RE: [council] Finalization of "A Unique, Authoritative Root for theDNS"

[Karl Auerbach <karl@cavebear.com>]

On Wed, 11 Jul 2001, Peter de Blanc wrote:

> This is a matter of serious concern... (not the letter, but the
> difference in Karl's story and that of ICANN staff.
>
> I'd like to hear some clarification from ICANN staff and other Board
> members

Louis' note was reasonably accurate but we have to notice that there is
some nuanced use of words by everyone involved.

I think that everyone will agree that the Board of Directors did not have
before it any resolution and that no such resolution was moved, seconded,
and voted upon.

To my mind that formal process way that the Board can make policy.

To my mind, the board does not create policy merely chatting about
something.  (I use the word "chat" here because the talk in question was
informal and not focused on a resolution.  If we had had a formal
"discussion" about the topic of the paper, a matter about which I have a
strong contrary opinion about the conclusions of Stuart's paper, I would
have had participated fully with materials such as I am about to present
to the National Research Council later today.)

But let's get back to how ICANN makes "policy":

Consider that under the bylaws each SO has "the primary responsibility
for developing and recommending substantive policies regarding those
matters falling within their specific responsibilities".

And consider further that the board may override the SO decisions only
upon a finding that doing so is "necessary or appropriate to further the
purposes of the Corporation."

Is there anyone who doubts that Stuart's paper represents a "substantive"
policy about the Domain Name System?  I ask because such a "substantive"
policy about DNS would be placed squarely into the DNSO's area of "primary
responsibility" by ICANN's by-laws.

To my way of thinking, it would be bad enough if the Board were to create
policies through unfocused chats without votes.  It is worse if the board
were to create policy via unfocused chats without votes when doing so
overrides a Supporting Organization (and without the necessary preliminary
finding of that overriding the SO is "necessity or appropriate".)

Louis is right that Stuart as President does have a particularly well
focused right (but not an unlimited right) to speak and act on behalf of
the corporate entity known as ICANN.  Stuart has "executive" power - which
mean that he "executes" Board policy.

The Board of Directors is a collective body - it creates policy only as a
collection.  The individual members of the board speak merely as
individual members.

(And, of course, those who are neither officers nor employees of ICANN do
not speak for the corporation at all.)

As for the limit of the President's right to state ICANN policy - that's
really a very hard question and the answer would involve consideration of
ICANN's Articles of Incorporation, its By-Laws, and the powers that the
Board has delegated, via resolutions, to the President.  In ICANN there is
a special additional consideration, albeit one that is very vague: ICANN's
obligation towards the public and its accountability to the public.  In
theory the Board is more closely linked to the public than are the
corporate officers.

We must also note that the minutes of the board meeting have not yet been
ratified by the board, so they are still open to correction.

And we must also note that the scribe's note merely indicates that even
the fuzzy "consensus" (presuming there was one) was for Stuart to continue
work on his paper and to post it.  It's quite a leap to go from that
concept of "finish-and-post" to the concept of a board decision commanding
the President to "go forth, finish the document, and promulgate it as
internet policy."

As for the underlying topic of Stuart's paper - I do not accept that it
merely repeats "pre-existing" policy.  I've been involved in the Internet
since the early 1970's and if there has been any policy at all it has been
more in keeping with the idea of "go forth and try new ideas (and please
let us know how they worked)" rather than "thou shall not do this".  And I
find the underlying message of Stuart's paper - that people should not
establish naming spaces for their own communities - to be antithetical to
the spirit of innovation and "thinking outside the box" that has made the
Internet the powerful, but still nascent, force that it is.

To that end, this afternoon I will be presenting materials about name
spaces to a group operating under the auspices of the US National Research
Council and one underlying theme of my materials is the limits we ought to
impose and to which I will be suggesting the following:

+ Every person shall be free to use the Internet in any way that is
  privately beneficial without being publicly detrimental.

   - The burden of demonstrating public detriment shall be on those who
     wish to prevent the private use.

       - Such a demonstration shall require clear and convincing evidence
         of public detriment.

   - The public detriment must be of such degree and extent as to justify
     the suppression of the private activity.

(This formulation is based upon the 1956 Hush-A-Phone case which,
arguably, was one of the first cracks in the legendary AT&T hegemony over
the voice telephone system in the United States.)

As for my opinion about whether ICANN ought to be involved in the
competitive root debate:  I think that ICANN ought to tend to its own root
and let others grow (or not) on their own merits.

If ICANN does a good job then I personally feel that other roots would
wither.

For ICANN to go out and proclaim that everyone must use one root is not
much different than if some global body were to require that everyone must
speak and write in but one language.

		--karl--