We discussed this somewhat in Monterrey (the appropriate size of a
legal defense monetary reserve). One possibility is to have a very
large reserve -- that increases the likelihood you will be sued. The
other extreme is to have no legal reserve, and just let the
corporation fold if it is sued.
The fact is that there isn't anything real-time about the DNSO -- it
could flicker out of existence for a month or two, a new group could
be formed, using essentially the same corporate documents, ICANN
could approve the application, and be back at work within 90 days.
[Supposing that the particular legal storm didn't also destroy
ICANN.]
That is, there is no need for the DNSO corporation to protect itself;
just its members.
The situation with ICANN is different, however, because it needs to
protect itself, if its management of its piece of the Internet is to
meet reasonable standards of stability.
[...]
> Amadeu, you have touched upon something fundamental. Governance and
> avoiding liability for decisions does not go together very well.
In the US most governmental agencies cannot be sued, and I think
similar situations exist in most civilized countries. There are
*very* good reasons that regulatory agencies cannot be sued -- they
very frequently *must* make unpopular decisions. If the government
could be sued, every thin dime of tax money would be spent in
defending against suits.
> Politicians' heads have to be rollable.
>
> The ICANN bylaws are centered around avoiding liability and the new
> "instructions" for the SO applications make it even clearer.
> There must be such a thing as political accountability or you will invite
> revolt.
Confusing political accountability with civil liability would be a
profoundly terrible mistake for us to make. It is an unfortunate
reality that there are genuinely conflicting points of view involved.
That means that there will *always* be some unhappy people. If the
DNSO/ICANN have no shield against lawsuits they will be completely
and utterly paralyzed -- and then they will be sued for not doing
anything. Without liability shields that means that each individual
member of the DNSO is personally liable.
> If ICANN wants to lay the responsibility for policymaking with the DNSO,
> then the DNSO's prime defense against all action should be the will of the
> majority of the Internet stakeholder community.
The will of a majority of Internet stakeholders is absolutely
worthless as a legal defense. And you will need real dollars to pay
your defense lawyers. Suppose *everybody* but NSI wants a certain
policy. NSI claims that policy would damage its business, and sues
ICANN and DNSO. If ICANN/DNSO ignore the suit, NSI will get a
summary judgement. If they fight the suit, it costs significant
money. The suit will be decided on the basis of the relevant laws,
not the will of the majority.
> The courts in all reputable jurisdictions will recognise this, if the
> bylaws of the DNSO reflect a fair democracy.
The bylaws of ICANN only are at issue if the California Attorney
General brings suit against the corporation for not meeting the
standards of a California non-profit. You as an individual can't sue
ICANN because ICANN doesn't follow its bylaws; you can only sue ICANN
if ICANN causes you some damage.
You don't sue General Motors because their bylaws say that they
should produce good cars -- you sue them because you were damaged by
their actions. The bylaws of General Motors are almost totally
immaterial in such a suit.
> On the other hand, the present incorporators can be held liable for
> creating bylaws that could be called a "racket".
In general, no, they can't. The ICANN bylaws could state that the
ICANN directors personally owned the moon, or that 3 == 5. That
doesn't make them own the moon, or 3 == 5. The existence of flaws in
the bylaws doesn't give *anyone* standing to sue the corporation,
except (in the case of a California Public Benefit Corporation) the
Attorney General of the State of California.
[...]
> Frankly, I cannot understand how ICANN cannot have it's own Membership
> Organisation ready and yet demand that the SO's would have theirs ready by
> february 5 .
It does seem a trifle optimistic.
-- Kent Crispin, PAB Chair "Do good, and you'll be kent@songbird.com lonesome." -- Mark Twain