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

[Adam PEAKE]

Jonathan, Ben, Hi.

Thanks for you comments - agree with a much of what you say. But I think
it's worth pointing out to this list that the nine/nine agreement did
not come from Ira Magaziner, it was the result of discussion that went
on for a couple of months before the department of commerce made
commitment to not touching the nine/nine balance a condition of ICANN's
recognition.  

I have only been able to find 4 versions of the bylaws as they developed
over that summer (I think there were 6?), but it is interesting to see
how nine/nine emerged.  Some of the notes in FAQs and comments in the
text are also helpful.  

(dates are approximate, from the HTML update, not document issue date.) 
17-July-98, <http://iana.netnod.se/bylaws.html> ASO, PSO, DNSO with 3
directors each and 6 nominated by an Industry/User SO.

04-August-98, <http://iana.netnod.se/bylaws2.html> ASO = 3, PSO = 3,
DNSO = 3, concept of "At Large" introduced, 9 directors. (Shortly after
the Geneva IFWP -- perhaps your first meeting, and I think the only IFWP
meeting Jon Postel attended?  Certainly where membership was on the IFWP
agenda for the first time.)

02-September-98, <http://iana.netnod.se/bylaws3.html> Comment explaining
the board structure (3 x 3 + 9) and At Large says: "allowing Internet
users, commercial interests and other stakeholders, through the At Large
positions, to balance those three specific constituencies."

Joint IANA/NSI documents. Dated 17 September 1998.
<http://iana.netnod.se/intro-coop.html>
<http://iana.netnod.se/articles-coop.html> Articles
<http://iana.netnod.se/bylaws-coop.html> Bylaws

(3 x 3 + 9)  The IANA/NSI bylaws are accompanied by a comment: "This
language has been adjusted to make it clear that there is a strong
presumption in favor of some form of membership structure and the
election of the At Large members of the Board by that membership."

Then I think it was on to the October bylaws, followed by Ira Magziner's
and DoC's conditions.

Nine/Nine clearly came about through community discussion, perhaps worth
calling consensus?

Thanks,

Adam

Adam Peake
GLOCOM Tokyo




Ben Edelman wrote:
> 
> 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
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>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
> >>>
> >>>
> >>>--