[discuss] ICANN governance structure

Pindar Wong pindar.wong at gmail.com
Wed Mar 19 02:57:34 UTC 2014

Two historical links fwiw





On Wed, Mar 19, 2014 at 10:20 AM, Mike Roberts <mmr at darwin.ptvy.ca.us>wrote:

> John -
> Thanks for your elaboration.  I think that steps and missteps by the ICANN
> Directors in the early days can be instructive as we attempt to fashion a
> broader, more inclusive global base for Internet governance.
> The Board obviously found that the initial Bylaws did not fit the reality
> of what was going on in the DNS and what the community wanted, which, of
> course, was a multitude of voices. They have been revised on numerous
> occasions. With a changing IG environment, how firm vs how flexible should
> the bylaws be?
> The transition from a research agency/academic partnership based on
> collaboration and cooperation to a legalistic environment with antagonistic
> lawyers around every corner resulted in a lot of tough decisions based on
> legal gray areas. E.g., the importing into ICANN policy circles of ongoing
> struggles over copyrights and trademarks.  In today's environment, the
> Board seldom makes a significant move without a lot of legal advice.  Is
> this the way it just has to be?
> The Board discovered almost immediately that Jon's dream of decision
> making "outside" of ICANN had no legal basis.  The Directors were on the
> hook for decisions.  Of course, given ICANN's mission, it needs a lot of
> advice, much of it complex and technical.  What is the best approach to
> structuring advice and taking it?  The lawyers thinking of suing have their
> views, but how do we provide for the Directors doing the right thing, with
> consensus, when the outcome is overturned in litigation. The law requires
> "diligence" by the Directors in taking advice.  Is there a way to reduce
> that to norms that the community can endorse?
> Lawyers will tell you that ICANN and its Directors are accountable to the
> public interest through the functioning of the California corporate statute
> and its remedies for behavior that is found to be unlawful.  Many find this
> unsatisfying.  Is there a better way, still grounded in the rule of law, to
> accomplish the aim of mission appropriate behavior?
> I don't want to belabor the issue. The above points, a non-exhaustive
> list, suggest the complexity of what we are about, and the difficulty of
> reducing theory to workable practice.
> - Mike
> On Mar 18, 2014, at 4:37 PM, John Curran <jcurran at istaff.org> wrote:
> > On Mar 18, 2014, at 11:15 PM, Mike Roberts <mmr at darwin.ptvy.ca.us>
> wrote:
> >
> >> Perhaps a little background would help on this item.
> >
> > Sure...  I was there, but would love to hear your perspective.
> >
> >> In the summer of 1998, there was an effort to socialize - globally -
> the White Paper recommendations about a new non-profit entity to become the
> home for functions previously managed by federal research agencies.  The
> signal to noise ratio of these meetings was not good, for obvious reasons.
>  Jon Postel and his IETF colleagues were alarmed by the prospect of an
> ICANN Board doing wholesale damage to Internet infrastructure as a result
> of ignorance, malevolence, or both.  Joe Sims, Jon's lawyer (pro bono by
> the way), created a variation on the standard corporate committee structure
> in which considerable autonomy was ceded to three "Supporting
> Organizations," covering the three responsibility areas of protocols (PSO),
> numbers (ASO) and names (DNSO).  The Bylaws provided that these SO's would
> be self-created by a community process with experts in those areas and
> would be prima facie the voice of authority on policy, subject to the
> Board's final approval.  Most of the year 1999 was consumed in the process
> of populating the SO's.
> >
> > Fine so far.
> >
> >> We'll never know whether Jon's plan would have succeeded because he
> didn't get to preside over it.  In his absence, the two technical pieces,
> PSO and ASO, felt a lot of discomfort about their implied subservience to
> the USG through ICANN.  Especially since their membership and functions had
> long since become global.  They moved to the "distant" but cooperative
> relationship with ICANN that exists today.
> >
> > Umm... Actually, we went into ICANN Singapore meeting (this was March
> 1999) with
> > both ASO and PSO principals on-board with the formation of ICANN.  ICANN
> had
> > even issued a call for DNSO applicants, and the initial Board had
> reviewed two
> > applications for recognition as the ICANN Domain Name Supporting
> Organization.
> > At the public meeting, the Board indicated that it would not adopt
> either of
> > the two, indicating that the community deserved "the best DNSO possible"
> (to
> > the best of my recollection) and instead outlined some concepts and a
> structure
> > (with constituencies) on which a Domain Name Supporting Organization
> advisory
> > group _within ICANN_ would be based.  When I pointed out that this was
> contrary
> > to initial ICANN Bylaws, the Board took that under advice and in the end
> decided
> > to change the Bylaws to align with the chosen direction.  For reference
> (or to jog
> > the memory of those who were there), feel free to review the "Summary of
> Actions
> > Taken by the ICANN Initial Board of Directors at its Meeting in
> Singapore" -
> > <http://archive.icann.org/en/meetings/singapore/singapore-statement.htm>
> >
> > So, perhaps it would be best to say we don't know whether Jon's plan
> would
> > have succeeded, not because he didn't get to preside over it, but because
> > it underwent substantial change during implementation.  As a result of
> this
> > change, ICANN added DNS policy development _within ICANN_ (terminology
> per the
> > ICANN Board's own statement above) in addition to its overall
> coordination
> > duties and its IANA implementation duties.  Additionally, it meant the
> > service provider community lost an opportunity for self-organization
> with an
> > independent voice and finances of its own, i.e. distinct from that
> gained by
> > participation in the Internet names and numbers coordination
> organization.
> >
> > Given that the original blueprint was to have structural separation for
> > policy development (as you put it above, "considerable autonomy ceded")
> > from ICANN proper, the decision to bring the DNSO within ICANN meant that
> > the Board approved the actual process for DNS policy development,
> approved
> > the policy outputs of the development process, led the implementation of
> > the DNS policies including approval of individual DNS requests... pretty
> > much everything except actual insertion of DNS entries into the root
> zone,
> > and all of this in addition to its original mission of coordination and
> > oversight across the entire Internet identifier ecosystem (much as Jon
> > et al had done as "the IANA".)  The departure from the original plan made
> > it challenging to see how an organization doing all things DNS was also
> > going to provide oversight for itself, not to mention creating some
> > significant long-term organizational repercussions for ICANN given the
> > the growth of DNS policy development compared to its original tasking.
> >
> >> The DNSO/GNSO relationship has seen many adjustments over the years,
> and it is fair to say that substantial numbers of its constituents aren't
> all that happy about the way it functions. There are disparate views on
> whether ICANN's SO's, as such, have been a success or not.  Careful
> scrutiny will be required on constituent structures in any new arrangements.
> >>
> >> In that context, Barry's hub and spoke idea has merit and ought to be
> explored.
> >
> > Indeed.  It might be good to seek common understanding of what principles
> > regarding accountability are desirable, and then consider what
> strengthening
> > and restructuring of ICANN's existing mechanisms are best suited to
> satisfy.
> >
> > FYI,
> > /John
> >
> > Disclaimers: My views alone, particularly regarding historical events.
> Note, however,
> >             that I am the CEO of ARIN, and ARIN's performance of its
> mission for the
> >             community is predicated upon a stable and secure environment
> in which to
> >             operate (including protection the community-based
> multi-stakeholder policy
> >             development model); this obviously drives some of my
> underlying concern
> >             in making sure that ICANN has foundational strength
> sufficient to succeed
> >             for decades to come, including in circumstances sans NTIA
> oversight.
> >
> >
> >
> >
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