[ALAC] CLARIFICATION: Questions on Accountability Proposals

[Alan Greenberg]

I thought that this was clear from the teleconferences, but I guess not.

The concept of having legal status to allow, in the extreme, court 
action, also brings the possibility of action against legal 
counterpart of the AC/SO. ANY such provisions REQUIRE that ICANN 
indemnify and cover all costs associated with these rights. If we 
cannot get that written into the Bylaws and binding, all such 
"enforceability" rights are not a possibility.

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).

Alan


At 30/05/2015 10:04 PM, Alan Greenberg wrote:
>The ALAC and IANA-Issues meetings last week brought a lot of clarity 
>to the position of At-Large with respect the CCWG-Accountability Proposals.
>
>One area where participants seemed to hold varying opinions was to 
>what extent the new accountability measures need to be "enforceable".
>
>For a power given to the community to be enforceable, the community 
>or its representatives ultimately need to be able to go to court if 
>ICANN (ie the ICANN Board) does not honor the communities 
>directives. That doesn't mean that anyone WILL sue, but the right 
>and therefore the possibility is there.
>
>Currently, we have no such right. Although there have been numerous 
>times where parts of the community (at times large parts) have been 
>dissatisfied with Board action, it is not clear that IF we had the 
>planned powers at that time, would we have used them.
>
>In a typical case, although some parts of the community may be 
>dissatisfied, others were delighted with the decision. In a case 
>such as the creation of "digital archery" to address the order in 
>which new gTLD applications would be processed, pretty much everyone 
>was dissatisfied, but it is far from clear it was an issue that 
>warranted extreme action.
>
>If there is no formal enforceability, then we would rely on good 
>faith and trust to address points of contention. In the case of 
>failure, most parties seem to agree that removal of the Board (or 
>selected parts of it) must be fully enforceable.
>
>The current CCWG proposal calls for COMPLETE enforceability. This 
>implies certain structural changes.
>
>Here are several questions. This message is also being sent to the 
>IANA Issues list. Only one reply is needed. Please reply by Monday 
>if at all possible.
>
>1. Do you believe that failing anything else, we must have the 
>ability to remove parts of or all of the Board?
>
>2. With the exception of Board member removal, do we need legal 
>enforceability of can we rely on good faith (and Board member 
>removal if you supported that).
>
>3. If the final CCWG proposal calls for full legal enforceability, 
>is that sufficient reason for the ALAC to not ratify it?
>
>Alan