On 09/11/2010 01:54 PM, Christian de Larrinaga wrote:
But as you have raised this. California law appears to have the intent of creating schizophrenic board members of not for profit public benefit corporations.
I do not agree. There is a belief among many that board members of ICANN owe a duty only to the corporation. That would be true of a for-profit in most corporate structures in most countries of the world. However, the California alters that duty so that the measurement of what is in the interest of the corporation must measure the effect on the public interest. That latter aspect is largely forgotten and largely ignored by ICANN in practice. It is not an unusual provision and does not create a split personality, rather it makes it clear that the corporate interest must be kept in alignment with the public interest.
The problem ICANN faces is not really one of the detail or interpretation of California law. It is whether it holds the public trust globally.
Again I have to wonder out loud - what's with all this usage of words like "trust" and "stewardship"? In particular with specificity and in detail, what is the specific thing that ought to be held in trust or be stewarded? I define ICANN's proper scope in terms of the technical procedure of resolving domain name query packets at the upper two tiers of DNS so that DNS query packets are efficiently, accurately, and promptly turned into DNS reply packets without bias against any query subject (domain name) or query client. By that measure ICANN is doing virtually nothing that is within its proper scope. (IANA, which I distinguish from ICANN, *is* doing some work with DNSSEC.) f As you say on the one hand they have to
mind the company and on the other they have to mind the public benefit. Doing this simultaneously is a huge challenge even for what an American might term a mom and pop outfit. But managing this for a body in the eye of global public interest is remarkably ambitious for those people on the board.
The management of public confidence is one reason why English Charity law separates out the trustee (board) from the management board and why the trustee board members are not paid. It ensures that there is clear air between those who are tasked for managing the purposes of the charity (for public benefit) and those tasked by those people to manage the organisational functions to satisfy that purpose.
I have doubts about using a charity as something comparable to ICANN. ICANN, in practice today, is a very heavy regulatory body that decides the fate of billions upon billions of dollars of economic benefits. And makes those decisions largely on the basis of the pressure from incumbent industrial interests that are defined by ICANN using that horrible and anti-democratic word "stakeholder". ICANN is structurally infirm and it has become a captured regulatory body. As long as we keep thinking of it through rose colored glasses as something else we will not be able to change it into something better. I have made several proposals over the years about how to restructure ICANN - most of those proposals follow Louis Sullivan's rule that form should follow function. As such my proposals have redefined ICANN around well defined functions, and split ICANN into bodies around those functions. One statement of those ideas is at http://www.cavebear.com/archive/rw/igf-structural-principles-for-internet-go... An earlier form is at http://www.cavebear.com/archive/rw/apfi.htm
It is perhaps also worth noting at this point in my comment that there is no reason other than the antecedents of the location of ISI --> Jon Postel --> IANA for why ICANN should be solely a California regulated body.
ICANN has to be somewhere. Every place has its faults. California is not a bad place - it has its faults* but it is not as bad from the public-interest point of view as, for instance, the State of Delaware. [*Without a doubt California certainly does have its geological faults.] (I'd also mention for passing interest that California, because of its heritage from Spain and Mexico does inherit some Civil Law principles.) (I wanted ICANN to be in Monterey, California, the former Spanish and Mexican capital of California, as I consider that more appropriate as the place where internet people gathered way-back-then than I do the Bologna creek estuary [renamed by real-estate developers as "Marina del Rey".]) I don't know whether people were ever aware of it, but ICANN did float plans to splatter itself into several distinct legal organizations in several countries with a common board-of-directors ("interlocking boards") across all of these. It would have been a procedural nightmare with lots of opportunities for "contracted parties" to do ICANN forum shopping. --karl--