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/
Hello Wendy, Yes, I noticed you put these paragraphs back after I deleted them yesterday. I deleted the paragraphs because of the unanimous agreement of the people on our last conference call to do so, as documented in the minutes of the call I sent to the list on 04.29. I appreciate your concerns. However, the clauses do not represent the spirit of mutuality vehiculated in the MOU and the probality that ICANN will agree to an MOU carrying these clauses is zero. So I would appreciate that you respect the will of the majority and not put them back after I delete them again. Regards, _________________________________________ Luc Faubert Conseiller en gouvernance TI et en gestion du changement / IT governance and change management consulting +1 514 236 5129 www.LucFaubert.com www.LucFaubert.com/blog www.isoc.qc.ca www.ccig.ca www.uqbm.qc.ca www.maillons.qc.ca
-----Original Message----- From: na-discuss-bounces@atlarge-lists.icann.org [mailto:na-discuss-bounces@atlarge-lists.icann.org] On Behalf Of Wendy Seltzer Sent: 19 mai 2007 07:44 To: NA Discuss Subject: [NA-Discuss] Legal hooks in the MOU
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_atl arge-lists.icann.org --- 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
I support Wendy's position. Until such time as At-Large directors are seated on the ICANN Board (an act that would honor the spirit of the White Paper upon which ICANN was built), I don't intend to give an inch on this point. Had at-Large Directors been on the Board, do any of you think that we would have gone the last five years without any registrant data escrow services?!! Do you think that with At-Large Directors on the Board that registrants would still be paying up to $260 to redeem a domaine name from the Redemption Grace Period? I'm not interested in "playing nice". We need to have our community protected, and if legal channels are all that remain, then I will not support any course of action that serves to eliminate third-party beneficiary rights. --- Luc Faubert <LFaubert@conceptum.ca> wrote:
Hello Wendy,
Yes, I noticed you put these paragraphs back after I deleted them yesterday.
I deleted the paragraphs because of the unanimous agreement of the people on our last conference call to do so, as documented in the minutes of the call I sent to the list on 04.29.
I appreciate your concerns. However, the clauses do not represent the spirit of mutuality vehiculated in the MOU and the probality that ICANN will agree to an MOU carrying these clauses is zero.
So I would appreciate that you respect the will of the majority and not put them back after I delete them again.
Regards,
_________________________________________ Luc Faubert Conseiller en gouvernance TI et en gestion du changement / IT governance and change management consulting +1 514 236 5129 www.LucFaubert.com www.LucFaubert.com/blog www.isoc.qc.ca www.ccig.ca www.uqbm.qc.ca www.maillons.qc.ca
-----Original Message----- From: na-discuss-bounces@atlarge-lists.icann.org
[mailto:na-discuss-bounces@atlarge-lists.icann.org] On Behalf
Of Wendy Seltzer Sent: 19 mai 2007 07:44 To: NA Discuss Subject: [NA-Discuss] Legal hooks in the MOU
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_atl
arge-lists.icann.org
--- 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
_______________________________________________ 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
____________________________________________________________________________________ Looking for earth-friendly autos? Browse Top Cars by "Green Rating" at Yahoo! Autos' Green Center. http://autos.yahoo.com/green_center/
Danny, It is truly a shame, then, that neither you nor Wendy were on that last conference call. You could have voiced your opinions therein. As it was, as Luc states, everybody on the call voted to remove those paragraphs so its rather a null issue now - as I see it. Darlene ________________________________ From: na-discuss-bounces@atlarge-lists.icann.org on behalf of Danny Younger Sent: Sat 5/19/2007 8:44 AM To: Luc Faubert; Wendy Seltzer; NA Discuss Subject: Re: [NA-Discuss] Legal hooks in the MOU I support Wendy's position. Until such time as At-Large directors are seated on the ICANN Board (an act that would honor the spirit of the White Paper upon which ICANN was built), I don't intend to give an inch on this point. Had at-Large Directors been on the Board, do any of you think that we would have gone the last five years without any registrant data escrow services?!! Do you think that with At-Large Directors on the Board that registrants would still be paying up to $260 to redeem a domaine name from the Redemption Grace Period? I'm not interested in "playing nice". We need to have our community protected, and if legal channels are all that remain, then I will not support any course of action that serves to eliminate third-party beneficiary rights. --- Luc Faubert <LFaubert@conceptum.ca> wrote:
Hello Wendy,
Yes, I noticed you put these paragraphs back after I deleted them yesterday.
I deleted the paragraphs because of the unanimous agreement of the people on our last conference call to do so, as documented in the minutes of the call I sent to the list on 04.29.
I appreciate your concerns. However, the clauses do not represent the spirit of mutuality vehiculated in the MOU and the probality that ICANN will agree to an MOU carrying these clauses is zero.
So I would appreciate that you respect the will of the majority and not put them back after I delete them again.
Regards,
_________________________________________ Luc Faubert Conseiller en gouvernance TI et en gestion du changement / IT governance and change management consulting +1 514 236 5129 www.LucFaubert.com www.LucFaubert.com/blog www.isoc.qc.ca www.ccig.ca www.uqbm.qc.ca www.maillons.qc.ca
-----Original Message----- From: na-discuss-bounces@atlarge-lists.icann.org
[mailto:na-discuss-bounces@atlarge-lists.icann.org] On Behalf
Of Wendy Seltzer Sent: 19 mai 2007 07:44 To: NA Discuss Subject: [NA-Discuss] Legal hooks in the MOU
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_atl
arge-lists.icann.org
--- 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
_______________________________________________ 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
____________________________________________________________________________________ Looking for earth-friendly autos? Browse Top Cars by "Green Rating" at Yahoo! Autos' Green Center. http://autos.yahoo.com/green_center/ _______________________________________________ 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
Hi everyone If everyone has to agree to everything then nothing would get done. There are processes to deal with disagreements, and if there is no consensus, then you vote. Veto power would basically prevent NA region from moving forward on the many vital and urgent policy issues in which the individual users you represent are interested. If you revisit every decision taken in a meeting that someone doesn’t agree with (especially if they didn’t attend the meeting) that seems to me to be trying to institute a veto by delay. You have processes. If the decisions are taken in accordance with the process, then they should not be revisited unless new information, new members or a sea-change in the thinking of the group occurs. In that case, you should have processes to allow for revisiting these decisions (usually 2/3 majority in a vote) Just my $0.02 BTW – Bret, Mr. Interim Chair – how are you going on the MoU and OP adoption? I saw a couple emails that indicated confusion about the vote counting – has that been sorted? Jacqueline From: Thompson, Darlene [mailto:DThompson@GOV.NU.CA] Sent: Monday, May 21, 2007 11:53 AM To: Danny Younger; Luc Faubert; Wendy Seltzer; NA Discuss Subject: Re: [NA-Discuss] Legal hooks in the MOU Danny, It is truly a shame, then, that neither you nor Wendy were on that last conference call. You could have voiced your opinions therein. As it was, as Luc states, everybody on the call voted to remove those paragraphs so its rather a null issue now - as I see it. Darlene _____ From: na-discuss-bounces@atlarge-lists.icann.org on behalf of Danny Younger Sent: Sat 5/19/2007 8:44 AM To: Luc Faubert; Wendy Seltzer; NA Discuss Subject: Re: [NA-Discuss] Legal hooks in the MOU I support Wendy's position. Until such time as At-Large directors are seated on the ICANN Board (an act that would honor the spirit of the White Paper upon which ICANN was built), I don't intend to give an inch on this point. Had at-Large Directors been on the Board, do any of you think that we would have gone the last five years without any registrant data escrow services?!! Do you think that with At-Large Directors on the Board that registrants would still be paying up to $260 to redeem a domaine name from the Redemption Grace Period? I'm not interested in "playing nice". We need to have our community protected, and if legal channels are all that remain, then I will not support any course of action that serves to eliminate third-party beneficiary rights. --- Luc Faubert <LFaubert@conceptum.ca> wrote:
Hello Wendy,
Yes, I noticed you put these paragraphs back after I deleted them yesterday.
I deleted the paragraphs because of the unanimous agreement of the people on our last conference call to do so, as documented in the minutes of the call I sent to the list on 04.29.
I appreciate your concerns. However, the clauses do not represent the spirit of mutuality vehiculated in the MOU and the probality that ICANN will agree to an MOU carrying these clauses is zero.
So I would appreciate that you respect the will of the majority and not put them back after I delete them again.
Regards,
_________________________________________ Luc Faubert Conseiller en gouvernance TI et en gestion du changement / IT governance and change management consulting +1 514 236 5129 www.LucFaubert.com www.LucFaubert.com/blog www.isoc.qc.ca www.ccig.ca www.uqbm.qc.ca www.maillons.qc.ca
-----Original Message----- From: na-discuss-bounces@atlarge-lists.icann.org
[HYPERLINK "mailto:na-discuss-bounces@atlarge-lists.icann.org"mailto:na-discuss-bounces @atlarge-lists.icann.org] On Behalf
Of Wendy Seltzer Sent: 19 mai 2007 07:44 To: NA Discuss Subject: [NA-Discuss] Legal hooks in the MOU
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 HYPERLINK "http://cyber.law.harvard.edu/seltzer.html"http://cyber.law.harvard.edu/selt zer.html HYPERLINK "http://www.chillingeffects.org/"http://www.chillingeffects.org/
_______________________________________________ NA-Discuss mailing list NA-Discuss@atlarge-lists.icann.org
HYPERLINK "http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atl"http://atlar ge-lists.icann.org/mailman/listinfo/na-discuss_atl
arge-lists.icann.org
--- Draft MoU with ICANN: HYPERLINK "http://www.icannwiki.org/NA_RALO_MOU"http://www.icannwiki.org/NA_RALO_MOU
Draft Operating Principles: HYPERLINK "http://www.icannwiki.org/NA_RALO_OP"http://www.icannwiki.org/NA_RALO_OP
Draft Code of Conduct: HYPERLINK "http://www.icannwiki.org/NARALO_Code_of_Conduct"http://www.icannwiki.org/NA RALO_Code_of_Conduct
_______________________________________________ NA-Discuss mailing list NA-Discuss@atlarge-lists.icann.org
HYPERLINK "http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge-lists.ic ann.org"http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge-l ists.icann.org
--- Draft MoU with ICANN: HYPERLINK "http://www.icannwiki.org/NA_RALO_MOU"http://www.icannwiki.org/NA_RALO_MOU
Draft Operating Principles: HYPERLINK "http://www.icannwiki.org/NA_RALO_OP"http://www.icannwiki.org/NA_RALO_OP
Draft Code of Conduct: HYPERLINK "http://www.icannwiki.org/NARALO_Code_of_Conduct"http://www.icannwiki.org/NA RALO_Code_of_Conduct
____________________________________________________________________________ ________ Looking for earth-friendly autos? Browse Top Cars by "Green Rating" at Yahoo! Autos' Green Center. HYPERLINK "http://autos.yahoo.com/green_center/"http://autos.yahoo.com/green_center/ _______________________________________________ NA-Discuss mailing list NA-Discuss@atlarge-lists.icann.org HYPERLINK "http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge-lists.ic ann.org"http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge-l ists.icann.org --- Draft MoU with ICANN: HYPERLINK "http://www.icannwiki.org/NA_RALO_MOU"http://www.icannwiki.org/NA_RALO_MOU Draft Operating Principles: HYPERLINK "http://www.icannwiki.org/NA_RALO_OP"http://www.icannwiki.org/NA_RALO_OP Draft Code of Conduct: HYPERLINK "http://www.icannwiki.org/NARALO_Code_of_Conduct"http://www.icannwiki.org/NA RALO_Code_of_Conduct No virus found in this incoming message. Checked by AVG Free Edition. Version: 7.5.467 / Virus Database: 269.7.6/813 - Release Date: 5/20/2007 7:54 AM No virus found in this outgoing message. Checked by AVG Free Edition. Version: 7.5.467 / Virus Database: 269.7.6/813 - Release Date: 5/20/2007 7:54 AM
how do we decide what we vote on and what we just discuss as a quorum and accept? Randy Glass A@L On 5/21/07, Jacqueline A. Morris <jam@jacquelinemorris.com> wrote:
Hi everyone
If everyone has to agree to everything then nothing would get done. There are processes to deal with disagreements, and if there is no consensus, then you vote. Veto power would basically prevent NA region from moving forward on the many vital and urgent policy issues in which the individual users you represent are interested.
If you revisit every decision taken in a meeting that someone doesn't agree with (especially if they didn't attend the meeting) that seems to me to be trying to institute a veto by delay. You have processes. If the decisions are taken in accordance with the process, then they should not be revisited unless new information, new members or a sea-change in the thinking of the group occurs. In that case, you should have processes to allow for revisiting these decisions (usually 2/3 majority in a vote)
Just my $0.02
BTW – Bret, Mr. Interim Chair – how are you going on the MoU and OP adoption? I saw a couple emails that indicated confusion about the vote counting – has that been sorted?
Jacqueline
*From:* Thompson, Darlene [mailto:DThompson@GOV.NU.CA] *Sent:* Monday, May 21, 2007 11:53 AM *To:* Danny Younger; Luc Faubert; Wendy Seltzer; NA Discuss *Subject:* Re: [NA-Discuss] Legal hooks in the MOU
Danny,
It is truly a shame, then, that neither you nor Wendy were on that last conference call. You could have voiced your opinions therein. As it was, as Luc states, everybody on the call voted to remove those paragraphs so its rather a null issue now - as I see it.
Darlene
------------------------------
*From:* na-discuss-bounces@atlarge-lists.icann.org on behalf of Danny Younger *Sent:* Sat 5/19/2007 8:44 AM *To:* Luc Faubert; Wendy Seltzer; NA Discuss *Subject:* Re: [NA-Discuss] Legal hooks in the MOU
I support Wendy's position. Until such time as At-Large directors are seated on the ICANN Board (an act that would honor the spirit of the White Paper upon which ICANN was built), I don't intend to give an inch on this point.
Had at-Large Directors been on the Board, do any of you think that we would have gone the last five years without any registrant data escrow services?!! Do you think that with At-Large Directors on the Board that registrants would still be paying up to $260 to redeem a domaine name from the Redemption Grace Period?
I'm not interested in "playing nice". We need to have our community protected, and if legal channels are all that remain, then I will not support any course of action that serves to eliminate third-party beneficiary rights.
--- Luc Faubert <LFaubert@conceptum.ca> wrote:
Hello Wendy,
Yes, I noticed you put these paragraphs back after I deleted them yesterday.
I deleted the paragraphs because of the unanimous agreement of the people on our last conference call to do so, as documented in the minutes of the call I sent to the list on 04.29.
I appreciate your concerns. However, the clauses do not represent the spirit of mutuality vehiculated in the MOU and the probality that ICANN will agree to an MOU carrying these clauses is zero.
So I would appreciate that you respect the will of the majority and not put them back after I delete them again.
Regards,
_________________________________________ Luc Faubert Conseiller en gouvernance TI et en gestion du changement / IT governance and change management consulting +1 514 236 5129 www.LucFaubert.com www.LucFaubert.com/blog www.isoc.qc.ca www.ccig.ca www.uqbm.qc.ca www.maillons.qc.ca
-----Original Message----- From: na-discuss-bounces@atlarge-lists.icann.org
[mailto:na-discuss-bounces@atlarge-lists.icann.org<na-discuss-bounces@atlarge-lists.icann.org> ] On Behalf
Of Wendy Seltzer Sent: 19 mai 2007 07:44 To: NA Discuss Subject: [NA-Discuss] Legal hooks in the MOU
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_atl
arge-lists.icann.org
--- 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
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--- Draft MoU with ICANN: http://www.icannwiki.org/NA_RALO_MOU
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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
-- ------------------------- AmericaAtLarge.org RJPacific.com DDMF.org
In the OPs, you should have those processes documented. Usually you have a quorum requirement for meetings and teleconferences. Decisions made there by consensus or by a particular voting process should be binding. Things that require a vote by the membership – approval of the MoU, Ops, representatives etc should be voted on by the reps to the RALO Assembly (2 per ALS and 2 for unaffiliated users in the NARALO according to the OPs) But you need to approve the Operating principles first in order to operate by them! In the interim, from the messages I’ve seen on the list, you guys have agreed processes to vote on the operating principles (or had – now there’s discussion about counting the votes) and an interim Chair to manage the process. Maybe Bret, Nick or Luc can send a message to the whole list to remind everyone of the process and timeline agreed to for the voting on the OP and MoU and the election of the Reps etc. and you can move ahead to finish the admin bits and get onto the substance of AtLarge representation. Jacqueline From: RJGlass | America@Large [mailto:jipshida@gmail.com] Sent: Monday, May 21, 2007 2:44 PM To: jam@jacquelinemorris.com Cc: Thompson, Darlene; Danny Younger; Luc Faubert; Wendy Seltzer; NA Discuss Subject: Re: [NA-Discuss] Legal hooks in the MOU how do we decide what we vote on and what we just discuss as a quorum and accept? Randy Glass A@L On 5/21/07, Jacqueline A. Morris <HYPERLINK "mailto:jam@jacquelinemorris.com" jam@jacquelinemorris.com> wrote: Hi everyone If everyone has to agree to everything then nothing would get done. There are processes to deal with disagreements, and if there is no consensus, then you vote. Veto power would basically prevent NA region from moving forward on the many vital and urgent policy issues in which the individual users you represent are interested. If you revisit every decision taken in a meeting that someone doesn't agree with (especially if they didn't attend the meeting) that seems to me to be trying to institute a veto by delay. You have processes. If the decisions are taken in accordance with the process, then they should not be revisited unless new information, new members or a sea-change in the thinking of the group occurs. In that case, you should have processes to allow for revisiting these decisions (usually 2/3 majority in a vote) Just my $0.02 BTW – Bret, Mr. Interim Chair – how are you going on the MoU and OP adoption? I saw a couple emails that indicated confusion about the vote counting – has that been sorted? Jacqueline From: Thompson, Darlene [mailto:HYPERLINK "mailto:DThompson@GOV.NU.CA" \nDThompson@GOV.NU.CA] Sent: Monday, May 21, 2007 11:53 AM To: Danny Younger; Luc Faubert; Wendy Seltzer; NA Discuss Subject: Re: [NA-Discuss] Legal hooks in the MOU Danny, It is truly a shame, then, that neither you nor Wendy were on that last conference call. You could have voiced your opinions therein. As it was, as Luc states, everybody on the call voted to remove those paragraphs so its rather a null issue now - as I see it. Darlene _____ From: HYPERLINK "mailto:na-discuss-bounces@atlarge-lists.icann.org" \nna-discuss-bounces@atlarge-lists.icann.org on behalf of Danny Younger Sent: Sat 5/19/2007 8:44 AM To: Luc Faubert; Wendy Seltzer; NA Discuss Subject: Re: [NA-Discuss] Legal hooks in the MOU I support Wendy's position. Until such time as At-Large directors are seated on the ICANN Board (an act that would honor the spirit of the White Paper upon which ICANN was built), I don't intend to give an inch on this point. Had at-Large Directors been on the Board, do any of you think that we would have gone the last five years without any registrant data escrow services?!! Do you think that with At-Large Directors on the Board that registrants would still be paying up to $260 to redeem a domaine name from the Redemption Grace Period? I'm not interested in "playing nice". We need to have our community protected, and if legal channels are all that remain, then I will not support any course of action that serves to eliminate third-party beneficiary rights. --- Luc Faubert <HYPERLINK "mailto:LFaubert@conceptum.ca" \nLFaubert@conceptum.ca> wrote:
Hello Wendy,
Yes, I noticed you put these paragraphs back after I deleted them yesterday.
I deleted the paragraphs because of the unanimous agreement of the people on our last conference call to do so, as documented in the minutes of the call I sent to the list on 04.29.
I appreciate your concerns. However, the clauses do not represent the spirit of mutuality vehiculated in the MOU and the probality that ICANN will agree to an MOU carrying these clauses is zero.
So I would appreciate that you respect the will of the majority and not put them back after I delete them again.
Regards,
_________________________________________ Luc Faubert Conseiller en gouvernance TI et en gestion du changement / IT governance and change management consulting +1 514 236 5129 HYPERLINK "http://www.LucFaubert.com" \nwww.LucFaubert.com HYPERLINK "http://www.LucFaubert.com/blog" \nwww.LucFaubert.com/blog HYPERLINK "http://www.isoc.qc.ca" \nwww.isoc.qc.ca HYPERLINK "http://www.ccig.ca" \nwww.ccig.ca HYPERLINK "http://www.uqbm.qc.ca" \nwww.uqbm.qc.ca HYPERLINK "http://www.maillons.qc.ca" \nwww.maillons.qc.ca
-----Original Message----- From: HYPERLINK "mailto:na-discuss-bounces@atlarge-lists.icann.org" \nna-discuss-bounces@atlarge-lists.icann.org
[HYPERLINK "mailto:na-discuss-bounces@atlarge-lists.icann.org" \nmailto:na-discuss-bounces@atlarge-lists.icann.org] On Behalf
Of Wendy Seltzer Sent: 19 mai 2007 07:44 To: NA Discuss Subject: [NA-Discuss] Legal hooks in the MOU
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 -- HYPERLINK "mailto:wendy@seltzer.org" \nwendy@seltzer.org Visiting Fellow, Oxford Internet Institute Fellow, Berkman Center for Internet & Society HYPERLINK "http://cyber.law.harvard.edu/seltzer.html" \nhttp://cyber.law.harvard.edu/seltzer.html HYPERLINK "http://www.chillingeffects.org/" \nhttp://www.chillingeffects.org/
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--- Draft MoU with ICANN: HYPERLINK "http://www.icannwiki.org/NA_RALO_MOU" \nhttp://www.icannwiki.org/NA_RALO_MOU
Draft Operating Principles: HYPERLINK "http://www.icannwiki.org/NA_RALO_OP" \nhttp://www.icannwiki.org/NA_RALO_OP
Draft Code of Conduct: HYPERLINK "http://www.icannwiki.org/NARALO_Code_of_Conduct" \nhttp://www.icannwiki.org/NARALO_Code_of_Conduct
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--- Draft MoU with ICANN: HYPERLINK "http://www.icannwiki.org/NA_RALO_MOU" \nhttp://www.icannwiki.org/NA_RALO_MOU
Draft Operating Principles: HYPERLINK "http://www.icannwiki.org/NA_RALO_OP" \nhttp://www.icannwiki.org/NA_RALO_OP
Draft Code of Conduct: HYPERLINK "http://www.icannwiki.org/NARALO_Code_of_Conduct" \nhttp://www.icannwiki.org/NARALO_Code_of_Conduct
____________________________________________________________________________ ________ Looking for earth-friendly autos? Browse Top Cars by "Green Rating" at Yahoo! Autos' Green Center. HYPERLINK "http://autos.yahoo.com/green_center/" \nhttp://autos.yahoo.com/green_center/ _______________________________________________ NA-Discuss mailing list HYPERLINK "mailto:NA-Discuss@atlarge-lists.icann.org" \nNA-Discuss@atlarge-lists.icann.org HYPERLINK "http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge-lists.ic ann.org" \nhttp://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge-lists.i cann.org --- Draft MoU with ICANN: HYPERLINK "http://www.icannwiki.org/NA_RALO_MOU" \nhttp://www.icannwiki.org/NA_RALO_MOU Draft Operating Principles: HYPERLINK "http://www.icannwiki.org/NA_RALO_OP" \nhttp://www.icannwiki.org/NA_RALO_OP Draft Code of Conduct: HYPERLINK "http://www.icannwiki.org/NARALO_Code_of_Conduct" \nhttp://www.icannwiki.org/NARALO_Code_of_Conduct No virus found in this incoming message. Checked by AVG Free Edition. Version: 7.5.467 / Virus Database: 269.7.6/813 - Release Date: 5/20/2007 7:54 AM No virus found in this outgoing message. Checked by AVG Free Edition. Version: 7.5.467 / Virus Database: 269.7.6/813 - Release Date: 5/20/2007 7:54 AM _______________________________________________ NA-Discuss mailing list HYPERLINK "mailto:NA-Discuss@atlarge-lists.icann.org"NA-Discuss@atlarge-lists.icann.or g HYPERLINK "http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge-lists.ic ann.org" \nhttp://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge-lists.i cann.org --- Draft MoU with ICANN: HYPERLINK "http://www.icannwiki.org/NA_RALO_MOU" \nhttp://www.icannwiki.org/NA_RALO_MOU Draft Operating Principles: HYPERLINK "http://www.icannwiki.org/NA_RALO_OP" \nhttp://www.icannwiki.org/NA_RALO_OP Draft Code of Conduct: HYPERLINK "http://www.icannwiki.org/NARALO_Code_of_Conduct" \nhttp://www.icannwiki.org/NARALO_Code_of_Conduct -- ------------------------- AmericaAtLarge.org RJPacific.com DDMF.org No virus found in this incoming message. Checked by AVG Free Edition. Version: 7.5.467 / Virus Database: 269.7.6/813 - Release Date: 5/20/2007 7:54 AM No virus found in this outgoing message. Checked by AVG Free Edition. Version: 7.5.467 / Virus Database: 269.7.6/813 - Release Date: 5/20/2007 7:54 AM
Luc Faubert wrote:
Hello Wendy,
Yes, I noticed you put these paragraphs back after I deleted them yesterday.
I deleted the paragraphs because of the unanimous agreement of the people on our last conference call to do so, as documented in the minutes of the call I sent to the list on 04.29.
According to those minutes, the unanimous agreement was to change or drop the language. I would be happy to work with the group to change it to something that better serves the public interest. I would consider it an abject failure of the public trust if this agreement were signed without any further incorporation of responsibilities to the public. --Wendy
I appreciate your concerns. However, the clauses do not represent the spirit of mutuality vehiculated in the MOU and the probality that ICANN will agree to an MOU carrying these clauses is zero.
So I would appreciate that you respect the will of the majority and not put them back after I delete them again.
Regards,
_________________________________________ Luc Faubert Conseiller en gouvernance TI et en gestion du changement / IT governance and change management consulting +1 514 236 5129 www.LucFaubert.com www.LucFaubert.com/blog www.isoc.qc.ca www.ccig.ca www.uqbm.qc.ca www.maillons.qc.ca
-----Original Message----- From: na-discuss-bounces@atlarge-lists.icann.org [mailto:na-discuss-bounces@atlarge-lists.icann.org] On Behalf Of Wendy Seltzer Sent: 19 mai 2007 07:44 To: NA Discuss Subject: [NA-Discuss] Legal hooks in the MOU
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_atl arge-lists.icann.org --- 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
-- Wendy Seltzer -- wendy@seltzer.org phone: +1.617.418.3456 / +44 (0)1865 287203 // cell: 07785 550361 Visiting Fellow, Oxford Internet Institute Fellow, Berkman Center for Internet & Society http://cyber.law.harvard.edu/seltzer.html http://www.chillingeffects.org/
participants (6)
-
Danny Younger -
Jacqueline A. Morris -
Luc Faubert -
RJGlass | America＠Large -
Thompson, Darlene -
Wendy Seltzer