[At-Large] ICANN Accountability Mechanisms

Karl Auerbach karl at cavebear.com
Mon Jan 3 02:10:28 UTC 2022

On 1/2/22 17:27, Evan Leibovitch via At-Large wrote:

> ...  Board members, whose sole fiduciary duty is to
> ICANN itself, would be obliged to oppose any such potential for shrinkage.

That would be true if ICANN were a for-profit.

However, for California public-benefit/non-profits (which is what ICANN 
is) the fiduciary duty is wider.

That fiduciary duty is still to the corporation, but the measurement of 
what is in the interest of the corporation must include an assessment of 
the benefit to the public of the corporation's acts.

Unfortunately that seems to be a subtle distinction to some, including 
many lawyers.

So, a properly acting ICANN board member ought to look at TLD policies 
and the revenue generated by the ICANN system and ask "when I calculate 
how this benefits ICANN am I properly and fully considering the 
benefit/harm to the pubic?"

These are, of course, extremely subjective evaluations.  But a good 
board member ought to be able to demonstrate that he/she acted on every 
decision by actively taking steps to be fully informed and that the 
decision was made using some process of reasoning (even if that process 
may involve some subjective measurements) using criteria that are 

(Board members who do that, and document the fact that they did, are 
more likely to be able to protect themselves against liability via the 
"business judgement rule" than those who simply leap to decisions 
without making a clear record of how they came to that decision.  And 
not-making a decision is itself a decision.)


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