Feeds

ICANN Special: New legal hurdles (Part 2)

I hear you knocking - but you can't come in.

  • alert
  • submit to reddit

Top three mobile application threats

With Andy Mueller-Maguhn of Germany's Chaos Computer Club ("Welcome ... Hackers!") heading the European nominations for its at-large elections, you'd think ICANN would have enough to worry about.

But a bigger threat to its notorious closed-door sessions could come not from Europe, but from its own backyard. The issue has been raised by Karl Auerbach, who coincidentally leads the US side of nominations for those at-large elections. Auerbach will be familiar to anyone who follows Internet governance: he's both a distinguished hacker with Cisco's advanced research group, and a member of the Californian bar.

According to Auerbach, long-standing issues about ICANN's compliance with Californian law - where it's registered as a nonprofit organisation, could soon boil over into class action suits against the beleaguered Internet quango.

The Californian corporations code has special provisions for three types of nonprofit organisations. But to qualify, they've each got to have something in common: they must be membership organisations. And to qualify as a membership organisation, you should do one of two things. Firstly, you can declare that you have members - and that's something ICANN has refused to do.

Auerbach says repeated requests for ICANN to release the list have been declined: "By my reading of the law, their refusal to make the membership list available is quite improper," he tells us.

But a second qualification for being a membership organisation is to have an election in which people vote directly for board seats "pursuant to a specific provision of the bylaws or articles". Isn't that what ICANN's just done? Not exactly, seems.

Although ICANN describes this as an election in its publicity material, and on its website, it wasn't actually steered through in any bylaw or article. "They don't use the word 'election' but instead use the word 'selection,'" notes Auerbach. "And they didn't create an election in bylaws, but instead passed a resolution. But if you look at the minutes it was clearly 'pursuant'.

So ICANN appears to have weaseled its way out of fulfilling either of its obligations under Californian nonprofit law. Remember that this is a corporation without shareholders as such - but it still has to fulfill obligations and responsibilities that a regular corporations do - which is where the members step in.

"Membership gives us a whole laundry list of rights," says Auerbach. "For example, a corporation is considered to be a legal entity to itself - like a fictitious person. So a corporation can sue its own management - these members or directors can bring a derivative action - and the corporation foots the bill," he notes. "It's an enormously heavy and powerful hammer against misbehaving management."

However the at-large elections could be the clincher. Auerbach sees a class action suit as a real possibility. "They've been trying to evade this reponsibility for a time now" he says. ®

Also in today's special:
ICANN Special: New legal hurdles (Part 1)
ICANN Special: The Triangulations of Esther Dyson

Related stories

Who the hell does WIPO think it is?
Users come last in ICANN elections scramble

Top three mobile application threats

More from The Register

next story
Sorry London, Europe's top tech city is Munich
New 'Atlas of ICT Activity' finds innovation isn't happening at Silicon Roundabout
MtGox chief Karpelès refuses to come to US for g-men's grilling
Bitcoin baron says he needs another lawyer for FinCEN chat
Dropbox defends fantastically badly timed Condoleezza Rice appointment
'Nothing is going to change with Dr. Rice's appointment,' file sharer promises
Audio fans, prepare yourself for the Second Coming ... of Blu-ray
High Fidelity Pure Audio – is this what your ears have been waiting for?
Did a date calculation bug just cost hard-up Co-op Bank £110m?
And just when Brit banking org needs £400m to stay afloat
Zucker punched: Google gobbles Facebook-wooed Titan Aerospace
Up, up and away in my beautiful balloon flying broadband-bot
Apple DOMINATES the Valley, rakes in more profit than Google, HP, Intel, Cisco COMBINED
Cook & Co. also pay more taxes than those four worthies PLUS eBay and Oracle
prev story

Whitepapers

Designing a defence for mobile apps
In this whitepaper learn the various considerations for defending mobile applications; from the mobile application architecture itself to the myriad testing technologies needed to properly assess mobile applications risk.
3 Big data security analytics techniques
Applying these Big Data security analytics techniques can help you make your business safer by detecting attacks early, before significant damage is done.
Five 3D headsets to be won!
We were so impressed by the Durovis Dive headset we’ve asked the company to give some away to Reg readers.
The benefits of software based PBX
Why you should break free from your proprietary PBX and how to leverage your existing server hardware.
Securing web applications made simple and scalable
In this whitepaper learn how automated security testing can provide a simple and scalable way to protect your web applications.