[discuss] Who-and-where vs. what

Andrew Sullivan ajs at anvilwalrusden.com
Wed Sep 3 12:21:47 UTC 2014

Dear colleagues,

I'm sitting in an IGF session, "ICANN Globalization in an Evolving IG
Ecosystem."  Someone said something that was specific to the ICANN
accountability issues, but that I think is a theme that keeps
reasserting itself in some of the discussions around governance.  This
seemed the best list to use to make this observation.

The remark that got up my nose was that there's still "an issue" with
ICANN being incorporated in California.  I've heard this repeatedly,
but I am not sure I think it's true.

It seems to me that if people were completely satisfied with ICANN's
actions, then nobody would care where it was incorporated.  Yes, there
are some implications of US law that bother a lot of people, but in
point of fact there needs to be some legal framework under which the
corporation operates (or else it would be completely impossible to
control it at all).  If people trusted ICANN to do the right thing
even most of (never mind all of) the time, then California would be as
good as anywhere to be incorporated.  By the same token, in the
absence of such trust, I do not see any reason to suppose that any
particular legal regime would help.

This made me think of something I've noticed more than once in several
of the discussions around ICANN and around the NTIA transition.  That
is a concern about the who and where of an organization -- who makes
it up? who's in charge? where is it located? where is the source of
authority?  -- rather than the concern about what results the
organization produces.  Implicit in this approach is the idea that, if
the wrong people are in charge or the organization is located in the
wrong place, that will produce the wrong outcomes; and coversely.  To
me, however, the goal we ought to prefer is one in which the right
outcomes can be produced _even if_ the people involved would like to
do the wrong thing.  For instance, suppose that ICANN were arranged
such that any Board decision could be overruled, and any member could
be removed, by a majority vote of all the SOs (note: this is not
originally my idea, and I'm using it just as a thought experiment).
That would be a much greater check on action than the current
naming-and-shaming answer we have today; for a bad decision today has
considerable time (effectively, until the changeover of the board) to
settle in and become established practice.  Under the hypothetical new
regime, both bonehead and malicious decisions could be cut off quickly
if they were truly outrageous.  _That's_ what we want, I think, and it
may not need us to answer "who?" or "where?" in order to get the
desired outcome.

Best regards,


Andrew Sullivan
ajs at anvilwalrusden.com

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