[At-Large] ICANN75: Mandatory Funded Traveler Registration for Roberto Gaetano

Wed Jul 27 00:14:39 UTC 2022

To hear from the Ombudsman.

Le mer. 27 juil. 2022 à 00:12, Olivier Kouami <olivierkouami at gmail.com> a
écrit :

> Thanks you @Marita.
> It'll be nice from the Ombuds.
> Please, Is it nice and fair like this ?
> Warm regards
> Olévié
>
> Le mar. 26 juil. 2022 à 16:54, Marita Moll <mmoll at ca.inter.net> a écrit :
>
>> Hi Olivier. It's an interesting question. Here is the web description of
>> what the ombuds office does:
>>
>> "The ICANN Ombudsman's job is to make sure that ICANN community members
>> are treated fairly. Acting as an impartial mediator, the Ombudsman helps
>> resolve disputes on issues involving the ICANN Board, staff and supporting
>> organizations."
>>
>> I don't know where the Ombudsman would fit in. That office tends to work
>> on individual grievances. We are having some success in getting the waiver
>> adjusted, amended, toned down and we have just had a commitment from Leon
>> Sanchez, board vice-chair and holder of seat 15 and an ALAC appointee, that
>> the board will continue to work on that waiver so that it does not operate
>> as a deterrent/ demotivator for volunteers.
>>
>> So we need to keep up the pressure and keep paying attention. The waiver
>> is already part of the requirement for all travelers funded by ICANN. The
>> next item that really needs to be questioned is that part about heirs and
>> relatives also giving up their rights. Is that even enforceable?
>>
>> Marita
>> On 2022-07-26 11:30 a.m., Olivier Kouami wrote:
>>
>> Greetings from Sénégal
>>
>> Please, again, what is the role of the Ombudsman in this case.
>> He is for what ?
>> Warm regards
>> Olévié
>>
>> Le mar. 26 juil. 2022 à 15:18, Marita Moll via At-Large <
>> at-large at atlarge-lists.icann.org> a écrit :
>>
>>> Karl, it sounds like you are describing waiver v.1.0. I thought v.2.0
>>> (the current version), was a lot more digestible. Clearly, the part about
>>> heirs, etc. still exists in both. Without a test case, we don't know if a
>>> certain waiver is going to survive a court challenge, but they are
>>> intimidating. That's the whole point.
>>>
>>> I have said I would probably bow down and sign the current version of
>>> the waiver if I felt my physical attendance at the meeting was important.
>>> It is not a choice. And I wonder if this waiver signing will be part of any
>>> ICANN related meeting -- e.g. RALO meetings, AGMs, etc. As you say at the
>>> end, it is sad "that, ICANN, an organization whose legal purpose is "to
>>> lessen the burdens of government" and that obtains its legal existence as a
>>> "public benefit" corporation, feels that it must protect itself by the
>>> Procrustean technique of chopping the rights off of those who wish to
>>> attend its open and public meetings"
>>>
>>> I will say, again, in my lengthy career as a writer, speaker, policy
>>> analyst, etc. who attended and organized hundreds of meetings, I never once
>>> signed a waiver or asked anyone else to do so. Welcome to the post-pandemic
>>> world, I guess.
>>>
>>> Marita
>>>
>>>
>>> On 2022-07-25 3:59 p.m., Karl Auerbach via At-Large wrote:
>>>
>>> Wow, that's some "waiver"!   The California lawyer neurons in my head,
>>> upon reading this thing, are screaming "California Civil Code section
>>> 1670.5!!!!!"  This provision can effectively remove "unconscionable" terms
>>> from contracts (such as this ICANN "waiver") or even void the entire
>>> agreement.
>>>
>>>
>>> https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1670.5&lawCode=CIV
>>>
>>> There are other similar California provisions, such as 1770(a)(19)
>>> (which is probably inapplicable because this waiver is not a sale or lease
>>> to a consumer.)
>>>
>>> A couple of indicia of "unconscionable"ness are things like denial of
>>> damages and limitations on the right to seek court relief, both of which
>>> are in the ICANN "waiver".  Now, an indicator of unconcionable-ness is not
>>> the same as being unconscionable.  But such indications are the kind of
>>> yellow bricks that paved the road that led Dorothy to Oz.  So ICANN has,
>>> via this overreaching "waiver" has at the least started down the road to
>>> being subject to these California laws.
>>>
>>> I am, of course, presuming (perhaps incorrectly) that this agreement is
>>> made under, interpreted under, and enforced under the laws of California -
>>> but the agreement sloppily forgets to mention these rather important
>>> aspects.
>>>
>>> The waiver, to my highly opinionated and jaded eyes, appears drafted by
>>> someone who has not yet begun a career in law and who, if they have
>>> started, is unlikely to finish well.  (More likely perhaps is that this is
>>> the work of some low level associate has followed the practice of medieval
>>> Scholastic monks who, when copying manuscripts, copied and merged text
>>> without actually thinking about the meaning of what they were copying and
>>> merging - the most famous example being the fable of Noah and the Ark
>>> where, after ages of copying and merging, there are now divergent counts of
>>> how many animals of each kind.)
>>>
>>> There is an old, and very bad joke:
>>>
>>>   An airplane crashes directly onto the border line between California
>>> and Nevada.  Where are the survivors buried?
>>>
>>> The joke is that one does not bury the survivors who, presumably, are
>>> quite alive.
>>>
>>> Well, ICANN's "waiver" makes promises on behalf of parties who do not
>>> yet exist, like heirs and assigns.  There are much better ways to draft an
>>> agreement to limit the propagation of obligations and duties to third
>>> parties.  I was also amused by the sloppy drafting that left "personal
>>> representatives" and "executors" dangling in a limbo of ambiguity between
>>> two inconsistent sentences in the "waiver".
>>>
>>> And, of course, whenever an agreement uses words like "forever" my mind
>>> says "remember the rule against perpetuities" - but that's something so
>>> arcane that probably nobody understands what it means.
>>>
>>> I do hope ICANN was not billed by its law firm for the drafting of this
>>> thing.  And I find it sad that, ICANN, an organization whose legal purpose
>>> is "to lessen the burdens of government" and that obtains its legal
>>> existence as a "public benefit" corporation, feels that it must protect
>>> itself by the Procrustean technique of chopping the rights off of those who
>>> wish to attend its open and public meetings.
>>>
>>>     --karl--
>>>
>>>
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