2015-02-19

ICANN Was Originally Intended To Be A Membership Organization

One of the tragic facts in ICANN's history is that Jon Postel died before ICANN's first Board of Directors meeting:
"Without Postel as its peacekeeper, ICANN had trouble raising money and was forced to survive on fees from Network Solutions and a new crop of domain-name registrars that grew up under ICANN’s oversight, [Esther] Dyson says. Thus was born a financial conflict of interest that continues to this day: ICANN subsists on the very industry it purports to govern. Dyson says she “lost any faith, over time,” in ICANN’s ability to regulate the domain-name business." (source: MIT Technology Review)
One of the issues the Enhancing ICANN Accountability Cross Community Working Group (CCWG-Accountability) is now grappling with is whether ICANN should have an empowered membership capable of removing directors, etc. A look back indicates that is what was originally intended--

Resources - ICANN: Articles of Incorporation of Internet Corporation for Assigned Names and Numbers - As Revised November 21, 1998:  ".... 9. These Articles may be amended by the affirmative vote of at least two-thirds of the directors of the Corporation. When the Corporation has members, any such amendment must be ratified by a two-thirds (2/3) majority of the members voting on any proposed amendment." (emphasis added)

Also note the original ICANN Bylaws (6 Nov 1998): "ARTICLE II: MEMBERSHIP (This Article is reserved for use when the Corporation has members.)" (emphasis added)

In fact, ICANN staff produced a memo dated August 11, 1999, outlining options for membership as provided in the ICANN Articles and Bylaws then in effect:

"Analysis: Statutory Members Versus Nonstatutory Members for the ICANN AT-Large Membership .... One of the fundamental issues underlying the development of a process to create an ICANN "membership" that will select At-Large Directors of ICANN is to determine precisely what rights and/or powers those "members" will have... II. Rights of Statutory Members - California law provides that certain specific rights and powers automatically belong to any "member" of a non-profit corporation. A "member" includes "any person who, pursuant to a specific provision of a corporation's articles or bylaws, has the right to vote for the election of a director or directors or . . . has the right to vote on changes to the articles or bylaws." (5056). If the ICANN "membership" was created without any explicit limitations on these rights or powers, an ICANN member would be a Statutory Member, as we are using that term here, and would have the following rights and powers, as set forth in the California Nonprofit Corporation Law:
....
6. Members may bring derivative actions, subject to the usual conditions. (5710) No bond shall be required if enough members bring the action. (5710)
7. Most amendments to articles must be approved by Board and members (and any other persons specified in articles). (e.g. SOs). (5812)
8. Board must send annual report (as defined in 6321) to members within 120 days after the end of the fiscal year. (6321)
9. Membership lists and accounting books and records and minutes must be made available to members for proper purposes. (6330, 6333 and 6338)
10. Members may amend the bylaws; however, the bylaws may provide that the amendment may occur only with the approval of a specified person other than the Board. (e.g. SOs). ( 5150) Note, however, that the Board may amend the bylaws without the approval of members unless the action would materially and adversely affect the right of members as to voting or transfer.
11. Directors elected by members may be removed by members. (5222)
12. The bylaws must specify a quorum requirement. (5512)
13. Members can bring legal actions to....." (emphasis added)
In less than three months after the staff memo above was issued, the ICANN Board of Directors amended the ICANN Bylaws to prevent any possibility of "members"--

October 29. 1999, amended bylaws"ARTICLE II: MEMBERSHIP - Section 1. GENERAL - The Corporation shall not have members..." (emphasis added)

Today the applicable bylaw provision preventing members is in Article XVII:

ICANN Bylaws: "ARTICLE XVII: MEMBERS - ICANN shall not have members, as defined in the California Nonprofit Public Benefit Corporation Law ("CNPBCL"), notwithstanding the use of the term "Member" in these Bylaws, in any ICANN document, or in any action of the ICANN Board or staff." (emphasis added)

And the rest is history. One of the ways ICANN was "captured" by special interests, was the elimination of any possibility of membership by amending the bylaws to prevent "membership." Now, the CCWG-Accountability is trying to "re-invent the wheel" and reform ICANN into what had originally been intended.

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