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

[Sandy Harris]

Joe Sims wrote:
> 
> PUBLIC PARTICIPATION IN ICANN - THE AT LARGE DEBATE
> 
> Joe Sims*
> 
> * What follows is a personal evaluation of these documents. ...
> I hope it will contribute to the ongoing dialog.

So here's a personal response.
 
> INTRODUCTION
> 
> One of the important remaining issues relating to ICANN's organization is how
> to achieve an appropriate level of public participation in ICANN 

Yes, indeed.

> without impairing its ability to effectively carry out its principal mission
> - to preserve the operational stability of the Domain Name System.

I don't like this qualification you've added here. Preserving stability is not
ICANN's principal mission. It is certainly part of the mission, but no more so
than instigating change in the system, or than ensuring that the administration
of the system is somehow accountable to its users.

> While there is little disagreement on the concept of public participation,
> the type and approach have been vigorously debated since before ICANN's 
> creation. 

Yes.

> 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.

That's not at all how I'd describe the history.

In the controversy around Stuart Lynn's recent discussion paper on alternate
roots, ICANN management (quite correctly in my view) claimed that principles
set out in the White Paper and elsewhere were part of ICANN's mandate, and
should be treated as part of existing policy.

As I see it, the notion of nine At Large directors is another such case.

See, for example Dyson's 1998 letter assuring IANA of ICANN's excellent
intentions:

http://www.ntia.doc.gov/ntiahome/press/ICANN111098.htm

" ... elect the nine At Large Directors. ... the Board has an unconditional
    mandate to create a membership structure that will elect the At Large 
    Directors of the Board

" ... the Board, which will consist of the elected representatives of the
      entire Internet community

" Esther Dyson 
" Interim Chairman 
" On Behalf of the ICANN Board 

And the actual Bylaws attached to that letter have, in Article 9:

" Each Board after the Initial Board shall be comprised as follows: 
"
"   (i) Three (3) Directors nominated by the Address Supporting Organization ...
"  (ii) Three (3) Directors nominated by the Domain Name Supporting Organization,...
" (iii) Three (3) Directors nominated by the Protocol Supporting Organization ...
"  (iv) Nine  (9) At Large Directors, ...
"   (v) The ... President of the Corporation. 

This as much a part of the ICANN mandate as the "there can be only one" notion
about roots that Lynn referred to.

Methinks the mandate for ALSC is in the bylaws, Article 9:

" (c) At Large Board members ... shall be elected by a process to be determined
" ... Such process shall call for election of At Large directors by one or more
" categories of members of the Corporation ...

The problem here is to determine how to elect nine directors. To do that, you
likely have to define "members of the Corporation". Ask Auerbach about that :-) 

I don't think the question of reducing the number of At Large directors should
have arisen, either in the ALSC or the on Board. the Board's mandate is to
implement the bylaws, not to subvert them.

The only time I think the question of changing the number of At Large directors
should come up is if other changes in the Board are made. e.g. If a new CCSO
is formed and gets seats, I'd say we need to do something to maintain balance.
Either 4 SOs with two seats each = 8 and keep the nine At Large, or keep the
three seats per SO and increase to 12 At Large.  

> ... The 2000 election had many flaws, ... 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.

True.

> 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,

As I see it, having half the board openly elected is mandated by the bylaws.
The question is not whether to do this, but how.

There is some room to manouvre. The bylaws say the voters should be "one or
more categories of members of the Corporation", so we need to define "members"
in some way that allows anyone interested to "join".

Subscription to the relevant mailing lists would be a reasonable defintion,
except that the language barrier excludes many and there is potential for
fraud of several sorts. Perhaps we should work on those problems.  

> and suggest using the same approaches that the evaluations concluded were
> seriously flawed.

Yes, we need a better method.

> ... 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.

I'd have thought this should be obvious, but I'll spell it out.

If ICANN is to credibly claim to respresent the interests of Internet users,
there must be some role for those users in determing ICANN policy. Half the
Board seats is a bare minimum. Anything less gives various special interests
a clear majority.

> ... an organization whose primary responsibility is maintaining the
> stability of the DNS.

See my first comment above.

> The ALSC draft report ... While there are a number of serious potential flaws
> in the ALSC approach,

There is one fundamental flaw, the suggestion of reducing the number of At Large
directors. This does nothing to solve the difficulties of running elections or
defining ICANN membership. Those problems as as hard for six directors as for 
nine. All it does is implement an unconscionable shift in the board balance.

> 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.

Yes.

> 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.

Interesting indeed.

> 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

Touche. However, without them you'd have only corporate players, ICANN staff and
lawyers, representatives of various governments, and a few miscellaneous folk.
None of those have any credible claim to represent the public interest either. 

> ... 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, ...

Good question, but no possible answer to it would change the necessity that the
public interest somehow be represented, or the fact that the bylaws require nine
elected At Large directors.
 
> The NAIS 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)."

A reasonable statement.

> (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.

Again, this is much like Lynn's alternate roots paper. We don't need to have
the Board make new policy here. We need to have them implement existing policy
by getting nine At large directors seated. 

> The NAIS report documents, in its regional analyses of the previous At Large
> election, significant executional problems.

Yes.

> The NAIS report clearly began with an assumed premise -- all interested
> individuals should have a voice in ICANN.

Seems a valid premise to me.

> 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.

The notion that half the seats on the Board is an appropriate way to provide
the necessary public voice does not come from NAIS. It comes straight out of 
the bylaws, presumably arrived at through some form of consensus/compromise 
process. 

As for elections, what alternate mechanisms are there? 

We might look at the notion of creating a constituency for public interest 
groups like EFF and giving it half the board seats. That proposal has some
merit, but it is far from clear that it would be either workable or equitable.

Or we could ask national governments or ccTLD administrations to run local 
elections for some sort of assembly or electoral college that could then 
elect Board members. I'm not sure that proposal has any merit at all.

I cannot think of any other mechanisms to propose here that are even vaguely
plausible. Anyone else?

So I think we're stuck with some sort of election. The question is how to
do that.