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

Tue Feb 25 23:48:19 UTC 2014

On Feb 25, 2014, at 6:38 PM, Michel Gauthier <mg at telepresse.com> wrote:

> Mike,
> 
> If I understand you correctly, in a nutshell, the Californian law, entangled into the US law, obliges the ICANN board to act in the best corporation interest.

Yes.  But "best interest of the corporation" includes meeting its purpose of existence and its bylaws.  ICANN is a not for profit organization.  It does not exist to maximize its income or profits.

> , This puts it in competition with the internet community (whatever this community may legally be) since ICANN receives no money from users.

This statement is simply wrong.  It does not follow from anything and is not consistent with the purpose or bylaws of ICANN.

> Therefore; the ICANN mecanism obliges the Board to make money on the members of member of the ICANN community (non-ccTLD registries and registrars) without any consideration for the end users.

This statement is also wrong.  It's a conclusion drawn from an incorrect premise.

> The alibi to get that money is to organise the RSS that is provided pro bono. This RSS making sens because the Internet is supposed to have a single authoritative root file and ccTLDs are on the ICANN root file what justfiies the GAC. An house of cards.

ICANN runs one of the thirteen root server constellations.  ICANN has no say in who runs any of the instances in the other twelve constellations.  In ICANN's own constellation, the L-root, pretty much anyone who signs up to participate is welcome to do so.

> Now, let assume another governance model where a group of three voluntary people (so there is one active if one is sick and the other on vacations) with two PCs, one in the RSS (Bill Manning has documented that a root-server may cost $ 200) and the other with excel and a mail agent. They keep a list of the TLD managers where people can register and resolve domain names for $ 10 per annum. They provide this list to ISPs and to anti-virus providers, to keep people updated and protected. On the excel table they also maintain from time to time a list of IPv6 beigning with the ISO 3166 numeric codes that ccTLD can allocate in their country.

This doesn't begin to deal with the myriad of real issues that have to dealt with.

Steve

> 
> What would actually be the difference in terms of cost, reliability, surety, security, innovation capacity with the present situation?
> This is probably a little ICANNoclast, but frankly this is a question many consider and I never known how to answer.
> 
> M G
> 
> 
> At 18:58 25/02/2014, Mike Roberts wrote:
>> 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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