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

Diary - October 31, 2002
Shanghai, China

This week, ICANN's world-wide travel machine takes us to Shanghai, China.

ICANN's Shanghi meeting lasted at least 5 days - It began on Sunday October 27 and ended on Thursday October 31.  There actually were several parallel meetings.  And I use the word "parallel" in the sense of lines - or meetings - that never intersect.  The GAC (ICANN's Governmental Advisory Committee) meetings proceeded in a world apart from ICANN.  Nancy Victory of the United States Department of Commerce's National Telecommunications and Information Administration (NTIA), the body that holds the governmental end of the contractual vehicles with ICANN, was present but was never seen at any but GAC meetings.  That was unfortunate; the GAC lives in a strange world that is as detached from ICANN reality as Mars is detached from Venus.

Among the ongoing events was a nearly continuous bit of theatre by ICANN's so-called "evolution and reform committee" to explain and justify its plan (which is neither evolutionary nor a reform that improves.)  I don't think the show convinced anyone who wasn't already a believer.  But it was an interesting revival of theatre of the absurd - I almost expected to see a panelist turn in to a rhinoceros.

As usual the penultimate day was a "public forum" and the last day the actual board meeting.  Real-time transcripts of these are available on the net:

The Public Forum (October 30)

As I mentioned, the turnout was low, and the few who were present were mainly familiar faces.  Some observers chose to interpret this small attendance as an acceptance, even approval, of ICANN.  I chose to attribute the low turnout to frustration with the apparent impossibility of affecting ICANN combined with the expense of going to China for a week.

The GAC statement was, as usual. uttered in the most euphemistic language conceivable.  However, once one pulls off the layers of indirection and the flowery qualifications we see a stark statement from the GAC that the assembled governments of the world are giving ICANN notice that ICANN had better start explaining and justifying its actions.

I'd like to mention one particular item in the GAC report that left me astonished.  Paul Twomey at one point mentioned in his public statement that he and the GAC had been advised "about the nature of the fiduciary obligations on nonvoting liaisons" by "ICANN's outside counsel".  Now as far as I know, that "outside counsel" has no license to practice California law and has repeatedly demonstrated to me (I am a licensed attorney within California) a paucity of comprehension of California corporate law, particularly on matters of fiduciary duties.  For this "outside counsel" to give advice on an extremely complex aspect of California law strikes me as beyond improper, and is perhaps a violation of the rules of professional conduct.

The Public Gets Its Say, But Is Anyone Listening?  In The Simple Book, Marshall Rose defined two classes of people - "goers" and "doers".  The former spend their time going to meetings while the latter spend that time doing useful things.  It is clear from the sparse attendance in Shanghai that ICANN's meetings are mainly attended by professional goers and are bypassed by doers and by those who can not afford the jet-setting lifestyle needed to go to meetings in which they are likely to be ignored, and perhaps be insulted, by the goers who have monopolized ICANN's decision making processes.

Suppose a "doer" does make the effort to show up; will he or she receive an open and fair hearing?  Or will he or she receiving something else?

Consider the shabby way Kathy Kleiman was treated when she spoke at ICANN's public forum,  ICANN's President should be ashamed of his unprofessional attack on a messenger who's sole fault was to bear a message critical of ICANN.

Might this have been an isolated incident?  No, it is part of a pattern that began with ICANN inception and that has never ceased.  Indeed, only a few minutes after the previously mentioned incident, Norbert Klein came to the microphone to explain how he has been offended by condescending and insulting statements of an ICANN contractor and manager.  (Having myself seen the statements of this contractor I can concur that his acts may be characterized as an intentional and systematic attempt to undermine the integrity of public participation in ICANN.  That ICANN's management chose to engage him and continues to retain him as a contractor is, in my judgment, an insult to the public.)

ICANN's actions in these matters epitomize ICANN's institutional Narcissism and its Nixonian approach to those who dare to find fault.  How can ICANN reform itself when it refuses to hear about its flaws and attacks those who bring truth rather than flattery?

How about those RIRs?!  In case you don't know, the RIRs are the regional IP address registries, the folks who hand out blocks of IP addresses.  This is important stuff and must be done with a great deal of care - unlike adding new TLDs to DNS, IP address issues do involve some fairly intricate technological considerations.  The RIRs are rather uncomfortable with the thought that their involvement with ICANN could infect IP address allocation policy with the kind of nonsense and pseudo-logic that pervades ICANN's DNS activities.

In Shanghai the RIRs issued a statement that, if adopted, would relegate ICANN to having no authority over the RIRs except for a very limited ability to review the RIR's adherence to procedure.  In effect, the RIRs have proposed a Declaration of Independence from ICANN.  It is understandable that the RIRs do not trust ICANN; what rational body would place any faith in an ICANN that routinely ignores or overrules its DNS policy body, the DNSO, and has tossed aside the considered recommendations of several of ICANN's committees on public participation?

 I don't mind giving the RIRs the kind of authority and independence they want - in fact I have suggested as much.  There is, however, this little problem of corporate law - If ICANN is to have authority over a matter, then ICANN's Board of Directors must have plenary authority.  Thus, if RIRs accept the proposition that their IP address authority derives from ICANN, the ICANN Board of Directors must consequently have the authority to remove the RIR's powers or to override the RIR's decisions.  That's not a position that I believe the RIRs are willing to accept.  My sense is that there is likely to be no solution to this dilemma short of mechanisms, such as a firmly enforceable contract between the RIRs, ICANN, and some third party, such as the US Department of Commerce, with an explicit statement that the public has third party beneficiary rights and standing to enforce the provisions of the contract.

The Dinner

Actually the pre-meeting meeting was after dinner this time.  As usual no matters were resolved, but there was discussion that would have been interesting to the public as it involved the evaluation of alternatives and weighing of policy.  ICANN's minister without portfolio, Joe Sims, was present, and as usual, had no compunction about joining the discussion as if he were a board member.

Evolution and Reform

"Evolution and Reform", what an awful euphemism!  When translated from the ICANN-ese it means "retrenchment and abandonment of the original gloss of openness, accountability, and transparency."

This discussion lasted hours and the preliminary report fails to illuminate the disagreements or amendments that were put forth.

Evaluated as a totality, the "reform" plan is unacceptable.  It fails to redress any of ICANN's primary problems: lack of public public accountability, vague and overly expansive notions of ICANN's role, and failure of the Board to restrain and discipline ICANN's management.

There was no doubt that the "reform" plan would pass - ICANN's board has never seriously questioned, much less rejected anything put into their trough by ICANN's "staff".

Given the certainty of passage, I chose to support and suggest improvements to an otherwise unacceptable proposal.

I myself offered a number of amendments, one of which was to remove ICANN's president from the Board of Directors.  I believe that such a change is necessary to help redress the imbalance of power between ICANN's sleepy Board and its jet-setting "staff".  I withdrew the motion when the discussion indicated that various board members would be more comfortable discussing this matter in the context of an overall dialog about the role of ICANN's Board and "staff".  At the risk of being naive, I accepted that as merely a temporary deferral.  I did, however, wonder how ICANN's "reform" committee could overlook an issue, such as this, in which ICANN has so clearly failed.

I voted "no" on the final resolution; despite the amendments that removed some of the sharp edges of the plan, as a general matter, ICANN's "reform" failed to deal with any of ICANN's real failures.

Internationalized Domain Names

I voted yes.

Executive Search Committee

I voted "yes".

I do wonder, however, whether it really ought to take a quarter of a million dollars to find a qualified candidate for ICANN's next president.  Certainly in these quiet economic times ICANN can find someone with substantially better qualifications and experience than the incumbent.

Wait Listing Service

Our lunch break was very short and I didn't get back until after this matter had been discussed and voted upon.  However, I was in agreement with the resolution.

Approval of LACNIC

Our lunch break was very short and I didn't get back until after this matter had been discussed and voted upon.  However, I was in agreement with the resolution.

Privacy Working Group

Our lunch break was very short and I didn't get back until after this matter had been discussed and voted upon.

However, I would like to point out that Privacy was one of the major topics of the IFWP meetings held prior to ICANN.  Yet, despite the importance of this issue, ICANN has avoided dealing with it and has, in fact, stomped on the concept of privacy with something akin to hobb nail boots.  ICANN's wholesale sellout to the demands of intellectual property interests that "whois" data be published amounts to a well established policy to abandon all concerns whatsoever for personal privacy.

Thank You to Paul Twomey

I voted yes.  However, it appears that Mr. Twomey was compensated financially for his efforts, possibly in violation of ICANN's bylaws.  On August 13, 2002 ICANN's executive committee met  and agreed to "reimburse" the government of Australia to the tune of $75.000(USD) to cover expenses that Australia had incurred in providing secretariat services for ICANN's GAC.  According to information not made available to ICANN's Board, $46,500(Austrailian) [about $26,000USD] were paid for "Professional Services" to the GAC Chair.

Article VII Section 7 of ICANN's bylaws (the "reform" bylaws are not yet in effect) say that:

Committee members shall receive no compensation for their services as a member of a committee. The Board may, however, authorize the reimbursement of actual and necessary expenses incurred by committee members, including Directors, performing their duties as committee members.

Such a payment, if in violation of ICANN's bylaws, does not reflect on Mr. Twomey.  The absence of concern by ICANN regarding whether this payment payment does or does not adhere to ICANN's bylaws does, however, reflect on the quality of judgment of ICANN's management and ICANN's Executive Committee.

Thanks to Herbert Vitzthum

I voted yes.

Thanks to Meeting Hosts, Sponsors, Etc.

I voted yes.  There are many people who work long and hard behind the scenes to put things together.

The fact that ICANN's meetings require "sponsors" is itself a subject worthy of discussion.  A regulatory body such as ICANN must maintain its independence, both in fact and in appearance.  ICANN's increasing  reliance on "sponsors" raises questions whether certain interests might use (or have used) sponsorship as a means to obtain an inside track advantage.

Board Assessment

As my lawsuit demonstrated, ICANN is a body that has an extremely poor and erroneous understanding of proper corporate behavior and responsibilities.  One has only to read ICANN's assertions in its responses to my lawsuit to see that ICANN is not only entirely out of touch with legal and ethical reality but also has little comprehension of how corporate structures are supposed to work.

I have been saying for years that ICANN needs to review itself.  But ICANN refuses to listen to me - in fact, ICANN's management silently refuses to put anything I write onto ICANN's web site, despite repeated requests to do so and a corporate history of posting things written by other directors and staffers.

So I have a bit of "I told you so" attitude towards this resolution.

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2002 Karl Auerbach, All Rights Reserved.
Updated: Friday, November 29, 2002 08:06:28 PM