Re: [ga] Board decisions (2)

[Kent Crispin <kent@songbird.com>]

On Sun, Apr 08, 2001 at 12:17:16PM +0200, Siegfried Langenbach wrote:
> Mr Chairman, members of the ICANN board, members of NC, 
> members of constituencies and GA
> 
> A) CHANGE OF BYLAWS
> 
>  it was hard to imagine, but it happened : the board of ICANN used
>  the power they have (according the bylaws) and voted against the
>  recommendations of the DNSO constituencies and community.

According to the bylaws, a "recommendation of the DNSO" requires a
majority vote of the elected members of the names council, and a
"consensus" position of the DNSO requires a 2/3 vote of the members of
the NC.  Nine of the 19 members of the NC voted that they "reluctantly"
favored the old contract.  Nine is less than half the membership of the
NC; this is not a majority, therefore it was not a recommendation of the
DNSO. 

This particular formulation was arrived at, you may recall, in the
context of a debate over the issue of a "weak" NC vs a "strong" NC; this
debate actually revolves around the more fundamental issue of the rights
of a minority vs the power of the majority, an issue that is 
encapsulated in the old saying "democracy is two wolves and a sheep 
voting on what to have for dinner".  Without some kind of safeguards 
for the rights of minority positions, a democracy is simply a tyranny 
of the majority.

There are two common approaches to dealing with this issue: 1) the "Bill
of Rights" approach, where certain rights are simply put beyond the
power of the majority to affect; and the "super majority" (or "rough
consensus") approach, where decisions require much more than a simple 
majority.  (These approaches are not mutually exclusive, of course.)

In our context the "minorities" that were concerned about this were the
registries, both the ccTLDs and NSI.  (Nowadays, the registrars are also
included in that class.) [You may recall that the ccTLD registries
developed the notion of the "producer/consumer" split, which was
proposed in the DNSO formation meetings by Dennis Jennings: the
"producers" (registries/registrars) are numerically a tiny minority
relative to the "consumers", their interests are frequently
antagonistic, and the "producers" don't want to turn control of their
enterprises over to their customers.]

In any case, the result in the bylaws was that, by intention, it should
be relatively hard for the NC to make a recommendation. 

[...]
> snip----------
>  Article V, Section 8. DUTIES OF DIRECTORS
>     Directors shall serve as individuals who have the duty to act in 
> what they reasonably believe are the best interests of the
>     Corporation and not as representatives of the subordinate entity 
> that selected them, their employers, or any other organizations or
>     constituencies. 
> snap---------------
> 
>  Making representatives ( elected boards ) responsible to those who
>  elected them is a fundamental issue IMO ( otherwise they are not
>  representatives in the words meaning ). 

In fact, they are not "representatives", and they cannot legally be so. 
That is a crucial difference between a government and a corporation;
ICANN is a corporation, and its directors, by law, have a fiduciary duty
to the corporation and its purposes, and not to the people who
(s)elected them.  This is an absolutely fundamental distinction.

In the case of ICANN, the purposes of the corporation are to support 
the bests of the Internet community as a whole -- not the interest of 
the DNSO.

>  I can not see any sense in participating in a body 
>  ( constituency ) which is ignored by the board; 

I'm sorry to tell you, but there is absolutely no way of avoiding this
-- unless absolutely everyone agrees (which we know is not the case),
there will always be some group that disagrees with the outcome of a 
decision -- and they will always have the option of saying that they 
were "ignored by the board".

[...]

> B) RESPONSIBILITIES 
> 
>  In addition I fail to see that the BoD followed Article VI, Section 2
>  RESPONSIBILITIES AND POWERS
>  in which the process of taking decisions is described.
> snip--------------------------
> (f) If the Board declines to accept any recommendation of a 
> Supporting Organization,

As described above, in fact there was no recommendation.

[...]

>  Lets have a quick look to the members of BoD:

You ask how the various board members can justify their action.  In my
opinion it is clear that they voted for the result that they really
think is best for the Internet Community, given the information that was
available:

Looking down the list you provided, it is quite clear that none of the
board members are tied to NSI/VRSN.  Moreover, the history of conflicts
between ICANN and NSI is such that it is very hard to imagine that
either the board or the staff of ICANN have any particular love for NSI. 
Nor can we presume that the board and staff are unknowledgable about the
ways of the world, or that they are ignorant of the business realities
that are fundamental to this issue.  Unlike some of those that strongly
oppose the new agreements, none of the board members have any obvious
vested interest in in the outcome.  There is no evidence at all of any
conspiracy among the board members -- in fact, quite the contrary... 
And your letter is adequate proof that there is no particular political
advantage that the board members gain for this vote. 

Consequently, there is no reasonable explanation for the outcome of the 
vote except that the board really thinks this is the best result.

If you disagree with that assessment, I would be interested to know 
your explanation for the outcome.

-- 
Kent Crispin                               "Be good, and you will be
kent@songbird.com                           lonesome." -- Mark Twain
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