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[Attention Richard Sexton and Javier Sola] to:Re: [discuss] Unofficial minutes June 11 1999 Names Council Meeting

Kent and all,

Kent Crispin wrote:

> On Fri, Jun 18, 1999 at 12:12:29PM -0400, Michael Froomkin - U.Miami School of Law wrote:
> > On Fri, 18 Jun 1999, Randy Bush wrote:
> >
> > If your superior (if that is in fact the relationship? I am told in anther
> > post that I have learning to do about the relationship between Mr.  Sola,
> > the Board, and the Names council...) tells you to act illegally, or in
> > violation of agreements, any good lawyer will tell you not to.
> However, that is not the case.  Mr Sola did not act either illegally
> or in violation of any agreements.

  I was not aware that you Kent, were properly qualified to make such
a judgment.  Be that as it may, it seems that there is at least a great
possibility that Javier acted improperly if not illegally in refusing to
allow Richard Sexton to participate in the phone conference as
a violation of his freedom of speech, not to mention a few other
civil violations that I will not list as that list is rather lengthy.  In addition
however, Javier acted in direct violation to the principals of the White
Paper as well.  Although this is not necessarily illegal...  But this may
be related indirectly to a violation of a presidential order.  Bad news that!

> > I cannot say it often enough, but it appears I have not said it clearly
> > enough:  If "doing what the board says" is the operative rule that
> > everyone engaged in ICANN-related activities should follow at all relevant
> > times, then there are no structural constraints on what the board can do
> > at any moment.
> This issue is worth reviewing.  Can, for example, the Board at this
> time cause .firm to be added to the root? No, of course it cannot.  I
> believe this illustrates rather conclusively that there are firm
> limits on the powers of the Board.  In fact, at this point in time
> the Board has essentially no power that is not a direct pass through
> to the USG.

  SO are you saying here that the USG directly approved of whom could
participate in the phone conference on June 11th?  Does the ICANN
Interim Board hold this to be a FACT as well?

> ICANN can create and destroy representative structures
> at whim, but the only things that matter from the point of view of
> the real world are the contracts that ICANN may sign with various
> parties.  The Bylaws do not legally speaking constitute an agreement
> with NSI.

  Again I believe that you have been shown and are very incorrect in this
matter as well Kent.

> In fact, I am not a lawyer, but my understanding of the law
> concerning ICANN is that the only legal oversight comes through
> California Non-profit corporation law, which allows the Attorney
> General of California to intervene in some circumstances.  Other than
> that, the Board can modify the bylaws, or ignore them, as it pleases.

  The state of California is also bound by US Federal mandated law as

> This may seem appalling, but in fact it is irrelevant.
> > It follows that all the paper guarantees about the limited
> > jurisdiction of this body are unreliable.
> This is, as I understand it, precisely true.
> > It follows that we have a problem.
> This, on the other hand, is utterly false, and indicates, I fear, a
> severe misunderstanding of what is going on.  The ultimate oversight
> in this process, at this point in time, actually comes from the MoU
> with the USG.

  Yes it does Kent.  Very perceptive of you.  And this is precisely where
Javier and the ICANN Interim Board are in stark violation of that very
MOU.  As such the NTIA, which is supposed to be doing the oversight here
is not doing it's job properly, and where individual citizens must at times
step in and insure that they do.

> At a later point the ultimate oversight will come from
> the MoUs and contracts with domain name registries and registrars,
> Standards Bodies, the 12 or so root server operators, the address
> registries, possible government agencies -- that is, the ones that
> are actually affected by ICANN.  ICANN has NO other prospective source
> of power.
> Furthermore, by itself it has no legal way to coerce these entities
> into signing contracts.  [Of course, the MoU with the USG gives ICANN
> some weight in dealing with NSI and the .com/.org/.net registrars,
> but ICANN by itself would be utterly powerless in this regard.]
> The paper structural guarantees you refer to are a work in progress,
> and are nowhere near complete.  But, from a real-world power point of
> view they have no significance except to the extent that the various
> MoUs and contracts refer to them (directly or indirectly).
> [...]
> > The fallback position implicit in your comments and explicit in some
> > others', that the Board can always rewrite its rules in due course to do
> > what it wants so there is an academic cast to this debate, may be
> > accurate, but if accurate it is hardly comforting.  To the extent that the
> > major check on a hypothetical runaway Board will be the actions of the
> > membership, it underlines the importance of getting a membership in place
> > before tinkering too much with rules of procedure.
> You may fail to realize that, from the perspective of those with
> whom ICANN may sign contracts and MoUs, a runaway membership is at
> least as problematic as a runaway board.  Put yourself in the
> position of a lawyer representing the Address Registries -- would
> you recommend that they give up any autonomy to ICANN?
> This is the fundamental flaw, I believe, in the position of those
> who claim all this is about governance.  ICANN is not the ultimate
> source of power in this -- it is those other entities, the ones with
> whom ICANN will sign MoUs and Contracts, who ultimately hold the
> power.  ICANN can have the finest, most representative structure on
> earth, but it is completely moot without the cooperation of those
> entities.
> --
> Kent Crispin                               "Do good, and you'll be
> kent@songbird.com                           lonesome." -- Mark Twain

Jeffrey A. Williams
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