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Re: [ga] Board decisions (2)

Dear Kent,
I understand Danny's mail proposes two different things.

1) to ask the DNSO elect Directors who did not vote as per the DNSO's
    recomendation to resign.

    >>> here you points seem acceptable to me once accepted the
           continuation of the Dennis Jennings' error. Joe Sims testified
           about this in a way which makes clear that he altered the
           SO bylaws in the DNSO case to accomodate within the DNSO
           the @lagre interests (consumers) as proposed by Dennis. The
           whole WG-Review issue and the @large Study Group are
           actually about correcting that error.

           You faught against it at the WG-Review - what was your
           perfect right - with the inconsious help of a few newbies to
           the point the WG-R lost track (you named it hi-jacking) and
           did not obtain what its initial Chair intended i.e. a parallel
           and common effort of clarification and of reorganization over
           the same period of time between the DNSO (interested in
           consensus on netwide issues) and the @large (interested
           in voting on stakeholders interests).

    The disagreement is between a bottom-up organization that
    most support and the top-down approach you favor. IMHO both
    approaches are wrong: iCANN should be a top-flat/bottom-flat
    organization, where national and market internet communities
    [represented by their NIC] confederate to obtain a few common
    services, and where professionnal competences may meet and
    offer pertinent advises and may coordinate asssitance.

2) to establish the procedure for the DNSO elect Director to be

    >>> I think Danny is right. We need that procedure to be
           established to provide guide lines helping us never
           having to use it.

           Otherwise we will continue having comments as:
           and uncertaintity at voting time for our Directors.
    The trade mark system is not for Mr. Touton to give some
    ownership of English, Chinese, French or Indi languages.
    (again IMHO the most important issue in the Plan B is .org
    being given to iCANN/Staff with permission to kill).

    You will not make me believe that Jonathan Cohen does
    not support plan B for partisan reasons he has always been
    clear about (I do not think they are in the best global interest
    of the Internet community but the NC obviously decided it
    could in favoring him to Jamie Love).

    I understand the support given by Alejandro Pisanty as a
    general support to Vint Cerf so the iCANN does not look
    divided in front of the DoC, the press and the opinion. If this
    is the case the responsibility taken is tremendous and
    would be ours. Would clear rules have obliged Alejandro
    to vote according to the DNSO position, he could have
    joined Abril i Abril.

    On that issue, I quote the later trhough Ted Byfield (URL above) :


My own impression, having sat through four numbing days of the ICANN meeting, is that the ICANN board, with a few possible exceptions, is neither venal nor corrupt but, rather, clueless: they spent an inordinate amount of time listening to Sims and Touton tell them what was happening.

Newly elected board member Amadeu Abril i Abril put it best when he spoke of the lingering problems with the NSI agreements: "I don't like these agreements... This is the best agreement we could have, given the circumstances... What I still wonder is why the circumstances were artificially altered." He went on to say that he thinks the U.S. government owes us an explanation of how this whole fiasco came about. I think Sims and Touton owe it to us. And once the full force of the UDRP become clear, I think you'll agree.



On 17:25 08/04/01, Kent Crispin said:

On Sun, Apr 08, 2001 at 12:17:16PM +0200, Siegfried Langenbach wrote:
> Mr Chairman, members of the ICANN board, members of NC,
> members of constituencies and GA
>  it was hard to imagine, but it happened : the board of ICANN used
>  the power they have (according the bylaws) and voted against the
>  recommendations of the DNSO constituencies and community.

According to the bylaws, a "recommendation of the DNSO" requires a
majority vote of the elected members of the names council, and a
"consensus" position of the DNSO requires a 2/3 vote of the members of
the NC.  Nine of the 19 members of the NC voted that they "reluctantly"
favored the old contract.  Nine is less than half the membership of the
NC; this is not a majority, therefore it was not a recommendation of the

This particular formulation was arrived at, you may recall, in the
context of a debate over the issue of a "weak" NC vs a "strong" NC; this
debate actually revolves around the more fundamental issue of the rights
of a minority vs the power of the majority, an issue that is
encapsulated in the old saying "democracy is two wolves and a sheep
voting on what to have for dinner".  Without some kind of safeguards
for the rights of minority positions, a democracy is simply a tyranny
of the majority.

There are two common approaches to dealing with this issue: 1) the "Bill
of Rights" approach, where certain rights are simply put beyond the
power of the majority to affect; and the "super majority" (or "rough
consensus") approach, where decisions require much more than a simple
majority.  (These approaches are not mutually exclusive, of course.)

In our context the "minorities" that were concerned about this were the
registries, both the ccTLDs and NSI.  (Nowadays, the registrars are also
included in that class.) [You may recall that the ccTLD registries
developed the notion of the "producer/consumer" split, which was
proposed in the DNSO formation meetings by Dennis Jennings: the
"producers" (registries/registrars) are numerically a tiny minority
relative to the "consumers", their interests are frequently
antagonistic, and the "producers" don't want to turn control of their
enterprises over to their customers.]

In any case, the result in the bylaws was that, by intention, it should
be relatively hard for the NC to make a recommendation.

> snip----------
>  Article V, Section 8. DUTIES OF DIRECTORS
>     Directors shall serve as individuals who have the duty to act in
> what they reasonably believe are the best interests of the
>     Corporation and not as representatives of the subordinate entity
> that selected them, their employers, or any other organizations or
>     constituencies.
> snap---------------
>  Making representatives ( elected boards ) responsible to those who
>  elected them is a fundamental issue IMO ( otherwise they are not
>  representatives in the words meaning ).

In fact, they are not "representatives", and they cannot legally be so.
That is a crucial difference between a government and a corporation;
ICANN is a corporation, and its directors, by law, have a fiduciary duty
to the corporation and its purposes, and not to the people who
(s)elected them.  This is an absolutely fundamental distinction.

In the case of ICANN, the purposes of the corporation are to support
the bests of the Internet community as a whole -- not the interest of
the DNSO.

>  I can not see any sense in participating in a body
>  ( constituency ) which is ignored by the board;

I'm sorry to tell you, but there is absolutely no way of avoiding this
-- unless absolutely everyone agrees (which we know is not the case),
there will always be some group that disagrees with the outcome of a
decision -- and they will always have the option of saying that they
were "ignored by the board".


>  In addition I fail to see that the BoD followed Article VI, Section 2
>  in which the process of taking decisions is described.
> snip--------------------------
> (f) If the Board declines to accept any recommendation of a
> Supporting Organization,

As described above, in fact there was no recommendation.


>  Lets have a quick look to the members of BoD:

You ask how the various board members can justify their action.  In my
opinion it is clear that they voted for the result that they really
think is best for the Internet Community, given the information that was

Looking down the list you provided, it is quite clear that none of the
board members are tied to NSI/VRSN.  Moreover, the history of conflicts
between ICANN and NSI is such that it is very hard to imagine that
either the board or the staff of ICANN have any particular love for NSI.
Nor can we presume that the board and staff are unknowledgable about the
ways of the world, or that they are ignorant of the business realities
that are fundamental to this issue.  Unlike some of those that strongly
oppose the new agreements, none of the board members have any obvious
vested interest in in the outcome.  There is no evidence at all of any
conspiracy among the board members -- in fact, quite the contrary...
And your letter is adequate proof that there is no particular political
advantage that the board members gain for this vote.

Consequently, there is no reasonable explanation for the outcome of the
vote except that the board really thinks this is the best result.

If you disagree with that assessment, I would be interested to know
your explanation for the outcome.

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