Re: [ga] serious participation in ICANN processes

[Thomas Roessler <roessler@does-not-exist.org>]

On 2001-04-03 15:50:39 -0400, Sotiropoulos wrote:

> Just because ICANN wishes to say the sky is pink and blue
> pinstripe, doesn't mean it's not blue... just take a look out the
> window.

The last time I looked at ICANN's site, there was no claim that the
sky is pink and blue pinstripe.

> Must we rehash this?  

Apparently.

> Although the Bylaws may contend the ICANN has no members, the
> FACT that the ATLARGE puts DIRECTORS on the BOARD, who may
> participate in and qualify for quorum requirements, and thereby
> influence the allocation and distribution of Corporation assets,
> speaks for itself... ICANN does in FACT have members.

Please, have a look at the staff's analysis from Aug 11, 1999, under
<http://www.icann.org/santiago/membership-analysis.htm>.  Let me
quote:

	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).

Now, let's look at what's in the Bylaws on this topic:

	ARTICLE II:  MEMBERSHIP
	
	Section 1. GENERAL
	
	The Coropration shall not have members as defined in the
	CNPBLCL. [...]
	
	Section 2. PLAN FOR SELECTION OF FIVE "AT LARGE" DIRECTORS
	IN THE YEAR 2000
	
	Five persons shall be nominated and selected by no later
	than November 1, 2000, to become "At Large" Directors
	according to a selection plan adopted by the Board.  They
	shall be seated at the conclusion of the Annual Meeting of
	the Corporation in 2000.

The Articles of the Corporation don't say anything relevant, either.

In Yokohama, resultions 00.66+ contained the actual "selection
plan".  When there's one thing which is pretty clear about this,
it's that there is no SPECIFIC PROVISION in the ARTICLES OR BYLAWS
which gave at large members the right to vote on the board.  They
had this privilege solely on the ground of a board decision, which
could just as well have given that right to the UN general assembly.

Now, since Roeland mentioned it, let's look at Karl Auerbach's
interpretation of this:

	This so-called "selection plan adopted by Board resolution"
	is nothing less than the election in which we are all
	participating right now.

Nobody doubts this.

	By avoiding even the use of the word "election" (and using
	"selection" instead) the ICANN side-show artists are
	attempting to claim that there isn't even any voting going
	on - and you will note that the California statute depends
	on people having a "right to vote".
	
	One has to be pretty silly, or stupid, not to recognize that
	there is, in fact, an election going on.  But ICANN is
	depending on blind acceptance of their artifice.
	
	By placing the definition of the selection/election process
	into a "plan adopted by Board resolution" ICANN is trying to
	claim that the selection/election is not made "pursuant to a
	specific provision of a corporation's articles or bylaws".

As far as I read the code, it's not talking about an election which
is made pursuant to a specific provision, but about the right to
vote which has been given pursuant to such a provision.  But ok,
this may be due to the fact that I'm not a native speaker - neither
of English, nor of American legalese.

	This is a legal shell game that has no purpose except to
	evade the clear intent of the California law and to
	eviscerate the rights accorded to people who are in all
	senses of the word, "members" of ICANN.

	It is a shell game that should be stopped.

Now, if the clear intent of the California law was that anyone who's
asked by board resolution to vote for board seats is a member in the
sense of the California code, why did the legislation put in that
note on a SPECIFIC PROVISION?


I'm sorry, but I don't buy Karl's argument here, since it boils down
to very little: His opinion on the INTENT of the California law, as
opposed to it's WORDS.  Bad enough, he doesn't even argue this
opinion, but just surrounds it with a hole lot of polemics.  Sorry,
folks, this isn't an analysis - it's campaigning, and polemics.
ICANN is indeed using this law in a creative way - but I actually
believe it does so in a legally effective way.

BTW, I find it interesting that not a single US lawyer has sued for
his membership rights so far.  Why not, if Karl's arguments are
clear, and there is no doubt in their correctness?

Anyway, I'd suggest we postpone this debate until we have a court's
opinion on this.


-- 
Thomas Roessler			    <roessler@does-not-exist.org>
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