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

Mon May 8 13:55:22 UTC 2017

Subtlety aside, the settled definition of the function is central to having
an answer to the question "In whose interest?"?

If you caucus with the At-Large in ICANN and whether you hail from the
Trans-Caucasus, the Caribbean, Outer Mongolia or Timbuktu, it might be best
if we have a common understanding of role and what we defend.

-Carlton

==============================
*Carlton A Samuels*

*Mobile: 876-818-1799Strategy, Planning, Governance, Assessment &
Turnaround*
=============================

On Mon, May 1, 2017 at 2:20 AM, Andrei Kolesnikov <andrei at rol.ru> wrote:

> 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
>>>
>>>
>>> ------------------------------
>>>
>>> _______________________________________________
>>> ALAC mailing list
>>> ALAC at atlarge-lists.icann.org
>>> https://atlarge-lists.icann.org/mailman/listinfo/alac
>>>
>>> At-Large Online: http://www.atlarge.icann.org
>>> ALAC Working Wiki: https://community.icann.org/di
>>> splay/atlarge/At-Large+Advisory+Committee+(ALAC)
>>>
>>> ------------------------------
>>>
>>> ALAC mailing list
>>> ALAC at atlarge-lists.icann.org
>>> https://atlarge-lists.icann.org/mailman/listinfo/alac
>>>
>>> At-Large Online: http://www.atlarge.icann.org
>>> ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALAC)
>>>
>>>
>> _______________________________________________
>> ALAC mailing list
>> ALAC at atlarge-lists.icann.org
>> https://atlarge-lists.icann.org/mailman/listinfo/alac
>>
>> At-Large Online: http://www.atlarge.icann.org
>> ALAC Working Wiki: https://community.icann.org/di
>> splay/atlarge/At-Large+Advisory+Committee+(ALAC)
>>
>
>
>
> --
> Andrey Kolesnikov
> RIPN.NET
>
>
> _______________________________________________
> ALAC mailing list
> ALAC at atlarge-lists.icann.org
> https://atlarge-lists.icann.org/mailman/listinfo/alac
>
> At-Large Online: http://www.atlarge.icann.org
> ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+
> Advisory+Committee+(ALAC)
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://atlarge-lists.icann.org/pipermail/alac/attachments/20170508/a8219014/attachment.html>