[ncdnhc-discuss] ICANN committee recommends voting restrictions,fewer At-Large di rectors

[Kent Crispin]

On Fri, Aug 31, 2001 at 11:11:37AM -0400, Rob Courtney wrote:
[...]

> As a lurker in this discussion so far this is an interesting 
> question. In my opinion, the DNSO, ASO, and PSO in the way they are 
> constituted share more with each other than any does with the ALM, or 
> even than one AL Director might share with another. Aren't all the 
> SOs designed to aggregate the energies of expert classes with 
> immediate financial or professional stakes in ICANN's activities? 

Absolutely not.  Almost no one in the IETF, or the PSO in general, has
an immediate financial or professional stake in ICANN's activities; you
might think so for the ASO, but since ICANN has essentially no control
over ASO policies, members of the ASO in fact have very little 
financial or professional stake in ICANN's activities.  

The DNSO, of course, is a big exception -- there are many with financial
or professional stakes in ICANN's decisions.  However, there are also
many participants who don't have financial or professional stakes.  [I 
suppose I could ask you what your professional or financial stake is?]

> That's distinct from the ALM, meant to include the large community 
> that experiences the global ramifications of ICANN's activities. We 
> could reasonably expert the financial/professional stakeholder 
> interest to diverge from time to time from the "public" interest.

You say "meant to include...".  Meant by whom?

> If the interests diverge, we fear "capture" by those 
> technical/professional interests.

Suppose that they were captured.  What recourse would you have?  
Suppose that the software industry were captured by the software 
industry.  Who would you go to?  Who would have the power to do 
anything about it?

> Bylaws changes can be made with a two-thirds vote. I think the 9-9-1 
> split is adequate since it prevents either the ALM or the SOs from 
> hammering through ill-advised policies, but also prevents one from 
> making fundamental changes to ICANN without the cooperation of the 
> other.

All of this is secondary.  The FUNDAMENTAL issue is that ICANN is a
CORPORATION, and a corporation is fundamentally different from a
government.  Directors are required by law to serve the interest of the
corporation, not the interest of those that elect them.  Directors have
total control over the corporation.  Except as constrained by law (and
the constraints are not that strong), the directors collectively can
reshape the corporation with great abandon, including modifying their
own powers and job descriptions, how they get selected, and so on.  This
is completely proper for a corporation, since a corporation is created 
by the founders/owners for their own purposes.  If you and I wanted to 
form a corporation to study endangered wildflowers in Colorado, we 
could certainly do it, and, modulo remaining within the very broad 
confines of the law, nobody has the right to tell us how to run the 
corporation, what the corporation should do, or anything -- it's OUR 
corporation. 

The powers, duties, and responsibilities of elected government
officials, on the other hand, have constraints that directors of a
corporation don't have.  They have great difficulty redefining their own
powers and role, for example.

A 2/3 coalition of directors, REGARDLESS of how they were selected, can
take over the corporation.  They can change the corporation completely,
including their powers.  This is all perfectly legal, and with
absolutely no recourse for the "stakeholders" who might have elected
those directors.  There is essentially no accountability for directors,
and there is no way to build it into the corporate model chosen for
ICANN. 

So it doesn't matter how the ICANN directors are selected -- NOBODY can
afford to trust them.  Not any hypothetical AtLarge, not the SOs, not
the registries, not businesses, not domain registrants. 

The only way that ICANN can be effectively controlled is externally,
through three means (that I can think of): competition (should ICANN go
completely crazy, a competitive root would become quite possible),
contracts (the corporation as a whole must abide by its contracts), and
government/laws (anti-trust, corporate law, etc).

-- 
Kent Crispin                               "Be good, and you will be
kent at songbird.com                           lonesome." -- Mark Twain