[discuss] hens and foxes

[DAVID JOHNSON]

It would seem that the hens (us chickens) are the end users (or at least domain name registrants).
But who is playing (or might play) the fox?

It would seem that one thing we know about the netizenry is that they do not like the idea of having their internet identities taken away for copyright infringement (much less "violation of any applicable law")
Yet that is exactly where the current drift of the new gTLD contracts is taking us.

If ICANN had a membership composed mostly of end users, that would not happen.
If there were *any* entity that had a binding promise from ICANN not to regulate content on the net, and if that entity had the means and general incentive to enforce the contract, then such content regulation would be much less likely, no matter what pressures came from the GAC.
Such a contract would not put the new entity (putative "fox") "in charge" of ICANN -- it would merely prevent ICANN from becoming a potential "fox".

Governments claim to be the exclusive spokesmen for the hens.
Those who believe in the multi-stakeholder model believe there are lots of different types of hens and many can speak for themselves (individually in groups).
We do need to protect the henhouse from a potential fox.
But simply trusting the leading hens not to transform, some day, under pressure from governments, into foxes in hens clothing is not a sufficiently stable solution.
Separation of powers assumes real, and constrained, powers on both sides of the equation.
If you don't trust a body composed of all the registries in the world with the small but potent power to hold ICANN to a narrow (non-content regulating) mission, subject to their need to convince a judiciary that those constitutional bounds have been overstepped, then you need to think harder about how to give real power to the hens themselves.