[ALAC] [IANA-issues] CLARIFICATION: Questions on Accountability Proposals

[León Felipe Sánchez Ambía]

Hi all,

When thinking of having a legal vehicle to provide the SO/ACs with standing to sue, we have to remember that there are different “locks” that are thought to prevent situations in which:

a)ICANN could be captured by a certain group by means of legal action;

b)ICANN could be prey to frivolous claims; and

c)ICANN could be paralyzed as a consequence of legal action against it (with regards to Board removal).

As Alan has said, it is considered that ICANN would pay for costs of legal action by SO/ACs should they arise. The key here is the threshold and combination of actions needed to actually sue ICANN as a last resort.

We need to not forget that we also have an enhanced IRP (binding and mindful of substance rather than just process) and partial or total Board recall. As many have said in the lists and calls of the many WGs discussing this issue, if we are at the point in which we are suing ICANN, then, probably, nothing is left already.

On the other hand, it’s true that opening the door might let in ghosts in the future. As we have discussed, this is not about the people in the present day but those in the future. We might be considering legal action as a last resort but future members may not think the same. That’s a chance we should weigh and decide whether we want to take it or not and at what cost.

I am convinced that enforceability of powers contained in the CCWG proposal are essential to enhancing ICANN’s accountability. I also agree that we need to be careful what we wish for as it may come true.

As I’ve said, the ability to sue should be enough deterrent for ICANN not to listen and act according to the community’s interests. This is our version of the so called Roosevelt’s Big Stick Diplomacy “Speak softly and carry a big stick”. 

Last but not least, anyone today can sue ICANN for whatever reason they feel. The question is not whether anyone is able to bring ICANN to court but if those law suits may have a chance to be successful.


Best regards,


León

> El 31/05/2015, a las 18:16, Roberto Gaetano <roberto_gaetano at hotmail.com> escribió:
> 
>> 
>> And to be clear, yes, ICANN would have to indemnify us (individuals and
>> AC/SOs) for all costs involved in suing ICANN (that is a common clause in
>> some contracts).
>> 
> 
> Does that mean that any individual in the world can sue ICANN at will for
> whatever reason, even frivolous, without risking not even one penny?
> R.
> 
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