[ncdnhc-discuss] Board retreats and fully transparent process for ICANN

[Kent Crispin]

On Tue, May 28, 2002 at 01:01:58PM -0400, James Love wrote:
> ----- Original Message -----
> From: "Kent Crispin" <kent at songbird.com>
> : I realize that this fond dream drives a lot of what you (and many
> : others) do, but it is completely without foundation.  ICANN is NOT
> : setting itself up to be a government, and even if it wanted to, it
> : couldn't.
> 
>    Kent, maybe you haven't read this ICANN "reform" working paper yet.
> Jamie
> 
> http://www.icann.org/committees/evol-reform/working-paper-process-07may02.ht
> m

Yes, I have.  It is diametrically opposed to the position you claim.  I
have underlined some key phrases below that you seem to have missed, and
interspersed a couple of explanatory comments:

> Of course, to those who believe that ICANN, having no governmental mandate,
> should never act in the absence of consensus, this lack of ability to act is
> a feature, not a bug. If there is no consensus, they would argue, the
> "market" should be allowed to function freely without ICANN interference.
> Only in this way, they argue, will the tendency toward over-regulation be
> avoided. In addition, they argue that it is simply inappropriate for a
> non-governmental body to, in effect, claim "regulatory" jurisdiction over a
> private enterprise on the basis of the views of third parties, and over the
> opposition of that enterprise. Absent some form of governmental action, they
> argue, or the consent of the affected party or parties, there is no basis
> for ICANN - by definition a private, non-governmental body - to force
> compliance with anything, no matter how desirable it may be from the
> perspective of others in the ICANN community.
> 
> This argument has merit. No rational person wants to see ICANN become the
                           ************************************************
> "regulator" of the Internet.
  ****************************

[Note that the paper states this as a fundamental principle that NO
RATIONAL PERSON COULD DISAGREE WITH.  I repeat: nobody, and I mean
NOBODY, at ICANN has an aspiration to turn ICANN into a governmental of
the Internet; NOBODY at ICANN wants to be the "regulator of the
Internet".]

>  On the other hand, this begs the hard question:
> if consensus is required for any action, doesn't that create perverse
> incentives for those with narrow commercial interests to veto any consensus
> that is not immediately in their interest? We believe that it can be
> persuasively argued that a properly structured and functioning ICANN is the
> ideal mechanism for resolving such debates, even if (and maybe especially
> if) the parties with direct commercial interests cannot come to a consensus
> view. Assuming it is properly structured and functioning (and those are
> obviously critical assumptions), ICANN is both a desirable and potentially
> an effective vehicle for global resolution of issues relating to the DNS
> where today there is no global alternative.
> 
> The fact is that the Internet, and its component part the Domain Name
> System, is a global resource. It is not amenable to multiple national
> regulatory approaches - at least if the goal is to allow the Internet to
> continue to provide ever more opportunities to ever more people at a
> relatively low cost. And in any event national regulation, given the nature
> of the resource, is likely to be ineffective. 

> Thus, the options are some
  ***************************
> form of global governmental body, or a global private-sector body. There do
*****************************************************************************
> not appear to be any other workable alternatives.
***************************************************

[ICANN, that is, is the PRIVATE SECTOR ALTERNATIVE, proposed as
distinctly opposed to the "global governmental body".]

> A reasonable argument can be made that, given the nature of the Internet and
> the DNS - both their global character and the critical role of
> interoperability and stability to their continuing function - a global,
                                                                ********
> private-sector organization like ICANN is the ideal vehicle for balancing
 ***************************************

["private-sector", please note, means that it isn't part of government. 
It also means that it doesn't have access to governmental coercive
powers.  That means that it's only means of enforcement is voluntary
contracts (ICANN can't force anyone to enter into a contract with it). 
Generally, oversight of private-sector entities that deal through
contracts comes from governments, through anti-trust laws and general
contract law.]

> the legitimate private interests of individuals, groups, and entities, on
> the one hand, and the enormous public interest in the continued effective
> operation of the Internet on the other. We understand and accept that this
> could only be the case if we assume (1) the proper structure and operation
> of ICANN, including critically the proper limitation of the scope of its
> activities to those that are reasonably necessary to maintain, promote, or
> improve the continued effective operation (stability, interoperability, and
> utility) of the DNS, (2) the ability of all interested parties to discuss
> and debate in an open and transparent way, (3) the ability to have ICANN's
> decisions produced through another open and transparent process, and (4)
> that such a resolution would be effective (i.e. is enforceable) throughout
> the global resource that is the Internet. But if we assume those conditions,
> such an ICANN, it seems to us, would have great value to many (if not most)
> of the members of the global Internet community, even if the resolution of
> any particular issue may not be all to their liking.

In any case, ICANN is not a governmental body, and it has no, I repeat
yet again, NO, aspirations to become one.  Moreover, as has been pointed
out, ICANN is in fact far more transparent than many governmental bodies
already. 

Kent

-- 
Kent Crispin                               "Be good, and you will be
kent at songbird.com                          lonesome."  -- Mark Twain