[governance] ICANN stumbling on a hornet nest

[Karl Auerbach]

On 09/04/2012 03:52 PM, Salanieta T. Tamanikaiwaimaro wrote:

>         At Large in itself is not an accountability mechanism ...
>
>
>     I would substantially differ with that assessment.  If ICANN is not
>     accountable to those for whose benefit it exists, i.e. the public
>     community of internet users, then to whom is it accountable, and how?
>
> If we use your rationale who then comprises of the public community of
> internet users?
>
>   There is space for anyone within the broad public community to engage
> whether they wish to opt and join the Non Commercial Stakeholders or At
> Large etc?

However, as you said, those are not accountability mechanisms.  They 
have no power to take compel ICANN.

We ought not to conflate accountability - which is a power to march 
before a third party and demand that ICANN do what it is obligated to do 
- from supplication, and have that third party coerce ICANN to comply.

>     As it currently stands the only person who clearly has the power to
>     hold ICANN accountable is the Attorney General of California, Kamala
>     Harris.
>
> and so does the AG of every other country if you really think about it.

Thinking about it... thinking about it ... thinking about it ... ;-)

I disagree.  There is a matter called "jurisdiction" and except perhaps 
for those rather few countries where ICANN has business offices it is 
unlikely that any country than the US, and within the US the State of 
California, would find that it has jurisdictional power over ICANN.

As you allude there is the notion of jurisdiction based on contacts. 
However, I very much doubt that more than a handful, if any, national 
courts would find that TLDs form a basis for jursididiction.  And if 
they did it would most likely only be for matters pertaining to a 
particular TLD.

As for "cross constituencies" and "support organizations" - again that 
conflates the power to hold accountable with the power to make 
supplications.

Suppose that ICANN violates a law - as it did when it refused to let me, 
a sitting member of its Board of Directors, inspect its financial 
records.  There is no means that any ICANN constituency or support 
organization could retain redress.  Sure they could ask, but ICANN is 
free to ignore.

>     It strikes me that in these matters of internet governance that a
>     body of governance should be subject to a clear, unambiguous, and
>     viable chain of accountability to those for whose benefit that body
>     exists.
>
> It already does, last time I check and if it does not, then one can
> raise it formally through mechanisms provided for within the Bylaws.

Again you are conflating supplication with true accountability.

Suppose, for instance ICANN simply refuses to seat a liason or ALAC 
representative.  How are you going to force ICANN to meet its obligation 
to do so?

This is not a game of softball and hopes and wishes; this, as I 
mentioned last night, is a game of power politics.

	--karl--



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