On Thu, Feb 25, 2016 at 3:54 AM, Karl Auerbach <karl@cavebear.com> wrote:

One master would be the fiduciary obligations to protect the interests of the corporation (the measure of which for public-benefit corporations such as ICANN must incorporate an evaluation of the effect on the public interest.)

The other master would be this new outer shell that has marionette-like strings that reach into and sometimes supersede the decisions of the board and its members.

Corporations crumble and are penetrated every day for failures to adhere to proper formalities regarding the making of decisions, responsibility for those decisions (or lack of decisions), ownership of property, and record-keeping.

First, the record will show I tend to be mindful of Karl's views. This aside, his three (3) paragraphs excerpted above more or less outline both my understanding of how corporate governance is devised and the doubts I in my own head of what obtains from the proposals. It remains, in my humble opinion, a red herring to focus on the domicile of ICANN, the corporation. It is my experience that in these matters of 'state', it always is the case that you feel the hand of Esau even as you hear the voice of Jacob. NEVER focus on what is said. ALWAYS focus on what is done. Me now, I have always believed that the essential matters for our focus and attention are the constitution and diversity of the Board, the makeup and diversity of the staff, the breadth and sense of corporate self vested in the bye-laws and the practical execution of those rules to date. Karl pointed a fact that can survive the most rigourous disputation; even a cursory survey of corporation law from other jurisdictions - save and except those at the edge of empire intended to be conduits for capital and assorted chicaneries and which conveniently adapt the common law - will show almost uniform general requirements. Even in the case of membership organisations, it isn't so much the law but how the structure is organised and the business executed for benefit. Even as we discuss the re-balancing of powers, it is not cool to point out that as a centre of power in the current dispensation, the Board is in play and have compelling interests to protect. Thulsly, it is realpolitik to expect the resistance as inevitable. It is inevitable that if placed in a position where so many overseers have to be satisfied for movement, the Board of even a public benefit corporation would resist; too many interfaces to manage, too many competing power centres in decision-making, too many uncertainties introduced. Especially if they know the 'balance' intended is hardly achievable. It remains fit and proper, in my opinion, to attend the district court if anyone with standing feels aggrieved by a Board decision. This aspect would be a crap shoot everywhere. But I personally believe that the weight and gravamen of US law in this area gives one an almost even break at justice. I have said it before and it bears repeating. If I were a Board member at this time and absent indemnification approaching almost sovereign immunity, I would also be troubled by certain aspects of this proposal. -Carlton​ ============================== Carlton A Samuels Mobile: 876-818-1799 *Strategy, Planning, Governance, Assessment & Turnaround* =============================

Not a problems. we covered all of the recommendations and I have no worry that by missing the briefings, you will not understand what this accountability stuff is all about. I am sending out a message telling people who have not attended to review the briefings off line. The message is NOT aimed at this group! Alan At 25/02/2016 10:24 AM, León Felipe Sánchez Ambía wrote:

Dear Alan, all,

I am very sorry for missing the calls. As I anticipated to Alan I had a very busy day in work yesterday and today I woke up terribly ill and I just could not attend the call.

Please accept my apologies. I feel terrible for not having attended these calls.

Best regards,

León

...

El 25/02/2016, a las 4:58 a.m., Sébastien Bachollet <sebastien@bachollet.com> escribió:

Hello, I suggest to add the following slide on REC12 (as slide 77)

And as I write few days ago I am available to do 12.

All the best SeB

Skills are useful but diversity is essential.

Sébastien Bachollet +33 6 07 66 89 33 Blog: http://sebastien.bachollet.fr/ Mail: Sébastien Bachollet <sebastien@bachollet.com>

Le 25/02/2016 07:45, « Alan Greenberg » <alan.greenberg@mcgill.ca> a écrit :

...

CCWG Members and Olivier,

PowerPoint and PDF attached.

I will be happy to do Recommendations 5, 9 and 11 unless someone else is dying to do them.

I am far from an expert on 7 and 8 (IRP and Reconsideration), so would appreciate someone else taking these. Leon?

Others are up for grabs.

There is a lot to cover, so we will have to carefully mind the time.

I will be online about 15 minutes before the call starts. Presuming the freezing rain we are having does not kill the power.

I have not updated the Agenda. Could I ask Staff to add this presentation and remove AOB (the times add up to 120 without it).

Alan

<ccwg_Rec12_Add.pptx>

On 2/26/16 12:55 AM, Evan Leibovitch wrote:

Karl makes a compelling case why ICANN should not be a California corporation. That was not my point at all.

One can go to pretty much any country, any state, on the Earth and will find similar laws. There will, of course, be variations in color and texture among those laws. But no matter where, when people pool their interests in a common enterprise there will be the same questions of control during times of agreement and times of disagreement. From the 17th to the 20th century European ideas of organization were spread around the world. These laws have been polished through centuries of experience. Those who think they have a better idea often discover that that idea has occurred before and was found wanting. I am old enough to have come of age during the "flower power" era of the 1960's. I saw (and experienced) a lot of people and groups who rejected "the establishment" and sought to reshape the world along lines that were less confrontational, more "personally empowered", more "love, peace, and good vibes". Those attempts, like previous Utopian movements, faded because they were based on aspirations rather than recognition of hard lessons of experience with human nature. These proposals to restructure ICANN are similarly aspirational. And similarly unrealistic. Perhaps most unrealistic is the idea that "we can just pick up and move to somewhere else". The grass is not always greener on the other side of the fence. And if one takes a look around it's going to be hard to find a place that is more amenable than California to innovated organizational structures. Which is a good reason to look at what the aging Hippies who now run California have put into California's public-benefit/non-profit corporations law with regard to membership and the powers of that membership. Don't fight the system. Use it. --karl--

On 2/26/16 3:01 PM, Evan Leibovitch wrote:

In most ​jurisdictions in which I have been involved in the creation of nonprofits, the kind of member-less, mostly-unaccountable-Board that is the cornerstone of ICANN's present structure could not exist. In California the memberless approach is intended for use by things like theatre companies that tend to reflect the artistic direction of a director. The creation of ICANN intentionally mis-used the memberless approach (and we saw the legal scurrying when ICANN held the 2000 "selection" that was actually an "election" that triggers the mandatory use of a membership structure.)

However, a member based organization can be created - and often is created - in California. The rules of membership organizations here are pretty decent. And given that ICANN is already a California public-benefit/non-profit those rules would slide onto the organization like a well tailored glove. Or to pick a different simile - moving ICANN (including its assets and contracts) to another jurisdiction and imposing these proposals would be somewhat like attaching a helicopter to El Capitan in Yosemite and trying to air lift it to Iceland - at best hard, more likely impossible.

In most other nonprofits in most other places where one exists, a Nominating Committee does exactly that Nominating committees are troublesome, because one needs a solid legal structure to create them, populate them, run them, impose standards of care on the committee members, resolve disputes, and use their output.

The use of nominating committees is particularly ICANN-ish; it is not a common form of organization largely because they contain all of the structural issues of a board of directors. In a sense they become simply a higher level board of super-directors. And then one turns the recursion crank and ask "who nominates the nominating committee, and what if there is disagreement?" One might think that there is no risk of competing panels each claiming to be "the nominating committee". But world history has demonstrated that this thing can, and has, occurred.

-- nominate a slate that must be elected or ratified by some greater body. It is this body -- not the Board itself or the NomComm -- that determines the fiduciary duty and the good to be served. Fiduciary duty is to the corporate body, period. It is not levied onto a board or directors or individual directors by an outside body, particularly not by a nominating or electing body. That duty of care to the corporate interest alone is a fairly primary foundational element of corporate structures.

That said, in public-benefit/non-profit corporations, such as ICANN the corporate interest is measured by how well the corporation improves the public interest. That twist is something that is not well understood by most people who sit in board seats on public-benefit/non-profit corporations. But let's be clear - a corporate director owes no fiduciary duty to follow the opinions of a nominating committee or a membership. The entire duty of care is to the corporate interest (which in our case includes the public interest.) Ethics, politics, and simple good sense indicate that those opinions should be heard and considered. But, again, there is no duty to accept them or give them more weight than any other source of information. One of the best ways to destroy a corporation is to create marionette strings in which parties such as shareholders or debt holders or members or nominating committee can affect the decisions of a board of directors. That penetration of the corporate structure is the great danger that I see in these proposals. The result of such a failure would be chaos. It is foolish to consider proposals that contain that risk. And these proposals do.

​I had never encountered the ability of a nonprofit to unilaterally shed itself of Board oversight by its members until ICANN. ICANN does not have that ability. It can not wave a wand and say that it does. People should laugh (or as I did, take legal action) when ICANN makes such assertions.

But, unfortunately, people have accepted ICANN's assertions about membership. It might legal action to dispel years of propaganda from the law firm that created ICANN and still serves ICANN (and is still makes a lot of money from ICANN.) But the current effort at reform should use the current window of malleability to demand that ICANN adopt a membership structure. But that membership structure should not be this silly (and probably not-viable) proposed system that is as overtly contrived as is ICANN's present form. The California law of membership in public-benefit corporations is good, it is easy, it is apt. It is such an obvious path that I remain astounded at the level of effort being expended trying to not follow it. --karl--

On 2/26/16 4:42 PM, Evan Leibovitch wrote:

On 27 February 2016 at 01:01, Karl Auerbach <karl@cavebear.com <mailto:karl@cavebear.com>> wrote:

In California the memberless approach is intended for use by things like theatre companies that tend to reflect the artistic direction of a director.

​T​ hank you for making my point ​;​ that ICANN should not be incorporated in a jurisdiction where such loopholes exist. Loophole? Another word is "option". One word is pejorative, one is descriptive. But beyond that, is there really a difference?

Have you counted the number of structural variations that exist under Swiss law .. a quick search indicates at least ten forms for non-profit organizations under Swiss Federal law plus other forms under Canton law. Are those options or are they loopholes? The existence of options, or "loopholes", is pretty much a universal constant. That's what makes this current proposal such a fantasy - it is based on an awful lot of hypothetical, hopeful, or imagined conjecture. This proposal is tickling legal dynamite. Besides risking ICANN's viability as a corporate form it also raises concerns in those who hold contracts worth quite literally $billions a year. If one is one of the holders of one of those contracts if the other side (ICANN) undertakes risks that could upset the rights, duties, enforceability - the revenue stream - of those contracts, then they one might not be surprised if they legally intervene. --karl--

Sent from my LG G4 Kindly excuse brevity and typos On 27 Feb 2016 12:22 p.m., "parminder" <parminder@itforchange.net> wrote:

As a stop gap measure, before such incorporation under international law

can be worked out, a new ICANN free from formal NTIA oversight should set up a parallel redundant authoritative root in a non US location, which is fully primed to work and take over from the US based one the moment there is any interference by the US state - whether its judicial, legislative or executive branch, either in ICANN's policy process, or actual entries in the authoritative root. Since Internet's root system works by reputation and 'community acceptance' and not by any necessary physical components and linkages, this should be easy to work out.. This IMHO would be the best interim check on the US state's possibilities to interfere with ICANN/ root file business.

SO: At the moment there are root server replica across the globe. Technically it implies that each of those root can be potential authoritative root (if absolutely required). So I don't think setting up a redundant authoritative root outside US have any significant advantage in that it's only authoritative if active and not when redundant. Regards

parminder

On Friday 26 February 2016 09:31 PM, Karl Auerbach wrote:

...

On 2/26/16 12:55 AM, Evan Leibovitch wrote:

...

Karl makes a compelling case why ICANN should not be a California

corporation.

...

That was not my point at all.

One can go to pretty much any country, any state, on the Earth and will

find similar laws.

...

There will, of course, be variations in color and texture among those

laws. But no matter where, when people pool their interests in a common enterprise there will be the same questions of control during times of agreement and times of disagreement. From the 17th to the 20th century European ideas of organization were spread around the world.

...

These laws have been polished through centuries of experience. Those

who think they have a better idea often discover that that idea has occurred before and was found wanting.

...

I am old enough to have come of age during the "flower power" era of the

1960's. I saw (and experienced) a lot of people and groups who rejected "the establishment" and sought to reshape the world along lines that were less confrontational, more "personally empowered", more "love, peace, and good vibes". Those attempts, like previous Utopian movements, faded because they were based on aspirations rather than recognition of hard lessons of experience with human nature.

...

These proposals to restructure ICANN are similarly aspirational. And

similarly unrealistic.

...

Perhaps most unrealistic is the idea that "we can just pick up and move

to somewhere else".

...

The grass is not always greener on the other side of the fence. And if

one takes a look around it's going to be hard to find a place that is more amenable than California to innovated organizational structures. Which is a good reason to look at what the aging Hippies who now run California have put into California's public-benefit/non-profit corporations law with regard to membership and the powers of that membership.

...

Don't fight the system. Use it.

--karl--

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At-Large Official Site: http://atlarge.icann.org

_______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org

I mean a check against abuse of power is a check only when the potential abuser can feel it breathing down its neck.... parminder On Saturday 27 February 2016 08:07 PM, parminder wrote:

Seun

Firstly, there is huge difference between the one authoritative root, and the 13 root zone servers, and still more between these and their anycast instances... These three kinds can simply not be spoken of in the same breath. This is even more so when we are talking about creating a fully ready redundant system for immediate take over.

Second, when a really effective check is being devised against possible abuse of US state's jurisdictional power (about which strangely no stress test ever gets done - I mean in the oversight transition proposal development process - when the real possibilities are all around us) it can be effective only when the whole parallel setup is fully ready and switch-able rather quickly. The current configuration has little or no value as the kind of check I am talking about.

Now, whether we are at all interested in devising such a check is an entirely different matter.. How meticulous have we been in devising various other kinds of checks during the transition proposal development process.. Then why such callousness with regard to this vital check, which covers an area that, we all know, has been perhaps the single biggest concern regarding the current ICANN oversight mechanism, for most people, groups and countries.... Frankly, I really do not understand it.

parminder

On Saturday 27 February 2016 07:26 PM, Seun Ojedeji wrote:

...

Sent from my LG G4 Kindly excuse brevity and typos On 27 Feb 2016 12:22 p.m., "parminder" <parminder@itforchange.net> wrote:

...

As a stop gap measure, before such incorporation under

international law can be worked out, a new ICANN free from formal NTIA oversight should set up a parallel redundant authoritative root in a non US location, which is fully primed to work and take over from the US based one the moment there is any interference by the US state - whether its judicial, legislative or executive branch, either in ICANN's policy process, or actual entries in the authoritative root. Since Internet's root system works by reputation and 'community acceptance' and not by any necessary physical components and linkages, this should be easy to work out.. This IMHO would be the best interim check on the US state's possibilities to interfere with ICANN/ root file business.

...

SO: At the moment there are root server replica across the globe. Technically it implies that each of those root can be potential authoritative root (if absolutely required). So I don't think setting up a redundant authoritative root outside US have any significant advantage in that it's only authoritative if active and not when redundant.

Regards

...

parminder

On Friday 26 February 2016 09:31 PM, Karl Auerbach wrote:

...

On 2/26/16 12:55 AM, Evan Leibovitch wrote:

...

Karl makes a compelling case why ICANN should not be a California

corporation.

...

That was not my point at all.

One can go to pretty much any country, any state, on the Earth and

will find similar laws.

...

There will, of course, be variations in color and texture among

those laws. But no matter where, when people pool their interests in a common enterprise there will be the same questions of control during times of agreement and times of disagreement. From the 17th to the 20th century European ideas of organization were spread around the world.

...

These laws have been polished through centuries of experience.

Those who think they have a better idea often discover that that idea has occurred before and was found wanting.

...

I am old enough to have come of age during the "flower power" era

of the 1960's. I saw (and experienced) a lot of people and groups who rejected "the establishment" and sought to reshape the world along lines that were less confrontational, more "personally empowered", more "love, peace, and good vibes". Those attempts, like previous Utopian movements, faded because they were based on aspirations rather than recognition of hard lessons of experience with human nature.

...

These proposals to restructure ICANN are similarly aspirational.

And similarly unrealistic.

...

Perhaps most unrealistic is the idea that "we can just pick up and

move to somewhere else".

...

The grass is not always greener on the other side of the fence.

And if one takes a look around it's going to be hard to find a place that is more amenable than California to innovated organizational structures. Which is a good reason to look at what the aging Hippies who now run California have put into California's public-benefit/non-profit corporations law with regard to membership and the powers of that membership.

...

Don't fight the system. Use it.

--karl--

_______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org

<mailto:At-Large@atlarge-lists.icann.org>

...

https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org

_______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org <mailto:At-Large@atlarge-lists.icann.org> https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org

On Saturday 27 February 2016 08:19 PM, Lance Hinds wrote:

I am just curious as to the 'Non US location' where there is no risk of jurisdictional interference.

Any relativity stable place will do , Geneva, Manila, Sao Paulo.... And basically, that only serves as a check to possible US abuse, and normally with good checks in place abuses get avoided. That is their primary purpose, and mostly checks need not actually get activated... And of course if indeed we have to move to Geneva, or Manila, or Sal Paulo.... there would be corresponding further checks similarly... So the whole system is safer and more abuse proof without us being dependent on the hoped for benign-ness of one jurisdiction, of the US or any else... Does this make it clearer? parminder

Lance

On Sat, Feb 27, 2016 at 10:42 AM parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:

I mean a check against abuse of power is a check only when the potential abuser can feel it breathing down its neck.... parminder

On Saturday 27 February 2016 08:07 PM, parminder wrote:

...

Seun

Firstly, there is huge difference between the one authoritative root, and the 13 root zone servers, and still more between these and their anycast instances... These three kinds can simply not be spoken of in the same breath. This is even more so when we are talking about creating a fully ready redundant system for immediate take over.

Second, when a really effective check is being devised against possible abuse of US state's jurisdictional power (about which strangely no stress test ever gets done - I mean in the oversight transition proposal development process - when the real possibilities are all around us) it can be effective only when the whole parallel setup is fully ready and switch-able rather quickly. The current configuration has little or no value as the kind of check I am talking about.

Now, whether we are at all interested in devising such a check is an entirely different matter.. How meticulous have we been in devising various other kinds of checks during the transition proposal development process.. Then why such callousness with regard to this vital check, which covers an area that, we all know, has been perhaps the single biggest concern regarding the current ICANN oversight mechanism, for most people, groups and countries.... Frankly, I really do not understand it.

parminder

On Saturday 27 February 2016 07:26 PM, Seun Ojedeji wrote:

...

Sent from my LG G4 Kindly excuse brevity and typos On 27 Feb 2016 12:22 p.m., "parminder" <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote: > > As a stop gap measure, before such incorporation under international law can be worked out, a new ICANN free from formal NTIA oversight should set up a parallel redundant authoritative root in a non US location, which is fully primed to work and take over from the US based one the moment there is any interference by the US state - whether its judicial, legislative or executive branch, either in ICANN's policy process, or actual entries in the authoritative root. Since Internet's root system works by reputation and 'community acceptance' and not by any necessary physical components and linkages, this should be easy to work out.. This IMHO would be the best interim check on the US state's possibilities to interfere with ICANN/ root file business. > SO: At the moment there are root server replica across the globe. Technically it implies that each of those root can be potential authoritative root (if absolutely required). So I don't think setting up a redundant authoritative root outside US have any significant advantage in that it's only authoritative if active and not when redundant.

Regards

> parminder > > On Friday 26 February 2016 09:31 PM, Karl Auerbach wrote: >> >> >> On 2/26/16 12:55 AM, Evan Leibovitch wrote: >>> >>> Karl makes a compelling case why ICANN should not be a California corporation. >> >> That was not my point at all. >> >> One can go to pretty much any country, any state, on the Earth and will find similar laws. >> >> There will, of course, be variations in color and texture among those laws. But no matter where, when people pool their interests in a common enterprise there will be the same questions of control during times of agreement and times of disagreement. From the 17th to the 20th century European ideas of organization were spread around the world. >> >> These laws have been polished through centuries of experience. Those who think they have a better idea often discover that that idea has occurred before and was found wanting. >> >> I am old enough to have come of age during the "flower power" era of the 1960's. I saw (and experienced) a lot of people and groups who rejected "the establishment" and sought to reshape the world along lines that were less confrontational, more "personally empowered", more "love, peace, and good vibes". Those attempts, like previous Utopian movements, faded because they were based on aspirations rather than recognition of hard lessons of experience with human nature. >> >> These proposals to restructure ICANN are similarly aspirational. And similarly unrealistic. >> >> Perhaps most unrealistic is the idea that "we can just pick up and move to somewhere else". >> >> The grass is not always greener on the other side of the fence. And if one takes a look around it's going to be hard to find a place that is more amenable than California to innovated organizational structures. Which is a good reason to look at what the aging Hippies who now run California have put into California's public-benefit/non-profit corporations law with regard to membership and the powers of that membership. >> >> Don't fight the system. Use it. >> >> --karl-- >> >> >> >> >> >> >> _______________________________________________ >> At-Large mailing list >> At-Large@atlarge-lists.icann.org <mailto:At-Large@atlarge-lists.icann.org> >> https://atlarge-lists.icann.org/mailman/listinfo/at-large >> >> At-Large Official Site: http://atlarge.icann.org > > > > _______________________________________________ > At-Large mailing list > At-Large@atlarge-lists.icann.org <mailto:At-Large@atlarge-lists.icann.org> > https://atlarge-lists.icann.org/mailman/listinfo/at-large > > At-Large Official Site: http://atlarge.icann.org

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Dear Parminder, On 27/02/2016 11:45, parminder wrote:

As a stop gap measure, before such incorporation under international law can be worked out, a new ICANN free from formal NTIA oversight should set up a parallel redundant authoritative root in a non US location, which is fully primed to work and take over from the US based one the moment there is any interference by the US state - whether its judicial, legislative or executive branch, either in ICANN's policy process, or actual entries in the authoritative root. Since Internet's root system works by reputation and 'community acceptance' and not by any necessary physical components and linkages, this should be easy to work out.. This IMHO would be the best interim check on the US state's possibilities to interfere with ICANN/ root file business.

In theory, yes, all of what you are saying is possible, except one thing: has the "US state" ever interfered with the ICANN/root file business, as you put it? You are speaking of a risk that has been shown to not exist. I am much less confident of the ability of some other states to keep their hands off interference with the root... Kindest regards, Olivier

On 2/27/16 2:45 AM, parminder wrote:

I disagree with Karl that California remains the best jurisdictional bet... That's sensible. I'm often wrong. ;-)

My point was less to advocate California than to reflect that there will be no jurisdiction that will be perfect bliss and beauty. And that jumping from one frying pan to another will not really solve problems as much as merely shift them into new forms while, at the same time, causing a whole lot of effort, trouble, and risk as the jump is made. I understand the concern about US hegemony. But take heart, even those of us in the US feel locked out. I am a person who is pretty close to the topmost point of that hegemony - I'm a California techie (been part of what would become the internet since about 1968), am a California attorney, have written full internet standards, participated in the creation of ICANN and have been a member of its board of directors. So do I have influence? No. So I can well understand that others who are in less privileged positions than I would feel resentment and anger. However, the road you are asking us to follow is a road that involves the creation of what is essentially a new international body. Where is the legitimacy of this body going to come from? I fear that an effort to come to terms over this will result in something as egregious as the TPP. And how are the massive assets of ICANN (contracts, money, etc) going to be moved without the willing consent of a lot of third parties. Moreover, your road seems to involve what has been called a competing or alternative DNS root. I'm not afraid of competing roots - in fact I think they are a good idea. But many people are extremely (and not unreasonably) fearful of what could happen if the older roots - which will continue to be used (there is a lot of inertia) - and the new one begin to develop inconsistencies. Moreover, the root server operators are an mostly independent operators - they have not obligation to accept what ICANN, or anyone else, publishes as a root zone file. Nor are they under any obligation to not alter that root zone file. They have not done so, but that is the result of their desire to act with extreme caution rather than legal compulsion. We owe a lot to the root server operators. They deployed anycast servers on their on initiative without the consent, and even despite the consent, of ICANN. Do we really want to work against a group who has perhaps done more to assure the stability of DNS than anyone? The point of my notes is that we should fix ICANN and do so in a way that follows well known, and widely accepted, methods. ICANN was intentionally designed to be distant and unaccountable - deals were struck (and remain secret to this day) when the law firm that created ICANN was pushing "newco" through the US Dep't of Commerce. There is a lot of room to fix the existing ICANN. We can reshape it to have a real membership structure, with real voters rather than artificial ones being proposed. And we can change ICANN's organic documents - its Articles and Bylaws - to require that certain issues receive supermajority votes on the board, to remove the President from his ex-officio seat on the board (the damage that that has caused over the years is significant), etc. As I mentioned previously, take a look at what we (Boston Working Group) proposed back in 1998 - http://cavebear.com/bwg/submission-letter.html The new proposals have a lot of good ideas. I jump up and applaud changes to the Articles/Bylaws that better channel the decision making of the board of directors and require special procedures for certain matters. I agree with the general notion of allowing members to have certain powers and rights - I just find that what is being proposed is redundant to, and inferior to, what is already available under California law. --karl--

On Saturday 05 March 2016 05:18 PM, parminder wrote:

Karl

I think I have not been able to make my proposal clear... I do think that incorporation of ICANN (the same ICANN as it is) under international law is the best final solution, and internationalisation is not what you and others make it out to be. However, my current proposal was *not about internationalisation*, it is much simpler. (It is also *not really about an alternative root* - not like we know of alternative roots, this will still be *the ICANN root*, just physically elsewhere.) And so I will focus on that in this email, and respond to issues of internationalisation later.

The following is my current proposal, which I would think is rather easy to carry through.

First of all, whatever some members of this list may think, the issue of possible wrongful interference of the US state in ICANN policy process and/or root file is VERY REAL in a lot of people's and countries' mind.

And if a proof of such a possibility was ever needed, this is the latest one, hot off the courts - https://www.prlog.org/12539064-united-states-court-has-granted-an-interim-re... The US courts have never hesitated to exercise US jurisdiction over ICANN's policy processes, and also root file (see the court proceedings on claims made for 'seizing' .ir as Iranian government's asset in the US). It is only the so called ICANN community, which like to enjoy the name of 'global' multistakeholder community, which consistently refuses to look at the facts. This when it conjures the most unlikely if not impossible of contingencies vis a vis all other governments of the world suddenly deciding to take over ICANN.. See the absurd lengths the stress test on 18 of ICANN accountability process has been taken to. Imagining all kind of likelihoods - including most unlikely ones - of how all other govs can by consensus misbehave... But why no stress test for what US state could do, when in fact no simulations are required when we witness US state's inappropriate interference in ICANN so regularly - one instance actually surfacing today itself.. And a key ALAC leader Olivier responds to me by saying "....has the "US state" ever interfered with the ICANN/root file business, as you put it? You are speaking of a risk that has been shown to not exist". !!!! Can we simply continue be so blind like this. Whom are we fooling!.. Someone someday will point to the emperor's non clothes, including those of the 'community' which seem to simply exist to legitimise US's hegemony on the Internet's infrastructure. parminder

It has often been stressed over the last decade and more (WGIG pointed to it as one of the top 3 issues), and is also in principle a very legitimate concern. Now, unless one thinks that there is not an issue at all here which is at least worth seeking a solution for, there is no point in proceeding further. But I assume that you and most others do agree that there is a real issue at hand, but may think that any solution may be worse than the original problem. If so, let me propose a simple solution and am happy to hear what is so ill about it.

1. ICANN sets up a redundant parallel authoritative root zone in another country, exactly like the original one, fully under its control. It takes the root zone operators into confidence in this regard and all protocols etc get shared. (Unlike what you say, this is not a parallel root, this is the same root which, post transition, ICANN is supposed to fully own. It is just a redundant back up in another country of the working instance in the US. As a backup database, including one in another country, does not become a different database.)

2. A board resolution, or preferably a by-law (even a fundamental by-law perhaps) makes it clear that if there is any interference/ order/ injunction from any of the branches of the US state - whether judiciary, legislative or executive, which purports to interfere with ICANN policy process and/or its maintenance of root zone, ICANN board, failing to get the order/ injunction vacated (about which follows), will declare the non US back-up root as the official operating one. This root remains under the ICANN as ever, and therefore is not an alternative root. Only the new applicable protocols, already shared, should be requested to be followed by the root server operators, who I understand would like to keep the root safe from arbitrary interference by US jurisdiction and should therefore cooperate.

3. Whenever ICANN receives such an infringing order, it will first respond by letting the concerned authority know that such resolution/ bylaw exists and therefore the order cannot be followed, and if insisted upon will simply result the root immediately physically moving out of the US. This being simply a fact, and the relevant order will have no effect other than to move ICANN's root - and perhaps following it, ICANN's main registration - outside the US, which in some ways presumably hurts US's interests, the concerned Us authority is fully expected to withdraw any such order. So like all good checks this proposed one would be effective by its very existence and most probably never needed to be made operational.

And this solves a key global issue, I understand, without too much ado. Even the US should not be able to object to it, bec the backup is only for an eventuality that US claims should never come to pass. And so everyone is happy.

I would like to hear your and others' comments on this proposal.

parminder

On Sunday 28 February 2016 11:34 AM, Karl Auerbach wrote:

...

On 2/27/16 2:45 AM, parminder wrote:

...

I disagree with Karl that California remains the best jurisdictional bet... That's sensible. I'm often wrong. ;-)

My point was less to advocate California than to reflect that there will be no jurisdiction that will be perfect bliss and beauty. And that jumping from one frying pan to another will not really solve problems as much as merely shift them into new forms while, at the same time, causing a whole lot of effort, trouble, and risk as the jump is made.

I understand the concern about US hegemony.

But take heart, even those of us in the US feel locked out.

I am a person who is pretty close to the topmost point of that hegemony - I'm a California techie (been part of what would become the internet since about 1968), am a California attorney, have written full internet standards, participated in the creation of ICANN and have been a member of its board of directors.

So do I have influence? No. So I can well understand that others who are in less privileged positions than I would feel resentment and anger.

However, the road you are asking us to follow is a road that involves the creation of what is essentially a new international body. Where is the legitimacy of this body going to come from? I fear that an effort to come to terms over this will result in something as egregious as the TPP.

And how are the massive assets of ICANN (contracts, money, etc) going to be moved without the willing consent of a lot of third parties.

Moreover, your road seems to involve what has been called a competing or alternative DNS root. I'm not afraid of competing roots - in fact I think they are a good idea. But many people are extremely (and not unreasonably) fearful of what could happen if the older roots - which will continue to be used (there is a lot of inertia) - and the new one begin to develop inconsistencies.

Moreover, the root server operators are an mostly independent operators - they have not obligation to accept what ICANN, or anyone else, publishes as a root zone file. Nor are they under any obligation to not alter that root zone file. They have not done so, but that is the result of their desire to act with extreme caution rather than legal compulsion. We owe a lot to the root server operators. They deployed anycast servers on their on initiative without the consent, and even despite the consent, of ICANN. Do we really want to work against a group who has perhaps done more to assure the stability of DNS than anyone?

The point of my notes is that we should fix ICANN and do so in a way that follows well known, and widely accepted, methods. ICANN was intentionally designed to be distant and unaccountable - deals were struck (and remain secret to this day) when the law firm that created ICANN was pushing "newco" through the US Dep't of Commerce.

There is a lot of room to fix the existing ICANN. We can reshape it to have a real membership structure, with real voters rather than artificial ones being proposed. And we can change ICANN's organic documents - its Articles and Bylaws - to require that certain issues receive supermajority votes on the board, to remove the President from his ex-officio seat on the board (the damage that that has caused over the years is significant), etc. As I mentioned previously, take a look at what we (Boston Working Group) proposed back in 1998 - http://cavebear.com/bwg/submission-letter.html

The new proposals have a lot of good ideas. I jump up and applaud changes to the Articles/Bylaws that better channel the decision making of the board of directors and require special procedures for certain matters. I agree with the general notion of allowing members to have certain powers and rights - I just find that what is being proposed is redundant to, and inferior to, what is already available under California law.

--karl--

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At-Large Official Site: http://atlarge.icann.org

The A-root, that is the master file from where the zone files are distributed to the other roots, is not "owned" by ICANN, but operated by Verisign under contract with the US administration, and that, to the best of my knowledge, is not going to change after the transition. The process is that the ICANN Board directs IANA to do the changes (in case, for instance, of a new TLD to be added), the changes are performed by IANA who sends them to Verisign. This transfer is the one where NTIA intervenes to validate the change, and it is this function that has to be replaced, not at all the management of the A-root, that will remain where it is. Cheers, Roberto Inviato da iPad

Il giorno 05.03.2016, alle ore 11:49, parminder <parminder@itforchange.net> ha scritto:

Karl

I think I have not been able to make my proposal clear... I do think that incorporation of ICANN (the same ICANN as it is) under international law is the best final solution, and internationalisation is not what you and others make it out to be. However, my current proposal was *not about internationalisation*, it is much simpler. (It is also *not really about an alternative root* - not like we know of alternative roots, this will still be *the ICANN root*, just physically elsewhere.) And so I will focus on that in this email, and respond to issues of internationalisation later.

The following is my current proposal, which I would think is rather easy to carry through.

First of all, whatever some members of this list may think, the issue of possible wrongful interference of the US state in ICANN policy process and/or root file is VERY REAL in a lot of people's and countries' mind. It has often been stressed over the last decade and more (WGIG pointed to it as one of the top 3 issues), and is also in principle a very legitimate concern. Now, unless one thinks that there is not an issue at all here which is at least worth seeking a solution for, there is no point in proceeding further. But I assume that you and most others do agree that there is a real issue at hand, but may think that any solution may be worse than the original problem. If so, let me propose a simple solution and am happy to hear what is so ill about it.

1. ICANN sets up a redundant parallel authoritative root zone in another country, exactly like the original one, fully under its control. It takes the root zone operators into confidence in this regard and all protocols etc get shared. (Unlike what you say, this is not a parallel root, this is the same root which, post transition, ICANN is supposed to fully own. It is just a redundant back up in another country of the working instance in the US. As a backup database, including one in another country, does not become a different database.)

2. A board resolution, or preferably a by-law (even a fundamental by-law perhaps) makes it clear that if there is any interference/ order/ injunction from any of the branches of the US state - whether judiciary, legislative or executive, which purports to interfere with ICANN policy process and/or its maintenance of root zone, ICANN board, failing to get the order/ injunction vacated (about which follows), will declare the non US back-up root as the official operating one. This root remains under the ICANN as ever, and therefore is not an alternative root. Only the new applicable protocols, already shared, should be requested to be followed by the root server operators, who I understand would like to keep the root safe from arbitrary interference by US jurisdiction and should therefore cooperate.

3. Whenever ICANN receives such an infringing order, it will first respond by letting the concerned authority know that such resolution/ bylaw exists and therefore the order cannot be followed, and if insisted upon will simply result the root immediately physically moving out of the US. This being simply a fact, and the relevant order will have no effect other than to move ICANN's root - and perhaps following it, ICANN's main registration - outside the US, which in some ways presumably hurts US's interests, the concerned Us authority is fully expected to withdraw any such order. So like all good checks this proposed one would be effective by its very existence and most probably never needed to be made operational.

And this solves a key global issue, I understand, without too much ado. Even the US should not be able to object to it, bec the backup is only for an eventuality that US claims should never come to pass. And so everyone is happy.

I would like to hear your and others' comments on this proposal.

parminder

...

On Sunday 28 February 2016 11:34 AM, Karl Auerbach wrote:

...

On 2/27/16 2:45 AM, parminder wrote: I disagree with Karl that California remains the best jurisdictional bet... That's sensible. I'm often wrong. ;-)

My point was less to advocate California than to reflect that there will be no jurisdiction that will be perfect bliss and beauty. And that jumping from one frying pan to another will not really solve problems as much as merely shift them into new forms while, at the same time, causing a whole lot of effort, trouble, and risk as the jump is made.

I understand the concern about US hegemony.

But take heart, even those of us in the US feel locked out.

I am a person who is pretty close to the topmost point of that hegemony - I'm a California techie (been part of what would become the internet since about 1968), am a California attorney, have written full internet standards, participated in the creation of ICANN and have been a member of its board of directors.

So do I have influence? No. So I can well understand that others who are in less privileged positions than I would feel resentment and anger.

However, the road you are asking us to follow is a road that involves the creation of what is essentially a new international body. Where is the legitimacy of this body going to come from? I fear that an effort to come to terms over this will result in something as egregious as the TPP.

And how are the massive assets of ICANN (contracts, money, etc) going to be moved without the willing consent of a lot of third parties.

Moreover, your road seems to involve what has been called a competing or alternative DNS root. I'm not afraid of competing roots - in fact I think they are a good idea. But many people are extremely (and not unreasonably) fearful of what could happen if the older roots - which will continue to be used (there is a lot of inertia) - and the new one begin to develop inconsistencies.

Moreover, the root server operators are an mostly independent operators - they have not obligation to accept what ICANN, or anyone else, publishes as a root zone file. Nor are they under any obligation to not alter that root zone file. They have not done so, but that is the result of their desire to act with extreme caution rather than legal compulsion. We owe a lot to the root server operators. They deployed anycast servers on their on initiative without the consent, and even despite the consent, of ICANN. Do we really want to work against a group who has perhaps done more to assure the stability of DNS than anyone?

The point of my notes is that we should fix ICANN and do so in a way that follows well known, and widely accepted, methods. ICANN was intentionally designed to be distant and unaccountable - deals were struck (and remain secret to this day) when the law firm that created ICANN was pushing "newco" through the US Dep't of Commerce.

There is a lot of room to fix the existing ICANN. We can reshape it to have a real membership structure, with real voters rather than artificial ones being proposed. And we can change ICANN's organic documents - its Articles and Bylaws - to require that certain issues receive supermajority votes on the board, to remove the President from his ex-officio seat on the board (the damage that that has caused over the years is significant), etc. As I mentioned previously, take a look at what we (Boston Working Group) proposed back in 1998 - http://cavebear.com/bwg/submission-letter.html

The new proposals have a lot of good ideas. I jump up and applaud changes to the Articles/Bylaws that better channel the decision making of the board of directors and require special procedures for certain matters. I agree with the general notion of allowing members to have certain powers and rights - I just find that what is being proposed is redundant to, and inferior to, what is already available under California law.

--karl--

_______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org

_______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large At-Large Official Site: http://atlarge.icann.org

Dear parminder, Thanks for your detailed reply. However, all I wanted to say is that the simple solution you proposed seemed to me not that simple, because even after the transition ICANN would not have "owned" the A-root: it was not at all to the merit of your proposal, but on the supposed simplicity of the solution. This said, since we have opened this dialogue, I will give you my personal opinion. I don't want to underestimate the problem of having one country - whether this is US or any different one - a more important role than the other countries. I have been an international civil servant for 13 years, and I am committed to internationalization. However, as internet user, domain name registrant, and active participant to ALAC I have to say that I can identify half a dozen problems that are, for me, far more important than where the A-root is located. IMHO, even with the DNS solidly in the hands of an international treaty organization (which, incidentally, will take years if not decades to establish, see for instance the still interim status of the CTBTO), the imbalance between the power of commercial organizations and plain internet users will not change, the heavy limitations - mainly for economic reasons - for ALAC members to participate in the policy development process will not change, the imbalance of power between the registering organizations - Registries and Registrars - and registrants will not change, just to name what crosses my mind right now. So, given the fact that volunteers from the At-Large community have limited time, because they generally have day jobs in a different domain, I am in complete agreement with Olivier that our priorities are somewhere else than the international status of the root. This is not to say that this is not a problem, and I agree with you that a stress test could have been developed on this issue in the process of transferring NTIA's responsibilities, but I personally believe that the leading forces for driving this debate should be the GAC and generally speaking the professional politicians, for whom this issue is within their core competences and business, rather than for ALAC and At-Large users, for whom everyday' s problems are others. IMHO, ALAC could endorse a reasonable proposal coming from other quarters, but should spend its limited bandwidth in addressing the many issues that we do have now rather than addressing a potential problem that might be caused in the future by a - highly unlikely - future interference by the US Government. Cheers, Roberto

-----Messaggio originale----- Da: parminder [mailto:parminder@itforchange.net] Inviato: domenica 6 marzo 2016 04:18 A: Roberto Gaetano Cc: Karl Auerbach; at-large@atlarge-lists.icann.org Oggetto: Re: [At-Large] CCWG Briefings - Presentation

On Saturday 05 March 2016 10:04 PM, Roberto Gaetano wrote:

...

The A-root, that is the master file from where the zone files are distributed to the other roots, is not "owned" by ICANN, but operated by Verisign under contract with the US administration, and that, to the best of my knowledge, is not going to change after the transition.

I agree Roberto, that is still the catch. And a big one! This is something the US deliberately kept out of the transition process, a smart move I must say, since US, unlike the so called 'global multistakeholder community', knows and closely watches and protects its interest.

So basically, unlike what is the popular message that goes out, post transition the US still remains in complete control of the authoritative root file (it is now just not able to give any directions any more to ICANN reg. its policy work etc).

...

The process is that the ICANN Board directs IANA to do the changes (in case, for instance, of a new TLD to be added), the changes are performed by IANA who sends them to Verisign.

Yes, but a Verisign answerable to the US, and not ICANN. And this does not change, right! So, in essence, what is being said is that IANA authorised changes really still go to the US gov which, and this is important to note, is under no obligation to do as IANA wants (other than perhaps the downstream pressure of possible non-replication by other root operators, an issue that I will come to later).

...

This transfer is the one where NTIA intervenes to validate the change, and it is this function that has to be replaced, not at all the management of the A-root, that will remain where it is.

Frankly, this seems to be a rather formal and not a real substantive difference. Lets say, in the pre IANA transition stage, the US gov had refused to validate a requested change -- there would have been an outcry, it would have been considered illegitimate, outrageous, and so on..... Now, lets take the post IANA transition situation. IANA transmits a root change request to A root manager, Verisign, but meanwhile the US gov, under whose contract verisign operates A-root, instructs verisign not to make those changes.. What happens, the same outrage, allegation of illegitimacy, and so on... Could someone really tell me, where is the difference? And please not in, what often becomes deliberately obfuscating, techno-managerial language, but in direct political language. I am sure no one has the illusion reg. IANA transition being a techno-managerial and not a political issue. I hope we stay within that construction.

I am sure I am going to hear pious statements about how US would never do it, it never has (which btw is contestable, but lets not go there). Sure. But if the US is really so pious *why, when it was divesting itself from other stuff, it did not also divest itself of control over the authoritative A- root?* Could someone answer this question for me. I really look forward to read what new spin is thrown in to respond to this :).

Another stock response that I expect to hear is - US wont do it bec it should fear that other root operators would not follow suit... But that check was always there, even earlier, against US refusing to validate an ICANN root change request... So nothing changes, right!

A policy making power is meaningful only to the extent that there is policy implementation power. Minus the latter, the former is meaningless. What stops, say, my organisation from making gTLD policies? The simply fact that I cannot implement them, which requires control over the authoritative A-root. Without the control over the A-root, ICANN's policy making power, and its so called (anticipated) new 'independence', are meaningless. It exists as long as US allows it to exist. Which one must say is a rather pitiable situation.

I think that this group - ALAC, which sits between a techno-political set up and the larger public, and is supposed to represent the latter's interest, has the responsibility to interpret the politics of these techno- managerial and political changes for the public in intelligible terms, and most of all show clearly where power lies, what are its legitimate forms, and what and where power goes or does not go post transition. Sorry to say, but I dont think we have been doing a very good job of it.

regards parminder

...

Cheers, Roberto

Inviato da iPad

Il giorno 05.03.2016, alle ore 11:49, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> ha scritto:

...

Karl

I think I have not been able to make my proposal clear... I do think that incorporation of ICANN (the same ICANN as it is) under international law is the best final solution, and internationalisation is not what you and others make it out to be. However, my current proposal was *not about internationalisation*, it is much simpler. (It is also *not really about an alternative root* - not like we know of alternative roots, this will still be *the ICANN root*, just physically elsewhere.) And so I will focus on that in this email, and respond to issues of internationalisation later.

The following is my current proposal, which I would think is rather easy to carry through.

First of all, whatever some members of this list may think, the issue of possible wrongful interference of the US state in ICANN policy process and/or root file is VERY REAL in a lot of people's and countries' mind. It has often been stressed over the last decade and more (WGIG pointed to it as one of the top 3 issues), and is also in principle a very legitimate concern. Now, unless one thinks that there is not an issue at all here which is at least worth seeking a solution for, there is no point in proceeding further. But I assume that you and most others do agree that there is a real issue at hand, but may think that any solution may be worse than the original problem. If so, let me propose a simple solution and am happy to hear what is so ill about it.

1. ICANN sets up a redundant parallel authoritative root zone in another country, exactly like the original one, fully under its control. It takes the root zone operators into confidence in this regard and all protocols etc get shared. (Unlike what you say, this is not a parallel root, this is the same root which, post transition, ICANN is supposed to fully own. It is just a redundant back up in another country of the working instance in the US. As a backup database, including one in another country, does not become a different database.)

2. A board resolution, or preferably a by-law (even a fundamental by-law perhaps) makes it clear that if there is any interference/ order/ injunction from any of the branches of the US state - whether judiciary, legislative or executive, which purports to interfere with ICANN policy process and/or its maintenance of root zone, ICANN board, failing to get the order/ injunction vacated (about which follows), will declare the non US back-up root as the official operating one. This root remains under the ICANN as ever, and therefore is not an alternative root. Only the new applicable protocols, already shared, should be requested to be followed by the root server operators, who I understand would like to keep the root safe from arbitrary interference by US jurisdiction and should therefore cooperate.

3. Whenever ICANN receives such an infringing order, it will first respond by letting the concerned authority know that such resolution/ bylaw exists and therefore the order cannot be followed, and if insisted upon will simply result the root immediately physically moving out of the US. This being simply a fact, and the relevant order will have no effect other than to move ICANN's root - and perhaps following it, ICANN's main registration - outside the US, which in some ways presumably hurts US's interests, the concerned Us authority is fully expected to withdraw any such order. So like all good checks this proposed one would be effective by its very existence and most probably never needed to be made operational.

And this solves a key global issue, I understand, without too much ado. Even the US should not be able to object to it, bec the backup is only for an eventuality that US claims should never come to pass. And so everyone is happy.

I would like to hear your and others' comments on this proposal.

parminder

On Sunday 28 February 2016 11:34 AM, Karl Auerbach wrote:

...

On 2/27/16 2:45 AM, parminder wrote:

...

I disagree with Karl that California remains the best jurisdictional bet... That's sensible. I'm often wrong. ;-)

My point was less to advocate California than to reflect that there will be no jurisdiction that will be perfect bliss and beauty. And that jumping from one frying pan to another will not really solve problems as much as merely shift them into new forms while, at the same time, causing a whole lot of effort, trouble, and risk as the jump is made.

I understand the concern about US hegemony.

But take heart, even those of us in the US feel locked out.

I am a person who is pretty close to the topmost point of that hegemony - I'm a California techie (been part of what would become the internet since about 1968), am a California attorney, have written full internet standards, participated in the creation of ICANN and have been a member of its board of directors.

So do I have influence? No. So I can well understand that others who are in less privileged positions than I would feel resentment and anger.

However, the road you are asking us to follow is a road that involves the creation of what is essentially a new international body. Where is the legitimacy of this body going to come from? I fear that an effort to come to terms over this will result in something as egregious as the TPP.

And how are the massive assets of ICANN (contracts, money, etc) going to be moved without the willing consent of a lot of third parties.

Moreover, your road seems to involve what has been called a competing or alternative DNS root. I'm not afraid of competing roots - in fact I think they are a good idea. But many people are extremely (and not unreasonably) fearful of what could happen if the older roots - which will continue to be used (there is a lot of inertia) - and the new one begin to develop inconsistencies.

Moreover, the root server operators are an mostly independent operators - they have not obligation to accept what ICANN, or anyone else, publishes as a root zone file. Nor are they under any obligation to not alter that root zone file. They have not done so, but that is the result of their desire to act with extreme caution rather than legal compulsion. We owe a lot to the root server operators. They deployed anycast servers on their on initiative without the consent, and even despite the consent, of ICANN. Do we really want to work against a group who has perhaps done more to assure the stability of DNS than anyone?

The point of my notes is that we should fix ICANN and do so in a way that follows well known, and widely accepted, methods. ICANN was intentionally designed to be distant and unaccountable - deals were struck (and remain secret to this day) when the law firm that created ICANN was pushing "newco" through the US Dep't of

Commerce.

...

There is a lot of room to fix the existing ICANN. We can reshape it to have a real membership structure, with real voters rather than artificial ones being proposed. And we can change ICANN's organic documents - its Articles and Bylaws - to require that certain issues receive supermajority votes on the board, to remove the President from his ex-officio seat on the board (the damage that that has caused over the years is significant), etc. As I mentioned previously, take a look at what we (Boston Working Group) proposed back in 1998 - http://cavebear.com/bwg/submission-letter.html

The new proposals have a lot of good ideas. I jump up and applaud changes to the Articles/Bylaws that better channel the decision making of the board of directors and require special procedures for certain matters. I agree with the general notion of allowing members to have certain powers and rights - I just find that what is being proposed is redundant to, and inferior to, what is already available under California law.

--karl--

_______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org <mailto:At-Large@atlarge-lists.icann.org> https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org

On Sunday 06 March 2016 03:08 AM, Karl Auerbach wrote:

On 03/05/2016 03:48 AM, parminder wrote:

...

I think I have not been able to make my proposal clear... I do think that incorporation of ICANN (the same ICANN as it is) under international law is the best final solution, and internationalisation is not what you and others make it out to be. However, my current proposal was *not about internationalisation*, it is much simpler. (It is also *not really about an alternative root* - not like we know of alternative roots, this will still be *the ICANN root*,

I'm more than mildly confused. (A fairly normal state of affairs for me. ;-)

Well, I have tried my best, and think I have a good enough average IQ, but it seems not to suffice... If you keep saying that you are confused, I would simply at one point leave this discussion, and this list can then stay to what ever language and code it likes to use among its accepted non-confusing members... In fact, it should be I who should be confused... I now read my email that you respond to.. I clearly say, lets not discuss internationalisation, that is *not what I am proposing now*. In my previois email as well I put this fact under emphasis..But still half of your email below is asking me question about 'my internationalisation' proposal !!??? So, who do you think is confusing the other :) Then, I laid down clearly what I am actually proposing, and so that there is no confusing, gave serial numbers to the elements of that proposal... Now, it is possible that my proposal has lacunae or is even completely inappropriate, but below I see not any response to it at all... to refresh your memory, the proposal was about - a backup redundant root in another jurisdiction, an ICANN bylaw that in case of a US state's interference, after giving due caution, ICANN will announce the backup as authoritative A-root, and request other root servers to follow it (and enter into formal or informal prior agreement with them reg it)...........

I am not aware of any way that a group of j-random people can create a corporation that is under "international law". Could you be more specific?

(In addition, could you educate me on what mechanisms would exist to hold such an entity to operate within its given bounds and to follow the mandated procedures?)

As I mentioned previously, I have concerns that the path you are suggesting would take years of international negotiations and would more than likely result in something with an "ugly quotiant" on par with the TPP. ;-)

I am ready to answer all your questions above (and I will), but as I said, I dont want to discuss ICANN's incorporation under international law here but a rather different proposal..

Also, I am not clear what you mean by "the root". ICANN produces a chunk of structured text called a "zone file". A zone file is nothing but some text. Here's the current one: http://www.internic.net/domain/root.zone (about 1.3megabytes).

By the root I mean the authoritative A-root

That goes via NTIA to Verisign. At that point the contents of that file are not yet part of a domain name system.

Rather, that file has to be be voluntarily picked up by the various root server operators and voluntarily incorporated into the servers they operate. Those root server operators are not obligated to pick up that zone file, not are they prevented from making changes if they do so. It is merely their good will that keeps them doing what they have been doing.

Sorry, but I know all this stuff... and I did in fact mention all this in my emails in this thread.

(BTW, we posit 13 root server clusters. But that limit of 13 could be disturbed if the names are altered from the current things that all end in .servers.net because of the side effects of a thing called "name compression" used to construct DNS packets.)

I know. And this technical possibility should be employed by ICANN in devising its escape route from US's illegitimate interferences. Details separately.

BTW, again, the .africa thing you mentioned in your subsequent email strikes me not as an aspect of US hegemony or interference but just the normal kind of thing when there are disputes whether an organization is playing by its own rules. And the court order is merely to temporarily refrain from doing something until more facts can be ascertained. That's a fairly light handed kind of "interference".

Karl, the point here is the very exercise of jurisdictional power, that fact itself is important and all that matters. Now it does not matter if the court defends ICANN's conduct.. Can that then be called as non- or light interference??? No, it is interferences all the same, by one state into an area of governance that implicated the whole global and is *simply unacceptable*.If in one case it can make light or 'positive' as in reaffirming interference, by the very logic of it, it another case it can strike down ICANN's actions, and force it to change course. You as a US citizen may find it light, I do not. Karl, do sometime just conduct a thought experiment, if the Indian state was deciding important issues that concern the global Internet what would be your (1) gut reaction, (2) considered reaction. And try to be honest with yourself and us in your response :) parminder

--karl--