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

[Rob Courtney]

At 3:30 PM -0700 8/31/01, Kent Crispin wrote:
>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.

I would have thought that the IETF had a rather large professional 
stake in ICANN's activities, since the IETF and ICANN/IANA depend on 
each other for protocol development and implementation as re: the DNS 
and IP addressing systems. Ditto for the other PSO members. Why else 
would the PSO exist at all?

The same goes for the ASO, which by the way I think does interact 
meaningfully with the ICANN Board--see the resolution on RIRs passed 
in Stockholm.

>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?]

Of course it's fair to ask my professional interest--as you know CDT 
promotes online civil liberties and good governance, and spends a lot 
of time on ICANN. But that's a very different kind of "stake" than 
that of, say, a registry operator seeking to run a gTLD, or an RIR 
seeking recognition from the ASO (and by extension from ICANN), or 
even a domain-name warehouser seeking to make a profit off of the 
market.

>  > 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?

A good question. In this case I would say "meant" by the NAIS group 
(of which I was a member), in that it's this concept that underlies a 
significant part of the report. I hope that you'll get a chance to 
read that report and let me know what you think.

>  > 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.

This paragraph is at the heart of my point. ICANN is NOT a purely 
private corporation; its activities are of very broad public impact, 
and therefore it should be accountable to interests broader than 
those of its own Board members. It is a public-private hybrid and 
should be structured as such.

It's true that, once on the Board, a Director enjoys a lot of 
discretion. That's exactly why it's so important that they be 
carefully selected. All nineteen Directors share the same fiduciary 
responsibility, but all nineteen execute that responsibility in 
different ways.

>
>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).

I read this as saying that because external forms of accountability 
are necessary (which I agree with), we should abandon efforts to 
establish internal accountability and balance as well. I don't agree 
with that.

r