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your mind is a scary thing. there has never been anything stopping you or
any proto-group you form from making suggestions to anyone, including the
ICANN Board, anytime you want to. Nor has there ever, except apparently in
your mind, been any struggle over strong vs weak Boards. The SOs have
always been, at least in the eyes of those who proposed them in the first
place, vehicles for the debate over and development of policy
recommendations; they remain that today. I understand (I guess) that you
have a little different way to look at these things, and more power to you,
but you may understand why that idiosyncratic approach is not attractive
or persuasive to others. By the way, the fact that no one else that I know
of has read the language the way you do is some evidence that it is not the
language that is ambiguous.
(Embedded
image moved Karl Auerbach <[EMAIL PROTECTED]>
to file: 06/21/99 12:11 PM
pic21286.pcx)
Extension:
To: IFWP Mailing List <[EMAIL PROTECTED]>
cc: [EMAIL PROTECTED] (bcc: Joe Sims/JonesDay)
Subject: Re: [IFWP] The Sims-Auerbach Correspondence (was: The CPT- ICANN
Correspondence
> I know, I'm violating my own very recent commitment to not do this, but
on
> this one, I can't resist. You keep quoting the bylaws, but you always
omit
> Section 2 (g), which reads as follows:
I don't mention (g) because under the obvious intepretation, it is not
relevant.
But you seem to have found a new interpretation that I very much like - an
interpretation that turns the Supporting Organizations into mere advisory
committees that the board can use or ignore at its pleasure.
Unfortunately for us to accept your interpretation, it is necessery to
toss out various sections of the by-laws that your interpretation reduces
to useless deadwood.
> The first are Sections
> (e) and (f), which taken together set forth specific criteria by which
the
> Board may reject a recommendation of an SO and the procedures that will
be
> followed in those circumstances; since those include a finding that the
> recommendation "furthers the purposes of, and is in the best interest of,
> the Corporation," these provisions leave ample room for the Board to make
a
> judgment, where appropriate, that is different than that of the SO.
I would like it very much if the board had total power of review, which is
what you are saying the language added in Cambridge provides.
I would be very happy to accept your intepretation -- I've always
advocated that Supporting Organizations be merely advisory bodies and that
the ICANN board have final responsibility.
So, if you really believe your interpretation, then you should remove all
that now meaningless, deadwood language that purports to constrain the
board's ability, and let's give Supporting Organizations the name that
they would then deserve - optional Advisory Committees.
> The net of all this, in my opinion, is that the Board has ample power to
> make its own decisions, following the recommendations of the SOs if that
> seems appropriate and not if, in its considered judgment, it is not.
> thus, the notion that this is a weak Board is a figment of either your
> imagination or desire; it does not derive from the bylaws.
You have been a major proponent of a weak board. You resisted the efforts
of the BWG and elsewhere to have a strong board.
And here you are today saying that you wrote a strong board with SO's that
are purely advisory.
I'm happy to hear you say it. It's a breath of fresh air. And it destroys
the SO's as the sole source of policy.
It means that now we can form another Domain Name Advisory Committee and
it can make proposals and if the board adopts them, those proposals become
the law of the net no matter what the DNSO might say.
It's good to see you come around and finally espouse the
strong-board/SO-as-advisory committee approach that so many of us wanted
for so long.
You do, of course, recognize that you have today destroyed the concept of
Supporting Organizations as the focus of policy development.
That's something I can very much support.
Indeed, I pointed out last summer that the Supporting Organization concept
was improper as it transfered power from the board and thus made board
members unable to fulfill their fiduciary obligations. I'm glad to see
that by last autumn you came to the same conclusion.
I do have a suspicion, however, that you don't mean the implications of
what you have written.
But it's going to be hard to put that cat back into the bag, now that you,
as ICANN's legal advisor, have indicated that Supporting Organizations are
nothing more than advisory committees and have no more power to create
policy than does any other group that might form.
So let's take the next step -- let's get rid of the DNSO, ASO, and PSO.
Since, as you now agree, they are nothing more than advisory, they can be
elided from ICANN's structure and the buget can be reduced.
--------------------
> Since, as you point out, I wrote this language, I feel comfortable in
> interpreting it.
Don't forget the canon of interpretation that says that language is
interpreted against he who drafts it, ie. that the drafter should bear the
burden of ambiguous language.
--karl--
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