle in which to actually use the powers granted members although the natural person model might be a bit easier to understand at conception. I look forward to input from independent counsel and for further discussion on this matter.
Sent from my iPad
On May 23, 2015, at 11:41 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello All,
I have been reading the various discussions on the topic of using members as a way of holding ICANN accountable.
Speaking personally - I think the concept of members can work.
My advice though would be to try to keep it simple. The idea of creating separate unincorporated versions of the GAC, ccNSO etc - just adds complexity that makes it more and more difficult for outsiders to really understand how ICANN works. It already takes years to understand how the GNSO or ALAC processes work.
From my personal perspective - we should just allow the SOs and ACs to appoint their chairs/vice-chairs or nominated representatives as "members" of ICANN for a term that matches the term of their office. This seems to require minimal change in ICANN's existing structure.
Each individual that is selected to become a member of ICANN could then sign an agreement with ICANN that ensures that ICANN provides some indemnity for the member, provided that the member operates in accordance with the direction of their SO and AC through a properly constituted motion according to the procedures of that group. Ie the member would have a very narrow role to basically convey the decision of the respective SO and AC.
Regards, Bruce Tonkin
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participants (4)
-
Alan Greenberg -
avri doria -
Kavouss Arasteh -
Malcolm Hutty