Why the DNSO Should Not Incorporate Separately

Just because the (potential) PSO and ASO may be incorporating, that
doesn't mean the DNSO must follow them. We can choose not to if we wish.
It's not just a question of legal accountability, although that is an
important question, but also of whether the DNSO wants to set itself as
a separate organization from ICANN and "pull the teeth" of ICANN's authority.

Furthermore, incorporating separately means the memberships of ICANN and
of the DNSO are separate. This is a very big step to take, because the
ICANN bylaws place the SOs within its membership structure, don't
forget. If the SOs are separate corporate entities, they must not only
have separate bylaws but a separate membership and a separate BoD. This
is setting up an adversarial relationship with ICANN, and weakens it
considerably. This may be a bad thing to do, at this point.

Autonomy? For what purpose? ICANN will still have the authority, if the
USG continues its present course. And that course depends on arriving at
a consolidated self-governing body, not four or five different bodies.
The SOs were envisaged as advisory councils for ICANN, not as distinct
organizations. How can the authority to decide on domain name, protocol,
and addressing policy be made by both ICANN and the SOs? Maybe what some
people want is for only the SOs to make policy, separately from ICANN, but
then the ICANN bylaws must be rewritten. This means going back to where we
were in June.

The lawyers for the PSO and ASO counselled them to incorporate,
apparently. But we must ask ourselves why they did this. Was it for the
good of ICANN and the good of the Internet, or was it perhaps because
the lawyers wanted to represent the SOs and get nice fat fees for
defending the SOs when they get sued? Were these lawyers Internet
people, aware of the complexities of the present situation and its
history? Aware that hundreds or thousands of people have been trying to
find a consensus approach to the NewCo? It doesn't sound like it.

Frankly, if I were counsel to ICANN, I would tell them not to recognize
these SOs that are incorporating separately, if my interest was in
seeing the ICANN accomplish its mission of focussing all the disparate
contingents and finding a way of making policy from consensus. If, on
the contrary, my interest was in legally protecting the ICANN Board,
sure, it's great for the SOs to be accountable separately from ICANN.
But it could be bad for the Internet, and it's certainly not what
everyone involved in these disputes for so long has been hoping for. It
is, in a way, institutionalizing the failure of ICANN before it has a
chance to get started.

We should keep in mind, I think, that these self-appointed SOs are
illegitimate. Their legitimacy comes from ICANN, not from incorporation.
The ORSC, for instance, incorporated when they wrote their bylaws, which
they sent to the NTIA, but that didn't make them ipso facto a competitor
with ICANN for recognition as the NewCo. Likewise the IETF and whoever has
incorporated as the ASO, the registries and such, are making a huge
pretense by incorporating as the PSO and ASO. There has been no open
process by which their memberships and bylaws have been decided. By what
right do they incorporate as SOs? If ICANN has been created by a less than
open process, these SOs are far worse, and have gone against the intention
of ICANN's bylaws, which have been accepted as a workable basis for the NewCo
by the USG and almost everyone else. By incorporating, these groups who now
call themselves the PSO and ASO have become outlaw SOs, not because they
separate themselves from ICANN but because they have yet no right to be the
SOs, which were created by the ICANN bylaws and must follow the ICANN bylaws
in order to be legitimate. The DNSO, on the other hand, has never done this;
it was not formed to incorporate as the DNSO but in order to present a
proposal to the ICANN, in keeping with the spirit of the process that is
under way, and derives its openness, legitimacy, and respect from this position.

Speaking for myself, I like to do things in a straightforward way.
Either I go along with ICANN and help to influence them to realize their
mission, which means creating a DNSO that's part of ICANN, that IS the ICANN,
or I join an organization - the DNSO or some other - that's opposed to or
competing with the ICANN. But I don't play this divisive game and ruin ICANN's
chances of succeeding.

Personally, I think that the people who organized this DNSO that we are
involved in have had the right approach - to follow the structure set up
in the ICANN's bylaws - and see if it can be made to work. To start
creating separate entities without open process, causing legal conflicts
and membership confrontations (who will be a member of ICANN and who a
member of the DNSO, if they are separate?) at this stage is, for me, a
big mistake.