RE: [ga] serious participation in ICANN processes

["JandL" <jandl@jandl.com>]

Jefsey:

I can understand your frustration with all the discussions about 
California Law and the APA.  However, since ICANN is, in fact, a US 
corporation that has its incorporation in California, it is extremely 
relevant.  As a matter of fact, it is this very fact that has caused 
so much consternation.  It is just a small CA corporation and is 
acting like a world governing body.  The CA law is quite strict, 
actually, regarding membership for this type of entity and that could 
actually be important for anyone who desires to pursue it.  
International law would have no control in this case.

As for the APA, that is also a US situation.  Please consider that it 
was precisely to avoid the APA that ICANN was established.  This 
was stated at the Congressional hearing on February 8, by 
Representative Pickering.  Since the Department of Commerce is 
actually the authority for com/net/org and the USG rootzone, it is 
especially crucial that they be brought to task under the APA.

I has always been my contention that the DoC should not be able 
to wriggle out of adhering to the APA, yet they claim it does not 
apply to these issues.

If this list were to ignore the fact that both US federal and state 
laws apply to ICANN and DoC and that these entities must be held 
to the laws that govern them, we may as well end the discussions.  
It is the agreement (MOU) between ICANN and the DoC that create 
the framework under which they operate.  

I would also agree, however, that aside from any legal issues 
surrounding ICANN/Doc, this list is for those who are trying to work 
within the framework of the ICANN bylaws and are attempting 
valiantly to have a voice.  It's all relevant, Jefsey, IMO.

Leah



> Ladies and Gentlemen,
> I am sorry to say that this discussion is of absolute no interest.
> Either iCANN has international pretence and is and behaves as such, or
> is a private interest californian corporation and is of no interest to
> us.
> 
> Is anyone serious considering if a NY juge could veto the Gulf war,
> interfere with the Anti-Nuclear Treaty or order a stop to the
> Afghanistan conflict because the UN are located in Mahattan ?
> 
> I am truely puzzled by the subjects of this GA ML. We currently
> have a major change in the very nature of the Internet and of its
> control. This will probably lead to a fossilized Internet with a
> direct control of the SLDs and huge attempts to privacy in various
> countries (China, USA, Italy, UK, may be France, ..) the whole thing
> taking advantage/helping the ICANN/Staff private take over. This take
> over ultimately leading to anti-trust action which may result in a
> full governmental sterilization of the net.
> 
> And we discuss the way to add 100 votes together, the bags of
> @large enveloppes, the californian law, the US administrative
> procedures, the unpolitness of Mr. Crocker ... I wonder if this is
> appropriate?
> 
> Jefsey
> 
> 
> 
> On 01:24 04/04/01, Roeland Meyer said:
> >See Karl's answer below;
> >
> > > From: 'Kent Crispin' [mailto:kent@songbird.com]
> > > Sent: Tuesday, April 03, 2001 3:17 PM
> > >
> > > On Tue, Apr 03, 2001 at 04:23:43PM -0400, Sotiropoulos wrote:
> > > > Kent, I've copied a message I had prepared in response to
> > > this same argument
> > > > of yours on the WG-Review on Jan. 31st
> > > >
> > > (http://www.dnso.org/wgroups/wg-review/Arc02/msg02292.html),
> > > for the benefit
> > > > of all on the GA List.  It went like this:
> > > >
> > > > "Ok Kent, I've read it a few times over and also gone to the
> > > > CNPBCL Code.
> > >
> > > [...]
> > >
> > > Since, however, the @Large is able to vote in Directors of the
> > > Board, does it not follow that such members are actually acting
> > > according to the CNPBCL definition of "members" (i.e.  "5056.  (a)
> > > "Member" means 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...) ??? I'd appreciate a
> > > response."
> > >
> > > No, it doesn't mean that.
> > >
> > > To reiterate: 1) Contrary to the statement that started this
> > > thread, a CNPBCL is not required to have members; 2) The ICANN
> > > bylaws make it very clear that the "Members" defined in the bylaws
> > > do not qualify as members under the CNPBCL code.  Karl Auerbach
> > > has a mischievous interpretation of those laws, which you have
> > > picked up and will defend to the death, but the people who crafted
> > > those bylaws knew what they were doing.
> > >
> > > I have been told that Karl bases his creative reading on a
> > > fundamental misunderstanding (deliberate or not) of the legal view
> > > of whose benefit the bylaws are written for -- the bylaws are
> > > written for the benefit of the corporation; they are not written
> > > for the benefit of outside parties.  If the corporation writes
> > > bylaws that state that "we are going to allow people to help us
> > > select directors, but that they are not to be considered members
> > > as defined in the CNPBL", then that's how things are.
> > >
> > > So, bottom line, ICANN does not have members (as defined by the
> > > CNPBCL), and it is under no legal obligation to have them.  There
> > > really is no question about this.
> >
> >Yes there is ... and I'd rather take the word of a member of the
> >California State BAR over yours. I note that you have made no IANAL
> >disclaimers, are you pretending to be a lawyer?
> >
> >Thanks to Karl Auerbach for the following (posted with permission);
> >
> > > -----Original Message-----
> > > From: Karl Auerbach [mailto:karl@cavebear.com]
> > > Sent: Tuesday, April 03, 2001 1:26 PM
> > >
> > > The person who posted gave only part of the story and as such
> > > comes to an incomplete conclusion.
> > >
> > > Sure the California statutes do allow non-membership corporations.
> > >
> > > But membership may arise from either a positive explicit
> > > declaration in
> > > the Corporation's organic documents (Articles of Incorporation or
> > > the By-Laws) *OR* by the indirect consequences of procedures
> > > written into those same documents.
> > >
> > > And one of those procedures through which a corporation comes to
> > > have members is by having elections for directors pursuant to
> > > provision in the Articles or Bylaws. (Section 5056 of the
> > > California Corporations Code.)
> > >
> > >   5056. (a) "Member" means 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... "Member"
> > >   also means any person who is designated in the articles or
> > >   bylaws as a member and, pursuant to a specific provision of a
> > >   corporation's articles or bylaws, has the right to vote on
> > >   changes to the articles or bylaws.
> > >
> > > And under that section those who get the power to vote thereby
> > > become members.
> > >
> > > (One can argue about the effectiveness of ICANN's use of an
> > > resolution to try to avoid the "pursuant to a specific provision"
> > > part of the statute.)
> > >
> > > A corporation can't override the statute and say that that
> > > that implict declaration of membership (i.e. the election of
> > > directors) doesn't cause membership to arise.
> > >
> > > See: http://www.cavebear.com/icann-board/platform.htm#full-members
> > >
> > > The provision that Crispin quoted is merely a catchall that
> > > serves to say that if nothing in the Articles or Bylaws either
> > > explicitly or implicitly causes a membership to arise, then the
> > > corporation is still legal.
> > >
> > > There is no iconsistency between section 5310 and 5056. The
> > > presence of a section 5056 election means that a corporation
> > > has not effectively provided "in its articles that it shall
> > > have no members."
> > >
> > > A draftsman can create a set of corporate documents, such as
> > > ICANN's, in which there is both a declaration of no-membership and
> > > provisions that do create membership.  But that is just slopply
> > > lawyering.
> > >
> > > Notice that the first sentence of section 5310(a) merely allows a
> > > corporations to *state* in its articles or bylaws that it shall
> > > have no members.  But such a provision is, in and of itself,
> > > nothing more than a bald statement.  The second sentence of
> > > 5310(a) is the real meat - according to that sentence it is only
> > > the *absence* of any membership-causing provision, such as 5056,
> > > anywhere in the articles or bylaws that causes there to be no
> > > membership.
> > >
> > >               --karl--
> >--
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