Why A General Assembly Matters

By

David R. Johnson

Wilmer, Cutler & Pickering

This room represents a collision between previously separate worlds.

Technologists

Trademark Lawyers

Big Businesses

Entrepreneurs

Non Profits

Academics

Governments

The question presented is whether the collision will produce a destructive explosion or, instead, cross fertilization and a new emergent form of order for a global medium.

To ask whether the General Assembly matters, and why, is also to ask “What IS the General Assembly” -- and, also, inescapably, what is the Names Council, the DNSO and the ICANN Board?

The original idea of the GA was that of a body with no barriers to entry, reflecting all of the stakeholders that might know enough or care enough to come together to discuss domain name policy.

It was not just a “constituency of last resort” for the disaffected whose interests were not reflected in a formal designation of “constituency” status by the ICANN Board.

It was everyone involved in domain name policy -- all the constituencies and everyone else. (Indeed, the “Paris Draft” model would allow constituencies to freely form -- thereby providing flexible assurance that all stakeholders had a voice)

It didn’t itself select Names Council members (that was left to organized constituencies) -- but that wasn’t viewed as particularly significant, because the Names Council was just a “steering committee” -- not a top down legislative body.

It nominated (rather than directly electing) candidates for the ICANN Board, but, again, even selection of ICANN Board members to represent the DNSO was not viewed as that significant -- because the Board could only act (except in emergencies) based on recommendations reflecting a documented consensus among impacted stakeholders -- resulting from a process that was hoped to occur within the General Assembly itself.

So, from the outset, the General Assembly has been the most important -- and, unfortunately, also the least effective -- institution in ICANN.

Where does this concept of documented consensus come from? And why is IT important?

Well, when you think about it hard enough, it becomes clear that documented consensus among impacted stakeholders is the only possible source of legitimacy for ICANN-- and the only source of power it can exercise (other than the “hold up” power to make new applicants for registry or registrar contracts agree to anything at all as a condition for entry into business! -- not exactly a legitimate source of power). Let me explain.

ICANN’s power -- and core mission -- comes from just 2 pages of the new (and old) gTLD contracts. Look carefully at 4.1.1 and 4.3.1. Every registry and registrar must promise to comply with Consensus Policies. And these must be “demonstrated” by not only action of the Board, and a recommendation of the Names Council but also by a written report.

The word “consensus” has been abused a lot. And some think it is a fuzzy-minded concept. But what it means is that almost everyone substantially impacted by a policy is willing to go along with it -- and that opposition is so minor or irrational or limited to those without a substantial stake that it can justifiably be overridden.

Consensus is a something that has to be assessed in the context of a particular policy and a particular set of stakeholders. But it is a VERY concrete idea. And it will certainly be tested in very concrete cases -- as the Independent Review Panel decides whether any particular attempt to enforce a policy against reluctant registries or registrars is supportable under this key contractual language.

It’s a deal that makes sense. It’s the only deal that makes sense. No registry or registrar business would ever willingly or rationally agree to do whatever a future Names Council or ICANN Board, however elected, might decide! No impacted party would willingly or rationally agree to be BOUND to comply with unknown future policies just because (even if!) they were developed in a transparent and open process -- or just because they are supported by alleged “experts”.

The power of ICANN comes from this very simple contract. The legitimacy of ICANN also comes from this contract. Because those who are bound to follow ICANN policies have agreed not to oppose those most impacted parties can go along with, ICANN can claim that there is a good fit -- a congruence -- between those who make the rules and those who are impacted by them. It doesn’t have to claim to be a democratically elected world government. It doesn’t have to claim to be “expert” about the non-technical policy matters it regularly decides. It simply has to base its policies on a clear showing that those bound by and impacted by them are willing, at least grudgingly, to go along. And, most importantly, it doesn’t have to make centralized policy at all unless there is general agreement that there is a need for centralized policy -- so the concept of consensus provides a good answer to the key question when we should seek central control and when we should allow decentralization and diversity and market competition.

You’ll notice there is only one actual “consensus policy” currently mentioned in the contracts. And that’s the UDRP -- sort of a grandfathered deal that was worked out before the full mechanisms for development of consensus policies -- and enforcing them via contracts -- had been worked out. That might reflect the lack of any need for policies even on the minimum standards needed to protect interoperability of the domain name system. But, actually, more accurately, it reflects a lack of work by those in this room to engage in the true dialogue needed to find commonly agreeable policy solutions to some real problems.

I said the (a) General Assembly is important. I didn’t say it wasn’t broken.

So the question we all have to ask ourselves today is: are we going to give up on the whole idea of consensus policies?

Does the recent decision by the ccTLDs suggest that we’ll have a whole set of new “supporting organizations” with every interest group (well, every group powerful enough to insist on getting an SO) will whisper directly in the Board’s ear -- producing an ICANN Board that acts like a global legislature?

We are clearly on the cusp of a major institutional decision.

But before you turn the General Assembly into just another “constituency” -- albeit for the underrepresented group of individual domain name holders. And before you throw it out altogether in favor of an “at large” “membership” -- no matter how openly formed and interactive. And before you give up on the idea of consensus policies -- consider the consequences.

There is no way that the governments of the world will allow ICANN to pretend to be the regulator of the domain name system, based solely on the fact that its board consists of good and smart people, or based solely on the fact that its meetings are open, or even based on the possible (unlikely) fact that its Board is elected by global, democratic means.

There is no way that the registries or registries -- or anyone else for that matter -- will agree to follow any and all policies any future Board of ICANN may adopt. It’s just not a “social contract” anyone would accept -- unless they thought they could control most of the seats (which would be a long term delusion even for the presently powerful factions).

And, without any contractual or other power to simply force its policies down on others (I’ll give the why Louis matters talk later), ICANN has neither power nor legitimacy -- and this bold effort to keep the global internet out of the clutches of stifling local, governmental regulation will surely fail.

So I challenge you all to do three very important things -- while you are assembled in this most important body of ICANN, this General Assembly.

1. Create a consensus policy on something. Anything! I think it could be one reflecting the need for a minor mid-course correction in the uDRP. We need a real specimen to show that the collection of all impacted parties, meeting through the ICANN process, and talking together -- not just waiting for the Board or staff to make top down decisions -- can agree on something (and that all can agree to be bound to go along with that something, even if they individually lack enthusiasm, precisely because they mostly all agree upon it).

2. Encourage the Board to establish a “thin” ICANN -- one that sets minimum standards on issues that really matter to interoperability and then gets out of the way. A “thick” ICANN -- one that purports to be the sole semantic gardener of the name space, will face irresistible (and unsatisfiable!) demands that it become “legitimate” by somehow getting “elected” to “represent” all the parties in the world who might be impacted by decisions about what strings, what business models, what business terms, are to be allowed. We just can’t collectively manufacture that amount of power or legitimacy. In contrast, a “thin” ICANN will not claim to be the SOLE GARDENER. It will be more like a TRELLIS that allows many different kinds of plants to grow and prosper -- allowing users ultimately to make the choice of which to enjoy.

3. WATCH closely when the Names Council meets (this afternoon) and when the Board meets (tomorrow and the next day). Ask yourself whether the Names Council is behaving like the “steering committee” it is supposed to be. As yourself whether the Board is trying to foster the development of real consensus policies -- or reserving to itself the right and duty to make policy based on their own judgment (to be sure the best judgment of dedicated contributors), as if they had been elected to serve as a deliberative legislature on everyone’s behalf. If they show these (understandable) tendencies to think they don’t have to demonstrate consensus by means of documented process that occurs in discussions among stakeholders -- remind them and yourself about what the contract -- the only source of ICANN’s power or legitimacy -- says.

The consensus policies that the General Assembly process could create would be valuable things indeed, even if few in number. In a democracy, when you have a disagreement, you count votes (hopefully accurately). In a consensus-based system, in the face of disagreement, you must begin a direct dialogue among the impacted parties. That’s the kind of process that let’s everyone concerned find the highest ground.

Even if we all split up into separate “supporting organizations” or differing types of “members” -- we’ll still face the key question: do we want to try to talk together as a group, to find commonly acceptable solutions?

So even if we abolished the DNSO and the General Assembly altogether, we would have to re-invent them. Because, given the collision of worlds I talked about at the beginning, there is just no way we can have any power or legitimacy unless we get the “consent of the governed”.

In cyberspace, it turns out the “social contract” is a real contract -- making real people promise not unreasonably to oppose the shared views of similarly impacted parties -- and REQUIRING us all to collaborate (in working groups and task forces) to deliberate together (and reach out to everyone who isn’t here) until we can find and document solutions (to problems that need centralized solutions) upon which most everyone can agree. We really can’t succeed if we go into “seat claiming” or “power brokering” mode. We really can’t, legitimately, dodge this duty by purporting to “elect” a set of representatives to do that deliberation on our behalf -- because those who don’t like the resulting rules will always be able to claim they were excluded and, more importantly, will be able to avoid any duty to comply with them.

The General Assembly has always been envisioned as the only place where we can make the specifics of that shared contract real. Don’t give up on it. Don’t give up on the ideal of real consensus policy-making. It’s the only legitimate social contract we have -- or are likely to get. It’s a long-term relationship contract that we all must constantly work to modify and adapt over time. It’s time we started to do just that.