[ncdnhc-discuss] CYBER-FED No.11: The Future of Democracy in ICANN
hans.klein at pubpolicy.gatech.edu
hans.klein at pubpolicy.gatech.edu
Sun Sep 16 04:19:16 CEST 2001
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CYBER-FEDERALIST No. 11 September 15, 2001
The Future of Democracy in ICANN:
A Critique of the
At Large Study Committee Draft Report
Hans Klein
Computer Professionals for Social Responsibility (CPSR)
http://www.civsoc.org
The Internet Democracy Project
http://www.internetdemocracyproject.org/
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At ICANN's recent meeting in Montevideo, the At Large Study Committee
(ALSC) released its draft recommendations for user representation in ICANN.
[0,1] This document contains recommendations that may shape the future of
democratic governance not only of ICANN, but of the Internet
generally. Unfortunately, the document is deeply flawed. It abandons the
foundational commitments made at ICANN's creation and proposes to radically
reduce user representation in ICANN.
I start by commending the ALSC for providing a useful analysis. The report
facilitates understanding of many issues surrounding user representation in
ICANN. Moreover, it confirms what is by now widely acknowledged: ICANN's
actions have public policy content. The report notes that ICANN's
decisions affect users in a myriad of ways that users care about,
including: "the potential use of IP addresses and domain names for
identification or location of individuals and groups," the "competition and
choice (or not) in the provision of various services," "domain name
intellectual property issues," and "practices of gTLDs and ccTLDs."[2]
Taken together, ICANN's policies in these areas constitute a form of
Internet governance. It is encouraging to see this acknowledged in print.
Despite these useful points, however, the report's core recommendations are
flawed in substance and in justification. If the recommendations were
implemented they would radically reduce user representation in ICANN: a
reduced number of board seats would be available to represent a reduced
electorate. The ALSC justifies these recommendations with inappropriate
principles of pragmatism (what can be implemented) and political expediency
(what the current Board will accept.) The ALSC ignores the agreements
hammered out in the 1998 International Forum for the White Paper (IFWP), in
which the U.S. government, the Internet user community, and a wide variety
of industry, government, and non-commercial groups agreed on a set of
bylaws for ICANN. The IFWP agreement was founded on 1) the principle of
equal representation of industry experts and users and 2) an inclusive
vision of users. The ALSC, by proposing that the ICANN board unilaterally
abrogate this foundational agreement, risks undermining the stability of
the Internet.
In what follows, I analyze the report's substantive recommendations, the
justifications for these recommendations, and the principles and
justifications of the 1998 IFWP process. I conclude with some comments on
the stability of the Internet.
Substantive Recommendations
===========================
Of the ALSC's many recommendations, three stand out. First, the ALSC
proposes to reduce the number of At Large directors from nine to six.
[3] This one-third reduction in user representation would end the balance
of interests on the board, leaving users in a permanent minority of 6
directors on a board of 19.
Second, the ALSC proposes a corresponding increase of representation for
ICANN's other constituencies. Stakeholders now represented by the three
supporting organizations (ASO, PSO, and DNSO) would increase their
directors from nine to twelve, thereby gaining a permanent majority of 12
on the board of 19. These stakeholders would be re-categorized as
"developers" and "providers." [3]
Finally, the ALSC proposes to drastically redefine At Large
Membership. The qualifications for voting would go from possession of an
Email and snail mail address to being the designated contact in a domain
name registration. (The proposed qualification for membership is somewhat
misleadingly called "individual domain name holder"; in fact, it restricts
the franchise largely to commercial organizations.) [4] This would change
the membership in number and character. Since there are far fewer domain
name registrants than users, the potential electorate would drop by an
order of magnitude. More importantly, since most domain names are
registered by organizations not individuals, this recommendation would
transfer voting rights away from individuals and over to
organizations. Significantly, most of these organizations would be
businesses: since about two-thirds of all name registrations are in .COM or
commercial domains like .CO.UK, the ALSC proposal would put most voting
rights in the hands of commercial entities. Finally, the ALSC recommends
attaching fees to membership, thereby creating a barrier to participation
that is especially onerous to non-commercial entities. The overall effect
of these recommendations would be to redefine the At Large Membership,
changing the definition of an Internet user from individual using the
Internet to a business operating a host computer.
In their totality, the ALSC recommendations are radical: they would
effectively eliminate individual Internet user representation from the
ICANN board. Evidently, the committee took its "clean sheet" mandate to heart.
Justification for Recommendations
=================================
The ALSC offers three main justifications for its recommendations.
First, the ALSC frequently invokes "consensus." The draft report contains
such phrases as, "we found no consensus support for the position that ...,"
"found potential consensus support for the notion that...", and "there is
an emerging consensus that ..." [2] However, nowhere does it define the
term. As readers may know, critics of ICANN have frequently complained of
the invocation of consensus to justify top-down decisions. The draft
report uses a similar rhetorical practice to justify its
recommendations. Absent a meaningful definition of the term, however, this
risks confusing readers into believing that a recommendation had wide,
verifiable support. This seems unlikely, since the ALSC "... found it
difficult to generate a high degree of interest in these issues." [5]
Invocations of consensus to justify recommendations seem to be without basis.
A second, related justification used by the ALSC seems to be political
feasibility. The ALSC justifies its recommendations by noting that they
can win the top-down support of the Board. Here again the ALSC employs the
language of "consensus": "We believe the approach with the best chance for
consensus support is ... organizing ICANN along ... functional lines of
developers, providers and users, by defining At-Large members as
'individual domain name holders' ..., and by providing these At-Large
members with the opportunity to ... select one-third of its Board."
[6] Here consensus seems to mean political feasibility and board
approval. This justification also lacks merit. Since ICANN never fully
implemented user representation on the board, the body remains dominated by
industry representatives. The current board might be unwilling to approve
any recommendation that would allow Internet users to counter-balance
industry interests.
A final justification for the recommendations is pragmatism: the proposals
can be implemented fairly easily. In particular, redefining users as
domain name holders is justified as a way to solve the administrative
problems of voter registration and authentication. The ALSC claimed that
the alternatives, most notably the snail mail authentication system used in
the 2000 election, "risks totally undermining the finances of ICANN."
[5] Such assertions are not without merit, but they are also not
completely convincing. ICANN pays very high staff salaries and legal fees,
so the admittedly high costs of snail mail authentication of voters would
be in line with these. The Markle-funded NAIS report has stated that it
believes ICANN can afford to continue using the system used in the 2000
election. [7] In any case, the gain in cost-effectiveness would be
accompanied by such a loss in user representation that this pragmatic
justification is weak.
In summary, the ALSC has recommended radical changes to user representation
in ICANN and has provided only weak justification for them. While the
recommendations could be adopted by the ICANN board in a top-down
proclamation, they have no demonstrated support in the broader Internet
community and seem unlikely to attract such support.
ICANN's Founding Principles: The IFWP
=====================================
Following publication of the White Paper in 1998, the US government
initiated an open, participatory process through which the Internet
community could achieve consensus on the design of what would become
ICANN. This process led to the design of ICANN to house the core technical
functions of the Internet (the IANA). Accounts of those events are
available from Mueller [8], Lessig [9], and Klein [10,11].
For guidance on today's questions about the At Large Membership, ICANN
should turn back to this founding "constitutional moment." Not only does
the IFWP provide concrete answers to questions of user representation, it
also offers a foundation of legitimacy for those answers.
The IFWP produced the following agreements:
Principle of balance: the IFWP produced a design for the Board of
Directors that is balanced between supply industry/expert representatives
and user representatives. This balanced representation between suppliers
and users is the keystone of ICANN's legitimacy.
Expansive conception of users: the idea for user representation in ICANN
was developed by the Boston Working Group. [12] It is there that we can
turn to better understand the definition of user intended for ICANN's
bylaws. The BWG championed an open and expansive vision of
users. Furthermore, that open definition was adopted and implemented in
the election of year 2000.
Due process: the two principles above resulted from an extended, global,
and participatory process, the IFWP "constitutional convention." While that
process was not without problems (many stakeholders on today's board
unsuccessfully attempted to move policy-making to closed forums,) it
produced the two principles above. The principles of balanced
representation and an expansive conception of users are founded on due
process. The results of that constitutional convention are binding on all
of today's stakeholders, including the ALSC and the Board of Directors.
Conclusion
==========
The ALSC has recommended
* a reduction of user representation on the Board (from 9 to 6)
* an expansion in industry/expert representation on the board (from 9 to 12)
* a redefinition of the At Large membership that favors commercial
organizations
The ALSC has provided little justification for these proposals.
The IFWP already addressed these issues in 1998. Its principles were:
* Balanced representation of supply industry/experts and users
* Expansive conception of users
The IFWP grounded these principles in due process: an inclusive, open
process whose results were accepted by all parties, including the
government of the United States.
The ALSC recommendations to effectively disenfranchise users, and the
prospect of approval by the Board, must alarm anyone concerned about the
stability of the Internet. The stability of the Internet depends on the
professionalism of the men and women who govern and administer ICANN. That
professionalism must include a willingness to honor commitments, to respect
the rights of other stakeholders, and ultimately to accept the rule of
law. As the NAIS report notes [7], the ICANN board has already re-written
its bylaws nine times since its incorporation -- a practice that European
Commission official Christopher Wilkinson characterized as "extremely
cavalier." [13] The ALSC recommendations risk carrying ICANN further down
this path. This would be a disaster for the Internet. Disenfranchising
users and unilaterally abrogating the commitments made in 1998 opens the
way for unrestrained expansion of ICANN's mission into additional areas of
Internet governance. It removes constraints from capture by the Internet
supply industry and from self-interested actions by the Board. It would
fatally undermine public confidence in ICANN. ICANN's legitimacy would be
grievously compromised.
The ALSC should thoroughly revise its draft report to eliminate conflicts
with the letter and the spirit of the IFWP agreements. Likewise, the ICANN
Board of Directors should reject any recommendations that conflict with the
letter and the spirit of the IFWP agreements. A unwavering commitment to
the rule of law is essential for the stability of the Internet.
Hans Klein
Computer Professionals for Social Responsibility
Georgia Institute of Technology School of Public Policy
Citations
=========
[0] ICANN Meetings in Montevideo: http://www.icann.org/montevideo/index.html
ALSC Outreach Meeting in Montevideo:
http://www.atlargestudy.org/montevideo_mtg.shtml
[1] At Large Study Committee of ICANN, "ALSC Draft Report on ICANN At-Large
Membership," (27 August 2001). (Hitherto referred to as "Draft Report.")
http://www.atlargestudy.org/draft_final.shtml
[2] Draft Report, "Recommended Membership Alternative," approx. p. 12.
[3] Draft Report, "At-Large Membership Representation," approx. p. 17.
[4] Draft Report, "'Individual Domain Name Holder' Defined," approx. p. 14.
[5] Draft Report, "Letter to the ICANN Board and Community," approx. p. 1.
[6] Draft Report, "Executive Summary," approx. p. 5.
[7] NGO and Academic ICANN Study, "ICANN, Legitimacy, and the Public Voice:
Making Global Participation and Representation Work," August 2001,
"Executive Summary," p.
9. http://www.naisproject.org/report/final/execsummaryUSLetter.pdf
[8] Mueller, Milton. 1999. "ICANN and Internet Governance: Sorting Through
the Debris of 'Self-regulation'" Info, Vol. 1, No. 6,
December. http://www.icannwatch.org/archive/muell.pdf
[9] Lessig, Lawrence, "A Bad Turn for Net Governance," The Industry
Standard, 18 September 1998,
http://www.thestandard.com/article/display/0,1151,1718,00.html
[10] Klein, Hans, "On-Line Social Movements and Internet Governance,"
_Peace_Review_, September 2001. Draft available online at:
http://www.atlargestudy.org/kleinpaper.html
[11] Klein, Hans, "Cyber-Federalist No. 10: The Origins of ICANN's At Large
Membership" 27 March 2001,
http://www.cpsr.org/internetdemocracy/cyber-fed/Number_10.html .
[12] Boston Working Group: http://www.cavebear.com/bwg/
[13] Wilkinson, Christopher, comments at ICANN Public Forum, Yokohama,
Japan, 15 July 2000. The full quote is: "I think it is a great mistake to
initiate the debate [about whether or how users should be represented on
the board through Membership At Large Board seats] on the basis of by-law
changes; the Board is increasingly giving the impression of being extremely
cavalier in changes to the
by-laws." http://www.tbtf.com/roving_reporter/icann1.html#11
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CYBER-FEDERALIST is a regularly published series of analyses and
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http://www.prism.gatech.edu/~hk28/
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