back to article Back off – it is ILLEGAL to make us accountable, claim ICANN lawyers

A row has blown up at global domain-name overseer ICANN, after the group looking into improving the corporation's accountability was told many of its ideas were illegal. At issue is the power of the board versus the power of ICANN's members – should the board always have the power to overrule its membership? It's proposed …

  1. Whitter
    FAIL

    Too big to fall?

    Nope.

  2. Mark 85

    Alternatives?

    Maybe they'd like it better if they were nationalized? Or better yet, handed to the UN? Ok... UN is a bad choice since they would still not be accountable while traveling the world for "meetings" and pretty much doing what they want.

    If I read the history correctly, they're under contract for this so theoretically the contract could be awarded to another not for profit <cough>of the board<cough> corporation. Or, alternately, the contract awarder could require them to change the by-laws to allow accountability. Since this won't happen... the WebWorld as we know it may be doomed as the various factions squabble over power.

    1. Tom 13

      Re: Alternatives?

      This article completely avoids the real heart of the problem. Since lawyers were discussing the issue amongst themselves, they chose completely irrelevant bits over which to argue.

      I've been through this a couple of times with a lawyer. I copied a set of bylaws from another 501(c)3 in which I'd been a member and added a few clauses about membership requirements and rights when the board seeks to remove an elected officer. One of the big items I wanted to add was that any member could call for a vote to override a board decision, which is an even more simplified version of what's being proposed here. The problem is that only the board members are indemnified under law when you form a corporation. If all of the members make that sort of a decision, the indemnity is broken and each and every member of the corporation becomes liable joint and severally for any injuries and/or damages that might arise from such a decision.

      We wound up compromising to a vote of no confidence on any board decision, which worked for a while. But over time the lawyer drew more and more of the work into the board. He's still with the corporation. I've left in disgust. I continue to hear about the ongoing shenanigans of the corporation through a friend. This continues to reinforce my disgust. This is the last year they'll run their primary activity in Baltimore. Next year they'll move to DC. Two years ago they undertook an auxiliary activity in Las Vegas. They've lost money badly in Vegas and while a non-profit shouldn't make money, they shouldn't lose money either. I understand they're raising membership fees this year to build a nest egg for the move to DC. Interestingly, the amount by which they are raising membership rates almost exactly matches the amount of money they've lost in Vegas. I expect it to crash and burn any day now. I understand their current yearly budget is around $3 million, with about half that amount currently in the bank, so this isn't exactly a small operation.

  3. Anonymous Coward
    Meh

    No problem.

    Relocate.

    Welcome to globalisation.

  4. Anonymous Coward
    Mushroom

    If this goes bad

    Just imagine what fun we'd have if ICANN collapses and the world + dog steps in to perform their function along national lines.

    For starters, a new DNS entry would need registering in multiple places. If you are "undesirable" then you will vanish for large swathes of the world.

    Think the GFWoC is bad? Wait until this becomes a possibility.

  5. GregC

    So ICANN is based in California

    and they are subject to Californian law. OK, I understand that.

    They are meeting in Singapore why? I mean apart from, in the words of Not the Nine O'Clock News, to gamble and screw and get pissed.

  6. Doctor Syntax Silver badge

    Who appoints the board?

    Presumably the members. So they can be given the choice of doing what the members want or leaving the gravy train.

    1. Alan Brown Silver badge

      Re: Who appoints the board?

      "Presumably the members. So they can be given the choice of doing what the members want or leaving the gravy train."

      It's remarkably easy to stack the votes - and even in the face of overwhelming member opposition a board can continue doing the opposite of what's wanted until voted out en-masse at a SGM.

      Which is why ICANN's board has been setup specifically so that the board _can't_ be removed that way.

  7. Alan Brown Silver badge

    The ghost of the former chair lives on.

    The one who is an IP lawyer and pulled similar shenanigans whilst chair of the NZ internet society to the point where he got kicked out.

    Well, I say "kicked out". After certain board members republished various statements to the board which showed he'd been flat_out lieing to the members, he was allowed to resign and bugger off to ICANN.

    1. nematoad
      Happy

      Re: The ghost of the former chair lives on.

      "The ghost of the former chair lives on. "

      Then he should be sat on very firmly!

      1. Alan Brown Silver badge

        Re: The ghost of the former chair lives on.

        I doubt it. He's now living and working in Singapore (coincidence the meeting is there?) and the odds are pretty good that his fingers are still well and truely in the ICANN pie.

  8. Yes Me Silver badge

    Lawyers know best...

    ...how to give advice that their employer wishes to hear. But that advice doesn't mean anything until it is tested in court.

  9. fromSingapore

    the secret is out of the bag...

    This is just another example of why ICANN is not ready for handling the IANA functions.

    The top down last century management style and mentality currently inside ICANN reveals a disdain for and lack of experience in the bottom-up multi-stakeholder approach. Bottom-up, multi-stakeholder might be good for the masses as they espose, but ICANN managment thinks they are too good for that. Before ICANN can be trusted to take on the functions there must be a fundamental turnover of ICANN C-level and GM level staff... replaced with people from the community - not the ones now with no experience with the ICANN community (as shown with NetMundial debacle). Maybe after the current CEO leaves we can clean house.

    from Singapore,..

  10. KA0293

    In answer to a few questions raised on this thread?

    1. Yes, ICANN is still a California public-benefit/non-profit corporation that also has US Federal 501(c)(3) tax exempt status.

    2. "Who appoints the board?" - ICANN has a process that makes Byzantine look simple. The basic answer is that unless you are a "stakeholder" (generally meaning that you have a financial interest in ICANN's decisions) you don't get to play, only to watch. There is a rump public element, but it is structured very much like the hierarchy of soviets (committees) of the old USSR - and equally accountable to the public.

    ICANN used to have public elections, but ICANN did not like who won. So they erased that system.

    3. Regarding the main point of the article - Under California law the board of directors of a corporation holds the ultimate power and authority. They can delegate or impose procedures on their decision making, but they retain the power to change and override - they can't point to someone else and shirk their responsibilities.

    ICANN chose in its early years to avoid - some say evade - being a "membership" kind of public benefit corporation. That status would have imposed many obligations onto ICANN that ICANN did not want - you can see ICANN's own analysis here: https://archive.icann.org/en/meetings/santiago/membership-analysis.htm

    4. Some rude stones were thrown on this thread against a former ICANN chairman. Those stones are not warranted.

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