Re: [wg-review] constituencies, 1 and governance

[Kent Crispin <kent@songbird.com>]

On Tue, Jan 30, 2001 at 02:22:19PM -0800, Eric Dierker wrote:
> Mr. Crispin,
> 
> Thank you for your recent post correcting my erroneous assumptions.
> One of the factors I like most about the long time participants in ICANN
> such as your self, is your use of definitions.  You seem quite content
> to define a duck as a horse.  As the following shows ICANN is a
> governance regardless of what label you have seen fit to give it.
> 
> The U.S. Government turned over it's governmental authority to ICANN.

Sorry, that is absolutely silly.  The USG did no such thing.  It has 
explicitly stated that.

> ICANN no matter what you call it is now in the business of governing.
> The notice provisions are to the public at large, they contain due
> process and are set forth to "the Internet Community as a whole".

Hey, look.  My company, Songbird, is going to start putting out notices 
for comment by the Internet Community as a whole.  I guess that puts 
Songbird in the governance business, eh?  No.  Obviously not.  You are 
lost in form, not substance.

In fact, the notice provisions are window dressing that has little to do
with the underlying mechanism, which is that of a corporation, dealing
with other entities through contracts that it negotiates.  

I don't care if you call this "governance" or not.  The real issue is
simply the reality of what ICANN is, and it is clear that many people on
this list simply aren't dealing with that reality.  ICANN's only way of
having an effect in the real world is through contracts with the
entities it directly effects.  These are registries, registrars, root
server operators, and so on.  Conspicuously absent from that list are
individual users and domain name "consumers".  They are absent because
ICANN has no *direct* way of affecting them.  Therefore, domain name
consumers have no *direct* power in ICANN, and they never will -- it
doesn't matter what kind of representative structures you build; the
only entities with direct power in ICANN are the ones with which ICANN
has direct contracts.  This is simply true by definition, and it
intended in the construction and design of ICANN.  The only result of
domain name consumers taking over ICANN is that the entities with direct
power would no longer deal with ICANN, and ICANN would have no power at
all.  That is, if you turn ICANN into a representative democracy, it
will have control over nothing. 

Contracts, by definition, *require* the agreement of all parties signing
the contract.  Therefore, the entities with which ICANN forms contracts
have a fundamental veto power over any action of ICANN that affects them
-- they can refuse to sign the contract.  Domain name consumers -- *all*
domain name consumers -- are not in that position; they can only affect
ICANN indirectly, primarily through political pressures.  This goes for
all domain name consumers, not just individuals, and includes those
represented by business constituency, the IPC, the NCC, and so on. 
Fundamentally (and this is clear in the bylaws) the DNSO as a whole can
only recommend policy; the board always has the final say. 

> By calling this Governing body a Corporation and thereby invocating the
> theories of no representation you violate the body of text known as by
> laws and Articles.

Nonsense.  And in any case, the bylaws and articles are relatively
unimportant.  They have been changed in the past; they will be changed
in the future.  The documents that define ICANNs real "powers" are the
contracts with the USG, the registries, the root server operators, and
so on.  ICANN could eliminate the DNSO entirely, and if the USG, the
registries, and other contracting parties didn't care, it simply
wouldn't matter.  All this governance stuff is purely secondary, an
epiphonomenon -- if the primary contractors of ICANN decided it wasn't
important, it would be gone immediately -- it would be the FIDUCIARY
DUTY of the directors to eliminate it.  This is the fundamental
distinction -- the directors are by law responsible to the CORPORATION.

> I hate to burst your bubble but you can't ride a duck just because you
> call it a horse.

I agree completely, but it isn't me who is living in a bubble.  ICANN is
the duck; "Internet Governance" is the horse.  Lots of people are trying
to ride that imaginary horse, and they are continually disappointed that
it isn't carrying them where they want to go. 

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