It’s interesting how ICANN’s internal meetings are run. This informality is in fact illegal. The by-laws are a legally binding document upon a corporation.

I have had fairly extensive experience with and exposure to (though I am NOT a lawyer) non-profit corporate governance in the US.

It is clear that ICANN is opening up themselves for a lawsuit, and given the millions and perhaps billions of dollars involved in their decisions, if they continue to run their meetings in this manner, they will lose, particularly in California.

Now you see us, now you don’t: ICANN goes transparent
By Burke Hansen in San Juan
Published Saturday 30th June 2007 13:02 GMT

ICANN San Juan 2007 The Wednesday ICANN-arama wrapped up with a session covering ICANN’s ongoing efforts to improve its management and accountability practices: the “Accountability and transparency management operating principles” workshop.

Maybe the title itself had something to do with it, but this very lightly attended workshop had the ring to it of one of those obscure sessions where useful information tends to get swept out of sight and mind. Much of the discussion revolved around making the ICANN board actually accountable to someone other than, well, the ICANN board. There are procedures already in place at ICANN that allow appeals of board decisions, but those procedural appeals always seem to circulate back to the board itself.

Milton Mueller contrasted ICANN’s structure with that of the American Cancer Society, which has a national council that decisions may be taken up with. Mueller also recommended bringing back the short-lived direct election of board members, a suggestion we endorse here at El Reg, too. We believe there are enough clever people at ICANN to work out the technical kinks of direct elections – after all, we’ve given them the authority to run the entire internet.

Of course, ICANN is a California nonprofit corporation, and as such is bound by California law, which means that public or even private attorney general actions are a possibility. However, litigation is never the ideal solution and ICANN is wise to consider some institutional options before someone takes matters into their own hands.

……

Paul Levins, vice president of corporate affairs and moderator of this session, let slip, however, that under Chairman Vint Cerf, formal voting requirements have frequently been relaxed, and the opinions of non-voting members have been given equal weight in the decision-making process. This is clearly a violation of the corporate by laws and clearly not a model for transparent management. That may be a way to encourage wider input and greater consensus, but that also means that non-voting members have more of a say than widely believed, which hardly encourages transparency.

If the board wants those other parties to have a stronger voice, they should amend the bylaws, rather than just ignoring them when convenient. It also creates an unwieldy de facto voting board of 21 members – hardly a model of efficiency. This is also why there is lingering public paranoia about the role the government affairs committee (GAC)-and particularly the US Department of Commerce (DOC)- in the decision-making process, since GAC meetings are typically closed to the public and the GAC is one of these “non-voting” members.

…

Emphasis mine. They are admitting breaking the law here.