FW: Re: [ALSC-Forum] Misstatements concerning IFWP

[Ben Edelman]

Professor Zittrain isn't on the forum@atlargestudy.org list, so he asked me
to forward this on his behalf.



-----Original Message-----
From: zittrain@law.harvard.edu [mailto:zittrain@law.harvard.edu]
Sent: Thursday, October 11, 2001 1:43 PM
To: edelman@law.harvard.edu; rnesson@cyber.law.harvard.edu
Subject: Fwd: Re: [ALSC-Forum] Misstatements concerning IFWP



>Date: Wed, 10 Oct 2001 22:50:46 -0400
>To: hans.klein@pubpolicy.gatech.edu, mmr@darwin.ptvy.ca.us,
>forum@atlargestudy.org
>From: Jonathan Zittrain <zittrain@law.harvard.edu>
>Subject: Re: [ALSC-Forum] Misstatements concerning IFWP
>
>For what it's worth, Mike Roberts's brief description of the late summer
>of '98 is in line with my own recollections.  IFWP was certainly open in
>the sense that anyone could show up and participate -- and appeared so
>consumed by consensus and flat hierarchy that it was by its nature
>incapable of coming to actual resolution on by-laws or other texts.
>
>For my part, I remain skeptical of "consensus" as a touchstone, since the
>whole reason a "new IANA," in the words of the white paper, was needed was
>because the interested parties were too diverse, and their interests
>seemingly too much at odds, to just settle the issues for the sake of
>"running code" -- indeed, multiple solutions to the various issues led to
>equally good code, just wildly different distributions of power and even
>wealth.
>
>I do think that Joe/Jon, as a concession to Ira Magaziner and therefore
>the Commerce Dept, agreed that ICANN's bylaws would feature a membership
>-- thus the "TBD" section for membership in the sept/oct '98 draft that
>was accepted.  I suppose the Commerce Dept could still decide, under the
>MOU it now has with ICANN, whether an abandonment of membership (if that's
>really in the cards) is enough of a hot button for it to pull out the
>rug.  (If the Commerce Dept cared, I suppose they'd already have signaled
>to ICANN this view.)
>
>At the time I agreed wholeheartedly with Lessig that without a membership,
>ICANN was subject to capture by those who were organized -- and interested
>-- but (and?) not necessarily bearing the public interest in mind.  I
>don't know that I still agree with that, but I'd be pretty dismayed to see
>the membership seats eliminated or arbitrarily diluted.  The very symmetry
>of a 9/9 split is a decent argument for its retention.
>
>But from my somewhat distant current vantage point, it seems that a lot of
>the process mechanisms thrown into the ICANN bylaws have proven
>stillborn.  There are roughly 500-1,000 people really eager to immerse
>themselves in ICANN, and the panoply of organizations -- general assembly,
>names council, at-large membership, constituencies, supporting
>organizations, review boards -- look like an anemic mishmash of "process"
>unable to support its own weight.  Not to say that we should throw things
>to a technocratic elite to just parcel out the goodies, but I think we'd
>do well to find out how to simplify the octopus's tentacles at this point.
>...JZ
>
>P.S.  While I'm using the slot, it does seem to me strange to let the new
>(and legitimate) attention to security drive out the other business at the
>upcoming annual meeting, and to develop the meeting agenda in a "send
>email and someone will consider" it way, rather than in some kind of open
>forum -- the latter lending itself better to actual deliberation among
>interested parties.
>
>At 10:18 AM 9/20/2001, 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
>>>
>>>
>>>--