[ALAC] ICANN as a 501(c)(3) Organisation

Wed May 3 01:36:34 UTC 2017

I would add my +1 to Andrei on this.

Cheers!

On May 2, 2017 22:01, "Andrei Kolesnikov" <andrei at rol.ru> wrote:

> Dear Kaili, I love California, but not LA area... I would appreciate, if
> ICANN is an NGO registered in Switzerland, but lets be real.
>
> Well, we saw an attempt to start the discussion to use ICANN reserves to
> promote awareness and the reaction to it. Definitely ICANN is a
> multistakeholder org :)
>
> Also ALAC is not representing the billions of end-users (thanks God,
> whatever he/she is). But a portion of expert community. This is where I'm
> speaking for myself.  The beauty of ICANN is that we all carry different
> views...
>
> Yours, --andrei
>
>
> 2017-05-01 18:59 GMT+03:00 Kan Kaili <kankaili at gmail.com>:
>
>> Hi, Andrei,
>>
>> Thank you for your comments.
>>
>> First of all, I fully agree with you that, as you pointed out, ICANN
>> indeed "runs" domains.
>>
>> However, ICANN being a multi-stakeholder entity, exactly who within ICANN
>> "runs" those domains?  I am afraid they are the registries and registrars,
>> represented by a part of GNSO.  For ccTLDs, those at ccNSO do.
>> However, ALAC obviously does not. Neither do most other AC/SOs, at least
>> not for their own commercial interests.
>>
>> Thus, why does the world needs ICANN?  Why is ICANN designed as
>> non-profit instead of a commercial entity to "run" domains?  According to
>> my understanding, that is because the public needs somebody responsible and
>> to be in charge of the DNS system.  That is, to be responsible for the
>> public interests, primarily the interests of end-users/consumers.
>>
>> Thus, as we can see, about all of what ICANN does, is to prescribe
>> regulations in order to keep those commercial entities, mostly registries
>> and registrars, under a leash.  However, as ICANN is international without
>> a legislation behind, these regulations are presented as contracts enforced
>> by a judicial system, currently the State of California.
>>
>> The clear definition of ICANN was not as important before it became
>> independent last year.  That is becuase, although not ideal for ICANN's
>> global responsbility, there is a US publicly elected legislation behind who
>> is ultimately in charge.  However, after its independence, the definition
>> of ICANN's responsibility becomes vital.
>>
>> Lately, we have seen some people at GNSO discussing using surplus revenue
>> from the new gTLD program to promote "awareness" of the program.  To be
>> exact, that is to use ICANN's money as registries'/registrars' marketing
>> budget.  Isn't it?  Why don't they form their own association and hire
>> their own marketing agency?  The only explanation is, they are seeing ICANN
>> as their own trade association and marketing agency.
>>
>> Believe me, I can fully understand that keeping some definitions fuzzy is
>> necessary under certain environments.  That is because most people cannot
>> afford the dear "price" to clarify them.  However, now we are talking about
>> ICANN and the Internet, where I do not see such a "price" to be paid.  This
>> is another reason I strongly suggest we make it clear, especially for ALAC
>> representing the billions of end-users, those who need ICANN to protect
>> their interests as a regulator.
>>
>> Afterall, a "de facto regulator of the cyber space", this is why ICANN
>> was created.
>>
>> Only my personal opinion and to be further discussed.  Thank you again.
>>
>> Kaili
>>
>>
>>
>>
>>
>> ----- Original Message -----
>> *From:* Andrei Kolesnikov <andrei at rol.ru>
>> *To:* Kan Kaili <kankaili at gmail.com>
>> *Cc:* JJS <jjs at dyalog.net> ; ALAC working list
>> <alac at atlarge-lists.icann.org>
>> *Sent:* Monday, May 01, 2017 3:20 PM
>> *Subject:* Re: [ALAC] ICANN as a 501(c)(3) Organisation
>>
>> it is amazing how much time and efforts human beings can spend in finding
>> the stable platform to prove the things they do. Resulting in million
>> dollars spent on legal, meetings, travel etc. :)
>> ICANN exists, it runs domains. Business practices established many years
>> ago and world accepted it. I think this is a good explanation what ICANN is.
>>
>> Yours, --andrei
>>
>>
>> 2017-05-01 9:06 GMT+03:00 Kan Kaili <kankaili at gmail.com>:
>>
>>> Hi,
>>>
>>> Thank you for your response and comment.
>>>
>>> Indeed, now ICANN is fully independent of the US DOC, clearly defining
>>> ICANN's functions becomes even more important than before.  Otherwise, it
>>> may well become a trade association.  This is shown from GNSO's discussion
>>> of using surplus from the new gTLD program to "promote awareness" of new
>>> G.  That is, marketing for registries/registrars.
>>>
>>> In addition, now the overall environment is quite different from a
>>> decade ago.  At least, I believe the US Government would not be against the
>>> idea of "regulator".
>>>
>>> Thus, I wonder if the At-Large community should again begin to advocate
>>> ICANN as a "de facto regulator of the cyber world".
>>>
>>> Thank you again.
>>>
>>> Kaili
>>>
>>>
>>>
>>> ----- Original Message -----
>>> *From:* JJS <jjs at dyalog.net>
>>> *To:* KAN Kaili <kankaili at gmail.com>
>>> *Cc:* Olivier CREPIN-LEBLOND <ocl at gih.com> ; ALAC working list
>>> <alac at atlarge-lists.icann.org>
>>> *Sent:* Monday, May 01, 2017 1:19 PM
>>> *Subject:* Re: [ALAC] ICANN as a 501(c)(3) Organisation
>>>
>>> Kaili is quite right in pointing out the fundamental importance of ICANN
>>> being truthfully described.
>>>
>>> A decade ago, and less, this came up in Board discussions every now and
>>> then, the majority swatting down anything suggestive of "regulation". The
>>> closest we got to accurately naming ICANN's function was "quasi
>>> regulation", but this expression was then redacted from reports. Among the
>>> arguments put forward by opponents to such a designation, the fear of
>>> aggravating Washington was uppermost. Who were we to dare question a tenet
>>> of Reagonomics and Thatcherism, i.e. "Only self-regulation can lead to
>>> prosperity"? And never mind if the 2008 financial meltdown proved that
>>> self-regulation had failed, common wisdom would not accept the evidence.
>>>
>>> This debate is not neutral, especially at a time when we see a perilous
>>> convergence between some democracies and the régimes they used to (rightly)
>>> criticize. When democracies resort to doctoring facts and smothering free
>>> debate, the public interest is in peril.
>>>
>>> This may be the right time to put forward, once again, the term "quasi
>>> regulatory" to describe ICANN's main function. As in the time of Copernic,
>>> calling out reality may not be without risk, but remains essential for
>>> human development.
>>>
>>> Jean-Jacques.
>>>
>>>
>>> Le 1 mai 2017, à 03:29, Kan Kaili <kankaili at gmail.com> a écrit:
>>>>
>>>> Hi,
>>>>
>>>> As ICANN CEO visited China last week, I raised a question during the
>>>> meeting:  Exactly what is ICANN?
>>>>
>>>> According to what ICANN does, it is a de facto REGULATOR serving the
>>>> public interest by regulating the DNS industry.
>>>>
>>>> However, he flatly denied that, saying ICANN is a "stock exchange".
>>>>
>>>> As I see it, this is a fundamental undefined question of ICANN.  Even
>>>> during the openning speech in Copenhagen, Steve Croker said "whatever ICANN
>>>> is ..."
>>>>
>>>> However, this question leads to the position and weight of ALAC, and
>>>> the consumers'/end-users' interests, within ICANN, including the number of
>>>> seats on the Board, budget allocation, etc.
>>>>
>>>> Thus, I hope this question at least could be clarified within the
>>>> At-Large community, before we can make it clear in ICANN.
>>>>
>>>> Thank you.
>>>>
>>>> Kaili
>>>>
>>>>
>>>>
>>>>
>>>> ----- Original Message -----
>>>> *From:* Olivier MJ Crepin-Leblond <ocl at gih.com>
>>>> *To:* ALAC Working List <alac at atlarge-lists.icann.org>
>>>> *Sent:* Tuesday, April 25, 2017 2:10 PM
>>>> *Subject:* [ALAC] ICANN as a 501(c)(3) Organisation
>>>>
>>>> Dear Alan,
>>>>
>>>> as a follow-up to my explanation on the ALAC mailing list about ICANN
>>>> being a 501(c)(3) organisation, the relevant Article of Incorporation
>>>> paragraph is:
>>>> (Ref: https://www.icann.org/resources/pages/governance/articles-en )
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> *Article 2.I.II:This Corporation is a nonprofit public benefit
>>>> corporation and is not organized for the private gain of any person. It is
>>>> organized under the Nonprofit Public Benefit Corporation Law for charitable
>>>> and public purposes. The Corporation is organized, and will be operated,
>>>> exclusively for charitable, educational, and scientific purposes within the
>>>> meaning of § 501(c)(3) of the Internal Revenue Code of 1986, as amended
>>>> (the “Code”), or the corresponding provision of any future United States
>>>> tax code. Any reference in these Articles to the Code shall include the
>>>> corresponding provisions of any future United States tax code. In
>>>> furtherance of the foregoing purposes, and in recognition of the fact that
>>>> the Internet is an international network of networks, owned by no single
>>>> nation, individual or organization, the Corporation shall, except as
>>>> limited by Article IV hereof, pursue the charitable and public purposes of
>>>> lessening the burdens of government and promoting the global public
>>>> interest in the operational stability of the Internet by carrying out the
>>>> mission set forth in the bylaws of the Corporation (“Bylaws”). Such global
>>>> public interest may be determined from time to time.  Any determination of
>>>> such global public interest shall be made by the multistakeholder community
>>>> through an inclusive bottom-up multistakeholder community process.Article
>>>> 2.IV:Notwithstanding any other provision of these Articles: a. The
>>>> Corporation shall not carry on any other activities not permitted to be
>>>> carried on (i) by a corporation exempt from United States income tax under
>>>> § 501(c)(3) of the Code or (ii) by a corporation, contributions to which
>>>> are deductible under § 170(c)(2) of the Code.b. No substantial part of the
>>>> activities of the Corporation shall be the carrying on of propaganda, or
>>>> otherwise attempting to influence legislation, and the Corporation shall be
>>>> empowered to make the election under § 501 (h) of the Code.*
>>>>
>>>> So what does the § 501(c)(3) tax code say? http://bit.ly/1Va1vVt
>>>>
>>>> To be tax-exempt under section 501(c)(3) of the Internal Revenue Code,
>>>> an organization must be organized
>>>> <https://www.irs.gov/charities-non-profits/charitable-organizations/organizational-test-internal-revenue-code-section-501c3>
>>>> and operated
>>>> <https://www.irs.gov/charities-non-profits/charitable-organizations/operational-test-internal-revenue-code-section-501c3>
>>>> exclusively for exempt purposes
>>>> <https://www.irs.gov/charities-non-profits/charitable-organizations/exempt-purposes-internal-revenue-code-section-501c3>
>>>> set forth in section 501(c)(3), and none of its earnings may inure
>>>> <https://www.irs.gov/charities-non-profits/charitable-organizations/inurement-private-benefit-charitable-organizations>
>>>> to any private shareholder or individual.
>>>>
>>>>
>>>> Exempt purposes:
>>>>
>>>> https://www.irs.gov/charities-non-profits/charitable-organiz
>>>> ations/exempt-purposes-internal-revenue-code-section-501c3
>>>>
>>>> *The exempt purposes set forth in section 501(c)(3) are charitable,
>>>> religious, educational, scientific, literary, testing for public safety,
>>>> fostering national or international amateur sports competition, and
>>>> preventing cruelty to children or animals.  The term charitable is used in
>>>> its generally accepted legal sense and includes relief of the poor, the
>>>> distressed, or the underprivileged; advancement of religion; advancement of
>>>> education or science; erecting or maintaining public buildings, monuments,
>>>> or works; lessening the burdens of government; lessening neighborhood
>>>> tensions; eliminating prejudice and discrimination; defending human and
>>>> civil rights secured by law; and combating community deterioration and
>>>> juvenile delinquency.*
>>>>
>>>> So "lessening the burdens of government" is clearly the key reason for
>>>> ICANN to operate as 501(c)(3), but as you can see there are other possible
>>>> purposes. (As a side track, it is particularly important to note the
>>>> "global public interest" part of the mission which is still undefined and
>>>> unresolved.)
>>>>
>>>> With the new gTLD program generating a large income, ICANN needs to be
>>>> very careful and show sustained support for "lessening the burdens of
>>>> government" - thus support all sorts of Internet-related activities outside
>>>> of ICANN. Not doing so, it could be accused of "excess benefit
>>>> transactions" https://www.irs.gov/charities-
>>>> non-profits/charitable-organizations/intermediate-sanctions-
>>>> excess-benefit-transactions and be sanctioned. ICANN needs to walk a
>>>> very fine line on this. I am not a US tax attorney and have very little
>>>> knowledge of the matter, but it is my understanding that if ICANN was to
>>>> stop supporting initiatives in the wider Internet ecosystem space,
>>>> activities related to ICANN but not *strictly* relating to Names and
>>>> Numbers, it would risk losing its 501(c)(3) status.
>>>>
>>>> This loss of 501(c)(3) status is completely independent of the point of
>>>> view that some are holding that ICANN is spending too much money outside
>>>> ICANN core activities.
>>>>
>>>> It is also worth noting that adhering to the conditions for retaining
>>>> 501(c)(3) status will be a key issue for the allocation of Auction funds.
>>>>
>>>> I really think that we should fully play this card when it comes down
>>>> to use of funds in ICANN. The At-Large Community is part of this "promoting
>>>> the global public interest" and we need to remind everyone about this
>>>> regularly.
>>>>
>>>>
>>>> Kindest regards,
>>>>
>>>>
>>>> Olivier
>>>>
>>>>
>>>> ------------------------------
>>>>
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>>>>
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>>>
>>
>>
>>
>> --
>> Andrey Kolesnikov
>> RIPN.NET
>>
>>
>
>
> --
> Andrey Kolesnikov
> RIPN.NET
>
>
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