On Tue, Jun 22, 1999 at 09:14:18AM -0400, Bret Fausett wrote:
[...]
> In the ensuing discussion, a substantial majority of those in the room
> believed that I had misread the Bylaws and that the broad language of
> subsection (1) gave -- and was intended to give -- the Board wide
> discretion to accept, reject or modify SO recommendations. From a strict
> legal reading, that is probably correct. But I think Roberto's earlier
> post captures the political reality of a Board rejection much better: "In
> fact, the Board can, if it pleases, disregard SOs recommendations, but it
> is obvious that the Internet Community would expect an argumented reason
> for doing that."
I think there is a more fundamental error in many people's mind
concerning the powers of ICANN. This was the sylogism that Postel
went through early on, and it was simply ignored by those who are
bound and determined to make a government out of ICANN:
1) The corporation had to be formed quickly because of external pressures.
2) Therefore new board *must* be able to change the bylaws, because there
were issues not yet resolved.
3) The bylaws can *never* be a strong guarantee against a rogue
board, as long as the board can change them.
Therefore, it was necessary to trust the new board. There are no
procedural guarantees in fact available.
As far as point 3 is concerned, I don't know if it is legally sane to
create a corporation with bylaws that cannot be amended -- my
feeling is that it would not be. That being the case, no procedural
guarantees are available, period.
---
> (1) furthers the purposes of, and is in the
> best interest of, the Corporation;
>
> (2) is consistent with the Articles and Bylaws;
Here, points 1 and 2 are what give the Board discretion. It is,
after all, the Board that decides what is in the best interest of
the corporation.
Given the above analysis, the question is, what checks are there on
the powers of the Board?
The answer is that the checks on the Board are the same as the checks
on the corporation as a whole -- the agreements the corporation signs
with other entities. As a bare california non-profit, ICANN has no
power whatsoever. It only gains power as a result of agreements it
signs.
It follows that the powers of the corporation actually flow from the
entities it makes agreements with (the USG, the dns registries and
registrars, the address registries, the root server operators, the
standards bodies, and so on), and the elaborate representational
structures we spend so much time agonizing over ultimately have
absolutely no significance, except to the point that they are
referenced (directly, indirectly, or implicitly) in the agreements
that the corporation makes with these entities.
--
Kent Crispin "Do good, and you'll be
[EMAIL PROTECTED] lonesome." -- Mark Twain
