Re: [registrars] WLS and the lessons we can retain

[Eric Brunner-Williams in Portland Maine <brunner@xxxxxxxxxxx>]

Jean-Michel, Tim,

The suggestion of an issues list is a good one.

The position that the 2002 WLS determination was controlling is one of
the possible rationals any member of the board could offer, but it does
have some profound drawbacks:
	o changes in material facts have no relevancy to the BoD,
	o the RC position was not relevant in 2002, nor in 2004.

These each have corollaries:
	o other issues that may arise as "pending" from time to time,
	  may be decided by an appeal to a factually unrelated prior
	  determination by the BoD. Material facts are not relevant.
	o Issues, not Constituencies, define controlling actors. VGRS
	  is relevant, registrars are not, on the issue of WLS.

The really corrosive consequence of this is that the current crop of
ICANN litigants have got it right, both of them.

Lawsuits are an effective way to seek contractual interpretation goals, and
of course, transparency takes on the meaning of transparency towards the
court that has legal jurisdiction and its rules of evidence and procedure,
and inclusive take on the meaning of including only those parties who have
standing to be "included" by virtue of having brought a suit against ICANN
in some jurisdiction.

This isn't quite what is usually ment by "transparency" or "inclusive".

In my letter to Senator Olympia Snowe in her capacity as a member of the
Senate Committee on Commerce, Science and Transportation, I asked for a
DoC review of the BoD's actions on the WLS issue. I didn't take the kind
of approach both of you have suggested -- that ICANN is really a body of
formalism without relation to fact issues or the balance of interests of
multiple competing interest groups.

Eric