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Re: [discuss] Unofficial minutes June 11 1999 Names Council Meeting

Michael Froomkin - U.Miami School of Law wrote:
> On Fri, 18 Jun 1999, Randy Bush wrote:
> > that you have the time and energy to respond to the provocation is
> > admirable.  thanks.  [ and yes, i think 'provocation' is a kind phrasing
> > when a lawyer suggests going against the stated will of the board ]
> >
> 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.  So would,
> I hope, any friend.  [Yes, there are exceptions to this general rule, but
> I don't think any of them apply here.]
> 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.  It follows that all the paper guarantees about the limited
> jurisdiction of this body are unreliable.  It follows that we have a
> problem.  Especially as ICANN is to all intents and purposes unreviewable,
> and the Names Council doubly so.
> The very thing about this somewhat formalistic, even legalistic, process
> that causes genuine and understandable frustration -- the delay it
> introduces, delay that benefits some perhaps unworthy and hurts some
> perhaps more worthy -- is the very thing that protects people who may
> disagree with any given decision of any given board in that it gives them
> time to protest, and makes the stakes at issue more manifest.  It is a
> (not "the", but "a") foundation stone of legitimacy.
> 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.

Dr. Froomkin-

Your admonitions and remarks to Randy Bush, the new self-proclaimed
spokesman for the non-commercial Internet users, are instructive.
However, it is too late for any hope that a membership will check
the board. The board will pick and choose and manipulate the
membership as they have done the NCDNHC, the DNSO, and the Names
Council, until the membership itself is no more than a rubber stamp
for them. Finding the ways and means of accomplishing this is what
has taken them so long to form a membership.

They are already investigating how to use the geographical diversity
requirement to prevent the membership from being representative of
interests other than those in agreement with them. If that
requirement serves their purpose, ICANN will end up with nine
At-Large directors who are from all the continents but who are, all
of them, ISOC members.

Only a generalized membership selected at random and put quickly
into place might have had a chance of preventing what has happened,
and of course the "interim and initial board" (as Jeff Williams
amusingly calls them) was careful not to permit that, although it
could easily have been done.

No, Mr. Froomkin, there is no longer any hope from that quarter. The
membership of ICANN will be no more than that - the membership of
ICANN - and not a broad spectrum of Internet users. And by the time
it is put into place the harmful policies of the board will have
become practice.

There are only two recourses open now to the community: appeal to a
higher authority to intervene and take control away from these
conspirators, or route around the Internet that they are taking
control of. Probably a combination of the two will be most effective
in restoring freedom of choice and stability to the Internet. The
creation of a worthwhile alternative, one that actually follows the
precepts of the White Paper instead of merely pretending to do so,
is now the main work. That, and finding a way of breaking up the
IAHC once and for all.