<p dir="ltr">@Malcolm...<br>
If we accept for a moment the Board's compliance regarding its statutory duty to pursue the public interest under the articles of incorporation, what could be a possible scenario.. during and or after.. the IANA transition which may signal the Board being perceived to be acting in the interests/objectives of a particular stakeholder to the detriment of the public interest and therefore, what contingencies can be put in place to negate such an occurrence if such is not currently in place? Strain gauges in relation to stress tests maybe?<br>
Trying to clarify Area4 objectives here.</p>
<p dir="ltr">Rudi Daniel<br>
ICT consulting<br>
784 430 9235</p>
<div class="gmail_quote">On Dec 16, 2014 9:41 AM, "Malcolm Hutty" <<a href="mailto:malcolm@linx.net">malcolm@linx.net</a>> wrote:<br type="attribution"><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">I would like to suggest the following two scenarios, which are broadly<br>
defined and may encompass many other more specific suggestions that may<br>
be made:<br>
<br>
Scenario 1. ICANN Board acts inconsisently with the bylaws.<br>
<br>
Scenario 2. ICANN Board acts outside the intended scope of the mandate.<br>
<br>
I would like to suggest that particular attention be given to a slightly<br>
more specific subset of Scenario 2:<br>
<br>
Scenario 2A. ICANN Board attempts to use RAs and the RAA to impose<br>
policies on registrants (and possibly, through them, on Internet users)<br>
outside the intended scope of DNS policy, e.g. to attempt to regulate<br>
general business practices, or Internet content and behaviour generally.<br>
<br>
<br>
Within Scenarion 1, I would include both cases where the Board acts<br>
willfully and explicitly in defiance of the bylaws (for example, where<br>
the Board claimed that the importance and urgency of achieving a<br>
particular outcome justified the Board ignoring a bylaws-mandated<br>
process), as well as cases where the question of the consistency of a<br>
Board action with the bylaws is itself contentious.<br>
<br>
More or less fanciful examples can be constructed to describe how these<br>
scenarios might arise, and the harms they might cause. I certainly<br>
wouldn't limit it to the Board "going rogue" in the sense of becoming<br>
irrational or seeking personal gain. It is quite conceivable that a<br>
substantial constituency could exist to pressure the Board to act in<br>
this manner in a particular case, in support of that stakeholder or<br>
stakeholder group's interests and objectives.<br>
<br>
The harm caused by these scenarios may be particular, or it may be<br>
general. If it is particular to an identified stakeholder, forms of<br>
recourse like litigation, arbitration or an Ombudsman may be<br>
appropriate. However if it is general (and I would suggest there is a<br>
also a general interest in having the Board comply with the bylaws),<br>
there may be no stakeholder who can show specific harm to themselves,<br>
and some other form of recourse may be necessary.<br>
<br>
Regarding Scenario 2A there is a broader reason to seek to prevent this<br>
scenario: even if a consensus (or the appearance of a consensus) could<br>
be found on a particular issue, it would still be undesirable to enable<br>
ICANN to impose policy outside the current scope of DNS management,<br>
because we do not want to invest ICANN with general legislative powers.<br>
<br>
In fact, we may in fact need to think a little harder about precisely<br>
what the current scope is intended to be, so that we may write it down<br>
more clearly. Broadly speaking, however, what I have in mind is the<br>
notion that it's appropriate for ICANN policy to say you're only<br>
entitled to register in .bank if you are a recognised bank, but highly<br>
problematic for ICANN policy to say that you're only entitled to<br>
register in .bank if you notify cash transactions over $10,000 to the US<br>
government.<br>
<br>
Kind Regards,<br>
<br>
Malcolm.<br>
<br>
--<br>
Malcolm Hutty | tel: <a href="tel:%2B44%2020%207645%203523" value="+442076453523">+44 20 7645 3523</a><br>
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</blockquote></div>