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repeat;">I wanted to thank everyone for their kind words. Anything positive
in my post, though, should be credited to Milton, Robin and Avri. In many
ways I’m no more than a trained scribe selecting and ordering the
thoughts and ideas, diverse though they may be, those three individuals have
provided me over the past few years. They fight the battle on a daily basis
and are true heroes of this movement.<br />
<br />
In another topic Milton acknowledged that he wasn’t sure who was on
the PC save for one individual. I’m even further detached from things
and frankly have little idea how the SG is currently functioning in matters
of policy. I do agree with Stephanie, Ron and Olévié who in
various forms have suggested that we need a concentrated action plan to move
forward. Towards that end I offer the following thoughts:<br />
<br />
1. This battle is not going to be won or loss solely within ICANN. The
battles there and alliances formed are important but will not be decisive.
Experience suggests ICANN Board and staff will not submit to true
accountability unless forced to by third parties. Since I’ve been
involved with this group I’ve been pushing for increased focus on
developing ties with potential allies in Washington and Sacramento.
I’m told by friends on the Hill that members of the BC are already
very active in lobbying Congress on issues relating to the transition.
Collectively and individually we need to start doing the same or those we
represent will undoubtedly be negatively impacted by the consequences of our
inaction.<br />
<br />
2. It was good to see groups within the GNSO come together in London
and issue a joint statement on building new accountability mechanisms. I
would like to issue a word of caution, though, about working with some of
these other groups. Our goals and theirs are often very different, and our
definitions of what true accountability may be likely are not the same.<br />
<br />
I have a reasonably clear understanding of the mindset of the IP community,
having been an active member of the INTA for a half decade. The IPC was not
concerned with accountability when they derailed any attempt to review the
UDRP. They really didn’t care about accountability when they
torpedoed the GNSO and scuttled the exact match standard in the TMCH.
Accountability to the IPC is the development of instruments that allow them
to reverse the few policy decisions they don’t win at the first
opportunity.<br />
<br />
I’d like to think that we have a more high-minded purpose, one
centered on fairness, equity and due process. At least I hope we do.<br />
<br />
I will remind everyone that with the RfR, IRP, Ombudsman and DIDP on paper
ICANN has a well-developed accountability structure. We need to ensure that
whatever structure comes out of these proceedings is real accountability
accessible to individual users, not just a complex bureaucratic addition
that in reality only works for the connected and wealthy - in other words,
one that works only for members of the IPC, GAC and BC.<br />
<br />
3. I’m not overly enthusiastic about creating yet another
accountability mechanism such as the one mentioned in the joint GNSO member
statement. It might be a good idea, it likely is a wash – the same
goals, as noted in my comment, could largely be achieved by relatively small
modifications to the current structure. What concerns me most is that we do
not fashion a new institution, describe it as the guarantor of
accountability and go home pleased with ourselves. We need to do more.<br />
<br />
Our current problem is not so much accountability structure, although it
certainly could be improved, as it is with the lack of good faith and the
orientation of those participating in the process. The key is creating new,
or reforming old, accountability institutions that minimizes discretion and
maximizes defined standards and expectations. Limiting application of the
DCND within the DIDP would be one example of such an approach.<br />
<br />
I’ve noted in my comment, as has Robin in her comment, the limits and
possibilities of California law.<br />
<br />
A contrary position perhaps could be argued, but it likely will be the
position of ICANN legal that any institution with powers to nullify Board
decisions would not be allowed under the California Corporations Code.
It’s a legal position I actually agree with. Even if they were to go
along with such a creation it likely wouldn’t take long before a party
with resources would challenge an adverse decision reversing Board action in
court and win. We need to build an accountability structure that can
withstand legal challenge.<br />
<br />
4. ICANN’s current corporate structure is problematic. I presume most
are familiar with the axiom Lessig popularized that “code is
law” – fundamentally that architecture creates, limits and
dictates policy options.<br />
<br />
In our current corporate structure Directors have a responsibility to act in
the best interest of ICANN corporate (see ICANN Bylaws, article 6, section
7) and not necessarily in the best interests of the community. A corporate
structure based upon membership – a membership of nonnatural people in
my proposal – could in practical terms re-orient the Board.<br />
<br />
If membership is not deemed politically possible, we do need some way to
hardwire director’s interests to that of the community and that of
internet users worldwide. In her comment Avri has some excellent ideas
concerning removal of Board members, and the Chair, by the community.<br />
<br />
We really do need some way of making survival on the Board related to
performance as measured by community members. In the end, true
accountability can only be achieved when the Board itself is accountable to
the community. Anything short of that standard is a half measure and really
won’t solve the problems we’ve encountered in the past and can
expect to face in the future.</div>
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