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

Tue Feb 25 18:42:37 UTC 2014

On Feb 25, 2014, at 9:58 AM, Mike Roberts <mmr at darwin.ptvy.ca.us> wrote:

> 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.

Indeed...  In fact, it should be highlighted that the very ability of the Board 
to enter into a contract may constrain its future ability to exercise its powers 
in an unencumbered fashion at some future time, and presumably such agreements are 
made because they further the mission of the corporation, despite the resulting
restrictions on the Board and/or organization.

> 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 powers cannot be delegated, but that is actually irrelevant.  The Board can
enter into agreements with outside bodies which constrain its actions (as you note
above), and furthermore the Board can also choose not to exercise its omnipotent 
powers with tasks delegated to internal bodies except if it is clear to the Board 
that the result requires intervention.  In other words, rather than indicating that 
the Board is "doing the community bidding" when it shapes some final policy outcome, 
it would be far better (when a community-developed outcome can not be adopted) if the 
Board would plainly state how it fails to complies with corporate documents, or did 
not follow fair and open processes in development or fails to further the purposes 
of ICANN; and then allow the community-anchored policy development organizations 
consider this feedback and iterate accordingly.

Such an approach should not be unfamiliar, as you can find the this model for self-
restraint in the Board's exercise of power specified in the original November 1998 
ICANN Bylaws, in the section which covers interaction with the external-by-design
"Supporting Organizations" - <http://www.icann.org/en/about/governance/bylaws/bylaws-06nov98-en.htm>

Thanks,
/John

Disclaimer: My views alone.