Re: [ALSC-Forum] Misstatements concerning IFWP

[hans.klein]

Mike:

We need to keep this discussioun focused.

Our interest in the past is guided by the policy questions of today:
1. As a condition of Internet privatization in 1998, what commitments were 
made to user representation?
2. What makes those commitments binding?

I haven't had time to fully research the historical record, but I offer 
some quick answers here:

The parties involved in Internet privatization committed to 9 user 
representatives on a board of 19
- this commitment was embodied in the bylaws of the organization called "ICANN"
- this commitment is prior to ICANN; it is an enabling condition of 
privatization

This commitment is binding because:
- it resulted (almost directly) from the IFWP process, which embodied due 
process
- it was a condition set by the Department of Commerce for DNS privatization
- it was accepted by all parties
- it was later reiterated by ICANN in various official documents (e.g. 
filings with the U.S. tax agency, the IRS)

On the basis of this, we can conclude:
- the ALSC and the ICANN Board lack the authority to revisit these 
commitments because they are prior to ICANN itself

If we stay focused on these issues, I think we can make some real progress 
here.

Hans



















At 07:51 PM 9/19/2001 -0700, Mike Roberts wrote:
>Hans-
>
>>Dear Mike,
>< >
>
>>In a friendly manner, I would like to suggest that there may be some 
>>"mischaracterizations" in what Mike has written.  His characterization of 
>>the IFWP process stands in sharp contradiction to that Larry Lessig, who 
>>I believe helped host the process through the Berkman Center and who 
>>ICANN later nominated to the Board. Lessig wrote:
>>
>>"... IANA resisted setting its document against another in a context that 
>>it could not control. As negotiations about the final meeting proceeded, 
>>IANA recruited members of the IFWP coalition to withdraw the request, and 
>>it finally succeeded in getting NSI to agree that any meeting should be 
>>delayed until IANA had a chance to strike their own deal. The result is 
>>stalemate in the IFWP process, and, if clocks count, a victory for 
>>IANA... Decisions about corporate structure are not technical; they are 
>>not matters taught at MIT. They are legal and political - judgments about 
>>governance - and no single group has special standing in their formation. 
>>Rather than something different, IANA gives us politics as usual: 
>>Insiders, in closed meetings, answering to ideas and arguments as only 
>>they think best. Not a promising start for the process of self-governance 
>>on the Internet."
>
>There were a number of people at Berkman involved besides Larry.- 
>Zittrain, Van Houweling, McLaughlin, Edelman, etc.   And there was 
>considerable interaction with Tamar Frankel, who was next door at Boston 
>U.and accepted an invitation from the Steering Committee to chair the IFWP 
>meetings.  Berkman did not host the IFWP process during the summer, but 
>they did offer to provide a venue for the ill-fated 5th meeting which 
>never came off.  Their view, as it was expressed to me at the time, was 
>that they felt they could be a resource to the IFWP process, but they 
>weren't going to take sides. The individuals I've identified can certainly 
>amplify or correct this if they feel it is necessary.
>
>Larry's account and mine are consistent.  Jon had a strong sense of 
>personal stewardship of IANA, and the entire Internet technical fabric for 
>that matter, and he had a low tolerance for those he considered 
>fools.  (He also had a marvelous capacity for keeping his thoughts to 
>himself when it was politically desirable to do so.)  He told me during a 
>conversation in May of '98 that the whole idea of having to hire lawyers 
>to do his proposal was anathema until he realized it was impossible to 
>accomplish what had to be done without them.
>
>Lsrry is critical of Jon because he personally dislikes the amount of 
>power that technical people wield in society and the manner in which they 
>tend to wield it.  He makes that very clear in his "Code" book among other 
>writings. However, this was a political process, and the Postel group had 
>a lot more chips on their side of the table than did the group that became 
>the BWG once IFWP dissolved. If you look at 
><http://www.ntia.doc.gov/ntiahome/domainname/proposals/comments/comments.html>
>which are the comments and letters of support received by Commerce on the 
>five proposals that were submitted, you'll see that Jon had all the big 
>players on his side.
>
>In my view, it is not a disservice to ICANN's role for there to be 
>competing visions of how to accomplish it, and in our kind of system, 
>those competing visions get worked out by real humans fighting for what 
>they believe in.  Delay and  Bonior are elected to the same House of 
>Representatives but there are days when you wouldn't think they were 
>talking about life and politics on the same planet. Auerbach and Roberts 
>hold diametrically opposed views on many aspects of how ICANN should do 
>its work, but we both believe in the mission assigned to it in the White Paper.
>
>But there is a crucial difference between the politics of a House of 
>Representatives and the politics of ICANN.  The latter is a 
>non-governmental entity specifically set up to make decisions by consensus 
>of its stakeholders.  And the working assumption of the Board, and of the 
>ALSC report, is that no one stakeholder group gets to exercise a veto over 
>others, which would be a de facto violation of the operating rules of a 
>consensus based organization.  This conviction is essentially set out in 
>the quotation from Esther's November 6th letter which is in my earlier 
>posting, and it has continued to be held to the present time by a large 
>majority of the Board and the members of the Supporting Organization Councils.
>
>Many people who hold a more popular democratic view of how ICANN 
>representation should function than I do, even if granting my 
>characterization, would protest that it is effectively a tyranny of the 
>majority.  I suspect that to some degree this is correct, but it is an 
>eternal problem of governance of representative organizations. Attempting 
>to draw the line between tyrannies of the majority and the minority is 
>very difficult and especially so in an organizational setting as complex 
>as ICANN. The founders of the United States system didn't even get around 
>to grappling with it until after the Constitution had been drawn, and much 
>of the case load of the Supreme Court to this day is concerned with fine 
>tuning of the Bill of Rights.  The IETF uses its rough consensus rule to 
>deal with the issue, and the ICANN Board's version has been pretty close 
>to the IETF version, granting that in a number of areas it has legally 
>binding commitments in its registry and registrar contracts and that it 
>has no statutory authority or power in the carrying out of its mission.
>
>I'm copying Jonathan Zittrain in case he has any comment on the history 
>part of this.
>
>- Mike
>
>
>--