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[ga] NAIS report and Joe Sims

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  •          Subject: [ga] NAIS report and Joe Sims
  •          From: Donald Simon <DSimon@SONOSKY.COM>
  •          Date: Tue, 25 Sep 2001 15:51:32 -0400
  •          Sender:



    I am writing as a member of the NAIS team (ANGO and Academic ICANN Study”) in response to the lengthy analysis of our study that Joe Sims posted during the recent ICANN meeting in Montevideo.

    We certainly appreciate the close scrutiny and careful attention that Joe gave to our lengthy study (which is posted at for anyone who is not familiar with it).

    Joe=s analysis, however, contains so many mis-characterizations of our work that I can only conclude he either willfully distorted our arguments, or we just haven’t explained our reasoning with sufficient clarity.  Since I know that Joe would not do the former, I will assume that the fault is ours, and try to remedy the problem by addressing his points through further clarification and explanation of our arguments.

    Let me first review the bidding.  As founded, ICANN was to have a board balanced between nine directors chosen by the supporting organizations representing the various technical, commercial and organizational interests in ICANN, and nine directors chosen “At Large” by some conception of the Internet public.  This was the original bargain made by those involved in the creation of ICANN (including Joe) with the U.S. government and the Internet community.  The promise is contained in numerous founding documents of the organization, including its original bylaws.

    The promise has yet to be fully realized.  ICANN struggled for its first two years over how to replace the initial nine At Large directors who were appointed by the corporation’s founders, and who were to serve until elected At Large directors could be chosen for those nine seats.  Even as  mechanisms were established by the three supporting organizations for selection of the nine SO directors and as those seats were filled, the original appointed At Large directors remained on the board.

    Pursuant to the so-called “Cairo compromise” struck in March, 2000, an experimental direct election for five of the nine seats was held last year.  The other four At Large seats remain filled by the original appointed At Large directors whose terms have been extended through by- law changes.

    In the wake of the elections last year, the Board commissioned an At Large Study Committee (ALSC) chaired by Carl Bildt to conduct a review of not only how best to select At Large directors, but whether to have any At Large directors at all, and if so, how many.   The Board expressed a hope that other studies would be conducted as well, and we organized the NAIS project as an international collaborative effort in response to this request.

     As we noted repeatedly in the discussions of these two studies at the Montevideo meeting, there are many important similarities in the findings of the ALSC and NAIS reports.  Both find that the work of ICANN extends beyond the realm of technical coordination, and accordingly that there is a public interest in the work of ICANN that must be reflected in the structures of internal governance of the organization.  Both call for the creation of an At Large
    membership, with similar structures for allowing the membership to participate in the policy development of ICANN.  Both call for the membership of ICANN to elect At Large directors to the ICANN board through direct elections.

    There are, however, two major areas of disagreement between the ALSC and NAIS.  In our study, we urge ICANN to maintain a balance between the number of board seats elected by the At-Large membership, and the total number of seats selected by the various supporting organizations B in other words, the current nine-nine representation.  By contrast, the ALSC study calls for cutting the number of At Large seats from nine to six, effectively shifting three seats from the At Large community to other as-yet unspecified interests within ICANN.

    The second difference relates to the issue of who can become a member of ICANN. Because of the nature of the public interest in ICANN’s work discussed by both studies, we believe that barriers to entry for membership in ICANN should be kept low, and that any adult Internet user with an email address should be able to join as a member and participate in the policy development process of ICANN and in the selection of At Large board members.  By contrast, the ALSC says that membership should be limited to “individual domain name holders,” although its preliminary report leaves major questions unanswered about how to differentiate between individual domain name holders and the much larger group of domain name holders consisting of commercial interests and organizations.

    Joe is clearly contemptuous of our call for broad public participation in ICANN.  Although he also doesn’t seem to much like the ALSC’s more modest recommendations for achieving the same ends, he grudgingly endorses their conclusions, presumably as the lesser of two evils.

    What is most striking about his lengthy analysis is less the words than the music B an insight into the mindset of this important ICANN insider toward the very idea of the At Large membership.  Although Joe says he is writing in his “individual” capacity, he is in fact the longstanding counsel to ICANN, who expresses little other than hostility toward the need for an At Large membership and the role that the public could or should play in ICANN.  Given the views of such a key inside player, it’s no wonder that ICANN has been so grudging in fulfilling the original promise of a robust At Large membership, or that the concept of the At Large is now under concerted attack and may be dramatically weakened.

    Joe has a particular insensitivity to the notion of ICANN’s legitimacy – a concept which we discuss at length in our report and which he criticizes as undefined and unclear.  To the contrary, we make quite clear our reasoning: given that ICANN has engaged – and will almost certainly continue to engage – in decision-making on a broad range of public policy issues that extend well beyond narrow questions of technical coordination – matters such as competition policy, protection of intellectual property, and the functionality of the Internet to users around the globe  – there is need for public participation and representation in the internal governance of ICANN to make decisions that will and ought to command the adherence and respect of users, governments and businesses worldwide.  Joe may not agree with this perspective, but it’s just not correct to say we don’t explain our argument.

    In this regard, Joe should re-read Stuart Lynn’s recent paper on the “Authoritative Root,” ICP-3.  That paper repeatedly stresses the fact that ICANN is to serve “a public trust” to administer the DNS “in the public interest,” and to carry out the Internet's central coordination functions “for the public good.”  Indeed, that is, in the view of this paper, “ICANN's reason for existence.”  According to Lynn,  “it is essential” that ICANN’s coordinating functions “be performed in the public interest,” and “for this reason” ICANN was founded as a “public benefit organization, accountable to the Internet community.” (emphasis added).

    And Joe ignores the fact that, at least on this issue, the ALSC agrees with us.  In its report, it said in language that is similar to ours:

    Because there is a “public interest” responsibility vested in ICANN (which operates for the benefit of the Internet community as a whole), a role for individuals (as well as non-commercial public interest organizations, etc) is appropriate.  In essence, ICANN needs to be accountable not just to governments and members of its existing Supporting Organizations, but also to those who are affected by its actions but whose daily focus is elsewhere.  Actions ICANN takes within its seemingly narrow technical and administrative mission can affect (and generate interest among) the world’s individual Internet users in a myriad of ways.  They users hold a variety of values and represent interests that may be personal, political or economic.  They care about issues such as access to domain names in non-Latin characters, the potential use of IP addresses and domain names in identification or location of individuals and groups, competition and choice (or not) in the provision of various services provided by independent parties under contract to ICANN, domain name intellectual property issues, introduction of new gTLDs, practices of gTLDs and ccTLDs, etc.

         ALSC Report at 11 (emphasis added)

    Again – that’s not us talking; that’s the Bildt Committee.  Although we disagree with the ALSC about how best to achieve legitimacy and accountability to fulfill these roles, both we and the ALSC – unlike Joe -- recognize the importance of legitimacy as a goal for ICANN’s internal governance.

     At the heart of Joe’s critique is a palpable disbelief that individual users of the Internet are, or could be, interested in the work of ICANN.  This is a curious conclusion from last year’s experience, which demonstrated an outpouring of public participation in the elections that was so far in excess of the ICANN staff estimates that it overwhelmed the systems that they put in place. Had those systems actually functioned, there may have been many more than the approximately 140,000 registrations received – a number some 28 times greater than the original goal of 5,000 members set by the ICANN staff.

     If ICANN’s initial plan last year set a threshold of 5,000 members as a sufficient basis for moving forward with a valid election for board seats, it is certainly odd for Joe to argue that an outpouring of support many multiples in excess of that number demonstrates that no one is interested in ICANN and therefore that elections are an unreasonable approach.

    Joe, of course, has a leave-it-to-the-experts approach to Internet governance.  It is only about the security of the DNS, he says, and that’s best left to the pros.  Those pros presumably include all of the commercial interests making money off the DNS and all of the intellectual property interests who want to protect their profitable trademark rights, as well as the developers and technical experts.  Joe apparently doesn’t see any role for the public here, because he just assumes the public doesn’t care about ICANN and we’re better off not worrying about it in any case.

    This kind of appeal to expertise is always a good argument to make against more inclusive and accountable forms of government – the “experts” usually will know more and better than the rabble.  That’s fine if ICANN is to be little more than an industry trade association.  But if ICANN wants to have trusteeship over a vital global resource and to decide issues of public policy related to that resource, then some form of public accountability and legitimacy is required.

    Joe notes that “managers of perhaps even more important resources” such as national military forces or electricity and water systems – are “almost never elected by the public they serve.”  True, of course, but such managers are almost always under the stewardship of governmental officials who are publicly accountable.  That’s what is so extraordinary about Joe’s position – he wants ICANN to have public responsibility without public accountability.

     Joe also criticizes the NAIS report for never connecting the conclusions of our regional studies of last year’s elections with the recommendations we make for elections in the future.  He says we “completely ignore” our research results.  (Sims, p.1)  This is just wrong.  Although we carefully document the many shortcomings and problems with last year’s elections – no surprise, really, given their experimental nature, and the financial and time constraints under which they were conducted – the fact is that we conclude the elections were “a qualified success,” (NAIS, p. 46) and “a first positive step towards public participation within ICANN. (NAIS, p. 100).  We then make detailed recommendations as to how the elections can be improved. (e.g., NAIS pp. 121-132).  Joe simply ignores our recommendations and misreads our analysis by failing to see the clear connection between our evaluation of last year’s elections and our detailed and practical prescription for how they can be improved.

     Then there’s the cost issue.  We propose, for reasons we explain at length, that ICANN bear the costs of elections out of its operating budget, which is funded by those commercial interests, such as registries and registrars, which conduct business based on the domain name system, and which benefit from a stable and legitimate ICANN.  We know this is a controversial proposition, unlikely to be welcomed by those who have to pay the bill, and Joe repeatedly derides our suggestion as resulting in a “tax” on Internet users (Sims p. 3), to whom may be passed on the ultimate costs.

    This is a nice rhetorical device.  But the costs of elections are, in our view, like any other overhead and operating costs for ICANN – the costs of staff, of meetings, indeed, of legal fees.  ICANN of necessity raises this money from its regulated community, which might view all of it as a “tax.”  Giving it that name really doesn’t much advance the debate.  The point is that ICANN has to pay for the costs of its operations.  If ICANN aspires to serve a broad public interest by playing a pivotal role in management of the Internet infrastructure, but to do so as a non-governmental body, then one of its operational costs will be the costs of nurturing its own legitimacy which, we believe, includes holding elections for its board.

     Ultimately, Joe views the NAIS report as calling for “the creation of global democratic mechanisms that can avoid national governments” (Sims p.7) and that we have some “broader strategy aimed at developing global democratic institutions dealing with Internet governance.” (same).  Beyond that sweeping claim, he characterizes our motives even more broadly: “The goal of the NAIS authors is global democracy, not just public participation in ICANN.”  (Sims p.8).

     Again, Joe is just wrong.  We are not calling for global democracy.  We are calling for ICANN to allow broad public participation in its mechanisms for internal governance.  Part of that participation is to allow those individuals who take an interest in the work of ICANN to have a voice in its decision making, and to vote for the At Large members of the Board.  This is not “global democracy.”  It is simply a means for ICANN to open itself to public membership, and to have those members choose directors to speak for them.

     Joe and others in ICANN apparently view this position as deeply threatening.  Ultimately, the question facing ICANN is an issue of how power in the organization is shared and allocated.  And the point of view expressed in Joe’s lengthy post once again demonstrates that, as is the case in many different venues, those who hold power are always reluctant to give it up.