Re: [ga] MOTION: Request for a GA resolution on an IDN holders' constituency (IC)

["William S. Lovell" <wsl@cerebalaw.com>]

Andrew:

I would not disagree with a word you say.  I've received several comments
to the effect that "ICANN follows the $$$." Well, there are at least two
ways to stop that -- maybe actually three":

1) The first of these is by removal of a Director (from the ICANN bylaws):
Section 11. REMOVAL OF A DIRECTOR

    Any Director may be removed following notice and a three-fourths (3/4)
majority vote of all members of the Board; provided, however,
    that the Director who is the subject of the removal action shall not be
entitled to vote on such an action or be counted as a member of the
    Board when calculating the required three-fourths (3/4) vote; and provided
further, that each vote to remove a Director shall be a
    separate vote on the sole question of the removal of that particular
Director. A Director selected by a Supporting Organization can be
    recommended for removal by that Supporting Organization through procedures
adopted by that Supporting Organization and ratified by
    the Board. Upon such recommendation for removal, the Board shall vote to
remove such Director. If the Board, without a
    recommendation by the Supporting Organization, seeks to remove more than one
Director selected by a Supporting Organization within
    a four-month period, the Board must show reasonable cause for its action.

Or at least a Director of the particular supporting organization, e.g., the
DNSO. That is a long term process, not likely to have
much effect on a current issue that some Director seems to want to treat in his
or her own way contrary to what the SO had
indicated it wishes.

2) The second is by amendment to the ICANN Bylaws:

    (e) Subject to the provisions of Article III, Section 3, the Board shall
accept the recommendations of a Supporting Organization if the
    Board finds that the recommended policy (1) furthers the purposes of, and is
in the best interest of, the Corporation; (2) is consistent with
    the Articles and Bylaws; (3) was arrived at through fair and open processes
(including participation by representatives of other
    Supporting Organizations if requested); and (4) is not reasonably opposed by
any other Supporting Organization. No recommendation
    of a Supporting Organization shall be adopted unless the votes in favor of
adoption would be sufficient for adoption by the Board without
    taking account of either the Directors selected by the Supporting
Organization or their votes.

The amendment would be by deletion of the item "(1) furthers the purposes of,
and is in the best interest of, the Corporation"  Too often,
a corporation becomes the Board which becomes the Directors; the Directors
become the Board which becomes the corporation, and
a provision like (1) comes to be read as "being in the best interest of the
Directors."  The way to prevent that from happening is simply
to remove that loophole. Or better yet, re-write it the way it should have been
written in the first place: "furthers the purposes of, and
is in the best interest of, the Internet and its users.'  The Internet is not
ICANN's toy.

2) The third relates specifically to the question of whether ICANN and its
policies shall follow the rule of reason or shall follow the $$$.
The surest cure for that is the minority report, which has its counterpart in
the law in the dissenting opinion.  With a minority report being
permitted in the "recommendations of a Supporting Organization," those drafting
those recommendations would be required to "look over
their shoulders" and ensure that their position was in fact the best route to
take; it is very often in the law that dissenting opinions become
the actual law of the land the next time the issue comes up, and when the Board
looks at both the recommendation and the accompanying
minority report, it, too, will need to look over its shoulders and realize that
there are lots of people out their ready to in their hides to the
wall if they don't do the right thing.

And for the longest time, the Board has not:

Section 3. THE CONSTITUENCIES

    (a) Each Constituency shall self-organize, and shall determine its own
criteria for participation, except that no individual or entity shall be
    excluded from participation in a Constituency merely because of
participation in another Constituency, and constituencies shall operate
    to the maximum extent feasible in an open and transparent manner and
consistent with procedures designed to ensure fairness. The
    Board shall recognize a Constituency (including the initial Constituencies
described in (b) below) by a majority vote, whereby the
    Constituency shall be deemed to exist for purposes of these Bylaws.

    (b) The initial Constituencies shall consist of (in alphabetical order):

    1. ccTLD registries;

    2. commercial and business entities;

    3. gTLD registries;

    4. ISP and connectivity providers;

    5. non-commercial domain name holders;

    6. registrars; and

    7. trademark, other intellectual property and anti-counterfeiting interests.

In both this document (under item 5, but as I said before there are no clear
definitions of these constituencies)
and in the recent requirements that individuals be given a voice, nothing has
happened.  Several people have
kindly provided me with the URLs of several constituencies (e.g., the IPC) and
other groups not "recognized"
(e.g., the IDNO), but I've yet to see a URL of a constituency that satisfies the
(pathetically poor) definition
given under 5.  Who are they, and what is their URL?  The "At-Large?" Not so.
(The paranoic would look
askance at that, seeing on the list of its supporters a former head of ICANN --
Esther Dyson -- and ask
whether or not it was already a tool of ICANN.  But would I?  Naaahhh.)

Hard questions need asked, and hard answers provided. Beyond that, it is a
matter of checks and balances;
the picture people are giving me is that it is all checks (in dollar amounts, to
ICANN), but no balances that
would let the individual weigh in. If that is indeed the case, the system needs
some overhaul through such
means as I suggest above, and anyone else who can think of better mechanisms
should "speak now or forever
hold your peace." Getting ICANN to follow the rule of reason rather than the $$
is a process kind of thing.

Bill Lovell



"McMeikan, Andrew" wrote:

> I was trying to point out all the possible groups that any particular person
> would fit in, I was not trying to say that a large company with a hundred
> domains should have a hundred reps in the IC, but it could be argued that
> they should have one.
>
> No ones voice should be diluted but everyone should have a say, at the
> moment that means the individuals are having to shout and wave their arms
> about
>
> The internet is lots of networks all interfacing with each other.
>
> "power" in any form usually comes from mobbing together, the more open,
> distributed and standardised ways in which that is done spreads that power
> more evenly.
>
> The balance between the lone voices of individuals (like me) and the
> undisputed "power" of large commercial entities and governments is that
> whatever happens should never prevent the lone voices from being able to
> have their say, show their point of view or being legally trampled into the
> ground just because they do not have large gobs of money to back them up.
>
> I think business has always had enough laws to protect them, while ICANN
> should by all means listen to their side, it should never stop listening to
> the individual because an individuals right to free speech, expression and
> freedom from persecution is essential not only for an individuals freedom
> but also its a right that business would not wish themselves to be denied.
>
> Money is the real difference in "power" and probably the biggest threat to
> an IC.  After all what's to stop a multination corporation from registering
> a domain for each employee and getting them to all sign up as individuals
> and vote as the corp. wants?  Paranoid yes I know, but money will always buy
> votes, that's why participation should be as cheap as possible to get the
> maximum participant to have their say.
>
>         cya,    Andrew...
>
> > -----Original Message-----
> > From: William S. Lovell [SMTP:wsl@cerebalaw.com]
> > Sent: Tuesday, May 08, 2001 12:36 PM
> > To:   McMeikan, Andrew
> > Cc:   'Joop Teernstra'; GA
> > Subject:      Re: [ga] MOTION: Request for a GA resolution on an IDN
> > holders'   constituency (IC)
> >
> > I'm missing a rational connection here. In one case, "power" comes from
> > buying up tons of votes; in the scenario below, "power" comes from
> > buying and controlling tons of computers tied to the internet. In either
> > case, how does the buying of this or that rationally imply the right to a
> > correspondingly larger voice in Internet affairs? Either of these seem
> > to me to dilute out the voice of the individual.
> >
> > However, I would emphatically concur with the idea that constituencies
> > need precise definition as to the perspective from which thie members
> > speak -- not as to specific positions on specific issues (although what
> > that might be might easily be inferred from the perspective -- but rather
> > "is this the voice of the individual, a small business, a large business,
> > a
> > hobbiest, a merchant, an entrepreneur with an invention?" (I know lots of
> > people of this last type -- many clients open up shop on the web the day
> > the patent application is filed) and so on.
> >
> > Again, none of this definition notion precludes anyone from joining any
> > constituency, but it would give the person looking around an idea of
> > whether that person was joining a compatible bunch, or would be
> > walking into a den of wolves.
> >
> > Bill Lovell
> >
> > "McMeikan, Andrew" wrote:
> >
> > > I think that to propose the creation of an IC it at least needs a little
> > > definition to go along with it rather than just implied on the subject
> > line.
> > >
> > > in general there are
> > > 1)the mass of users
> > > 2)some of those produce content or contribute in some way to the overall
> > net
> > > 3)some control a single (non-transient) computer that makes up part of
> > the
> > > internet
> > > 4)some can exercise control of several computers  that are part of the
> > > internet
> > > 5)some control large numbers of computers on the internet
> > > 6)some control vast chunks of internet resources both computers and
> > pipes
> > > 7) ICANN wants one root to bind them
>         <snip>
> --
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