Re: [ga] Liability protection for ICANN Volunteers

[Karl Auerbach <karl@CaveBear.com>]

On Mon, 12 May 2003, Joanna Lane wrote:

> .../and one more...
> 5) The ICANN insurance policy includes deductibles. How much is this and who
> pays it?
> 
> > What would actually be useful to know would be:-

What follows is *not* legal advice, these are matters that you should
discuss with your own attorney....

The answer to your questions are *very* complex.

For example, there is a US Federal law that protects truely volunteer
directors of 501(c)(3) but that law may supersede (i.e. it may nullify)  
the California laws that try do similar things but which would actually be
broader (and more protective).

Similarly, some of the California protections are available only if 
insurance is held in certain amounts, i.e. the law can be read to say that 
if the corporation hasn't bothered try to protect the public, the State 
won't bother to protect the corporation.

And certain types of acts simply can not, as a matter of law, be insured 
against.  The law is designed to make the draconian nature of the sword of 
Damocleas all the more draconian by denying the protection of insurance.

Then there are things like the Federal and IRS rules on what are
euphemistically called "intermediate sanctions" - I believe that ICANN has
come dangerously close to these - and these are not cast as penalties but
are a kind of Federal tax that can land on directors and officers of the
corporation at rates of as much as 200%.  Does your "liability" insurance
policy protect against "taxes"?

It is the sheer complexity of these concerns that makes it impossible to 
generalize.  That's why I have suggested (at 
http://www.cavebear.com/cbblog-archives/000017.html ) that anybody who 
wants to become a director of ICANN, or any non-profit for that matter, to 
consult with his/her own personal legal counsel.

The risks are potentially huge - at a meeting at the California Bar about 
the liability issues of directors of non profits, the message clearly 
given was "don't do it, the personal risks are too high, but if you 
must...".

And we have to also remember that ICANN's counsel is counsel for the
corporation, not for each individual board member.  Although I doubt he
would try to mislead anyone on these issues - I've come to appreciate his
judgement - it is important that a person get advice from someone who is
clearly focused on a particular client - you.

The above is *not* legal advice, these are matters that you should discuss 
with your own attorney.

		--karl--


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