Re: Fw: [atlarge-discuss] ALOC Draft 3.0

[Lawrence Solum <Lawrence.Solum@lls.edu>]

James,

Thank you for your very thoughtful response.

>From my point of view, there is a strong connection between questions 
about legitimacy and the notion that ICANN is a transnational internet 
governance agency.  If ICANN really does govern the internet, then it 
follows that important questions will be raised about ICANN's 
legitimacy.  From where I stand,these questions are much deeper and 
complex than the discussions I've seen on this forum and elsewhere.  
At a minimum, the discussion needs to distinguish normative legitimacy 
(whether ICANN really is legitimate) from percieved legitimacy (that 
is, whether relevant actors accept ICANN as legitimate).

The casual equation of elections with legitimacy rests on controversial
assumptions about what the legitimacy-making characteristics are.  If 
the ICANN board were entirely elected by on-line elections with 
reasonably good identity verifying safeguards, its legitimacy would 
still be problematic.  Indeed, I suspect it would generally be viewed 
as even less legitimate than it is now.  For example, the elections 
would be skewed toward the global rich, because internet access would 
be a prerequisite for participation.  The self-selecting nature of the 
electorate and the likelihood that less than .00001 (plus or minus an 
order of magnitude) of the stakeholders would vote raise compound this 
problem.  Of course, there are capture problems as well.

On the other hand, if ICANN is viewed as the provider of limited
coordination functions for one of many communications media, then the
legitimacy question is transformed.  Legitimacy, per se, it not at 
stake for nongovernmental market participants.  Instead, two different 
questions arise.  First, the IANA functions may give rise to a 
monopoly because of "networking effects" in the economists sense.  
Monopolies are not per se illegal, but they are subject to antitrust 
regulations.  Second, the question arises whether the services that 
ICANN provides are "public goods," in the economists sense, i.e., 
nonexcudability and nonrival consumption.  At first blush, it seems 
obvious that these criteria are not satisfied.  If this is so, then 
ICANN ought not be viewed as a transnational quasi-government.  It 
should be viewed as a market participant subject to antitrust 
regulation.

A wrinkle is thrown into all of this by the former role of various 
U.S. Governmet agencies.  My view is that this former role is legally 
irrelevant and, even if legally relevant, this role should terminate.

>From its founding and continuing through the recent evoluation and 
reform process, thinking within ICANN has made the contradictory 
assumptions that (1) ICANN's mission is basically technical and 
narrow, and (2)ICANN is an internet governance agency that must be 
responsive and transparent.  This fundamental contradiction produces 
fuzzy thinking.  If ICANN does not provide a public good in the 
economists sense, then the question is how to regulate ICANN so that 
it charges efficient prices.  This regulation should be external not 
internal for obvious reasons of institutional economics.  If ICANN 
does provide a public good in the economists sense, then ICANN should 
be replaced with something quite different, an institution designed to 
guarantee the transparency and stability of the internet at the lowest 
feasible cost.  This institution will need to be international or 
transnational.  It might, for example, be governed by the ccTLDs in a 
manner loosely analogous to the the ITU.

LBS

----- Original Message -----
From: James Love <james.love@cptech.org>
Date: Tuesday, July 30, 2002 9:41 am
Subject: Re: Fw: [atlarge-discuss] ALOC Draft 3.0

> Lawrence B. Solum wrote:
> > As you might guess from my perspective on this issue, you and I 
> would> probably disagree about a wide range of other issues.  For 
> example, I favor
> > the use of intermediate organizations to provide representative 
> feedback to
> > an at-large process (whether it terminates in board seats or 
> not), and
> > believe that direct at large elections pose difficult or 
> insurmountable> problems of legitimacy. 
> 
>    I have always  been quite flexible in terms of how the public 
> representation is addressed, but not having any representation at 
> all isn't 
> a very good outcome.  If the board would have allowed an SO for 
> individual 
> users, and given them a few seats on the board, ICANN would have 
> saved 
> themselves a lot of grief.   The CIRA has given up 9 seats on 
> their board to 
> an at-large, and ICANN is willing to give up zero, which is a 
> pretty small 
> number.  Even with the ALOC committee, I ask Denise and Esther 
> regularly to 
> explain how this group makes decisions or picks its leaders.  If 
> you know, I 
> would like to know.    The ICANN Blueprint for "reform" eliminated 
> GA 
> elections for its own chair and all votes on anything.  How 
> exactly does is 
> the ALOC ruled?    What is its source of "legitimacy."?
> 
>     ICANN insiders seems to want to not only control who has 
> majority 
> control on the board, but also to suppress all dissent.  Have you 
> noticed? 
> In Bucharest Jonathan Cohen was telling people that he would not 
> allow any 
> system that would put people like Karl or Andy on the board.  
> These were 
> just 2 of 19 board members, and they certainly do represent a lot 
> of 
> Internet user views.  Indeed, why can't a harmless and powerless 
> debating 
> society like the GA be permited to elect its own leaders or hold 
> non-binding 
> straw votes?
> 
>     Why is this new ALOC outreach group using the term "at-
> large."????   Up 
> until now, this meant individuals, and voting.  Now it means the 
> opposite. 
> What the point of redefining the term "at-large" if not to confuse 
> people 
> and to distract people from the systematic elimination of any 
> popular voice 
> in the ICANN process?   If you really believe that individuals 
> should have 
> not representation and there should be no voting by the public, 
> then why not 
> be honest about it, and use plain language, like public outreach 
> or 
> something less confusing?
> 
> > I have grave misgivings about the fundamental structure of ICANN,
> > which I believe is based on naive and romantic assumptions about 
> economics,> political theory, and organizational dynamics. 
> 
>     What I really find appalling is the new Blueprint discussion 
> of the 
> policy making process.  This document really does present ICANN as 
> a global 
> government for the Internet.  Have you read it?
> 
>   Jamie
> 
> ------
> James Love, Consumer Project on Technology
> http://www.cptech.org, mailto:love@cptech.org
> voice: 1.202.387.8030; mobile 1.202.361.3040
> 
> 
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