Re: [ALSC-Forum] Misstatements concerning IFWP

[Mike Roberts]

Hans -

If this is supposed to be a statement of political advocacy, you're 
certainly entitled to your views.

If it is supposed to represent some factual and documented recitation 
of "commitments," I don't find any support for it in the record.

With respect to ICANN commitments, my email of yesterday describes 
the 6 November initial Bylaws and the Dyson letter accompanying them. 
I don't find support for your conclusions there.

With respect to USG commitments:

- to my knowledge, no document issued by the Department of Commerce, 
past or present, speaks to a requirement for nine At Large Directors. 
Further, the government has never spoken officially on a requirement 
for a specific form of selection or election of Directors of ICANN. 
The fact that it found the November 6th and November 21st Bylaws of 
ICANN to be adequate does not mean that they met some notion of 
specific provisions.  The test was whether, taken as a whole, the 
articles of incorporation and the bylaws were sufficient to indicate 
that the community was prepared to undertake, through the ICANN 
structure and process, the responsibilities which the government 
proposed to gradually transfer to it.

- privatization of the DNS and related functions, as described in the 
White Paper, is ongoing.  In the White Paper, the USG said it would 
retain supervision for a transition period, which it then estimated 
would be not more than two years.  This intent took the form of an 
MOU having contractual effect with ICANN which enumerated a number of 
tasks that ICANN would have to complete prior to termination of the 
MOU.  For a variety of reasons we are all familiar with, that 
agreement has just been extended for a fourth year.

- The Department of Commerce and ICANN did, in the 25 November 98 
MOU, exchange a number of mutual commitments.  The full document is 
at:
<http://www.icann.org/general/icann-mou-25nov98.htm>

Of ten numbered tasks which ICANN agreed to take on, only one, number 
8, deals with membership.  The wording of that task is:

"8. Collaborate on the design, development, and testing of 
appropriate membership mechanisms that foster accountability to and 
representation of the global and functional diversity of the Internet 
and its users, within the structure of private- sector DNS management 
organization. "

It is very hard for me to read into this text any of your conclusions 
below. Further, it seems to me that the work and the draft report of 
the ALSC are entirely consistent with the aims stated in the task 
cited just above.

- Mike


At 10:18 -0400 9/20/01, hans.klein@pubpolicy.gatech.edu wrote:
>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
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>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
>>
>>
>>--


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