Re: [ga] Re: ICANN before the US Senate...

[Karl Auerbach <karl@xxxxxxxxxxxx>]

On Thu, 7 Aug 2003, Eric Dierker wrote:

> >> Seperation sounds great Karl but that ain't in the green and white
> >> papers.
> > 
> > The green and white papers are not binding.  If they were, ICANN would
> > be obligated to have a real public component.
> > 
> >Karl, if representaions to the IRS, and department of commerce and the 
> California Secratary of State and DBAs are not binding

ICANN's 501(c)(3) status is tenuous.  My own sense is that a strongly made 
argument to the IRS would cause some questions to be asked whether ICANN 
really fits into the 501 pigeonholes.

ICANN is I believe also at substantial risk of penalties from the IRS -
perhaps cumulating to the tune of several millions of dollars - under the
US tax code's "intermediate sanctions" provisions.  These penalties land
directly on directors and managers, past and present, and, since they are
in the form of a tax, are rather likely to not be covered by insurance.  
Stuart Lynn took the most amazing head-in-sand "it won't exist if I spend
$30,000 to buy a report based on incorrect data to say that it does not
exist" attitude.

As for things said to California - that amounts to pretty much a sum total
of zip.  ICANN has said in its corporate filings nothing more than the
bald conclusory statement that it is a non-profit/public-benefit
corporation under California law.  And every year there's a little
half-page form with a couple of checkboxes that has to be sent in.

Right now California's political situation is distracting attention.  
However, there are California legislators with whom I have had contact who
are concerned about the existance of corporate entities that use the
state's non-profit (i.e. not paying taxes to reduce the state deficit)  
public-benefit corporation laws to create corporations that neither
benefit the public nor even really let the public in the door.

ICANN, being a corporation, does not file DBAs (Doing Business As) -
that's because under the concept of corporations law, a corporation simply
"is", it's a legal fiction that is accorded many of the rights and
privileges accorded to a living person.  I believe that the choice, and it
was a choice, to accord "civil rights" to corporate entities was one of
the major legal errors of the 19th and 20th centuries.

> ICANN is obligated to have a real public component and you know it.

I know it, you know it, we all know it.  But we have to look to the legal
realities to figure out what things can be used as levers and which can
not.  It will cost time and money to pull those levers - and I don't see a
lot of ICANN-critical folks out there wandering the hallways in DC or
visiting their congress critters to express their disgust at ICANN's ways.  
I see quite the contrary - those who have found ICANN to be a boon to
their businesses are quite active and use highly skilled (and frequently
quite honorable and personable) people to maintain close contact in DC
with administrative and legislative staffs and principals.

		--karl--