> How do we feel about DNSO to incorporate?
Roberto-
There was a long dicussion on this issue, on this list, involving Joop
Teernstra, David Crocker, Amadeu Abril i Abril, David Schutt, myself, you,
and others. Do you want to re-start that discussion, or are you asking now
for a vote?
I am against incoporating. I vote against it.
I made my views known in my earlier postings on this subject. I showed that
it is wrong for many reasons, including the fact that it makes the DNSO
liable for decisions it isn't responsible for and hasn't the power to stop.
But the worst thing about it is that it divides the Internet community and
stops the White Paper process, which calls for unity and cooperation.
Separate incorporation is just something cooked up by Joe Sims, and acceeded
to by Michael Roberts, no doubt through some sense of expediency and maybe a
desire to shirk responsibility. It doesn't have to be accepted. The ICANN
can be opposed on this. That's the position the ORSC is taking, I believe.
And we can, too, if we want to.
If anyone is interested in reviewing my arguments against incorporation, a
copy of the most significant is appended.
Some reasons why the DNSO should not incoporate.
The White Paper and ICANN's bylaws clearly define the Supporting
Organizations as part of ICANN, and actually as the components of its
structure. By removing the Supporting Organizations from ICANN, the new
bylaws place the Supporting Organizations in an untenable and unacceptable
position by making them responsible for policy but unable to decide on its
implementation, which will be done contractually by ICANN, and by making
them financially responsible for decisions taken by ICANN while depriving
them of its protection. They furthermore separate the Supporting
Organizations' memberships from that of ICANN, thereby further isolating the
Internet community's DNS and other interests from elective control over
ICANN's Directors, and so from the power to decide their own future. The
ICANN bylaws as they now stand with the new additions are designed to give
ICANN power without responsibility, and to give the Supporting Organizations
responsibility without power.
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 very big
mistake.