[discuss] ICANN governance structure

[John Curran]

On Mar 18, 2014, at 8:34 PM, Shatan, Gregory S. <GShatan at ReedSmith.com> wrote:

>> snip
> It's likely that such a Board structure (and ICANN organization whose primary focus was on the coordination and oversight across that system rather than DNS policy development) would be just fine and not require much discussion of external oversight mechanisms...  However, the organization described in the White Paper does not really resemble today's ICANN in the least, given that both DNS policy development is actually done within ICANN (in addition to the DNS policy implementation) rather than in a separate DNS membership body.
>> snip
> 
> This is inaccurate.  Policy development for gTLDs is done within the GNSO, which I do not consider to be "within ICANN," through the PDP process, which is a multistakeholder, bottom-up, consensus-driven process..

Greg - the GNSO is "within ICANN", particularly when contrasted to the original 
intent which was the selection of an external DNS membership organization (i.e. 
a body with its own governance structure and financials) to perform this task. 

Feel free to review the original ICANN Bylaws of Nov 1998, Section 3b, 
<https://www.icann.org/en/about/governance/bylaws/bylaws-23nov98-en.htm>
regarding the application requirements for a DNS supporting organization, 
including submission of _its_ membership requirements, public meeting 
requirements, policy development process, policies to ensure international 
and diverse participation, its own conflict of interest procedures, and 
its methods for funding itself and providing funding for ICANN...

That's what I mean by "separate DNS membership body", and trust me, 
the GNSO does not qualify by those criteria.

In fact, if we were following the original model as proposed, then 
the actual funding of ICANN would actually be via the DNS membership 
organization, which I imagine would provide quite an interesting 
dynamic in and of itself, and might readily preempt accountability 
concerns (at least for the organizations participating in the DNS
membership organization)

> I honestly think this is a really far-fetched scenario.  You should look at how ICANN board members become board members (and stay board members).  Board members are nominated by quite a number of different methods: 8 by the NomCom (cited by Mike Roberts, which itself has members from disparate groups in the ICANN ecosystem and goes through a significant process to find and select potential Board members), 2 from the GNSO, 2 from ccNSO, 1 from ALAC, 2 from ASO.  Nonvoting liaisons from SSAC, RSSAC, and IETF also participate, including on committees. The organizations that nominate these board members look to them to represent their interests on the board.

Yes, I am quite aware of the ICANN Board nomination and election process;
know many of Board members professionally and personally and find them 
to be of remarkably high calibre.  In fact, it's probably my familiarity 
with the election process that leads me to consider the scenario to far
less far-fetched than expected, particularly if played out over a fairly
long timeframe.

>   If we feel like someone is not acting as an appropriate representative, they won't stay on the Board.

Really?  So, if a group of Board members seem to begin acting in alignment, 
taking actions collectively act to move ICANN away from its excellent record 
of serving the community, how exactly would this be thwarted and they be 
removed?  There is no membership, and even if there were it would not matter,
as presently only the directors can remove another director.  Of course, that 
also presumes that the community or supporting organization where aware of 
things such as ICANN Bylaws changes, but at present there is no notice period 
and no requirement to even notify the community at all...

Am I to presume that when you say "they won't stay on the Board", that means 
that it would all be handled after the fact by the erratic directors not being 
reelected back onto the Board?  You are of course presuming that they did not
reach critical mass and change the bylaws in such a way to prevent removal?
(at which point, there literally is no way to regain community control, 
save for finding an act which is plainly and overtly contrary to the public
interest, if any, and trying to pursue the matter in court...)   Am I correct
in saying that is what you mean by "they won't stay on the Board" ?

> I suppose if John Grisham or Dan Brown decided to turn their imaginations to a scenario such as you imagine, they might be able to come up with something interesting, but the thousands of people you would have to fool and hoodwink boggles my lesser imagination.  The idea of the Board consolidating its hold for personal gain is even more far-fetched.  Of course, this is not a utopian ideal made real, either, and there are all kinds of criticisms that can and have been made regarding every aspect of the ICANN Board (and every other aspect of ICANN as well).  Depending on who you ask, the ICANN Board bends over backwards for Registries and/or Registrars, doesn't do nearly enough to safeguard the interests of Registries and/or Registrars; the ICANN Board bends over backwards for business and/or IP interests, doesn't do nearly enough to safeguard the interests of business and/or IP interests; the ICANN Board bends over backwards for civil society, doesn't do nearly enough to safeguard the interests of civil society, etc., etc.  I suppose that if everyone's a little pissed, things are working, more or less.
> 
> I suppose it's possible that hundreds of people are wasting thousands of hours of their lives, often for no compensation (this is not my "day job," and if I thought about "return on investment" I would stop typing right now), as dupes in an elaborate charade.  Based on the percentage of people who believe it, I suppose it's also possible that man walked beside dinosaurs.  As one of those potential "dupes," I'm not buying it.  And as much as my fellow ICANN participants (including those participating here) and I might be in healthy disagreement on matters of policy, process, outcome, etc., I don't think they would disagree with me on this either.  If this type of immense, sustained "con" were true, it would make Jonestown look like a corner lemonade stand.

I did not assert that it is presently happening; my question was whether it is
at risk of happening in the future in a scenario sans the NTIA IANA contract.

> Far-fetched or not, I don't think we need NTIA oversight to protect us from these or other "horribles" proposed on this list.  I think it was nice to have while it was around, but we'll do fine without it.

I actually think we'll do fine without NTIA oversight for years in the future, 
but am far less sanguine about doing well under the present structures for decades 
into the future and hence would prefer that some time is spent considering the 
quality of the present foundation and the attributes of the one we really need.

FYI,
/John

John Curran 
President and CEO
ARIN