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Comment

  • To: iic-proposed-bylaws@xxxxxxxxx
  • Subject: Comment
  • From: Mike Roberts <mmr@xxxxxxxxxxxxxxxxx>
  • Date: Sun, 23 Aug 2009 19:52:03 -0700

Dear Board Members -

I urge you to put these proposed changes on hold while you reconsider the changing context of ICANN's relationship with the U.S. government, other governments, and other interested parties.

At best, these proposals are incrementally better than existing provisions of the bylaws related to accountability. The problem is not that they make the present unsatisfactory situation worse, but that they do not make it sufficiently better to attract support from your major constituents.

During 1999-2001, the Initial Board and I and staff legal counsel wrestled at great length with the accountability issue. Without going into details that are reflected in Board minutes and resolutions of that period, let me say that the fundamental problem was the disconnect between American (and other governmental) preferences for electoral democracy, and the practical difficulties of implementing any legitimate form of elected representation for ICANN in cyberspace. Our one effort to do so, the at large election of 2000, decisively demonstrated the ability of governments and large organizations to capture an electronic election for the ICANN Board.

Subsequently, several generations of the Board have attempted to erect an accountability fabric that would satisfy your critics. This has not worked, and I doubt that the latest effort will either. "Accountability" is a bigger issue for ICANN with the U.S. government and with other constituencies now than it was five or ten years ago.

It has been clear for some time that the best long term solution is for there to be a treaty relationship created to deal with Internet governance in the broad sense, of which ICANN would be a part. Treaties have been the mechanism for dealing with difficult issues of international relations for centuries, and a suitable arrangement can be found if approached with intelligence, commitment and good will.

However, it is obvious that no set of the major players is prepared to undertake the design of an
Internet Governance treaty at this time.

If the status quo is untenable, and a long term solution is not available, what options does the Board have?

For the last ten years, the U.S. Government has provided accountability for ICANN through the oversight provided by its contracts with you. No one is terribly satisfied with that arrangement, particularly since NTIA has reneged so many times on its promise to terminate those ties. However, as the recent U.S. Congressional hearing demonstrated, a continuation of USG oversight is viewed as the minimum necessary to satisfy demands for accountability.

It is in the Board's interest, on behalf of the entire ICANN community, to negotiate a new oversight arrangement that includes more than the U.S. Government. How much broader than one country the arrangement needs to be is a matter for your CEO and other advisors to recommend. I believe that your energies would be much better directed to this effort than to a Bylaw revision process that many regard as irrelevant to the main issues associated with accountability.

With best regards,

- Mike Roberts
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