[discuss] ICANN governance structure

[John Curran]

On Mar 19, 2014, at 3:20 AM, Mike Roberts <mmr at darwin.ptvy.ca.us> wrote:

> 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 initial Board was no doubt under a wide variety of inputs and constraints;
the elaboration was in no way meant as a judgement of their decisions but simply
to be clear with respect to the actual nature of what was planned and what was
built.

> 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?

All of the above are excellent questions, and definitely worth deep consideration
before we significantly increase the responsibility borne by the present structure.
While in theory nothing changes from a practical manner post NTIA transition, the 
weight on the same Directors of "getting it right" will be even greater, in light of 
the potential global consequences and limited recourse that will then be available.

A misstep with respect to a given gTLD is not the scenario of which I am concerned,
but instead the potential for inexorable shift away from the community's needs in a 
manner which at each step could be viewed as "reasonable judgement" by the Directors 
but eventually leaves the them collectively unaccountable to the global Internet 
community.

> 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.

Very much agreed, and thanks for the insights!
/John

Disclaimer: My views alone.