[discuss] Who-and-where vs. what

Thu Sep 4 00:23:26 UTC 2014

Kieran - 

You and I have both been on the inside of ICANN and are familiar with the foibles of institutionalization...

Bylaw wording under the Directors section states: "Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.”  

This language is very common in corporate bylaws and is intended to diminish lobbying by individual Directors.

Unfortunately, the “best interests of ICANN” creates a presumption in the minds of some that there is a distinction between corporate self-aggrandizement, and pursuit of the organizational mission.  There are days when one wonders about that, especially if the Board has just made a decision that you were on the losing end of.  Ethically, the underlying obligation to stay focused on mission is clear.   In the routine functioning of a large organization, it is sometimes easy to lose sight of that fact.  But I am not sure that a change of legal jurisdiction, per se, would cure bad behavior.

- Mike

On Sep 3, 2014, at 3:45 PM, Kieren McCarthy <kieren at kierenmccarthy.com> wrote:

> Re: being based in California.
> 
> The problem is not so much that ICANN is based in California (although one possible preferable option is Geneva because of the long history of international organization law there).
> 
> The problem is that California law is often used as a way to limit external accountabilities and to drive implementation of policy in a different direction to the one intended by the community. 
> 
> Here are just three examples of where "California law" has been used as a way to ignore or bypass clear community feeling and intent:
> 
> 
> * Board members are often reminded that there are there to serve the best interests of the organization itself and not their representative group. When things get testy they are told it is their legal duty to behave in the corporation's overall best interests.
> 
> * The entire digital archery debacle was due to a specific interpretation of California law - despite the fact that the process was both logically and technologically flawed. (In the end, when the whole idea proved infeasible, the lawyers were told to find a way to make a draw legal and, given that brief, they did.)
> 
> * The argument for an external body that could review Board decisions and force the Board to change any found to be inconsistent with its bylaws was dismissed as being impossible "under California law". I think that one stemmed from the Improving Institutional Confidence consultation back in 2008.
> 
> 
> I don't think the problem is that ICANN is based in California. The problem is that the intricacies and oddities of state law are frequently used (abused?) as a way to bypass clear community feeling.
> 
> There are three possible solutions:
> 
> 1. Move ICANN to another jurisdiction and out of its current legal comfort zone
> 
> 2. Have an external review body with experts in California law that are entitled to review any ICANN decisions made with a reliance on "California law" and decide whether that interpretation is the only one and is correct
> 
> 3. Get new lawyers whose focus is on how to make what the broader ICANN community wants possible, rather than use law as a way of explaining what they want isn't possible (the age old legal department struggle)
> 
> 
> Are these feasible?
> 
> Well, number 1 - a new jurisdiction - has been going on for years and has all sorts of complicated issues associated with it. I don't see it happening this time around. 
> 
> If you want to bone up on this and where it is likely to go - read the 2006 report commissioned by ICANN on this very topic: http://archive.icann.org/en/psc/corell-24aug06.html
> 
> 
> Number 3 - changing out the legal department - is really a corporate decision and also requires a huge cultural shift. It seems unlikely and a little unreasonable. 
> 
> Number 2 is realistic. The community can oblige the Board to state whether any decision has a California law component, and the impact of that component on the overall decision. Then it could be up to a representative group of the ICANN community to decide whether that specific interpretation should be reviewed. If it does, then a group of independent experts in California law can review the decision and report back. 
> 
> 
> My six cents.
> 
> 
> Kieren
> 
> 
> On Wed, Sep 3, 2014 at 2:34 PM, 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.  
> 
> 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.
> 
> - Mike
> 
> “less demonization, more humanization”
> 
> ———————
> 
> The mission of The Internet Corporation for Assigned Names and Numbers ("ICANN") is to coordinate, at the overall level, the global Internet's systems of unique identifiers, and in particular to ensure the stable and secure operation of the Internet's unique identifier systems. In particular, ICANN:
> 
> 1. Coordinates the allocation and assignment of the three sets of unique identifiers for the Internet, which are
> 
> a. Domain names (forming a system referred to as "DNS");
> 
> b. Internet protocol ("IP") addresses and autonomous system ("AS") numbers; and
> 
> c. Protocol port and parameter numbers.
> 
> 2. Coordinates the operation and evolution of the DNS root name server system.
> 
> 3. Coordinates policy development reasonably and appropriately related to these technical functions.
> 
> <https://www.icann.org/resources/pages/bylaws-2012-02-25-en#I>
> 
> ----------------
> 
> 
> 
> On Sep 3, 2014, at 5:21 AM, Andrew Sullivan <ajs at anvilwalrusden.com> wrote:
> 
>> 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,
>> 
>> A
>> 
>> -- 
>> Andrew Sullivan
>> ajs at anvilwalrusden.com
>> 
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