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

[Eric Dierker]

It is a testament to good and right that on this list we have a convergence of the
truth and public opinion.

If the BoD, ALSC and Staff go against the nine seats it will be a clear testament
to evil.

I can think of no virtue that would allow them to go against the nine seats

Adam PEAKE wrote:

> 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
> > >>>
> > >>>
> > >>>--