[CPWG] Calif. AG mentions ALAC advice in note to ICANN re: PIR

[Evan Leibovitch]

I will politely but emphatically disagree with Greg.

I believe that the whole PIR process through ICANN, and the last minute
participation of the AG, have brought to light a long-ignored but fatal
flaw in ICANN's decision-making: the utter lack of genuine public-interest
consideration baked into its governance. The AG played the role that
stakeholder-elected Board members would usually play, because such level of
accountability no longer exists within ICANN. Post-IANA, the only shred of
accountability to anyone outside the ICANN bubble is that thin tether to
the California government. No mater where ICANN would move, it would still
have that, and I would argue that the "public trustees" that oversee
nonprofits in other jurisdictions in the world would be even more
aggressive than California.

After all, this AG intervention was, I think, the first ever since ICANN
was formed. However, I suspect that it may not be the last because, just
like a delinquent bill-payer, ICANN is now red-flagged as an org that needs
oversight because it can't always do the obviously right thing left
unattended.

ICANN's governance is designed to serve and protect its vested interests,
largely domain buyers and sellers and career wonks, and the rest of us be
damned. Those charged with representing the interests of those outside
ICANN's bubble -- the ALAC and GAC -- are on the periphery, and kept
sufficiently distracted while the compact of domain buyers and sellers
through the GNSO has the power to compel the Board to implement its
bidding. The Board is dominated by the preferences of the buyer-seller
compact, and through the "empowered community" bullshit even reserves the
right to second-guess this Board of mostly its own creation. That is a
cruel joke of accountability.

And where are those representing the public interest? Governments (well,
the good ones) and the public? On the periphery as advisory bodies, given
lip service and a place at the kid's table but treated like utter garbage.
Try sitting in on one of those meetings where ALAC has to beg ICANN to give
it some basic humanity just in travel planning -- THIS STILL HAPPENS. (Why
aren't the travel policies for ALAC simply the same as they are for ICANN
staff?) And what gave the Board the utter gall to determine that At-Large
didn't "deserve" a second seat even thought its independent review
requested one?

To be polite, having served in ALAC for a decade and now out of it for
about five, I've found it all too easy to come to the conclusion that ALAC
is designed to fail, through overloaded processes and countless
distractions that prevent it from actually performing its bylaw-mandated
role. That it accomplishes anything of substance is a minor miracle. And
while ALAC gets to revive the insane "so just what is the public interest,
anyway?" cycle yet one more time, the outside world (as represented by the
CA AG) just knows it and acts on it. Meanwhile, the Nominating Committee
doesn't nominate, it selects, because creating a slate from which electors
"out there" would vote is too damned messy.

The problem in the ALAC approach to Ethos is that it's bound by the way
ICANN works. Anyone who thought that Ethos could address the deal's
fundamental deficiencies through bandaids like PICs and better advisory
groups is utterly delusional. Indeed it was IMO the abundance of such
delusion within ICANN that caused the AG to step in, unable to trust ICANN
to fulfill its public-service mandate without parental supervision. And
they were right. Want to belittle the "cut-and-pasters"? Sure go ahead. But
some of them are global NGOs and charities with a whole lot more visibility
and trust than ICANN. Not a bright idea to be on the wrong side of the
world's do-gooders.

The fundamental problem with ISOC/PIR/Ethos was that .ORG wasn't Just
Another TLD, to be treated as a commodity like all the others. It was
something unique, not too different but different enough. ISOC was given it
as custodian of a resource rather than owner of an asset and chosen
deliberately for that purpose. And if it no longer wanted to be custodian
of that resource it had no right to unilaterally convert it into an asset
just like any other TLD. The core issue was not about what hoops Ethos was
willing to jump through to address pricing or debt-servicing, at issue was
ISOC's right to do the conversion in the first place.

Any normal oversight body in any other industry would have understood that
this was the issue after examining the delegation of .ORG to ISOC and the
sale would have been DOA. Everyone outside the ICANN and ISOC bubbles saw
that. But ICANN loves to tell the world that it's not a regulator, that all
it cares about is that any new owners of a TLD are sane and solvent. Indeed
part of Ethos' sour grapes response was that ICANN was improperly engaging
in regulatory activity.

But Ethos was half right in that complaint, it just got "improper" wrong.
In its letter the AG not only told ICANN had the authority to act as a
regulator, it compelled ICANN to act on that authority.

And here is where stuff gets real. This genie is not going back in the
bottle. ICANN's refusal to be a regulator, and its associated design and
culture, is no longer tolerable to the outside world. Going back to the
status quo is not good enough anymore and some of us have argued that it's
never been good enough. Back in 2013 a number of At-Large leaders -- ALAC
exec members, a RALO chair, a former ICANN Board member and the
At-Large-elected Board member -- wrote an open letter to ICANN (sent to the
ATRT2)  imploring it to "embrace its inner regulator
<http://forum.icann.org/lists/comments-atrt2-02apr13/pdfNKvEtbrZ3u.pdf>".
It was ignored then, but its message was prescient and it's even more valid
now that the outside world has woken up.

ICANN's "inmates running the asylum" form of multistakeholderism must
evolve to recognize that the world outside ICANN has as much of more of a
stake in its actions than those currently inside the bubble. It needs to
accommodate what the public needs from the DNS, which (for instance)
includes at least one legacy TLD run by a nonprofit for other nonprofits.
It needs at least some publicly-elected Board members. There's more to
stability than sane and solvent. The risks of refusing to evolve are awful,
as I truly fear the slow abandonment of trust in ICANN in favour of
inferior multilateral alternatives if ICANN goes back to business-as-usual.

So.... what role will ALAC assume in this evolution? Will it continue to
self-absorb in process? Will it demand resources to do R&D so it actually
knows what the public wants and needs from ICANN? Is it ready to demand a
greater presence for the global public interest and for ICANN to finally
grasp that, like it or not, it *is* a regulator?

Is there actually "mounting concern that ICANN is no longer responsive to
> the needs of its stakeholders?
>

Damned right there is, at least the stakeholders outside the bubble that
ICANN currently refuses to recognize, who rose up and spoke through the
California AG. And it's now really really important that those inside the
bubble don't dismiss them.
The multi-stakeholder model you save may be your own.

- Evan
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