Re: [ALSC-Forum] Evaluation of NAIS and ALSC Reports

[Kent Crispin]

On Fri, Sep 07, 2001 at 09:50:54AM -0400, L Gallegos wrote:
> Many of us use text only cients.

Here's a text only version.  Of course, you could always read it on the web 
site...


PUBLIC PARTICIPATION IN ICANN - THE AT LARGE DEBATE

Joe Sims*

* What follows is a personal evaluation of these documents. It does not
necessarily represent the views of any member of the ICANN Board or staff,
and is obviously a single perspective on a complex set of issues. I hope it
will contribute to the ongoing dialog.

INTRODUCTION

One of the important remaining issues relating to ICANN's organization is
how to achieve an appropriate level of public participation in ICANN without
impairing its ability to effectively carry out its principal mission - to
preserve the operational stability of the Domain Name System. While there is
little disagreement on the concept of public participation, the type and
approach have been vigorously debated since before ICANN's creation. In
2000, ICANN failed to find a consensus position after considerable effort,
and fell back to a temporary compromise - the direct election of an ICANN
Board member from each of five geographic regions, and the establishment of
a blue ribbon At Large Study Committee (ALSC), headed by the former Prime
Minister of Sweden Carl Bildt, to seek a final resolution that could achieve
consensus support throughout the ICANN community.

The ALSC has now released what it describes as a draft final report. It will
take further input during ICANN's meeting in Montevideo (now underway) and
will produce a final report to the ICANN Board prior to the 2001 Annual
Meeting scheduled for Los Angeles in November of this year.

As part of this debate, the Markle Foundation, an organization interested in
global communications policy, funded an effort by a group of public interest
groups and academics to examine the 2000 elections, and to make
recommendations to the ALSC and the ICANN Board on the subject. This group
has now produced the NGO and Academic ICANN Study (NAIS), a lengthy report
containing both evaluations by region of last year's elections and the
authors' views on the proper approach for ICANN moving forward.

Concurrently, the Markle Foundation commissioned a survey of American public
attitudes on "governing the Internet." The results of that survey, described
by Markle's President Zoe Baird as intended to examine "who should be
accountable for governing the Internet," were also recently released. Given
Markle's role in funding both the 2000 election and the NAIS study, it seems
useful to note generally here, as background and context, the results of
this survey as provided by Markle in a report entitled "Toward a Framework
for Internet Accountability."

SUMMARY

The Markle survey asked those interviewed or surveyed how the Internet
should be governed With apologies for necessarily over-simplifying, the
report concludes (after 84 pages) that the answer is not clear: The Internet
requires some new paradigm of governance, the report says, but it does not
try to identify it. The report does conclude (not surprisingly) that,
whatever that paradigm turns out to be, the public wants to be involved in
some meaningful way.

The NAIS report turns out to be two essentially separate documents: an
evaluation by region of the 2000 elections and a set of recommendations as
to the future approach to public participation that seem to be completely
disconnected from those evaluations. The research findings could be fairly
summarized as follows: Most potential At Large members have never heard of
ICANN, and have no interest at all in it; this was even true of most of
those who actually registered as At Large members for the 2000 elections,
since many if not most of them did so for some reason other than genuine
interest in ICANN. The 2000 election had many flaws, including particularly
the postal authentication system, language barriers, and unfamiliarity in
some regions with the voting process. Many people would prefer different,
smaller geographic regions to recognize cultural and other differences that
are subsumed in ICANN's current five regions. Only in North America were
there no major complaints, but the universe of people in North America
interested in ICANN is trivial. The biggest driver of registrations was
national pride, and this is likely to be an even bigger force in future
elections, now that people see what can be done. It is not at all clear that
even a massive outreach effort would produce a meaningful increase in the
level of real interest in ICANN and its activities.

The NAIS recommendations seem to completely ignore these research results.
They call for regional and global elections of half the ICANN Board, with
the electorate made up of all "interested" humans, and suggest using the
same approaches that the evaluations concluded were seriously flawed. In
addition, the NAIS authors recommend a massive outreach and education
program apparently designed to convince people that they should be
interested in ICANN. While conceding that their recommendations do not enjoy
consensus support, the NAIS study nevertheless asserts that they represent
the only way for ICANN to gain what NAIS calls "legitimacy," although
exactly what NAIS intends that to mean is not clear. The NAIS study also
recommends the imposition of a mandatory tax on all domain name
registrations to pay for what will be an extremely expensive effort to
interest people that are not now interested in something that they probably
should not be interested in, and then to have that artificially created
electorate select half the directors of an organization whose primary
responsibility is maintaining the stability of the DNS. And finally, the
NAIS authors recommend that ICANN take a variety of other steps they see
necessary for "accountability" and "legitimacy", including adoption of the
United Nations Charter on Human Rights and the creation of an independent
global judiciary. This is a wish list of what are clearly not mainstream
positions; it is not a credible set of recommendations deserving of serious
consideration.

The ALSC draft report shares many of the underlying premises of the NAIS
report - the importance of appropriate public participation, the value of an
organized and informed At Large constituency (they suggest the creation of
an At Large Supporting Organization, while NAIS recommends the creation of
an At Large Membership), and that the direct election of a portion of the
ICANN Board is the preferred vehicle for the expression of public
participation in ICANN. It also agrees with the NAIS study that there is
very little interest among even those knowledgable about ICANN in the
structure and performance of an At Large participation, and that there is
certainly no consensus on a solution. Where ALSC parts company with NAIS is
that it has attempted to craft a solution that has "the best chance of
consensus support," - in other words, instead of demanding that the world
accept a particular choice, the ALSC has tried to find a solution that most
of the ICANN world might find acceptable. It recommends that the At Large
electorate be made up of those individual domain name holders who choose to
pay a small additional fee in order to participate in an At Large Supporting
Organization, which would elect one-third of the ICANN Board. The ALSC
believes that this approach will (1) be self-funding, thus eliminating the
need for taxing those domain name holders who choose not to participate; (2)
will maximize the chances that the At Large electorate will be truly
interested in ICANN (as demonstrated by a willingness to pay a fee) and
knowledgable enough to have obtained a domain name; and (3) has at least the
potential for generating consensus support from the ICANN stakeholders. It
recognizes that its proposals would leave some people out, and that there
are still considerable logistical challenges to be faced even with the
approach it recommends, but it concludes that this approach is "defensible,
executable, effective and most likely to gain consensus." While there are a
number of serious potential flaws in the ALSC approach, it is a serious and
credible proposal by an independent body that appears to have taken
seriously its instructions to do a "clean sheet" study and to try to produce
an approach that could gain consensus.

These and other approaches will continue to be debated until the ICANN Board
meeting in November, at which time the Board is scheduled to receive and act
on the final ALSC report.

THE MARKLE SURVEY

The Markle survey report contains a large amount of interesting information,
but only part of it is directly related to this issue. It was obviously
intended to justify and explain a need for some new governance paradigm for
the Internet, but equally obviously not intended to suggest the answer to
the question. According to the Markle survey, the public wants to be
involved in some meaningful way in Internet governance. Unfortunately, the
survey results also demonstrate that a majority of those surveyed believe
that the general public does not know enough to make a meaningful
contribution to that governance. (page 45) This was the majority view not
only of the general public surveyed, but also of the "Internet experts"
surveyed. With respect to the latter, the report noted an interesting
consequence of the desire for public involvement and the perceived lack of
ability of the public in this area: "One result of this [view that the
public does not know enough to be involved in setting rules], for these
experts, is that they often say that they tend to discount the public's
opinions as they work on developing rules for the Internet, and instead rely
on their own judgment about what is good for the public." (p.45-6)

The most interesting part of the Markle survey for these purposes was the
fact that not a single person in any of the diverse focus groups surveyed
had ever heard of ICANN, and only about half of the "Internet experts" could
identify ICANN. This broad and statistical affirmation of what to many seems
intuitively obvious -- that the apparent "public" interest in ICANN is
actually only the intense (and loudly expressed) interest of several dozen
academics and policy activists -- is also consistent with the NAIS study
results, as discussed below. It also sets the stage for what is a key
question in the debate over public participation in ICANN: how much of the
debate today truly reflects the public interest, and how much reflects the
personal and institutional agendas of the proponents, who like the "expert"
quoted in the Markle report "know" what the public would want if they only
knew enough about the subject.

THE NAIS REPORT

The NAIS report, also primarily funded by Markle, seems to this reader to be
a striking illustration of the Markle survey finding that, as a "director of
a non-profit that focuses on Internet policy says, 'I don't respect
necessarily what the public wants. So I would make the decisions more on
what I think the public needs.'" (p.46) This seems the only reasonable
interpretation of the fact that the NAIS report's conclusions are clearly
not drawn from, and indeed bear little resemblance to, the factual
evaluations of the 2000 election reported in the body of the study. It is
apparent from both the discussion in the report and its conclusions that the
NAIS recommendations are based more on pre-existing policy preferences than
on factual analysis; indeed, the "research" portion of the report seems
largely a throw-in, included to give the recommendations some additional
weight. This certainly does not disqualify the recommendations from
consideration; they are entitled to whatever weight is justified from their
inherent persuasiveness. But it does suggest that the policy recommendations
contained in the NAIS report are and should be viewed as simply those of its
authors, not the result of some scientific study or survey.

Again with apologies for over-simplifying (and with the promise of providing
examples below), the NAIS report can be summarized as more a statement of
desirable objectives (at least from the authors' perspectives) than a
proposed solution to a problem. The report recognizes that "there is far
from a broad consensus about ICANN's proper role, and there is even greater
variation of opinion about the best way that public representation can keep
ICANN on the right course (or whether there is any role for public
representation at all)." (p.90) But the NAIS authors then assert that the
only possible solution to the problem is one that has already been
demonstrated to lack consensus support. In a consensus development
organization, where it will take a 2/3 vote of the existing Board to adopt
any solution, this seems an odd way to advance your objectives.

The NAIS report documents, in its regional analyses of the previous At Large
election, significant executional problems. It then also ignores those
problems in asserting that a global election among all who are "interested"
in ICANN (but presumably only after significant outreach, because the NAIS
research work documents, consistent with both the Markle and ALSC
conclusions, how few people actually are "interested" in ICANN,) is the only
way for ICANN) to gain "legitimacy," and thus presumably to do its job (more
on this later).

The report recognizes that global elections would be very expensive
(although it probably seriously underestimates the cost). It then avoids
dealing with that problem by asserting that (unlike all the other subgroups
of ICANN, which are self-funding) it is the responsibility of those
individuals and businesses who pay for domain names to shoulder this
expense, whether they want to or not. It is notable that the report rejects
the notion that domain name holders should have the ability to elect any of
the At Large Directors, and seems not to appreciate the fact that an
additional fee imposed on all domain name holders would likely be considered
just the kind of "Internet tax" that so many successfully advocated against
earlier in ICANN's existence.

The NAIS report clearly began with an assumed premise -- all interested
individuals should have a voice in ICANN. It then proceeds to the conclusion
that the only way this could appropriately happen is to hold direct
elections of all interested humans on the globe for half the seats on the
ICANN Board. How it gets from "a voice" to "elect half the Board, no matter
how much it costs or how hard it is to do" is never clearly explained. This
analysis attempts to pull together the logical and rhetorical threads, and
figure out how NAIS manages to weave them into this particularly
unattractive piece of fabric.

1. The Purpose of Public Participation in ICANN. The NAIS report contains
several somewhat inconsistent explanations for why public participation in
ICANN is important [my comments in brackets]:

-- "The mission, character and history of ICANN requires global public
participation and representation for its long-term legitimacy and
stability." (p.3) [This seems uncontroversial].

-- "[ICANN's] potential authority is largely unbounded. . . . ICANN is
likely to face increasing pressure from those seeking ways to control a
range of behavior online. The broader this pressure, the more sweeping the
potential impact, and the greater the need for public participation and
representation." (p.4) [This seems circular; if ICANN "requires" public
participation today with its limited responsibilities, it certainly would if
it had broader responsibilities. But the NAIS report authors appear not to
perceive that the reverse is probably also true -- if ICANN actually becomes
a global democracy, as the NAIS report finds essential, there will be little
excuse for it not taking on additional policy responsibilities. Today, ICANN
can truly say it is not the government of the Internet; if the NAIS
recommendations were adopted, this would be a much more difficult argument.]

-- "Public participation is . . . a safeguard against domination by
governmental or commercial interests on a national level, and as a source of
input as [sic] for global interests as ICANN's functions transition away
from US control." (p.4) [This is the first of several times in the NAIS
report where the authors display a significant anti-government bias -- not
just with respect to ICANN governance, but also the notion that global
public participation in ICANN is somehow a protection against actions by the
governments elected by those same public participants. This concept
reappears regularly throughout the NAIS report -- that governments are not
truly representative of their citizens, and that direct global elections are
a vehicle around that problem. Whatever the merit of that notion, it hardly
seems an appropriate justification for any particular level or kind of
public participation in ICANN. And the notion that public participation in
ICANN provides some real protection from perceived governmental abuses seems
naive. In addition, the NAIS report is harshly critical of ICANN's
Government Advisory Committee, saying it has "poor mechanisms for
transparency, and for public input and participation because it operates
largely in a closed and inaccessible fashion." (p. 32) Later, it asserts
that "The GAC speaks on behalf of governments as institutions, not on behalf
of the public users of the Internet as individuals," and that it acts in "an
unusually secretive fashion," which makes it "an inappropriate channel for
the public voice within ICANN." (p.105) This odd view of the world, as if
governments were disconnected from the populations they represent, seems to
underlie much of the approach of the NAIS authors, who apparently give no
weight at all to the notion of representativeness if it is not embodied in
direct public participation. The logic behind this is, at a minimum, not
obvious.]

-- "ICANN will gain requisite legitimacy from the creation of a membership
that allows for substantial participation and representation by interested
members of the public . . . . Since ICANN activities have the potential to
impact all Internet users and in fact the public in general . . . .
membership should be open to all who express interest . . . " (p.8) [Here
the rationale for broad "membership" seems to be the potential of ICANN, not
its current reality. Indeed, the NAIS authors apparently think that "ICANN
will become more, not less, relevant and visible to the public" in the
future. Since this is the diametric opposite of the stated goals of
virtually every other ICANN stakeholder (and the management of ICANN), who
have consistently resisted adding the kind of functions and authority that
would produce this result, it seems the NAIS authors have a very different
ICANN in mind than the rest of those involved in the ICANN process. In
addition, this notion of "legitimacy" appears frequently in the NAIS report,
but it is never clear exactly what it means. At one point, the report states
the obvious -- that if businesses and governments choose not to continue to
look to the ICANN root as the authoritative root, ICANN will lose its reason
for existence. (p.21) But the NAIS report never seems to connect this
practical point with its calls for broad global elections. Perhaps the NAIS
authors assume that, without such elections, governments and businesses
would be more likely to look elsewhere than ICANN for coordination of names
and numbers, but they never so state, and the notion seems unlikely. There
appears to be little enthusiasm for broad global elections by all
"interested" humans among the governments most active in ICANN, and
absolutely no support for the notion from businesses. "Legitimacy" in the
NAIS context, as best can be understood from its report, appears to mean in
the eyes of those very small number of humans who have ever heard of ICANN,
and especially those who have been generally critical of t
he amount and methods of public participation in ICANN to date (which would
include at least some of the NAIS authors). According to NAIS, this
"legitimacy" can only be garnered by reducing the level of ignorance about
ICANN out in the world, and encouraging large numbers of people who
currently don't even know that ICANN exists to participate and vote for
directors on the off chance that, at some point in the future, ICANN might
do something that they might want to have a say in.]

-- "The central part of the [criticism of ICANN] is that ICANN's
organizational structures and activities do not comport with the ethos of
good and democratic governance." (p.15) [This cramped perspective of the
source of all ICANN's criticism illustrates how the NAIS authors manage to
come to some of their odd recommendations. In fact, "democratic governance"
has never been a condition precedent to a viable and successful ICANN, which
as a practical matter depends on voluntary acceptance by those with whom it
contracts and interacts. That acceptance is itself premised on ICANN's
success in providing an effective mechanism for consensus policy development
that contributes to the maintenance of the stable operation of the DNS. It
seems highly unlikely that the root server operators, the address
registries, the name registries, the ISPs or the registrars of the world
perceive "democratic governance" of ICANN as the critical characteristic
upon which its success rests.]

-- "The need for user participation and representation to legitimize
Internet governance -- and consequently ICANN itself --is the proper basis
of all debates with regard to the At Large Membership." (p.18) [This is one
of the places where the Markle survey and the Markle-funded NAIS study show
their common roots. The Markle survey report obviously sees ICANN as an
entity engaged in Internet governance (see p.45). As this quote reveal, so
does the NAIS report, and this perception appears to drive much of its
policy focus. The NAIS report concludes that ICANN is important, can affect
people directly or indirectly, and thus "public participation in ICANN is .
. . a prerequisite to ensure that the 'public interest' is taken into
account when implementing its mission." (p.20) NAIS does not explain why
direct public election of the managers of this particular important resource
is so critical, when the managers of perhaps even more important resources -
national military forces, electricity and water systems, the telephone
system, etc -- are almost never directly selected by the public they serve.]

-- "Without a broad, participatory and representative At Large Membership,
ICANN will not gain or hold legitimacy, and its long-term survival will be
threatened." (p.22) [Of course, these words have imbedded in them a number
of policy judgments that might not be universally shared. Since the most
important value that ICANN serves is stability, and since there appears to
be significant concern from many parts of the ICANN community about the
potential instability effects flowing from direct elections by a global
electorate almost totally ignorant of what ICANN does, this assertion seems
more a proposition than an axiom.]

There is little debate about the value of some form of public participation
in ICANN. What ICANN does will have effects on many Internet users, albeit
mostly small and highly indirect effects. More generally, the Internet is
(or should be considered) a global public resource; as such, all Internet
stakeholders, including the users, should have some way to participate in
and influence ICANN. But it is not intuitively obvious that "the public" in
this context must be defined as "anyone that can be persuaded that
participating in ICANN would be interesting," which is essentially the NAIS
recommendation.

It is not clear how the NAIS authors can so confidently assert that
"[i]nterested ICANN stakeholders include many Internet users who are not
necessarily domain name holders" (p.8) when NAIS's own research shows that
there are very few people in the world that have any interest in ICANN at
all, whether they hold a domain name or not. Given that the vast majority of
people in the world don't even know ICANN exists, and that to change that
fact would require the expenditure of many millions of dollars that, under
NAIS's plan, would be extracted from current and future domain name holders
without regard to whether those individuals (or big businesses, or
individual proprietorships, or small businesses) wanted to fund this cost,
wanted to participate in ICANN or even thought that an At Large membership
was a good idea, the case for inventing an "interested" electorate has, at a
minimum, not been made.

"Public participation" in ICANN, if that is truly the goal, can certainly be
accomplished in many less expensive and complex ways, and with much less
risk to ICANN's basic mission of protecting the continued stability of the
DNS, than the approach suggested by NAIS.

2. The Relationship Between Public Participation and Direct Elections. The
portion of the NAIS report devoted to an analysis by regions of the previous
ICANN election catalogues a large number of problems, differing somewhat by
region. The research presented in the report concludes that:

In Africa, there are a relatively small number of people with access to the
Internet; most of those had never heard of and did not care about ICANN;
many could not understand the voting process; and the frequent failure of
the postal system made it difficult for many to authenticate their
registration. The researchers recommended significant outreach to inform
potential members about ICANN, a need to allow much more time for paper mail
to reach its intended destination if that process was used again, a change
in Web-based registration and voting, since few have Internet connectivity,
and consideration of an email voting system notwithstanding its potential
for fraud.

In Asia-Pacific, there was also little knowledge or interest in ICANN until
some in Japan began a serious effort to protect what they saw as the
"Japanese" seat on the Board; this caused reactive efforts in China and
elsewhere; and nationalistic competition became the driving force for
registrations, not real interest in ICANN or its work. The researchers
recommended a new regional structure to account for heterogeneous linguistic
and cultural backgrounds, significant outreach efforts to overcome language
barriers and ignorance about ICANN, and the creation where they do not exist
of forums for grass roots activism.

In Europe, registrations were driven heavily by where the popular press
became active, but the low voting turnout was attributed to unfamiliarity
with PIN numbers, or confusion, or summer vacations. [The researchers
apparently did not consider apathy, which seems a possible explanation since
registrations were not primarily the result of serious interest in the work
of ICANN but more the product of considerable confusion about what the role
of ICANN was in Internet governance.] The researchers called for more
outreach, some way of taking the different cultures of Europe into account
and not requiring a single voice to represent the whole of Europe, and
greater support for more languages.

In Latin America, again the researchers reported that the number of people
"concerned with ICANN-related issues is quite small." In addition,
familiarity with elections is relatively low in some Latin American
countries. The researchers also noted that most people who registered "did
so more from the recommendation of others, than from any particular personal
motivation or commitment to ICANN." The researchers noted problems with the
postal mail service: "In Latin America, few would have faith in any election
system where the right to vote depends on postal services or the
capabilities of failure-prone servers." And to the researchers this
suggested a broader point: "can we find meaningfully representative systems
when we are working with electoral universesof undefined character and
scope?" Only about half the people interviewed supported contined direct
elections; the remainder proposed some kind of indirect mechanism for
ensuring public participation. Like in Europe,the researchers recommended
rethinking the geographic regions, since Latin America contains several
different cultural and geographic communities.

In North America, the most connected region on Earth, 3449 people voted in
the At Large election, out of a potential electorate of at least 100
million. Here too, only a very small fraction of the population has ever
heard of ICANN, and among those who have, "there is no consensus about the
true and proper nature of ICANN's mission. . . . [E]ven among those who
share similar views of ICANN's mission, there are differences of opinion
about the role of public representation within that framework." Many of
those interviewed "expressed skepticism about whether [the low turnout]
could be substantially increased without a far more concerted and widespread
public education campaign." This despite the fact that there were multiple
online resources available, a widely publicized public forum for all
candidates, and "a proliferation of voter education and advocacy resources
online, highly accessible to interested members of the North American
electorate." The researchers concluded that the "technical (and to a certain
extent, arcane) nature of ICANN's mission, combined with a relatively low
level of sophistication among North American Internet users regarding
ICANN's policy issues, seems to make substantially larger electorates
unlikely without dramatically greater public education, and perhaps an
altered vision of ICANN itself." [One wonders what this "altered vision"
would look like?] The researchers also concluded that there was a "lack of
consensus about the purpose of the At-Large Membership -- an important
observation about this election as a whole, and a common refrain heard from
participants on every side of this issue."

These findings could be fairly summarized as follows: Most potential At
Large members have never heard of ICANN, and have no interest at all in it;
this was even true of most of those who actually registered as At Large
members for the 2000 elections, since many if not most of them did so for
some reason other than genuine interest in ICANN. The election had many
flaws, including particularly the postal authentication system, language
barriers, and unfamiliarity in some regions with the voting process. Many
people would like some different, smaller geographic regions to recognize
cultural and other differences. Only in North America were there no major
complaints, but the universe of interested people in North America is
trivial. The biggest driver of registrations was national pride, and this is
likely to be an even bigger force in future elections, now that people see
what can be done. It is not at all clear that even a massive outreach effort
would produce a meaningful increase in the level of real interest in ICANN
and its activities.

One might have expected from these findings a very healthly skepticism about
repeating the past, and have hoped for some creative alternative
suggestions. But instead the NAIS authors offered the following
recommendations:

-- Because almost no one has heard of ICANN, and even those who have are not
interested in participating in it, those who purchase domain names should be
taxed for a massive outreach and voter education campaign to explain to the
public why they should care, and why they should want to participate in
ICANN;

-- Notwithstanding that the past election experience would easily convince
an objective observer that a repeat was likely to be a horribly expensive
failure, ICANN should undertake an even larger effort with essentially the
same tools that, by NAIS's own evaluations, failed last time;

-- Despite complaints in several geographic regions that they were too big
for appropriate representation, we should use the same regions because they
are convenient and easy [these attributes do not appear to be positive with
respect to other options on other issues]; and

-- Half of the Board of ICANN must be elected through this flawed process,
because that is the only way "to provide the public voice with meaningful
representation," even though the portion of the "public" that has any
interest in ICANN is minuscule.

The only logical explanation for the dichotomy between NAIS's research and
its recommendations is that the recommendations were preordained and not
affected by the research. Given the funding source, perhaps this is
understandable; it is clear that Markle has a particular vision of public
participation on the Internet, and is prepared to spend considerable of its
funds to advance that vision. In any event, this disconnect between the
research and the recommendations means that the recommendations have to
stand on their own merit, and thus we turn to the specifics of those
recommendations now.

3. The Basic Recommendations of the NAIS Report. The NAIS report concludes
with some very specific conceptual recommendations about how to produce
public participation in ICANN. It makes no pretense that these
recommendations reflect any kind of consensus among ICANN stakeholders; in
fact, the report explicitly concedes that there is no consensus, but then
goes on to assert that the only "appropriate" way to generate public
participation is through (1) global elections (2) by all "interested"
persons (3) for half the Board seats. It then offers specific suggestions
about how to accomplish those goals. My comments on these conceptual
recommendations follow.

Global Elections. The case for global elections in the NAIS report is very
weak. The regional studies demonstrate empirically what was already common
knowledge -- most people have no knowledge of, and no interest in, ICANN.
The NAIS report justifies ignoring this apparently decisive fact on the
grounds that ICANN is the first step toward the creation of global
democratic mechanisms that can avoid national governments and allow people
to directly control important public resources. Putting aside for the moment
whether this is a broadly shared view or goal, NAIS nowhere explains why
ICANN is an appropriate vehicle for this experimentation, nor how the other
stakeholders in ICANN can have any assurance that chasing this goal will not
interfere with ICANN's basic mission -- preserving the continued stability
of the DNS. To NAIS, the problem is public ignorance, which can be corrected
with massive outreach and voter education -- to alert them to the existence
of ICANN, to explain that it is important to them and their future, and to
convince them that they should vote for people who are going to protect
their interests (which, since the public does not have any current
interests, will presumably be the interests of those conducting the outreach
and education).

It is hard to imagine a better illustration of the "I know what the public
needs" view; even when their own research shows that the public doesn't
care, the NAIS recommendations express what NAIS thinks "the public needs."
Since this recommendation ignores the serious practical problems that would
be associated with a global election of potentially millions of people,
assumes away the funding problem by requiring all those who purchase rights
to use domain names to pay the (probably) tens of millions of dollars that
would be required to manage such an outreach program and election, and
assumes that ICANN staff (already seriously overworked) can simply buckle
down and spend the time necessary to do something right that has never been
done before, it is not persuasive. This may be a wish or desire, but it is
not a credible recommendation entitled to serious consideration.

All Interested Persons. The NAIS report documents that there are very few
people truly interested in ICANN. But since this fact would not support its
call for global elections, and since the authors clearly believe that more
people "should" be interested in ICANN, they would remedy this "problem" by
a massive outreach effort. Nowhere are the pros and cons of this
recommendation compared to the basic purpose of this exercise: to find a
practical and appropriate way to ensure public participation in ICANN.
Obviously, there are many possible ways to accomplish this objective, and
NAIS lists some: use domain name holders as the electorate, have At Large
directors appointed by governments, have At Large selected by intermediary
organizations or by the Board. But the NAIS authors then reject all these
options because "Direct elections, while imperfect, are more likely to
provide ICANN with global legitimacy than other proposed options." (p.9)

This concept of "legitimacy" is worth more attention, since it is the core
principle upon which the NAIS recommendations rest. Legitimacy is clearly
not a self-defining term; it means different things to different people and
groups. Some of those differences are highlighted in the research portion of
the NAIS report; one example is the reference to practices in the
Asia-Pacific region during the last election that some in the Western World
would find illegitimate (corporate encouragement to register and vote). It
is highly unlikely that ICANN's "legitimacy" in the eyes of many (if not
most) of its stakeholders rests on the presence of globally elected
directors selected by a vote of all interested persons in the world. To
NAIS, however, this is the only definition of legitimacy. That view is not
widely shared among other ICANN stakeholders, or this issue would not still
be unresolved.

Even the NAIS authors appear somewhat ambivalent here. At one point, the
NAIS report asserts "the point of ICANN elections is to choose directors
that are representative of the public's perspective . . . . " (p.9) But
later, the NAIS authors assert that "ICANN is a membership organization, not
a government. The elected At-Large directors are not meant to "represent"
the entire worldwide public at large, nor even all Internet users. The
elected directors are chosen by the members of the organization and, in the
service as Directors, are expected to bring the perspectives of those
members to the Board." (p.109) One might ask why it is necessary or
desirable to engage in extensive outreach and voter education, if ICANN is a
membership organization and not a government? Why would it not be
sufficient, for example, to randomly select several persons from an At Large
membership (or even an ALSO as proposed by the ALSC) who by joining (and
even paying a fee) had demonstrated that they were "interested" in ICANN,
and have them bring the necessary public perspective to the Board? The
answer may be that the real motivation of the authors is not simply
appropriate public participation in ICANN but some broader strategy aimed at
developing global democratic institutions dealing with Internet governance.

The NAIS authors flatly assert that "Without a broad, participatory and
representative At-Large Membership, ICANN will not gain or hold legitimacy,
and its long-term survival will be threatened." (p.22) This seems more a
hope than a prediction; ICANN's "long-term survival" would seem to depend
more, for example, on the continued cooperation of root server operators to
recognize ICANN as the DNS policy development body, on ISPs' continued
willingness to treat the ICANN root as the authoritative root, and in the
willingness of TLD registries to contract with ICANN, than on the presence
of an At Large membership, however organized. The NAIS authors seem to
assume that, because in their eyes "democratic governance" of ICANN is so
important, so will all other ICANN stakeholders, but they provide no reason
in their report to believe that is actually the case. Indeed, it seems much
more likely, as the ALSC finds, that continued operational stability of the
DNS, and ICANN's contribution to that, is really the critical ingredient in
ICANN's survival.

Later on that same page, the NAIS report goes on to say: "Membership in
ICANN should be open to any individual with an e-mail address and the
interest to join. The low barrier to entry ensures that anyone with the time
and interest to participate can do so. That very openness provides the
opportunity for participation to those who want it, and in so doing
validates the public legitimacy of the process. It is precisely the lack of
barriers to public participation as a member that legitimizes the election
as a selection process, not its "representativeness."" (p. 109) This makes
it clear that the goal of the NAIS authors is global democracy, not just
public participation in ICANN. For NAIS, ICANN is apparently merely a
vehicle for advancing a broader agenda, with little (or no) regard for the
possible consequences on the ability of ICANN to carry out its limited but
important mission. One does not need to be a corporate apologist to
recognize that global elections by all interested persons is probably the
most difficult, the most expensive, and the least likely of all the possible
ways to produce useful, relevant public participation in ICANN.

Half the Board. This recommendation is, if anything, even less well
supported than that of just discussed. It is clearly an article of faith,
not the result of analysis. Indeed, it is only mentioned in 5 places in the
report, probably occupying a total of just over a page of text out of the
more than 150 page total [my comments in brackets]:

-- "Balance and of [sic] appropriate representation require that the
Membership directly elect at least the same number of seats on the ICANN
Board as the various Supporting Organizations in total (nine currently)."
(p. 7)

-- "In order to provide the public voice with meaningful representation,
At-Large Directors should balance the policy authority of the Directors
chosen by Supporting Organizations." (p.9) [This part of the report goes on
to note that this would mean that by-law changes (which require a 2/3 vote)
would have to have "at least some support from both the At Large and SO
Directors. In our view, this would provide an appropriate level of 'checks
and balances' on the board, and would provide the At-Large with enough
authority to block changes to the bylaws that might negatively impact the
public voice." Or, to translate into practical terms, the At Large alone of
all the ICANN stakeholders should have veto rights over all ICANN actions.
It is hard to take this proposition seriously. The report goes on to say "We
believe that reducing the At-Large Directors to less than one-third of the
Board would seriously undermine the legitimacy of ICANN." The authors give
no explanation for this ipse dixit, and leave open the question of whether
having one-third of ICANN's directors come from the public (as the ALSC
recommends) would have the same effect.]

-- "The importance of public participation should be recognized by ensuring
the Membership a number of Board seats at least equal in number to the
representation accorded other stakeholders in aggregate (currently the
Supporting Organizations)." (p. 108) [Here, the NAIS authors explictly state
what is implicit in the entire report -- that their view of the world is
that the public ("all interested individuals") is on one side, and everyone
else -- governments, scientists, providers, business organizations (large or
small) -- are on the other. It is "us versus them," and thus to be "fair,"
each side has to have an equal number of players. This view of the facts is
idiosyncratic at best. You can see part of the rationale for this bizarre
perception in the NAIS report's perspective on the existing ICANN Supporting
Organizations: "It is not clear by what measure of legitimacy or
representation a board director selected by the DNSO, for instance, can be
said to validly represent the interests of all the various members of the
various constituency groups within the DNSO. Few in ICANN criticize the DNSO
because only a handful of businesses, out of the millions of businesses
worldwide, actively participate in the business constituency group and in
the selection of the Names Council representative. The same is largely true
of the ASO and PSO, and of the legitimacy of the directors they select." (p.
109) In fact, the ASO is populated by every single one of the address
registries in the world, and those registries are themselves large
membership organizations composed of numerous entities involved in the
allocation of IP addresses and address policy. The ASO directors are by
definition highly representative of that collection of ICANN stakeholders.
The PSO is composed of every single body that generates global Internet
protocols, and each of those organizations is itself a body composed of many
individuals or entities; thus, the PSO Directors are also highly
representative of that collection of ICANN stakeholders. The DNSO is a more
complex body, and may indeed benefit from restructuring to make it more
representative, but the business constituency itself is made up of a number
of membership organizations (e.g., the US Chamber of Commerce) and other
entities that collectively represent many millions of businesses. It is hard
to see why this is not a representative body for this collection of ICANN
stakeholders. The notion that "all interested individuals" have legitimate
interests equal to the sum of all other ICANN stakeholders is certainly not
obvious, and the NAIS authors never try to justify this odd proposition.

-- "The only board selection mechanism that can assure ICANN's legitimacy is
a direct election of At-Large seats on the board of directors. The number of
these seats must be at least equal in number to the aggregate number of
seats granted to the Supporting Organizations." (p. 121) [By this stage of
their report, the authors must assume they have made their case, since they
offer no justification for this assertion here.]

-- "We believe that an elected one-half of the board represents an
appropriate level of representation to assure the accountability of ICANN's
policymaking endeavors." (p. 122) [Here, the NAIS report presents its most
thorough justification for this point, citing balancing "stakeholder
interests represented in the Supporting Organizations with the diverse
public interests represented through the At-Large Membership;" providing a
"meaningful counterweight against the actions that the Board's vested
interests might otherwise impose by majority on the public and so satisfies
needs for accountability and legitimacy in ICANN;" enabling a "diversity of
viewpoints on the Board;" and being "consistent with concepts of historical
balance expressed in ICANN's founding documents." Again, the arguments
reflect the "us versus them" perspective noted earlier, and are otherwise on
their face persuasive on the merits.

4. The At Large Membership. To be fair to the NAIS report, it says that its
recommendations on elections are stated to be secondary to their main point
-- that an ICANN At Large Membership needs to be created that is globally
representative, inclusive, and active. Electing members of the ICANN Board
is only one of the tasks of the ALM as NAIS's authors see it; as or perhaps
even more important is energizing a large body of people around the world to
"balance" the corporate and governmental interests that NAIS sees as
dominating ICANN today (and perhaps creating a base for global public
participation on other issues).

One must ask: Is what ICANN does so important to humanity that it justifies
the most comprehensive global collection and organization of individuals in
the history of the world? That is what the NAIS report recommends: the
"functions" it envisions for the ALM include "the creation of local,
regional and global associations that will allow members to receive and
discuss information about ICANN in the language most convenient for
themselves;" "deliberation and efforts to affect ICANN policy, such as
(virtual) discussion platforms, working committees, petition tools, and
outreach meetings;" "enabling the development of communities or networks
around specific issues and concerns to facilitate informed debate;" and
"ensuring transparency of the policy-making process, including consultation
mechanisms that help inform and justify Board decisions." This utopian view
of what it takes to gain appropriate public participation in ICANN seems
highly disproportionate to the problem. Many would undoubtedly feel that the
enormous energy required to carry out these recommendations might be more
productively focused on some other more appropriate objective, such as
feeding the hungry or treating disease.

The NAIS report recommends "a concept of membership in which an individual
may join simply by registering his interest in participating." This
membership would require a Membership Council, which would also have to be
directly elected; a Secretary-General (undoubtedly with helpers); ALM
Working Groups or Committees, which "could be initiated upon request of
individual AL Members, registered ALM associations or the Membership
Council;" and ALM Local/Regional Associations, which would be created by
"submitting a description of the association's purpose and support within
the Membership to the ALM Secretariat." Any such association so registered
would "achieve access to the membership roles of the ALM."

Considering the almost total lack of interest by the general public in
ICANN, and its very limited mission, the rationale for this extraordinary
construction is hard to understand -- unless it is simply a vehicle for the
creation of a global public policy infrastructure that could then be
redirected to other issues. This explanation would at least explain, if not
justify, the cost and complexity of creating a structure that on its face is
more complex than any existing international body -- including those other
organizations with Secretary-Generals. In fact, this recommendation seems to
have very little to do with providing public participation in ICANN, and
thus is not a credible suggestion for solving that particular problem.

5. Other Recommendations. The other NAIS recommendations range over many
subjects. A few deserve mention:

-- Notwithstanding the problems with postal authentication documented by its
own research, the NAIS report concludes that it is the best of several
flawed options. [It does not consider at least one other possibility -- that
the unavailability of unflawed options might lead one to conclude that
global elections are not a viable method of gaining public participation in
ICANN.] It goes on to suggest sending the PINs by postcard because it is
cheaper than a letter -- of course, since the PIN is an antifraud device,
sending it open to the world seems inconsistent with its purpose.

-- The NAIS Report asserts that "a conceptual pillar of ICANN's funding
structure has been the notion that those groups deriving financial or other
benefits from ICANN's operation should should the responsibility for
supporting ICANN's activities." (p.129) This is flatly and obviously
incorrect, and why the NAIS authors would put forth such a demonstrably
false proposition is hard to understand. The accurate statement of ICANN
funding is that those who provide name and address services to users are the
conduits for ICANN funding, but all of those entities undoubtedly pass those
costs on to their customers -- name registrants or resellers, and address
recipients. ICANN funding has nothing to do with the commercial success or
failure of any of the entities with which ICANN contracts; its funding needs
are determined by its costs, and do not vary with the commercial results of
any of those who serve as funding conduits. Because the NAIS authors put
forth an inaccurate and confusing picture of how ICANN is funded, they
obscure the real effect of their funding recommendations -- that name
registrants and those who obtain goods or services from the recipients of
address allocations will pay for the costs of NAIS's public participation
recommendations.

In addition, NAIS's cost estimates are hopelessly understated; they take no
account of the massive outreach and voter education initiatives they say are
necessary to create a group of interested public electors, and they ignore
completely the costs of the additional staff that ICANN would inevitably
have to hire to establish and service the massive infrastructure and global
election mechanism they recommend. The NAIS authors reject membership fees
as "contrary to basic notions of democracy and fairness," but seem to have
no trouble at all with the fairness of taxing domain name holders for the
costs of creating an artificially "interested" electorate.

-- The NAIS report recommends that ICANN should "guarantee individuals and
organizations around the world the protection of their individual liberties
(of the sort contemplated by the UN Universal Declaration of Human Rights),
their property, their expectation to be treated fairly and with due
process." This includes the "right" to participate in the DNS "without
distinction of any kind, such as race, color, sex, language, religion,
political or other opinion, national or social origin, property, birth or
other status;" to "freedom of opinion, which includes freedom to hold
opinions without interference and to seek, receive and impart information
and ideas through any media and regardless of national frontiers;" and "the
right of all individuals and organizations worldwide to privacy." The NAIS
authors apparently did not see any need to explain why these were relevant
to ICANN's limited mission, or how ICANN could every hope to accomplish
these lofty goals. .

-- The NAIS report recommends the creation of a global "judiciary" that
"serves as a real oversight body." Apparently having a membership of all
humans "interested" in ICANN is not enough protection against what the NAIS
authors refer to as "majoritarian impulses," and there is a need for an
analogue to the International Court of Justice to protect against such
abuses. Interestingly, these advocates for public involvement reject
consensus decisionmaking, the base on which ICANN was established, as
probably not "meaningfully achievable for contentious policy issues."
Instead, the NAIS authors would rather depend on a complex and expensive
global bureaucracy -- which begs the question why they are so hostile to
using an existing multinational bureaucracy instead of creating a new one.

-- The NAIS report still does not all find these solutions sufficient, and
therefore recommends the creation of Board and Staff Codes of Conduct; fair
administrative procedures, and an active independent review panel. The
relevance of these to the issue of public participation is not obvious.

-- The NAIS report has a short section recommending reform of the DNSO, but
this is clearly an afterthought, and its recommendations and rationale raise
more questions than they answer. In addition, they are markedly inconsistent
with other aspects of the NAIS report. While earlier criticizing the ASO and
PSO as unrepresentative, here the NAIS authors concede that they have
"effective internal processes" that produce "basically effective" dialogue
and "substantive work products." They seem to attribute this to the fact
that these bodies have evolved from pre-existing organizations. (p.139) [It
is odd that they do not draw from this recognition the clue that perhaps
using pre-existing organizations would be an effective way of dealing with
the public participation issue generally.] The DNSO, on the other hand, is
seen as dysfunctional, in part because it is in "the awkward position of
attempting to gain consensus from competing 'supply' and 'demand'
perspectives." (p. 139). The NAIS authors, consistent with their doubts
about the consensus policy development process noted earlier, appear to
forget that ICANN itself was designed from its creation to be an
organization with the "awkward" goal of generating consensus from
"competing" perspectives; this is a feature, not a bug.

The NAIS report suggests that it would be an improvement to separate
providers from users, and to create a "Name Providers" SO and a "Consumers"
SO. This is remarkably similar to the conceptual framework that led the ALSC
to its recommendations (see below) that the Board should basically consist
of representatives selected from each of three general categories --
developers (ASO and PSO), providers and users. To the NAIS authors, with
their view that "interested individuals" must have half the Board seats,
this insight leads instead to the suggestion that the DNSO's current three
seats be subdivided into some for providers (in which they would include
both gTLD and ccTLD registries and registrars) and users (where they are not
specific in their recommendations, but seem to contemplate that NGO name
holders, academic name holders and individual name holders would have
essentially equal power to the business, ISP and IP constituencies). The net
effect of these recommendations would be to even further reduce
representation on the Board from the business-related stakeholders of ICANN,
and increase that of groups such as those represented by the NAIS authors.
The NAIS authors seem to be oblivious to the fact that this particular
recommendation is even less likely to gain consensus support than their
other recommendations.

The one point on which the NAIS report is very clear with respect to SO
restructuring is that it should not be connected to what it sees as the
critical need to create the proper level of public participation in ICANN.
Since it would seem to make logical sense to deal with restructuring issues
as a whole, both to ensure that in the end the right balance is struck and
to avoid having ICANN go through a long period of contemplating its internal
naval to the detriment of its main mission, this conclusion seems purely
tactical -- an effort to avoid having the public participation issues dealt
with in the context of the broader issue of how ICANN should best be
structured to produce appropriate involvement by all its stakeholders.

6. Conclusion. The NAIS report is a policy prescription for the creation of
a globally democratic organization with extensive non-governmental review
and appeal mechanisms. It offers a point of view, but makes no pretense to
reflect a consensus position, or a position that could ever gain consensus
support. Instead, it is presented essentially as a demand -- the minimum
process and procedures for ICANN to obtain "legitimacy" in the eyes of the
NAIS authors. The NAIS authors never take the trouble to explain why their
views should prevail over all other ICANN stakeholders, nor why a public
that neither knows or cares about ICANN should have veto power over the
aggregate of all other stakeholders. As such, it does not provide any useful
assistance in solving ICANN's present problem, which is to find a method for
appropriate public participation in ICANN that at least potentially could
obtain broad support from ICANN's entire stakeholder community.

THE ALSC DRAFT REPORT

The ALSC draft report starts from a very different premise than NAIS.
Instead of attempting to justify a preordained conclusion, the ALSC was
instructed to do a "clean sheet" study, and to consider the full range of
options. These included, for example, whether there was any need for public
participation in ICANN, and if so, under what conditions; whether public
elections were necessary or appropriate for some or all Board seats; and
what other role(s) (if any) an At Large membership should play in ICANN. As
best can be seen from its draft report, the ALSC took these instructions
seriously, and considered the full range of possibilities in coming to its
draft conclusions.

There are two important points of agreement between the NAIS and ALSC
reports: both conclude that there is today very little interest in ICANN or
the structure and performance of an At Large membership, and both agree that
there is no consensus on how to structure appropriate public participation
in ICANN. As the ALSC put it, "[d]espite extensive efforts, the ALSC has
found it difficult to generate a high degree of interest in these issues. We
have not found profound and widespread opinions favoring any one solution to
the At-Large issues." (p.1) From this common ground, however, the two
reports diverge dramatically. The NAIS authors assert that there is only one
acceptable solution to the At Large problem, whether others find it
agreeable or not. The ALSC took a different approach: "We have concluded
that the main interest of the wider Internet community is in the stability
and reliability of the Internet itself, and that a structure for
participation and representation that is seen as creating the best
possibilities for this would meet with its tacit approval." (p.1) The ALSC
then concluded that "the approach with the best chance for consensus
support" involved "organizing ICANN along stakeholder interest or functional
lines of developers, providers and users, by defining At-Large members as
'individual domain name holders' (since they have a strong and tangible
vested interest in ICANN activities, not just the Internet in general), and
by providing these At-Large members with the opportunity to fully
participate in ICANN and select one-third of its Board." (p. 6)

The ALSC and NAIS reports also agreed that public participation in ICANN was
important, and that some form of elections of a certain number of directors
by a broadbased electorate would best serve that end. But where the NAIS
authors insisted that directors must be elected by a global electorate of
"interested individuals," and must have half the Board seats (and thus an
effective veto over all important Board decisions), the ALSC concluded that
there should be a balance among directors selected by developers, providers
and users on the Board, and that individual domain name holders were a
satisfactory source of public input into director selection. The ALSC
describes its recommendations as "an approach to Internet user participation
and representation in ICANN that the ALSC believes is defensible,
executable, effective and most likely to gain consensus." (p.8) This
analysis now turns to the specific suggestions contained in the ALSC draft
report.

1. An Electorate of Individual Domain Name Holders. The ALSC concluded that
"structured involvement of individual Internet users in ICANN policy
formulation and decision-making is needed . . . " (p. 11) Contrary to the
NAIS authors, however, the ALSC did not "accept the notion that users'
interests are somehow exclusively or even best protected by the direct
election by e-mail address holders of half of ICANN's Board. Clearly this
approach does not have consensus support." (p.11) The ALSC concluded that
"any attempt to reach individuals on the basis of e-mail addresses [would]
be administratively and financially unworkable on a global scale and fraught
with potential dangers ranging form capture to outright fraud." (p.11) Its
alternative -- what the ALSC termed a "viable compromise" -- was to look to
individual domain name holders as the electorate for At Large directors.

Clearly this suggestion has pros and cons. Individual domain name holders
are an identifiable group that has already expressed some interest in the
subject area managed by ICANN. They can at least theoretically be reached in
a decentralized way through registrars, assuming the latter's cooperation,
and they could provide a way for the At Large to be self-funding, thus
avoiding the tax recommended by the NAIS authors. On the other hand, domain
name holders are largely entities, not individuals; by some estimates there
are only about 6-8 million individual domain name holders. The ALSC report
is not absolutely clear on this point, but it seems to assume that some
individual would be designated by each entity holding domain names to vote
one time on behalf of that entity. How this could be administratively
managed is not clear. Using registrars to sign up those interested and
collect a fee (recommended by ALSC both to ensure interest and to provide a
way to self-fund the At Large) will work only if the registrars agree to
take on this task; since it will cost time and money for them to do so, it
is not clear they would be wiling to do so. There would remain the potential
for capture and fraud, although certainly less so than in a broader, less
defined electorate.

On balance, the ALSC approach seems more workable than the NAIS
recommendations. While both would require outreach, this is obviously easier
with those who already have a connection with ICANN than with the entire
human population. If the ALSC recommendation was adopted, it might be
simpler to limit voting to just the individuals (and not the entities)
holding domain names; this would not be "fair" in some sense, since it would
exclude, for example, single proprietorships and other small businesses that
may well have no other practical way to participate in ICANN. Still, even
the NAIS report agrees that the objective here is not a representative
election in the governmental sense, but merely a way to obtain "appropriate"
public participation in ICANN; there does not appear to be any reason to
insist that any person with interest must be able to participate to
accomplish that goal. Another possibility would be to simply invite all who
are willing to pay a nominal fee -- just enough to ensure some level of
actual interest -- to become ICANN "members" and then to select (perhaps by
vote) the appropriate number of ICANN directors. Perhaps the biggest
practical hurdle to the ALSC approach is obtaining the cooperation of the
registrars, who might insist on being able to pass on the cost of this
particular administrative cost to their customers.

2. Creating an At Large Membership. As does the NAIS report, the ALSC report
recommends an outreach effort to create an informed and engaged At Large
membership. The ALSC's suggested approach is to create an ALSO, with
dedicated staff funded by ICANN and open to participation by all interested
individuals who are wiling to pay a membership fee. The ALSC recommends 6
geographic regions, each electing a Director and with the five candidates
receiving the next highest vote totals becoming the At Large Council for
that region. [It should be noted that the ALSC suggests no measures to
ensure geographic balance within the regional councils, which is potentially
a serious flaw with this specific suggestion.] Each region would select two
of its council members to serve on the ALSO council, which would be
responsible for managing the ALSO.

There are two significant differences between these recommendations and
those of the NAIS report: six rather than five regions, and a membership
fee. The additional region would encompass India, parts of Western Asia and
the Middle East; the desirability of this addition to the status quo is
certainly open to debate, but given the ALSC recommendation that the ALSO
elect 6 directors, it would simplify the logistics of that task. Another
option would be to stay with the current five regions, and select (perhaps
by blind draw among the persons who got the second highest vote totals in
each region) a sixth director. The fee is seen by the ALSC as necessary for
self-funding, and as a way to limit membership to those that have
"demonstrated a commitment to supporting At-Large activities." (p.15) The
ALSC apparently does not agree with NIAS that this is discriminatory or
unfair, since it concludes that what is necessary (and workable) is informed
public participation, not participation by all "interested" persons. The
ALSC sees a need, as did the NAIS authors, for "local and regionally based
(and perhaps eventually issue based), informed participation by individuals
in ICANN," (p.16), but would leave the details of how to reach these goals
to the ALSO once formed.

3. One-Third of Directors. The ALSC takes a diametrically opposite approach
to that taken by NAIS. The NAIS authors conclude that the At Large must
elect half the Board to have an equal say with what they view as the "vested
interests" in ICANN. The ALSC rejects the notion of "dividing the Board
between At-Large and all other interests . . ." (p.17) as "having an unsound
logical basis . . . ." (p.18) The ALSC concludes that a functional approach
"makes more sense considering ICANN's evolution and responsibilities, and it
has the greatest likelihood of achieving a consensus. (p.18) Thus, it
suggests that developers, providers and users should each have equal
representation on the Board, in part because this "prevents any one of the
constituency groups from exercising undue influence within ICANN." (p.18)
This contrasts sharply with the NAIS recommendations, which insist on the At
Large stakeholders having the practical ability to veto any decisions by the
Board.

The ALSC draft recommendations are certainly not free from debate. Six At
Large directors is three fewer than the number contemplated by ICANN's
original bylaws, but it bears noting that that structure was in fact
commanded by the person with decisional responsibility in the US government
at the time of ICANN's original recognition as a price of that recognition,
and never had consensus support in the Internet community, as has been
repeatedly demonstrated by the inability to find consensus support for any
implementation of that concept since ICANN's creation. Six At Large
directors, selected as suggested by the ALSC, would require the creation of
a new ICANN region, and that effort would undoubtedly be the subject of much
debate before it was completed. Limiting the electorate for those directors
to individual domain name holders does not eliminate the practical and
logistical problems of such elections, but certainly reduces them to at
least potentially manageable proportions. On the other hand, it seems hard
to argue that six directors would be insufficient to permit public
participation in ICANN, and it seems at least possible that this suggestion
could garner consensus support, whereas it has clearly been demonstrated
that the NAIS position (half the Board elected by an At Large membership)
cannot.

4. Conclusion. The ALSC makes it clear that it has suggested a solution to
the public participation issue that it believes is both workable and at
least potentially capable of garnering consensus support. It also makes it
clear (although its draft report preceded the NAIS report) that it finds
what turned out to be the NAIS recommendations "to be unworkable and likely
to engender fraud or capture." (p.19) Its recommendations have obvious (and
potentially serious) flaws: the reliance on the cooperation of registrars
that may or may not be forthcoming, the potential disenfranchisement from
participation in ICANN of small businesses and individual proprietorships,
and the potentially divisive necessity of creating new geographical region
boundaries. Nevertheless, the ALSC report is clearly superior to NAIS in at
least two respects: it is at least an attempt to identify a consensus
solution, and it focuses on what is practical and workable, not simply what
is conceptually attractive to its authors.

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