This reminds me of a thread we had several weeks back about "public
interest" and I now understand why it is such an issue here, and agree with
Robin and David (and Milton) on this point.

When I think of "public interest" I think mainly of interests where the
benefits are spread out broadly and the collective-action problem is most
at issue.  Things like public goods, market externalities, etc., where a
natural narrow constituency does not exist, where free riding is rampant
("you go ahead and expend the effort and I'll be happy to reap the benefit
for no effort on my own part") and markets fail systematically.  So the
only folks representing those interests tend to be non-profit and
civil-society organizations, which struggle structurally to find the
resources to represent the full interest, because so many (most) people who
would benefit from that representation are free-riding.

Institutionally, I think this should not be decided by any sort of elite
process, especially by a Board that is effectively beholden to no one, that
wants to slap a convenient label on an issue in order to justify something
that is not really described properly by that label.

Dan


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At 11:09 AM -0400 5/13/15, David Post wrote:
>I'm 110% with Robin on this.  ICANN's Board, or staff (who work
>ultimately for the Board) has absolutely no business deciding, and
>should not put itself in the position of having to decide, what is or
>is not "in the public interest."  I don't know what institution I
>would trust for that purpose, but it is surely not one that is
>constituted the way the ICANN Board is constituted (selected by the
>specific constituencies that make up the ICANN community).  It might
>well be a perfectly sensible arrangement for constituting an
>institution making decisions about DNS policy, but not for
>determining "the public interest." Nothing but mischief will result
>from allowing it to violate this principle -
>
>David
>
>
>
>At 05:22 PM 5/12/2015, Robin Gross wrote:
>>Indeed it does seem that in reality we have two different policy
>>development processes that sit on top of each other for GTLD
>>policy.  There is the GNSO developed policy pursuant to Annex A of
>>ICANN's bylaws, and then there is the board-staff developed policy
>>based on what they unilaterally decide is "in the public
>>interest".  Just slap on the label of Public Interest Commitments on
>>them, and voila, an entirely separate set of policy requirements to
>>sit on top of the GNSOs (and over-ride GNSO policy in some cases).
>>
>>After all, who can be against The Public Interest?   It would seem
>>this is one place where ICANN's staff-board is able to circumvent
>>bottom-up policy development processes and it is unclear where the
>>authority to do this comes from since GNSO policy is supposed to be
>>developed pursuant to Annex A of ICANN's bylaws.
>>
>>Thanks,
>>Robin
>>
>>
>>On May 12, 2015, at 1:47 AM, Milton L Mueller wrote:
>>
>> >
>> >
>> >> -----Original Message-----
>> >>
>> >> You mean as issues that the GNSO process did not deal with adequately and
>> >> are therefore a good reason for sending a recommendation back to the
>> >> GNSO for further work?
>> >
>> > No, I mean as yet another example of altering agreed policy on
>> the fly in response to demands by privileged interest groups (GAC,
>> trademark) who could never get their views accepted in a consensus process.
>> >
>>
>
>*******************************
>David G Post - Senior Fellow, Open Technology Institute/New America Foundation
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>*******************************