Dear All We complicating the case by envisaging the most extreme exceptional circumstances. In view of Greg, a Contract provisions are enforceable compared to Bylaws provisions which in his views are not enforceable! We may put the questions and answers to the lawyers and wait whether are consent? Could someone take necessary action ( e. g.) co chair in this regard? Tks Kavousd Sent from my iPhone

On 21 Apr 2015, at 08:02, Greg Shatan <gregshatanipc@gmail.com> wrote:

​The questions are simple. The answers may not be....

Also, it depends on what the lawyers are currently working on. Further, the meeting is in about 13 hours, and ​I expect (given the time) at least 6-8 of those hours will be used for sleep and commuting. So, it's not a lot of time.

My views are as follows:

On question 1, I think there may be issues in granting this right via bylaw, except to statutory members (and possibly to designators, at least where formally denoted as such), but these many not sufficient issues to cause the bylaw to be invalid. If it's found to be invalid in court, then it would be unenforceable. However, I believe that something similar could be achieved by contract, which should then be enforceable.

On question 2, I would say that the Board cannot ignore an action mandated by the bylaws without some consequences. The SOs and ACs as currently constituted may not have the necessary legal personhood to pursue litigation. However, this could be reported to the California Attorney General, who has broad oversight powers relating to non-profits, and would probably be quite interested to hear about a relatively high-profile non-profit where the Board was ignoring actions mandated by duly approved bylaws. This could certainly be considered "enforcement," broadly speaking. There may also be other parties with legal personhood that could pursue litigation, and other governmental entities (Congress?) that could make this an exceedingly difficult choice to sustain.

On 3, if the bylaw says the Board is bound, they're bound, unless the Board were to successfully challenge the validity of the bylaw. Again, it may be possible to achieve this by contract, with fewer questions raised. And again, there may be issues in granting this right to parties other than members (or possibly formally recognized designators), but those issues may not invalidate the bylaw.

On 4, I think the answers to question 2 apply here as well.

We can see if counsel agrees with this....

Greg Caveat: not legal advice, not admitted in California

...

On Tue, Apr 21, 2015 at 12:55 AM, Chris Disspain <ceo@auda.org.au> wrote: Hi León,

Really? They are fairly simple questions. As I said, I can ask them on the call.

Cheers,

Chris

...

On 21 Apr 2015, at 14:32 , León Felipe Sánchez Ambía <leonfelipe@sanchez.mx> wrote:

Thanks Greg,

I just want to note that for the short notice it is unlikely we will be able to have answers to feed the discussion in our call tomorrow.

Best regards,

León

...

El 20/04/2015, a las 23:22, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5@icann.org> escribió:

I am forwarding Chris Disspain's email into the Legal Sub Team for further consideration. I will let our counsels respond, should the Legal Sub Team's discussion result in a referral of the questions to counsel.

Greg Shatan

---------- Forwarded message ---------- From: Chris Disspain <ceo@auda.org.au> Date: Tue, Apr 21, 2015 at 12:03 AM Subject: [CCWG-ACCT] Legal question To: Accountability Cross Community <accountability-cross-community@icann.org>

Hello All,

I’m not sure if this email should be addressed to the whole group, the legal sub-team or some other. Anyway, I have some questions that I would appreciate answers to from the CCWG’s lawyers. Happy to discuss on the upcoming CCWG call.

Under the current structure of ICANN and its SOs and ACs

1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws?

2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto?

3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding?

4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable?

Cheers,

Chris

...

On 18 Apr 2015, at 14:50 , León Felipe Sánchez Ambía <leonfelipe@sanchez.mx> wrote:

All,

I am forwarding this document from Counsel for your records and for its relevance for our overall work.

Best regards,

León

...

Inicio del mensaje reenviado:

Para: "ccwg-accountability5@icann.org" <ccwg-accountability5@icann.org> Fecha: 17 de abril de 2015 22:21:36 GMT-5 De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5@icann.org> Asunto: [Acct-Legal] (no subject) Responder a: ccwg-accountability5@icann.org

Dear Legal Sub-Team, Attached please find revisions to the chart comparing the member and designator approaches from Sidley and Adler & Colvin as requested. Please note that in our cover memo we have posed several questions for your consideration. We have also provided a discussion of some considerations regarding implementation of both approaches. We are look forward to discussing with CCWG next week. Kind regards, Holly

HOLLY J. GREGORY Partner

Sidley Austin LLP +1.212.839.5853 holly.gregory@sidley.com

**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.

****************************************************************************************************

<Legal Assessment_ Governance Chart.pdf>

...

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_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Ccwg-accountability5 mailing list Ccwg-accountability5@icann.org https://mm.icann.org/mailman/listinfo/ccwg-accountability5

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Dear Greg Thank you indeed for your clarification. Sorry If I misunderstood your views You may provide any argument to support the membership Model I am for any option which requires less changes to Bylaws,less complex to inmplement, less time consuming to apply, not going toofar up to the extreme limit. However, I fully respect your valid reasons for Member Model Regards Kavouss 2015-04-21 8:59 GMT+02:00 Greg Shatan <gregshatanipc@gmail.com>:

Kavouss,

That is not a correct summary of my views. Bylaws provisions are generally enforceable. (As an aside, "enforceable" can be use to mean two different things: (1) is the provision valid, so that an enforcement effort will not fail, and (2) can the other party or parties undertake an effort to enforce the provision by commencing litigation. I have tried to deal with both aspects of "enforceability," without veering too far into other ways of getting ones way (e.g., California AG, political pressure, Congressional investigation, pulling out and creating an alternate IANA, etc.)

In spite of the general rule, there are two issues in this specific circumstance that undercut this general rule of enforceability. First, a couple of the specific powers that Chris mentions are ones where a third party is given a right superior the Board to make a decision regarding the management of the company (veto of budget and arbitration to enforce the veto of budget). In a member organization, the members can appropriately be in this superior position. In a non-member organization, that is inconsistent with the role of the Board, which brings the validity of these bylaw changes as hypothesized by Chris into question. Second, the SO/ACs, as entities currently without legal personhood, would likely not be able to participate in a litigation to enforce these bylaws; thus, the second type of enforceability is also an issue.

It may be less troublesome for ICANN to enter into contracts and agree with third parties (i.e., the SO/ACs) that these third parties have the right to veto the budget. (Companies may be able to agree with third parties to do things that could not be part of their internal governance schema.) However, on further reflection, even this approach has its issues -- as the SO/ACs lack legal personhood currently, they cannot enter into contracts, either. (By contrast, the bylaws changes can at least be put into place without any action on the SO/AC's part.)

I should note that granting third parties the right to approve a bylaw change (the third hypothetical action in Chris's email) is not as exceptional, so is less likely to raise validity concerns. This still leaves the issue that the SO/AC's lack the requisite legal existence to commence legal action to enforce a bylaws change in the event the Board fails to recognize such a bylaws change.

In my opinion this kind of complexity and uncertainty is precisely why the member model should be adopted.

Greg

On Tue, Apr 21, 2015 at 2:25 AM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:

...

Dear All We complicating the case by envisaging the most extreme exceptional circumstances. In view of Greg, a Contract provisions are enforceable compared to Bylaws provisions which in his views are not enforceable! We may put the questions and answers to the lawyers and wait whether are consent? Could someone take necessary action ( e. g.) co chair in this regard? Tks Kavousd

Sent from my iPhone

On 21 Apr 2015, at 08:02, Greg Shatan <gregshatanipc@gmail.com> wrote:

​The questions are simple. The answers may not be....

Also, it depends on what the lawyers are currently working on. Further, the meeting is in about 13 hours, and ​I expect (given the time) at least 6-8 of those hours will be used for sleep and commuting. So, it's not a lot of time.

My views are as follows:

On question 1, I think there may be issues in granting this right via bylaw, except to statutory members (and possibly to designators, at least where formally denoted as such), but these many not sufficient issues to cause the bylaw to be invalid. If it's found to be invalid in court, then it would be unenforceable. However, I believe that something similar could be achieved by contract, which should then be enforceable.

On question 2, I would say that the Board cannot ignore an action mandated by the bylaws without some consequences. The SOs and ACs as currently constituted may not have the necessary legal personhood to pursue litigation. However, this could be reported to the California Attorney General, who has broad oversight powers relating to non-profits, and would probably be quite interested to hear about a relatively high-profile non-profit where the Board was ignoring actions mandated by duly approved bylaws. This could certainly be considered "enforcement," broadly speaking. There may also be other parties with legal personhood that could pursue litigation, and other governmental entities (Congress?) that could make this an exceedingly difficult choice to sustain.

On 3, if the bylaw says the Board is bound, they're bound, unless the Board were to successfully challenge the validity of the bylaw. Again, it may be possible to achieve this by contract, with fewer questions raised. And again, there may be issues in granting this right to parties other than members (or possibly formally recognized designators), but those issues may not invalidate the bylaw.

On 4, I think the answers to question 2 apply here as well.

We can see if counsel agrees with this....

Greg Caveat: not legal advice, not admitted in California

On Tue, Apr 21, 2015 at 12:55 AM, Chris Disspain <ceo@auda.org.au> wrote:

...

Hi León,

Really? They are fairly simple questions. As I said, I can ask them on the call.

Cheers,

Chris

On 21 Apr 2015, at 14:32 , León Felipe Sánchez Ambía < leonfelipe@sanchez.mx> wrote:

Thanks Greg,

I just want to note that for the short notice it is unlikely we will be able to have answers to feed the discussion in our call tomorrow.

Best regards,

León

El 20/04/2015, a las 23:22, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5@icann.org> escribió:

I am forwarding Chris Disspain's email into the Legal Sub Team for further consideration. I will let our counsels respond, should the Legal Sub Team's discussion result in a referral of the questions to counsel.

Greg Shatan

---------- Forwarded message ---------- From: Chris Disspain <ceo@auda.org.au> Date: Tue, Apr 21, 2015 at 12:03 AM Subject: [CCWG-ACCT] Legal question To: Accountability Cross Community < accountability-cross-community@icann.org>

Hello All,

I’m not sure if this email should be addressed to the whole group, the legal sub-team or some other. Anyway, I have some questions that I would appreciate answers to from the CCWG’s lawyers. Happy to discuss on the upcoming CCWG call.

Under the current structure of ICANN and its SOs and ACs

1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws?

2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto?

3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding?

4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable?

Cheers,

Chris

On 18 Apr 2015, at 14:50 , León Felipe Sánchez Ambía < leonfelipe@sanchez.mx> wrote:

All,

I am forwarding this document from Counsel for your records and for its relevance for our overall work.

Best regards,

León

Inicio del mensaje reenviado:

*Para: *"ccwg-accountability5@icann.org" <ccwg-accountability5@icann.org

...

*Fecha: *17 de abril de 2015 22:21:36 GMT-5 *De: *List for the work of CCWG-Accountability Legal SubTeam < ccwg-accountability5@icann.org> *Asunto: **[Acct-Legal] (no subject)* *Responder a: *ccwg-accountability5@icann.org

Dear Legal Sub-Team, Attached please find revisions to the chart comparing the member and designator approaches from Sidley and Adler & Colvin as requested. Please note that in our cover memo we have posed several questions for your consideration. We have also provided a discussion of some considerations regarding implementation of both approaches. We are look forward to discussing with CCWG next week. Kind regards, Holly

*HOLLY J. GREGORY*

*Partner* *Sidley Austin LLP* +1.212.839.5853 holly.gregory@sidley.com

**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.

****************************************************************************************************

<Legal Assessment_ Governance Chart.pdf>

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Chris, The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier. However, you assumed no change to the SOACs, which made the answers much harder. Greg On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au> wrote:

Greg, All,

With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations.

Cheers,

Chris

On 21 Apr 2015, at 16:59 , Greg Shatan <gregshatanipc@gmail.com <javascript:_e(%7B%7D,'cvml','gregshatanipc@gmail.com');>> wrote:

Kavouss,

That is not a correct summary of my views. Bylaws provisions are generally enforceable. (As an aside, "enforceable" can be use to mean two different things: (1) is the provision valid, so that an enforcement effort will not fail, and (2) can the other party or parties undertake an effort to enforce the provision by commencing litigation. I have tried to deal with both aspects of "enforceability," without veering too far into other ways of getting ones way (e.g., California AG, political pressure, Congressional investigation, pulling out and creating an alternate IANA, etc.)

In spite of the general rule, there are two issues in this specific circumstance that undercut this general rule of enforceability. First, a couple of the specific powers that Chris mentions are ones where a third party is given a right superior the Board to make a decision regarding the management of the company (veto of budget and arbitration to enforce the veto of budget). In a member organization, the members can appropriately be in this superior position. In a non-member organization, that is inconsistent with the role of the Board, which brings the validity of these bylaw changes as hypothesized by Chris into question. Second, the SO/ACs, as entities currently without legal personhood, would likely not be able to participate in a litigation to enforce these bylaws; thus, the second type of enforceability is also an issue.

It may be less troublesome for ICANN to enter into contracts and agree with third parties (i.e., the SO/ACs) that these third parties have the right to veto the budget. (Companies may be able to agree with third parties to do things that could not be part of their internal governance schema.) However, on further reflection, even this approach has its issues -- as the SO/ACs lack legal personhood currently, they cannot enter into contracts, either. (By contrast, the bylaws changes can at least be put into place without any action on the SO/AC's part.)

I should note that granting third parties the right to approve a bylaw change (the third hypothetical action in Chris's email) is not as exceptional, so is less likely to raise validity concerns. This still leaves the issue that the SO/AC's lack the requisite legal existence to commence legal action to enforce a bylaws change in the event the Board fails to recognize such a bylaws change.

In my opinion this kind of complexity and uncertainty is precisely why the member model should be adopted.

Greg

On Tue, Apr 21, 2015 at 2:25 AM, Kavouss Arasteh < kavouss.arasteh@gmail.com <javascript:_e(%7B%7D,'cvml','kavouss.arasteh@gmail.com');>> wrote:

...

Dear All We complicating the case by envisaging the most extreme exceptional circumstances. In view of Greg, a Contract provisions are enforceable compared to Bylaws provisions which in his views are not enforceable! We may put the questions and answers to the lawyers and wait whether are consent? Could someone take necessary action ( e. g.) co chair in this regard? Tks Kavousd

Sent from my iPhone

On 21 Apr 2015, at 08:02, Greg Shatan <gregshatanipc@gmail.com <javascript:_e(%7B%7D,'cvml','gregshatanipc@gmail.com');>> wrote:

​The questions are simple. The answers may not be....

Also, it depends on what the lawyers are currently working on. Further, the meeting is in about 13 hours, and ​I expect (given the time) at least 6-8 of those hours will be used for sleep and commuting. So, it's not a lot of time.

My views are as follows:

On question 1, I think there may be issues in granting this right via bylaw, except to statutory members (and possibly to designators, at least where formally denoted as such), but these many not sufficient issues to cause the bylaw to be invalid. If it's found to be invalid in court, then it would be unenforceable. However, I believe that something similar could be achieved by contract, which should then be enforceable.

On question 2, I would say that the Board cannot ignore an action mandated by the bylaws without some consequences. The SOs and ACs as currently constituted may not have the necessary legal personhood to pursue litigation. However, this could be reported to the California Attorney General, who has broad oversight powers relating to non-profits, and would probably be quite interested to hear about a relatively high-profile non-profit where the Board was ignoring actions mandated by duly approved bylaws. This could certainly be considered "enforcement," broadly speaking. There may also be other parties with legal personhood that could pursue litigation, and other governmental entities (Congress?) that could make this an exceedingly difficult choice to sustain.

On 3, if the bylaw says the Board is bound, they're bound, unless the Board were to successfully challenge the validity of the bylaw. Again, it may be possible to achieve this by contract, with fewer questions raised. And again, there may be issues in granting this right to parties other than members (or possibly formally recognized designators), but those issues may not invalidate the bylaw.

On 4, I think the answers to question 2 apply here as well.

We can see if counsel agrees with this....

Greg Caveat: not legal advice, not admitted in California

On Tue, Apr 21, 2015 at 12:55 AM, Chris Disspain <ceo@auda.org.au <javascript:_e(%7B%7D,'cvml','ceo@auda.org.au');>> wrote:

...

Hi León,

Really? They are fairly simple questions. As I said, I can ask them on the call.

Cheers,

Chris

On 21 Apr 2015, at 14:32 , León Felipe Sánchez Ambía < leonfelipe@sanchez.mx <javascript:_e(%7B%7D,'cvml','leonfelipe@sanchez.mx');>> wrote:

Thanks Greg,

I just want to note that for the short notice it is unlikely we will be able to have answers to feed the discussion in our call tomorrow.

Best regards,

León

El 20/04/2015, a las 23:22, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5@icann.org <javascript:_e(%7B%7D,'cvml','ccwg-accountability5@icann.org');>> escribió:

I am forwarding Chris Disspain's email into the Legal Sub Team for further consideration. I will let our counsels respond, should the Legal Sub Team's discussion result in a referral of the questions to counsel.

Greg Shatan

---------- Forwarded message ---------- From: Chris Disspain <ceo@auda.org.au <javascript:_e(%7B%7D,'cvml','ceo@auda.org.au');>> Date: Tue, Apr 21, 2015 at 12:03 AM Subject: [CCWG-ACCT] Legal question To: Accountability Cross Community < accountability-cross-community@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community@icann.org');>

...

Hello All,

I’m not sure if this email should be addressed to the whole group, the legal sub-team or some other. Anyway, I have some questions that I would appreciate answers to from the CCWG’s lawyers. Happy to discuss on the upcoming CCWG call.

Under the current structure of ICANN and its SOs and ACs

1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws?

2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto?

3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding?

4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable?

Cheers,

Chris

On 18 Apr 2015, at 14:50 , León Felipe Sánchez Ambía < leonfelipe@sanchez.mx <javascript:_e(%7B%7D,'cvml','leonfelipe@sanchez.mx');>> wrote:

All,

I am forwarding this document from Counsel for your records and for its relevance for our overall work.

Best regards,

León

Inicio del mensaje reenviado:

*Para: *"ccwg-accountability5@icann.org <javascript:_e(%7B%7D,'cvml','ccwg-accountability5@icann.org');>" < ccwg-accountability5@icann.org <javascript:_e(%7B%7D,'cvml','ccwg-accountability5@icann.org');>> *Fecha: *17 de abril de 2015 22:21:36 GMT-5 *De: *List for the work of CCWG-Accountability Legal SubTeam < ccwg-accountability5@icann.org <javascript:_e(%7B%7D,'cvml','ccwg-accountability5@icann.org');>> *Asunto: **[Acct-Legal] (no subject)* *Responder a: *ccwg-accountability5@icann.org <javascript:_e(%7B%7D,'cvml','ccwg-accountability5@icann.org');>

Dear Legal Sub-Team, Attached please find revisions to the chart comparing the member and designator approaches from Sidley and Adler & Colvin as requested. Please note that in our cover memo we have posed several questions for your consideration. We have also provided a discussion of some considerations regarding implementation of both approaches. We are look forward to discussing with CCWG next week. Kind regards, Holly

*HOLLY J. GREGORY*

*Partner* *Sidley Austin LLP* +1.212.839.5853 holly.gregory@sidley.com <javascript:_e(%7B%7D,'cvml','holly.gregory@sidley.com');>

**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.

****************************************************************************************************

<Legal Assessment_ Governance Chart.pdf>

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Chris, I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough." That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond. Regards, Keith Sent from my iPhone On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Greg, Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet. Chris Disspain CEO - auDA On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Chris, The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier. However, you assumed no change to the SOACs, which made the answers much harder. Greg On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Greg, All, With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations. Cheers, Chris On 21 Apr 2015, at 16:59 , Greg Shatan <gregshatanipc@gmail.com<javascript:_e(%7B%7D,'cvml','gregshatanipc@gmail.com');>> wrote: Kavouss, That is not a correct summary of my views. Bylaws provisions are generally enforceable. (As an aside, "enforceable" can be use to mean two different things: (1) is the provision valid, so that an enforcement effort will not fail, and (2) can the other party or parties undertake an effort to enforce the provision by commencing litigation. I have tried to deal with both aspects of "enforceability," without veering too far into other ways of getting ones way (e.g., California AG, political pressure, Congressional investigation, pulling out and creating an alternate IANA, etc.) In spite of the general rule, there are two issues in this specific circumstance that undercut this general rule of enforceability. First, a couple of the specific powers that Chris mentions are ones where a third party is given a right superior the Board to make a decision regarding the management of the company (veto of budget and arbitration to enforce the veto of budget). In a member organization, the members can appropriately be in this superior position. In a non-member organization, that is inconsistent with the role of the Board, which brings the validity of these bylaw changes as hypothesized by Chris into question. Second, the SO/ACs, as entities currently without legal personhood, would likely not be able to participate in a litigation to enforce these bylaws; thus, the second type of enforceability is also an issue. It may be less troublesome for ICANN to enter into contracts and agree with third parties (i.e., the SO/ACs) that these third parties have the right to veto the budget. (Companies may be able to agree with third parties to do things that could not be part of their internal governance schema.) However, on further reflection, even this approach has its issues -- as the SO/ACs lack legal personhood currently, they cannot enter into contracts, either. (By contrast, the bylaws changes can at least be put into place without any action on the SO/AC's part.) I should note that granting third parties the right to approve a bylaw change (the third hypothetical action in Chris's email) is not as exceptional, so is less likely to raise validity concerns. This still leaves the issue that the SO/AC's lack the requisite legal existence to commence legal action to enforce a bylaws change in the event the Board fails to recognize such a bylaws change. In my opinion this kind of complexity and uncertainty is precisely why the member model should be adopted. Greg On Tue, Apr 21, 2015 at 2:25 AM, Kavouss Arasteh <kavouss.arasteh@gmail.com<javascript:_e(%7B%7D,'cvml','kavouss.arasteh@gmail.com');>> wrote: Dear All We complicating the case by envisaging the most extreme exceptional circumstances. In view of Greg, a Contract provisions are enforceable compared to Bylaws provisions which in his views are not enforceable! We may put the questions and answers to the lawyers and wait whether are consent? Could someone take necessary action ( e. g.) co chair in this regard? Tks Kavousd Sent from my iPhone On 21 Apr 2015, at 08:02, Greg Shatan <gregshatanipc@gmail.com<javascript:_e(%7B%7D,'cvml','gregshatanipc@gmail.com');>> wrote: ​The questions are simple. The answers may not be.... Also, it depends on what the lawyers are currently working on. Further, the meeting is in about 13 hours, and ​I expect (given the time) at least 6-8 of those hours will be used for sleep and commuting. So, it's not a lot of time. My views are as follows: On question 1, I think there may be issues in granting this right via bylaw, except to statutory members (and possibly to designators, at least where formally denoted as such), but these many not sufficient issues to cause the bylaw to be invalid. If it's found to be invalid in court, then it would be unenforceable. However, I believe that something similar could be achieved by contract, which should then be enforceable. On question 2, I would say that the Board cannot ignore an action mandated by the bylaws without some consequences. The SOs and ACs as currently constituted may not have the necessary legal personhood to pursue litigation. However, this could be reported to the California Attorney General, who has broad oversight powers relating to non-profits, and would probably be quite interested to hear about a relatively high-profile non-profit where the Board was ignoring actions mandated by duly approved bylaws. This could certainly be considered "enforcement," broadly speaking. There may also be other parties with legal personhood that could pursue litigation, and other governmental entities (Congress?) that could make this an exceedingly difficult choice to sustain. On 3, if the bylaw says the Board is bound, they're bound, unless the Board were to successfully challenge the validity of the bylaw. Again, it may be possible to achieve this by contract, with fewer questions raised. And again, there may be issues in granting this right to parties other than members (or possibly formally recognized designators), but those issues may not invalidate the bylaw. On 4, I think the answers to question 2 apply here as well. We can see if counsel agrees with this.... Greg Caveat: not legal advice, not admitted in California On Tue, Apr 21, 2015 at 12:55 AM, Chris Disspain <ceo@auda.org.au<javascript:_e(%7B%7D,'cvml','ceo@auda.org.au');>> wrote: Hi León, Really? They are fairly simple questions. As I said, I can ask them on the call. Cheers, Chris On 21 Apr 2015, at 14:32 , León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<javascript:_e(%7B%7D,'cvml','leonfelipe@sanchez.mx');>> wrote: Thanks Greg, I just want to note that for the short notice it is unlikely we will be able to have answers to feed the discussion in our call tomorrow. Best regards, León El 20/04/2015, a las 23:22, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5@icann.org<javascript:_e(%7B%7D,'cvml','ccwg-accountability5@icann.org');>> escribió: I am forwarding Chris Disspain's email into the Legal Sub Team for further consideration. I will let our counsels respond, should the Legal Sub Team's discussion result in a referral of the questions to counsel. Greg Shatan ---------- Forwarded message ---------- From: Chris Disspain <ceo@auda.org.au<javascript:_e(%7B%7D,'cvml','ceo@auda.org.au');>> Date: Tue, Apr 21, 2015 at 12:03 AM Subject: [CCWG-ACCT] Legal question To: Accountability Cross Community <accountability-cross-community@icann.org<javascript:_e(%7B%7D,'cvml','accountability-cross-community@icann.org');>> Hello All, I’m not sure if this email should be addressed to the whole group, the legal sub-team or some other. Anyway, I have some questions that I would appreciate answers to from the CCWG’s lawyers. Happy to discuss on the upcoming CCWG call. Under the current structure of ICANN and its SOs and ACs 1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws? 2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto? 3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding? 4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable? Cheers, Chris On 18 Apr 2015, at 14:50 , León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<javascript:_e(%7B%7D,'cvml','leonfelipe@sanchez.mx');>> wrote: All, I am forwarding this document from Counsel for your records and for its relevance for our overall work. Best regards, León Inicio del mensaje reenviado: Para: "ccwg-accountability5@icann.org<javascript:_e(%7B%7D,'cvml','ccwg-accountability5@icann.org');>" <ccwg-accountability5@icann.org<javascript:_e(%7B%7D,'cvml','ccwg-accountability5@icann.org');>> Fecha: 17 de abril de 2015 22:21:36 GMT-5 De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5@icann.org<javascript:_e(%7B%7D,'cvml','ccwg-accountability5@icann.org');>> Asunto: [Acct-Legal] (no subject) Responder a: ccwg-accountability5@icann.org<javascript:_e(%7B%7D,'cvml','ccwg-accountability5@icann.org');> Dear Legal Sub-Team, Attached please find revisions to the chart comparing the member and designator approaches from Sidley and Adler & Colvin as requested. Please note that in our cover memo we have posed several questions for your consideration. We have also provided a discussion of some considerations regarding implementation of both approaches. We are look forward to discussing with CCWG next week. Kind regards, Holly HOLLY J. GREGORY Partner Sidley Austin LLP +1.212.839.5853<tel:%2B1.212.839.5853> holly.gregory@sidley.com<javascript:_e(%7B%7D,'cvml','holly.gregory@sidley.com');> **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** <Legal Assessment_ Governance Chart.pdf> _______________________________________________ Ccwg-accountability5 mailing list Ccwg-accountability5@icann.org<javascript:_e(%7B%7D,'cvml','Ccwg-accountability5@icann.org');> https://mm.icann.org/mailman/listinfo/ccwg-accountability5 _______________________________________________ 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 _______________________________________________ Ccwg-accountability5 mailing list Ccwg-accountability5@icann.org<javascript:_e(%7B%7D,'cvml','Ccwg-accountability5@icann.org');> https://mm.icann.org/mailman/listinfo/ccwg-accountability5 _______________________________________________ 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<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

Thanks Chris, no apologies necessary...this is exactly the kind of dialogue needed to advance our work. Can you be more explicit about the "significant number of sacrifices that would need to be made in a membership scenario" that ccTLDs face? Particularly if any are unique to ccTLDs? Sacrifices may be needed (including from the Board) if we are to accomplish the community's broader goal of ensuring the ICANN Board and Staff are truly accountable to the ICANN community for the next decade. As such, it would be good to know, as early as possible, what those sacrifices might be. In simple terms, I agree that determining what can and cannot be accomplished within the existing structure is a worthwhile exercise and will help to inform the community. Based on our work and the relevant independent legal analysis to date, it appears to me that the current construct has significant gaps and shortcomings and won't deliver on our goals, but I support seeking further advice on the topic from our independent legal advisors. Thanks and regards, Keith On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Thanks Keith. I apologise for pinging back and forth on this but I hope the list will appreciate that it as an indication of how important auDA believes this point is. As I said on the CCWG call last week, I have serious concerns about the viability of the lawyers' recommended structural changes (at least from a cc point of view) and want to be crystal clear about what we can do or cannot do within the current structure. For a ccTLD there are a significant number of sacrifices that would need to be made in a membership scenario and I don't believe the cc community can decide whether those sacrifices are worth making unless we can weigh them against what we would be able to achieve using the current structure. I think that is essential that our output to the community contains a clear explanation of what the status quo can achieve. If it does not then IMO it is impossible to judge the other scenarios. I appreciate your second para and, as a lawyer, I know that time for a response is required. I also appreciate the time constraints under which we are operating. But we will lose more time if the result of our document is a series of questions about whether there really is a need to make the significant changes being recommended. In simple terms 'not nearly enough' is not an acceptable response. How can I know that "it" is not nearly enough unless I know what "it" is? Chris Disspain CEO - auDA On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> wrote: Chris, I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough." That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond. Regards, Keith Sent from my iPhone On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Greg, Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet. Chris Disspain CEO - auDA On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Chris, The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier. However, you assumed no change to the SOACs, which made the answers much harder. Greg On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Greg, All, With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations. Cheers, Chris On 21 Apr 2015, at 16:59 , Greg Shatan <gregshatanipc@gmail.com<javascript:_e(%7B%7D,'cvml','gregshatanipc@gmail.com');>> wrote: Kavouss, That is not a correct summary of my views. Bylaws provisions are generally enforceable. (As an aside, "enforceable" can be use to mean two different things: (1) is the provision valid, so that an enforcement effort will not fail, and (2) can the other party or parties undertake an effort to enforce the provision by commencing litigation. I have tried to deal with both aspects of "enforceability," without veering too far into other ways of getting ones way (e.g., California AG, political pressure, Congressional investigation, pulling out and creating an alternate IANA, etc.) In spite of the general rule, there are two issues in this specific circumstance that undercut this general rule of enforceability. First, a couple of the specific powers that Chris mentions are ones where a third party is given a right superior the Board to make a decision regarding the management of the company (veto of budget and arbitration to enforce the veto of budget). In a member organization, the members can appropriately be in this superior position. In a non-member organization, that is inconsistent with the role of the Board, which brings the validity of these bylaw changes as hypothesized by Chris into question. Second, the SO/ACs, as entities currently without legal personhood, would likely not be able to participate in a litigation to enforce these bylaws; thus, the second type of enforceability is also an issue. It may be less troublesome for ICANN to enter into contracts and agree with third parties (i.e., the SO/ACs) that these third parties have the right to veto the budget. (Companies may be able to agree with third parties to do things that could not be part of their internal governance schema.) However, on further reflection, even this approach has its issues -- as the SO/ACs lack legal personhood currently, they cannot enter into contracts, either. (By contrast, the bylaws changes can at least be put into place without any action on the SO/AC's part.) I should note that granting third parties the right to approve a bylaw change (the third hypothetical action in Chris's email) is not as exceptional, so is less likely to raise validity concerns. This still leaves the issue that the SO/AC's lack the requisite legal existence to commence legal action to enforce a bylaws change in the event the Board fails to recognize such a bylaws change. In my opinion this kind of complexity and uncertainty is precisely why the member model should be adopted. Greg On Tue, Apr 21, 2015 at 2:25 AM, Kavouss Arasteh <kavouss.arasteh@gmail.com<javascript:_e(%7B%7D,'cvml','kavouss.arasteh@gmail.com');>> wrote: Dear All We complicating the case by envisaging the most extreme exceptional circumstances. In view of Greg, a Contract provisions are enforceable compared to Bylaws provisions which in his views are not enforceable! We may put the questions and answers to the lawyers and wait whether are consent? Could someone take necessary action ( e. g.) co chair in this regard? Tks Kavousd Sent from my iPhone On 21 Apr 2015, at 08:02, Greg Shatan <gregshatanipc@gmail.com<javascript:_e(%7B%7D,'cvml','gregshatanipc@gmail.com');>> wrote: ​The questions are simple. The answers may not be.... Also, it depends on what the lawyers are currently working on. Further, the meeting is in about 13 hours, and ​I expect (given the time) at least 6-8 of those hours will be used for sleep and commuting. So, it's not a lot of time. My views are as follows: On question 1, I think there may be issues in granting this right via bylaw, except to statutory members (and possibly to designators, at least where formally denoted as such), but these many not sufficient issues to cause the bylaw to be invalid. If it's found to be invalid in court, then it would be unenforceable. However, I believe that something similar could be achieved by contract, which should then be enforceable. On question 2, I would say that the Board cannot ignore an action mandated by the bylaws without some consequences. The SOs and ACs as currently constituted may not have the necessary legal personhood to pursue litigation. However, this could be reported to the California Attorney General, who has broad oversight powers relating to non-profits, and would probably be quite interested to hear about a relatively high-profile non-profit where the Board was ignoring actions mandated by duly approved bylaws. This could certainly be considered "enforcement," broadly speaking. There may also be other parties with legal personhood that could pursue litigation, and other governmental entities (Congress?) that could make this an exceedingly difficult choice to sustain. On 3, if the bylaw says the Board is bound, they're bound, unless the Board were to successfully challenge the validity of the bylaw. Again, it may be possible to achieve this by contract, with fewer questions raised. And again, there may be issues in granting this right to parties other than members (or possibly formally recognized designators), but those issues may not invalidate the bylaw. On 4, I think the answers to question 2 apply here as well. We can see if counsel agrees with this.... Greg Caveat: not legal advice, not admitted in California On Tue, Apr 21, 2015 at 12:55 AM, Chris Disspain <ceo@auda.org.au<javascript:_e(%7B%7D,'cvml','ceo@auda.org.au');>> wrote: Hi León, Really? They are fairly simple questions. As I said, I can ask them on the call. Cheers, Chris On 21 Apr 2015, at 14:32 , León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<javascript:_e(%7B%7D,'cvml','leonfelipe@sanchez.mx');>> wrote: Thanks Greg, I just want to note that for the short notice it is unlikely we will be able to have answers to feed the discussion in our call tomorrow. Best regards, León El 20/04/2015, a las 23:22, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5@icann.org<javascript:_e(%7B%7D,'cvml','ccwg-accountability5@icann.org');>> escribió: I am forwarding Chris Disspain's email into the Legal Sub Team for further consideration. I will let our counsels respond, should the Legal Sub Team's discussion result in a referral of the questions to counsel. Greg Shatan ---------- Forwarded message ---------- From: Chris Disspain <ceo@auda.org.au<javascript:_e(%7B%7D,'cvml','ceo@auda.org.au');>> Date: Tue, Apr 21, 2015 at 12:03 AM Subject: [CCWG-ACCT] Legal question To: Accountability Cross Community <accountability-cross-community@icann.org<javascript:_e(%7B%7D,'cvml','accountability-cross-community@icann.org');>> Hello All, I’m not sure if this email should be addressed to the whole group, the legal sub-team or some other. Anyway, I have some questions that I would appreciate answers to from the CCWG’s lawyers. Happy to discuss on the upcoming CCWG call. Under the current structure of ICANN and its SOs and ACs 1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws? 2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto? 3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding? 4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable? Cheers, Chris On 18 Apr 2015, at 14:50 , León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<javascript:_e(%7B%7D,'cvml','leonfelipe@sanchez.mx');>> wrote: All, I am forwarding this document from Counsel for your records and for its relevance for our overall work. Best regards, León Inicio del mensaje reenviado: Para: "ccwg-accountability5@icann.org<javascript:_e(%7B%7D,'cvml','ccwg-accountability5@icann.org');>" <ccwg-accountability5@icann.org<javascript:_e(%7B%7D,'cvml','ccwg-accountability5@icann.org');>> Fecha: 17 de abril de 2015 22:21:36 GMT-5 De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5@icann.org<javascript:_e(%7B%7D,'cvml','ccwg-accountability5@icann.org');>> Asunto: [Acct-Legal] (no subject) Responder a: ccwg-accountability5@icann.org<javascript:_e(%7B%7D,'cvml','ccwg-accountability5@icann.org');> Dear Legal Sub-Team, Attached please find revisions to the chart comparing the member and designator approaches from Sidley and Adler & Colvin as requested. Please note that in our cover memo we have posed several questions for your consideration. We have also provided a discussion of some considerations regarding implementation of both approaches. We are look forward to discussing with CCWG next week. Kind regards, Holly HOLLY J. GREGORY Partner Sidley Austin LLP +1.212.839.5853<tel:%2B1.212.839.5853> holly.gregory@sidley.com<javascript:_e(%7B%7D,'cvml','holly.gregory@sidley.com');> **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** <Legal Assessment_ Governance Chart.pdf> _______________________________________________ Ccwg-accountability5 mailing list Ccwg-accountability5@icann.org<javascript:_e(%7B%7D,'cvml','Ccwg-accountability5@icann.org');> https://mm.icann.org/mailman/listinfo/ccwg-accountability5 _______________________________________________ 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 _______________________________________________ Ccwg-accountability5 mailing list Ccwg-accountability5@icann.org<javascript:_e(%7B%7D,'cvml','Ccwg-accountability5@icann.org');> https://mm.icann.org/mailman/listinfo/ccwg-accountability5 _______________________________________________ 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<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

Hi Keith, Thanks for the below. You ask a valid question and Kavouss has sent me an email asking the same. I will respond in detail in the next 7 hours or so. Chris Disspain CEO - auDA

On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek@verisign.com> wrote:

Thanks Chris, no apologies necessary...this is exactly the kind of dialogue needed to advance our work.

Can you be more explicit about the "significant number of sacrifices that would need to be made in a membership scenario" that ccTLDs face? Particularly if any are unique to ccTLDs?

Sacrifices may be needed (including from the Board) if we are to accomplish the community's broader goal of ensuring the ICANN Board and Staff are truly accountable to the ICANN community for the next decade. As such, it would be good to know, as early as possible, what those sacrifices might be.

In simple terms, I agree that determining what can and cannot be accomplished within the existing structure is a worthwhile exercise and will help to inform the community.

Based on our work and the relevant independent legal analysis to date, it appears to me that the current construct has significant gaps and shortcomings and won't deliver on our goals, but I support seeking further advice on the topic from our independent legal advisors.

Thanks and regards, Keith

On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo@auda.org.au> wrote:

...

Thanks Keith.

I apologise for pinging back and forth on this but I hope the list will appreciate that it as an indication of how important auDA believes this point is.

As I said on the CCWG call last week, I have serious concerns about the viability of the lawyers' recommended structural changes (at least from a cc point of view) and want to be crystal clear about what we can do or cannot do within the current structure.

For a ccTLD there are a significant number of sacrifices that would need to be made in a membership scenario and I don't believe the cc community can decide whether those sacrifices are worth making unless we can weigh them against what we would be able to achieve using the current structure.

I think that is essential that our output to the community contains a clear explanation of what the status quo can achieve. If it does not then IMO it is impossible to judge the other scenarios.

I appreciate your second para and, as a lawyer, I know that time for a response is required. I also appreciate the time constraints under which we are operating. But we will lose more time if the result of our document is a series of questions about whether there really is a need to make the significant changes being recommended.

In simple terms 'not nearly enough' is not an acceptable response. How can I know that "it" is not nearly enough unless I know what "it" is?

Chris Disspain CEO - auDA

On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek@verisign.com> wrote:

...

Chris,

I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough."

That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond.

Regards, Keith

Sent from my iPhone

On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo@auda.org.au> wrote:

...

Greg,

Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc@gmail.com> wrote:

...

Chris,

The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier.

However, you assumed no change to the SOACs, which made the answers much harder.

Greg

...

On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au> wrote: Greg, All,

With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations.

Cheers,

Chris

> On 21 Apr 2015, at 16:59 , Greg Shatan <gregshatanipc@gmail.com> wrote: > > Kavouss, > > That is not a correct summary of my views. Bylaws provisions are generally enforceable. (As an aside, "enforceable" can be use to mean two different things: (1) is the provision valid, so that an enforcement effort will not fail, and (2) can the other party or parties undertake an effort to enforce the provision by commencing litigation. I have tried to deal with both aspects of "enforceability," without veering too far into other ways of getting ones way (e.g., California AG, political pressure, Congressional investigation, pulling out and creating an alternate IANA, etc.) > > In spite of the general rule, there are two issues in this specific circumstance that undercut this general rule of enforceability. First, a couple of the specific powers that Chris mentions are ones where a third party is given a right superior the Board to make a decision regarding the management of the company (veto of budget and arbitration to enforce the veto of budget). In a member organization, the members can appropriately be in this superior position. In a non-member organization, that is inconsistent with the role of the Board, which brings the validity of these bylaw changes as hypothesized by Chris into question. Second, the SO/ACs, as entities currently without legal personhood, would likely not be able to participate in a litigation to enforce these bylaws; thus, the second type of enforceability is also an issue. > > It may be less troublesome for ICANN to enter into contracts and agree with third parties (i.e., the SO/ACs) that these third parties have the right to veto the budget. (Companies may be able to agree with third parties to do things that could not be part of their internal governance schema.) However, on further reflection, even this approach has its issues -- as the SO/ACs lack legal personhood currently, they cannot enter into contracts, either. (By contrast, the bylaws changes can at least be put into place without any action on the SO/AC's part.) > > I should note that granting third parties the right to approve a bylaw change (the third hypothetical action in Chris's email) is not as exceptional, so is less likely to raise validity concerns. This still leaves the issue that the SO/AC's lack the requisite legal existence to commence legal action to enforce a bylaws change in the event the Board fails to recognize such a bylaws change. > > In my opinion this kind of complexity and uncertainty is precisely why the member model should be adopted. > > Greg > >> On Tue, Apr 21, 2015 at 2:25 AM, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote: >> Dear All >> We complicating the case by envisaging the most extreme exceptional circumstances. >> In view of Greg, a Contract provisions are enforceable compared to Bylaws provisions which in his views are not enforceable! >> We may put the questions and answers to the lawyers and wait whether are consent? >> Could someone take necessary action ( e. g.) co chair in this regard? >> Tks >> Kavousd >> >> >> Sent from my iPhone >> >> On 21 Apr 2015, at 08:02, Greg Shatan <gregshatanipc@gmail.com> wrote: >> >>> ​The questions are simple. The answers may not be.... >>> >>> Also, it depends on what the lawyers are currently working on. Further, the meeting is in about 13 hours, and ​I expect (given the time) at least 6-8 of those hours will be used for sleep and commuting. So, it's not a lot of time. >>> >>> My views are as follows: >>> >>> On question 1, I think there may be issues in granting this right via bylaw, except to statutory members (and possibly to designators, at least where formally denoted as such), but these many not sufficient issues to cause the bylaw to be invalid. If it's found to be invalid in court, then it would be unenforceable. However, I believe that something similar could be achieved by contract, which should then be enforceable. >>> >>> On question 2, I would say that the Board cannot ignore an action mandated by the bylaws without some consequences. The SOs and ACs as currently constituted may not have the necessary legal personhood to pursue litigation. However, this could be reported to the California Attorney General, who has broad oversight powers relating to non-profits, and would probably be quite interested to hear about a relatively high-profile non-profit where the Board was ignoring actions mandated by duly approved bylaws. This could certainly be considered "enforcement," broadly speaking. There may also be other parties with legal personhood that could pursue litigation, and other governmental entities (Congress?) that could make this an exceedingly difficult choice to sustain. >>> >>> On 3, if the bylaw says the Board is bound, they're bound, unless the Board were to successfully challenge the validity of the bylaw. Again, it may be possible to achieve this by contract, with fewer questions raised. And again, there may be issues in granting this right to parties other than members (or possibly formally recognized designators), but those issues may not invalidate the bylaw. >>> >>> On 4, I think the answers to question 2 apply here as well. >>> >>> We can see if counsel agrees with this.... >>> >>> Greg >>> Caveat: not legal advice, not admitted in California >>> >>>> On Tue, Apr 21, 2015 at 12:55 AM, Chris Disspain <ceo@auda.org.au> wrote: >>>> Hi León, >>>> >>>> Really? They are fairly simple questions. As I said, I can ask them on the call. >>>> >>>> >>>> >>>> >>>> Cheers, >>>> >>>> >>>> Chris >>>> >>>> >>>>> On 21 Apr 2015, at 14:32 , León Felipe Sánchez Ambía <leonfelipe@sanchez.mx> wrote: >>>>> >>>>> Thanks Greg, >>>>> >>>>> I just want to note that for the short notice it is unlikely we will be able to have answers to feed the discussion in our call tomorrow. >>>>> >>>>> >>>>> Best regards, >>>>> >>>>> >>>>> León >>>>> >>>>>> El 20/04/2015, a las 23:22, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5@icann.org> escribió: >>>>>> >>>>>> I am forwarding Chris Disspain's email into the Legal Sub Team for further consideration. I will let our counsels respond, should the Legal Sub Team's discussion result in a referral of the questions to counsel. >>>>>> >>>>>> >>>>>> Greg Shatan >>>>>> >>>>>> ---------- Forwarded message ---------- >>>>>> From: Chris Disspain <ceo@auda.org.au> >>>>>> Date: Tue, Apr 21, 2015 at 12:03 AM >>>>>> Subject: [CCWG-ACCT] Legal question >>>>>> To: Accountability Cross Community <accountability-cross-community@icann.org> >>>>>> >>>>>> >>>>>> Hello All, >>>>>> >>>>>> I’m not sure if this email should be addressed to the whole group, the legal sub-team or some other. Anyway, I have some questions that I would appreciate answers to from the CCWG’s lawyers. Happy to discuss on the upcoming CCWG call. >>>>>> >>>>>> Under the current structure of ICANN and its SOs and ACs >>>>>> >>>>>> 1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws? >>>>>> >>>>>> 2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto? >>>>>> >>>>>> 3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding? >>>>>> >>>>>> 4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable? >>>>>> >>>>>> >>>>>> Cheers, >>>>>> >>>>>> >>>>>> Chris >>>>>> >>>>>> >>>>>>> On 18 Apr 2015, at 14:50 , León Felipe Sánchez Ambía <leonfelipe@sanchez.mx> wrote: >>>>>>> >>>>>>> All, >>>>>>> >>>>>>> I am forwarding this document from Counsel for your records and for its relevance for our overall work. >>>>>>> >>>>>>> >>>>>>> Best regards, >>>>>>> >>>>>>> >>>>>>> León >>>>>>> >>>>>>>> Inicio del mensaje reenviado: >>>>>>>> >>>>>>>> Para: "ccwg-accountability5@icann.org" <ccwg-accountability5@icann.org> >>>>>>>> Fecha: 17 de abril de 2015 22:21:36 GMT-5 >>>>>>>> De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5@icann.org> >>>>>>>> Asunto: [Acct-Legal] (no subject) >>>>>>>> Responder a: ccwg-accountability5@icann.org >>>>>>>> >>>>>>>> >>>>>>>> >>>>>>>> Dear Legal Sub-Team, Attached please find revisions to the chart comparing the member and designator approaches from Sidley and Adler & Colvin as requested. Please note that in our cover memo we have posed several questions for your consideration. We have also provided a discussion of some considerations regarding implementation of both approaches. We are look forward to discussing with CCWG next week. Kind regards, Holly >>>>>>>> >>>>>>>> HOLLY J. GREGORY >>>>>>>> Partner >>>>>>>> >>>>>>>> Sidley Austin LLP >>>>>>>> +1.212.839.5853 >>>>>>>> holly.gregory@sidley.com >>>>>>>> >>>>>>>> >>>>>>>> >>>>>>>> **************************************************************************************************** >>>>>>>> This e-mail is sent by a law firm and may contain information that is privileged or confidential. >>>>>>>> If you are not the intended recipient, please delete the e-mail and any attachments and notify us >>>>>>>> immediately. >>>>>>>> >>>>>>>> **************************************************************************************************** >>>>>>>> >>>>>>> <Legal Assessment_ Governance Chart.pdf> >>>>>>>> _______________________________________________ >>>>>>>> Ccwg-accountability5 mailing list >>>>>>>> Ccwg-accountability5@icann.org >>>>>>>> https://mm.icann.org/mailman/listinfo/ccwg-accountability5 >>>>>>> >>>>>>> _______________________________________________ >>>>>>> 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 >>>>>> >>>>>> >>>>>> _______________________________________________ >>>>>> Ccwg-accountability5 mailing list >>>>>> Ccwg-accountability5@icann.org >>>>>> https://mm.icann.org/mailman/listinfo/ccwg-accountability5 >>>> >>>> >>>> _______________________________________________ >>>> 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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Hi, While not arguing for the member model, as I have my own concerns with the model ... On 21-Apr-15 19:07, Chris Disspain wrote:

The current recommended model does not provide any viable solution for dealing with the GAC. It seems obvious to me that the governments involved in the GAC are not going to agree to form an unincorporated association under Californian law. If I'm right then presumably the GAC would remain as an advisory committee and would not be able to have a vote in any of the escalation mechanisms. That may be fine as the GAC may not want to have a vote anyway.

The GAC currently does not have a voting Board Director. I have understood that the reason is that they don't want one. Becoming a member is largely about (s)electing a Director. While there are other member oversight powers, the GAC has a special Bylaw status that gives it a degree of ICANN oversight and takes it out of the standard AC model; no other SOAC has the degree of control over the Board that the GAC does. I see no reason why difficulties they might have deciding to become members would be a gating consideration on picking this model. I think that one of the points about their special advice status is that they don't need to become ICANN members to influence the Board. I have a viewpoint on the ccNSO and its ability to adequately represent the interests of all ccTLDs, but figure the better part of valor requires me to remain silent on that. On the other hand, As mentioned above, I have concerns with a member model as a WS1 solution, especially its implementation in the required time frame. I also see the new accountability issues and capture scenarios of the membership model as something that would need to explored and documented; all of the SOAC legal entitieis would be new structures and we would need to provide the details - WS1 is part of the IANA submission. These days, the Board and its SIC (Structural Improvements Committee) are the effective oversight for the SOAC (except the GAC). Would that still be the case when they were independent legal entities? If not, how would they prove accountability and non-capture to their respective communities or to the other members? I believe it could be done, but it is not a quick job. Or does the Board and its SIC remain responsible as today - if so, how would that work? Another question I have is on the member model as related to the ATRT. The ATRT can make recommendations regarding any part of ICANN, including the SOAC structure, both internal and in their relationship to each other. As part of ATRT2, we made recommendations related to GNSO policy development process, ATRT1 made recommendations about the relationship between the Board and the GAC. Would that still be in scope when to the SOAC became independent legal entities? Would we need to modify the AOC derivative bylaws to deal with that? The more I think about the member model, the more questions I come up with. Do we absolutely need this to achieve what we need for WS1? Or is it the 'Tesla' we wish we had. avri --- This email has been checked for viruses by Avast antivirus software. http://www.avast.com

Chris, Can you explain your statement "The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice."? I don't see how you came to that conclusion. I don't think we are proposing any different powers under a member structure as opposed to a designator structure (or any other structure). On Tue, Apr 21, 2015 at 7:07 PM, Chris Disspain <ceo@auda.org.au> wrote:

Hi Keith,

As promised I set out in brief below some of the reasons why, in respect to the membership model and any model requiring the SOs and ACs to convert to legal entities, I have serious concerns and why I referred to significant sacrifices.

GAC

The current recommended model does not provide any viable solution for dealing with the GAC. It seems obvious to me that the governments involved in the GAC are not going to agree to form an unincorporated association under Californian law. If I'm right then presumably the GAC would remain as an advisory committee and would not be able to have a vote in any of the escalation mechanisms. That may be fine as the GAC may not want to have a vote anyway.

However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?

ccTLDs

When we set up the ccNSO and when we did the structural review of it some time thereafter there was considerable discussion about how it could be structured precisely to avoid the need for ccTLDs to join anything. There was even significant concern about having to fill out a form and whether that implied the existence of some organisation. The concerns included joining something in the jurisdiction of the US and whether that would make a ccTLD manager in any way subject to US law, the possibility of being sued in the US because the manager would be deemed to have a presence there, how such a structure would be funded (especially if it was sued), whether there was any liability on ‘officers’ of the entity and so on. I believe that many of these concerns will still exist for many ccTLDs.

Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).

At Large

I don’t know the answer to this but it strikes me that the structure may also be problematic for At Large community as opposed to ALAC. On that one over the ALAC folks to comment.

There’s more but I'm rushing for my flight now. Hope this gives you a flavour.

Cheers,

Chris

On 21 Apr 2015, at 20:46 , Chris Disspain <ceo@auda.org.au> wrote:

Hi Keith,

Thanks for the below. You ask a valid question and Kavouss has sent me an email asking the same. I will respond in detail in the next 7 hours or so.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek@verisign.com> wrote:

Thanks Chris, no apologies necessary...this is exactly the kind of dialogue needed to advance our work.

Can you be more explicit about the "significant number of sacrifices that would need to be made in a membership scenario" that ccTLDs face? Particularly if any are unique to ccTLDs?

Sacrifices may be needed (including from the Board) if we are to accomplish the community's broader goal of ensuring the ICANN Board and Staff are truly accountable to the ICANN community for the next decade. As such, it would be good to know, as early as possible, what those sacrifices might be.

In simple terms, I agree that determining what can and cannot be accomplished within the existing structure is a worthwhile exercise and will help to inform the community.

Based on our work and the relevant independent legal analysis to date, it appears to me that the current construct has significant gaps and shortcomings and won't deliver on our goals, but I support seeking further advice on the topic from our independent legal advisors.

Thanks and regards, Keith

On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo@auda.org.au> wrote:

Thanks Keith.

I apologise for pinging back and forth on this but I hope the list will appreciate that it as an indication of how important auDA believes this point is.

As I said on the CCWG call last week, I have serious concerns about the viability of the lawyers' recommended structural changes (at least from a cc point of view) and want to be crystal clear about what we can do or cannot do within the current structure.

For a ccTLD there are a significant number of sacrifices that would need to be made in a membership scenario and I don't believe the cc community can decide whether those sacrifices are worth making unless we can weigh them against what we would be able to achieve using the current structure.

I think that is essential that our output to the community contains a clear explanation of what the status quo can achieve. If it does not then IMO it is impossible to judge the other scenarios.

I appreciate your second para and, as a lawyer, I know that time for a response is required. I also appreciate the time constraints under which we are operating. But we will lose more time if the result of our document is a series of questions about whether there really is a need to make the significant changes being recommended.

In simple terms 'not nearly enough' is not an acceptable response. How can I know that "it" is not nearly enough unless I know what "it" is?

Chris Disspain CEO - auDA

On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek@verisign.com> wrote:

Chris,

I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough."

That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond.

Regards, Keith

Sent from my iPhone

On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo@auda.org.au> wrote:

Greg,

Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc@gmail.com> wrote:

Chris,

The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier.

However, you assumed no change to the SOACs, which made the answers much harder.

Greg

On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au> wrote:

...

Greg, All,

With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations.

Cheers,

Chris

On 21 Apr 2015, at 16:59 , Greg Shatan <gregshatanipc@gmail.com> wrote:

Kavouss,

That is not a correct summary of my views. Bylaws provisions are generally enforceable. (As an aside, "enforceable" can be use to mean two different things: (1) is the provision valid, so that an enforcement effort will not fail, and (2) can the other party or parties undertake an effort to enforce the provision by commencing litigation. I have tried to deal with both aspects of "enforceability," without veering too far into other ways of getting ones way (e.g., California AG, political pressure, Congressional investigation, pulling out and creating an alternate IANA, etc.)

In spite of the general rule, there are two issues in this specific circumstance that undercut this general rule of enforceability. First, a couple of the specific powers that Chris mentions are ones where a third party is given a right superior the Board to make a decision regarding the management of the company (veto of budget and arbitration to enforce the veto of budget). In a member organization, the members can appropriately be in this superior position. In a non-member organization, that is inconsistent with the role of the Board, which brings the validity of these bylaw changes as hypothesized by Chris into question. Second, the SO/ACs, as entities currently without legal personhood, would likely not be able to participate in a litigation to enforce these bylaws; thus, the second type of enforceability is also an issue.

It may be less troublesome for ICANN to enter into contracts and agree with third parties (i.e., the SO/ACs) that these third parties have the right to veto the budget. (Companies may be able to agree with third parties to do things that could not be part of their internal governance schema.) However, on further reflection, even this approach has its issues -- as the SO/ACs lack legal personhood currently, they cannot enter into contracts, either. (By contrast, the bylaws changes can at least be put into place without any action on the SO/AC's part.)

I should note that granting third parties the right to approve a bylaw change (the third hypothetical action in Chris's email) is not as exceptional, so is less likely to raise validity concerns. This still leaves the issue that the SO/AC's lack the requisite legal existence to commence legal action to enforce a bylaws change in the event the Board fails to recognize such a bylaws change.

In my opinion this kind of complexity and uncertainty is precisely why the member model should be adopted.

Greg

On Tue, Apr 21, 2015 at 2:25 AM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:

...

Dear All We complicating the case by envisaging the most extreme exceptional circumstances. In view of Greg, a Contract provisions are enforceable compared to Bylaws provisions which in his views are not enforceable! We may put the questions and answers to the lawyers and wait whether are consent? Could someone take necessary action ( e. g.) co chair in this regard? Tks Kavousd

Sent from my iPhone

On 21 Apr 2015, at 08:02, Greg Shatan <gregshatanipc@gmail.com> wrote:

​The questions are simple. The answers may not be....

Also, it depends on what the lawyers are currently working on. Further, the meeting is in about 13 hours, and ​I expect (given the time) at least 6-8 of those hours will be used for sleep and commuting. So, it's not a lot of time.

My views are as follows:

On question 1, I think there may be issues in granting this right via bylaw, except to statutory members (and possibly to designators, at least where formally denoted as such), but these many not sufficient issues to cause the bylaw to be invalid. If it's found to be invalid in court, then it would be unenforceable. However, I believe that something similar could be achieved by contract, which should then be enforceable.

On question 2, I would say that the Board cannot ignore an action mandated by the bylaws without some consequences. The SOs and ACs as currently constituted may not have the necessary legal personhood to pursue litigation. However, this could be reported to the California Attorney General, who has broad oversight powers relating to non-profits, and would probably be quite interested to hear about a relatively high-profile non-profit where the Board was ignoring actions mandated by duly approved bylaws. This could certainly be considered "enforcement," broadly speaking. There may also be other parties with legal personhood that could pursue litigation, and other governmental entities (Congress?) that could make this an exceedingly difficult choice to sustain.

On 3, if the bylaw says the Board is bound, they're bound, unless the Board were to successfully challenge the validity of the bylaw. Again, it may be possible to achieve this by contract, with fewer questions raised. And again, there may be issues in granting this right to parties other than members (or possibly formally recognized designators), but those issues may not invalidate the bylaw.

On 4, I think the answers to question 2 apply here as well.

We can see if counsel agrees with this....

Greg Caveat: not legal advice, not admitted in California

On Tue, Apr 21, 2015 at 12:55 AM, Chris Disspain <ceo@auda.org.au> wrote:

...

Hi León,

Really? They are fairly simple questions. As I said, I can ask them on the call.

Cheers,

Chris

On 21 Apr 2015, at 14:32 , León Felipe Sánchez Ambía < leonfelipe@sanchez.mx> wrote:

Thanks Greg,

I just want to note that for the short notice it is unlikely we will be able to have answers to feed the discussion in our call tomorrow.

Best regards,

León

El 20/04/2015, a las 23:22, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5@icann.org> escribió:

I am forwarding Chris Disspain's email into the Legal Sub Team for further consideration. I will let our counsels respond, should the Legal Sub Team's discussion result in a referral of the questions to counsel.

Greg Shatan

---------- Forwarded message ---------- From: Chris Disspain <ceo@auda.org.au> Date: Tue, Apr 21, 2015 at 12:03 AM Subject: [CCWG-ACCT] Legal question To: Accountability Cross Community < accountability-cross-community@icann.org>

Hello All,

I’m not sure if this email should be addressed to the whole group, the legal sub-team or some other. Anyway, I have some questions that I would appreciate answers to from the CCWG’s lawyers. Happy to discuss on the upcoming CCWG call.

Under the current structure of ICANN and its SOs and ACs

1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws?

2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto?

3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding?

4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable?

Cheers,

Chris

On 18 Apr 2015, at 14:50 , León Felipe Sánchez Ambía < leonfelipe@sanchez.mx> wrote:

All,

I am forwarding this document from Counsel for your records and for its relevance for our overall work.

Best regards,

León

Inicio del mensaje reenviado:

*Para: *"ccwg-accountability5@icann.org" < ccwg-accountability5@icann.org> *Fecha: *17 de abril de 2015 22:21:36 GMT-5 *De: *List for the work of CCWG-Accountability Legal SubTeam < ccwg-accountability5@icann.org> *Asunto: **[Acct-Legal] (no subject)* *Responder a: *ccwg-accountability5@icann.org

Dear Legal Sub-Team, Attached please find revisions to the chart comparing the member and designator approaches from Sidley and Adler & Colvin as requested. Please note that in our cover memo we have posed several questions for your consideration. We have also provided a discussion of some considerations regarding implementation of both approaches. We are look forward to discussing with CCWG next week. Kind regards, Holly

*HOLLY J. GREGORY*

* Partner * *Sidley Austin LLP* +1.212.839.5853 holly.gregory@sidley.com

**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.

****************************************************************************************************

<Legal Assessment_ Governance Chart.pdf>

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Hi all, hi Chris: On 22 April 2015 at 11:07, Chris Disspain <ceo@auda.org.au> wrote:

Hi Keith,

As promised I set out in brief below some of the reasons why, in respect to the membership model and any model requiring the SOs and ACs to convert to legal entities, I have serious concerns and why I referred to significant sacrifices.

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere. The only proposal that I've seen from the lawyers is that if membership was the model chosen, legal personality would need to be created. The actors in the various SOs and ACs would, in exercising membership prerogatives, act through the unincorporated associations. The lawyers have also been clear that even in a designator model, it's preferable to create legal personality along those lines. I think it is really really really important for everyone involved in this effort to be very precise and clear about what we are discussing and what we aren't. So I am writing this so directly in order that if my understanding is wrong, it gets picked up pronto! :-) GAC

The current recommended model does not provide any viable solution for dealing with the GAC. It seems obvious to me that the governments involved in the GAC are not going to agree to form an unincorporated association under Californian law. If I'm right then presumably the GAC would remain as an advisory committee and would not be able to have a vote in any of the escalation mechanisms. That may be fine as the GAC may not want to have a vote anyway.

Indeed it may not. Being able to offer advice on public policy issues to the ICANN Board and to appoint a non-voting liaison member to the Board. I am looking forward to hearing their views on this (and many other questions).

However I see a serious incompatibility between the members' powers and the standing of GAC advice to the Board. It's not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?

I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles). If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued. Does that feel like a fundamental issue to you? It doesn't to me.

ccTLDs

When we set up the ccNSO and when we did the structural review of it some time thereafter there was considerable discussion about how it could be structured precisely to avoid the need for ccTLDs to join anything. There was even significant concern about having to fill out a form and whether that implied the existence of some organisation. The concerns included joining something in the jurisdiction of the US and whether that would make a ccTLD manager in any way subject to US law, the possibility of being sued in the US because the manager would be deemed to have a presence there, how such a structure would be funded (especially if it was sued), whether there was any liability on 'officers' of the entity and so on. I believe that many of these concerns will still exist for many ccTLDs.

They may or may not. But in that fifteen-years-ago debate, were there any facts on the table about those questions? Or was it all a bit of a mess on many fronts? Because ICANN in 2015 is, better or worse, a very different beast to ICANN in ~ 2000. Perhaps more importantly, exercising some rights through an unincorporated association would remain a choice for every ICANN participant. Nobody would be forced to be involved. It isn't like a "Join ICANN and have no say" - all the current structures for the "business of the business" would remain in place.

From the legends I have heard about this early phase in ICANN's history, the fundamental concern was of a power-grab on the corporation's part. Since these reforms make such a power-grab harder (and let's remember that the end of the NTIA contract makes it easier...), I'd expect ccTLDs and others to look at them with quite some interest.

Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).

They won't have to, to do what they do in ICANN today. The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment. That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot. Finally -- I do think this is a really useful and constructive discussion. As someone who is warm to the member approach, but who sees huge benefits if we can manage a "no structural change" outcome, this is just the convo we need to have. cheers, Jordan

At Large

I don't know the answer to this but it strikes me that the structure may also be problematic for At Large community as opposed to ALAC. On that one over the ALAC folks to comment.

There's more but I'm rushing for my flight now. Hope this gives you a flavour.

Cheers,

Chris

On 21 Apr 2015, at 20:46 , Chris Disspain <ceo@auda.org.au> wrote:

Hi Keith,

Thanks for the below. You ask a valid question and Kavouss has sent me an email asking the same. I will respond in detail in the next 7 hours or so.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek@verisign.com> wrote:

Thanks Chris, no apologies necessary...this is exactly the kind of dialogue needed to advance our work.

Can you be more explicit about the "significant number of sacrifices that would need to be made in a membership scenario" that ccTLDs face? Particularly if any are unique to ccTLDs?

Sacrifices may be needed (including from the Board) if we are to accomplish the community's broader goal of ensuring the ICANN Board and Staff are truly accountable to the ICANN community for the next decade. As such, it would be good to know, as early as possible, what those sacrifices might be.

In simple terms, I agree that determining what can and cannot be accomplished within the existing structure is a worthwhile exercise and will help to inform the community.

Based on our work and the relevant independent legal analysis to date, it appears to me that the current construct has significant gaps and shortcomings and won't deliver on our goals, but I support seeking further advice on the topic from our independent legal advisors.

Thanks and regards, Keith

On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo@auda.org.au> wrote:

Thanks Keith.

I apologise for pinging back and forth on this but I hope the list will appreciate that it as an indication of how important auDA believes this point is.

As I said on the CCWG call last week, I have serious concerns about the viability of the lawyers' recommended structural changes (at least from a cc point of view) and want to be crystal clear about what we can do or cannot do within the current structure.

For a ccTLD there are a significant number of sacrifices that would need to be made in a membership scenario and I don't believe the cc community can decide whether those sacrifices are worth making unless we can weigh them against what we would be able to achieve using the current structure.

I think that is essential that our output to the community contains a clear explanation of what the status quo can achieve. If it does not then IMO it is impossible to judge the other scenarios.

I appreciate your second para and, as a lawyer, I know that time for a response is required. I also appreciate the time constraints under which we are operating. But we will lose more time if the result of our document is a series of questions about whether there really is a need to make the significant changes being recommended.

In simple terms 'not nearly enough' is not an acceptable response. How can I know that "it" is not nearly enough unless I know what "it" is?

Chris Disspain CEO - auDA

On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek@verisign.com> wrote:

Chris,

I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough."

That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond.

Regards, Keith

Sent from my iPhone

On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo@auda.org.au> wrote:

Greg,

Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc@gmail.com> wrote:

Chris,

The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier.

However, you assumed no change to the SOACs, which made the answers much harder.

Greg

On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au> wrote:

...

Greg, All,

With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations.

Cheers,

Chris

-- Jordan Carter

Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter *A better world through a better Internet *

Jordan, Apologies for taking so long to respond!

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

I’m confused. Greg seems o think that’s exactly what was being proposed. Do we have clarity on this yet? I’ll respond to the balance of your points later today. Cheers, Chris On 22 Apr 2015, at 16:02 , Jordan Carter <jordan@internetnz.net.nz> wrote:

Hi all, hi Chris:

On 22 April 2015 at 11:07, Chris Disspain <ceo@auda.org.au> wrote: Hi Keith,

As promised I set out in brief below some of the reasons why, in respect to the membership model and any model requiring the SOs and ACs to convert to legal entities, I have serious concerns and why I referred to significant sacrifices.

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

The only proposal that I've seen from the lawyers is that if membership was the model chosen, legal personality would need to be created. The actors in the various SOs and ACs would, in exercising membership prerogatives, act through the unincorporated associations.

The lawyers have also been clear that even in a designator model, it's preferable to create legal personality along those lines.

I think it is really really really important for everyone involved in this effort to be very precise and clear about what we are discussing and what we aren't. So I am writing this so directly in order that if my understanding is wrong, it gets picked up pronto! :-)

GAC

The current recommended model does not provide any viable solution for dealing with the GAC. It seems obvious to me that the governments involved in the GAC are not going to agree to form an unincorporated association under Californian law. If I'm right then presumably the GAC would remain as an advisory committee and would not be able to have a vote in any of the escalation mechanisms. That may be fine as the GAC may not want to have a vote anyway.

Indeed it may not. Being able to offer advice on public policy issues to the ICANN Board and to appoint a non-voting liaison member to the Board. I am looking forward to hearing their views on this (and many other questions).

However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?

I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).

If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.

Does that feel like a fundamental issue to you? It doesn't to me.

ccTLDs

When we set up the ccNSO and when we did the structural review of it some time thereafter there was considerable discussion about how it could be structured precisely to avoid the need for ccTLDs to join anything. There was even significant concern about having to fill out a form and whether that implied the existence of some organisation. The concerns included joining something in the jurisdiction of the US and whether that would make a ccTLD manager in any way subject to US law, the possibility of being sued in the US because the manager would be deemed to have a presence there, how such a structure would be funded (especially if it was sued), whether there was any liability on ‘officers’ of the entity and so on. I believe that many of these concerns will still exist for many ccTLDs.

They may or may not. But in that fifteen-years-ago debate, were there any facts on the table about those questions? Or was it all a bit of a mess on many fronts? Because ICANN in 2015 is, better or worse, a very different beast to ICANN in ~ 2000.

Perhaps more importantly, exercising some rights through an unincorporated association would remain a choice for every ICANN participant. Nobody would be forced to be involved. It isn't like a "Join ICANN and have no say" - all the current structures for the "business of the business" would remain in place.

From the legends I have heard about this early phase in ICANN's history, the fundamental concern was of a power-grab on the corporation's part. Since these reforms make such a power-grab harder (and let's remember that the end of the NTIA contract makes it easier...), I'd expect ccTLDs and others to look at them with quite some interest.

Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).

They won't have to, to do what they do in ICANN today.

The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.

That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.

Finally -- I do think this is a really useful and constructive discussion. As someone who is warm to the member approach, but who sees huge benefits if we can manage a "no structural change" outcome, this is just the convo we need to have.

cheers, Jordan

At Large

I don’t know the answer to this but it strikes me that the structure may also be problematic for At Large community as opposed to ALAC. On that one over the ALAC folks to comment.

There’s more but I'm rushing for my flight now. Hope this gives you a flavour.

Cheers,

Chris

On 21 Apr 2015, at 20:46 , Chris Disspain <ceo@auda.org.au> wrote:

...

Hi Keith,

Thanks for the below. You ask a valid question and Kavouss has sent me an email asking the same. I will respond in detail in the next 7 hours or so.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek@verisign.com> wrote:

...

Thanks Chris, no apologies necessary...this is exactly the kind of dialogue needed to advance our work.

Can you be more explicit about the "significant number of sacrifices that would need to be made in a membership scenario" that ccTLDs face? Particularly if any are unique to ccTLDs?

Sacrifices may be needed (including from the Board) if we are to accomplish the community's broader goal of ensuring the ICANN Board and Staff are truly accountable to the ICANN community for the next decade. As such, it would be good to know, as early as possible, what those sacrifices might be.

In simple terms, I agree that determining what can and cannot be accomplished within the existing structure is a worthwhile exercise and will help to inform the community.

Based on our work and the relevant independent legal analysis to date, it appears to me that the current construct has significant gaps and shortcomings and won't deliver on our goals, but I support seeking further advice on the topic from our independent legal advisors.

Thanks and regards, Keith

On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo@auda.org.au> wrote:

...

Thanks Keith.

I apologise for pinging back and forth on this but I hope the list will appreciate that it as an indication of how important auDA believes this point is.

As I said on the CCWG call last week, I have serious concerns about the viability of the lawyers' recommended structural changes (at least from a cc point of view) and want to be crystal clear about what we can do or cannot do within the current structure.

For a ccTLD there are a significant number of sacrifices that would need to be made in a membership scenario and I don't believe the cc community can decide whether those sacrifices are worth making unless we can weigh them against what we would be able to achieve using the current structure.

I think that is essential that our output to the community contains a clear explanation of what the status quo can achieve. If it does not then IMO it is impossible to judge the other scenarios.

I appreciate your second para and, as a lawyer, I know that time for a response is required. I also appreciate the time constraints under which we are operating. But we will lose more time if the result of our document is a series of questions about whether there really is a need to make the significant changes being recommended.

In simple terms 'not nearly enough' is not an acceptable response. How can I know that "it" is not nearly enough unless I know what "it" is?

Chris Disspain CEO - auDA

On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek@verisign.com> wrote:

...

Chris,

I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough."

That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond.

Regards, Keith

Sent from my iPhone

On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo@auda.org.au> wrote:

...

Greg,

Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc@gmail.com> wrote:

> Chris, > > The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier. > > However, you assumed no change to the SOACs, which made the answers much harder. > > Greg > > On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au> wrote: > Greg, All, > > With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations. > > > Cheers, > > > Chris >

-- 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

This is consistent with my understanding too. Cheers Jordan On 30 April 2015 at 11:28, Greg Shatan <gregshatanipc@gmail.com> wrote:

Chris,

Please let me try to clarify my understanding of what is currently being proposed (in draft). The SO/ACs will not be "converted" into legal entities. Rather, a "mirror" or "alter ego" entity will be set up for each SO/AC, likely as a unincorporated association (which is a recognized legal entity under California law). Each SO/AC will control its alter ego. This is quite similar to the relationship between the ASO and the NRO. The SO/ACs will continue to exist and will perform and operate as they currently do. The legal entities will be the members (or designators, should that route be chosen) of ICANN, with the specific rights and powers ascribed to them in that capacity by statute and bylaw.

Technically, the unincorporated associations only need a minimum of two members, so any "members" of a SO/AC who don't wish to be members of the alter ego won't need to be. The control arrangements between the SO/AC and the alter ego will ensure that all "members" of the SO/AC (and even non-members, such as non-ccNSO ccTLDs, if desired) get the appropriate "say" in any decisions that are to be carried out by the alter ego.

Best regards,

Greg

On Wed, Apr 29, 2015 at 6:40 PM, Chris Disspain <ceo@auda.org.au> wrote:

...

Jordan,

Apologies for taking so long to respond!

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

I'm confused. Greg seems o think that's exactly what was being proposed. Do we have clarity on this yet?

I'll respond to the balance of your points later today.

Cheers,

Chris

On 22 Apr 2015, at 16:02 , Jordan Carter <jordan@internetnz.net.nz> wrote:

Hi all, hi Chris:

On 22 April 2015 at 11:07, Chris Disspain <ceo@auda.org.au> wrote:

...

Hi Keith,

As promised I set out in brief below some of the reasons why, in respect to the membership model and any model requiring the SOs and ACs to convert to legal entities, I have serious concerns and why I referred to significant sacrifices.

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

The only proposal that I've seen from the lawyers is that if membership was the model chosen, legal personality would need to be created. The actors in the various SOs and ACs would, in exercising membership prerogatives, act through the unincorporated associations.

The lawyers have also been clear that even in a designator model, it's preferable to create legal personality along those lines.

I think it is really really really important for everyone involved in this effort to be very precise and clear about what we are discussing and what we aren't. So I am writing this so directly in order that if my understanding is wrong, it gets picked up pronto! :-)

GAC

...

The current recommended model does not provide any viable solution for dealing with the GAC. It seems obvious to me that the governments involved in the GAC are not going to agree to form an unincorporated association under Californian law. If I'm right then presumably the GAC would remain as an advisory committee and would not be able to have a vote in any of the escalation mechanisms. That may be fine as the GAC may not want to have a vote anyway.

Indeed it may not. Being able to offer advice on public policy issues to the ICANN Board and to appoint a non-voting liaison member to the Board. I am looking forward to hearing their views on this (and many other questions).

...

However I see a serious incompatibility between the members' powers and the standing of GAC advice to the Board. It's not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?

I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).

If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.

Does that feel like a fundamental issue to you? It doesn't to me.

...

ccTLDs

When we set up the ccNSO and when we did the structural review of it some time thereafter there was considerable discussion about how it could be structured precisely to avoid the need for ccTLDs to join anything. There was even significant concern about having to fill out a form and whether that implied the existence of some organisation. The concerns included joining something in the jurisdiction of the US and whether that would make a ccTLD manager in any way subject to US law, the possibility of being sued in the US because the manager would be deemed to have a presence there, how such a structure would be funded (especially if it was sued), whether there was any liability on 'officers' of the entity and so on. I believe that many of these concerns will still exist for many ccTLDs.

They may or may not. But in that fifteen-years-ago debate, were there any facts on the table about those questions? Or was it all a bit of a mess on many fronts? Because ICANN in 2015 is, better or worse, a very different beast to ICANN in ~ 2000.

Perhaps more importantly, exercising some rights through an unincorporated association would remain a choice for every ICANN participant. Nobody would be forced to be involved. It isn't like a "Join ICANN and have no say" - all the current structures for the "business of the business" would remain in place.

From the legends I have heard about this early phase in ICANN's history, the fundamental concern was of a power-grab on the corporation's part. Since these reforms make such a power-grab harder (and let's remember that the end of the NTIA contract makes it easier...), I'd expect ccTLDs and others to look at them with quite some interest.

...

Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).

They won't have to, to do what they do in ICANN today.

The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.

That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.

Finally -- I do think this is a really useful and constructive discussion. As someone who is warm to the member approach, but who sees huge benefits if we can manage a "no structural change" outcome, this is just the convo we need to have.

cheers, Jordan

...

At Large

I don't know the answer to this but it strikes me that the structure may also be problematic for At Large community as opposed to ALAC. On that one over the ALAC folks to comment.

There's more but I'm rushing for my flight now. Hope this gives you a flavour.

Cheers,

Chris

On 21 Apr 2015, at 20:46 , Chris Disspain <ceo@auda.org.au> wrote:

Hi Keith,

Thanks for the below. You ask a valid question and Kavouss has sent me an email asking the same. I will respond in detail in the next 7 hours or so.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek@verisign.com> wrote:

Thanks Chris, no apologies necessary...this is exactly the kind of dialogue needed to advance our work.

Can you be more explicit about the "significant number of sacrifices that would need to be made in a membership scenario" that ccTLDs face? Particularly if any are unique to ccTLDs?

Sacrifices may be needed (including from the Board) if we are to accomplish the community's broader goal of ensuring the ICANN Board and Staff are truly accountable to the ICANN community for the next decade. As such, it would be good to know, as early as possible, what those sacrifices might be.

In simple terms, I agree that determining what can and cannot be accomplished within the existing structure is a worthwhile exercise and will help to inform the community.

Based on our work and the relevant independent legal analysis to date, it appears to me that the current construct has significant gaps and shortcomings and won't deliver on our goals, but I support seeking further advice on the topic from our independent legal advisors.

Thanks and regards, Keith

On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo@auda.org.au> wrote:

Thanks Keith.

I apologise for pinging back and forth on this but I hope the list will appreciate that it as an indication of how important auDA believes this point is.

As I said on the CCWG call last week, I have serious concerns about the viability of the lawyers' recommended structural changes (at least from a cc point of view) and want to be crystal clear about what we can do or cannot do within the current structure.

For a ccTLD there are a significant number of sacrifices that would need to be made in a membership scenario and I don't believe the cc community can decide whether those sacrifices are worth making unless we can weigh them against what we would be able to achieve using the current structure.

I think that is essential that our output to the community contains a clear explanation of what the status quo can achieve. If it does not then IMO it is impossible to judge the other scenarios.

I appreciate your second para and, as a lawyer, I know that time for a response is required. I also appreciate the time constraints under which we are operating. But we will lose more time if the result of our document is a series of questions about whether there really is a need to make the significant changes being recommended.

In simple terms 'not nearly enough' is not an acceptable response. How can I know that "it" is not nearly enough unless I know what "it" is?

Chris Disspain CEO - auDA

On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek@verisign.com> wrote:

Chris,

I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough."

That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond.

Regards, Keith

Sent from my iPhone

On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo@auda.org.au> wrote:

Greg,

Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc@gmail.com> wrote:

Chris,

The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier.

However, you assumed no change to the SOACs, which made the answers much harder.

Greg

On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au> wrote:

...

Greg, All,

With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations.

Cheers,

Chris

-- Jordan Carter

Chief Executive *InternetNZ*

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Hi Chris, My understanding is that each UA will set its own procedures and conditions. Therefore, control mechanisms should be established by and within each UA. I believe, however, that this is a question worth asking to the lawyers for further clarity so I am forwarding this thread to the legal sub-team list in order to have the lawyers look at the conversation and have their advice on this las point you mention. Holly and Rosemary, Is my understanding accurate? As Chris says, which control mechanisms could be put in place and how would they be enforced under the hypothesis discussed in this thread? Best regards, León

El 29/04/2015, a las 18:38, Chris Disspain <ceo@auda.org.au> escribió:

Thanks Greg. Clear and understood.

What will the control mechanisms be between the ccNSO and its alter ego and how will they be enforced?

Cheers,

Chris

On 30 Apr 2015, at 09:28 , Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:

...

Chris,

Please let me try to clarify my understanding of what is currently being proposed (in draft). The SO/ACs will not be "converted" into legal entities. Rather, a "mirror" or "alter ego" entity will be set up for each SO/AC, likely as a unincorporated association (which is a recognized legal entity under California law). Each SO/AC will control its alter ego. This is quite similar to the relationship between the ASO and the NRO. The SO/ACs will continue to exist and will perform and operate as they currently do. The legal entities will be the members (or designators, should that route be chosen) of ICANN, with the specific rights and powers ascribed to them in that capacity by statute and bylaw.

Technically, the unincorporated associations only need a minimum of two members, so any "members" of a SO/AC who don't wish to be members of the alter ego won't need to be. The control arrangements between the SO/AC and the alter ego will ensure that all "members" of the SO/AC (and even non-members, such as non-ccNSO ccTLDs, if desired) get the appropriate "say" in any decisions that are to be carried out by the alter ego.

Best regards,

Greg

On Wed, Apr 29, 2015 at 6:40 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote: Jordan,

Apologies for taking so long to respond!

...

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

I’m confused. Greg seems o think that’s exactly what was being proposed. Do we have clarity on this yet?

I’ll respond to the balance of your points later today.

Cheers,

Chris

On 22 Apr 2015, at 16:02 , Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> wrote:

...

Hi all, hi Chris:

On 22 April 2015 at 11:07, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote: Hi Keith,

As promised I set out in brief below some of the reasons why, in respect to the membership model and any model requiring the SOs and ACs to convert to legal entities, I have serious concerns and why I referred to significant sacrifices.

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

The only proposal that I've seen from the lawyers is that if membership was the model chosen, legal personality would need to be created. The actors in the various SOs and ACs would, in exercising membership prerogatives, act through the unincorporated associations.

The lawyers have also been clear that even in a designator model, it's preferable to create legal personality along those lines.

I think it is really really really important for everyone involved in this effort to be very precise and clear about what we are discussing and what we aren't. So I am writing this so directly in order that if my understanding is wrong, it gets picked up pronto! :-)

GAC

The current recommended model does not provide any viable solution for dealing with the GAC. It seems obvious to me that the governments involved in the GAC are not going to agree to form an unincorporated association under Californian law. If I'm right then presumably the GAC would remain as an advisory committee and would not be able to have a vote in any of the escalation mechanisms. That may be fine as the GAC may not want to have a vote anyway.

Indeed it may not. Being able to offer advice on public policy issues to the ICANN Board and to appoint a non-voting liaison member to the Board. I am looking forward to hearing their views on this (and many other questions).

However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?

I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).

If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.

Does that feel like a fundamental issue to you? It doesn't to me.

ccTLDs <> When we set up the ccNSO and when we did the structural review of it some time thereafter there was considerable discussion about how it could be structured precisely to avoid the need for ccTLDs to join anything. There was even significant concern about having to fill out a form and whether that implied the existence of some organisation. The concerns included joining something in the jurisdiction of the US and whether that would make a ccTLD manager in any way subject to US law, the possibility of being sued in the US because the manager would be deemed to have a presence there, how such a structure would be funded (especially if it was sued), whether there was any liability on ‘officers’ of the entity and so on. I believe that many of these concerns will still exist for many ccTLDs.

They may or may not. But in that fifteen-years-ago debate, were there any facts on the table about those questions? Or was it all a bit of a mess on many fronts? Because ICANN in 2015 is, better or worse, a very different beast to ICANN in ~ 2000.

Perhaps more importantly, exercising some rights through an unincorporated association would remain a choice for every ICANN participant. Nobody would be forced to be involved. It isn't like a "Join ICANN and have no say" - all the current structures for the "business of the business" would remain in place.

From the legends I have heard about this early phase in ICANN's history, the fundamental concern was of a power-grab on the corporation's part. Since these reforms make such a power-grab harder (and let's remember that the end of the NTIA contract makes it easier...), I'd expect ccTLDs and others to look at them with quite some interest.

Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).

They won't have to, to do what they do in ICANN today.

The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.

That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.

Finally -- I do think this is a really useful and constructive discussion. As someone who is warm to the member approach, but who sees huge benefits if we can manage a "no structural change" outcome, this is just the convo we need to have.

cheers, Jordan

At Large

I don’t know the answer to this but it strikes me that the structure may also be problematic for At Large community as opposed to ALAC. On that one over the ALAC folks to comment.

There’s more but I'm rushing for my flight now. Hope this gives you a flavour.

Cheers,

Chris

On 21 Apr 2015, at 20:46 , Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:

...

Hi Keith,

Thanks for the below. You ask a valid question and Kavouss has sent me an email asking the same. I will respond in detail in the next 7 hours or so.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> wrote:

...

Thanks Chris, no apologies necessary...this is exactly the kind of dialogue needed to advance our work.

Can you be more explicit about the "significant number of sacrifices that would need to be made in a membership scenario" that ccTLDs face? Particularly if any are unique to ccTLDs?

Sacrifices may be needed (including from the Board) if we are to accomplish the community's broader goal of ensuring the ICANN Board and Staff are truly accountable to the ICANN community for the next decade. As such, it would be good to know, as early as possible, what those sacrifices might be.

In simple terms, I agree that determining what can and cannot be accomplished within the existing structure is a worthwhile exercise and will help to inform the community.

Based on our work and the relevant independent legal analysis to date, it appears to me that the current construct has significant gaps and shortcomings and won't deliver on our goals, but I support seeking further advice on the topic from our independent legal advisors.

Thanks and regards, Keith

On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:

...

Thanks Keith.

I apologise for pinging back and forth on this but I hope the list will appreciate that it as an indication of how important auDA believes this point is.

As I said on the CCWG call last week, I have serious concerns about the viability of the lawyers' recommended structural changes (at least from a cc point of view) and want to be crystal clear about what we can do or cannot do within the current structure.

For a ccTLD there are a significant number of sacrifices that would need to be made in a membership scenario and I don't believe the cc community can decide whether those sacrifices are worth making unless we can weigh them against what we would be able to achieve using the current structure.

I think that is essential that our output to the community contains a clear explanation of what the status quo can achieve. If it does not then IMO it is impossible to judge the other scenarios.

I appreciate your second para and, as a lawyer, I know that time for a response is required. I also appreciate the time constraints under which we are operating. But we will lose more time if the result of our document is a series of questions about whether there really is a need to make the significant changes being recommended.

In simple terms 'not nearly enough' is not an acceptable response. How can I know that "it" is not nearly enough unless I know what "it" is?

Chris Disspain CEO - auDA

On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> wrote:

> > Chris, > > I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough." > > That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond. > > Regards, > Keith > > > > Sent from my iPhone > > On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote: > >> Greg, >> >> Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet. >> >> Chris Disspain >> CEO - auDA >> >> On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: >> >>> Chris, >>> >>> The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier. >>> >>> However, you assumed no change to the SOACs, which made the answers much harder. >>> >>> Greg >>> >>> On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote: >>> Greg, All, >>> >>> With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations. >>> >>> >>> >>> >>> Cheers, >>> >>> >>> >>> Chris >>> -- Jordan Carter

Chief Executive InternetNZ

04 495 2118 (office) | +64 21 442 649 <tel:%2B64%2021%20442%20649> (mob) jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter

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Hi all, On 30 April 2015 at 12:44, Chris Disspain <ceo@auda.org.au> wrote:

León,

Thanks!

I appreciate that each SO/AC could set its own controls over its 'alter ego' and so the question would be more how will any control mechanisms be enforced.

However, I imagine that it may also be important to each SO/AC to ensure that their fellow SOs and ACs have robust control mechanisms in place.

I strongly agree with this. I think there should be common requirements across the SOs/ACs so we don't end up with a hodge podge or low standards for exercising some of these powers. What do others think? J -- 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 *

Avri: I expect there could be general standards and guidelines, with the SOACs given considerable leeway as long as they meet those benchmarks. I believe this is currently the case with SG and C charters in the GNSO. Greg On Wed, Apr 29, 2015 at 11:14 PM, Avri Doria <avri@acm.org> wrote:

Hi,

How does the bottom-up imperative for SO/AC figure into the drive for standardization? Each of the SOC/AC is diffeent according to its own bottom-up priorities, why wouldn't their legal persona also be self directed?

And if the legal persona can be constrained, is this done as an ICANN Board issue or a Members issue.

avri

On 29-Apr-15 21:06, Jordan Carter wrote:

Hi all,

On 30 April 2015 at 12:44, Chris Disspain <ceo@auda.org.au> wrote:

...

León,

Thanks!

I appreciate that each SO/AC could set its own controls over its ‘alter ego’ and so the question would be more how will any control mechanisms be enforced.

However, I imagine that it may also be important to each SO/AC to ensure that their fellow SOs and ACs have robust control mechanisms in place.

I strongly agree with this. I think there should be common requirements across the SOs/ACs so we don't end up with a hodge podge or low standards for exercising some of these powers.

What do others think?

J

-- 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 *

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I think it should be decided in a bottom-up manner, On Thursday, April 30, 2015, Avri Doria <avri@acm.org> wrote:

Hi,

Ok, so a top-down set of constraints the SOAC can live with and within in a bottom-up manner. I guess that really is the form of bottom-up model we already have.

Who decides on this: the Members, or the Board's SIC (Structural Improvements Committee)?

avri

On 29-Apr-15 23:18, Greg Shatan wrote:

Avri:

I expect there could be general standards and guidelines, with the SOACs given considerable leeway as long as they meet those benchmarks. I believe this is currently the case with SG and C charters in the GNSO.

Greg

On Wed, Apr 29, 2015 at 11:14 PM, Avri Doria <avri@acm.org <javascript:_e(%7B%7D,'cvml','avri@acm.org');>> wrote:

...

Hi,

How does the bottom-up imperative for SO/AC figure into the drive for standardization? Each of the SOC/AC is diffeent according to its own bottom-up priorities, why wouldn't their legal persona also be self directed?

And if the legal persona can be constrained, is this done as an ICANN Board issue or a Members issue.

avri

On 29-Apr-15 21:06, Jordan Carter wrote:

Hi all,

On 30 April 2015 at 12:44, Chris Disspain <ceo@auda.org.au <javascript:_e(%7B%7D,'cvml','ceo@auda.org.au');>> wrote:

...

León,

Thanks!

I appreciate that each SO/AC could set its own controls over its ‘alter ego’ and so the question would be more how will any control mechanisms be enforced.

However, I imagine that it may also be important to each SO/AC to ensure that their fellow SOs and ACs have robust control mechanisms in place.

I strongly agree with this. I think there should be common requirements across the SOs/ACs so we don't end up with a hodge podge or low standards for exercising some of these powers.

What do others think?

J

-- Jordan Carter

Chief Executive *InternetNZ*

04 495 2118 (office) | +64 21 442 649 <%2B64%2021%20442%20649> (mob) jordan@internetnz.net.nz <javascript:_e(%7B%7D,'cvml','jordan@internetnz.net.nz');> Skype: jordancarter

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I am with you too/two Cheers, Roelof From: Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Date: donderdag 30 april 2015 03:06 To: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> Cc: "ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Legal question Hi all, On 30 April 2015 at 12:44, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: León, Thanks! I appreciate that each SO/AC could set its own controls over its ‘alter ego’ and so the question would be more how will any control mechanisms be enforced. However, I imagine that it may also be important to each SO/AC to ensure that their fellow SOs and ACs have robust control mechanisms in place. I strongly agree with this. I think there should be common requirements across the SOs/ACs so we don't end up with a hodge podge or low standards for exercising some of these powers. What do others think? J -- 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

Chris, Here are my preliminary thoughts: First, though you said you don't want to debate the example itself, the example troubles me and I think it goes deeper than the example. I think that the establishment of a "TMCH for IGOs" would be new gTLD policy, and almost certainly Consensus Policy, and thus should not be adopted as the example states. Instead, it should be directed down the PDP path to the GNSO. Indeed, if I am not mistaken, that is what happened and resulted in the IGO/INGO Curative Rights Working Group, which may or may not make policy recommendations consistent with the GAC advice. So, I think the premise that the example was meant to demonstrate -- that GAC advice is due more deference than any other input to the Board and that only the Board can set a course contrary to GAC advice -- seems faulty. This also highlights that the point is not unique to the GAC; it is equally true of the GNSO (or rather, it is true of Board decisions that emanate from the GNSO's processes). The Board could adopt policy recommendations from the GNSO that are reflected in the budget, only to have a supermajority of the Membership send the budget back. Fundamentally, whether there is a Board action that results from GAC Advice or from a GNSO Recommendation (or from the ccNSO or from the Staff or elsewhere), it is a Board action. And a fundamental premise of the CCWG's work is that certain Board decisions will now be subject to certain specified constraints being placed in the hands of the Membership. To answer your direct question -- this is not a fundamental shift in the standing of GAC advice and thus a fundamental change in the GAC’s interface with the rest of ICANN; it's something more wide-ranging than that. It is a fundamental shift in the standing of certain Board decisions (whatever their provenance) and thus a fundamental change in the Board's interface with the community. Frankly, if we were to propose that a multilateral organization gets the last word over the global multistakeholder community (as represented by the proposed Membership), we would have failed by most yardsticks -- not least the yardstick set forth by the NTIA for the IANA stewardship transition. Finally, I have to say I disagree with your contention that each SO/ACs would need to become an unincorporated association ("UA") rather than merely create one. Admittedly, the issue of how each SO/AC can control its "alter ego" has not been fully fleshed out. However, I believe this was discussed at some length on the legal sub team call and it seems that between the bylaws of the UA and the charter of the SO/AC there should be very tight control by the SO/AC over any actions of the UA. Greg On Thu, Apr 30, 2015 at 10:11 PM, Chris Disspain <ceo@auda.org.au> wrote:

Jordan, Greg,

I would like to focus upon two of Jordan’s responses in his note of 22 April. Greg you asked me a similar question re the GAC point -

GAC:

*CD: However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?*

*JC: I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).*

*If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.*

*Does that feel like a fundamental issue to you? It doesn't to me.*

I’m saying is that it might well be a fundamental issue for GAC members. Using an example is the best way to illustrate my point, though I don’t want to get into a debate on the likelihood or otherwise of the example itself. The ICANN Board receives (and will continue to receive) advice from the GAC that potentially affects the ICANN Budget.

Consider a situation where the GAC advises that ICANN should create a repository, much like the TMCH, for the acronyms of IGOs. The repository would be used to advise the relevant IGO that their acronym has been registered in a given gTLD and also to advise the registrant that their registration matches a name in the repository.

Assuming that the Board accepts this advice, it would then be required to make a budgetary allocation for establishment of the repository and an annual operating budget.

In the scenario we are discussing regarding members’ powers, it would be possible for the community to veto the Budget on this point. This then creates a conflict between the public policy advice from the GAC and the powers of members. Should such a situation occur, how would you see it being resolved? Is this not a fundamental shift in the standing of GAC advice and thus a fundamental change in the GAC’s interface with the rest of ICANN?

SOs/ACs generally:

*CD: Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).*

*JC: They won't have to, to do what they do in ICANN today.*

*The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.*

*That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.*

You make a good point about the legal question. It is one I have yet to see an answer to.

This relates to the comment I made yesterday.

The only way I can see to ensure that the views of ICANN bodies are taken into account is if those SO/ACs become the unincorporated associations themselves. Creating shadow organisations gives rise to the question you raise and significant concerns regarding the accountability of these “alter egos”. To me, this seems like an attempted solution that simply adds another layer of complexity. But maybe counsel’s response to the question I raised yesterday will answer the point.

Cheers,

Chris

On 30 Apr 2015, at 09:38 , Chris Disspain <ceo@auda.org.au> wrote:

Thanks Greg. Clear and understood.

What will the control mechanisms be between the ccNSO and its alter ego and how will they be enforced?

Cheers,

Chris

On 30 Apr 2015, at 09:28 , Greg Shatan <gregshatanipc@gmail.com> wrote:

Chris,

Please let me try to clarify my understanding of what is currently being proposed (in draft). The SO/ACs will not be "converted" into legal entities. Rather, a "mirror" or "alter ego" entity will be set up for each SO/AC, likely as a unincorporated association (which is a recognized legal entity under California law). Each SO/AC will control its alter ego. This is quite similar to the relationship between the ASO and the NRO. The SO/ACs will continue to exist and will perform and operate as they currently do. The legal entities will be the members (or designators, should that route be chosen) of ICANN, with the specific rights and powers ascribed to them in that capacity by statute and bylaw.

Technically, the unincorporated associations only need a minimum of two members, so any "members" of a SO/AC who don't wish to be members of the alter ego won't need to be. The control arrangements between the SO/AC and the alter ego will ensure that all "members" of the SO/AC (and even non-members, such as non-ccNSO ccTLDs, if desired) get the appropriate "say" in any decisions that are to be carried out by the alter ego.

Best regards,

Greg

On Wed, Apr 29, 2015 at 6:40 PM, Chris Disspain <ceo@auda.org.au> wrote:

...

Jordan,

Apologies for taking so long to respond!

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

I’m confused. Greg seems o think that’s exactly what was being proposed. Do we have clarity on this yet?

I’ll respond to the balance of your points later today.

Cheers,

Chris

On 22 Apr 2015, at 16:02 , Jordan Carter <jordan@internetnz.net.nz> wrote:

Hi all, hi Chris:

On 22 April 2015 at 11:07, Chris Disspain <ceo@auda.org.au> wrote:

...

Hi Keith,

As promised I set out in brief below some of the reasons why, in respect to the membership model and any model requiring the SOs and ACs to convert to legal entities, I have serious concerns and why I referred to significant sacrifices.

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

The only proposal that I've seen from the lawyers is that if membership was the model chosen, legal personality would need to be created. The actors in the various SOs and ACs would, in exercising membership prerogatives, act through the unincorporated associations.

The lawyers have also been clear that even in a designator model, it's preferable to create legal personality along those lines.

I think it is really really really important for everyone involved in this effort to be very precise and clear about what we are discussing and what we aren't. So I am writing this so directly in order that if my understanding is wrong, it gets picked up pronto! :-)

GAC

...

The current recommended model does not provide any viable solution for dealing with the GAC. It seems obvious to me that the governments involved in the GAC are not going to agree to form an unincorporated association under Californian law. If I'm right then presumably the GAC would remain as an advisory committee and would not be able to have a vote in any of the escalation mechanisms. That may be fine as the GAC may not want to have a vote anyway.

Indeed it may not. Being able to offer advice on public policy issues to the ICANN Board and to appoint a non-voting liaison member to the Board. I am looking forward to hearing their views on this (and many other questions).

...

However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?

I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).

If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.

Does that feel like a fundamental issue to you? It doesn't to me.

...

ccTLDs

When we set up the ccNSO and when we did the structural review of it some time thereafter there was considerable discussion about how it could be structured precisely to avoid the need for ccTLDs to join anything. There was even significant concern about having to fill out a form and whether that implied the existence of some organisation. The concerns included joining something in the jurisdiction of the US and whether that would make a ccTLD manager in any way subject to US law, the possibility of being sued in the US because the manager would be deemed to have a presence there, how such a structure would be funded (especially if it was sued), whether there was any liability on ‘officers’ of the entity and so on. I believe that many of these concerns will still exist for many ccTLDs.

They may or may not. But in that fifteen-years-ago debate, were there any facts on the table about those questions? Or was it all a bit of a mess on many fronts? Because ICANN in 2015 is, better or worse, a very different beast to ICANN in ~ 2000.

Perhaps more importantly, exercising some rights through an unincorporated association would remain a choice for every ICANN participant. Nobody would be forced to be involved. It isn't like a "Join ICANN and have no say" - all the current structures for the "business of the business" would remain in place.

From the legends I have heard about this early phase in ICANN's history, the fundamental concern was of a power-grab on the corporation's part. Since these reforms make such a power-grab harder (and let's remember that the end of the NTIA contract makes it easier...), I'd expect ccTLDs and others to look at them with quite some interest.

...

Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).

They won't have to, to do what they do in ICANN today.

The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.

That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.

Finally -- I do think this is a really useful and constructive discussion. As someone who is warm to the member approach, but who sees huge benefits if we can manage a "no structural change" outcome, this is just the convo we need to have.

cheers, Jordan

...

At Large

I don’t know the answer to this but it strikes me that the structure may also be problematic for At Large community as opposed to ALAC. On that one over the ALAC folks to comment.

There’s more but I'm rushing for my flight now. Hope this gives you a flavour.

Cheers,

Chris

On 21 Apr 2015, at 20:46 , Chris Disspain <ceo@auda.org.au> wrote:

Hi Keith,

Thanks for the below. You ask a valid question and Kavouss has sent me an email asking the same. I will respond in detail in the next 7 hours or so.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek@verisign.com> wrote:

Thanks Chris, no apologies necessary...this is exactly the kind of dialogue needed to advance our work.

Can you be more explicit about the "significant number of sacrifices that would need to be made in a membership scenario" that ccTLDs face? Particularly if any are unique to ccTLDs?

Sacrifices may be needed (including from the Board) if we are to accomplish the community's broader goal of ensuring the ICANN Board and Staff are truly accountable to the ICANN community for the next decade. As such, it would be good to know, as early as possible, what those sacrifices might be.

In simple terms, I agree that determining what can and cannot be accomplished within the existing structure is a worthwhile exercise and will help to inform the community.

Based on our work and the relevant independent legal analysis to date, it appears to me that the current construct has significant gaps and shortcomings and won't deliver on our goals, but I support seeking further advice on the topic from our independent legal advisors.

Thanks and regards, Keith

On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo@auda.org.au> wrote:

Thanks Keith.

I apologise for pinging back and forth on this but I hope the list will appreciate that it as an indication of how important auDA believes this point is.

As I said on the CCWG call last week, I have serious concerns about the viability of the lawyers' recommended structural changes (at least from a cc point of view) and want to be crystal clear about what we can do or cannot do within the current structure.

For a ccTLD there are a significant number of sacrifices that would need to be made in a membership scenario and I don't believe the cc community can decide whether those sacrifices are worth making unless we can weigh them against what we would be able to achieve using the current structure.

I think that is essential that our output to the community contains a clear explanation of what the status quo can achieve. If it does not then IMO it is impossible to judge the other scenarios.

I appreciate your second para and, as a lawyer, I know that time for a response is required. I also appreciate the time constraints under which we are operating. But we will lose more time if the result of our document is a series of questions about whether there really is a need to make the significant changes being recommended.

In simple terms 'not nearly enough' is not an acceptable response. How can I know that "it" is not nearly enough unless I know what "it" is?

Chris Disspain CEO - auDA

On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek@verisign.com> wrote:

Chris,

I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough."

That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond.

Regards, Keith

Sent from my iPhone

On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo@auda.org.au> wrote:

Greg,

Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc@gmail.com> wrote:

Chris,

The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier.

However, you assumed no change to the SOACs, which made the answers much harder.

Greg

On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au> wrote:

...

Greg, All,

With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations.

Cheers,

Chris

-- 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 *

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If the SO/ACs created ICANN, it might apply. Unfortunately, it's the other way around. On Fri, May 1, 2015 at 12:28 AM, Chris Disspain <ceo@auda.org.au> wrote:

Thanks Greg.

I'll consider the points you make on policy and indeed the fundamental underpinnings of the ICANN model and respond in the next day or so.

However, on the legal question:

Finally, I have to say I disagree with your contention that each SO/ACs would need to become an unincorporated association ("UA") rather than merely create one. Admittedly, the issue of how each SO/AC can control its "alter ego" has not been fully fleshed out. However, I believe this was discussed at some length on the legal sub team call and it seems that between the bylaws of the UA and the charter of the SO/AC there should be very tight control by the SO/AC over any actions of the UA.

I look forward to hearing how a combination of the bylaws of the UA and the SO/AC charters will work to provide very tight control by the SO/AC. If they do then surely the same would apply to the ICANN bylaws and the SO/AC charters providing a similarly tight control over the actions of ICANN.

Cheers,

Chris

On 1 May 2015, at 13:50, Greg Shatan <gregshatanipc@gmail.com> wrote:

Chris,

Here are my preliminary thoughts:

First, though you said you don't want to debate the example itself, the example troubles me and I think it goes deeper than the example. I think that the establishment of a "TMCH for IGOs" would be new gTLD policy, and almost certainly Consensus Policy, and thus should not be adopted as the example states. Instead, it should be directed down the PDP path to the GNSO. Indeed, if I am not mistaken, that is what happened and resulted in the IGO/INGO Curative Rights Working Group, which may or may not make policy recommendations consistent with the GAC advice. So, I think the premise that the example was meant to demonstrate -- that GAC advice is due more deference than any other input to the Board and that only the Board can set a course contrary to GAC advice -- seems faulty.

This also highlights that the point is not unique to the GAC; it is equally true of the GNSO (or rather, it is true of Board decisions that emanate from the GNSO's processes). The Board could adopt policy recommendations from the GNSO that are reflected in the budget, only to have a supermajority of the Membership send the budget back.

Fundamentally, whether there is a Board action that results from GAC Advice or from a GNSO Recommendation (or from the ccNSO or from the Staff or elsewhere), it is a Board action. And a fundamental premise of the CCWG's work is that certain Board decisions will now be subject to certain specified constraints being placed in the hands of the Membership.

To answer your direct question -- this is not a fundamental shift in the standing of GAC advice and thus a fundamental change in the GAC’s interface with the rest of ICANN; it's something more wide-ranging than that. It is a fundamental shift in the standing of certain Board decisions (whatever their provenance) and thus a fundamental change in the Board's interface with the community.

Frankly, if we were to propose that a multilateral organization gets the last word over the global multistakeholder community (as represented by the proposed Membership), we would have failed by most yardsticks -- not least the yardstick set forth by the NTIA for the IANA stewardship transition.

Finally, I have to say I disagree with your contention that each SO/ACs would need to become an unincorporated association ("UA") rather than merely create one. Admittedly, the issue of how each SO/AC can control its "alter ego" has not been fully fleshed out. However, I believe this was discussed at some length on the legal sub team call and it seems that between the bylaws of the UA and the charter of the SO/AC there should be very tight control by the SO/AC over any actions of the UA.

Greg

On Thu, Apr 30, 2015 at 10:11 PM, Chris Disspain <ceo@auda.org.au> wrote:

...

Jordan, Greg,

I would like to focus upon two of Jordan’s responses in his note of 22 April. Greg you asked me a similar question re the GAC point -

GAC:

*CD: However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?*

*JC: I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).*

*If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.*

*Does that feel like a fundamental issue to you? It doesn't to me.*

I’m saying is that it might well be a fundamental issue for GAC members. Using an example is the best way to illustrate my point, though I don’t want to get into a debate on the likelihood or otherwise of the example itself. The ICANN Board receives (and will continue to receive) advice from the GAC that potentially affects the ICANN Budget.

Consider a situation where the GAC advises that ICANN should create a repository, much like the TMCH, for the acronyms of IGOs. The repository would be used to advise the relevant IGO that their acronym has been registered in a given gTLD and also to advise the registrant that their registration matches a name in the repository.

Assuming that the Board accepts this advice, it would then be required to make a budgetary allocation for establishment of the repository and an annual operating budget.

In the scenario we are discussing regarding members’ powers, it would be possible for the community to veto the Budget on this point. This then creates a conflict between the public policy advice from the GAC and the powers of members. Should such a situation occur, how would you see it being resolved? Is this not a fundamental shift in the standing of GAC advice and thus a fundamental change in the GAC’s interface with the rest of ICANN?

SOs/ACs generally:

*CD: Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).*

*JC: They won't have to, to do what they do in ICANN today.*

*The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.*

*That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.*

You make a good point about the legal question. It is one I have yet to see an answer to.

This relates to the comment I made yesterday.

The only way I can see to ensure that the views of ICANN bodies are taken into account is if those SO/ACs become the unincorporated associations themselves. Creating shadow organisations gives rise to the question you raise and significant concerns regarding the accountability of these “alter egos”. To me, this seems like an attempted solution that simply adds another layer of complexity. But maybe counsel’s response to the question I raised yesterday will answer the point.

Cheers,

Chris

On 30 Apr 2015, at 09:38 , Chris Disspain <ceo@auda.org.au> wrote:

Thanks Greg. Clear and understood.

What will the control mechanisms be between the ccNSO and its alter ego and how will they be enforced?

Cheers,

Chris

On 30 Apr 2015, at 09:28 , Greg Shatan <gregshatanipc@gmail.com> wrote:

Chris,

Please let me try to clarify my understanding of what is currently being proposed (in draft). The SO/ACs will not be "converted" into legal entities. Rather, a "mirror" or "alter ego" entity will be set up for each SO/AC, likely as a unincorporated association (which is a recognized legal entity under California law). Each SO/AC will control its alter ego. This is quite similar to the relationship between the ASO and the NRO. The SO/ACs will continue to exist and will perform and operate as they currently do. The legal entities will be the members (or designators, should that route be chosen) of ICANN, with the specific rights and powers ascribed to them in that capacity by statute and bylaw.

Technically, the unincorporated associations only need a minimum of two members, so any "members" of a SO/AC who don't wish to be members of the alter ego won't need to be. The control arrangements between the SO/AC and the alter ego will ensure that all "members" of the SO/AC (and even non-members, such as non-ccNSO ccTLDs, if desired) get the appropriate "say" in any decisions that are to be carried out by the alter ego.

Best regards,

Greg

On Wed, Apr 29, 2015 at 6:40 PM, Chris Disspain <ceo@auda.org.au> wrote:

...

Jordan,

Apologies for taking so long to respond!

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

I’m confused. Greg seems o think that’s exactly what was being proposed. Do we have clarity on this yet?

I’ll respond to the balance of your points later today.

Cheers,

Chris

On 22 Apr 2015, at 16:02 , Jordan Carter <jordan@internetnz.net.nz> wrote:

Hi all, hi Chris:

On 22 April 2015 at 11:07, Chris Disspain <ceo@auda.org.au> wrote:

...

Hi Keith,

As promised I set out in brief below some of the reasons why, in respect to the membership model and any model requiring the SOs and ACs to convert to legal entities, I have serious concerns and why I referred to significant sacrifices.

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

The only proposal that I've seen from the lawyers is that if membership was the model chosen, legal personality would need to be created. The actors in the various SOs and ACs would, in exercising membership prerogatives, act through the unincorporated associations.

The lawyers have also been clear that even in a designator model, it's preferable to create legal personality along those lines.

I think it is really really really important for everyone involved in this effort to be very precise and clear about what we are discussing and what we aren't. So I am writing this so directly in order that if my understanding is wrong, it gets picked up pronto! :-)

GAC

...

The current recommended model does not provide any viable solution for dealing with the GAC. It seems obvious to me that the governments involved in the GAC are not going to agree to form an unincorporated association under Californian law. If I'm right then presumably the GAC would remain as an advisory committee and would not be able to have a vote in any of the escalation mechanisms. That may be fine as the GAC may not want to have a vote anyway.

Indeed it may not. Being able to offer advice on public policy issues to the ICANN Board and to appoint a non-voting liaison member to the Board. I am looking forward to hearing their views on this (and many other questions).

...

However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?

I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).

If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.

Does that feel like a fundamental issue to you? It doesn't to me.

...

ccTLDs

When we set up the ccNSO and when we did the structural review of it some time thereafter there was considerable discussion about how it could be structured precisely to avoid the need for ccTLDs to join anything. There was even significant concern about having to fill out a form and whether that implied the existence of some organisation. The concerns included joining something in the jurisdiction of the US and whether that would make a ccTLD manager in any way subject to US law, the possibility of being sued in the US because the manager would be deemed to have a presence there, how such a structure would be funded (especially if it was sued), whether there was any liability on ‘officers’ of the entity and so on. I believe that many of these concerns will still exist for many ccTLDs.

They may or may not. But in that fifteen-years-ago debate, were there any facts on the table about those questions? Or was it all a bit of a mess on many fronts? Because ICANN in 2015 is, better or worse, a very different beast to ICANN in ~ 2000.

Perhaps more importantly, exercising some rights through an unincorporated association would remain a choice for every ICANN participant. Nobody would be forced to be involved. It isn't like a "Join ICANN and have no say" - all the current structures for the "business of the business" would remain in place.

From the legends I have heard about this early phase in ICANN's history, the fundamental concern was of a power-grab on the corporation's part. Since these reforms make such a power-grab harder (and let's remember that the end of the NTIA contract makes it easier...), I'd expect ccTLDs and others to look at them with quite some interest.

...

Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).

They won't have to, to do what they do in ICANN today.

The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.

That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.

Finally -- I do think this is a really useful and constructive discussion. As someone who is warm to the member approach, but who sees huge benefits if we can manage a "no structural change" outcome, this is just the convo we need to have.

cheers, Jordan

...

At Large

I don’t know the answer to this but it strikes me that the structure may also be problematic for At Large community as opposed to ALAC. On that one over the ALAC folks to comment.

There’s more but I'm rushing for my flight now. Hope this gives you a flavour.

Cheers,

Chris

On 21 Apr 2015, at 20:46 , Chris Disspain <ceo@auda.org.au> wrote:

Hi Keith,

Thanks for the below. You ask a valid question and Kavouss has sent me an email asking the same. I will respond in detail in the next 7 hours or so.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek@verisign.com> wrote:

Thanks Chris, no apologies necessary...this is exactly the kind of dialogue needed to advance our work.

Can you be more explicit about the "significant number of sacrifices that would need to be made in a membership scenario" that ccTLDs face? Particularly if any are unique to ccTLDs?

Sacrifices may be needed (including from the Board) if we are to accomplish the community's broader goal of ensuring the ICANN Board and Staff are truly accountable to the ICANN community for the next decade. As such, it would be good to know, as early as possible, what those sacrifices might be.

In simple terms, I agree that determining what can and cannot be accomplished within the existing structure is a worthwhile exercise and will help to inform the community.

Based on our work and the relevant independent legal analysis to date, it appears to me that the current construct has significant gaps and shortcomings and won't deliver on our goals, but I support seeking further advice on the topic from our independent legal advisors.

Thanks and regards, Keith

On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo@auda.org.au> wrote:

Thanks Keith.

I apologise for pinging back and forth on this but I hope the list will appreciate that it as an indication of how important auDA believes this point is.

As I said on the CCWG call last week, I have serious concerns about the viability of the lawyers' recommended structural changes (at least from a cc point of view) and want to be crystal clear about what we can do or cannot do within the current structure.

For a ccTLD there are a significant number of sacrifices that would need to be made in a membership scenario and I don't believe the cc community can decide whether those sacrifices are worth making unless we can weigh them against what we would be able to achieve using the current structure.

I think that is essential that our output to the community contains a clear explanation of what the status quo can achieve. If it does not then IMO it is impossible to judge the other scenarios.

I appreciate your second para and, as a lawyer, I know that time for a response is required. I also appreciate the time constraints under which we are operating. But we will lose more time if the result of our document is a series of questions about whether there really is a need to make the significant changes being recommended.

In simple terms 'not nearly enough' is not an acceptable response. How can I know that "it" is not nearly enough unless I know what "it" is?

Chris Disspain CEO - auDA

On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek@verisign.com> wrote:

Chris,

I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough."

That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond.

Regards, Keith

Sent from my iPhone

On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo@auda.org.au> wrote:

Greg,

Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc@gmail.com> wrote:

Chris,

The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier.

However, you assumed no change to the SOACs, which made the answers much harder.

Greg

On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au> wrote:

...

Greg, All,

With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations.

Cheers,

Chris

-- 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 *

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Leaving aside your penguin analogy (and incidentally you CAN put a television on top of a penguin and it is, in fact, likely to stay there far longer than the penguin will stay on top of the television) I think you may have misunderstood me. I completely get that the members of the UA control it. The point we are discussing is how members of SO/AC who are NOT members of the UA can ensure that the UA doesn’t go rogue or does what the SO/AC wants. Unless I’m mistaken, to overcome the possibility that an SO or AC won’t itself want to become an UA or that to do so will involve a significant decrease in membership, the idea is that a UA is set up and those members of the SO or AC who feel comfortable doing so can become members of the UA (minimum 2) or the SOAC can nominate members. Fine. BUT the SO/AC itself is NOT a member and it is the SO/AC that the UA is representing as a member. How does the SO/AC ensure the UA does its bidding? Surely the only folks who can control the UA are its members so how does the SO/AC ensure that those UA members follow the instructions of the SO/AC. Surely this is precisely the same conundrum as the SO/AC ICANN one. For anything to be enforceable the SO/AC would need to be a legal entity or every member of the SO/AC would need to join the UA which amounts to the same thing. What am I missing here? Cheers, Chris On 1 May 2015, at 14:34 , Greg Shatan <gregshatanipc@gmail.com> wrote:

Also, UAs are member associations in their essence, so control of the members gives you control of the UA. That's very different from a non-profit (non-membership) corporation. So, it's really diametrically opposite to the relationship between ICANN and the SO/ACs in very fundamental ways. Saying that "the same would apply" in the ICANN situation is like saying that because you can put a penguin on top of a television, you can put a television on top of a penguin.....

On Fri, May 1, 2015 at 12:30 AM, Greg Shatan <gregshatanipc@gmail.com> wrote: If the SO/ACs created ICANN, it might apply. Unfortunately, it's the other way around.

On Fri, May 1, 2015 at 12:28 AM, Chris Disspain <ceo@auda.org.au> wrote: Thanks Greg.

I'll consider the points you make on policy and indeed the fundamental underpinnings of the ICANN model and respond in the next day or so.

However, on the legal question:

...

Finally, I have to say I disagree with your contention that each SO/ACs would need to become an unincorporated association ("UA") rather than merely create one. Admittedly, the issue of how each SO/AC can control its "alter ego" has not been fully fleshed out. However, I believe this was discussed at some length on the legal sub team call and it seems that between the bylaws of the UA and the charter of the SO/AC there should be very tight control by the SO/AC over any actions of the UA.

I look forward to hearing how a combination of the bylaws of the UA and the SO/AC charters will work to provide very tight control by the SO/AC. If they do then surely the same would apply to the ICANN bylaws and the SO/AC charters providing a similarly tight control over the actions of ICANN.

Cheers,

Chris

On 1 May 2015, at 13:50, Greg Shatan <gregshatanipc@gmail.com> wrote:

...

Chris,

Here are my preliminary thoughts:

First, though you said you don't want to debate the example itself, the example troubles me and I think it goes deeper than the example. I think that the establishment of a "TMCH for IGOs" would be new gTLD policy, and almost certainly Consensus Policy, and thus should not be adopted as the example states. Instead, it should be directed down the PDP path to the GNSO. Indeed, if I am not mistaken, that is what happened and resulted in the IGO/INGO Curative Rights Working Group, which may or may not make policy recommendations consistent with the GAC advice. So, I think the premise that the example was meant to demonstrate -- that GAC advice is due more deference than any other input to the Board and that only the Board can set a course contrary to GAC advice -- seems faulty.

This also highlights that the point is not unique to the GAC; it is equally true of the GNSO (or rather, it is true of Board decisions that emanate from the GNSO's processes). The Board could adopt policy recommendations from the GNSO that are reflected in the budget, only to have a supermajority of the Membership send the budget back.

Fundamentally, whether there is a Board action that results from GAC Advice or from a GNSO Recommendation (or from the ccNSO or from the Staff or elsewhere), it is a Board action. And a fundamental premise of the CCWG's work is that certain Board decisions will now be subject to certain specified constraints being placed in the hands of the Membership.

To answer your direct question -- this is not a fundamental shift in the standing of GAC advice and thus a fundamental change in the GAC’s interface with the rest of ICANN; it's something more wide-ranging than that. It is a fundamental shift in the standing of certain Board decisions (whatever their provenance) and thus a fundamental change in the Board's interface with the community.

Frankly, if we were to propose that a multilateral organization gets the last word over the global multistakeholder community (as represented by the proposed Membership), we would have failed by most yardsticks -- not least the yardstick set forth by the NTIA for the IANA stewardship transition.

Finally, I have to say I disagree with your contention that each SO/ACs would need to become an unincorporated association ("UA") rather than merely create one. Admittedly, the issue of how each SO/AC can control its "alter ego" has not been fully fleshed out. However, I believe this was discussed at some length on the legal sub team call and it seems that between the bylaws of the UA and the charter of the SO/AC there should be very tight control by the SO/AC over any actions of the UA.

Greg

On Thu, Apr 30, 2015 at 10:11 PM, Chris Disspain <ceo@auda.org.au> wrote: Jordan, Greg,

I would like to focus upon two of Jordan’s responses in his note of 22 April. Greg you asked me a similar question re the GAC point -

GAC:

CD: However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?

JC: I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).

If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.

Does that feel like a fundamental issue to you? It doesn't to me.

I’m saying is that it might well be a fundamental issue for GAC members. Using an example is the best way to illustrate my point, though I don’t want to get into a debate on the likelihood or otherwise of the example itself. The ICANN Board receives (and will continue to receive) advice from the GAC that potentially affects the ICANN Budget.

Consider a situation where the GAC advises that ICANN should create a repository, much like the TMCH, for the acronyms of IGOs. The repository would be used to advise the relevant IGO that their acronym has been registered in a given gTLD and also to advise the registrant that their registration matches a name in the repository.

Assuming that the Board accepts this advice, it would then be required to make a budgetary allocation for establishment of the repository and an annual operating budget.

In the scenario we are discussing regarding members’ powers, it would be possible for the community to veto the Budget on this point. This then creates a conflict between the public policy advice from the GAC and the powers of members. Should such a situation occur, how would you see it being resolved? Is this not a fundamental shift in the standing of GAC advice and thus a fundamental change in the GAC’s interface with the rest of ICANN?

SOs/ACs generally:

CD: Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).

JC: They won't have to, to do what they do in ICANN today.

The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.

That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.

You make a good point about the legal question. It is one I have yet to see an answer to.

This relates to the comment I made yesterday.

The only way I can see to ensure that the views of ICANN bodies are taken into account is if those SO/ACs become the unincorporated associations themselves. Creating shadow organisations gives rise to the question you raise and significant concerns regarding the accountability of these “alter egos”. To me, this seems like an attempted solution that simply adds another layer of complexity. But maybe counsel’s response to the question I raised yesterday will answer the point.

Cheers,

Chris

On 30 Apr 2015, at 09:38 , Chris Disspain <ceo@auda.org.au> wrote:

...

Thanks Greg. Clear and understood.

What will the control mechanisms be between the ccNSO and its alter ego and how will they be enforced?

Cheers,

Chris

On 30 Apr 2015, at 09:28 , Greg Shatan <gregshatanipc@gmail.com> wrote:

...

Chris,

Please let me try to clarify my understanding of what is currently being proposed (in draft). The SO/ACs will not be "converted" into legal entities. Rather, a "mirror" or "alter ego" entity will be set up for each SO/AC, likely as a unincorporated association (which is a recognized legal entity under California law). Each SO/AC will control its alter ego. This is quite similar to the relationship between the ASO and the NRO. The SO/ACs will continue to exist and will perform and operate as they currently do. The legal entities will be the members (or designators, should that route be chosen) of ICANN, with the specific rights and powers ascribed to them in that capacity by statute and bylaw.

Technically, the unincorporated associations only need a minimum of two members, so any "members" of a SO/AC who don't wish to be members of the alter ego won't need to be. The control arrangements between the SO/AC and the alter ego will ensure that all "members" of the SO/AC (and even non-members, such as non-ccNSO ccTLDs, if desired) get the appropriate "say" in any decisions that are to be carried out by the alter ego.

Best regards,

Greg

On Wed, Apr 29, 2015 at 6:40 PM, Chris Disspain <ceo@auda.org.au> wrote: Jordan,

Apologies for taking so long to respond!

...

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

I’m confused. Greg seems o think that’s exactly what was being proposed. Do we have clarity on this yet?

I’ll respond to the balance of your points later today.

Cheers,

Chris

On 22 Apr 2015, at 16:02 , Jordan Carter <jordan@internetnz.net.nz> wrote:

...

Hi all, hi Chris:

On 22 April 2015 at 11:07, Chris Disspain <ceo@auda.org.au> wrote: Hi Keith,

As promised I set out in brief below some of the reasons why, in respect to the membership model and any model requiring the SOs and ACs to convert to legal entities, I have serious concerns and why I referred to significant sacrifices.

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

The only proposal that I've seen from the lawyers is that if membership was the model chosen, legal personality would need to be created. The actors in the various SOs and ACs would, in exercising membership prerogatives, act through the unincorporated associations.

The lawyers have also been clear that even in a designator model, it's preferable to create legal personality along those lines.

I think it is really really really important for everyone involved in this effort to be very precise and clear about what we are discussing and what we aren't. So I am writing this so directly in order that if my understanding is wrong, it gets picked up pronto! :-)

GAC

The current recommended model does not provide any viable solution for dealing with the GAC. It seems obvious to me that the governments involved in the GAC are not going to agree to form an unincorporated association under Californian law. If I'm right then presumably the GAC would remain as an advisory committee and would not be able to have a vote in any of the escalation mechanisms. That may be fine as the GAC may not want to have a vote anyway.

Indeed it may not. Being able to offer advice on public policy issues to the ICANN Board and to appoint a non-voting liaison member to the Board. I am looking forward to hearing their views on this (and many other questions).

However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?

I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).

If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.

Does that feel like a fundamental issue to you? It doesn't to me.

ccTLDs

When we set up the ccNSO and when we did the structural review of it some time thereafter there was considerable discussion about how it could be structured precisely to avoid the need for ccTLDs to join anything. There was even significant concern about having to fill out a form and whether that implied the existence of some organisation. The concerns included joining something in the jurisdiction of the US and whether that would make a ccTLD manager in any way subject to US law, the possibility of being sued in the US because the manager would be deemed to have a presence there, how such a structure would be funded (especially if it was sued), whether there was any liability on ‘officers’ of the entity and so on. I believe that many of these concerns will still exist for many ccTLDs.

They may or may not. But in that fifteen-years-ago debate, were there any facts on the table about those questions? Or was it all a bit of a mess on many fronts? Because ICANN in 2015 is, better or worse, a very different beast to ICANN in ~ 2000.

Perhaps more importantly, exercising some rights through an unincorporated association would remain a choice for every ICANN participant. Nobody would be forced to be involved. It isn't like a "Join ICANN and have no say" - all the current structures for the "business of the business" would remain in place.

From the legends I have heard about this early phase in ICANN's history, the fundamental concern was of a power-grab on the corporation's part. Since these reforms make such a power-grab harder (and let's remember that the end of the NTIA contract makes it easier...), I'd expect ccTLDs and others to look at them with quite some interest.

Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).

They won't have to, to do what they do in ICANN today.

The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.

That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.

Finally -- I do think this is a really useful and constructive discussion. As someone who is warm to the member approach, but who sees huge benefits if we can manage a "no structural change" outcome, this is just the convo we need to have.

cheers, Jordan

At Large

I don’t know the answer to this but it strikes me that the structure may also be problematic for At Large community as opposed to ALAC. On that one over the ALAC folks to comment.

There’s more but I'm rushing for my flight now. Hope this gives you a flavour.

Cheers,

Chris

On 21 Apr 2015, at 20:46 , Chris Disspain <ceo@auda.org.au> wrote:

...

Hi Keith,

Thanks for the below. You ask a valid question and Kavouss has sent me an email asking the same. I will respond in detail in the next 7 hours or so.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek@verisign.com> wrote:

> Thanks Chris, no apologies necessary...this is exactly the kind of dialogue needed to advance our work. > > Can you be more explicit about the "significant number of sacrifices that would need to be made in a membership scenario" that ccTLDs face? Particularly if any are unique to ccTLDs? > > Sacrifices may be needed (including from the Board) if we are to accomplish the community's broader goal of ensuring the ICANN Board and Staff are truly accountable to the ICANN community for the next decade. As such, it would be good to know, as early as possible, what those sacrifices might be. > > In simple terms, I agree that determining what can and cannot be accomplished within the existing structure is a worthwhile exercise and will help to inform the community. > > Based on our work and the relevant independent legal analysis to date, it appears to me that the current construct has significant gaps and shortcomings and won't deliver on our goals, but I support seeking further advice on the topic from our independent legal advisors. > > Thanks and regards, > Keith > > On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo@auda.org.au> wrote: > >> Thanks Keith. >> >> I apologise for pinging back and forth on this but I hope the list will appreciate that it as an indication of how important auDA believes this point is. >> >> As I said on the CCWG call last week, I have serious concerns about the viability of the lawyers' recommended structural changes (at least from a cc point of view) and want to be crystal clear about what we can do or cannot do within the current structure. >> >> For a ccTLD there are a significant number of sacrifices that would need to be made in a membership scenario and I don't believe the cc community can decide whether those sacrifices are worth making unless we can weigh them against what we would be able to achieve using the current structure. >> >> I think that is essential that our output to the community contains a clear explanation of what the status quo can achieve. If it does not then IMO it is impossible to judge the other scenarios. >> >> I appreciate your second para and, as a lawyer, I know that time for a response is required. I also appreciate the time constraints under which we are operating. But we will lose more time if the result of our document is a series of questions about whether there really is a need to make the significant changes being recommended. >> >> In simple terms 'not nearly enough' is not an acceptable response. How can I know that "it" is not nearly enough unless I know what "it" is? >> >> Chris Disspain >> CEO - auDA >> >> On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek@verisign.com> wrote: >> >>> >>> Chris, >>> >>> I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough." >>> >>> That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond. >>> >>> Regards, >>> Keith >>> >>> >>> >>> Sent from my iPhone >>> >>> On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo@auda.org.au> wrote: >>> >>>> Greg, >>>> >>>> Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet. >>>> >>>> Chris Disspain >>>> CEO - auDA >>>> >>>> On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc@gmail.com> wrote: >>>> >>>>> Chris, >>>>> >>>>> The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier. >>>>> >>>>> However, you assumed no change to the SOACs, which made the answers much harder. >>>>> >>>>> Greg >>>>> >>>>> On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au> wrote: >>>>> Greg, All, >>>>> >>>>> With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations. >>>>> >>>>> >>>>> >>>>> >>>>> Cheers, >>>>> >>>>> >>>>> >>>>> Chris >>>>> -- 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

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If the UA is only activated when the SO/AC tells its appointed members to act, tight control should not be difficult at all.

How do you ensure the ‘appointed members’ do as the SO/AC wishes unless the SO/AC can enforce? Cheers, Chris On 1 May 2015, at 15:09 , Greg Shatan <gregshatanipc@gmail.com> wrote:

It really goes to how the members of the UA are chosen (a UA needs only two members, so they can be officers of the SO/AC or chosen by some other process) -- it need not be as you describe (though what you describe is a reasonable possibility given the proper circumstances). If the UA is only activated when the SO/AC tells its appointed members to act, tight control should not be difficult at all.

I may have to take your word on the penguins, as you are far closer to their native habitat than I. (Though I would note that the Central Park penguins are international movie stars, due to the move "Madagascar" and its offspring.) However, to be fair, I was actually thinking of a tube television set and not a flat screen TV, so we may have some misunderstanding at work here as well (See, "Penguin on the Telly," Monty Python, 1971, https://youtu.be/pwTqC2T6q4E) I do think a large console TV would not be salubrious to a penguin beneath it, while it would provide a pleasant perch for the penguin (barring any unfortunate explosions). With a flat screen TV, the opposite applies.

So, in each case, it's a matter of how the object is designed, not merely a matter of what the object is.

Greg

On Fri, May 1, 2015 at 12:53 AM, Chris Disspain <ceo@auda.org.au> wrote: Leaving aside your penguin analogy (and incidentally you CAN put a television on top of a penguin and it is, in fact, likely to stay there far longer than the penguin will stay on top of the television) I think you may have misunderstood me.

I completely get that the members of the UA control it. The point we are discussing is how members of SO/AC who are NOT members of the UA can ensure that the UA doesn’t go rogue or does what the SO/AC wants.

Unless I’m mistaken, to overcome the possibility that an SO or AC won’t itself want to become an UA or that to do so will involve a significant decrease in membership, the idea is that a UA is set up and those members of the SO or AC who feel comfortable doing so can become members of the UA (minimum 2) or the SOAC can nominate members. Fine. BUT the SO/AC itself is NOT a member and it is the SO/AC that the UA is representing as a member.

How does the SO/AC ensure the UA does its bidding?

Surely the only folks who can control the UA are its members so how does the SO/AC ensure that those UA members follow the instructions of the SO/AC. Surely this is precisely the same conundrum as the SO/AC ICANN one. For anything to be enforceable the SO/AC would need to be a legal entity or every member of the SO/AC would need to join the UA which amounts to the same thing.

What am I missing here?

Cheers,

Chris

On 1 May 2015, at 14:34 , Greg Shatan <gregshatanipc@gmail.com> wrote:

...

Also, UAs are member associations in their essence, so control of the members gives you control of the UA. That's very different from a non-profit (non-membership) corporation. So, it's really diametrically opposite to the relationship between ICANN and the SO/ACs in very fundamental ways. Saying that "the same would apply" in the ICANN situation is like saying that because you can put a penguin on top of a television, you can put a television on top of a penguin.....

On Fri, May 1, 2015 at 12:30 AM, Greg Shatan <gregshatanipc@gmail.com> wrote: If the SO/ACs created ICANN, it might apply. Unfortunately, it's the other way around.

On Fri, May 1, 2015 at 12:28 AM, Chris Disspain <ceo@auda.org.au> wrote: Thanks Greg.

I'll consider the points you make on policy and indeed the fundamental underpinnings of the ICANN model and respond in the next day or so.

However, on the legal question:

...

Finally, I have to say I disagree with your contention that each SO/ACs would need to become an unincorporated association ("UA") rather than merely create one. Admittedly, the issue of how each SO/AC can control its "alter ego" has not been fully fleshed out. However, I believe this was discussed at some length on the legal sub team call and it seems that between the bylaws of the UA and the charter of the SO/AC there should be very tight control by the SO/AC over any actions of the UA.

I look forward to hearing how a combination of the bylaws of the UA and the SO/AC charters will work to provide very tight control by the SO/AC. If they do then surely the same would apply to the ICANN bylaws and the SO/AC charters providing a similarly tight control over the actions of ICANN.

Cheers,

Chris

On 1 May 2015, at 13:50, Greg Shatan <gregshatanipc@gmail.com> wrote:

...

Chris,

Here are my preliminary thoughts:

First, though you said you don't want to debate the example itself, the example troubles me and I think it goes deeper than the example. I think that the establishment of a "TMCH for IGOs" would be new gTLD policy, and almost certainly Consensus Policy, and thus should not be adopted as the example states. Instead, it should be directed down the PDP path to the GNSO. Indeed, if I am not mistaken, that is what happened and resulted in the IGO/INGO Curative Rights Working Group, which may or may not make policy recommendations consistent with the GAC advice. So, I think the premise that the example was meant to demonstrate -- that GAC advice is due more deference than any other input to the Board and that only the Board can set a course contrary to GAC advice -- seems faulty.

This also highlights that the point is not unique to the GAC; it is equally true of the GNSO (or rather, it is true of Board decisions that emanate from the GNSO's processes). The Board could adopt policy recommendations from the GNSO that are reflected in the budget, only to have a supermajority of the Membership send the budget back.

Fundamentally, whether there is a Board action that results from GAC Advice or from a GNSO Recommendation (or from the ccNSO or from the Staff or elsewhere), it is a Board action. And a fundamental premise of the CCWG's work is that certain Board decisions will now be subject to certain specified constraints being placed in the hands of the Membership.

To answer your direct question -- this is not a fundamental shift in the standing of GAC advice and thus a fundamental change in the GAC’s interface with the rest of ICANN; it's something more wide-ranging than that. It is a fundamental shift in the standing of certain Board decisions (whatever their provenance) and thus a fundamental change in the Board's interface with the community.

Frankly, if we were to propose that a multilateral organization gets the last word over the global multistakeholder community (as represented by the proposed Membership), we would have failed by most yardsticks -- not least the yardstick set forth by the NTIA for the IANA stewardship transition.

Finally, I have to say I disagree with your contention that each SO/ACs would need to become an unincorporated association ("UA") rather than merely create one. Admittedly, the issue of how each SO/AC can control its "alter ego" has not been fully fleshed out. However, I believe this was discussed at some length on the legal sub team call and it seems that between the bylaws of the UA and the charter of the SO/AC there should be very tight control by the SO/AC over any actions of the UA.

Greg

On Thu, Apr 30, 2015 at 10:11 PM, Chris Disspain <ceo@auda.org.au> wrote: Jordan, Greg,

I would like to focus upon two of Jordan’s responses in his note of 22 April. Greg you asked me a similar question re the GAC point -

GAC:

CD: However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?

JC: I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).

If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.

Does that feel like a fundamental issue to you? It doesn't to me.

I’m saying is that it might well be a fundamental issue for GAC members. Using an example is the best way to illustrate my point, though I don’t want to get into a debate on the likelihood or otherwise of the example itself. The ICANN Board receives (and will continue to receive) advice from the GAC that potentially affects the ICANN Budget.

Consider a situation where the GAC advises that ICANN should create a repository, much like the TMCH, for the acronyms of IGOs. The repository would be used to advise the relevant IGO that their acronym has been registered in a given gTLD and also to advise the registrant that their registration matches a name in the repository.

Assuming that the Board accepts this advice, it would then be required to make a budgetary allocation for establishment of the repository and an annual operating budget.

In the scenario we are discussing regarding members’ powers, it would be possible for the community to veto the Budget on this point. This then creates a conflict between the public policy advice from the GAC and the powers of members. Should such a situation occur, how would you see it being resolved? Is this not a fundamental shift in the standing of GAC advice and thus a fundamental change in the GAC’s interface with the rest of ICANN?

SOs/ACs generally:

CD: Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).

JC: They won't have to, to do what they do in ICANN today.

The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.

That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.

You make a good point about the legal question. It is one I have yet to see an answer to.

This relates to the comment I made yesterday.

The only way I can see to ensure that the views of ICANN bodies are taken into account is if those SO/ACs become the unincorporated associations themselves. Creating shadow organisations gives rise to the question you raise and significant concerns regarding the accountability of these “alter egos”. To me, this seems like an attempted solution that simply adds another layer of complexity. But maybe counsel’s response to the question I raised yesterday will answer the point.

Cheers,

Chris

On 30 Apr 2015, at 09:38 , Chris Disspain <ceo@auda.org.au> wrote:

...

Thanks Greg. Clear and understood.

What will the control mechanisms be between the ccNSO and its alter ego and how will they be enforced?

Cheers,

Chris

On 30 Apr 2015, at 09:28 , Greg Shatan <gregshatanipc@gmail.com> wrote:

...

Chris,

Please let me try to clarify my understanding of what is currently being proposed (in draft). The SO/ACs will not be "converted" into legal entities. Rather, a "mirror" or "alter ego" entity will be set up for each SO/AC, likely as a unincorporated association (which is a recognized legal entity under California law). Each SO/AC will control its alter ego. This is quite similar to the relationship between the ASO and the NRO. The SO/ACs will continue to exist and will perform and operate as they currently do. The legal entities will be the members (or designators, should that route be chosen) of ICANN, with the specific rights and powers ascribed to them in that capacity by statute and bylaw.

Technically, the unincorporated associations only need a minimum of two members, so any "members" of a SO/AC who don't wish to be members of the alter ego won't need to be. The control arrangements between the SO/AC and the alter ego will ensure that all "members" of the SO/AC (and even non-members, such as non-ccNSO ccTLDs, if desired) get the appropriate "say" in any decisions that are to be carried out by the alter ego.

Best regards,

Greg

On Wed, Apr 29, 2015 at 6:40 PM, Chris Disspain <ceo@auda.org.au> wrote: Jordan,

Apologies for taking so long to respond!

...

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

I’m confused. Greg seems o think that’s exactly what was being proposed. Do we have clarity on this yet?

I’ll respond to the balance of your points later today.

Cheers,

Chris

On 22 Apr 2015, at 16:02 , Jordan Carter <jordan@internetnz.net.nz> wrote:

...

Hi all, hi Chris:

On 22 April 2015 at 11:07, Chris Disspain <ceo@auda.org.au> wrote: Hi Keith,

As promised I set out in brief below some of the reasons why, in respect to the membership model and any model requiring the SOs and ACs to convert to legal entities, I have serious concerns and why I referred to significant sacrifices.

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

The only proposal that I've seen from the lawyers is that if membership was the model chosen, legal personality would need to be created. The actors in the various SOs and ACs would, in exercising membership prerogatives, act through the unincorporated associations.

The lawyers have also been clear that even in a designator model, it's preferable to create legal personality along those lines.

I think it is really really really important for everyone involved in this effort to be very precise and clear about what we are discussing and what we aren't. So I am writing this so directly in order that if my understanding is wrong, it gets picked up pronto! :-)

GAC

The current recommended model does not provide any viable solution for dealing with the GAC. It seems obvious to me that the governments involved in the GAC are not going to agree to form an unincorporated association under Californian law. If I'm right then presumably the GAC would remain as an advisory committee and would not be able to have a vote in any of the escalation mechanisms. That may be fine as the GAC may not want to have a vote anyway.

Indeed it may not. Being able to offer advice on public policy issues to the ICANN Board and to appoint a non-voting liaison member to the Board. I am looking forward to hearing their views on this (and many other questions).

However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?

I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).

If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.

Does that feel like a fundamental issue to you? It doesn't to me.

ccTLDs

When we set up the ccNSO and when we did the structural review of it some time thereafter there was considerable discussion about how it could be structured precisely to avoid the need for ccTLDs to join anything. There was even significant concern about having to fill out a form and whether that implied the existence of some organisation. The concerns included joining something in the jurisdiction of the US and whether that would make a ccTLD manager in any way subject to US law, the possibility of being sued in the US because the manager would be deemed to have a presence there, how such a structure would be funded (especially if it was sued), whether there was any liability on ‘officers’ of the entity and so on. I believe that many of these concerns will still exist for many ccTLDs.

They may or may not. But in that fifteen-years-ago debate, were there any facts on the table about those questions? Or was it all a bit of a mess on many fronts? Because ICANN in 2015 is, better or worse, a very different beast to ICANN in ~ 2000.

Perhaps more importantly, exercising some rights through an unincorporated association would remain a choice for every ICANN participant. Nobody would be forced to be involved. It isn't like a "Join ICANN and have no say" - all the current structures for the "business of the business" would remain in place.

From the legends I have heard about this early phase in ICANN's history, the fundamental concern was of a power-grab on the corporation's part. Since these reforms make such a power-grab harder (and let's remember that the end of the NTIA contract makes it easier...), I'd expect ccTLDs and others to look at them with quite some interest.

Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).

They won't have to, to do what they do in ICANN today.

The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.

That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.

Finally -- I do think this is a really useful and constructive discussion. As someone who is warm to the member approach, but who sees huge benefits if we can manage a "no structural change" outcome, this is just the convo we need to have.

cheers, Jordan

At Large

I don’t know the answer to this but it strikes me that the structure may also be problematic for At Large community as opposed to ALAC. On that one over the ALAC folks to comment.

There’s more but I'm rushing for my flight now. Hope this gives you a flavour.

Cheers,

Chris

On 21 Apr 2015, at 20:46 , Chris Disspain <ceo@auda.org.au> wrote:

> Hi Keith, > > Thanks for the below. You ask a valid question and Kavouss has sent me an email asking the same. I will respond in detail in the next 7 hours or so. > > Chris Disspain > CEO - auDA > > On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek@verisign.com> wrote: > >> Thanks Chris, no apologies necessary...this is exactly the kind of dialogue needed to advance our work. >> >> Can you be more explicit about the "significant number of sacrifices that would need to be made in a membership scenario" that ccTLDs face? Particularly if any are unique to ccTLDs? >> >> Sacrifices may be needed (including from the Board) if we are to accomplish the community's broader goal of ensuring the ICANN Board and Staff are truly accountable to the ICANN community for the next decade. As such, it would be good to know, as early as possible, what those sacrifices might be. >> >> In simple terms, I agree that determining what can and cannot be accomplished within the existing structure is a worthwhile exercise and will help to inform the community. >> >> Based on our work and the relevant independent legal analysis to date, it appears to me that the current construct has significant gaps and shortcomings and won't deliver on our goals, but I support seeking further advice on the topic from our independent legal advisors. >> >> Thanks and regards, >> Keith >> >> On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo@auda.org.au> wrote: >> >>> Thanks Keith. >>> >>> I apologise for pinging back and forth on this but I hope the list will appreciate that it as an indication of how important auDA believes this point is. >>> >>> As I said on the CCWG call last week, I have serious concerns about the viability of the lawyers' recommended structural changes (at least from a cc point of view) and want to be crystal clear about what we can do or cannot do within the current structure. >>> >>> For a ccTLD there are a significant number of sacrifices that would need to be made in a membership scenario and I don't believe the cc community can decide whether those sacrifices are worth making unless we can weigh them against what we would be able to achieve using the current structure. >>> >>> I think that is essential that our output to the community contains a clear explanation of what the status quo can achieve. If it does not then IMO it is impossible to judge the other scenarios. >>> >>> I appreciate your second para and, as a lawyer, I know that time for a response is required. I also appreciate the time constraints under which we are operating. But we will lose more time if the result of our document is a series of questions about whether there really is a need to make the significant changes being recommended. >>> >>> In simple terms 'not nearly enough' is not an acceptable response. How can I know that "it" is not nearly enough unless I know what "it" is? >>> >>> Chris Disspain >>> CEO - auDA >>> >>> On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek@verisign.com> wrote: >>> >>>> >>>> Chris, >>>> >>>> I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough." >>>> >>>> That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond. >>>> >>>> Regards, >>>> Keith >>>> >>>> >>>> >>>> Sent from my iPhone >>>> >>>> On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo@auda.org.au> wrote: >>>> >>>>> Greg, >>>>> >>>>> Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet. >>>>> >>>>> Chris Disspain >>>>> CEO - auDA >>>>> >>>>> On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc@gmail.com> wrote: >>>>> >>>>>> Chris, >>>>>> >>>>>> The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier. >>>>>> >>>>>> However, you assumed no change to the SOACs, which made the answers much harder. >>>>>> >>>>>> Greg >>>>>> >>>>>> On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au> wrote: >>>>>> Greg, All, >>>>>> >>>>>> With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations. >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> Cheers, >>>>>> >>>>>> >>>>>> >>>>>> Chris >>>>>> -- 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

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Presumably because they only act on instructions of the SO or AC.

Just as, in the current model, there is no enforceability mechanism for the SOs and ACs to make the Board of ICANN do what the bylaws say they should, how can there be an enforceability mechanism for the SOs and ACs to make the UA do as instructed in the proposed model? Cheers, Chris On 1 May 2015, at 15:41 , Jordan Carter <jordan@internetnz.net.nz> wrote:

Presumably because they only act on instructions of the SO or AC.

An easy way to imagine it: the ccnso council has a section of its meeting when it is 'acting as the member' and does relevant things.

The ccnso can deal with things being done wrong 'as a member' as it can when they are being done wrong 'as the ccnso'.

Does that help?

Jordan

On Friday, 1 May 2015, Chris Disspain <ceo@auda.org.au> wrote:

...

If the UA is only activated when the SO/AC tells its appointed members to act, tight control should not be difficult at all.

How do you ensure the ‘appointed members’ do as the SO/AC wishes unless the SO/AC can enforce?

Cheers,

Chris

On 1 May 2015, at 15:09 , Greg Shatan <gregshatanipc@gmail.com> wrote:

...

It really goes to how the members of the UA are chosen (a UA needs only two members, so they can be officers of the SO/AC or chosen by some other process) -- it need not be as you describe (though what you describe is a reasonable possibility given the proper circumstances). If the UA is only activated when the SO/AC tells its appointed members to act, tight control should not be difficult at all.

I may have to take your word on the penguins, as you are far closer to their native habitat than I. (Though I would note that the Central Park penguins are international movie stars, due to the move "Madagascar" and its offspring.) However, to be fair, I was actually thinking of a tube television set and not a flat screen TV, so we may have some misunderstanding at work here as well (See, "Penguin on the Telly," Monty Python, 1971, https://youtu.be/pwTqC2T6q4E) I do think a large console TV would not be salubrious to a penguin beneath it, while it would provide a pleasant perch for the penguin (barring any unfortunate explosions). With a flat screen TV, the opposite applies.

So, in each case, it's a matter of how the object is designed, not merely a matter of what the object is.

Greg

On Fri, May 1, 2015 at 12:53 AM, Chris Disspain <ceo@auda.org.au> wrote: Leaving aside your penguin analogy (and incidentally you CAN put a television on top of a penguin and it is, in fact, likely to stay there far longer than the penguin will stay on top of the television) I think you may have misunderstood me.

I completely get that the members of the UA control it. The point we are discussing is how members of SO/AC who are NOT members of the UA can ensure that the UA doesn’t go rogue or does what the SO/AC wants.

Unless I’m mistaken, to overcome the possibility that an SO or AC won’t itself want to become an UA or that to do so will involve a significant decrease in membership, the idea is that a UA is set up and those members of the SO or AC who feel comfortable doing so can become members of the UA (minimum 2) or the SOAC can nominate members. Fine. BUT the SO/AC itself is NOT a member and it is the SO/AC that the UA is representing as a member.

How does the SO/AC ensure the UA does its bidding?

Surely the only folks who can control the UA are its members so how does the SO/AC ensure that those UA members follow the instructions of the SO/AC. Surely this is precisely the same conundrum as the SO/AC ICANN one. For anything to be enforceable the SO/AC would need to be a legal entity or every member of the SO/AC would need to join the UA which amounts to the same thing.

What am I missing here?

Cheers,

Chris

On 1 May 2015, at 14:34 , Greg Shatan <gregshatanipc@gmail.com> wrote:

...

Also, UAs are member associations in their essence, so control of the members gives you control of the UA. That's very different from a non-profit (non-membership) corporation. So, it's really diametrically opposite to the relationship between ICANN and the SO/ACs in very fundamental ways. Saying that "the same would apply" in the ICANN situation is like saying that because you can put a penguin on top of a television, you can put a television on top of a penguin.....

On Fri, May 1, 2015 at 12:30 AM, Greg Shatan <gregshatanipc@gmail.com> wrote: If the SO/ACs created ICANN, it might apply. Unfortunately, it's the other way around.

On Fri, May 1, 2015 at 12:28 AM, Chris Disspain <ceo@auda.org.au> wrote: Thanks Greg.

I'll consider the points you make on policy and indeed the fundamental underpinnings of the ICANN model and respond in the next day or so.

However, on the legal question:

...

Finally, I have to say I disagree with your contention that each SO/ACs would need to become an unincorporated association ("UA") rather than merely create one. Admittedly, the issue of how each SO/AC can control its "alter ego" has not been fully fleshed out. However, I believe this was discussed at some length on the legal sub team call and it seems that between the bylaws of the UA and the charter of the SO/AC there should be very tight control by the SO/AC over any actions of the UA.

I look forward to hearing how a combination of the bylaws of the UA and the SO/AC charters will work to provide very tight control by the SO/AC. If they do then surely the same would apply to the ICANN bylaws and the SO/AC charters providing a similarly tight control over the actions of ICANN.

Cheers,

Chris

On 1 May 2015, at 13:50, Greg Shatan <gregshatanipc@gmail.com> wrote:

...

Chris,

Here are my preliminary thoughts:

First, though you said you don't want to debate the example itself, the example troubles me and I think it goes deeper than the example. I think that the establishment of a "TMCH for IGOs" would be new gTLD policy, and almost certainly Consensus Policy, and thus should not be adopted as the example states. Instead, it should be directed down the PDP path to the GNSO. Indeed, if I am not mistaken, that is what happened and resulted in the IGO/INGO Curative Rights Working Group, which may or may not make policy recommendations consistent with the GAC advice. So, I think the premise that the example was meant to demonstrate -- that GAC advice is due more deference than any other input to the Board and that only the Board can set a course contrary to GAC advice -- seems faulty.

This also highlights that the point is not unique to the GAC; it is equally true of the GNSO (or rather, it is true of Board decisions that emanate from the GNSO's processes). The Board could adopt policy recommendations from the GNSO that are reflected in the budget, only to have a supermajority of the Membership send the budget back.

Fundamentally, whether there is a Board action that results from GAC Advice or from a GNSO Recommendation (or from the ccNSO or from the Staff or elsewhere), it is a Board action. And a fundamental premise of the CCWG's work is that certain Board decisions will now be subject to certain specified constraints being placed in the hands of the Membership.

To answer your direct question -- this is not a fundamental shift in the standing of GAC advice and thus a fundamental change in the GAC’s interface with the rest of ICANN; it's something more wide-ranging than that. It is a fundamental shift in the standing of certain Board decisions (whatever their provenance) and thus a fundamental change in the Board's interface with the community.

Frankly, if we were to propose that a multilateral organization gets the last word over the global multistakeholder community (as represented by the proposed Membership), we would have failed by most yardsticks -- not least the yardstick set forth by the NTIA for the IANA stewardship transition.

Finally, I have to say I disagree with your contention that each SO/ACs would need to become an unincorporated association ("UA") rather than merely create one. Admittedly, the issue of how each SO/AC can control its "alter ego" has not been fully fleshed out. However, I believe this was discussed at some length on the legal sub team call and it seems that between the bylaws of the UA and the charter of the SO/AC there should be very tight control by the SO/AC over any actions of the UA.

Greg

On Thu, Apr 30, 2015 at 10:11 PM, Chris Disspain <ceo@auda.org.au> wrote: Jordan, Greg,

I would like to focus upon two of Jordan’s responses in his note of 22 April. Greg you asked me a similar question re the GAC point -

GAC:

CD: However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?

JC: I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).

If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.

Does that feel like a fundamental issue to you? It doesn't to me.

I’m saying is that it might well be a fundamental issue for GAC members. Using an example is the best way to illustrate my point, though I don’t want to get into a debate on the likelihood or otherwise of the example itself. The ICANN Board receives (and will continue to receive) advice from the GAC that potentially affects the ICANN Budget.

Consider a situation where the GAC advises that ICANN should create a repository, much like the TMCH, for the acronyms of IGOs. The repository would be used to advise the relevant IGO that their acronym has been registered in a given gTLD and also to advise the registrant that their registration matches a name in the repository.

Assuming that the Board accepts this advice, it would then be required to make a budgetary allocation for establishment of the repository and an annual operating budget.

In the scenario we are discussing regarding members’ powers, it would be possible for the community to veto the Budget on this point. This then creates a conflict between the public policy advice from the GAC and the powers of members. Should such a situation occur, how would you see it being resolved? Is this not a fundamental shift in the standing of GAC advice and thus a fundamental change in the GAC’s interface with the rest of ICANN?

SOs/ACs generally:

CD: Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).

JC: They won't have to, to do what they do in ICANN today.

The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.

That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.

You make a good point about the legal question. It is one I have yet to see an answer to.

This relates to the comment I made yesterday.

The only way I can see to ensure that the views of ICANN bodies are taken into account is if those SO/ACs become the unincorporated associations themselves. Creating shadow organisations gives rise to the question you raise and significant concerns regarding the accountability of these “alter egos”. To me, this seems like an attempted solution that simply adds another layer of complexity. But maybe counsel’s response to the question I raised yesterday will answer the point.

Cheers,

Chris

On 30 Apr 2015, at 09:38 , Chris Disspain <ceo@auda.org.au> wrote:

...

Thanks Greg. Clear and understood.

What will the control mechanisms be between the ccNSO and its alter ego and how will they be enforced?

Cheers,

Chris

On 30 Apr 2015, at 09:28 , Greg Shatan <gregshatanipc@gmail.com> wrote:

...

Chris,

Please let me try to clarify my understanding of what is currently being proposed (in draft). The SO/ACs will not be "converted" into legal entities. Rather, a "mirror" or "alter ego" entity will be set up for each SO/AC, likely as a unincorporated association (which is a recognized legal entity under California law). Each SO/AC will control its alter ego. This is quite similar to the relationship between the ASO and the NRO. The SO/ACs will continue to exist and will perform and operate as they currently do. The legal entities will be the members (or designators, should that route be chosen) of ICANN, with the specific rights and powers ascribed to them in that capacity by statute and bylaw.

Technically, the unincorporated associations only need a minimum of two members, so any "members" of a SO/AC who don't wish to be members of the alter ego won't need to be. The control arrangements between the SO/AC and the alter ego will ensure that all "members" of the SO/AC (and even non-members, such as non-ccNSO ccTLDs, if desired) get the appropriate "say" in any decisions that are to be carried out by the alter ego.

Best regards,

Greg

On Wed, Apr 29, 2015 at 6:40 PM, Chris Disspain <ceo@auda.org.au> wrote: Jordan,

Apologies for taking so long to respond!

> Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

I’m confused. Greg seems o think that’s exactly what was being proposed. Do we have clarity on this yet?

I’ll respond to the balance of your points later today.

Cheers,

Chris

On 22 Apr 2015, at 16:02 , Jordan Carter <jordan@internetnz.net.nz> wrote:

> Hi all, hi Chris: > > On 22 April 2015 at 11:07, Chris Disspain <ceo@auda.org.au> wrote: > Hi Keith, > > As promised I set out in brief below some of the reasons why, in respect to the membership model and any model requiring the SOs and ACs to convert to legal entities, I have serious concerns and why I referred to significant sacrifices. > > > Nobody is proposing converting the SOs and ACs to anything - at all - anywhere. > > The only proposal that I've seen from the lawyers is that if membership was the model chosen, legal personality would need to be created. The actors in the various SOs and ACs would, in exercising membership prerogatives, act through the unincorporated associations. > > The lawyers have also been clear that even in a designator model, it's preferable to create legal personality along those lines. > > I think it is really really really important for everyone involved in this effort to be very precise and clear about what we are discussing and what we aren't. So I am writing this so directly in order that if my understanding is wrong, it gets picked up pronto! :-) > > GAC > > The current recommended model does not provide any viable solution for dealing with the GAC. It seems obvious to me that the governments involved in the GAC are not going to agree to form an unincorporated association under Californian law. If I'm right then presumably the GAC would remain as an advisory committee and would not be able to have a vote in any of the escalation mechanisms. That may be fine as the GAC may not want to have a vote anyway. > > > Indeed it may not. Being able to offer advice on public policy issues to the ICANN Board and to appoint a non-voting liaison member to the Board. I am looking forward to hearing their views on this (and many other questions). > > > However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree? > > > I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles). > > If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued. > > Does that feel like a fundamental issue to you? It doesn't to me. > > ccTLDs > > When we set up the ccNSO and when we did the structural review of it some time thereafter there was considerable discussion about how it could be structured precisely to avoid the need for ccTLDs to join anything. There was even significant concern about having to fill out a form and whether that implied the existence of some organisation. The concerns included joining something in the jurisdiction of the US and whether that would make a ccTLD manager in any way subject to US law, the possibility of being sued in the US because the manager would be deemed to have a presence there, how such a structure would be funded (especially if it was sued), whether there was any liability on ‘officers’ of the entity and so on. I believe that many of these concerns will still exist for many ccTLDs. > > > They may or may not. But in that fifteen-years-ago debate, were there any facts on the table about those questions? Or was it all a bit of a mess on many fronts? Because ICANN in 2015 is, better or worse, a very different beast to ICANN in ~ 2000. > > Perhaps more importantly, exercising some rights through an unincorporated association would remain a choice for every ICANN participant. Nobody would be forced to be involved. It isn't like a "Join ICANN and have no say" - all the current structures for the "business of the business" would remain in place. > > From the legends I have heard about this early phase in ICANN's history, the fundamental concern was of a power-grab on the corporation's part. Since these reforms make such a power-grab harder (and let's remember that the end of the NTIA contract makes it easier...), I'd expect ccTLDs and others to look at them with quite some interest. > > > > Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter). > > > They won't have to, to do what they do in ICANN today. > > The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment. > > That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot. > > > Finally -- I do think this is a really useful and constructive discussion. As someone who is warm to the member approach, but who sees huge benefits if we can manage a "no structural change" outcome, this is just the convo we need to have. > > cheers, > Jordan > > At Large > > I don’t know the answer to this but it strikes me that the structure may also be problematic for At Large community as opposed to ALAC. On that one over the ALAC folks to comment. > > There’s more but I'm rushing for my flight now. Hope this gives you a flavour. > > > > > > Cheers, > > > > Chris > > > On 21 Apr 2015, at 20:46 , Chris Disspain <ceo@auda.org.au> wrote: > >> Hi Keith, >> >> Thanks for the below. You ask a valid question and Kavouss has sent me an email asking the same. I will respond in detail in the next 7 hours or so. >> >> Chris Disspain >> CEO - auDA >> >> On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek@verisign.com> wrote: >> >>> Thanks Chris, no apologies necessary...this is exactly the kind of dialogue needed to advance our work. >>> >>> Can you be more explicit about the "significant number of sacrifices that would need to be made in a membership scenario" that ccTLDs face? Particularly if any are unique to ccTLDs? >>> >>> Sacrifices may be needed (including from the Board) if we are to accomplish the community's broader goal of ensuring the ICANN Board and Staff are truly accountable to the ICANN community for the next decade. As such, it would be good to know, as early as possible, what those sacrifices might be. >>> >>> In simple terms, I agree that determining what can and cannot be accomplished within the existing structure is a worthwhile exercise and will help to inform the community. >>> >>> Based on our work and the relevant independent legal analysis to date, it appears to me that the current construct has significant gaps and shortcomings and won't deliver on our goals, but I support seeking further advice on the topic from our independent legal advisors. >>> >>> Thanks and regards, >>> Keith >>> >>> On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo@auda.org.au> wrote: >>> >>>> Thanks Keith. >>>> >>>> I apologise for pinging back and forth on this but I hope the list will appreciate that it as an indication of how important auDA believes this point is. >>>> >>>> As I said on the CCWG call last week, I have serious concerns about the viability of the lawyers' recommended structural changes (at least from a cc point of view) and want to be crystal clear about what we can do or cannot do within the current structure. >>>> >>>> For a ccTLD there are a significant number of sacrifices that would need to be made in a membership scenario and I don't believe the cc community can decide whether those sacrifices are worth making unless we can weigh them against what we would be able to achieve using the current structure. >>>> >>>> I think that is essential that our output to the community contains a clear explanation of what the status quo can achieve. If it does not then IMO it is impossible to judge the other scenarios. >>>> >>>> I appreciate your second para and, as a lawyer, I know that time for a response is required. I also appreciate the time constraints under which we are operating. But we will lose more time if the result of our document is a series of questions about whether there really is a need to make the significant changes being recommended. >>>> >>>> In simple terms 'not nearly enough' is not an acceptable response. How can I know that "it" is not nearly enough unless I know what "it" is? >>>> >>>> Chris Disspain >>>> CEO - auDA >>>> >>>> On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek@verisign.com> wrote: >>>> >>>>> >>>>> Chris, >>>>> >>>>> I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough." >>>>> >>>>> That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond. >>>>> >>>>> Regards, >>>>> Keith >>>>> >>>>> >>>>> >>>>> Sent from my iPhone >>>>> >>>>> On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo@auda.org.au> wrote: >>>>> >>>>>> Greg, >>>>>> >>>>>> Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet. >>>>>> >>>>>> Chris Disspain >>>>>> CEO - auDA >>>>>> >>>>>> On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc@gmail.com> wrote: >>>>>> >>>>>>> Chris, >>>>>>> >>>>>>> The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier. >>>>>>> >>>>>>> However, you assumed no change to the SOACs, which made the answers much harder. >>>>>>> >>>>>>> Greg >>>>>>> >>>>>>> On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au> wrote: >>>>>>> Greg, All, >>>>>>> >>>>>>> With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations. >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> Cheers, >>>>>>> >>>>>>> >>>>>>> >>>>>>> Chris >>>>>>> > -- > 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

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-- Jordan Carter Chief Executive, InternetNZ +64-21-442-649 | jordan@internetnz.net.nz

Sent on the run, apologies for brevity

Keith, Thanks. All of that may be fine but unless I've misunderstood, it's all unenforceable because the SO or AC is not a legal entity and therefore cannot sue the UA of a member of it. In other words, the same as is true for the SO/ACs in their relationship with ICANN. Cheers, Chris

On 2 May 2015, at 01:05, Drazek, Keith <kdrazek@verisign.com> wrote:

How about this for enforceability?

1. The SO/AC communicates its instructions in written form to the member/UA. 2. The member/UA acts as the “deliverer” of the SO/AC decision, as instructed in writing. 3. If the UA/member acts in a manner that appears inconsistent with the SO/AC’s written instructions, the issue is referred back to the SO/AC for review. 4. Institute a confirmation period where every SO/AC reviews and confirms the action of its member/UA before any decision is finalized. 5. If the UA/member is confirmed to be acting outside written instructions, the UA/member is replaced by the SO/AC and the process repeats.

Keith

From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Chris Disspain Sent: Friday, May 01, 2015 2:00 AM To: Jordan Carter Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Legal question

Presumably because they only act on instructions of the SO or AC.

Just as, in the current model, there is no enforceability mechanism for the SOs and ACs to make the Board of ICANN do what the bylaws say they should, how can there be an enforceability mechanism for the SOs and ACs to make the UA do as instructed in the proposed model?

Cheers,

Chris

On 1 May 2015, at 15:41 , Jordan Carter <jordan@internetnz.net.nz> wrote:

Presumably because they only act on instructions of the SO or AC.

An easy way to imagine it: the ccnso council has a section of its meeting when it is 'acting as the member' and does relevant things.

The ccnso can deal with things being done wrong 'as a member' as it can when they are being done wrong 'as the ccnso'.

Does that help?

Jordan

On Friday, 1 May 2015, Chris Disspain <ceo@auda.org.au> wrote: If the UA is only activated when the SO/AC tells its appointed members to act, tight control should not be difficult at all.

How do you ensure the ‘appointed members’ do as the SO/AC wishes unless the SO/AC can enforce?

Cheers,

Chris

On 1 May 2015, at 15:09 , Greg Shatan <gregshatanipc@gmail.com> wrote:

It really goes to how the members of the UA are chosen (a UA needs only two members, so they can be officers of the SO/AC or chosen by some other process) -- it need not be as you describe (though what you describe is a reasonable possibility given the proper circumstances). If the UA is only activated when the SO/AC tells its appointed members to act, tight control should not be difficult at all.

I may have to take your word on the penguins, as you are far closer to their native habitat than I. (Though I would note that the Central Park penguins are international movie stars, due to the move "Madagascar" and its offspring.) However, to be fair, I was actually thinking of a tube television set and not a flat screen TV, so we may have some misunderstanding at work here as well (See, "Penguin on the Telly," Monty Python, 1971, https://youtu.be/pwTqC2T6q4E) I do think a large console TV would not be salubrious to a penguin beneath it, while it would provide a pleasant perch for the penguin (barring any unfortunate explosions). With a flat screen TV, the opposite applies.

So, in each case, it's a matter of how the object is designed, not merely a matter of what the object is.

Greg

On Fri, May 1, 2015 at 12:53 AM, Chris Disspain <ceo@auda.org.au> wrote: Leaving aside your penguin analogy (and incidentally you CAN put a television on top of a penguin and it is, in fact, likely to stay there far longer than the penguin will stay on top of the television) I think you may have misunderstood me.

I completely get that the members of the UA control it. The point we are discussing is how members of SO/AC who are NOT members of the UA can ensure that the UA doesn’t go rogue or does what the SO/AC wants.

Unless I’m mistaken, to overcome the possibility that an SO or AC won’t itself want to become an UA or that to do so will involve a significant decrease in membership, the idea is that a UA is set up and those members of the SO or AC who feel comfortable doing so can become members of the UA (minimum 2) or the SOAC can nominate members. Fine. BUT the SO/AC itself is NOT a member and it is the SO/AC that the UA is representing as a member.

How does the SO/AC ensure the UA does its bidding?

Surely the only folks who can control the UA are its members so how does the SO/AC ensure that those UA members follow the instructions of the SO/AC. Surely this is precisely the same conundrum as the SO/AC ICANN one. For anything to be enforceable the SO/AC would need to be a legal entity or every member of the SO/AC would need to join the UA which amounts to the same thing.

What am I missing here?

Cheers,

Chris

On 1 May 2015, at 14:34 , Greg Shatan <gregshatanipc@gmail.com> wrote:

Also, UAs are member associations in their essence, so control of the members gives you control of the UA. That's very different from a non-profit (non-membership) corporation. So, it's really diametrically opposite to the relationship between ICANN and the SO/ACs in very fundamental ways. Saying that "the same would apply" in the ICANN situation is like saying that because you can put a penguin on top of a television, you can put a television on top of a penguin.....

On Fri, May 1, 2015 at 12:30 AM, Greg Shatan <gregshatanipc@gmail.com> wrote: If the SO/ACs created ICANN, it might apply. Unfortunately, it's the other way around.

On Fri, May 1, 2015 at 12:28 AM, Chris Disspain <ceo@auda.org.au> wrote: Thanks Greg.

I'll consider the points you make on policy and indeed the fundamental underpinnings of the ICANN model and respond in the next day or so.

However, on the legal question:

Finally, I have to say I disagree with your contention that each SO/ACs would need to become an unincorporated association ("UA") rather than merely create one. Admittedly, the issue of how each SO/AC can control its "alter ego" has not been fully fleshed out. However, I believe this was discussed at some length on the legal sub team call and it seems that between the bylaws of the UA and the charter of the SO/AC there should be very tight control by the SO/AC over any actions of the UA.

I look forward to hearing how a combination of the bylaws of the UA and the SO/AC charters will work to provide very tight control by the SO/AC. If they do then surely the same would apply to the ICANN bylaws and the SO/AC charters providing a similarly tight control over the actions of ICANN.

Cheers,

Chris

On 1 May 2015, at 13:50, Greg Shatan <gregshatanipc@gmail.com> wrote:

Chris,

Here are my preliminary thoughts:

First, though you said you don't want to debate the example itself, the example troubles me and I think it goes deeper than the example. I think that the establishment of a "TMCH for IGOs" would be new gTLD policy, and almost certainly Consensus Policy, and thus should not be adopted as the example states. Instead, it should be directed down the PDP path to the GNSO. Indeed, if I am not mistaken, that is what happened and resulted in the IGO/INGO Curative Rights Working Group, which may or may not make policy recommendations consistent with the GAC advice. So, I think the premise that the example was meant to demonstrate -- that GAC advice is due more deference than any other input to the Board and that only the Board can set a course contrary to GAC advice -- seems faulty.

This also highlights that the point is not unique to the GAC; it is equally true of the GNSO (or rather, it is true of Board decisions that emanate from the GNSO's processes). The Board could adopt policy recommendations from the GNSO that are reflected in the budget, only to have a supermajority of the Membership send the budget back.

Fundamentally, whether there is a Board action that results from GAC Advice or from a GNSO Recommendation (or from the ccNSO or from the Staff or elsewhere), it is a Board action. And a fundamental premise of the CCWG's work is that certain Board decisions will now be subject to certain specified constraints being placed in the hands of the Membership.

To answer your direct question -- this is not a fundamental shift in the standing of GAC advice and thus a fundamental change in the GAC’s interface with the rest of ICANN; it's something more wide-ranging than that. It is a fundamental shift in the standing of certain Board decisions (whatever their provenance) and thus a fundamental change in the Board's interface with the community.

Frankly, if we were to propose that a multilateral organization gets the last word over the global multistakeholder community (as represented by the proposed Membership), we would have failed by most yardsticks -- not least the yardstick set forth by the NTIA for the IANA stewardship transition.

Finally, I have to say I disagree with your contention that each SO/ACs would need to become an unincorporated association ("UA") rather than merely create one. Admittedly, the issue of how each SO/AC can control its "alter ego" has not been fully fleshed out. However, I believe this was discussed at some length on the legal sub team call and it seems that between the bylaws of the UA and the charter of the SO/AC there should be very tight control by the SO/AC over any actions of the UA.

Greg

On Thu, Apr 30, 2015 at 10:11 PM, Chris Disspain <ceo@auda.org.au> wrote: Jordan, Greg,

I would like to focus upon two of Jordan’s responses in his note of 22 April. Greg you asked me a similar question re the GAC point -

GAC:

CD: However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?

JC: I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).

If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.

Does that feel like a fundamental issue to you? It doesn't to me.

I’m saying is that it might well be a fundamental issue for GAC members. Using an example is the best way to illustrate my point, though I don’t want to get into a debate on the likelihood or otherwise of the example itself. The ICANN Board receives (and will continue to receive) advice from the GAC that potentially affects the ICANN Budget.

Consider a situation where the GAC advises that ICANN should create a repository, much like the TMCH, for the acronyms of IGOs. The repository would be used to advise the relevant IGO that their acronym has been registered in a given gTLD and also to advise the registrant that their registration matches a name in the repository.

Assuming that the Board accepts this advice, it would then be required to make a budgetary allocation for establishment of the repository and an annual operating budget.

In the scenario we are discussing regarding members’ powers, it would be possible for the community to veto the Budget on this point. This then creates a conflict between the public policy advice from the GAC and the powers of members. Should such a situation occur, how would you see it being resolved? Is this not a fundamental shift in the standing of GAC advice and thus a fundamental change in the GAC’s interface with the rest of ICANN?

SOs/ACs generally:

CD: Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).

JC: They won't have to, to do what they do in ICANN today.

The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.

That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.

You make a good point about the legal question. It is one I have yet to see an answer to.

This relates to the comment I made yesterday.

The only way I can see to ensure that the views of ICANN bodies are taken into account is if those SO/ACs become the unincorporated associations themselves. Creating shadow organisations gives rise to the question you raise and significant concerns regarding the accountability of these “alter egos”. To me, this seems like an attempted solution that simply adds another layer of complexity. But maybe counsel’s response to the question I raised yesterday will answer the point.

Cheers,

Chris

On 30 Apr 2015, at 09:38 , Chris Disspain <ceo@auda.org.au> wrote:

Thanks Greg. Clear and understood.

What will the control mechanisms be between the ccNSO and its alter ego and how will they be enforced?

Cheers,

Chris

On 30 Apr 2015, at 09:28 , Greg Shatan <gregshatanipc@gmail.com> wrote:

Chris,

Please let me try to clarify my understanding of what is currently being proposed (in draft). The SO/ACs will not be "converted" into legal entities. Rather, a "mirror" or "alter ego" entity will be set up for each SO/AC, likely as a unincorporated association (which is a recognized legal entity under California law). Each SO/AC will control its alter ego. This is quite similar to the relationship between the ASO and the NRO. The SO/ACs will continue to exist and will perform and operate as they currently do. The legal entities will be the members (or designators, should that route be chosen) of ICANN, with the specific rights and powers ascribed to them in that capacity by statute and bylaw.

Technically, the unincorporated associations only need a minimum of two members, so any "members" of a SO/AC who don't wish to be members of the alter ego won't need to be. The control arrangements between the SO/AC and the alter ego will ensure that all "members" of the SO/AC (and even non-members, such as non-ccNSO ccTLDs, if desired) get the appropriate "say" in any decisions that are to be carried out by the alter ego.

Best regards,

Greg

On Wed, Apr 29, 2015 at 6:40 PM, Chris Disspain <ceo@auda.org.au> wrote: Jordan,

Apologies for taking so long to respond!

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

I’m confused. Greg seems o think that’s exactly what was being proposed. Do we have clarity on this yet?

I’ll respond to the balance of your points later today.

Cheers,

Chris

On 22 Apr 2015, at 16:02 , Jordan Carter <jordan@internetnz.net.nz> wrote:

Hi all, hi Chris:

On 22 April 2015 at 11:07, Chris Disspain <ceo@auda.org.au> wrote: Hi Keith, As promised I set out in brief below some of the reasons why, in respect to the membership model and any model requiring the SOs and ACs to convert to legal entities, I have serious concerns and why I referred to significant sacrifices.

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

The only proposal that I've seen from the lawyers is that if membership was the model chosen, legal personality would need to be created. The actors in the various SOs and ACs would, in exercising membership prerogatives, act through the unincorporated associations.

The lawyers have also been clear that even in a designator model, it's preferable to create legal personality along those lines.

I think it is really really really important for everyone involved in this effort to be very precise and clear about what we are discussing and what we aren't. So I am writing this so directly in order that if my understanding is wrong, it gets picked up pronto! :-)

GAC The current recommended model does not provide any viable solution for dealing with the GAC. It seems obvious to me that the governments involved in the GAC are not going to agree to form an unincorporated association under Californian law. If I'm right then presumably the GAC would remain as an advisory committee and would not be able to have a vote in any of the escalation mechanisms. That may be fine as the GAC may not want to have a vote anyway.

Indeed it may not. Being able to offer advice on public policy issues to the ICANN Board and to appoint a non-voting liaison member to the Board. I am looking forward to hearing their views on this (and many other questions).

However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?

I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).

If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.

Does that feel like a fundamental issue to you? It doesn't to me.

ccTLDs When we set up the ccNSO and when we did the structural review of it some time thereafter there was considerable discussion about how it could be structured precisely to avoid the need for ccTLDs to join anything. There was even significant concern about having to fill out a form and whether that implied the existence of some organisation. The concerns included joining something in the jurisdiction of the US and whether that would make a ccTLD manager in any way subject to US law, the possibility of being sued in the US because the manager would be deemed to have a presence there, how such a structure would be funded (especially if it was sued), whether there was any liability on ‘officers’ of the entity and so on. I believe that many of these concerns will still exist for many ccTLDs.

They may or may not. But in that fifteen-years-ago debate, were there any facts on the table about those questions? Or was it all a bit of a mess on many fronts? Because ICANN in 2015 is, better or worse, a very different beast to ICANN in ~ 2000.

Perhaps more importantly, exercising some rights through an unincorporated association would remain a choice for every ICANN participant. Nobody would be forced to be involved. It isn't like a "Join ICANN and have no say" - all the current structures for the "business of the business" would remain in place.

From the legends I have heard about this early phase in ICANN's history, the fundamental concern was of a power-grab on the corporation's part. Since these reforms make such a power-grab harder (and let's remember that the end of the NTIA contract makes it easier...), I'd expect ccTLDs and others to look at them with quite some interest.

Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).

They won't have to, to do what they do in ICANN today.

The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.

That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.

Finally -- I do think this is a really useful and constructive discussion. As someone who is warm to the member approach, but who sees huge benefits if we can manage a "no structural change" outcome, this is just the convo we need to have.

cheers, Jordan

At Large I don’t know the answer to this but it strikes me that the structure may also be problematic for At Large community as opposed to ALAC. On that one over the ALAC folks to comment. There’s more but I'm rushing for my flight now. Hope this gives you a flavour.

Cheers,

Chris

On 21 Apr 2015, at 20:46 , Chris Disspain <ceo@auda.org.au> wrote:

Hi Keith,

Thanks for the below. You ask a valid question and Kavouss has sent me an email asking the same. I will respond in detail in the next 7 hours or so.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek@verisign.com> wrote:

Thanks Chris, no apologies necessary...this is exactly the kind of dialogue needed to advance our work.

Can you be more explicit about the "significant number of sacrifices that would need to be made in a membership scenario" that ccTLDs face? Particularly if any are unique to ccTLDs?

Sacrifices may be needed (including from the Board) if we are to accomplish the community's broader goal of ensuring the ICANN Board and Staff are truly accountable to the ICANN community for the next decade. As such, it would be good to know, as early as possible, what those sacrifices might be.

In simple terms, I agree that determining what can and cannot be accomplished within the existing structure is a worthwhile exercise and will help to inform the community.

Based on our work and the relevant independent legal analysis to date, it appears to me that the current construct has significant gaps and shortcomings and won't deliver on our goals, but I support seeking further advice on the topic from our independent legal advisors.

Thanks and regards, Keith

On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo@auda.org.au> wrote:

Thanks Keith.

I apologise for pinging back and forth on this but I hope the list will appreciate that it as an indication of how important auDA believes this point is.

As I said on the CCWG call last week, I have serious concerns about the viability of the lawyers' recommended structural changes (at least from a cc point of view) and want to be crystal clear about what we can do or cannot do within the current structure.

For a ccTLD there are a significant number of sacrifices that would need to be made in a membership scenario and I don't believe the cc community can decide whether those sacrifices are worth making unless we can weigh them against what we would be able to achieve using the current structure.

I think that is essential that our output to the community contains a clear explanation of what the status quo can achieve. If it does not then IMO it is impossible to judge the other scenarios.

I appreciate your second para and, as a lawyer, I know that time for a response is required. I also appreciate the time constraints under which we are operating. But we will lose more time if the result of our document is a series of questions about whether there really is a need to make the significant changes being recommended.

In simple terms 'not nearly enough' is not an acceptable response. How can I know that "it" is not nearly enough unless I know what "it" is?

Chris Disspain CEO - auDA

On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek@verisign.com> wrote:

Chris,

I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough."

That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond.

Regards, Keith

Sent from my iPhone

On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo@auda.org.au> wrote:

Greg,

Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc@gmail.com> wrote:

Chris,

The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier.

However, you assumed no change to the SOACs, which made the answers much harder.

Greg

On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au> wrote: Greg, All,

With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations.

Cheers,

Chris

-- 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

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-- Jordan Carter Chief Executive, InternetNZ +64-21-442-649 | jordan@internetnz.net.nz

Sent on the run, apologies for brevity

Jordan, First I'd like to establish beyond doubt that my interpretation is correct and that the UA, as a legal entity, can act as its own "person" pursuant to the will of its members and that the SO has no legal hold over the UA. If I am correct then whilst the UA has the legal right to do a number of things and, under the ICANN bylaws, to make ICANN do a number of things and to sue ICANN if it does not do them, the SO has no legal right to make the UA do or not do anything and cannot sue the UA or close it down.

If somehow the ccNSO Councillors made decisions as the UA executive that were inconsistent with their decisions as ccNSO Councillors, then this isn't a structural issue, it's a sanity issue....?

Actually, it's a trust issue and puts us back to precisely the same conundrum we have with the rights of SOs and ACs re ICANN. If we all trusted each other none of this would be necessary. I'll happily debate the merits of who to trust, why the gnso and ccNSO councils currently have, in effect, little or no power etc but first I want to know if my legal interpretation is correct. I await the answer with interest. 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 2 May 2015, at 08:31, Jordan Carter <jordan@internetnz.net.nz> wrote:

Chris, all:

This is exactly the wrong way around. Talking through a different sort of example might help.

Let's say for an example that the ccNSO under this scheme was a "member". Let's say the ccNSO's unincorporated association ("UA") is comprised by its rules as the fifteen ccNSO Councillors, with each having a single vote within the association.

In the course of a ccNSO Council meeting, a section of the meeting would be opened as "this is a meeting of the ccNSO UA." Whatever business needed to be done in that function would be done - let's say for an example that there was a proposal to approve an additional Fundamental Bylaw. The group would vote on that proposal, and its votes would go into the mix for the overall ICANN community decision.

If the Council voted 12 in favour and 3 against, then 4 of the 5"votes" of the ccNSO would be in favour, and 1 of 5 would be against.

Because the decision makers in the ccNSO UA are the same people as the ccNSO Council, it seems to me that enforceability becomes of little concern. The body of members of the UA are making all the decisions - there wouldn't be some kind of separate executive making the calls and subject to capture.

The UA members (the ccNSO Councillors) would not attract any fiduciary duties and their liability for the decisions they make would be at least as minimal as it is today in their internal-to-ICANN ccNSO Councillor roles.

If somehow the ccNSO Councillors made decisions as the UA executive that were inconsistent with their decisions as ccNSO Councillors, then this isn't a structural issue, it's a sanity issue....?

cheers Jordan

...

On 2 May 2015 at 10:12, Chris Disspain <ceo@auda.org.au> wrote: Keith,

Thanks.

All of that may be fine but unless I've misunderstood, it's all unenforceable because the SO or AC is not a legal entity and therefore cannot sue the UA of a member of it. In other words, the same as is true for the SO/ACs in their relationship with ICANN.

Cheers,

Chris

...

On 2 May 2015, at 01:05, Drazek, Keith <kdrazek@verisign.com> wrote:

How about this for enforceability?

1. The SO/AC communicates its instructions in written form to the member/UA.

2. The member/UA acts as the “deliverer” of the SO/AC decision, as instructed in writing.

3. If the UA/member acts in a manner that appears inconsistent with the SO/AC’s written instructions, the issue is referred back to the SO/AC for review.

4. Institute a confirmation period where every SO/AC reviews and confirms the action of its member/UA before any decision is finalized.

5. If the UA/member is confirmed to be acting outside written instructions, the UA/member is replaced by the SO/AC and the process repeats.

Keith

From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Chris Disspain Sent: Friday, May 01, 2015 2:00 AM To: Jordan Carter Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Legal question

Presumably because they only act on instructions of the SO or AC.

Just as, in the current model, there is no enforceability mechanism for the SOs and ACs to make the Board of ICANN do what the bylaws say they should, how can there be an enforceability mechanism for the SOs and ACs to make the UA do as instructed in the proposed model?

Cheers,

Chris

On 1 May 2015, at 15:41 , Jordan Carter <jordan@internetnz.net.nz> wrote:

Presumably because they only act on instructions of the SO or AC.

An easy way to imagine it: the ccnso council has a section of its meeting when it is 'acting as the member' and does relevant things.

The ccnso can deal with things being done wrong 'as a member' as it can when they are being done wrong 'as the ccnso'.

Does that help?

Jordan

On Friday, 1 May 2015, Chris Disspain <ceo@auda.org.au> wrote:

If the UA is only activated when the SO/AC tells its appointed members to act, tight control should not be difficult at all.

How do you ensure the ‘appointed members’ do as the SO/AC wishes unless the SO/AC can enforce?

Cheers,

Chris

On 1 May 2015, at 15:09 , Greg Shatan <gregshatanipc@gmail.com> wrote:

It really goes to how the members of the UA are chosen (a UA needs only two members, so they can be officers of the SO/AC or chosen by some other process) -- it need not be as you describe (though what you describe is a reasonable possibility given the proper circumstances). If the UA is only activated when the SO/AC tells its appointed members to act, tight control should not be difficult at all.

I may have to take your word on the penguins, as you are far closer to their native habitat than I. (Though I would note that the Central Park penguins are international movie stars, due to the move "Madagascar" and its offspring.) However, to be fair, I was actually thinking of a tube television set and not a flat screen TV, so we may have some misunderstanding at work here as well (See, "Penguin on the Telly," Monty Python, 1971, https://youtu.be/pwTqC2T6q4E) I do think a large console TV would not be salubrious to a penguin beneath it, while it would provide a pleasant perch for the penguin (barring any unfortunate explosions). With a flat screen TV, the opposite applies.

So, in each case, it's a matter of how the object is designed, not merely a matter of what the object is.

Greg

On Fri, May 1, 2015 at 12:53 AM, Chris Disspain <ceo@auda.org.au> wrote:

Leaving aside your penguin analogy (and incidentally you CAN put a television on top of a penguin and it is, in fact, likely to stay there far longer than the penguin will stay on top of the television) I think you may have misunderstood me.

I completely get that the members of the UA control it. The point we are discussing is how members of SO/AC who are NOT members of the UA can ensure that the UA doesn’t go rogue or does what the SO/AC wants.

Unless I’m mistaken, to overcome the possibility that an SO or AC won’t itself want to become an UA or that to do so will involve a significant decrease in membership, the idea is that a UA is set up and those members of the SO or AC who feel comfortable doing so can become members of the UA (minimum 2) or the SOAC can nominate members. Fine. BUT the SO/AC itself is NOT a member and it is the SO/AC that the UA is representing as a member.

How does the SO/AC ensure the UA does its bidding?

Surely the only folks who can control the UA are its members so how does the SO/AC ensure that those UA members follow the instructions of the SO/AC. Surely this is precisely the same conundrum as the SO/AC ICANN one. For anything to be enforceable the SO/AC would need to be a legal entity or every member of the SO/AC would need to join the UA which amounts to the same thing.

What am I missing here?

Cheers,

Chris

On 1 May 2015, at 14:34 , Greg Shatan <gregshatanipc@gmail.com> wrote:

Also, UAs are member associations in their essence, so control of the members gives you control of the UA. That's very different from a non-profit (non-membership) corporation. So, it's really diametrically opposite to the relationship between ICANN and the SO/ACs in very fundamental ways. Saying that "the same would apply" in the ICANN situation is like saying that because you can put a penguin on top of a television, you can put a television on top of a penguin.....

On Fri, May 1, 2015 at 12:30 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:

If the SO/ACs created ICANN, it might apply. Unfortunately, it's the other way around.

On Fri, May 1, 2015 at 12:28 AM, Chris Disspain <ceo@auda.org.au> wrote:

Thanks Greg.

I'll consider the points you make on policy and indeed the fundamental underpinnings of the ICANN model and respond in the next day or so.

However, on the legal question:

Finally, I have to say I disagree with your contention that each SO/ACs would need to become an unincorporated association ("UA") rather than merely create one. Admittedly, the issue of how each SO/AC can control its "alter ego" has not been fully fleshed out. However, I believe this was discussed at some length on the legal sub team call and it seems that between the bylaws of the UA and the charter of the SO/AC there should be very tight control by the SO/AC over any actions of the UA.

I look forward to hearing how a combination of the bylaws of the UA and the SO/AC charters will work to provide very tight control by the SO/AC. If they do then surely the same would apply to the ICANN bylaws and the SO/AC charters providing a similarly tight control over the actions of ICANN.

Cheers,

Chris

On 1 May 2015, at 13:50, Greg Shatan <gregshatanipc@gmail.com> wrote:

Chris,

Here are my preliminary thoughts:

First, though you said you don't want to debate the example itself, the example troubles me and I think it goes deeper than the example. I think that the establishment of a "TMCH for IGOs" would be new gTLD policy, and almost certainly Consensus Policy, and thus should not be adopted as the example states. Instead, it should be directed down the PDP path to the GNSO. Indeed, if I am not mistaken, that is what happened and resulted in the IGO/INGO Curative Rights Working Group, which may or may not make policy recommendations consistent with the GAC advice. So, I think the premise that the example was meant to demonstrate -- that GAC advice is due more deference than any other input to the Board and that only the Board can set a course contrary to GAC advice -- seems faulty.

This also highlights that the point is not unique to the GAC; it is equally true of the GNSO (or rather, it is true of Board decisions that emanate from the GNSO's processes). The Board could adopt policy recommendations from the GNSO that are reflected in the budget, only to have a supermajority of the Membership send the budget back.

Fundamentally, whether there is a Board action that results from GAC Advice or from a GNSO Recommendation (or from the ccNSO or from the Staff or elsewhere), it is a Board action. And a fundamental premise of the CCWG's work is that certain Board decisions will now be subject to certain specified constraints being placed in the hands of the Membership.

To answer your direct question -- this is not a fundamental shift in the standing of GAC advice and thus a fundamental change in the GAC’s interface with the rest of ICANN; it's something more wide-ranging than that. It is a fundamental shift in the standing of certain Board decisions (whatever their provenance) and thus a fundamental change in the Board's interface with the community.

Frankly, if we were to propose that a multilateral organization gets the last word over the global multistakeholder community (as represented by the proposed Membership), we would have failed by most yardsticks -- not least the yardstick set forth by the NTIA for the IANA stewardship transition.

Finally, I have to say I disagree with your contention that each SO/ACs would need to become an unincorporated association ("UA") rather than merely create one. Admittedly, the issue of how each SO/AC can control its "alter ego" has not been fully fleshed out. However, I believe this was discussed at some length on the legal sub team call and it seems that between the bylaws of the UA and the charter of the SO/AC there should be very tight control by the SO/AC over any actions of the UA.

Greg

On Thu, Apr 30, 2015 at 10:11 PM, Chris Disspain <ceo@auda.org.au> wrote:

Jordan, Greg,

I would like to focus upon two of Jordan’s responses in his note of 22 April. Greg you asked me a similar question re the GAC point -

GAC:

CD: However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?

JC: I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).

If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.

Does that feel like a fundamental issue to you? It doesn't to me.

I’m saying is that it might well be a fundamental issue for GAC members. Using an example is the best way to illustrate my point, though I don’t want to get into a debate on the likelihood or otherwise of the example itself. The ICANN Board receives (and will continue to receive) advice from the GAC that potentially affects the ICANN Budget.

Consider a situation where the GAC advises that ICANN should create a repository, much like the TMCH, for the acronyms of IGOs. The repository would be used to advise the relevant IGO that their acronym has been registered in a given gTLD and also to advise the registrant that their registration matches a name in the repository.

Assuming that the Board accepts this advice, it would then be required to make a budgetary allocation for establishment of the repository and an annual operating budget.

In the scenario we are discussing regarding members’ powers, it would be possible for the community to veto the Budget on this point. This then creates a conflict between the public policy advice from the GAC and the powers of members. Should such a situation occur, how would you see it being resolved? Is this not a fundamental shift in the standing of GAC advice and thus a fundamental change in the GAC’s interface with the rest of ICANN?

SOs/ACs generally:

CD: Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).

JC: They won't have to, to do what they do in ICANN today.

The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.

That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.

You make a good point about the legal question. It is one I have yet to see an answer to.

This relates to the comment I made yesterday.

The only way I can see to ensure that the views of ICANN bodies are taken into account is if those SO/ACs become the unincorporated associations themselves. Creating shadow organisations gives rise to the question you raise and significant concerns regarding the accountability of these “alter egos”. To me, this seems like an attempted solution that simply adds another layer of complexity. But maybe counsel’s response to the question I raised yesterday will answer the point.

Cheers,

Chris

On 30 Apr 2015, at 09:38 , Chris Disspain <ceo@auda.org.au> wrote:

Thanks Greg. Clear and understood.

What will the control mechanisms be between the ccNSO and its alter ego and how will they be enforced?

Cheers,

Chris

On 30 Apr 2015, at 09:28 , Greg Shatan <gregshatanipc@gmail.com> wrote:

Chris,

Please let me try to clarify my understanding of what is currently being proposed (in draft). The SO/ACs will not be "converted" into legal entities. Rather, a "mirror" or "alter ego" entity will be set up for each SO/AC, likely as a unincorporated association (which is a recognized legal entity under California law). Each SO/AC will control its alter ego. This is quite similar to the relationship between the ASO and the NRO. The SO/ACs will continue to exist and will perform and operate as they currently do. The legal entities will be the members (or designators, should that route be chosen) of ICANN, with the specific rights and powers ascribed to them in that capacity by statute and bylaw.

Technically, the unincorporated associations only need a minimum of two members, so any "members" of a SO/AC who don't wish to be members of the alter ego won't need to be. The control arrangements between the SO/AC and the alter ego will ensure that all "members" of the SO/AC (and even non-members, such as non-ccNSO ccTLDs, if desired) get the appropriate "say" in any decisions that are to be carried out by the alter ego.

Best regards,

Greg

On Wed, Apr 29, 2015 at 6:40 PM, Chris Disspain <ceo@auda.org.au> wrote:

Jordan,

Apologies for taking so long to respond!

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

I’m confused. Greg seems o think that’s exactly what was being proposed. Do we have clarity on this yet?

I’ll respond to the balance of your points later today.

Cheers,

Chris

On 22 Apr 2015, at 16:02 , Jordan Carter <jordan@internetnz.net.nz> wrote:

Hi all, hi Chris:

On 22 April 2015 at 11:07, Chris Disspain <ceo@auda.org.au> wrote:

Hi Keith,

As promised I set out in brief below some of the reasons why, in respect to the membership model and any model requiring the SOs and ACs to convert to legal entities, I have serious concerns and why I referred to significant sacrifices.

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

The only proposal that I've seen from the lawyers is that if membership was the model chosen, legal personality would need to be created. The actors in the various SOs and ACs would, in exercising membership prerogatives, act through the unincorporated associations.

The lawyers have also been clear that even in a designator model, it's preferable to create legal personality along those lines.

I think it is really really really important for everyone involved in this effort to be very precise and clear about what we are discussing and what we aren't. So I am writing this so directly in order that if my understanding is wrong, it gets picked up pronto! :-)

GAC

The current recommended model does not provide any viable solution for dealing with the GAC. It seems obvious to me that the governments involved in the GAC are not going to agree to form an unincorporated association under Californian law. If I'm right then presumably the GAC would remain as an advisory committee and would not be able to have a vote in any of the escalation mechanisms. That may be fine as the GAC may not want to have a vote anyway.

Indeed it may not. Being able to offer advice on public policy issues to the ICANN Board and to appoint a non-voting liaison member to the Board. I am looking forward to hearing their views on this (and many other questions).

However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?

I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).

If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.

Does that feel like a fundamental issue to you? It doesn't to me.

ccTLDs

When we set up the ccNSO and when we did the structural review of it some time thereafter there was considerable discussion about how it could be structured precisely to avoid the need for ccTLDs to join anything. There was even significant concern about having to fill out a form and whether that implied the existence of some organisation. The concerns included joining something in the jurisdiction of the US and whether that would make a ccTLD manager in any way subject to US law, the possibility of being sued in the US because the manager would be deemed to have a presence there, how such a structure would be funded (especially if it was sued), whether there was any liability on ‘officers’ of the entity and so on. I believe that many of these concerns will still exist for many ccTLDs.

They may or may not. But in that fifteen-years-ago debate, were there any facts on the table about those questions? Or was it all a bit of a mess on many fronts? Because ICANN in 2015 is, better or worse, a very different beast to ICANN in ~ 2000.

Perhaps more importantly, exercising some rights through an unincorporated association would remain a choice for every ICANN participant. Nobody would be forced to be involved. It isn't like a "Join ICANN and have no say" - all the current structures for the "business of the business" would remain in place.

From the legends I have heard about this early phase in ICANN's history, the fundamental concern was of a power-grab on the corporation's part. Since these reforms make such a power-grab harder (and let's remember that the end of the NTIA contract makes it easier...), I'd expect ccTLDs and others to look at them with quite some interest.

Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).

They won't have to, to do what they do in ICANN today.

The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.

That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.

Finally -- I do think this is a really useful and constructive discussion. As someone who is warm to the member approach, but who sees huge benefits if we can manage a "no structural change" outcome, this is just the convo we need to have.

cheers,

Jordan

At Large

I don’t know the answer to this but it strikes me that the structure may also be problematic for At Large community as opposed to ALAC. On that one over the ALAC folks to comment.

There’s more but I'm rushing for my flight now. Hope this gives you a flavour.

Cheers,

Chris

On 21 Apr 2015, at 20:46 , Chris Disspain <ceo@auda.org.au> wrote:

Hi Keith,

Thanks for the below. You ask a valid question and Kavouss has sent me an email asking the same. I will respond in detail in the next 7 hours or so.

Chris Disspain

CEO - auDA

On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek@verisign.com> wrote:

Thanks Chris, no apologies necessary...this is exactly the kind of dialogue needed to advance our work.

Can you be more explicit about the "significant number of sacrifices that would need to be made in a membership scenario" that ccTLDs face? Particularly if any are unique to ccTLDs?

Sacrifices may be needed (including from the Board) if we are to accomplish the community's broader goal of ensuring the ICANN Board and Staff are truly accountable to the ICANN community for the next decade. As such, it would be good to know, as early as possible, what those sacrifices might be.

In simple terms, I agree that determining what can and cannot be accomplished within the existing structure is a worthwhile exercise and will help to inform the community.

Based on our work and the relevant independent legal analysis to date, it appears to me that the current construct has significant gaps and shortcomings and won't deliver on our goals, but I support seeking further advice on the topic from our independent legal advisors.

Thanks and regards,

Keith

On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo@auda.org.au> wrote:

Thanks Keith.

I apologise for pinging back and forth on this but I hope the list will appreciate that it as an indication of how important auDA believes this point is.

As I said on the CCWG call last week, I have serious concerns about the viability of the lawyers' recommended structural changes (at least from a cc point of view) and want to be crystal clear about what we can do or cannot do within the current structure.

For a ccTLD there are a significant number of sacrifices that would need to be made in a membership scenario and I don't believe the cc community can decide whether those sacrifices are worth making unless we can weigh them against what we would be able to achieve using the current structure.

I think that is essential that our output to the community contains a clear explanation of what the status quo can achieve. If it does not then IMO it is impossible to judge the other scenarios.

I appreciate your second para and, as a lawyer, I know that time for a response is required. I also appreciate the time constraints under which we are operating. But we will lose more time if the result of our document is a series of questions about whether there really is a need to make the significant changes being recommended.

In simple terms 'not nearly enough' is not an acceptable response. How can I know that "it" is not nearly enough unless I know what "it" is?

Chris Disspain

CEO - auDA

On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek@verisign.com> wrote:

Chris,

I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough."

That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond.

Regards,

Keith

Sent from my iPhone

On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo@auda.org.au> wrote:

Greg,

Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet.

Chris Disspain

CEO - auDA

On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc@gmail.com> wrote:

Chris,

The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier.

However, you assumed no change to the SOACs, which made the answers much harder.

Greg

On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au> wrote:

Greg, All,

With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations.

Cheers,

Chris

--

Jordan Carter

Chief Executive InternetNZ

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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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A better world through a better Internet

I do not believe that this is at all correct. It is the opposite of the situation that would arise.

We would be designing UAs where the members of the UA are/is the SO.

No Jordan. How can the SO or AC be a member of the UA if that SO or AC isn’t a legal entity? And even if it could be a member, how can it enforce its rights if it can’t sue? Cheers, Chris On 2 May 2015, at 08:52 , Jordan Carter <jordan@internetnz.net.nz> wrote:

Hi Chris,

On 2 May 2015 at 10:46, Chris Disspain <ceo@auda.org.au> wrote: Jordan,

First I'd like to establish beyond doubt that my interpretation is correct and that the UA, as a legal entity, can act as its own "person" pursuant to the will of its members and that the SO has no legal hold over the UA.

If I am correct then whilst the UA has the legal right to do a number of things and, under the ICANN bylaws, to make ICANN do a number of things and to sue ICANN if it does not do them, the SO has no legal right to make the UA do or not do anything and cannot sue the UA or close it down.

I do not believe that this is at all correct. It is the opposite of the situation that would arise.

We would be designing UAs where the members of the UA are/is the SO.

Members of the UA have total legal control over the UA - they can make it do anything or stop doing anything. They can close it down. So the SO has every legal right required - far more so than they do today with respect to ICANN. And through this structure, the SO will have more control over ICANN (through the new powers we have set out) than it does today.

...

If somehow the ccNSO Councillors made decisions as the UA executive that were inconsistent with their decisions as ccNSO Councillors, then this isn't a structural issue, it's a sanity issue....?

Actually, it's a trust issue and puts us back to precisely the same conundrum we have with the rights of SOs and ACs re ICANN. If we all trusted each other none of this would be necessary.

But it isn't a trust issue at all. You have asserted that the SO can't control the UA, but that just isn't the case.

cheers Jordan

I'll happily debate the merits of who to trust, why the gnso and ccNSO councils currently have, in effect, little or no power etc but first I want to know if my legal interpretation is correct.

I await the answer with interest.

-- 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

From a purely sociological point of view, I find it fascinating that we are trying to allow for the worst case with actions of the Board, but are presuming the best of behaviors for those associated with the AC/SO/UAs, yet all are drawn from essentially the same population. As Jan Scholte has advised, we must also allow for the community or parts of it going rogue or disengaging. Similarly, we are talking about creating UAs so that they can sue to address what they consider abhorrent behaviour on the part of ICANN or its Board, but presume that they themselves will not be sued - even in the form of a counter-suit. Alan At 01/05/2015 06:12 PM, Chris Disspain wrote:

Keith,

Thanks.

All of that may be fine but unless I've misunderstood, it's all unenforceable because the SO or AC is not a legal entity and therefore cannot sue the UA of a member of it. In other words, the same as is true for the SO/ACs in their relationship with ICANN.

Cheers,

Chris

On 2 May 2015, at 01:05, Drazek, Keith <<mailto:kdrazek@verisign.com>kdrazek@verisign.com> wrote:

...

How about this for enforceability?

1. The SO/AC communicates its instructions in written form to the member/UA. 2. The member/UA acts as the “deliverer” of the SO/AC decision, as instructed in writing. 3. If the UA/member acts in a manner that appears inconsistent with the SO/AC’s written instructions, the issue is referred back to the SO/AC for review. 4. Institute a confirmation period where every SO/AC reviews and confirms the action of its member/UA before any decision is finalized. 5. If the UA/member is confirmed to be acting outside written instructions, the UA/member is replaced by the SO/AC and the process repeats.

Keith

From: <mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Chris Disspain Sent: Friday, May 01, 2015 2:00 AM To: Jordan Carter Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Legal question

Presumably because they only act on instructions of the SO or AC.

Just as, in the current model, there is no enforceability mechanism for the SOs and ACs to make the Board of ICANN do what the bylaws say they should, how can there be an enforceability mechanism for the SOs and ACs to make the UA do as instructed in the proposed model?

Cheers,

Chris

On 1 May 2015, at 15:41 , Jordan Carter <<mailto:jordan@internetnz.net.nz>jordan@internetnz.net.nz> wrote:

Presumably because they only act on instructions of the SO or AC.

An easy way to imagine it: the ccnso council has a section of its meeting when it is 'acting as the member' and does relevant things.

The ccnso can deal with things being done wrong 'as a member' as it can when they are being done wrong 'as the ccnso'.

Does that help?

Jordan

On Friday, 1 May 2015, Chris Disspain <<mailto:ceo@auda.org.au>ceo@auda.org.au> wrote: If the UA is only activated when the SO/AC tells its appointed members to act, tight control should not be difficult at all.

How do you ensure the ‘appointed members’ do as the SO/AC wishes unless the SO/AC can enforce?

Cheers,

Chris

On 1 May 2015, at 15:09 , Greg Shatan <gregshatanipc@gmail.com> wrote:

It really goes to how the members of the UA are chosen (a UA needs only two members, so they can be officers of the SO/AC or chosen by some other process) -- it need not be as you describe (though what you describe is a reasonable possibility given the proper circumstances). If the UA is only activated when the SO/AC tells its appointed members to act, tight control should not be difficult at all.

I may have to take your word on the penguins, as you are far closer to their native habitat than I. (Though I would note that the Central Park penguins are international movie stars, due to the move "Madagascar" and its offspring.) However, to be fair, I was actually thinking of a tube television set and not a flat screen TV, so we may have some misunderstanding at work here as well (See, "Penguin on the Telly," Monty Python, 1971, <https://youtu.be/pwTqC2T6q4E>https://youtu.be/pwTqC2T6q4E) I do think a large console TV would not be salubrious to a penguin beneath it, while it would provide a pleasant perch for the penguin (barring any unfortunate explosions). With a flat screen TV, the opposite applies.

So, in each case, it's a matter of how the object is designed, not merely a matter of what the object is.

Greg

On Fri, May 1, 2015 at 12:53 AM, Chris Disspain <ceo@auda.org.au> wrote: Leaving aside your penguin analogy (and incidentally you CAN put a television on top of a penguin and it is, in fact, likely to stay there far longer than the penguin will stay on top of the television) I think you may have misunderstood me.

I completely get that the members of the UA control it. The point we are discussing is how members of SO/AC who are NOT members of the UA can ensure that the UA doesn’t go rogue or does what the SO/AC wants.

Unless I’m mistaken, to overcome the possibility that an SO or AC won’t itself want to become an UA or that to do so will involve a significant decrease in membership, the idea is that a UA is set up and those members of the SO or AC who feel comfortable doing so can become members of the UA (minimum 2) or the SOAC can nominate members. Fine. BUT the SO/AC itself is NOT a member and it is the SO/AC that the UA is representing as a member.

How does the SO/AC ensure the UA does its bidding?

Surely the only folks who can control the UA are its members so how does the SO/AC ensure that those UA members follow the instructions of the SO/AC. Surely this is precisely the same conundrum as the SO/AC ICANN one. For anything to be enforceable the SO/AC would need to be a legal entity or every member of the SO/AC would need to join the UA which amounts to the same thing.

What am I missing here?

Cheers,

Chris

On 1 May 2015, at 14:34 , Greg Shatan <gregshatanipc@gmail.com> wrote:

Also, UAs are member associations in their essence, so control of the members gives you control of the UA. That's very different from a non-profit (non-membership) corporation. So, it's really diametrically opposite to the relationship between ICANN and the SO/ACs in very fundamental ways. Saying that "the same would apply" in the ICANN situation is like saying that because you can put a penguin on top of a television, you can put a television on top of a penguin.....

On Fri, May 1, 2015 at 12:30 AM, Greg Shatan <gregshatanipc@gmail.com> wrote: If the SO/ACs created ICANN, it might apply. Unfortunately, it's the other way around.

On Fri, May 1, 2015 at 12:28 AM, Chris Disspain <ceo@auda.org.au> wrote: Thanks Greg.

I'll consider the points you make on policy and indeed the fundamental underpinnings of the ICANN model and respond in the next day or so.

However, on the legal question:

Finally, I have to say I disagree with your contention that each SO/ACs would need to become an unincorporated association ("UA") rather than merely create one. Admittedly, the issue of how each SO/AC can control its "alter ego" has not been fully fleshed out. However, I believe this was discussed at some length on the legal sub team call and it seems that between the bylaws of the UA and the charter of the SO/AC there should be very tight control by the SO/AC over any actions of the UA.

I look forward to hearing how a combination of the bylaws of the UA and the SO/AC charters will work to provide very tight control by the SO/AC. If they do then surely the same would apply to the ICANN bylaws and the SO/AC charters providing a similarly tight control over the actions of ICANN.

Cheers,

Chris

On 1 May 2015, at 13:50, Greg Shatan <gregshatanipc@gmail.com> wrote: Chris,

Here are my preliminary thoughts:

First, though you said you don't want to debate the example itself, the example troubles me and I think it goes deeper than the example. I think that the establishment of a "TMCH for IGOs" would be new gTLD policy, and almost certainly Consensus Policy, and thus should not be adopted as the example states. Instead, it should be directed down the PDP path to the GNSO. Indeed, if I am not mistaken, that is what happened and resulted in the IGO/INGO Curative Rights Working Group, which may or may not make policy recommendations consistent with the GAC advice. So, I think the premise that the example was meant to demonstrate -- that GAC advice is due more deference than any other input to the Board and that only the Board can set a course contrary to GAC advice -- seems faulty.

This also highlights that the point is not unique to the GAC; it is equally true of the GNSO (or rather, it is true of Board decisions that emanate from the GNSO's processes). The Board could adopt policy recommendations from the GNSO that are reflected in the budget, only to have a supermajority of the Membership send the budget back.

Fundamentally, whether there is a Board action that results from GAC Advice or from a GNSO Recommendation (or from the ccNSO or from the Staff or elsewhere), it is a Board action. And a fundamental premise of the CCWG's work is that certain Board decisions will now be subject to certain specified constraints being placed in the hands of the Membership.

To answer your direct question -- this is not a fundamental shift in the standing of GAC advice and thus a fundamental change in the GAC’s interface with the rest of ICANN; it's something more wide-ranging than that. It is a fundamental shift in the standing of certain Board decisions (whatever their provenance) and thus a fundamental change in the Board's interface with the community.

Frankly, if we were to propose that a multilateral organization gets the last word over the global multistakeholder community (as represented by the proposed Membership), we would have failed by most yardsticks -- not least the yardstick set forth by the NTIA for the IANA stewardship transition.

Finally, I have to say I disagree with your contention that each SO/ACs would need to become an unincorporated association ("UA") rather than merely create one. Admittedly, the issue of how each SO/AC can control its "alter ego" has not been fully fleshed out. However, I believe this was discussed at some length on the legal sub team call and it seems that between the bylaws of the UA and the charter of the SO/AC there should be very tight control by the SO/AC over any actions of the UA.

Greg

On Thu, Apr 30, 2015 at 10:11 PM, Chris Disspain <ceo@auda.org.au> wrote: Jordan, Greg,

I would like to focus upon two of Jordan’s responses in his note of 22 April. Greg you asked me a similar question re the GAC point -

GAC:

CD: However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?

JC: I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).

If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.

Does that feel like a fundamental issue to you? It doesn't to me.

I’m saying is that it might well be a fundamental issue for GAC members. Using an example is the best way to illustrate my point, though I don’t want to get into a debate on the likelihood or otherwise of the example itself. The ICANN Board receives (and will continue to receive) advice from the GAC that potentially affects the ICANN Budget.

Consider a situation where the GAC advises that ICANN should create a repository, much like the TMCH, for the acronyms of IGOs. The repository would be used to advise the relevant IGO that their acronym has been registered in a given gTLD and also to advise the registrant that their registration matches a name in the repository.

Assuming that the Board accepts this advice, it would then be required to make a budgetary allocation for establishment of the repository and an annual operating budget.

In the scenario we are discussing regarding members’ powers, it would be possible for the community to veto the Budget on this point. This then creates a conflict between the public policy advice from the GAC and the powers of members. Should such a situation occur, how would you see it being resolved? Is this not a fundamental shift in the standing of GAC advice and thus a fundamental change in the GAC’s interface with the rest of ICANN?

SOs/ACs generally:

CD: Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).

JC: They won't have to, to do what they do in ICANN today.

The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.

That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.

You make a good point about the legal question. It is one I have yet to see an answer to.

This relates to the comment I made yesterday.

The only way I can see to ensure that the views of ICANN bodies are taken into account is if those SO/ACs become the unincorporated associations themselves. Creating shadow organisations gives rise to the question you raise and significant concerns regarding the accountability of these “alter egos”. To me, this seems like an attempted solution that simply adds another layer of complexity. But maybe counsel’s response to the question I raised yesterday will answer the point.

Cheers,

Chris

On 30 Apr 2015, at 09:38 , Chris Disspain <ceo@auda.org.au> wrote:

Thanks Greg. Clear and understood.

What will the control mechanisms be between the ccNSO and its alter ego and how will they be enforced?

Cheers,

Chris

On 30 Apr 2015, at 09:28 , Greg Shatan <gregshatanipc@gmail.com> wrote:

Chris,

Please let me try to clarify my understanding of what is currently being proposed (in draft). The SO/ACs will not be "converted" into legal entities. Rather, a "mirror" or "alter ego" entity will be set up for each SO/AC, likely as a unincorporated association (which is a recognized legal entity under California law). Each SO/AC will control its alter ego. This is quite similar to the relationship between the ASO and the NRO. The SO/ACs will continue to exist and will perform and operate as they currently do. The legal entities will be the members (or designators, should that route be chosen) of ICANN, with the specific rights and powers ascribed to them in that capacity by statute and bylaw.

Technically, the unincorporated associations only need a minimum of two members, so any "members" of a SO/AC who don't wish to be members of the alter ego won't need to be. The control arrangements between the SO/AC and the alter ego will ensure that all "members" of the SO/AC (and even non-members, such as non-ccNSO ccTLDs, if desired) get the appropriate "say" in any decisions that are to be carried out by the alter ego.

Best regards,

Greg

On Wed, Apr 29, 2015 at 6:40 PM, Chris Disspain <ceo@auda.org.au> wrote: Jordan,

Apologies for taking so long to respond!

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

I’m confused. Greg seems o think that’s exactly what was being proposed. Do we have clarity on this yet?

I’ll respond to the balance of your points later today.

Cheers,

Chris

On 22 Apr 2015, at 16:02 , Jordan Carter <jordan@internetnz.net.nz> wrote:

Hi all, hi Chris:

On 22 April 2015 at 11:07, Chris Disspain <ceo@auda.org.au> wrote: Hi Keith, As promised I set out in brief below some of the reasons why, in respect to the membership model and any model requiring the SOs and ACs to convert to legal entities, I have serious concerns and why I referred to significant sacrifices.

Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.

The only proposal that I've seen from the lawyers is that if membership was the model chosen, legal personality would need to be created. The actors in the various SOs and ACs would, in exercising membership prerogatives, act through the unincorporated associations.

The lawyers have also been clear that even in a designator model, it's preferable to create legal personality along those lines.

I think it is really really really important for everyone involved in this effort to be very precise and clear about what we are discussing and what we aren't. So I am writing this so directly in order that if my understanding is wrong, it gets picked up pronto! :-)

GAC The current recommended model does not provide any viable solution for dealing with the GAC. It seems obvious to me that the governments involved in the GAC are not going to agree to form an unincorporated association under Californian law. If I'm right then presumably the GAC would remain as an advisory committee and would not be able to have a vote in any of the escalation mechanisms. That may be fine as the GAC may not want to have a vote anyway.

Indeed it may not. Being able to offer advice on public policy issues to the ICANN Board and to appoint a non-voting liaison member to the Board. I am looking forward to hearing their views on this (and many other questions).

However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?

I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).

If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.

Does that feel like a fundamental issue to you? It doesn't to me.

ccTLDs When we set up the ccNSO and when we did the structural review of it some time thereafter there was considerable discussion about how it could be structured precisely to avoid the need for ccTLDs to join anything. There was even significant concern about having to fill out a form and whether that implied the existence of some organisation. The concerns included joining something in the jurisdiction of the US and whether that would make a ccTLD manager in any way subject to US law, the possibility of being sued in the US because the manager would be deemed to have a presence there, how such a structure would be funded (especially if it was sued), whether there was any liability on ‘officers’ of the entity and so on. I believe that many of these concerns will still exist for many ccTLDs.

They may or may not. But in that fifteen-years-ago debate, were there any facts on the table about those questions? Or was it all a bit of a mess on many fronts? Because ICANN in 2015 is, better or worse, a very different beast to ICANN in ~ 2000.

Perhaps more importantly, exercising some rights through an unincorporated association would remain a choice for every ICANN participant. Nobody would be forced to be involved. It isn't like a "Join ICANN and have no say" - all the current structures for the "business of the business" would remain in place.

From the legends I have heard about this early phase in ICANN's history, the fundamental concern was of a power-grab on the corporation's part. Since these reforms make such a power-grab harder (and let's remember that the end of the NTIA contract makes it easier...), I'd expect ccTLDs and others to look at them with quite some interest.

Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).

They won't have to, to do what they do in ICANN today.

The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.

That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.

Finally -- I do think this is a really useful and constructive discussion. As someone who is warm to the member approach, but who sees huge benefits if we can manage a "no structural change" outcome, this is just the convo we need to have.

cheers, Jordan

At Large I don’t know the answer to this but it strikes me that the structure may also be problematic for At Large community as opposed to ALAC. On that one over the ALAC folks to comment. There’s more but I'm rushing for my flight now. Hope this gives you a flavour.

Cheers,

Chris

On 21 Apr 2015, at 20:46 , Chris Disspain <ceo@auda.org.au> wrote:

Hi Keith,

Thanks for the below. You ask a valid question and Kavouss has sent me an email asking the same. I will respond in detail in the next 7 hours or so.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek@verisign.com> wrote: Thanks Chris, no apologies necessary...this is exactly the kind of dialogue needed to advance our work.

Can you be more explicit about the "significant number of sacrifices that would need to be made in a membership scenario" that ccTLDs face? Particularly if any are unique to ccTLDs?

Sacrifices may be needed (including from the Board) if we are to accomplish the community's broader goal of ensuring the ICANN Board and Staff are truly accountable to the ICANN community for the next decade. As such, it would be good to know, as early as possible, what those sacrifices might be.

In simple terms, I agree that determining what can and cannot be accomplished within the existing structure is a worthwhile exercise and will help to inform the community.

Based on our work and the relevant independent legal analysis to date, it appears to me that the current construct has significant gaps and shortcomings and won't deliver on our goals, but I support seeking further advice on the topic from our independent legal advisors.

Thanks and regards, Keith

On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo@auda.org.au> wrote: Thanks Keith.

I apologise for pinging back and forth on this but I hope the list will appreciate that it as an indication of how important auDA believes this point is.

As I said on the CCWG call last week, I have serious concerns about the viability of the lawyers' recommended structural changes (at least from a cc point of view) and want to be crystal clear about what we can do or cannot do within the current structure.

For a ccTLD there are a significant number of sacrifices that would need to be made in a membership scenario and I don't believe the cc community can decide whether those sacrifices are worth making unless we can weigh them against what we would be able to achieve using the current structure.

I think that is essential that our output to the community contains a clear explanation of what the status quo can achieve. If it does not then IMO it is impossible to judge the other scenarios.

I appreciate your second para and, as a lawyer, I know that time for a response is required. I also appreciate the time constraints under which we are operating. But we will lose more time if the result of our document is a series of questions about whether there really is a need to make the significant changes being recommended.

In simple terms 'not nearly enough' is not an acceptable response. How can I know that "it" is not nearly enough unless I know what "it" is?

Chris Disspain CEO - auDA

On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek@verisign.com> wrote:

Chris,

I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough."

That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond.

Regards, Keith

Sent from my iPhone

On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo@auda.org.au> wrote: Greg,

Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet.

Chris Disspain CEO - auDA

On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc@gmail.com> wrote: Chris,

The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier.

However, you assumed no change to the SOACs, which made the answers much harder.

Greg

On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au> wrote: Greg, All,

With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations.

Cheers,

Chris

-- Jordan Carter

Chief Executive InternetNZ

04 495 2118 (office) | <tel:%2B64%2021%20442%20649>+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>https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Sent on the run, apologies for brevity

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Avri, This has to do with the fact that for certain SOACs, some or all of the current "members" may not want or be able to be members of a legal entity, much less one located outside their home jurisdiction. Probably not a problem for IPC (which is only a piece of a SOAC, but the one I'm best positioned to speak to). More of a problem for GAC and ccNSO. Greg On Fri, May 1, 2015 at 11:26 AM, Avri Doria <avri@acm.org> wrote:

Hi,

A tangent question.

On 30-Apr-15 23:41, Greg Shatan wrote:

Finally, I have to say I disagree with your contention that each SO/ACs would need to become an unincorporated association ("UA") rather than merely create one. Admittedly, the issue of how each SO/AC can control its "alter ego" has not been fully fleshed out. However, I believe this was discussed at some length on the legal sub team call and it seems that between the bylaws of the UA and the charter of the SO/AC there should be very tight control by the SO/AC over any actions of the UA.

As a non-member of the legal sub-team, I am curuious, why wouldn't one of the SOAC want to just become an UA instead of creating an additional entity? What are the legal disadvantages of transforming into an UA? As opposed to being on.

Or has this already been documented in one of the many docs and I just missed it?

thanks

avri

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Hi Avri, I share some of your same questions. In terms of whether other components of an SO/AC would become Uas, that would really be a decision up to them. It would not be anything that is necessitated under the Bylaws or the structure. As I understand the advice to date, those that we wish to identify as members in the Bylaws need to form a UA. For each of those groups, there may be other concerns that would drive the need for an "alter ego" UA as a companion to the policy or advisory work of the SO/AC, but I don't know that it's required - it's the proposed solve to allow those groups to get to member status. If there are other groups within ICANN (such as the IPC, or a RALO, or the NCSG, for example) that think that they'd get some benefit from being a UA, that would not be because of any benefit provided under the Bylaws or membership structure. In short, you need to be a UA (or other legal entity) to be a member, but forming a UA separately does NOT equal membership status. Hope this helps more than confuses the situation. Sam From: Avri Doria <avri@acm.org<mailto:avri@acm.org>> Organization: Technicalities Reply-To: Avri Doria <avri@acm.org<mailto:avri@acm.org>> Date: Friday, May 1, 2015 at 9:14 AM To: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Legal question Hi, So it is an option? A SOAC can become one Or set up a shadow puppet. And each would be free to pick its own way of doing it. Also regarding the GAC, is it correct to assume that since they do not (s)elect a director, they would not really need a UA if they did not wish, as their special status is guaranteed elsewhere in the bylaws. Also is it correct to assume that we have now almost 'decided' that UA are at the level of SOAC. The reference to IPC as a UA confused me. Is that stiill a possiblity that SGs and RALOs might become UAs as well if they wished. Finally with regard to becoming UA, I suppose any ICANN component entity, at any level, could become one today if they wished, no bylaw prevents it as far as I know. Is that correct? thanks avri On 01-May-15 11:51, Greg Shatan wrote: Avri, This has to do with the fact that for certain SOACs, some or all of the current "members" may not want or be able to be members of a legal entity, much less one located outside their home jurisdiction. Probably not a problem for IPC (which is only a piece of a SOAC, but the one I'm best positioned to speak to). More of a problem for GAC and ccNSO. Greg On Fri, May 1, 2015 at 11:26 AM, Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, A tangent question. On 30-Apr-15 23:41, Greg Shatan wrote: Finally, I have to say I disagree with your contention that each SO/ACs would need to become an unincorporated association ("UA") rather than merely create one. Admittedly, the issue of how each SO/AC can control its "alter ego" has not been fully fleshed out. However, I believe this was discussed at some length on the legal sub team call and it seems that between the bylaws of the UA and the charter of the SO/AC there should be very tight control by the SO/AC over any actions of the UA. As a non-member of the legal sub-team, I am curuious, why wouldn't one of the SOAC want to just become an UA instead of creating an additional entity? What are the legal disadvantages of transforming into an UA? As opposed to being on. Or has this already been documented in one of the many docs and I just missed it? thanks avri ________________________________ [Avast logo]<http://www.avast.com/> This email has been checked for viruses by Avast antivirus software. www.avast.com<http://www.avast.com/> _______________________________________________ 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 ________________________________ [Avast logo]<http://www.avast.com/> This email has been checked for viruses by Avast antivirus software. www.avast.com<http://www.avast.com/>

In the present version of the executive summary of the draft report (v10) this is presented not in a way that (easily) fits Greg's description below: Executive summary, page 6: The ICANN Supporting Organizations (SOs) and Advisory Committees (ACs) would each become a “Member” of ICANN. To provide SOs and ACs the legal status required to be Members, they would be established as unincorporated associations So I suggest we change the text in the report accordingly Best, Roelof From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: donderdag 30 april 2015 01:28 To: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> Cc: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Legal question Chris, Please let me try to clarify my understanding of what is currently being proposed (in draft). The SO/ACs will not be "converted" into legal entities. Rather, a "mirror" or "alter ego" entity will be set up for each SO/AC, likely as a unincorporated association (which is a recognized legal entity under California law). Each SO/AC will control its alter ego. This is quite similar to the relationship between the ASO and the NRO. The SO/ACs will continue to exist and will perform and operate as they currently do. The legal entities will be the members (or designators, should that route be chosen) of ICANN, with the specific rights and powers ascribed to them in that capacity by statute and bylaw. Technically, the unincorporated associations only need a minimum of two members, so any "members" of a SO/AC who don't wish to be members of the alter ego won't need to be. The control arrangements between the SO/AC and the alter ego will ensure that all "members" of the SO/AC (and even non-members, such as non-ccNSO ccTLDs, if desired) get the appropriate "say" in any decisions that are to be carried out by the alter ego. Best regards, Greg On Wed, Apr 29, 2015 at 6:40 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Jordan, Apologies for taking so long to respond! Nobody is proposing converting the SOs and ACs to anything - at all - anywhere. I’m confused. Greg seems o think that’s exactly what was being proposed. Do we have clarity on this yet? I’ll respond to the balance of your points later today. Cheers, Chris On 22 Apr 2015, at 16:02 , Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: Hi all, hi Chris: On 22 April 2015 at 11:07, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Hi Keith, As promised I set out in brief below some of the reasons why, in respect to the membership model and any model requiring the SOs and ACs to convert to legal entities, I have serious concerns and why I referred to significant sacrifices. Nobody is proposing converting the SOs and ACs to anything - at all - anywhere. The only proposal that I've seen from the lawyers is that if membership was the model chosen, legal personality would need to be created. The actors in the various SOs and ACs would, in exercising membership prerogatives, act through the unincorporated associations. The lawyers have also been clear that even in a designator model, it's preferable to create legal personality along those lines. I think it is really really really important for everyone involved in this effort to be very precise and clear about what we are discussing and what we aren't. So I am writing this so directly in order that if my understanding is wrong, it gets picked up pronto! :-) GAC The current recommended model does not provide any viable solution for dealing with the GAC. It seems obvious to me that the governments involved in the GAC are not going to agree to form an unincorporated association under Californian law. If I'm right then presumably the GAC would remain as an advisory committee and would not be able to have a vote in any of the escalation mechanisms. That may be fine as the GAC may not want to have a vote anyway. Indeed it may not. Being able to offer advice on public policy issues to the ICANN Board and to appoint a non-voting liaison member to the Board. I am looking forward to hearing their views on this (and many other questions). However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree? I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles). If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued. Does that feel like a fundamental issue to you? It doesn't to me. ccTLDs When we set up the ccNSO and when we did the structural review of it some time thereafter there was considerable discussion about how it could be structured precisely to avoid the need for ccTLDs to join anything. There was even significant concern about having to fill out a form and whether that implied the existence of some organisation. The concerns included joining something in the jurisdiction of the US and whether that would make a ccTLD manager in any way subject to US law, the possibility of being sued in the US because the manager would be deemed to have a presence there, how such a structure would be funded (especially if it was sued), whether there was any liability on ‘officers’ of the entity and so on. I believe that many of these concerns will still exist for many ccTLDs. They may or may not. But in that fifteen-years-ago debate, were there any facts on the table about those questions? Or was it all a bit of a mess on many fronts? Because ICANN in 2015 is, better or worse, a very different beast to ICANN in ~ 2000. Perhaps more importantly, exercising some rights through an unincorporated association would remain a choice for every ICANN participant. Nobody would be forced to be involved. It isn't like a "Join ICANN and have no say" - all the current structures for the "business of the business" would remain in place.

From the legends I have heard about this early phase in ICANN's history, the fundamental concern was of a power-grab on the corporation's part. Since these reforms make such a power-grab harder (and let's remember that the end of the NTIA contract makes it easier...), I'd expect ccTLDs and others to look at them with quite some interest.

Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter). They won't have to, to do what they do in ICANN today. The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment. That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot. Finally -- I do think this is a really useful and constructive discussion. As someone who is warm to the member approach, but who sees huge benefits if we can manage a "no structural change" outcome, this is just the convo we need to have. cheers, Jordan At Large I don’t know the answer to this but it strikes me that the structure may also be problematic for At Large community as opposed to ALAC. On that one over the ALAC folks to comment. There’s more but I'm rushing for my flight now. Hope this gives you a flavour. Cheers, Chris On 21 Apr 2015, at 20:46 , Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Hi Keith, Thanks for the below. You ask a valid question and Kavouss has sent me an email asking the same. I will respond in detail in the next 7 hours or so. Chris Disspain CEO - auDA On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> wrote: Thanks Chris, no apologies necessary...this is exactly the kind of dialogue needed to advance our work. Can you be more explicit about the "significant number of sacrifices that would need to be made in a membership scenario" that ccTLDs face? Particularly if any are unique to ccTLDs? Sacrifices may be needed (including from the Board) if we are to accomplish the community's broader goal of ensuring the ICANN Board and Staff are truly accountable to the ICANN community for the next decade. As such, it would be good to know, as early as possible, what those sacrifices might be. In simple terms, I agree that determining what can and cannot be accomplished within the existing structure is a worthwhile exercise and will help to inform the community. Based on our work and the relevant independent legal analysis to date, it appears to me that the current construct has significant gaps and shortcomings and won't deliver on our goals, but I support seeking further advice on the topic from our independent legal advisors. Thanks and regards, Keith On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Thanks Keith. I apologise for pinging back and forth on this but I hope the list will appreciate that it as an indication of how important auDA believes this point is. As I said on the CCWG call last week, I have serious concerns about the viability of the lawyers' recommended structural changes (at least from a cc point of view) and want to be crystal clear about what we can do or cannot do within the current structure. For a ccTLD there are a significant number of sacrifices that would need to be made in a membership scenario and I don't believe the cc community can decide whether those sacrifices are worth making unless we can weigh them against what we would be able to achieve using the current structure. I think that is essential that our output to the community contains a clear explanation of what the status quo can achieve. If it does not then IMO it is impossible to judge the other scenarios. I appreciate your second para and, as a lawyer, I know that time for a response is required. I also appreciate the time constraints under which we are operating. But we will lose more time if the result of our document is a series of questions about whether there really is a need to make the significant changes being recommended. In simple terms 'not nearly enough' is not an acceptable response. How can I know that "it" is not nearly enough unless I know what "it" is? Chris Disspain CEO - auDA On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> wrote: Chris, I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough." That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond. Regards, Keith Sent from my iPhone On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Greg, Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet. Chris Disspain CEO - auDA On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Chris, The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier. However, you assumed no change to the SOACs, which made the answers much harder. Greg On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Greg, All, With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations. Cheers, Chris -- Jordan Carter Chief Executive InternetNZ 04 495 2118 (office) | +64 21 442 649<tel:%2B64%2021%20442%20649> (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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

Hi all: On 21 April 2015 at 23:25, Dr Eberhard Lisse <el@lisse.na> wrote:

Dear Co-Chairs,

could you please explain to the gentleman from the IPC that it is NOT possible for ccTLD Managers, whether they are members of the ccNSO or not to become a "member organization" (as we are discussing here).

Unless EACH and EVERY ccTLD Manager formally joins such organization such organization will not have any standing. At all.

This is clearly not accurate. If this argument had any legs, then the same could be said of the ccNSO. ccTLD managers participate in ICANN through the ccNSO and would do through a community mechanism that involved membership in order to deal with ICANN and global policies, such as they are - not to manage the bilateral relationships Eberbard mentions below. On Chris's broader point, he has been involved with the ccNSO since before it was formed and I have not. I do not understand the aversion he alleges in respect of memberships. I know things are pretty different in 2015 to what they were in 1998. I think our job is to set up a clear and coherent framework for ccTLDs along with the rest of the community to consider, and our job too is to explain clearly what such a model (including any options) would ACTUALLY as opposed to on a FUD basis, offer to and require of members/designators or classes of members/designators -- including any issues with associations etc. If ccTLD managers chose as a group to not participate in a scheme that was workable, and thereby prevented meaningful accountability reforms in ICANN, then they would be putting the IANA stewardship transition at risk. I don't think they'd to that lightly. But I do think that however unlikely, the fact this could happen ( due to our non-contracted status, in the end we ccs have the choice) does mean that the doctrine of organisational and institutional conservatism is very important. Which is why I am glad to see Chris's questions assigned to the counsel, and why I look forward to their response. cheers Jordan

ccTLD Managers have a bilateral relationship with ICANN, if at all and this we MUST establish, as per my numerous requests.

This is similar to the GAC, I really don't think that it will be even possible, unless by Multilateral Treaty between all states participating.

But even if it happened, the very nature of how governments make decisions in international fora (very, very few governments allow other governments to "speak for", or commit it to something, on principle), make this unwieldy and unlikely.

greetings, el

On 2015-04-21 08:35, Greg Shatan wrote:

...

Chris,

The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier.

However, you assumed no change to the SOACs, which made the answers much harder.

Greg

On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:

Greg, All,

With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations.

Cheers,

Chris [..] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/

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+1 as well but if the CCWG requirements can be achieved in other ways, it will be good to hear it. The designator route i understand does not require entity incorporation, may be good to further explore that route. It may also be good to hear specific suggestions on alternatives from those who think a particular option cannot work Cheers! On Tue, Apr 21, 2015 at 8:05 PM, Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:

...

Unless EACH and EVERY ccTLD Manager formally joins such organization such organization will not have any standing. At all.

I have to disagree. In the situation that the conscious decision of a ccTLD manager NOT to be a member is the sole reason for that manager not being a member

Best,

Roelof

From: Jordan Carter <jordan@internetnz.net.nz> Date: dinsdag 21 april 2015 20:32 Cc: Accountability Cross Community < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Legal question

Hi all:

On 21 April 2015 at 23:25, Dr Eberhard Lisse <el@lisse.na> wrote:

...

Dear Co-Chairs,

could you please explain to the gentleman from the IPC that it is NOT possible for ccTLD Managers, whether they are members of the ccNSO or not to become a "member organization" (as we are discussing here).

Unless EACH and EVERY ccTLD Manager formally joins such organization such organization will not have any standing. At all.

This is clearly not accurate. If this argument had any legs, then the same could be said of the ccNSO.

ccTLD managers participate in ICANN through the ccNSO and would do through a community mechanism that involved membership in order to deal with ICANN and global policies, such as they are - not to manage the bilateral relationships Eberbard mentions below.

On Chris's broader point, he has been involved with the ccNSO since before it was formed and I have not. I do not understand the aversion he alleges in respect of memberships. I know things are pretty different in 2015 to what they were in 1998.

I think our job is to set up a clear and coherent framework for ccTLDs along with the rest of the community to consider, and our job too is to explain clearly what such a model (including any options) would ACTUALLY as opposed to on a FUD basis, offer to and require of members/designators or classes of members/designators -- including any issues with associations etc.

If ccTLD managers chose as a group to not participate in a scheme that was workable, and thereby prevented meaningful accountability reforms in ICANN, then they would be putting the IANA stewardship transition at risk.

I don't think they'd to that lightly. But I do think that however unlikely, the fact this could happen ( due to our non-contracted status, in the end we ccs have the choice) does mean that the doctrine of organisational and institutional conservatism is very important.

Which is why I am glad to see Chris's questions assigned to the counsel, and why I look forward to their response.

cheers Jordan

...

ccTLD Managers have a bilateral relationship with ICANN, if at all and this we MUST establish, as per my numerous requests.

This is similar to the GAC, I really don't think that it will be even possible, unless by Multilateral Treaty between all states participating.

But even if it happened, the very nature of how governments make decisions in international fora (very, very few governments allow other governments to "speak for", or commit it to something, on principle), make this unwieldy and unlikely.

greetings, el

On 2015-04-21 08:35, Greg Shatan wrote:

...

Chris,

The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier.

However, you assumed no change to the SOACs, which made the answers much harder.

Greg

On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:

Greg, All,

With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations.

Cheers,

Chris [..] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/

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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

-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* The key to understanding is humility - my view !

hi all, Eberhard: On 22 April 2015 at 07:25, Dr Eberhard W Lisse <el@lisse.na> wrote:

-----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1

Roelof, Jordan,

the ccNSO is a supporting organization of ICANN and deals only with very specific issues through a Policy Development Process. Nothing more, nothing less. AND, these Policies are only binding on ccNSO members, during their membership to ccNSO, ie if someone left, no ccNSO policy would concern.

Let me ask this then --- if the FOI was to be converted to a global policy dealing with its subject matter, would that not happen through a ccNSO PDP? Whatever the process, that PDP or something else, would it not be the framework that guided ICANN's action for ccTLDs regardless of their membership of the ccNSO? That's what I meant by the word. Not a framework that decided how ccTLDs operate. None of us would welcome that, I don't think!

It is totally different from a membership organization we are discussing here.

We are talking about membership (or designator) powers exercised over ICANN to keep ICANN accountable to the Internet community, including to us. Not talking about using a membership concept as a trojan horse to impose obligations on the ICANN community or its participants.... cheers Jordan

I also totally disagree that we are allowed to set a framework for ccTLDs. In the ISTACC call we discussed this last week.

Just for the record, I may have been involved with this even since before Chris, and changing landscape doesn't mean anything with regards to the rights of a ccTLD Manager. ICANN's powers, if any, do not grow on trees.

greetings, el

On 2015-04-21 20:05 , Roelof Meijer wrote:

...

...

Unless EACH and EVERY ccTLD Manager formally joins such organization such organization will not have any standing. At all.

I have to disagree. In the situation that the conscious decision of a ccTLD manager NOT to be a member is the sole reason for that manager not being a member

Best,

Roelof

From: Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> Date: dinsdag 21 april 2015 20:32 Cc: Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Legal question

Hi all:

On 21 April 2015 at 23:25, Dr Eberhard Lisse <el@lisse.na <mailto:el@lisse.na>> wrote:

Dear Co-Chairs,

could you please explain to the gentleman from the IPC that it is NOT possible for ccTLD Managers, whether they are members of the ccNSO or not to become a "member organization" (as we are discussing here).

Unless EACH and EVERY ccTLD Manager formally joins such organization such organization will not have any standing. At all.

This is clearly not accurate. If this argument had any legs, then the same could be said of the ccNSO.

ccTLD managers participate in ICANN through the ccNSO and would do through a community mechanism that involved membership in order to deal with ICANN and global policies, such as they are - not to manage the bilateral relationships Eberbard mentions below.

On Chris's broader point, he has been involved with the ccNSO since before it was formed and I have not. I do not understand the aversion he alleges in respect of memberships. I know things are pretty different in 2015 to what they were in 1998.

I think our job is to set up a clear and coherent framework for ccTLDs along with the rest of the community to consider, and our job too is to explain clearly what such a model (including any options) would ACTUALLY as opposed to on a FUD basis, offer to and require of members/designators or classes of members/designators -- including any issues with associations etc.

If ccTLD managers chose as a group to not participate in a scheme that was workable, and thereby prevented meaningful accountability reforms in ICANN, then they would be putting the IANA stewardship transition at risk.

I don't think they'd to that lightly. But I do think that however unlikely, the fact this could happen ( due to our non-contracted status, in the end we ccs have the choice) does mean that the doctrine of organisational and institutional conservatism is very important.

Which is why I am glad to see Chris's questions assigned to the counsel, and why I look forward to their response.

cheers Jordan [...] -----BEGIN PGP SIGNATURE----- Comment: GPGTools - http://gpgtools.org Comment: Using GnuPG with Thunderbird - http://www.enigmail.net/

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-- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter *A better world through a better Internet *

-----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 Hi, Fool that I sometimes am, i have been thinking about your question from a CCWG participant perspective, and from the perspective of a USAn. Also not a international lawyer or lawyer of any sort. On 25-Apr-15 10:31, Dr Eberhard W Lisse wrote:

This does not even address the question whether the USG has any claim to the root, and the numerous consequences originating from this.

I do not think of the US as having a claim on it. But I am sure that this is an issue legal scholars could have a good discussion on. It would be interesting* to see some exegesis from the global legal scholars on this issue. I bet it would make for fascinating reading, and I am sure there are many different interesting scholarly perspectives on it. Interesting issue, but I do not see it as a gating issue for the _Accountability_ CCWG I do think of the US as currently having responsibility for it. It was created under their oversight, for better or worse the world has become dependent on it, and until they can hand the responsibility to others, it is their problem. They are trying, for the most part, to hand the Stewardship responsibilities off to an appropriate multi-stakeholder group. There seems to be a broad view, though not universal, that ICANN does a decent job as the current IANA function operator. But while they do the job of IANA well, there is also broad agreement, though not universal, that ICANN needs to become more accountable as part of any transfer of Stewardship. US oversight, and international pressure on the US on they way they do the oversight, has been important in trying to keep ICANN in line. Lose that, and people start to worry. So I think that whether the US has a claim to the root or not is an interesting side issue, and I love interesting side issues, but I do not believe it is material to the work this group has been assigned to do. I do not support passing this on to the legal firms we have, as it is not gating for this group and is not in either law firms skill set or terms of reference, as I understand them. As I am not a member of the legal sub-team, my opinion on this is without weight, but I felt like expressing it this fine Saturday morning. cheers avri * Should the US congress decide it is in the position to stop a transition that there is broad agreement on, then this scholarly research might become useful. But that will not be a task for this group either. -----BEGIN PGP SIGNATURE----- Version: GnuPG v2 iQEcBAEBAgAGBQJVO7NIAAoJEOo+L8tCe36H19wH/2ajXZ4CKGbnSOgMYhGOfsm0 Ukta0+M271Eulmrtp+B5ftvdKT4FOT9X/KmUAWJ1X7FjPS4rOZ/dzJFF6cfzkC+h 7DDpdNT03yM1ZC6td6yc9I/Ac50/wM6+1G0CLeVWQDTMppxFBEiW0jZbqQt3BNE8 axX6LR1AGDomcZoSGQJhDhA+0l5zv7Le3OfG1DKjHiU+k1h9/7BwBoGQRppY4HlP nf1lGcc3tSqvO+7pDNRIN/EzLfqh6Um0WWxyjcfuGpkqyjEO4+K9AgErtLcIBIYo eJ2rJR7DyNvP9NeMTLNNR4pIJkmPNq2nOwZtefcbhZ8rGqQgQFdlvkRLbXw8bzc= =nBMf -----END PGP SIGNATURE----- --- This email has been checked for viruses by Avast antivirus software. http://www.avast.com

The flaw is in the premise of the question -- that the United States asserts ownership of or a property interest in the IANA function. The US position (http://www.ntia.doc.gov/speechtestimony/2015/testimony-assistant-secretary- strickling-senate-committee-commerce-science-and-) is that the IANA function is a service: "Federal agencies can discontinue obtaining such services when they no longer need them. As NTIA made clear at the time of its Statement of Policy, it intended only to procure the IANA functions services until such time as the transition to private sector management of the Internet DNS was complete." Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 -----Original Message----- From: Dr Eberhard W Lisse [mailto:el@lisse.NA] Sent: Saturday, April 25, 2015 12:34 PM To: accountability-cross-community@icann.org Cc: ccwg-accountability5@icann.org; Lisse Eberhard Subject: Re: [CCWG-ACCT] Legal question Avri, at issue is not that it is the US (government) which has a "claim" on it, but whether this "claim" allows the USG to do what it wants to do, and how this affects (ccTLD)s. Under whose oversight something was created does not matter, it matters by whom (including acting on behalf of), dependence does mean equally little in this regards. Having factual control over something does not mean it is right (or even legal). This is not scholarly or academic, at all. Let me give you (a real life) example: Namibia inherited stewardship of an island (as large as a baseball field) in a river next to Botswana at independence from South Africa. Until independence South Africa had stewardship, and the Botswana government did not feel in a position to challenge that. After Namibia's independence Botswana occupied it and when this went to (International) Court, it turned out stewardship had belonged to Botswana all along. So it was duly returned by Namibia. see http://www.icj-cij.org/docket/index.php?sum=505&p1=3&p2=3&case=98&p3=5 http://en.wikipedia.org/wiki/Sedudu (in particular the second last paragraph) and http://webworld.unesco.org/water/wwap/pccp/cd/pdf/educational_tools/course_m odules/reference_documents/sharinginternwatercases/sciencehistory.pdf Now imagine the South African government had sold the island to someone who then had invested significantly in a Lodge type of thing... How on earth can you give something away that doesn't belong to you? Or if it does, what rules does the USG have for disposing of assets (such as this)? By the way, the view that The IANA Function is being executed well is most certainly not shared by many ccTLD Managers. There have been significant issues with response times in the past (which is an operational issue and would fall under CWG, and seems to have imporev a lot anyway) but in particular the ones that are being or have been leaned on by the IANA Department, or where the ccTLD has been revoked under extremely dubious circumstances (.PN, .KE, .AU and recently .ML to name but a few) but also the ccNSO which chartered the FoI Wg (with the GAC() for this very reason. Which I why am concerned about the lack of accountability in this regards needing to be improved before the transition. greetings, el On 2015-04-25 16:31 , Avri Doria wrote:

Hi,

Fool that I sometimes am, i have been thinking about your question from a CCWG participant perspective, and from the perspective of a USAn.

Also not a international lawyer or lawyer of any sort.

On 25-Apr-15 10:31, Dr Eberhard W Lisse wrote:

...

This does not even address the question whether the USG has any claim to the root, and the numerous consequences originating from this.

I do not think of the US as having a claim on it. But I am sure that this is an issue legal scholars could have a good discussion on. It would be interesting* to see some exegesis from the global legal scholars on this issue. I bet it would make for fascinating reading, and I am sure there are many different interesting scholarly perspectives on it.

Interesting issue, but I do not see it as a gating issue for the _Accountability_ CCWG

I do think of the US as currently having responsibility for it. It was created under their oversight, for better or worse the world has become dependent on it, and until they can hand the responsibility to others, it is their problem. They are trying, for the most part, to hand the Stewardship responsibilities off to an appropriate multi-stakeholder group.

There seems to be a broad view, though not universal, that ICANN does a decent job as the current IANA function operator. But while they do the job of IANA well, there is also broad agreement, though not universal, that ICANN needs to become more accountable as part of any transfer of Stewardship. US oversight, and international pressure on the US on they way they do the oversight, has been important in trying to keep ICANN in line. Lose that, and people start to worry.

So I think that whether the US has a claim to the root or not is an interesting side issue, and I love interesting side issues, but I do not believe it is material to the work this group has been assigned to do.

I do not support passing this on to the legal firms we have, as it is not gating for this group and is not in either law firms skill set or terms of reference, as I understand them. As I am not a member of the legal sub-team, my opinion on this is without weight, but I felt like expressing it this fine Saturday morning.

cheers

avri

* Should the US congress decide it is in the position to stop a transition that there is broad agreement on, then this scholarly research might become useful. But that will not be a task for this group either.

[...] _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

OK Doctor -- I'll bite. Does the USG have a claim on the root? As a factual matter, has it ever asserted such a claim? If so, please point me to that claim as a statement of USG policy. A web link or a PDF will be sufficient. If it has not ever made such a claim, then asking whether the USG has a claim to the root is like asking whether Rosenzweig has a claim to the .na ccTLD. Theoretically, conceivable but in practice irrelevant. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 -----Original Message----- From: Dr Eberhard W Lisse [mailto:el@lisse.na] Sent: Sunday, April 26, 2015 4:14 PM To: Paul Rosenzweig Cc: <accountability-cross-community@icann.org>; ccwg-accountability5@icann.org Subject: Re: [CCWG-ACCT] Legal question That is not the questions, the question is wether the USG DOES have a claim on the root, not what its position is on something nor whether the IANA function is a service, never mind that any such service would be linked to the root (asset, property or whatever). And we are actually speaking about the root itself not how it is managed. Even if we assumed that the service argument were valid, how can someone be obliged to accept a service? Many ccTLD managers do not really mind who keeps the demographic data and the name server data current, but I most certainly do not need revocation service provided. I personally don't care much about Delegation (including Transfer) and Retirement, but these are not uncontroversial, either. greetings, el -- Sent from Dr Lisse's iPad mini

On Apr 25, 2015, at 21:33, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:

The flaw is in the premise of the question -- that the United States asserts ownership of or a property interest in the IANA function. The US position (http://www.ntia.doc.gov/speechtestimony/2015/testimony-assistant-secr etary- strickling-senate-committee-commerce-science-and-) is that the IANA function is a service: "Federal agencies can discontinue obtaining such services when they no longer need them. As NTIA made clear at the time of its Statement of Policy, it intended only to procure the IANA functions services until such time as the transition to private sector management of the Internet DNS was complete."

Paul

Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066

-----Original Message----- From: Dr Eberhard W Lisse [mailto:el@lisse.NA] Sent: Saturday, April 25, 2015 12:34 PM To: accountability-cross-community@icann.org Cc: ccwg-accountability5@icann.org; Lisse Eberhard Subject: Re: [CCWG-ACCT] Legal question

Avri,

at issue is not that it is the US (government) which has a "claim" on it, but whether this "claim" allows the USG to do what it wants to do, and how this affects (ccTLD)s.

Under whose oversight something was created does not matter, it matters by whom (including acting on behalf of), dependence does mean equally little in this regards.

Having factual control over something does not mean it is right (or even legal).

This is not scholarly or academic, at all.

Let me give you (a real life) example:

Namibia inherited stewardship of an island (as large as a baseball field) in a river next to Botswana at independence from South Africa. Until independence South Africa had stewardship, and the Botswana government did not feel in a position to challenge that. After Namibia's independence Botswana occupied it and when this went to (International) Court, it turned out stewardship had belonged to Botswana all along.

So it was duly returned by Namibia.

see http://www.icj-cij.org/docket/index.php?sum=505&p1=3&p2=3&case=98&p3=5 http://en.wikipedia.org/wiki/Sedudu (in particular the second last paragraph) and http://webworld.unesco.org/water/wwap/pccp/cd/pdf/educational_tools/co urse_m odules/reference_documents/sharinginternwatercases/sciencehistory.pdf

Now imagine the South African government had sold the island to someone who then had invested significantly in a Lodge type of thing...

How on earth can you give something away that doesn't belong to you?

Or if it does, what rules does the USG have for disposing of assets (such as this)?

By the way, the view that The IANA Function is being executed well is most certainly not shared by many ccTLD Managers.

There have been significant issues with response times in the past (which is an operational issue and would fall under CWG, and seems to have imporev a lot anyway) but in particular the ones that are being or have been leaned on by the IANA Department, or where the ccTLD has been revoked under extremely dubious circumstances (.PN, .KE, .AU and recently .ML to name but a few) but also the ccNSO which chartered the FoI Wg (with the GAC() for this very reason.

Which I why am concerned about the lack of accountability in this regards needing to be improved before the transition.

greetings, el

...

On 2015-04-25 16:31 , Avri Doria wrote:

Hi,

Fool that I sometimes am, i have been thinking about your question from a CCWG participant perspective, and from the perspective of a USAn.

Also not a international lawyer or lawyer of any sort.

...

On 25-Apr-15 10:31, Dr Eberhard W Lisse wrote: This does not even address the question whether the USG has any claim to the root, and the numerous consequences originating from this.

I do not think of the US as having a claim on it. But I am sure that this is an issue legal scholars could have a good discussion on. It would be interesting* to see some exegesis from the global legal scholars on this issue. I bet it would make for fascinating reading, and I am sure there are many different interesting scholarly perspectives on it.

Interesting issue, but I do not see it as a gating issue for the _Accountability_ CCWG

I do think of the US as currently having responsibility for it. It was created under their oversight, for better or worse the world has become dependent on it, and until they can hand the responsibility to others, it is their problem. They are trying, for the most part, to hand the Stewardship responsibilities off to an appropriate multi-stakeholder group.

There seems to be a broad view, though not universal, that ICANN does a decent job as the current IANA function operator. But while they do the job of IANA well, there is also broad agreement, though not universal, that ICANN needs to become more accountable as part of any transfer of Stewardship. US oversight, and international pressure on the US on they way they do the oversight, has been important in trying to keep ICANN in line. Lose that, and people start to worry.

So I think that whether the US has a claim to the root or not is an interesting side issue, and I love interesting side issues, but I do not believe it is material to the work this group has been assigned to do.

I do not support passing this on to the legal firms we have, as it is not gating for this group and is not in either law firms skill set or terms of reference, as I understand them. As I am not a member of the legal sub-team, my opinion on this is without weight, but I felt like expressing it this fine Saturday morning.

cheers

avri

* Should the US congress decide it is in the position to stop a transition that there is broad agreement on, then this scholarly research might become useful. But that will not be a task for this group either. [...]

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Does Rosenzweig wish to transfer stewardship of .NA? Obviously not, but of he did, he better have a claim to it... el -- Sent from Dr Lisse's iPad mini

On Apr 27, 2015, at 12:39, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:

OK Doctor -- I'll bite. Does the USG have a claim on the root? As a factual matter, has it ever asserted such a claim? If so, please point me to that claim as a statement of USG policy. A web link or a PDF will be sufficient. If it has not ever made such a claim, then asking whether the USG has a claim to the root is like asking whether Rosenzweig has a claim to the .na ccTLD. Theoretically, conceivable but in practice irrelevant.

Paul

Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066

-----Original Message----- From: Dr Eberhard W Lisse [mailto:el@lisse.na] Sent: Sunday, April 26, 2015 4:14 PM To: Paul Rosenzweig Cc: <accountability-cross-community@icann.org>; ccwg-accountability5@icann.org Subject: Re: [CCWG-ACCT] Legal question

That is not the questions, the question is wether the USG DOES have a claim on the root, not what its position is on something nor whether the IANA function is a service, never mind that any such service would be linked to the root (asset, property or whatever).

And we are actually speaking about the root itself not how it is managed.

Even if we assumed that the service argument were valid, how can someone be obliged to accept a service?

Many ccTLD managers do not really mind who keeps the demographic data and the name server data current, but I most certainly do not need revocation service provided. I personally don't care much about Delegation (including Transfer) and Retirement, but these are not uncontroversial, either.

greetings, el

-- Sent from Dr Lisse's iPad mini

...

On Apr 25, 2015, at 21:33, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:

The flaw is in the premise of the question -- that the United States asserts ownership of or a property interest in the IANA function. The US position (http://www.ntia.doc.gov/speechtestimony/2015/testimony-assistant-secr etary- strickling-senate-committee-commerce-science-and-) is that the IANA function is a service: "Federal agencies can discontinue obtaining such services when they no longer need them. As NTIA made clear at the time of its Statement of Policy, it intended only to procure the IANA functions services until such time as the transition to private sector management of the Internet DNS was complete."

Paul

Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066

-----Original Message----- From: Dr Eberhard W Lisse [mailto:el@lisse.NA] Sent: Saturday, April 25, 2015 12:34 PM To: accountability-cross-community@icann.org Cc: ccwg-accountability5@icann.org; Lisse Eberhard Subject: Re: [CCWG-ACCT] Legal question

Avri,

at issue is not that it is the US (government) which has a "claim" on it, but whether this "claim" allows the USG to do what it wants to do, and how this affects (ccTLD)s.

Under whose oversight something was created does not matter, it matters by whom (including acting on behalf of), dependence does mean equally little in this regards.

Having factual control over something does not mean it is right (or even legal).

This is not scholarly or academic, at all.

Let me give you (a real life) example:

Namibia inherited stewardship of an island (as large as a baseball field) in a river next to Botswana at independence from South Africa. Until independence South Africa had stewardship, and the Botswana government did not feel in a position to challenge that. After Namibia's independence Botswana occupied it and when this went to (International) Court, it turned out stewardship had belonged to Botswana all along.

So it was duly returned by Namibia.

see http://www.icj-cij.org/docket/index.php?sum=505&p1=3&p2=3&case=98&p3=5 http://en.wikipedia.org/wiki/Sedudu (in particular the second last paragraph) and http://webworld.unesco.org/water/wwap/pccp/cd/pdf/educational_tools/co urse_m odules/reference_documents/sharinginternwatercases/sciencehistory.pdf

Now imagine the South African government had sold the island to someone who then had invested significantly in a Lodge type of thing...

How on earth can you give something away that doesn't belong to you?

Or if it does, what rules does the USG have for disposing of assets (such as this)?

By the way, the view that The IANA Function is being executed well is most certainly not shared by many ccTLD Managers.

There have been significant issues with response times in the past (which is an operational issue and would fall under CWG, and seems to have imporev a lot anyway) but in particular the ones that are being or have been leaned on by the IANA Department, or where the ccTLD has been revoked under extremely dubious circumstances (.PN, .KE, .AU and recently .ML to name but a few) but also the ccNSO which chartered the FoI Wg (with the GAC() for this very reason.

Which I why am concerned about the lack of accountability in this regards needing to be improved before the transition.

greetings, el

...

On 2015-04-25 16:31 , Avri Doria wrote:

Hi,

Fool that I sometimes am, i have been thinking about your question from a CCWG participant perspective, and from the perspective of a USAn.

Also not a international lawyer or lawyer of any sort.

...

On 25-Apr-15 10:31, Dr Eberhard W Lisse wrote: This does not even address the question whether the USG has any claim to the root, and the numerous consequences originating from this.

I do not think of the US as having a claim on it. But I am sure that this is an issue legal scholars could have a good discussion on. It would be interesting* to see some exegesis from the global legal scholars on this issue. I bet it would make for fascinating reading, and I am sure there are many different interesting scholarly perspectives on it.

Interesting issue, but I do not see it as a gating issue for the _Accountability_ CCWG

I do think of the US as currently having responsibility for it. It was created under their oversight, for better or worse the world has become dependent on it, and until they can hand the responsibility to others, it is their problem. They are trying, for the most part, to hand the Stewardship responsibilities off to an appropriate multi-stakeholder group.

There seems to be a broad view, though not universal, that ICANN does a decent job as the current IANA function operator. But while they do the job of IANA well, there is also broad agreement, though not universal, that ICANN needs to become more accountable as part of any transfer of Stewardship. US oversight, and international pressure on the US on they way they do the oversight, has been important in trying to keep ICANN in line. Lose that, and people start to worry.

So I think that whether the US has a claim to the root or not is an interesting side issue, and I love interesting side issues, but I do not believe it is material to the work this group has been assigned to do.

I do not support passing this on to the legal firms we have, as it is not gating for this group and is not in either law firms skill set or terms of reference, as I understand them. As I am not a member of the legal sub-team, my opinion on this is without weight, but I felt like expressing it this fine Saturday morning.

cheers

avri

* Should the US congress decide it is in the position to stop a transition that there is broad agreement on, then this scholarly research might become useful. But that will not be a task for this group either. [...]

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