[discuss] governments and rule of law (was: Possible approaches to solving...)

Mike Roberts mmr at darwin.ptvy.ca.us
Tue Feb 25 17:58:45 UTC 2014

John -

There were, and are, many possible organizational arrangements within which ICANN could carry out its privatization mission.

But unless there is a groundswell to start over, we have to deal with the California based non-profit corporation we have and its necessary adherence to California law and statute, and the body of federal law within which California coexists. As well as its fulfillment of contractual obligations it has entered into.

From time to time, since the beginning, there have been many efforts seeking delegation of the Board's powers and obligations in search of better process and outcomes.  "Better," of course, being a value laden term interpreted in different ways by different folks.   To remember Harry Truman's phrase, "The buck stops" with the Board members.   No matter how many supporting organizations, committees, advisory bodies, panels and so forth are created in search of wisdom, the powers can't be delegated.   The route of appeal from a final Board decision is to a court of competent jurisdiction in California.  It can be used.  Karl Auerbach prevailed in his suit against the Board years ago.

You observe that the views of the Board do not necessarily reflect community consensus on an issue.  Consensus within the Internet community is frequently an evanescent quality that shifts frequently.  ICANN, through its bylaws and otherwise, has been committed to adopting, as best it can, the consensus view on the issues which come before the Board that are within the organization's legitimate (and legal) purview.  But the Board's decision carries legal finality, unless overturned as noted above.  You and I have both witnessed occasions on which the Board's decision was claimed by disaffected community members to not have reflected consensus.  Given the nature of ICANN's mission and role within the Internet, that is likely to always be the case.  But things do have to get done and Board resolutions do have to be voted on.  The Nominating Committee process and other provisions of the Bylaws put individuals of substantial experience and competence on the Board, and we entrust them with representing our interests, even when we may not agree with the outcome. 

Contributions to this list have, with cogency and emotion, called us to a higher standard of aspiration for ICANN performance.  Surely this is a worthwhile goal.  But Jeanette reminds us of the hazards of going beyond the rule of law, where claims of legitimacy can easily abuse the rights of others.  

So let's use what we have.  It's grounded in the rule of law, which despite many imperfections, helps us get along with each other.  Most days, that is.

- Mike

On Feb 25, 2014, at 6:24 AM, John Curran <jcurran at istaff.org> wrote:

> On Feb 24, 2014, at 2:41 PM, Mike Roberts <mmr at darwin.ptvy.ca.us> wrote:
>> Regardless of whether it is constituency positions, or the recommendation of the GNSO Council, these are only some of several voices which the Board must consider in arriving at a consensus ICANN policy position.
> When it comes to policy, shouldn't a "consensus ICANN policy position" would reflect 
> the Internet community's views as best determined by the body within ICANN with the
> primary responsibility for DNS policy development?
> I can only hope that you are using "consensus ICANN policy position" simply to note
> the consensus view within the ICANN Board, and not actually suggesting that the ICANN 
> Board indeed determines that which is the community's _consensus_ via its consideration.  
> Without clarity on whether the Board is supposed to be setting policy versus measuring 
> support of the community with respect to the developed policy versus assessing whether 
> the policy development process was followed, there will never be ICANN accountability, 
> since one cannot meaningfully discuss whether ICANN (i.e. the Board in your view) did 
> its job without first defining that job.
> Thanks!
> /John
> Disclaimer:  My views alone.

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