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<div>Dear Ed and All Others...</div>
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<div>I am an Internet User, but I am NOT an internet Expert like you all are...</div>
<div> </div>
<div>But I know the Truth when I hear it....</div>
<div> </div>
<div>Please listen to Edward Morris....</div>
<div> </div>
<div>I am a very intelligent man, but I have always told my friends and</div>
<div>associates that Ed Morris is the Smartest Man I Know...!</div>
<div> </div>
<div>Warmest regards,</div>
<div>Patrick Lenihan</div>
<div> </div>
<div> </div>
<div style="color: black; font-family: arial,helvetica; font-size: 10pt;">---- Original Message ----<br>
From: Edward Morris <emorris@MILK.TOAST.NET><br>
To: NCSG-DISCUSS <NCSG-DISCUSS@LISTSERV.SYR.EDU><br>
Sent: Thu, Aug 28, 2014 10:38 pm<br>
Subject: Unwise, Poorly Timed, Potentially Illegal: Reject This Proposal<br>
<br>
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<div style="background: repeat repeat rgba(0, 0, 0, 0); color: rgb(0, 0, 0); font-family: Tahoma; font-size: 13px; font-style: normal; font-weight: 400;">Thanks to Kathy for alerting us to this proposal and to Milton,
Robin and Amr for their impassioned defense of the bottom up
multi-stakeholder model. What follows is my public comment submission to
ICANN on the proposed Bylaws change concerning GAC advice. I hope others
follow with their own comments.</div>
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<div style="background: repeat repeat rgba(0, 0, 0, 0); color: rgb(0, 0, 0); font-family: Tahoma; font-size: 13px; font-style: normal; font-weight: 400;">Thanks,</div>
<div style="background: repeat repeat rgba(0, 0, 0, 0); color: rgb(0, 0, 0); font-family: Tahoma; font-size: 13px; font-style: normal; font-weight: 400;">Ed</div>
<div style="background: repeat repeat rgba(0, 0, 0, 0); color: rgb(0, 0, 0); font-family: Tahoma; font-size: 13px; font-style: normal; font-weight: 400;"> </div>
<div style="background: repeat repeat rgba(0, 0, 0, 0); color: rgb(0, 0, 0); font-family: Tahoma; font-size: 13px; font-style: normal; font-weight: 400;">--</div>
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<div>Adoption of this proposed Bylaws change by the Board not only would put
a stake through the very heart of the bottom up multi-stakeholder process
ICANN claims to adhere to, not only would approval imperil the IANA
transition that this Board claims it is committed to and that thousands have
worked hard over many years to achieve, but this proposal may very well be
illegal under California law. This is a bad idea on all counts and needs to
be rejected.</div>
<div> </div>
<div>Who in their right mind would volunteer to donate hundreds of hours of
time to work in the various working groups, supporting organizations and
advisory committees that are supposed to make policy at ICANN when the
output created and compromises made could effectively be nullified by a
parallel process that has little structure, less transparency and even less
accountability: that of the Governmental Advisory Committee (GAC)?</div>
<div> </div>
<div>Let’s be clear about one thing: the GAC does not represent in
real terms the governments of the world. It represents some governments. My
native Ireland, the site of next October’s ICANN meeting, isn’t
a member. Many countries are not. You can count the active membership of the
GAC by using the digits of one or two people. It’s hard to know
exactly how many digits are needed because the GAC’s processes are so
opaque it makes the I.T.U. look like a beacon of openness and
enlightenment.</div>
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<div>To be fair this same lack of membership depth can also be attributed to
many of ICANN’s groups. That’s why ICANN’s legitimacy is
based upon the <em>interaction</em> between the diverse and multifaceted
representative groupings that constitute the entire ICANN community and not
on the basis of the membership of any one particular group of stakeholders.
No single group alone within ICANN possesses the legitimacy to command any
single aspect of the policy process. Yet.</div>
<div> </div>
<div>Consider this scenario: After years of public meetings, debates and
compromise a policy is developed through the PDP. The GAC, through closed
processes that are a mystery to all but a select few, objects. The Board
votes 10-6 to affirm the result of the PDP. The policy is defeated. The GAC
effectively will be able to veto a democratically developed policy that has
the support of the community and of the Board. That is not the role of an
advisory committee, it is the role of a supervisory committee.</div>
<div> </div>
<div>Where will ICANN find volunteers to selfishly commit hundreds of unpaid
hours for the public good, work with others to develop reasonable policy,
have the agreement of 62.5% of the Board to implement that policy and see
that policy defeated by an opaque process involving individuals largely or
totally absent from the policy development process itself? My guess is you
won’t. True multi-stakeholderism would be dead.</div>
<div> </div>
<div>The continued empowerment of governments within ICANN has had a place
in the discussion concerning ICANN’s transition into an international
independent organization no longer regulated and empowered by the National
Telecommunications and Information Administration. The United States
government has made it clear that the transition will not take place unless
ICANN remains a true multi-stakeholder organization. What this means, of
course, is open to debate.</div>
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<div>In a July 31, 2014 letter to Dr. Crocker United States Senators Marco
Rubio and John Thune clarified what this means to them: “ICANN must
prevent governments from exercising undue influence…the IANA
transition should not provide an opportunity for governments to increase
their influence.” I do not think Senators Rubio and Thune intended for
governments to increase their influence <em>prior</em> to the transition, as
this proposal would do. I could be wrong but I don’t think I am.</div>
<div> </div>
<div>Approving this Bylaws change at this time sends the wrong message to
the world. It gives ammunition to those who want to scupper the transition
process by alleging that the N.T.I.A. withdrawal will result in a
“takeover” of the internet by perceived enemies of freedom, real
or imagined. Does the Board really want to act contrary to the expressed
views of those whose cooperation they need in order to make ICANN
independence a reality? Is this Board so insular and so unaware of the
greater political reality as to want to provoke the opposition to the
transition this proposal will potentially cause?</div>
<div> </div>
<div>If so, the Board may also wish to consider the possibility that this
proposal is <em>prime</em> <em>facie</em> a violation of California law.
California Corporations Code §5210 reads:</div>
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<div>“Each corporation shall have a board of directors. Subject
to</div>
<div>the provisions of this part and any limitations in the articles or</div>
<div>bylaws relating to action required to be approved by the members</div>
<div>(Section 5034), or by a majority of all members (Section 5033),
the</div>
<div>activities and affairs of a corporation shall be conducted and all</div>
<div>corporate powers shall be exercised by or under the direction of
the</div>
<div>board. The board may delegate the management of the activities of
the</div>
<div>corporation to any person or persons, management company, or</div>
<div>committee however composed, provided that the activities and
affairs</div>
<div>of the corporation shall be managed and all corporate powers shall
be</div>
<div>exercised under the ultimate direction of the board.”</div>
<div> </div>
<div>Under the current procedure the Board retains ultimate control of
ICANN’s activities and affairs. The GAC advises the Board and the
Board may accept or reject that advice by majority vote. That is permitted
under section 5210 of the California Corporations Code.</div>
<div> </div>
<div>If this is proposal is adopted the Board will not in all cases retain
ultimate control over ICANN’s affairs as required by California law.
Should a majority of a full Board vote 10-6 or 9-7 to support a properly
developed policy that the GAC has advised against that policy will fail. In
that scenario the Governmental Advisory Committee, not the Board, will have
ultimate control over the activities and affairs of ICANN. That is clearly
not permitted under California law.</div>
<div> </div>
<div>For the reasons stated, I ask the Board to reject this proposal and
stay true to the bottom up multi-stakeholder vision this corporation was
founded upon, and to remain a law-abiding institution this community and
this world may have confidence in.</div>
<div> </div>
<div>Thank you for your consideration of my views.</div>
<div> </div>
<div>Respectfully submitted,</div>
<div> </div>
<div>Edward Morris</div>
<div>Dublin, Republic of Ireland</div>
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