Dear All: I refer you to the email I forwarded you from the General Counsel's office on 14th April. The view of the GC on that issue has not changed from April 14th to the present. No prudent group of directors, or staff members - especially those with a fiduciary responsibility to the company they work for - would be likely to agree to unlimited liability and open themselves to legal action from anyone from a group of hundreds of millions of people. A complete analysis of the provisions of the draft MoU has as I promised been prepared. It is being reviewed by the GCs office now, and is due to be cleared and then forwarded to all of you on Thursday of next week. The clauses which Wendy has created are referenced in detail and may elaborate on my paragraph above referenced when finalised. On 19/05/07, Wendy Seltzer <wendy@seltzer.com> wrote:
I replaced what I thought were important terms in the draft MoU. Let me explain further why I think they're important.
6.4 Enforcement. In recognition of the considerable time and effort expended by the signing organizations, ICANN agrees that its obligations are legally enforceable in the courts [or arbitral forums] of [jurisdiction]. In the event of breach, ICANN shall be liable for the relying parties' costs and fees.
I think we want this to be more than just pretty words on paper (or screen), but a set of enforceable obligations to which groups can hold ICANN. This language specifies the recourse in case of breach.
6.5 Third-party beneficiaries. This agreement is made for the benefit of the general public. Individual Internet users are its intended beneficiaries, and its terms are expressly enforceable by any member of the public.
The At-Large is supposed to be the mechanism by which the public has input to and participation in ICANN, say the Bylaws. If we're creating a RALO, we should be trying to give the public as many channels as the structure allows -- including, where necessary, the channel of legal enforcement. Third-party beneficiary clauses are the standard way to express that public-benefit aspect.
Unfortunately, past experience with ICANN suggests that legal action is the most effective means to get ICANN's attention and action. For recent examples, ICANN did not respond to the RegisterFly crisis until a class action lawsuit was filed. ICANN renewed Verisign's contract, allowing price increases that harm the end-user, after Verisign filed suit.
I'm not suggesting that we sue ICANN, but leaving that option available to us or to others strengthens our bargaining position far short of litigation.
These legal "hooks" could provide much greater opportunity for real progress by this RALO and the public.
Thanks, --Wendy
-- Wendy Seltzer -- wendy@seltzer.org Visiting Fellow, Oxford Internet Institute Fellow, Berkman Center for Internet & Society http://cyber.law.harvard.edu/seltzer.html http://www.chillingeffects.org/
_______________________________________________ NA-Discuss mailing list NA-Discuss@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge-lists.ica... --- Draft MoU with ICANN: http://www.icannwiki.org/NA_RALO_MOU
Draft Operating Principles: http://www.icannwiki.org/NA_RALO_OP
Draft Code of Conduct: http://www.icannwiki.org/NARALO_Code_of_Conduct
-- -- Regards, Nick Ashton-Hart PO Box 32160 London N4 2XY United Kingdom UK Tel: +44 (20) 8800-1011 USA Tel: +1 (202) 657-5460 Fax: +44 (20) 7681-3135 mobile: +44 (7774) 932798 Win IM: ashtonhart@hotmail.com / AIM/iSight: nashtonhart@mac.com / Skype: nashtonhart Online Bio: https://www.linkedin.com/in/ashtonhart