[CPWG] [GTLD-WG] [registration-issues-wg] Towards a comment on evolving the multistakeholder model at ICANN

Evan Leibovitch evan at telly.org
Wed May 22 16:02:38 UTC 2019

Hi Olivier,

> before Kobe, when the idea was circulated that there should be fundamental
> changes made to ICANN's structure, and in particular, the bi-cameral
> structure of the GNSO Council, it was mentioned that this could signify
> civil war in the GNSO. And this got everyone to retract. I guess the GNSO
> is too fundamentally important for the majority of the community, for it to
> risk breaking apart. Can that be said of the ALAC or the GAC?

This goes to the heart of one of my original bullet points: ICANN's core
corruption is its financial dependence on the very industry it exists to
regulate^H^H^H^H^H^H^H^Hoversee. It is not the governance or technical
consequence of a GNSO "civil war" that so terrifies ICANN as much as the
possibility its revenue would implode.

I vividly recall during my days in ALAC a presentation made by ICANN
corporate counsel to us at one of the meetings, describing the Board
structure and duties. One point that stuck with me to this day was that
Directors are expected to uphold a fiduciary duty to ICANN itself. This is
staggeringly different from conventional Boards who have such duty to
shareholders, or normal nonprofits whose fiduciary duty is to a defined
external community or the public interest. In ICANN such duty is solely to
the institution itself, barring Directors from acting in a way that might
diminish ICANN even should that act serve the community or public interest.
This is a radical difference from other nonprofits who exist to serve the
greater good. ICANN literally exists only to serve itself, a reality that
petrified once the last external accountability -- US government oversight
-- was eliminated. I never participated in the "IANA transition" work
because I knew than nothing positive could possibly come from it given its
scope. The bubble is now completely self-contained,

So we now have ICANN completely dependent on the compact between domain
sellers and buyers -- the two halves of the GNSO and the bulk of the
"Empowered Community" that IIRC now has the power to unseat Directors.
Disruption of that compact would indeed affect ICANN's revenue stability
and thus its Board is legally obligated to prevent it. Relentless industry
lobbying doesn't hurt.

if there is no path to an overall, holistic review of the structure of the
> organisation, there is nothing that can be done from the inside to evolve
> the organisation, apart from the tweaks that you so decry.

I agree. Change will be from the outside, it will probably be catastrophic
(from an ICANN context), and it will come from an unexpected source. The
ITU keeps painting itself as the alternative and occasionally makes a push,
but its own capture by authoritarian states diminishes its consideration as
a competing model. I have forever hoped that a body such as the IGF or ISOC
might be the place where smart people would come together to solve this,
but these options have been stuck at "potential" for more than a decade. Is
there still hope here?

For this reason, I am advancing the notion that ALAC be proactive in
seeking partners, allies and other audiences for its principled
messages *outside
ICANN*. Media, NGOs, governments, W3C, anyone who's had enough but is more
scared of the ITU than of ICANN. This is why ALAC's outreach has for a log
time been totally backwards IMO, We don't need more outside involvement
with ALAC, we need more ALAC involvement with the outside -- *our mandated

Yes, we are primarily mandated to provide ICANN with advice, but let's have
that advice meaningful, honest and relevant to end users. And let's make
sure it's public -- so that if ICANN doesn't take our advice, maybe someone
else will.


- Evan
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