Re: [icann-eu] Some notes on the ALSC's questions

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

This is all well and good - indeed very well and very good - but if we are
going to challenge the assumptions packed into these very unfortunate
(indeed almost prejudiced)  questions, let's go the whole route.  What
sort of outside inputs are appropriate to ICANN depends entirely on its
powers and jurisdiction.  The more that ICANN becomes an economic and
structural regulator of market participants, as it is currently doing with
the new gTLDs and the VeriSign contract, the more that it needs to be
subject to democratic accounatability.

On the other hand, were ICANN's mission to be restricted to a true
technical coordination mission, then far less of the sort of feedback you
describe would be necessary.  


On Thu, 12 Apr 2001, Thomas Roessler wrote:

> Alexander Svensson and I had a long conversation this evening,
> partially focussing on the ALSC's questions posted today.
> 
> I'll try to summarize some of the arguments we found.  Maybe we can
> actually generate some kind of micro-study for Stockholm based on
> this.
> 
> First, let me recall the questions:
> 
> 	What are appropriate mechanisms for input by individual
> 	Internet users throughout the world into ICANN?
> 	
> 	How can individual Internet users' participation be
> 	structured to support ICANN's effective and efficient
> 	fulfillment of its specific technical and administrative
> 	missions?
> 
> The first actual questions to look at are these: "What's input?"
> And: "What does ICANN need USER INPUT for?"
> 
> You can, of course, restrict input into ICANN to the kind of input
> they get all the time on their public Web forums.  This input is
> nice for being counted ("we had 4000 comments on this issue, we are
> democratic"), and for being ignored.  It's pretty much useless.
> There is a considerable danger that trying to generate structured
> input from the At Large - which might be used as a basis for
> decision-making - on complex topics such as the Verisign agreemnets
> or the new TLDs would suffer from similar problems.
> 
> Note that this does not mean that I'm entirely dismissing public
> discussions on topics, or the "public opinion".  They do have their
> value, and they may even lead to results.  But they'll be there
> anyway, they'll influence any decision-making process, and they
> don't need extra input channels and structure.
> 
> As a consequence, we should look for more indirect input into the
> process:  For instance, the kind of input we created last year when
> we elected the members of the board of directors.
> 
> Thus,
> 
> 	THE SINGLE MOST IMPORTANT INPUT INDIVIDUAL USERS CAN AND
> 	SHOULD GENERATE IS A CONTRIBUTION TO THE ACCOUNTABILITY OF
> 	ICANN TOWARDS THE INTERNET COMMUNITY AS A WHOLE.
> 
> Now, why does ICANN need this kind of input?  After all, the IETF
> can do without, one may argue.
> 
> Of course, this argument is flawed, since the ICANN is not a rather
> open standardization organization such as the IETF.  If the IETF
> screws up with some proposed standard, it won't be used, it won't be
> implemented, and it will be replaced by something which works.
> Remember, the IETF believes in rough consensus AND RUNNING CODE.
> Basically, the IETF gathers input from users all the time, as far as
> they are acting as customers on the market, accepting (or not
> accepting) implementations of protocols, in turn generating interest
> of manufacturers into the standardization process.  And, of course,
> you always have the feedback whether or not something works.  A
> fortiori, one may also look for "technical" standardization bodies
> which have built-in feedback links to society as a whole.
> 
> ICANN should be looked at differently: It is the de facto (and, one
> may claim, natural) monopoly on the root zone market, and it is
> unlikely that this monopoly will be broken any time soon, despite
> all the hopes the alt.root folks may have (I'm not discussing the
> question whether or not breaking that monopoly would be desirable at
> all).  In part, this is because the network effects with the DNS
> root zone are much stronger than the ones with certain kinds of
> protocols.  Looking at the corporation this way, much of the
> criticized behaviour becomes understandable, because ICANN actually
> just behaves like about any monopoly.  Trivially, there is no actual
> competition on the root zone market which can be used as an
> easy-to-use channel for feedback, and generate natural
> accountability.
> 
> Thus,
> 
> 	ICANN IS LACKING ANY NATURAL FEEDBACK CHANNELS WHICH COULD
> 	BE ACCESSIBLE FOR ORDINARY USERS.
> 
> (Maybe Microsoft and AOL could team up to break the monopoly. But
> that's really not the issue here.)
> 
> 
> Summarizing, the question which should actually be asked and
> answered is this one: How can ICANN be endowed with the necessary
> feedback and control mechanisms?  Note that this is not a pure At
> Large question: Most of the DNSO's constituencies have the very same
> problem, and they have experienced it in a painful way with the
> Verisign decision, when the board of directors probably decided in
> the best interests of the corporation (and Verisign), but possibly
> not in the best interests of Verisign's competition, and generally
> ICANN's customers and Internet users (which include ISPs, individual
> Internet users, governments, and TLD operators alike).
> 
> 
> The feedback mechanism which was designed into ICANN's basic
> construction (let me call it Plan A) was to create a board on which
> the representatives of various stakeholders are balanced with user
> representatives.  Actually implementing this plan would indeed endow
> ICANN with a feedback mechanism, and may possibly help to further
> balance interests. However, this plan has the problem (and the
> feature!) that members of the board have to decide in the best
> interests of the corporation, and not of their electorate.  Also,
> with the process as it's currently applied, the board can easily
> "take criticism into account" without asking whether the critics are
> actually satisfied (unless the NC members get their proxies right,
> but that's another issue).  
> 
> In particular, we have to conclude that even directly electing at
> large members to the board will not, cannot, and must not guarantee
> that these board members act in the best interests of their
> electorate.
> 
> Thus, Plan B may be to put the feedback and control mechanisms into
> an entity which is different from the board, and is _not_ forced to
> decide in the corporation's best interest.  Such an entity would
> need a veto right which can be applied AFTER the board has voted on
> a resolution.  The parties present in such an entity could include
> representatives of internet users, the GAC, and the SOs' councils,
> each with a fixed number of votes. Once a certain quorum is reached
> (e.g., two of the four parties vote for veto) a board decision would
> have to be revoked and reconsidered by the board.
> 
> Please note that Plan A and Plan B are not mutually exclusive.  
> 
> Also note that I don't have the faintest idea whether or not Plan B
> is at all compatible with the parts of the California Code
> applicable to ICANN matters.
> 
> 
> What do you people think about all this?  Does this sound to you
> like directions of thought which should be pursued further, maybe
> with the goal of producing a joint mini-study to be submitted to the
> ALSC?  (Or is it all just nonsense and a direct consequence of the
> fact that it's way too late now?)
> 
> Cheers,
> 

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A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
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