Thank you Sam for the valuable analysis, and word of caution: indeed, it will take more than just tweaking bylaws.

One of Sam's remarks, based on the Canadian practice in NGOs, deserves special attention: "... are now (both) required, by law, to have only Canadian citizens as members of the board, all elected by membership, and both now face much more detailed and onerous internal governance and reporting requirements."

In the hypothesis that ACs and SOs would seek some power over some or all Board decisions, the question would certainly arise about the contradiction between the current practice of not-tightly regulated membership within those ACs and SOs (mode of designation or election, lack of due process and background check, citizenship) and the constraints of California (and/or US) law. To be applicable, a law or regulation requires symmetry between rights and requirements, and the current situation is anything but symmetrical in that respect.

Best regards,
Jean-Jacques.






----- Mail original -----
De: "Sam Lanfranco" <[log in to unmask]>
À: [log in to unmask]
Envoyé: Jeudi 9 Avril 2015 07:23:40
Objet: Re: [Ncsg-acct] update on accountability work


I would like to make one comment on the following part of Robin's posting [ emphasis added ] where it says : 

P robably the thorniest of the WS1 issues is the "community empowerment" goal. The various proposals for this goal include turning ICANN into a membership organization , tweeking its existing status by empowering the SO/ACs through bylaws revisions, a proposal for a "community veto" on key board decisions, creation of a "community council" or a permanent CCWG on accountability, etc. These are big complex issues and we will need to make a recommendation that goes out for public comment on 20 April. I believe Rafik is in the process of organizing an NCSG webinar on this subject and we can also discuss the issue on Tuesday's NCSG monthly call. 

For organizations such as ICANN there is a big difference between being a "membership organization" and what ICANN is now, a more-or-less member/constituency supported organization. A move toward "turning ICANN into a membership organization" involves more than just "tweeking its existing status". My strong advice is that ICANN not only have legal advice on these issues (which I am sure it has) but that documents be available to the stakeholder communities early (before Buenos Aires) so that discussion is informed by the legal requirements involved in a possible membership organization option. 

Let me draw on one aspect of recent Canadian experience which is relevant here because Canada, along with other countries, has signed on to binding international agreements with regard to how registered and incorporated non-profit membership organizations are structured and how they are governed. The organization I represent on NPOC, The Canadian Society for International Health, and the ISOC Canada chapter, where I am on the Board, are now both required, by law, to have only Canadian citizens as members of the board, all elected by membership, and both now face much more detailed and onerous internal governance and reporting requirements. 

What would be useful, for ongoing discussion around accountability and for face-to-face discussion in Buenos Aires, would be some clear legal advice around the organizational governance requirements, including the election of the board, of moving to a formal membership organization, and the alternative of strengthening the role of the mulstistakeholder community within an ICANN that remains as a member/stakeholder supported (or engaged) organization. The discussion of the strengths and weaknesses of various options needs to take place within the context of applicable law, and not just on the merits of the options apart from context. 

Sam L.