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

Donald Eastlake <> Tue, 13 October 2015 18:31 UTC

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From: Donald Eastlake <>
Date: Tue, 13 Oct 2015 14:30:44 -0400
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Subject: Re: [Ianaplan] What's happening at ICANN?
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On Tue, Oct 13, 2015 at 2:05 PM, Avri Doria <>; 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.

 Donald E. Eastlake 3rd   +1-508-333-2270 (cell)
 155 Beaver Street, Milford, MA 01757 USA

> 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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