[discuss] Who-and-where vs. what

Kieren McCarthy kieren at kierenmccarthy.com
Thu Sep 4 15:02:15 UTC 2014

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

> 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.

Yes, indeed.

Now, you could argue that a change to the bylaws that incorporated the
words "public interest" in the boilerplate wording could help resolve this
particular issue.

But then those words are already all over the ICANN bylaws and the only
real discussion that is had about "public interest" is that it is,
supposedly, impossible to define.

This meta conversation appears to preclude actual serious consideration of
public interest in key decisions, or, at least the raising of public
interest considerations above the more narrow "self-aggrandizement" that
you identify, Mike.

But back to the three examples I gave - of which bylaws and "California
law" was just one. I picked those three for a reason (there are many

This one - the first - was an indicator of culture/pressure brought to bear

The other two were: digital archery, and rejection of an external body that
could force the Board to change a decision found not to be in accordance
with its bylaws.

The digital archery one demonstrated how "California law" was the main
driver behind a very bad yet very important implementation for how new
gTLDs would be introduced.

The community and Board were seemingly unable to prevent a really bad idea
from being implemented because of a legal (and ultimately worthless)
concern. The idea was actually implemented remember - but was so flawed
that it had to be ditched. California law and its internal interpretation
trumped everything, even commonsense.

The third example is critical because it demonstrates how, even when there
was a lengthy community process that reached a conclusion, that conclusion
was thrown out because of an internal interpretation of California law.

There was no real effort to find a way to introduce what the community
wanted. Lawyers didn't sit around figuring out how to make it work - they
just ditched the whole idea. And then subsequent questions about what was
being instead were simply stonewalled until everyone gave up because there
was yet another discussion about what changes needed to be made.

If that doesn't concern people who about to embark on yet another
accountability effort then I don't know what will.

What's to stop history repeating itself? Again.


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