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Unwise, Poorly Timed, Potentially Illegal: Reject This Proposal

  • To: comments-bylaws-amend-gac-advice-15aug14@xxxxxxxxx
  • Subject: Unwise, Poorly Timed, Potentially Illegal: Reject This Proposal
  • From: "Edward Morris" <emorris@xxxxxxxxxxxxxx>
  • Date: Thu, 28 Aug 2014 21:23:48 -0400

Adoption of this proposed Bylaws change by the Board not only would put a 
stake through the very heart of the bottom up multi-stakeholder process 
ICANN claims to adhere to, not only would approval imperil the IANA 
transition that this Board claims it is committed to and that thousands have 
worked hard over many years to achieve, but this proposal may very well be 
illegal under California law. This is a bad idea on all counts and needs to 
be rejected.

Who in their right mind would volunteer to donate hundreds of hours of time 
to work in the various working groups, supporting organizations and advisory 
committees that are supposed to make policy at ICANN when the output created 
and compromises made could effectively be nullified by a parallel process 
that has little structure, less transparency and even less accountability: 
that of the Governmental Advisory Committee (GAC)?

Let’s be clear about one thing: the GAC does not represent in real terms 
the governments of the world. It represents some governments. My native 
Ireland, the site of next October’s ICANN meeting, isn’t a member. Many 
countries are not. You can count the active membership of the GAC by using 
the digits of one or two people. It’s hard to know exactly how many digits 
are needed because the GAC’s processes are so opaque it makes the I.T.U. 
look like a beacon of openness and enlightenment.

To be fair this same lack of membership depth can also be attributed to many 
of ICANN’s groups. That’s why ICANN’s legitimacy is based upon the 
interaction between the diverse and multifaceted representative groupings 
that constitute the entire ICANN community and not on the basis of the 
membership of any one particular group of stakeholders. No single group 
alone within ICANN possesses the legitimacy to command any single aspect of 
the policy process. Yet.

Consider this scenario: After years of public meetings, debates and 
compromise a policy is developed through the PDP. The GAC, through closed 
processes that are a mystery to all but a select few, objects. The Board 
votes 10-6 to affirm the result of the PDP. The policy is defeated. The GAC 
effectively will be able to veto a democratically developed policy that has 
the support of the community and of the Board. That is not the role of an 
advisory committee, it is the role of a supervisory committee.

Where will ICANN find volunteers to selfishly commit hundreds of unpaid 
hours for the public good, work with others to develop reasonable policy, 
have the agreement of 62.5% of the Board to implement that policy and see 
that policy defeated by an opaque process involving individuals largely or 
totally absent from the policy development process itself? My guess is you 
won’t. True multi-stakeholderism would be dead.

The continued empowerment of governments within ICANN has had a place in the 
discussion concerning ICANN’s transition into an international independent 
organization no longer regulated and empowered by the National 
Telecommunications and Information Administration. The United States 
government has made it clear that the transition will not take place unless 
ICANN remains a true multi-stakeholder organization. What this means, of 
course, is open to debate.

In a July 31, 2014 letter to Dr. Crocker United States Senators Marco Rubio 
and John Thune clarified what this means to them: “ICANN must prevent 
governments from exercising undue influence…the IANA transition should not 
provide an opportunity for governments to increase their influence.” I do 
not think Senators Rubio and Thune intended for governments to increase 
their influence prior to the transition, as this proposal would do. I could 
be wrong but I don’t think I am.

Approving this Bylaws change at this time sends the wrong message to the 
world. It gives ammunition to those who want to scupper the transition 
process by alleging that the N.T.I.A. withdrawal will result in a 
“takeover” of the internet by perceived enemies of freedom, real or 
imagined. Does the Board really want to act contrary to the expressed views 
of those whose cooperation they need in order to make ICANN independence a 
reality? Is this Board so insular and so unaware of the greater political 
reality as to want to provoke the opposition to the transition this proposal 
will potentially cause?

If so, the Board may also wish to consider the possibility that this 
proposal is prime facie a violation of California law. California 
Corporations Code §5210 reads:

“Each corporation shall have a board of directors. Subject to
the provisions of this part and any limitations in the articles or
bylaws relating to action required to be approved by the members
(Section 5034), or by a majority of all members (Section 5033), the
activities and affairs of a corporation shall be conducted and all
corporate powers shall be exercised by or under the direction of the
board. The board may delegate the management of the activities of the
corporation to any person or persons, management company, or
committee however composed, provided that the activities and affairs
of the corporation shall be managed and all corporate powers shall be
exercised under the ultimate direction of the board.”

Under the current procedure the Board retains ultimate control of ICANN’s 
activities and affairs. The GAC advises the Board and the Board may accept 
or reject that advice by majority vote. That is permitted under section 5210 
of the California Corporations Code.

If this is proposal is adopted the Board will not in all cases retain 
ultimate control over ICANN’s affairs as required by California law. 
Should a majority of a full Board vote 10-6 or 9-7 to support a properly 
developed policy that the GAC has advised against that policy will fail. In 
that scenario the Governmental Advisory Committee, not the Board, will have 
ultimate control over the activities and affairs of ICANN. That is clearly 
not permitted under California law.

For the reasons stated, I ask the Board to reject this proposal and stay 
true to the bottom up multi-stakeholder vision this corporation was founded 
upon, and to remain a law-abiding institution this community and this world 
may have confidence in.

Thank you for your consideration of my views.

Respectfully submitted,

Edward Morris
Dublin, Republic of Ireland

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