Neustar $NSR Under Law Firm 'Investigations' After Announcing Buyout

Investigation UPDATES below (Dec. 15-19, 2016).

Neustar Inc. (NYSR: NSR) Shares Up 21% 14 Dec 2016 (source: google.com)

Domain name registry services (.CO, .US, .BIZ, et al) and technology company, Neustar Inc. (NYSR: NSR) (Principal Domain: Neustar.biz), announced prior to the market open on December 14, 2016:

[Neustar] has entered into a definitive agreement to be acquired by a private investment group led by Golden Gate Capital in a transaction valued at approximately $2.9 billion, including debt to be refinanced. Under the terms of the agreement, which was unanimously approved by Neustar’s Board of Directors, Neustar’s shareholders will receive $33.50 per share in cash. This represents a premium of 45% to Neustar’s closing stock price on November 11, 2016, the day prior to Golden Gate Capital’s filing of a Form 13F with the SEC disclosing an equity position in Neustar. An affiliate of GIC will also invest in Neustar and will become a minority owner of the Company following closing of the transaction.

See also:

• Neustar's December 14, 2016 Press Release
• EDGAR Search Results for Neustar Inc (filings with U.S. Securities and Exchange Commission)
• Investor Relations: neustar.biz/about-us/investor-relations
• Neustar Q3 2016 Earnings Results | DomainMondo.com
• Golden Gate Capital | GoldenGateCap.com

December 14, 2016 Neustar customer announcement as filed with the S.E.C. (excerpt, emphasis added):

Dear Valued Customer,

Today Neustar announced that we will become a private company, through an acquisition led by a private investment group of Golden Gate Capital (GGC) and GIC.

When we announced in June our intent to separate into two independent companies, our primary objective was to align the value of each business with its appropriate investors and to better align our resources to address your current and future needs.

With Golden Gate Capital (GGC) and GIC, we have found an investor group that recognizes the complementary nature of our assets and businesses. Most important, they share our vision and long-term strategic direction.

At a minimum, it’s business as usual for all our customers and partners. You will not experience any interruption to the delivery of the solutions and services you have come to expect.

Golden Gate Capital (GGC) and GIC are committed to continuing to invest and improve upon our industry-leading authoritative OneID identity system which connects people, places and things and powers our marketing, risk, security and communications solutions.

Moreover, we will benefit from Golden Gate Capital (GGC) and GIC’s long investment horizon and deep expertise in the information services, technology and software sectors. This will help us strengthen our competitive advantages and enable us to bring you additional innovative, market-leading solutions, solving your greatest problems.

The transaction, which is expected to close no later than the third calendar quarter of 2017, is subject to approval by Neustar shareholders, regulatory approvals and other customary closing conditions ..."

Via press releases, Neustar's announcement has sparked 'investigations' by two law firms:

• Harwood Feffer LLP (hfesq.com) is investigating potential claims against the board of directors of NeuStar, Inc. ("NeuStar" or the "Company") (NYSE: NSR) concerning the proposed acquisition of the Company by a group led by Golden Gate Capital ("Golden Gate") ... "Our investigation concerns whether the NeuStar board of directors is fulfilling its fiduciary duties, maximizing the value of the Company, disclosing all material benefits and costs, and obtaining full and fair consideration for Company stockholders." 
• Shareholder rights law firm Johnson & Weaver, LLP (johnsonandweaver.com) has launched an investigation into whether the "board members of NeuStar, Inc. breached their fiduciary duties in connection with the proposed sale of the Company to Golden Gate Capital ..."
• UPDATE December 15, 2016:  "Brower Piven [Law Firm] Commences An Investigation Into The Proposed Sale Of NeuStar, Inc. And Encourages Investors To Contact The Firm For Additional Information"--MarketWatch.com. For more information: browerpiven.com/currentinvestigations.html
• UPDATE Dec 19, 2016: NEUSTAR, INC. SHAREHOLDER ALERT: Rigrodsky & Long, P.A. Announces Investigation Of Buyout | MarketWatch.com: "The investigation concerns whether NeuStar’s board of directors failed to adequately shop the Company and obtain the best possible value for NeuStar shareholders before entering into an agreement with Golden Gate."
• UPDATE Dec 27, 2016:  NeuStar, Inc. $NSR --:Former SEC Attorney Willie Briscoe and Powers Taylor LLP Investigate Merger with Golden Gate Capital | BusinessWire.com 27 Dec 2016: "... investigation centers on whether NeuStar’s Board of Directors is acting in the shareholders’ best interests, whether the board is properly negotiating a higher share price for the shareholders, and whether the board has employed an adequate process to review and act on the proposed transaction ..."

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DISCLAIMER

ICANN55: IANA Transition Plan, Sexual Harrassment, ICANN New gTLDs

ICANN55 wrapped up today in Marrakech, Morocco, with the final day's Public Forum and ICANN Board of Directors Meeting. As expected, the ICANN Board approved the transmittal of the IANA Stewardship Transition Proposal to NTIA, U.S. Department of Commerce, in Washington, D.C., in response to NTIA's 14 March 2014 announcement. A tired and self-congratulatory mood permeated the last day of ICANN55.

Topics of interest raised at the Public Forum:
• Sexual harassment issues were raised starting with a speaker who said she had been to only two ICANN meetings, and both times had been sexually harassed.
• The new gTLDs lobbyists tried again (unsuccessfully) to get a commitment from the ICANN Board that would allow them to hijack the ICANN auction proceeds for new gTLDs' marketing purposes. (The issue of use of auction proceeds will be the subject of a lengthy process--an upcoming post on Domain Mondo will have more details.)
• A domain name registrant pressed the ICANN Board about its past decisions and statements--e.g., "adding a 1000 new gTLDs per year for a 1000 years to the internet root"--and ICANN Board members replied, somewhat sheepishly, that the entire new gTLDs program is under scrutiny and review based upon experience with the first round.

The next meeting of ICANN, ICANN56, will be in Helsinki, Finland, 27-30 June--it will be a "working meeting"--no public forum, no welcome session.

ICANN Global Domains Division President Akram Atallah enjoying Wednesday night's Gala:

Thank you to our host, ANRT, for a fabulous evening in Marrakech! #ICANN55 pic.twitter.com/eM9whwi9lH

— Akram Atallah (@AkramAtallah) March 9, 2016

For a complete review of ICANN55, Domain Mondo recommends reading the Centr Report, which covers the ccNSO, GNSO and GAC sessions by topic and theme, with a special focus on the CCWG-Accountability:



See also on Domain Mondo:  ICANN Board Transmits IANA Transition Plan, What Happens Next?


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DISCLAIMER

Best ICANN CEO Quote of 2015: "My Neck Will Be Cut Tomorrow Morning"

Image above: Seppuku by Rev. R. B. Peery. Image in the Public domain via Wikimedia Commons.

"Now, if I’m sitting at the Board [of Directors] seat and I know that if I don’t do what my community tells me, my neck will be cut tomorrow morning, how will I really pay attention to the Public Interest?" - ICANN CEO Fadi Chehade explaining to the GAC on October 17, 2015, why the Membership Model doesn’t work for ICANN. See: GAC Oct 17: ICANN CEO, CCWG Co-Chair, Ships Passing in the Night?

First place runner-up 2015 Fadi quote:

My Transition from ICANN CEO, an Update: "I most recently accepted the invitation to co-chair a newly formed advisory committee to the World Internet Conference in Wuzhen ... To avoid any misunderstanding, I wish to confirm again that I have accepted this future role in my personal capacity." But read the press accounts:
Anonymous Hacks .... | Softpedia: "... [e]ven worse, at the same conference, ICANN (Internet Corporation for Assigned Names and Numbers), the organization that is in charge of managing domain names, has also pledged their support for a new plan for running the Internet, where Chinese figures have a more powerful word in the decisions taken by the organization. Since next year, ICANN will take over more IANA (Internet Assigned Numbers Authority) functions from the US government, this would give the Chinese government more power in how the global Internet is managed ...."

Second place runner-up 2015 Fadi quote:

“I'm not going to be steamrolled” - ICANN CEO Fadi Chehade to CCWG Co-Chair Thomas Rickert in Los Angeles, September 26, 2015, in response to Rickert not allowing Chehade to show a slide indicating where the ICANN community had not reached consensus about CCWG's proposal for "enhancement of ICANN accountability." See: ICANN CEO Fadi Chehade "Steamrolled" by CCWG-Accountability Co-Chair.

Third place runner-up 2015 Fadi quote:

Fadi Chehade: "Shall I answer this in Arabic?" Initial response of ICANN CEO Fadi Chehade to question (in English) submitted by Editor of Domain Mondo at the ICANN 54 Open Forum, after Chehade was directed to answer the question by ICANN Board Member Erika Mann (after consulting with the Board). See: ICANN 54 Public Forum Video, Q&A, ICANN, INTA, IANA, Lobbyists. Note: Fadi still has not followed-up and provided an answer to the question as he promised to do on October 22, 2015. Surprised?

Fourth place runner-up 2015 Fadi quote:

Fadi Chehade: "This is an important point because there's a definition of lobbyists but it's not people who influence outside of the U.S." 

Steve Crocker: Stop. Please stop.

Fadi Chehade: This is actually wrong.

Steve Crocker: Please stop. Thank you. See: ICANN Lobbying, Conflicts, Ethics, Transparency, Accountability, Disclosure (emphasis added)

Fifth place runner-up 2015 Fadi quote:

Fadi Chehade: "... I think Adrian [Kinderis], Kurt [Pritz], and others who know this idea of the DNA Association [DNA represents interests of the new gTLDs domain name industry] and started in some small meetings we were having at the ICANN office where I was a huge early supporter, and continued to be ... there's a brewing issue for example coming up that will affect your industry ... I'm committed to your industry without a question. I need to understand it more and spend more time in it, no question. I did realize at some point that ICANN itself is an organization needs a dedicated president that is focused on serving the industry. I asked Akram [Atallah] to abandon his COO role and be the president [of ICANN's Global Domains Division (GDD)]. We created this division to serve you. In many ways we need to pair GDD and DNA and make sure that that is very tight ..."--ICANN President and CEO Fadi Chehade, transcript of DNA meeting, February 10, 2015, video of meeting here (emphasis and links added). See also: Why Did ICANN Become a Member of Trademark Lobbyist Group INTA? (emphasis added)

See also on Domain Mondo: a special collection of posts--"Remembering Fadi" and

After Wuzhen, Should ICANN President & CEO Fadi Chehade Be Fired?


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DISCLAIMER

ICANN Accountability, What Is The Global Public Interest (GPI)?

A dispute is brewing between the ICANN Board of Directors and the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability)--which is part of the IANA Stewardship Transition process--over the definition of, or application of, the term "global public interest" (GPI) as it applies to the CCWG-Accountability proposal.

The term global public interest is used in ICANN's Articles of Incorporation as set out by Board Member Bruce Tonkin in his response below to the question recently asked by the CCWG-Accountability:

CCWG-Accountability Question: "What are the legal basis and criteria  by which the Board considers a given Recommendation to be contrary to the Global Public Interest? Clarification would really be useful to help our group, but also the Chartering Organizations, to check our own recommendations."

Response from the Board Liaison (Bruce Tonkin): "Coming to an agreed definition of the global public interest is part of ICANN’s strategic plan. It is the 5th of five strategic initiatives: “Develop and implement a global public interest framework bounded by ICANN’s mission.” Until this is done, the Board is guided by the global public interest as set out in our Articles of Incorporation: "... in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, ICANN shall, except as limited by Article 5 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by

(i) coordinating the assignment of Internet technical parameters as needed to maintain universal connectivity on the Internet;

(ii) performing and overseeing functions related to the coordination of the Internet Protocol ("IP") address space;

(iii) performing and overseeing functions related to the coordination of the Internet domain name system ("DNS"), including the development of policies for determining the circumstances under which new top-level domains are added to the DNS root system;

(iv) overseeing operation of the authoritative Internet DNS root server system;

and (v) engaging in any other related lawful activity in furtherance of items (i) through (iv)."

By inference therefore any specifics of a proposal that could result in limiting ICANN’s ability to deliver on this role is a concern to the ICANN Board."

One Comment, of several, in Reply by one CCWG-Accountability participant:

"With respect Bruce, that is not responsive.  Your last statement that " any specifics of a proposal that could result in limiting ICANN’s ability to deliver on this role is a concern to the ICANN Board" is a truism -- but there are many things that might limit your ability (lack of funding say) that are not in any way connected to the global public interest.  You cannot possibly mean that if the Board thinks it limits ICANN it is, by definition, not in the GPI -- or if you do mean that then the Board has a very, very inflated sense of itself and the relative importance of its mission.

"Likewise there are many things in the global public interest that would improve (or at least not diminish) ICANN's ability to deliver the services it is tasked with delivering.   You can't possibly be saying that things which are affirmatively in the global interest (greater diversity, for example) are not in ICANN's definition of GPI if they can be judged by ICANN to interfere with its operations.   That, in effect, gives the Board a veto to say that it if adversely effects us, it can't be in the GPI -- even when the broader definition of GPI clearly suggests that it is.

"The Board's objection to enhanced transparency (in its comments on the Third Proposal) is a perfect example of this latter case -- the Board substituting its own judgement of what is good for ICANN for a judgment of what is in the GPI.  I am more than willing to agree that greater transparency might impose greater process restrictions on Board activity and thus, in some perverse sense, be read to "limit ICANN's ability to deliver" its services -- by putting in more restrictions on what the Board can do.  But for the Board to equate that with a restriction that is contrary to the GPI is to mistake ICANN for the globe and ICANN's interests for those of the people it serves.

"I continue to be dismayed at this type of response from the Board which reflects a lack of understanding of what the accountability project is all about."

See also on Domain Mondo: ICANN, Domain Industry, Special Interests, and the Global Public Interest - excerpt:

... The Institute of Chartered Accountants in England and Wales argues that applying a detailed definition [of "Public Interest"] is likely to result in unintended consequences .... Meaning of public interest | ALRC | Australian Law Reform Commission: "... Should public interest be defined? 8.35 ‘Public interest’ should not be defined, but a list of public interest matters could be set out ..." (emphasis added)

Also note the public interest is a term used in the Affirmation of Commitments (AoC) agreement between ICANN and the U.S. government (NTIA) dated September 30, 2009 (to be incorporated into ICANN's bylaws in accordance with the latest draft proposal):

".... 3. This document affirms key commitments by DOC and ICANN, including commitments to: (a) ensure that decisions made related to the global technical coordination of the DNS are made in the public interest and are accountable and transparent; (b) preserve the security, stability and resiliency of the DNS; (c) promote competition, consumer trust, and consumer choice in the DNS marketplace; and (d) facilitate international participation in DNS technical coordination. 4. DOC affirms its commitment to a multi-stakeholder, private sector led, bottom-up policy development model for DNS technical coordination that acts for the benefit of global Internet users. A private coordinating process, the outcomes of which reflect the public interest, is best able to flexibly meet the changing needs of the Internet and of Internet users. ICANN and DOC recognize that there is a group of participants that engage in ICANN's processes to a greater extent than Internet users generally. To ensure that its decisions are in the public interest, and not just the interests of a particular set of stakeholders, ICANN commits to perform and publish analyses of the positive and negative effects of its decisions on the public, including any financial impact on the public, and the positive or negative impact (if any) on the systemic security, stability and resiliency of the DNS .... 9.1 Ensuring accountability, transparency and the interests of global Internet users: ICANN commits to maintain and improve robust mechanisms for public input, accountability, and transparency so as to ensure that the outcomes of its decision-making will reflect the public interest and be accountable to all stakeholders...."

See also on Domain Mondo: 

• IANA Transition: ICANN Accountability CCWG Timeline Going Forward
• Caveat ICANN: FIFA Bans Blatter and Platini For Conflict of Interest (video)
• What ICANN CEO Chehade Has Been Up To: WSIS, Wuzhen Initiative

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DISCLAIMER

Caveat ICANN: FIFA Bans Blatter and Platini For Conflict of Interest (video)

FIFA Bans Blatter and Platini From World Soccer -  FIFA President Sepp Blatter and the head of European soccer, Michel Platini, have been banned from world soccer for eight years by a FIFA ethics committee for "Conflict of Interest."  Published on Dec 21, 2015 by WSJ.com.

What would happen at ICANN in a similar situation? The evidence indicates conflicts of interest, or inappropriate conduct with parties having vested interests ("stakeholders"), by ICANN Officers (and staff) are tolerated, ignored, or even encouraged and rewarded! Who's legally responsible? Ultimately the ICANN Board of Directors under California law. Has the ICANN Board of Directors been held accountable for its failure to have in place or enforce an effective Code of Conduct for all ICANN officers and staff? Of course not! That's the reality of ICANN accountability, now, and probably in the future, despite all the talk of "enhancing ICANN accountability"--see, e.g., on Domain Mondo: this, this, this, this, this, this, this and this.

Will ICANN Ever Adopt & Enforce a Code of Conduct for @ICANN Officers and Staff? https://t.co/bCCXwPqYrc #Conflicts #Corrupt #ICANN

— Domain Mondo (@DomainMondo) December 21, 2015

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DISCLAIMER

Yahoo $YHOO Update: Reverse Spin Off Planned, Webcast Replay

Yahoo Update on Planned Spin-Off 

At a Yahoo! Conference call, Wednesday, December 09, 2015, 6:00 am PST, the company provided an update on the "planned spin-off" following issuance of a statement:

Yahoo [$YHOO] Provides Update on Planned Spin Off of Remaining Stake in Alibaba Group [$BABA]:

"Yahoo! Inc. (NASDAQ: YHOO) today announced that its Board of Directors, after careful review and consideration of how to best drive long-term value for shareholders, has unanimously decided to suspend work on the pending plan, announced in January of 2015, to spin off the company's remaining holdings in Alibaba Group Holding Limited (NYSE: BABA). The Board will now evaluate alternative transaction structures to separate the Alibaba stake, focusing specifically on a reverse of the previously announced spin transaction.

"In the reverse spin off, Yahoo's assets and liabilities other than the Alibaba stake would be transferred to a newly formed company, the stock of which would be distributed pro rata to Yahoo shareholders resulting in two separate publicly-traded companies.

"We believe that the previously announced spin off would be tax free to Yahoo and its shareholders," said Maynard Webb, Chairman of Yahoo's Board of Directors. "However, in consideration of developments since the original spin off plan was announced and after significant deliberations, we are suspending work on the Aabaco spin off. Among other factors, we were concerned about the market's perception of tax risk, which would have impaired the value of Aabaco stock until resolved. Informed by our intimate familiarity with Yahoo's unique circumstances, the Board remains committed to accomplishing the significant business purposes and shareholder benefits that can be realized by separating the Alibaba stake from the rest of Yahoo. To achieve this, we will now focus our efforts on the reverse spin off plan."

"In addition to our efforts to increase value and diminish uncertainty for investors, the ultimate separation of our Alibaba stake will be important to our continued business transformation," said Marissa Mayer, CEO of Yahoo. "In 2016, we will tighten our focus and prioritize investments to drive profitability and long-term growth. A separation from our Alibaba stake, via the reverse spin, will provide more transparency into the value of Yahoo's business."

"The reverse spin off is expected to require, among other things, third party consents, preparation of audited financial statements, shareholder approval, and SEC filings and clearance, including under the Investment Company Act of 1940. While the company intends to move expeditiously to complete the transaction, it is advised that complex transactions of this kind can take a year or more to conclude."

Conference Call - Webcast Replay

Yahoo held a conference call at 9:00 a.m. Eastern Time today to discuss this announcement. A live webcast of the conference call was available through the company's Investor Relations website at https://investor.yahoo.net/events.cfm. According to Yahoo: "an archive of the webcast will be accessible for 90 days through the same link."

After the conference call, in early trading today, both Yahoo (NASDAQ: YHOO) and Alibaba (NYSE: BABA) shares were up. In an unrelated SEC filing today, it was disclosed that on December 4, 2015, Max Levchin notified Yahoo! Inc. (“Yahoo”) that he was resigning from Yahoo’s Board of Directors effective immediately, due to "his other professional commitments and demands on his time, and not due to any disagreement with Yahoo on any matter related to Yahoo’s operations, policies or practices." The size of the board will be eight directors going forward. SEC filings of Yahoo are here.

See also on Domain Mondo: Yahoo Will NOT Spinoff $BABA, $YHOO Core Business Spinoff Possible

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DISCLAIMER

A Lust for Power: Is PIMCO Like Some CCWG-Accountability Members?

Video above: Bill Gross Sues PIMCO Over Forced Exit - Bill Gross has sued PIMCO (pimco.com) and its parent Allianz SE (allianz.com - ETR: ALV) for “hundreds of millions of dollars,” claiming he was wrongfully pushed out as the bond giant’s chief investment officer by a “cabal” of executives seeking a bigger slice of the bonus pool, in other words "greed." Bloomberg's Mary Childs reports on "Bloomberg Markets." Published on Oct 8, 2015

“Driven by a lust for power, greed, and a desire to improve their own financial position and reputation at the expense of investors ..." --Bill Gross Lawsuit Claims

Greed? In the financial industry? "I'm shocked."

Of course, the financial industry is not unique in this regard--it is now clearly evident, that there are a few members of the CCWG-Accountability (Cross Community Working Group on Enhancing ICANN Accountability) who have been, from the beginning, working on their own lustful power grab, or "greed," for control over ICANN, and apparently intend to impair or destroy ICANN's (and its Board of Directors') fiduciary duties to the global multistakeholder community and the global public interest. See: Domain Mondo: China (CAICT) Objects to ICANN CCWG Accountability 2nd Draft Proposal. For them, "Accountability" is a mere euphemism for "Power"--NOT enhancing ICANN accountability BUT enhancing their own Power--they intend to be "in control" of their proposed Single Member which would rule over the post-IANA transition ICANN and its Board of Directors. Remember, it is the "ICANN stakeholders" who currently select, directly or indirectly, 15 of the 16 voting members of the ICANN Board of Directors! But even that's not enough power (Carl Icahn would be flabbergasted by their chutzpah!)--they want to be able to overrule the ICANN Board even when to do so violates ICANN's (and the Board's) fiduciary duties to the global multistakeholder community and the global public interest:

"Sole Member given reserved power under Bylaws to override Board decision directly, regardless of Board fiduciary duties." - Legal counsel for CCWG-Accountability (pdf) opinion on CCWG 2nd draft Report (emphasis added)

But not all CCWG members are in agreement--and certainly ICANN community members do not all agree with the "power grab"--

"... Let¹s not suggest that the community is in full agreement on the 2nd draft CCWG proposal, it is not. Let¹s not suggest that the board is (nothing but) working against us, it is not. We have agreement on the most important ingredients of the proposal: specific powers for the community that can be enforced. We do not have agreement on the mechanism to implement these..."-- Roelof Meijer (CCWG mail list, October 8, 2015)(emphasis added)

Even one of the original supporters of the CCWG's 2nd Draft Report's Single Member Model now concedes:

"None of us know what will or won’t be approved by the [ICANN] stakeholder groups because at the moment there’s nothing for them to approve. At the moment no one in their right mind would approve our second draft proposal because of the feedback that it has."-- Jordan Carter, ICANN CCWG member, Oct 6, 2015 meeting transcript, emphasis added)

Apparently, from reading the CCWG mail list, we have some members of the CCWG who are not "in their right mind" since they have taken the hardline position to proceed with the Single Member Model (SMM or CMSM) in defiance of the feedback from the Public Comments, including that from the ICANN Board of Directors.  We may find out in Dublin, at the ICANN 54 meeting, if those who 'lust for power' will be successful in impairing or destroying ICANN's fiduciary duties to the global multistakeholder community and the global public interest. Some of these hardliners appear willing to destroy ICANN and the IANA transition in the process. Let's be clear what these CCWG-Accountability hardliners really want:

Complete power over ICANN to be in the hands of a few powerful ICANN "stakeholders," to the complete exclusion of the global internet community--

“... Having been a member or observer of many of these entities [ICANN stakeholder groups] I have found that they are often disorganized, ruled by a few strong personalities in a sea of apathy, and given to making up rules on the fly when needed. They do not even necessarily follow the rules they have agreed to in the charters, though some do, not all of them.  And for the most part, though they are supposed to [be] transparent, most aren't. So what I fear is that they are accountable to none except the few strong personalities..." -- Avri Doria, CCWG mail list, (emphasis added)

"... I agree that we have not (in this [CCWG] group) explored the accountability of stakeholder entities to their members, or the accountability of stakeholder entities (singly and collectively) to the larger community, or for that matter, the accountability of stakeholder entities to their non-member (and non-participating) stakeholders. If this is truly a deep concern, then it could be seen as a fundamental flaw in our entire plan, which is based on the existing stakeholder entities -- no matter how you design it (members, designators, delegates, etc.)…”-- Greg Shatan, CCWG mail list (emphasis added)

This "power grab" has nothing to do with ICANN Board accountability nor "enforceability"--that is a straw man argument completely refuted in a memo (pdf) from the Jones Day law firm distributed on the CCWG mail list October 8, 2015.

Caveat Emptor!

See also on Domain Mondo:

• IANA Transition: ICANN Board Also Rules Out CCWG Designator Model Oct 6, 2015
• Why the ICANN Board Does NOT Support the Single Member Model Oct 2, 2015
• IANA Transition, ICANN Accountability, "Has Always Been About POWER" Oct 1, 2015
• ICANN Board Does NOT Support CCWG Proposed Membership Model Sep 27, 2015
• China (CAICT) Objects to ICANN CCWG Accountability 2nd Draft Proposal Sep 24, 2015
• Only 19 of 90 Comments Support ICANN Accountability [CCWG 2nd draft] Proposal Overall Sep 22, 2015
• ICANN CCWG-Accountability Co-Chair Comments on the Public Comments Sep 15, 2015

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DISCLAIMER

Why the ICANN Board Does NOT Support the Single Member Model

Why doesn't the ICANN Board of Directors support the Single Member Model (SMM or CMSM), which was proposed in CCWG-Accountability's 2nd draft Report?

Keith Drazek, CCWG participant, Chair of the ICANN Registries Stakeholder Group, and Director of Policy for Verisign, Inc. (but not an ICANN Board Member), summarized the reasons on the CCWG-Accountability mail list, which provides a good summary of what listening CCWG members and participants have read, heard and understood. As Domain Mondo has previously noted, some on the CCWG, unfortunately, appear not to be listening (if they ever did), but are close-minded, stuck in groupthink and their collective sunk cost bias, looking to just grab the power they think may be available for exploit in the Single Member Model.

Below is Keith Drazek's summary of what he has read, heard and understood as the "ICANN Board's position," which he shared on the CCWG mail list on September 30, 2015:

"In no particular order, my interpretation of the Board's written comments, what we heard in Los Angeles and from Fadi yesterday is:

-- Introducing a different governance structure, i.e. membership, is new, untested, and cannot be proven to resist capture in the limited time available to meet the September 2016 date.

-- Shifting authority from the Board to an untested membership body is potentially destabilizing and will be difficult or impossible to sell as not introducing risk at a delicate time.

-- If we're going to shift authority, we must also shift a commensurate level of accountability, and the current SOs and ACs do not have sufficient accountability at this time.

-- ICANN and its SOs/ACs need to be safe from capture from outside and from within; empowering the SOs and ACs without clear safeguards is problematic.

-- Concentrating power in a new "sole membership" body is not balanced if it doesn't include all community members, and two groups (SSAC and RSSAC) have said they want to remain advisory.

-- Shifting from consensus-based decision-making to reliance on a voting structure is not consistent with the multi-stakeholder model.

-- The CCWG recommendation is too complex and difficult to explain/understand, so we need to make smaller, incremental changes that are more easily implemented and understood.

-- A recommendation requiring a substantial governance restructuring will suggest that ICANN is currently broken -- a politically risky message going into the transition.

"I'm obviously not in a position to speak for the Board, but that's my non-legalistic reading of the concerns. I'd be happy to be corrected if my interpretation is off-base."--Keith Drazek

Seun Ojedeji, CCWG participant and Non-Commercial Users (NCUC) stakeholder, in response to the above, posted: "Thanks for this, and just for record, the list [above] is what I can naturally add my +1 to in its entirety. Every points are critical and the last is even more critical than any other one."

Later, Keith Drazek also posted: "And just for the record, I was not advocating or supporting the points, just pointing out what will need to be addressed and/or resolved in the next iteration of our proposal."

See also on Domain Mondo: 

• ICANN Board Does NOT Support CCWG Proposed Membership Model Sep 27, 2015
• China (CAICT) Objects to ICANN CCWG Accountability 2nd Draft Proposal Sep 24, 2015
• IANA Transition, ICANN Accountability, "Has Always Been About POWER" Oct 1, 2015
• Only 19 of 90 Comments Support ICANN Accountability [CCWG 2nd draft] Proposal Overall Sep 22, 2015
• ICANN CCWG-Accountability Co-Chair Comments on the Public Comments Sep 15, 2015

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DISCLAIMER

ICANN Board Does NOT Support CCWG Proposed Membership Model

"The [ICANN] Board does not support the single member model.  We are unified in wanting to work with the community to find practical solutions to achieve the additional levels of accountability sought by the community including the ability to remove Board members and the whole Board, requiring community approval of bylaws changes, and requiring the Board to work with the community to reach consensus on strategic plans, operating plans and budgets."--ICANN Board Chairman Steve Crocker, Sept 26, 2015, in "chat" following his statement further below (emphasis added)

Following Chairman Crocker's statements (above and below) at the CCWG meeting, Keith Drazek, Chair of the ICANN Registries Stakeholder Group in the "chat" stated--

Keith Drazek: "I don't think anyone wants to get to a point of brinksmanship between community and Board. We're not there now and we should try to avoid it. That probably means the CCWG needs to assess all the public comments, including the Board's, and try to identify a compromise solution that doesn't compromise our stated goals. Some legitimate concerns have been raised by the Board and others, and we need to address them. Doing so should result in a compromise everyone can live with....consensus."

On Saturday, September 26, 2015, the second day of the CCWG-Accountability F2F LA meeting, ICANN Board Chairman Steve Crocker informed the CCWG that the proposed single member model a/k/a CMSM model is not supported by the ICANN Board of Directors. Accordingly, CCWG's 2nd draft proposal for ICANN membership may likely fail to achieve the necessary "consensus"-- see "chat" comment of Keith Drazek, Chair of the ICANN Registries Stakeholder Group, above.

STEVE CROCKER [ICANN Board Chairman]: THANK YOU VERY MUCH. WE CAN'T EMPHASIZE STRONGLY ENOUGH HOW THANKFUL WE ARE, HOW APPRECIATIVE WE ARE THAT EVERYBODY HAS COME TOGETHER. THIS IS A HASTILY SCHEDULED MEETING, DISPLACED A LOT OF SCHEDULES AND EVERYTHING. AND WE KNOW THAT A LOT OF -- THERE'S A LOT OF ENERGY THAT'S GONE INTO THIS. AND I WANT TO SPEAK -- I WANT TO SPEAK ABOUT THE BOARD'S POSITION AND ATTITUDE ABOUT ALL THIS.

THE TRANSITION IS VERY IMPORTANT. "VERY IMPORTANT" IS NOT THE SAME AS IT DOMINATES EVERY POSSIBLE ALTERNATIVE. OUR PRIMARY COMMITMENT, OUR OVERRIDING COMMITMENT IS TO THE INCLUSIVE MULTISTAKEHOLDER MODEL.
IT CANNOT SUPPORT COMPROMISES THAT UNDERMINE THAT MULTISTAKEHOLDER MODEL. THIS HAS BEEN BUILT UP IN A -- BY ACCRETION IN A WAY OVER 17 YEARS WITH CHANGES AND ADDITIONS AND MODIFICATIONS OVER TIME. EACH OF US SERVES ON THE BOARD FOR THREE-YEAR TERMS. AND EVEN IF WE EXTEND IT OUT AS I HAVE FOR A LONG TIME, EVENTUALLY IT COMES TO AN END. NONE OF US ARE HERE PERMANENTLY. THERE'S NO SENSE IN WHICH THE BOARD HAS A ROLE DISTINCT FROM THE COMMUNITY. WE COME FROM THE COMMUNITY. WE RETURN TO THE COMMUNITY. AND WE LEAVE BEHIND WHAT WE HOPE IS A STRONGER AND MORE VIBRANT OPERATION.

BUT I WANT TO EMPHASIZE THAT AS STRONGLY AS WE ARE SUPPORTIVE AND BELIEVE THAT THE TRANSITION AWAY FROM THE CONTRACTUAL ARRANGEMENT WITH THE U.S. GOVERNMENT IS IN THE BEST INTEREST OF THE ENTIRE WORLD, THE ENTIRE COMMUNITY, NOT JUST THE CORPORATE STRUCTURE OF ICANN, IT IS SOMETHING THAT HAS PERSISTED FOR A LONG TIME. WE WRESTLE WITH IT. WE CHAFE UNDER IT A BIT. BUT IT HAS NOT BEEN DISASTROUS. SO THAT SETS A KIND OF THRESHOLD FOR WHAT OUR ULTIMATE DECISION PROCESS IS GOING TO BE.

WE THINK THAT WE ARE SO, SO CLOSE TO WRESTLING -- WRESTLING TO THE GROUND TO GETTING AGREEMENTS ON THE BIG THINGS THAT HAVE BEEN IMPORTANT HERE ON ACCOUNTABILITY, ON TRANSPARENCY, ON ENFORCEABILITY, ON COMMUNITY POWERS, AND EVEN ABILITY TO REMOVE INDIVIDUAL BOARD MEMBERS. YOU MAY THINK THAT THAT'S A THREAT SOMETIMES. WE THINK THAT WOULD BE A RELIEF AS AN ESCAPE. [LAUGHTER ]

ANOTHER KEY THING THAT'S VERY VIBRANT AND VISIBLE TO US IS THE UNDERLYING ASSUMPTION, THE PREDICATE FOR THE ANNOUNCEMENT MADE A YEAR AND A HALF AGO WAS THAT THE U.S. GOVERNMENT WAS SAYING ICANN IS READY FOR BEING CAST LOOSE. IT DID NOT SAY WE ARE TIRED OF RUNNING IT AND WE HAVE TO FIND SOMEBODY TO SUBSTITUTE FOR OURSELVES. THEY DID SAY, OF COURSE, THEY WANTED A GLOBAL ENVIRONMENT, THE MULTISTAKEHOLDER MODEL TO BE COMFORTABLE, TO EVERYBODY TO BE COMFORTABLE WITH THE SYSTEM. AND IT OPENED UP THE DIALOGUE WHICH LED TO WHERE WE ARE TODAY. BUT THEY DID NOT -- AND I SHOULDN'T SPEAK ABOUT WHAT THEY SAID. BUT WE CERTAINLY DID NOT UNDERSTAND AND DON'T BELIEVE THAT CREATING A SUPERSTRUCTURE TO REPLACE THEM IN A CORPORATE SENSE WAS INTENDED, DESIRED, NEEDED, OR APPROPRIATE.

SO WE'RE FEELING OUR WAY VERY GINGERLY THROUGH THIS PROCESS. THE BOARD BELIEVES VERY DEEPLY AND TRIES TO ACT APPROPRIATELY THAT WE REPRESENT AND CARRY OUT THE SENSE OF THE COMMUNITY. WE'RE NOT IN A BASTION POSITION OF DEFENDING OURSELVES AGAINST THE COMMUNITY BECAUSE IN THE END, WE ARE TRYING TO BE REPRESENTATIVES AND CARETAKERS ON BEHALF OF THE COMMUNITY.

BUT AT THE END OF THE DAY, WE HAVE VERY STRONG RESPONSIBILITY. AND THAT RESPONSIBILITY IS CAREFULLY SEPARATED FROM EACH OF THE STAKEHOLDERS AND CONSTITUENCIES. WE TAKE CONFLICTS OF INTEREST VERY SERIOUSLY IN THE SEVERAL INSTANCES WHERE A PARTICULAR BOARD MEMBER HAS A BUSINESS RELATIONSHIP OR DOESN'T HAPPEN, BUT A PERSONAL RELATIONSHIP, IT HAS TO BE DISCLOSED AND THEY GET REMOVED FROM THE DECISION PROCESS AND SO FORTH.

WE DON'T HAVE THE SAME FRAMEWORK OF PROTECTION AND DEVELOPMENT OF DISCIPLINE IF CONFLICTS OF INTEREST, FOR EXAMPLE, IN THE REST OF THE COMMUNITY. AND THAT'S FINE. THAT'S PERFECTLY FINE. BUT IT IS SOMETHING THAT WE TAKE SERIOUSLY.

SO THE COMMENTS THAT WE SUBMITTED SOME TIME AGO, WE DID REPRESENT A BOARD POSITION. WE DID A QUICK CHECK THIS MORNING, AND 100% AGREEMENT THAT WHAT WE SAID THEN STILL STANDS.

WE REALLY, REALLY DO BELIEVE THAT THIS IS SO CLOSE THAT IT'S THERE. AND, AS I SAID, WE ARE VERY STRONGLY SUPPORTIVE OF THE PRINCIPLES AND THE OBJECTIVES. AND WE'RE DOWN TO WHAT IS SOMETIMES SAID WITH A LITTLE BIT OF IRONY, THESE ARE JUST IMPLEMENT DETAILS BUT THE IMPLEMENT DETAILS ARE, IN FACT, QUITE IMPORTANT.

I WAS REFLECTING AS I SAT IN MEETINGS -- IT IS ALMOST EMBARRASSING -- ALMOST 50 YEARS AGO TO BRING INDIVIDUALS TOGETHER TO BUILD THE ARPANET I WAS TERRIBLY CHAGRINED FAIRLY EARLY ON IN THE PROCESS WE HAD -- FIRST TIME WE HAD PEOPLE FLYING ALL THE WAY ACROSS THE U.S. TO COME TO A MEETING. AND THE MEETING FELL APART BY NOONTIME BECAUSE THE SOLUTION THAT I HAD BEEN PUSHING WAS REJECTED BY THE VERY PEOPLE I THOUGHT THAT I WAS DRAWING IT FROM. I WAS TAKING MODELS ABOUT THE WAY THE ADVANCED SYSTEMS AT MIT WORKED AND THE MIT PEOPLE CAME AND SAID "WE CAN'T DO THIS" MUCH THE WHOLE MEETING WAS IN SHAMBLES. I WAS A LOT YOUNGER THEN AND IT RATTLED ME. SOMEBODY TOOK ME ASIDE AND SAID "YOU WILL GET THROUGH THIS." SURE ENOUGH, THE PROTOCOLS GOT REBUILT, AND THE ARPANET GOT BUILT AND LOTS OF THINGS HAVE HAPPENED SINCE THEN.

WE CAN MAKE THIS WORK, AND WE CAN MAKE THIS WORK WELL ENOUGH. I WAS VERY, VERY PLEASED TO SEE THE DIFFERENT SCENARIOS THAT WERE BEING DISCUSSED BEFORE LUNCH. TO MY EYE, THEY WERE MORE SIMILAR THAN DIFFERENT, DIFFERED IN SOME DETAILS. AND ONE OF THE TEST QUESTIONS I ASKED: WHAT WOULD HAVE BEEN DONE DIFFERENTLY? AND THERE WERE ANSWERS. IT WASN'T ZERO. AND I THINK THAT'S FINE. I THINK THERE WERE SOME THINGS THAT ONE COULD ARGUE IT WOULD HAVE BEEN BETTER IF IT WAS DONE DIFFERENTLY, AND THAT'S FINE.

BUT I THINK WE WANT TO DO IT IN A MEASURED AND INCREMENTAL WAY AND WITH THE COMPLETE UNDERSTANDING THAT THIS IS AN ONGOING PROCESS. WE'VE HAD THE ATRT REVIEWS. WE'VE HAD THE STRUCTURAL REVIEWS. WE'D HAD PLENTY -- WE HAVE ALL OF THE ADVICE THAT COMES IN FROM THE ADVISORY COMMITTEES AND WE HAVE THE POLICIES THAT COME UP FROM THE SOs. THIS IS AN ONGOING PROCESS THAT WILL GO ON TOMORROW AND THE NEXT DAY AND THE NEXT DAY. AND IT IS NOT ESSENTIAL THAT WE GRAB HOLD OF EVERY SORT OF THING AND MAKE IT ALL HAPPEN NOW.

SO I WANTED TO CONVEY THAT. I WANTED TO CONVEY THAT THE BOARD IS DEEPLY INVESTED IN TRYING TO BE HELPFUL, IF WE CAN, STAYING OUT OF THE WAY IF THAT'S THE BEST THING TO DO. BUT WE'RE NOT TO BORROW A PHRASE FROM SOME YEARS AGO, WE ARE NOT POTTED PLANTS. WE ARE NOT JUST SITTING HERE PASSIVELY. WE ARE VERY HEAVILY ENGAGED. AND WE HAVE QUITE HEAVY RESPONSIBILITIES. AND THOSE WILL GET EXPRESSED AS THEY ARE -- AS I'M TRYING TO DO NOW AND THEY HAVE BEEN IN THE PAST, AND THEY WILL CONTINUE AS WE GO.

AND WE ARE HOPING VERY STRONGLY THAT WE ARE NOT PUT INTO A POSITION OF HAVING TO MAKE REALLY TOUGH DECISIONS OR GET INTO A "IT'S THAT OR THAT" SORT OF THING. BUT, IF NECESSARY, ALL OF US ARE SEASONED ADULTS AND WE TAKE OUR RESPONSIBILITIES QUITE HEAVILY AND WE DON'T HAVE CONSEQUENCES EXCEPT TO OUR OWN PERSONAL REPUTATIONS OR CONSCIENCE THAT WE HAVE TO DEAL WITH PERHAPS. WE WILL DO WHAT IS NECESSARY, WHEN IT'S NECESSARY. WE DON'T WANT TO CONVEY THAT AS A THREAT, MORE AS A PLEA, SORT OF "PLEASE DON'T THROW US INTO THAT BRIAR PATCH" IF YOU WILL. ..." (emphasis added) (Note: This transcription may be incomplete/inaccurate--a final reviewed transcript will be posted on CCWG Wiki)

See also on Domain Mondo:

• CCWG-Accountability F2F LA Meeting, Sep 25-26, ICANN Board (Sept 25, 2015)
• China (CAICT) Objects to ICANN CCWG Accountability 2nd Draft Proposal (Sept 24, 2015)
• Only 19 of 90 Comments Support ICANN Accountability Proposal Overall (Sept 22, 2015) 
• ICANN CCWG-Accountability Co-Chair Comments on the Public Comments (Sept 15, 2015)

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DISCLAIMER

Accountable ICANN and Carnegie Hall Require Active Board Oversight

This Sounds Like ICANN - Discord Breaks Out at Carnegie Hall http://t.co/HJHlWntOxj via @WSJ #domains #IANA #ICANN

— Domain Mondo (@DomainMondo) September 17, 2015

"... ICANN may need Board reform—that should have been priority #1. Almost every failing of ICANN can ultimately be attributed to a Board of Directors that was not activist, failed to question, failed to challenge stakeholders, management, staff or GAC advice, failed to be vigilant, pro-active. Therefore, review and improve processes for selecting members of the ICANN Board of Directors, which will lead to independent, activist, vigilant ICANN directors, reflective of the diversity of the global multi-stakeholder community, who will question, investigate, and push back (when necessary or appropriate) against policies advanced by self-interested ICANN stakeholders which are to the detriment of the global public interest or the global multi-stakeholder community; directors who will question and hold accountable ICANN officers, ICANN staff, GAC advice, and all ICANN stakeholders, including policy-making proposals, inquiring as to whether ICANN policies and principles have been followed ...."--John Poole, Editor, Domain Mondo; see ICANN CCWG-Accountability Co-Chair Comments on the Public Comments

The CCWG-Accountability and ICG--meaning the Enhancing ICANN Accountability and IANA Transition on-going processes--could learn a lot from looking at what's happening at Carnegie Hall in New York City:

Discord Breaks Out at Carnegie Hall - WSJ: "...“These matters implicate Carnegie Hall’s obligations as a nonprofit organization and as a public trust,” according to Mr. Perelman’s letter. Such lack of transparency, he said in the letter, fails to meet the standards of the New York State Nonprofit Revitalization Act, which mandates that board members take an active oversight role over staff action and, he wrote, “imposes greater restrictions and approvals in connection with related-party transactions.” ..." (emphasis and link added; read more at the link above)


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DISCLAIMER

CCWG-Accountability and ICANN Board Sept 2nd Dialogue Online

UPDATE September 8, 2015: Steve Crocker, ICANN Board Chairman published a blog post Monday, excerpt below:

Firstly, the Board will submit comments on the ICG IANA Stewardship Transition Proposal. We are very appreciative of all the hard work done by the ICG members and the three operational communities to produce the ICG proposal. The main focus of our comments will be on the implementation of the proposals by ICANN as the current IANA Functions Operator.

Secondly, as discussed extensively over the past week, the ICANN Board will submit comments on the CCWG-Accountability 2nd Draft Proposal on Enhancing ICANN Accountability. These inputs will include:

• Comments on the mission and core values; and
• Suggested enhancements of elements of the draft report; and
• A matrix of the key elements proposed by the CCWG-Accountability highlighting the elements of alignment between the Board and the CCWG-Accountability as well as the elements where the Board has suggested enhancements.

We thank the community for their consideration of our comments and continued trust in the multistakeholder process that has got us this far. The continued back and forth of ideas and opinions is how we will together build the strongest proposal for the IANA Stewardship Transition, and we look forward to the next steps in the process and encourage all interested parties to submit their comments before the deadline.

UPDATE September 4, 2015: Working Together Through The Last Mile - Steve Crocker, ICANN Board Chairman: "... We support the important improvements for ICANN's accountability contained in the CCWG-Accountability's 2nd Draft Proposal. We endorse the goal of enforceability of these accountability mechanisms, and we believe that it is possible to implement the key elements of the proposal. We want to work together to achieve the elements of the proposal within the community's timeline while meeting the NTIA requirements. As we enter the final days of the Public Comment period, the Board wants to be completely clear on our position. We are in agreement on key concepts set forward in the CCWG's proposal ..." (read more at link above)

UPDATE September 3, 2015:

Astonishing #ICANN meeting 2day between Board and CCWG, where board released its proposed rewrite of the community proposal.

— Jordan Carter (@jordantcarter) September 3, 2015

Lots and lots for #ICANN #ccwg to consider, but not a good sign that the Board's proposals are so extensive and so fundamental. #netgov

— Jordan Carter (@jordantcarter) September 3, 2015

UPDATE: ICANN Board--CCWG-Accountability dialogue concludes--summary below:

#ICANN CCWG/Board dialogue ends. Board will contribute written comments to CCWG-Accountability as soon as it can. #IANAsteward

— Samantha Dickinson (@sgdickinson) September 3, 2015

#ICANN @mathieuweill: this CCWG/Board dialogue is a mtg that will long be remembered in the #IANAsteward process. It may be a turning point.

— Samantha Dickinson (@sgdickinson) September 3, 2015

#ICANN @mathieuweill: every part of Board’s comments on CCWG prop will be fully considered, in line w legal advice received. #IANAsteward

— Samantha Dickinson (@sgdickinson) September 3, 2015

more tweets at @sgdickinson

See notes of meeting on CCWG wiki:  https://community.icann.org/pages/viewpage.action?pageId=56133316

At the beginning meeting, Chairman Steve Crocker and Board Member Chris Dispain presented the information summarized here:
http://mm.icann.org/pipermail/accountability-cross-community/2015-September/005160.html and here: http://mm.icann.org/pipermail/accountability-cross-community/2015-September/005161.html

Summary on CCWG mail list: http://mm.icann.org/pipermail/accountability-cross-community/2015-September/005168.html --Actions and next steps:

1. Board to provide detailed proposals in writing to the CCWG. Would be beneficial if this could come with legal analysis as well as rationale and any prior work on the impact analysis of the Board¹s implementation proposal. 
2. Then, the CCWG will certify a request for its lawyers to review this proposal and check for CCWG and CWG requirements
3. In the CCWG remit to consider what parts of the proposal need to be taken on board while remaining an open process where Board will remain engaged.
4. The lawyers (ICANN, Sidley, Adler, and Jones Day) should start a dialogue to review the Board proposal.

Do we want to schedule any more calls or small group interactions or a F2F?
Before the CCWG decides on this, the CCWG needs to understand the Board¹s comments better.
Public statement for reporters?
* We can acknowledge that there was constructive dialogue
* The CCWG is willing to understand what Board¹s recommendation is
* We need to make sure the statements today do not overturn or prematurely compromise the CCWG¹s work to date

The Board will endeavor to get comments into the Public Comment Forum ASAP.

----------------------------end of update----------------

CCWG/Board Dialogue Call from 22:00 Wed. – 01:00 AM Thursday UTC (2-3 Sept) which is Wednesday Sept 2nd from 6-9pm ET (US) - Time zone converter here

Online via Adobe Connect: https://icann.adobeconnect.com/dialogue/

Proposed agenda:
1. Welcome and opening remarks
2. Board presents its comments and suggestions on the overall proposal
3. Walk through sections of the report where necessary
4. Discussion of the transitional phase
5. Outlook, next steps and closing remarks

The CCWG-Accountability seeks input and feedback on its 2nd Draft Report [PDF, 2.62 MB]. The 2nd Draft Report is also available section by section on the CCWG-Accountability's Wiki workspace at https://community.icann.org/x/pKs0Aw. Translations will also be posted on the Wiki workspace as available for each section.

CCWG-Accountability wiki

Information | Public Comments Close:

• IANA Transition Proposal 8 Sep 2015 at 23:59 UTC (11:59 PM UTC)
• ICANN Accountability Proposal 12 Sep 2015 at 23:59 UTC (11:59 PM UTC)

Background and more information from Domain Mondo:

• CCWG-Accountability August 31 Meetings With Advisors and ICANN Board (Aug 31, 2015)
• ICANN Accountability, IANA Transition, Proposals, Comments, Webinars (Aug 4, 2015 - updated Aug 31, 2015)
• ICANN Board of Directors Reviewing CCWG-Accountability Proposal (Aug 26, 2015)

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DISCLAIMER

ICANN Board of Directors Reviewing CCWG-Accountability Proposal

ICANN Board of Directors Reviewing the CCWG-Accountability Proposal:

"The Board is deeply engaged in reviewing the CCWG-Accountability proposal and has actively participated in the process. Consistent with our commitment to transparency, we would like to share with the Community the steps in our review process.

"Last week, the ICANN Board submitted a preliminary set of comments to the CCWG-Accountability Public Comment forum. The Board remains committed to engaging and working with the CCWG on solutions to address concerns raised in its preliminary set of comments.

"A subset of ICANN Board Members and Staff Members have been meeting in Washington, DC on Tuesday and Wednesday this week to further consider the CCWG proposal and commence a review of an impact analysis from ICANN's external counsel. As part of this meeting, the group held a call together with the CCWG Chairs. For full transparency and to clarify the basis for the review points and comments, ICANN will share the impact analysis and publish it in the CCWG Public Comment forum. The Board welcomes feedback from the CCWG on the impact analysis as it finalizes its responses to the CCWG proposal in the Public Comment forum.

"Next week, consistent with the CCWG request, the Board will have an open teleconference with the CCWG to help inform the Board's development of its comments to be submitted into the Public Comment forum before the close of the comment period on 12 September. Call details will be announced so that anyone in the community may participate.

"Finally, in light of the importance of these discussions, we propose that the CCWG-Accountability hold a public meeting in Los Angeles in late September to continue the dialogue with the Board on the CCWG proposal.

"As part of the ICANN community, we will continue to work constructively to help the CCWG finalize the proposal to achieve a successful IANA Stewardship transition and an ICANN with enhanced accountability. We remain appreciative of the CCWG's valuable work." (emphasis added)

Source: ICANN - ICANN Blog - Author: Steve Crocker, ICANN Board Chairman, 26 Aug 2015


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ICANN Board and CWG address IANA Trademarks and Domain Name

The ICG requests that the CWG [-Stewardship] communicate back to us a proposed resolution to this issue [IANA trademarks and domain name] by July 2 at 23:59 UTC.--ICG (IANA Stewardship Transition Coordination Group), June 19, 2015

The CWG-Stewardship (Names community) and the ICANN Board of Directors have both now responded to the IANA Stewardship Transition Coordination Group (ICG) on the subject of the IANA trademarks and domain name:

The CWG-Stewardship response (included in its entirety at the end of this post) essentially states:

•  ICANN is currently the registrant for the iana.org domain and the owner of the IANA trademarks, and since PTI will be an affiliate of ICANN, the CWG-Stewardship sees no reason PTI would be unable to make use of the domain name and IANA trademark as needed;
• Addressing the domain name registration and trademark issues is beyond the remit of the CWG-Stewardship alone; 
• The CWG-Stewardship proposal does not make a specific proposal with regard to the IANA trademark[s][and domain name] and therefore in "our firm view" is specifically not in conflict with the CRISP or IANAPLAN (IETF) proposals.

The ICANN Board response, via ICANN Board member Wu Kuo-Wei, on the internal ICG mail list:

ICANN currently holds IANA.ORG and the IANA trademark for the benefit of the community and in support of ICANN's performance of the IANA functions. The [ICANN] board recognizes that the community is considering different models for the maintenance of the iana.org domain name and the related trademarks. The board wishes to reassure the community that in the event any of the IANA functions are transferred away from ICANN, appropriate rights to use the intellectual property associated with the IANA functions will be granted without delay to the new operator or to an entity the operational communities unanimously designate. It is important that any new model should maintain the stability of the technical operations of the IANA functions and continued ability to use the intellectual property associated with IANA for all of the operational communities.

The CWG-Stewardship co-chairs have extended an offer to have a call on July 7th to the leaders of the numbers (CRISP) and protocols (IETF/IANAPLAN) communities. The ICG next meets Wednesday, 15 July at 19:00-21:00 UTC.

Background:

In the IANA Stewardship Transition, the issue of the IANA trademarks and domain name iana.org, have become an issue which Domain Mondo previously reported on, see: IANA Transition: IANA Trademark and Domain Name Controversy Erupts (June 19, 2015) and IANA Trademarks and Domain Name, ICANN or IETF Trust? (June 21, 2015).

ICANN is the lawful owner of the IANA trademarks, and registrant of the domain name, which were originally property of the University of Southern California (USC) where Jon Postel worked, but later assigned and transferred  by USC to ICANN after it came into existence and became the "IANA functions operator."

The IANA trademarks and domain name are not mentioned in the RFP issued by the IANA Stewardship Transition Coordination Group (ICG) to the three "operational communities"--names (CWG-Stewardship), numbers (CRISP), protocol parameters (IETF / IANAPLAN). The CRISP and IETF proposals submitted in January do not provide for any substantive change in their respective contractual relationships with ICANN in regard to the IANA functions--each community (numbers and protocols) has its own separate agreement with ICANN which either party can terminate. The protocols (IETF) proposal did not request any change or transfer of the IANA trademarks and domain name. The CRISP plan however included in its proposal the following:

With regards to the IANA trademark and the IANA.ORG domain, it is the expectation of the Internet Number Community that both are associated with the IANA Numbering Services and not with a particular IANA Numbering Services Operator. Identifying an organization that is not the IANA Numbering Services Operator and which will permanently hold these assets will facilitate a smooth transition should another operator (or operators) be selected in the future. It is the preference of the Internet Number Community that the IANA trademark and the IANA.ORG domain name be transferred to an entity independent of the IANA Numbering Services Operator, in order to ensure that these assets are used in a non-discriminatory manner for the benefit of the entire community. From the Internet Number Community’s perspective, the IETF Trust would be an acceptable candidate for this role. The transfer of the IANA trademark and IANA.ORG domain to the IETF Trust will require additional coordination with the other affected communities of the IANA Services, namely, protocol parameters and names. It is the preference of the Internet Number Community that all relevant parties agree to these expectations as part of the transition.

Subsequently, the ICG asked the IETF, sole beneficiary of the IETF Trust, if the Trust would agree to accept transfer of the IANA trademarks and domain name, and the IETF consented.

The CWG-Stewardship response to the ICG via the CWG mail list, July 2, 2015 (emphasis added):

Dear Alissa, Patrik & Mohammed [ICG Co-Chairs]

In response to your request on 19 June, we would like to provide you with additional clarification on the CWG-Stewardship Final Proposal text with regard to the IANA trademark.

In order for PTI to operate the IANA naming function as envisioned by the CWG-Stewardship, PTI assumes it will be able to make use of both the iana.org domain and the IANA trademark in the performance of its work. Because ICANN is currently the registrant for the iana.org domain and the owner of the IANA trademark, and since PTI will be an affiliate of ICANN, the CWG-Stewardship sees no reason PTI would be unable to make use of the domain name and IANA trademark as needed.   

Beyond the expectation described above, addressing the domain name registration and trademark issues is beyond the remit of the CWG-Stewardship alone, particularly in so  far as these may relate to how the use of the iana.org or IANA trademark impact the work of the other two operating communities. The text within the CWG-Stewardship Final Proposal that refers to the trademark is clearly defined as placeholder text (in square brackets) within an initial draft proposed term sheet that does not have the consensus support of the CWG-Stewardship, save for as presented as Annex S in the Final Proposal.

In effect, the Final Proposal does not make a specific proposal with regard to the IANA trademark. Therefore it is our firm view that it is specifically not in conflict with either of the CRISP & IANAPLAN proposals on this subject. To reaffirm this, and to discuss a potential consolidated position, we have extended an offer to the leadership of the other two operational communities for a call on Tuesday, 7 July. We then intend to provide an update for discussion to the CWG-Stewardship at our next meeting on Thursday, 9 July. We are happy to provide you with a subsequent update on the outcomes of both discussions. 

Best wishes,

Lise Fuhr and Jonathan Robinson

Co-Chairs, CWG-Stewardship

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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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