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A long exchange




The following very long exchange was cc-ed to the comments list, but
because that list only accepts material in directly addressed to the list
it wasn't a captured.

But here it is in its full glory.

It is significant and a lot of issues come out.

I have separated the various messages using a long line of "#" symbols.

		--karl--


Date: Fri, 18 Jun 1999 17:14:59 -0700 (PDT)
From: Karl Auerbach <karl@cavebear.com>
Reply-To: list@ifwp.org
To: list@ifwp.org
Cc: comments@icann.org
Subject: Re: [IFWP] The CPT- ICANN Correspondence (was: Letter to Esther  Dyson
    from Ralph Nader ...


Two points:

1. Whether one belives in the "initial"/"interim" distinction or not,
   one does have to admit that the current board is moving fast.

   Indeed, at the rate the board is moving, there could soon be a $1 tax
   on domain names and the imposition of a supra-national ICANN-imposed
   de-facto law of trademark-vs-domain names.

   And yet ICANN has not yet created a general membership or permitted
   non-commercial and individual interests to participate as full-fledged
   voices in any part of ICANN or its Supporting Organizations. 

   All of these substantive, and largely irreversible decision could
   well be in place before there are any board members who have obtained
   their seats by elective processes.

   So let's just dispense with the notion of "initial" and "interim" and recognize
   the clear fact that the unelected board now in place is making permanent, substantive
   regulatory decisions that will color and transform the Internet for 
   years to come.

   Yet while that board is rushing to make those decisions, that board has
   rejected the timely participation in those decisions by non-commercial
   or individual interests.

2. You wrote the following words:

  > ... not is a traitor to democracy and the American way (as defined by
  > Fenello/BWG/IRSC)?

   The BWG is not now defining, nor has it ever defined "democracy and the
   American way".
  
   I strongly resent the Mcarthy-era tactics that are being used to
   smear those who have reservations about ICANN's behaviour and
   its actions.

			--karl--







######################################################################


Date: Sun, 20 Jun 1999 09:31:33 -0400
From: Joe Sims <Joe_Sims@jonesday.com>
To: Karl Auerbach <karl@cavebear.com>
Cc: list@ifwp.org, comments@icann.org
Subject: Re: [IFWP] The CPT- ICANN Correspondence (was: Letter to Esther  Dyson
    from Ralph Nader ...




___________________________________________________________________________
____

 This message is intended for the individual or entity named above.  If you
are not the intended
 recipient, please do not read, copy, use or disclose this communication to
others; also please
 notify the sender by replying to this message, and then delete it from
your system.  Thank you.
___________________________________________________________________________
____

A reply to each of your two points:

1.  I see no reason why either of the things you worry about is not
reversible.  Certainly, any fee could be changed, and any dispute
resolution system could be altered, by a future board.  The only thing you
mention that might not be reversible is the establishment of a mechanism
for the election of nine Board members by an At Large membership; if done
badly, and the result is capture by an economic or philosophical (or for
that matter religious or just mischeivous) minority, do you suppose that
the Board members so elected will cooperate in fixing the system so as to
prevent such results in the future?  And what would be the consequences in
the meantime?  If you are concerned to get this right, and to ensure that
this transition from government control to private sector management
actually works, then this part of the process needs  to be done carefully,
for it probably is not reversible by anything other than a governmental
takeover -- which is, after all, what we are trying to avoid.  A diverse
Membership Advisory Committee spent several months studying this issue very
closely, and came up with its best suggestions on how the At Large
Directors should be elected; those recommendations are now being evaluated
to see how they can be implemented, and more action will take place before
and at Santiago.  Thus, if you are serious about this issue, it is
irresponsible to assert that it is not being given both the attention and
the care that it obviously deserves.  It is my impression that the Board is
willing to accept criticism for a lot of things, and recognizes that in
this environment it is inevitable and unavoidable, but it does not want to
be remembered as the Board that, in response to that criticism, took
actions that, instead of contributing to progress, in fact were fatal to
the effort.  The mechanics of the membership issue are probably the
toughest problem the Board has faced, and nonetheless, it is highly likely
there will be a membership process in place less than nine months after the
Board began work.  It seems to me, given the other organizational midwiving
it had to do (the SOs) and the steps toward opening up com, net and org
registration that were required by the timetable set by the DOC,  that this
is very fast movement, not the opposite.

2.  It seemed to me that a little sarcasm was an appropriate response to
Jay's continual invocation of the Constitutional Convention and other icons
of democracy, leavened with his usual creation of "facts" out of thin air.
For some reason, some of the participants in this debate have no sense of
humor -- perhaps because they honestly believe that  they are watching some
nefarious plot by some collection of evil entities to take over the world.
For those who really do think that, nothing I say will have any effect at
all, and so it is not useful to try to adjust for their ears.  For the rest
-- and I assume, Karl, that this includes you -- lighten up!  To see this
more as red-baiting (which is probably not too harmful now in any event)
than satire is taking this way too seriously -- and incorrectly.  The
issues are not personalities or even particular people; they are (1)
whether the White Paper goals are desirable (I think they are, some
obviously don't) and (2) are we making progress toward them (I think we
are, some don't).


                                                                 
                                                                 
                                                                 




Karl Auerbach wrote:


Two points:

1. Whether one belives in the "initial"/"interim" distinction or not,
   one does have to admit that the current board is moving fast.

   Indeed, at the rate the board is moving, there could soon be a $1 tax
   on domain names and the imposition of a supra-national ICANN-imposed
   de-facto law of trademark-vs-domain names.

   And yet ICANN has not yet created a general membership or permitted
   non-commercial and individual interests to participate as full-fledged
   voices in any part of ICANN or its Supporting Organizations.

   All of these substantive, and largely irreversible decision could
   well be in place before there are any board members who have obtained
   their seats by elective processes.

   So let's just dispense with the notion of "initial" and "interim" and
recognize
   the clear fact that the unelected board now in place is making
permanent, substantive
   regulatory decisions that will color and transform the Internet for
   years to come.

   Yet while that board is rushing to make those decisions, that board has
   rejected the timely participation in those decisions by non-commercial
   or individual interests.

2. You wrote the following words:

  > ... not is a traitor to democracy and the American way (as defined by
  > Fenello/BWG/IRSC)?

   The BWG is not now defining, nor has it ever defined "democracy and the
   American way".

   I strongly resent the Mcarthy-era tactics that are being used to
   smear those who have reservations about ICANN's behaviour and
   its actions.

               --karl--




######################################################################


Date: Sun, 20 Jun 1999 14:18:35 -0700 (PDT)
From: Karl Auerbach <karl@cavebear.com>
Reply-To: list@ifwp.org
To: list@ifwp.org
Cc: comments@icann.org
Subject: Re: [IFWP] The CPT- ICANN Correspondence (was: Letter to Esther  Dyson
    from Ralph Nader ...


> 1.  I see no reason why either of the things you worry about is not
> reversible.

In theory, nearly everything is reversible.

But, in practice, very little is reversible.

The reason for this is that ICANN's board, a board which has zero members
elected by anyone, has taken upon itself to establish structures (such as
the internal structure of constituencies in the DNSO) which are heavily
biased towards certain points of view.

For instance, the DNSO's constituency structure is so heavily weighted
in favor of large scale commercial interests (especially since the board
explicitly rejected any form of meaningful individual and non-commercial
participation) that there is very little reason to believe that the WIPO
report will be subject to more than mild questions before its adoption.

It is unlikely that the later introduction of token representation from
non-commercial and individual interests will be able to have any impact on
the decisions not being made.

This fear can only be exacerbated by the overt failure of the DNSO's Names
Council to hold an open meeting despite the fact that the material
discussed was nothing less than the creation of a structure to enact the
WIPO report, a matter of great public import.

Why you and the other ICANN members didn't step in -- you were at that
meeting -- and call a halt to such an egregious action speaks volumes.

As for the $1 tax on domain name.  Yes, it will be reduced when ICANN's
board imposes a similar tax on IP addresses.

But will the revenue needs of ICANN be reduced?  Not with a proposed
budget of several million dollars and more than a dozen employees.

ICANN is rapidly becoming a bloated bureaucracy.

May I suggest a very apt (and very humorous) bit of writing from 1857 --
Chapter X of "Little Dorrit" by Charles Dickens: "Containing the Whole
Science of Government" ( http://www.cavebear.com/cavebear/chapter-10.html )


> ....  The only thing you
> mention that might not be reversible is the establishment of a mechanism
> for the election of nine Board members by an At Large membership; if done
> badly, and the result is capture by an economic or philosophical (or for
> that matter religious or just mischeivous) minority

What you are espousing is a rejection of democracy.

If there were enough votes in an ungerrymandered ICANN to elect a majority
of board members, then who are we to say that the election is
illegitimate, religious, or mischevious?

As it stands, by-the-way, the elective process to the ICANN board is
currently captured by a very religious and mischevious minority -- in
particular that of commercial interests (the religion of Mammon).


> A diverse
> Membership Advisory Committee spent several months studying this issue very
> closely, and came up with its best suggestions on how the At Large
> Directors should be elected; those recommendations are now being evaluated
> to see how they can be implemented, and more action will take place before
> and at Santiago.  Thus, if you are serious about this issue, it is
> irresponsible to assert that it is not being given both the attention and
> the care that it obviously deserves.

You say that the General Membership is being studied with all deliberate
speed.

Yet, it is odd that, by contrast, the board is racing forward, creating
structures like the DNSO, that are already making permanent decisions
(such as adoption of WIPO), before there is even a single person on the
board who has been elected by an outsider.

The net effect is, of course, that by the time there is a General
Membership, the DNSO will have made most of the significant and
substantive choices.

Thus the elective board (which, by the way, will be but a minority even
were they to act in unity) will have no way to act except to overturn the
DNSO's choices.

And as you well know the language of the ICANN by-laws prohibits the board
from initiating action to overturn a DNSO initiative already adopted by a
previous board.

Those of us who see the dissonance of ICANN's
go-slow-with-membership/go-fast-with-DNSO approach are not "arrogant
juveniles" (as one prominent ICANN board member/executive described us).

Rather we see something that amounts to a warping of democratic processes.


> It is my impression that the Board is
> willing to accept criticism for a lot of things, and recognizes that in
> this environment it is inevitable and unavoidable, but it does not want to
> be remembered as the Board that, in response to that criticism, took
> actions that, instead of contributing to progress, in fact were fatal to
> the effort.

May I suggest that your fear is not necessary.

This board has already established its place in the memory of man as "the
board that never held an open meeting".

You can protest all you want that the board is doing wonderful and great
things.  Perhaps it is.  But nobody on the outside knows.

All we see are the results.

And those results very clearly reject the meaningful participation of
non-commercial and individual interests in the governance of the Internet.

There is no operational General Membership.

There is not a single way for a non-commercial interest or individual to
have any way in any SO of doing anything more than make comments.

And the ICANN history, as you well know, is full of -comment mailing lists
which are really nothing more than waste-baskets being used as placebos
and pacifiers while the real decisions are made in private, in the dark,
with no real records, and unknown quid-pro-quos.

If there is any blame for ICANN's current position it is not on those of
us who have reservations.

Rather, I would suggest that the responsibility for ICANN's precarious
position are those who reject criticism and who who reject any response to
criticism as not "contributing to progress"


> The mechanics of the membership issue are probably the
> toughest problem the Board has faced, and nonetheless, it is highly likely
> there will be a membership process in place less than nine months after the
> Board began work.

That would mean in about ten days from now.

But once more you indicate a flawed process.

The General Membership committee made its report.  And the next thing you
expect to happen is a fully formed General Membership structure emerging
from the Board, like Venus emerging fully grown from the sea shell.

What ever happened to well-accepted procedures, like having the board post
notice of its proposed actions during a notice-and-comment period.

What ever happened to exposure of the decision making process used by the
board so that those who comment can constructively address the defects
perceived by the board or respond to mis-understandings that the board may
have?


> It seems to me, given the other organizational midwiving
> it had to do (the SOs)

"midwiving"?  May I suggest that ICANN is acting more like father, mother,
grandparents, and midwife.

The constituency structure was an contested idea. Yet, the board took
those disputed notions, closeted itself in Singapore, and came forth, like
Moses on the Mount, proclaiming, by fiat, a final design that was nothing
less than the board's own notion of constituencies.  And the board
entombed this into the ICANN bylaws without benefit of meaningful minutes,
without public notice of the proposed action, and without public comment.

The notion that the DNSO would "self-organize" was changed by the board
into "self-organize, but we reserve the right to rework the whole thing".

And I may say, that the board undertook to "re-organize" the DNSO into its
own image with a speed unheard of among those who care about other
matters, such as the General Membership.


> 2.  It seemed to me that a little sarcasm was an appropriate response

A little sarcasm is OK.  Humor is OK.

Besmirching those who may have objections as a "religious or just
mischeivous) minority" is not funny.

Repeatedly calling those who have legitimate concerns "arrogant juveniles"
is neither sarcasm nor humor.

We have a very serious issue here -- the fact that the first experiement
in Internet Governance is moving on a path that is increasingly looking
like it is leading to something that looks more like Bismarck's Germany
than the fair democracy envisioned by the White Paper.

		--karl--





######################################################################


Date: Sun, 20 Jun 1999 18:45:09 -0400
From: Joe Sims <Joe_Sims@jonesday.com>
To: Karl Auerbach <karl@cavebear.com>
Cc: list@ifwp.org, comments@icann.org
Subject: Re: [IFWP] The CPT- ICANN Correspondence (was: Letter to Esther  Dyson
    from Ralph Nader ...




___________________________________________________________________________
____

 This message is intended for the individual or entity named above.  If you
are not the intended
 recipient, please do not read, copy, use or disclose this communication to
others; also please
 notify the sender by replying to this message, and then delete it from
your system.  Thank you.
___________________________________________________________________________
____

unfortunately, trying to have a debate with you is like talking to a wall.
Or maybe like the Queen in Alice in Wonderland:  it means what I say it
means.  Nevertheless, I will try one more time.





Various parts of your response have been snipped to save space
                                                                 
                                                                 
                                                                 



In theory, nearly everything is reversible.

But, in practice, very little is reversible.

The reason for this is that ICANN's board, a board which has zero members
elected by anyone, has taken upon itself to establish structures (such as
the internal structure of constituencies in the DNSO) which are heavily
biased towards certain points of view.

the internal structures of the DNSO have little if anything to do with the
ability of future Boards to reverse actions of this Board; at best, the
DNSO will contribute 3 of 19 Board members.

For instance, the DNSO's constituency structure is so heavily weighted
in favor of large scale commercial interests (especially since the board
explicitly rejected any form of meaningful individual and non-commercial
participation) that there is very little reason to believe that the WIPO
report will be subject to more than mild questions before its adoption.

It is unlikely that the later introduction of token representation from
non-commercial and individual interests will be able to have any impact on
the decisions not being made.

so I take it all the hullabaloo on this is a waste of time, and the only
acceptable approach to you would be to make it so the "large scale
commercial interests" were the ones with "token" representation?  The fact
is that there are many interests with legitimate roles here, and whether
you agree or not, that includes all the groups that the Board asked to form
constituencies, including non-commercial interests.  The issue of an
individual constituency in the DNSO is a legitimate one, but it raises
questions about the relationship of that to the At Large membership, and
the appropriateness of changing what was essentially the consensus of the
vast majority of the community on the composition of the DNSO.  The fact
that there are some -- it seems obvious a realtively small number -- in the
community that would do it a different way should certainly not be allowed
to override the consensus structure, at least without allowing the
community to comment.  There was no opportunity for notice and comment
before the Berlin meeting, but I am sure there will be before the Santiago
meeting.  If this is too slow for you, I'm sorry, but since you were one of
the major proponents of the extensive notice and comment procedures we
have, you will have to take the credit or blame, such as it is, for the
speed at which ICANN can operate.

As for the $1 tax on domain name.  Yes, it will be reduced when ICANN's
board imposes a similar tax on IP addresses.

But will the revenue needs of ICANN be reduced?  Not with a proposed
budget of several million dollars and more than a dozen employees.

ICANN is rapidly becoming a bloated bureaucracy.

Thank you for your financial analysis.  Would you like to examine the
budget and tell us where we can cut expenses and still undertake the (1)
global outreach, (2) extensive due process and (3) administrative oversight
that we have been charged with?  Since the budget details are available,
all substantive comments and suggestions are welcome.  Simply saying you
think it is too much is not very helpful, nor  for that matter very
persuasive.

> ....  The only thing you
> mention that might not be reversible is the establishment of a mechanism
> for the election of nine Board members by an At Large membership; if done
> badly, and the result is capture by an economic or philosophical (or for
> that matter religious or just mischeivous) minority

What you are espousing is a rejection of democracy.

If there were enough votes in an ungerrymandered ICANN to elect a majority
of board members, then who are we to say that the election is
illegitimate, religious, or mischevious?

So let me get this straight:  if a not carefully thought out election
process produces a Board that is not capable or interested in maintaining
the operational stability of the Internet, that's ok with you because that
is the democratic way?  You may be prepared to risk this, but I doubt that
the majority of the community is.  The notion that pure democracy -- and
immediate at that -- is a value higher than the operational stability of
the net is a view, but I would suspect it is a very distinctly minority
view.  It is a view that only those with no responsibility for the result
have the luxury of holding.

> A diverse
> Membership Advisory Committee spent several months studying this issue
very
> closely, and came up with its best suggestions on how the At Large
> Directors should be elected; those recommendations are now being
evaluated
> to see how they can be implemented, and more action will take place
before
> and at Santiago.  Thus, if you are serious about this issue, it is
> irresponsible to assert that it is not being given both the attention and
> the care that it obviously deserves.

You say that the General Membership is being studied with all deliberate
speed.

Yet, it is odd that, by contrast, the board is racing forward, creating
structures like the DNSO, that are already making permanent decisions
(such as adoption of WIPO), before there is even a single person on the
board who has been elected by an outsider.

The net effect is, of course, that by the time there is a General
Membership, the DNSO will have made most of the significant and
substantive choices.

Thus the elective board (which, by the way, will be but a minority even
were they to act in unity) will have no way to act except to overturn the
DNSO's choices.

And as you well know the language of the ICANN by-laws prohibits the board
from initiating action to overturn a DNSO initiative already adopted by a
previous board.

I don't understand this point at all.  The Board is free to make any
decision that it thinks is"necessary or appropriate to further the
interests of the Corporation."  See Article VI, Section 2(g).  Obviously,
it could do so only after proper notice and comment, and only upon a proper
showing that meets this standard, but the fact that a previous Board had
come to a contrary decision would certainly not prevent this standard from
being met.

May I suggest that your fear is not necessary.

This board has already established its place in the memory of man as "the
board that never held an open meeting".

You can protest all you want that the board is doing wonderful and great
things.  Perhaps it is.  But nobody on the outside knows.

All we see are the results.

May I suggest you reread the passages immediately above.  How does "nobody
on the outside knows' jibe with "All we see is the results"?  In fact, the
only thing you don't see is the discussion; you immediately see all the
results.  The fact of the matter is that this open meeting stuff is
philosophy, not substance; you and some others seem to think you have an
inherent right to be in every conversation, listen to every phone call, and
certainly to sit and watch every meeting, no matter how that would affect
the efficiency or the efficacy of those events.  Most others in the
community, who do not share this view, would rather see things get done as
quickly and effectively as possible, and recognize the value of not having
to worry about making a politically incorrect statement during a
substantive discussion.


> The mechanics of the membership issue are probably the
> toughest problem the Board has faced, and nonetheless, it is highly
likely
> there will be a membership process in place less than nine months after
the
> Board began work.

That would mean in about ten days from now.

But once more you indicate a flawed process.

The General Membership committee made its report.  And the next thing you
expect to happen is a fully formed General Membership structure emerging
from the Board, like Venus emerging fully grown from the sea shell.

What ever happened to well-accepted procedures, like having the board post
notice of its proposed actions during a notice-and-comment period.

What ever happened to exposure of the decision making process used by the
board so that those who comment can constructively address the defects
perceived by the board or respond to mis-understandings that the board may
have?

maybe you know something I don't; I fully expect the Board to ask for
comments on any implementation plan it considers before it adopts it, as
required by the bylaws.


> It seems to me, given the other organizational midwiving
> it had to do (the SOs)

"midwiving"?  May I suggest that ICANN is acting more like father, mother,
grandparents, and midwife.

The constituency structure was an contested idea. Yet, the board took
those disputed notions, closeted itself in Singapore, and came forth, like
Moses on the Mount, proclaiming, by fiat, a final design that was nothing
less than the board's own notion of constituencies.  And the board
entombed this into the ICANN bylaws without benefit of meaningful minutes,
without public notice of the proposed action, and without public comment.

The notion that the DNSO would "self-organize" was changed by the board
into "self-organize, but we reserve the right to rework the whole thing".

And I may say, that the board undertook to "re-organize" the DNSO into its
own image with a speed unheard of among those who care about other
matters, such as the General Membership.

Now I am really confused.  After several months of back and forth, the
Board was presented with two competing proposals whose supporters had not
been able to compromise.  Given this state of affairs, the Board adopted
some principles, put out for comment proposed bylaws implementing those
principles, and subsequently adopted a DNSO structure that was very similar
to the compromise proposal submitted by CENTRE in Singapore.  What exactly
was wrong with that process?


> 2.  It seemed to me that a little sarcasm was an appropriate response

A little sarcasm is OK.  Humor is OK.

Besmirching those who may have objections as a "religious or just
mischeivous) minority" is not funny.

Repeatedly calling those who have legitimate concerns "arrogant juveniles"
is neither sarcasm nor humor.

We have a very serious issue here -- the fact that the first experiement
in Internet Governance is moving on a path that is increasingly looking
like it is leading to something that looks more like Bismarck's Germany
than the fair democracy envisioned by the White Paper.

I guess I was wrong; you do think this is so serious that you have no sense
of humor.  I'm sorry to see that, but se la vie.

          --karl--








######################################################################


Date: Sun, 20 Jun 1999 18:45:13 -0700 (PDT)
From: Karl Auerbach <karl@cavebear.com>
Reply-To: list@ifwp.org
To: IFWP Mailing List <list@ifwp.org>
Cc: comments@icann.org
Subject: Re: [IFWP] The CPT- ICANN Correspondence (was: Letter to Esther  Dyson
    from Ralph Nader ...


> > The reason for this is that ICANN's board, a board which has zero
> > members elected by anyone, has taken upon itself to establish
> > structures (such as the internal structure of constituencies in the
> > DNSO) which are heavily biased towards certain points of view.
 
> the internal structures of the DNSO have little if anything to do with the
> ability of future Boards to reverse actions of this Board; at best, the
> DNSO will contribute 3 of 19 Board members.

You miss the point.  The current, unelected board, is establishing
structures which essentually guarantee that the DNSO will remain
permanently a pro-commercial/anti-non-commercial entity.  And, in
addition, the by-laws, much done under your hand, are such that the board
has very little power to intervene.

----------


> > It is unlikely that the later introduction of token representation
> > from  non-commercial and individual interests will be able to have
> > any impact on  the decisions not being made.
 
> so I take it all the hullabaloo on this is a waste of time, and the only
> acceptable approach to you would be to make it so the "large scale
> commercial interests" were the ones with "token" representation?

To a large extent you are right.  Much of what has been done has been a
waste of time.  The unelected ICANN board has created a structure that is
so anti-individual, so anti-non-commercial interests, so pro-big-business
that there is a legitimate question whether it all ought to be scrapped.

Please don't mis-understand me.  I am not yet in favor of doing away
with ICANN.  I still support it.  But I see significant, indeed major,
flaws in structure and process that are rapidly sapping its credibility.

----------


> The fact
> is that there are many interests with legitimate roles here

"legitimate" is in the eye of the beholder.

If you believe that the DNSO, utterly lacking in a single vote for
non-commercial and individual interests, is a fair representation of
"legitimate" roles, then we do not have much to talk about.


> and whether
> you agree or not, that includes all the groups that the Board asked to form
> constituencies, including non-commercial interests.

Read your own words "groups that the Board asked to form
constituencies" -- in other words, the board had pre-determined what
the constituencies should be.  The notion of "self organizing" seems
to have disappeared.

In addition, in Berlin there were multiple proposals for
non-commercial groups, thus underscoring the interest and need for one
or more such groups.

Did you adopt any?  Do you attempt to merge (as you did with the raw
disputed constituency proposals in Singapore)?

No, you simply dismissed non-commercial interests and sent them into
the wilderness

And at the same time you let the DNSO proceed into substantive matters
with a highly imbalanced set of elements and engage in ejectionist
politics.

----------

> The issue of an
> individual constituency in the DNSO is a legitimate one, but it raises
> questions about the relationship of that to the At Large membership

You are saying something that is not true.

You know perfectly well that the powers of the At Large Membership are
utterly distinct and different from those of a constituency in the DNSO.

Membership in the At Large membership confers merely the right to vote for
a director who, in turn, has only the most marginal powers to review and
initiate policies.

The real policy maker in the ICANN structure are the SO's.

Your attempt to deny individuals a role inside the DNSO is tantamount to
an attempt to deny individuals a role in Domain Name policymaking.

So let's not hear any more of this nonesense that we individuals should be
satisfied with membership in the At Large Membership and forego any
meaningful voice in the policymaking of the DNSO.


----------

> and
> the appropriateness of changing what was essentially the consensus of the
> vast majority of the community on the composition of the DNSO.

You are imagining things.  The constituency idea was neither a "consensus"
nor even supported by a "vast majority".  Moreover, the constituency model
that came out of Singapore was one of the Board's own creation based only
losely upon disputed proposals and made without any ability of the parties
to review or comment upon that which the board constructed, in private and
in the dark.

Perhaps those of us who consider the Board's March 4 same-day creation
and adoption of its own "constituency" rules as closing the debate
ought to have complained to the -comments list before the March 31
meeting at which time the March 4 decisions were re-confirmed.


----------


>  The fact
> that there are some -- it seems obvious a realtively small number

How do you measure "realtively small number"?

Ever since I first spoke to you nearly a year ago you have thrown about
such vague generalizations without an iota of support.

For example, you told me on the telephone that the early ICANN drafts
were immutable because of the "vast buy-in" of groups you refrained to
name (but who turned out to be merely a few people on the IAB.)


----------


> -- in the
> community that would do it a different way should certainly not be allowed
> to override the consensus structure, at least without allowing the
> community to comment.

Read your words again "without allowing the community to comment"?

I will state very directly -- it is not those of us who want ICANN to
abide by the wite paper groundrules who want to avoid community input.

Rather, it is ICANN that is minimizing effective comment by hiding its
decision-making process, by not having a real notice-and-comment
structure.

Where was the notice and comment on the constituency proposal put forth by
ICANN?

(You can point to the March 15 posting, but that was merely an
after-the fact elaboration of the March 4 private decision on DNSO
structure.)

It is a joke to see "comments" flowing in a -comments mailing list.
Comments to which the board members rarely, if ever, respond.

That's not comment.  That's more like dictatorship with flowers.

----------


> There was no opportunity for notice and comment
> before the Berlin meeting

And why not?


> but I am sure there will be before the Santiago
> meeting.  If this is too slow for you, I'm sorry, but since you were one of
> the major proponents of the extensive notice and comment procedures we
> have, you will have to take the credit or blame, such as it is, for the
> speed at which ICANN can operate.

You've got it backwards again.

I want the board to go slower.  I want it to put off making substantive
decisions that pre-dictate net policy.

Didn't you read our petition about holding back on the WIPO report?  (You
know, the petition for which we were accused by an ICANN Board member as
being "arrogant" and "juvenile")?

And by-the-way, I'm glad you bring up "extensive notice".

Clearly creation of, and adoption of, the constituencies was made and
adopted without any notice whatsoever.

The decision of which constituency proposals to accept and which to reject
was made without any notice (or explaination) whatsoever.

Overall, I'd suggest that ICANN isn't even close to living up to its
procedure.


----------

 
> > As for the $1 tax on domain name.  Yes, it will be reduced when ICANN's
> > board imposes a similar tax on IP addresses.
> > 
> > But will the revenue needs of ICANN be reduced?  Not with a proposed
> > budget of several million dollars and more than a dozen employees.
> > 
> > ICANN is rapidly becoming a bloated bureaucracy.
 
> Thank you for your financial analysis.  Would you like to examine the
> budget and tell us where we can cut expenses and still undertake the (1)
> global outreach, (2) extensive due process and (3) administrative oversight
> that we have been charged with?

Let's begin with the employees:

There's 5 officers (at $100,000 to $300,000/year each), plus five managers
at $40,000 to $120,000/year each)... all to deal with a total staff of one
technical person and three admins.

That's extraordinarily top heavy.

Especially considering that at the ICANN layer the work to be done is
pretty trivial -- the SO's do the heavy lifting and that's mainly by their
membership.

Then lets look at "Professional and Technical Services" -- A cool
million dollars (US) a year.  May one presume that this is mainly for
your firm's services?

Then there's $850,000 for Board travel and meeting expenses.

Even if we assume half of that for staff and meeting room expenses
that's more than $22,000 per board member per year.

That is clearly excessive.  Board members can fly Cattle-Car rate like the
rest of us and share rooms like I'm required to do by my employer.

I note that this budget doesn't even mention the "global outreach" or
"extensive due process" that you mention above.

In other words, the budget as published is full of perquisites and low on
actually making ICANN an open, responsive entity.

But you ought to have heard all this before.  This is not the first
time the bloated budget has been mentioned.  Your indication that you
have not heard such complaints is indicative of the weakness of the
ICANN process for seriously hearing what is going on as opposed to its
ability to hear what it wants to hear.

----------


> > > ....  The only thing you
> > > mention that might not be reversible is the establishment of a mechanism
> > > for the election of nine Board members by an At Large membership; if done
> > > badly, and the result is capture by an economic or philosophical (or for
> > > that matter religious or just mischeivous) minority
> > 
> > What you are espousing is a rejection of democracy.
> > 
> > If there were enough votes in an ungerrymandered ICANN to elect a majority
> > of board members, then who are we to say that the election is
> > illegitimate, religious, or mischevious?
 
> So let me get this straight:  if a not carefully thought out election
> process produces a Board that is not capable or interested in maintaining
> the operational stability of the Internet, that's ok with you because that
> is the democratic way?

Now you are equating democracy with network instability.

That's a false linkage between to non-related issues.

Let's go back to the original point -- you reject a democratic ICANN
because you fear that people with views you don't like might get seats.

I might point out that "operational stability" can be as badly damaged by
a gerrymandered ICANN as one that encompasses all interests.

Certainly the actions of ICANN's unelected board with regard to NSI have
exacerbated a tense situation and made closre on these issues more remote.

And your own willingness to see the Names Council trample all over the
ICANN by-laws in a race to eject those not liked by the chairman have
inflamed those who might otherwise have been more willing to compromise
and explore new avenues.

----------


>  You may be prepared to risk this

Risk what? Network instability?

That boggyman has been waved too many times to scare me.

I know how the Internet works -- I've been building it since 1974. 

It simply is not true that ICANN is saving the Internet from chaos.

But let's get back to the original point -- ICANN is supposed to be
representative of the internet community.  Yet so far, it constists solely
of an un-elected board and a subset of the board-crafted set of DNSO
constituencies.

Substantive decisions are being made as fast as ICANN can make them.

Yet, at the same time ICANN is slogging ever more slowly on establishing
an At Large membership.

By the time that membership is in place, the current board will
probably have self-voted to extended its term, and the DNSO will have made
substantive and pragmatically non-reversible decisions.

And you sit there at your keyboard and try to tell me that democratic
methods are dangerous.

I sit here at my keyboard and tell you that you are afraid to give
democratic methods a chance.


----------


> ...  The notion that pure democracy -- and
> immediate at that -- is a value higher than the operational stability of
> the net is a view,

This is not a choice between democracy and net stabilty, and I reject your
attempt to turn it into one.

Those who will vote and who will be elected will make the choices of
policy, will evaluate the risks and benefits.

It is not a decision for you to make, even if you had the qualifications
to make it.

----------



> > And as you well know the language of the ICANN by-laws prohibits the board
> > from initiating action to overturn a DNSO initiative already adopted by a
> > previous board.
 
> I don't understand this point at all.  The Board is free to make any
> decision that it thinks is"necessary or appropriate to further the
> interests of the Corporation."  See Article VI, Section 2(g).  Obviously,
> it could do so only after proper notice and comment, and only upon a proper
> showing that meets this standard, but the fact that a previous Board had
> come to a contrary decision would certainly not prevent this standard from
> being met.

I'm glad you pointed it out -- that the board is obligated to "further
the interests of the Corporation" -- not further the interests of the
Internet.

In other words, the obligations of the board, as written in the
by-laws, are to preserve ICANN's interest even at the cost of network
stability.


But let's go deeper, you largely wrote Article VI Section 2(e) of the
ICANN by-laws.  So you should know what they say.

As a reminder they say (I've elided the excess words)...

(e) ... the Board
    shall accept the recommendations of a Supporting Organization if the
    Board finds that the recommended policy

      (1) furthers the purposes of, and is in the best interest of,
      the Corporation;

      (2) is consistent with the Articles and Bylaws;

      (3) was arrived at through fair and open processes (including participation
          by representatives of other Supporting Organizations if requested);

    and

      (4) is not reasonably opposed by any other Supporting Organization.

There's nothing in there that allows the board to look into the merits
of a policy initiated by an SO.

Section (f) gives the board a bit more power -- and I might remind you
that section (f) was added as the result of work by people like me.
But section (f) is only triggered after the board rejects an SO proposal
on the narrow grounds of section (e).  Section (f) does not give the board
carte blanch to dig into matters normally under SO control.

If you think it means otherwise, I can only say, "blame the person who drafted
the language that fails to say what was intended."

----------

 

> In fact, the
> only thing you don't see is the discussion

I'm glad you admit that we don't see what happens inside the ICANN
board, that it is neither "open" nor "transparent".

Don't you think that knowing how decisions are made is important?

Perhaps the board mis-understood a point, perhaps there is a way that
the proponents of something can change things to address a concern.

The board's utter silence prevents this.

----------


> The fact of the matter is that this open meeting stuff is
> philosophy, not substance

I'm glad you made your point clear -- that to you (and presumably the
ICANN board) the words "open" and "transparent" in the White paper are
mere fluff that you are free to ignore at your pleasure.

----------


> you and some others seem to think you have an
> inherent right to be in every conversation, listen to every phone call, and
> certainly to sit and watch every meeting, no matter how that would affect
> the efficiency or the efficacy of those events.

Yes. I do.

Everybody went in knowing that the fundamental groundrules are "open",
"transparent", and "accountable" processes.

Now you are saying that "efficiency" trumps those.

Can you say why it was "efficient" or "efficacious" for the board to
privately reject non-commercial and individual interests?

I'm happy to provide an exception for matters regarding personnel.  It
would be appropriate for the board to do that in private.

But for everything else, the cone-of-silence approach that ICANN is using
is inexcusible.

----------


> Most others in the
> community, who do not share this view, would rather see things get done as
> quickly and effectively as possible

You are once more speaking on-high without an ounce of proof.

May I suggest that the only answer to this is to get moving on the
creation of an elected board so that we can actually measure things.

But until then, I suggest that you stop saying that you are all
knowing about some "silent majority" and let ICANN operate accoring to
the rules that were established by the White Paper.


----------


> > The mechanics of the membership issue...
... 
> > What ever happened to exposure of the decision making process used by the
> > board so that those who comment can constructively address the defects
> > perceived by the board or respond to mis-understandings that the board may
> > have?
> 
> maybe you know something I don't; I fully expect the Board to ask for
> comments on any implementation plan it considers before it adopts it, as
> required by the bylaws.

That's nice to hear.  It would be a refreshing change from the past process.


		--karl--

######################################################################


Date: Mon, 21 Jun 1999 00:49:35 +0000
From: Kerry  Miller <kerryo@ns.sympatico.ca>
Reply-To: list@ifwp.org
To: list@ifwp.org
Subject: [IFWP] The Sims-Auerbach Correspondence (was: The CPT- ICANN
    Correspondence


Karl,
> 
> So let's not hear any more of this nonesense that we individuals should be
> satisfied with membership in the At Large Membership and forego any
> meaningful voice in the policymaking of the DNSO.
> 

  While I recognize that there are certain important issues that will 
be dealt with in the DNSO, what if there were other identifiable 
issues which were appropriately (according to the Bylaws) initiated 
by the AL membership? (I keep wanting to call it a supporting 
organization, but that leads to the unfortunate acronym ALSO...) If 
it happened that those issues got themselves focussed on (not, of 
course, _organized around) before too much more water flows over 
the commercial/ non-commercial dam, is it so inconceivable that 
the workings of the Elected Board could be substantially influenced 
as it comes to consider various SO proposals? 


kerry


######################################################################


Date: Sun, 20 Jun 1999 21:29:51 -0700 (PDT)
From: Karl Auerbach <karl@cavebear.com>
Reply-To: list@ifwp.org
To: list@ifwp.org
Subject: Re: [IFWP] The Sims-Auerbach Correspondence (was: The CPT- ICANN
    Correspondence


> > So let's not hear any more of this nonesense that we individuals should be
> > satisfied with membership in the At Large Membership and forego any
> > meaningful voice in the policymaking of the DNSO.

>   While I recognize that there are certain important issues that will 
> be dealt with in the DNSO, what if there were other identifiable 
> issues which were appropriately (according to the Bylaws) initiated 
> by the AL membership? (I keep wanting to call it a supporting 
> organization, but that leads to the unfortunate acronym ALSO...)

There were those of us who during last summer's "discussions" advocated a
much stronger role for general membership and a stronger board vis-a-vis
the supporting organizations.

I suggest you take a look at what the Boston Working Group proposed.
Copies are on-line at the NTIA web site or http://www.cavebear.com/bwg/

However, the IANA push was for very strong Supporting Organizations and a
very weak board.  Indeed, one of the most common notions floating around
in those days was that the technical community had to protect the Internet
from the technically-challanged (much stronger wording was actually used)
Board.  That weak-board/strong SO form still exists within ICANN.  I doubt
that we will be able to change it.

> If it happened that those issues got themselves focussed on (not, of
> course, _organized around) before too much more water flows over the
> commercial/ non-commercial dam, is it so inconceivable that the
> workings of the Elected Board could be substantially influenced as it
> comes to consider various SO proposals?

Remember, the elected board is just a part of the board.  And the ICANN
board has only very weak powers to interfere with policies made by the
various Supporting Organizations.

Part of the BWG proposals was to significantly change that balance.  But
that was one of the points we didn't get.

So it remains the case that the general membership has the ability to
elect board members who are, themselves, rather close to powerless when
confronting a policy choice made by a Supporting Organization.

Here's the relevant parts of the ICANN by-laws.  Be careful not to read
too much into section (f) -- it is not triggered until the an SO has sent
in a proposal with the Board rejects under (e).  If there is no SO
proposal -- as when the board decides that it would be good to get rid of
an existing, already board-adopted SO proposal, then section (f) doesn't
come into play.


ARTICLE VI:  SUPPORTING ORGANIZATIONS 

Section 2:  RESPONSIBILITIES AND POWERS   

(e) Subject to the provisions of Article III, Section 3, the Board
    shall accept the recommendations of a Supporting Organization if the
    Board finds that the recommended policy

      (1) furthers the purposes of, and is in the best interest of, the Corporation;

      (2) is consistent with the Articles and Bylaws;

      (3) was arrived at through fair and open processes (including participation
          by representatives of other Supporting Organizations if requested);

    and

      (4) is not reasonably opposed by any other Supporting Organization.

    No recommendation of a Supporting Organization shall be adopted unless
    the votes in favor of adoption would be sufficient for adoption by the
    Board without taking account of either the Directors selected by the
    Supporting Organization or their votes.

(f)  If the Board declines to accept any recommendation of a Supporting
     Organization, it shall return the recommendation to the Supporting
     Organization for further consideration, along with a statement of the
     reasons it declines to accept the recommendation.  If, after
     reasonable efforts, the Board does not receive a recommendation from
     the Supporting Organization that it finds meets the standards of
     Section 2(e) of this Article VI or, after attempting to mediate any
     disputes or disagreements between Supporting Organizations, receives
     conflicting recommendations from Supporting Organizations, and the
     Board finds there is a justification for prompt action, the Board may
     initiate, amend or modify and then approve a specific policy
     recommendation. 


######################################################################


Date: Mon, 21 Jun 1999 08:27:53 -0400
From: Joe Sims <Joe_Sims@jonesday.com>
To: Karl Auerbach <karl@cavebear.com>
Cc: list@ifwp.org
Subject: Re: [IFWP] The Sims-Auerbach Correspondence (was: The CPT- ICANN 
    Correspondence

___________________________________________________________________________
____

 This message is intended for the individual or entity named above.  If you
are not the intended
 recipient, please do not read, copy, use or disclose this communication to
others; also please
 notify the sender by replying to this message, and then delete it from
your system.  Thank you.
___________________________________________________________________________
____

I know, I'm violating my own very recent commitment to not do this, but on
this one, I can't resist.  You keep quoting the bylaws, but you always omit
Section 2 (g), which reads as follows:

"Nothing in this Section 2 is intended to limit the powers of the Board or
the Corporation to act on matters not within the scope of primary
responsibility of a Supporting Organization or to take actions that the
Board finds are necessary or appropriate to further the purposes of the
Corporation."

Since, as you point out, I wrote this language, I feel comfortable in
interpreting it.  Taken as a whole, including Section 2 (g), Section 2 sets
up a process where, in the ordinary course, the SOs are primarily
responsible for policy development in areas within their scope, and there
is a presumption that SO recommendations will be accepted in ordinary
circumstances.  But there are two savings clauses that preserve, as is
appropriate, the ultimate authority of the Board.  The first are Sections
(e) and (f), which taken together set forth specific criteria by which the
Board may reject a recommendation of an SO and the procedures that will be
followed in those circumstances; since those include a finding that the
recommendation "furthers the purposes of, and is in the best interest of,
the Corporation," these provisions leave ample room for the Board to make a
judgment, where appropriate, that is different than that of the SO.  The
second is Section (g), which is a general savings clause that provides the
Board with the full range of authority necessary for the Board members to
carry out their fiduciary responsibility.  It is hard  to imagine when the
Board might have to rely on Section 2 (g), since the criteria in Section 2
(e) and (f) seem sufficiently broad to cover  any eventuality, but it is
there nonetheless.

The net of all this, in my opinion, is that the Board has ample power to
make its own decisions, following the recommendations of the SOs if that
seems appropriate and not if, in its  considered judgment, it is not.
thus, the notion that this is a weak Board is a figment of either your
imagination or desire; it does not derive from the bylaws.





                                                                 
                                                                 
                                                                 



> > So let's not hear any more of this nonesense that we individuals should
be
> > satisfied with membership in the At Large Membership and forego any
> > meaningful voice in the policymaking of the DNSO.

>   While I recognize that there are certain important issues that will
> be dealt with in the DNSO, what if there were other identifiable
> issues which were appropriately (according to the Bylaws) initiated
> by the AL membership? (I keep wanting to call it a supporting
> organization, but that leads to the unfortunate acronym ALSO...)

There were those of us who during last summer's "discussions" advocated a
much stronger role for general membership and a stronger board vis-a-vis
the supporting organizations.

I suggest you take a look at what the Boston Working Group proposed.
Copies are on-line at the NTIA web site or http://www.cavebear.com/bwg/

However, the IANA push was for very strong Supporting Organizations and a
very weak board.  Indeed, one of the most common notions floating around
in those days was that the technical community had to protect the Internet
from the technically-challanged (much stronger wording was actually used)
Board.  That weak-board/strong SO form still exists within ICANN.  I doubt
that we will be able to change it.

> If it happened that those issues got themselves focussed on (not, of
> course, _organized around) before too much more water flows over the
> commercial/ non-commercial dam, is it so inconceivable that the
> workings of the Elected Board could be substantially influenced as it
> comes to consider various SO proposals?

Remember, the elected board is just a part of the board.  And the ICANN
board has only very weak powers to interfere with policies made by the
various Supporting Organizations.

Part of the BWG proposals was to significantly change that balance.  But
that was one of the points we didn't get.

So it remains the case that the general membership has the ability to
elect board members who are, themselves, rather close to powerless when
confronting a policy choice made by a Supporting Organization.

Here's the relevant parts of the ICANN by-laws.  Be careful not to read
too much into section (f) -- it is not triggered until the an SO has sent
in a proposal with the Board rejects under (e).  If there is no SO
proposal -- as when the board decides that it would be good to get rid of
an existing, already board-adopted SO proposal, then section (f) doesn't
come into play.


ARTICLE VI:  SUPPORTING ORGANIZATIONS

Section 2:  RESPONSIBILITIES AND POWERS

(e) Subject to the provisions of Article III, Section 3, the Board
    shall accept the recommendations of a Supporting Organization if the
    Board finds that the recommended policy

      (1) furthers the purposes of, and is in the best interest of, the
Corporation;

      (2) is consistent with the Articles and Bylaws;

      (3) was arrived at through fair and open processes (including
participation
          by representatives of other Supporting Organizations if
requested);

    and

      (4) is not reasonably opposed by any other Supporting Organization.

    No recommendation of a Supporting Organization shall be adopted unless
    the votes in favor of adoption would be sufficient for adoption by the
    Board without taking account of either the Directors selected by the
    Supporting Organization or their votes.

(f)  If the Board declines to accept any recommendation of a Supporting
     Organization, it shall return the recommendation to the Supporting
     Organization for further consideration, along with a statement of the
     reasons it declines to accept the recommendation.  If, after
     reasonable efforts, the Board does not receive a recommendation from
     the Supporting Organization that it finds meets the standards of
     Section 2(e) of this Article VI or, after attempting to mediate any
     disputes or disagreements between Supporting Organizations, receives
     conflicting recommendations from Supporting Organizations, and the
     Board finds there is a justification for prompt action, the Board may
     initiate, amend or modify and then approve a specific policy
     recommendation.

######################################################################

Date: Mon, 21 Jun 1999 09:11:35 -0700 (PDT)
From: Karl Auerbach <karl@cavebear.com>
Reply-To: list@ifwp.org
To: IFWP Mailing List <list@ifwp.org>
Cc: comments@icann.org
Subject: Re: [IFWP] The Sims-Auerbach Correspondence (was: The CPT- ICANN 
    Correspondence

 
> I know, I'm violating my own very recent commitment to not do this, but on
> this one, I can't resist.  You keep quoting the bylaws, but you always omit
> Section 2 (g), which reads as follows:

I don't mention (g) because under the obvious intepretation, it is not
relevant.

But you seem to have found a new interpretation that I very much like - an
interpretation that turns the Supporting Organizations into mere advisory
committees that the board can use or ignore at its pleasure.

Unfortunately for us to accept your interpretation, it is necessery to
toss out various sections of the by-laws that your interpretation reduces
to useless deadwood.


>  The first are Sections
> (e) and (f), which taken together set forth specific criteria by which the
> Board may reject a recommendation of an SO and the procedures that will be
> followed in those circumstances; since those include a finding that the
> recommendation "furthers the purposes of, and is in the best interest of,
> the Corporation," these provisions leave ample room for the Board to make a
> judgment, where appropriate, that is different than that of the SO.

I would like it very much if the board had total power of review, which is
what you are saying the language added in Cambridge provides.

I would be very happy to accept your intepretation -- I've always
advocated that Supporting Organizations be merely advisory bodies and that
the ICANN board have final responsibility.

So, if you really believe your interpretation, then you should remove all
that now meaningless, deadwood language that purports to constrain the
board's ability, and let's give Supporting Organizations the name that
they would then deserve - optional Advisory Committees.



> The net of all this, in my opinion, is that the Board has ample power to
> make its own decisions, following the recommendations of the SOs if that
> seems appropriate and not if, in its  considered judgment, it is not.
> thus, the notion that this is a weak Board is a figment of either your
> imagination or desire; it does not derive from the bylaws.

You have been a major proponent of a weak board.  You resisted the efforts
of the BWG and elsewhere to have a strong board.

And here you are today saying that you wrote a strong board with SO's that
are purely advisory.

I'm happy to hear you say it.  It's a breath of fresh air. And it destroys
the SO's as the sole source of policy.

It means that now we can form another Domain Name Advisory Committee and
it can make proposals and if the board adopts them, those proposals become
the law of the net no matter what the DNSO might say.

It's good to see you come around and finally espouse the
strong-board/SO-as-advisory committee approach that so many of us wanted
for so long.

You do, of course, recognize that you have today destroyed the concept of
Supporting Organizations as the focus of policy development.

That's something I can very much support.

Indeed, I pointed out last summer that the Supporting Organization concept
was improper as it transfered power from the board and thus made board
members unable to fulfill their fiduciary obligations.  I'm glad to see
that by last autumn you came to the same conclusion.

I do have a suspicion, however, that you don't mean the implications of
what you have written.

But it's going to be hard to put that cat back into the bag, now that you,
as ICANN's legal advisor, have indicated that Supporting Organizations are
nothing more than advisory committees and have no more power to create
policy than does any other group that might form.

So let's take the next step -- let's get rid of the DNSO, ASO, and PSO.
Since, as you now agree, they are nothing more than advisory, they can be
elided from ICANN's structure and the buget can be reduced.


--------------------

> Since, as you point out, I wrote this language, I feel comfortable in
> interpreting it.

Don't forget the canon of interpretation that says that language is
interpreted against he who drafts it, ie. that the drafter should bear the
burden of ambiguous language.


		--karl--


######################################################################


Date: Mon, 21 Jun 1999 12:43:51 -0400
From: Joe Sims <Joe_Sims@jonesday.com>
To: Karl Auerbach <karl@cavebear.com>
Cc: list@ifwp.org, comments@icann.org
Subject: Re: [IFWP] The Sims-Auerbach Correspondence (was: The CPT- ICANN 
    Correspondence




___________________________________________________________________________
____

 This message is intended for the individual or entity named above.  If you
are not the intended
 recipient, please do not read, copy, use or disclose this communication to
others; also please
 notify the sender by replying to this message, and then delete it from
your system.  Thank you.
___________________________________________________________________________
____

your mind is a scary thing.  there has never been anything stopping you or
any proto-group you form from making suggestions to anyone, including the
ICANN Board, anytime you want to.  Nor has there ever, except apparently in
your mind, been any struggle over  strong vs weak Boards.  The SOs have
always been, at least in the eyes of those who proposed  them in the first
place, vehicles for the debate over and development of policy
recommendations; they remain that today.  I understand (I guess) that you
have a little different way to look at these things, and more power to you,
but you may understand why  that idiosyncratic approach is not attractive
or persuasive to others.  By the way, the fact that no one else that I know
of has read the language the way you do is some evidence that it is not the
language that is ambiguous.


                                                                  
 (Embedded                                                        
 image moved   Karl Auerbach <karl@cavebear.com>                  
 to file:      06/21/99 12:11 PM                                  
 pic21286.pcx)                                                    
                                                                  


Extension:

To:   IFWP Mailing List <list@ifwp.org>
cc:   comments@icann.org (bcc: Joe Sims/JonesDay)
Subject:  Re: [IFWP] The Sims-Auerbach Correspondence (was: The CPT- ICANN
      Correspondence





> I know, I'm violating my own very recent commitment to not do this, but
on
> this one, I can't resist.  You keep quoting the bylaws, but you always
omit
> Section 2 (g), which reads as follows:

I don't mention (g) because under the obvious intepretation, it is not
relevant.

But you seem to have found a new interpretation that I very much like - an
interpretation that turns the Supporting Organizations into mere advisory
committees that the board can use or ignore at its pleasure.

Unfortunately for us to accept your interpretation, it is necessery to
toss out various sections of the by-laws that your interpretation reduces
to useless deadwood.


>  The first are Sections
> (e) and (f), which taken together set forth specific criteria by which
the
> Board may reject a recommendation of an SO and the procedures that will
be
> followed in those circumstances; since those include a finding that the
> recommendation "furthers the purposes of, and is in the best interest of,
> the Corporation," these provisions leave ample room for the Board to make
a
> judgment, where appropriate, that is different than that of the SO.

I would like it very much if the board had total power of review, which is
what you are saying the language added in Cambridge provides.

I would be very happy to accept your intepretation -- I've always
advocated that Supporting Organizations be merely advisory bodies and that
the ICANN board have final responsibility.

So, if you really believe your interpretation, then you should remove all
that now meaningless, deadwood language that purports to constrain the
board's ability, and let's give Supporting Organizations the name that
they would then deserve - optional Advisory Committees.



> The net of all this, in my opinion, is that the Board has ample power to
> make its own decisions, following the recommendations of the SOs if that
> seems appropriate and not if, in its  considered judgment, it is not.
> thus, the notion that this is a weak Board is a figment of either your
> imagination or desire; it does not derive from the bylaws.

You have been a major proponent of a weak board.  You resisted the efforts
of the BWG and elsewhere to have a strong board.

And here you are today saying that you wrote a strong board with SO's that
are purely advisory.

I'm happy to hear you say it.  It's a breath of fresh air. And it destroys
the SO's as the sole source of policy.

It means that now we can form another Domain Name Advisory Committee and
it can make proposals and if the board adopts them, those proposals become
the law of the net no matter what the DNSO might say.

It's good to see you come around and finally espouse the
strong-board/SO-as-advisory committee approach that so many of us wanted
for so long.

You do, of course, recognize that you have today destroyed the concept of
Supporting Organizations as the focus of policy development.

That's something I can very much support.

Indeed, I pointed out last summer that the Supporting Organization concept
was improper as it transfered power from the board and thus made board
members unable to fulfill their fiduciary obligations.  I'm glad to see
that by last autumn you came to the same conclusion.

I do have a suspicion, however, that you don't mean the implications of
what you have written.

But it's going to be hard to put that cat back into the bag, now that you,
as ICANN's legal advisor, have indicated that Supporting Organizations are
nothing more than advisory committees and have no more power to create
policy than does any other group that might form.

So let's take the next step -- let's get rid of the DNSO, ASO, and PSO.
Since, as you now agree, they are nothing more than advisory, they can be
elided from ICANN's structure and the buget can be reduced.


--------------------

> Since, as you point out, I wrote this language, I feel comfortable in
> interpreting it.

Don't forget the canon of interpretation that says that language is
interpreted against he who drafts it, ie. that the drafter should bear the
burden of ambiguous language.


          --karl--





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######################################################################


Date: Mon, 21 Jun 1999 10:56:33 -0700 (PDT)
From: Karl Auerbach <karl@cavebear.com>
Reply-To: list@ifwp.org
To: IFWP Mailing List <list@ifwp.org>
Cc: comments@icann.org
Subject: Re: [IFWP] The Sims-Auerbach Correspondence (was: The CPT- ICANN 
    Correspondence


> your mind is a scary thing.

It's open, if that's what you mean.


> there has never been anything stopping you or
> any proto-group you form from making suggestions to anyone, including the
> ICANN Board, anytime you want to.

You still don't get the point.

Your design for SO's -- the one you told me last year when Jon Postel
introduced us, the design that was "immutable" and which you said could
not be changed because of its massive "buy-in" from unnamed parties --

That design is one in which the SO's hold the key to policy.  They were
the sole and exclusive vehicles for the formulation of policy.

The BWG and others worked hard to soften that, and we did achieve that to
a very small part, over your objections -- hence the revised form of 2(e)
and the existance of (f) and (g).

We've been working to make the SO's merely advisory -- yet until your
interpretation of this morning -- the SO's were mandatory conduits for the
generation DNS, Address, and protocol parameter policies.

Your interpretation changes all of that.  Now the sole power of the SO's
is to appoint board members.  The board no longer has to listen to what
the SO's say at all.

You've essentially removed section 2(e) and (f) from having any meaning
whatsoever.

I congratulate you on you finally coming over to the BWG side.

-----------

> Nor has there ever, except apparently in
> your mind, been any struggle over  strong vs weak Boards.

You obviously must have been sleeping last September, October, and
November.  The topic was all the fashion.  Except perhaps on the withered
stump you call the "comments@icann.org" mailing list.

-------------


> The SOs have
> always been, at least in the eyes of those who proposed  them in the first
> place, vehicles for the debate over and development of policy
> recommendations

Nice to see you use the word "recommendations".  Too bad you didn't use
that word when you wrote section 2(e).

Rather, the 2(e) that you wrote obligates the board to accept an SO action
unless the board finds that the SO acted with bad process.  The language
you used gives the SO's a lot more power than merely making
"recommendations".

All I can do is suggest that if you meant something other than what you
wrote, then what are we to think of the rest of the ICANN by-laws?  Are
they similarly a poorly drafted form of what you intended.

(And I hasten to add, that the debate was over the written form, not your
rather late interpretations of this morning.)

We've already seen that the very first sentence of Article III,
Section 1 of the bylaws don't mean what is written:

  The 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.

I believe that the Internet community deserves to know whether ICANN is
defined by its articles and by-laws or by your ad hoc interpretations.

> ....  By the way, the fact that no one else that I know
> of has read the language the way you do is some evidence that it is not the
> language that is ambiguous.

Perhaps you ought to get out and read the mailing lists a bit more.  Even
the board members I talked to in Cambridge had the same interpretations as
I have put forth.

		--karl--

######################################################################


Date: Mon, 21 Jun 1999 15:03:59 -0400
From: Mikki Barry <ooblick@netpolicy.com>
Reply-To: list@ifwp.org
To: list@ifwp.org
Subject: Re: [IFWP] The Sims-Auerbach Correspondence (was: The CPT- ICANN  
    Correspondence

Joe Simms said:

>your mind is a scary thing.  there has never been anything stopping you or
>any proto-group you form from making suggestions to anyone, including the
>ICANN Board, anytime you want to.  Nor has there ever, except apparently in
>your mind, been any struggle over  strong vs weak Boards.  The SOs have
>always been, at least in the eyes of those who proposed  them in the first
>place, vehicles for the debate over and development of policy
>recommendations; they remain that today.  I understand (I guess) that you
>have a little different way to look at these things, and more power to you,
>but you may understand why  that idiosyncratic approach is not attractive
>or persuasive to others.  By the way, the fact that no one else that I know
>of has read the language the way you do is some evidence that it is not the
>language that is ambiguous.

Joe (if I can call you that without being accused of being an ICANN minion
or an NSI shill :-)) at least one of the meetings that I attended with Jon
Englund, INTA, CORE, et al discussed exactly strong vs. weak boards prior
to the final adoption of bylaws.  Also, one of the telephone conferences
ORSC had with Becky Burr spoke specifically to strong vs. weak board.  So
yes, there indeed was such a struggle.

Further, MUCH of the language of the bylaws has indeed been rather
ambiguous, and that fact that even one reading that differs from your own
should point to that conclusion.  It was indeed something that was
discussed on several different lists prior to the compromise drafts being
produced.

Lastly, I'd like to reiterate how helpful it is that you are engaging in
discourse on this list.  Thank you for choosing to do that.

######################################################################


Date: Mon, 21 Jun 1999 15:13:23 -0400
From: Joe Sims <Joe_Sims@jonesday.com>
To: Karl Auerbach <karl@cavebear.com>
Cc: list@ifwp.org, comments@icann.org
Subject: Re: [IFWP] The Sims-Auerbach Correspondence (was: The CPT- ICANN 
    Correspondence




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not that this is a terribly productive conversation, but nevertheless, in
an almost surely futile effort to get the last word:

Note that Section 1(a) of Article VI  of the Bylaws says:  "There shall be
advisory bodies known as Supporting Organizations."  Section 2(b) starts
out with "The Supporting Organizations shall serve as advisory bodies to
the Board . . . ."  The notion that the SOs were advisors, not
decision-makers, is not a new one.  One last time:  the idea was that, in
the ordinary course, the SOs would be the policy development bodies of
ICANN.  If they did it right -- got all the relevant input, and processed
it in a fair and open way -- there presumably would be little need or
reason to do it all over again at the Board level.  But the Board had to,
as both a matter of law and practicality, remain the final decision-maker,
and so the bylaws said, from the very beginning.  This is not a revelation
but a plain reading -- and one I have been telling you and anyone else who
asked ever since the bylaws were written.

I'm sure this won't be the last word, but it will be from me.



######################################################################


Date: Mon, 21 Jun 1999 13:29:30 -0700 (PDT)
From: Karl Auerbach <karl@cavebear.com>
Reply-To: list@ifwp.org
To: IFWP Mailing List <list@ifwp.org>
Cc: comments@icann.org
Subject: Re: [IFWP] The Sims-Auerbach Correspondence (was: The CPT- ICANN 
    Correspondence


> I'm sure this won't be the last word, but it will be from me.

I am certainly glad that you have finally demolished the authority of
the SO's.

It's good to know that the board is going to have the ability and
responsibility to entirely ignore, review, reject, or completey rewrite
anything that the PSO, DNSO, or ASO might decide.

I hope you do your duty as counsel and remove the clearly deadwood and
misleading language of sections 2(e) and 2(f) from the ICANN bylaws.

You may, as well, also remove that by-law requirement that ICANN operate
in an open manner, since that too is apparently something has also been
interpreted to be a nullity and subservent to your privately-imposed
requrements of "efficiency" and "efficacy".


------

> Note that Section 1(a) of Article VI  of the Bylaws says:  "There shall be
> advisory bodies known as Supporting Organizations."  Section 2(b) starts
> out with "The Supporting Organizations shall serve as advisory bodies to
> the Board . . . ."  The notion that the SOs were advisors, not
> decision-makers, is not a new one.

Nobody said it wasn't a new idea.

What is being said is that your language is such that that "advice" is
obligatory on the board unless the board can find, under the rather
narrow 2(e) exceptions, a basis for rejecting that advice.  Otherwise
your languate *requires* that the SO "advice* be adopted by the board
as the law of the net.

The thing that your interpretation of this morning adds is a notion that
the board, in order to meet its fiduciary obligation of being the
final authority in corporate matters, has to be able to override the SO's.

Notice that I did not say "new notion" -- We and many others told you all
about this last summer and fall.

And, what is amusing, is how hard you fought against a clear statement to
that effect last summer and fall.


		--karl--





######################################################################


Date: Mon, 21 Jun 1999 19:14:27 +0000
From: Kerry  Miller <kerryo@ns.sympatico.ca>
Reply-To: list@ifwp.org
To: list@ifwp.org
Subject: [IFWP] Re: The Sims-Auerbach Correspondence


Karl,
  Thanks for running through the history, but it still looks to me 
reasonable to suppose that the BoD will be able (is charged, in 
fact) to evaluate a proposal originatng from an SO in the light of all 
other inputs. Just because DNSO says it wants WIPO rules, say, 
doesnt mean it's automatically approved.  
    
Admittedly, AL membership accounts for 'only part' of the Board  
(fully half, as I understand it, which is some better than 1/7), but it 
does seem that (some of) the AL membership could start to 
practice *thinking like an SO, if that's what it would take to bring 
individual-based interests (including domain-name-owners in 
particular) into play under 2.e.(4):

> Section 2:  RESPONSIBILITIES AND POWERS   
> 
> (e) Subject to the provisions of Article III, Section 3, the Board
>     shall accept the recommendations of a Supporting Organization if the
>     Board finds that the recommended policy
...
>       (4) is not reasonably opposed by any other Supporting Organization.
> 

If that is not feasible as the Bylaws stand, then the AL contingent 
might find it worthwhile to focalize around *making it feasible. 
Living in San Jose may not be their "single overiding interest," but 
there must be one out there somewhere. Otherwise the Board will 
have 9 members who simply vote as they see fit, and the 
'representation' farce continues. 


>     No recommendation of a Supporting Organization shall be adopted unless
>     the votes in favor of adoption would be sufficient for adoption by the
>     Board without taking account of [*]either the Directors selected by the
>     Supporting Organization or their votes[*].
   
Now there's an interesting phrase! Does anyone (Diane?) have an 
exegesis? 

kerry
  
######################################################################


Date: Mon, 21 Jun 1999 20:27:18 -0400
From: Diane Cabell <cabell@mama-tech.com>
Reply-To: list@ifwp.org
To: list@ifwp.org
Subject: Re: [IFWP] Re: The Sims-Auerbach Correspondence

Kerry Miller wrote:

> Karl,
>   Thanks for running through the history, but it still looks to me
> reasonable to suppose that the BoD will be able (is charged, in
> fact) to evaluate a proposal originatng from an SO in the light of all
> other inputs. Just because DNSO says it wants WIPO rules, say,
> doesnt mean it's automatically approved.

I believe Karl does not question the Board's right right to evaluate and/or
override an SO proposal.  As I understand him, he is concerned that the At-large,
currently the only potential home for the individual, cannot propose policy
itself.

If the DNSO declined to propose adding a TLD for the new nation of Cabellia (hey,
this is my scenario here),  Karl's interpretation of the bylaws is that the
At-large may not independently introduce such a proposal.

 VI.2.c acknowledges that policy proposals may be introduced from non-SO sources;

"(c)  The Board shall refer proposals for substantive policies not received from
a Supporting Organization to the Supporting Organization, if any, with primary
responsibility for the area to which the proposal relates for initial
consideration and recommendation to the Board."

There is nothing anywhere in the bylaws that prohibits the At-large from making
proposals although there is unfortunately no mechanism established to encourage
it.  It's still pretty hard for one or more individuals to put an organization
together to work through a proposal, especially if the SOs can ignore that input.

> >     No recommendation of a Supporting Organization shall be adopted unless
> >     the votes in favor of adoption would be sufficient for adoption by the
> >     Board without taking account of [*]either the Directors selected by the
> >     Supporting Organization or their votes[*].

> Now there's an interesting phrase! Does anyone (Diane?) have an
> exegesis?

On routine business conducted by the full (elected) Board, a simple majority of
those present (given a quorum) is required to act.  The passage quoted above
(VI.2.e) is intended to remove the interested SO from voting on its own proposal,
thereby requiring a higher level of support from the remainder of the Board
(including the at-large) to approve it.  [The I-Board and by-law amendments, on
the other hand, require a 2/3 majority vote.]

I'm not sure offhand, but the *either/or* perhaps intends to eliminate the SO
from both quorum and vote calculations.  Interesting question whether VI.2.e
would affect the number of directors necessary to change the bylaws if an SO
proposal required such an amendment.

Diane Cabell
http://www.mama-tech.com
Fausett, Gaeta & Lund, LLP
Boston, MA

######################################################################


Date: Mon, 21 Jun 1999 18:40:44 -0700 (PDT)
From: Karl Auerbach <karl@cavebear.com>
Reply-To: list@ifwp.org
To: IFWP Mailing List <list@ifwp.org>
Cc: comments@icann.org
Subject: Re: [IFWP] Re: The Sims-Auerbach Correspondence

 
> I believe Karl does not question the Board's right right to evaluate
> and/or override an SO proposal.  As I understand him, he is concerned
> that the At-large, currently the only potential home for the
> individual, cannot propose policy itself.

I actually like the notion that the board has full plenary powers to
amend, ignore, or reject an SO proposal on any arbitrary grounds and that
the board has full plenary power to initiate and adopt any policy it finds
appropriate, even if impinges on the area nominally covered by an SO.

So I'm pleased by the new interpretation.


I am concerned that there is no vehicle through which non-commercial and 
individuals can participate in the definition of policy regarding domain
names, IP address allocation, or protocol parameters.

And when I say "participate" I mean "meaningfully participate" -- simply
observing is not adequate.  Rather I mean "partipate on par with all other
interests" in all facets of policymaking -- initiation, creation, and
approval.

 
> If the DNSO declined to propose adding a TLD for the new nation of
> Cabellia (hey, this is my scenario here), Karl's interpretation of the
> bylaws is that the At-large may not independently introduce such a
> proposal.
 
>  VI.2.c acknowledges that policy proposals may be introduced from
> non-SO sources;
 
> "(c)  The Board shall refer proposals for substantive policies not
> received from a Supporting Organization to the Supporting
> Organization, if any, with primary responsibility for the area to
> which the proposal relates for initial consideration and
> recommendation to the Board."

Well, here's where my concern starts to come to the fore -- if the board
has full plenary power to deal with policy, then it has the power to
initiate and adopt policy initiatives on its own without ever going to an
SO.

And if that is true, and it is true according to this morning's
interpretation, (else the board would still be a slave to and subservient
to the SO's) then there is nothing to stop the board from adopting the
proposal for Cabellia no matter from what source that proposal may arise
and adopt it without reference to any SO.

Yet, that means that VI.2.c's requirement to refer proposals to SO's is
vacuous -- the board can chose to ignore this by-law provision at the
board's whim.

So we have a conflict -- one provision gives the board unfettered freedom
to do what it wants despite SO's (per this morning's interpretation), and
other provisions impose limits on the board's powers vis-a-vis the SO's.

So there is is inconsistent langauge in the by-laws.  Which prevails?

>From the history of ICANN, it was pretty clear to me that the intention
was for the board to be limited vis-a-vis the SOs.  I didn't like that,
but such was the political results of last summer and autumn's debates.

And now we have a statement that says that all of that is not the case,
that the board, in order to meet its fiduciary responsibilities, must
retain ultimate control (something with which I most strongly agree), and
hence the board must have full authority to override any institutional
obsticle, including ignoring SO decisions or bypassing the SO process
entirely.

I very much approve of placing the responsibility for Internet policy
squarely on the shoulders of the board members.

Exercise of that responsibility empowers the board members to engage in
the merits of policy proposals from SOs.  Thus, for example, the board now
clearly has the power to override, amend, or repeal any policy that arises
from the PSO regarding the assignment of protocol parameters.

		--karl--