RE: [council] Some Observations

[Michael Schneider <sastre@anwalt.de>]

Joe,

I had almost been expecting a comment like that and had also thought it 
would be from you. However I hadn't expected you to argue as transparently 
as you did.

Please excuse that I will answer in detail and again with very open 
language. Right now I do not want to be in any way ambiguous as we are 
currently discussing a question which I regard as shaping the future of 
ICANN in the long term. In addition, this little discussion helps give some 
clarity of how I intend to define my role in the NC for the next years.

At 14:46 07.10.99 -0400, Joe Sims wrote:

 >These contracts have been posted for public comment; that certainly
 >includes the DNSO/NC, and the Board would certainly pay appropriate
 >attention to any comments from the DNSO/NC.

One can certainly see it that way. However, the thought comes to my mind 
that this view of things could prove a lack of respect for the NC and the 
DNSO as a whole. If the NC is nothing but a bunch of jumping jacks (I 
admit, we did make the occasional effort during the past weeks to present 
ourselves exactly that way ;-) then we should be consequent enough to 
change the ICANN structures. Then we'd assemble the NC once a year to elect 
a Board member and that's it. The constituencies and the General Assembly 
would be superfluent, anyone can voice their opinion on the ICANN Mailing 
lists and in the ICANN meetings every three months anyhow.

Excuse the cynical words, respected colleague, but I find nothing else to 
say to your opening statement. I have been watching you too long and too 
closely in the past couple of years (and you were far too involved in the 
re-structuring from IANA to ICANN) than to believe you yourself could find 
your statement convincing.

 > If, however, the rule of
 >process that is being espoused is that the ICANN Board cannot
 >initiate any action, and seek comments on it, but must wait for the
 >initiative to arise from a SO, that is certainly not what is
 >contemplated by the Bylaws, nor does it seem to me that it is a
 >reasonable rule.

This is not at all what I said and I am convinced you have read my posting 
thoroughly enough to have understood so. I made it very clear that from my 
view there are exactly TWO ways in which it could come to a decision 
concerning an SO. Either the initiative lies with the SO itself OR the 
Board becomes proactive and presents a suggestion to the Council of the SO 
concerned for review.

If however things go the way they did this time - i.e. the Board makes up 
its opinion behind closed doors and the council may then line up in the 
queue on the ICANN-server - then we don't need a council. Any one of us is 
free to do that anyway.

 > The Board must remain
 >free to at least raise issues,

Of course. That is exactly what I said.

 > and perhaps to take tentative actions,
 >pending review and comments from the relevant SO's and/or the public
 >at large; the important thing ought to be the opportunity to comment
 >and influence, not the order in which things are done.

I have a substantially different opinion on this but the two of us have in 
the past already had divergent views on how priorities are to be set and 
who should be in charge of the respective decisions. If I get the 
impression - and that is what is happening at the moment - that facts are 
created which bodies originally set up to counsel and control the decision 
maker may only applaud to, then I refuse to stand back and watch in silence.

 >Perhaps more importantly, this is a unique, legacy situation; to
 >generalize from it is neither required or appropriate.

I am certain we will have many opportunities in the near future to verify 
this statement.

 > I will await the effort,
 >should anyone choose to attempt it, to explain to me how the
 >ICANN/NSI relationship issue was likely to be resolved, not to
 >mention in a timely manner, through a bottom-up process originating
 >within the DNSO/NC.

I am not at all talking of a "bottom-up process". Anyone who participated 
in complex negotiations between partners set on making each others' lives 
as difficult as possible (with substantial efforts, money and lobbying) 
knows how touchy and sensitive this is. I am not so naive as to believe 
that one could constantly have involved the DNSO as a whole or (as 
suggested in the final stage of IFWP) called upon a large negotiation-team. 
Closed doors can have their legitimacy.

Nevertheless there are gray zones between black and white. One could have 
informed the NC of the basics of what was intended and planned. Some of us 
- and I know of several colleagues in the NC that excel in combining 
diplomacy, knowledge and negotiating skills - could even have been included 
in the discussions of the Board more intensely. Even more: For the very 
reason that there is currently no one to represent the DNSO-interests on 
the Board it would have been a MUST to include us. And please don't go 
telling me it wasn't possible. Both of us know better.

 > We
 >have plenty to do to figure out how to make this organization work in
 >a normalized environment;

And yet you are currently doing that by suspending "normal" rules even 
where they could already be applied easily. When do you think the point in 
time will have arrived to establish a "normalized" relationship between the 
Board and the councils?

 > to spend time or energy on this point, given its
 >clearly unique characteristics, seems unnecessary.

I recognize the incredible performance demanded of the Board. It is such 
that I had to admit to myself that I wouldn't be able to provide it now nor 
in the foreseeable future. I have great respect for those that were willing 
to face the responsibility and that are again willing to candidate for the 
Board.

Nevertheless neither timely aspects nor the "unique characteristics" of the 
negotiations with NSI can justify overruling regulations as you consider 
appropriate - regulations you yourself helped establish. Your writing 
reminds me of the practices of very weak democracies (and we have had ample 
experience with those in Europe in this century): One lets the parliaments 
and committees debate as long as one believes they will mainly be occupied 
with themselves and not cause any "harm". That kind of democracy has either 
disappeared or the committees at some point managed to deflect destructive 
tendencies.

 > That being said, I
 >certainly hope that any of you, individually or in the aggregate, who
 >have comments to make about the substance of the agreements will make
 >them so that your views can be considered by the Board.

Of course the Names Council should take a position on this. But again I 
would like to tell you that I know the strategy of "first creating facts, 
then asking and finally appealing upon everyone to constructively 
participate despite the unfortunate lack of due process for the sake of the 
cause" very well and do not regard it very highly, at least when used 
against me. I have said this from IAHC-times and I am saying it again.

However, I do not wish to withhold from you how to respond to this 
strategy: one takes the promise that the mistake will not be repeated 
literally. One creates publicity for the promise given and that the cause 
of the mistake was removed. And then at the next possibility available one 
jointly reviews with a broad public whether the promise was kept.

Best regards,
Michael Schneider

--
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  | Michael Schneider      CEO, AboveNet Deutschland GmbH            |
  |                        CEO, World Switch GmbH                    |
  |                    Founder, Schneider & Schollmeyer Law Firm     |
  |                   Chairman, eco - Electronic Commerce Forum e.V. |
  |                   Director, European ISP Association (EuroISPA)  |
  |                     Member, Names Council of ICANN               |
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  | Phone: +49 2242 927027      Michael.Schneider@abovenet.de        |