RE: [IFWP] Re: The Sims-Auerbach Correspondence

[Karl Auerbach <karl@CaveBear.com>]

> I think that the Board can do all the things that Karl would like it to be
> able to do, although there might be a lot of howls.
> 
> But personally I find the scenario disturbing.

It apparently isn't a scenerio.

According to ICANNs counsel the board of ICANN, in order to meet its
fiduciary duties (to whom one might ask in the absence of a membership)
and provide a clear trail of responsibility must have full discretion to
determine what the corporation (ICANN) does or does not do.

That neccessitates that the board have the power to reject, modify, amend,
or replace any SO decision.  And it also makes it necessary for the 
board to have the power to bypass a SO.

In most basic terms it all comes down to this: In corporations, the
directors are ultimately responsible for the actions of the corporation.
Hence they must have the ability to control all actions of the
Corporation.  In gross terms, this ensures that there are a clearly
enumerated set of people to bear legal liability for the mis-acts of the
corporation.

(Power can be delegated, but with that delegation there is also a transfer
of fiduciary responsibility, hence most corporate officers have
obligations and liabilities similar to that of board members.)

The ICANN structure, in particular sections VI.2(e) purported to remove
that power of control from the Board and transfer it to largely autonomous
bodies.

ICANN can't amend its way around this problem by saying that SO's are
advisory but, in practice, treating their "recommendations" as final --
the authority of the board must be true in actual practice as well as in
theory.

(Lot's of us mentioned that problem last summer and last fall, but did
anyone listen?) 

Thus all this stuff about SO's being the focus of policy and that their
decisions can't be interfered with by the board -- all those provisions
are now fallen by the wayside and are just meaningless printer toner.

The useless provisions of VI.2(e) and VI.2.(f) should be removed from the
ICANN bylaws as they are clearly now meaningless and will simply confuse
people into believing that which is not the case.

This does not prejudice the use of the SO's as advisory committees.  It
only means that the board has the freedom to not use them, and to ignore,
to modify, or to entirely rewrite what those SO's might happen to
recommend.

A lot of folks in the PSO, DNSO, and ASO are going to be surprised.

		--karl--