[wg-review] Message from Jonathan

["YJ Park" <yjpark@myepark.com>]

Hello,

This seems to be bounced even though I remember 
he was added to the WG members and there appears 
to be more cases like this, which I am working on right now.

Feeling sorry for being in the holiday mood for days
I will try to be as responsive as possible.

Thank you for your patience so far.

Regards,
YJ

======================================
Date: Tue, 26 Dec 2000 08:56:56 -0500
To: wg-review@dnso.org
From: Jonathan Weinberg <weinberg@mail.msen.com>
Subject: Re: [wg-review] We are in the starting line.....
Mime-Version: 1.0
Content-Type: text/plain; charset="us-ascii"; format=flowed

1. I agree with Karl's comments on the WG's terms of reference.

2. By way of introduction:  I'm a law professor at Wayne State University, 
and have the dubious distinctions of having participated in the U.S. 
government's DNS policymaking process while a scholar-in-residence at the 
FCC in 1997-98, and having chaired the DNSO's working group on new generic 
top-level domains in 1999-2000.  I'm attaching the comments I submitted to 
the DNSO task force in November, in response to the call for comments that 
was sent to the ga list.


*IV. DNSO Responsibilities*

*To what extent has the DNSO fulfilled the responsibilities in A,
B and C?*

The DNSO has not fulfilled its policy-development responsibilities
to any meaningful extent, and has played little role in domain name policy
development.  On the one hand, Working Group A was able to develop a UDRP
proposal, and the Names Council did approve that proposal.  But Working
Group A's plan was the target of considerable criticism on process and
substantive grounds; the Names Council's approval was without extensive
discussion and amounted to a rubber stamp.  The ICANN Board reacted by
setting aside the proposal in favor of a different one drafted by a
registrars' group, with the caveat that the new plan would be modified
further by Louis Touton in consultation with persons chosen by ICANN
staff.  The final plan owed little to the proposal that emerged from the
DNSO.

With respect to protections for the holders of "famous" trademarks
against the registration of second-level domains similar or identical to
those marks, the DNSO was unable to generate any coherent
recommendations.   The Names Council issued a statement, but that
statement had little content.  While the Names Council managed to
recommend that "there should be varying degrees of protection for
intellectual property during the startup phase of new top-level
domains," the statement stopped there; it did not speak at all to the
nature and strength of that protection or how it should be achieved.

Finally, when it came to the addition of new generic top-level
domains, the Names Council produced a statement of stunning
generality.  ICANN staff were hardly constrained in crafting their own
proposal to the board; they responded by preparing a discussion document
that requested public comment on 74 policy and technical questions that
would have to be answered in connection with the rollout of new
TLDs. Those questions, in turn, were just a subset of those that staff
might have chosen to ask. Almost none of the key policy issues raised by
the deployment of new top-level domains were addressed by the Names
Council; they were left to be decided, either explicitly or sub silentio,
by the ICANN staff and board. Indeed, the key policy decisions relating to
adding new gTLDs, as well as a proposed country code top-level domain for
the European Union, are currently being handled by ICANN staff, under the
supervision of the board, with no DNSO participation.

*Have the policies recommended by the DNSO represented an adequate
consensus of the affected stakeholders?  Have the viewpoints of all
stakeholders been considered?*

This question is difficult to answer, because I suspect that the
search for "consensus" in the context of domain-name policy making may be
misplaced.  Two key factors have made "rough consensus" a workable
approach in the traditional Internet standards context. First, the
community of Internet engineers and system administrators has been a
relatively small and homogeneous one, bound together by shared values and
professional norms, including respect for technical expertise.  Second,
the issues addressed in the consensus process have been technical ones,
and the question whether a proposed solution works has been capable of
resolution via a (relatively) neutral performance metric.

Those factors are not present in the domain name context. The
universe of stakeholders there is large and remarkably diverse. They do
not share common values or professional norms, and many of the interested
parties have strong economic interests in particular outcomes.  Moreover,
the questions to be decided largely rest on competing values and competing
claims of right: If the name space is to be limited, how is this limited
resource to be allocated? Should the ability to register domain names be
governed by the first-come-first-served principle, by trademark rules, or
by some other means? Should registries be operated on nonprofit or
for-profit bases? How should we think about companies' sunk investments in
the status quo? These are political issues, not technical ones, and they
cannot be resolved from a pure engineering standpoint, asking which
solution works best. They require value choices.  In short, there is no
reason to believe that any genuine consensus can be formed around
domain-name issues.  ICANN is proceeding with the deployment of new
generic top-level domains notwithstanding that it has not sought to form
consensus on any implementation point, and likely could not do so if it
tried.  Only the desirability of one or more new top-level domains is even
close to common ground.

The Names Council has responded to the need for consensus by
formulating policies on such a high level of generality that most areas of
conflict are avoided.  This, however, is not a useful long-term strategy.

Assuming that it is useful for the DNSO to search for consensus,
finally, the Names Council is not well-suited to the task of recognizing
the degree of consensus surrounding any given issue.  The problems here
stem from the DNSO's structural flaws, which I will discuss below.

*Have the recommendations been well-defined, useful in terms of
being timely and being structured with a degree of specificity /
flexibility appropriate to achieve practical implementation?*

The Names Council's recommendations on famous marks and new gTLDs
were sufficiently general as to amount to little more than the following
direction to the ICANN Board: "We approve of the careful introduction of
new TLDs, and of some form of startup-phase trademark protection.  Go with
our blessing, and decide all of the associated policy questions."  It may
be that the Names Council cannot engage in a useful policy-making process
with any greater specificity.  But this is a mountain laboring and
bringing forth a mouse.  If outputs are to be this abstract, and if almost
all policy decisions are to be made at the Board level in the first
instance, it is not clear that it is worth maintaining the DNSO structure,
and with it, the fiction that domain-name policy making is "bottom up."

*How can the DNSO minimize the amount of subjectivity and increase
the amount of objective consensus building, with it current
structure?  With a different structure?*

The question of whether rough consensus is present seems
inherently subjective.  The only objective way of gauging the level of
support for a proposal is counting votes; that in turn, though, only
pushes the subjectivity into the determination of who shall be allowed to
vote.  One of the Names Council's major areas of subjectivity, as detailed
below, is the allocation of the right to vote within the Names Council.


*V. Structure*

*A. Names Council*

*Is the Names Council fulfilling its responsibility to steer and
manage the DNSO consensus process, or can this be improved?*

The Names Council has so far proved itself incapable of developing
policy. The Council has taken the approach that it should primarily rely
on policy work done by the Working Groups and should ratify the consensus,
where appropriate, that those groups bring forward. Yet where a working
group is unable to reach a conclusion (as with Working Group B), or where
the Names Council is unwilling to endorse a working-group recommendation
(as in the case of Working Group C), the council has been able to say
little.  Its members wrangle for several hours at their meetings, adopt a
policy statement at a level of generality high enough to satisfy nearly
all of them, and leave the remaining issues to ICANN staff in the guise of
"implementation." ICANN staff then address the policy issues in the way
they think best.

*Should the NC take a more active role in managing the
consensus-development process, for example by giving working groups more
defined charters and more frequently reviewing the state of their work?*

I doubt that it would help the process for the Names Council to
seek to micro-manage the working groups.  If the Names Council cannot make
effective policy decisions itself, it is unlikely to provide useful
guidance to the working groups.  To the extent that the Names Council's
perspective on an issue is sharply different from that of a working group,
it is at least as likely (see below) that the problem derives from the
Names Council being out of touch with the domain-name community as it is
that the working group is nonrepresentative.

*B. Constituencies*

*Are the constituencies a correct division? Are all DNSO interests
adequately represented in the existing constituency groups? Do the current
divisions aggregate individuals or entities with closely aligned interests
and permit the development of focused positions?*

I agree with Harald Alvestrand that the constituency structure is
"a fundamental reason for the DNSO's problems," a "failure" that "should
be abandoned."  As he points out, the constituency structure has generated
underrepresentation, because many interested parties cannot find a home in
any of the approved constituencies; overrepresentation, because other
parties can participate in multiple constituencies; and misrepresentation,
because the selection of constituency representatives obscures significant
differences of opinion within the constituencies.

Certainly, the list of constituencies ICANN selected seems
skewed. There is a considerable overlap, after all, between commercial
entities and trademark interests; on the other hand, individual domain
name holders and ordinary Internet end-users, whom one would think have an
interest in domain name policy development, are not represented on the
Names Council at all. The more basic problem, though, lies not in the
choice of particular constituencies, but in the incoherence of the
underlying structure. Even if nobody were excluded, there would be no
reason to think that we could reflect the views of the domain name
community by identifying a set of activities necessary to, or enabled by,
the domain name system or the Internet in general, collecting industry
actors performing each of the activities on the list, and then giving
equal votes to each group.

The Names Council structure may make more sense if we think of the
Names Council not as a representative body, but rather as consensus-based.
If the idea is that any industry actor represented on the Names Council
should have the power to object to a proposal and thus block consensus,
then relative voting strength becomes unimportant; the only question is
whether every important actor in fact has a Names Council representative
that can exercise its veto.  Yet as I noted above, the search for
consensus in domain-name policy-making is probably fruitless.  No policy
can gain the support of all affected actors; to demand that is a recipe
for paralysis.  If the Names Council is to take any action at all,
therefore, it must be on the theory that its members represents the
domain-name community.  Yet there is no reason to think that the NC's
current structure, which drastically under-represents ordinary user
interests, meaningfully reflects the relevant communities.

The list of constituencies included in the Names Council reflects
the political strength of the various actors at the time the institution
was established.  That constituency formation process neatly illustrated
the lessons of Mancur Olson's The Logic of Collective Action:  that is, it
advantaged groups for whom the costs and benefits of domain name policies
were concentrated at the expense of those for whom those costs and
benefits were widely distributed.  Over the past eighteen months,
advocates of an individual domain name owners' constituency have sought to
press their case to the Names Council and to the ICANN board. They have
failed so far, notwithstanding that the General Assembly has twice
endorsed the formation of a working group to examine the
constituency. There are two reasons behind this failure.  First, absent
enthusiasm for the proposal from major industry players, the Board and the
Names Council have felt no special urgency to move forward. Indeed, it
runs counter to the interests of current Names Council members to dilute
their influence by agreeing to the formation of additional
constituencies. Second, individual domain name holders, each of whom has
only diffuse interests in Internet governance, have little incentive to
join or organize a constituency-in-formation, and therefore group
proponents have not succeeded in organizing individual domain name holders
into any broad-based and representative group onto which the mantle of
"constituency" could fall.  Absent effective representation for
individuals, though, together with other measures to reduce the current
Names Council skew in favor of organized commercial interests, it is hard
to argue that the DNSO policy making process represents the domain name
community in any meaningful way.

*Should there be a constituency for individuals, and if so, how
should its membership be constituted?*

*How do you ensure that individuals who choose to form an
individual constituency represent the vast interests of individuals?*

There should be a constituency for individuals.  So far,
relatively few individuals have participated in the proposed IDNO.  An
important reason why participation has been so low, however, is that so
far it has had no payoff.  Individuals do not have constituency status,
and a detached observer might be forgiven for concluding that it is
unlikely that the Names Council and the Board will grant them that
status.  Energy expended on participation at this juncture, therefore, is
likely to be in vain.  By contrast, if such a constituency were in fact
created, with the ability to elect and instruct Names Council
representatives, I would expect participation to be much more extensive
and more broadly based.

At some level, to demand assurances that an individuals'
constituency will "represent that vast interests of individuals" may place
on this proposed constituency a burden not imposed on the others.  It is
hardly clear, for example, that the Business and Commercial constituency
represents "the vast interests of businesses," as opposed to the interests
of the particular businesses who are most active in that constituency's
affairs.

*C. General Assembly (GA)*

*How can the level of participation by constituency members in the
GA be improved?*

*How can the level of participation by GA members in the GA be
improved?*

The General Assembly labors under the handicap of having no
function and no authority. The only function given by the bylaws to the
General Assembly *as a body* is to "nominate, pursuant to procedures
adopted by the NC and approved by the Board," the DNSO members of the
ICANN board. Under the Names Council's procedures, a candidate shall be
deemed nominated if he is endorsed by at least ten members of the General
Assembly. Experience has shown this to be an inconsequential hurdle

Because the GA is powerless, participation in the affairs of the
GA as a body has no payoff.  Because participation has no payoff, few
people participate in the GA's discussions.  That result is inevitable so
long as the GA, as a body, has no function.

*If changes are made in the constituency structures, and possibly
an individual constituency added, should the GA continue to exist?*

The GA barely exists now.  To the extent that the GA is simply a
label for the set of interested persons who may volunteer from time to
time to serve on working groups, etc., then that label can surely continue
to be used.  To the extent that the GA is intended to signify an
institution that has have functions and authority *as a body* in the
domain name policy making process, no such institution currently
exists.  I think that it would be desirable if such an institution did
exist,  but we need not worry about abolishing something that doesn't exist
today.

*D. Working Groups*

*Are the working groups an appropriate mechanisms to foster
consensus in the DNSO?*

*Are there mechanisms other than working groups that the NC should
employ in managing the consensus-development process?  For example,
assigned task forces?*

The appropriate treatment of working group results presents a
difficult issue.  On the one hand, the DNSO working group process can
usefully narrow differences between opposed groups.  It makes it possible
for a broad range of participants to participate, and make their expertise
available, in a direct and unfiltered way.  On the other hand, because
working groups are self-selected, there is no guarantee that any
particular working group actually reflects the community as a whole.

The Names Council should ask, in each case, for adequate
assurances that a working group was diverse, and that it adequately sought
to collect comments from across the broad range of the community.  If
those conditions are met, the Names Council must pay careful attention to
the working group's results.  It should not simply dismiss those results
on the basis of its members' intuition that the community consensus lies
elsewhere; it may be the working group, rather than the Council, that is
more closely attuned to community feeling.  This point is especially vital
given the Names Council's flaws as a representative body, discussed
above.  Assigned task forces do not provide the answer, because they
replicate the failings of the existing constituency structure.