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Professor Froomkin has laid out his view of the world cogently, and I see no need to rehash what I said earlier. A few small points of clarification:
1. First, I owe him an apology for not copying him on my earlier post; I just assumed he was reading the comment page, since that is where I saw his post, but I should have copied him directly. My apologies.
2. Second, contrary to his assumption, I speak for myself unless I say that I am speaking for the Board. As a general proposition, I do not consider that I forfeit my right to have personal views when I take on a representation, and I feel free to express those unless it is inconsistent with my lawyer's obligation to my client. In this case, as in all others where I have posted on this list and not expressly noted to the contrary, I speak for myself; the Board members are able to speak for themselves, and some do quite frequently.
3. Professor Froomkin (I am being formal because he was, and it seems polite to not be casual if if apparently makes the recipient uncomfortable -- but for other any interested person, calling me Joe or Sims or anything similar is fine with me) seems to have read my post as stating that it is inappropriate for the general public to have any role in ICANN governance (please note this is ICANN governance we are talking about, not Internet goverance). This is not my position nor is it the Board's, as best I can tell. The issue is how to craft a system that permits the general user community (and Professor Froomkin) to participate in ICANN governance, and influence ICANN policies, while minimizing the risk of making ICANN's governance process unstable or unworkable as a result. Professor Froomkin simply does not believe that allowing the general user population to directly elect half of the ICANN Board will cause this problem: "Instability is not going [to] be created by broad representation." He asserts that we are using the specter of capture by a "determined minority" to protect ICANN against "a majority." Of course, this assumes the conclusion: I ask again, "Where is it written that 'majority rules' is the only legitimate form of governance for an organization like ICANN?" I am comforted that he is not concerned about capture of half the Board of the organization that has the potential, managed poorly, to adversely affect the stability of the Internet, but I am -- as are many others. He is entitled to his opinion, but we are not required to risk not accomplishing ICANN's primary goal of continuing stability on the hope that he (as prescient as he may be) is right.
4. If Professor Froomkin wants to read the MAC report of May 26 that
he quotes from, and every other substantive statement about the process
of creating a membership ever made by ICANN or people associated with ICANN
from the day of its creation, he will see that concern about capture has
always been a primary issue. The notion that this was just floated two
weeks before Santiago is ridiculous, and may reflect a lack of attention to this point for the many months prior (which would be understandable, since he was focused at that time on dispute resolution and does have a day job). When the total -- and this is being generous -- of the number of individuals that have been actively involved in this process probably numbers less than a thousand, and when the hard core is only a couple of hundred, it seems reasonable to me to be concerned that those couple of
hundred might well try to capture the At Large directors. Indeed, a goodly amount of the criticism from the Fenellos and Ronys of the world on this subject has been that we should just let them -- the ones who really know what they are talking about -- elect the At Large directors, rather than try to increase the number and representativeness of those involved in the process by including a bunch of people less knowledgable than themselves. Capture by a minority with an agenda is a very real risk -- and one that obviously and clearly would threaten ICANN's abilitity to encourage and support continued stability. To the extent that Professor Froomkin does not accept this, then we have little to argue about, because we are on totally different pages.
5. Finally, to try to twist my statement that national governments are
already involved and active in this debate, and thus the "public interest"
is not exactly going unrepresented to an admission that the GAC controls
ICANN is the kind of "sleight of hand," to borrow a phrase, that Professor
Froomkin is fond of accusing me of. Governments are active in the ICANN
process, through GAC and otherwise; this is both obvious and appropriate.
This does not change the fact that GAC itself is simply a conduit for the
expression of the views of the governments that make it up. If and when
there is a policy before the Board that the GAC has expressed a view on,
and the Board takes an action that is inconsistent with the GAC recommendation,
we will see how committed the GAC governments are to allowing ICANN to
run its course as established. Until that time, ICANN's
Board will and should pay attention to the views of the USG and the other governments that make up the GAC -- not because it has too but because they represent the views of the elected governments of their national populations, and thus have at least as much claim to represent the public interest as volunteers like Professor Froomkin.
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