[At-Large] ICANN Board Nomination

Karl Auerbach karl at cavebear.com
Sat Sep 11 22:49:31 UTC 2010

On 09/11/2010 01:54 PM, Christian de Larrinaga wrote:

> But as you have raised this. California law appears to have the
> intent of creating schizophrenic board members of not for profit
> public benefit corporations.

I do not agree.  There is a belief among many that board members of 
ICANN owe a duty only to the corporation.  That would be true of a 
for-profit in most corporate structures in most countries of the world.

However, the California alters that duty so that the measurement of what 
is in the interest of the corporation must measure the effect on the 
public interest.

That latter aspect is largely forgotten and largely ignored by ICANN in 

It is not an unusual provision and does not create a split personality, 
rather it makes it clear that the corporate interest must be kept in 
alignment with the public interest.

> The problem ICANN faces is not really one of the detail or
> interpretation of California law. It is whether it holds the public
> trust globally.

Again I have to wonder out loud - what's with all this usage of words 
like "trust" and "stewardship"?  In particular with specificity and in 
detail, what is the specific thing that ought to be held in trust or be 

I define ICANN's proper scope in terms of the technical procedure of 
resolving domain name query packets at the upper two tiers of DNS so 
that DNS query packets are efficiently, accurately, and promptly turned 
into DNS reply packets without bias against any query subject (domain 
name) or query client.

By that measure ICANN is doing virtually nothing that is within its 
proper scope.  (IANA, which I distinguish from ICANN, *is* doing some 
work with DNSSEC.)

f As you say on the one hand they have to
 > mind the company and on the other they have to mind the public
 > benefit. Doing this simultaneously is a huge challenge even for what
 > an American might term a mom and pop outfit. But managing this for a
 > body in the eye of global public interest is remarkably ambitious for
 > those people on the board.

> The management of public confidence is one reason why English Charity
> law separates out the trustee (board) from the management board and
> why the trustee board members are not paid. It ensures that there is
> clear air between those who are tasked for managing the purposes of
> the charity (for public benefit) and those tasked by those people to
> manage the organisational functions to satisfy that purpose.

I have doubts about using a charity as something comparable to ICANN.

ICANN, in practice today, is a very heavy regulatory body that decides 
the fate of billions upon billions of dollars of economic benefits.  And 
makes those decisions largely on the basis of the pressure from 
incumbent industrial interests that are defined by ICANN using that 
horrible and anti-democratic word "stakeholder".

ICANN is structurally infirm and it has become a captured regulatory 
body.  As long as we keep thinking of it through rose colored glasses as 
something else we will not be able to change it into something better.

I have made several proposals over the years about how to restructure 
ICANN - most of those proposals follow Louis Sullivan's rule that form 
should follow function.  As such my proposals have redefined ICANN 
around well defined functions, and split ICANN into bodies around those 

One statement of those ideas is at 
  An earlier form is at http://www.cavebear.com/archive/rw/apfi.htm

> It is perhaps also worth noting at this point in my comment that
> there is no reason other than the antecedents of the location of ISI
> -->  Jon Postel -->  IANA for why ICANN should be solely a California
> regulated body.

ICANN has to be somewhere.  Every place has its faults.  California is 
not a bad place - it has its faults* but it is not as bad from the 
public-interest point of view as, for instance, the State of Delaware.

[*Without a doubt California certainly does have its geological faults.]

(I'd also mention for passing interest that California, because of its 
heritage from Spain and Mexico does inherit some Civil Law principles.)

(I wanted ICANN to be in Monterey, California, the former Spanish and 
Mexican capital of California, as I consider that more appropriate as 
the place where internet people gathered way-back-then than I do the 
Bologna creek estuary [renamed by real-estate developers as "Marina del 

I don't know whether people were ever aware of it, but ICANN did float 
plans to splatter itself into several distinct legal organizations in 
several countries with a common board-of-directors ("interlocking 
boards") across all of these.  It would have been a procedural nightmare 
with lots of opportunities for "contracted parties" to do ICANN forum 


More information about the At-Large mailing list