My presumption is that the AC/SO/or whatever would be the "member" and that the Chair (or delegate) would be the representative of the member. I understand that members may be individuals, incorporated bodies or unincorporated bodies, but I question whether a Member can be an organization that owes its existence to the body in which is it a member. That seems to be circular definition. Alan At 27/01/2015 01:05 PM, Jonathan Zuck wrote:

The idea of ICANN membership has come up as a means to anchor the organization in the existing bottom-up, multi-stakeholder community, thereby ensuring its continued legitimacy. The very essence of work stream 1 is that ICANN's Board of Directors would become accountable to the community, in much the same way that the Boards of publicly-traded companies are ultimately accountable to their shareholders. Some good and reasonable questions have been raised on the list about the legality and complexity of a possible membership structure under California not-for-profit corporate law. I tasked my in-house counsel with researching some of these questions and, while recognizing that the CCWG still needs independent expert advice, here's what she's been able to determine:

Q: What would this look like? Briefly, the idea is that the head of each of the 11 current ICANN groups (supporting organizations, advisory committees, and stakeholder groups) would become one of the members of ICANN, and would continue to serve as an ICANN member until someone else took over the leadership of that group.

Q: Is the proposed membership structure legal? A: Under California non-profit law, a tax-exempt organization may be comprised of members. A tax-exempt organization has broad leeway to create a membership structure that best suits its particular needs. It's clear under California law that individuals may be members. Cal. Corp. Code 5310(a). Moreover, California law does not restrict membership to legally organized groups. Cal. Corp. Code 5313. Thus, it is appropriate for an individual, identified by a group (whether incorporated or unincorporated) to be a member. Alternately, membership can be granted to a group, which can then authorize a person to vote on its behalf. Cal. Corp. Code 5056(c).

Q: Will the Government Advisory Committee have a member? Can a government representative be a member of a non-profit organization? A: Yes. As an Advisory Committee, the GAC would have one member on ICANN. California non-profit law permits a government representative (including a representative of a foreign government) to be a member of a non-profit organization. However, if the GAC determines that it prefers to remain only an advisory body and not take on this new membership role, the model is still viable.

Q: Will the new membership structure be flexible enough to accommodate future changes to ICANN? A: Yes. Future changes to ICANN membership status would be approved by the members. For example, if a new stakeholder group, supporting organization or advisory committee is created under the bylaws, the current members could offer membership to that entity by a 3/4 vote. Similarly, the current members could remove a current member by a 3/4 vote. The required flexibility would just need to be incorporated into the updated bylaws.

Q: How would the members remain accountable? To ensure full accountability, the 11 members would serve on behalf of their respective memberships and could be recalled or replaced by their group at any time.

Q: How to prevent membership from being GNSO-heavy? Any concerns about the 11 members being too GNSO-heavy could be addressed via a weighted voting structure or similar mechanism.

Q: How will the new membership structure prevent organizational capture? Will each member be treated the same? A: The new membership structure prevents organizational capture by giving each stakeholder group only one representative member to ICANN and requiring a 3/4 vote for significant decisions, thereby ensuring significant consensus. Each member receives one vote of equal weight to the other members. For instance, governments are represented by the GAC Chair, and have only one collective voice out of 11 in the accountability process.

Q: Will the membership process preclude those unable or unwilling to pay membership dues? A: Membership would be free to all eligible members. Participation in the existing group of supporting organizations and advisory committees will not be altered, and will remain free of charge.

I hope this helps to inform our discussions while we wait for the independent legal experts to give us their views.

Jonathan Zuck President 202-331-2130 X 101 | <mailto:jzuck@actonline.org>jzuck@actonline.org | Skype: jvzuck

ACT | The App Association

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