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

Tue May 5 18:16:08 UTC 2020

In this case, interest spawned engagement and engagement spawned further
interest.  The fact that issue seemed clearly in ICANN’s remit and seemed
to be a binary proposition provided further comfort for people to engage.

Then great people like Zuck and others herded cats!

On Tue, May 5, 2020 at 1:14 PM David Mackey <mackey361 at gmail.com> wrote:

> Evan, Johnathon, Greg,
>
> Looking back at the path for how this issue worked itself out, are any of
> you able to identify specific opportunities for improvement in the At-Large
> consensus and policy development process, or it do you think it worked as
> it should be expected?
>
> Others are welcome to answer too, of course. I just thought Evan's,
> Jonathan's and Greg's opinions might be interesting, because of their
> consistent engagement in the policy discussion.
>
> Cheers!
> David
>
> On Tue, May 5, 2020 at 1:03 PM Evan Leibovitch <evan at telly.org> wrote:
>
>> 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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