Re: [ga] Santiago DNSO GA Chair

[Michael Froomkin <froomkin@law.miami.edu>]

I identified what I consider to be a rather serious error of fact -- the
claim by Mr. Sola that the pNC has complied in every respect with the
by-laws.
 
Mindful of the fact that despite hours of research on my part I might
not be in full possession of the facts, that I might be ill-informed, I
call for the person who made the statement to substantiate it in light
of an alleged counter-example that I find credible. 

What I attempted is not unlike the scientific method.  

Yet, the result is multiple patronizing reactions from those whose ox is
gored. 

Those of us who are not present at meetings at which "consensus" is
announced through a process which in any case does not include any means
of polling the absent (or even those present by internet connection,
whose interests are likely to diverge precisely for the selfsame reasons
they are not able to attend in person) must perforce rely on texts. 
Else we are doubly disenfranchised.  Consider the recent comment of
ICANN president Roberts on the Poised list:

>
> I believe that these "writings down" of generally held views are
> more than adequate protection for reasonable people attempting to
> accomplish reasonable objectives in support of the Internet.

When ICANN asks for our trust, it says the text are our guarantee.  When
it wishes to ignore the text, it points to a meeting few of us
attended.  Which is it?  The text or not the text?  (On the issue of
measurement of "consensus" you can see the comments on icannwatch.org
).   And if "not the text" then what role for those who cannot attend
meetings in person?

Amadeu Abril i Abril wrote:
> 
> Michael Froomkin wrote:
> >
> > In light of the comment quoted below, I would be grateful if you could
> > lay to rest once and for all an allegation I have seen often repeated:
> > It is alleged that the pNC refused to allow certain duly selected
> > representatives of the gTLD constituency to attend a telephone meeting
> > held a few weeks ago.
> >
> > Is this factually inaccurate?
> > Were the people not actual delegates?
> > Or, was the refusal to allow their participation not a violation of the
> > bylaws?
> 
> Hi Michael,
> 
> Sorry to see that holidays are not doing any good. Just try to imagine how
> stressed the rest of us, without vacations, must be under this heath!!!!!
> 
> Yes, indeed, your assumptions are prefectly inaccurate. Let's faint you really

Actually, I think the comments on this thread demonstrate they were
quite accurate.

> don't know it and try again:
> 
> * Singapore and Berlin meetings were unanimous (well...) in the feeling that
> no single org should be able to appoint more than one NC rep. NSI did not
> disopute this.
> 
> * NSI designated three reps (Don Telage, Richard Sexton and Joop Teernstra),
> The BoDasked them to reconsider the decision and appoint only one, and
> representing gTLD interests.

As noted by many others in this thread, Sexton and Teernstra (yes,
nominated for tactical reasons by people with vested interests we should
all suspect) were in fact representative of
constituences otherwise denied a seat at the table, and still denied a
seat at the table to this day.  If we are to rely
on the "spirit" of the text rather than its letter (and I agree this is
not in
any way a ridiculous position for anyone to take) then it seems to me
that the spirit of representation was well served by these nominations. 
I gather you do not agree.  May I ask why?

> 
> * Durning a NC telconf, NC ws instructed by the BoD and ICANN counsel not to
> allow the three reps mentioned above in. So the preson chairng that

This is interesting.  Could you name names please?  Who precisely
"instructed" precisely who on the NC to do this? 

> teleconference (Javier) stated that only one of them could stay, and told the
> other two to leave. If I am not mistaken the three of them left the teleconference.
> 
> * NSI informed again that they had apointed three gTLD NC reps (Don Telage,
> David Johnson and Phil Sbarbaro). As the Byalwas were clear in their spirti
> but open to interpetation to some extent (and this is also my perosnal

On what theory do you construe the text as open to interpretation?  In
other words, as a matter of textual interpretation, on what view do you
find that the TEXT supports your position?  Or are you reiterating the
argument from the "spirit" of the text?

> opinion) the ICANN counsel on one side, and the NC on the other (decided to
> allow the three gTLD (NSI) reps in as full `NC members. Most of us noted that
> this was clarly against community consensus, passt compromises and any logi.

The relevant community of which I am aware professes to be for
inclusion.  Yet important sets of constituencies are excluded.  

> But as the Bylaws "could" perhaps be read as allowing NSI to appont three
> reps, well, it was not that wise to make a battle over it (pleae note the
> diffeent slate of reps they rpesented the second time, and that at lest the
> second version abided to the principle of gTLD interest represntation...).

I find it especially depressing that you find the second NSI slate
preferrable to the first.  It does not comport with the spirit of
inclusion -- it's just 3 NSI employees.  Why ICANN and indpendent
thinkers such as yourslef should find that better than people like
Sexton and Teenstra is a great puzzle to me.  Can you explain?  

> ICANN BoD decided that they would immediatly present a darft amendment of the
> Bylaws to bring things back to reason. Ie, to make clear that no matter how
> open to interpetaion certain language is, no single corporation would be able
> to appoint three diffetnt NC reps, be that within one Cionsituency or differnt
> ones. You have the propsoed amendment open for comments on ICANN website.
> 

Since the fiasco with comments in the working groups, especially B, I've
been tempted to stop commenting.  What's the point if comments are not
posted in real time?  On the merits of this particular bylaws change, I
don't care much, it smacks of deck chairs arrangement on the Titanic.  I
care much more about two other principles:  1) if the rules are not
followed punctilliously by people when it does not suit their interests,
but rather manipulated frequently for their partisan purposes, then I
have to ask whether the organization is worth my time; 2) seemingly
false statements should be questioned.

> Pas de chasse aux sorcieres, my friend. Life tends to be boring, you know....

"The truth will set you free"?

-- 
A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
                -->   It's hot there.   I'm elsewhere.   <--