Sub-Group Members: Cheryl Langdon-Orr, Chris Disspain, David McAuley, Farzaneh Badii, Greg Shatan, Holly Gregory, Jordan Carter, Leon Sanchez, Miles Fuller, Rosemary Fei, Samantha Eisner, Sharon Flanagan, Steve DelBianco, Tyler Hilton (9 CCWG) (5 Legal)
Staff: Adam Peake
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
The Adobe Connect recording is available here: https://icann.adobeconnect.com/p1gvbndf68o/
The audio recording is available here: Legal SubTeam Meeting 1 May.mp3
Legal sub-team/legal counsel call to discuss Unincorporated Associations
Notes/ Action Items
- Can be a simple process to form, and simple to operate
- take the existing SO AC and make them into the UA. But concern heard that we might not want all to do that.
- Simple, all just become UA and all make decisions as they do now.
- Other option. A shell notion, to create UA simply to carry out the powers.
- the decisions that are made are at the direction of the underlying SO AC, or at the direction of people appointed by the SO AC, or as Jordan suggested in an recent email.
- May be an issue in some SO AC than others. Nit trying to change the accountability within a SO AC
- If concerned with a take over of the SO AC / capture, then could legal counsel could look at that
- Doesn't have to be a significant change of how ICANN SO AC etc currently operate
- "you the unincorporated assoc will vote as the SO tells you to", is that legally binding? The suit would have to come from one of the individuals.
- if the UA acted outside of its article of incorporation, ICANN would be able to claim that was not valid
- Need to study if the individuals have that right.
- Assuming UA created, have not addressed how people become members and how they join. But if want to say to become an official associate of the US, then can do that. Can impose requirements on associateship.
- example: 15 ccNSO council as the members of the UA. That way there is no danger of the UA doing anything that the SO didn't want it to do. They are the same. If the member of the UAare a sub- set of the ccNSO council, e.g. 5. Question, can the ccNSO as an unincorporated body, not legal entity, could it define that the members who are time to tie appointed by the ccNSO council so they council and appoint and remove the UA members. Legally plausible? And chain of accountability, enforcement is clear. Stronger that today.
- Possible for the UA to say who its own associates will be. And who participates in the ICANN SO AC to decide as a measure.
- GNSO have no way of enforcing the way representatives on council act. And we live in that world now. If there is no legal chain of enforceability, it is no worse than the position we have today.
- Clear that there is a level of trust being given by the SO AC to the UA to act on its behalf.
- Its is as today, except SO AC have no legal standing - but the UA will be able to sue and be sued and acting with bindingness.
- suggests the switch is a narrowly focused UA with a tightly written set of bylaws is being added to the mix, with narrow powers. But believe that the UA cannot act outside of its powers.
- The people who can be members of the UA are chosen by the SO AC. And assuming that the council would be the UA. one in the same.
- What if the council member were a part of govt and could not vote. Having the shadows is to say that the only member obligation is the member powers [?] Or, say tat decisions of the UA must be resolutions of the ccNSO Council.
- can write a bylaw that ccNSO appoints member of the UA and that they can be forced to step down, but that is not enforceable.
- Request that counsel is asked to respond to what they are hearing. Thought we were sure of a right to remove our officers/appointees, How tightly should the lawyers be written.
- If there was a group with no legal personhood, and the appointed a UA, and believed that is was in appropriately formed, then it could say that it created an wrongly formed body and could go to court.
- Ask counsel to address the concerns mentioned during the call.
- The UA with it properly appointed members under the bylaws could force the UA to got to court to confirm that the old rogue members were nota acting for the UA.
Adam Peake:Hi everyone - Leon, has the dial-out worked?
Cheryl Langdon-Orr:Good to see you hear hris
Chris Disspain:Hello All
Rosemary Fei:Hello everyone. Just got kicked off audio, though.
Greg Shatan:I just lost audio
Holly J. Gregory (Sidley):just lost audio
Chris Disspain:very very bad line
Chris Disspain:huge amounts of buzzing
Rosemary Fei:Back on audio
Jordan Carter:hi all
Jordan Carter:made it on the call
David McAuley:just lost audio, sorry CLO willdial in
Cheryl Langdon-Orr:Leon is asking you to co Chair David we assume yoiu are going to say Yes
David McAuley:cant hear anything
David McAuley:on phone now
Cheryl Langdon-Orr:excellent David, Greg is assisting ATM with the que etc.,
Cheryl Langdon-Orr:so I *hope* gremlins permitting were all good...
David McAuley:thanks Cheryl, sorry bout that
Cheryl Langdon-Orr:NP David
Cheryl Langdon-Orr:Scrll control please Adam
Cheryl Langdon-Orr:Hi Steve
Steve DelBianco [GNSO - CSG]:Sorta like the Electoral College in American presidential elections?
Rosemary Fei:Hopefully not, @Steve
Rosemary Fei:I hope none of the SO/ACs are that large, for starters
Adam Peake:I hope I have just given you scroll control on the document, But it is also in the legal sub-team wiki archive
Holly J. Gregory (Sidley):Agreed Greg. Invalid actions will not be recognized in the membership body or ICANN board or other ICANN related body
Cheryl Langdon-Orr ALAC - APRegional Member:yes thanks adam
Steve DelBianco [GNSO - CSG]:Can the articles and bylaws of the UC specify that the SO/AC has complete control over the UC?
Holly J. Gregory (Sidley):we believe yes
Cheryl Langdon-Orr ALAC - APRegional Member:I guess it can Steve but Chris's question is how can that be enforced...
Holly J. Gregory (Sidley):the articles of the UA and the ICANN bylaws can
Jordan Carter:can the SO or AC choose who those members are and change them?
Jordan Carter:even tho the SO / AC isn't a legal person?
David McAuley:thats the question
Holly J. Gregory (Sidley):I'd like to answer that question Chris
Jordan Carter:That is such a wrong basis, Chris.
Cheryl Langdon-Orr ALAC - APRegional Member:Very interested in YOUR answer @Holly
Steve DelBianco [GNSO - CSG]:Does the GNSO have a legal right to force its representative on a working group to follow voting instructions of the GNSO?
Steve DelBianco [GNSO - CSG]:Chris -- if that's all youre saying, then our proposal poses no more risk than our present situation.
Rosemary Fei:@Chris, agree that at some point, it will come down to trust
Chris Disspain:thank you Holly and Rosemary
Chris Disspain:Greg, with respect, that is irrelevant if you can't enforce it
Holly J. Gregory (Sidley): We believe that with UAs you will be better off than now.
Rosemary Fei:ICANN is entitled, in its bylaws, to set standards for what evidence is needed from a member to prove that it has taken an act.
Chris Disspain:better off in what way Holly?
Holly J. Gregory (Sidley):enforceable rights, Chris
Chris Disspain:against ICANN - I agree
Chris Disspain:but 'you' in youj will be better off is bot necessarily to SO and AC
Holly J. Gregory (Sidley):Right -- and that is what we have been focused on: how to give the community enforceable rights vto hold ICANN accountable
Holly J. Gregory (Sidley):Jordan, Agreed. A+
Chris Disspain:Jordan - you may well be right - but, once agaion, to be cystal clear, that is not my point - youi are talking practical solutions - I am talking legal enforeability
Rosemary Fei:Yes, @Jordan, each UA's articles can say who the members are.
Chris Disspain:not legally enforceable in my understanding
Chris Disspain:Rosemary - really?
Chris Disspain:rules can be written but they would not be enforceable
Holly J. Gregory (Sidley):I believe they would be enforceable by the UA
Chris Disspain:Enforceabel by ccNSO not UA
Farzaneh Badii:so Chris you are basically saying that we need to come up with another accountability mechanism for UA ! :)
Holly J. Gregory (Sidley):I think Chris is saying that at a certain point trust matters -- and you are all relying on trust now.
Samantha Eisner:I think that there has to be some sort of acknowledgment of the level of unenforceability at the UA level, and just go to trust
Jordan Carter:my question is whether the ccNSO can choose the members of the UA
Chris Disspain:thanks Holly.. Jordan says the ccNSO can control the members of UA by the UA bylaws - I say no
Samantha Eisner:That's what I'm taking from this conversation. Or we build in new enforceability mechanisms
Greg Shatan:Chris, they are legally enforceable, i.e., they are valid and would be recognized in court. The question you are getting at is who can enforce them. Not whether they are rights that can be enforced. Legal enforceability goes to the question of whether, once in court, will the court find those rights to be enforceable.
Chris Disspain:the bylaws can say ccNSO chooses members of UA but ccNSO cannot enforce thise bylaws
David McAuley:I don;t think that has been established yet @Sam, there seem to be ways to do this
Holly J. Gregory (Sidley):Members in an unincorporated association who are legal persons can seek enforcement of association rules.
Jordan Carter:if the ccNSO can choose the members or define the people who are eligible to be the members of the UA
Rosemary Fei:@Chris, any association gets to decide who its members are, and how they are chosen and terminated. Limited only by things like discrimination rules, or contract breach, or things like antitrust.
Greg Shatan:By your token, Chris, the bylaws of ICANN are not "legally enforceable."
Jordan Carter:can the UA's rules say "The members of this association are those persons nominated for membership by the CCNSO"?
Holly J. Gregory (Sidley):Yes Jordan
Chris Disspain:Greg - cannot be enforced by the ccNSO
Jordan Carter:then there is an unbroken chain of enforceablility Holly.
Jordan Carter:Because the CCNSO defines the members of the UA, and the members of the UA can enforce their rights over the UA as members.
Holly J. Gregory (Sidley):But if the UA does not act under its articles another entity -- like ICANN membership or board -- could assert that any action by that UA is invalid
Jordan Carter:and Holly says yes.
David McAuley:+1 @Steve, that exists today, and what is unknown is ICANN unbounded by NTIA
Jordan Carter:the ccNSO can't legally enforce anything
Jordan Carter:because it isn't a legal entity
Jordan Carter:but the ccNSO can totally choose who the members are, who CAN do that
Cheryl Langdon-Orr:That is my understanding @Jordan
Jordan Carter:Chris: why is being clear on this of such importance to you?
Cheryl Langdon-Orr: Agree @Steve noting that it is close to the Status Quo
Holly J. Gregory (Sidley):But if the UA artciles say that the ccNSO determines membership of UA and the UA does not abide by that, then the actions of that UA are invalid
David McAuley:And with ICANN itself once NTIA leaves
Samantha Eisner:The question is "where are we comfortable with the reps appointed at the community level having a possibility of not following the will of the appointing member group in the exercise of the community-based powers, and is there any issue of accountability to the broader ICANN community that is posed through that exercise of power"
Cheryl Langdon-Orr:OK @Holly that is the type of advice I was looking for to assist my comfort with all this discussion
Jordan Carter:No, we aren't doing what you suggest, Chris.
Jordan Carter:We are saying, "do what you're told, or you won't be the members any more."
David McAuley:@Sam but I thought I heard lawyers say we can control this
Samantha Eisner:While I agree that it's similar to the issue of a representative to a Working Group not following the will of the group that put them there, the collective action that will be impacted here are very key, important powers
Jordan Carter:its actions would be invalid and the rest of the ICANN community and ICANN corporate would ignore what they were trying to do.
Jordan Carter:No it's not an opinion
Steve DelBianco [GNSO - CSG]:Today, the recommendations of AoC Review Teams have significant impact on ICANN. And GNSO policy has impact on ICANN.
Steve DelBianco [GNSO - CSG]:Is Chris proposing we create this powers EVEN IF we don't create UAs?
Jordan Carter:my hand is up
David McAuley:among ACs/SOs there is accountability also through threshold vote requirments,
Samantha Eisner:@David, part of the concern that is arising out of this conversation for me is what if the threshold is tipped in one way or the other by people voting in a way not anticipated by teh group from which they came?
Holly J. Gregory (Sidley): Chri, do you have a solution that you would like the group to consider? From a legal perspective we think the answer is that action outside the UA articles are void, but certainly open to considering another work around.
Chris Disspain:Holly, action outside the UA is void but the SO cannot control the action of the UA
David McAuley:Thanks @Sam, I guess I don't see the real risk here, and while ICANN as presently constituted is not the issue a future ICANN without these kinds of checks could be a huge risk
Chris Disspain:so I just don't see how the shadow UA can work from an enforceability pov
Chris Disspain:Jordan - the ccNSO cannot enofce the removal of the members
Jordan Carter:but it doesn't need it, if under their rules the members are defined by the CCNSO
Jordan Carter:trhere's no question of legal standing
Jordan Carter:they just wouldn't be the members anymore
Jordan Carter:they would have no decision rights
David McAuley:Might be good time to bring Holly/Rosemary back into the discussion
Jordan Carter:they could PRETEND they were still members, but they would not be
Jordan Carter:everyone would only pay attention to the validly appointed member
David McAuley:sorry, Cheryl first
Adam Peake:Very hard to hear when people talk over - the audio doesn't accommodate well. Thanks
Holly J. Gregory (Sidley): correct Jordan, and the UA as appropriately composed would go to court if necessary and assert its rights
Jordan Carter:Thanks, Holly.
Chris Disspain:Understood Holly - let me put it down in an email to the lsit and see if I have it right
Jordan Carter:I think the Memo needs to flesh these things out
Greg Shatan:Holly, good point. The UA with the valid members could go to court to get the invalid deposed members to shut up.
David McAuley:Chris, would you be willing to take it one step further and address then what, assuming you are correct?
Holly J. Gregory (Sidley):We will go back and revise the memo.
David McAuley:in your email
Jordan Carter:so : can the SO/AC control the membership of the UAs despite their non-personhood
Rosemary Fei:members of UA have standing to challenge failure to follow UA articles-mandated procedures
Jordan Carter:and if the old members are replaced, can the new members legally enforce their rights?
Jordan Carter:laughing into your mouth - that's a new one
Jordan Carter:in the end, this is a concern about controllability, and it is very important
David McAuley:It is important, but I worry that we are wrapping ourselves around the axle over a far-out possible issue of community accountability where the front and center issue is crafting mechanisms to make ICANN the corporation accountable
Jordan Carter:I worry of this, too.
Holly J. Gregory (Sidley):I hear you David
Greg Shatan:Jordan, they absolutely can as per the bylaws..
Jordan Carter:but crystal clarity on the chain of accountability is vital
Jordan Carter:and this discussion is helping us achieve it
Jordan Carter:[this is basically a stress-test!]
David McAuley:agreed @Jordan
Holly J. Gregory (Sidley):I know I'm stressed!
Cheryl Langdon-Orr:in myview we have spent most of our time and debate entrenched with the extreme and hopefully unlikey
Chris Disspain:correct Greg - that is what I was looking for
Jordan Carter:I feel much clearer
Chris Disspain:I look forward to seeing the response from the lawyers in the document
David McAuley:Holly's hand up
Holly J. Gregory (Sidley):Agreed, Greg. It was helpful to have Chris force the issue and help us improve our explanation.
David McAuley:paws and penguins today
Jordan Carter:no TVs in sight
Jordan Carter:have a great weekend everyone...
David McAuley:yes, thank you lawyers!
Farzaneh Badii:Thanks bye
Holly J. Gregory (Sidley):Thanks everyone. Enjoy the weekend
Greg Shatan:Diamonds are created under pressure.
Steve DelBianco [GNSO - CSG]:Have a great weekend. Only 2 more working days till Monday!