Elections

[Harold Feld]

Greetings Cheryl:

My name is Harold Feld, I am Senior Vice 
President of the Media Access Project 
(MAP).  While not terribly active these days, I 
have some modest history with ICANN and the NCUC, 
as well as some opinions relevant to the subject 
at hand.  You can find a brief bio of me at the 
MAP website, www.mediaaccess.org.

At 12:04 AM 10/25/2007, Cheryl Preston wrote:
>I include here a statement of my objectives for NCUC and then a link to
>a brief bio.
>
>I have worked on issues involving Internet governance and policy for
>only a few years.  After looking at federal and state involvement in
>Internet law, I began writing a series of papers on the history and
>current position of ICANN, and its potential as an organizing force
>around which a global law of Internet governance could be discussed,
>considered and maintained.

Indeed.  There is considerable room for 
discussion and debate.  The WSIS forum and its 
various continuations is also part of that debate.

>   When I attended my first NCUC meeting last
>Spring in San Juan, I was presented with the "Keep the Net Neutral"
>petition NCUC had drafted and sponsored.  It included a statement
>charging ICANN to do everything in its power to impose an absolute free
>expression value at every level of the DNS system.

Why is this surprising?  The structure of ICANN 
is entirely based on the idea that the 
representation of selected constituencies 
presenting their positions and subsequently 
developing consensus through the ICANN process is 
the model for policy.  As a natural consequence, 
each constituency must start with its "ideal" 
view of policy, followed by discussions in the 
consensus process of how these views should be reconciled.

Further, the overarching principle of ICANN has 
been from its beginning that ICANN is devoted to 
technical coordination.  It has traditionally 
eschewed any role as a "global policeman" of content.

>I admit that I was rather stunned that the NCUC was so deeply involved
>in promoting a particular social, political and legal position regarding
>the role of ICANN.

As a public advocate, I must express surprise at 
your surprise. Membership in ICANN is entirely 
self-selecting.  It is drawn from organizations 
that fit within the definition of an approved 
ICANN constituency that feel sufficient interest 
to expend resources to follow the debate and participate in the process.

It logically follows that the pool, of NCUC 
representatives will be drawn from those who feel 
strongly about their issues.  Being 
non-commercial organizations that are not ISPs 
(who would be in the ISP constituency), 
Registries, or Registrars, it is logical to 
assume that the bulk of members in this 
constituency are drawn from advocacy 
organizations on issues the impinge on ICANN 
(e.g., internationalized TLDs, free speech, 
privacy).  It also logically follows that the 
most ideologically driven will spend the most 
time and dedicate the greatest effort, both to 
recruitment of like-minded participants and to 
the actual work of the constituency.

>   We were able to work a compromise by striking the
>affirmative charge language in the petition, but the petition and the
>later workshop sponsored by NCUC evidenced a clear commitment to this
>absolutist ideological view.

The structure of the NCUC and its rules mean that 
representatives at meetings will not unilaterally 
declare a fundamental change in a consensus 
developed in the constituency, although there is 
constant feedback from participants at meetings with those of us online.

Furthermore, consistent with my statements above, 
one expects the most ideologically driven members to attend meetings.

>After that meeting I did considerable investigation about the history
>of the NCUC and the people who have been involved, as well as the
>history and people involved in the larger sphere of those who advocating
>this position in Internet and other policy debates.  In addition, I
>spoke with my friends and colleagues who have been involved with other
>constituency groups or with long-time players such as VeriSign.

And discovered that, consistent with political 
theory, that only the most interested actors 
stick it out for the long haul and therefore 
exercise a disproportionate influence over the 
direction of the Constituency.  Further 
investigation would reveal the same is true for 
EVERY constituency.  The most active players in 
the Business Constituency, the IP Constituency, 
the Registry and Registrar Constituencies all 
have, as one might expect, long histories with 
ICANN and strong economic or ideological 
motivations that drive their participation.

As one of these long-term cranks, now in 
semi-retirement from ICANN-related matters, I 
will pause to observe that NONE of the other 
Constituencies ever face this as a criticism.  No 
one finds it "surprising" that Verisign and 
Neustar have a lot to do with driving the 
Registry Constituency, or that INTA takes the 
positions it takes with regard to intellectual 
property.  Indeed, this is an expected *feature* 
of the ICANN structure.  And yet, particularly in 
ICANN's early history (God, it has an "early 
history" now!), the legitimacy of the NCUC was 
constantly subject to attack for this very design 
feature.  Yet the NCUC is the constituency most 
open to changes in membership, which creates the 
greatest opportunity for those members and/or 
organizations to shift the nature of the consensus.

I gather this is, in fact, what you are now 
attempting to do.  But if you will forgive a 
cranky old-timer, this can be accomplished 
without attempting to undermine the current 
structure of the constituency or its most active 
participants.  At best, it is poor politics.  At 
worst, it is a rather shabby rhetorical trick.

>My personal and professional opinion with respect to ICANN and the
>Internet, both nationally and globally, is very simplistically stated
>as:
>
>(1) Competing values need to be appropriately balanced in this new
>virtual world, just as we have strived to do in the real world in every
>jurisprudential era;

How is this consistent with the stated purpose of 
ICANN that it remain a mechanism for technical 
coordination while eschewing broader policy issues?

Further, given the current structure of ICANN, 
how would you see civil liberties/privacy/civic 
engagement principles balanced differently within 
the NCUC constituency?  Given the GAC will 
present the consensus of law enforcement and 
other national interests, the Business 
Constituency the view point of businesses, etc., 
etc. and that all these differing viewpoints will 
THEN be brought to consensus, how -- in your 
personal and professional opinion -- will the 
broader interests of civil society and 
non-commercial organizations be adequately represented?

To the extent you may say that the interests of 
non-commercial organizations are broad and extend 
beyond advocacy, I agree.  This is why I proposed 
disagregating the NCUC when ICANN was 
restructuring so that constituencies with 
specific concerns that simply happen to be 
non-commercial (such as universities) would have 
their own representation.  Sadly, this proposal was not taken adopted.

>(2) Even the strongest forms of idealized free speech (i.e. under the
>U.S. First Amendment) are balanced and nuanced by centuries of the best
>legal minds;

Quite so.  As an ardent defender of _Red Lion_ 
and other cases that reflect the "Madisonian" 
view of the First Amendment, I agree that in the 
context of national policy, the question is 
nuanced and complex.  It was indeed, for this 
very reason, that ICANN was supposed to stay 
*out* of such difficult and nuanced areas of 
jurisprudence and focus solely on technical coordination.

>(3) A passionate commitment to the principle of free expression,
>including the right of all people to political and subversive speech,
>does not mean that we must abandon all forms of constraint on the
>Internet;

True.  But, as reflected in debates about WSIS 
and internet governance generally, the question 
is whether ICANN is the proper place to have 
these discussions.  The traditional concern of 
this constituency (in this regard) has been that 
permitting any constituency to leverage the 
management of the Internet's core resources for 
its own purposes, however much these interests 
may appear to serve the public interest, permits 
a handful of mid-level bureaucrats (the GAC), 
selected business representatives, and even well 
meaning cranks like myself to set international 
policy and global enforcement of same in a manner 
completely inconsistent with traditional notions 
of due process, sovereignty, or the public 
interest.  It is also, IMO, a phenomenally bad idea in its own right.

Hence, the emphasis on restricting ICANN to its 
purported purpose and function -- voluntary 
technical coordination.  True, this invariably 
has profound economic and political impacts.  But 
we can at least limit the damage by not embracing 
a broad view of ICANN's authority.

>(4) Having a thoughtful, balanced and realistic view of what few
>extreme forms of speech are more harmful than helpful does not mean that
>next week we will construct the Chinese Wall, imprison dissidents, or
>squelch all religious freedom;

No, that usually takes at least a 
month.  Especially in my neighborhood, because of 
the crackdown on day laborers. :-)

>(5) One issue that deserves study, dialogue and exploration is if we
>can and/or should look for a way to configure the technology,
>traditional and nontraditional forms of regulation, and economic and
>social incentives to give a choice to parents around the world who do
>not want their children educated in sex and human relations by the kind
>of pornography and obscenity now flooding the Internet; and

Ah!  I knew we would get there eventually.

Certainly ICANN may play an important roll in 
such efforts, as a neutral technical coordinator 
ensuring the that internet operates in a stable 
manner.  ICANN itself also provides a useful 
place for discussion of such topics, even where 
ultimate resolution takes place outside ICANN, 
because the matter falls outside ICANN's narrow jurisdiction or function.

In what way do you see a contradiction between 
your point (5) above and the positions taken by the Constituency?

>(6) It may be that ICANN might have an appropriate role in supporting
>any kind of eventual resolution to this problem we might someday devise
>though the good faith dialogue of the global community.

Indeed.  See my response above. Although, as I 
think wisely demonstrated by the WSIS, what are 
needed are suitable global fora for discussion of 
these important matters that do not intrude on 
ICANN's extremely limited role.  Indeed, limiting 
ICANN to its relevant role of technical 
coordination to ensure stability of the Internet 
serves these ends, as it prevents any set of 
interests, even those inimical to your desired 
policy goals, from hijacking ICANN to its own agenda.

>Yes, in short, although I agree with the extreme importance of free
>expression on the Internet and elsewhere, I do not think that now, at
>this early date in the development of the technology, law and culture of
>this new information society, we should seek to bind ICANN to a
>value/politics laden (and revolutionary and untried) legal position of
>pushing for unfettered free expression at the expense of all other
>values.

ICANN was formed ten years ago.  It has a set of 
foundational documents that lay out its 
appropriate jurisdiction.  Including within this 
charge was an express limitation on ICANN's 
functions.  To the extent ICANN has and maintains 
legitimacy, it flows from its adherence to these 
documents and ability of participants 9and the 
global community generally) to trust that these limitations will be maintained.

>And, yes, I do not believe that we ought to excuse entirely ICANN from
>the trust and stewardship it has been given over this global resource
>created with the funds of the US public standing for themselves and for
>all of world’s humanity of this generation and the future.

That, however, requires a fundamental reform of 
ICANN's underlying documents.  This process can 
occur as part of the renegotiation of ICANN's MoU 
with NTIA, or, I suppose be initiated by any 
participant.  But the place for such 
renegotiation is hardly the NCUC.  The NCUC is 
constrained to participate within the ICANN 
structure in the manner detailed by ICANN's 
bylaws and this Constituency's bylaws.

Because God knows that if we had the power to 
negotiate directly with NTIA over the scope of 
the MoU, I would have done it a long time ago.

>With that disclosure on the table, my view of NCUC is:
>
>(1) I am confident that the handful of people who have almost
>exclusively run NCUC from the beginning are honest, smart, skilled and
>devoted.  But, I have researched to the extent I can the backgrounds and
>views of these actors and the organizations with whom they affiliate.
>These are fine organizations and I do not doubt their good faith or the
>quality of their intellectual work.  However, they are uniformly of a
>particular social/political viewpoint on critical issues concerning the
>Internet.  This viewpoint is not representative of the full range of
>noncommercial Internet users, nor of the variety of positions and causes
>promoted by the many nonprofit organizations focused specifically on the
>Internet in the US - not to mention such users and organizations in the
>wide range of countries around the globe.

Quite true.  As referenced above, it is therefore 
important for organizations that feel their views 
are inadequately represented to either recruit 
new members with whom they agree (a relatively 
simple task and, given the particular focus of 
your discussion above and the low threshold for 
joining), persuade other members of the 
Constituency to accept your views (which I take 
this missive to be), or petition ICANN to create a new vehicle for your input.

This last is quite unlikely.  The first is 
actually easiest, but is likely to generate 
legitimacy problems when several hundred U.S. 
non-commercial organizations suddenly sign up and 
begin dictating policy.  There will also be some 
delay because the new members will miss the 
current election cycle.  But given where you want 
to go, I think this is your best bet.  And Lord 
knows the constituency can use the money.

>(2)  I believe that NCUC should not be an advocacy group for same the
>reasons that the IGF has determined that their dynamic coalitions not be
>advocacy groups.  Moreover, NCUC absolutely should not be used as a tool
>for the advocacy of a single, highly contested position just because the
>actors who became involved in the beginning (before most of the world
>even knew there was such a thing as ICANN or NCUC) share a particular
>view.  Nor should it be an advocacy group for my position or any other.
>I have heard, but conducted no objective study, the opinion that the
>statements coming out of the NCUC, unlike other groups, are routinely
>dismissed as a refrain of a single, inflexible, and particularized
>approach to ICANN and the Internet, which approach doesn't well
>accommodate the dynamic dialogue envisioned by the multi-stakeholder
>principle.

Of course, as observed above, NCUC is designed to 
provide a perspective as part of the consensus 
process.  While I gather that you find the strong 
expression of views here inconsistent with that 
approach, I would suggest that it is unrealistic.

OTOH, if you can get the IP constituency and the 
BC to change the way they present their positions 
as part of the overall consensus process, I have 
no doubt we would also alter our approach.  But 
the GNSO has a process for developing 
consensus.  What can we do but play our appointed part?

>(3)  NCUC should take seriously the trust of representing the interests
>of noncommercial users of the Internet and make some effort to determine
>who falls in this category of users and what these users want in terms
>of long-term, global Internet policy.  NCUC should then study, consider
>and discuss these interests and make representative, respectful and fair
>suggestions to the GSNO for the betterment of the Internet.  This seems
>to be the charge given by ICANN.

An excellent suggestion!  What resources will 
your institution donate to this goal?  Cash is 
always nice, but payments in kind have also been 
donated -- largely by a handful of organizations 
promoting what you term the "absolutist view."

>(4) In any event and notwithstanding all three of the above, the
>leadership of any group entrusted to represent a large and diverse
>constituency and make, on their behalf, recommendations should be
>routinely renewed and refreshed by new perspectives and approaches.  I
>fully understand that involvement in ICANN is very expensive and almost
>prohibitive for those whose employers or clients do not have the
>economic stake or the resources to support the individuals doing the
>work.  I agree that NCUC needs to make a case to the ICANN board why, by
>definition, the "non-commercial" users cannot afford to participate in
>the same way that the commercial constituencies can.  Thus, the
>noncommercial interest group exists of record, but it cannot function
>effectively without support.  The result of the current system is that
>NCUC speaks only for the few such organization that, for what ever
>reason, have established relationships with businesses and individuals
>with loads of disposable cash, with sufficient economic incentive to
>justify supporting that particular organization, with governments, and
>with the few universities who generously fund advocacy work.  While I
>understand that funds are now given by ICANN to support NCUC work, I
>fully understand that the ICANN support is insufficient and those
>involved must be financially able to absorb the travel and time costs.

O.K., I kept it together until now.  Really, I tried.

Professor Preston, please review the archives of 
the Constituency.  If you do, you will discover 
that simply *finding* people willing to serve in 
critical positions has been an extraordinarily 
difficult task.  It's one of the reasons why I 
finally stopped volunteering and walked away.

There appears to be a persistent belief (or, if 
one is in a grumpy mood, a persistent slur) that 
the NCUC has been hijacked by some power-mad 
clique that leverages this to advance their own 
agenda, and that the only rational explanation 
(despite the evidence in the archives as well as 
the evidence of reason) for why the same people 
end up stuck doing the same thing for so long is 
because the NCUC just isn't able to dislodge the Civil Society Junta.

>I admit readily that I do not have the hands-on experience or long-term
>background that Robert has.
>   I don't suppose I am the best qualified or
>most able person in the North American region to do this work.  I would
>joyously vote for anyone else who wanted to do this and who could (1)
>begin a practice of reaching out to other viewpoints; and (2) create a
>pattern where new people can be given the opportunities and thus the
>experience necessary for leadership - with the duty to invite, in turn,
>new people and perspectives to work through the system.

Now now, no false modesty.  I am persuaded by 
your comments here that there is no other person 
who can fulfill this vital role like you 
can.  Really.  Because only you can liberate us 
from the evil domination of 
He-Who-Must-Not-Be-Named-But-Who-Goes-By-The-Initials-MM.

>My basic biographical information is available at:
>http://www.law.byu.edu/Law_School/Faculty_Profile?102
>
>Please ask if you have questions.  Thank you for taking the time to
>consider these recommendations and my candidacy.

Harold Feld