RE: Fw: SO structure - private

[Roberto Gaetano <Roberto.Gaetano@etsi.fr>]

I have to agree with most of what Michael wrote.

Comments below.

Michael:
> Eberhard, Carsten and all-
> 
> Just because the (potential) PSO and ASO may be incorporating, that
> doesn't mean the DNSO must follow them. We can choose not to if we wish.
> Carsten's right, there was a majority in Monterrey for not
> incorporating. It's not just a question of legal accountability,
> although that is an important question, but also of whether the DNSO
> wants to set itself as a separate organization from ICANN and "pull the
> teeth" of ICANN's authority.
> 
> Furthermore, incorporating separately means the memberships of ICANN and
> of the DNSO are separate. This is a very big step to take, because the
> ICANN bylaws place the SOs within its membership structure, don't
> forget. If the SOs are separate corporate entities, they must not only
> have separate bylaws but a separate membership and a separate BoD. This
> is setting up an adversarial relationship with ICANN, and weakens it
> considerably. This may be a bad thing to do, at this point. 
> 
Also IMHO, the key problem is the Membership.
How is ICANN going to solve the Membership problem?
The SOs Membership structure must be coordinated with ICANN.
If we have separate Membership, separate incorporation could make sense, but
not otherwise.

In fact, if we do incorporate, the problems raised about conflict of
interest and separation of powers will become more critical.

In any case, if we decide for incorporation, the first choice would be
outside the US (for international balance reasons, not for lawsuit
protection).

> Autonomy? For what purpose? ICANN will still have the authority, if the
> USG continues its present course. And that course depends on arriving at
> a consolidated self-governing body, not four or five different bodies.
> The SOs were envisaged as advisory councils for ICANN, not as distinct
> organizations. How can the authority to decide on domain name, protocol,
> and addressing policy be made by both ICANN and the SOs? Maybe what some
> people want is for only the SOs to make policy, separately from ICANN,
> but then the ICANN bylaws must be rewritten. This means going back to
> where we were in June.
> 
> The lawyers for the PSO and ASO counselled them to incorporate,
> apparently. But we must ask ourselves why they did this. Was it for the
> good of ICANN and the good of the Internet, or was it perhaps because
> the lawyers wanted to represent the SOs and get nice fat fees for
> defending the SOs when they get sued? Were these lawyers Internet
> people, ware of the complexities of the present situation and its
> history? Aware that hundreds or thousands of people have been trying to
> find a consensus approach to the NewCo? It doesn't sound like it.
> 
> Frankly, if I were counsel to ICANN, I would tell them not to recognize
> these SOs that are incorporating separately, if my interest was in
> seeing the ICANN accomplish its mission of focussing all the disparate
> contingents and finding a way of making policy from consensus. If, on
> the contrary, my interest was in legally protecting the ICANN Board,
> sure, it's great for the SOs to be accountable separately from ICANN.
> But it could be bad for the Internet, and it's certainly not what
> everyone involved in these disputes for so long has been hoping for. It
> is, in a way, institutionalizing the failure of ICANN before it has a
> chance to get started.
> 
I agree with Kent, who said (quoted off my memory, don't take it as word by
word transcription) that ASO and PSO may have decided to incorporate
separately to avoid to be involved in DNS lawsuits. We don't have this
option: wherever we go, lawsuits are going to follow us ;>).

	<snipped the rest, because I want to concentrate on the previous
issues>

Regards
Roberto