Re: addendum to the gTLD MoU / Lack Of Credibility?

["andi payn" <payn@null.net>]

This is a reply to Jim Dixon's post "addendum to the gTLD MoU" as well as to
Jeff Williams' "Re: Lack of Credibility?"

Me:
>> If we can indeed join PAB by signing the MoU with written objections (and
>> especially if doing so makes it not a valid contract), the best thing we
can
>> all do for the process is to do so, then see if we can work within the
>> PAB--alongside the reformers who are already there--to try to fix as much
as
>> possible.

Jeff Williams:
>  I would be willing to do this if there is anyone within the gTLD-MoU
>folks that can legaly counter sign any objections or amendments that
>may be specified.  But to my knowledge there is now one in that
>capacity presently.  Or is there?  If so, who?

First of all, I think that the "they" here would be IANA and ISOC, but I'm
not sure. I suppose if you amended the MoU so that this were no longer true,
that would be a more interesting question...

If they don't legally countersign the amended MoU, then there is nothing of
binding force between the signers and anyone else. While this means, of
course, that we would have little or no basis for suit against anyone on the
basis of the MoU, amended or otherwise (assuming that my guesses about Swiss
law are at all accurate), it also means that we would not be bound by
anything in the MoU, even those parts that we signed without objection
(again with the same caveat). In other words, the document itself would be
legally meaningless.

Of course the fact that a large number of people had signed the amended
document would provide moral and public-relations weight. First, the POC
could claim additional support on the basis of these additional signers. On
the other hand, if the number of people in PAB who had signed the amended
document were enough to form a majority, or even a large minority, this
faction could claim support for the amended MoU.

More directly, of course, the new faction within PAB would be able to make
suggestions that POC could not blithely ignore, as they'd be coming from
their own official Policy Advisory Board--as I already mentioned (in the
next paragraph).

Me:
>> If we get a reform-minded majority in the PAB, there are only two
>> possible outcomes. Either iPOC/POC implements all or most of the reforms
we
>> want, or they prove once and for all that they have no interest in
listening
>> to the concerns of the Internet community, even as represented by their
own
>> advisory board.

Jeff Williams:
>  There is a third.  That being that PAB will be disbanded by POC, and
>given only an advisory voice which is not binding on POC or CORE.

If PAB is disbanded, that clearly has the same effect as if POC simply
ignores PAB, if not greater--it will be a clear demonstration that they do
not wish to listen to the concerns of the Internet community, even those who
participate on the MoU's own terms (by joining PAB). Similarly, if PAB's
soon-to-be-approved voting representation is rescinded and PAB is reverted
to purely an advisory voice, it doesn't make much difference. If POC
generally follows the advise, the situation hasn't changed significantly; if
they don't, they're giving clear evidence of ignoring the voice of the
community.

I don't believe that even the current iPOC is interested in completely
ignoring PAB, and I think that will be even less true when the first "real"
POC is convened, however it is constituted. So far, iPOC has acted on most
of the "official" recommendations of PAB, and sometimes even gone beyond.

For example, I believe that PAB recommended giving ISPs two votes in POC, as
well as giving PAB two votes. The immediate response from iPOC was to
approve the two votes for PAB (although they have to change the MoU for that
to take effect). The ISP question was a bit more difficult, because they
weren't sure how to let the ISPs choose their representatives. Rather than
deciding unilaterally, or asking PAB to do it, they asked the public for
comments on what classes should be represented in POC and how each of these
classes should elect, or otherwise select, their representatives.

I understand the suspicion engendered by the attitudes of iPOC's members of
this and other lists, but their actions show that they are interested in
trying to reshape their system into something which can gain public support.
I know that some will claim that this is a new attitude and it's too little,
too late, but I think that no matter what their motivation, we can and
should take advantage of it to help build a system that we can all support.

Jim Dixon:
>There is some risk in this approach: if there is a steady rise in the
>number of signatories, then the -- dunno what to call them -- people
>currently controlling the process will claim a rising level of support,
>even though their majority (if any ;-) is steadily falling.

>So ideally what you do is get the largest possible block of people to
>join at the same time, all with the same objections.  This is of course
>asking for a miraculous level of cooperation.  So ask for an even
>greater miracle: ask that enough join at one time to completely shift
>the majority.  To guarantee this, should there be N signatories at this
>time, you would need to have N+1 new signatories to the gTLD MOU.

Yes, this would clearly be the ideal way to handle this. However, it might
not necessarily take N+1, because I think some of the people already in PAB
are interested in nearly the same changes that many outsiders are. And even
if the N+1 people do trickle in gradually over a few months, that's not too
bad. For a few months, iPOC et al could claim a rising level of support, and
still maintain a majority in PAB. But within a short time, this
newly-popularly-supported organization would have a Policy Advisory Board
that wants major changes. At that point, if iPOC refuses to listen or make
any changes, they face the PR nightmare of the majority of their support
being withdrawn en masse...

As I said before, I don't think it's likely that iPOC would act in that way,
even without such a threat. Furthermore, at some point, they're going to
constitute the first non-interim POC, who are likely to be more open, rather
than less. First of all, many current iPOC members have made it clear that
they don't intend to be in POC, and those who do will not be a majority.
This means that there won't be any interia of thinking, stubbornness, ego
issues, etc. to get in the way of open minds. Second, this new POC will
include representatives from PAB, and from CORE, and maybe (depending on
what happens with the RFC) from other groups as well.

Jim Dixon:
>Anyone care to work on a standard addendum to the gTLD MOU, one which
>would enable a few hundred more organizations to sign it?

Remember that individual people, as well as organizations, can sign.
Obviously you don't want the entire new majority to be made up on
unaffiliated individuals--or, worse, individual employees of a single
company--but I think a few dozen organizations and a few hundred individuals
would be more than enough.

Also, any one of us could write something up in 15 minutes that most of us
would support, but whoever works on it probably ought to have some legal
experience--or have a lawyer go over it after it's done--just in case.