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spkr-Session-5.htm
Governing the Commons:
The Future of Global Internet Administration
September 24-25, 1999, Alexandria, VA, U.S.A.
PROCEEDINGS
Session 5: Stakeholder Discussion
Jamie Love,
Consumer Project on Technology
Esther
Dyson, Interim Chair of ICANN
Don Telage,
Senior Vice President of Network Solutions, Inc.
David Post,
Associate Professor at Temple University School of Law
Paul
Scolese, Professional Staff Member, House Committee on Commerce
Todd Cohen,
Motion Picture Association of America
Q&A Session
Jamie Love
Consumer Project on Technology
[Summary by Harish Bhatt, CPSR]
Mr. Love began his opening remarks by noting that he worked for Ralph Nader. He said that when one thinks of ICANN, one should think in terms of "governance." ICANN has the ability to make an entity (whether an organization or an individual) "invisible" on the Internet. ICANN can effectively make an entity disappear from the Internet. Further, if ICANN chose to do so, it could theoretically get involved and take direct action on a number of highly controversial issues which were currently the subject of vigorous public debate --issues such as privacy rights, pornography on the Internet, and spamming.
Mr. Love posed the rhetorical question of whether ICANN should even be playing a role in this space. He indicated that the real concern here was that -- as currently organized -- there was the possibility that ICANN as an organization could be subverted by special interest groups to implement policy decisions in the absence of real public debate and consensus. By way of example, he mentioned that the emergence of the global Internet had raised new challenges in the area of copyright protection, and the entire matter was of grave concern to "Hollywood" in general. He remarked that while ICANN could theoretically get involved in the ongoing public debate on copyright protection, and could even provide a vantage point from which to implement policy, this was an area that was entirely inappropriate for ICANN to get involved with. He indicated that we should make sure that the Domain Name System (DNS) is not used as the vantage point from which to regulate the public and global Internet.
Mr. Love wondered how -- given its current organizational structure -- ICANN would exclude itself from being drawn in by special interest groups and powerful lobbying organizations to participate in and take sides on highly controversial issues like copyright protection, trademark policy, privacy rights, and the right to free speech. Such controversial issues could be expected to arise with increasing frequency in the future, especially as the public and global Internet continued its rapid growth, and started playing an ever-increasing role in the daily life of individuals from all parts of the world.
By way of a possible solution, Mr. Love suggested that a multilateral charter be adopted for ICANN --a charter that would limit the areas of activity that ICANN would be authorized to get involved with. The objective of such a charter would be to so limit ICANN's role and influence, that it would become almost "boring" to serve on the ICANN Board of Directors, and people would not necessarily care who was serving on the ICANN Board --because what ICANN could do as an organization was clearly spelled out and limited by its charter.
The bottom line objective of such an ICANN charter would be to ensure that ICANN -- now and in the future -- did not get involved with or influence the public debate on socio-technology issues. Mr. Love referred to the remark made by Ralph Nader in his Keynote Address earlier in the afternoon, about how having an IP address should be just like having a telephone number. He indicated that ICANN should be constrained so that it would only concern itself with the technical coordination activities necessary to make that happen.
Mr. Love stressed that the emerging socio-technology issues had an important public dimension to them, and had to be carefully handled by an appropriate but yet-to-be-determined forum. He said, however, that it was clear that ICANN was not the appropriate forum.
He asked [rhetorically] whether it was feasible to seek to exclude ICANN from participating in socio-technology topics of such obvious import. He suggested that it may be necessary to augment the current situation (where ICANN was the most "obvious" organization to approach on such topics) with the creation of new organizations, or recognition of existing organizations, to specifically deal with emerging socio-technology issues. However, any such organizations would have to be kept separate from ICANN. He stressed that it was vital to limit ICANN's role to that of a "technical coordinator" as far as global Internet administration was concerned.
In concluding his opening remarks, Mr. Love asked -- by way of argument -- what would happen if ICANN did "things" that people did not like. Things like imposing fees or formulating and enforcing policy that sought to limit the activity that an entity (whether an individual or a commercial business organization) engaged in on the public and global Internet. He suggested that provisions be included in ICANN's charter to make it possible for a periodic public review of the organization's activity, budget, etc.. Other countries should also be allowed to participate in the process, on the understanding that they subscribed to the same core value systems.
Esther Dyson
Interim Chair of ICANN
[Summary by Harish Bhatt, CPSR]
Ms. Dyson began her opening remarks by saying that she agreed with much of what Jamie Love had just said. She pointed out that most of the provisions that Mr. Love had suggested were already in ICANN's bylaws in one form or another. She said that in order to facilitate a common understanding of ICANN as an organization, she would use the ten minutes allocated for opening remarks to provide a quick overview of the philosophy and purpose of ICANN, and would then address any specific questions that Conference attendees might have in the Q&A Session that would follow.
Ms. Dyson emphatically stated that "ICANN was **not** about governance of the Internet."
She observed that ICANN's charter already limits what the organization can do. Essentially, ICANN is involved in the technical issues relating to IP addresses, Internet protocols, and administration of the Domain Name System (DNS). In order to be able to effectively carry out its mission in the above areas, ICANN had adopted procedures and arbitration guidelines to serve as a reference for all parties that have concerns in connection with issues such as copyright and trademark rights, etc. However, ICANN as an organization, does **not** make value judgements in such controversial areas that are currently the subject of public debate. ICANN, as an organization, is very sensitive to the role that it plays in ensuring the continued smooth operation of the global Internet, and it makes a conscious effort to ensure that it does not become something that can be "used" to further the interests of any given special interest group to the detriment of other groups or individual users of the Internet. ICANN's goal is to keep its activities limited to those specific areas which are necessary for the continued smooth operation of the public and global Internet.
Addressing the question of how ICANN operated, Ms. Dyson observed that at the present time, ICANN was not as organized as it could be. However, contrary to some of the misinformation that had been circulating about its decision-making process, Ms. Dyson emphatically stated that ICANN did **not** make decisions in secret. She said that while ICANN can engage in private discussions with agencies and other organizations, the actual decision-making process at ICANN is open to the public. Information on issues that are under consideration are routinely posted on the ICANN public web site on the World Wide Web.
Ms. Dyson observed that ICANN makes every effort to be sensitive, as well as responsive, to the feedback that it receives from the public and from open forums such as the current CPSR Conference. By way of example, she remarked that it had been public feedback that ensured ICANN does not hold any closed-door decision-making meetings on issues of public interest. Once again, it was public feedback that resulted in ICANN withdrawing its proposal for charging a $1 fee for every domain registered. She said that it was important for the public to stay informed and involved with the work that is being done in the area of global Internet administration in general, and with ICANN's activities in particular.
Touching upon the topic of the actual process that originally led to the creation of ICANN, Ms. Dyson observed that the bootstrap process had been -- like many things in life -- rather messy and not open. She remarked that getting to consensus is very often a messy and time-consuming process. However, despite initial challenges (due to the rather messy process that created ICANN), the new organization had been able to perform its function and deliver results, primarily because its reasoning processes and its decision-making activities had not been invisible to the public, but instead had been **very** open. In addition, once the Initial Board of Directors is elected, any remaining open issues in connection with the legitimacy of ICANN as an organization will be very significantly lessened. She asked that everyone stay tuned.
Ms. Dyson observed that in the United States of America, the U.S. Government does not have the power to tell Network Solutions, Inc. what to do. Everything that ICANN does is achieved through contracts with other organizations, which are then only bound by the terms of the negotiated contracts, and not upon any value systems that people may hold. ICANN is initially creating contracts with the Registrars. She observed that "alternate root servers" **do** exist on the global Internet today, and that they will continue to exist. ICANN is not seeking to shut them down.
Speaking of challenges, Ms. Dyson stated that one of ICANN's biggest challenges today is its "At-Large Membership." The current state of affairs in connection with the at-large membership deserves to be criticized, and ICANN recognizes that much work remains to be done on this front. She observed that while the average user of the Internet would not necessarily want to get involved with ICANN's activities, the organization needs to have representation from individuals (commercial or otherwise). Ms. Dyson requested assistance from all interested parties to help ICANN quickly build up its at-large membership. She remarked that representation from all constituencies in ICANN's processes is important, and the area of global Internet administration is not just the fight between individuals, big corporations, and government tyrrants -- as is so often [erroneously] portrayed.
In concluding her opening remarks, Ms. Dyson observed that ICANN was firmly committed to the objective of open competition driven by market forces.
Don Telage
Senior Vice President of Network Solutions, Inc.
[Summary by Harish Bhatt, CPSR]
Mr. Telage began his opening remarks by posing the [rhetorical] question of just how do we go about scaling up policy-making processes? He maintained that the challenge was to successfully address how we go from a policy-making process which was essentially implemented by people who "knew" each other in a small community, and scale it up to include the participation of millions of people from all over the world. Mr. Telage stated that, in order to obtain a truly meaningful and workable consensus on the various issues surrounding the process of global Internet administration, it was important that all participants in the discussion had a clear understanding of the mechanisms that were already in place today to ensure consensus was achieved. This common/shared understanding of existing processes would serve as a useful reference point for participants as they worked on meeting the challenge of modifying existing processes to accomodate the rapid growth of the public and global Internet.
Mr. Telage noted that -- today -- in order to achieve consensus, the active participation of a number of key players that had important roles in the overall administration of the public and global Internet was necessary. He noted that in the current process there were five main players, viz. the:
- Working Group
- Supporting Organization
- Board of Directors
- Independent Review Panel, and
- Courts.
Specifically, the "Template" specified that the Working Group Report must address the following important areas:
- a specific proposal from the online discussion
- the goal and issues raised by the proposed policy change
- documentation of the process
- description of previous deliberations
- Working Group participants and their qualifications and affiliations
- outreach to all impacted parties
- description of means to assure the process was open and transparent
- analysis and assessment of impacts
- summary of points -- pro and con
- answers to opposing views and distribution of support among implementers
- list of factual background material
- analysis of belief that the proposal enjoys consensus
- within the ICANN mandate and bylaws
- need for uniformity demonstrated
- other analysis.
- evaluates the Working Group Report and consensus process
- generates requirements for revision and augmentation
- acts as a broad focused forum that reviews the compelling nature of the conclusions
- accepts and forwards it or rejects the conclusion.
- evaluate the Supporting Organization's Report
- conduct a broad public forum on the policy change -- focusing on impacted parties
- accept and vote to adopt the demonstration of consensus, or reject the conclusion.
- evaluates the total record from the Working Group through the Board vote
- assures a fair hearing for disputes
- assesses that the process was compliant with the bylaws
- rules on the merits, and recommends.
He observed that the main objection to a top-down process of decision-making was that it fails to effectively consider the resulting impact that any given decision would have upon the entire system. This is because the decision makers often do not have the necessary proximity to the problem domain, and therefore do not have the right context in which to make detailed low-level decisions. Implementors, on the other hand, know and understand the detailed low-level environment a lot better. They also, often have a personal stake in the decision-making process, because very often they are the ones who are ultimately responsible for making it happen.
In concluding his opening remarks, Mr. Telage noted that -- like democracy -- consensus building was a rather boring activity, and it required a lot of sustained effort over extended periods of time. Those who were not prepared to put in the required effort might actually find it preferable to not get actively involved with the [consensus building] process to begin with. However, for those who were willing to put in the required effort, the satisfaction of seeking the process at work would inevitably make the entire experience extremely worthwhile.
David Post
Associate Professor at Temple University School of Law
[Summary by Harish Bhatt, CPSR]
Prof. Post began his opening remarks by observing that ICANN consistently and publicly maintains that it wants to limit its policymaking scope, tying its own hands so that it cannot one day find itself doing the "bad" things that people are so afraid of. He asked how, in the face of the diverse and sustained pressures that it is subject to, ICANN could continue to remain committed to its stated objective of limiting its involvement in broad policy areas.
He remarked that while ICANN maintains that its policymaking reflects the concensus of Internet community, he didn't see how this was the case under the current structure. He observed that at the present time, ICANN is a California-based nonprofit organization that is run by its Board of Directors. Mr. Post argued that as structured today, ICANN is not a consensus-based organization, and actually hadn't even begun the process of transforming itself into a consensus-based organization.
Mr. Post proposed that the role of ICANN and its Board of Directors should undergo a fundamental change. In particular, he suggested that the ICANN Board should not be a true policy or decisionmaking body, but that it should only be concerned with the question "is any particular policy proposal the result of consensus?"
He said that this led to the question: "What is consensus?" In his opinion, consensus was a very difficult concept to pin down precisely. It is entirely context dependent. However, he felt that Don Telage's list was a very good first start, and he endorsed it.
In concluding his opening remarks, Mr. Post stated that ICANN must be held accountable to its stated objectives and public assertions. He stated that there was a need for consensus in the process, the need for documentation of the process, arguments on all sides of any given issues must be received, considered and responded to in detail and to the satisfaction of all concerned.
Finally, he said that he felt there was a need for review of ICANN's activities by an independent panel.
Paul Scolese
Professional Staff Member, House Committee on Commerce
[Summary by Harish Bhatt, CPSR]
Mr. Scolese began his opening remarks by stating that he would like to discuss the role of the U.S. Congress as a participant in the activity related to ICANN.
Mr. Scolese remarked that we had reached a point where issues related to "governance" were becoming increasingly important and relevant to the discussions at hand. He said this was because there was now a very large global user base that depended in some way upon the global Internet, and the stakes were starting to get higher for all concerned (whether purely economic considerations or individual concerns on issues like privacy). As a result we could expect to see increasing disagreements occur between reasonable people on issues connected with the public and global Internet.
He said that we need to be careful to make the distinction between the notion of "governance" on the one hand, and "government" on the other. While the United States government operated the Internet for a number of years, it is engaged in trying to shift control over the public and global Internet to the private sector. However, the U.S. government will continue to participate in and play a role in connection with the Internet.
Mr. Scolese said that he saw several important open issues related to the ongoing discussion regarding global Internet administration in general, and the ICANN organization in particular. Specifically, he mentioned the following:
- Legitimacy: Who has the authority to make policy? Is it the U.S. Department of Congress, ICANN, the United States Congress, or some other body? There are many unanswered questions in this area.
- Authority: Does the U.S. government have the authority to make management decisions in this area?
- Ownership: Who has ownership? Does NSI have ownership?
- Openness: Who is allowed to participate? The decision-making process must be transparent for all to see, and not be a black-box.
- Public Review: The activities of ICANN should be open to independent and public review to ensure that it remains true to its mission.
- External Influence: How do we ensure that ICANN is not compromised -- captured -- by undue influence from powerful special interest groups?
- Role of ICANN: Should be policy-oriented or regulatory in nature? What if the issue at hand exceeds ICANN's mandate?
- International Implications: Should foreign governments be obliged to recognize ICANN? Many foreign governments have a different approach or philosophy on how the Internet should be run, e.g. privacy, digital signatures, role of private sector, role of the government, and the right to free speech. How will these legitimate differences be accomodated?
Todd Cohen
Motion Picture Association of America
[Summary by Harish Bhatt, CPSR]
Mr. Cohen began his opening remarks by observing that after "sex" the most frequently searched for content on the global Internet are MP3 files. And, most of these MP3 files were **illegal** MP3 files.
Mr. Cohen emphatically stated that the bottom line -- as far as the Motion Picture Association of America was concerned -- was that it would do whatever it took to protect itself, its creative artists, and the intellectual property that they produced. He said that there were seven major motion picture studios in the United States of America, and it should be clear to everyone that they were prepared to vigorously protect their intellectual property interests.
He stated that when it comes to the Domain Name System (DNS), the big companies will all be able to successfully protect themselves and their interests in intellectual property. But the price to other parties such as smaller companies and private individuals could be very high. He suggested that we should learn from recent history and the well-documented damage that has already been done to the entertainment industries in Brazil and Hong Kong, and to local players in the Swedish encyclopaedia industry.
Mr. Cohen acknowledged that many people considered intellectual property as improper. He commented that many people in the room might also share this belief. He asked people to consider that the right to free speech, which we hold so dear, is also considered to be improper in several countries and foreign cultures. When it comes to trademarks rights and copyright protection, many artists and authors would like to use the public and global Internet to distribute their intellectual property, but not at the risk of losing economic value in their intellectual property.
Moving on to the ongoing controversy surrounding public access to the "whois" database, Mr. Cohen suggested that different levels of protection should be considered. He warned that if public access to the whois database is completely cut off, the larger companies and organizations like the Motion Picture Association of America, direct marketing organizations, etc. will still be able to gain access via the subpoena process. So completely cutting off public access to the whois database would have the unintended consequence of merely denying access to the general public. For example, as an individual you would not be able to tell who was sending you spam, and therefore would find it a lot more difficult to seek recourse. The same would be true for cases of online stalking. In both cases the consequences for the general public would be unintended as well as unpleasant.
In concluding his opening remarks, Mr. Cohen stated that he believed that there should be trust for individuals, but there should be privacy for domain names. He mentioned that alternatives existed for getting privacy issues addressed, and these should be explored. He reiterated that the Motion Picture Association of America was extremely concerned to see its intellectual property materials being stolen, and it would be working with ICANN to protect its interests.
The Q&A Session began with each of the panelists commenting on
issues
that had been been raised by other panelists in their opening remarks:
[Summary by Harish Bhatt, CPSR]
Jamie Love of the Consumer Project on Technology, recalled a previous conversation he had had with Esther Dyson in which he recalled her saying that ordinary consumers would simply not be able to prevail at ICANN because the commercial firms were so strongly represented...
Esther Dyson immediately interrupted to emphatically deny that she had ever had any such conversation with Jamie Love.
Jamie Love then went on to state that Esther Dyson had expressed her opinion that individual and privacy groups would never have enough influence at ICANN...
Esther Dyson immediately interrupted to emphatically deny that she had ever had any such conversation with Jamie Love.
Jamie Love then went on to state that given the opinions conveyed to him by Esther Dyson (which she immediately and emphatically denied!) it would be very difficult to obtain any truly meaningful consensus within ICANN. He expressed his concern that any "consensus" that was achieved might not adequately address the concerns of all parties within the ICANN organization. He said this was yet another reason why it was important to explicitly define what ICANN could and could not do, and to not rely upon any "consensus" within ICANN to determine what actually gets done.
Esther Dyson remarked that while ICANN's decision-making process was based on consensus, it was important to realize that the notion of consensus does not imply unanimity. Achieving consensus is very different from saying that there should be no winners or losers.
Esther Dyson expressed her outrage at being falsely quoted [moments earlier] by Jamie Love. She reiterated once again that she had never had any such conversation with Jamie Love.
Don Telage indicated that he recognized that the issue of individual privacy is a valid concern. Today, there are several millions of records in the whois database that are for individuals. In such an environment, privacy is just not available. On the other hand, people and commercial entities invest a lot of money in intellectual property, and they have a right to protect their investments. The issue comes down to a question of "acess" versus "disclosure." Access can be provided under a secure arrangement. Disclosure can be provided via an opt-out policy which would enable individuals to have their records removed from public databases (such as whois). Don Telage noted that NSI was unable to make this happen today because of the terms of its contract with the U.S. government.
Esther Dyson commented that in the debate on "privacy" versus "disclosure" it was important to draw the distinction between providing information and using ICANN as a tool for policing. By way of example, she pointed out that an entity such as the Motion Picture Association of America was not going to approach ICANN with a request to close down a particular site on the Internet. And, if public access to databases like whois was completely shut off, then what it really meant was that the "little guy" was effectively being shut out. Large commercial entities and organizations would be still be able to obtain the information that they were looking for, even if they had to get a subpoena to do so. However, these are not and should not become ICANN issues. She pointed out that -- on a fundamental level -- the notion that the whois database was a public resource (in some form or another) was very important.
David Post noted that one of the dangers faced by an organization such as ICANN was that any number of groups -- some with good agendas, and others with bad agendas -- would eventually come knocking on the doors of the ICANN Board of Directors. He stated that while he had full confidence on the integrity of the ICANN Board of Directors during Esther Dyson's "watch," she would not remain a member of the ICANN Board of Directors forever. It was, therfore, vital that adequate checks and balances be put into place to ensure that the ICANN Board of Directors would continue to remain committed to the original mission envisaged for ICANN.
Esther Dyson interjected to say that this had already been taken care of by ICANN's Interim Board of Directors, and it had been included in the organization's bylaws.
David Post continued and asked the [rhetorical] question of whether ICANN's Board of Directors would be capable of resisting the pressure that could be brought to bear on them from powerful special interest groups such as the Motion Picture Association of America, as represented by Todd Cohen.
Todd Cohen observed that Esther Dyson had made a fair statement when she said that an entity such as the Motion Picture Association of America (for example) would not approach ICANN with the intent of making it a tool for policing. He noted that in the specific case of the Motion Picture Association of America, they had not approached ICANN with any such request, nor did he feel that they would need to do so in the future. There were many other avenues of recourse available to entities that were seeking to protect their [intellectual property and other] interests. He remarked that, in this context, he was not particularly concerned with ICANN. He added that individuals have important access rights, and ICANN is probably the best available option for individuals today.
Jamie Love pointed out that there were proposals that impact individual privacy, which are currently under consideration by the World Trade Organization (WTO). These proposals are extremely intrusive from the point of view of an individual's right to privacy. Such a situation could one day occur at the ICANN. Therefore, it was extremely important that steps be taken today, to clearly spell out what ICANN can and cannot do. In the absence of such specific guidelines, there was always the danger that pressure from special interest groups could be brought to bear on ICANN --pressure which could result in ICANN's Board of Directors seeking to expand its mission, and begin considering issues that were beyond the original intent behind the creation of ICANN. Jamie Love noted that "if ICANN is a plumber, it's one thing; if they are the plumbers, it's quite another."
This concluded the discussion amongst the members of the panel.
The floor was then opened up for questions from the audience...
Hans Klein, Chairman of the Board, CPSR, asked the panel to respond to the comment that there appeared to be an effort to simply maintain the status quo and delay the resolution of important issues in the area of global Internet administration --issues which were becoming more urgent with each passing day. It had been estimated that each day of delay effectively meant another $1 million in NSI's pockets.
Don Telage responded that there was a well-documented history of NSI attempting to generate competition in the ".com" domain. He mentioned that the company had written to the National Science Foundation (NSF) about just this issue a number of times. He added that as of today, there were as many as 12 competitors that were active in the ".com" domain, and very soon a total of 74 would be competing for business in the ".com" domain. He also noted that the issue of competition is not something that involves ICANN. Policy control over the "root" domains belongs to the United States government. It's not NSI's choice. It's not Esther Dyson's business, and nor is it ICANN's business. He said that the development of the "process" was a critical issue, but that we were not there yet.
Paul Scolese responded to Hans Klein's statement by saying that he believed that it was an incorrect and unfair assertion. There were legitimate concerns, and changing the status quo takes time. There was a due process in the United States Congress, that provides an opportunity to get representation.
David Post noted that he was not an NSI shill. He added
that if there was a compelling need to act quickly (e.g. for the future
of the public and global Internet) then one option would be to dispense
with ICANN altogether. However, it is important to realize that the
process of global consensus building would necessarily take time.
He felt that it would be advisable to take the time that was needed to
do it right.
Rick Barry, Mid-Atlantic Director, CPSR, asked whether there was the possibility of achieving real consensus at ICANN.
Esther Dyson responded with "Occasionally! :-)"
David Post added that there was no consensus on issues such as the MP3 intellectual property concern. In such cases, ICANN chooses not to act in this space.
Esther Dyson added that there were two major restrictions on what ICANN could and could not do. The first restriction was due to the "subject matter" involved, and the second restriction was due to the "requirement for consensus." She pointed out that even if ICANN were to obtain consensus in connection with the MP3 case, it would be unable to act upon that consensus because of the "subject matter" restriction. The MP3 case was not a "subject matter" area that ICANN was permitted to get involved with.
Don Telage added that the notion of "self-governance" had been
tried. This had been modeled along the same mechanism that had been
very successfully used several years ago for administering the Internet.
However, several years ago there was essentially a single culture --a small
group of people who pretty much knew each other well enough to make it
all work. The challenge, today, is that the enormous popularity of
the Internet has attracted very large numbers of individuals and entities
(corporations, organizations, etc.) from all over the world. This
has made it necessary to quickly scale up the processes by which the Internet
is administered, to meet the needs of this large, multicultural, and global
user base. We're in the midst of this today, and there are no guarantees
that it will work. Only time will tell, and it may be years...
Karl Auerbach of Individual Domain Name Owners (IDNO) remarked that he was extremely sensitive to the concerns surrounding intellectual property rights. He suggested, however, that the area of intellectual property was completely out of scope for ICANN. By way of describing what a possible definition of a "bright line" around ICANN might be, Mr. Auerbach proposed the following as a possible starting point for the discussion: "If a wrong decision is made, and it has an immediate impact on the ability of the Internet to deliver IP packets, then it falls within the realm of Technical Coordination --otherwise it falls within the realm of Policy." Mr. Auerbach went on to add that he was becoming very concerned about the clamor for achieving "consensus" within ICANN. He stated that in technical areas, consensus was nonsense -- because with being overly concerned with achieving consensus we inevitably end up sacrificing accountability.
Esther Dyson asked Karl Auerbach that if ICANN were to not try and obtain consensus from all parties, "Who would get to vote?"
Karl Auerbach responded: "Anyone who shows up." He added
that the voting process could be handled electronically over the global
Internet. The technology that was necesary to make this possible
was available today --why shouldn't we take advantage of it for conducting
ICANN's business?
Ximena Leroux of CPSR, observed that during the conference there had been a lot of talk about the importance of achieving consensus within ICANN. She stated that consensus by itself was not sufficient for democracy or ensuring legitimacy. Consensus by itself would not be a guarantee that ICANN would do the "right" thing. By way of example, she noted that dictators (e.g. the current situation in Serbia) often found it easy to generate "consensus" within their sphere of influence, and yet the results of their actions were uniformly bad for the general population. She requested the panel to comment on what she saw was an undue preoccupation with trying to obtain consensus within ICANN, to the exclusion of other [possibly worthwhile] objectives.
Don Telage noted that the notion of consensus as a worthwhile objective was consistent with the United States' policy position. President Clinton himself had called for all parties to try and reach consensus in this area. He stated that NSI and other organizations were trying hard to gain concensus for making the global Internet administration process work for a rapidly growing Internet, while at the same time trying to preserve as much as possible of the Internet tradition as possible.
David Post challenged the notion of consensus among Serbian generals. He stated that those affected by their actions as a body were not really able to participate in the process, which was not open. He noted that if you have an open group then consensus has real meaning. He said that he himself had "latched on to consensus," and wanted to slow the [ICANN] train down. He said that if consensus was not a goal, then we could end up with a situation where ICANN might end up having a brutally efficient Board of Directors which extended its mission to include the enforcement of policy. He said that it was very important to ensure that a system of checks and balances was imposed on the decision-making process. When many different sets of bodies got involved with an contributed to the issues at hand, reasonable consensus would inevitably emerge.
Esther Dyson noted that consensus was not about the consensus
of those in power, but consensus of those who would be impacted by the
decisions made by those who were in power. She observed that it is
a fact of life that there are "evil" people in the world. She stated
that "good" people must actively protect their interests by participating
in the decision-making process on issues that were important to them.
She remarked that while there were rules within ICANN which sought to ensure
accountability, she could not guarantee what would happen within ICANN
once the current [interim] Board of Directors were to leave the organizaton.
She noted that if nobody were to watch over what ICANN did, then it was
quite conceivable that the organization might one day change its bylaws
and thereby extend its influence in other areas.
Milton Mueller, Associate Professor at Syracuse University School of Information Studies commented on the "Framework for ICANN and DNS Management" document that had been prepared by the Consumer Project on Technology. He noted that while he was pleased to see that Items 1-9 on the first page sought to limit ICANN's power and influence, he was puzzled by Item 12 on the second page which looked to ICANN for making recommendations "on matters of public interest, such as policies regarding the use of trademarks or privacy of domain registration information." He noted that there also appeared to be an inconsistency between Item 10 (national governments should have discretion over policies relating to us of country top level domains) and Item 11 (for generic top level domains the domain space should be declared a public resource). He said that the notion of ICANN administration of root domains coexisting with a free market mechanism around root domains appeared to be inconsistent.
Jamie Love remarked that in connection with Item 12, with a "bright line" around ICANN, the notion of ICANN taking a proactive stance and contributing to the public dialog on matters of public interest such as policies regarding the use of trademarks, or privacy of domain registration information should not necessarily be a concern. In connection with Items 10 and 11, he noted that the idea was that the country top level domains (.fr, .uk, .us, etc.) would be operated within the guidelines of national policies of the countries in question and with no requirement for ICANN involvement, while the generic top level domains (.com, .org, .net, and new gTLDs) would be declared a public resource and would be operated as such by ICANN. He noted that since NSI did not own a generic domain like ".com" it could not pressurize holders of ".com" domains to fork over 2% (for example) of their revenue as a fee for using the ".com" domain. He stated that the organizations which issue domain names merely provide a service. They did not actually own the domain names that they issued. All intellectual property rights related to any given domain name were held by the domain name owner.
David Post commented that these were complicated issues. He observed that Karl Auerbach's suggestion [made earlier in the discussion] was a good starting point. However, it remained to be seen what the enforcement mechanism for the "bright line around ICANN" actually was. He noted that a pure voting scheme for ICANN was complex, and cautioned against the "tyranny of the majority."
Don Telage said that NSI had never suggested that it owned the
".com" generic TLD.
A conference participant from Rennsaeler Polytechnique Institute asked the panel to what extent it was feasible to expect that boring technical issues could be kept separate from high-stakes business issues. He noted that at a fundamental level technical architecture is simply another form of political power. He asked that even if we were able to limit ICANN to mundane technical coordination activities, so that we no longer cared who served on the ICANN Board, wasn't that at best simply delaying the process of dealing with the tougher social aspects of the many complex open issues?
Esther Dyson remarked that if she were to put on her Electronic Frontier Foundation (EFF) hat, then she could see that ICANN was punting on many complex issues, such as just how far it was appropriate to promote American values throughout the world via the global Internet, the American notion of intellectual property rights etc. She noted that ICANN effectively avoids getting involved in such complex issues by punting. For example, while ICANN would coordinate the assignment of domain names, it would not deal with people who were unhappy with the process or the end result in their own specific context -- apart from issues related to intellectual property, trademarks, privacy, and the controversy surrounding the whois database.
Jamie Love observed that Karl Auerbach's suggestion [made earlier in the discussion] was a good starting point. He stated that there were a lot of other institutions which could add value to the complex socio-technology issues that ICANN sought to punt. He agreed that it was probably not a good idea to dump everything on ICANN to resolve. He suggested that it was unlikely that a Board of Directors that was good at one activity (e.g. technical coodination) would be effective in other areas (e.g. dealing with complex socio-technology issues).
Paul Scolese commented that a number of alternative and more appropriate fora existed which could deal more effectively with the complex socio-technology issues related to global Internet administration.
David Post suggested that many of these policy issues did not need global solutions. He felt that it was entirely appropriate that ICANN should punt on such policy matters. He said that the key concern he had in connection with ICANN was that [with its top-level vantage point] it ws possible for the organization to implement policy issues from a single [root] point on the global Internet. This was contrary to the the preferred messy process that would ensure public discussion on policy issues before a consensus emerged.
Don Telage suggested that the industry itself was beginning to police itself today.
Esther Dyson remarked that the industry should not be responsible
for policing itself. The consumer should be the one doing the policing.
After all the public and global Internet was the epitome of empowerment
of the individual.
Alan Sullivan from Votiv Systems asked the panel to comment on the question of accountability. Since ICANN had not adopted the notion of "first come, first served" whom could domain name registrants approach for seeking redress? Should domain name registrants have to continue to depend upon the benevolence of NSI?
Esther Dyson stated that it was clear that there was an urgent
need for competition in the process.
Craig McTaggart from the University of Toronto Faculty of Law asked the panel to comment on the controversy surrounding the issue of the whois database being put in the public domain, the distinction between individual information versus corporate information, individual's right to privacy and the opportunity to "opt out".
Don Telage stated that the information published by NSI in the
whois database contained information on corporate accounts only.
The information published by NSI was sourced from either the Hoover's database
or the InfoUSA database. No information on individual accounts was
published by NSI.
Peter Deutsch of Shophound, Inc. observed that ICANN was a very young organization, and that it had not yet had a chance to complete doing what it had set out to accomplish. It appeared to him that ICANN was being overloaded by being asked to be all things to all people, and that it was being asked to provide immediate answers to difficult questions on complex issues.
David Post commented that the concern was that "trust" was missing from the ICANN processes. He stated that there were many constituencies that did not trust ICANN at the present time, and that it would take time for the organization to generate trust.
Created before October 2004
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