A delayed reply to A.McL [Was RE: [ga] Final draft of proposedmailing list rules]

["Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>]

Lest any readers misunderstand, Andrew and I get on well in person.  I
really do think he means well and doesn't see ICANN as anything but good,
or harmless.  We just don't see things the same way.  In part this is
because my concerns are fundamentally structural.  My greatest concerns
are about imbalances of reprepresentation that bias the structure.  Many
of those who don't share this concern tend to be more immediately
results-oriented.

I also think it is enormously to Andrew's credit that he participates in a
public list.  I continue to rue the absence of the ICANN Board members
from these discussions (if they are on some other open list I don't know
about, someone please tell me....).

For reference:
> is McLaughlin
> [ is (previous) Froomkin

On Tue, 25 Jan 2000, Andrew McLaughlin wrote:

> Some thoughts on your thoughts:
> 
> [ In my defense, I'd point out that since ICANN has yet to actually do
> [ anything to have a membership except make future membership less important
> [ and less attractive than in the original schema used to claim consensus
> [ for the ICANN structure, the DNSO-GA is currently the only forum in which
> [ individuals who might someday become "members" can participate it has
> [ functioned as a sort of proxy, or stalking horse, for the membership.
> 
> 
> That's silly, and it betrays a serious misunderstanding of what ICANN is and
> how it's supposed to function.

My "silly" understanding derives from a) the White Paper b) the structure
ICANN originally unveiled and claimed to have a consensus supporting.  
Which it then changed.  To me, this comes awfully close to bait and
switch. I honestly don't believe that if the current structure had been
proposed initially it would have had even the half-hearted support the
original draft got, nor acceptance, in the US at least, from the public,
Congress and (maybe) DoC.  I think many people who were prepared to give
ICANN the benefit of the doubt when first formed -- I certainly was a year
ago -- would not have felt so charitable back then if the current plan had
been the original plan.

> 
> 1.  ICANN has been working aggressively to implement a membership.  ICANN

ICANN has worked even more aggressively -- and that is a very good word --
to make public membership unattractive by devaluing its importance.  I
simply cannot see how this basic point can be lost on someone of your high
intelligence and goodwill.  ICANN plans to charge for membership.
Membership has to be worth it.  That was arguable before; I don't know how
I would sell it now.  What would I say?  What would you suggest I say to
my students, for example?  

ICANN may revise things yet again to address this, and that would help,
but the problem is 98% of its own devising.

> pursued funds from a number of sources over many months, and obtained
> $200,000 in grant funding from the Markle Foundation;  has hired a full-time
> project manager, a coding team, and a design firm;  has purchased and
> installed the necessary machines;  and is working to design, build, and test
> the various hardware and software components of a robust, fraud-resistant
> at-large membership.

In the interim it took very important decisions without the benefit of
representation of a major constituency -- the
members/users/registrants/public.

[Furthermore, the above appears to suggest that ICANN will again make
crucial decisions before the Markle-sponsored reports are in.  That isn't
what's planned, is it?  What are all those new hires doing if the
structure isn't decided yet?]

> 
> 2.  As a bottom-up policy-making body, ICANN relies on a distributed

How can it currently be called a bottom-up body? Where exactly is this
"bottom" or its "representation" in ANY of the decisions made to date?  

Please note: I define the "bottom" as the DN registrants/ and DN users,
not people who can afford to hire lawyers to represent them at far-flung
meetings.  I respect their right of business groups to participate, and
indeed value it (so long as it is not the controlling voice) but draw the
line when we start to distort the language to the point where
participation by counsel for major corporations is evidence of "bottom up"
anything.  Again, this harks back to my debate with Joe Sims: he clearly
feels that the participation that matters is corporate, and the user base
is a dangerous annoyance.

I do want to be clear on one thing: I don't personally think that it is
essential to attempt to run a world-wide election of all Internet users.
Last I checked, the representation of other groups in the DNSO for example
was pretty spotty and erratic.  The goal is to get people who represent
those interests into the process, and to give them some clout so their
views can't be ignored.  An election might be one way to do that.  I'm
prepared to believe there are others.  My point isn't "radical democracy"
but rather a missing balance of interests.

> architecture for the development of policy recommendations.  There are lots
> of places in addition to the DNSO-GA where individuals who might someday
> become members can participate.  A few examples:  the ASO

Yes, we are allowed to "participate" - send (useless?) email, write
(pointless?) papers.  But we have no votes.  So when push comes to shove,
we have no power and there is no particular reason why those who have
economic interests not advantaged by our views need take our views into
account. Pointing this out makes us sound shrill.  Not pointing it out
makes us window-dressing.

> <http://www.aso.icann.org>, operates two open mailing lists on address
> policy.  ARIN, RIPE NCC, and APNIC all feature open policy meetings and
> discussion lists -- see, for example,
> <http://www.apnic.net/general.html#mailing-lists>.  The IETF's POISSON and
> DNS-Ops working groups sometimes touch on technical issues relevant to ICANN
> policy questions.  There are BoFs at conferences like NANOG, APRICOT, INET,
> IETF, etc., etc.
> 

These are important representations of the technical community - which is
certainly entitled to a (loud) voice.  But none of them are reliable
methods of representing the user community.

And none of them translate into any votes in the NC or the Board of
Directors.  What you describe is at best second-class citizenship.  And I
would say it is not 'citizenship' at all.  It is slightly better than
window-dressing.  Same thing with "observer" status in some DNSO's such as
the IP - the opportunity to be heard is certainly preferable to its
absence.  But it's not the same as the opportunity to vote.  

> To me, the DNSO-GA mailing list has thus far demostrated that free-form,
> unfocused discussions add little to the development of consensus on
> technical coordination policies.  I have a great deal of confidence that
> Roberto and Harald and others will be able to significantly upgrade the
> performance and value of the DNSO-GA.  But I don't think you should look
> toward ICANN's At Large Membership as a substitute for the distributed
> nature of a bottom-up organization -- the real work toward building
> consensus should take place in the RIRs, SDOs, constituencies, working
> groups, etc., and not in large, undifferentiated, aggregated mailing lists.

This completely misses the point, and does so in a way that probably
explains our exasperating disconnect.  I believe that the average user has
interests which are highly unlikely to be adequately represented in the
groups you describe.  If ICANN were in fact limited to truly technical
issues that would not be a big problem - it might even be a virtue.  But
when basic political issues are being determined, as they already have
been and continue to be (gTLDs for example are more political than
technical), then having the decision reside in groups that are easily
dominated by those who are paid by clients to attend creates a fundamental
structural imbalance to the disadvantage of the general user base.  The
counterweight for that is (or rather, was) the general membership.

It is not in any way surprising that a list like the GA which HAS NO POWER
AT ALL should be abandoned by most serious people, save that last remnant
with a masochistic streak and/or an over-developed sense of duty.  Of
course it degenerated - it had nothing else to do.  It's a truism that
academic politics is so vicious because the stakes are so small.  The GA
is like a limit proof of the general principle.  It tells me little about
how a discussion that mattered would have proceeded.

> I hope that ICANN's at-large membership will help connect interested persons
> with the existing organizations and forums where consensus policies will be
> developed and discussed.  But I don't think ICANN should ever try to
> substitute for or compete with existing technical standard-setting and other
> organizations.

Then what is its purpose?  It is moving away from the RFCs in gTLDs....

> 
> I certainly recognize that ICANN's comment interfaces have left something to
> be desired.  We're shortly going to be launching some improved web-based
> forums in which interested persons can submit comments and discuss pending
> issues (the ad hoc group on numbering will use one of these).
> 

Sounds good.   At least 30 days before the board meeting seems a
reasonable goal?  Will there be something interactive with decision makers
(the Board), or will this be one-way?

> 
> [ In particular, the decision to rewrite the ByLaws in order not to have
> [ individual "members" of any legally or politically meaningful sort flies
> [ directly in the face of the very consensus ICANN proclaimed supported its
> [ initial structure, and represents a decisive break with the White Paper
> [ vision that provided ICANN's original claim to legitimacy.  Furthermore,
> [ as described in some detail in
> [ http://www.law.miami.edu/~amf/individuals.htm, ICANN's decision to remove
> [ the members-with-meaning was originally justified on a very dubious
> [ reading of California law, and was directly contrary to the staff report
> [ which appeared to be the main document on the subject (it did appear in a
> [ separate report which neither I nor many others following the subject
> [ appear to have read until it was too late, since it only appeared in
> [ August while we were on vacation).
> 
> 
> 
> First, I think you mischaracterize the White Paper, which stated that "Board
> Members should be elected from membership or other associations open to all
> or through other mechanisms that ensure broad representation and
> participation in the election process."  The articulated standards are

Where is the "broad" representation today?  

> openness, broad representation, and participation.  ICANN's current At Large
> Membership plan is open to anyone who wants to join, without charge.  We

To date, that group has been excluded from all decisions.  It seems
reasonable to question the legitimacy of every decision made in the
absence of full and fair representation of that group.  That means
everything until all the at large board members are seated.  

> hope to make the membership globally representative through extensive
> outreach and recruitment.  Any member will be able to participate in the
> election process.  And through the membership, we hope to facilitate greater
> participation in the ICANN Supporting Organizations and their constituents.
> 
> Second, I'm not sure what the reference to the staff report means.  I wrote

That is explained in my dialog with Joe Sims archived at
http://www.law.miami.edu/~amf

> one of the two staff reports on membership, outlining one proposed
> membership structure.  After extensive discussion in Santiago (both formal
> and informal), the Board adopted a different model.  The staff report was
> one input to the Board, along with numerous others from the community.  On
> the question of statutory vs. non-statutory membership, the Board placed
> greater weight on the views advanced by the Membership Advisory Committee,
> which recommended strongly against statutory membership under California
> corporate law.
> 

The Membership Advisory Committee's Final Report (May 26, 1999) stated
that the membership should "include any Internet user with access and
verifiable identity in order to reflect the global diversity of users."
It's true that in Berlin the MAC also said, "The rights of the at-large
membership shall be to elect the at-large directors and to approve changes
in the ICANN Articles of Incorporation.  Members should not have the right
to unilaterally change the bylaws in disregard of the SOs, and the right
to bring shareholder derivative suits should be limited."  But that is a
far cry from un-membering members, and certainly didn't give any
notice--not that I detected at the time, anyway -- that this is what was
contemplated.

Regardless of my deficiencies as a reader, I still think the decision was
wrong and should be re-examined.  (I'd note that lots of other people
missed this too before the meeting.  Look at how few comments were
received that addressed this issue.  I forget the number but it was less
than 10, maybe much less. People who care were simply unaware.)

> I'm sorry that ICANN's August meetings didn't mesh well with your vacation
> schedule.
> 

It wasn't just me. And it wasn't just the August meeting - it was the
failure to post the pre-meeting reports in a timely fashion.   Something
that momentous deserved a much fuller airing than it got.

> 
> [ 
> [ I also continue to believe it is unfair to have the members' directors
> [ elected in stages while allowing the other directors to be elected in one
> [ stage.  This seems calculated - yes calculated - to minimize the influence
> [ of the individual directors for as long as possible.  
> 
> 
> 
> This strikes me as an odd paranoia.  ICANN has been entrusted with

Actually, it's based on past performance.  Why did ICANN take all these
decisions without any attempt to seat a single director of the general
user class?  From inside ICANN it may look like "paranoia" -- an attitude
which may explain why ICANN people who speak on this issue (e.g. Joe
Sims), are so very unhappy with the idea of letting the rabble into the
tent.  It would have been possible to have interim directors if necessary.
After all, the bylaws got amended in other ways.

> ensuring the stability of a few key technical resources for the
> Internet.  As such, ICANN has to merit confidence in the many
> communities of individuals, businesses, universities, and others that
> depend upon the Internet that it will not be captured by crazy people

Do you really think the people who originally participated as individuals
before getting disgusted and abandoning the project would have elected
"crazy people"?  

> through an untested, unprecedented global election scheme.  The
> objective of staged elections is to test the election system in a
> real-world setting, giving the ICANN community a chance to observe the
> process and the results, make improvements before the next round, or
> (if things have gone horribly awry) reboot the whole process.  Better
> to catch and correct efforts at fraud and capture before all nine
> At-Large directors have been seated on the Board.
> 

I did not see any concerns about capture in the formation of the DNSO
groups, or the NC.   Why is that?  

> Your language here is revealing -- you describe the At-Large directors
> as "individual directors," as though the nine SO-elected Directors

Shorthand - for directors elected by individuals, as opposed to selected
corporations, trademark holders, nonprofits, standard-setters and all the 
other people currently represented somewhere in the ICANN structure.  

> were something other than individuals.  As you know, all ICANN
> Directors bear a fiduciary obligation to ICANN to act in its best
> interests, not in the best interests of the organizations for which
> they work or by which they were chosen for the Board.  This will be
> true for the At-Large Directors as well.  All 19 Directors are
> "individuals."
> 
> In general, I'm glad that I don't live in the gnostic world which you
> seem to occupy, surrounded by devious fiends of unsleeping malevolence
> (and their willing dupes), who are out to entrench powerful oligarchs
> and betray the cherished notion of "internet governance."  From my

"gnostic world"?  "Gnostic" as in "the thought and practice especially of
various cults of late pre-Christian and early Christian centuries
distinguished by the conviction that matter is evil and that emancipation
comes through gnosis" -- " esoteric knowledge of spiritual truth "?

Here you have lost me.

Seriously, the issue isn't motives.  It's results. And structures that are
biased to certain types of results.  It's about creating structures that
are both legitimate and reasonably calculated to achieve fair outcomes.  
From a legal realist perspective, the structure set out in
http://www.wia.org/icann/after_icann-gac.htm is unusually well-crafted, by
whatever lucky accident if you will, to divide, exhaust, and conquer,
opposition.  And, whatever its intent, that's what it did.

> perspective, the ICANN world is largely (though not entirely)
> populated by individuals of good will and honorable intention who want
> to work together to build a stable, robust, limited-purpose technical
> coordination entity that serves the interests of the global Internet

I'm sorry, but this is simply naive.  At the DNSO level at least, there is
a very important faction that is acting to protect commercial interests.
And they make no secret of it.  There's nothing wrong with that - that's
their job.  Nor is there anything wrong with a structure designed to take
those interests into consideration.  So far, though, the structure seems
to work to give it very great, I'd say disproportionate, weight.  And its
striking that the only group that has not had a single director seated, or
interest group recognized, is the end-user.   Which was to be the
counter-weight.

> community.  (Yes, even your apparent nemesis Joe Sims.)  If you
> approached the process in this way, your views might be accorded
> greater respect by the broader community of participants.
> 

I don't think I've suggested the participants are personally dishonest.  
I certainly have no reason to believe that.  

I have accused some of them of silence.  I have accused ICANN as a body of
failing to give adequate notice and of making bad decisions.  Above
I've accused it of unveiling a policy recently which had been the original
policy would not have been politically acceptable.  And at times
I have even accused some participants (Sims for example!) of candor: since
the secret selection of the original ICANN board some have on occasion
been remarkably candid about their plans.  I disagree with their plans.  
I also believe they are no longer faithful to the White Paper.

Few bodies enjoy being criticized.  This is not personal.  But it is also
not "technical".  It is, quite simply, political.

Frankly, most of ICANN's serious and responsible critics walked away a
long time ago. There is an ever-dwindling band that hangs on.  I have
seriously begun to wonder if I shouldn't walk away too.  

> [ All that, however, is past, unless there is some chance the issues 
> [ can be revisited in Cairo now that part of the Board is the
> [ elected representeatives of part of the stakeholders?
> [ 
> 
> 
> The whole point of the At Large membership and elections agenda item
> for Cairo is to revisit and reconsider these issues.  This is still,
> as it has been from the beginning, a step-by-step process forward,
> often in fits and starts.  I'm certainly going to advise the Board to
> reach closure on the form , structure, and content of At Large
> membership. What's your alternative proposal to what's already in the
> Bylaws?  Why don't you prepare something to be posted when the public
> comment process starts in a few weeks (or sooner, technology willing)?
> 

I have chosen to focus my primary energies on the dispute resolution
issues.  Those of us who are not full-time ICANN employees, and don't have
clients paying us to do this work (i.e., almost by definition, any user or
self-proclaimed user representative), have to focus our efforts.  Of the
things on the table given the current diminished membership plan, the
least bad I know of is the one noted below, Jonathan Weinberg's
suggestions.  I would be the first to admit I don't have an obviously
better idea of my own other than go back to Plan A, with real members and
direct elections.  As far as I can tell, fear of litigation is largely a
red herring giving the protections in California law.  Below I suggest one
other alternative, abeit with some trepidation.

Yes, it's easier to carp than build.   Alas, that doesn't mean that
carping is not well-founded.  ICANN should not have adopted the current
lousy electoral structure.

> [ 1) Is the ICANN Board going to take up in Cairo Jonathan Weinberg's
> [ suggestions on improving the role of the membership? (See
> [ http://www.icann.org/comments-mail/comment-bylaws/msg00015.html )  Is some
> [ action required from outsiders to make this more likely?  If the Board is
> [ not planning to do this, is there going to be an explanation as to why
> [ this is not in order?  (Please consider this a formal request to agenda
> [ this issue if such a request is required.)
> 
> 
> I'm sure Jonathan's suggestions will be given careful consideration by
> the Board.  I'll ask him to repost them in the dedicated comment
> forum, once it's been launched.
> 

I am open to alternatives.  If we can't manage something reasonably
democratic now, then some means needs to be found to virtually represent
the interests currently excluded.  Few rights owners are actually
represented in the DNSO; representatives of trade associations stand in
for them. Perhaps having people from appropriate Internet oriented civic
groups would work as an interim measure - CDT, EPIC, ACLU are US
possibilities. I'm not well informed about the extent to which similar
groups exist in other countries.

> [ 
> [ 2) Also, is the issue of new DNSO constituencies going to be in order in
> [ Cairo?  If not, when will the IDNO issue actually be discussed and
> [ resolved?
> [ 
> 
> 
> 
> I've advised the Board that I don't think any of the proposals for
> additional constituencies (including the IDNO and variations on it)
> have met the test of broad support.  If the Board receives a proposal
> for a new constituency that bears evidence of broad support among
> individuals (which means many more than 35 individual members, in my

How does this compare to the test that was applied to the initial
constituencies?

Would you be willing to share how many names in excess of 35 is required
to be taken seriously by ICANN?  And how this compares with the number of
individuals who formed the existing DNSO constituencies?

It would be very unfortunate if this got to be like a NY primary election
registration drive.

> view), I'll certainly advise them to consider it.  The Board can only
> act on actual proposals, though.  Is there a new effort underway to
> organize a broad-based, open and inclusive constituency for
> individuals domain name holders?
> 

I do not know of one.  Until and unless the Board lets the rest of the
world in on what criteria would have to be satisfied, I doubt anyone would
be willing to devote the time to organizing one in light of what potential
members might reasonably interpret as nearly implacable hostility to the
concept.  (I personally don't think the Board is implacably hostile to the
concept, but I wouldn't feel able to convince many other people of this
given the current state of play.  The perception is there, it has some
basis in things various people have said.)  And right now, even I think it
unlikely that the Board would accept any proposal for another DNSO group
of any kind until some future time.  It looks like a de facto freeze.

Perhaps, if and when the Board is prepared to entertain new applications
for DNSO constituencies, it could announce that fact.  That might break
the logjam.

[remainder of previous exchange deleted]

Yours &tc,
MF
-- 

A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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