At-Large Representative for Canada and the United States on the
ICANN Board of Directors
Karl Auerbach

Diary - September 17, 2002

The board held a "special" meeting (i.e. by telephone) on September 17, 2002 - at 5am.

The preliminary report may be viewed at

There were three items on the agenda.

But first a meta-question: Why is ICANN always entering into "Memorandums of Understanding" (MoU) and rather than "contracts"?  Is it that ICANN is trying to pretend that the elephant of enforceability is not trying to hide under the bed?

Personally, I prefer clarity in agreements - and that clarity extends to giving them names that do not try to evade the question whether they contain legally enforceable rights and obligations or not.

June 2003 Meeting

I voted "yes" - Montreal is a great city and it's a good place for an ICANN meeting.  Being a person who dislikes travel, I am happy to see ICANN holding a meeting that is at least near the USA.  Will ICANN ever again hold a meeting in California?  Perhaps after having been held accountable to California law ICANN is feeling some hesitancy to recognize the ties to its home jurisdiction.

MoU for .la

I voted "yes".  While I have apprehensions about ICANN's strained relationship with ccTLD's, it does seem appropriate to approve agreements between ccTLDs and ICANN when such do occur.

MoU with the US Department of Commerce

I abstained.

The reason I abstained was simply that there was insufficient time between the time that MoU language was made available to me and the time of this Board meeting.  A matter of this importance ought not to have been handled with such a cavalier attitude.  I am constantly amazed that the board allows "staff" to do this kind of thing to the board.

It is unclear to me, particularly in light of the subsequent statements by the Department of Commerce, that there is actually an "understanding" between ICANN and the US Department of Commerce.  We of the board were informed by "staff" in no uncertain terms that this MoU imposed nearly no concrete or specific obligations on ICANN beyond a few reports; that ICANN was free under this MoU to pursue nearly any course of action that ICANN may chose to take.  It is pretty clear that the Department of Commerce has rather a different point of view.

Perhaps the paper that was signed ought to have been titled MoEM - "Memorandum of Euphemistic Misunderstanding".

(Of course, one can only be amazed that the Department of Commerce is so unskilled in the art of contracting that it couldn't put what it wanted into the actual MoU itself but instead relied on a separate and distinct document that is neither part of the MoU nor referenced by the MoU.)

I looked at this MoEM, oops MoU, from several points of view:

First of all there's the point of view of me as a director of ICANN looking to preserve ICANN.  From that point of view the agreement is a  good thing:  It gives ICANN another year of life and, if one reads the language of the MoU alone and apart from any ancillary statements from the Dep't of Commerce, the MoU imposes virtually no meaningful obligations or restrictions on the corporation.

Then there's the point of view of me as a director who is concerned whether ICANN has the ability to competently perform the jobs that are envisioned (but not clearly stated) by the MoU.  I am concerned that ICANN lacks the capacity to competently do these jobs.  One has only to look at the growing failure of ICANN to keep the country-code top-level-domain delegations up to date. (For instance, right now the .de/Germany ccTLD is in need of being updated and ICANN is dragging its feet.)  And as the result of my win in my lawsuit against ICANN I have seen materials that give me great pause - my confidence in the abilities of ICANN's management is not very high.  In fact my confidence in ICANN's management, which has never been high, has reached an all time low.  I believe that ICANN's board ought to remove certain ICANN executives and officers from their duties for insubordination and incompetence.  I also believe that ICANN has become a captive of the the law firm that created ICANN and that has become ICANN's largest creditor.

Then there is the point of view of a US citizen who is wondering about the actions of his government in approving this toothless MoU that lacks even a pretense of holding ICANN to be responsible to the public or obligating ICANN to allow the public into ICANN's decision making processes.  As far as I can tell, the Department of Commerce let itself be fooled (again) into believing that ICANN will fix itself, which is a particularly silly thing to believe given that ICANN's so-called "reform" plan clearly transforms ICANN into an opaque, non-accountable bloated regulatory body with virtually no responsibility to the public.  Thus, from the point of view of a citizen of the United States, I am quite disappointed that my government, by its approval of the MoU, is both naive and is failing to protect the public interest.

Return to Diary Index

Return to main page.

2002 Karl Auerbach, All Rights Reserved.
Updated: Wednesday, October 02, 2002 05:56:16 PM