After four years of existence ICANN is widely recognized as a top-down policy-making body with only a weak basis in legitimacy.  The Markle Foundation expressed the consensus of the Internet community when it said, "ICANN, as it has developed, is seriously flawed as a global institution able to make decisions worthy of deference or to safeguard the public interest...'" [1]

This legitimacy deficit is certainly not from any failure to go through the motions.  In its words and its actions, ICANN seems to employ participative, consensus-based, bottom-up procedures.  The problem is that these words and actions often serve only to create an illusion of legitimacy.  The reality is much different.

The simulation of legitimacy is most frequently observed in matters pertaining to the At Large Membership.  Today these activities are centered in the At Large Organizing Committee (ALOC).  After the Board eliminated user elections this spring, ICANN's former Chair launched the ALOC to "guide and encourage bottom-up efforts ... for meaningful, informed participation ... by a full range of Internet users." [2]  In fact, close observation shows that user input and participation is tightly controlled.

In this issue of the Cyber-Federalist I examine the tactics by which ICANN and the ALOC create the illusion of legitimacy.  The three tactics used most frequently are: Newspeak, exclusionary committees, and participant learning curves.

Newspeak
A considerable portion of ICANN's budget goes to public relations.  Through its spokespeople, press releases, and interviews, ICANN presents issues in the most favorable light possible.  Sometimes, however, ICANN's announcements seem contradictory to the facts.

Orwell's most famous Newspeak phrase was, "War is peace";  for ICANN the equivalent might be "Disenfranchisement is participation."  In Accra the Board rejected its own At Large Study Committee's (ALSC) recommendations to hold elections and instead decided to modify its bylaws to eliminate user representation from the board. The ALSC's Charles Costello of the Carter Center judged that act in no uncertain terms:
*  "The management proposal ... is a declared intent of a palace coup d'etat from within ICANN."
* "[It] is a breach of faith with the founding principles and basic structure of ICANN..." [3]

ICANN's official pronouncements painted a decidedly different picture.  In a board resolution and a subsequent press release, the elimination of voting rights was described as an effort to promote participation: 
* "ICANN Board approves individual Internet user participation"
*  "[The Board] wishes to move forward with energy and enthusiasm to build a meaningful structure for informed participation by the full range of Internet users" [4]

Even as it eliminated a basic mechanism of accountability -- the election of directors, as guaranteed in its founding by-laws -- ICANN used public relations techniques to convince the public that it was committed to a meaningful role for users.  Actions and words diverged.

The web site for the At Large Organizing Committee (ALOC) is another example of Newspeak.  The site claims that the ALOC's work will be public and will be facilitated by a paid staff person.  Yet the reality is different.  Since its launch the ALOC has operated on a private list with no known archives.  The ALOC's staff "facilitator" actually writes the material, and committee members are invited to comment on it.  Contributions judged inappropriate by the "facilitator" have been summarily rejected -- even when they have received support in the committee.  When this behavior was challenged by ALOC members, the facilitator announced the creation of a closed sub-committee from which the more outspoken members were excluded (more on this below.)  Language and reality diverged.  While top-down, closed processes are not per se wrong, it is inaccurate to describe such a process as public and participative.  Such a description exaggerates the legitimacy of a closed policy process.

Committees
Another tool to create the illusion of public input is committees -- and sub-committees, and sub-sub-committees.  Consistent with its mandate to employ consensual processes, ICANN often creates committee to address policy questions.  However, should such a committee propose ideas inconsistent with what is desired, it is not uncommon that a new committee be formed.  Should that committee also give the "wrong" answer, yet another committee may be formed.  And so on.  At each step, the composition of the latest committee may be refined.  By excluding more vocal or better-informed members, ICANN may eventually achieve a committee whose opinion corresponds to what is desired.  This can then be accepted as "public input."

Thus when reformist directors were elected to the ICANN Board, the Board's business migrated to an Executive Sub-committee.  Reform-minded directors were excluded.  Or when the DNSO Review Working Group came up with the "wrong" ideas, the recommendations of another group -- the DNSO Review "Task Force" -- were used.  In both cases the illusion of participation was maintained, but dissenting ideas were filtered out by the creation of new committees.

The At Large Membership process has also seen a succession of committees.  Self-organizing user groups like the NGO and Academic ICANN Study (NAIS) and the Interim Coordinating Committee (ICC) [5] were uncompromising in their commitment to user elections.  Predictably, their recommendations were not adopted.  Then the ICANN Board appointed its own committee to consider the issues: the At Large Study Committee (ALSC).  However, after the ALSC also supported user elections, the Board rejected its recommendations, too.  The Board finally decided to unilaterally eliminate elections.

Today's ALOC manifests similar tactics.  When ALOC members, including this author, included in a collective document language supporting user elections, the ALOC "facilitator" vetoed the material.  In short order a new sub-committee was created, from which outspoken members were excluded.  The ALOC's substantive work then shifted to this restricted group.  Whether this sub-committee with its reduced membership will give the desired results remains to be seen.

This use of committee-formation to filter out dissent is a second tactic to create the illusion of legitimacy.  By ignoring committees that give the "wrong" results and by creating new committees or sub-committees as needed, ICANN creates the illusion of participatory processes.

Participant Learning Curves
When newcomers join ICANN processes, they can generally be counted on not to publicly dissent for about six months.  That is the time needed for someone to understand complex policy questions and to evaluate the credibility of other participants.  During this period newcomers' passive acquiescence and institutional affiliations can shore up ICANN's legitimacy.

Imagine the situation of a newcomer new to ICANN and low on the learning curve.  On the one hand, he/she hears the strong language used by people like Congressman Markey (ICANN is a "failure,") the Carter Center's Costello ("a palace coup,") or law professor Michael Froomkin ("ICANN plays dirty -- it lies.") [6].  On the other hand, the newcomer hears ICANN proclaim its commitment to open processes and sees ICANN accepting input from committees -- seemingly clear proof of its open and participative nature.  As a result, most newcomers cautiously participate in ICANN processes and may support policies proposed from the top.  They give ICANN the benefit of the doubt.

Perhaps this explains the vehemence that comes later.  Committee work representing many people-months' labor may be summarily rejected or ignored. Decisions once made may be reopened and passed to a new committee.  Such has been the experience of members of the ALSC and the ALOC.  After a few such experiences, the newcomer often joins the chorus of critics or leaves in disgust.  By then, however, another batch of newcomers may be invited to participate, and the process begins again.
 
Exploiting the learning curves of successive waves of participants has been an important tactic for the piecewise advancement of top-down decisions.

You Can't Fool All of the People All of the Time
Newspeak, committees, learning curves -- these and a host of other tactics have been the stuff of the ICANN policy process.  While such dissimulation used to cause outrage, it is increasingly a source of wry amusement. As US Congressman Ed Markey said, "Although ICANN is supposed to be a consensus-based organization, the irony is that the only thing it has achieved global consensus on is that it is a failure." [7]

Over time the tactics of illusion wear thin.  Today, ICANN is widely recognized for what it is: a top-down policy-making institution that regulates important areas of the Internet.  It is not particularly transparent, accountable, or representative.  The people who run ICANN may honestly believe that this is how it should be; that is not the issue here.  The issue is that ICANN attempts to make its processes look different than what they are.  Expressions of concern about "participation by the full range of Internet users" are inconsistent with a demonstrated commitment to top-down decision-making.

In particular, the ALOC (or its new sub-committee) is emerging as the latest attempt to create the illusion of legitimacy.  With its staff vetoing language deemed unacceptable, the ALOC seems likely to produce a result acceptable to the ICANN board.  At that point ICANN's board may announce that it has finally discovered the true voice of the user.

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References

[1] Markle Foundation, "A Pluralistic View of DNS Governance: Core Principles for ICANN Reform," Statement for the Record to the Senate Committee on Commerce, Science, and Transportation, Subcommittee on Science, Technology, and Space, Hearing on ICANN (June 12, 2002)  http://radio.weblogs.com/0108486/misc/icannstatementfinal-markle.doc

[2] From the ALOC home page.  (The language is quoted from an ICANN Board resolution.  See note 4, below.)  http://www.at-large.org/  

[3] Charles Costello, ICANN Public Forum in Accra, Real-time Captioning, 13 March 2002.  http://www.icann.org/accra/captioning-afternoon-13mar02.htm  (To find the quote in this lengthy document, search on "palace coup.")

[4] ICANN Board Resolution, 14 March 2002, "ALSC Report and At Large."  http://www.icann.org/minutes/prelim-report-14mar02.htm

[5]  NAIS: http://www.naisproject.org/  ICC: http://www.icannmembers.org/

[6] Froomkin, Michael, presentation at "The Public Voice in Internet Policy Making," 22 June 2002, sponsored by the Electronic Privacy Information Center (EPIC).  http://www.thepublicvoice.org/events/dc02/ .  For Markey quote, see note 7.  For Costello quote, see note 3.

[7] Markey, Edward, (US Congressman), quoted in the Washington Post and Access Global Knowledge, 20 June 2002. http://access.globalknowledge.com/Article.asp?ID=3904