CYBER-FEDERALIST No. 14 8 August 2002
Creating the Illusion of Legitimacy
Civil Society Democracy Project (CivSoc)
The Internet Democracy Project
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...'" 
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."  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.
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:
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:
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.
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)  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
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.") . 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.
You Can't Fool All of the People All of the Time
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.
CYBER-FEDERALIST is a series of analyses and commentaries
The author of the CYBER-FEDERALIST is Hans Klein.
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Created before October 2004