ICANN as a 501(c)(3) Organisation
Dear Alan, as a follow-up to my explanation on the ALAC mailing list about ICANN being a 501(c)(3) organisation, the relevant Article of Incorporation paragraph is: (Ref: https://www.icann.org/resources/pages/governance/articles-en ) /Article 2.I.II: This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “*Code*”), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any future United States tax code. In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by _Article IV_ hereof, pursue the charitable and public purposes of *lessening the burdens of government and promoting the global public interest *in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“*Bylaws*”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process. Article 2.IV: Notwithstanding any other provision of these Articles: a. The Corporation shall not carry on any other activities not permitted to be carried on (i) by a corporation exempt from United States income tax under § 501(c)(3) of the Code or (ii) by a corporation, contributions to which are deductible under § 170(c)(2) of the Code. b. No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall be empowered to make the election under § 501 (h) of the Code./ So what does the § 501(c)(3) tax code say? http://bit.ly/1Va1vVt To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized <https://www.irs.gov/charities-non-profits/charitable-organizations/organizat...> and operated <https://www.irs.gov/charities-non-profits/charitable-organizations/operation...> exclusively for exempt purposes <https://www.irs.gov/charities-non-profits/charitable-organizations/exempt-pu...> set forth in section 501(c)(3), and none of its earnings may inure <https://www.irs.gov/charities-non-profits/charitable-organizations/inurement...> to any private shareholder or individual. Exempt purposes: https://www.irs.gov/charities-non-profits/charitable-organizations/exempt-pu... /The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term /charitable/ is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; *lessening the burdens of government*; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency./ So "lessening the burdens of government" is clearly the key reason for ICANN to operate as 501(c)(3), but as you can see there are other possible purposes. (As a side track, it is particularly important to note the "global public interest" part of the mission which is still undefined and unresolved.) With the new gTLD program generating a large income, ICANN needs to be very careful and show sustained support for "lessening the burdens of government" - thus support all sorts of Internet-related activities outside of ICANN. Not doing so, it could be accused of "excess benefit transactions" https://www.irs.gov/charities-non-profits/charitable-organizations/intermedi... and be sanctioned. ICANN needs to walk a very fine line on this. I am not a US tax attorney and have very little knowledge of the matter, but it is my understanding that if ICANN was to stop supporting initiatives in the wider Internet ecosystem space, activities related to ICANN but not *strictly* relating to Names and Numbers, it would risk losing its 501(c)(3) status. This loss of 501(c)(3) status is completely independent of the point of view that some are holding that ICANN is spending too much money outside ICANN core activities. It is also worth noting that adhering to the conditions for retaining 501(c)(3) status will be a key issue for the allocation of Auction funds. I really think that we should fully play this card when it comes down to use of funds in ICANN. The At-Large Community is part of this "promoting the global public interest" and we need to remind everyone about this regularly. Kindest regards, Olivier
Great ammo, Olivier. I feel better armed to fight for the public interest within @ ICANN! Javier Rúa-Jovet +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua
On Apr 25, 2017, at 2:10 AM, Olivier MJ Crepin-Leblond <ocl@gih.com> wrote:
Dear Alan,
as a follow-up to my explanation on the ALAC mailing list about ICANN being a 501(c)(3) organisation, the relevant Article of Incorporation paragraph is: (Ref: https://www.icann.org/resources/pages/governance/articles-en )
Article 2.I.II: This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any future United States tax code. In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article IV hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process.
Article 2.IV: Notwithstanding any other provision of these Articles: a. The Corporation shall not carry on any other activities not permitted to be carried on (i) by a corporation exempt from United States income tax under § 501(c)(3) of the Code or (ii) by a corporation, contributions to which are deductible under § 170(c)(2) of the Code. b. No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall be empowered to make the election under § 501 (h) of the Code. So what does the § 501(c)(3) tax code say? http://bit.ly/1Va1vVt
To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized and operated exclusively for exempt purposes set forth in section 501(c)(3), and none of its earnings may inure to any private shareholder or individual.
Exempt purposes:
https://www.irs.gov/charities-non-profits/charitable-organizations/exempt-pu...
The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.
So "lessening the burdens of government" is clearly the key reason for ICANN to operate as 501(c)(3), but as you can see there are other possible purposes. (As a side track, it is particularly important to note the "global public interest" part of the mission which is still undefined and unresolved.)
With the new gTLD program generating a large income, ICANN needs to be very careful and show sustained support for "lessening the burdens of government" - thus support all sorts of Internet-related activities outside of ICANN. Not doing so, it could be accused of "excess benefit transactions" https://www.irs.gov/charities-non-profits/charitable-organizations/intermedi... and be sanctioned. ICANN needs to walk a very fine line on this. I am not a US tax attorney and have very little knowledge of the matter, but it is my understanding that if ICANN was to stop supporting initiatives in the wider Internet ecosystem space, activities related to ICANN but not *strictly* relating to Names and Numbers, it would risk losing its 501(c)(3) status.
This loss of 501(c)(3) status is completely independent of the point of view that some are holding that ICANN is spending too much money outside ICANN core activities.
It is also worth noting that adhering to the conditions for retaining 501(c)(3) status will be a key issue for the allocation of Auction funds.
I really think that we should fully play this card when it comes down to use of funds in ICANN. The At-Large Community is part of this "promoting the global public interest" and we need to remind everyone about this regularly.
Kindest regards,
Olivier
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac
At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...)
A vehement +1! And no, you don't have to be a tax attorney to understand the plain letter of the law and it's intent. BTW, it is the same argument the Ry constituency will use to justify support from ICANN for ginning up the domain name market. Never mind - as my friend Evan has long reminded us - their position is founded on belief every Internet user is a delayed name owner. Me: Dumb bastards just don't know it yet. [Went thru the wringer with this 501 (c) business when my high school alumni association formed a chapter in the U.S.] CAS On Apr 25, 2017 1:10 AM, "Olivier MJ Crepin-Leblond" <ocl@gih.com> wrote:
Dear Alan,
as a follow-up to my explanation on the ALAC mailing list about ICANN being a 501(c)(3) organisation, the relevant Article of Incorporation paragraph is: (Ref: https://www.icann.org/resources/pages/governance/articles-en )
*Article 2.I.II: This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any future United States tax code. In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article IV hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process. Article 2.IV: Notwithstanding any other provision of these Articles: a. The Corporation shall not carry on any other activities not permitted to be carried on (i) by a corporation exempt from United States income tax under § 501(c)(3) of the Code or (ii) by a corporation, contributions to which are deductible under § 170(c)(2) of the Code. b. No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall be empowered to make the election under § 501 (h) of the Code.*
So what does the § 501(c)(3) tax code say? http://bit.ly/1Va1vVt
To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized <https://www.irs.gov/charities-non-profits/charitable-organizations/organizat...> and operated <https://www.irs.gov/charities-non-profits/charitable-organizations/operation...> exclusively for exempt purposes <https://www.irs.gov/charities-non-profits/charitable-organizations/exempt-pu...> set forth in section 501(c)(3), and none of its earnings may inure <https://www.irs.gov/charities-non-profits/charitable-organizations/inurement...> to any private shareholder or individual.
Exempt purposes:
https://www.irs.gov/charities-non-profits/charitable- organizations/exempt-purposes-internal-revenue-code-section-501c3
*The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.*
So "lessening the burdens of government" is clearly the key reason for ICANN to operate as 501(c)(3), but as you can see there are other possible purposes. (As a side track, it is particularly important to note the "global public interest" part of the mission which is still undefined and unresolved.)
With the new gTLD program generating a large income, ICANN needs to be very careful and show sustained support for "lessening the burdens of government" - thus support all sorts of Internet-related activities outside of ICANN. Not doing so, it could be accused of "excess benefit transactions" https://www.irs.gov/charities-non-profits/charitable- organizations/intermediate-sanctions-excess-benefit-transactions and be sanctioned. ICANN needs to walk a very fine line on this. I am not a US tax attorney and have very little knowledge of the matter, but it is my understanding that if ICANN was to stop supporting initiatives in the wider Internet ecosystem space, activities related to ICANN but not *strictly* relating to Names and Numbers, it would risk losing its 501(c)(3) status.
This loss of 501(c)(3) status is completely independent of the point of view that some are holding that ICANN is spending too much money outside ICANN core activities.
It is also worth noting that adhering to the conditions for retaining 501(c)(3) status will be a key issue for the allocation of Auction funds.
I really think that we should fully play this card when it comes down to use of funds in ICANN. The At-Large Community is part of this "promoting the global public interest" and we need to remind everyone about this regularly.
Kindest regards,
Olivier
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac
At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+ Advisory+Committee+(ALAC)
Hi, As ICANN CEO visited China last week, I raised a question during the meeting: Exactly what is ICANN? According to what ICANN does, it is a de facto REGULATOR serving the public interest by regulating the DNS industry. However, he flatly denied that, saying ICANN is a "stock exchange". As I see it, this is a fundamental undefined question of ICANN. Even during the openning speech in Copenhagen, Steve Croker said "whatever ICANN is ..." However, this question leads to the position and weight of ALAC, and the consumers'/end-users' interests, within ICANN, including the number of seats on the Board, budget allocation, etc. Thus, I hope this question at least could be clarified within the At-Large community, before we can make it clear in ICANN. Thank you. Kaili ----- Original Message ----- From: Olivier MJ Crepin-Leblond To: ALAC Working List Sent: Tuesday, April 25, 2017 2:10 PM Subject: [ALAC] ICANN as a 501(c)(3) Organisation Dear Alan, as a follow-up to my explanation on the ALAC mailing list about ICANN being a 501(c)(3) organisation, the relevant Article of Incorporation paragraph is: (Ref: https://www.icann.org/resources/pages/governance/articles-en ) Article 2.I.II: This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any future United States tax code. In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article IV hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process. Article 2.IV: Notwithstanding any other provision of these Articles: a. The Corporation shall not carry on any other activities not permitted to be carried on (i) by a corporation exempt from United States income tax under § 501(c)(3) of the Code or (ii) by a corporation, contributions to which are deductible under § 170(c)(2) of the Code. b. No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall be empowered to make the election under § 501 (h) of the Code. So what does the § 501(c)(3) tax code say? http://bit.ly/1Va1vVt To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized and operated exclusively for exempt purposes set forth in section 501(c)(3), and none of its earnings may inure to any private shareholder or individual. Exempt purposes: https://www.irs.gov/charities-non-profits/charitable-organizations/exempt-pu... The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency. So "lessening the burdens of government" is clearly the key reason for ICANN to operate as 501(c)(3), but as you can see there are other possible purposes. (As a side track, it is particularly important to note the "global public interest" part of the mission which is still undefined and unresolved.) With the new gTLD program generating a large income, ICANN needs to be very careful and show sustained support for "lessening the burdens of government" - thus support all sorts of Internet-related activities outside of ICANN. Not doing so, it could be accused of "excess benefit transactions" https://www.irs.gov/charities-non-profits/charitable-organizations/intermedi... and be sanctioned. ICANN needs to walk a very fine line on this. I am not a US tax attorney and have very little knowledge of the matter, but it is my understanding that if ICANN was to stop supporting initiatives in the wider Internet ecosystem space, activities related to ICANN but not *strictly* relating to Names and Numbers, it would risk losing its 501(c)(3) status. This loss of 501(c)(3) status is completely independent of the point of view that some are holding that ICANN is spending too much money outside ICANN core activities. It is also worth noting that adhering to the conditions for retaining 501(c)(3) status will be a key issue for the allocation of Auction funds. I really think that we should fully play this card when it comes down to use of funds in ICANN. The At-Large Community is part of this "promoting the global public interest" and we need to remind everyone about this regularly. Kindest regards, Olivier ------------------------------------------------------------------------------ _______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...)
Trust me, Kaili. This is a debate that is a long standing one that won’t be settled quickly or easily. One view says that ICANN cannot be a regulator in the traditional sense of the word. It was not created by legislation, but rather by agreement in the first instance, and latterly, its ‘power’, if you can use the term, comes from both its contractual relationship with registrars and registries, and the voluntary membership of other organisations. Another equally important and valid view of ICANN is that its function is that of a global regulator of the DNS system, regardless of structure. Yes, the question is very well defined, and has been the subject of much debate. And Steve Cocker is well aware of those debates, which is why he used the language he is. I think everyone within the ICANN community is well aware of what ICANN does/can do. What you will not reach agreement on is the term you use to describe it. Holly On 1 May 2017, at 11:29 am, Kan Kaili <kankaili@gmail.com> wrote:
Hi,
As ICANN CEO visited China last week, I raised a question during the meeting: Exactly what is ICANN?
According to what ICANN does, it is a de facto REGULATOR serving the public interest by regulating the DNS industry.
However, he flatly denied that, saying ICANN is a "stock exchange".
As I see it, this is a fundamental undefined question of ICANN. Even during the openning speech in Copenhagen, Steve Croker said "whatever ICANN is ..."
However, this question leads to the position and weight of ALAC, and the consumers'/end-users' interests, within ICANN, including the number of seats on the Board, budget allocation, etc.
Thus, I hope this question at least could be clarified within the At-Large community, before we can make it clear in ICANN.
Thank you.
Kaili
----- Original Message ----- From: Olivier MJ Crepin-Leblond To: ALAC Working List Sent: Tuesday, April 25, 2017 2:10 PM Subject: [ALAC] ICANN as a 501(c)(3) Organisation
Dear Alan,
as a follow-up to my explanation on the ALAC mailing list about ICANN being a 501(c)(3) organisation, the relevant Article of Incorporation paragraph is: (Ref: https://www.icann.org/resources/pages/governance/articles-en )
Article 2.I.II: This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any future United States tax code. In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article IV hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process.
Article 2.IV: Notwithstanding any other provision of these Articles: a. The Corporation shall not carry on any other activities not permitted to be carried on (i) by a corporation exempt from United States income tax under § 501(c)(3) of the Code or (ii) by a corporation, contributions to which are deductible under § 170(c)(2) of the Code. b. No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall be empowered to make the election under § 501 (h) of the Code. So what does the § 501(c)(3) tax code say? http://bit.ly/1Va1vVt
To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized and operatedexclusively for exempt purposes set forth in section 501(c)(3), and none of its earnings may inure to any private shareholder or individual.
Exempt purposes:
https://www.irs.gov/charities-non-profits/charitable-organizations/exempt-pu...
The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.
So "lessening the burdens of government" is clearly the key reason for ICANN to operate as 501(c)(3), but as you can see there are other possible purposes. (As a side track, it is particularly important to note the "global public interest" part of the mission which is still undefined and unresolved.)
With the new gTLD program generating a large income, ICANN needs to be very careful and show sustained support for "lessening the burdens of government" - thus support all sorts of Internet-related activities outside of ICANN. Not doing so, it could be accused of "excess benefit transactions" https://www.irs.gov/charities-non-profits/charitable-organizations/intermedi... and be sanctioned. ICANN needs to walk a very fine line on this. I am not a US tax attorney and have very little knowledge of the matter, but it is my understanding that if ICANN was to stop supporting initiatives in the wider Internet ecosystem space, activities related to ICANN but not *strictly* relating to Names and Numbers, it would risk losing its 501(c)(3) status.
This loss of 501(c)(3) status is completely independent of the point of view that some are holding that ICANN is spending too much money outside ICANN core activities.
It is also worth noting that adhering to the conditions for retaining 501(c)(3) status will be a key issue for the allocation of Auction funds.
I really think that we should fully play this card when it comes down to use of funds in ICANN. The At-Large Community is part of this "promoting the global public interest" and we need to remind everyone about this regularly.
Kindest regards,
Olivier
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac
At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...) _______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac
At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...)
"What you will not reach agreement on is the term you use to describe it." :) Thank you, Holly! Kaili ----- Original Message ----- From: Holly Raiche To: Kan Kaili Cc: Olivier Crepin-Leblond ; ALAC Working List Sent: Monday, May 01, 2017 10:03 AM Subject: Re: [ALAC] ICANN as a 501(c)(3) Organisation Trust me, Kaili. This is a debate that is a long standing one that won’t be settled quickly or easily. One view says that ICANN cannot be a regulator in the traditional sense of the word. It was not created by legislation, but rather by agreement in the first instance, and latterly, its ‘power’, if you can use the term, comes from both its contractual relationship with registrars and registries, and the voluntary membership of other organisations. Another equally important and valid view of ICANN is that its function is that of a global regulator of the DNS system, regardless of structure. Yes, the question is very well defined, and has been the subject of much debate. And Steve Cocker is well aware of those debates, which is why he used the language he is. I think everyone within the ICANN community is well aware of what ICANN does/can do. What you will not reach agreement on is the term you use to describe it. Holly On 1 May 2017, at 11:29 am, Kan Kaili <kankaili@gmail.com> wrote: Hi, As ICANN CEO visited China last week, I raised a question during the meeting: Exactly what is ICANN? According to what ICANN does, it is a de facto REGULATOR serving the public interest by regulating the DNS industry. However, he flatly denied that, saying ICANN is a "stock exchange". As I see it, this is a fundamental undefined question of ICANN. Even during the openning speech in Copenhagen, Steve Croker said "whatever ICANN is ..." However, this question leads to the position and weight of ALAC, and the consumers'/end-users' interests, within ICANN, including the number of seats on the Board, budget allocation, etc. Thus, I hope this question at least could be clarified within the At-Large community, before we can make it clear in ICANN. Thank you. Kaili ----- Original Message ----- From: Olivier MJ Crepin-Leblond To: ALAC Working List Sent: Tuesday, April 25, 2017 2:10 PM Subject: [ALAC] ICANN as a 501(c)(3) Organisation Dear Alan, as a follow-up to my explanation on the ALAC mailing list about ICANN being a 501(c)(3) organisation, the relevant Article of Incorporation paragraph is: (Ref: https://www.icann.org/resources/pages/governance/articles-en ) Article 2.I.II: This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any future United States tax code. In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article IV hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process. Article 2.IV: Notwithstanding any other provision of these Articles: a. The Corporation shall not carry on any other activities not permitted to be carried on (i) by a corporation exempt from United States income tax under § 501(c)(3) of the Code or (ii) by a corporation, contributions to which are deductible under § 170(c)(2) of the Code. b. No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall be empowered to make the election under § 501 (h) of the Code. So what does the § 501(c)(3) tax code say? http://bit.ly/1Va1vVt To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized and operatedexclusively for exempt purposes set forth in section 501(c)(3), and none of its earnings may inure to any private shareholder or individual. Exempt purposes: https://www.irs.gov/charities-non-profits/charitable-organizations/exempt-pu... The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency. So "lessening the burdens of government" is clearly the key reason for ICANN to operate as 501(c)(3), but as you can see there are other possible purposes. (As a side track, it is particularly important to note the "global public interest" part of the mission which is still undefined and unresolved.) With the new gTLD program generating a large income, ICANN needs to be very careful and show sustained support for "lessening the burdens of government" - thus support all sorts of Internet-related activities outside of ICANN. Not doing so, it could be accused of "excess benefit transactions" https://www.irs.gov/charities-non-profits/charitable-organizations/intermedi... and be sanctioned. ICANN needs to walk a very fine line on this. I am not a US tax attorney and have very little knowledge of the matter, but it is my understanding that if ICANN was to stop supporting initiatives in the wider Internet ecosystem space, activities related to ICANN but not *strictly* relating to Names and Numbers, it would risk losing its 501(c)(3) status. This loss of 501(c)(3) status is completely independent of the point of view that some are holding that ICANN is spending too much money outside ICANN core activities. It is also worth noting that adhering to the conditions for retaining 501(c)(3) status will be a key issue for the allocation of Auction funds. I really think that we should fully play this card when it comes down to use of funds in ICANN. The At-Large Community is part of this "promoting the global public interest" and we need to remind everyone about this regularly. Kindest regards, Olivier -------------------------------------------------------------------------- _______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...) _______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...)
+1 -Carlton ============================== *Carlton A Samuels* *Mobile: 876-818-1799Strategy, Planning, Governance, Assessment & Turnaround* ============================= On Sun, Apr 30, 2017 at 9:03 PM, Holly Raiche <h.raiche@internode.on.net> wrote:
Trust me, Kaili. This is a debate that is a long standing one that won’t be settled quickly or easily.
One view says that ICANN cannot be a regulator in the traditional sense of the word. It was not created by legislation, but rather by agreement in the first instance, and latterly, its ‘power’, if you can use the term, comes from both its contractual relationship with registrars and registries, and the voluntary membership of other organisations. Another equally important and valid view of ICANN is that its function is that of a global regulator of the DNS system, regardless of structure.
Yes, the question is very well defined, and has been the subject of much debate. And Steve Cocker is well aware of those debates, which is why he used the language he is.
I think everyone within the ICANN community is well aware of what ICANN does/can do. What you will not reach agreement on is the term you use to describe it.
Holly
On 1 May 2017, at 11:29 am, Kan Kaili <kankaili@gmail.com> wrote:
Hi,
As ICANN CEO visited China last week, I raised a question during the meeting: Exactly what is ICANN?
According to what ICANN does, it is a de facto REGULATOR serving the public interest by regulating the DNS industry.
However, he flatly denied that, saying ICANN is a "stock exchange".
As I see it, this is a fundamental undefined question of ICANN. Even during the openning speech in Copenhagen, Steve Croker said "whatever ICANN is ..."
However, this question leads to the position and weight of ALAC, and the consumers'/end-users' interests, within ICANN, including the number of seats on the Board, budget allocation, etc.
Thus, I hope this question at least could be clarified within the At-Large community, before we can make it clear in ICANN.
Thank you.
Kaili
----- Original Message ----- *From:* Olivier MJ Crepin-Leblond <ocl@gih.com> *To:* ALAC Working List <alac@atlarge-lists.icann.org> *Sent:* Tuesday, April 25, 2017 2:10 PM *Subject:* [ALAC] ICANN as a 501(c)(3) Organisation
Dear Alan,
as a follow-up to my explanation on the ALAC mailing list about ICANN being a 501(c)(3) organisation, the relevant Article of Incorporation paragraph is: (Ref: https://www.icann.org/resources/pages/governance/articles-en )
*Article 2.I.II:This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any future United States tax code. In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article IV hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process.Article 2.IV:Notwithstanding any other provision of these Articles: a. The Corporation shall not carry on any other activities not permitted to be carried on (i) by a corporation exempt from United States income tax under § 501(c)(3) of the Code or (ii) by a corporation, contributions to which are deductible under § 170(c)(2) of the Code.b. No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall be empowered to make the election under § 501 (h) of the Code.*
So what does the § 501(c)(3) tax code say? http://bit.ly/1Va1vVt
To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized <https://www.irs.gov/charities-non-profits/charitable-organizations/organizat...> and operated <https://www.irs.gov/charities-non-profits/charitable-organizations/operation...> exclusively for exempt purposes <https://www.irs.gov/charities-non-profits/charitable-organizations/exempt-pu...> set forth in section 501(c)(3), and none of its earnings may inure <https://www.irs.gov/charities-non-profits/charitable-organizations/inurement...> to any private shareholder or individual.
Exempt purposes:
https://www.irs.gov/charities-non-profits/charitable- organizations/exempt-purposes-internal-revenue-code-section-501c3
*The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.*
So "lessening the burdens of government" is clearly the key reason for ICANN to operate as 501(c)(3), but as you can see there are other possible purposes. (As a side track, it is particularly important to note the "global public interest" part of the mission which is still undefined and unresolved.)
With the new gTLD program generating a large income, ICANN needs to be very careful and show sustained support for "lessening the burdens of government" - thus support all sorts of Internet-related activities outside of ICANN. Not doing so, it could be accused of "excess benefit transactions" https://www.irs.gov/charities-non-profits/charitable-organizations/ intermediate-sanctions-excess-benefit-transactions and be sanctioned. ICANN needs to walk a very fine line on this. I am not a US tax attorney and have very little knowledge of the matter, but it is my understanding that if ICANN was to stop supporting initiatives in the wider Internet ecosystem space, activities related to ICANN but not *strictly* relating to Names and Numbers, it would risk losing its 501(c)(3) status.
This loss of 501(c)(3) status is completely independent of the point of view that some are holding that ICANN is spending too much money outside ICANN core activities.
It is also worth noting that adhering to the conditions for retaining 501(c)(3) status will be a key issue for the allocation of Auction funds.
I really think that we should fully play this card when it comes down to use of funds in ICANN. The At-Large Community is part of this "promoting the global public interest" and we need to remind everyone about this regularly.
Kindest regards,
Olivier
------------------------------
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Kaili is quite right in pointing out the fundamental importance of ICANN being truthfully described. A decade ago, and less, this came up in Board discussions every now and then, the majority swatting down anything suggestive of "regulation". The closest we got to accurately naming ICANN's function was "quasi regulation", but this expression was then redacted from reports. Among the arguments put forward by opponents to such a designation, the fear of aggravating Washington was uppermost. Who were we to dare question a tenet of Reagonomics and Thatcherism, i.e. "Only self-regulation can lead to prosperity"? And never mind if the 2008 financial meltdown proved that self-regulation had failed, common wisdom would not accept the evidence. This debate is not neutral, especially at a time when we see a perilous convergence between some democracies and the régimes they used to (rightly) criticize. When democracies resort to doctoring facts and smothering free debate, the public interest is in peril. This may be the right time to put forward, once again, the term "quasi regulatory" to describe ICANN's main function. As in the time of Copernic, calling out reality may not be without risk, but remains essential for human development. Jean-Jacques. Le 1 mai 2017 03:29, à 03:29, Kan Kaili <kankaili@gmail.com> a écrit:
Hi,
As ICANN CEO visited China last week, I raised a question during the meeting: Exactly what is ICANN?
According to what ICANN does, it is a de facto REGULATOR serving the public interest by regulating the DNS industry.
However, he flatly denied that, saying ICANN is a "stock exchange".
As I see it, this is a fundamental undefined question of ICANN. Even during the openning speech in Copenhagen, Steve Croker said "whatever ICANN is ..."
However, this question leads to the position and weight of ALAC, and the consumers'/end-users' interests, within ICANN, including the number of seats on the Board, budget allocation, etc.
Thus, I hope this question at least could be clarified within the At-Large community, before we can make it clear in ICANN.
Thank you.
Kaili
----- Original Message ----- From: Olivier MJ Crepin-Leblond To: ALAC Working List Sent: Tuesday, April 25, 2017 2:10 PM Subject: [ALAC] ICANN as a 501(c)(3) Organisation
Dear Alan,
as a follow-up to my explanation on the ALAC mailing list about ICANN being a 501(c)(3) organisation, the relevant Article of Incorporation paragraph is: (Ref: https://www.icann.org/resources/pages/governance/articles-en )
Article 2.I.II: This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any future United States tax code. In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article IV hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process.
Article 2.IV: Notwithstanding any other provision of these Articles: a. The Corporation shall not carry on any other activities not permitted to be carried on (i) by a corporation exempt from United States income tax under § 501(c)(3) of the Code or (ii) by a corporation, contributions to which are deductible under § 170(c)(2) of the Code. b. No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall be empowered to make the election under § 501 (h) of the Code. So what does the § 501(c)(3) tax code say? http://bit.ly/1Va1vVt
To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized and operated exclusively for exempt purposes set forth in section 501(c)(3), and none of its earnings may inure to any private shareholder or individual.
Exempt purposes:
https://www.irs.gov/charities-non-profits/charitable-organizations/exempt-pu...
The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.
So "lessening the burdens of government" is clearly the key reason for ICANN to operate as 501(c)(3), but as you can see there are other possible purposes. (As a side track, it is particularly important to note the "global public interest" part of the mission which is still undefined and unresolved.)
With the new gTLD program generating a large income, ICANN needs to be very careful and show sustained support for "lessening the burdens of government" - thus support all sorts of Internet-related activities outside of ICANN. Not doing so, it could be accused of "excess benefit transactions" https://www.irs.gov/charities-non-profits/charitable-organizations/intermedi... and be sanctioned. ICANN needs to walk a very fine line on this. I am not a US tax attorney and have very little knowledge of the matter, but it is my understanding that if ICANN was to stop supporting initiatives in the wider Internet ecosystem space, activities related to ICANN but not *strictly* relating to Names and Numbers, it would risk losing its 501(c)(3) status.
This loss of 501(c)(3) status is completely independent of the point of view that some are holding that ICANN is spending too much money outside ICANN core activities.
It is also worth noting that adhering to the conditions for retaining 501(c)(3) status will be a key issue for the allocation of Auction funds.
I really think that we should fully play this card when it comes down to use of funds in ICANN. The At-Large Community is part of this "promoting the global public interest" and we need to remind everyone about this regularly.
Kindest regards,
Olivier
------------------------------------------------------------------------------
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac
At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...)
------------------------------------------------------------------------
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac
At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...)
Hi, Thank you for your response and comment. Indeed, now ICANN is fully independent of the US DOC, clearly defining ICANN's functions becomes even more important than before. Otherwise, it may well become a trade association. This is shown from GNSO's discussion of using surplus from the new gTLD program to "promote awareness" of new G. That is, marketing for registries/registrars. In addition, now the overall environment is quite different from a decade ago. At least, I believe the US Government would not be against the idea of "regulator". Thus, I wonder if the At-Large community should again begin to advocate ICANN as a "de facto regulator of the cyber world". Thank you again. Kaili ----- Original Message ----- From: JJS To: KAN Kaili Cc: Olivier CREPIN-LEBLOND ; ALAC working list Sent: Monday, May 01, 2017 1:19 PM Subject: Re: [ALAC] ICANN as a 501(c)(3) Organisation Kaili is quite right in pointing out the fundamental importance of ICANN being truthfully described. A decade ago, and less, this came up in Board discussions every now and then, the majority swatting down anything suggestive of "regulation". The closest we got to accurately naming ICANN's function was "quasi regulation", but this expression was then redacted from reports. Among the arguments put forward by opponents to such a designation, the fear of aggravating Washington was uppermost. Who were we to dare question a tenet of Reagonomics and Thatcherism, i.e. "Only self-regulation can lead to prosperity"? And never mind if the 2008 financial meltdown proved that self-regulation had failed, common wisdom would not accept the evidence. This debate is not neutral, especially at a time when we see a perilous convergence between some democracies and the régimes they used to (rightly) criticize. When democracies resort to doctoring facts and smothering free debate, the public interest is in peril. This may be the right time to put forward, once again, the term "quasi regulatory" to describe ICANN's main function. As in the time of Copernic, calling out reality may not be without risk, but remains essential for human development. Jean-Jacques. Le 1 mai 2017, à 03:29, Kan Kaili <kankaili@gmail.com> a écrit: Hi, As ICANN CEO visited China last week, I raised a question during the meeting: Exactly what is ICANN? According to what ICANN does, it is a de facto REGULATOR serving the public interest by regulating the DNS industry. However, he flatly denied that, saying ICANN is a "stock exchange". As I see it, this is a fundamental undefined question of ICANN. Even during the openning speech in Copenhagen, Steve Croker said "whatever ICANN is ..." However, this question leads to the position and weight of ALAC, and the consumers'/end-users' interests, within ICANN, including the number of seats on the Board, budget allocation, etc. Thus, I hope this question at least could be clarified within the At-Large community, before we can make it clear in ICANN. Thank you. Kaili ----- Original Message ----- From: Olivier MJ Crepin-Leblond To: ALAC Working List Sent: Tuesday, April 25, 2017 2:10 PM Subject: [ALAC] ICANN as a 501(c)(3) Organisation Dear Alan, as a follow-up to my explanation on the ALAC mailing list about ICANN being a 501(c)(3) organisation, the relevant Article of Incorporation paragraph is: (Ref: https://www.icann.org/resources/pages/governance/articles-en ) Article 2.I.II: This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any future United States tax code. In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article IV hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process. Article 2.IV: Notwithstanding any other provision of these Articles: a. The Corporation shall not carry on any other activities not permitted to be carried on (i) by a corporation exempt from United States income tax under § 501(c)(3) of the Code or (ii) by a corporation, contributions to which are deductible under § 170(c)(2) of the Code. b. No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall be empowered to make the election under § 501 (h) of the Code. So what does the § 501(c)(3) tax code say? http://bit.ly/1Va1vVt To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized and operated exclusively for exempt purposes set forth in section 501(c)(3), and none of its earnings may inure to any private shareholder or individual. Exempt purposes: https://www.irs.gov/charities-non-profits/charitable-organizations/exempt-pu... The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency. So "lessening the burdens of government" is clearly the key reason for ICANN to operate as 501(c)(3), but as you can see there are other possible purposes. (As a side track, it is particularly important to note the "global public interest" part of the mission which is still undefined and unresolved.) With the new gTLD program generating a large income, ICANN needs to be very careful and show sustained support for "lessening the burdens of government" - thus support all sorts of Internet-related activities outside of ICANN. Not doing so, it could be accused of "excess benefit transactions" https://www.irs.gov/charities-non-profits/charitable-organizations/intermedi... and be sanctioned. ICANN needs to walk a very fine line on this. I am not a US tax attorney and have very little knowledge of the matter, but it is my understanding that if ICANN was to stop supporting initiatives in the wider Internet ecosystem space, activities related to ICANN but not *strictly* relating to Names and Numbers, it would risk losing its 501(c)(3) status. This loss of 501(c)(3) status is completely independent of the point of view that some are holding that ICANN is spending too much money outside ICANN core activities. It is also worth noting that adhering to the conditions for retaining 501(c)(3) status will be a key issue for the allocation of Auction funds. I really think that we should fully play this card when it comes down to use of funds in ICANN. The At-Large Community is part of this "promoting the global public interest" and we need to remind everyone about this regularly. Kindest regards, Olivier -------------------------------------------------------------------------- _______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...) ----------------------------------------------------------------------------ALAC mailing listALAC@atlarge-lists.icann.orghttps://atlarge-lists.icann.org/mailman/listinfo/alacAt-Large Online: http://www.atlarge.icann.orgALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...)
it is amazing how much time and efforts human beings can spend in finding the stable platform to prove the things they do. Resulting in million dollars spent on legal, meetings, travel etc. :) ICANN exists, it runs domains. Business practices established many years ago and world accepted it. I think this is a good explanation what ICANN is. Yours, --andrei 2017-05-01 9:06 GMT+03:00 Kan Kaili <kankaili@gmail.com>:
Hi,
Thank you for your response and comment.
Indeed, now ICANN is fully independent of the US DOC, clearly defining ICANN's functions becomes even more important than before. Otherwise, it may well become a trade association. This is shown from GNSO's discussion of using surplus from the new gTLD program to "promote awareness" of new G. That is, marketing for registries/registrars.
In addition, now the overall environment is quite different from a decade ago. At least, I believe the US Government would not be against the idea of "regulator".
Thus, I wonder if the At-Large community should again begin to advocate ICANN as a "de facto regulator of the cyber world".
Thank you again.
Kaili
----- Original Message ----- *From:* JJS <jjs@dyalog.net> *To:* KAN Kaili <kankaili@gmail.com> *Cc:* Olivier CREPIN-LEBLOND <ocl@gih.com> ; ALAC working list <alac@atlarge-lists.icann.org> *Sent:* Monday, May 01, 2017 1:19 PM *Subject:* Re: [ALAC] ICANN as a 501(c)(3) Organisation
Kaili is quite right in pointing out the fundamental importance of ICANN being truthfully described.
A decade ago, and less, this came up in Board discussions every now and then, the majority swatting down anything suggestive of "regulation". The closest we got to accurately naming ICANN's function was "quasi regulation", but this expression was then redacted from reports. Among the arguments put forward by opponents to such a designation, the fear of aggravating Washington was uppermost. Who were we to dare question a tenet of Reagonomics and Thatcherism, i.e. "Only self-regulation can lead to prosperity"? And never mind if the 2008 financial meltdown proved that self-regulation had failed, common wisdom would not accept the evidence.
This debate is not neutral, especially at a time when we see a perilous convergence between some democracies and the régimes they used to (rightly) criticize. When democracies resort to doctoring facts and smothering free debate, the public interest is in peril.
This may be the right time to put forward, once again, the term "quasi regulatory" to describe ICANN's main function. As in the time of Copernic, calling out reality may not be without risk, but remains essential for human development.
Jean-Jacques.
Le 1 mai 2017, à 03:29, Kan Kaili <kankaili@gmail.com> a écrit:
Hi,
As ICANN CEO visited China last week, I raised a question during the meeting: Exactly what is ICANN?
According to what ICANN does, it is a de facto REGULATOR serving the public interest by regulating the DNS industry.
However, he flatly denied that, saying ICANN is a "stock exchange".
As I see it, this is a fundamental undefined question of ICANN. Even during the openning speech in Copenhagen, Steve Croker said "whatever ICANN is ..."
However, this question leads to the position and weight of ALAC, and the consumers'/end-users' interests, within ICANN, including the number of seats on the Board, budget allocation, etc.
Thus, I hope this question at least could be clarified within the At-Large community, before we can make it clear in ICANN.
Thank you.
Kaili
----- Original Message ----- *From:* Olivier MJ Crepin-Leblond <ocl@gih.com> *To:* ALAC Working List <alac@atlarge-lists.icann.org> *Sent:* Tuesday, April 25, 2017 2:10 PM *Subject:* [ALAC] ICANN as a 501(c)(3) Organisation
Dear Alan,
as a follow-up to my explanation on the ALAC mailing list about ICANN being a 501(c)(3) organisation, the relevant Article of Incorporation paragraph is: (Ref: https://www.icann.org/resources/pages/governance/articles-en )
*Article 2.I.II:This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any future United States tax code. In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article IV hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process.Article 2.IV:Notwithstanding any other provision of these Articles: a. The Corporation shall not carry on any other activities not permitted to be carried on (i) by a corporation exempt from United States income tax under § 501(c)(3) of the Code or (ii) by a corporation, contributions to which are deductible under § 170(c)(2) of the Code.b. No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall be empowered to make the election under § 501 (h) of the Code.*
So what does the § 501(c)(3) tax code say? http://bit.ly/1Va1vVt
To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized <https://www.irs.gov/charities-non-profits/charitable-organizations/organizat...> and operated <https://www.irs.gov/charities-non-profits/charitable-organizations/operation...> exclusively for exempt purposes <https://www.irs.gov/charities-non-profits/charitable-organizations/exempt-pu...> set forth in section 501(c)(3), and none of its earnings may inure <https://www.irs.gov/charities-non-profits/charitable-organizations/inurement...> to any private shareholder or individual.
Exempt purposes:
https://www.irs.gov/charities-non-profits/charitable- organizations/exempt-purposes-internal-revenue-code-section-501c3
*The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.*
So "lessening the burdens of government" is clearly the key reason for ICANN to operate as 501(c)(3), but as you can see there are other possible purposes. (As a side track, it is particularly important to note the "global public interest" part of the mission which is still undefined and unresolved.)
With the new gTLD program generating a large income, ICANN needs to be very careful and show sustained support for "lessening the burdens of government" - thus support all sorts of Internet-related activities outside of ICANN. Not doing so, it could be accused of "excess benefit transactions" https://www.irs.gov/charities-non-profits/charitable- organizations/intermediate-sanctions-excess-benefit-transactions and be sanctioned. ICANN needs to walk a very fine line on this. I am not a US tax attorney and have very little knowledge of the matter, but it is my understanding that if ICANN was to stop supporting initiatives in the wider Internet ecosystem space, activities related to ICANN but not *strictly* relating to Names and Numbers, it would risk losing its 501(c)(3) status.
This loss of 501(c)(3) status is completely independent of the point of view that some are holding that ICANN is spending too much money outside ICANN core activities.
It is also worth noting that adhering to the conditions for retaining 501(c)(3) status will be a key issue for the allocation of Auction funds.
I really think that we should fully play this card when it comes down to use of funds in ICANN. The At-Large Community is part of this "promoting the global public interest" and we need to remind everyone about this regularly.
Kindest regards,
Olivier
------------------------------
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------------------------------
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-- Andrey Kolesnikov RIPN.NET
+1 Andrei. And in any case the boundary between private law and public law is more and more tenuous... Javier Rúa-Jovet +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua
On May 1, 2017, at 3:20 AM, Andrei Kolesnikov <andrei@rol.ru> wrote:
it is amazing how much time and efforts human beings can spend in finding the stable platform to prove the things they do. Resulting in million dollars spent on legal, meetings, travel etc. :) ICANN exists, it runs domains. Business practices established many years ago and world accepted it. I think this is a good explanation what ICANN is.
Yours, --andrei
2017-05-01 9:06 GMT+03:00 Kan Kaili <kankaili@gmail.com>:
Hi,
Thank you for your response and comment.
Indeed, now ICANN is fully independent of the US DOC, clearly defining ICANN's functions becomes even more important than before. Otherwise, it may well become a trade association. This is shown from GNSO's discussion of using surplus from the new gTLD program to "promote awareness" of new G. That is, marketing for registries/registrars.
In addition, now the overall environment is quite different from a decade ago. At least, I believe the US Government would not be against the idea of "regulator".
Thus, I wonder if the At-Large community should again begin to advocate ICANN as a "de facto regulator of the cyber world".
Thank you again.
Kaili
----- Original Message ----- From: JJS To: KAN Kaili Cc: Olivier CREPIN-LEBLOND ; ALAC working list Sent: Monday, May 01, 2017 1:19 PM Subject: Re: [ALAC] ICANN as a 501(c)(3) Organisation
Kaili is quite right in pointing out the fundamental importance of ICANN being truthfully described.
A decade ago, and less, this came up in Board discussions every now and then, the majority swatting down anything suggestive of "regulation". The closest we got to accurately naming ICANN's function was "quasi regulation", but this expression was then redacted from reports. Among the arguments put forward by opponents to such a designation, the fear of aggravating Washington was uppermost. Who were we to dare question a tenet of Reagonomics and Thatcherism, i.e. "Only self-regulation can lead to prosperity"? And never mind if the 2008 financial meltdown proved that self-regulation had failed, common wisdom would not accept the evidence.
This debate is not neutral, especially at a time when we see a perilous convergence between some democracies and the régimes they used to (rightly) criticize. When democracies resort to doctoring facts and smothering free debate, the public interest is in peril.
This may be the right time to put forward, once again, the term "quasi regulatory" to describe ICANN's main function. As in the time of Copernic, calling out reality may not be without risk, but remains essential for human development.
Jean-Jacques.
Le 1 mai 2017, à 03:29, Kan Kaili <kankaili@gmail.com> a écrit: Hi,
As ICANN CEO visited China last week, I raised a question during the meeting: Exactly what is ICANN?
According to what ICANN does, it is a de facto REGULATOR serving the public interest by regulating the DNS industry.
However, he flatly denied that, saying ICANN is a "stock exchange".
As I see it, this is a fundamental undefined question of ICANN. Even during the openning speech in Copenhagen, Steve Croker said "whatever ICANN is ..."
However, this question leads to the position and weight of ALAC, and the consumers'/end-users' interests, within ICANN, including the number of seats on the Board, budget allocation, etc.
Thus, I hope this question at least could be clarified within the At-Large community, before we can make it clear in ICANN.
Thank you.
Kaili
----- Original Message ----- From: Olivier MJ Crepin-Leblond To: ALAC Working List Sent: Tuesday, April 25, 2017 2:10 PM Subject: [ALAC] ICANN as a 501(c)(3) Organisation
Dear Alan,
as a follow-up to my explanation on the ALAC mailing list about ICANN being a 501(c)(3) organisation, the relevant Article of Incorporation paragraph is: (Ref: https://www.icann.org/resources/pages/governance/articles-en )
Article 2.I.II: This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any future United States tax code. In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article IV hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process.
Article 2.IV: Notwithstanding any other provision of these Articles: a. The Corporation shall not carry on any other activities not permitted to be carried on (i) by a corporation exempt from United States income tax under § 501(c)(3) of the Code or (ii) by a corporation, contributions to which are deductible under § 170(c)(2) of the Code. b. No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall be empowered to make the election under § 501 (h) of the Code. So what does the § 501(c)(3) tax code say? http://bit.ly/1Va1vVt
To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized and operated exclusively for exempt purposes set forth in section 501(c)(3), and none of its earnings may inure to any private shareholder or individual.
Exempt purposes:
https://www.irs.gov/charities-non-profits/charitable-organizations/exempt-pu...
The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.
So "lessening the burdens of government" is clearly the key reason for ICANN to operate as 501(c)(3), but as you can see there are other possible purposes. (As a side track, it is particularly important to note the "global public interest" part of the mission which is still undefined and unresolved.)
With the new gTLD program generating a large income, ICANN needs to be very careful and show sustained support for "lessening the burdens of government" - thus support all sorts of Internet-related activities outside of ICANN. Not doing so, it could be accused of "excess benefit transactions" https://www.irs.gov/charities-non-profits/charitable-organizations/intermedi... and be sanctioned. ICANN needs to walk a very fine line on this. I am not a US tax attorney and have very little knowledge of the matter, but it is my understanding that if ICANN was to stop supporting initiatives in the wider Internet ecosystem space, activities related to ICANN but not *strictly* relating to Names and Numbers, it would risk losing its 501(c)(3) status.
This loss of 501(c)(3) status is completely independent of the point of view that some are holding that ICANN is spending too much money outside ICANN core activities.
It is also worth noting that adhering to the conditions for retaining 501(c)(3) status will be a key issue for the allocation of Auction funds.
I really think that we should fully play this card when it comes down to use of funds in ICANN. The At-Large Community is part of this "promoting the global public interest" and we need to remind everyone about this regularly.
Kindest regards,
Olivier
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac
At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...)
ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac
At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...)
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At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...)
-- Andrey Kolesnikov RIPN.NET
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac
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Hi, Andrei, Thank you for your comments. First of all, I fully agree with you that, as you pointed out, ICANN indeed "runs" domains. However, ICANN being a multi-stakeholder entity, exactly who within ICANN "runs" those domains? I am afraid they are the registries and registrars, represented by a part of GNSO. For ccTLDs, those at ccNSO do. However, ALAC obviously does not. Neither do most other AC/SOs, at least not for their own commercial interests. Thus, why does the world needs ICANN? Why is ICANN designed as non-profit instead of a commercial entity to "run" domains? According to my understanding, that is because the public needs somebody responsible and to be in charge of the DNS system. That is, to be responsible for the public interests, primarily the interests of end-users/consumers. Thus, as we can see, about all of what ICANN does, is to prescribe regulations in order to keep those commercial entities, mostly registries and registrars, under a leash. However, as ICANN is international without a legislation behind, these regulations are presented as contracts enforced by a judicial system, currently the State of California. The clear definition of ICANN was not as important before it became independent last year. That is becuase, although not ideal for ICANN's global responsbility, there is a US publicly elected legislation behind who is ultimately in charge. However, after its independence, the definition of ICANN's responsibility becomes vital. Lately, we have seen some people at GNSO discussing using surplus revenue from the new gTLD program to promote "awareness" of the program. To be exact, that is to use ICANN's money as registries'/registrars' marketing budget. Isn't it? Why don't they form their own association and hire their own marketing agency? The only explanation is, they are seeing ICANN as their own trade association and marketing agency. Believe me, I can fully understand that keeping some definitions fuzzy is necessary under certain environments. That is because most people cannot afford the dear "price" to clarify them. However, now we are talking about ICANN and the Internet, where I do not see such a "price" to be paid. This is another reason I strongly suggest we make it clear, especially for ALAC representing the billions of end-users, those who need ICANN to protect their interests as a regulator. Afterall, a "de facto regulator of the cyber space", this is why ICANN was created. Only my personal opinion and to be further discussed. Thank you again. Kaili ----- Original Message ----- From: Andrei Kolesnikov To: Kan Kaili Cc: JJS ; ALAC working list Sent: Monday, May 01, 2017 3:20 PM Subject: Re: [ALAC] ICANN as a 501(c)(3) Organisation it is amazing how much time and efforts human beings can spend in finding the stable platform to prove the things they do. Resulting in million dollars spent on legal, meetings, travel etc. :) ICANN exists, it runs domains. Business practices established many years ago and world accepted it. I think this is a good explanation what ICANN is. Yours, --andrei 2017-05-01 9:06 GMT+03:00 Kan Kaili <kankaili@gmail.com>: Hi, Thank you for your response and comment. Indeed, now ICANN is fully independent of the US DOC, clearly defining ICANN's functions becomes even more important than before. Otherwise, it may well become a trade association. This is shown from GNSO's discussion of using surplus from the new gTLD program to "promote awareness" of new G. That is, marketing for registries/registrars. In addition, now the overall environment is quite different from a decade ago. At least, I believe the US Government would not be against the idea of "regulator". Thus, I wonder if the At-Large community should again begin to advocate ICANN as a "de facto regulator of the cyber world". Thank you again. Kaili ----- Original Message ----- From: JJS To: KAN Kaili Cc: Olivier CREPIN-LEBLOND ; ALAC working list Sent: Monday, May 01, 2017 1:19 PM Subject: Re: [ALAC] ICANN as a 501(c)(3) Organisation Kaili is quite right in pointing out the fundamental importance of ICANN being truthfully described. A decade ago, and less, this came up in Board discussions every now and then, the majority swatting down anything suggestive of "regulation". The closest we got to accurately naming ICANN's function was "quasi regulation", but this expression was then redacted from reports. Among the arguments put forward by opponents to such a designation, the fear of aggravating Washington was uppermost. Who were we to dare question a tenet of Reagonomics and Thatcherism, i.e. "Only self-regulation can lead to prosperity"? And never mind if the 2008 financial meltdown proved that self-regulation had failed, common wisdom would not accept the evidence. This debate is not neutral, especially at a time when we see a perilous convergence between some democracies and the régimes they used to (rightly) criticize. When democracies resort to doctoring facts and smothering free debate, the public interest is in peril. This may be the right time to put forward, once again, the term "quasi regulatory" to describe ICANN's main function. As in the time of Copernic, calling out reality may not be without risk, but remains essential for human development. Jean-Jacques. Le 1 mai 2017, à 03:29, Kan Kaili <kankaili@gmail.com> a écrit: Hi, As ICANN CEO visited China last week, I raised a question during the meeting: Exactly what is ICANN? According to what ICANN does, it is a de facto REGULATOR serving the public interest by regulating the DNS industry. However, he flatly denied that, saying ICANN is a "stock exchange". As I see it, this is a fundamental undefined question of ICANN. Even during the openning speech in Copenhagen, Steve Croker said "whatever ICANN is ..." However, this question leads to the position and weight of ALAC, and the consumers'/end-users' interests, within ICANN, including the number of seats on the Board, budget allocation, etc. Thus, I hope this question at least could be clarified within the At-Large community, before we can make it clear in ICANN. Thank you. Kaili ----- Original Message ----- From: Olivier MJ Crepin-Leblond To: ALAC Working List Sent: Tuesday, April 25, 2017 2:10 PM Subject: [ALAC] ICANN as a 501(c)(3) Organisation Dear Alan, as a follow-up to my explanation on the ALAC mailing list about ICANN being a 501(c)(3) organisation, the relevant Article of Incorporation paragraph is: (Ref: https://www.icann.org/resources/pages/governance/articles-en ) Article 2.I.II: This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any future United States tax code. In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article IV hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process. Article 2.IV: Notwithstanding any other provision of these Articles: a. The Corporation shall not carry on any other activities not permitted to be carried on (i) by a corporation exempt from United States income tax under § 501(c)(3) of the Code or (ii) by a corporation, contributions to which are deductible under § 170(c)(2) of the Code. b. No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall be empowered to make the election under § 501 (h) of the Code. So what does the § 501(c)(3) tax code say? http://bit.ly/1Va1vVt To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized and operated exclusively for exempt purposes set forth in section 501(c)(3), and none of its earnings may inure to any private shareholder or individual. Exempt purposes: https://www.irs.gov/charities-non-profits/charitable-organizations/exempt-pu... The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency. So "lessening the burdens of government" is clearly the key reason for ICANN to operate as 501(c)(3), but as you can see there are other possible purposes. (As a side track, it is particularly important to note the "global public interest" part of the mission which is still undefined and unresolved.) With the new gTLD program generating a large income, ICANN needs to be very careful and show sustained support for "lessening the burdens of government" - thus support all sorts of Internet-related activities outside of ICANN. Not doing so, it could be accused of "excess benefit transactions" https://www.irs.gov/charities-non-profits/charitable-organizations/intermedi... and be sanctioned. ICANN needs to walk a very fine line on this. I am not a US tax attorney and have very little knowledge of the matter, but it is my understanding that if ICANN was to stop supporting initiatives in the wider Internet ecosystem space, activities related to ICANN but not *strictly* relating to Names and Numbers, it would risk losing its 501(c)(3) status. This loss of 501(c)(3) status is completely independent of the point of view that some are holding that ICANN is spending too much money outside ICANN core activities. It is also worth noting that adhering to the conditions for retaining 501(c)(3) status will be a key issue for the allocation of Auction funds. I really think that we should fully play this card when it comes down to use of funds in ICANN. The At-Large Community is part of this "promoting the global public interest" and we need to remind everyone about this regularly. Kindest regards, Olivier ---------------------------------------------------------------------- _______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...) ------------------------------------------------------------------------ALAC mailing listALAC@atlarge-lists.icann.orghttps://atlarge-lists.icann.org/mailman/listinfo/alacAt-Large Online: http://www.atlarge.icann.orgALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...) _______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...) -- Andrey Kolesnikov RIPN.NET
Dear Kaili, I love California, but not LA area... I would appreciate, if ICANN is an NGO registered in Switzerland, but lets be real. Well, we saw an attempt to start the discussion to use ICANN reserves to promote awareness and the reaction to it. Definitely ICANN is a multistakeholder org :) Also ALAC is not representing the billions of end-users (thanks God, whatever he/she is). But a portion of expert community. This is where I'm speaking for myself. The beauty of ICANN is that we all carry different views... Yours, --andrei 2017-05-01 18:59 GMT+03:00 Kan Kaili <kankaili@gmail.com>:
Hi, Andrei,
Thank you for your comments.
First of all, I fully agree with you that, as you pointed out, ICANN indeed "runs" domains.
However, ICANN being a multi-stakeholder entity, exactly who within ICANN "runs" those domains? I am afraid they are the registries and registrars, represented by a part of GNSO. For ccTLDs, those at ccNSO do. However, ALAC obviously does not. Neither do most other AC/SOs, at least not for their own commercial interests.
Thus, why does the world needs ICANN? Why is ICANN designed as non-profit instead of a commercial entity to "run" domains? According to my understanding, that is because the public needs somebody responsible and to be in charge of the DNS system. That is, to be responsible for the public interests, primarily the interests of end-users/consumers.
Thus, as we can see, about all of what ICANN does, is to prescribe regulations in order to keep those commercial entities, mostly registries and registrars, under a leash. However, as ICANN is international without a legislation behind, these regulations are presented as contracts enforced by a judicial system, currently the State of California.
The clear definition of ICANN was not as important before it became independent last year. That is becuase, although not ideal for ICANN's global responsbility, there is a US publicly elected legislation behind who is ultimately in charge. However, after its independence, the definition of ICANN's responsibility becomes vital.
Lately, we have seen some people at GNSO discussing using surplus revenue from the new gTLD program to promote "awareness" of the program. To be exact, that is to use ICANN's money as registries'/registrars' marketing budget. Isn't it? Why don't they form their own association and hire their own marketing agency? The only explanation is, they are seeing ICANN as their own trade association and marketing agency.
Believe me, I can fully understand that keeping some definitions fuzzy is necessary under certain environments. That is because most people cannot afford the dear "price" to clarify them. However, now we are talking about ICANN and the Internet, where I do not see such a "price" to be paid. This is another reason I strongly suggest we make it clear, especially for ALAC representing the billions of end-users, those who need ICANN to protect their interests as a regulator.
Afterall, a "de facto regulator of the cyber space", this is why ICANN was created.
Only my personal opinion and to be further discussed. Thank you again.
Kaili
----- Original Message ----- *From:* Andrei Kolesnikov <andrei@rol.ru> *To:* Kan Kaili <kankaili@gmail.com> *Cc:* JJS <jjs@dyalog.net> ; ALAC working list <alac@atlarge-lists.icann.org> *Sent:* Monday, May 01, 2017 3:20 PM *Subject:* Re: [ALAC] ICANN as a 501(c)(3) Organisation
it is amazing how much time and efforts human beings can spend in finding the stable platform to prove the things they do. Resulting in million dollars spent on legal, meetings, travel etc. :) ICANN exists, it runs domains. Business practices established many years ago and world accepted it. I think this is a good explanation what ICANN is.
Yours, --andrei
2017-05-01 9:06 GMT+03:00 Kan Kaili <kankaili@gmail.com>:
Hi,
Thank you for your response and comment.
Indeed, now ICANN is fully independent of the US DOC, clearly defining ICANN's functions becomes even more important than before. Otherwise, it may well become a trade association. This is shown from GNSO's discussion of using surplus from the new gTLD program to "promote awareness" of new G. That is, marketing for registries/registrars.
In addition, now the overall environment is quite different from a decade ago. At least, I believe the US Government would not be against the idea of "regulator".
Thus, I wonder if the At-Large community should again begin to advocate ICANN as a "de facto regulator of the cyber world".
Thank you again.
Kaili
----- Original Message ----- *From:* JJS <jjs@dyalog.net> *To:* KAN Kaili <kankaili@gmail.com> *Cc:* Olivier CREPIN-LEBLOND <ocl@gih.com> ; ALAC working list <alac@atlarge-lists.icann.org> *Sent:* Monday, May 01, 2017 1:19 PM *Subject:* Re: [ALAC] ICANN as a 501(c)(3) Organisation
Kaili is quite right in pointing out the fundamental importance of ICANN being truthfully described.
A decade ago, and less, this came up in Board discussions every now and then, the majority swatting down anything suggestive of "regulation". The closest we got to accurately naming ICANN's function was "quasi regulation", but this expression was then redacted from reports. Among the arguments put forward by opponents to such a designation, the fear of aggravating Washington was uppermost. Who were we to dare question a tenet of Reagonomics and Thatcherism, i.e. "Only self-regulation can lead to prosperity"? And never mind if the 2008 financial meltdown proved that self-regulation had failed, common wisdom would not accept the evidence.
This debate is not neutral, especially at a time when we see a perilous convergence between some democracies and the régimes they used to (rightly) criticize. When democracies resort to doctoring facts and smothering free debate, the public interest is in peril.
This may be the right time to put forward, once again, the term "quasi regulatory" to describe ICANN's main function. As in the time of Copernic, calling out reality may not be without risk, but remains essential for human development.
Jean-Jacques.
Le 1 mai 2017, à 03:29, Kan Kaili <kankaili@gmail.com> a écrit:
Hi,
As ICANN CEO visited China last week, I raised a question during the meeting: Exactly what is ICANN?
According to what ICANN does, it is a de facto REGULATOR serving the public interest by regulating the DNS industry.
However, he flatly denied that, saying ICANN is a "stock exchange".
As I see it, this is a fundamental undefined question of ICANN. Even during the openning speech in Copenhagen, Steve Croker said "whatever ICANN is ..."
However, this question leads to the position and weight of ALAC, and the consumers'/end-users' interests, within ICANN, including the number of seats on the Board, budget allocation, etc.
Thus, I hope this question at least could be clarified within the At-Large community, before we can make it clear in ICANN.
Thank you.
Kaili
----- Original Message ----- *From:* Olivier MJ Crepin-Leblond <ocl@gih.com> *To:* ALAC Working List <alac@atlarge-lists.icann.org> *Sent:* Tuesday, April 25, 2017 2:10 PM *Subject:* [ALAC] ICANN as a 501(c)(3) Organisation
Dear Alan,
as a follow-up to my explanation on the ALAC mailing list about ICANN being a 501(c)(3) organisation, the relevant Article of Incorporation paragraph is: (Ref: https://www.icann.org/resources/pages/governance/articles-en )
*Article 2.I.II:This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any future United States tax code. In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article IV hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process.Article 2.IV:Notwithstanding any other provision of these Articles: a. The Corporation shall not carry on any other activities not permitted to be carried on (i) by a corporation exempt from United States income tax under § 501(c)(3) of the Code or (ii) by a corporation, contributions to which are deductible under § 170(c)(2) of the Code.b. No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall be empowered to make the election under § 501 (h) of the Code.*
So what does the § 501(c)(3) tax code say? http://bit.ly/1Va1vVt
To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized <https://www.irs.gov/charities-non-profits/charitable-organizations/organizat...> and operated <https://www.irs.gov/charities-non-profits/charitable-organizations/operation...> exclusively for exempt purposes <https://www.irs.gov/charities-non-profits/charitable-organizations/exempt-pu...> set forth in section 501(c)(3), and none of its earnings may inure <https://www.irs.gov/charities-non-profits/charitable-organizations/inurement...> to any private shareholder or individual.
Exempt purposes:
https://www.irs.gov/charities-non-profits/charitable-organiz ations/exempt-purposes-internal-revenue-code-section-501c3
*The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.*
So "lessening the burdens of government" is clearly the key reason for ICANN to operate as 501(c)(3), but as you can see there are other possible purposes. (As a side track, it is particularly important to note the "global public interest" part of the mission which is still undefined and unresolved.)
With the new gTLD program generating a large income, ICANN needs to be very careful and show sustained support for "lessening the burdens of government" - thus support all sorts of Internet-related activities outside of ICANN. Not doing so, it could be accused of "excess benefit transactions" https://www.irs.gov/charities- non-profits/charitable-organizations/intermediate-sanctions- excess-benefit-transactions and be sanctioned. ICANN needs to walk a very fine line on this. I am not a US tax attorney and have very little knowledge of the matter, but it is my understanding that if ICANN was to stop supporting initiatives in the wider Internet ecosystem space, activities related to ICANN but not *strictly* relating to Names and Numbers, it would risk losing its 501(c)(3) status.
This loss of 501(c)(3) status is completely independent of the point of view that some are holding that ICANN is spending too much money outside ICANN core activities.
It is also worth noting that adhering to the conditions for retaining 501(c)(3) status will be a key issue for the allocation of Auction funds.
I really think that we should fully play this card when it comes down to use of funds in ICANN. The At-Large Community is part of this "promoting the global public interest" and we need to remind everyone about this regularly.
Kindest regards,
Olivier
------------------------------
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------------------------------
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-- Andrey Kolesnikov RIPN.NET
-- Andrey Kolesnikov RIPN.NET
I would add my +1 to Andrei on this. Cheers! On May 2, 2017 22:01, "Andrei Kolesnikov" <andrei@rol.ru> wrote:
Dear Kaili, I love California, but not LA area... I would appreciate, if ICANN is an NGO registered in Switzerland, but lets be real.
Well, we saw an attempt to start the discussion to use ICANN reserves to promote awareness and the reaction to it. Definitely ICANN is a multistakeholder org :)
Also ALAC is not representing the billions of end-users (thanks God, whatever he/she is). But a portion of expert community. This is where I'm speaking for myself. The beauty of ICANN is that we all carry different views...
Yours, --andrei
2017-05-01 18:59 GMT+03:00 Kan Kaili <kankaili@gmail.com>:
Hi, Andrei,
Thank you for your comments.
First of all, I fully agree with you that, as you pointed out, ICANN indeed "runs" domains.
However, ICANN being a multi-stakeholder entity, exactly who within ICANN "runs" those domains? I am afraid they are the registries and registrars, represented by a part of GNSO. For ccTLDs, those at ccNSO do. However, ALAC obviously does not. Neither do most other AC/SOs, at least not for their own commercial interests.
Thus, why does the world needs ICANN? Why is ICANN designed as non-profit instead of a commercial entity to "run" domains? According to my understanding, that is because the public needs somebody responsible and to be in charge of the DNS system. That is, to be responsible for the public interests, primarily the interests of end-users/consumers.
Thus, as we can see, about all of what ICANN does, is to prescribe regulations in order to keep those commercial entities, mostly registries and registrars, under a leash. However, as ICANN is international without a legislation behind, these regulations are presented as contracts enforced by a judicial system, currently the State of California.
The clear definition of ICANN was not as important before it became independent last year. That is becuase, although not ideal for ICANN's global responsbility, there is a US publicly elected legislation behind who is ultimately in charge. However, after its independence, the definition of ICANN's responsibility becomes vital.
Lately, we have seen some people at GNSO discussing using surplus revenue from the new gTLD program to promote "awareness" of the program. To be exact, that is to use ICANN's money as registries'/registrars' marketing budget. Isn't it? Why don't they form their own association and hire their own marketing agency? The only explanation is, they are seeing ICANN as their own trade association and marketing agency.
Believe me, I can fully understand that keeping some definitions fuzzy is necessary under certain environments. That is because most people cannot afford the dear "price" to clarify them. However, now we are talking about ICANN and the Internet, where I do not see such a "price" to be paid. This is another reason I strongly suggest we make it clear, especially for ALAC representing the billions of end-users, those who need ICANN to protect their interests as a regulator.
Afterall, a "de facto regulator of the cyber space", this is why ICANN was created.
Only my personal opinion and to be further discussed. Thank you again.
Kaili
----- Original Message ----- *From:* Andrei Kolesnikov <andrei@rol.ru> *To:* Kan Kaili <kankaili@gmail.com> *Cc:* JJS <jjs@dyalog.net> ; ALAC working list <alac@atlarge-lists.icann.org> *Sent:* Monday, May 01, 2017 3:20 PM *Subject:* Re: [ALAC] ICANN as a 501(c)(3) Organisation
it is amazing how much time and efforts human beings can spend in finding the stable platform to prove the things they do. Resulting in million dollars spent on legal, meetings, travel etc. :) ICANN exists, it runs domains. Business practices established many years ago and world accepted it. I think this is a good explanation what ICANN is.
Yours, --andrei
2017-05-01 9:06 GMT+03:00 Kan Kaili <kankaili@gmail.com>:
Hi,
Thank you for your response and comment.
Indeed, now ICANN is fully independent of the US DOC, clearly defining ICANN's functions becomes even more important than before. Otherwise, it may well become a trade association. This is shown from GNSO's discussion of using surplus from the new gTLD program to "promote awareness" of new G. That is, marketing for registries/registrars.
In addition, now the overall environment is quite different from a decade ago. At least, I believe the US Government would not be against the idea of "regulator".
Thus, I wonder if the At-Large community should again begin to advocate ICANN as a "de facto regulator of the cyber world".
Thank you again.
Kaili
----- Original Message ----- *From:* JJS <jjs@dyalog.net> *To:* KAN Kaili <kankaili@gmail.com> *Cc:* Olivier CREPIN-LEBLOND <ocl@gih.com> ; ALAC working list <alac@atlarge-lists.icann.org> *Sent:* Monday, May 01, 2017 1:19 PM *Subject:* Re: [ALAC] ICANN as a 501(c)(3) Organisation
Kaili is quite right in pointing out the fundamental importance of ICANN being truthfully described.
A decade ago, and less, this came up in Board discussions every now and then, the majority swatting down anything suggestive of "regulation". The closest we got to accurately naming ICANN's function was "quasi regulation", but this expression was then redacted from reports. Among the arguments put forward by opponents to such a designation, the fear of aggravating Washington was uppermost. Who were we to dare question a tenet of Reagonomics and Thatcherism, i.e. "Only self-regulation can lead to prosperity"? And never mind if the 2008 financial meltdown proved that self-regulation had failed, common wisdom would not accept the evidence.
This debate is not neutral, especially at a time when we see a perilous convergence between some democracies and the régimes they used to (rightly) criticize. When democracies resort to doctoring facts and smothering free debate, the public interest is in peril.
This may be the right time to put forward, once again, the term "quasi regulatory" to describe ICANN's main function. As in the time of Copernic, calling out reality may not be without risk, but remains essential for human development.
Jean-Jacques.
Le 1 mai 2017, à 03:29, Kan Kaili <kankaili@gmail.com> a écrit:
Hi,
As ICANN CEO visited China last week, I raised a question during the meeting: Exactly what is ICANN?
According to what ICANN does, it is a de facto REGULATOR serving the public interest by regulating the DNS industry.
However, he flatly denied that, saying ICANN is a "stock exchange".
As I see it, this is a fundamental undefined question of ICANN. Even during the openning speech in Copenhagen, Steve Croker said "whatever ICANN is ..."
However, this question leads to the position and weight of ALAC, and the consumers'/end-users' interests, within ICANN, including the number of seats on the Board, budget allocation, etc.
Thus, I hope this question at least could be clarified within the At-Large community, before we can make it clear in ICANN.
Thank you.
Kaili
----- Original Message ----- *From:* Olivier MJ Crepin-Leblond <ocl@gih.com> *To:* ALAC Working List <alac@atlarge-lists.icann.org> *Sent:* Tuesday, April 25, 2017 2:10 PM *Subject:* [ALAC] ICANN as a 501(c)(3) Organisation
Dear Alan,
as a follow-up to my explanation on the ALAC mailing list about ICANN being a 501(c)(3) organisation, the relevant Article of Incorporation paragraph is: (Ref: https://www.icann.org/resources/pages/governance/articles-en )
*Article 2.I.II:This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any future United States tax code. In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article IV hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process.Article 2.IV:Notwithstanding any other provision of these Articles: a. The Corporation shall not carry on any other activities not permitted to be carried on (i) by a corporation exempt from United States income tax under § 501(c)(3) of the Code or (ii) by a corporation, contributions to which are deductible under § 170(c)(2) of the Code.b. No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall be empowered to make the election under § 501 (h) of the Code.*
So what does the § 501(c)(3) tax code say? http://bit.ly/1Va1vVt
To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized <https://www.irs.gov/charities-non-profits/charitable-organizations/organizat...> and operated <https://www.irs.gov/charities-non-profits/charitable-organizations/operation...> exclusively for exempt purposes <https://www.irs.gov/charities-non-profits/charitable-organizations/exempt-pu...> set forth in section 501(c)(3), and none of its earnings may inure <https://www.irs.gov/charities-non-profits/charitable-organizations/inurement...> to any private shareholder or individual.
Exempt purposes:
https://www.irs.gov/charities-non-profits/charitable-organiz ations/exempt-purposes-internal-revenue-code-section-501c3
*The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.*
So "lessening the burdens of government" is clearly the key reason for ICANN to operate as 501(c)(3), but as you can see there are other possible purposes. (As a side track, it is particularly important to note the "global public interest" part of the mission which is still undefined and unresolved.)
With the new gTLD program generating a large income, ICANN needs to be very careful and show sustained support for "lessening the burdens of government" - thus support all sorts of Internet-related activities outside of ICANN. Not doing so, it could be accused of "excess benefit transactions" https://www.irs.gov/charities- non-profits/charitable-organizations/intermediate-sanctions- excess-benefit-transactions and be sanctioned. ICANN needs to walk a very fine line on this. I am not a US tax attorney and have very little knowledge of the matter, but it is my understanding that if ICANN was to stop supporting initiatives in the wider Internet ecosystem space, activities related to ICANN but not *strictly* relating to Names and Numbers, it would risk losing its 501(c)(3) status.
This loss of 501(c)(3) status is completely independent of the point of view that some are holding that ICANN is spending too much money outside ICANN core activities.
It is also worth noting that adhering to the conditions for retaining 501(c)(3) status will be a key issue for the allocation of Auction funds.
I really think that we should fully play this card when it comes down to use of funds in ICANN. The At-Large Community is part of this "promoting the global public interest" and we need to remind everyone about this regularly.
Kindest regards,
Olivier
------------------------------
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At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/di splay/atlarge/At-Large+Advisory+Committee+(ALAC)
------------------------------
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At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...)
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At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/di splay/atlarge/At-Large+Advisory+Committee+(ALAC)
-- Andrey Kolesnikov RIPN.NET
-- Andrey Kolesnikov RIPN.NET
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Hi, Andrei, Thank you for your reply and comments. First of all, I fully agree with you on "I love California, but not LA area... ". That is why my other residence besides Beijing is in Silicon Valley. :) Regarding what is ALAC, I also fully agree that we are among an expert community. However, the "expert community" does not represent a single party's interests. Just as regular consumers need lawyers to represent them in court against big industries and corporations, within ICANN, we at ALAC are the professional "lawyers" to represent the billions of end-users in order to keep a leash on the DNS industry and their "lawyers". This is the nature of ALAC, something I learned over the year-and-half working at CCT-RT. A few months ago when I told ALAC's Board member Rinalia about this, her reply was "Kaili, you have learned." :) Thanks again, Andrei. Maybe becuase of similar backgrounds, it's always so nice having discussions with you. Kaili ----- Original Message ----- From: Andrei Kolesnikov To: Kan Kaili Cc: JJS ; ALAC working list Sent: Wednesday, May 03, 2017 5:01 AM Subject: Re: [ALAC] ICANN as a 501(c)(3) Organisation Dear Kaili, I love California, but not LA area... I would appreciate, if ICANN is an NGO registered in Switzerland, but lets be real. Well, we saw an attempt to start the discussion to use ICANN reserves to promote awareness and the reaction to it. Definitely ICANN is a multistakeholder org :) Also ALAC is not representing the billions of end-users (thanks God, whatever he/she is). But a portion of expert community. This is where I'm speaking for myself. The beauty of ICANN is that we all carry different views... Yours, --andrei 2017-05-01 18:59 GMT+03:00 Kan Kaili <kankaili@gmail.com>: Hi, Andrei, Thank you for your comments. First of all, I fully agree with you that, as you pointed out, ICANN indeed "runs" domains. However, ICANN being a multi-stakeholder entity, exactly who within ICANN "runs" those domains? I am afraid they are the registries and registrars, represented by a part of GNSO. For ccTLDs, those at ccNSO do. However, ALAC obviously does not. Neither do most other AC/SOs, at least not for their own commercial interests. Thus, why does the world needs ICANN? Why is ICANN designed as non-profit instead of a commercial entity to "run" domains? According to my understanding, that is because the public needs somebody responsible and to be in charge of the DNS system. That is, to be responsible for the public interests, primarily the interests of end-users/consumers. Thus, as we can see, about all of what ICANN does, is to prescribe regulations in order to keep those commercial entities, mostly registries and registrars, under a leash. However, as ICANN is international without a legislation behind, these regulations are presented as contracts enforced by a judicial system, currently the State of California. The clear definition of ICANN was not as important before it became independent last year. That is becuase, although not ideal for ICANN's global responsbility, there is a US publicly elected legislation behind who is ultimately in charge. However, after its independence, the definition of ICANN's responsibility becomes vital. Lately, we have seen some people at GNSO discussing using surplus revenue from the new gTLD program to promote "awareness" of the program. To be exact, that is to use ICANN's money as registries'/registrars' marketing budget. Isn't it? Why don't they form their own association and hire their own marketing agency? The only explanation is, they are seeing ICANN as their own trade association and marketing agency. Believe me, I can fully understand that keeping some definitions fuzzy is necessary under certain environments. That is because most people cannot afford the dear "price" to clarify them. However, now we are talking about ICANN and the Internet, where I do not see such a "price" to be paid. This is another reason I strongly suggest we make it clear, especially for ALAC representing the billions of end-users, those who need ICANN to protect their interests as a regulator. Afterall, a "de facto regulator of the cyber space", this is why ICANN was created. Only my personal opinion and to be further discussed. Thank you again. Kaili ----- Original Message ----- From: Andrei Kolesnikov To: Kan Kaili Cc: JJS ; ALAC working list Sent: Monday, May 01, 2017 3:20 PM Subject: Re: [ALAC] ICANN as a 501(c)(3) Organisation it is amazing how much time and efforts human beings can spend in finding the stable platform to prove the things they do. Resulting in million dollars spent on legal, meetings, travel etc. :) ICANN exists, it runs domains. Business practices established many years ago and world accepted it. I think this is a good explanation what ICANN is. Yours, --andrei 2017-05-01 9:06 GMT+03:00 Kan Kaili <kankaili@gmail.com>: Hi, Thank you for your response and comment. Indeed, now ICANN is fully independent of the US DOC, clearly defining ICANN's functions becomes even more important than before. Otherwise, it may well become a trade association. This is shown from GNSO's discussion of using surplus from the new gTLD program to "promote awareness" of new G. That is, marketing for registries/registrars. In addition, now the overall environment is quite different from a decade ago. At least, I believe the US Government would not be against the idea of "regulator". Thus, I wonder if the At-Large community should again begin to advocate ICANN as a "de facto regulator of the cyber world". Thank you again. Kaili ----- Original Message ----- From: JJS To: KAN Kaili Cc: Olivier CREPIN-LEBLOND ; ALAC working list Sent: Monday, May 01, 2017 1:19 PM Subject: Re: [ALAC] ICANN as a 501(c)(3) Organisation Kaili is quite right in pointing out the fundamental importance of ICANN being truthfully described. A decade ago, and less, this came up in Board discussions every now and then, the majority swatting down anything suggestive of "regulation". The closest we got to accurately naming ICANN's function was "quasi regulation", but this expression was then redacted from reports. Among the arguments put forward by opponents to such a designation, the fear of aggravating Washington was uppermost. Who were we to dare question a tenet of Reagonomics and Thatcherism, i.e. "Only self-regulation can lead to prosperity"? And never mind if the 2008 financial meltdown proved that self-regulation had failed, common wisdom would not accept the evidence. This debate is not neutral, especially at a time when we see a perilous convergence between some democracies and the régimes they used to (rightly) criticize. When democracies resort to doctoring facts and smothering free debate, the public interest is in peril. This may be the right time to put forward, once again, the term "quasi regulatory" to describe ICANN's main function. As in the time of Copernic, calling out reality may not be without risk, but remains essential for human development. Jean-Jacques. Le 1 mai 2017, à 03:29, Kan Kaili <kankaili@gmail.com> a écrit: Hi, As ICANN CEO visited China last week, I raised a question during the meeting: Exactly what is ICANN? According to what ICANN does, it is a de facto REGULATOR serving the public interest by regulating the DNS industry. However, he flatly denied that, saying ICANN is a "stock exchange". As I see it, this is a fundamental undefined question of ICANN. Even during the openning speech in Copenhagen, Steve Croker said "whatever ICANN is ..." However, this question leads to the position and weight of ALAC, and the consumers'/end-users' interests, within ICANN, including the number of seats on the Board, budget allocation, etc. Thus, I hope this question at least could be clarified within the At-Large community, before we can make it clear in ICANN. Thank you. Kaili ----- Original Message ----- From: Olivier MJ Crepin-Leblond To: ALAC Working List Sent: Tuesday, April 25, 2017 2:10 PM Subject: [ALAC] ICANN as a 501(c)(3) Organisation Dear Alan, as a follow-up to my explanation on the ALAC mailing list about ICANN being a 501(c)(3) organisation, the relevant Article of Incorporation paragraph is: (Ref: https://www.icann.org/resources/pages/governance/articles-en ) Article 2.I.II: This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any future United States tax code. In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article IV hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process. Article 2.IV: Notwithstanding any other provision of these Articles: a. The Corporation shall not carry on any other activities not permitted to be carried on (i) by a corporation exempt from United States income tax under § 501(c)(3) of the Code or (ii) by a corporation, contributions to which are deductible under § 170(c)(2) of the Code. b. No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall be empowered to make the election under § 501 (h) of the Code. So what does the § 501(c)(3) tax code say? http://bit.ly/1Va1vVt To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized and operated exclusively for exempt purposes set forth in section 501(c)(3), and none of its earnings may inure to any private shareholder or individual. Exempt purposes: https://www.irs.gov/charities-non-profits/charitable-organizations/exempt-pu... The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency. So "lessening the burdens of government" is clearly the key reason for ICANN to operate as 501(c)(3), but as you can see there are other possible purposes. (As a side track, it is particularly important to note the "global public interest" part of the mission which is still undefined and unresolved.) With the new gTLD program generating a large income, ICANN needs to be very careful and show sustained support for "lessening the burdens of government" - thus support all sorts of Internet-related activities outside of ICANN. Not doing so, it could be accused of "excess benefit transactions" https://www.irs.gov/charities-non-profits/charitable-organizations/intermedi... and be sanctioned. ICANN needs to walk a very fine line on this. I am not a US tax attorney and have very little knowledge of the matter, but it is my understanding that if ICANN was to stop supporting initiatives in the wider Internet ecosystem space, activities related to ICANN but not *strictly* relating to Names and Numbers, it would risk losing its 501(c)(3) status. This loss of 501(c)(3) status is completely independent of the point of view that some are holding that ICANN is spending too much money outside ICANN core activities. It is also worth noting that adhering to the conditions for retaining 501(c)(3) status will be a key issue for the allocation of Auction funds. I really think that we should fully play this card when it comes down to use of funds in ICANN. The At-Large Community is part of this "promoting the global public interest" and we need to remind everyone about this regularly. Kindest regards, Olivier ------------------------------------------------------------------ _______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...) --------------------------------------------------------------------ALAC mailing listALAC@atlarge-lists.icann.orghttps://atlarge-lists.icann.org/mailman/listinfo/alacAt-Large Online: http://www.atlarge.icann.orgALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...) _______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...) -- Andrey Kolesnikov RIPN.NET -- Andrey Kolesnikov RIPN.NET
Subtlety aside, the settled definition of the function is central to having an answer to the question "In whose interest?"? If you caucus with the At-Large in ICANN and whether you hail from the Trans-Caucasus, the Caribbean, Outer Mongolia or Timbuktu, it might be best if we have a common understanding of role and what we defend. -Carlton ============================== *Carlton A Samuels* *Mobile: 876-818-1799Strategy, Planning, Governance, Assessment & Turnaround* ============================= On Mon, May 1, 2017 at 2:20 AM, Andrei Kolesnikov <andrei@rol.ru> wrote:
it is amazing how much time and efforts human beings can spend in finding the stable platform to prove the things they do. Resulting in million dollars spent on legal, meetings, travel etc. :) ICANN exists, it runs domains. Business practices established many years ago and world accepted it. I think this is a good explanation what ICANN is.
Yours, --andrei
2017-05-01 9:06 GMT+03:00 Kan Kaili <kankaili@gmail.com>:
Hi,
Thank you for your response and comment.
Indeed, now ICANN is fully independent of the US DOC, clearly defining ICANN's functions becomes even more important than before. Otherwise, it may well become a trade association. This is shown from GNSO's discussion of using surplus from the new gTLD program to "promote awareness" of new G. That is, marketing for registries/registrars.
In addition, now the overall environment is quite different from a decade ago. At least, I believe the US Government would not be against the idea of "regulator".
Thus, I wonder if the At-Large community should again begin to advocate ICANN as a "de facto regulator of the cyber world".
Thank you again.
Kaili
----- Original Message ----- *From:* JJS <jjs@dyalog.net> *To:* KAN Kaili <kankaili@gmail.com> *Cc:* Olivier CREPIN-LEBLOND <ocl@gih.com> ; ALAC working list <alac@atlarge-lists.icann.org> *Sent:* Monday, May 01, 2017 1:19 PM *Subject:* Re: [ALAC] ICANN as a 501(c)(3) Organisation
Kaili is quite right in pointing out the fundamental importance of ICANN being truthfully described.
A decade ago, and less, this came up in Board discussions every now and then, the majority swatting down anything suggestive of "regulation". The closest we got to accurately naming ICANN's function was "quasi regulation", but this expression was then redacted from reports. Among the arguments put forward by opponents to such a designation, the fear of aggravating Washington was uppermost. Who were we to dare question a tenet of Reagonomics and Thatcherism, i.e. "Only self-regulation can lead to prosperity"? And never mind if the 2008 financial meltdown proved that self-regulation had failed, common wisdom would not accept the evidence.
This debate is not neutral, especially at a time when we see a perilous convergence between some democracies and the régimes they used to (rightly) criticize. When democracies resort to doctoring facts and smothering free debate, the public interest is in peril.
This may be the right time to put forward, once again, the term "quasi regulatory" to describe ICANN's main function. As in the time of Copernic, calling out reality may not be without risk, but remains essential for human development.
Jean-Jacques.
Le 1 mai 2017, à 03:29, Kan Kaili <kankaili@gmail.com> a écrit:
Hi,
As ICANN CEO visited China last week, I raised a question during the meeting: Exactly what is ICANN?
According to what ICANN does, it is a de facto REGULATOR serving the public interest by regulating the DNS industry.
However, he flatly denied that, saying ICANN is a "stock exchange".
As I see it, this is a fundamental undefined question of ICANN. Even during the openning speech in Copenhagen, Steve Croker said "whatever ICANN is ..."
However, this question leads to the position and weight of ALAC, and the consumers'/end-users' interests, within ICANN, including the number of seats on the Board, budget allocation, etc.
Thus, I hope this question at least could be clarified within the At-Large community, before we can make it clear in ICANN.
Thank you.
Kaili
----- Original Message ----- *From:* Olivier MJ Crepin-Leblond <ocl@gih.com> *To:* ALAC Working List <alac@atlarge-lists.icann.org> *Sent:* Tuesday, April 25, 2017 2:10 PM *Subject:* [ALAC] ICANN as a 501(c)(3) Organisation
Dear Alan,
as a follow-up to my explanation on the ALAC mailing list about ICANN being a 501(c)(3) organisation, the relevant Article of Incorporation paragraph is: (Ref: https://www.icann.org/resources/pages/governance/articles-en )
*Article 2.I.II:This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of § 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any future United States tax code. In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article IV hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time. Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process.Article 2.IV:Notwithstanding any other provision of these Articles: a. The Corporation shall not carry on any other activities not permitted to be carried on (i) by a corporation exempt from United States income tax under § 501(c)(3) of the Code or (ii) by a corporation, contributions to which are deductible under § 170(c)(2) of the Code.b. No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall be empowered to make the election under § 501 (h) of the Code.*
So what does the § 501(c)(3) tax code say? http://bit.ly/1Va1vVt
To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized <https://www.irs.gov/charities-non-profits/charitable-organizations/organizat...> and operated <https://www.irs.gov/charities-non-profits/charitable-organizations/operation...> exclusively for exempt purposes <https://www.irs.gov/charities-non-profits/charitable-organizations/exempt-pu...> set forth in section 501(c)(3), and none of its earnings may inure <https://www.irs.gov/charities-non-profits/charitable-organizations/inurement...> to any private shareholder or individual.
Exempt purposes:
https://www.irs.gov/charities-non-profits/charitable-organiz ations/exempt-purposes-internal-revenue-code-section-501c3
*The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.*
So "lessening the burdens of government" is clearly the key reason for ICANN to operate as 501(c)(3), but as you can see there are other possible purposes. (As a side track, it is particularly important to note the "global public interest" part of the mission which is still undefined and unresolved.)
With the new gTLD program generating a large income, ICANN needs to be very careful and show sustained support for "lessening the burdens of government" - thus support all sorts of Internet-related activities outside of ICANN. Not doing so, it could be accused of "excess benefit transactions" https://www.irs.gov/charities- non-profits/charitable-organizations/intermediate-sanctions- excess-benefit-transactions and be sanctioned. ICANN needs to walk a very fine line on this. I am not a US tax attorney and have very little knowledge of the matter, but it is my understanding that if ICANN was to stop supporting initiatives in the wider Internet ecosystem space, activities related to ICANN but not *strictly* relating to Names and Numbers, it would risk losing its 501(c)(3) status.
This loss of 501(c)(3) status is completely independent of the point of view that some are holding that ICANN is spending too much money outside ICANN core activities.
It is also worth noting that adhering to the conditions for retaining 501(c)(3) status will be a key issue for the allocation of Auction funds.
I really think that we should fully play this card when it comes down to use of funds in ICANN. The At-Large Community is part of this "promoting the global public interest" and we need to remind everyone about this regularly.
Kindest regards,
Olivier
------------------------------
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac
At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/di splay/atlarge/At-Large+Advisory+Committee+(ALAC)
------------------------------
ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac
At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...)
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac
At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/di splay/atlarge/At-Large+Advisory+Committee+(ALAC)
-- Andrey Kolesnikov RIPN.NET
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac
At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+ Advisory+Committee+(ALAC)
On Mon, May 1, 2017 at 12:19 AM, JJS <jjs@dyalog.net> wrote:
As in the time of Copernic, calling out reality may not be without risk, but remains essential for human development.
+1 -Carlton ============================== *Carlton A Samuels* *Mobile: 876-818-1799Strategy, Planning, Governance, Assessment & Turnaround* =============================
participants (8)
-
Andrei Kolesnikov -
Carlton Samuels -
Holly Raiche -
Javier Rua -
JJS -
Kan Kaili -
Olivier MJ Crepin-Leblond -
Seun Ojedeji