At 09:17 AM 7/22/99 -0700, Dave Crocker wrote:
snip
>> >This is a good example of how easy it is to formulate criticism and how
>> >difficult it is to put forward constructive DETAIL. It is also a good
>> >example of the destructive effect of attacking, without providing that
>> detail.
>>
David Post wrote
>>That's a bit unfair. Our point is that simply saying that ICANN will
>>only do what is "reasonable" doesn't mean anything unless coupled with
>>some means of interpreting what "reasonableness" means in any context.
>
DC:
>Again, such criticism is only useful to incur further delay, unless you
>have specific text to offer. The kind of language that ICANN has put
>forward is quite typical legalese. Contrary to your view, it IS
>meaningful. But if you don't like it, fine. Propose a specific alternative.
>
DP
>>As we said, putting it in the contracts is a good step; a better step
>>would be making those contracts enforceable by others. And a better
>>step would be empowering some independent arm to review ICANN's actions
>
DC
>"Some independent arm." Again, a generic suggestion without detail. Well,
>what the heck. This process has only been underway for 5 years, so let's
>take another 12 months to ADD to the ICANN complexity and GUESS whatever it
>is that will satisfy you.
>
DP
>>to determine whether they are 'reasonably necessary' to achieve their
>>[limited, non-governance] goals. Those are specific, detailed
>
DC
>Ahhh. Now we see a very real problem with the discourse. You work in a
>law school, so I'll assume you know something about the detail required in
>a contract.
>Yet you characterize your very broad, very vague assertions of requirement
>as "specific, detailed". Somehow, I suspect that a student in your law
>school writing a contract with such "specific detail" would not get a
>passing grade.
Sorry to be a bandwidth hog here, but just to get this "specific
detail" issue off of the table, I'm sending three things [in 3 separate
messages so I don't get bounced] that I distributed widely over the
past 9 months or so on the issue of the creation of an Independent
Review Panel for ICANN's actions. I think I have given them plenty of
detail, including a concrete plan and a set of principles and Bylaw
provisions on which to base this IRP. Maybe you disagree, Dave, but I
think that should give me **some** space to criticize ICANN's actions
without being charged with being just a 'naysayer' putting forth 'vague
assertions.'
David
1. Letter to the ICANN Board of Directors, November 12 1998
November 12, 1998
To: ICANN Board of Directors
I am writing in reference to your request for comments on the ICANN
By-laws and the governing structure of your new entity. I have deep
concerns about that structure as currently formulated. Any entity
responsible for, and exercising control over, the rootserver databases
possesses immense power over the future development of the Internet
itself, and will, accordingly, be subject to immense pressure to act in
ways that may be contrary to best interests of the Internet community
as a whole. Devising ways to prevent arbitrary, oppressive, or
self-interested actions by this entity is a task of deep � of truly
�constitutional� � importance to that community
I do not question the good will and honorable intentions of the
members of the ICANN Board of Directors; indeed, this letter is
premised on the notion that you are sincerely interested in building an
organization to which the Internet community can safely entrust this
most significant resource. What is at issue, however, is not your good
will and honorable intentions but the ability of the institution you
are building to carry out its functions in a fair and equitable manner
whoever may be occupying positions on the Board in the future. For
this purpose, the substantive provisions of the ICANN By-laws � the
promise to operate �in an open and transparent manner and consistent
with procedures designed to ensure fairness,� to �provid[e] a
reasonable opportunity for [affected] parties to comment� on the
adoption of new policies, the promise that the corporation will not act
�in competition with entities affected by the policies of the
corporation� nor apply its policies �inequitably,� nor subject any
party for �disparate treatment unless justified by substantial and
reasonable cause� � will not suffice. As James Madison pointed out 200
years ago, and as the history of constitution-making in the intervening
period has amply demonstrated, the �mere demarcation on parchment� of
limits on power is not �a sufficient guard against those encroachments
which lead to a tyrannical concentration of all the powers . . . in the
same hands.� Without some means outside of the Board�s control for
giving meaning to the principles and procedures set forth in the
By-laws in the face of unforeseen and unforeseeable circumstances and
events these substantive protections will inevitably prove inadequate.
Constructing a broadly representative Board of Directors � ensuring,
that is, that the global Internet community, and the many stakeholders
in the domain name system, have a voice on the Board � is necessary,
but will not be sufficient, for this task. If American constitutional
history proves anything at all, it is that representational principles
alone do not and cannot produce just governance. Power does corrupt,
and the power of even representative bodies must be held in check by
some means other than the �electoral� check on representatives; only by
dividing and dispersing governing power among distinct institutions
with distinct spheres of operation, and then �giving to those who
administer each [institution] the necessary means and personal motives
to resist encroachments of the others [can] a gradual concentration of
the several powers in the same department� be avoided. (Madison,
again). Without mechanisms pursuant to which others are given the
requisite means to check the Board�s exercise of its powers, the Board,
no matter how �representative� it may be, will succumb to the
inevitable and inherent pressures to act not in the interests of the
Internet as a whole but in its own self-interest (or in the interest of
whatever faction manages to gain control of the Board).
These �checks and balances� can be provided in many different ways.
Article III, Section 4 of the ICANN Bylaws already provides that �the
Board may, in its sole discretion, provide for an independent review
process by a neutral third party� in regard to �reconsideration� of
Board action. Putting this into practice in a meaningful way �
creating the equivalent of an independent judicial arm with the
authority to hear, on a global basis, claims that the Board has acted
in a manner contrary to the letter or spirit of its Charter or By-Laws
� is absolutely mandatory to provide the necessary counterweight to the
Board�s powers.
There are, to be sure, many questions that need to be considered in
constituting such an institution. For example, how should its members
be chosen? To what extent, and to whom, are decisions made by this
institution subject to additional internal or external appeal? In what
ways can the Board insure that its own freedom of action is not
unfairly compromised by an action by this co-ordinate institution? Who
bears the costs of these proceedings?
Without prejudging any possible solutions to these or other problems,
I would suggest that several principles should guide the Board�s
consideration of various options. First, any ICANN member, or member
of any ICANN supporting organization, should have the right to bring a
claim that the Board that has acted in a manner not authorized by its
Charter or By-laws before a neutral hearing panel. Second, the Board
must pre-commit to abide by a finding by any such hearing panel by
rescinding any action found to constitute such an unauthorized action.
Third, the hearing panels must possess a substantial degree of
independence from the Board; in particular, the Board must not have the
sole power to appoint or remove members of this co-ordinate
institution, who should be accountable, ultimately, to ICANN members.
This independence need not, and indeed probably should not, be
absolute; the Board, for example, may want to reserve for itself in
extraordinary circumstances � as evidenced by supermajority vote of the
Board, subject to approval by a supermajority vote of the ICANN members
� to refuse to recognize the findings of any hearing panel.
These principles can and should guide implementation of the Article
III Section 4 process, and different structures may comport with these
principles. These are not insurmountable obstacles if the Board is
truly interested in full and effective implementation. I would be
happy, should you decide to take this course of action, to provide any
additional assistance you might require to put an implementation plan
together. The only truly perilous course here is failing to take any
steps in this direction.
Sincerely,
David G. Post
Co-Director, Cyberspace Law Institute
Associate Professor of Law, Temple University
[EMAIL PROTECTED]/215-204-4539
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