Thinking ahead - overcoming the legal obstacles to accountability
Hello all, There have been no less than seven previous attempts to introduce real accountability at ICANN. They have all failed to achieve a fundamental goal: override or impact ICANN corporate (under whatever circumstances). In the specific cases where the override recommendations have been explicit, they have been undermined at the last step by ICANN internal legal advice. This group has, to some degree, learned from the past by deciding that it needs to get independent legal advice for its recommendations as part of the process. Even more usefully, ICANN's legal team has been prompted into providing its own legal analysis so we know what its position is ahead of time. Aside from the fact that I think allowing ICANN to pay for the external independent legal advice is foolish in the extreme, I see two fundamental issues for this group to discuss and reach agreement on if this process is to have the desired end result. And they are: 1. What happens if/when the independent legal advice say a particular mechanism is perfectly legal but ICANN's internal legal advice say it isn't? What will Board members do? How do we ensure this discussion happens publicly and with plenty of time remaining? I think we should ask Board members now what they would do. Would they be willing to override internal legal advice, and under what circumstances? Will they commit to some kind of binding arbitration in the event that the two legal advices conflict in fundamentally important ways? This is an almost inevitable scenario so let's get ahead of it now and make reasoned decisions before the pressure and politics come into play. Plan ahead. 2. A fundamentally piece of the accountability mechanisms that are likely to be recommended includes making ICANN a member organization of some type. We have Jones Day on record as saying that don't think California law allows anyone but the Board to make final decisions (in fact, they don't actually say that if you read it carefully because they know it's not true). What we don't have is Jones Day/ICANN on record talking about the other legal get-out clause they have used in the past when it comes to accountability: anti-trust law. ICANN's particular interpretation of anti-trust law has been pulled out as a final defense multiple times but I haven't seen it yet in this latest round of accountability discussions, so it is more than possible that it is holding back that particular defense now that the "California law corporate code" genie is out of the bottle. I can easily see a scenario where we all agree that it is possible to make these changes under California corporate law and then agree to hand over IANA to ICANN only to find that the Board discovers at the last minute that they also violate anti-trust law and so, regretfully, cannot be implemented. So I would ask this group to try to get ICANN's formal position on anti-trust law with respect to possible changes and also get independent legal advice on that aspect too. I would also recommend that people go through previous failures to introduce recommendations and try to find what the legal justifications were that prevented them from being implemented. And then do the same pre-emptive work so we don't end up repeating history. Hope this is useful. Kieren
Hi Kieren, May I suggest that we express our emotions using more friendly words (! foolish). That said, I think you raised good point; issue 2 seem to be a stress test case of issue 1 and I would suggest it is added to the existing list of stress test scenarios.
From what I gathered so far ( including from ICANN 52), this process seem to be beyond business as usual, Especially as we heard the board confirm it won't alter the outcome of this process when presenting to NTIA.
One other thing that may be important though is to ensure implementation is a perquisite to transition [which i fear will also further confirm the reality of !transition by Sept :( ] Cheers! sent from Google nexus 4 kindly excuse brevity and typos. On 17 Feb 2015 20:13, "Kieren McCarthy" <kieren@kierenmccarthy.com> wrote:
Hello all,
There have been no less than seven previous attempts to introduce real accountability at ICANN. They have all failed to achieve a fundamental goal: override or impact ICANN corporate (under whatever circumstances).
In the specific cases where the override recommendations have been explicit, they have been undermined at the last step by ICANN internal legal advice.
This group has, to some degree, learned from the past by deciding that it needs to get independent legal advice for its recommendations as part of the process.
Even more usefully, ICANN's legal team has been prompted into providing its own legal analysis so we know what its position is ahead of time.
Aside from the fact that I think allowing ICANN to pay for the external independent legal advice is foolish in the extreme, I see two fundamental issues for this group to discuss and reach agreement on if this process is to have the desired end result.
And they are:
1. What happens if/when the independent legal advice say a particular mechanism is perfectly legal but ICANN's internal legal advice say it isn't?
What will Board members do? How do we ensure this discussion happens publicly and with plenty of time remaining?
I think we should ask Board members now what they would do. Would they be willing to override internal legal advice, and under what circumstances? Will they commit to some kind of binding arbitration in the event that the two legal advices conflict in fundamentally important ways?
This is an almost inevitable scenario so let's get ahead of it now and make reasoned decisions before the pressure and politics come into play. Plan ahead.
2. A fundamentally piece of the accountability mechanisms that are likely to be recommended includes making ICANN a member organization of some type.
We have Jones Day on record as saying that don't think California law allows anyone but the Board to make final decisions (in fact, they don't actually say that if you read it carefully because they know it's not true).
What we don't have is Jones Day/ICANN on record talking about the other legal get-out clause they have used in the past when it comes to accountability: anti-trust law.
ICANN's particular interpretation of anti-trust law has been pulled out as a final defense multiple times but I haven't seen it yet in this latest round of accountability discussions, so it is more than possible that it is holding back that particular defense now that the "California law corporate code" genie is out of the bottle.
I can easily see a scenario where we all agree that it is possible to make these changes under California corporate law and then agree to hand over IANA to ICANN only to find that the Board discovers at the last minute that they also violate anti-trust law and so, regretfully, cannot be implemented.
So I would ask this group to try to get ICANN's formal position on anti-trust law with respect to possible changes and also get independent legal advice on that aspect too.
I would also recommend that people go through previous failures to introduce recommendations and try to find what the legal justifications were that prevented them from being implemented. And then do the same pre-emptive work so we don't end up repeating history.
Hope this is useful.
Kieren
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
May I suggest that we express our emotions using more friendly words (! foolish).
I'm not sure why the use of "foolish" concerns you so much, Seun. I think it *is* foolish to allow ICANN to pay for independent advice that we would expect to contradict its own legal advice and on a topic of supreme importance to the organization. I could say "ill advised" or "unwise" or "incautious" but that would be fake diplomacy on my part. I mean "foolish". I wouldn't use, say, "idiotic" or "stupid" because they would imply people here are not intelligent when they clearly are. But even very smart people can be foolish. Kieren On Tue, Feb 17, 2015 at 11:54 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Kieren,
May I suggest that we express our emotions using more friendly words (! foolish). That said, I think you raised good point; issue 2 seem to be a stress test case of issue 1 and I would suggest it is added to the existing list of stress test scenarios.
From what I gathered so far ( including from ICANN 52), this process seem to be beyond business as usual, Especially as we heard the board confirm it won't alter the outcome of this process when presenting to NTIA.
One other thing that may be important though is to ensure implementation is a perquisite to transition [which i fear will also further confirm the reality of !transition by Sept :( ]
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos. On 17 Feb 2015 20:13, "Kieren McCarthy" <kieren@kierenmccarthy.com> wrote:
Hello all,
There have been no less than seven previous attempts to introduce real accountability at ICANN. They have all failed to achieve a fundamental goal: override or impact ICANN corporate (under whatever circumstances).
In the specific cases where the override recommendations have been explicit, they have been undermined at the last step by ICANN internal legal advice.
This group has, to some degree, learned from the past by deciding that it needs to get independent legal advice for its recommendations as part of the process.
Even more usefully, ICANN's legal team has been prompted into providing its own legal analysis so we know what its position is ahead of time.
Aside from the fact that I think allowing ICANN to pay for the external independent legal advice is foolish in the extreme, I see two fundamental issues for this group to discuss and reach agreement on if this process is to have the desired end result.
And they are:
1. What happens if/when the independent legal advice say a particular mechanism is perfectly legal but ICANN's internal legal advice say it isn't?
What will Board members do? How do we ensure this discussion happens publicly and with plenty of time remaining?
I think we should ask Board members now what they would do. Would they be willing to override internal legal advice, and under what circumstances? Will they commit to some kind of binding arbitration in the event that the two legal advices conflict in fundamentally important ways?
This is an almost inevitable scenario so let's get ahead of it now and make reasoned decisions before the pressure and politics come into play. Plan ahead.
2. A fundamentally piece of the accountability mechanisms that are likely to be recommended includes making ICANN a member organization of some type.
We have Jones Day on record as saying that don't think California law allows anyone but the Board to make final decisions (in fact, they don't actually say that if you read it carefully because they know it's not true).
What we don't have is Jones Day/ICANN on record talking about the other legal get-out clause they have used in the past when it comes to accountability: anti-trust law.
ICANN's particular interpretation of anti-trust law has been pulled out as a final defense multiple times but I haven't seen it yet in this latest round of accountability discussions, so it is more than possible that it is holding back that particular defense now that the "California law corporate code" genie is out of the bottle.
I can easily see a scenario where we all agree that it is possible to make these changes under California corporate law and then agree to hand over IANA to ICANN only to find that the Board discovers at the last minute that they also violate anti-trust law and so, regretfully, cannot be implemented.
So I would ask this group to try to get ICANN's formal position on anti-trust law with respect to possible changes and also get independent legal advice on that aspect too.
I would also recommend that people go through previous failures to introduce recommendations and try to find what the legal justifications were that prevented them from being implemented. And then do the same pre-emptive work so we don't end up repeating history.
Hope this is useful.
Kieren
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Kieren, I don't think it is foolish at all to have ICANN pay for the independent advice. It is not uncommon for one party to pay the bill and for another party to be the client. It's not even uncommon to have a board committee of a corporation hire independent counsel where the committee's interests are divergent from the corporation (e.g., when dealing with an internal investigation) and have the corporation pay. These are situations that law firms are comfortable handling. Basically, the question is "who is the client?" and the client would be the Working Group(s), not ICANN. The law firm's ethical "duty of loyalty" is to the client, not the entity paying the bills. Given that these ethical rules are in fact taken very seriously and that these are all firms that likely have over $1 billion in revenues, the temptation to "cheat" and be ICANN-friendly would be basically non-existent. What would be foolish would be to fail to set up the relationship between the firm and the Working Group(s) in the ways needed to maintain "independence." and/or to then fail to govern ourselves (and for ICANN to govern itself) in a way that preserves that independence. That would be a huge waste of time, money and effort, likely set back transition schedules, and send a terrible message regarding ICANN's accountability and self-control. Greg On Tue, Feb 17, 2015 at 4:42 PM, Kieren McCarthy <kieren@kierenmccarthy.com> wrote:
May I suggest that we express our emotions using more friendly words (! foolish).
I'm not sure why the use of "foolish" concerns you so much, Seun. I think it *is* foolish to allow ICANN to pay for independent advice that we would expect to contradict its own legal advice and on a topic of supreme importance to the organization.
I could say "ill advised" or "unwise" or "incautious" but that would be fake diplomacy on my part. I mean "foolish". I wouldn't use, say, "idiotic" or "stupid" because they would imply people here are not intelligent when they clearly are. But even very smart people can be foolish.
Kieren
On Tue, Feb 17, 2015 at 11:54 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Kieren,
May I suggest that we express our emotions using more friendly words (! foolish). That said, I think you raised good point; issue 2 seem to be a stress test case of issue 1 and I would suggest it is added to the existing list of stress test scenarios.
From what I gathered so far ( including from ICANN 52), this process seem to be beyond business as usual, Especially as we heard the board confirm it won't alter the outcome of this process when presenting to NTIA.
One other thing that may be important though is to ensure implementation is a perquisite to transition [which i fear will also further confirm the reality of !transition by Sept :( ]
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos. On 17 Feb 2015 20:13, "Kieren McCarthy" <kieren@kierenmccarthy.com> wrote:
Hello all,
There have been no less than seven previous attempts to introduce real accountability at ICANN. They have all failed to achieve a fundamental goal: override or impact ICANN corporate (under whatever circumstances).
In the specific cases where the override recommendations have been explicit, they have been undermined at the last step by ICANN internal legal advice.
This group has, to some degree, learned from the past by deciding that it needs to get independent legal advice for its recommendations as part of the process.
Even more usefully, ICANN's legal team has been prompted into providing its own legal analysis so we know what its position is ahead of time.
Aside from the fact that I think allowing ICANN to pay for the external independent legal advice is foolish in the extreme, I see two fundamental issues for this group to discuss and reach agreement on if this process is to have the desired end result.
And they are:
1. What happens if/when the independent legal advice say a particular mechanism is perfectly legal but ICANN's internal legal advice say it isn't?
What will Board members do? How do we ensure this discussion happens publicly and with plenty of time remaining?
I think we should ask Board members now what they would do. Would they be willing to override internal legal advice, and under what circumstances? Will they commit to some kind of binding arbitration in the event that the two legal advices conflict in fundamentally important ways?
This is an almost inevitable scenario so let's get ahead of it now and make reasoned decisions before the pressure and politics come into play. Plan ahead.
2. A fundamentally piece of the accountability mechanisms that are likely to be recommended includes making ICANN a member organization of some type.
We have Jones Day on record as saying that don't think California law allows anyone but the Board to make final decisions (in fact, they don't actually say that if you read it carefully because they know it's not true).
What we don't have is Jones Day/ICANN on record talking about the other legal get-out clause they have used in the past when it comes to accountability: anti-trust law.
ICANN's particular interpretation of anti-trust law has been pulled out as a final defense multiple times but I haven't seen it yet in this latest round of accountability discussions, so it is more than possible that it is holding back that particular defense now that the "California law corporate code" genie is out of the bottle.
I can easily see a scenario where we all agree that it is possible to make these changes under California corporate law and then agree to hand over IANA to ICANN only to find that the Board discovers at the last minute that they also violate anti-trust law and so, regretfully, cannot be implemented.
So I would ask this group to try to get ICANN's formal position on anti-trust law with respect to possible changes and also get independent legal advice on that aspect too.
I would also recommend that people go through previous failures to introduce recommendations and try to find what the legal justifications were that prevented them from being implemented. And then do the same pre-emptive work so we don't end up repeating history.
Hope this is useful.
Kieren
_______________________________________________ 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
-- *Gregory S. Shatan **ï* *Abelman Frayne & Schwab* *Partner* *| IP | Technology | Media | Internet* *666 Third Avenue | New York, NY 10017-5621* *Direct* 212-885-9253 *| **Main* 212-949-9022 *Fax* 212-949-9190 *|* *Cell *917-816-6428 *gsshatan@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com>* *www.lawabel.com <http://www.lawabel.com/>*
Excellent explanation of a component of American legal practice that non-Americans or non-lawyers may not be familiar with. Thank you very much Greg. Sent from my iPad
On Feb 17, 2015, at 9:58 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kieren,
I don't think it is foolish at all to have ICANN pay for the independent advice. It is not uncommon for one party to pay the bill and for another party to be the client. It's not even uncommon to have a board committee of a corporation hire independent counsel where the committee's interests are divergent from the corporation (e.g., when dealing with an internal investigation) and have the corporation pay. These are situations that law firms are comfortable handling. Basically, the question is "who is the client?" and the client would be the Working Group(s), not ICANN. The law firm's ethical "duty of loyalty" is to the client, not the entity paying the bills. Given that these ethical rules are in fact taken very seriously and that these are all firms that likely have over $1 billion in revenues, the temptation to "cheat" and be ICANN-friendly would be basically non-existent.
What would be foolish would be to fail to set up the relationship between the firm and the Working Group(s) in the ways needed to maintain "independence." and/or to then fail to govern ourselves (and for ICANN to govern itself) in a way that preserves that independence. That would be a huge waste of time, money and effort, likely set back transition schedules, and send a terrible message regarding ICANN's accountability and self-control.
Greg
On Tue, Feb 17, 2015 at 4:42 PM, Kieren McCarthy <kieren@kierenmccarthy.com> wrote:
May I suggest that we express our emotions using more friendly words (! foolish).
I'm not sure why the use of "foolish" concerns you so much, Seun. I think it *is* foolish to allow ICANN to pay for independent advice that we would expect to contradict its own legal advice and on a topic of supreme importance to the organization.
I could say "ill advised" or "unwise" or "incautious" but that would be fake diplomacy on my part. I mean "foolish". I wouldn't use, say, "idiotic" or "stupid" because they would imply people here are not intelligent when they clearly are. But even very smart people can be foolish.
Kieren
On Tue, Feb 17, 2015 at 11:54 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote: Hi Kieren,
May I suggest that we express our emotions using more friendly words (! foolish). That said, I think you raised good point; issue 2 seem to be a stress test case of issue 1 and I would suggest it is added to the existing list of stress test scenarios.
From what I gathered so far ( including from ICANN 52), this process seem to be beyond business as usual, Especially as we heard the board confirm it won't alter the outcome of this process when presenting to NTIA.
One other thing that may be important though is to ensure implementation is a perquisite to transition [which i fear will also further confirm the reality of !transition by Sept :( ]
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos.
On 17 Feb 2015 20:13, "Kieren McCarthy" <kieren@kierenmccarthy.com> wrote: Hello all,
There have been no less than seven previous attempts to introduce real accountability at ICANN. They have all failed to achieve a fundamental goal: override or impact ICANN corporate (under whatever circumstances).
In the specific cases where the override recommendations have been explicit, they have been undermined at the last step by ICANN internal legal advice.
This group has, to some degree, learned from the past by deciding that it needs to get independent legal advice for its recommendations as part of the process.
Even more usefully, ICANN's legal team has been prompted into providing its own legal analysis so we know what its position is ahead of time.
Aside from the fact that I think allowing ICANN to pay for the external independent legal advice is foolish in the extreme, I see two fundamental issues for this group to discuss and reach agreement on if this process is to have the desired end result.
And they are:
1. What happens if/when the independent legal advice say a particular mechanism is perfectly legal but ICANN's internal legal advice say it isn't?
What will Board members do? How do we ensure this discussion happens publicly and with plenty of time remaining?
I think we should ask Board members now what they would do. Would they be willing to override internal legal advice, and under what circumstances? Will they commit to some kind of binding arbitration in the event that the two legal advices conflict in fundamentally important ways?
This is an almost inevitable scenario so let's get ahead of it now and make reasoned decisions before the pressure and politics come into play. Plan ahead.
2. A fundamentally piece of the accountability mechanisms that are likely to be recommended includes making ICANN a member organization of some type.
We have Jones Day on record as saying that don't think California law allows anyone but the Board to make final decisions (in fact, they don't actually say that if you read it carefully because they know it's not true).
What we don't have is Jones Day/ICANN on record talking about the other legal get-out clause they have used in the past when it comes to accountability: anti-trust law.
ICANN's particular interpretation of anti-trust law has been pulled out as a final defense multiple times but I haven't seen it yet in this latest round of accountability discussions, so it is more than possible that it is holding back that particular defense now that the "California law corporate code" genie is out of the bottle.
I can easily see a scenario where we all agree that it is possible to make these changes under California corporate law and then agree to hand over IANA to ICANN only to find that the Board discovers at the last minute that they also violate anti-trust law and so, regretfully, cannot be implemented.
So I would ask this group to try to get ICANN's formal position on anti-trust law with respect to possible changes and also get independent legal advice on that aspect too.
I would also recommend that people go through previous failures to introduce recommendations and try to find what the legal justifications were that prevented them from being implemented. And then do the same pre-emptive work so we don't end up repeating history.
Hope this is useful.
Kieren
_______________________________________________ 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
-- Gregory S. Shatan ï Abelman Frayne & Schwab Partner | IP | Technology | Media | Internet 666 Third Avenue | New York, NY 10017-5621 Direct 212-885-9253 | Main 212-949-9022 Fax 212-949-9190 | Cell 917-816-6428 gsshatan@lawabel.com ICANN-related: gregshatanipc@gmail.com www.lawabel.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Agreed. It would be remiss not to take available ICANN funds to hire qualified and expert counsel on these important questions. Those funds have been derived from the community, primarily in the form of registrant fees upstreamed through contracted parties. As Greg observed, so long as the WG has the autonomy to select the law firm and the WG and not ICANN is its client, the advice it renders will be independent of ICANN’s views and corporate interest. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Edward Morris Sent: Tuesday, February 17, 2015 5:03 PM To: Greg Shatan Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Thinking ahead - overcoming the legal obstacles to accountability Excellent explanation of a component of American legal practice that non-Americans or non-lawyers may not be familiar with. Thank you very much Greg. Sent from my iPad On Feb 17, 2015, at 9:58 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Kieren, I don't think it is foolish at all to have ICANN pay for the independent advice. It is not uncommon for one party to pay the bill and for another party to be the client. It's not even uncommon to have a board committee of a corporation hire independent counsel where the committee's interests are divergent from the corporation (e.g., when dealing with an internal investigation) and have the corporation pay. These are situations that law firms are comfortable handling. Basically, the question is "who is the client?" and the client would be the Working Group(s), not ICANN. The law firm's ethical "duty of loyalty" is to the client, not the entity paying the bills. Given that these ethical rules are in fact taken very seriously and that these are all firms that likely have over $1 billion in revenues, the temptation to "cheat" and be ICANN-friendly would be basically non-existent. What would be foolish would be to fail to set up the relationship between the firm and the Working Group(s) in the ways needed to maintain "independence." and/or to then fail to govern ourselves (and for ICANN to govern itself) in a way that preserves that independence. That would be a huge waste of time, money and effort, likely set back transition schedules, and send a terrible message regarding ICANN's accountability and self-control. Greg On Tue, Feb 17, 2015 at 4:42 PM, Kieren McCarthy <kieren@kierenmccarthy.com<mailto:kieren@kierenmccarthy.com>> wrote:
May I suggest that we express our emotions using more friendly words (! foolish).
I'm not sure why the use of "foolish" concerns you so much, Seun. I think it *is* foolish to allow ICANN to pay for independent advice that we would expect to contradict its own legal advice and on a topic of supreme importance to the organization. I could say "ill advised" or "unwise" or "incautious" but that would be fake diplomacy on my part. I mean "foolish". I wouldn't use, say, "idiotic" or "stupid" because they would imply people here are not intelligent when they clearly are. But even very smart people can be foolish. Kieren On Tue, Feb 17, 2015 at 11:54 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Hi Kieren, May I suggest that we express our emotions using more friendly words (! foolish). That said, I think you raised good point; issue 2 seem to be a stress test case of issue 1 and I would suggest it is added to the existing list of stress test scenarios. From what I gathered so far ( including from ICANN 52), this process seem to be beyond business as usual, Especially as we heard the board confirm it won't alter the outcome of this process when presenting to NTIA. One other thing that may be important though is to ensure implementation is a perquisite to transition [which i fear will also further confirm the reality of !transition by Sept :( ] Cheers! sent from Google nexus 4 kindly excuse brevity and typos. On 17 Feb 2015 20:13, "Kieren McCarthy" <kieren@kierenmccarthy.com<mailto:kieren@kierenmccarthy.com>> wrote: Hello all, There have been no less than seven previous attempts to introduce real accountability at ICANN. They have all failed to achieve a fundamental goal: override or impact ICANN corporate (under whatever circumstances). In the specific cases where the override recommendations have been explicit, they have been undermined at the last step by ICANN internal legal advice. This group has, to some degree, learned from the past by deciding that it needs to get independent legal advice for its recommendations as part of the process. Even more usefully, ICANN's legal team has been prompted into providing its own legal analysis so we know what its position is ahead of time. Aside from the fact that I think allowing ICANN to pay for the external independent legal advice is foolish in the extreme, I see two fundamental issues for this group to discuss and reach agreement on if this process is to have the desired end result. And they are: 1. What happens if/when the independent legal advice say a particular mechanism is perfectly legal but ICANN's internal legal advice say it isn't? What will Board members do? How do we ensure this discussion happens publicly and with plenty of time remaining? I think we should ask Board members now what they would do. Would they be willing to override internal legal advice, and under what circumstances? Will they commit to some kind of binding arbitration in the event that the two legal advices conflict in fundamentally important ways? This is an almost inevitable scenario so let's get ahead of it now and make reasoned decisions before the pressure and politics come into play. Plan ahead. 2. A fundamentally piece of the accountability mechanisms that are likely to be recommended includes making ICANN a member organization of some type. We have Jones Day on record as saying that don't think California law allows anyone but the Board to make final decisions (in fact, they don't actually say that if you read it carefully because they know it's not true). What we don't have is Jones Day/ICANN on record talking about the other legal get-out clause they have used in the past when it comes to accountability: anti-trust law. ICANN's particular interpretation of anti-trust law has been pulled out as a final defense multiple times but I haven't seen it yet in this latest round of accountability discussions, so it is more than possible that it is holding back that particular defense now that the "California law corporate code" genie is out of the bottle. I can easily see a scenario where we all agree that it is possible to make these changes under California corporate law and then agree to hand over IANA to ICANN only to find that the Board discovers at the last minute that they also violate anti-trust law and so, regretfully, cannot be implemented. So I would ask this group to try to get ICANN's formal position on anti-trust law with respect to possible changes and also get independent legal advice on that aspect too. I would also recommend that people go through previous failures to introduce recommendations and try to find what the legal justifications were that prevented them from being implemented. And then do the same pre-emptive work so we don't end up repeating history. Hope this is useful. Kieren _______________________________________________ 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 -- Gregory S. Shatan • Abelman Frayne & Schwab Partner | IP | Technology | Media | Internet 666 Third Avenue | New York, NY 10017-5621 Direct 212-885-9253 | Main 212-949-9022 Fax 212-949-9190 | Cell 917-816-6428 gsshatan@lawabel.com<mailto:gsshatan@lawabel.com> ICANN-related: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> www.lawabel.com<http://www.lawabel.com/> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5646 / Virus Database: 4284/9131 - Release Date: 02/17/15
Thanks Greg for the clarity of explanation to a UK based non lawyer. Absolutely, I agree. It should be up to the WG to select the appropriate law firm with the CCWG- Accountability as its client with ICANN picking up the tab. When and how does the WG put together the criteria for a RFP ? I would thought the “said law firm counsel “needs to as far removed from the State of California as possible - to ensure complete independence and any potential conflicts of interest. Regards, Phil From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Phil Corwin Sent: 17 February 2015 22:08 To: Edward Morris; Greg Shatan Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Thinking ahead - overcoming the legal obstacles to accountability Agreed. It would be remiss not to take available ICANN funds to hire qualified and expert counsel on these important questions. Those funds have been derived from the community, primarily in the form of registrant fees upstreamed through contracted parties. As Greg observed, so long as the WG has the autonomy to select the law firm and the WG and not ICANN is its client, the advice it renders will be independent of ICANN’s views and corporate interest. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Edward Morris Sent: Tuesday, February 17, 2015 5:03 PM To: Greg Shatan Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Thinking ahead - overcoming the legal obstacles to accountability Excellent explanation of a component of American legal practice that non-Americans or non-lawyers may not be familiar with. Thank you very much Greg. Sent from my iPad On Feb 17, 2015, at 9:58 PM, Greg Shatan <gregshatanipc@gmail.com> wrote: Kieren, I don't think it is foolish at all to have ICANN pay for the independent advice. It is not uncommon for one party to pay the bill and for another party to be the client. It's not even uncommon to have a board committee of a corporation hire independent counsel where the committee's interests are divergent from the corporation (e.g., when dealing with an internal investigation) and have the corporation pay. These are situations that law firms are comfortable handling. Basically, the question is "who is the client?" and the client would be the Working Group(s), not ICANN. The law firm's ethical "duty of loyalty" is to the client, not the entity paying the bills. Given that these ethical rules are in fact taken very seriously and that these are all firms that likely have over $1 billion in revenues, the temptation to "cheat" and be ICANN-friendly would be basically non-existent. What would be foolish would be to fail to set up the relationship between the firm and the Working Group(s) in the ways needed to maintain "independence." and/or to then fail to govern ourselves (and for ICANN to govern itself) in a way that preserves that independence. That would be a huge waste of time, money and effort, likely set back transition schedules, and send a terrible message regarding ICANN's accountability and self-control. Greg On Tue, Feb 17, 2015 at 4:42 PM, Kieren McCarthy <kieren@kierenmccarthy.com> wrote:
May I suggest that we express our emotions using more friendly words (! foolish).
I'm not sure why the use of "foolish" concerns you so much, Seun. I think it *is* foolish to allow ICANN to pay for independent advice that we would expect to contradict its own legal advice and on a topic of supreme importance to the organization. I could say "ill advised" or "unwise" or "incautious" but that would be fake diplomacy on my part. I mean "foolish". I wouldn't use, say, "idiotic" or "stupid" because they would imply people here are not intelligent when they clearly are. But even very smart people can be foolish. Kieren On Tue, Feb 17, 2015 at 11:54 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote: Hi Kieren, May I suggest that we express our emotions using more friendly words (! foolish). That said, I think you raised good point; issue 2 seem to be a stress test case of issue 1 and I would suggest it is added to the existing list of stress test scenarios.
From what I gathered so far ( including from ICANN 52), this process seem to be beyond business as usual, Especially as we heard the board confirm it won't alter the outcome of this process when presenting to NTIA.
One other thing that may be important though is to ensure implementation is a perquisite to transition [which i fear will also further confirm the reality of !transition by Sept :( ] Cheers! sent from Google nexus 4 kindly excuse brevity and typos. On 17 Feb 2015 20:13, "Kieren McCarthy" <kieren@kierenmccarthy.com> wrote: Hello all, There have been no less than seven previous attempts to introduce real accountability at ICANN. They have all failed to achieve a fundamental goal: override or impact ICANN corporate (under whatever circumstances). In the specific cases where the override recommendations have been explicit, they have been undermined at the last step by ICANN internal legal advice. This group has, to some degree, learned from the past by deciding that it needs to get independent legal advice for its recommendations as part of the process. Even more usefully, ICANN's legal team has been prompted into providing its own legal analysis so we know what its position is ahead of time. Aside from the fact that I think allowing ICANN to pay for the external independent legal advice is foolish in the extreme, I see two fundamental issues for this group to discuss and reach agreement on if this process is to have the desired end result. And they are: 1. What happens if/when the independent legal advice say a particular mechanism is perfectly legal but ICANN's internal legal advice say it isn't? What will Board members do? How do we ensure this discussion happens publicly and with plenty of time remaining? I think we should ask Board members now what they would do. Would they be willing to override internal legal advice, and under what circumstances? Will they commit to some kind of binding arbitration in the event that the two legal advices conflict in fundamentally important ways? This is an almost inevitable scenario so let's get ahead of it now and make reasoned decisions before the pressure and politics come into play. Plan ahead. 2. A fundamentally piece of the accountability mechanisms that are likely to be recommended includes making ICANN a member organization of some type. We have Jones Day on record as saying that don't think California law allows anyone but the Board to make final decisions (in fact, they don't actually say that if you read it carefully because they know it's not true). What we don't have is Jones Day/ICANN on record talking about the other legal get-out clause they have used in the past when it comes to accountability: anti-trust law. ICANN's particular interpretation of anti-trust law has been pulled out as a final defense multiple times but I haven't seen it yet in this latest round of accountability discussions, so it is more than possible that it is holding back that particular defense now that the "California law corporate code" genie is out of the bottle. I can easily see a scenario where we all agree that it is possible to make these changes under California corporate law and then agree to hand over IANA to ICANN only to find that the Board discovers at the last minute that they also violate anti-trust law and so, regretfully, cannot be implemented. So I would ask this group to try to get ICANN's formal position on anti-trust law with respect to possible changes and also get independent legal advice on that aspect too. I would also recommend that people go through previous failures to introduce recommendations and try to find what the legal justifications were that prevented them from being implemented. And then do the same pre-emptive work so we don't end up repeating history. Hope this is useful. Kieren _______________________________________________ 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 -- Gregory S. Shatan ï Abelman Frayne & Schwab Partner | IP | Technology | Media | Internet 666 Third Avenue | New York, NY 10017-5621 Direct 212-885-9253 | Main 212-949-9022 Fax 212-949-9190 | Cell 917-816-6428 gsshatan@lawabel.com ICANN-related: gregshatanipc@gmail.com www.lawabel.com <http://www.lawabel.com/> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _____ No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.5646 / Virus Database: 4284/9131 - Release Date: 02/17/15
Phil, I don't think we have time for an RFP process, nor do I think one is necessary. In my experience, only a small percentage of legal engagements come via an RFP process. The process is already underway. We have been putting together criteria for the right lawyer/firm, and coordinating between the CWG and the CCWG. We have also been making inquiries and doing research to identify "best of breed" firms in the substantive areas we require. Given that many of the accountability remedies and stress tests pose issues under California law, getting far away from California would be ill-advised, since we need expertise in California law. If there are conflicts, they will be identified in the process. If there are no conflicts, I don't think that being located in the State of California will create any issues for independence (ICANN is not a behemoth, like, e.g., General Motors in Detroit in the 1950's). Likely, any firm we choose will have offices in California and a number of other places (inside and outside the U.S.). Please note I'm speaking for myself and not for others involved in the lawyer-finding process (though I believe they will likely agree with me). Greg On Tue, Feb 17, 2015 at 6:17 PM, Phil Buckingham <phil@dotadvice.co.uk> wrote:
Thanks Greg for the clarity of explanation to a UK based non lawyer.
Absolutely, I agree. It should be up to the WG to select the appropriate law firm with the CCWG- Accountability as its client with ICANN picking up the tab.
When and how does the WG put together the criteria for a RFP ? I would thought the “said law firm counsel “needs to as far removed from the State of California as possible - to ensure complete independence and any potential conflicts of interest.
Regards,
Phil
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Phil Corwin *Sent:* 17 February 2015 22:08 *To:* Edward Morris; Greg Shatan
*Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Thinking ahead - overcoming the legal obstacles to accountability
Agreed.
It would be remiss not to take available ICANN funds to hire qualified and expert counsel on these important questions. Those funds have been derived from the community, primarily in the form of registrant fees upstreamed through contracted parties.
As Greg observed, so long as the WG has the autonomy to select the law firm and the WG and not ICANN is its client, the advice it renders will be independent of ICANN’s views and corporate interest.
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597 <202-559-8597>/Direct*
*202-559-8750 <202-559-8750>/Fax*
*202-255-6172 <202-255-6172>/cell*
*Twitter: @VlawDC*
*"Luck is the residue of design" -- Branch Rickey*
*From:* accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Edward Morris *Sent:* Tuesday, February 17, 2015 5:03 PM *To:* Greg Shatan *Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Thinking ahead - overcoming the legal obstacles to accountability
Excellent explanation of a component of American legal practice that non-Americans or non-lawyers may not be familiar with. Thank you very much Greg.
Sent from my iPad
On Feb 17, 2015, at 9:58 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kieren,
I don't think it is foolish at all to have ICANN pay for the independent advice. It is not uncommon for one party to pay the bill and for another party to be the client. It's not even uncommon to have a board committee of a corporation hire independent counsel where the committee's interests are divergent from the corporation (e.g., when dealing with an internal investigation) and have the corporation pay. These are situations that law firms are comfortable handling. Basically, the question is "who is the client?" and the client would be the Working Group(s), not ICANN. The law firm's ethical "duty of loyalty" is to the client, not the entity paying the bills. Given that these ethical rules are in fact taken very seriously and that these are all firms that likely have over $1 billion in revenues, the temptation to "cheat" and be ICANN-friendly would be basically non-existent.
What would be foolish would be to fail to set up the relationship between the firm and the Working Group(s) in the ways needed to maintain "independence." and/or to then fail to govern ourselves (and for ICANN to govern itself) in a way that preserves that independence. That would be a huge waste of time, money and effort, likely set back transition schedules, and send a terrible message regarding ICANN's accountability and self-control.
Greg
On Tue, Feb 17, 2015 at 4:42 PM, Kieren McCarthy < kieren@kierenmccarthy.com> wrote:
May I suggest that we express our emotions using more friendly words (! foolish).
I'm not sure why the use of "foolish" concerns you so much, Seun. I think it *is* foolish to allow ICANN to pay for independent advice that we would expect to contradict its own legal advice and on a topic of supreme importance to the organization.
I could say "ill advised" or "unwise" or "incautious" but that would be fake diplomacy on my part. I mean "foolish". I wouldn't use, say, "idiotic" or "stupid" because they would imply people here are not intelligent when they clearly are. But even very smart people can be foolish.
Kieren
On Tue, Feb 17, 2015 at 11:54 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Kieren,
May I suggest that we express our emotions using more friendly words (! foolish). That said, I think you raised good point; issue 2 seem to be a stress test case of issue 1 and I would suggest it is added to the existing list of stress test scenarios.
From what I gathered so far ( including from ICANN 52), this process seem to be beyond business as usual, Especially as we heard the board confirm it won't alter the outcome of this process when presenting to NTIA.
One other thing that may be important though is to ensure implementation is a perquisite to transition [which i fear will also further confirm the reality of !transition by Sept :( ]
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos.
On 17 Feb 2015 20:13, "Kieren McCarthy" <kieren@kierenmccarthy.com> wrote:
Hello all,
There have been no less than seven previous attempts to introduce real accountability at ICANN. They have all failed to achieve a fundamental goal: override or impact ICANN corporate (under whatever circumstances).
In the specific cases where the override recommendations have been explicit, they have been undermined at the last step by ICANN internal legal advice.
This group has, to some degree, learned from the past by deciding that it needs to get independent legal advice for its recommendations as part of the process.
Even more usefully, ICANN's legal team has been prompted into providing its own legal analysis so we know what its position is ahead of time.
Aside from the fact that I think allowing ICANN to pay for the external independent legal advice is foolish in the extreme, I see two fundamental issues for this group to discuss and reach agreement on if this process is to have the desired end result.
And they are:
1. What happens if/when the independent legal advice say a particular mechanism is perfectly legal but ICANN's internal legal advice say it isn't?
What will Board members do? How do we ensure this discussion happens publicly and with plenty of time remaining?
I think we should ask Board members now what they would do. Would they be willing to override internal legal advice, and under what circumstances? Will they commit to some kind of binding arbitration in the event that the two legal advices conflict in fundamentally important ways?
This is an almost inevitable scenario so let's get ahead of it now and make reasoned decisions before the pressure and politics come into play. Plan ahead.
2. A fundamentally piece of the accountability mechanisms that are likely to be recommended includes making ICANN a member organization of some type.
We have Jones Day on record as saying that don't think California law allows anyone but the Board to make final decisions (in fact, they don't actually say that if you read it carefully because they know it's not true).
What we don't have is Jones Day/ICANN on record talking about the other legal get-out clause they have used in the past when it comes to accountability: anti-trust law.
ICANN's particular interpretation of anti-trust law has been pulled out as a final defense multiple times but I haven't seen it yet in this latest round of accountability discussions, so it is more than possible that it is holding back that particular defense now that the "California law corporate code" genie is out of the bottle.
I can easily see a scenario where we all agree that it is possible to make these changes under California corporate law and then agree to hand over IANA to ICANN only to find that the Board discovers at the last minute that they also violate anti-trust law and so, regretfully, cannot be implemented.
So I would ask this group to try to get ICANN's formal position on anti-trust law with respect to possible changes and also get independent legal advice on that aspect too.
I would also recommend that people go through previous failures to introduce recommendations and try to find what the legal justifications were that prevented them from being implemented. And then do the same pre-emptive work so we don't end up repeating history.
Hope this is useful.
Kieren
_______________________________________________ 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
--
*Gregory S. Shatan **ï* *Abelman Frayne & Schwab*
*Partner** | IP | Technology | Media | Internet*
*666 Third Avenue | New York, NY 10017-5621*
*Direct* 212-885-9253 *| **Main* 212-949-9022
*Fax* 212-949-9190 *|* *Cell *917-816-6428
*gsshatan@lawabel.com <gsshatan@lawabel.com>*
*ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com>*
*www.lawabel.com <http://www.lawabel.com/>*
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------------------------------
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-- *Gregory S. Shatan **ï* *Abelman Frayne & Schwab* *Partner* *| IP | Technology | Media | Internet* *666 Third Avenue | New York, NY 10017-5621* *Direct* 212-885-9253 *| **Main* 212-949-9022 *Fax* 212-949-9190 *|* *Cell *917-816-6428 *gsshatan@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com>* *www.lawabel.com <http://www.lawabel.com/>*
Well, here's hoping you're right. But not to distract from the main reason for my post: 1. How tackle conflict between internal and external advice 2. Anti-trust interpretation of accountability measures Kieren On Tue, Feb 17, 2015 at 2:08 PM, Phil Corwin <psc@vlaw-dc.com> wrote:
Agreed.
It would be remiss not to take available ICANN funds to hire qualified and expert counsel on these important questions. Those funds have been derived from the community, primarily in the form of registrant fees upstreamed through contracted parties.
As Greg observed, so long as the WG has the autonomy to select the law firm and the WG and not ICANN is its client, the advice it renders will be independent of ICANN’s views and corporate interest.
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597 <202-559-8597>/Direct*
*202-559-8750 <202-559-8750>/Fax*
*202-255-6172 <202-255-6172>/cell*
*Twitter: @VlawDC*
*"Luck is the residue of design" -- Branch Rickey*
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Edward Morris *Sent:* Tuesday, February 17, 2015 5:03 PM *To:* Greg Shatan *Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Thinking ahead - overcoming the legal obstacles to accountability
Excellent explanation of a component of American legal practice that non-Americans or non-lawyers may not be familiar with. Thank you very much Greg.
Sent from my iPad
On Feb 17, 2015, at 9:58 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kieren,
I don't think it is foolish at all to have ICANN pay for the independent advice. It is not uncommon for one party to pay the bill and for another party to be the client. It's not even uncommon to have a board committee of a corporation hire independent counsel where the committee's interests are divergent from the corporation (e.g., when dealing with an internal investigation) and have the corporation pay. These are situations that law firms are comfortable handling. Basically, the question is "who is the client?" and the client would be the Working Group(s), not ICANN. The law firm's ethical "duty of loyalty" is to the client, not the entity paying the bills. Given that these ethical rules are in fact taken very seriously and that these are all firms that likely have over $1 billion in revenues, the temptation to "cheat" and be ICANN-friendly would be basically non-existent.
What would be foolish would be to fail to set up the relationship between the firm and the Working Group(s) in the ways needed to maintain "independence." and/or to then fail to govern ourselves (and for ICANN to govern itself) in a way that preserves that independence. That would be a huge waste of time, money and effort, likely set back transition schedules, and send a terrible message regarding ICANN's accountability and self-control.
Greg
On Tue, Feb 17, 2015 at 4:42 PM, Kieren McCarthy < kieren@kierenmccarthy.com> wrote:
May I suggest that we express our emotions using more friendly words (! foolish).
I'm not sure why the use of "foolish" concerns you so much, Seun. I think it *is* foolish to allow ICANN to pay for independent advice that we would expect to contradict its own legal advice and on a topic of supreme importance to the organization.
I could say "ill advised" or "unwise" or "incautious" but that would be fake diplomacy on my part. I mean "foolish". I wouldn't use, say, "idiotic" or "stupid" because they would imply people here are not intelligent when they clearly are. But even very smart people can be foolish.
Kieren
On Tue, Feb 17, 2015 at 11:54 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Kieren,
May I suggest that we express our emotions using more friendly words (! foolish). That said, I think you raised good point; issue 2 seem to be a stress test case of issue 1 and I would suggest it is added to the existing list of stress test scenarios.
From what I gathered so far ( including from ICANN 52), this process seem to be beyond business as usual, Especially as we heard the board confirm it won't alter the outcome of this process when presenting to NTIA.
One other thing that may be important though is to ensure implementation is a perquisite to transition [which i fear will also further confirm the reality of !transition by Sept :( ]
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos.
On 17 Feb 2015 20:13, "Kieren McCarthy" <kieren@kierenmccarthy.com> wrote:
Hello all,
There have been no less than seven previous attempts to introduce real accountability at ICANN. They have all failed to achieve a fundamental goal: override or impact ICANN corporate (under whatever circumstances).
In the specific cases where the override recommendations have been explicit, they have been undermined at the last step by ICANN internal legal advice.
This group has, to some degree, learned from the past by deciding that it needs to get independent legal advice for its recommendations as part of the process.
Even more usefully, ICANN's legal team has been prompted into providing its own legal analysis so we know what its position is ahead of time.
Aside from the fact that I think allowing ICANN to pay for the external independent legal advice is foolish in the extreme, I see two fundamental issues for this group to discuss and reach agreement on if this process is to have the desired end result.
And they are:
1. What happens if/when the independent legal advice say a particular mechanism is perfectly legal but ICANN's internal legal advice say it isn't?
What will Board members do? How do we ensure this discussion happens publicly and with plenty of time remaining?
I think we should ask Board members now what they would do. Would they be willing to override internal legal advice, and under what circumstances? Will they commit to some kind of binding arbitration in the event that the two legal advices conflict in fundamentally important ways?
This is an almost inevitable scenario so let's get ahead of it now and make reasoned decisions before the pressure and politics come into play. Plan ahead.
2. A fundamentally piece of the accountability mechanisms that are likely to be recommended includes making ICANN a member organization of some type.
We have Jones Day on record as saying that don't think California law allows anyone but the Board to make final decisions (in fact, they don't actually say that if you read it carefully because they know it's not true).
What we don't have is Jones Day/ICANN on record talking about the other legal get-out clause they have used in the past when it comes to accountability: anti-trust law.
ICANN's particular interpretation of anti-trust law has been pulled out as a final defense multiple times but I haven't seen it yet in this latest round of accountability discussions, so it is more than possible that it is holding back that particular defense now that the "California law corporate code" genie is out of the bottle.
I can easily see a scenario where we all agree that it is possible to make these changes under California corporate law and then agree to hand over IANA to ICANN only to find that the Board discovers at the last minute that they also violate anti-trust law and so, regretfully, cannot be implemented.
So I would ask this group to try to get ICANN's formal position on anti-trust law with respect to possible changes and also get independent legal advice on that aspect too.
I would also recommend that people go through previous failures to introduce recommendations and try to find what the legal justifications were that prevented them from being implemented. And then do the same pre-emptive work so we don't end up repeating history.
Hope this is useful.
Kieren
_______________________________________________ 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
--
*Gregory S. Shatan **ï* *Abelman Frayne & Schwab*
*Partner** | IP | Technology | Media | Internet*
*666 Third Avenue | New York, NY 10017-5621*
*Direct* 212-885-9253 *| **Main* 212-949-9022
*Fax* 212-949-9190 *|* *Cell *917-816-6428
*gsshatan@lawabel.com <gsshatan@lawabel.com>*
*ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com>*
*www.lawabel.com <http://www.lawabel.com/>*
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I don't think this even needs to be a unique practice of the "American legal system" to believe. I quote the relevant section from Greg below: " The law firm's ethical "duty of loyalty" is to the client, not the entity paying the bills." I don't know of other countries but I know that is the practice in mine and I am not American. The way I understand the process, the client is the CWG and CCWG and ICANN is only coming in when it's time to wire the funds to firm so I don't see how the firm would be obligated to act in the interest of ICANN. Perhaps it's useful to repeat this here; there is need to ensure transparency in engaging the legal firm so that there would be more eyes following the processes and holding the client committee accountable. For instance it will be good to have read-only access to all the content produced in this process (communication archive, draft documents et all). The summary is that it will be helpful to follow the process; not just for us but for the committee should incase they miss something critical. That said, it may be good to indicate here that we may be relying so much on legal response as answer to our solution variants but my guess is that a good lawyer will be able to prove the possibility of almost all the variants we've asked. In view of this, maybe it's worth settling our fundamental differences (removing items that we would not prefer even if legal okays it) while we wait on legal process outcome. That concern I would note is more applicable to the CWG than to the CCWG. Cheers! sent from Google nexus 4 kindly excuse brevity and typos. On 17 Feb 2015 23:03, "Edward Morris" <egmorris1@toast.net> wrote:
Excellent explanation of a component of American legal practice that non-Americans or non-lawyers may not be familiar with. Thank you very much Greg.
Sent from my iPad
On Feb 17, 2015, at 9:58 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Kieren,
I don't think it is foolish at all to have ICANN pay for the independent advice. It is not uncommon for one party to pay the bill and for another party to be the client. It's not even uncommon to have a board committee of a corporation hire independent counsel where the committee's interests are divergent from the corporation (e.g., when dealing with an internal investigation) and have the corporation pay. These are situations that law firms are comfortable handling. Basically, the question is "who is the client?" and the client would be the Working Group(s), not ICANN. The law firm's ethical "duty of loyalty" is to the client, not the entity paying the bills. Given that these ethical rules are in fact taken very seriously and that these are all firms that likely have over $1 billion in revenues, the temptation to "cheat" and be ICANN-friendly would be basically non-existent.
What would be foolish would be to fail to set up the relationship between the firm and the Working Group(s) in the ways needed to maintain "independence." and/or to then fail to govern ourselves (and for ICANN to govern itself) in a way that preserves that independence. That would be a huge waste of time, money and effort, likely set back transition schedules, and send a terrible message regarding ICANN's accountability and self-control.
Greg
On Tue, Feb 17, 2015 at 4:42 PM, Kieren McCarthy < kieren@kierenmccarthy.com> wrote:
May I suggest that we express our emotions using more friendly words (! foolish).
I'm not sure why the use of "foolish" concerns you so much, Seun. I think it *is* foolish to allow ICANN to pay for independent advice that we would expect to contradict its own legal advice and on a topic of supreme importance to the organization.
I could say "ill advised" or "unwise" or "incautious" but that would be fake diplomacy on my part. I mean "foolish". I wouldn't use, say, "idiotic" or "stupid" because they would imply people here are not intelligent when they clearly are. But even very smart people can be foolish.
Kieren
On Tue, Feb 17, 2015 at 11:54 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Kieren,
May I suggest that we express our emotions using more friendly words (! foolish). That said, I think you raised good point; issue 2 seem to be a stress test case of issue 1 and I would suggest it is added to the existing list of stress test scenarios.
From what I gathered so far ( including from ICANN 52), this process seem to be beyond business as usual, Especially as we heard the board confirm it won't alter the outcome of this process when presenting to NTIA.
One other thing that may be important though is to ensure implementation is a perquisite to transition [which i fear will also further confirm the reality of !transition by Sept :( ]
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos. On 17 Feb 2015 20:13, "Kieren McCarthy" <kieren@kierenmccarthy.com> wrote:
Hello all,
There have been no less than seven previous attempts to introduce real accountability at ICANN. They have all failed to achieve a fundamental goal: override or impact ICANN corporate (under whatever circumstances).
In the specific cases where the override recommendations have been explicit, they have been undermined at the last step by ICANN internal legal advice.
This group has, to some degree, learned from the past by deciding that it needs to get independent legal advice for its recommendations as part of the process.
Even more usefully, ICANN's legal team has been prompted into providing its own legal analysis so we know what its position is ahead of time.
Aside from the fact that I think allowing ICANN to pay for the external independent legal advice is foolish in the extreme, I see two fundamental issues for this group to discuss and reach agreement on if this process is to have the desired end result.
And they are:
1. What happens if/when the independent legal advice say a particular mechanism is perfectly legal but ICANN's internal legal advice say it isn't?
What will Board members do? How do we ensure this discussion happens publicly and with plenty of time remaining?
I think we should ask Board members now what they would do. Would they be willing to override internal legal advice, and under what circumstances? Will they commit to some kind of binding arbitration in the event that the two legal advices conflict in fundamentally important ways?
This is an almost inevitable scenario so let's get ahead of it now and make reasoned decisions before the pressure and politics come into play. Plan ahead.
2. A fundamentally piece of the accountability mechanisms that are likely to be recommended includes making ICANN a member organization of some type.
We have Jones Day on record as saying that don't think California law allows anyone but the Board to make final decisions (in fact, they don't actually say that if you read it carefully because they know it's not true).
What we don't have is Jones Day/ICANN on record talking about the other legal get-out clause they have used in the past when it comes to accountability: anti-trust law.
ICANN's particular interpretation of anti-trust law has been pulled out as a final defense multiple times but I haven't seen it yet in this latest round of accountability discussions, so it is more than possible that it is holding back that particular defense now that the "California law corporate code" genie is out of the bottle.
I can easily see a scenario where we all agree that it is possible to make these changes under California corporate law and then agree to hand over IANA to ICANN only to find that the Board discovers at the last minute that they also violate anti-trust law and so, regretfully, cannot be implemented.
So I would ask this group to try to get ICANN's formal position on anti-trust law with respect to possible changes and also get independent legal advice on that aspect too.
I would also recommend that people go through previous failures to introduce recommendations and try to find what the legal justifications were that prevented them from being implemented. And then do the same pre-emptive work so we don't end up repeating history.
Hope this is useful.
Kieren
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Hi Can I also point to the icann bylaws that states: Article 17: Members ICANN itself shall not have members, as defined by California Nonprofit Public Benefit Corporation Law. May have missed this on the thread, but Cannot remember it being mentioned. We would like to establish the importance of having this clause. Rudi Daniel On Feb 17, 2015 3:13 PM, "Kieren McCarthy" <kieren@kierenmccarthy.com> wrote:
Hello all,
There have been no less than seven previous attempts to introduce real accountability at ICANN. They have all failed to achieve a fundamental goal: override or impact ICANN corporate (under whatever circumstances).
In the specific cases where the override recommendations have been explicit, they have been undermined at the last step by ICANN internal legal advice.
This group has, to some degree, learned from the past by deciding that it needs to get independent legal advice for its recommendations as part of the process.
Even more usefully, ICANN's legal team has been prompted into providing its own legal analysis so we know what its position is ahead of time.
Aside from the fact that I think allowing ICANN to pay for the external independent legal advice is foolish in the extreme, I see two fundamental issues for this group to discuss and reach agreement on if this process is to have the desired end result.
And they are:
1. What happens if/when the independent legal advice say a particular mechanism is perfectly legal but ICANN's internal legal advice say it isn't?
What will Board members do? How do we ensure this discussion happens publicly and with plenty of time remaining?
I think we should ask Board members now what they would do. Would they be willing to override internal legal advice, and under what circumstances? Will they commit to some kind of binding arbitration in the event that the two legal advices conflict in fundamentally important ways?
This is an almost inevitable scenario so let's get ahead of it now and make reasoned decisions before the pressure and politics come into play. Plan ahead.
2. A fundamentally piece of the accountability mechanisms that are likely to be recommended includes making ICANN a member organization of some type.
We have Jones Day on record as saying that don't think California law allows anyone but the Board to make final decisions (in fact, they don't actually say that if you read it carefully because they know it's not true).
What we don't have is Jones Day/ICANN on record talking about the other legal get-out clause they have used in the past when it comes to accountability: anti-trust law.
ICANN's particular interpretation of anti-trust law has been pulled out as a final defense multiple times but I haven't seen it yet in this latest round of accountability discussions, so it is more than possible that it is holding back that particular defense now that the "California law corporate code" genie is out of the bottle.
I can easily see a scenario where we all agree that it is possible to make these changes under California corporate law and then agree to hand over IANA to ICANN only to find that the Board discovers at the last minute that they also violate anti-trust law and so, regretfully, cannot be implemented.
So I would ask this group to try to get ICANN's formal position on anti-trust law with respect to possible changes and also get independent legal advice on that aspect too.
I would also recommend that people go through previous failures to introduce recommendations and try to find what the legal justifications were that prevented them from being implemented. And then do the same pre-emptive work so we don't end up repeating history.
Hope this is useful.
Kieren
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
We discussed that Bylaws provision several weeks ago, Rudi. California Nonprofit Corporation Law expressly authorizes non-profit organizations to have Members with ultimate authority to control the organization. Under Cal. Corp. Code § 5310 “A corporation may admit persons to Membership, as provided in its Articles or Bylaws”. California law recognizes that Members may reserve the right to approve nonprofit actions and oversee the Board of Directors. (§ 5210) A Board of Directors’ authority to conduct the affairs of a nonprofit may be limited by the rights of the Members specified in the law or in the nonprofit corporation’s Articles or Bylaws. Although ICANN does not currently have Members under Article XVII of its Bylaws, ICANN’s Articles of Incorporation expressly anticipate that ICANN may have Members: “These Articles may be amended by the affirmative of at least two-thirds of the directors of the Corporation. When the Corporation has Members, amendments must be ratified by a two-thirds (2/3) majority of the Members voting on any proposed amendment.” (Section 9) As you say, the ICANN bylaws presently say that ICANN won’t have members. But that Bylaw can be changed to allow Members as permitted in the Articles and under CA law. — Steve DelBianco From: Rudolph Daniel Date: Tuesday, February 17, 2015 at 3:21 PM To: Kieren McCarthy Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Thinking ahead - overcoming the legal obstacles to accountability Can I also point to the icann bylaws that states: Article 17: Members ICANN itself shall not have members, as defined by California Nonprofit Public Benefit Corporation Law. May have missed this on the thread, but Cannot remember it being mentioned. We would like to establish the importance of having this clause. Rudi Daniel On Feb 17, 2015 3:13 PM, "Kieren McCarthy" <kieren@kierenmccarthy.com<mailto:kieren@kierenmccarthy.com>> wrote: Hello all, There have been no less than seven previous attempts to introduce real accountability at ICANN. They have all failed to achieve a fundamental goal: override or impact ICANN corporate (under whatever circumstances). In the specific cases where the override recommendations have been explicit, they have been undermined at the last step by ICANN internal legal advice. This group has, to some degree, learned from the past by deciding that it needs to get independent legal advice for its recommendations as part of the process. Even more usefully, ICANN's legal team has been prompted into providing its own legal analysis so we know what its position is ahead of time. Aside from the fact that I think allowing ICANN to pay for the external independent legal advice is foolish in the extreme, I see two fundamental issues for this group to discuss and reach agreement on if this process is to have the desired end result. And they are: 1. What happens if/when the independent legal advice say a particular mechanism is perfectly legal but ICANN's internal legal advice say it isn't? What will Board members do? How do we ensure this discussion happens publicly and with plenty of time remaining? I think we should ask Board members now what they would do. Would they be willing to override internal legal advice, and under what circumstances? Will they commit to some kind of binding arbitration in the event that the two legal advices conflict in fundamentally important ways? This is an almost inevitable scenario so let's get ahead of it now and make reasoned decisions before the pressure and politics come into play. Plan ahead. 2. A fundamentally piece of the accountability mechanisms that are likely to be recommended includes making ICANN a member organization of some type. We have Jones Day on record as saying that don't think California law allows anyone but the Board to make final decisions (in fact, they don't actually say that if you read it carefully because they know it's not true). What we don't have is Jones Day/ICANN on record talking about the other legal get-out clause they have used in the past when it comes to accountability: anti-trust law. ICANN's particular interpretation of anti-trust law has been pulled out as a final defense multiple times but I haven't seen it yet in this latest round of accountability discussions, so it is more than possible that it is holding back that particular defense now that the "California law corporate code" genie is out of the bottle. I can easily see a scenario where we all agree that it is possible to make these changes under California corporate law and then agree to hand over IANA to ICANN only to find that the Board discovers at the last minute that they also violate anti-trust law and so, regretfully, cannot be implemented. So I would ask this group to try to get ICANN's formal position on anti-trust law with respect to possible changes and also get independent legal advice on that aspect too. I would also recommend that people go through previous failures to introduce recommendations and try to find what the legal justifications were that prevented them from being implemented. And then do the same pre-emptive work so we don't end up repeating history. Hope this is useful. Kieren _______________________________________________ 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
To Steve's point: all of the accountability measures proposed can be implemented, and perfectly legally, if ICANN's Board decides to make the relevant changes to its own bylaws. If you read ICANN's lawyers' position carefully, you will see that they never say it is not possible, just that it is either not *currently* possible (because of the current bylaws), or that the law does not "provide" for that (not expressly, but it is legally possible). My point, again, is two-fold: 1. What happens when the independent legal advice clashes with ICANN's internal legal advice? I think everyone agrees that the ICANN Board is required to make changes to ICANN's bylaws for any of this to happen. So - what happens when they are told by their own lawyers it is not legal to make those changes? Because that is their current position. 2. The whole issue of anti-trust law (or, more accurately, ICANN's interpretation of anti-trust law). This has been used in the past by ICANN to explain why it cannot make changes but it has yet to be considered in this accountability process. Kieren On Tue, Feb 17, 2015 at 12:31 PM, Steve DelBianco <sdelbianco@netchoice.org> wrote:
We discussed that Bylaws provision several weeks ago, Rudi.
California Nonprofit Corporation Law expressly authorizes non-profit organizations to have Members with ultimate authority to control the organization. Under Cal. Corp. Code § 5310 “A corporation may admit persons to Membership, as provided in its Articles or Bylaws”. California law recognizes that Members may reserve the right to approve nonprofit actions and oversee the Board of Directors. (§ 5210) A Board of Directors’ authority to conduct the affairs of a nonprofit may be limited by the rights of the Members specified in the law or in the nonprofit corporation’s Articles or Bylaws.
Although ICANN does not currently have Members under Article XVII of its Bylaws, ICANN’s Articles of Incorporation expressly anticipate that ICANN may have Members: “These Articles may be amended by the affirmative of at least two-thirds of the directors of the Corporation. When the Corporation has Members, amendments must be ratified by a two-thirds (2/3) majority of the Members voting on any proposed amendment.” (Section 9)
As you say, the ICANN bylaws presently say that ICANN won’t have members. But that Bylaw can be changed to allow Members as permitted in the Articles and under CA law.
— Steve DelBianco
From: Rudolph Daniel Date: Tuesday, February 17, 2015 at 3:21 PM To: Kieren McCarthy Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Thinking ahead - overcoming the legal obstacles to accountability
Can I also point to the icann bylaws that states: Article 17: Members ICANN itself shall not have members, as defined by California Nonprofit Public Benefit Corporation Law.
May have missed this on the thread, but Cannot remember it being mentioned.
We would like to establish the importance of having this clause. Rudi Daniel On Feb 17, 2015 3:13 PM, "Kieren McCarthy" <kieren@kierenmccarthy.com> wrote:
Hello all,
There have been no less than seven previous attempts to introduce real accountability at ICANN. They have all failed to achieve a fundamental goal: override or impact ICANN corporate (under whatever circumstances).
In the specific cases where the override recommendations have been explicit, they have been undermined at the last step by ICANN internal legal advice.
This group has, to some degree, learned from the past by deciding that it needs to get independent legal advice for its recommendations as part of the process.
Even more usefully, ICANN's legal team has been prompted into providing its own legal analysis so we know what its position is ahead of time.
Aside from the fact that I think allowing ICANN to pay for the external independent legal advice is foolish in the extreme, I see two fundamental issues for this group to discuss and reach agreement on if this process is to have the desired end result.
And they are:
1. What happens if/when the independent legal advice say a particular mechanism is perfectly legal but ICANN's internal legal advice say it isn't?
What will Board members do? How do we ensure this discussion happens publicly and with plenty of time remaining?
I think we should ask Board members now what they would do. Would they be willing to override internal legal advice, and under what circumstances? Will they commit to some kind of binding arbitration in the event that the two legal advices conflict in fundamentally important ways?
This is an almost inevitable scenario so let's get ahead of it now and make reasoned decisions before the pressure and politics come into play. Plan ahead.
2. A fundamentally piece of the accountability mechanisms that are likely to be recommended includes making ICANN a member organization of some type.
We have Jones Day on record as saying that don't think California law allows anyone but the Board to make final decisions (in fact, they don't actually say that if you read it carefully because they know it's not true).
What we don't have is Jones Day/ICANN on record talking about the other legal get-out clause they have used in the past when it comes to accountability: anti-trust law.
ICANN's particular interpretation of anti-trust law has been pulled out as a final defense multiple times but I haven't seen it yet in this latest round of accountability discussions, so it is more than possible that it is holding back that particular defense now that the "California law corporate code" genie is out of the bottle.
I can easily see a scenario where we all agree that it is possible to make these changes under California corporate law and then agree to hand over IANA to ICANN only to find that the Board discovers at the last minute that they also violate anti-trust law and so, regretfully, cannot be implemented.
So I would ask this group to try to get ICANN's formal position on anti-trust law with respect to possible changes and also get independent legal advice on that aspect too.
I would also recommend that people go through previous failures to introduce recommendations and try to find what the legal justifications were that prevented them from being implemented. And then do the same pre-emptive work so we don't end up repeating history.
Hope this is useful.
Kieren
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Thanks for this constructive input Kieren. The points you raise are very important and should be considered carefully by the CCWG. Question: Can you be more specific in your references when/where ICANN has used its interpretations of anti-trust law to avoid accountability enhancements? I have no doubt they exist, but it would help the CCWG to have a pointer if possible. I agree fully that we need to revisit those instances to help inform our discussions and avoid a repeat at this critical time. Thanks and regards, Keith From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kieren McCarthy Sent: Tuesday, February 17, 2015 4:29 PM To: Steve DelBianco Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Thinking ahead - overcoming the legal obstacles to accountability To Steve's point: all of the accountability measures proposed can be implemented, and perfectly legally, if ICANN's Board decides to make the relevant changes to its own bylaws. If you read ICANN's lawyers' position carefully, you will see that they never say it is not possible, just that it is either not *currently* possible (because of the current bylaws), or that the law does not "provide" for that (not expressly, but it is legally possible). My point, again, is two-fold: 1. What happens when the independent legal advice clashes with ICANN's internal legal advice? I think everyone agrees that the ICANN Board is required to make changes to ICANN's bylaws for any of this to happen. So - what happens when they are told by their own lawyers it is not legal to make those changes? Because that is their current position. 2. The whole issue of anti-trust law (or, more accurately, ICANN's interpretation of anti-trust law). This has been used in the past by ICANN to explain why it cannot make changes but it has yet to be considered in this accountability process. Kieren On Tue, Feb 17, 2015 at 12:31 PM, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> wrote: We discussed that Bylaws provision several weeks ago, Rudi. California Nonprofit Corporation Law expressly authorizes non-profit organizations to have Members with ultimate authority to control the organization. Under Cal. Corp. Code § 5310 “A corporation may admit persons to Membership, as provided in its Articles or Bylaws”. California law recognizes that Members may reserve the right to approve nonprofit actions and oversee the Board of Directors. (§ 5210) A Board of Directors’ authority to conduct the affairs of a nonprofit may be limited by the rights of the Members specified in the law or in the nonprofit corporation’s Articles or Bylaws. Although ICANN does not currently have Members under Article XVII of its Bylaws, ICANN’s Articles of Incorporation expressly anticipate that ICANN may have Members: “These Articles may be amended by the affirmative of at least two-thirds of the directors of the Corporation. When the Corporation has Members, amendments must be ratified by a two-thirds (2/3) majority of the Members voting on any proposed amendment.” (Section 9) As you say, the ICANN bylaws presently say that ICANN won’t have members. But that Bylaw can be changed to allow Members as permitted in the Articles and under CA law. — Steve DelBianco From: Rudolph Daniel Date: Tuesday, February 17, 2015 at 3:21 PM To: Kieren McCarthy Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Thinking ahead - overcoming the legal obstacles to accountability Can I also point to the icann bylaws that states: Article 17: Members ICANN itself shall not have members, as defined by California Nonprofit Public Benefit Corporation Law. May have missed this on the thread, but Cannot remember it being mentioned. We would like to establish the importance of having this clause. Rudi Daniel On Feb 17, 2015 3:13 PM, "Kieren McCarthy" <kieren@kierenmccarthy.com<mailto:kieren@kierenmccarthy.com>> wrote: Hello all, There have been no less than seven previous attempts to introduce real accountability at ICANN. They have all failed to achieve a fundamental goal: override or impact ICANN corporate (under whatever circumstances). In the specific cases where the override recommendations have been explicit, they have been undermined at the last step by ICANN internal legal advice. This group has, to some degree, learned from the past by deciding that it needs to get independent legal advice for its recommendations as part of the process. Even more usefully, ICANN's legal team has been prompted into providing its own legal analysis so we know what its position is ahead of time. Aside from the fact that I think allowing ICANN to pay for the external independent legal advice is foolish in the extreme, I see two fundamental issues for this group to discuss and reach agreement on if this process is to have the desired end result. And they are: 1. What happens if/when the independent legal advice say a particular mechanism is perfectly legal but ICANN's internal legal advice say it isn't? What will Board members do? How do we ensure this discussion happens publicly and with plenty of time remaining? I think we should ask Board members now what they would do. Would they be willing to override internal legal advice, and under what circumstances? Will they commit to some kind of binding arbitration in the event that the two legal advices conflict in fundamentally important ways? This is an almost inevitable scenario so let's get ahead of it now and make reasoned decisions before the pressure and politics come into play. Plan ahead. 2. A fundamentally piece of the accountability mechanisms that are likely to be recommended includes making ICANN a member organization of some type. We have Jones Day on record as saying that don't think California law allows anyone but the Board to make final decisions (in fact, they don't actually say that if you read it carefully because they know it's not true). What we don't have is Jones Day/ICANN on record talking about the other legal get-out clause they have used in the past when it comes to accountability: anti-trust law. ICANN's particular interpretation of anti-trust law has been pulled out as a final defense multiple times but I haven't seen it yet in this latest round of accountability discussions, so it is more than possible that it is holding back that particular defense now that the "California law corporate code" genie is out of the bottle. I can easily see a scenario where we all agree that it is possible to make these changes under California corporate law and then agree to hand over IANA to ICANN only to find that the Board discovers at the last minute that they also violate anti-trust law and so, regretfully, cannot be implemented. So I would ask this group to try to get ICANN's formal position on anti-trust law with respect to possible changes and also get independent legal advice on that aspect too. I would also recommend that people go through previous failures to introduce recommendations and try to find what the legal justifications were that prevented them from being implemented. And then do the same pre-emptive work so we don't end up repeating history. Hope this is useful. Kieren _______________________________________________ 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
Question: Can you be more specific in your references when/where ICANN has used its interpretations of anti-trust law to avoid accountability enhancements? I have no doubt they exist, but it would help the CCWG to have a pointer if possible. Will wrack brains and search internet for specifics. Kieren
participants (9)
-
Drazek, Keith -
Edward Morris -
Greg Shatan -
Kieren McCarthy -
Phil Buckingham -
Phil Corwin -
Rudolph Daniel -
Seun Ojedeji -
Steve DelBianco