RE: [gnso-vi-feb10] Board Resolution 2010.11.05.20

["Ron Andruff" <randruff@xxxxxxxxxxxxxxx>]

I, too, agree with Mike's analysis, particularly with regard to his comments
about ICANN's adhesion contract.  JJ and team have developed an AGB that
solely serves the interests of ICANN by off-loading any and all liability
and responsibility to applicants alone.

Kind regards,

RA 

Ronald N. Andruff
RNA Partners, Inc.


 

-----Original Message-----
From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx]
On Behalf Of Michael D. Palage
Sent: Monday, November 15, 2010 7:07 AM
To: 'Roberto Gaetano'; 'Milton L Mueller'; icann@xxxxxxxxxxxxxx;
Gnso-vi-feb10@xxxxxxxxx; 'Council GNSO'
Subject: RE: [gnso-vi-feb10] Board Resolution 2010.11.05.20


Roberto,

Please re-read my original post. My primary concern was obligations that
ICANN made to the Internet community in connection with the Affirmation of
Commitments.

If you believe that the ICANN Board has "taken full responsibility of its
role" please point to how it has complied with its obligation under the AoC
"to perform and publish analyses of the positive and negative effects of its
decisions on the public, including any financial impact on the public, and
the positive or negative impact (if any) on the systemic security, stability
and resiliency of the DNS."

Turning to your statement that "[w]e mistakenly believe that ICANN's policy
making process is just based on community consensus. It is indeed based on
it, but with the caveat that the Board, who has the ultimate responsibility
of the management of the organization, has not only the right but the duty
to intervene when all reasonable attempts at reaching community consensus
have been made without a clear cut outcome."

You may be surprised but I do not disagree with this statement. But I would
like to direct you to the Congressional testimony of Ester Dyson before the
US House Commerce Committee back in 1999. In addressing allegations that
ICANN was NOT a regulator she stated: 

If they come into existence, these contracts will be the product of
voluntary agreements; since ICANN has no governmental power, and indeed no
existence outside the context of community consensus, it cannot coerce
cooperation. If such a series of contracts is created, that will be both
evidence of the success of this consensus-development process and a strong
incentive for those who wish to benefit from connection to this network of
networks to comply with ICANN policies -- which will by definition be
nothing more than a reflection of community consensus.

Clearly there is nothing voluntary about the agreements, in fact the
proposed template Registry Agreement is nothing more than a one sided
adhesion contract - full stop. Perhaps you might want to ask the supporters
of the RACK proposal if they feel they are being coerced into participating
into a new gTLD process under the terms of the most recent Board
resolutions. 

Therefore I think it time for us recovering ICANN Board directors to
publicly acknowledge that when ICANN acts in the absence of consensus it is
doing so not a technical coordinator but as a market regulator.

Best regards,

Michael





-----Original Message-----
From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx]
On Behalf Of Roberto Gaetano
Sent: Monday, November 15, 2010 5:31 AM
To: 'Milton L Mueller'; icann@xxxxxxxxxxxxxx; Gnso-vi-feb10@xxxxxxxxx;
'Council GNSO'
Subject: RE: [gnso-vi-feb10] Board Resolution 2010.11.05.20


Now that a decision has been taken and the dust is settling after the storm,
wemight want to exchange some ideas on the lessons we have learned in this
WG, that already 2 qualified participants have labeled as one of the most
interesting ones.
The first consideration I would like to make is prompted by Michael's
concern about the Board making decisions in absence of community consensus.
I am also worried about those circumstances, but have to recognize that we
have to live with that. It has already been said that we cannot assume that
community consensus can be reached in each and every circumstance: this is
not always the "failure" of the WG, but often the simple result of
environmental circumstances. If I am a little worried about the Board
decisding in absence of consenus, I would be orders of magnitude more
worried by a Board who would *not* make a decision, as this would mean that
all what the incumbents that are happy with the status quo have to do is to
stall the consensus process.
In this particular case, in which it was obvious that the number of items on
which consensus was possible was very small, we could have gone on forever
without reaching substantial results, and eventually the Board would have
either recognized that no consensus was possible on a change, therefore
letting the status quo unchanged, or make a decision without the advantage
of community consensus.
We mistakenly believe that ICANN's policy making process is just based on
community consensus. It is indeed based on it, but with the caveat that the
Board, who has the ultimate responsibility of the management of the
organization, has not only the right but the duty to intervene when all
reasonable attempts at reaching community consensus have been made without a
clear cut outcome.
By making this step, this Board has taken full responsibility of its role,
and has given a sign of leadership that has not overstepped the will of the
community, but has supplemented the will of the community in a case where no
common voice has emerged.
I wonder whether this is a bird of a feather, dictated moreover by the
pressure for the introduction of net TLDs, or whether the Board is willing
to engage further in this direction, and possibly revisit issues in which,
because of lack of community consensus, things are maintained in an
inadequate state with no clear decision from the Board. The first example
that comes to mind is the WhoIs.
Cheers,
Roberto



> -----Original Message-----
> From: owner-gnso-vi-feb10@xxxxxxxxx 
> [mailto:owner-gnso-vi-feb10@xxxxxxxxx] On Behalf Of Milton L Mueller
> Sent: Wednesday, 10 November 2010 21:42
> To: icann@xxxxxxxxxxxxxx; Gnso-vi-feb10@xxxxxxxxx; 'Council GNSO'
> Subject: RE: [gnso-vi-feb10] Board Resolution 2010.11.05.20
> 
> 
> Agree. We should disband. And agree with Palage that it 
> certainly has been one of the more interesting WGs. Like 
> Michael, while pleased with the result I have nagging 
> concerns about the long-term procedural implications of the 
> board making policy without a recommendation from a WG, even 
> when it has made the right decision and even when it is 
> obvious that vested economic interests can block consensus in 
> a WG. This is not criticism of the board just pondering 
> ICANN's policy making methods...
>  
> Happy to see one less list to monitor. And happy to see that 
> Erik BW is being a good sport! 
> 
> Ciao
> 
> >I agree that there is nothing else this WG should do, and it 
> should be 
> >disbanded.  Curious to know if there are any different views 
> in the WG 
> >or on Council.
>