Re: [wg-review] Constituencies, 1 governance and legality

[Kent Crispin <kent@songbird.com>]

On Tue, Jan 30, 2001 at 06:12:33PM -0800, Karl Auerbach wrote:
[...]
> 
> That does not mean, however, that ICANN is not governance

It doesn't matter whether one uses the word "governance" or not.  The
reality is that ICANN's "power" is strictly constrained to what
contracts it can convince people to sign; and that those contracting 
entities are the primary powers in ICANN's world.  Those are the simple 
facts.  ICANN is not in a position to unilaterally tell those entities 
what to do, and there is nothing whatsoever that can be put in the 
bylaws that will give ICANN such a power.

[...]

> First among ICANN's purposes is "lessening the burdens of government" (yes
> that's a quote, cut and pasted directly from the Articles of
> Incorporation.)
> 
> One does have to ask, what are those burdens that lay so heavily on
> government?  Isn't the answer clearly "governing"?   It seems that
> ICANN's purpose is indeed to govern in the stead of a real government.

Doesn't follow.  

> But apart from that - even if ICANN were to be something less than
> "government", we face the following facts:
> 
>   - ICANN is a "public benefit" corporation under California law
> 
>   - ICANN has obtained US Federal Tax exempt status under IRS 501(c)(3)
> 
>   - ICANN's Articles of Incorporation state that "[t]he Corporation
>     shall operate for the benefit of the Internet community as a whole"
> 
>   - ICANN's bylaws state that "[t]he Corporation and its subordinate
>     entities shall operate to the maximum extent feasible in an open
>     and transparent manner and consistent with procedures designed to
>     ensure fairness."
> 
> When these are added up it becomes crystal clear that has an obligation to
> be far more than merely an industrial advocate that can operate with the
> same disregard of the public as a privately held, tax paying, private
> entity.

Nobody ever said that ICANN was merely an industrial advocate. 

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