Approval process for gtld service changes

[Marc Schneiders]

Harold, you make a great case for the Marxist "Verelendungstheorie":
It must get worse first to get better. Don't try to achieve small
reforms, but let it get really out of hand and then people will
rise. I've always found this rather too bleak. Also the people that
rise might be in this case the ITU. Do we want that?

As to the only game in town analogy: There is the option to try to
change the rules of the game.

It is impossible to draw a firm conclusion from our discussions for
the statement we have to send to the GNSO council. There are simply
different views on the role of ICANN. I do think we should press for a
clearer position of ICANN itself of what role it exactly wants to
fulfil.

I will post a final version of the statement to the list soon. Please,
comment on it quickly, as it has to be send yesterday.

On Mon, 12 Jan 2004, at 21:53 [=GMT-0500], Harold Feld wrote:

> Marc makes many good points regarding the problem of ICANN as a regulator by
> contract.  Often we find ourselves confronted with a shell game.  When consumers
> or others seek vindication of their rights in ICANN, ICANN shrugs and says it is
> not a regulator and that remedies lie with governments or in contract remedies.
>  but the structure of ICANN's contracts allows a willful registry or registrar
> to "hide the ball" by pointng to a different contracting party as responsible
> for the conduct te registrant complains of. Like the game where a ball is hidden
> under one of three cups, and the sly swindler always manages to hide the ball
> under a different cup than the one the one selected, so do ICANN, the
> registries, and the registrars seem to evade the "ball" of responsibility by
> pointing to someone else.
>
> Thus, registries maintain that contracts imposed by ICANN bar them from certain
> courses of action, registrars likewise claim that contract provisions imposed by
> ICANN prevent them from acting, and ICANN says it is not a regulator and that
> any remedy lies in the contracts which it claims are negotiated freely.
>
> Nevertheless, I cannot agree with Marc's conclusion.  Rather like the gambler
> who returns nightly to a crooked game because "it's the only game in town," so
> does Marc propose to return to ICANN for relief beause ICANN "as the only game
> in town" seems to be the only ones who can stop the problems.
>
> I draw the opposite conclusion.  The more registries are left to their own
> devices, the more likely it is that governments will act to protect their own
> citizens.  For example, the registrars seeking to stop WLS in the U.S. district
> court were told that because the WLS went through the ICANN process, they had no
> remedy in court (this is a bit of an oversimplification).
>
> I cannot say how other governments will feel.  But I would hope that if
> governments see that there is _no_ process to protec their citizens, then they
> will act.  by contrast, if it looks like there is a process, then I think
> governments are more likely to defer to ICANN.  Better no process than a broken
> or crooked one, at least in my opinion.
>
> WRT to the reference to consultation in the latest draft -- I believe Milton has
> captured my my thoughts on the matter.  i approve the latest draft.
>
> Harold
>
>
> --
> Harold Feld
> Associate Director
> Media Access Project
>