Past experience with ICANN suggests that lawsuits are the only things that get it to listen. Karl Auerbach had to sue to get access to the financial records (although it was a legal requirement that Directors be given such access); Verisign's lawsuit got it a favorable renewal of the .com contract, though one unfavorable to the public interest. The public was not made "members" of the corporation under California law (even when the public was permitted to vote), specifically so individuals could not claim legal rights against ICANN. And so, ICANN feels free to ignore the opinions and interests of the general public and individual Internet users. Giving the RALO enforceable commitments from ICANN could take a small step toward remedying that imbalance. I'm not proposing that the RALO engage in frivolous lawsuits, only that it preserve the legal right to enforce compliance with the duties it requests of ICANN in its contract/MOU. (Perhaps I should have spoken of specific performance, rather than money damages, as the desired remedy for breaches.) If we're not entering an enforceable agreement, why bother entering an agreement at all? --Wendy Evan Leibovitch wrote:
Wendy Seltzer wrote:
On the other hand, if the MoU is not a contract, it doesn't provide the signing ALSs or RALO any remedies if ICANN breaches the terms of its agreement such as by failing to support the secretariat, failing to make documents available, or continued lack of transparency. Perhaps the ALSs want stronger remedies -- i.e., maybe we want to push for a real contract with a real possibility of money damages.
"We" (at least speaking for my personal participation in this "we") will NOT push for a "real contract" or monetary penalties, especially from a non-profit. In fact, "we" (from my POV) will actively oppose it. My ALS joined this process in order to assist ICANN, not aquire a collective opportunity to sue it.
I for one am happy to go along with the process Nick described that LAC had done, in electing the reps upon completion of the MOU. As for contracts versus MOUs, if I am in the minority and people here really want the abilility to sue ICANN, then at least set the jurisdiction in Canada or somewhere else which has real social and/or legal disincentives to frivolous litigation.
- Evan
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-- Wendy Seltzer -- wendy@seltzer.org phone: 718.780.7961 // fax: 718.780.0394 // cell: 914.374.0613 Visiting Assistant Professor of Law, Brooklyn Law School Fellow, Berkman Center for Internet & Society http://cyber.law.harvard.edu/seltzer.html http://www.chillingeffects.org/