[ALAC] CLARIFICATION: Questions on Accountability Proposals

[Alan Greenberg]

One further note. Q 3 was asked for information only. A decision on 
whether to accept or reject any final report will be made at the time 
that report is tendered, not now.

Alan

At 31/05/2015 12:33 PM, Alan Greenberg wrote:
>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