Re: [wg-review] Clarifications requested from BoD, Staff, NC, TC, Chair prior to co-Chair elections

[Jefsey Morfin <jefsey@wanadoo.fr>]

Dear Karl,
You certainly realize that what you say calls for a lot of comments
and leads to the dissolution of the ICANN. So I prefer to cross check
with you first.

On 06:02 08/01/01, Karl Auerbach said:
> > On 23:25 07/01/01, Karl Auerbach said:
> > >No problem:  The DNSO is to produce well reasoned policy decisions based
> > >based on fair and objective processes that permit all interested parties
> > >to participate on an equal basis.
> >
> > and we should read "policy propositions" and on "fair, qualified and
> > objective" Otherwise it would not be consistent withe rest of your
> > positions?
>
>Actually I prefer the word "decisions".  I'd like to be able to sit in my
>comfy board-of-directors chair and ask only whether the DNSO policy
>decision was reached via well defined processes in which every who wants
>to participate had the opportunity to do so on par with everyone else.

We may read the things in two ways:

- either you want to say "well reasoned policy decision preparation"
   which already calls a lot of questions because it may be understood
   that the BoD only say yes/no.

- or you actually want to say that the DNSO (a non exclusive consulting
   group) would actually conduct the ICANN policy and the BoD would
   only check if it performed properly. In other words, the entire DNS
   policy would be the responsibility of Ken Stubbs.

>For the most part, I'd prefer it if the board rarely, if ever, exercised
>its power to make DNS policy but rather left it up to well run ICANN
>public policymaking processes.

That you prefer the world to be so smooth you do not have to exercise
your power and you may rely on NC generalities as perfect policy
statements is pure Utopia but does not removes the power of decision
from the BoD.

>Of course, if one reads the ICANN bylaws as they exist today that is what
>they very clearly say - but as we have seen from the rejection of my
>"request for reconsideration" on that point, ICANN's official policy makes
>that bylaw language nothing more than meaningless surplussage.

I am not clear if you want to say the existing bylaws say what you say
or what I say? (from my reading, they say what I say, but that seems to
contradict the rest of your phrase?) could you clarify please?


We face here a very interesting issue:

- we are several having been nominated for the co-Chair election of
   a WG-Review Group, which is:

   - to report to the DNSO/NC or to the DNSO/NC/TF ... we do not know
   - headed by a disappeared NC Member
   - stuffed with DNSO/NC Members (and may be DNSO/NC/TF: would
     someone know who is in Mrs. Swinehart's Task Force)

- of which the nominated people (having declined) propose the voting
   rules

- with a mission controverted between the Chair and the NC-Coordination
   with the Chair saying that if we follow the Chair we are in the dark

- about the way the DNSO must become a professional efficient
   transparent,

   -  consensus oriented team for helping conduct the DNS decisions
      of the BoD according the bylaws

   - non consensus oriented management center for DNS operations
     according to the BoD Member in charge of the relations with the
     BoD.

You may understand we share a certain perplexity.

Jefsey



PS. I wish also to underline a few constitutional oriented aspects:

1. The @large Study Group which is to be a parallel effort
     of clarification and differentiation is set-up on the basis of
     a clean sheet study, 2 years time for action and capacity
     to propose bylaws modifications. The WG-Review is
     suppose to have 7 days to go to do the same task. You
     are an @large Director and you are in charge of the relations
     with the DNSO. You participate to this WG-Review and was
     nominated as a co-Chair. You seem to want drastic changes.

     So you are the key guy. We are ready to support your policy.
     Is there a page where you say your position on this, or can
     you let us know. Here also many are in the blue (or like me
     are ready to ally to set-up their own policy through the GA
     and the @large).

2. if the DNSO was anything else than a Technical Consultant
     to the BoD, there would not be any reason left for it being
     unique, leading to a mess that the OSRC does not know.
     This is Peter's "nuclear arsenal" by simple desintergation,
     not even by deflagration. Augmented.Root people would
     certainly not support that: their argument is not about ICANN,
     but about ICANN's policy.

3. If the DNSO was responsible for conducting the ICANN
     DNS policy by lack of power exercise of the BoD, or worse
     by a ne on the fly bylaws change, this could be construed:

     - as a technical fault and the bylaws could be used against
       BoD members and involve them personnaly in TM cases
       as coresponsable.

     - as the proof that the ICANN does not exist except as
       a loosy gang on the point of view of the "no dead hand
       accepted in a contract" countries (cf. French legal culture
       states) helping most pobably US courts to consider as
       invalid any contract between the ICANN and a broad part
       of the world. I note that this would have some kind of
       incidence on your personnal taxes. But you are the lawyer.


I note that as participants to this working group and discussing
these issues we already are co-responsible as far as the
Australian anti-trust case vs. ICANN is concerned. This is probably
a dead fuse, but from talks with French justice people, I know
that it is a serious matter for me (and for AFNIC people) should
the French taxes wanted to control (I do not know in the USA, but
in France the burden of the proof is with the taxpayer, not
with the State). The cost would not be in paying money - may be
for the AFNIC Chair and President - but with the administrative
cost of the response. We are certainly nicely debating about
concepts but tis may have a real incidence.

Look at Yahoo's attitude.

Jefsey

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