[At-Large] ICANN Board Nomination

Christian de Larrinaga cdel at firsthand.net
Sun Sep 12 12:25:01 UTC 2010

On 11 Sep 2010, at 23:49, Karl Auerbach wrote:

> 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 
> practice.

When you question my use of the idea of public trust this judgement is (in part) what I mean. Even if it is not ignored at ICANN the structure today creates uncertainty - out there. 

When I question if the schizophrenic challenge of using a single board structure to manage the corporation and the oversight of the public interest this is what I mean.

When you define ICANN as regulator shaping billions of dollars flowing through the usage of the domain name system. This is what I mean by public interest. (The question as to whether ICANN should be doing any of that regulatory activity rather than what I think was the intention when it was set up of co-ordinating the technical management of the some Internet including some DNS resources is one that has to be continuously asked and pressed on those who go to ICANN meetings. To be fair the board does come up with decisions that draw back from time to time. So not all is lost today.)

> 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.

It is unusual and it is not really working as a matter of global confidence in the board and institutions at ICANN. If board members get paid will this increase or decrease their scope for representing the public interest? 

>From the outside looking in there is no clear separation of "public benefit" from the "corporate benefit" because they are vested in the same person or persons.  This argument does not make them bad people or good one's. It simply reflects the tension they are being put under. 

>> 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 
> stewarded?

Trust :- The purposes for the public benefit of the activities. - IANA function. 
Plus the gorilla in the room with the current ICANN expanded role to include acting as arbiter (not just regulator) of new tld's then this is also a key public interest. ( access to Root Server. )

Stewarding: Not sure what you mean by this. But if you mean co-ordination between the various interested parties then yes. But the big issue here for many years was to have those interested parties co-ordinate through ICANN at all. 

> 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.)

I attended a London consultation on gTLD's last year which was my first direct ICANN contact for about six years. A bunch of senior ICANN staff  new to me were busy justifying a broader scope for ICANN as having always been the intent. One slide was provided with a very selective and flimsy interpretation of a phrase in an old document.  

This mission creep is disappointing and makes the challenge for board members and the supporting organisations all the more difficult if the focus (which I agree should be technical) is to be restored. 

ICANN was not even mentioning v6 for years until a few public spirited engineers turned up at their own expense and said Oy! You might at least mention it is time to start resolving for IPv6. 
> f As you say on the one hand they have to
>> mind the company and on the other they have to mind the publict le
>> 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".

Yes the term has been polluted by the UK's own now much unloved once worshiped New Labour Brown-Blair-Mandelson into something entirely sinister.  Are you a stakeholder? What type of stakeholder? Then join the queue over there. Are you not a stakeholder? Sorry please take this form so you can apply to become one. But I have a problem. Sorry only an approved stakeholder can .... 

> 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 am not following things at ICANN over the last six or so years closely enough to comment other than my visitation to their consultation I mention above. 

> 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 
> functions.
> One statement of those ideas is at 
> http://www.cavebear.com/archive/rw/igf-structural-principles-for-internet-governance.pdf 
> An earlier form is at http://www.cavebear.com/archive/rw/apfi.htm

Thanks for the links 

>> 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 
> Rey".])

Ooops! I am NOT attacking California nor Californian laws. I am simply stating what seems obvious. Paying the board members by ICANN is more likely to draw them towards the corporate interest side of their brains and even if it does not there is no way to tell from the outside. California law does not prohibit paying board members and why should it. But I don't see how it can be in the public benefit interest for ICANN board members (other than those clearly with executive responsibilities) to be paid by ICANN directly. I have not seen an argument that under the current legal framework ICANN inhabits that would clearly square this circle.

> 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 
> shopping.

No that would be silly way to get around the formation of an international treaty organisation :-)

> 		--karl--


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