Re: [IFWP] drj response to Kent -- long

[Kent Crispin <kent@songbird.com>]

On Sat, Feb 13, 1999 at 05:27:15PM -0500, David R. Johnson wrote:
>Since Kent invokes my comments during the conference call, I feel compelled to
>respond.

[...]

David, thanks for putting together your voluminous document - 
indeed, I think it will be very useful in furthering the debate, and 
fleshing out where the real differences lie.

However, perhaps understandably, you do not accurately represent the
WMB application.  I hope to correct some of those misunderstandings 
in my commentary that follows, and address the actual substantive 
differences I see.

Once again, thanks for starting this dialogue.

Note that I have broken my response down into several pieces -- very 
few people will read 800 line messages...
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> The DNSO is an advisory body that will be the most significant source
> of proposed ICANN policies regarding the domain name system.  It does
> not need and should not have a role in fund-raising or an elaborate
> staff.  If it were a separate organization, it would require a
> separate board and elaborate fiscal controls, and would likely
> develop interests and goals conflicting with those of ICANN.

I note that ORSC is a separate corporation, and has one officer and
no finances.  It somehow manages to do without such elaborations. 
Therefore, the matter of separate incorporation is orthogonal to the
issue of elaborations or complexity. 

> No
> contractual mechanism could provide adequate assurances that its
> procedures would comply with the safeguards established in ICANN's
> Articles and ByLaws, because it is not realistic to expect that ICANN
> could threaten to terminate a contract with its primary advisory
> body.

Termination is not the only possible remedy.

> There is no assurance that the needed parties would join a
> separate DNSO or that a separate DNSO would fully and fairly
> represent all of those who demand and need to provide input. 

These things are true regardless of whether the DNSO is separate.

> Deliberations within the DNSO will be less vulnerable to challenge if
> they take place under the umbrella of governmental endorsements of
> the ICANN structure.  In short, establishment of the DNSO by means of
> an amendment to ICANN's ByLaws provides the simplest route to a
> structure that will serve the goals and abide by the principles long
> debated in the course of creation of the ICANN structure.

It might indeed be the simplest route.  That doesn't mean it is the 
only route.

It is important to note that the WMB application does not specify
that the DNSO will be a separate corporation -- it is explicitly
neutral on the subject.  The WMB application does envision the
collection of dues -- even if DNSO is part of ICANN, there must be
some mechanism for funding the activities of the DNSO.  ICANN could 
develop those mechanisms, but that would also give ICANN a way of starving 
the DNSO if it so desired.  Having the DNSO manage its own funds may 
seem like a complexity, but on the other hand, incorporated or not, 
having the DNSO manage its own money gives a large measure of 
independence. 


> Why does the Paris Draft provide for self-organizing non-overlapping
> constituencies to select an administrative/facilitative (not a
> policy-adopting) Names Council?
> 
>  
> The Paris Draft establishes a Names Council that administers and
> facilitates the development of broad-based consensus.  If the Names
> Council were defined as the decision-making body, with a limited
> number of seats, then interested parties would seek disproportionate
> representation in selecting the occupants of those seats.

In both models the NC makes some decisions; in both models the policy
making process is an iterative process involving the use of
committees and the NC; in both models membership involvment is
mandatory in the development of policies.  In the WMB model the NC 
is more active in managing the process, but the NC does not 
determine policy.

It is a pet gripe of mine that Paris proponents make much of the 
differences in the "powers" of the Names Council, when in fact there 
isn't that much difference. 

> No
> pre-defined list of constituencies can adjust, flexibly, over time to
> reflect this dynamic medium.  In contrast, selection of a steering
> committee by constituencies representing a minimum percentage (5%) of
> an open membership will assure effective leadership over a long
> period of time.

Actually, there is no significant difference between the drafts on 
this matter.  The Paris Draft says:

    d.  Following recognition of the initial constituencies,
    additional qualifying constituencies shall be recognized by the
    Names Council.  Otherwise, recognition, deletion and merger of
    constituencies shall be effected by fair procedures established
    by the Names Council. 

The WMB application defines an initial set of constituencies, then says

    The DNSO and the Names Council will develop fair and open
    procedures for the creation, deletion, and merger of
    constituencies; and adjustment of the representation of
    constituencies on the Names Council. 

In both cases the actual mechanism for recognition of constituencies
is left undefined.  In both cases each constituency gets 3 seats on
the NC.  In both cases each seat is a vote on the NC.  [The Paris
model de-emphasizes the importance of such votes, but in my view it
is simply unrealistic to think that those votes won't be considered
important.] Most everyone agrees that if the constituencies
self-organize the 6 constituencies in the WMB model would certainly
be formed as initial constituencies. 


> By providing for non-overlapping constituencies, and
> allocating membership to both individuals and organizations, the
> Paris Draft makes sure all voices will be heard and given equal
> weight in determining whether there is a real consensus in the
> General Assembly. Constituencies will behave more like political
> parties, and less like "elected representatives" making top down
> decisions.  This will ensure that those "steering" the research and
> review processes reach out to include all interested parties and are
> not captured by those who can "qualify" as electors for the most
> seats.  Registries (and, potentially, registrars) are assured a role
> as a constituency without regard to the five percent rule because
> they would not likely be able to meet that test as the membership
> grows in size and because their participation is vital to assure that
> proposed policies can be implemented by means of binding contracts
> between ICANN and the registries. 

All the benefits you claim are true for WMB model, as well.  The 5%
rule is not in the WMB model, because it is really an artifact of the
constituency creation rules. 


> Why does the Paris Draft provide for an implementation preview by
> registries?
>  
> ICANN has no governmental power to impose policies on registries
> against the ir will.  If it is to adopt effective, equitable
> policies, it must enter into contracts with the registries.

Here we have a substantive difference in opinion.  The WMB model 
does not presuppose how ICANN will enforce policies.  It does not 
presuppose contracts with registries, or with anyone else.

> The
> implementation preview is designed to establish a basis for contracts
> that bind the registries to implement policies with which they may
> individually disagree, provided that most other registries are
> prepared to support and implement those policies.

This presupposes that there will be identical contracts, or even
contracts at all, between ICANN and the registries.  There is no
reason to presuppose that.  In fact, as David well knows, any
contract between his client NSI and ICANN will certainly be a unique
beast, different from any contract with potential new gTLDs or any
contract with any ccTLD. 

>  This provision
> will make ICANN a standard setting body with some teeth, but also
> prevent the embarrassment and futility of policy "decrees" that
> cannot be broadly implemented.

The concern about the embarassment that ICANN or the DNSO might
suffer might seem considerate, but it is actually a condescending
presumption that the DNSO's policy making process will be
fundamentally stupid; that the DNSO will produce "decrees"; that the
DNSO is incompetent to look at the contracts involved; that ICANN and
the DNSO will operate completely unaware of what can be enforced and
what cannot; that the DNSO is so masochistic as to enjoy developing
policies that cannot be enforced.  

The registry preview doesn't save either the DNSO or ICANN from
anything. 

> The implementation preview does not
> apply to policies, such as adding new TLDs to the ICANN root, that do
> not need to be implemented by the registries.  It is not a "veto"
> power by a particular constituency -- it doesn't prevent
> communication to the ICANN Board of the fact (if such were the case)
> that there is support among other constituencies for a policy that
> the registries oppose.

The WMB model is that any constituency can send its objections to 
ICANN concerning any policy.  This is in fact a superset of the 
functionality of the registry preview that does not suffer the twin 
defects of 1) presupposing that contracts will be involved, or 2) 
singling out special privileges for one constituency.

> It simply recognizes the fact that ICANN is not a governmental body
> and must, to be effective, implement its proposed policies by
> contract.  All open TLDs should be equally subject to consensus
> policies, if there really is consensus for policies that change the
> business practices of registries or contractual relationships of
> registries with third parties.

As a practical reality, it is completely unrealistic for ICANN to
plan on binding all open registries to a single contractual regime in
any near term time frame.  It is just not going to happen like that. 
The ccTLDs are all independent entities, and will not contract with
ICANN until there is some clear benefit for them to do so, or some
external compelling force. 

> Most registries will not agree to
> contracts that require compliance with any and all policies ICANN may
> decide to impose.

For sure -- only gTLD registries will be in that fortunate position 
for probably a long time to come. :-)

> Thus, the best mechanism for assuring
> enforceability of policies developed by the DNSO would be for ICANN
> promptly to seek to enter into contracts with registries that commit
> them to implement policies that both have the support of a broad
> consensus of DNSO members and that have passed the suggested
> implementation preview procedure. 

In a fantasy world that might be the best strategy.  The real world 
is quite different, however -- ICANN is a long way from having the 
reputation capital necessary to try to treat all registries 
uniformly. 

>From my perspective ICANN's best strategy is to approach the ccTLDs
very slowly.  Implementation preview or not, ICANN has no incentive
it can yet offer to ccTLDs that make it likely that they will enter
into contracts of any kind with ICANN.  Prompt action with respect to
the ccTLDs, in other words, does not seem necessary, possible, or
desirable. 

However, the language of amendment 11 pretty much guarantees that NSI
will enter into a contract with ICANN, and that those negotiations
will involve the USG as well as ICANN.  That contract will be 
unique, and consequently, the only registry under contract to ICANN 
for some time may well be NSI.

The dynamics of all this are very interesting -- the ccTLDs will 
remain independent for some time to come, which means that they will 
have no reason to follow the WIPO guidelines.  The gTLDs, however, 
will undoubtedly be required to -- NSI because of the language in 
the White Paper, and new gTLDs because they will only be created 
under contracts.

In this environment it may well be the trademark interests who 
become the biggest advocates for new TLDs...

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[Next installment later]

-- 
Kent Crispin, PAB Chair				"Do good, and you'll be
kent@songbird.com				lonesome." -- Mark Twain