RE: [ga] Liability protection for ICANN Volunteers

[Joanna Lane <jo-uk@rcn.com>]

Karl Auerbach wrote: Monday, May 12, 2003 10:15 PM
> The above is *not* legal advice, these are matters that you
> should discuss
> with your own attorney.
>
> 		--karl--

Where may an ICANN volunteer point their attorney to review the terms and
conditions of ICANN's current Liability Insurance cover? There is nothing in
the Financial Documents section of the ICANN website where one would expect.

While the Non-Com FAQ does say that ICANN carries liability insurance for
volunteers, and Resolution 98.9 suggests a premium of $60,000 or more would
be available annually, the language in Article XIX does not indicate a
commitment to obtain or maintain that insurance by ICANN, neither does
anything I can find provide specific details of coverage that is envisaged
for, say, members of the GNSO GA or ALAC.

How far down the food chain coverage is to be extended is fuzzy and needs to
be clarified, but I count some 750 individuals would be affected, including
Board Directors, members of the ALAC and the GNSO.

I imagine that those who are paid to participate in ICANN are indemnified by
their employers, but others who participate in a personal capacity, as
users, would have to meet any liability exposure personally. If cover is not
obtained by ICANN, or not sufficiently comprehensive, or includes a
deductible amounting to thousands of dollars per claim, then individuals who
do not enjoy corporate protection cannot reasonably be expected to
participate. This adversely affects users and undermines the fundamental
principals of individual participation in the At Large.

Volunteers from all sectors must know about the risks against which they are
to be indemnified by ICANN *in advance* of joining a Supporting Organization
or Advisory Committee, and more important, they must be advised clearly
about risks that will be excluded for whatever reason, for which they must
carry the risk personally.

The overriding consideration in this matter is the high cost of attorney
fees to mount a defense. In New York State at least, the cost of attorney
fees are not awarded to the winner, so even in a frivolous lawsuit, win or
lose, the defendant has lost. Is it the same in California where one assumes
all cases would be heard?

Although we all think we are reasonable people, there really is no way of
knowing whether or not volunteers will find themselves named individually as
well as collectively in a multi-million dollar lawsuit at some point in the
future. If, say, the petitioner were a large US corporation with an army of
attorneys on retainer, which is the likely character of any potential
adversary, then defense costs alone could prove ruinous for those with a
corporate paymaster to cover the cost, regardless of the outcome of the
case.

This is not a trivial matter that can be taken on trust, so I repeat, where
are the current insurance documents posted for review by prospective At
large volunteers and their legal advisors?

Thanks,
Joanna

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