Re: [discuss] Unofficial minutes June 11 1999 Names Council Meeting

[Kent Crispin <kent@songbird.com>]

On Fri, Jun 18, 1999 at 12:12:29PM -0400, Michael Froomkin - U.Miami School of Law wrote:
> On Fri, 18 Jun 1999, Randy Bush wrote:
> 
> If your superior (if that is in fact the relationship? I am told in anther
> post that I have learning to do about the relationship between Mr.  Sola,
> the Board, and the Names council...) tells you to act illegally, or in
> violation of agreements, any good lawyer will tell you not to.

However, that is not the case.  Mr Sola did not act either illegally 
or in violation of any agreements.

> I cannot say it often enough, but it appears I have not said it clearly
> enough:  If "doing what the board says" is the operative rule that
> everyone engaged in ICANN-related activities should follow at all relevant
> times, then there are no structural constraints on what the board can do
> at any moment.

This issue is worth reviewing.  Can, for example, the Board at this
time cause .firm to be added to the root? No, of course it cannot.  I
believe this illustrates rather conclusively that there are firm
limits on the powers of the Board.  In fact, at this point in time
the Board has essentially no power that is not a direct pass through
to the USG.  ICANN can create and destroy representative structures
at whim, but the only things that matter from the point of view of
the real world are the contracts that ICANN may sign with various
parties.  The Bylaws do not legally speaking constitute an agreement 
with NSI.

In fact, I am not a lawyer, but my understanding of the law
concerning ICANN is that the only legal oversight comes through
California Non-profit corporation law, which allows the Attorney
General of California to intervene in some circumstances.  Other than
that, the Board can modify the bylaws, or ignore them, as it pleases.

This may seem appalling, but in fact it is irrelevant.

> It follows that all the paper guarantees about the limited
> jurisdiction of this body are unreliable.

This is, as I understand it, precisely true.

> It follows that we have a problem.

This, on the other hand, is utterly false, and indicates, I fear, a
severe misunderstanding of what is going on.  The ultimate oversight
in this process, at this point in time, actually comes from the MoU
with the USG.  At a later point the ultimate oversight will come from
the MoUs and contracts with domain name registries and registrars,
Standards Bodies, the 12 or so root server operators, the address
registries, possible government agencies -- that is, the ones that
are actually affected by ICANN.  ICANN has NO other prospective source 
of power. 

Furthermore, by itself it has no legal way to coerce these entities
into signing contracts.  [Of course, the MoU with the USG gives ICANN
some weight in dealing with NSI and the .com/.org/.net registrars,
but ICANN by itself would be utterly powerless in this regard.]

The paper structural guarantees you refer to are a work in progress,
and are nowhere near complete.  But, from a real-world power point of
view they have no significance except to the extent that the various
MoUs and contracts refer to them (directly or indirectly).

[...]

> The fallback position implicit in your comments and explicit in some
> others', that the Board can always rewrite its rules in due course to do
> what it wants so there is an academic cast to this debate, may be
> accurate, but if accurate it is hardly comforting.  To the extent that the
> major check on a hypothetical runaway Board will be the actions of the
> membership, it underlines the importance of getting a membership in place
> before tinkering too much with rules of procedure.

You may fail to realize that, from the perspective of those with 
whom ICANN may sign contracts and MoUs, a runaway membership is at 
least as problematic as a runaway board.  Put yourself in the 
position of a lawyer representing the Address Registries -- would 
you recommend that they give up any autonomy to ICANN?

This is the fundamental flaw, I believe, in the position of those 
who claim all this is about governance.  ICANN is not the ultimate 
source of power in this -- it is those other entities, the ones with 
whom ICANN will sign MoUs and Contracts, who ultimately hold the 
power.  ICANN can have the finest, most representative structure on 
earth, but it is completely moot without the cooperation of those 
entities. 

-- 
Kent Crispin                               "Do good, and you'll be
kent@songbird.com                           lonesome." -- Mark Twain