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

Tue Jul 26 15:59:48 UTC 2022

We have many things to do, we need insist with the neccesaries changes, to make a multistakeholder model better for the future.

Regards

Carlos Dionisio Aguirre

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From: At-Large <at-large-bounces at atlarge-lists.icann.org> on behalf of Olivier Kouami via At-Large <at-large at atlarge-lists.icann.org>
Sent: Tuesday, July 26, 2022 12:30:14 PM
To: Marita Moll <mmoll at ca.inter.net>
Cc: At Large <At-Large at atlarge-lists.icann.org>
Subject: Re: [At-Large] ICANN75: Mandatory Funded Traveler Registration for Roberto Gaetano

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<mailto: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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