Re: [icann-eu] Notes on Thomas responses to the ALSC's questions

[Jefsey Morfin <jefsey@wanadoo.fr>]

Dear Thomas and Michael,
First thank you Thomas for this outstanding first analysis. It will help
a lot arguing very important issues indeed.

On 03:28 12/04/01, Michael Froomkin - U.Miami School of Law said:
>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.

This is the first and basic point. We tried at france@large to have some
thinking when responding the Staff questionnaire. Since then we tried to
simplify the resulting vision of the iCANN. To help understanding my
response I will quickly summarize it.

1. we believe in subsidiarity, ie the iCANN respecting the other's duties
    to the users and assuming only the jobs that no one can assume.

2. we believe that the "gouvernance" job better translates in English as
    "net keeping" as there is "house keeping" and that a home does not
    go well when the house keeper is in control rather than the Landlord.

3. we observe that the Internet Community is formed of national (ccTLD)
     and market (.com, .edu..) communities. Their NICs are therefore their
     natural representatives.
     - the NIC should structure in a far better way (the WWA of ccTLD is
       a good embryo) and associates together as he iCANN Members.
     - they should foster the @large animation among other tasks

4. Dennis Jennings' proposition was ill used for the DNSO by Joe Sims.
     It applies to the whole iCANN. There are three classes of concerns
     to be represented at the boD:
     - the Staff: one Rep and no Legal Advisor to be present
     - the "netwide" or "producer" concerns working through consensus
       of anyone competent to the concerned matter. These are the SOs.
     - the "stakeholder" interests working by votes of everyone concerned.
       These are the @large. The current representation seems fair to us:
       five Directors on a geographical basis, four Directors on a subject
       basis (Telcos, Contents, Manufacturers... this may be discussed).

5. In such a scheme NICs are not represented as such at the BoD
     because their interests are everywhere.
     - one of three Directors from each SO should be from a NIC as
       they are protocol users,  IP address distributors and DN Registries.
     - they should approve the BoD's major decisions and decide in
       common of the general policy as being the iCANN/GA.

I note that to go that way the BoD needs only to vote a few lines
accepting National and Market NICs as Members.

The main mistakes to correct seem to be:
- Joe Sims use of the Dennis Jennings' proposition to mix DN support
   and @large concerns (as per Joe Sims' testimony)
- the very poor management of ".us" putting the DoC in an unbalanced
   position: the DoC should only address the USNIC issues
- the Joe Sims' Santiago document describing iCANN Membership
   paralleling he iCANN with a Californian Golf Club and not mentioning
   its international character and duties. The Staff's attitude leading to
   a duopoly shared with VRSN (we believe) is a consequence.

The WG-Review and @large Study Groups are good channels to address
these problems and should work together to correct the first point.

Thomas' proposition of a Supervisory Council with veto power is a very
valuable addition to that scheme we will probably retain. It might be a
first simple and considerable step. Its role would be in our scheme to
be a watchdog for the iCANN/GA.


>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.

Michael, if you accept that iCANN mission should be "net keeping" on
behalf of the Internet Community doing that what others have decided
to delegate it in common and for a limited time, this might be anything.
Thomas' Supervisory Council would permit a day to day control.

>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?

Thomas, I am not sure that @large are individuals only. The persons
are Members. But they may represent different type of small and
large bodies. Only competences (consensus through the SOs) and
Govs (advises through the GAC) are represented today. IMHO the
@large is the users' market (votes by all the stakeholders).


> >       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.

In our scheme the SOs are to advise feasibility through consensus.
@large are to motion advisability through votes. The best way to
get that type of input on a day to day basis is used everyday as
market study. Cost and legitimacy should lead to a permanent
public polling that an @large international committee could
supervise: if a question is supported by a given minority of this
committee it is submitted to @large polling.

> > 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.

Right. But they can be dramatically increased and professionalized
(press, media, studies) by an international permanent polling
system.

> > 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.

Exact. We exactly did a small polling, with good preparation, a lot
of discussions among a few giving inputs to readers and to the opinion.
This list is a good example of what should be the Internet future.
In our scheme it should be helped by the EUNIC as our icann-fra
should and has been helped by the AFNIC.

> > 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.

I am afraid I do not fully grasp that. It seems it is the basis of our
position? (I detailed it so there is no misunderstanding, because
this phrase is obviously your own key element and I was afraid not
to fully understand what you mean: it seems we are in agreement?).

> > 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.

This is interesting. The same response as ccTLDs to IANA. ccTLDs
are not delegated by the IANA: their legitimacy is from their national
communities and hey delegate to the iCANN. iCANN has no monopoly
(however Staff wants to make believe they have and works hard in
trying to build a duopoly with VRSN). iCANN has a delegation of the
International Internet Community.

Let take the example of the augmented.root (there is not alt.root).
You are right the augmented.root is not a hope per se: when the
user community accepts the iCANN's "one million TLD" scheme
(GAC open meeting MDR) the "inclusive.root" (the whole set with
an accepting iCANN) will become reality.

> > 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).

Oyez, oyez.

> > 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.

Thomas, the question is always the same. Is an elect person
its constituency's proxy or has him been elected as a thinking
person. I tend to accept that he is a person and may be accessible
to unknown information and freely decide. What I would favor is a
feed back mechanism so there is some a posteriori control.

> > 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.

This Supervisory Council seem to be a simple and huge good idea.
It is very simple to setup by the ByLaws. I only call for the national
and market NICs to be Members.

I also suggest that the Veto is only suspensive, could be taken by
a qualified minority and would result into a call to the iCANN/GA
decision once such a GA has been created in embodying the
national and market NICs as iCANN Members.

> > 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.

This is of no importance as there are different ways to implement
it. It can be through the a motion to the BoD or through an actual
embodiment of a Supervisory Group taken seriously enough by
the press for its advises to be broadcasted to the public, the Govs
and the DoC. (cf. my proposition on DNSO/GA to form a "net
keeper" list with exactly that mission).

> > 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?)

Again, this proposition is correct and well timed. the VRSN decision
shown that the iCANN needs a counter-power for an auto-control of
its decision mechanism before everything becomes an emergency
to be handled by a BoD under influence from its legal advisors.

Thank you for this.
Jefsey