[ncdnhc-discuss] NAIS report and Joe Sims

[Donald Simon]

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 www.naisproject.org 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.  




Donald J. Simon
Sonosky, Chambers, Sachse, Endreson & Perry
1250 Eye Street, N.W., Suite 1000
Washington, DC  20005
Telephone:  (202) 682-0240
Facsimile:  (202) 682-0249



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