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

["'Kent Crispin'" <kent@songbird.com>]

On Tue, Jan 09, 2001 at 04:26:20PM -0800, Roeland Meyer wrote:
> > From: Kent Crispin [mailto:kent@songbird.com]
> > Sent: Tuesday, January 09, 2001 3:08 PM
> 
> > Fine.  So you bring a suit against the board for not following its 
> > bylaws.  You get an injunction against the board not following the 
> > bylaws.  The board amends the bylaws and proceeds with what it was 
> > going to do.
> 
> Seeing this, as a representitive sample of attitude. I am aghast. If this is
> really the way the ICANN BoD collectively feels, then there is no recourse
> but to call for the dissolution of the ICANN, as a failed experiment gone
> out of control.

People have been doing that for some time :-)

> I have reasons for NOT wanting to see that happen. However, an organization
> that behaves so dishonorably, is not fit to continue its existance.

You missed something important -- the above quote from me was part of a 
hypothetical discussion about corporations in general, and it was part 
of asking the question: if a board member brings a suit (derivative action, 
as Karl says) against the corporation for not following its procedures, 
what is the remedy?

You are, incidentally, making the further assumption that it is the
organization that is acting badly.  There is an alternate description:
that of a single rogue director who brings frivolous suits against
his fellow directors, in an attempt to deliberately obstruct progress. 
In that case it is the rogue who is acting dishonorably, and not the
directors. 

To repeat: all this is purely hypothetical, of course.  No slur intended
against any corporation or director. 

The real point is that many people have a completely mistaken idea about
the nature of ICANN -- they think it is some kind of government agency,
and judge it in those terms.  But it is not a government.  It is a
corporation.  

In fact, you would be better off thinking of it as a corporation that
offers products (coordination services and anti-trust shielding) to
governments, registries, ISPs, and so on.

The "anti-trust shield" product (if I may use that term) is the really
interesting one.  Central coordination of access to resources, if done
by industry itself, would immediately arouse the suspicion of government
regulators, because central control of those functions would be a pure
monopoly.  So ICANN offers to the registries (ccTLD, gTLD, and address
registries) a non-profit central coordination facility with processes
that provide fair allocation of these critical resources.  Governments, 
in turn, get the advantage that they only have one entity that they 
have to look at for anti-trust concerns: ICANN.

How does that fit in to the purpose of this WG? Simply this: the primary
customers of ICANN (in this model) are registries and governments, and
the primary customers are the ones for whom policy is developed, and a
large part of the design of ICANN's structure is to deal with that
reality.  Many people in this WG believe that oversight for ICANN comes
from "the people", and they are busily crafting structures for that
purpose.  But in fact, the true oversight for ICANN does not come from a
few hundred people on email lists; it comes from anti-trust authorities
in various governments.  

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