Re: [ga] Motion for a vote of no confidence in the Board

[Mike Roberts <mmr@darwin.ptvy.ca.us>]

At 10:34 PM +0100 3/19/02, Thomas Roessler wrote:
>
>Let's, for a moment, assume that - whatever structure one may come 
>up with for policy-making (which is interesting by itself) - we'll 
>ultimately have a board which can, in reality, ignore input from the 
>policy-making process if it believes that this is the best thing for 
>the corporation.
>
>How can such a board be controlled?  What kind of feed-back can be 
>provided to such a board?  There is no market which can operate as a 
>feed-back channel, like in the case of a normal business.  Thus, 
>external feed-back channels have to be added.  The single largest 
>problem with the Lynn proposal is that it _eliminates_ such 
>channels; even more so if even the governmental appointees have to 
>go through the NomComm filter.  All feed-back channels which are 
>left over can be ignored by the board.
>
>The problem we should try to address is what such channels should 
>look like: How can the public provide feed-back to ICANN which (1) 
>can't be ignored (like an ombudsman who gives non-binding 
>recommendations), and (2) does not have a possible breakdown of 
>Internet stability as its side-effect (like the introduction of 
>competing roots on the sides of AOL and Microsoft)?
>
>--
>Thomas Roessler                          http://log.does-not-exist.org/

I don't detect support for the Lynn plan from any significant 
stakeholder group thus far, and the Board has bent over backward not 
to endorse the plan.  So let's not assume one way or the other that 
elements of the plan are cast in concrete until the Board actually 
proposes changes to the bylaws and posts them for public comment as 
they are required to do.

All the significant stakeholders in ICANN are represented in the DNSO 
constituencies and the GA except governments and the other two SO's, 
which are busy developing their own responses to the CEO's proposals 
- assuming that the GA holds something of a proxy for at large until 
there is viable critical mass of an AL organization in being.  So the 
forthcoming NC meetings bring a substantial breadth of experience to 
bear on discussions of restructuring.

The members of the NC, including Thomas ex officio, have basically 
said they are going to put their day jobs on hold for the next month 
or two in order to work as committee of the whole to come up with a 
constructive, thoughtful response to Stuart's paper.  That is a 
considerable sacrifice.

With respect to Thomas's specific question above re Director 
representation and accountability, we have three years of experience 
in which nomination, selection and seating of the Directors from the 
names, protocols and address areas has functioned better than one 
might expect from a new, private sector consensus organization with 
worldwide constituencies and responsibilities.  Those who object to 
the politics that have occurred in selecting Directors from one SO or 
another can find much worse versions of democracy in their own 
electoral backyards.  Let's not be in a rush to jettison structures 
that are getting the job done, especially those, such as the DNSO, 
that are showing considerable recent improvement in quality and 
process.

This leaves us with issues related to governments and to individuals. 
The Board, in Accra, faced with implacable refusal of the far right 
and the far left to compromise on public representation, could easily 
have said, "A pox on both your houses, there won't be an At Large 
until the warring factions compromise."  To their credit, they didn't 
do this, they left a door open for an initiative from the community 
that meets the minimum test of "bottom up, self-organizing and 
self-sustaining."  If there are those on this list who are not 
prepared to accept this peace offering for what it is, then I guess 
all there is to say is good luck Don Quixote.

I spent ten years in Washington from 1987-1996 doing technology 
policy work on behalf of higher education.  I can assure you that 
there is no satisfactory intermediary position between government 
control and government hands off.  No, nada, nyet.   Back in 1997, a 
liberal Democratic President told his Secretary of Commerce, 
"Privatize the DNS."  Does anyone really think a conservative 
Republican President is going to say, "Federalize it." ?  Not as long 
as the sun comes up in the morning in the east.   Does anyone 
seriously think that an ultra-conservative Republican House of 
Representatives, which originates all budget and appropriations bills 
in the American system, is going to appropriate tax payer funds for a 
tax-exempt private company - an unprecedented event - without 
bringing it within the boundaries of the Controlled Corporations 
Act,about which Michael Froomkin has written so extensively?  Which 
trashes the whole concept of a transnational private entity 
exercising quasi-governmental powers under the sufferance of the 
affected governments?

Stuart needs to be given credit for attempting to find a middle 
ground between direct control by popularly elected governments as  a 
means to represent the public interest, and the present 
unsatisfactory situation.  I personally think that Vint's analogy to 
the IETF nomcom procedure, however worthy as an example of a 
non-electoral accountability mechanism, is completely unworkable as a 
matter of practical political objectives and mechanisms.  IETF nomcom 
works because of the high degree of homogeneity of the IETF 
population.  If ICANN had population demographics even remotely 
resembling the IETF, it would have long since found a compromise on 
At Large and ceased fighting over it.

Leaving aside for the moment the suggestions about monetizing and 
federalizing the root servers, which are an extremely ill-considered 
insult to a group of the hardest working and most competent 
engineering volunteer professionals in the entire Internet community, 
the only reason for a more prominent role for governments in ICANN is 
to deal with the impasse over At Large.

If you ask, how have organizations commonly fulfilled a wish or 
obligation to have the public interest represented on their boards, 
the answers (in American corporations) have typically included an 
annual election by members after a nominating process, election by 
the Board itself after a nominating process, and the creation of 
ex-offio seats for representatives of organizations which themselves 
are deemed to fairly represent the public interest.  I have served on 
Boards with all three mechanisms and each is workable.  The quality 
of result depends more on the people involved than on the mechanism.

So I think, in response to Thomas's question, that the GA needs to 
think carefully about proxy mechanisms to represent the public 
interest.

The direct election option is gone, regardless of our individual 
opinions of its fairness, cost, etc.

Is it through a self-organizing, self supporting group of At Large, 
probably numbering in the thousands, whose franchise is to represent 
the hundreds of millions of users is by virtue of their commitment of 
time and money and interest?

Is it through assuming that nine Directors from three different SO 
areas will pick good people not of their own constituencies?

Is it better indeed to support Stuart's suggestion that elected 
legislatures detail their Executives to appoint such people? [Vint 
has observed that this is not exactly what Stuart had in mind, but in 
the grand scheme of things, whatever ICANN's Board may propose, 
governments in their imperial wisdom will dispose.  Let's just assume 
they will make the call the way they wish to.]

Finally, there is a way to bring all this crashing down on our heads. 
That is to behave in such a way as to destroy the coalition of 
technical, business and public interest leaders who provided the 
political will and support in 1998 to induce the US and other 
governments that the experiment proposed in the White Paper was in 
fact doable and a desirable means of dealing with a difficult 
international problem.  A lot of these people are now on the fence, 
watching the actions of the Board and ICANN's constituent 
organizations.  There is only one message that will give us the 
opportunity to continue to be active in ICANN.  Which is that ICANN 
isn't broken, that it is getting its fundamental job done albeit with 
lots of startup pains, and that the confidence of those who have 
important national security and national economic interests in the 
continued good functioning of the DNS is warranted.

Let's get to work.

- Mike

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