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

[Evan Leibovitch]

I'm happy to read that we're generally agreed, which is why I'm going to
push back on places where I still see dismissal and disenfranchisement. I
will assume in good faith that it's unintentional so I hope that pointing
it out will help correct.

You wrote:

The fact that a particular part of the community is displeased does not, in
> and of itself, represent a failure of the organization, nor an advancement
> of the “public interest.”
>

This is a problematic statement to me.

That "*particular part of the community*" just happens to be OUR community,
the only one ICANN At-Large is bylaw-mandated to be speaking for. The world
out there. No other community should matter to us, the rest have plenty of
their own mouthpieces and mercenaries. And on the ISOC/Ethis issue there
was absolutely no question that this community -- OURS -- was well beyond
consensus in opposing the sale. That we did not reflect that overwhelming
opposition in our dealings with ICANN is an indictment of ALAC's fitness
for purpose.

We are not here to filter, judge, vet or micromanage the global end user
response to DNS-related issues. We are here to discover, understand,
articulate and advance it. ICANN is chock-full of constituencies eager to
belittle and lobby against the public interest. In the face of this ALAC
needs to be the advocate for the outside worldview, not its first obstacle.

If this "particular part of the community" is displeased with a DNS, we
*must* too be displeased because we are their voice -- their ONLY voice --
within ICANN. If that voice is silenced or overlooked it is absolutely a
failure of ICANN's governance design, including its design of At-Large.

I have never said that the AG -- any AG or government overseer -- is
without a political agenda of its own, and it would be foolish to deny that
this agenda can shift with the wind. What I am saying is that, right now, I
trust the AG's closed, hyper-political ability to weigh the various
interests on major DNS issues infinitely more than I trust ICANN's vaunted
MSM, which is truly pathetic.

I too agree with your frustrations about ICANN and the public interest and
> have fought hard to improve that situation and will continue to do so. That
> said, NO DECISION HAD BEEN MADE here.
>

So if no decision were made, we would have sat back and let ICANN make a
decision without being made aware of the massive public outcry against the
sale. That would essentially render ALAC impotent in the face of one of
ICANN's most important decisions in a decade. You've just made the case for
the AG intervention in our absence.

We might rightly *believe* that the board would have made the wrong
> decision because they have made many wrong decisions but, as a matter of
> process, I would have preferred to have seen their unvarnished decision
> first.
>

This is where you and I disagree, and see past each other, the most. You
have this (IMO vastly overrated) faith in reviews and appeals. I, OTOH, see
these as being too little too late (and you KNOW ICANN would have been
unable to roll back the Ethos sale once approved).

Spending so much effort on damage control rather than damage prevention is
to me a clear indication that things are very wrong. It's as if you too
don't trust the decision process either, because of all the effort spent on
after-the-fact cleanup. Cheering on a bad decision in order to test the
appeal process is just incomprehensible to me, especially  when the option
exists to avoid the bad decision at the outset. What, thankfully, is what
happened.


> ALL I’m saying is that even if the organization had a perfect reputation
> for upholding the public interest, the AG could easily have been convinced
> otherwise, prodded to weigh in and sent a letter written by a lobbyist.
>

And if the Queen had testicles she's be King¹

"Perfect reputation"? ICANN has so much ground to gain just to upgrade to
"poor". Heaven knows there have been many previous opportunities for the AG
to intervene.  Ages ago the AG should have blocked ICANN's elimination of
direct Board elections and the sham of its Nominating Committee process.
But it didn't, so to my mind the AG has been even more hands-off than it
should have been. There are many other jurisdictions, including Canada and
Switzerland, where such shenanigans absolutely would have been voided by
the public trustee.

What happened here was that the AG intervened on behalf of a community --
the general public -- that was otherwise unheard within ICANN. That
*should* have been ALAC's job but the AG did it because we couldn't or
wouldn't. As I said before ALAC totally missed the point of the public
objection, playing with PICs and other minutiae rather than the fundamental
badness of turning a non-profit.


> That’s all that happened. It wasn’t some careful study of ICANN’s history
> that led the AG to act. You give him FAR too much credit, that’s all.
>

On the contrary, I give the AG no credit at all except that it's currently
being more trustworthy than ICANN -- and more effective than ALAC -- in
considering and advancing the public interest. Sure, the AG can shift for
the worst, but then so can ICANN.

- Evan
¹ - Sorry if that offended but it just seemed so appropriate. My family
used that saying a lot when presented with fanciful conditionals.
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