[icann-europe] Position Paper on the ALSC draft report

[Andy Mueller-Maguhn <andy@ccc.de>]

Position Paper on the Draft Final Report of the ALSC (August 2001)

Andy Mueller-Maguhn, andy@ccc.de

Montevideo, September 7th 2001

The draft report of the at-large study committee (ALSC) [1] shows a big gap
between those people, who live in the internet and see the impact on
ICANNīs policies  (the so called at-large) and those people, who got the
order from ICANN to think about the future setting of the board and its
legitimation through the so called community (the visible people in the
icann procedures).

Beeing currently the at-large elected director at the board for the
european users, I allow myself to call the result of the at large study
committee (ALSC) specifically hiding individuals troubles (SHIT).

To be very open, in my view this SHIT beeing presented by the ALSC, does
not answer the question of legitimation of ICANN in any way. It does not
even lead to the level of simulation of legitimation we have right now
through the voting of five of the eighteen plus one directors of the board.

Watching the amount of papers, mails & discussions there is around ICANN,
the ICANN board, and those wo try to follow all this, with this position
paper I want to give you a brief overview over the main problems I have
with the ALSCīs SHIT and some constructive ideas how those people who are
effected by ICANNīs policy decissions should be able to participate in
ICANNīs procedures.

---

Why the ALSC draft report is specifically hiding indivduals troubles
(SHIT):

-> ICANNīs procedures, policy decissions and actings in the name space have
a huge impact on every internet users communication space. If the policies
are made from an understanding of the internet beeing a public space or a
commercial environment mages a huge difference in many aspects. The long
history of a parallel and peaceful existence between public and commercial
communication spaces in the internet gets more and more destroyed by rules
in the name of intellectual property [2] and trade mark, next to national
governments legislation.

-> ICANN, obviously leaves the field of technical/administrative functions
with acting in the field of intellectual property / trademark [3] and
affects a missing balance between non commercial and commercial domain name
holders, and users and those who have a registred trademark and those not.

-> the impact of this does not only lead to the fact, that non commercial
domain name holders, or at least those users, who couldnīt afford a trade
mark registration loose their domain when in dispute which someone who
could afford the trade mark registration. the impact is also, that internet
users more and more find themself in a commercial environment without
alternatives like "trademark.sucks" [4] cause the american trademark
lawyers view, dominating in the icann processes, cannot imagine a
legitimate use of trademark except by the trademark holder himself.

-> the idea of reducing the at-large community to those, who have a domain
name, is not only ignoring the impact of the decissions, combined with the
idea of paying a fee, as a condition, this is commercialising democracy. It
canīt be, that those who donīt have a domain name or those, who donīt want
one or canīt afford a domain name or any "at-large-tax" donīt have the
chance to participate in the processes of icann, including the election of
the at-large directors.

-> By writing "Create an at-large Membership" the ALSC ignores the fact,
that there already *is* an at-large Membership, there is already thousands
of at-large members of ICANN, individuals who showed interest to partipate
in the processes of ICANN by the possibility given, the election of the
first at-large directors in 2000. It is somehow sad, that the ALSC didnīt
see this potential of people who showed up already. The current problem is
of course, that the possibilities of participation are almost invisible if
existent [5].

-> The idea of forming an ALSO is not wrong, but it somehow ignores the
fact, that there is a difference between the interests of individual domain
name holders and the at-large community, cause the impact of ICANNīs
decision is much wider than the conditions for individual domain name
holders. The frustration of individual domain name holders already reached
a level that there is the claim for an individual domain name holders
constituency (IDNO) [6] to have - together with the NCDNHC - the chance of
a balance against Business Constituency, Intellectual Property Constituency
etc.

-> So whatīs missing in the ALSC draft is the list of issues ICANN is
responsible for and how to get to a balance of interest in this issues.

---

Watching ICANNīs impacts on the internet as a global communication space I
think ICANN seriously has to watch its legitimation when deciding about the
possibilities for the "at-large" - so for all internet users - to
participate in the ICANN processes:

-> If ICANNīs becomes [7] a forum of registrars, registrys, trade mark and
intellectual property lawyers it might well find policies, that make all of
these parties happy, but this will mean ICANN sells the internet to those
people, wo have an commercial interest in it. The impact for internet users
and for the future of the global information society is a serious thread,
the legitimation for such an act not existence.

-> ICANN cannot continue to ignore the impact to the users, the community,
and the possiblities of the human beeings on this planet to use the
internet for free communication. The frustration of the missing
possibilities for internet users and NGOīs watching information society
issues already reached a level that not only governments take this
situation as a reason to take over the control over parts of the
infrastructure (as happened in some ccTLDīs), it also reached a level where
companies like new.net start to make a business out of this frustration
[8].

-> I think, the board of ICANN shouldnīt consist of people with direct
commercial interests such as registrar/registry function. ICANN needs to be
able to make decisions in the interest of the internet users and the global
information space, the internet. There needs to be a balance between
commercial and public use of this infrastructure and the board must be
consistent of people who think about the impact of the decissions for the
communication culture and space, not only on their own business.

-> The key question is not, how to handle a potential of 400 million
internet users, or how to enshure that ICANN can verify the at-large
members with technical means as describes in the ALSC draft. The key
question is how ICANN manages to allow participation for those who show up
and want to participate in the procedures of ICANN cause they see special
issues they worry about. This is not only individuals, but also NGOīs who
work on this issues.

-> At the end of the day, ICANN will have to ask itself, on what
legitimation ICANNīs "output" is based on. ICANN must face responsibility
not only to the so called "stakeholders" (registrys, registrars) but to
those who are affected by the decisions on policies and the technical
details of the assignment of names and numbers.

---

How shall this work out?

-> Half of the board (50%) must be voted through internet users

-> If ICANN decides to act in the field of intellectual property and
trademarks, than it also has to act in the field of freedom of speech and
public interests that are affected by this

-> Participation is not only a question of organisation, but also of the
openness of the processes. So, ideas like charging a fee for beeing an
"at-large member" or for participaing in the meetings should be overruled
by the interest, to run open processes and possibilities for everyone to
participate who wants.

-> The current imbalance is hard to break up, as long as some people get
well paid and are funded enough to bring their lawyers into most of the
meetings. Watching the fact, that not even ICANNīs lawyer Joe Sims doesnīt
stay neutral in this game [9], the users community also needs more or less
massive funding and contribution from lawyers to be able to be in the
battlefield.

-> Same for the directors, my general idea for this problem would be, that
those, who watch the impact of the policies on the communication space
should be paid by those, who have commercial interests / businesses (just a
question of the use of the existing contributions from registrars and
registries)

-> There are some people in the current board which do see the problems of
ICANN, watching the procedures getting more dependent and infiltrated by
IP-lawyers and governments with their own interests, so the question of the
future of the at-large is the key question what ICANN will be in the
future.

----

[1] http://www.atlargestudy.org/draft_final.shtml

[2] like the DMCA, see http://www.eff.org/IP/DMCA/

[3] through http://www.icann.org/udrp/ and things like the IP-Constituency,
http://www.dnso.org/constituency/ip/ip.html

[4] Paul Garrin already runs this, but was not "selected" in the ICANN GTLD
extension process of November 2000, see http://www.namespace.org/

[5] at some of the last board internal discussions i could at least get
support for an "participation" page on the ICANN-Web, which Andrew
McLaughlin now released in a first version at
http://www.icann.org/participate/ If you have more ideas for this, mail me
or Andrew (mclaughlin@pobox.com)

[6] http://www.democracy.org.nz/idno/

[7] depending on the time of the day and my level of cynicsism I could also
say that ICANN *is* a forum of registrars, registrars and intellectual
property lawyers. But there is some others as well ;)

[8] http://www.new.net/

[9] http://www.atlargestudy.org/forum_archive/msg00774.shtml



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