Re: [Ianaplan] What's happening at ICANN?

Avri Doria <avri@acm.org> Wed, 14 October 2015 11:26 UTC

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References: <56181181.50002@gmail.com> <D23F19BE.27A31A%Jonne.soininen@nsn.com> <561D47DD.2010704@acm.org> <CAF4+nEHDxq1fgAqdb5Kwe6cNn9uK5jS2+wnNVXRFpLY44+Y=4g@mail.gmail.com>
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From: Avri Doria <avri@acm.org>
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Subject: Re: [Ianaplan] What's happening at ICANN?
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Hi,

I have no strong convictions about whether the IETF is an UA or not. 
I did not think it was, but if you think it is, then it might just well be.
So congratulations, IETF can both sue and be sued.

All I was trying to say was IETF had a binding appeals tracks that ICANN
does not have.

avri



On 13-Oct-15 14:30, Donald Eastlake wrote:
> On Tue, Oct 13, 2015 at 2:05 PM, Avri Doria <avri@acm.org>; wrote:
>> Hi,
>>
>> One essential difference is that IETF has an appeal mechanism on process
>> to the Internet Society Board of Trustees.
>> This is the backstop for the IETF.
>>
>> From what I have learned in the ICANN Accountability process, the most
>> legal training I have ever had, the IETF as the IETF might have trouble
>> suing anyone given that is is not a legal person.  Fortunately the IETF
>> does not live in an environment where suits, of either kind, are the norm.
> Even though I'm right and what you and lots of other people believe is
> wrong :-) I don't usually both to point that out. It is usually not
> worth the effort to argue with people having very strong convictions.
> But either the IETF is just part of the ISOC, which is a corporation
> and can obviously sue or be sued, or the IETF is a separate
> unincorporated non-profit association.
>
> In the United States, unincorporated non-profit associations have
> legal existence and can sue and be sued. To take examples from
> business and labor, for over 150 years the New York Stock Exchange was
> an unincorporated association having numerous employees and contracts
> as wel as the occasional lawsuit, until sometime in the 1950s when it
> incorporated and it only did that then to get the advantage of some US
> Federal tax provisions for pensions that were only available to
> corporations. All or almost all labor unions in the US are
> unincorporated associations (and laws attempting to force them to
> incorporate have been declared to violate the US Constitution as a
> violation of the right of freedom of association). I acted as the
> agent for an unincorporated association which applied for and was
> granted US trademarks (the certificate issued by the US Patent and
> Trademark Office explicit recites that the organization is a "US
> unincorporated association").
>
> The often repeated claim the the IETF does not legally exist is and
> always has been just plain wrong.
>
> Thanks,
> Donald
> =============================
>  Donald E. Eastlake 3rd   +1-508-333-2270 (cell)
>  155 Beaver Street, Milford, MA 01757 USA
>  d3e3e3@gmail.com
>
>> avri
>>
>> On 10-Oct-15 12:57, Soininen, Jonne (Nokia - FI/Espoo) wrote:
>>> Hi Brian,
>>>
>>> like Bernard and Dave said, part of the story is the press tries to spin
>>> an interesting story. Partly the story is that there are strong emotions
>>> in play at the ICANN in this topic.
>>>
>>> So, the topic is ICANN accountability. The claim is that as long as there
>>> was the NTIA contract on IANA there has been a backstop on ICANN's
>>> decisions, especially the board's. The theory is that if ICANN (the staff
>>> and the board, not the community) would do something silly NTIA could at
>>> least threaten to take IANA away and pressure ICANN to reconsider the
>>> decision get to the right path. However, with the IANA stewardship
>>> transition there would be no backstop anymore and potentially a future
>>> board could go rogue and do whatever they want disregarding the community.
>>> Therefore, there needs to be new accountability mechanisms.
>>>
>>> The main accountability mechanisms discussed have been spilling the
>>> complete board, removing a board member and control/veto the ICANN budget
>>> and bylaws changes. There is pretty much consensus that in some form or
>>> another these are reasonable requirements. However, the discussion is
>>> about what is the right enforceability mechanism. Enforcement means how
>>> can you legally enforce ICANN/board do something - basically, how can you
>>> sue ICANN if the board/staff doesn't do what the community expects it to
>>> do.
>>>
>>> In the IETF, we have a bit different approach to these things. I wouldn't
>>> think we would have ever the discussion the IETF community should be able
>>> to take the IESG or IAB to court. Interesting thought, though... ;)
>>>
>>> I hope this helps.
>>>
>>> Cheers,
>>>
>>> Jonne.
>>
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