[governance] ICANN RFC on its performance

[Michael Froomkin - U.Miami School of Law]

Lest anyone think this sort of openness is idealistic or impossible, let 
me assure you that the state of Florida -- and every single regional and 
local governmental entity -- operates under rules of near-total 
transparency under the "Sunshine" provisions of the state constitution. 
It is an existence proof of concept.

Our law does not even allow three elected members to discuss business over 
lunch in a private meeting.  That may be going too far, but what Karl 
suggests about transparency is certainly possible.


On Sun, 13 May 2007, Karl Auerbach wrote:

> I am only adding to this thread on this list because I believe that the 
> growth of internet governance must learn from the lessons of the past. And in 
> that regard, our experience with ICANN, is book that we must examine without 
> rose colored glasses.
>
> That said, let me proceed to illustrate how ICANN teaches us that we must 
> embed into new bodies of internet governance, in a very deep and organic way, 
> mechanisms that require it to have real openness, real transparency, and real 
> accountability to the community of internet users.
>
> If we chose not to learn our new bodies of internet governance may become, as 
> ICANN appears to have become, captured by exactly those forces it is 
> purported to oversee and become ossified and non-responsive to the needs for 
> which it was established.
>
> I believe that Kieren's presence at ICANN is a very large positive change and 
> I deeply appreciate that he chose to give notice here of the ICANN request 
> for comments.  And I personally very much appreciate the way he is working to 
> create communications channels.  Kieren deserves our standing applause, and 
> then some.
>
> So with the primary intent of learning through re-examination of events past, 
> let me proceed:
>
> Veni Markovski wrote:
>
>> But ICANN has changed since the time you wrote it.
>
> Changed?  Yes - it has added a few frills and a lot of staff.  But the core 
> shape and issues remain the same.
>
> Yet it still remains that previous, and still valid, concrete recommendations 
> are being actively ignored.
>
> Those recommendations to which I refer are as valid today as they were three 
> years ago.  And unlike the "thousands" of comments to which you refer, these 
> were made in the form of an official ICANN communication written in the 
> performance of his duty and after considerable research by a sitting Director 
> to the Board of Directors.
>
> It is sad that the main place where this official communication is to be 
> found is in testimony before the United States Senate ( 
> http://www.cavebear.com/rw/senate-july-31-2003.htm ) rather than in any ICANN 
> place.
>
> You may try to write them off as years old.  But does not ICANN's failure to 
> hear what was said not add reinforce underlying message that ICANN simply 
> does not care and that it will use this current round of comments, exactly 
> has it has used previous rounds, to create merely an appearance without 
> actual substance?
>
> You again and again say "contribute something new".  Perhaps that would be a 
> valid comment had ICANN ever changed and had its old flaws been repaired.
>
> Perhaps ICANN ought to respond to the concrete, specific comments that were 
> made rather than trying to evade their existence.
>
> Tell me why this recommendation from the report is stale or inappropriate:
>
> Recommendation: All meetings of the Board of Directors and of its committees 
> should be audio-recorded and made available to the public. No matter may be 
> elided except after an on-record decision that a particular matter should be 
> discussed off the audio recording.  Only matters pertaining to personnel 
> matters, litigation (or potential litigation), and contract negotiations may 
> be discussed off the audio record.
>
> Tell me why the recommendation that ICANN's directors each receive a stipend 
> so that they can afford the time and expense to independently inform 
> themselves on matters is a recommendation that is somehow stale or 
> inappropriate?
>
> Tell me why the recommendation that ICANN's board have its own separate legal 
> counsel so that it may know when it is being led around by the nose by 
> ICANN's President and "staff", is somehow stale or inappropriate?
>
> Your recommendations
>> were published at this time, they were part of the hearings at the US 
>> Senate, and they are in many records.
>
> And you point is what?  That ICANN is selective about which of its official 
> communications it choses to publish?
>
> You will not find these recommendations on on ICANN operated repository.  In 
> other words, ICANN suppressed, and apparently still suppresses, concrete 
> written recommendations made during the course of a public meeting by a 
> sitting director.
>
> I find it amusing how ICANN brackets the spectrum - at one end it has 
> unlawfully denied sitting directors the exercise of their legal rights.  And 
> at the other end it tries to selectively pretend that some of its official 
> communications do not exist.
>
> Perhaps we might conclude that ICANN's role in internet governance, to the 
> very limited degree that it is even a body of *internet* governance, as 
> opposed to a body of trademark and registry protection, is to show us the 
> road *not* to be followed in the future.
>
> 		--karl--
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-- 
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A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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