[discuss] Who-and-where vs. what

John Curran jcurran at istaff.org
Wed Sep 3 22:37:26 UTC 2014

On Sep 4, 2014, at 12:34 AM, Mike Roberts <mmr at darwin.ptvy.ca.us> wrote:

> I agree with Andrew that the California corporation complaint deserves burial with “prejudice” as the lawyers say.
> As for the the SO recourse, it suffers from the Pogo problem:  “We have met the enemy and he is us.”
> The Board is heavily populated with SO reps.  That’s your people up there, folks.  Sorry you put them there?  Not enough humming?
> More generally, there is a tendency to refer to ICANN as a disembodied “it.”
> When ICANN takes a policy position, it does so by a Board resolution, on which real people vote, in public, and after debate and discussion.  The rationale for the resolution and the vote are recorded in the Board minutes.   That is hardly disembodied.
> It is also not true that a long time lapse is necessary for recourse.  If the issue is strongly contrary to community views, as in Andrew’s example, then a lawsuit identifying the (legal) error of the Board, and consequent violation of the California public benefit corporation statute, can be filed immediately.  

Only circumstances where the Board actually fails to perform its required duties; to my 
knowledge there is no legal recourse available where the Board simply prefers its own
judgement versus the outcome developed by the community (if I am wrong on this point, 
I would welcome being directed to any references to the contrary.)

You cite the fact that the Board members are placed there by the supporting organizations,
but that only reflects the their process of appointment; once so appointed, they are seated
for their term and act autonomously, i.e. the reference to the appointment process as an 
accountability mechanism is specious, and remains such without a process for removal of 
Board members.   If it were possible for a supermajority of SO's to remove a Board member,
then you might be able to credibly claim that there is some actual recourse, but that isn't 
the case today.

> Setting aside errors of fact and of process, which the Board is likely to correct on its own volition, a major dispute probably has to be based on an allegation that the Board has violated its mission, as set forth in the Bylaws.  FYI, the text of that is below.  
> It is certainly possible that the community might rise up in arms over a matter of major proportions.  Looking at the scope of activity in the global Internet, there is plenty of room for outrage.  More than the outrage occasioned by nudity.  To be fair to ICANN, however, the Board members are held to account for their actions related to the organization’s mission, not all the ills of the net.

It is not apparent that the Board has any accountability to the community with respect to the
decisions they make (short of that very high threshold for failure to perform their legal duty.)
In all other cases, the bylaws of ICANN (which are themselves entirely under control of the 
Board) reserve the powers to the Board, and while it contains numerous accountability and
transparency obligations, from what I can see it appears that in all cases these ultimately 
devolve in an outcome or recommendation for the Board (or Board Governance committee)
to consider.  In the end, if the Board feels that its view of "public interest" is simply superior
to that of the community, legal intervention is meaningless (as it will be viewed as a matter of 
business judgement) and the reconsideration processes come back with recommendations 
to the same Board...  the net result is that the community is left without recourse in cases of 
poor Board judgement or the setting aside of community-developed positions.

I actually have no idea if the Board has failed to exercise good judgement with respect to 
DNS policy and its implementation, but the rather high levels of concern expressed by the
DNS community over Board accountability throughout this process would lead me to believe 
that considering some additional, meaningful recourse mechanisms might be prudent.


Disclaimer: my views alone.  

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