At 10:46 AM 8/31/2015, Mueller, Milton L wrote:
From: David Post
[
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DP: I agree with much, and maybe all, that you say. But I am
curious as to why you're as concerned as you are about the GACs's
'advisory power' when the Bylaws now state (a) that the Board's powers
are limited to implementing consensus policies, and (b) that the Board
has no power to act outside of that limitation,
MM: OMG David, those supposed limitations (consensus policies) have been
in place since 1998, they mean absolutely nothing. ICANN board just
passes whatever policies they want, based on whatever constellation of
political pressures they are feeling at the moment (often via GAC), and
call it “consensus.” Do you think there was consensus on the new RAA, or
do you think USG and law enforcement, via GAC, pressured ICANN
staff/board to make those changes and they were then imposed on
businesses desperate to start implementing the new
TLDs?
DP: Of course I completely agree: the limitation regarding
consensus policies has done absolutely nothing to curb Board
power. But that's not because it "means absolutely
nothing" - I have a pretty good idea what it means, I think you have
a pretty good idea what it means, and I think most people in the
community have a pretty good idea what it means. The
consensus limitation has done nothing, not because it doesn't mean
anything, but because it was completely unenforceable by anyone other
than the Board itself. I THOUGHT THE POINT OF THE RECONSTITUTED IRP WAS
TO CURE THIS PROBLEM. AM I WRONG?
that's why I had part c in what I initially wrote: My understanding
is that the CCWG proposal calls for the Bylaws to be modified to make it
clear that:
(a) the Board's powers are limited to implementing consensus policies,
(b) the Board has no power to act outside of that limitation,
AND
(c) the IRP is empowered to declare Board actions outside of these limits
invalid
So why would I be so worried about inappropriate GAC pressure? You
write
MM: Keep in mind that if GAC is
included in the SMCM, any attempt to use the Community Mechanism to
overturn GAC advice will automatically have 5 votes against it. ALAC has
repeatedly shown that it doesn’t care about mission limitations, so there
could go another 5 votes. And if GAC (as often happens) is acting as the
agent of some other special interest group (say, Intellectual Property
interests just to pick a random example) other votes could easily be
picked up.
DP: But surely the primary vehicle for "overturning GAC
advice" should be the IRP - that is, if the Board adopts a policy on
the basis of GAC advice, or GAC + ALAC advice, why wouldn't the (newly
constituted) IRP - if it's really doing its job - say: "you
can't do that, because you're only empowered to implement consensus
policy, and you don't have a consensus here?" You seem to have
given up on that, and I don't understand why.
MM: I’d advise you to
review the statements of many governments, Portugal in particular,
regarding their claimed right to dictate public policy “without any
limits,” their superior status when it comes to public policy, etc.
DP: I get it that there are lots of governments out there that want
to dictate policy here, and that we're trying to make sure that doesn't
happen. I think an ENFORCEABLE requirement that the Board can only
implement consensus policies relating to the security/stability of the
DNS is going to be the only real protection against it happening,
regardless of the voting allocation formulas and/or the provisions
regarding GAC advice.
David
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David G Post - Senior Fellow, Open Technology Institute/New America
Foundation
blog (Volokh Conspiracy)
http://www.washingtonpost.com/people/david-post
book (Jefferson's Moose)
http://tinyurl.com/c327w2n
music
http://tinyurl.com/davidpostmusic publications etc.
http://www.davidpost.com
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