Kavouss Your suggestion makes a certain point of common sense. At this stage, it is important to review with clarity and focus before deciding on the route. Rudi Daniel On Jun 22, 2015 1:10 PM, "Kavouss Arasteh" <kavouss.arasteh@gmail.com> wrote:

Dear All, First of all ,let us wait for a clear way forward to be on the Table be fore our next meeting on Wednesday Secondly, if we clearly distinguish between rights to participate to voting of any or all of the six/seven powers as well as issues relying to IRP FROM issue of empowerment ,requiring membership ( at least one member to have a stand for enforce certain decisions /conclusion made through voting ,many questions would be narrowed down to fewer numbers . Pls kindly advise on that Kavouss

2015-06-22 18:52 GMT+02:00 Seun Ojedeji <seun.ojedeji@gmail.com>:

...

Dear all,

First i like to thank the Co-Chairs for responding to all the questions during the townhall meeting. Milton mentioned 2 things and i like to use that to provide my feedback/suggestions:

- Purpose of the CCWG:

IMO, i think the purpose of the CCWG is to recommend ways to improve ICANN accountability but enforceability could just be one of such features and not the ultimate goal.

- Enforceability solutions other than membership: Considering the complications relating to the various membership models that has been suggested, there is obvious need to consider what is achievable within the current structure and i think everything is achievable except enforceability. Puting that in mind, i think the CCWG report in summary has provided the following (amongst others):

- They have looked into the current bylaw and proposed edits that would ensure community engagement in the board decision making process which is not existing at the moment - They have proposed ways by which the suggested edits to the bylaw once implemented can be updated (fundamental bylaw)

I think these 2 items are critical accountability enhancement and once implemented would have provided ICANN board with some specific guideline on how to approach issues as accordingly.

So it seem to me that we will already have some enforceability without actually requiring membership since an organisation board is required to obey/comply with its bylaw. So if the bylaw says; before you can do xyz, it needs to go through abc process, why would the board not follow/obey those direction as defined in the bylaw?

As a follow-up to my question about ICANN board complying with its bylaw. I will like to ask the following questions:

- Has there been any known scenario where ICANN board at the moment did not obey its current bylaw? - If ICANN board does not obey its bylaw, what its legal implication to the board members with regards to their mandate? - Is it possible for board members to sign a mandate upon induction indicating that they would resign if the community (through a defined process) determined that they did not follow the organisation's bylaw?

Regards -- ------------------------------------------------------------------------

*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 !

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

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Hi Seun, all:

On 22/06/2015, at 3:55 pm, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:

Hello Kavouss,

While i agree that its good we get further clarity on the "Empowered SO/AC model", i think we have the overall high level characteristics of the model and it may be good to consider other-ways to "enforceability" other than formalising the SO/AC as well.

I think the advice we have received is that designator approach in the legal sense could allow for enforcement of 4/6 powers, membership approach 6/6, and voluntary approach 0/6. For designator or member you need some kind of “legal person”. If there are other paths to enforceability I would be interested to know what they are - does anybody know of any?

I for one like the empowered SO/AC model as its really an improvement to the full membership model and less complicated (seem to be an advanced designator model). Nevertheless there is still the reality that its a members model and there are cons associated with this and it may be good to put them side by side with the current "voluntary model" that operates an "Empowered bylaw" post-transition (yeah empowered seem to be the buzz word lately ;-) )

This is a beast I have never heard of, an empowered bylaw :-) J

Regards

On Mon, Jun 22, 2015 at 3:10 PM, Kavouss Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> wrote: Dear All, First of all ,let us wait for a clear way forward to be on the Table be fore our next meeting on Wednesday Secondly, if we clearly distinguish between rights to participate to voting of any or all of the six/seven powers as well as issues relying to IRP FROM issue of empowerment ,requiring membership ( at least one member to have a stand for enforce certain decisions /conclusion made through voting ,many questions would be narrowed down to fewer numbers . Pls kindly advise on that Kavouss

2015-06-22 18:52 GMT+02:00 Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>: Dear all,

First i like to thank the Co-Chairs for responding to all the questions during the townhall meeting. Milton mentioned 2 things and i like to use that to provide my feedback/suggestions:

- Purpose of the CCWG:

IMO, i think the purpose of the CCWG is to recommend ways to improve ICANN accountability but enforceability could just be one of such features and not the ultimate goal.

- Enforceability solutions other than membership: Considering the complications relating to the various membership models that has been suggested, there is obvious need to consider what is achievable within the current structure and i think everything is achievable except enforceability. Puting that in mind, i think the CCWG report in summary has provided the following (amongst others):

- They have looked into the current bylaw and proposed edits that would ensure community engagement in the board decision making process which is not existing at the moment - They have proposed ways by which the suggested edits to the bylaw once implemented can be updated (fundamental bylaw)

I think these 2 items are critical accountability enhancement and once implemented would have provided ICANN board with some specific guideline on how to approach issues as accordingly.

So it seem to me that we will already have some enforceability without actually requiring membership since an organisation board is required to obey/comply with its bylaw. So if the bylaw says; before you can do xyz, it needs to go through abc process, why would the board not follow/obey those direction as defined in the bylaw?

As a follow-up to my question about ICANN board complying with its bylaw. I will like to ask the following questions:

- Has there been any known scenario where ICANN board at the moment did not obey its current bylaw? - If ICANN board does not obey its bylaw, what its legal implication to the board members with regards to their mandate? - Is it possible for board members to sign a mandate upon induction indicating that they would resign if the community (through a defined process) determined that they did not follow the organisation's bylaw?

Regards -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng/> Mobile: +2348035233535 <> alt email:  <http://goog_1872880453/>seun.ojedeji@fuoye.edu.ng <mailto:seun.ojedeji@fuoye.edu.ng>

The key to understanding is humility - my view !

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

-- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng/> Mobile: +2348035233535 <> alt email:  <http://goog_1872880453/>seun.ojedeji@fuoye.edu.ng <mailto:seun.ojedeji@fuoye.edu.ng>

The key to understanding is humility - my view !

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

Some quick thoughts in line below: On 22 June 2015 at 16:41, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:

Hi Jordan,

On Mon, Jun 22, 2015 at 4:08 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:

...

Hi Seun, all:

On 22/06/2015, at 3:55 pm, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:

Hello Kavouss,

While i agree that its good we get further clarity on the "Empowered SO/AC model", i think we have the overall high level characteristics of the model and it may be good to consider other-ways to "enforceability" other than formalising the SO/AC as well.

I think the advice we have received is that designator approach in the legal sense could allow for enforcement of 4/6 powers, membership approach 6/6, and voluntary approach 0/6.

This is a useful comparison Jordan and i think we need to strike some distinction on the type of enforcement. I will assume what was considered above is direct enforcement from the community, there is also the direct enforcement by the bylaw (which would have been put in place by the community).

I don't think it is accurate to describe "just follow the bylaws" as enforcement - not because Board members don't try, and aren't obliged, to follow the bylaws. They definitely are required to do that and are obliged to as a matter of fiduciary duty to follow the law and uphold the organisation's mission. The question is, what can be done if they don't - individually or collectively. That's why it's being called "voluntary" - nobody has the right to hold the Board or its members to account for not following the bylaws. By hold them to account I mean the ability to require them to do so. So without that ability, it's a matter of good will.

If we look at enforcement as board members complying with the organisation bylaw then the current score of the so-called "voluntary approach" could change significantly. I call it so-called voluntary approach because i think its in practice beyond voluntary for board members. Their accepting to be board members should technically mean they are bound to abide by the organisation bylaw.

The voluntary model does *not* refer to whether it's an optional extra to follow the bylaws. Directors are for sure required to do that, as I noted above. They *are* bound by the bylaws.

...

For designator or member you need some kind of “legal person”.

On the designator option i think there may be need to re-question the legal team on this. ARIN recently received some legal advice on possibility of NRO becoming a designate/member within ICANN[1] and it does seem an interesting read. I quote the specific section below:

The memo you refer to below is an interesting read, but it tells you that the NRO is an unincorporated association. So that's in support of my point.

"Designators are simply those parties provided in a corporation’s articles

...

or bylaws as having the power to appoint some or all of the corporation’s directors"

So i don't really understand the idea of "legal person" requirement as indicated by the ccwg legal team, perhaps they need to clarify.

It comes back to what I said above: without being a legal person, they can't enforce their right to appoint or remove said Director if the person in place refuses to play by the rules.

That said, this is not to indicate a preference at the moment but to ensure we get clarity on what is possible and what isn't in all these models

Helpful in that respect. And happy to note Alan's correction in the subsequent message, that his model of pre-committed resignations does leave the Board Director removal power on the table (so 1 or 2/6). cheers, Jordan

...

If there are other paths to enforceability I would be interested to know what they are - does anybody know of any?

I for one like the empowered SO/AC model as its really an improvement to the full membership model and less complicated (seem to be an advanced designator model). Nevertheless there is still the reality that its a members model and there are cons associated with this and it may be good to put them side by side with the current "voluntary model" that operates an "Empowered bylaw" post-transition (yeah empowered seem to be the buzz word lately ;-) )

This is a beast I have never heard of, an empowered bylaw :-)

Actually that is me giving a funky title to the ccwg proposed bylaw changes as i see it as enhancement of community engagement in ICANN board decision making process.

Regards 1. https://www.nro.net/wp-content/uploads/ARIN-Memo-re-NRO-Status-as-an-Unincor...

...

J

Regards

On Mon, Jun 22, 2015 at 3:10 PM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:

...

Dear All, First of all ,let us wait for a clear way forward to be on the Table be fore our next meeting on Wednesday Secondly, if we clearly distinguish between rights to participate to voting of any or all of the six/seven powers as well as issues relying to IRP FROM issue of empowerment ,requiring membership ( at least one member to have a stand for enforce certain decisions /conclusion made through voting ,many questions would be narrowed down to fewer numbers . Pls kindly advise on that Kavouss

2015-06-22 18:52 GMT+02:00 Seun Ojedeji <seun.ojedeji@gmail.com>:

...

Dear all,

First i like to thank the Co-Chairs for responding to all the questions during the townhall meeting. Milton mentioned 2 things and i like to use that to provide my feedback/suggestions:

- Purpose of the CCWG:

IMO, i think the purpose of the CCWG is to recommend ways to improve ICANN accountability but enforceability could just be one of such features and not the ultimate goal.

- Enforceability solutions other than membership: Considering the complications relating to the various membership models that has been suggested, there is obvious need to consider what is achievable within the current structure and i think everything is achievable except enforceability. Puting that in mind, i think the CCWG report in summary has provided the following (amongst others):

- They have looked into the current bylaw and proposed edits that would ensure community engagement in the board decision making process which is not existing at the moment - They have proposed ways by which the suggested edits to the bylaw once implemented can be updated (fundamental bylaw)

I think these 2 items are critical accountability enhancement and once implemented would have provided ICANN board with some specific guideline on how to approach issues as accordingly.

So it seem to me that we will already have some enforceability without actually requiring membership since an organisation board is required to obey/comply with its bylaw. So if the bylaw says; before you can do xyz, it needs to go through abc process, why would the board not follow/obey those direction as defined in the bylaw?

As a follow-up to my question about ICANN board complying with its bylaw. I will like to ask the following questions:

- Has there been any known scenario where ICANN board at the moment did not obey its current bylaw? - If ICANN board does not obey its bylaw, what its legal implication to the board members with regards to their mandate? - Is it possible for board members to sign a mandate upon induction indicating that they would resign if the community (through a defined process) determined that they did not follow the organisation's bylaw?

Regards -- ------------------------------------------------------------------------

*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 !

_______________________________________________ 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 !

_______________________________________________ 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 !

-- 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 *

Hi Jordan, On Mon, Jun 22, 2015 at 5:06 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:

Some quick thoughts in line below: The question is, what can be done if they don't - individually or collectively. That's why it's being called "voluntary" - nobody has the right to hold the Board or its members to account for not following the bylaws. By hold them to account I mean the ability to require them to do so. So without that ability, it's a matter of good will.

This is why i asked the 3 sets of questions previously and i will post this here again. Would appreciate if you could respond to them (item 3 is particularly of interest): 1. Has there been any known scenario where ICANN board at the moment did not obey its current bylaw? 2. If ICANN board does not obey its bylaw, what is the legal implication to the board members? 3. Is it possible for board members to sign a mandate upon induction indicating that they would resign if the community (through a defined process) determined that they did not follow the organisation's bylaw? For designator or member you need some kind of “legal person”.

...

...

On the designator option i think there may be need to re-question the legal team on this. ARIN recently received some legal advice on possibility of NRO becoming a designate/member within ICANN[1] and it does seem an interesting read. I quote the specific section below:

The memo you refer to below is an interesting read, but it tells you that the NRO is an unincorporated association. So that's in support of my point.

I am not sure this clarifies what "legal person" mean in this context. Is UA = "Legal person" as NRO in this context is not a person but entity.

...

"Designators are simply those parties provided in a corporation’s

...

articles or bylaws as having the power to appoint some or all of the corporation’s directors"

So i don't really understand the idea of "legal person" requirement as indicated by the ccwg legal team, perhaps they need to clarify.

It comes back to what I said above: without being a legal person, they can't enforce their right to appoint or remove said Director if the person in place refuses to play by the rules.

Jordan, there are 2 broad options here: - Board removal through some form of membership means (designator, member, empowered, hybrid etc) - Board removal through the option i suggested in my item 3 above. (including route suggested by Alan which by the way i was surprised we seem to not have follow-up)

...

That said, this is not to indicate a preference at the moment but to ensure we get clarity on what is possible and what isn't in all these models

Helpful in that respect.

And happy to note Alan's correction in the subsequent message, that his model of pre-committed resignations does leave the Board Director removal power on the table (so 1 or 2/6).

+1 and i think should be considered as well. Actually i think if we can have the "threatening rod" of board member removal while maintaining the current status of SO/AC, in addition to the fact that board are mandated to abide by the bylaw, the other 5 out of 6 powers would naturally be indirectly exercised. Thanks Regards

cheers, Jordan

...

...

If there are other paths to enforceability I would be interested to know what they are - does anybody know of any?

I for one like the empowered SO/AC model as its really an improvement to the full membership model and less complicated (seem to be an advanced designator model). Nevertheless there is still the reality that its a members model and there are cons associated with this and it may be good to put them side by side with the current "voluntary model" that operates an "Empowered bylaw" post-transition (yeah empowered seem to be the buzz word lately ;-) )

This is a beast I have never heard of, an empowered bylaw :-)

Actually that is me giving a funky title to the ccwg proposed bylaw changes as i see it as enhancement of community engagement in ICANN board decision making process.

Regards 1. https://www.nro.net/wp-content/uploads/ARIN-Memo-re-NRO-Status-as-an-Unincor...

...

J

Regards

On Mon, Jun 22, 2015 at 3:10 PM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:

...

Dear All, First of all ,let us wait for a clear way forward to be on the Table be fore our next meeting on Wednesday Secondly, if we clearly distinguish between rights to participate to voting of any or all of the six/seven powers as well as issues relying to IRP FROM issue of empowerment ,requiring membership ( at least one member to have a stand for enforce certain decisions /conclusion made through voting ,many questions would be narrowed down to fewer numbers . Pls kindly advise on that Kavouss

2015-06-22 18:52 GMT+02:00 Seun Ojedeji <seun.ojedeji@gmail.com>:

...

Dear all,

First i like to thank the Co-Chairs for responding to all the questions during the townhall meeting. Milton mentioned 2 things and i like to use that to provide my feedback/suggestions:

- Purpose of the CCWG:

IMO, i think the purpose of the CCWG is to recommend ways to improve ICANN accountability but enforceability could just be one of such features and not the ultimate goal.

- Enforceability solutions other than membership: Considering the complications relating to the various membership models that has been suggested, there is obvious need to consider what is achievable within the current structure and i think everything is achievable except enforceability. Puting that in mind, i think the CCWG report in summary has provided the following (amongst others):

- They have looked into the current bylaw and proposed edits that would ensure community engagement in the board decision making process which is not existing at the moment - They have proposed ways by which the suggested edits to the bylaw once implemented can be updated (fundamental bylaw)

I think these 2 items are critical accountability enhancement and once implemented would have provided ICANN board with some specific guideline on how to approach issues as accordingly.

So it seem to me that we will already have some enforceability without actually requiring membership since an organisation board is required to obey/comply with its bylaw. So if the bylaw says; before you can do xyz, it needs to go through abc process, why would the board not follow/obey those direction as defined in the bylaw?

As a follow-up to my question about ICANN board complying with its bylaw. I will like to ask the following questions:

- Has there been any known scenario where ICANN board at the moment did not obey its current bylaw? - If ICANN board does not obey its bylaw, what its legal implication to the board members with regards to their mandate? - Is it possible for board members to sign a mandate upon induction indicating that they would resign if the community (through a defined process) determined that they did not follow the organisation's bylaw?

Regards --

------------------------------------------------------------------------

*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 !

_______________________________________________ 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 !

_______________________________________________ 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 !

-- 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

-- ------------------------------------------------------------------------ *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 Farzaneh, My point was not to discourage safeguards but it was to appreciate the realities on ground and determine if indeed the need for certain safeguards outweighs the cost of implementing the safeguards. As a way reference, there was a buzz phrase earlier this year about "banning encryption on the internet" perhaps with the aim of catching the seemingly great hackers. At the same time, there were suggestions of mandating encryptions on the internet. Both on the basis of justifying need for internet security and openness, however we both know that either of them cannot happen/work effectively based on the architecture of the internet. So i think we should face reality of the fact that ICANN is indeed unique otherwise please tell me a global community based organisation that appoints its board members without actually having a formal membership structure existing. That unique dynamics is one of the strengths that IMO needs to be protected. Regards On Tue, Jun 23, 2015 at 7:47 AM, farzaneh badii <farzaneh.badii@gmail.com> wrote:

Hi Seun,

"1. Has there been any known scenario where ICANN board at the moment did not obey its current bylaw?"

Although I think there might be an answer to your question above, I don't think your question needs an answer. You do not need something to already have happened to have safeguards against it! In almost all legal systems there are safeguards in place for stopping the board of directors from wrongdoing etc. Board members change and we need institutional safeguards. I think we should certainly re-think some assertion that our community is so unique and can just function based on mutual trust ! Our community is unique but I'm afraid not that unique !

On 22 June 2015 at 18:14, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:

...

Hi Jordan,

On Mon, Jun 22, 2015 at 5:06 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:

...

Some quick thoughts in line below: The question is, what can be done if they don't - individually or collectively. That's why it's being called "voluntary" - nobody has the right to hold the Board or its members to account for not following the bylaws. By hold them to account I mean the ability to require them to do so. So without that ability, it's a matter of good will.

This is why i asked the 3 sets of questions previously and i will post this here again. Would appreciate if you could respond to them (item 3 is particularly of interest):

1. Has there been any known scenario where ICANN board at the moment did not obey its current bylaw? 2. If ICANN board does not obey its bylaw, what is the legal implication to the board members? 3. Is it possible for board members to sign a mandate upon induction indicating that they would resign if the community (through a defined process) determined that they did not follow the organisation's bylaw?

For designator or member you need some kind of “legal person”.

...

...

...

On the designator option i think there may be need to re-question the legal team on this. ARIN recently received some legal advice on possibility of NRO becoming a designate/member within ICANN[1] and it does seem an interesting read. I quote the specific section below:

The memo you refer to below is an interesting read, but it tells you that the NRO is an unincorporated association. So that's in support of my point.

I am not sure this clarifies what "legal person" mean in this context. Is UA = "Legal person" as NRO in this context is not a person but entity.

...

...

"Designators are simply those parties provided in a corporation’s

...

articles or bylaws as having the power to appoint some or all of the corporation’s directors"

So i don't really understand the idea of "legal person" requirement as indicated by the ccwg legal team, perhaps they need to clarify.

It comes back to what I said above: without being a legal person, they can't enforce their right to appoint or remove said Director if the person in place refuses to play by the rules.

Jordan, there are 2 broad options here:

- Board removal through some form of membership means (designator, member, empowered, hybrid etc) - Board removal through the option i suggested in my item 3 above. (including route suggested by Alan which by the way i was surprised we seem to not have follow-up)

...

...

That said, this is not to indicate a preference at the moment but to ensure we get clarity on what is possible and what isn't in all these models

Helpful in that respect.

And happy to note Alan's correction in the subsequent message, that his model of pre-committed resignations does leave the Board Director removal power on the table (so 1 or 2/6).

+1 and i think should be considered as well. Actually i think if we can have the "threatening rod" of board member removal while maintaining the current status of SO/AC, in addition to the fact that board are mandated to abide by the bylaw, the other 5 out of 6 powers would naturally be indirectly exercised.

Thanks

Regards

...

cheers, Jordan

...

...

If there are other paths to enforceability I would be interested to know what they are - does anybody know of any?

I for one like the empowered SO/AC model as its really an improvement to the full membership model and less complicated (seem to be an advanced designator model). Nevertheless there is still the reality that its a members model and there are cons associated with this and it may be good to put them side by side with the current "voluntary model" that operates an "Empowered bylaw" post-transition (yeah empowered seem to be the buzz word lately ;-) )

This is a beast I have never heard of, an empowered bylaw :-)

Actually that is me giving a funky title to the ccwg proposed bylaw changes as i see it as enhancement of community engagement in ICANN board decision making process.

Regards 1. https://www.nro.net/wp-content/uploads/ARIN-Memo-re-NRO-Status-as-an-Unincor...

...

J

Regards

On Mon, Jun 22, 2015 at 3:10 PM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:

...

Dear All, First of all ,let us wait for a clear way forward to be on the Table be fore our next meeting on Wednesday Secondly, if we clearly distinguish between rights to participate to voting of any or all of the six/seven powers as well as issues relying to IRP FROM issue of empowerment ,requiring membership ( at least one member to have a stand for enforce certain decisions /conclusion made through voting ,many questions would be narrowed down to fewer numbers . Pls kindly advise on that Kavouss

2015-06-22 18:52 GMT+02:00 Seun Ojedeji <seun.ojedeji@gmail.com>:

> Dear all, > > First i like to thank the Co-Chairs for responding to all the > questions during the townhall meeting. Milton mentioned 2 things and i like > to use that to provide my feedback/suggestions: > > - Purpose of the CCWG: > > IMO, i think the purpose of the CCWG is to recommend ways to improve > ICANN accountability but enforceability could just be one of such features > and not the ultimate goal. > > - Enforceability solutions other than membership: > Considering the complications relating to the various membership > models that has been suggested, there is obvious need to consider what is > achievable within the current structure and i think everything is > achievable except enforceability. Puting that in mind, i think the CCWG > report in summary has provided the following (amongst others): > > - They have looked into the current bylaw and proposed edits that > would ensure community engagement in the board decision making process > which is not existing at the moment > - They have proposed ways by which the suggested edits to the bylaw > once implemented can be updated (fundamental bylaw) > > I think these 2 items are critical accountability enhancement and > once implemented would have provided ICANN board with some specific > guideline on how to approach issues as accordingly. > > So it seem to me that we will already have some enforceability > without actually requiring membership since an organisation board is > required to obey/comply with its bylaw. So if the bylaw says; before you > can do xyz, it needs to go through abc process, why would the board not > follow/obey those direction as defined in the bylaw? > > As a follow-up to my question about ICANN board complying with its > bylaw. I will like to ask the following questions: > > - Has there been any known scenario where ICANN board at the moment > did not obey its current bylaw? > - If ICANN board does not obey its bylaw, what its legal implication > to the board members with regards to their mandate? > - Is it possible for board members to sign a mandate upon induction > indicating that they would resign if the community (through a defined > process) determined that they did not follow the organisation's bylaw? > > Regards > -- > > ------------------------------------------------------------------------ > > > > > > *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 ! > > > > _______________________________________________ > 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 !

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-- ------------------------------------------------------------------------

*Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>*

The key to understanding is humility - my view !

-- 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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-- ------------------------------------------------------------------------

*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 !

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-- Farzaneh

-- ------------------------------------------------------------------------ *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 !

At 22/06/2015 03:08 PM, Jordan Carter wrote:

Hi Seun, all:

...

On 22/06/2015, at 3:55 pm, Seun Ojedeji <<mailto:seun.ojedeji@gmail.com>seun.ojedeji@gmail.com> wrote:

Hello Kavouss,

While i agree that its good we get further clarity on the "Empowered SO/AC model", i think we have the overall high level characteristics of the model and it may be good to consider other-ways to "enforceability" other than formalising the SO/AC as well.

I think the advice we have received is that designator approach in the legal sense could allow for enforcement of 4/6 powers, membership approach 6/6, and voluntary approach 0/6. For designator or member you need some kind of “legal person”.

If there are other paths to enforceability I would be interested to know what they are - does anybody know of any?

Yes, the proposal I made with the Subject line "Plan B" which gave 1/6 directly and I believe would result in sufficient leverage to meet the other 5 powers. Alan

...

I for one like the empowered SO/AC model as its really an improvement to the full membership model and less complicated (seem to be an advanced designator model). Nevertheless there is still the reality that its a members model and there are cons associated with this and it may be good to put them side by side with the current "voluntary model" that operates an "Empowered bylaw" post-transition (yeah empowered seem to be the buzz word lately ;-) )

This is a beast I have never heard of, an empowered bylaw :-)

J

...

Regards

On Mon, Jun 22, 2015 at 3:10 PM, Kavouss Arasteh <<mailto:kavouss.arasteh@gmail.com>kavouss.arasteh@gmail.com> wrote: Dear All, First of all ,let us wait for a clear way forward to be on the Table be fore our next meeting on Wednesday Secondly, if we clearly distinguish between rights to participate to voting of any or all of the six/seven powers as well as issues relying to IRP FROM issue of empowerment ,requiring membership ( at least one member to have a stand for enforce certain decisions /conclusion made through voting ,many questions would be narrowed down to fewer numbers . Pls kindly advise on that Kavouss

2015-06-22 18:52 GMT+02:00 Seun Ojedeji <<mailto:seun.ojedeji@gmail.com>seun.ojedeji@gmail.com>: Dear all,

First i like to thank the Co-Chairs for responding to all the questions during the townhall meeting. Milton mentioned 2 things and i like to use that to provide my feedback/suggestions:

- Purpose of the CCWG:

IMO, i think the purpose of the CCWG is to recommend ways to improve ICANN accountability but enforceability could just be one of such features and not the ultimate goal.

- Enforceability solutions other than membership: Considering the complications relating to the various membership models that has been suggested, there is obvious need to consider what is achievable within the current structure and i think everything is achievable except enforceability. Puting that in mind, i think the CCWG report in summary has provided the following (amongst others):

- They have looked into the current bylaw and proposed edits that would ensure community engagement in the board decision making process which is not existing at the moment - They have proposed ways by which the suggested edits to the bylaw once implemented can be updated (fundamental bylaw)

I think these 2 items are critical accountability enhancement and once implemented would have provided ICANN board with some specific guideline on how to approach issues as accordingly.

So it seem to me that we will already have some enforceability without actually requiring membership since an organisation board is required to obey/comply with its bylaw. So if the bylaw says; before you can do xyz, it needs to go through abc process, why would the board not follow/obey those direction as defined in the bylaw?

As a follow-up to my question about ICANN board complying with its bylaw. I will like to ask the following questions:

- Has there been any known scenario where ICANN board at the moment did not obey its current bylaw? - If ICANN board does not obey its bylaw, what its legal implication to the board members with regards to their mandate? - Is it possible for board members to sign a mandate upon induction indicating that they would resign if the community (through a defined process) determined that they did not follow the organisation's bylaw?

Regards -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: <http://www.fuoye.edu.ng/>http://www.fuoye.edu.ng Mobile: +2348035233535 alt email:<http://goog_1872880453/> <mailto:seun.ojedeji@fuoye.edu.ng>seun.ojedeji@fuoye.edu.ng

The key to understanding is humility - my view !

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-- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: <http://www.fuoye.edu.ng/>http://www.fuoye.edu.ng Mobile: +2348035233535 alt email:<http://goog_1872880453/> <mailto:seun.ojedeji@fuoye.edu.ng>seun.ojedeji@fuoye.edu.ng

The key to understanding is humility - my view !

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

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Hi Roelof On Mon, Jun 22, 2015 at 7:12 PM, Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:

Jordan, all,

The “empowered SOs/Acs model” allows for enforcement of 6/6 powers if it "escalates into" the membership model We should also consider the alternative option: making the designator model the escalation path. ICANN would then not have to prepare to move to a membership model. Escalation into designator model would allow enforcement of 4/6 powers. Removing the board of part thereof is among them. Vetoing the budget is not.

I would like to submit the following for consideration: If the community, in line with the power given to it in ICANN’s (new) bylaws and the designed process, vetoes the budget and the board ignores that veto, what would be the best next step? Taking the board to court to have the budget vetoed and redone? Or removing (part of) the board? I would think the latter, as by ignoring the community’s veto of the budget (as the outcome of due process that the board agreed to in the first place), such a board completely loses the trust and confidence of the community and can no longer function.

+1 on this. However i think its important to clearly define sufficient threshold of refused community (i don't prefer to call it veto) actions that would warrant a "community rod" on the board. I won't expect the community to initiate a removal process just because the board refuse to take specific item from the budget as recommended by the community.

So I suggest that, under the “empowered SOs/ACs model”, the possibility to legally enforce ONLY the power to remove (part of) the board would suffice. Legal enforcement of one or more of the other powers would simply never be used, unless combined with removal of the board

I agree with this proposition, so long as the legal enforcement under the "empowered SO/AC model" would not require any change in the current structure of SOs/ACs. By legal enforcement, i hope you mean "ICANN board members having refused to follow its bylaw is hereby *legally* required to step down from the board" and NOT "ICANN board members having refused to follow its bylaw is hereby required to step down from the board by the *community members*" Regards

Best,

Roelof Meijer

From: <accountability-cross-community-bounces@icann.org> on behalf of Jordan Carter <jordan@internetnz.net.nz> Date: maandag 22 juni 2015 16:08 To: Seun Ojedeji <seun.ojedeji@gmail.com> Cc: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Townhall meeting follow-up

Hi Seun, all:

On 22/06/2015, at 3:55 pm, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:

Hello Kavouss,

While i agree that its good we get further clarity on the "Empowered SO/AC model", i think we have the overall high level characteristics of the model and it may be good to consider other-ways to "enforceability" other than formalising the SO/AC as well.

I think the advice we have received is that designator approach in the legal sense could allow for enforcement of 4/6 powers, membership approach 6/6, and voluntary approach 0/6. For designator or member you need some kind of “legal person”.

If there are other paths to enforceability I would be interested to know what they are - does anybody know of any?

I for one like the empowered SO/AC model as its really an improvement to the full membership model and less complicated (seem to be an advanced designator model). Nevertheless there is still the reality that its a members model and there are cons associated with this and it may be good to put them side by side with the current "voluntary model" that operates an "Empowered bylaw" post-transition (yeah empowered seem to be the buzz word lately ;-) )

This is a beast I have never heard of, an empowered bylaw :-)

J

Regards

On Mon, Jun 22, 2015 at 3:10 PM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:

...

Dear All, First of all ,let us wait for a clear way forward to be on the Table be fore our next meeting on Wednesday Secondly, if we clearly distinguish between rights to participate to voting of any or all of the six/seven powers as well as issues relying to IRP FROM issue of empowerment ,requiring membership ( at least one member to have a stand for enforce certain decisions /conclusion made through voting ,many questions would be narrowed down to fewer numbers . Pls kindly advise on that Kavouss

2015-06-22 18:52 GMT+02:00 Seun Ojedeji <seun.ojedeji@gmail.com>:

...

Dear all,

First i like to thank the Co-Chairs for responding to all the questions during the townhall meeting. Milton mentioned 2 things and i like to use that to provide my feedback/suggestions:

- Purpose of the CCWG:

IMO, i think the purpose of the CCWG is to recommend ways to improve ICANN accountability but enforceability could just be one of such features and not the ultimate goal.

- Enforceability solutions other than membership: Considering the complications relating to the various membership models that has been suggested, there is obvious need to consider what is achievable within the current structure and i think everything is achievable except enforceability. Puting that in mind, i think the CCWG report in summary has provided the following (amongst others):

- They have looked into the current bylaw and proposed edits that would ensure community engagement in the board decision making process which is not existing at the moment - They have proposed ways by which the suggested edits to the bylaw once implemented can be updated (fundamental bylaw)

I think these 2 items are critical accountability enhancement and once implemented would have provided ICANN board with some specific guideline on how to approach issues as accordingly.

So it seem to me that we will already have some enforceability without actually requiring membership since an organisation board is required to obey/comply with its bylaw. So if the bylaw says; before you can do xyz, it needs to go through abc process, why would the board not follow/obey those direction as defined in the bylaw?

As a follow-up to my question about ICANN board complying with its bylaw. I will like to ask the following questions:

- Has there been any known scenario where ICANN board at the moment did not obey its current bylaw? - If ICANN board does not obey its bylaw, what its legal implication to the board members with regards to their mandate? - Is it possible for board members to sign a mandate upon induction indicating that they would resign if the community (through a defined process) determined that they did not follow the organisation's bylaw?

Regards --

------------------------------------------------------------------------

*Seun Ojedeji, Federal University Oye-Ekiti web: 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 !

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-- ------------------------------------------------------------------------

*Seun Ojedeji, Federal University Oye-Ekiti web: 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 !

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-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* The key to understanding is humility - my view !

Malcolm,

We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty.

With respect I think that is too simplistic a statement to describe what is a more complicated situation. One of the 3 legs of fiduciary duty of charitable corporation like ICANN is the duty of obedience. The duty of obedience is the duty to remain faithful to and pursue the goals of the organization. In practice, the duty of obedience requires the decision maker to follow the governing documents of the organisation and laws applicable to the organisation. Bylaws are governing documents. It would be correct to say that where there are no members or designators there is a challenge in enforcing where the Board does NOT follow but it is incorrect to say that the Board can legally ignore its by-laws. Cheers, Chris

On 23 Jun 2015, at 20:01 , Farzanh <farzaneh.badii@gmail.com> wrote:

Thanks Malcolm, I can't agree more ! I have been battling with serious existentialist questions since there has been a shift to a soft approach to accountability. We certainly need to emphasize how the new model can give us effective and enforceable mechanisms! enforcement mechanisms can also be deterrent mechanism ! The farther we r from enforcement mechanisms the less deterred are the decision makers to make decisions against the community wishes !

...

On Jun 22, 2015, at 6:43 PM, Malcolm Hutty <malcolm@linx.net> wrote:

...

On 22/06/2015 17:52, Seun Ojedeji wrote: - Enforceability solutions other than membership: Considering the complications relating to the various membership models that has been suggested, there is obvious need to consider what is achievable within the current structure and i think everything is achievable except enforceability.

I completely agree with David McAuley's reply on this point.

Unfortunately, if you achieve "everything except enforceability", you achieve nothing more than a clarification of your request. You do not achieve accountability, only a clear statement of what you would like ICANN to do. The decision rests elsewhere.

...

So it seem to me that we will already have some enforceability without actually requiring membership since an organisation board is required to obey/comply with its bylaw. So if the bylaw says; before you can do xyz, it needs to go through abc process, why would the board not follow/obey those direction as defined in the bylaw?

There are many reasons why things go wrong in this world. But I do not want to suggest anything you may find fanciful or improbable or, worse, that could be interpreted as attacking our honourable current Board members.

So for now, let's just say that the Board might believe they were following the bylaws even if they were not. It is possible to err.

Beyond that though, is the problem Becky identified earlier: it seems you are mistaken when you say that an organisation's board is required to obey/comply with its bylaws. We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty. Only by creating a membership (whether through Empowered SOs, UAs, Open Membership, or some other approach) can we raise up the bylaws to something the Board must honour in the way you assume they already must.

Incidentally, I don't blame you at all for not realising this: I didn't either, and was quite surprised to be told it. But the legal advice being what it is, we must act accordingly.

-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/

London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY

Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA

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---

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I would add that state attorneys general are generally empowered to enforce against directors violations of the bylaws that breach their fiduciary duties or cause the corporation to use its assets outside its charitable purposes. I would also add that if bylaws violate the corporate law or the corporation’s own Articles of Incorporation, the board’s duty is to follow the statute or the Articles, not the bylaws. Rosemary From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Holly Gregory Sent: Tuesday, June 23, 2015 4:19 AM To: Chris Disspain; Malcolm Hutty Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Townhall meeting follow-up Chris, that is an accurate clarification. Sent with Good (www.good.com<http://www.good.com>) ________________________________ From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> on behalf of Chris Disspain Sent: Tuesday, June 23, 2015 06:14:45 AM To: Malcolm Hutty Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Townhall meeting follow-up Malcolm, We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty. With respect I think that is too simplistic a statement to describe what is a more complicated situation. One of the 3 legs of fiduciary duty of charitable corporation like ICANN is the duty of obedience. The duty of obedience is the duty to remain faithful to and pursue the goals of the organization. In practice, the duty of obedience requires the decision maker to follow the governing documents of the organisation and laws applicable to the organisation. Bylaws are governing documents. It would be correct to say that where there are no members or designators there is a challenge in enforcing where the Board does NOT follow but it is incorrect to say that the Board can legally ignore its by-laws. Cheers, Chris On 23 Jun 2015, at 20:01 , Farzanh <farzaneh.badii@gmail.com<mailto:farzaneh.badii@gmail.com>> wrote: Thanks Malcolm, I can't agree more ! I have been battling with serious existentialist questions since there has been a shift to a soft approach to accountability. We certainly need to emphasize how the new model can give us effective and enforceable mechanisms! enforcement mechanisms can also be deterrent mechanism ! The farther we r from enforcement mechanisms the less deterred are the decision makers to make decisions against the community wishes ! On Jun 22, 2015, at 6:43 PM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 22/06/2015 17:52, Seun Ojedeji wrote: - Enforceability solutions other than membership: Considering the complications relating to the various membership models that has been suggested, there is obvious need to consider what is achievable within the current structure and i think everything is achievable except enforceability. I completely agree with David McAuley's reply on this point. Unfortunately, if you achieve "everything except enforceability", you achieve nothing more than a clarification of your request. You do not achieve accountability, only a clear statement of what you would like ICANN to do. The decision rests elsewhere. So it seem to me that we will already have some enforceability without actually requiring membership since an organisation board is required to obey/comply with its bylaw. So if the bylaw says; before you can do xyz, it needs to go through abc process, why would the board not follow/obey those direction as defined in the bylaw? There are many reasons why things go wrong in this world. But I do not want to suggest anything you may find fanciful or improbable or, worse, that could be interpreted as attacking our honourable current Board members. So for now, let's just say that the Board might believe they were following the bylaws even if they were not. It is possible to err. Beyond that though, is the problem Becky identified earlier: it seems you are mistaken when you say that an organisation's board is required to obey/comply with its bylaws. We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty. Only by creating a membership (whether through Empowered SOs, UAs, Open Membership, or some other approach) can we raise up the bylaws to something the Board must honour in the way you assume they already must. Incidentally, I don't blame you at all for not realising this: I didn't either, and was quite surprised to be told it. But the legal advice being what it is, we must act accordingly. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/<https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=AwMFAg&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=FK7b8kVkEMK2_MPHl9hkBB7An6cxn_MT87wTkCBHb7A&s=HKkuAJD_EoWIurwvGKRqFN2KzTLHIgIiahmB-XGCSkE&e=> London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ 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 **************************************************************************************************** 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. ****************************************************************************************************

To clarify….when I say “the public,” I include the ICANN community if the ICANN community did not have standing of its own. From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Tuesday, June 23, 2015 10:00 AM To: Rosemary E. Fei; Accountability Cross Community (accountability-cross-community@icann.org) Subject: Re: [CCWG-ACCT] FW: Townhall meeting follow-up Thanks very much, Rosemary. A follow-up question: How and when would the California state attorney general decide to engage? Is there a way for the public to trigger an action or investigation? Thanks, Keith From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Rosemary E. Fei Sent: Tuesday, June 23, 2015 9:37 AM To: Accountability Cross Community (accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>) Subject: [CCWG-ACCT] FW: Townhall meeting follow-up I would add that state attorneys general are generally empowered to enforce against directors violations of the bylaws that breach their fiduciary duties or cause the corporation to use its assets outside its charitable purposes. I would also add that if bylaws violate the corporate law or the corporation’s own Articles of Incorporation, the board’s duty is to follow the statute or the Articles, not the bylaws. Rosemary From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Holly Gregory Sent: Tuesday, June 23, 2015 4:19 AM To: Chris Disspain; Malcolm Hutty Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Townhall meeting follow-up Chris, that is an accurate clarification. Sent with Good (www.good.com<http://www.good.com>) ________________________________ From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> on behalf of Chris Disspain Sent: Tuesday, June 23, 2015 06:14:45 AM To: Malcolm Hutty Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Townhall meeting follow-up Malcolm, We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty. With respect I think that is too simplistic a statement to describe what is a more complicated situation. One of the 3 legs of fiduciary duty of charitable corporation like ICANN is the duty of obedience. The duty of obedience is the duty to remain faithful to and pursue the goals of the organization. In practice, the duty of obedience requires the decision maker to follow the governing documents of the organisation and laws applicable to the organisation. Bylaws are governing documents. It would be correct to say that where there are no members or designators there is a challenge in enforcing where the Board does NOT follow but it is incorrect to say that the Board can legally ignore its by-laws. Cheers, Chris On 23 Jun 2015, at 20:01 , Farzanh <farzaneh.badii@gmail.com<mailto:farzaneh.badii@gmail.com>> wrote: Thanks Malcolm, I can't agree more ! I have been battling with serious existentialist questions since there has been a shift to a soft approach to accountability. We certainly need to emphasize how the new model can give us effective and enforceable mechanisms! enforcement mechanisms can also be deterrent mechanism ! The farther we r from enforcement mechanisms the less deterred are the decision makers to make decisions against the community wishes ! On Jun 22, 2015, at 6:43 PM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 22/06/2015 17:52, Seun Ojedeji wrote: - Enforceability solutions other than membership: Considering the complications relating to the various membership models that has been suggested, there is obvious need to consider what is achievable within the current structure and i think everything is achievable except enforceability. I completely agree with David McAuley's reply on this point. Unfortunately, if you achieve "everything except enforceability", you achieve nothing more than a clarification of your request. You do not achieve accountability, only a clear statement of what you would like ICANN to do. The decision rests elsewhere. So it seem to me that we will already have some enforceability without actually requiring membership since an organisation board is required to obey/comply with its bylaw. So if the bylaw says; before you can do xyz, it needs to go through abc process, why would the board not follow/obey those direction as defined in the bylaw? There are many reasons why things go wrong in this world. But I do not want to suggest anything you may find fanciful or improbable or, worse, that could be interpreted as attacking our honourable current Board members. So for now, let's just say that the Board might believe they were following the bylaws even if they were not. It is possible to err. Beyond that though, is the problem Becky identified earlier: it seems you are mistaken when you say that an organisation's board is required to obey/comply with its bylaws. We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty. Only by creating a membership (whether through Empowered SOs, UAs, Open Membership, or some other approach) can we raise up the bylaws to something the Board must honour in the way you assume they already must. Incidentally, I don't blame you at all for not realising this: I didn't either, and was quite surprised to be told it. But the legal advice being what it is, we must act accordingly. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/<https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=AwMFAg&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=FK7b8kVkEMK2_MPHl9hkBB7An6cxn_MT87wTkCBHb7A&s=HKkuAJD_EoWIurwvGKRqFN2KzTLHIgIiahmB-XGCSkE&e=> London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ 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 **************************************************************************************************** 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. ****************************************************************************************************

Becky, I can add a real life example to support your view. When we hit a brick wall on TM50, which involved allegations of multiple Bylaws violations, I informally asked the AG's office whether they would be willing to investigate and litigate on our behalf. Although willing to investigate it was clear that even if our allegations were found to be true they did not rise to the level that would prompt AG involvement. We clearly need something more. Best, Ed Sent from my iPhone

On Jun 23, 2015, at 1:04 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:

The authority of the AG to step in may be broader, but as a practical matter, it is my impression that this authority is usually used to address corruption and other various actions that are – or resemble – criminal behavior. I don’t think it is a meaningful source of enforcement for the issues that we are worried about.

J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz

From: <Drazek>, Keith Drazek <kdrazek@verisign.com> Date: Tuesday, June 23, 2015 at 10:36 AM To: Keith Drazek <kdrazek@verisign.com>, "Rosemary E. Fei" <rfei@adlercolvin.com>, Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] FW: Townhall meeting follow-up

To clarify….when I say “the public,” I include the ICANN community if the ICANN community did not have standing of its own.

From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Tuesday, June 23, 2015 10:00 AM To: Rosemary E. Fei; Accountability Cross Community (accountability-cross-community@icann.org) Subject: Re: [CCWG-ACCT] FW: Townhall meeting follow-up

Thanks very much, Rosemary.

A follow-up question: How and when would the California state attorney general decide to engage? Is there a way for the public to trigger an action or investigation?

Thanks, Keith

From:accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Rosemary E. Fei Sent: Tuesday, June 23, 2015 9:37 AM To: Accountability Cross Community (accountability-cross-community@icann.org) Subject: [CCWG-ACCT] FW: Townhall meeting follow-up

I would add that state attorneys general are generally empowered to enforce against directors violations of the bylaws that breach their fiduciary duties or cause the corporation to use its assets outside its charitable purposes.

I would also add that if bylaws violate the corporate law or the corporation’s own Articles of Incorporation, the board’s duty is to follow the statute or the Articles, not the bylaws.

Rosemary

From:accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Holly Gregory Sent: Tuesday, June 23, 2015 4:19 AM To: Chris Disspain; Malcolm Hutty Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Townhall meeting follow-up

Chris, that is an accurate clarification.

Sent with Good (www.good.com)

From:accountability-cross-community-bounces@icann.org on behalf of Chris Disspain Sent: Tuesday, June 23, 2015 06:14:45 AM To: Malcolm Hutty Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Townhall meeting follow-up

Malcolm,

We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty.

With respect I think that is too simplistic a statement to describe what is a more complicated situation. One of the 3 legs of fiduciary duty of charitable corporation like ICANN is the duty of obedience. The duty of obedience is the duty to remain faithful to and pursue the goals of the organization. In practice, the duty of obedience requires the decision maker to follow the governing documents of the organisation and laws applicable to the organisation. Bylaws are governing documents. It would be correct to say that where there are no members or designators there is a challenge in enforcing where the Board does NOT follow but it is incorrect to say that the Board can legally ignore its by-laws.

Cheers,

Chris

On 23 Jun 2015, at 20:01 , Farzanh <farzaneh.badii@gmail.com> wrote:

Thanks Malcolm, I can't agree more ! I have been battling with serious existentialist questions since there has been a shift to a soft approach to accountability. We certainly need to emphasize how the new model can give us effective and enforceable mechanisms! enforcement mechanisms can also be deterrent mechanism ! The farther we r from enforcement mechanisms the less deterred are the decision makers to make decisions against the community wishes !

On Jun 22, 2015, at 6:43 PM, Malcolm Hutty <malcolm@linx.net> wrote:

On 22/06/2015 17:52, Seun Ojedeji wrote: - Enforceability solutions other than membership: Considering the complications relating to the various membership models that has been suggested, there is obvious need to consider what is achievable within the current structure and i think everything is achievable except enforceability.

I completely agree with David McAuley's reply on this point.

Unfortunately, if you achieve "everything except enforceability", you achieve nothing more than a clarification of your request. You do not achieve accountability, only a clear statement of what you would like ICANN to do. The decision rests elsewhere.

So it seem to me that we will already have some enforceability without actually requiring membership since an organisation board is required to obey/comply with its bylaw. So if the bylaw says; before you can do xyz, it needs to go through abc process, why would the board not follow/obey those direction as defined in the bylaw?

There are many reasons why things go wrong in this world. But I do not want to suggest anything you may find fanciful or improbable or, worse, that could be interpreted as attacking our honourable current Board members.

So for now, let's just say that the Board might believe they were following the bylaws even if they were not. It is possible to err.

Beyond that though, is the problem Becky identified earlier: it seems you are mistaken when you say that an organisation's board is required to obey/comply with its bylaws. We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty. Only by creating a membership (whether through Empowered SOs, UAs, Open Membership, or some other approach) can we raise up the bylaws to something the Board must honour in the way you assume they already must.

Incidentally, I don't blame you at all for not realising this: I didn't either, and was quite surprised to be told it. But the legal advice being what it is, we must act accordingly.

-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/

London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY

Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA

_______________________________________________ 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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****************************************************************************************************

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Hi Edward, How would the accountability mechanisms we are discussing assist you in this example? Cheers, Chris

On 24 Jun 2015, at 03:37 , Edward Morris <egmorris1@toast.net> wrote:

Becky,

I can add a real life example to support your view. When we hit a brick wall on TM50, which involved allegations of multiple Bylaws violations, I informally asked the AG's office whether they would be willing to investigate and litigate on our behalf. Although willing to investigate it was clear that even if our allegations were found to be true they did not rise to the level that would prompt AG involvement. We clearly need something more.

Best,

Ed

Sent from my iPhone

On Jun 23, 2015, at 1:04 PM, Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:

...

The authority of the AG to step in may be broader, but as a practical matter, it is my impression that this authority is usually used to address corruption and other various actions that are – or resemble – criminal behavior. I don’t think it is a meaningful source of enforcement for the issues that we are worried about.

J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz <http://www.neustar.biz/>

From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: Tuesday, June 23, 2015 at 10:36 AM To: Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>>, "Rosemary E. Fei" <rfei@adlercolvin.com <mailto:rfei@adlercolvin.com>>, Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] FW: Townhall meeting follow-up

To clarify….when I say “the public,” I include the ICANN community if the ICANN community did not have standing of its own.

From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Drazek, Keith Sent: Tuesday, June 23, 2015 10:00 AM To: Rosemary E. Fei; Accountability Cross Community (accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>) Subject: Re: [CCWG-ACCT] FW: Townhall meeting follow-up

Thanks very much, Rosemary.

A follow-up question: How and when would the California state attorney general decide to engage? Is there a way for the public to trigger an action or investigation?

Thanks, Keith

From:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Rosemary E. Fei Sent: Tuesday, June 23, 2015 9:37 AM To: Accountability Cross Community (accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>) Subject: [CCWG-ACCT] FW: Townhall meeting follow-up

I would add that state attorneys general are generally empowered to enforce against directors violations of the bylaws that breach their fiduciary duties or cause the corporation to use its assets outside its charitable purposes.

I would also add that if bylaws violate the corporate law or the corporation’s own Articles of Incorporation, the board’s duty is to follow the statute or the Articles, not the bylaws.

Rosemary

From:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Holly Gregory Sent: Tuesday, June 23, 2015 4:19 AM To: Chris Disspain; Malcolm Hutty Cc: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Townhall meeting follow-up

Chris, that is an accurate clarification.

Sent with Good (www.good.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.good.com&d=AwMGaQ&c=...>)

From:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> on behalf of Chris Disspain Sent: Tuesday, June 23, 2015 06:14:45 AM To: Malcolm Hutty Cc: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Townhall meeting follow-up

Malcolm,

We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty.

With respect I think that is too simplistic a statement to describe what is a more complicated situation. One of the 3 legs of fiduciary duty of charitable corporation like ICANN is the duty of obedience. The duty of obedience is the duty to remain faithful to and pursue the goals of the organization. In practice, the duty of obedience requires the decision maker to follow the governing documents of the organisation and laws applicable to the organisation. Bylaws are governing documents. It would be correct to say that where there are no members or designators there is a challenge in enforcing where the Board does NOT follow but it is incorrect to say that the Board can legally ignore its by-laws.

Cheers,

Chris

On 23 Jun 2015, at 20:01 , Farzanh <farzaneh.badii@gmail.com <mailto:farzaneh.badii@gmail.com>> wrote:

Thanks Malcolm, I can't agree more ! I have been battling with serious existentialist questions since there has been a shift to a soft approach to accountability. We certainly need to emphasize how the new model can give us effective and enforceable mechanisms! enforcement mechanisms can also be deterrent mechanism ! The farther we r from enforcement mechanisms the less deterred are the decision makers to make decisions against the community wishes !

On Jun 22, 2015, at 6:43 PM, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>> wrote:

On 22/06/2015 17:52, Seun Ojedeji wrote: - Enforceability solutions other than membership: Considering the complications relating to the various membership models that has been suggested, there is obvious need to consider what is achievable within the current structure and i think everything is achievable except enforceability.

I completely agree with David McAuley's reply on this point.

Unfortunately, if you achieve "everything except enforceability", you achieve nothing more than a clarification of your request. You do not achieve accountability, only a clear statement of what you would like ICANN to do. The decision rests elsewhere.

So it seem to me that we will already have some enforceability without actually requiring membership since an organisation board is required to obey/comply with its bylaw. So if the bylaw says; before you can do xyz, it needs to go through abc process, why would the board not follow/obey those direction as defined in the bylaw?

There are many reasons why things go wrong in this world. But I do not want to suggest anything you may find fanciful or improbable or, worse, that could be interpreted as attacking our honourable current Board members.

So for now, let's just say that the Board might believe they were following the bylaws even if they were not. It is possible to err.

Beyond that though, is the problem Becky identified earlier: it seems you are mistaken when you say that an organisation's board is required to obey/comply with its bylaws. We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty. Only by creating a membership (whether through Empowered SOs, UAs, Open Membership, or some other approach) can we raise up the bylaws to something the Board must honour in the way you assume they already must.

Incidentally, I don't blame you at all for not realising this: I didn't either, and was quite surprised to be told it. But the legal advice being what it is, we must act accordingly.

-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&...>

London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY

Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA

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Hi Ed, Ah…understood. On cost, agreed and accepted subject to some parameters on frivolous use etc.. On standing, the current standing is: "Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action." Are we anticipating a change that would enhance that in some way that would help in the example you gave? On statutory membership rights, that applies to enforcing the decision of the IRP but not to standing. Cheers, Chris

On 24 Jun 2015, at 04:19 , Edward Morris <egmorris1@toast.net> wrote:

Hi Chris,

The revised Independent Review Process (IRP) would be a huge first step in the right direction. We went through the rather odious Cooperative Engagement Process (CEP) where things stalled. I should note that during the CEP we asked for a delay while we pursued an unsuccessful DIDP request, trying to get documentation to assist in the CEP and IRP. Transparency reform such as inspection rights are key to making our accountability efforts work in practice.

We had two problems with the IRP: 1) cost and 2) standing. The revised IRP backed by potential statutory membership rights should address these concerns. I hope.

Best,

Ed

Sent from my iPhone

On Jun 23, 2015, at 2:53 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:

...

Hi Edward,

How would the accountability mechanisms we are discussing assist you in this example?

Cheers,

Chris

...

On 24 Jun 2015, at 03:37 , Edward Morris <egmorris1@toast.net <mailto:egmorris1@toast.net>> wrote:

Becky,

I can add a real life example to support your view. When we hit a brick wall on TM50, which involved allegations of multiple Bylaws violations, I informally asked the AG's office whether they would be willing to investigate and litigate on our behalf. Although willing to investigate it was clear that even if our allegations were found to be true they did not rise to the level that would prompt AG involvement. We clearly need something more.

Best,

Ed

Sent from my iPhone

On Jun 23, 2015, at 1:04 PM, Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:

...

The authority of the AG to step in may be broader, but as a practical matter, it is my impression that this authority is usually used to address corruption and other various actions that are – or resemble – criminal behavior. I don’t think it is a meaningful source of enforcement for the issues that we are worried about.

J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz <http://www.neustar.biz/>

From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: Tuesday, June 23, 2015 at 10:36 AM To: Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>>, "Rosemary E. Fei" <rfei@adlercolvin.com <mailto:rfei@adlercolvin.com>>, Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] FW: Townhall meeting follow-up

To clarify….when I say “the public,” I include the ICANN community if the ICANN community did not have standing of its own.

From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Drazek, Keith Sent: Tuesday, June 23, 2015 10:00 AM To: Rosemary E. Fei; Accountability Cross Community (accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>) Subject: Re: [CCWG-ACCT] FW: Townhall meeting follow-up

Thanks very much, Rosemary.

A follow-up question: How and when would the California state attorney general decide to engage? Is there a way for the public to trigger an action or investigation?

Thanks, Keith

From:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Rosemary E. Fei Sent: Tuesday, June 23, 2015 9:37 AM To: Accountability Cross Community (accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>) Subject: [CCWG-ACCT] FW: Townhall meeting follow-up

I would add that state attorneys general are generally empowered to enforce against directors violations of the bylaws that breach their fiduciary duties or cause the corporation to use its assets outside its charitable purposes.

I would also add that if bylaws violate the corporate law or the corporation’s own Articles of Incorporation, the board’s duty is to follow the statute or the Articles, not the bylaws.

Rosemary

From:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Holly Gregory Sent: Tuesday, June 23, 2015 4:19 AM To: Chris Disspain; Malcolm Hutty Cc: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Townhall meeting follow-up

Chris, that is an accurate clarification.

Sent with Good (www.good.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.good.com&d=AwMGaQ&c=...>)

From:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> on behalf of Chris Disspain Sent: Tuesday, June 23, 2015 06:14:45 AM To: Malcolm Hutty Cc: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Townhall meeting follow-up

Malcolm,

We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty.

With respect I think that is too simplistic a statement to describe what is a more complicated situation. One of the 3 legs of fiduciary duty of charitable corporation like ICANN is the duty of obedience. The duty of obedience is the duty to remain faithful to and pursue the goals of the organization. In practice, the duty of obedience requires the decision maker to follow the governing documents of the organisation and laws applicable to the organisation. Bylaws are governing documents. It would be correct to say that where there are no members or designators there is a challenge in enforcing where the Board does NOT follow but it is incorrect to say that the Board can legally ignore its by-laws.

Cheers,

Chris

On 23 Jun 2015, at 20:01 , Farzanh <farzaneh.badii@gmail.com <mailto:farzaneh.badii@gmail.com>> wrote:

Thanks Malcolm, I can't agree more ! I have been battling with serious existentialist questions since there has been a shift to a soft approach to accountability. We certainly need to emphasize how the new model can give us effective and enforceable mechanisms! enforcement mechanisms can also be deterrent mechanism ! The farther we r from enforcement mechanisms the less deterred are the decision makers to make decisions against the community wishes !

On Jun 22, 2015, at 6:43 PM, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>> wrote:

On 22/06/2015 17:52, Seun Ojedeji wrote: - Enforceability solutions other than membership: Considering the complications relating to the various membership models that has been suggested, there is obvious need to consider what is achievable within the current structure and i think everything is achievable except enforceability.

I completely agree with David McAuley's reply on this point.

Unfortunately, if you achieve "everything except enforceability", you achieve nothing more than a clarification of your request. You do not achieve accountability, only a clear statement of what you would like ICANN to do. The decision rests elsewhere.

So it seem to me that we will already have some enforceability without actually requiring membership since an organisation board is required to obey/comply with its bylaw. So if the bylaw says; before you can do xyz, it needs to go through abc process, why would the board not follow/obey those direction as defined in the bylaw?

There are many reasons why things go wrong in this world. But I do not want to suggest anything you may find fanciful or improbable or, worse, that could be interpreted as attacking our honourable current Board members.

So for now, let's just say that the Board might believe they were following the bylaws even if they were not. It is possible to err.

Beyond that though, is the problem Becky identified earlier: it seems you are mistaken when you say that an organisation's board is required to obey/comply with its bylaws. We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty. Only by creating a membership (whether through Empowered SOs, UAs, Open Membership, or some other approach) can we raise up the bylaws to something the Board must honour in the way you assume they already must.

Incidentally, I don't blame you at all for not realising this: I didn't either, and was quite surprised to be told it. But the legal advice being what it is, we must act accordingly.

-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&...>

London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY

Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA

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Thanks Ed, FWIW, my opinion is that in the current structure there is no question that whilst the NCSG is not organised as a legal person, the persons comprising the NCSG are legal persons and so they jointly could launch an IRP. Then those persons would need to show they were materially effected but that’s a different discussion. Cheers, Chris

On 24 Jun 2015, at 06:18 , Edward Morris <egmorris1@toast.net> wrote:

Hi Chris,

Thanks for your thoughtful response.

As the NCSG is not organized as a legal person there was a question, unresolved, as to whether we could go forward with the IRP. It's important as we construct the specifics of the IRP that we do so in a way that allow SOAC's and other parties access to the mechanism without first becoming a legally recognized person or entity. They would have to do so, of course, in the unlikely event they would have / want to appeal to the judiciary for enforcement of the IRP decision.

Thanks for bringing this up Chris. It certainly is something we need to address in a positive fashion as we go forward constructing the details of the IRP procedure.

Best,

Ed

Sent from my iPhone

On Jun 23, 2015, at 4:12 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:

...

Hi Ed,

Ah…understood. On cost, agreed and accepted subject to some parameters on frivolous use etc..

On standing, the current standing is:

"Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action."

Are we anticipating a change that would enhance that in some way that would help in the example you gave?

On statutory membership rights, that applies to enforcing the decision of the IRP but not to standing.

Cheers,

Chris

...

On 24 Jun 2015, at 04:19 , Edward Morris <egmorris1@toast.net <mailto:egmorris1@toast.net>> wrote:

Hi Chris,

The revised Independent Review Process (IRP) would be a huge first step in the right direction. We went through the rather odious Cooperative Engagement Process (CEP) where things stalled. I should note that during the CEP we asked for a delay while we pursued an unsuccessful DIDP request, trying to get documentation to assist in the CEP and IRP. Transparency reform such as inspection rights are key to making our accountability efforts work in practice.

We had two problems with the IRP: 1) cost and 2) standing. The revised IRP backed by potential statutory membership rights should address these concerns. I hope.

Best,

Ed

Sent from my iPhone

On Jun 23, 2015, at 2:53 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:

...

Hi Edward,

How would the accountability mechanisms we are discussing assist you in this example?

Cheers,

Chris

...

On 24 Jun 2015, at 03:37 , Edward Morris <egmorris1@toast.net <mailto:egmorris1@toast.net>> wrote:

Becky,

I can add a real life example to support your view. When we hit a brick wall on TM50, which involved allegations of multiple Bylaws violations, I informally asked the AG's office whether they would be willing to investigate and litigate on our behalf. Although willing to investigate it was clear that even if our allegations were found to be true they did not rise to the level that would prompt AG involvement. We clearly need something more.

Best,

Ed

Sent from my iPhone

On Jun 23, 2015, at 1:04 PM, Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:

...

The authority of the AG to step in may be broader, but as a practical matter, it is my impression that this authority is usually used to address corruption and other various actions that are – or resemble – criminal behavior. I don’t think it is a meaningful source of enforcement for the issues that we are worried about.

J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz <http://www.neustar.biz/>

From: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: Tuesday, June 23, 2015 at 10:36 AM To: Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>>, "Rosemary E. Fei" <rfei@adlercolvin.com <mailto:rfei@adlercolvin.com>>, Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] FW: Townhall meeting follow-up

To clarify….when I say “the public,” I include the ICANN community if the ICANN community did not have standing of its own.

From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Drazek, Keith Sent: Tuesday, June 23, 2015 10:00 AM To: Rosemary E. Fei; Accountability Cross Community (accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>) Subject: Re: [CCWG-ACCT] FW: Townhall meeting follow-up

Thanks very much, Rosemary.

A follow-up question: How and when would the California state attorney general decide to engage? Is there a way for the public to trigger an action or investigation?

Thanks, Keith

From:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Rosemary E. Fei Sent: Tuesday, June 23, 2015 9:37 AM To: Accountability Cross Community (accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>) Subject: [CCWG-ACCT] FW: Townhall meeting follow-up

I would add that state attorneys general are generally empowered to enforce against directors violations of the bylaws that breach their fiduciary duties or cause the corporation to use its assets outside its charitable purposes.

I would also add that if bylaws violate the corporate law or the corporation’s own Articles of Incorporation, the board’s duty is to follow the statute or the Articles, not the bylaws.

Rosemary

From:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Holly Gregory Sent: Tuesday, June 23, 2015 4:19 AM To: Chris Disspain; Malcolm Hutty Cc: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Townhall meeting follow-up

Chris, that is an accurate clarification.

Sent with Good (www.good.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.good.com&d=AwMGaQ&c=...>)

From:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> on behalf of Chris Disspain Sent: Tuesday, June 23, 2015 06:14:45 AM To: Malcolm Hutty Cc: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Townhall meeting follow-up

Malcolm,

We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty.

With respect I think that is too simplistic a statement to describe what is a more complicated situation. One of the 3 legs of fiduciary duty of charitable corporation like ICANN is the duty of obedience. The duty of obedience is the duty to remain faithful to and pursue the goals of the organization. In practice, the duty of obedience requires the decision maker to follow the governing documents of the organisation and laws applicable to the organisation. Bylaws are governing documents. It would be correct to say that where there are no members or designators there is a challenge in enforcing where the Board does NOT follow but it is incorrect to say that the Board can legally ignore its by-laws.

Cheers,

Chris

On 23 Jun 2015, at 20:01 , Farzanh <farzaneh.badii@gmail.com <mailto:farzaneh.badii@gmail.com>> wrote:

Thanks Malcolm, I can't agree more ! I have been battling with serious existentialist questions since there has been a shift to a soft approach to accountability. We certainly need to emphasize how the new model can give us effective and enforceable mechanisms! enforcement mechanisms can also be deterrent mechanism ! The farther we r from enforcement mechanisms the less deterred are the decision makers to make decisions against the community wishes !

On Jun 22, 2015, at 6:43 PM, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>> wrote:

On 22/06/2015 17:52, Seun Ojedeji wrote: - Enforceability solutions other than membership: Considering the complications relating to the various membership models that has been suggested, there is obvious need to consider what is achievable within the current structure and i think everything is achievable except enforceability.

I completely agree with David McAuley's reply on this point.

Unfortunately, if you achieve "everything except enforceability", you achieve nothing more than a clarification of your request. You do not achieve accountability, only a clear statement of what you would like ICANN to do. The decision rests elsewhere.

So it seem to me that we will already have some enforceability without actually requiring membership since an organisation board is required to obey/comply with its bylaw. So if the bylaw says; before you can do xyz, it needs to go through abc process, why would the board not follow/obey those direction as defined in the bylaw?

There are many reasons why things go wrong in this world. But I do not want to suggest anything you may find fanciful or improbable or, worse, that could be interpreted as attacking our honourable current Board members.

So for now, let's just say that the Board might believe they were following the bylaws even if they were not. It is possible to err.

Beyond that though, is the problem Becky identified earlier: it seems you are mistaken when you say that an organisation's board is required to obey/comply with its bylaws. We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty. Only by creating a membership (whether through Empowered SOs, UAs, Open Membership, or some other approach) can we raise up the bylaws to something the Board must honour in the way you assume they already must.

Incidentally, I don't blame you at all for not realising this: I didn't either, and was quite surprised to be told it. But the legal advice being what it is, we must act accordingly.

-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&...>

London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY

Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>

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Agree Paul. I'm fairly sure it could be done now. There's nothing to stop even a sub-set of the group from doing so. The harm, if there is any, after all, as much to the individual community members as it is to the SG which is a sum of their parts. Chris

On 24 Jun 2015, at 07:09, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:

Interesting question Chris. How would we/should we deal with collectivized harm – that is harm which is small/negligible and not “material” on an individual basis but which, when aggregated is a material harm to, say, all non-commercial users? Or for that matter any other group?

In the US we address this problem through a system of class action, where an entire class of persons can bring an action in the name of a class representative, who proceeds individually. Would we allow that for the IRP – say a proceeding brought by “Paul Rosenzweig on behalf of himself and similarly situated non-commercial users”? If we did allow that, it would avoid the need for the NCUG to become an entity with legal existence, but still allow it to act in its collective interest ….

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 Link to my PGP Key

From: Chris Disspain [mailto:ceo@auda.org.au] Sent: Tuesday, June 23, 2015 4:30 PM To: Edward Morris Cc: Accountability Cross Community (accountability-cross-community@icann.org) Subject: Re: [CCWG-ACCT] Townhall meeting follow-up

Thanks Ed,

FWIW, my opinion is that in the current structure there is no question that whilst the NCSG is not organised as a legal person, the persons comprising the NCSG are legal persons and so they jointly could launch an IRP. Then those persons would need to show they were materially effected but that’s a different discussion.

Cheers,

Chris

On 24 Jun 2015, at 06:18 , Edward Morris <egmorris1@toast.net> wrote:

Hi Chris,

Thanks for your thoughtful response.

As the NCSG is not organized as a legal person there was a question, unresolved, as to whether we could go forward with the IRP. It's important as we construct the specifics of the IRP that we do so in a way that allow SOAC's and other parties access to the mechanism without first becoming a legally recognized person or entity. They would have to do so, of course, in the unlikely event they would have / want to appeal to the judiciary for enforcement of the IRP decision.

Thanks for bringing this up Chris. It certainly is something we need to address in a positive fashion as we go forward constructing the details of the IRP procedure.

Best,

Ed

Sent from my iPhone

On Jun 23, 2015, at 4:12 PM, Chris Disspain <ceo@auda.org.au> wrote:

Hi Ed,

Ah…understood. On cost, agreed and accepted subject to some parameters on frivolous use etc..

On standing, the current standing is:

"Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action."

Are we anticipating a change that would enhance that in some way that would help in the example you gave?

On statutory membership rights, that applies to enforcing the decision of the IRP but not to standing.

Cheers,

Chris

On 24 Jun 2015, at 04:19 , Edward Morris <egmorris1@toast.net> wrote:

Hi Chris,

The revised Independent Review Process (IRP) would be a huge first step in the right direction. We went through the rather odious Cooperative Engagement Process (CEP) where things stalled. I should note that during the CEP we asked for a delay while we pursued an unsuccessful DIDP request, trying to get documentation to assist in the CEP and IRP. Transparency reform such as inspection rights are key to making our accountability efforts work in practice.

We had two problems with the IRP: 1) cost and 2) standing. The revised IRP backed by potential statutory membership rights should address these concerns. I hope.

Best,

Ed

Sent from my iPhone

On Jun 23, 2015, at 2:53 PM, Chris Disspain <ceo@auda.org.au> wrote:

Hi Edward,

How would the accountability mechanisms we are discussing assist you in this example?

Cheers,

Chris

On 24 Jun 2015, at 03:37 , Edward Morris <egmorris1@toast.net> wrote:

Becky,

I can add a real life example to support your view. When we hit a brick wall on TM50, which involved allegations of multiple Bylaws violations, I informally asked the AG's office whether they would be willing to investigate and litigate on our behalf. Although willing to investigate it was clear that even if our allegations were found to be true they did not rise to the level that would prompt AG involvement. We clearly need something more.

Best,

Ed

Sent from my iPhone

On Jun 23, 2015, at 1:04 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:

The authority of the AG to step in may be broader, but as a practical matter, it is my impression that this authority is usually used to address corruption and other various actions that are – or resemble – criminal behavior. I don’t think it is a meaningful source of enforcement for the issues that we are worried about.

J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz

From: <Drazek>, Keith Drazek <kdrazek@verisign.com> Date: Tuesday, June 23, 2015 at 10:36 AM To: Keith Drazek <kdrazek@verisign.com>, "Rosemary E. Fei" <rfei@adlercolvin.com>, Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] FW: Townhall meeting follow-up

To clarify….when I say “the public,” I include the ICANN community if the ICANN community did not have standing of its own.

From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Tuesday, June 23, 2015 10:00 AM To: Rosemary E. Fei; Accountability Cross Community (accountability-cross-community@icann.org) Subject: Re: [CCWG-ACCT] FW: Townhall meeting follow-up

Thanks very much, Rosemary.

A follow-up question: How and when would the California state attorney general decide to engage? Is there a way for the public to trigger an action or investigation?

Thanks, Keith

From:accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Rosemary E. Fei Sent: Tuesday, June 23, 2015 9:37 AM To: Accountability Cross Community (accountability-cross-community@icann.org) Subject: [CCWG-ACCT] FW: Townhall meeting follow-up

I would add that state attorneys general are generally empowered to enforce against directors violations of the bylaws that breach their fiduciary duties or cause the corporation to use its assets outside its charitable purposes.

I would also add that if bylaws violate the corporate law or the corporation’s own Articles of Incorporation, the board’s duty is to follow the statute or the Articles, not the bylaws.

Rosemary

From:accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Holly Gregory Sent: Tuesday, June 23, 2015 4:19 AM To: Chris Disspain; Malcolm Hutty Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Townhall meeting follow-up

Chris, that is an accurate clarification.

Sent with Good (www.good.com)

From:accountability-cross-community-bounces@icann.org on behalf of Chris Disspain Sent: Tuesday, June 23, 2015 06:14:45 AM To: Malcolm Hutty Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Townhall meeting follow-up

Malcolm,

We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty.

With respect I think that is too simplistic a statement to describe what is a more complicated situation. One of the 3 legs of fiduciary duty of charitable corporation like ICANN is the duty of obedience. The duty of obedience is the duty to remain faithful to and pursue the goals of the organization. In practice, the duty of obedience requires the decision maker to follow the governing documents of the organisation and laws applicable to the organisation. Bylaws are governing documents. It would be correct to say that where there are no members or designators there is a challenge in enforcing where the Board does NOT follow but it is incorrect to say that the Board can legally ignore its by-laws.

Cheers,

Chris

On 23 Jun 2015, at 20:01 , Farzanh <farzaneh.badii@gmail.com> wrote:

Thanks Malcolm, I can't agree more ! I have been battling with serious existentialist questions since there has been a shift to a soft approach to accountability. We certainly need to emphasize how the new model can give us effective and enforceable mechanisms! enforcement mechanisms can also be deterrent mechanism ! The farther we r from enforcement mechanisms the less deterred are the decision makers to make decisions against the community wishes !

On Jun 22, 2015, at 6:43 PM, Malcolm Hutty <malcolm@linx.net> wrote:

On 22/06/2015 17:52, Seun Ojedeji wrote: - Enforceability solutions other than membership: Considering the complications relating to the various membership models that has been suggested, there is obvious need to consider what is achievable within the current structure and i think everything is achievable except enforceability.

I completely agree with David McAuley's reply on this point.

Unfortunately, if you achieve "everything except enforceability", you achieve nothing more than a clarification of your request. You do not achieve accountability, only a clear statement of what you would like ICANN to do. The decision rests elsewhere.

So it seem to me that we will already have some enforceability without actually requiring membership since an organisation board is required to obey/comply with its bylaw. So if the bylaw says; before you can do xyz, it needs to go through abc process, why would the board not follow/obey those direction as defined in the bylaw?

There are many reasons why things go wrong in this world. But I do not want to suggest anything you may find fanciful or improbable or, worse, that could be interpreted as attacking our honourable current Board members.

So for now, let's just say that the Board might believe they were following the bylaws even if they were not. It is possible to err.

Beyond that though, is the problem Becky identified earlier: it seems you are mistaken when you say that an organisation's board is required to obey/comply with its bylaws. We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty. Only by creating a membership (whether through Empowered SOs, UAs, Open Membership, or some other approach) can we raise up the bylaws to something the Board must honour in the way you assume they already must.

Incidentally, I don't blame you at all for not realising this: I didn't either, and was quite surprised to be told it. But the legal advice being what it is, we must act accordingly.

-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/

London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY

Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA

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I am most familiar with the California Attorney General's practices. I can confirm that while the CA AG has broad *statutory* authority to intervene, in practice that office will only engage if a substantial waste or diversion of charitable assets or criminal activity may be involved. Merely failing to follow procedures in the bylaws will not be of interest to the AG. The AG has a form for filing complaints that is available to anyone with concerns about any charity formed or operating in California. I hope that is helpful. Rosemary Please be aware that this email is intended to provide a short response to the questions posed, without the benefit of legal research. If you would like a more thoroughly considered and researched response, please let us know. Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220<x-apple-data-detectors://0/0> San Francisco, CA 94104<x-apple-data-detectors://0/0> 415/421-7555<tel:415/421-7555> (phone) 415/421-0712<tel:415/421-0712> (fax) rfei@adlercolvin.com<mailto:rfei@adlercolvin.com> www.adlercolvin.com<http://www.adlercolvin.com/> _____________________________ The information in this e-mail message and any attachments may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any use, dissemination, distribution, or copying of this transmission is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at rfei@adlercolvin.com<mailto:rfei@adlercolvin.com>, and delete all copies of this message and its attachments, if any. Thank you. On Jun 23, 2015, at 2:38 PM, Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> wrote: Becky, I can add a real life example to support your view. When we hit a brick wall on TM50, which involved allegations of multiple Bylaws violations, I informally asked the AG's office whether they would be willing to investigate and litigate on our behalf. Although willing to investigate it was clear that even if our allegations were found to be true they did not rise to the level that would prompt AG involvement. We clearly need something more. Best, Ed Sent from my iPhone On Jun 23, 2015, at 1:04 PM, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: The authority of the AG to step in may be broader, but as a practical matter, it is my impression that this authority is usually used to address corruption and other various actions that are – or resemble – criminal behavior. I don’t think it is a meaningful source of enforcement for the issues that we are worried about. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz> From: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: Tuesday, June 23, 2015 at 10:36 AM To: Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, "Rosemary E. Fei" <rfei@adlercolvin.com<mailto:rfei@adlercolvin.com>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] FW: Townhall meeting follow-up To clarify….when I say “the public,” I include the ICANN community if the ICANN community did not have standing of its own. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Tuesday, June 23, 2015 10:00 AM To: Rosemary E. Fei; Accountability Cross Community (accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>) Subject: Re: [CCWG-ACCT] FW: Townhall meeting follow-up Thanks very much, Rosemary. A follow-up question: How and when would the California state attorney general decide to engage? Is there a way for the public to trigger an action or investigation? Thanks, Keith From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Rosemary E. Fei Sent: Tuesday, June 23, 2015 9:37 AM To: Accountability Cross Community (accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>) Subject: [CCWG-ACCT] FW: Townhall meeting follow-up I would add that state attorneys general are generally empowered to enforce against directors violations of the bylaws that breach their fiduciary duties or cause the corporation to use its assets outside its charitable purposes. I would also add that if bylaws violate the corporate law or the corporation’s own Articles of Incorporation, the board’s duty is to follow the statute or the Articles, not the bylaws. Rosemary From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Holly Gregory Sent: Tuesday, June 23, 2015 4:19 AM To: Chris Disspain; Malcolm Hutty Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Townhall meeting follow-up Chris, that is an accurate clarification. Sent with Good (www.good.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.good.com&d=AwMGaQ&c=...>) ________________________________ From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> on behalf of Chris Disspain Sent: Tuesday, June 23, 2015 06:14:45 AM To: Malcolm Hutty Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Townhall meeting follow-up Malcolm, We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty. With respect I think that is too simplistic a statement to describe what is a more complicated situation. One of the 3 legs of fiduciary duty of charitable corporation like ICANN is the duty of obedience. The duty of obedience is the duty to remain faithful to and pursue the goals of the organization. In practice, the duty of obedience requires the decision maker to follow the governing documents of the organisation and laws applicable to the organisation. Bylaws are governing documents. It would be correct to say that where there are no members or designators there is a challenge in enforcing where the Board does NOT follow but it is incorrect to say that the Board can legally ignore its by-laws. Cheers, Chris On 23 Jun 2015, at 20:01 , Farzanh <farzaneh.badii@gmail.com<mailto:farzaneh.badii@gmail.com>> wrote: Thanks Malcolm, I can't agree more ! I have been battling with serious existentialist questions since there has been a shift to a soft approach to accountability. We certainly need to emphasize how the new model can give us effective and enforceable mechanisms! enforcement mechanisms can also be deterrent mechanism ! The farther we r from enforcement mechanisms the less deterred are the decision makers to make decisions against the community wishes ! On Jun 22, 2015, at 6:43 PM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 22/06/2015 17:52, Seun Ojedeji wrote: - Enforceability solutions other than membership: Considering the complications relating to the various membership models that has been suggested, there is obvious need to consider what is achievable within the current structure and i think everything is achievable except enforceability. I completely agree with David McAuley's reply on this point. Unfortunately, if you achieve "everything except enforceability", you achieve nothing more than a clarification of your request. You do not achieve accountability, only a clear statement of what you would like ICANN to do. The decision rests elsewhere. So it seem to me that we will already have some enforceability without actually requiring membership since an organisation board is required to obey/comply with its bylaw. So if the bylaw says; before you can do xyz, it needs to go through abc process, why would the board not follow/obey those direction as defined in the bylaw? There are many reasons why things go wrong in this world. But I do not want to suggest anything you may find fanciful or improbable or, worse, that could be interpreted as attacking our honourable current Board members. So for now, let's just say that the Board might believe they were following the bylaws even if they were not. It is possible to err. Beyond that though, is the problem Becky identified earlier: it seems you are mistaken when you say that an organisation's board is required to obey/comply with its bylaws. We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty. Only by creating a membership (whether through Empowered SOs, UAs, Open Membership, or some other approach) can we raise up the bylaws to something the Board must honour in the way you assume they already must. Incidentally, I don't blame you at all for not realising this: I didn't either, and was quite surprised to be told it. But the legal advice being what it is, we must act accordingly. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/<https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=AwMFAg&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=FK7b8kVkEMK2_MPHl9hkBB7An6cxn_MT87wTkCBHb7A&s=HKkuAJD_EoWIurwvGKRqFN2KzTLHIgIiahmB-XGCSkE&e=> London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=5REu8DLqGEuhW1x3ub1_95re1LtPPdA8HkKxkEJVmTc&s=aPYmAzEKHaNBhBWObiEhd0_6cCTdHlTo2qe1K02_UjU&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=5REu8DLqGEuhW1x3ub1_95re1LtPPdA8HkKxkEJVmTc&s=aPYmAzEKHaNBhBWObiEhd0_6cCTdHlTo2qe1K02_UjU&e=> **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. 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Malcolm said: Beyond that though, is the problem Becky identified earlier: it seems

you are mistaken when you say that an organisation's board is required to obey/comply with its bylaws. We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty. Only by creating a membership (whether through Empowered SOs, UAs, Open Membership, or some other approach) can we raise up the bylaws to something the Board must honour in the way you assume they already must.

I think the issue is a little more nuanced Malcolm, so I apologize if I oversimplified. Bylaws consist of words, which are subject to various interpretations. The Board must interpret and apply the bylaws in light of its fiduciary obligations. In a membership organization, the SOs and ACs would have a meaningful way to participate in and effect that interpretation and application process.