|Comments on Cyber-Federalist No. 11: The Future of Democracy in ICANN Email.|
17 September 2001
In a marketled approach you need customers' validation; in a democratic approach, you need citizens, hence government relationship Recent evolutions in Icann seem to ignore both aspects/conditions.
|Mike Roberts (former President and CEO of ICANN)
19 September 2001
"Misstatements concerning IFWP"
There are misstatements of historical fact concerning IFWP in Professor Klein's recent CPSR post to this Forum which I believe require correction. I was a co-founder of IFWP, a member of its Steering Committee, and, through the generosity of Educom, a co-fundor of its expenses, and thus have first hand knowledge of the events in question. Others with similar background, including Professor Tamar Frankel (IFWP Chair), Barbara Dooley, and Marilyn Cade, are also potential sources of information concerning IFWP history.
In April, 1998, as the Magaziner interagency committee was preparing to publish the government policy document on management of the DNS that has become known as the White Paper, a number of individuals with Internet provider and policy affiliations who had been involved with the White Paper process discussed the need for a means by which the affected community could undertake and sustain a dialog about the formation of a non-profit organization to seek recognition from the government to manage the DNS and related functions. Subsequently, there was an organizational meeting at Reston, Virginia in late June, a second meeting in Geneva the third week in July, and two regional meetings in Singapore and Buenos Aires in August and early September.
On a parallel but separate track, Jon Postel, the IANA, was preparing to submit his own proposal to the Department of Commerce for recognition of a to-be-formed nonprofit corporation to undertake the tasks laid out in the White Paper. To assist him in this work, he engaged the [pro bono] services of Jones Day Reavis and Pogue (JDRP), whose lead partner on the assignment was Joe Sims of the JDRP Washington office. He also formed a small advisory committee of well known Internet experts to complement his personal worldwide network of colleagues and associates engaged in DNS work. Jon met, usually telephonically, with Jones Day staff and with his advisory committee on a weekly or more frequent basis throughout the summer and early fall before the illness which resulted in his untimely death in mid-October. Jon attended only one IFWP meeting, the one which was held in Geneva in conjunction with INET98, but he made himself accessible to hundreds of individuals in person and via email as planning progressed.
One of the principal tasks of the summer for Jon and his advisors was to fashion a set of Bylaws for the new corporation that would be responsive to the mission assigned to the new private sector corporation. Jones Day provided initial drafts to Jon in May and June that were intended to be a structural outline of provisions that would meet the statutory requirements of the the typical non-profit corporation law of American states, and also encompass the major requirements of the White Paper. Early in the summer's work, a procedure was started in which the most current version of the IANA proposed Bylaws was posted for comment. From June until the time of recognition of ICANN in November, the IANA-proposed Bylaws went through seven formal drafts. They have been further revised a number of times subsequently as ICANN's organizational structure has evolved. ICANN was incorporated in the State of California in late September immediately prior to submission of the IANA proposal to the Department of Commerce. The Initial Board met for the first time and the corporation commenced operations on October 25, 1998.
The CPSR document says, in paragraph 3, "The ALSC ignores the agreements hammered out in the 1998 International Forum for the White Paper (IFWP), in which the U.S. government, the Internet user community, and a wide variety of industry, government, and non-commercial groups agreed on a set of bylaws for ICANN. "
This statement, and amplifying text later in the document, mischaracterizes the events of the summer and fall of 1998 leading to the formation and recognition of ICANN.
(1) the U.S. Government took no formal role and a very small informal role in the development of ICANN Bylaws during the public comment and dialog period from June through the September 30 deadline. See Magaziner statements in open sessions at INET98 and IFWP-Geneva re his desire that the community develop a consensus proposal and do so rapidly so it could be submitted to Commerce by a September 30 deadline. In addition to his publicly stated desire for the community to do the work, there were legal reasons why an Administration official could not be actively involved in the proposal development process.
(2) The Steering Committee of IFWP, as part of its initial operating agreements, agreed that its sole purpose was to provide a forum for dialog and debate and to pursue public education and outreach to the extent that its very limited resources allowed it to do so. This was for the obvious reason that there were and had been many political factions involved in controversy about the future of the DNS. Regardless of what the Steering Committee might conclude on any given issue, organizations and groups with political convictions and leverage would pursue their own goals. The Steering Committee had little hope of controlling any of the political actors, and indeed, most of its members did not even have sanction from their organizations to speak officially. During the latter part of the summer, there were repeated attempts by a minority of an enlarged Steering Committee to obtain endorsement or some variation on endorsement of specific proposals on behalf of the Steering Committee. Ultimately, disagreements over this point led to dissolution of the Steering Committee in September.
(3) At no time did Jon Postel agree to accept Bylaw provisions other than those he and his advisors and supporters had agreed on, although he was very interested in the extent to which the community dialog could produce consensus from what had been a highly contentious prior situation. In the latter part of August and into September, there were numerous drafts of competing sets of Bylaws circulating, with the major variants being those of IANA, Network Solutions, and what became the Boston Working Group (BWG). The IANA and Network Solutions differences were worked out in meetings in late August. The differences with the BWG were not worked out, and the BWG submitted its own proposal for recognition.
Ultimately, five competing proposals for recognition were submitted to the Department of Commerce by the September 30th deadline. See <http://www.ntia.doc.gov/ntiahome/domainname/background.htm>.
(4) In late October, the Department of Commerce advised the University of Southern California's Information Sciences Institute, the organization through which the Postel proposal had been submitted, that it was prepared to enter into a contract with ICANN to perform the tasks outlined in the White Paper provided that an effort was made to resolve a number of issues that were set forth in an October 20 letter. These included efforts to close the differences which existed between the Postel/IANA proposal and the BWG/ORSC proposals. Subsequently, Esther Dyson, the newly elected Chair of the ICANN Board, arranged for telephone conferences with members of the ICANN Board and the BWG/ORSC groups which did result in some accommodation to the views of these organizations. The revised draft Bylaws were adopted by the Board on November 6 as the corporation's first formal set of Bylaws. They were further revised on November 21st in connection with finalization of the Memorandum of Understanding with the Department of Commerce.
(5) The Dyson letter to Commerce of November 6, see <http://www.icann.org/letter-pr06nov98.html>, transmitting the adopted Bylaws, has the following quotation, which has been lifted out of context by Professor Klein and other commentators on this list to support a claim that the ICANN Board made a "commitment" to a directly elected group of At Large Directors, " The bylaws now make it clear that the Board has an unconditional mandate to create a membership structure that will elect the At Large Directors of the Board, as proposed by the BWG and some other commenters." However, the same letter also contains the following text, in two different places,
" We have carefully considered this issue, and concluded that the structure proposed in the October 2 bylaws -- with four separate membership organizations each electing Directors and thus creating an ICANN Board with a balanced representation of the various Internet technical, commercial and user constituencies -- is both appropriate and supported by the vast majority of Internet stakeholders."
" We will move directly to devise a workable membership structure and will seek broad input on how this can be best done."
(6) With regard to binding commitments of the Board to At Large, as set forth in the November 6 Bylaws, the operative language is contained in Article VI, section 9(c):
"At Large Board members other than those serving on the Initial Board shall be elected by a process to be determined by a majority vote of all At Large members of the Initial Board, following solicitation of input from the Advisory Committee on Membership described in Section 3 of Article VII and other interested parties and consideration of all such suggestions. At a minimum, such a process shall consist of nominations from Internet users, industry participants, and organizations, and should give consideration to such nominees. Such process shall call for election of At Large directors by one or more categories of members of the Corporation admitted pursuant to qualifications established by majority vote of the At Large members of the Initial Board. Before any nominee is added to a ballot of nominees submitted to the members for their consideration, the Board shall establish (i) a process to determine if support for such nominee is adequate to put such nominee's name on the ballot and (ii) qualifications a nominee must have in order to be submitted to the membership."
(1) There is no support in the historical record for the assertion that "IFWP" produced agreements, much less consensus. The discussions at the four meetings sponsored by the IFWP resulted in changes, many of them improvements, in draft proposals that circulated during the summer of 1998, but there was no convergence on one proposal and in fact several competing proposals were submitted to Commerce at the end of September.
(2) Changes to the draft [ICANN] Bylaws submitted by Jon Postel at the end of September were instigated by the Department of Commerce as a way of resolving questions raised in the Postel proposal in terms of its responsiveness to the White Paper requirements, and also in an effort to close the differences among the competing proposals submitted to it, thus potentially broadening the base of community support for ICANN. These changes were the result of private negotiations among the competitors and the Department of Commerce and were, notably, conducted without opportunity for public comment or participation.
(3) The most significant commitment of the ICANN Board, made in the Dyson letter to Becky Burr on November 6th, was: " We will move directly to devise a workable membership structure and will seek broad input on how this can be best done."
As recorded in subsequent Board minutes and meeting archives, that process - "devise a workable membership structure" - has occupied the attention and consumed the resources of the Board and the community continuously for the entire three years of ICANN's existence and remains a challenge to resolve today.
- Mike Roberts
21 September 2001
This is an extremely useful posting. Many thanks for making the effort to write this out.
(For those who missed it, Mike's message refers to the recent "Cyber-Federalist No. 11: The Future of Democracy in ICANN: A Critique of the ALSC Draft Report.")
Mike has illuminated what is, in the opinion of many, the key issue in today's debate: As a condition for the "privatization" of the DNS in 1998, what commitments were made for user representation? And: Do the recommendations of the ALSC respect those commitments?
I think we all need to understand those commitments. I hope to post another focused piece on this as soon as I can. For now, I am grateful to Mike Roberts for articulating his perspective on the events of 1998.
On a related note: perhaps it is not for me to say, but my "misstatements" don't seem very significant. :-) OK, the events that I call "the IFWP" were really "the IFWP and the subsequent Department of Commerce brokered compromise among the key stakeholders." Etc. Overall, it seems that the analysis withstood some tough scrutiny!
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."
The questions remain: What commitments were made, and are today's ALSC proposals consistent with those commitments?
My answer is: The commitments made in 1998 derived from the BWG's vision of user involvement; that was an open and inclusive vision. The ALSC's proposals are not consistent with such commitments.
Given the quality of Mike's contribution, I will try to craft a more detailed account of what happened in 1998. The historical record here is very important.
Created before October 2004