[governance] First Draft of Statement on US CommerceDepartment/GAC chair intervention

[Milton Mueller]

Avri:
Thank you for engaging in discussion and for not trying to foreclose
it.
I answer your questions below.

>>> Avri Doria <avri at acm.org> 08/18/05 5:43 PM >>>
>The indication is that this is against the rules.

The GAC/DoC intervention did not follow defined procedures for offering
policy advice. You could call that a break in the rules.

But the more important point is that it represents an arbitrary and
politically motivated deviation from what ICANN said its process would
be. ICANN laid out its TLD RFP, application and approval process in
October 2003. Everybody planned according to those procedures. Now it's
throwing them aside. That's bad. .net was another example (see below) -
apparently you understood the significance of that case.

ICANN probably has the legal authority to not move forward with
finalization of the contract, but you can definitely expect a lawsuit
from ICM Registry if they turn them down on reconsideration, and at the
point there will be a long and interesting dialogue about what rules
were broken or not.

>Also if I understand correctly, and i admit i might not,
>they are not specifically asking for the decision to be rescinded
>just for time before negotiating the contract.  Now, i can see how
>this might amount to the essentially the same thing, but not
>necessarily.

I think you understand that correctly. And I am saying, for civil
society to remain silent during that period is really, really
incomprehensible. We have to make known our concerns.

>While i understand the issue when seen from the perspective of undue

>influence, I know that i generally value flexibilty, and was very
>happy, e.g., when the ICANN Board and Verisign indicated willingness

>to renegotiate elements of a signed contract.  and I know that I want

>the board to be subject to a lot a review before they sign any
contract.

Actually you are reinforcing our point.

The reason the VeriSign contract had to be revisited was that ICANN
very definitely broke its own procedure by not posting the changed
contract to permit public comment. In other words, it denied the
community the opportunity to express it views on the changes in the .net
contract by revising its procedures on the fly. Not to mention the other
procedural parade of horribles documented by the Register and others
regarding how the .net process seemed deliberately skewed to favor
VeriSign.

Now if ICANN had somehow DENIED the GAC an opportunity to participate
in the sTLD approvals by being shifty then I would definitely be on the
side of GAC in this dispute. But in this case the opposite is happening.
GAC wants to suspend the rules because it doesn't like the result and
didn't bother to get engaged when it could.,

>In other words I do worry about sending a self-conflicting message:
>we like it when you reconsider decisions aexcept for when we don't.

I hope you can see now that there is no inconsistency. The revolt
against the VeriSign .net contract was a revolt against shifting
procedures that make it impossible for people to know what the rules are
and how to participate. It is the same issue here.