CCWG California Law Response
I believe that the CWG should be aware of the response from Jones Day to the CCWG's questions of California law noted below while we are considering options and they will feed into the acceptability of both models under discussion: https://mm.icann.org/pipermail/accountability-cross-community/attachments/20... I have copied an excerpt extracted and notes on the domainmondo article below: http://www.domainmondo.com/2015/02/icann-lawyers-nix-icann-accountability.ht...
Initial Responses to the Community Working Group's California Law Questions, 7 February 2015,from Jones Day (ICANN's lawyers) to questions submitted by the Cross Community Working Group (CCWG).... (excerpts below, full responses here<http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150208/ed62a5b3/AccountabilityQuestionsforCCWG-fromJonesDay-0001.pdf>)--
Jones Day: ".... It is important to note that, even in the context of members and delegates, California law provides that the activities and affairs of ICANN still must be conducted and all corporate powers must be exercised by or under the direction of the Board. Accordingly, members and delegates cannot force the Board to take a certain action or overturn a Board decision. The rights of members and delegates under California law are limited and are more closely associated with approval rights over specified actions, rather than the right to second guess or supersede Board action or inaction. For example, members would only be entitled to approve the Board's budget and would not be able to propose or approve a separate budget. As with any new structure, adding "members" or "delegates" raises a considerable number of governance issues, including the mechanisms to hold these new members or delegates accountable, how these members/delegates would be selected (and how could they be changed), what specified matters would the members/delegates be entitled to approve, what would be the applicable voting threshold for each specified matter, how often would member/delegate meetings be held and how much notice would be required for those meetings, and how would the creation of members/delegates affect the existing Board selection structure. Further, any new structure must be evaluated against the question of whether the new structure actually solves the underlying problem or meets the underlying goal. In some respects, the introduction of "members" or "delegates," while initially appealing, may not solve the underlying problems and could simply result in moving the "problems" to another body of individuals where similar accountability concerns would persist (i.e., who watches the watchers) .... "4. In the case of inaction by the Board on an issue developed through community consensus, is it possible to have a mechanism that will empower the community to require the Board to take action? "No. California law does not provide for a mechanism that would empower the community, regardless of whether ICANN has members or not, to force the Board to take action on a community proposal. The activities and affairs of ICANN must be managed and all corporate powers must be exercised under the ultimate direction of the Board...." James Gannon Director Cyber Invasion Ltd Dun Laoghaire, County Dublin, Ireland Office: +353 (1)663-8787 Cell: +353 (86)175-3581 Email:james@cyberinvasion.net<mailto:james@cyberinvasion.net?subject=Via:%20Email%20Signature> GPG: https://keybase.io/jayg
People who read this should keep in mind that Jones Day is ICANN's lawyer and as such has an interest in, if not an obligation to, interpret or represent the law in ways that serve the interests of its client. From: cwg-rfp3-bounces@icann.org [mailto:cwg-rfp3-bounces@icann.org] On Behalf Of James Gannon Sent: Sunday, February 8, 2015 5:11 AM To: cwg-stewardship@icann.org Cc: RFP3 Subject: [CWG-RFP3] CCWG California Law Response I believe that the CWG should be aware of the response from Jones Day to the CCWG's questions of California law noted below while we are considering options and they will feed into the acceptability of both models under discussion: https://mm.icann.org/pipermail/accountability-cross-community/attachments/20... I have copied an excerpt extracted and notes on the domainmondo article below: http://www.domainmondo.com/2015/02/icann-lawyers-nix-icann-accountability.ht...
Initial Responses to the Community Working Group's California Law Questions, 7 February 2015,from Jones Day (ICANN's lawyers) to questions submitted by the Cross Community Working Group (CCWG).... (excerpts below, full responses here<http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150208/ed62a5b3/AccountabilityQuestionsforCCWG-fromJonesDay-0001.pdf>)--
Jones Day: ".... It is important to note that, even in the context of members and delegates, California law provides that the activities and affairs of ICANN still must be conducted and all corporate powers must be exercised by or under the direction of the Board. Accordingly, members and delegates cannot force the Board to take a certain action or overturn a Board decision. The rights of members and delegates under California law are limited and are more closely associated with approval rights over specified actions, rather than the right to second guess or supersede Board action or inaction. For example, members would only be entitled to approve the Board's budget and would not be able to propose or approve a separate budget. As with any new structure, adding "members" or "delegates" raises a considerable number of governance issues, including the mechanisms to hold these new members or delegates accountable, how these members/delegates would be selected (and how could they be changed), what specified matters would the members/delegates be entitled to approve, what would be the applicable voting threshold for each specified matter, how often would member/delegate meetings be held and how much notice would be required for those meetings, and how would the creation of members/delegates affect the existing Board selection structure. Further, any new structure must be evaluated against the question of whether the new structure actually solves the underlying problem or meets the underlying goal. In some respects, the introduction of "members" or "delegates," while initially appealing, may not solve the underlying problems and could simply result in moving the "problems" to another body of individuals where similar accountability concerns would persist (i.e., who watches the watchers) .... "4. In the case of inaction by the Board on an issue developed through community consensus, is it possible to have a mechanism that will empower the community to require the Board to take action? "No. California law does not provide for a mechanism that would empower the community, regardless of whether ICANN has members or not, to force the Board to take action on a community proposal. The activities and affairs of ICANN must be managed and all corporate powers must be exercised under the ultimate direction of the Board...." James Gannon Director Cyber Invasion Ltd Dun Laoghaire, County Dublin, Ireland Office: +353 (1)663-8787 Cell: +353 (86)175-3581 Email:james@cyberinvasion.net<mailto:james@cyberinvasion.net?subject=Via:%20Email%20Signature> GPG: https://keybase.io/jayg
I read it with some interest, and as was pointed out by Milton and others in the Accountability WG, it is legal that advocates from and for a particular perspective. Which is of course fine, so long as we don't treat this as definitive legal opinion for our purposes. To me, it seems to suggest either of two outcomes: - The re-domiciling of ICANN to a jurisdiction that would allow the community to assert itself upon the board - Some version of the external to ICANN option we've been discussing Graeme On 2015-02-09 1:33 AM, Milton L Mueller wrote:
People who read this should keep in mind that Jones Day is ICANN’s lawyer and as such has an interest in, if not an obligation to, interpret or represent the law in ways that serve the interests of its client.
*From:*cwg-rfp3-bounces@icann.org [mailto:cwg-rfp3-bounces@icann.org] *On Behalf Of *James Gannon *Sent:* Sunday, February 8, 2015 5:11 AM *To:* cwg-stewardship@icann.org *Cc:* RFP3 *Subject:* [CWG-RFP3] CCWG California Law Response
I believe that the CWG should be aware of the response from Jones Day to the CCWG’s questions of California law noted below while we are considering options and they will feed into the acceptability of both models under discussion:
https://mm.icann.org/pipermail/accountability-cross-community/attachments/20...
I have copied an excerpt extracted and notes on the domainmondo article below: http://www.domainmondo.com/2015/02/icann-lawyers-nix-icann-accountability.ht...
Initial Responses to the Community Working Group’s California Law Questions, 7 February 2015,from Jones Day (ICANN's lawyers) to questions submitted by the Cross Community Working Group (CCWG).... (excerpts below, full responses here <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150208/ed62a5b3/AccountabilityQuestionsforCCWG-fromJonesDay-0001.pdf>)--
Jones Day: “…. It is important to note that, even in the context of members and delegates, California law provides that the activities and affairs of ICANN still must be conducted and all corporate powers must be exercised by or under the direction of the Board. Accordingly, members and delegates cannot force the Board to take a certain action or overturn a Board decision. The rights of members and delegates under California law are limited and are more closely associated with approval rights over specified actions, rather than the right to second guess or supersede Board action or inaction. For example, members would only be entitled to approve the Board’s budget and would not be able to propose or approve a separate budget. As with any new structure, adding “members” or “delegates” raises a considerable number of governance issues, including the mechanisms to hold these new members or delegates accountable, how these members/delegates would be selected (and how could they be changed), what specified matters would the members/delegates be entitled to approve, what would be the applicable voting threshold for each specified matter, how often would member/delegate meetings be held and how much notice would be required for those meetings, and how would the creation of members/delegates affect the existing Board selection structure. Further, any new structure must be evaluated against the question of whether the new structure actually solves the underlying problem or meets the underlying goal. In some respects, the introduction of “members” or “delegates,” while initially appealing, may not solve the underlying problems and could simply result in moving the “problems” to another body of individuals where similar accountability concerns would persist (i.e., who watches the watchers) ….
“4. In the case of inaction by the Board on an issue developed through community consensus, is it possible to have a mechanism that will empower the community to require the Board to take action?
“No. California law does not provide for a mechanism that would empower the community, regardless of whether ICANN has members or not, to force the Board to take action on a community proposal. The activities and affairs of ICANN must be managed and all corporate powers must be exercised under the ultimate direction of the Board….”
*James Gannon*
*Director*
*Cyber Invasion Ltd*
*Dun Laoghaire, County Dublin, Ireland*
*Office: +353 (1)663-8787*
*Cell: +353 (86)175-3581*
*Email:james@cyberinvasion.net <mailto:james@cyberinvasion.net?subject=Via:%20Email%20Signature>*
*GPG: https://keybase.io/jayg*
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
-- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634
Graeme, May I gently suggest that you are treating this as a definitive legal opinion by stating the two outcomes you think it suggests. I think the outcome it suggests is that we need independent legal counseling. I use t he word "counseling" and not "advice" on purpose. A good counselor solves a client's problems and protects the client from risk. A document like the one in question is at best a jumping off point for such counseling, which is by definition interactive and iterative in nature. That said, it's entirely possible that, even after robust attempts at problem-solving, that the proposal that best meets the needs of the global multistakeholder community could involve an external-to-ICANN option or could only be feasible under the laws of a different jurisdiction. But we are far, far away from this. I'll admit that, in my private practice, there are times I feel that I have to walk clients through fairly negative steps in terms of the legal environment, risks and worst-case scenarios. But then the real work starts (I might even say "the fun begins" but that sounds kind of pathetically wonky), starting with "But this is what we can do..." and tell them how we will meet their needs. Of course, there are times when you need to tell clients "No," but most of the time, it should be "No, but..." It's the really rare case where you say "No. Just No." (or how do you look in an orange jumpsuit...). Even in those cases, you try to find the client a reasonable solution to as many of their key points as possible. So, rather than looking at this as a conversation stopper, it will be more fruitful to view it as a conversation starter. Greg On Monday, February 9, 2015, Graeme Bunton <gbunton@tucows.com> wrote:
I read it with some interest, and as was pointed out by Milton and others in the Accountability WG, it is legal that advocates from and for a particular perspective. Which is of course fine, so long as we don't treat this as definitive legal opinion for our purposes.
To me, it seems to suggest either of two outcomes: - The re-domiciling of ICANN to a jurisdiction that would allow the community to assert itself upon the board - Some version of the external to ICANN option we've been discussing
Graeme
On 2015-02-09 1:33 AM, Milton L Mueller wrote:
People who read this should keep in mind that Jones Day is ICANN’s lawyer and as such has an interest in, if not an obligation to, interpret or represent the law in ways that serve the interests of its client.
*From:* cwg-rfp3-bounces@icann.org [mailto:cwg-rfp3-bounces@icann.org] *On Behalf Of *James Gannon *Sent:* Sunday, February 8, 2015 5:11 AM *To:* cwg-stewardship@icann.org *Cc:* RFP3 *Subject:* [CWG-RFP3] CCWG California Law Response
I believe that the CWG should be aware of the response from Jones Day to the CCWG’s questions of California law noted below while we are considering options and they will feed into the acceptability of both models under discussion:
https://mm.icann.org/pipermail/accountability-cross-community/attachments/20...
I have copied an excerpt extracted and notes on the domainmondo article below: http://www.domainmondo.com/2015/02/icann-lawyers-nix-icann-accountability.ht...
Initial Responses to the Community Working Group’s California Law Questions, 7 February 2015,from Jones Day (ICANN's lawyers) to questions submitted by the Cross Community Working Group (CCWG).... (excerpts below, full responses here <http://mm.icann.org/pipermail/accountability-cross-community/attachments/201...> )--
Jones Day: “…. It is important to note that, even in the context of members and delegates, California law provides that the activities and affairs of ICANN still must be conducted and all corporate powers must be exercised by or under the direction of the Board. Accordingly, members and delegates cannot force the Board to take a certain action or overturn a Board decision. The rights of members and delegates under California law are limited and are more closely associated with approval rights over specified actions, rather than the right to second guess or supersede Board action or inaction. For example, members would only be entitled to approve the Board’s budget and would not be able to propose or approve a separate budget. As with any new structure, adding “members” or “delegates” raises a considerable number of governance issues, including the mechanisms to hold these new members or delegates accountable, how these members/delegates would be selected (and how could they be changed), what specified matters would the members/delegates be entitled to approve, what would be the applicable voting threshold for each specified matter, how often would member/delegate meetings be held and how much notice would be required for those meetings, and how would the creation of members/delegates affect the existing Board selection structure. Further, any new structure must be evaluated against the question of whether the new structure actually solves the underlying problem or meets the underlying goal. In some respects, the introduction of “members” or “delegates,” while initially appealing, may not solve the underlying problems and could simply result in moving the “problems” to another body of individuals where similar accountability concerns would persist (i.e., who watches the watchers) ….
“4. In the case of inaction by the Board on an issue developed through community consensus, is it possible to have a mechanism that will empower the community to require the Board to take action?
“No. California law does not provide for a mechanism that would empower the community, regardless of whether ICANN has members or not, to force the Board to take action on a community proposal. The activities and affairs of ICANN must be managed and all corporate powers must be exercised under the ultimate direction of the Board….”
*James Gannon*
*Director*
*Cyber Invasion Ltd*
*Dun Laoghaire, County Dublin, Ireland*
*Office: +353 (1)663-8787 <%2B353%20%281%29663-8787>*
*Cell: +353 (86)175-3581 <%2B353%20%2886%29175-3581>*
*Email:james@cyberinvasion.net*
*GPG: https://keybase.io/jayg <https://keybase.io/jayg>*
_______________________________________________ CWG-Stewardship mailing listCWG-Stewardship@icann.orghttps://mm.icann.org/mailman/listinfo/cwg-stewardship
-- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634
Thanks Greg, Perhaps my desire for brevity left a bit too much open for interpretation. So, hopefully I can clarify: The Jones Day document is only one input of many. In my mind it should not be construed as definitive or final and we should absolutely continue to seek out and assess our own legal advice (as we are doing). I am very much looking forward to the fruits of those labours. I was merely sharing the thoughts that came to me as I read it, with the intent as you suggest to initiate some conversation. I also agree that we are a long way away from making the sort of determinations that I think are raised by that document. In short, I'm trying to discuss and ponder the content,without trying to elevate its source above any other input we might have. If the general sense is that the Jones Day advice isn't helpful, or even possibly distracting or detractive from our process, then lets acknowledge it as such and carry on. Perhaps it would have been more constructive if I had phrased those thoughts as questions, rather than statements. I think what you're saying is lets get to those questions when we're farther down the road and have our own advice. Graeme On 2015-02-09 11:29 AM, Greg Shatan wrote:
Graeme,
May I gently suggest that you are treating this as a definitive legal opinion by stating the two outcomes you think it suggests.
I think the outcome it suggests is that we need independent legal counseling. I use t he word "counseling" and not "advice" on purpose. A good counselor solves a client's problems and protects the client from risk. A document like the one in question is at best a jumping off point for such counseling, which is by definition interactive and iterative in nature.
That said, it's entirely possible that, even after robust attempts at problem-solving, that the proposal that best meets the needs of the global multistakeholder community could involve an external-to-ICANN option or could only be feasible under the laws of a different jurisdiction.
But we are far, far away from this.
I'll admit that, in my private practice, there are times I feel that I have to walk clients through fairly negative steps in terms of the legal environment, risks and worst-case scenarios. But then the real work starts (I might even say "the fun begins" but that sounds kind of pathetically wonky), starting with "But this is what we can do..." and tell them how we will meet their needs. Of course, there are times when you need to tell clients "No," but most of the time, it should be "No, but..." It's the really rare case where you say "No. Just No." (or how do you look in an orange jumpsuit...). Even in those cases, you try to find the client a reasonable solution to as many of their key points as possible.
So, rather than looking at this as a conversation stopper, it will be more fruitful to view it as a conversation starter.
Greg
On Monday, February 9, 2015, Graeme Bunton <gbunton@tucows.com <mailto:gbunton@tucows.com>> wrote:
I read it with some interest, and as was pointed out by Milton and others in the Accountability WG, it is legal that advocates from and for a particular perspective. Which is of course fine, so long as we don't treat this as definitive legal opinion for our purposes.
To me, it seems to suggest either of two outcomes: - The re-domiciling of ICANN to a jurisdiction that would allow the community to assert itself upon the board - Some version of the external to ICANN option we've been discussing
Graeme
On 2015-02-09 1:33 AM, Milton L Mueller wrote:
People who read this should keep in mind that Jones Day is ICANN’s lawyer and as such has an interest in, if not an obligation to, interpret or represent the law in ways that serve the interests of its client.
*From:*cwg-rfp3-bounces@icann.org [mailto:cwg-rfp3-bounces@icann.org] *On Behalf Of *James Gannon *Sent:* Sunday, February 8, 2015 5:11 AM *To:* cwg-stewardship@icann.org *Cc:* RFP3 *Subject:* [CWG-RFP3] CCWG California Law Response
I believe that the CWG should be aware of the response from Jones Day to the CCWG’s questions of California law noted below while we are considering options and they will feed into the acceptability of both models under discussion:
https://mm.icann.org/pipermail/accountability-cross-community/attachments/20...
I have copied an excerpt extracted and notes on the domainmondo article below: http://www.domainmondo.com/2015/02/icann-lawyers-nix-icann-accountability.ht...
>>Initial Responses to the Community Working Group’s California Law Questions, 7 February 2015,from Jones Day (ICANN's lawyers) to questions submitted by the Cross Community Working Group (CCWG).... (excerpts below, full responses here <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150208/ed62a5b3/AccountabilityQuestionsforCCWG-fromJonesDay-0001.pdf>)--
Jones Day: “…. It is important to note that, even in the context of members and delegates, California law provides that the activities and affairs of ICANN still must be conducted and all corporate powers must be exercised by or under the direction of the Board. Accordingly, members and delegates cannot force the Board to take a certain action or overturn a Board decision. The rights of members and delegates under California law are limited and are more closely associated with approval rights over specified actions, rather than the right to second guess or supersede Board action or inaction. For example, members would only be entitled to approve the Board’s budget and would not be able to propose or approve a separate budget. As with any new structure, adding “members” or “delegates” raises a considerable number of governance issues, including the mechanisms to hold these new members or delegates accountable, how these members/delegates would be selected (and how could they be changed), what specified matters would the members/delegates be entitled to approve, what would be the applicable voting threshold for each specified matter, how often would member/delegate meetings be held and how much notice would be required for those meetings, and how would the creation of members/delegates affect the existing Board selection structure. Further, any new structure must be evaluated against the question of whether the new structure actually solves the underlying problem or meets the underlying goal. In some respects, the introduction of “members” or “delegates,” while initially appealing, may not solve the underlying problems and could simply result in moving the “problems” to another body of individuals where similar accountability concerns would persist (i.e., who watches the watchers) ….
“4. In the case of inaction by the Board on an issue developed through community consensus, is it possible to have a mechanism that will empower the community to require the Board to take action?
“No. California law does not provide for a mechanism that would empower the community, regardless of whether ICANN has members or not, to force the Board to take action on a community proposal. The activities and affairs of ICANN must be managed and all corporate powers must be exercised under the ultimate direction of the Board….”
*James Gannon*
*Director*
*Cyber Invasion Ltd*
*Dun Laoghaire, County Dublin, Ireland*
*Office: +353 (1)663-8787 <tel:%2B353%20%281%29663-8787>*
*Cell: +353 (86)175-3581 <tel:%2B353%20%2886%29175-3581>*
*Email:james@cyberinvasion.net*
*GPG: https://keybase.io/jayg*
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
-- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH:416 535 0123 ext 1634 <tel:416%20535%200123%20ext%201634>
-- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634
Thank you Greg for this response. I indeed hope that Californian law will proof to be more flexible than suggested by the advice because I am not looking forward to a discussion on all possible jurisdictions worldwide that could provide for what we need. Maarten From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Monday 9 February 2015 11:29 To: Graeme Bunton <gbunton@tucows.com<mailto:gbunton@tucows.com>> Cc: "cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>" <cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>>, "cwg-rfp3@icann.org<mailto:cwg-rfp3@icann.org>" <cwg-rfp3@icann.org<mailto:cwg-rfp3@icann.org>> Subject: Re: [CWG-Stewardship] CCWG California Law Response Graeme, May I gently suggest that you are treating this as a definitive legal opinion by stating the two outcomes you think it suggests. I think the outcome it suggests is that we need independent legal counseling. I use t he word "counseling" and not "advice" on purpose. A good counselor solves a client's problems and protects the client from risk. A document like the one in question is at best a jumping off point for such counseling, which is by definition interactive and iterative in nature. That said, it's entirely possible that, even after robust attempts at problem-solving, that the proposal that best meets the needs of the global multistakeholder community could involve an external-to-ICANN option or could only be feasible under the laws of a different jurisdiction. But we are far, far away from this. I'll admit that, in my private practice, there are times I feel that I have to walk clients through fairly negative steps in terms of the legal environment, risks and worst-case scenarios. But then the real work starts (I might even say "the fun begins" but that sounds kind of pathetically wonky), starting with "But this is what we can do..." and tell them how we will meet their needs. Of course, there are times when you need to tell clients "No," but most of the time, it should be "No, but..." It's the really rare case where you say "No. Just No." (or how do you look in an orange jumpsuit...). Even in those cases, you try to find the client a reasonable solution to as many of their key points as possible. So, rather than looking at this as a conversation stopper, it will be more fruitful to view it as a conversation starter. Greg On Monday, February 9, 2015, Graeme Bunton <gbunton@tucows.com<mailto:gbunton@tucows.com>> wrote: I read it with some interest, and as was pointed out by Milton and others in the Accountability WG, it is legal that advocates from and for a particular perspective. Which is of course fine, so long as we don't treat this as definitive legal opinion for our purposes. To me, it seems to suggest either of two outcomes: - The re-domiciling of ICANN to a jurisdiction that would allow the community to assert itself upon the board - Some version of the external to ICANN option we've been discussing Graeme On 2015-02-09 1:33 AM, Milton L Mueller wrote: People who read this should keep in mind that Jones Day is ICANN’s lawyer and as such has an interest in, if not an obligation to, interpret or represent the law in ways that serve the interests of its client. From:cwg-rfp3-bounces@icann.org [mailto:cwg-rfp3-bounces@icann.org] On Behalf Of James Gannon Sent: Sunday, February 8, 2015 5:11 AM To: cwg-stewardship@icann.org Cc: RFP3 Subject: [CWG-RFP3] CCWG California Law Response I believe that the CWG should be aware of the response from Jones Day to the CCWG’s questions of California law noted below while we are considering options and they will feed into the acceptability of both models under discussion: https://mm.icann.org/pipermail/accountability-cross-community/attachments/20... I have copied an excerpt extracted and notes on the domainmondo article below: http://www.domainmondo.com/2015/02/icann-lawyers-nix-icann-accountability.ht...
Initial Responses to the Community Working Group’s California Law Questions, 7 February 2015,from Jones Day (ICANN's lawyers) to questions submitted by the Cross Community Working Group (CCWG).... (excerpts below, full responses here<http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150208/ed62a5b3/AccountabilityQuestionsforCCWG-fromJonesDay-0001.pdf>)--
Jones Day: “…. It is important to note that, even in the context of members and delegates, California law provides that the activities and affairs of ICANN still must be conducted and all corporate powers must be exercised by or under the direction of the Board. Accordingly, members and delegates cannot force the Board to take a certain action or overturn a Board decision. The rights of members and delegates under California law are limited and are more closely associated with approval rights over specified actions, rather than the right to second guess or supersede Board action or inaction. For example, members would only be entitled to approve the Board’s budget and would not be able to propose or approve a separate budget. As with any new structure, adding “members” or “delegates” raises a considerable number of governance issues, including the mechanisms to hold these new members or delegates accountable, how these members/delegates would be selected (and how could they be changed), what specified matters would the members/delegates be entitled to approve, what would be the applicable voting threshold for each specified matter, how often would member/delegate meetings be held and how much notice would be required for those meetings, and how would the creation of members/delegates affect the existing Board selection structure. Further, any new structure must be evaluated against the question of whether the new structure actually solves the underlying problem or meets the underlying goal. In some respects, the introduction of “members” or “delegates,” while initially appealing, may not solve the underlying problems and could simply result in moving the “problems” to another body of individuals where similar accountability concerns would persist (i.e., who watches the watchers) …. “4. In the case of inaction by the Board on an issue developed through community consensus, is it possible to have a mechanism that will empower the community to require the Board to take action? “No. California law does not provide for a mechanism that would empower the community, regardless of whether ICANN has members or not, to force the Board to take action on a community proposal. The activities and affairs of ICANN must be managed and all corporate powers must be exercised under the ultimate direction of the Board….” James Gannon Director Cyber Invasion Ltd Dun Laoghaire, County Dublin, Ireland Office: +353 (1)663-8787<tel:%2B353%20%281%29663-8787> Cell: +353 (86)175-3581<tel:%2B353%20%2886%29175-3581> Email:james@cyberinvasion.net GPG: https://keybase.io/jayg _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.orghttps://mm.icann.org/mailman/listinfo/cwg-stewardship -- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634<tel:416%20535%200123%20ext%201634>
I'm a little surprised that you are all surprised by the contents of ICANN's lawyers' memo. This has been the position of Jones Day for years and it has been used repeatedly to undercut community recommendations for better accountability. The big difference this time around is that we have it in black and white, and publicly, before the final recommendations have been made. In the past, the legal advice has typically only made it into the Board's hands after the recommendations have been provided. They have then been dropped. Another fact from this: ICANN corporate is going to fight all proposed changes that see it lose any kind of power. And the Board will likely feel obliged to follow the legal advice of its lawyers over a third party. So the question becomes: how do you force ICANN Corporate to shift its position *before* the process is closed off? Because if you leave that detail until after (call it 'implementation'), it will never happen. Kieren Kieren - [sent through phone] On Sun, Feb 8, 2015 at 9:04 PM, Maarten Simon <maarten.simon@sidn.nl> wrote:
Thank you Greg for this response. I indeed hope that Californian law will proof to be more flexible than suggested by the advice because I am not looking forward to a discussion on all possible jurisdictions worldwide that could provide for what we need. Maarten From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Monday 9 February 2015 11:29 To: Graeme Bunton <gbunton@tucows.com<mailto:gbunton@tucows.com>> Cc: "cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>" <cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>>, "cwg-rfp3@icann.org<mailto:cwg-rfp3@icann.org>" <cwg-rfp3@icann.org<mailto:cwg-rfp3@icann.org>> Subject: Re: [CWG-Stewardship] CCWG California Law Response Graeme, May I gently suggest that you are treating this as a definitive legal opinion by stating the two outcomes you think it suggests. I think the outcome it suggests is that we need independent legal counseling. I use t he word "counseling" and not "advice" on purpose. A good counselor solves a client's problems and protects the client from risk. A document like the one in question is at best a jumping off point for such counseling, which is by definition interactive and iterative in nature. That said, it's entirely possible that, even after robust attempts at problem-solving, that the proposal that best meets the needs of the global multistakeholder community could involve an external-to-ICANN option or could only be feasible under the laws of a different jurisdiction. But we are far, far away from this. I'll admit that, in my private practice, there are times I feel that I have to walk clients through fairly negative steps in terms of the legal environment, risks and worst-case scenarios. But then the real work starts (I might even say "the fun begins" but that sounds kind of pathetically wonky), starting with "But this is what we can do..." and tell them how we will meet their needs. Of course, there are times when you need to tell clients "No," but most of the time, it should be "No, but..." It's the really rare case where you say "No. Just No." (or how do you look in an orange jumpsuit...). Even in those cases, you try to find the client a reasonable solution to as many of their key points as possible. So, rather than looking at this as a conversation stopper, it will be more fruitful to view it as a conversation starter. Greg On Monday, February 9, 2015, Graeme Bunton <gbunton@tucows.com<mailto:gbunton@tucows.com>> wrote: I read it with some interest, and as was pointed out by Milton and others in the Accountability WG, it is legal that advocates from and for a particular perspective. Which is of course fine, so long as we don't treat this as definitive legal opinion for our purposes. To me, it seems to suggest either of two outcomes: - The re-domiciling of ICANN to a jurisdiction that would allow the community to assert itself upon the board - Some version of the external to ICANN option we've been discussing Graeme On 2015-02-09 1:33 AM, Milton L Mueller wrote: People who read this should keep in mind that Jones Day is ICANN’s lawyer and as such has an interest in, if not an obligation to, interpret or represent the law in ways that serve the interests of its client. From:cwg-rfp3-bounces@icann.org [mailto:cwg-rfp3-bounces@icann.org] On Behalf Of James Gannon Sent: Sunday, February 8, 2015 5:11 AM To: cwg-stewardship@icann.org Cc: RFP3 Subject: [CWG-RFP3] CCWG California Law Response I believe that the CWG should be aware of the response from Jones Day to the CCWG’s questions of California law noted below while we are considering options and they will feed into the acceptability of both models under discussion: https://mm.icann.org/pipermail/accountability-cross-community/attachments/20... I have copied an excerpt extracted and notes on the domainmondo article below: http://www.domainmondo.com/2015/02/icann-lawyers-nix-icann-accountability.ht...
Initial Responses to the Community Working Group’s California Law Questions, 7 February 2015,from Jones Day (ICANN's lawyers) to questions submitted by the Cross Community Working Group (CCWG).... (excerpts below, full responses here<http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150208/ed62a5b3/AccountabilityQuestionsforCCWG-fromJonesDay-0001.pdf>)-- Jones Day: “…. It is important to note that, even in the context of members and delegates, California law provides that the activities and affairs of ICANN still must be conducted and all corporate powers must be exercised by or under the direction of the Board. Accordingly, members and delegates cannot force the Board to take a certain action or overturn a Board decision. The rights of members and delegates under California law are limited and are more closely associated with approval rights over specified actions, rather than the right to second guess or supersede Board action or inaction. For example, members would only be entitled to approve the Board’s budget and would not be able to propose or approve a separate budget. As with any new structure, adding “members” or “delegates” raises a considerable number of governance issues, including the mechanisms to hold these new members or delegates accountable, how these members/delegates would be selected (and how could they be changed), what specified matters would the members/delegates be entitled to approve, what would be the applicable voting threshold for each specified matter, how often would member/delegate meetings be held and how much notice would be required for those meetings, and how would the creation of members/delegates affect the existing Board selection structure. Further, any new structure must be evaluated against the question of whether the new structure actually solves the underlying problem or meets the underlying goal. In some respects, the introduction of “members” or “delegates,” while initially appealing, may not solve the underlying problems and could simply result in moving the “problems” to another body of individuals where similar accountability concerns would persist (i.e., who watches the watchers) …. “4. In the case of inaction by the Board on an issue developed through community consensus, is it possible to have a mechanism that will empower the community to require the Board to take action? “No. California law does not provide for a mechanism that would empower the community, regardless of whether ICANN has members or not, to force the Board to take action on a community proposal. The activities and affairs of ICANN must be managed and all corporate powers must be exercised under the ultimate direction of the Board….” James Gannon Director Cyber Invasion Ltd Dun Laoghaire, County Dublin, Ireland Office: +353 (1)663-8787<tel:%2B353%20%281%29663-8787> Cell: +353 (86)175-3581<tel:%2B353%20%2886%29175-3581> Email:james@cyberinvasion.net GPG: https://keybase.io/jayg
CWG-Stewardship mailing list CWG-Stewardship@icann.orghttps://mm.icann.org/mailman/listinfo/cwg-stewardship -- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634<tel:416%20535%200123%20ext%201634>
Kieren, With all due respect;
Another fact from this: ICANN corporate is going to fight all proposed changes that see it lose any kind of power. And the Board will likely feel obliged to follow the legal advice of its lawyers over a third party.
…that is not a fact. It is at best speculation. It is possibly journalistic licence. It is, at its worst, intentionally mischievous and misleading. Cheers, Chris On 10 Feb 2015, at 02:27 , Kieren McCarthy <kierenmccarthy@gmail.com> wrote:
I'm a little surprised that you are all surprised by the contents of ICANN's lawyers' memo.
This has been the position of Jones Day for years and it has been used repeatedly to undercut community recommendations for better accountability.
The big difference this time around is that we have it in black and white, and publicly, before the final recommendations have been made.
In the past, the legal advice has typically only made it into the Board's hands after the recommendations have been provided. They have then been dropped.
Another fact from this: ICANN corporate is going to fight all proposed changes that see it lose any kind of power. And the Board will likely feel obliged to follow the legal advice of its lawyers over a third party.
So the question becomes: how do you force ICANN Corporate to shift its position *before* the process is closed off?
Because if you leave that detail until after (call it 'implementation'), it will never happen.
Kieren
Kieren
- [sent through phone]
On Sun, Feb 8, 2015 at 9:04 PM, Maarten Simon <maarten.simon@sidn.nl> wrote:
Thank you Greg for this response. I indeed hope that Californian law will proof to be more flexible than suggested by the advice because I am not looking forward to a discussion on all possible jurisdictions worldwide that could provide for what we need.
Maarten
From: Greg Shatan <gregshatanipc@gmail.com> Date: Monday 9 February 2015 11:29 To: Graeme Bunton <gbunton@tucows.com> Cc: "cwg-stewardship@icann.org" <cwg-stewardship@icann.org>, "cwg-rfp3@icann.org" <cwg-rfp3@icann.org> Subject: Re: [CWG-Stewardship] CCWG California Law Response
Graeme,
May I gently suggest that you are treating this as a definitive legal opinion by stating the two outcomes you think it suggests.
I think the outcome it suggests is that we need independent legal counseling. I use t he word "counseling" and not "advice" on purpose. A good counselor solves a client's problems and protects the client from risk. A document like the one in question is at best a jumping off point for such counseling, which is by definition interactive and iterative in nature.
That said, it's entirely possible that, even after robust attempts at problem-solving, that the proposal that best meets the needs of the global multistakeholder community could involve an external-to-ICANN option or could only be feasible under the laws of a different jurisdiction.
But we are far, far away from this.
I'll admit that, in my private practice, there are times I feel that I have to walk clients through fairly negative steps in terms of the legal environment, risks and worst-case scenarios. But then the real work starts (I might even say "the fun begins" but that sounds kind of pathetically wonky), starting with "But this is what we can do..." and tell them how we will meet their needs. Of course, there are times when you need to tell clients "No," but most of the time, it should be "No, but..." It's the really rare case where you say "No. Just No." (or how do you look in an orange jumpsuit...). Even in those cases, you try to find the client a reasonable solution to as many of their key points as possible.
So, rather than looking at this as a conversation stopper, it will be more fruitful to view it as a conversation starter.
Greg
On Monday, February 9, 2015, Graeme Bunton <gbunton@tucows.com> wrote: I read it with some interest, and as was pointed out by Milton and others in the Accountability WG, it is legal that advocates from and for a particular perspective. Which is of course fine, so long as we don't treat this as definitive legal opinion for our purposes.
To me, it seems to suggest either of two outcomes: - The re-domiciling of ICANN to a jurisdiction that would allow the community to assert itself upon the board - Some version of the external to ICANN option we've been discussing
Graeme
On 2015-02-09 1:33 AM, Milton L Mueller wrote:
People who read this should keep in mind that Jones Day is ICANN’s lawyer and as such has an interest in, if not an obligation to, interpret or represent the law in ways that serve the interests of its client.
From:cwg-rfp3-bounces@icann.org [mailto:cwg-rfp3-bounces@icann.org] On Behalf Of James Gannon Sent: Sunday, February 8, 2015 5:11 AM To: cwg-stewardship@icann.org Cc: RFP3 Subject: [CWG-RFP3] CCWG California Law Response
I believe that the CWG should be aware of the response from Jones Day to the CCWG’s questions of California law noted below while we are considering options and they will feed into the acceptability of both models under discussion:
https://mm.icann.org/pipermail/accountability-cross-community/attachments/20...
I have copied an excerpt extracted and notes on the domainmondo article below: http://www.domainmondo.com/2015/02/icann-lawyers-nix-icann-accountability.ht...
Initial Responses to the Community Working Group’s California Law Questions, 7 February 2015,from Jones Day (ICANN's lawyers) to questions submitted by the Cross Community Working Group (CCWG).... (excerpts below, full responses here)--
Jones Day: “…. It is important to note that, even in the context of members and delegates, California law provides that the activities and affairs of ICANN still must be conducted and all corporate powers must be exercised by or under the direction of the Board. Accordingly, members and delegates cannot force the Board to take a certain action or overturn a Board decision. The rights of members and delegates under California law are limited and are more closely associated with approval rights over specified actions, rather than the right to second guess or supersede Board action or inaction. For example, members would only be entitled to approve the Board’s budget and would not be able to propose or approve a separate budget. As with any new structure, adding “members” or “delegates” raises a considerable number of governance issues, including the mechanisms to hold these new members or delegates accountable, how these members/delegates would be selected (and how could they be changed), what specified matters would the members/delegates be entitled to approve, what would be the applicable voting threshold for each specified matter, how often would member/delegate meetings be held and how much notice would be required for those meetings, and how would the creation of members/delegates affect the existing Board selection structure. Further, any new structure must be evaluated against the question of whether the new structure actually solves the underlying problem or meets the underlying goal. In some respects, the introduction of “members” or “delegates,” while initially appealing, may not solve the underlying problems and could simply result in moving the “problems” to another body of individuals where similar accountability concerns would persist (i.e., who watches the watchers) ….
“4. In the case of inaction by the Board on an issue developed through community consensus, is it possible to have a mechanism that will empower the community to require the Board to take action?
“No. California law does not provide for a mechanism that would empower the community, regardless of whether ICANN has members or not, to force the Board to take action on a community proposal. The activities and affairs of ICANN must be managed and all corporate powers must be exercised under the ultimate direction of the Board….”
James Gannon
Director
Cyber Invasion Ltd
Dun Laoghaire, County Dublin, Ireland
Office: +353 (1)663-8787
Cell: +353 (86)175-3581
Email:james@cyberinvasion.net
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.orghttps://mm.icann.org/mailman/listinfo/cwg-stewardship
-- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
I wasn't really responding as a journalist, I was emailing as someone who was ICANN staff support on not one but two previous accountability reviews, who has been interviewed for two more accountability reviews, and who has closely followed as an ICANN community member the remaining three accountability reviews. Saying that ICANN Corporate will fight against any changes that dilutes its power is only speculation if you consider saying that the GNSO will split along contracted/non-contracted party lines is speculation, or that the opening ceremony will have speeches from ICANN's chair and the local telecoms minister is speculation. When the same thing happens repeatedly over long stretches of time and in response to different inputs, it ceases to be speculation and becomes inevitable. Or, to look at it differently, I can point to literally dozens of statements where ICANN staff, Board members and now outside legal counsel have said that it is not possible, or advisable, or practical, or necessary, or legal (!) to make changes whose main import would be to reduce the power of the staff and Board. I have yet to see one statement by those same people in support of handing over ultimate decision-making power to any one person, group, organization or thing. Of course, it is in your power Chris to dispel this speculation today. You can simple state on the record that you believe the ICANN community should be granted the final decision-making power and that the Board should be required to follow its decisions. If the ICANN Board agrees that this is the correct approach, then I am pretty sure we will find the whole process changes overnight and the legal memos becomes significantly less certain about what California law says. Kieren On Mon, Feb 9, 2015 at 8:11 AM, Chris Disspain <ceo@auda.org.au> wrote:
Kieren,
With all due respect;
Another fact from this: ICANN corporate is going to fight all proposed changes that see it lose any kind of power. And the Board will likely feel obliged to follow the legal advice of its lawyers over a third party.
…that is not a fact. It is at best speculation. It is possibly journalistic licence. It is, at its worst, intentionally mischievous and misleading.
Cheers,
Chris
On 10 Feb 2015, at 02:27 , Kieren McCarthy <kierenmccarthy@gmail.com> wrote:
I'm a little surprised that you are all surprised by the contents of ICANN's lawyers' memo.
This has been the position of Jones Day for years and it has been used repeatedly to undercut community recommendations for better accountability.
The big difference this time around is that we have it in black and white, and publicly, before the final recommendations have been made.
In the past, the legal advice has typically only made it into the Board's hands after the recommendations have been provided. They have then been dropped.
Another fact from this: ICANN corporate is going to fight all proposed changes that see it lose any kind of power. And the Board will likely feel obliged to follow the legal advice of its lawyers over a third party.
So the question becomes: how do you force ICANN Corporate to shift its position *before* the process is closed off?
Because if you leave that detail until after (call it 'implementation'), it will never happen.
Kieren
Kieren
- [sent through phone]
On Sun, Feb 8, 2015 at 9:04 PM, Maarten Simon <maarten.simon@sidn.nl> wrote:
Thank you Greg for this response. I indeed hope that Californian law will proof to be more flexible than suggested by the advice because I am not looking forward to a discussion on all possible jurisdictions worldwide that could provide for what we need.
Maarten
From: Greg Shatan <gregshatanipc@gmail.com> Date: Monday 9 February 2015 11:29 To: Graeme Bunton <gbunton@tucows.com> Cc: "cwg-stewardship@icann.org" <cwg-stewardship@icann.org>, " cwg-rfp3@icann.org" <cwg-rfp3@icann.org> Subject: Re: [CWG-Stewardship] CCWG California Law Response
Graeme,
May I gently suggest that you are treating this as a definitive legal opinion by stating the two outcomes you think it suggests.
I think the outcome it suggests is that we need independent legal counseling. I use t he word "counseling" and not "advice" on purpose. A good counselor solves a client's problems and protects the client from risk. A document like the one in question is at best a jumping off point for such counseling, which is by definition interactive and iterative in nature.
That said, it's entirely possible that, even after robust attempts at problem-solving, that the proposal that best meets the needs of the global multistakeholder community could involve an external-to-ICANN option or could only be feasible under the laws of a different jurisdiction.
But we are far, far away from this.
I'll admit that, in my private practice, there are times I feel that I have to walk clients through fairly negative steps in terms of the legal environment, risks and worst-case scenarios. But then the real work starts (I might even say "the fun begins" but that sounds kind of pathetically wonky), starting with "But this is what we can do..." and tell them how we will meet their needs. Of course, there are times when you need to tell clients "No," but most of the time, it should be "No, but..." It's the really rare case where you say "No. Just No." (or how do you look in an orange jumpsuit...). Even in those cases, you try to find the client a reasonable solution to as many of their key points as possible.
So, rather than looking at this as a conversation stopper, it will be more fruitful to view it as a conversation starter.
Greg
On Monday, February 9, 2015, Graeme Bunton <gbunton@tucows.com> wrote:
I read it with some interest, and as was pointed out by Milton and others in the Accountability WG, it is legal that advocates from and for a particular perspective. Which is of course fine, so long as we don't treat this as definitive legal opinion for our purposes.
To me, it seems to suggest either of two outcomes: - The re-domiciling of ICANN to a jurisdiction that would allow the community to assert itself upon the board - Some version of the external to ICANN option we've been discussing
Graeme
On 2015-02-09 1:33 AM, Milton L Mueller wrote:
People who read this should keep in mind that Jones Day is ICANN’s lawyer and as such has an interest in, if not an obligation to, interpret or represent the law in ways that serve the interests of its client.
*From:*cwg-rfp3-bounces@icann.org [mailto:cwg-rfp3-bounces@icann.org] *On Behalf Of *James Gannon *Sent:* Sunday, February 8, 2015 5:11 AM *To:* cwg-stewardship@icann.org *Cc:* RFP3 *Subject:* [CWG-RFP3] CCWG California Law Response
I believe that the CWG should be aware of the response from Jones Day to the CCWG’s questions of California law noted below while we are considering options and they will feed into the acceptability of both models under discussion:
https://mm.icann.org/pipermail/accountability-cross-community/attachments/20...
I have copied an excerpt extracted and notes on the domainmondo article below: http://www.domainmondo.com/2015/02/icann-lawyers-nix-icann-accountability.ht...
Initial Responses to the Community Working Group’s California Law Questions, 7 February 2015,from Jones Day (ICANN's lawyers) to questions submitted by the Cross Community Working Group (CCWG).... (excerpts below, full responses here <http://mm.icann.org/pipermail/accountability-cross-community/attachments/201...> )--
Jones Day: “…. It is important to note that, even in the context of members and delegates, California law provides that the activities and affairs of ICANN still must be conducted and all corporate powers must be exercised by or under the direction of the Board. Accordingly, members and delegates cannot force the Board to take a certain action or overturn a Board decision. The rights of members and delegates under California law are limited and are more closely associated with approval rights over specified actions, rather than the right to second guess or supersede Board action or inaction. For example, members would only be entitled to approve the Board’s budget and would not be able to propose or approve a separate budget. As with any new structure, adding “members” or “delegates” raises a considerable number of governance issues, including the mechanisms to hold these new members or delegates accountable, how these members/delegates would be selected (and how could they be changed), what specified matters would the members/delegates be entitled to approve, what would be the applicable voting threshold for each specified matter, how often would member/delegate meetings be held and how much notice would be required for those meetings, and how would the creation of members/delegates affect the existing Board selection structure. Further, any new structure must be evaluated against the question of whether the new structure actually solves the underlying problem or meets the underlying goal. In some respects, the introduction of “members” or “delegates,” while initially appealing, may not solve the underlying problems and could simply result in moving the “problems” to another body of individuals where similar accountability concerns would persist (i.e., who watches the watchers) ….
“4. In the case of inaction by the Board on an issue developed through community consensus, is it possible to have a mechanism that will empower the community to require the Board to take action?
“No. California law does not provide for a mechanism that would empower the community, regardless of whether ICANN has members or not, to force the Board to take action on a community proposal. The activities and affairs of ICANN must be managed and all corporate powers must be exercised under the ultimate direction of the Board….”
*James Gannon*
*Director*
*Cyber Invasion Ltd*
*Dun Laoghaire, County Dublin, Ireland*
*Office: +353 (1)663-8787 <%2B353%20%281%29663-8787>*
*Cell: +353 (86)175-3581 <%2B353%20%2886%29175-3581>*
*Email:james@cyberinvasion.net*
*GPG: https://keybase.io/jayg <https://keybase.io/jayg>*
_______________________________________________ CWG-Stewardship mailing listCWG-Stewardship@icann.orghttps://mm.icann.org/mailman/listinfo/cwg-stewardship
-- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634
CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
Hi Kieren, Thanks for you considered reply. And thanks for asking the question and being constructive.
Of course, it is in your power Chris to dispel this speculation today. You can simple state on the record that you believe the ICANN community should be granted the final decision-making power and that the Board should be required to follow its decisions.
I think that statement would be a tad simplistic. For example, what is 'the community’? All decisions? And I think we need to be clear whether we mean ICANN accountability generally or something specific to IANA. But, speaking entirely personally, let me say this: On the IANA function I believe that it is acceptable for there to be a mechanism under which the customers of IANA (and I mean the customers, not 'the community’) can, after a series of escalation mechanisms have been exhausted, have the IANA function moved to a different operator. On accountability generally, I believe that there should be a mechanism in place under which (after a series of escalation mechanisms) the SOs and ACs acting together (with agreed levels of vote being consensus) can ’sack’ the Board. Cheers, Chris On 10 Feb 2015, at 05:08 , Kieren McCarthy <kierenmccarthy@gmail.com> wrote:
I wasn't really responding as a journalist, I was emailing as someone who was ICANN staff support on not one but two previous accountability reviews, who has been interviewed for two more accountability reviews, and who has closely followed as an ICANN community member the remaining three accountability reviews.
Saying that ICANN Corporate will fight against any changes that dilutes its power is only speculation if you consider saying that the GNSO will split along contracted/non-contracted party lines is speculation, or that the opening ceremony will have speeches from ICANN's chair and the local telecoms minister is speculation.
When the same thing happens repeatedly over long stretches of time and in response to different inputs, it ceases to be speculation and becomes inevitable.
Or, to look at it differently, I can point to literally dozens of statements where ICANN staff, Board members and now outside legal counsel have said that it is not possible, or advisable, or practical, or necessary, or legal (!) to make changes whose main import would be to reduce the power of the staff and Board.
I have yet to see one statement by those same people in support of handing over ultimate decision-making power to any one person, group, organization or thing.
Of course, it is in your power Chris to dispel this speculation today. You can simple state on the record that you believe the ICANN community should be granted the final decision-making power and that the Board should be required to follow its decisions.
If the ICANN Board agrees that this is the correct approach, then I am pretty sure we will find the whole process changes overnight and the legal memos becomes significantly less certain about what California law says.
Kieren
On Mon, Feb 9, 2015 at 8:11 AM, Chris Disspain <ceo@auda.org.au> wrote: Kieren,
With all due respect;
Another fact from this: ICANN corporate is going to fight all proposed changes that see it lose any kind of power. And the Board will likely feel obliged to follow the legal advice of its lawyers over a third party.
…that is not a fact. It is at best speculation. It is possibly journalistic licence. It is, at its worst, intentionally mischievous and misleading.
Cheers,
Chris
On 10 Feb 2015, at 02:27 , Kieren McCarthy <kierenmccarthy@gmail.com> wrote:
I'm a little surprised that you are all surprised by the contents of ICANN's lawyers' memo.
This has been the position of Jones Day for years and it has been used repeatedly to undercut community recommendations for better accountability.
The big difference this time around is that we have it in black and white, and publicly, before the final recommendations have been made.
In the past, the legal advice has typically only made it into the Board's hands after the recommendations have been provided. They have then been dropped.
Another fact from this: ICANN corporate is going to fight all proposed changes that see it lose any kind of power. And the Board will likely feel obliged to follow the legal advice of its lawyers over a third party.
So the question becomes: how do you force ICANN Corporate to shift its position *before* the process is closed off?
Because if you leave that detail until after (call it 'implementation'), it will never happen.
Kieren
Kieren
- [sent through phone]
On Sun, Feb 8, 2015 at 9:04 PM, Maarten Simon <maarten.simon@sidn.nl> wrote:
Thank you Greg for this response. I indeed hope that Californian law will proof to be more flexible than suggested by the advice because I am not looking forward to a discussion on all possible jurisdictions worldwide that could provide for what we need.
Maarten
From: Greg Shatan <gregshatanipc@gmail.com> Date: Monday 9 February 2015 11:29 To: Graeme Bunton <gbunton@tucows.com> Cc: "cwg-stewardship@icann.org" <cwg-stewardship@icann.org>, "cwg-rfp3@icann.org" <cwg-rfp3@icann.org> Subject: Re: [CWG-Stewardship] CCWG California Law Response
Graeme,
May I gently suggest that you are treating this as a definitive legal opinion by stating the two outcomes you think it suggests.
I think the outcome it suggests is that we need independent legal counseling. I use t he word "counseling" and not "advice" on purpose. A good counselor solves a client's problems and protects the client from risk. A document like the one in question is at best a jumping off point for such counseling, which is by definition interactive and iterative in nature.
That said, it's entirely possible that, even after robust attempts at problem-solving, that the proposal that best meets the needs of the global multistakeholder community could involve an external-to-ICANN option or could only be feasible under the laws of a different jurisdiction.
But we are far, far away from this.
I'll admit that, in my private practice, there are times I feel that I have to walk clients through fairly negative steps in terms of the legal environment, risks and worst-case scenarios. But then the real work starts (I might even say "the fun begins" but that sounds kind of pathetically wonky), starting with "But this is what we can do..." and tell them how we will meet their needs. Of course, there are times when you need to tell clients "No," but most of the time, it should be "No, but..." It's the really rare case where you say "No. Just No." (or how do you look in an orange jumpsuit...). Even in those cases, you try to find the client a reasonable solution to as many of their key points as possible.
So, rather than looking at this as a conversation stopper, it will be more fruitful to view it as a conversation starter.
Greg
On Monday, February 9, 2015, Graeme Bunton <gbunton@tucows.com> wrote: I read it with some interest, and as was pointed out by Milton and others in the Accountability WG, it is legal that advocates from and for a particular perspective. Which is of course fine, so long as we don't treat this as definitive legal opinion for our purposes.
To me, it seems to suggest either of two outcomes: - The re-domiciling of ICANN to a jurisdiction that would allow the community to assert itself upon the board - Some version of the external to ICANN option we've been discussing
Graeme
On 2015-02-09 1:33 AM, Milton L Mueller wrote:
People who read this should keep in mind that Jones Day is ICANN’s lawyer and as such has an interest in, if not an obligation to, interpret or represent the law in ways that serve the interests of its client.
From:cwg-rfp3-bounces@icann.org [mailto:cwg-rfp3-bounces@icann.org] On Behalf Of James Gannon Sent: Sunday, February 8, 2015 5:11 AM To: cwg-stewardship@icann.org Cc: RFP3 Subject: [CWG-RFP3] CCWG California Law Response
I believe that the CWG should be aware of the response from Jones Day to the CCWG’s questions of California law noted below while we are considering options and they will feed into the acceptability of both models under discussion:
https://mm.icann.org/pipermail/accountability-cross-community/attachments/20...
I have copied an excerpt extracted and notes on the domainmondo article below: http://www.domainmondo.com/2015/02/icann-lawyers-nix-icann-accountability.ht...
Initial Responses to the Community Working Group’s California Law Questions, 7 February 2015,from Jones Day (ICANN's lawyers) to questions submitted by the Cross Community Working Group (CCWG).... (excerpts below, full responses here)--
Jones Day: “…. It is important to note that, even in the context of members and delegates, California law provides that the activities and affairs of ICANN still must be conducted and all corporate powers must be exercised by or under the direction of the Board. Accordingly, members and delegates cannot force the Board to take a certain action or overturn a Board decision. The rights of members and delegates under California law are limited and are more closely associated with approval rights over specified actions, rather than the right to second guess or supersede Board action or inaction. For example, members would only be entitled to approve the Board’s budget and would not be able to propose or approve a separate budget. As with any new structure, adding “members” or “delegates” raises a considerable number of governance issues, including the mechanisms to hold these new members or delegates accountable, how these members/delegates would be selected (and how could they be changed), what specified matters would the members/delegates be entitled to approve, what would be the applicable voting threshold for each specified matter, how often would member/delegate meetings be held and how much notice would be required for those meetings, and how would the creation of members/delegates affect the existing Board selection structure. Further, any new structure must be evaluated against the question of whether the new structure actually solves the underlying problem or meets the underlying goal. In some respects, the introduction of “members” or “delegates,” while initially appealing, may not solve the underlying problems and could simply result in moving the “problems” to another body of individuals where similar accountability concerns would persist (i.e., who watches the watchers) ….
“4. In the case of inaction by the Board on an issue developed through community consensus, is it possible to have a mechanism that will empower the community to require the Board to take action?
“No. California law does not provide for a mechanism that would empower the community, regardless of whether ICANN has members or not, to force the Board to take action on a community proposal. The activities and affairs of ICANN must be managed and all corporate powers must be exercised under the ultimate direction of the Board….”
James Gannon
Director
Cyber Invasion Ltd
Dun Laoghaire, County Dublin, Ireland
Office: +353 (1)663-8787
Cell: +353 (86)175-3581
Email:james@cyberinvasion.net
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.orghttps://mm.icann.org/mailman/listinfo/cwg-stewardship
-- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
Ok so we are in agreement re IANA accountability. Just because it's important doesn't mean the whole ICANN community needs to be involved. I disagree strongly that sacking the Board should come at the end of an endless series of processes. Process can make things worse, not better (same argument as with IANA). If the Board does something egregious, it should be possible to slap it immediately (the useful role of the USG - Strickling doesn't have to go through four legalistic processes to say 'wrong call!') It should also be possible to get rid of smaller numbers of board members seeing as most are supposed to be representative of a particular community. Plus ICANN's budgeting and finances are a ticking timebomb and some external accountability is in everyone's interests. If ICANN and ICANN board members in particular would stop pushing back against these efforts, accept that it needs to happen and starting working for the community rather than acting as defenders of the status quo, I have no doubt at all that the community would rally and trust issues would start disappearing. Kieren - [sent through phone] On Mon, Feb 9, 2015 at 4:59 PM, Chris Disspain <ceo@auda.org.au> wrote:
Hi Kieren, Thanks for you considered reply. And thanks for asking the question and being constructive.
Of course, it is in your power Chris to dispel this speculation today. You can simple state on the record that you believe the ICANN community should be granted the final decision-making power and that the Board should be required to follow its decisions. I think that statement would be a tad simplistic. For example, what is 'the community’? All decisions? And I think we need to be clear whether we mean ICANN accountability generally or something specific to IANA. But, speaking entirely personally, let me say this: On the IANA function I believe that it is acceptable for there to be a mechanism under which the customers of IANA (and I mean the customers, not 'the community’) can, after a series of escalation mechanisms have been exhausted, have the IANA function moved to a different operator. On accountability generally, I believe that there should be a mechanism in place under which (after a series of escalation mechanisms) the SOs and ACs acting together (with agreed levels of vote being consensus) can ’sack’ the Board. Cheers, Chris On 10 Feb 2015, at 05:08 , Kieren McCarthy <kierenmccarthy@gmail.com> wrote: I wasn't really responding as a journalist, I was emailing as someone who was ICANN staff support on not one but two previous accountability reviews, who has been interviewed for two more accountability reviews, and who has closely followed as an ICANN community member the remaining three accountability reviews.
Saying that ICANN Corporate will fight against any changes that dilutes its power is only speculation if you consider saying that the GNSO will split along contracted/non-contracted party lines is speculation, or that the opening ceremony will have speeches from ICANN's chair and the local telecoms minister is speculation.
When the same thing happens repeatedly over long stretches of time and in response to different inputs, it ceases to be speculation and becomes inevitable.
Or, to look at it differently, I can point to literally dozens of statements where ICANN staff, Board members and now outside legal counsel have said that it is not possible, or advisable, or practical, or necessary, or legal (!) to make changes whose main import would be to reduce the power of the staff and Board.
I have yet to see one statement by those same people in support of handing over ultimate decision-making power to any one person, group, organization or thing.
Of course, it is in your power Chris to dispel this speculation today. You can simple state on the record that you believe the ICANN community should be granted the final decision-making power and that the Board should be required to follow its decisions.
If the ICANN Board agrees that this is the correct approach, then I am pretty sure we will find the whole process changes overnight and the legal memos becomes significantly less certain about what California law says.
Kieren
On Mon, Feb 9, 2015 at 8:11 AM, Chris Disspain <ceo@auda.org.au> wrote: Kieren,
With all due respect;
Another fact from this: ICANN corporate is going to fight all proposed changes that see it lose any kind of power. And the Board will likely feel obliged to follow the legal advice of its lawyers over a third party.
…that is not a fact. It is at best speculation. It is possibly journalistic licence. It is, at its worst, intentionally mischievous and misleading.
Cheers,
Chris
On 10 Feb 2015, at 02:27 , Kieren McCarthy <kierenmccarthy@gmail.com> wrote:
I'm a little surprised that you are all surprised by the contents of ICANN's lawyers' memo.
This has been the position of Jones Day for years and it has been used repeatedly to undercut community recommendations for better accountability.
The big difference this time around is that we have it in black and white, and publicly, before the final recommendations have been made.
In the past, the legal advice has typically only made it into the Board's hands after the recommendations have been provided. They have then been dropped.
Another fact from this: ICANN corporate is going to fight all proposed changes that see it lose any kind of power. And the Board will likely feel obliged to follow the legal advice of its lawyers over a third party.
So the question becomes: how do you force ICANN Corporate to shift its position *before* the process is closed off?
Because if you leave that detail until after (call it 'implementation'), it will never happen.
Kieren
Kieren
- [sent through phone]
On Sun, Feb 8, 2015 at 9:04 PM, Maarten Simon <maarten.simon@sidn.nl> wrote:
Thank you Greg for this response. I indeed hope that Californian law will proof to be more flexible than suggested by the advice because I am not looking forward to a discussion on all possible jurisdictions worldwide that could provide for what we need.
Maarten
From: Greg Shatan <gregshatanipc@gmail.com> Date: Monday 9 February 2015 11:29 To: Graeme Bunton <gbunton@tucows.com> Cc: "cwg-stewardship@icann.org" <cwg-stewardship@icann.org>, "cwg-rfp3@icann.org" <cwg-rfp3@icann.org> Subject: Re: [CWG-Stewardship] CCWG California Law Response
Graeme,
May I gently suggest that you are treating this as a definitive legal opinion by stating the two outcomes you think it suggests.
I think the outcome it suggests is that we need independent legal counseling. I use t he word "counseling" and not "advice" on purpose. A good counselor solves a client's problems and protects the client from risk. A document like the one in question is at best a jumping off point for such counseling, which is by definition interactive and iterative in nature.
That said, it's entirely possible that, even after robust attempts at problem-solving, that the proposal that best meets the needs of the global multistakeholder community could involve an external-to-ICANN option or could only be feasible under the laws of a different jurisdiction.
But we are far, far away from this.
I'll admit that, in my private practice, there are times I feel that I have to walk clients through fairly negative steps in terms of the legal environment, risks and worst-case scenarios. But then the real work starts (I might even say "the fun begins" but that sounds kind of pathetically wonky), starting with "But this is what we can do..." and tell them how we will meet their needs. Of course, there are times when you need to tell clients "No," but most of the time, it should be "No, but..." It's the really rare case where you say "No. Just No." (or how do you look in an orange jumpsuit...). Even in those cases, you try to find the client a reasonable solution to as many of their key points as possible.
So, rather than looking at this as a conversation stopper, it will be more fruitful to view it as a conversation starter.
Greg
On Monday, February 9, 2015, Graeme Bunton <gbunton@tucows.com> wrote: I read it with some interest, and as was pointed out by Milton and others in the Accountability WG, it is legal that advocates from and for a particular perspective. Which is of course fine, so long as we don't treat this as definitive legal opinion for our purposes.
To me, it seems to suggest either of two outcomes: - The re-domiciling of ICANN to a jurisdiction that would allow the community to assert itself upon the board - Some version of the external to ICANN option we've been discussing
Graeme
On 2015-02-09 1:33 AM, Milton L Mueller wrote:
People who read this should keep in mind that Jones Day is ICANN’s lawyer and as such has an interest in, if not an obligation to, interpret or represent the law in ways that serve the interests of its client.
From:cwg-rfp3-bounces@icann.org [mailto:cwg-rfp3-bounces@icann.org] On Behalf Of James Gannon Sent: Sunday, February 8, 2015 5:11 AM To: cwg-stewardship@icann.org Cc: RFP3 Subject: [CWG-RFP3] CCWG California Law Response
I believe that the CWG should be aware of the response from Jones Day to the CCWG’s questions of California law noted below while we are considering options and they will feed into the acceptability of both models under discussion:
https://mm.icann.org/pipermail/accountability-cross-community/attachments/20...
I have copied an excerpt extracted and notes on the domainmondo article below: http://www.domainmondo.com/2015/02/icann-lawyers-nix-icann-accountability.ht...
Initial Responses to the Community Working Group’s California Law Questions, 7 February 2015,from Jones Day (ICANN's lawyers) to questions submitted by the Cross Community Working Group (CCWG).... (excerpts below, full responses here)--
Jones Day: “…. It is important to note that, even in the context of members and delegates, California law provides that the activities and affairs of ICANN still must be conducted and all corporate powers must be exercised by or under the direction of the Board. Accordingly, members and delegates cannot force the Board to take a certain action or overturn a Board decision. The rights of members and delegates under California law are limited and are more closely associated with approval rights over specified actions, rather than the right to second guess or supersede Board action or inaction. For example, members would only be entitled to approve the Board’s budget and would not be able to propose or approve a separate budget. As with any new structure, adding “members” or “delegates” raises a considerable number of governance issues, including the mechanisms to hold these new members or delegates accountable, how these members/delegates would be selected (and how could they be changed), what specified matters would the members/delegates be entitled to approve, what would be the applicable voting threshold for each specified matter, how often would member/delegate meetings be held and how much notice would be required for those meetings, and how would the creation of members/delegates affect the existing Board selection structure. Further, any new structure must be evaluated against the question of whether the new structure actually solves the underlying problem or meets the underlying goal. In some respects, the introduction of “members” or “delegates,” while initially appealing, may not solve the underlying problems and could simply result in moving the “problems” to another body of individuals where similar accountability concerns would persist (i.e., who watches the watchers) ….
“4. In the case of inaction by the Board on an issue developed through community consensus, is it possible to have a mechanism that will empower the community to require the Board to take action?
“No. California law does not provide for a mechanism that would empower the community, regardless of whether ICANN has members or not, to force the Board to take action on a community proposal. The activities and affairs of ICANN must be managed and all corporate powers must be exercised under the ultimate direction of the Board….”
James Gannon
Director
Cyber Invasion Ltd
Dun Laoghaire, County Dublin, Ireland
Office: +353 (1)663-8787
Cell: +353 (86)175-3581
Email:james@cyberinvasion.net
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.orghttps://mm.icann.org/mailman/listinfo/cwg-stewardship
-- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
Kieren, On Feb 10, 2015, at 9:37 AM, Kieren McCarthy <kierenmccarthy@gmail.com> wrote:
It should also be possible to get rid of smaller numbers of board members seeing as most are supposed to be representative of a particular community.
This is exactly wrong. Board members are obligated to do what’s best for the entire community, not just their particular consistency. They bring the perspective of their constituency as part of their background and knowledge, but they are not supposed to be the representative of their constituency in the sense of a congress or parliament. You might argue we should change the role of the Board or create a different body, but the idea that specific Board members are responsible the outcome relevant to their body is contrary to the actual obligation currently in force. Steve
For the information of CWG members, Working Party 1 of the Accountability CCWG (dealing with community empowerment) will be considering the removal both of individual board members and of the entire Board as part of its work. JTC On 10 February 2015 at 09:50, Steve Crocker <steve.crocker@icann.org> wrote:
Kieren,
On Feb 10, 2015, at 9:37 AM, Kieren McCarthy <kierenmccarthy@gmail.com> wrote:
It should also be possible to get rid of smaller numbers of board members seeing as most are supposed to be representative of a particular community.
This is exactly wrong. Board members are obligated to do what's best for the entire community, not just their particular consistency. They bring the perspective of their constituency as part of their background and knowledge, but they are not supposed to be the representative of their constituency in the sense of a congress or parliament.
You might argue we should change the role of the Board or create a different body, but the idea that specific Board members are responsible the outcome relevant to their body is contrary to the actual obligation currently in force.
Steve
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
-- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter *To promote the Internet's benefits and uses, and protect its potential.*
John, Are you doing this unilaterally or is it a consensus position of the working group? Gary From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Jordan Carter Sent: Monday, February 09, 2015 8:57 PM To: Steve Crocker Cc: Kieren McCarthy; cwg-stewardship@icann.org; RFP3 Subject: Re: [CWG-Stewardship] [CWG-RFP3] CCWG California Law Response For the information of CWG members, Working Party 1 of the Accountability CCWG (dealing with community empowerment) will be considering the removal both of individual board members and of the entire Board as part of its work. JTC On 10 February 2015 at 09:50, Steve Crocker <steve.crocker@icann.org<mailto:steve.crocker@icann.org>> wrote: Kieren, On Feb 10, 2015, at 9:37 AM, Kieren McCarthy <kierenmccarthy@gmail.com<mailto:kierenmccarthy@gmail.com>> wrote: It should also be possible to get rid of smaller numbers of board members seeing as most are supposed to be representative of a particular community. This is exactly wrong. Board members are obligated to do what's best for the entire community, not just their particular consistency. They bring the perspective of their constituency as part of their background and knowledge, but they are not supposed to be the representative of their constituency in the sense of a congress or parliament. You might argue we should change the role of the Board or create a different body, but the idea that specific Board members are responsible the outcome relevant to their body is contrary to the actual obligation currently in force. Steve _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship -- Jordan Carter Chief Executive InternetNZ 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter To promote the Internet's benefits and uses, and protect its potential. NOTICE OF CONFIDENTIALITY This communication including any information transmitted with it is intended only for the use of the addressees and is confidential. If you are not an intended recipient or responsible for delivering the message to an intended recipient, any review, disclosure, conversion to hard copy, dissemination, reproduction or other use of any part of this communication is strictly prohibited, as is the taking or omitting of any action in reliance upon this communication. If you receive this communication in error or without authorization please notify us immediately by return e-mail or otherwise and permanently delete the entire communication from any computer, disk drive, or other storage medium.
Assuming this is directed to me: WP1 is kicking off, and is working through an inventory of suggestions made by participants in a range of consultations. All the options the community has suggested over the past few months are being assessed. What comes out in terms of recommendations will indeed be a consensus of the CCWG. I am just highlighting that this issue is one of those under way. I apologise if anyone finds this content irrelevant and unhelpful to the CWG. best Jordan On 10 February 2015 at 10:12, Gary Campbell <gcampbell@mstem.gov.jm> wrote:
John,
Are you doing this unilaterally or is it a consensus position of the working group?
Gary
*From:* cwg-stewardship-bounces@icann.org [mailto: cwg-stewardship-bounces@icann.org] *On Behalf Of *Jordan Carter *Sent:* Monday, February 09, 2015 8:57 PM *To:* Steve Crocker *Cc:* Kieren McCarthy; cwg-stewardship@icann.org; RFP3 *Subject:* Re: [CWG-Stewardship] [CWG-RFP3] CCWG California Law Response
For the information of CWG members, Working Party 1 of the Accountability CCWG (dealing with community empowerment) will be considering the removal both of individual board members and of the entire Board as part of its work.
JTC
On 10 February 2015 at 09:50, Steve Crocker <steve.crocker@icann.org> wrote:
Kieren,
On Feb 10, 2015, at 9:37 AM, Kieren McCarthy <kierenmccarthy@gmail.com> wrote:
It should also be possible to get rid of smaller numbers of board members seeing as most are supposed to be representative of a particular community.
This is exactly wrong. Board members are obligated to do what's best for the entire community, not just their particular consistency. They bring the perspective of their constituency as part of their background and knowledge, but they are not supposed to be the representative of their constituency in the sense of a congress or parliament.
You might argue we should change the role of the Board or create a different body, but the idea that specific Board members are responsible the outcome relevant to their body is contrary to the actual obligation currently in force.
Steve
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
--
Jordan Carter
Chief Executive *InternetNZ*
04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter
*To promote the Internet's benefits and uses, and protect its potential.* NOTICE OF CONFIDENTIALITY This communication including any information transmitted with it is intended only for the use of the addressees and is confidential. If you are not an intended recipient or responsible for delivering the message to an intended recipient, any review, disclosure, conversion to hard copy, dissemination, reproduction or other use of any part of this communication is strictly prohibited, as is the taking or omitting of any action in reliance upon this communication. If you receive this communication in error or without authorization please notify us immediately by return e-mail or otherwise and permanently delete the entire communication from any computer, disk drive, or other storage medium.
-- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter *To promote the Internet's benefits and uses, and protect its potential.*
Apologies Jordan for renaming you. It was indeed meant for you. The content is quite relevant and useful to the CWG I believe. This head start will give enough time for members to consider the issue carefully in advance. Gary From: Jordan Carter [mailto:jordan@internetnz.net.nz] Sent: Monday, February 09, 2015 9:14 PM To: Gary Campbell Cc: Steve Crocker; Kieren McCarthy; cwg-stewardship@icann.org; RFP3 Subject: Re: [CWG-Stewardship] [CWG-RFP3] CCWG California Law Response Assuming this is directed to me: WP1 is kicking off, and is working through an inventory of suggestions made by participants in a range of consultations. All the options the community has suggested over the past few months are being assessed. What comes out in terms of recommendations will indeed be a consensus of the CCWG. I am just highlighting that this issue is one of those under way. I apologise if anyone finds this content irrelevant and unhelpful to the CWG. best Jordan On 10 February 2015 at 10:12, Gary Campbell <gcampbell@mstem.gov.jm<mailto:gcampbell@mstem.gov.jm>> wrote: John, Are you doing this unilaterally or is it a consensus position of the working group? Gary From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org>] On Behalf Of Jordan Carter Sent: Monday, February 09, 2015 8:57 PM To: Steve Crocker Cc: Kieren McCarthy; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann..org>; RFP3 Subject: Re: [CWG-Stewardship] [CWG-RFP3] CCWG California Law Response For the information of CWG members, Working Party 1 of the Accountability CCWG (dealing with community empowerment) will be considering the removal both of individual board members and of the entire Board as part of its work. JTC On 10 February 2015 at 09:50, Steve Crocker <steve.crocker@icann.org<mailto:steve.crocker@icann.org>> wrote: Kieren, On Feb 10, 2015, at 9:37 AM, Kieren McCarthy <kierenmccarthy@gmail.com<mailto:kierenmccarthy@gmail.com>> wrote: It should also be possible to get rid of smaller numbers of board members seeing as most are supposed to be representative of a particular community. This is exactly wrong. Board members are obligated to do what's best for the entire community, not just their particular consistency. They bring the perspective of their constituency as part of their background and knowledge, but they are not supposed to be the representative of their constituency in the sense of a congress or parliament. You might argue we should change the role of the Board or create a different body, but the idea that specific Board members are responsible the outcome relevant to their body is contrary to the actual obligation currently in force. Steve _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship -- Jordan Carter Chief Executive InternetNZ 04 495 2118<tel:04%20495%202118> (office) | +64 21 442 649<tel:%2B64%2021%20442%20649> (mob) jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter To promote the Internet's benefits and uses, and protect its potential. NOTICE OF CONFIDENTIALITY This communication including any information transmitted with it is intended only for the use of the addressees and is confidential. If you are not an intended recipient or responsible for delivering the message to an intended recipient, any review, disclosure, conversion to hard copy, dissemination, reproduction or other use of any part of this communication is strictly prohibited, as is the taking or omitting of any action in reliance upon this communication. If you receive this communication in error or without authorization please notify us immediately by return e-mail or otherwise and permanently delete the entire communication from any computer, disk drive, or other storage medium. -- Jordan Carter Chief Executive InternetNZ 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter To promote the Internet's benefits and uses, and protect its potential. NOTICE OF CONFIDENTIALITY This communication including any information transmitted with it is intended only for the use of the addressees and is confidential. If you are not an intended recipient or responsible for delivering the message to an intended recipient, any review, disclosure, conversion to hard copy, dissemination, reproduction or other use of any part of this communication is strictly prohibited, as is the taking or omitting of any action in reliance upon this communication. If you receive this communication in error or without authorization please notify us immediately by return e-mail or otherwise and permanently delete the entire communication from any computer, disk drive, or other storage medium.
hi, I think that is a good idea. I see one as a vote of no-confidence while I see the other as a mainly a vehicle for non or ill performance. avri On 10-Feb-15 09:56, Jordan Carter wrote:
For the information of CWG members, Working Party 1 of the Accountability CCWG (dealing with community empowerment) will be considering the removal both of individual board members and of the entire Board as part of its work.
JTC
On 10 February 2015 at 09:50, Steve Crocker <steve.crocker@icann.org <mailto:steve.crocker@icann.org>> wrote:
Kieren,
On Feb 10, 2015, at 9:37 AM, Kieren McCarthy <kierenmccarthy@gmail.com <mailto:kierenmccarthy@gmail.com>> wrote:
It should also be possible to get rid of smaller numbers of board members seeing as most are supposed to be representative of a particular community.
This is exactly wrong. Board members are obligated to do what’s best for the entire community, not just their particular consistency. They bring the perspective of their constituency as part of their background and knowledge, but they are not supposed to be the representative of their constituency in the sense of a congress or parliament.
You might argue we should change the role of the Board or create a different body, but the idea that specific Board members are responsible the outcome relevant to their body is contrary to the actual obligation currently in force.
Steve
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-- Jordan Carter
Chief Executive *InternetNZ*
04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter
/To promote the Internet's benefits and uses, and protect its potential./
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FWIW, the Board does have internal discipline processes in place that can result in removal of a Board member. The criteria are related to proper behavior as a Board member, but every Board member is specifically empowered to vote his or her own conscience on each and every resolution. Further, we make a point of offering each Board member the opportunity to insert into the record a statement accompanying his or vote if he or she is dissenting or abstaining. (The option is also there if the member is concurring, but that’s hardly ever an issue.) Steve On Feb 10, 2015, at 10:16 AM, Avri Doria <avri@acm.org> wrote:
hi,
I think that is a good idea.
I see one as a vote of no-confidence while I see the other as a mainly a vehicle for non or ill performance.
avri
On 10-Feb-15 09:56, Jordan Carter wrote:
For the information of CWG members, Working Party 1 of the Accountability CCWG (dealing with community empowerment) will be considering the removal both of individual board members and of the entire Board as part of its work.
JTC
On 10 February 2015 at 09:50, Steve Crocker <steve.crocker@icann.org> wrote: Kieren,
On Feb 10, 2015, at 9:37 AM, Kieren McCarthy <kierenmccarthy@gmail.com> wrote:
It should also be possible to get rid of smaller numbers of board members seeing as most are supposed to be representative of a particular community.
This is exactly wrong. Board members are obligated to do what’s best for the entire community, not just their particular consistency. They bring the perspective of their constituency as part of their background and knowledge, but they are not supposed to be the representative of their constituency in the sense of a congress or parliament.
You might argue we should change the role of the Board or create a different body, but the idea that specific Board members are responsible the outcome relevant to their body is contrary to the actual obligation currently in force.
Steve
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-- Jordan Carter
Chief Executive InternetNZ
04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter
To promote the Internet's benefits and uses, and protect its potential.
_______________________________________________ Cwg-rfp3 mailing list Cwg-rfp3@icann.org https://mm.icann.org/mailman/listinfo/cwg-rfp3
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You two are not really disagreeing. Steve is telling us what the obligations of board members currently are. Kieren is saying "it might be possible to" change that with new accountability arrangements that allowed recall of board members by their community. Either way, this debate is more appropriate for the CCWG; I don't see its relevance to the IANA transition task of this list. From: cwg-rfp3-bounces@icann.org [mailto:cwg-rfp3-bounces@icann.org] On Behalf Of Steve Crocker Sent: Monday, February 9, 2015 8:50 PM To: Kieren McCarthy Cc: cwg-stewardship@icann.org; RFP3 Subject: Re: [CWG-RFP3] [CWG-Stewardship] CCWG California Law Response Kieren, On Feb 10, 2015, at 9:37 AM, Kieren McCarthy <kierenmccarthy@gmail.com<mailto:kierenmccarthy@gmail.com>> wrote: It should also be possible to get rid of smaller numbers of board members seeing as most are supposed to be representative of a particular community. This is exactly wrong. Board members are obligated to do what's best for the entire community, not just their particular consistency. They bring the perspective of their constituency as part of their background and knowledge, but they are not supposed to be the representative of their constituency in the sense of a congress or parliament. You might argue we should change the role of the Board or create a different body, but the idea that specific Board members are responsible the outcome relevant to their body is contrary to the actual obligation currently in force. Steve
On Mon, Feb 9, 2015 at 8:37 PM, Kieren McCarthy <kierenmccarthy@gmail.com> wrote:
It should also be possible to get rid of smaller numbers of board members seeing as most are supposed to be representative of a particular community.
Um, actually this perception is incorrect. A member of the Board ceases to be responsible to the community that elected/sponsored that person once a Board member.
We really need a little primer on corporate boards and the nature of the American corporation and its culture. -Carlton ============================== Carlton A Samuels Mobile: 876-818-1799 *Strategy, Planning, Governance, Assessment & Turnaround* =============================
Chris What Kieren says is true. Moreover, it is expected behavior for any corporation or institution. No organization willingly gives up power. I am here in Singapore and I could tick off about a dozen ways in which this common pattern is being played out at the present time. I guess the meaning of the fact that it is a board member in the lead challenging Kieren's assertion is not lost on any of us. From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Chris Disspain Sent: Monday, February 9, 2015 11:12 AM To: Kieren McCarthy Cc: cwg-stewardship@icann.org; RFP3 Subject: Re: [CWG-Stewardship] [CWG-RFP3] CCWG California Law Response Kieren, With all due respect; Another fact from this: ICANN corporate is going to fight all proposed changes that see it lose any kind of power. And the Board will likely feel obliged to follow the legal advice of its lawyers over a third party. ...that is not a fact. It is at best speculation. It is possibly journalistic licence. It is, at its worst, intentionally mischievous and misleading. Cheers, Chris On 10 Feb 2015, at 02:27 , Kieren McCarthy <kierenmccarthy@gmail.com<mailto:kierenmccarthy@gmail.com>> wrote: I'm a little surprised that you are all surprised by the contents of ICANN's lawyers' memo. This has been the position of Jones Day for years and it has been used repeatedly to undercut community recommendations for better accountability. The big difference this time around is that we have it in black and white, and publicly, before the final recommendations have been made. In the past, the legal advice has typically only made it into the Board's hands after the recommendations have been provided. They have then been dropped. Another fact from this: ICANN corporate is going to fight all proposed changes that see it lose any kind of power. And the Board will likely feel obliged to follow the legal advice of its lawyers over a third party. So the question becomes: how do you force ICANN Corporate to shift its position *before* the process is closed off? Because if you leave that detail until after (call it 'implementation'), it will never happen. Kieren Kieren - [sent through phone] On Sun, Feb 8, 2015 at 9:04 PM, Maarten Simon <maarten.simon@sidn.nl<mailto:maarten.simon@sidn.nl>> wrote: Thank you Greg for this response. I indeed hope that Californian law will proof to be more flexible than suggested by the advice because I am not looking forward to a discussion on all possible jurisdictions worldwide that could provide for what we need. Maarten From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Monday 9 February 2015 11:29 To: Graeme Bunton <gbunton@tucows.com<mailto:gbunton@tucows.com>> Cc: "cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>" <cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>>, "cwg-rfp3@icann.org<mailto:cwg-rfp3@icann.org>" <cwg-rfp3@icann.org<mailto:cwg-rfp3@icann.org>> Subject: Re: [CWG-Stewardship] CCWG California Law Response Graeme, May I gently suggest that you are treating this as a definitive legal opinion by stating the two outcomes you think it suggests. I think the outcome it suggests is that we need independent legal counseling. I use t he word "counseling" and not "advice" on purpose. A good counselor solves a client's problems and protects the client from risk. A document like the one in question is at best a jumping off point for such counseling, which is by definition interactive and iterative in nature. That said, it's entirely possible that, even after robust attempts at problem-solving, that the proposal that best meets the needs of the global multistakeholder community could involve an external-to-ICANN option or could only be feasible under the laws of a different jurisdiction. But we are far, far away from this. I'll admit that, in my private practice, there are times I feel that I have to walk clients through fairly negative steps in terms of the legal environment, risks and worst-case scenarios. But then the real work starts (I might even say "the fun begins" but that sounds kind of pathetically wonky), starting with "But this is what we can do..." and tell them how we will meet their needs. Of course, there are times when you need to tell clients "No," but most of the time, it should be "No, but..." It's the really rare case where you say "No. Just No." (or how do you look in an orange jumpsuit...). Even in those cases, you try to find the client a reasonable solution to as many of their key points as possible. So, rather than looking at this as a conversation stopper, it will be more fruitful to view it as a conversation starter. Greg On Monday, February 9, 2015, Graeme Bunton <gbunton@tucows.com<mailto:gbunton@tucows.com>> wrote: I read it with some interest, and as was pointed out by Milton and others in the Accountability WG, it is legal that advocates from and for a particular perspective. Which is of course fine, so long as we don't treat this as definitive legal opinion for our purposes. To me, it seems to suggest either of two outcomes: - The re-domiciling of ICANN to a jurisdiction that would allow the community to assert itself upon the board - Some version of the external to ICANN option we've been discussing Graeme On 2015-02-09 1:33 AM, Milton L Mueller wrote: People who read this should keep in mind that Jones Day is ICANN's lawyer and as such has an interest in, if not an obligation to, interpret or represent the law in ways that serve the interests of its client. From:cwg-rfp3-bounces@icann.org [mailto:cwg-rfp3-bounces@icann.org] On Behalf Of James Gannon Sent: Sunday, February 8, 2015 5:11 AM To: cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Cc: RFP3 Subject: [CWG-RFP3] CCWG California Law Response I believe that the CWG should be aware of the response from Jones Day to the CCWG's questions of California law noted below while we are considering options and they will feed into the acceptability of both models under discussion: https://mm.icann.org/pipermail/accountability-cross-community/attachments/20... I have copied an excerpt extracted and notes on the domainmondo article below: http://www.domainmondo.com/2015/02/icann-lawyers-nix-icann-accountability.ht...
Initial Responses to the Community Working Group's California Law Questions, 7 February 2015,from Jones Day (ICANN's lawyers) to questions submitted by the Cross Community Working Group (CCWG).... (excerpts below, full responses here<http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150208/ed62a5b3/AccountabilityQuestionsforCCWG-fromJonesDay-0001.pdf>)--
Jones Day: ".... It is important to note that, even in the context of members and delegates, California law provides that the activities and affairs of ICANN still must be conducted and all corporate powers must be exercised by or under the direction of the Board. Accordingly, members and delegates cannot force the Board to take a certain action or overturn a Board decision. The rights of members and delegates under California law are limited and are more closely associated with approval rights over specified actions, rather than the right to second guess or supersede Board action or inaction. For example, members would only be entitled to approve the Board's budget and would not be able to propose or approve a separate budget. As with any new structure, adding "members" or "delegates" raises a considerable number of governance issues, including the mechanisms to hold these new members or delegates accountable, how these members/delegates would be selected (and how could they be changed), what specified matters would the members/delegates be entitled to approve, what would be the applicable voting threshold for each specified matter, how often would member/delegate meetings be held and how much notice would be required for those meetings, and how would the creation of members/delegates affect the existing Board selection structure. Further, any new structure must be evaluated against the question of whether the new structure actually solves the underlying problem or meets the underlying goal. In some respects, the introduction of "members" or "delegates," while initially appealing, may not solve the underlying problems and could simply result in moving the "problems" to another body of individuals where similar accountability concerns would persist (i.e., who watches the watchers) .... "4. In the case of inaction by the Board on an issue developed through community consensus, is it possible to have a mechanism that will empower the community to require the Board to take action? "No. California law does not provide for a mechanism that would empower the community, regardless of whether ICANN has members or not, to force the Board to take action on a community proposal. The activities and affairs of ICANN must be managed and all corporate powers must be exercised under the ultimate direction of the Board...." James Gannon Director Cyber Invasion Ltd Dun Laoghaire, County Dublin, Ireland Office: +353 (1)663-8787<tel:%2B353%20%281%29663-8787> Cell: +353 (86)175-3581<tel:%2B353%20%2886%29175-3581> Email:james@cyberinvasion.net GPG: https://keybase.io/jayg _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.orghttps://mm.icann.org/mailman/listinfo/cwg-stewardship -- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634<tel:416%20535%200123%20ext%201634> _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship
Milton, You do yourself a disservice by pulling out the Board member card. As you know full well I am more than capable of dividing my responsibilities/opinions as a Board member from those as CEO of auDA from those of an individual. I appreciate that as an academic you have no experience of doing this but I can assure you it is a skill one learns very quickly in the corporate world. Please let us try to keep this important debate out of the gutter. Thanks. Cheers, Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au | W: www.auda.org.au auDA – Australia’s Domain Name Administrator Important Notice - This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. Please consider the environment before printing this email. On 10 Feb 2015, at 11:10 , Milton L Mueller <mueller@syr.edu> wrote:
Chris What Kieren says is true. Moreover, it is expected behavior for any corporation or institution. No organization willingly gives up power. I am here in Singapore and I could tick off about a dozen ways in which this common pattern is being played out at the present time.
I guess the meaning of the fact that it is a board member in the lead challenging Kieren’s assertion is not lost on any of us.
From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Chris Disspain Sent: Monday, February 9, 2015 11:12 AM To: Kieren McCarthy Cc: cwg-stewardship@icann.org; RFP3 Subject: Re: [CWG-Stewardship] [CWG-RFP3] CCWG California Law Response
Kieren,
With all due respect;
Another fact from this: ICANN corporate is going to fight all proposed changes that see it lose any kind of power. And the Board will likely feel obliged to follow the legal advice of its lawyers over a third party.
…that is not a fact. It is at best speculation. It is possibly journalistic licence. It is, at its worst, intentionally mischievous and misleading.
Cheers,
Chris
On 10 Feb 2015, at 02:27 , Kieren McCarthy <kierenmccarthy@gmail.com> wrote:
I'm a little surprised that you are all surprised by the contents of ICANN's lawyers' memo.
This has been the position of Jones Day for years and it has been used repeatedly to undercut community recommendations for better accountability.
The big difference this time around is that we have it in black and white, and publicly, before the final recommendations have been made.
In the past, the legal advice has typically only made it into the Board's hands after the recommendations have been provided. They have then been dropped.
Another fact from this: ICANN corporate is going to fight all proposed changes that see it lose any kind of power. And the Board will likely feel obliged to follow the legal advice of its lawyers over a third party.
So the question becomes: how do you force ICANN Corporate to shift its position *before* the process is closed off?
Because if you leave that detail until after (call it 'implementation'), it will never happen.
Kieren
Kieren
- [sent through phone]
On Sun, Feb 8, 2015 at 9:04 PM, Maarten Simon <maarten.simon@sidn.nl> wrote:
Thank you Greg for this response. I indeed hope that Californian law will proof to be more flexible than suggested by the advice because I am not looking forward to a discussion on all possible jurisdictions worldwide that could provide for what we need.
Maarten
From: Greg Shatan <gregshatanipc@gmail.com> Date: Monday 9 February 2015 11:29 To: Graeme Bunton <gbunton@tucows.com> Cc: "cwg-stewardship@icann.org" <cwg-stewardship@icann.org>, "cwg-rfp3@icann.org" <cwg-rfp3@icann.org> Subject: Re: [CWG-Stewardship] CCWG California Law Response
Graeme,
May I gently suggest that you are treating this as a definitive legal opinion by stating the two outcomes you think it suggests.
I think the outcome it suggests is that we need independent legal counseling. I use t he word "counseling" and not "advice" on purpose. A good counselor solves a client's problems and protects the client from risk. A document like the one in question is at best a jumping off point for such counseling, which is by definition interactive and iterative in nature.
That said, it's entirely possible that, even after robust attempts at problem-solving, that the proposal that best meets the needs of the global multistakeholder community could involve an external-to-ICANN option or could only be feasible under the laws of a different jurisdiction.
But we are far, far away from this.
I'll admit that, in my private practice, there are times I feel that I have to walk clients through fairly negative steps in terms of the legal environment, risks and worst-case scenarios. But then the real work starts (I might even say "the fun begins" but that sounds kind of pathetically wonky), starting with "But this is what we can do..." and tell them how we will meet their needs. Of course, there are times when you need to tell clients "No," but most of the time, it should be "No, but..." It's the really rare case where you say "No. Just No." (or how do you look in an orange jumpsuit...). Even in those cases, you try to find the client a reasonable solution to as many of their key points as possible.
So, rather than looking at this as a conversation stopper, it will be more fruitful to view it as a conversation starter.
Greg
On Monday, February 9, 2015, Graeme Bunton <gbunton@tucows.com> wrote: I read it with some interest, and as was pointed out by Milton and others in the Accountability WG, it is legal that advocates from and for a particular perspective. Which is of course fine, so long as we don't treat this as definitive legal opinion for our purposes.
To me, it seems to suggest either of two outcomes: - The re-domiciling of ICANN to a jurisdiction that would allow the community to assert itself upon the board - Some version of the external to ICANN option we've been discussing
Graeme
On 2015-02-09 1:33 AM, Milton L Mueller wrote: People who read this should keep in mind that Jones Day is ICANN’s lawyer and as such has an interest in, if not an obligation to, interpret or represent the law in ways that serve the interests of its client.
From:cwg-rfp3-bounces@icann.org [mailto:cwg-rfp3-bounces@icann.org] On Behalf Of James Gannon Sent: Sunday, February 8, 2015 5:11 AM To: cwg-stewardship@icann.org Cc: RFP3 Subject: [CWG-RFP3] CCWG California Law Response
I believe that the CWG should be aware of the response from Jones Day to the CCWG’s questions of California law noted below while we are considering options and they will feed into the acceptability of both models under discussion:
https://mm.icann.org/pipermail/accountability-cross-community/attachments/20...
I have copied an excerpt extracted and notes on the domainmondo article below:http://www.domainmondo.com/2015/02/icann-lawyers-nix-icann-accountability.ht...
Initial Responses to the Community Working Group’s California Law Questions, 7 February 2015,from Jones Day (ICANN's lawyers) to questions submitted by the Cross Community Working Group (CCWG).... (excerpts below, full responses here)--
Jones Day: “…. It is important to note that, even in the context of members and delegates, California law provides that the activities and affairs of ICANN still must be conducted and all corporate powers must be exercised by or under the direction of the Board. Accordingly, members and delegates cannot force the Board to take a certain action or overturn a Board decision. The rights of members and delegates under California law are limited and are more closely associated with approval rights over specified actions, rather than the right to second guess or supersede Board action or inaction. For example, members would only be entitled to approve the Board’s budget and would not be able to propose or approve a separate budget. As with any new structure, adding “members” or “delegates” raises a considerable number of governance issues, including the mechanisms to hold these new members or delegates accountable, how these members/delegates would be selected (and how could they be changed), what specified matters would the members/delegates be entitled to approve, what would be the applicable voting threshold for each specified matter, how often would member/delegate meetings be held and how much notice would be required for those meetings, and how would the creation of members/delegates affect the existing Board selection structure. Further, any new structure must be evaluated against the question of whether the new structure actually solves the underlying problem or meets the underlying goal. In some respects, the introduction of “members” or “delegates,” while initially appealing, may not solve the underlying problems and could simply result in moving the “problems” to another body of individuals where similar accountability concerns would persist (i.e., who watches the watchers) ….
“4. In the case of inaction by the Board on an issue developed through community consensus, is it possible to have a mechanism that will empower the community to require the Board to take action?
“No. California law does not provide for a mechanism that would empower the community, regardless of whether ICANN has members or not, to force the Board to take action on a community proposal. The activities and affairs of ICANN must be managed and all corporate powers must be exercised under the ultimate direction of the Board….”
James Gannon Director Cyber Invasion Ltd Dun Laoghaire, County Dublin, Ireland Office: +353 (1)663-8787 Cell: +353 (86)175-3581 Email:james@cyberinvasion.net GPG: https://keybase.io/jayg
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-- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
From: Chris Disspain [mailto:ceo@auda.org.au] You do yourself a disservice by pulling out the Board member card. MM: I am not sure what kind of disservice I have done to myself, but I think you are the one who is sending this debate into the gutter. Try to avoid personal insults, both in tone and content. The topic of conversation here was the Jones Day interpretation of California law and whether ICANN as corporate entity and its law firm will seek to preserve its power. Your status as a board member with an fiduciary interest in supporting the interests of the ICANN corporation is a relevant factor in this debate. Asserting that academics have no experience in this or that is not a relevant argument.
Hi Milton,
Try to avoid personal insults, both in tone and content.
Excellent idea. Let’s all do that.
The topic of conversation here was the Jones Day interpretation of California law and whether ICANN as corporate entity and its law firm will seek to preserve its power.
That may be the thread but the topic of my comment and the one to which you responded was my suggestion that what Kieren said was a fact was not a fact.
Your status as a board member with an fiduciary interest in supporting the interests of the ICANN corporation is a relevant factor in this debate.
As I said: "…..I am more than capable of dividing my responsibilities/opinions as a Board member from those as CEO of auDA from those of an individual. I appreciate that as an academic you have no experience of doing this…." I rest my case. Cheers, Chris On 10 Feb 2015, at 13:05 , Milton L Mueller <mueller@syr.edu> wrote:
From: Chris Disspain [mailto:ceo@auda.org.au]
You do yourself a disservice by pulling out the Board member card.
MM: I am not sure what kind of disservice I have done to myself, but I think you are the one who is sending this debate into the gutter. Try to avoid personal insults, both in tone and content. The topic of conversation here was the Jones Day interpretation of California law and whether ICANN as corporate entity and its law firm will seek to preserve its power. Your status as a board member with an fiduciary interest in supporting the interests of the ICANN corporation is a relevant factor in this debate. Asserting that academics have no experience in this or that is not a relevant argument.
With great hesitation I would like to suggest that all of us have our hats, and it is inevitable our hats colour what people think we will say. That's even independent of becoming known for positions we take (or having others attribute to us a stubbornness about those positions which doesn't exist). The old engineering motto of being liberal in what we accept and conservative in what we send probably works... *retreats quietly out of the way* JTC On 10 February 2015 at 10:23, Chris Disspain <ceo@auda.org.au> wrote:
Hi Milton,
Try to avoid personal insults, both in tone and content.
Excellent idea. Let's all do that.
The topic of conversation here was the Jones Day interpretation of California law and whether ICANN as corporate entity and its law firm will seek to preserve its power.
That may be the thread but the topic of my comment and the one to which you responded was my suggestion that what Kieren said was a fact was not a fact.
Your status as a board member with an fiduciary interest in supporting the interests of the ICANN corporation is a relevant factor in this debate.
As I said:
".....I am more than capable of dividing my responsibilities/opinions as a Board member from those as CEO of auDA from those of an individual. I appreciate that as an academic you have no experience of doing this...."
I rest my case.
Cheers,
Chris
On 10 Feb 2015, at 13:05 , Milton L Mueller <mueller@syr.edu> wrote:
*From:* Chris Disspain [mailto:ceo@auda.org.au <ceo@auda.org.au>]
You do yourself a disservice by pulling out the Board member card.
MM: I am not sure what kind of disservice I have done to myself, but I think you are the one who is sending this debate into the gutter. Try to avoid personal insults, both in tone and content. The topic of conversation here was the Jones Day interpretation of California law and whether ICANN as corporate entity and its law firm will seek to preserve its power. Your status as a board member with an fiduciary interest in supporting the interests of the ICANN corporation is a relevant factor in this debate. Asserting that academics have no experience in this or that is not a relevant argument.
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Hi, I think the lack of collegiality and wicked finger pointing isn't going to help us find the accountability solution we need to find. In fact I think it leads us in the other direction. This is a multistakeholder group and the rule is that we all have different perspective. Perhaps I have a Pollyanna view on all of this, but to distrust others because they have perspectives, often multiple perspectives, that are different that my own just seems like such a waste of effort, both personal and collective. Just a personal opinion mind you. As for lawyers, i see them like doctors. My general rule is never act on a single opinion alone as they come from various perspectives just like the rest of us. I am as concerend when the lawyer tells me exactly what I want to hear as when she tells me what I don't want to hear. They are fallible, opinionated and constrained by their interests, just like every other one of us. avri
Kieren, With all due respect;
Another fact from this: ICANN corporate is going to fight all proposed changes that see it lose any kind of power. And the Board will likely feel obliged to follow the legal advice of its lawyers over a third party.
…that is not a fact. It is at best speculation. It is possibly journalistic licence. It is, at its worst, intentionally mischievous and misleading. Cheers, Chris On 10 Feb 2015, at 02:27 , Kieren McCarthy <kierenmccarthy@gmail.com> wrote:
I'm a little surprised that you are all surprised by the contents of ICANN's lawyers' memo.
This has been the position of Jones Day for years and it has been used repeatedly to undercut community recommendations for better accountability.
The big difference this time around is that we have it in black and white, and publicly, before the final recommendations have been made.
In the past, the legal advice has typically only made it into the Board's hands after the recommendations have been provided. They have then been dropped.
Another fact from this: ICANN corporate is going to fight all proposed changes that see it lose any kind of power. And the Board will likely feel obliged to follow the legal advice of its lawyers over a third party.
So the question becomes: how do you force ICANN Corporate to shift its position *before* the process is closed off?
Because if you leave that detail until after (call it 'implementation'), it will never happen.
Kieren
Kieren
- [sent through phone]
On Sun, Feb 8, 2015 at 9:04 PM, Maarten Simon <maarten.simon@sidn.nl> wrote:
Thank you Greg for this response. I indeed hope that Californian law will proof to be more flexible than suggested by the advice because I am not looking forward to a discussion on all possible jurisdictions worldwide that could provide for what we need.
Maarten
From: Greg Shatan <gregshatanipc@gmail.com> Date: Monday 9 February 2015 11:29 To: Graeme Bunton <gbunton@tucows.com> Cc: "cwg-stewardship@icann.org" <cwg-stewardship@icann.org>, "cwg-rfp3@icann.org" <cwg-rfp3@icann.org> Subject: Re: [CWG-Stewardship] CCWG California Law Response
Graeme,
May I gently suggest that you are treating this as a definitive legal opinion by stating the two outcomes you think it suggests.
I think the outcome it suggests is that we need independent legal counseling. I use t he word "counseling" and not "advice" on purpose. A good counselor solves a client's problems and protects the client from risk. A document like the one in question is at best a jumping off point for such counseling, which is by definition interactive and iterative in nature.
That said, it's entirely possible that, even after robust attempts at problem-solving, that the proposal that best meets the needs of the global multistakeholder community could involve an external-to-ICANN option or could only be feasible under the laws of a different jurisdiction.
But we are far, far away from this.
I'll admit that, in my private practice, there are times I feel that I have to walk clients through fairly negative steps in terms of the legal environment, risks and worst-case scenarios. But then the real work starts (I might even say "the fun begins" but that sounds kind of pathetically wonky), starting with "But this is what we can do..." and tell them how we will meet their needs. Of course, there are times when you need to tell clients "No," but most of the time, it should be "No, but..." It's the really rare case where you say "No. Just No." (or how do you look in an orange jumpsuit...). Even in those cases, you try to find the client a reasonable solution to as many of their key points as possible.
So, rather than looking at this as a conversation stopper, it will be more fruitful to view it as a conversation starter.
Greg
On Monday, February 9, 2015, Graeme Bunton <gbunton@tucows.com> wrote: I read it with some interest, and as was pointed out by Milton and others in the Accountability WG, it is legal that advocates from and for a particular perspective. Which is of course fine, so long as we don't treat this as definitive legal opinion for our purposes.
To me, it seems to suggest either of two outcomes: - The re-domiciling of ICANN to a jurisdiction that would allow the community to assert itself upon the board - Some version of the external to ICANN option we've been discussing
Graeme
On 2015-02-09 1:33 AM, Milton L Mueller wrote:
People who read this should keep in mind that Jones Day is ICANN’s lawyer and as such has an interest in, if not an obligation to, interpret or represent the law in ways that serve the interests of its client.
From:cwg-rfp3-bounces@icann.org [mailto:cwg-rfp3-bounces@icann.org] On Behalf Of James Gannon Sent: Sunday, February 8, 2015 5:11 AM To: cwg-stewardship@icann.org Cc: RFP3 Subject: [CWG-RFP3] CCWG California Law Response
I believe that the CWG should be aware of the response from Jones Day to the CCWG’s questions of California law noted below while we are considering options and they will feed into the acceptability of both models under discussion:
https://mm.icann.org/pipermail/accountability-cross-community/attachments/20...
I have copied an excerpt extracted and notes on the domainmondo article below: http://www.domainmondo.com/2015/02/icann-lawyers-nix-icann-accountability.ht...
Initial Responses to the Community Working Group’s California Law Questions, 7 February 2015,from Jones Day (ICANN's lawyers) to questions submitted by the Cross Community Working Group (CCWG).... (excerpts below, full responses here)--
Jones Day: “…. It is important to note that, even in the context of members and delegates, California law provides that the activities and affairs of ICANN still must be conducted and all corporate powers must be exercised by or under the direction of the Board. Accordingly, members and delegates cannot force the Board to take a certain action or overturn a Board decision. The rights of members and delegates under California law are limited and are more closely associated with approval rights over specified actions, rather than the right to second guess or supersede Board action or inaction. For example, members would only be entitled to approve the Board’s budget and would not be able to propose or approve a separate budget. As with any new structure, adding “members” or “delegates” raises a considerable number of governance issues, including the mechanisms to hold these new members or delegates accountable, how these members/delegates would be selected (and how could they be changed), what specified matters would the members/delegates be entitled to approve, what would be the applicable voting threshold for each specified matter, how often would member/delegate meetings be held and how much notice would be required for those meetings, and how would the creation of members/delegates affect the existing Board selection structure. Further, any new structure must be evaluated against the question of whether the new structure actually solves the underlying problem or meets the underlying goal. In some respects, the introduction of “members” or “delegates,” while initially appealing, may not solve the underlying problems and could simply result in moving the “problems” to another body of individuals where similar accountability concerns would persist (i.e., who watches the watchers) ….
“4. In the case of inaction by the Board on an issue developed through community consensus, is it possible to have a mechanism that will empower the community to require the Board to take action?
“No. California law does not provide for a mechanism that would empower the community, regardless of whether ICANN has members or not, to force the Board to take action on a community proposal. The activities and affairs of ICANN must be managed and all corporate powers must be exercised under the ultimate direction of the Board….”
James Gannon
Director
Cyber Invasion Ltd
Dun Laoghaire, County Dublin, Ireland
Office: +353 (1)663-8787
Cell: +353 (86)175-3581
Email:james@cyberinvasion.net
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.orghttps://mm.icann.org/mailman/listinfo/cwg-stewardship
-- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634
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Whaddya mean? It IS a definitive legal opinion! The key consideration here is for whom was it prepared? Now, if Jones Day would have changed it opinion I would have encouraged ICANN the corporation to institute an action against them for cranky historical advice. For the record would show any contrary opinion now to ICANN the corporation would be suspect, at minimum, bordering on the criminal and a basis for misprision and malpractice claims! -Carlton ============================== Carlton A Samuels Mobile: 876-818-1799 *Strategy, Planning, Governance, Assessment & Turnaround* ============================= On Sun, Feb 8, 2015 at 10:29 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Graeme,
May I gently suggest that you are treating this as a definitive legal opinion by stating the two outcomes you think it suggests.
I think the outcome it suggests is that we need independent legal counseling. I use t he word "counseling" and not "advice" on purpose. A good counselor solves a client's problems and protects the client from risk. A document like the one in question is at best a jumping off point for such counseling, which is by definition interactive and iterative in nature.
That said, it's entirely possible that, even after robust attempts at problem-solving, that the proposal that best meets the needs of the global multistakeholder community could involve an external-to-ICANN option or could only be feasible under the laws of a different jurisdiction.
But we are far, far away from this.
I'll admit that, in my private practice, there are times I feel that I have to walk clients through fairly negative steps in terms of the legal environment, risks and worst-case scenarios. But then the real work starts (I might even say "the fun begins" but that sounds kind of pathetically wonky), starting with "But this is what we can do..." and tell them how we will meet their needs. Of course, there are times when you need to tell clients "No," but most of the time, it should be "No, but..." It's the really rare case where you say "No. Just No." (or how do you look in an orange jumpsuit...). Even in those cases, you try to find the client a reasonable solution to as many of their key points as possible.
So, rather than looking at this as a conversation stopper, it will be more fruitful to view it as a conversation starter.
Greg
On Monday, February 9, 2015, Graeme Bunton <gbunton@tucows.com> wrote:
I read it with some interest, and as was pointed out by Milton and others in the Accountability WG, it is legal that advocates from and for a particular perspective. Which is of course fine, so long as we don't treat this as definitive legal opinion for our purposes.
To me, it seems to suggest either of two outcomes: - The re-domiciling of ICANN to a jurisdiction that would allow the community to assert itself upon the board - Some version of the external to ICANN option we've been discussing
Graeme
On 2015-02-09 1:33 AM, Milton L Mueller wrote:
People who read this should keep in mind that Jones Day is ICANN’s lawyer and as such has an interest in, if not an obligation to, interpret or represent the law in ways that serve the interests of its client.
*From:* cwg-rfp3-bounces@icann.org [mailto:cwg-rfp3-bounces@icann.org] *On Behalf Of *James Gannon *Sent:* Sunday, February 8, 2015 5:11 AM *To:* cwg-stewardship@icann.org *Cc:* RFP3 *Subject:* [CWG-RFP3] CCWG California Law Response
I believe that the CWG should be aware of the response from Jones Day to the CCWG’s questions of California law noted below while we are considering options and they will feed into the acceptability of both models under discussion:
https://mm.icann.org/pipermail/accountability-cross-community/attachments/20...
I have copied an excerpt extracted and notes on the domainmondo article below: http://www.domainmondo.com/2015/02/icann-lawyers-nix-icann-accountability.ht...
Initial Responses to the Community Working Group’s California Law Questions, 7 February 2015,from Jones Day (ICANN's lawyers) to questions submitted by the Cross Community Working Group (CCWG).... (excerpts below, full responses here <http://mm.icann.org/pipermail/accountability-cross-community/attachments/201...> )--
Jones Day: “…. It is important to note that, even in the context of members and delegates, California law provides that the activities and affairs of ICANN still must be conducted and all corporate powers must be exercised by or under the direction of the Board. Accordingly, members and delegates cannot force the Board to take a certain action or overturn a Board decision. The rights of members and delegates under California law are limited and are more closely associated with approval rights over specified actions, rather than the right to second guess or supersede Board action or inaction. For example, members would only be entitled to approve the Board’s budget and would not be able to propose or approve a separate budget. As with any new structure, adding “members” or “delegates” raises a considerable number of governance issues, including the mechanisms to hold these new members or delegates accountable, how these members/delegates would be selected (and how could they be changed), what specified matters would the members/delegates be entitled to approve, what would be the applicable voting threshold for each specified matter, how often would member/delegate meetings be held and how much notice would be required for those meetings, and how would the creation of members/delegates affect the existing Board selection structure. Further, any new structure must be evaluated against the question of whether the new structure actually solves the underlying problem or meets the underlying goal. In some respects, the introduction of “members” or “delegates,” while initially appealing, may not solve the underlying problems and could simply result in moving the “problems” to another body of individuals where similar accountability concerns would persist (i.e., who watches the watchers) ….
“4. In the case of inaction by the Board on an issue developed through community consensus, is it possible to have a mechanism that will empower the community to require the Board to take action?
“No. California law does not provide for a mechanism that would empower the community, regardless of whether ICANN has members or not, to force the Board to take action on a community proposal. The activities and affairs of ICANN must be managed and all corporate powers must be exercised under the ultimate direction of the Board….”
*James Gannon*
*Director*
*Cyber Invasion Ltd*
*Dun Laoghaire, County Dublin, Ireland*
*Office: +353 (1)663-8787 <%2B353%20%281%29663-8787>*
*Cell: +353 (86)175-3581 <%2B353%20%2886%29175-3581>*
*Email:james@cyberinvasion.net*
*GPG: https://keybase.io/jayg <https://keybase.io/jayg>*
_______________________________________________ CWG-Stewardship mailing listCWG-Stewardship@icann.orghttps://mm.icann.org/mailman/listinfo/cwg-stewardship
-- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634
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Folks This is just another input and is NOT the final advice nor the only legal input that will be considered. Let the legal sub team and the larger working group study ALL of the inputs and then come back with the scooping document they have been assigned to develop which will, in turn, be subject to EXTERNAL legal advice. Thanks Holly On 9 Feb 2015, at 11:33 am, Graeme Bunton <gbunton@tucows.com> wrote:
I read it with some interest, and as was pointed out by Milton and others in the Accountability WG, it is legal that advocates from and for a particular perspective. Which is of course fine, so long as we don't treat this as definitive legal opinion for our purposes.
To me, it seems to suggest either of two outcomes: - The re-domiciling of ICANN to a jurisdiction that would allow the community to assert itself upon the board - Some version of the external to ICANN option we've been discussing
Graeme
On 2015-02-09 1:33 AM, Milton L Mueller wrote:
People who read this should keep in mind that Jones Day is ICANN’s lawyer and as such has an interest in, if not an obligation to, interpret or represent the law in ways that serve the interests of its client.
From: cwg-rfp3-bounces@icann.org [mailto:cwg-rfp3-bounces@icann.org] On Behalf Of James Gannon Sent: Sunday, February 8, 2015 5:11 AM To: cwg-stewardship@icann.org Cc: RFP3 Subject: [CWG-RFP3] CCWG California Law Response
I believe that the CWG should be aware of the response from Jones Day to the CCWG’s questions of California law noted below while we are considering options and they will feed into the acceptability of both models under discussion:
https://mm.icann.org/pipermail/accountability-cross-community/attachments/20...
I have copied an excerpt extracted and notes on the domainmondo article below: http://www.domainmondo.com/2015/02/icann-lawyers-nix-icann-accountability.ht...
Initial Responses to the Community Working Group’s California Law Questions, 7 February 2015,from Jones Day (ICANN's lawyers) to questions submitted by the Cross Community Working Group (CCWG).... (excerpts below, full responses here)--
Jones Day: “…. It is important to note that, even in the context of members and delegates, California law provides that the activities and affairs of ICANN still must be conducted and all corporate powers must be exercised by or under the direction of the Board. Accordingly, members and delegates cannot force the Board to take a certain action or overturn a Board decision. The rights of members and delegates under California law are limited and are more closely associated with approval rights over specified actions, rather than the right to second guess or supersede Board action or inaction. For example, members would only be entitled to approve the Board’s budget and would not be able to propose or approve a separate budget. As with any new structure, adding “members” or “delegates” raises a considerable number of governance issues, including the mechanisms to hold these new members or delegates accountable, how these members/delegates would be selected (and how could they be changed), what specified matters would the members/delegates be entitled to approve, what would be the applicable voting threshold for each specified matter, how often would member/delegate meetings be held and how much notice would be required for those meetings, and how would the creation of members/delegates affect the existing Board selection structure. Further, any new structure must be evaluated against the question of whether the new structure actually solves the underlying problem or meets the underlying goal. In some respects, the introduction of “members” or “delegates,” while initially appealing, may not solve the underlying problems and could simply result in moving the “problems” to another body of individuals where similar accountability concerns would persist (i.e., who watches the watchers) ….
“4. In the case of inaction by the Board on an issue developed through community consensus, is it possible to have a mechanism that will empower the community to require the Board to take action?
“No. California law does not provide for a mechanism that would empower the community, regardless of whether ICANN has members or not, to force the Board to take action on a community proposal. The activities and affairs of ICANN must be managed and all corporate powers must be exercised under the ultimate direction of the Board….”
James Gannon Director Cyber Invasion Ltd Dun Laoghaire, County Dublin, Ireland Office: +353 (1)663-8787 Cell: +353 (86)175-3581 Email:james@cyberinvasion.net GPG: https://keybase.io/jayg
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-- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634 _______________________________________________ Cwg-rfp3 mailing list Cwg-rfp3@icann.org https://mm.icann.org/mailman/listinfo/cwg-rfp3
participants (13)
-
Avri Doria -
Carlton Samuels -
Chris Disspain -
Gary Campbell -
Graeme Bunton -
Greg Shatan -
Holly Raiche -
James Gannon -
Jordan Carter -
Kieren McCarthy -
Maarten Simon -
Milton L Mueller -
Steve Crocker