Mike Roberts

I.                    BIOGRAPHY

II.                 THE INTERNET

III.               GOVERNANCE

a.       Is Formal Governance Necessary?

             

b.      Is ICANN Governance?

c.      What is the Right Model?

IV.              ICANN

a.       Contract as Foundation

b.      What Values does ICANN Serve?

c.       Limits on ICANN’s Authority

d.      Public Policy or Technical Management?

V.                 CONSENSUS

a.       Is Consensus the Right Standard?

             

 

Please note that this transcript has been edited and redacted according to the author’s request. 

 

February 16, 2000

THE INTERNET

Q: We were looking over some of your responses to the initial sample questions and we wanted to follow up on those and ask you a couple more general questions on governance.    We’ll just start with some broader questions. What do you think the internet’s greatest promise is?

A: Well, that is a question with a lot of dimensions.  Let me give you the short version.  I think the combination of  very powerful networks and very powerful computers with a lot of our software intelligence built into them gives us the opportunity to leverage human society and work and almost everything that we do and mostly for the better.  By no means entirely for the better, but mostly for the better.  So I see it as a new – in terms of man and his tools – as a new kind of tool with a great deal more power because we are able to put our own intellect into the system in the form of software. 

Q: What do you think is the best way to realize that promise?

A: M y own personal view about that is that the manner in which we have been doing things approximates the best course and speed to be on.  When you have something that is both a technical and a political, economic and social phenomenon of the extent to which the internet is, you’re never going to be entirely sure that you know where you are.  But I firmly believe that one has to be cautious about saying that just because we’ve done such and such in one way over the last period of time that we should keep doing it that way in the future.  The correct attitude towards the internet is one in which we nurture it on a basis of the values that have already been so successful. 

GOVERNANCE: Is Formal Governance Necessary?

Q: I think I asked you this briefly in one of the other emails and we haven’t had a chance to pursue this point but…a formal governance structure.  Is that necessary for the internet?  I believe you said no.  Is that correct?

A: Well, I am qualifying what I am about to say because I think I referred to this in the email and that is that the question of governance requires you to go back to first principles and try to analyze what you mean by the term.  It means a lot of different things to a lot of different people.  It means one thing to people like Larry Lessig in his book about code and constitutional freedoms and so on.  It means other things, for instance, to somebody in the computer industry who is worried about constraints on the freedom of his company to develop new products and services.  If you mean the question to be does the internet need some quasi-legally constituted body that would have the power to, would have some version of the power which conventional governments have to take coercive steps controlling citizen behavior on behalf of the public interest, I don’t think there is any evidence that we need that in the internet today.

GOVERNANCE: Is ICANN Governance?

Q: For the purposes of people working within the ICANN organization, how would you describe the operative understanding of the word governance? What does it mean to you?

A: We, both the board members and the staff people, have said repeatedly that we don’t have any mandate for governance and nothing we do attempts to exercise any such mandate. 

Q: Then what is your mandate?  It seems to me that is a semantic distinction that is not particularly meaningful.

A: The number one problem we have in this area is that people keep trying to reinterpret the government’s White Paper according to their own premises.  We take the White Paper and our contract with the U.S. government very literally at exactly what the words say.  What the words say is technical  management of the domain name system and then it fills in some details underneath that and it injects a transition period for our taking responsibility for the various aspects.

Q: But doesn’t it, doesn’t holding to that line conflict with your recognition that what we’ve got with the internet is a technical, political, economic and social phenomenon on a scale that perhaps we’ve never seen before?  It seems to me that what you just said doesn’t really recognize where we started with you.

A: No. What you said is quite consistent with what I said.  Namely, we don’t believe that our charter deals with those broader issues.  We don’t see the intersection of what we’ve been asked to do in managing and administering the domain name system with those other things.

ICANN: Public Policy or Technical Management?

Q: So you’re saying that technical decisions made about the domain name system and all the things that flow from that – from uniform dispute resolution to trademark questions – that none of that has anything to do with broader policy questions that will shape the political, economic, social, et cetera impact of the internet?

A: At some level, everything is connected to everything else.  Certainly as I said to you in the email, I don’t see anything beginning to approach what a group of law students would characterize as persuasive evidence of such a thing.  We don’t, for instance, have any direct connection to the enactment of trademark law. Beyond that, going back to our charter, as a U.S. non-profit corporation, we’re essentially, not entirely but we’re essentially, prohibited from undertaking political advocacy of any kind.

Q:  Referring to your email, I think it is in response to the first question ‘do we need a formal governance structure at all?’, in your fourth paragraph you talk about the bottom line, that we as students need to ask ourselves ‘can we identify a problem of sufficient importance that it would result in the U.N. Security Council recommending to its 180 nation state members that internet treaties be enacted, then wait ten to twenty years for that to happen?’  That sounded like a very reactive posture.  Is that how we should be approaching these issues? Should we wait for a problem to arise?

A: I think it is easy to be rhetorical about these things and say that you think the internet might be a better place if there were more formal governance institutions.  That’s fine.  In fact, that level of aspiration or that level of scrutiny about what is going on in the internet is completely appropriate.  On the other hand, we’ve been subjected to a lot of off the wall complaints that we’re not paying enough attention to being accountable for governance issues.  My reaction to that is ‘Hey look, the people who do multi-national treaties are over on the East River in Manhattan. It’s called the United Nations.  If you’re serious put your case together and go present it to the U.N.  Or convince one of the major political powers in the world that they should make the case to the U.N.  That’s how this is done in the real world.’  No conceivable interpretation of what one U.S. federal agency has done with a JPA MOU with us, without any legislative sanction at all, could  represent a mandate for governance on a multi-national basis.

GOVERNANCE: What is the Right Model?

Q:  So you think the U.N. is a good starting point or do you think that there should be another structure set up independent of the U.N. to deal with these issues?  I noticed in another response that you made in your email, in response to the question ‘how should the internet governance structure be designed so that it accommodates the international community of internet users?’, your response was ‘using existing multi-national arrangements as a starting point.’  I take it the U.N. is one example of an existing arrangement that could be used a the starting point. 

A: If you go back to, I suppose, the twentieth century history of these things, before the twentieth century, before the U.N., before the League of Nations, there were agreements among the great powers like law of the sea treaties and maritime law, which were useful for them to collaborate on because it avoided people shooting at each other out in the ocean, but if you look at the sixty, seventy-five years, when these multi-national things have become of sufficient importance that everyone agreed something needed to be done about them, it’s been pretty much done within the structure of the League of Nations and the United Nations.  I suppose the departure to that that you might look at – I don’t know if it is relevant or not – is that over the last twenty years or so the major economic powers have coordinated multi-national economic policy without reference to the U.N. but I think that is partly that they didn’t want what they considered to be the lesser nations that didn’t belong at their table giving them advice that they didn’t want. 

ICANN: Contract As Foundation

Q: But is it a real distinction to rely on a contractual basis for what ICANN is doing?  You could look at any national constitution and call that a contractual basis for government. 

A: There is the metaphorical or metaphysical contract - consent of the governed - and then there are actual statutes that control business transactions among parties, which is what I mean what I say contract.  If you look at the documents that have been executed by ICANN, the contracts to which we have been a party, all of them have the paraphernalia of state level contracts in the United States.  They have jurisdiction, all of the proper formats and formulas that go with valid, legal contracts in the United States. 

Governance implies something that isn’t already part of an enacted legal structure, in my mind.  Or at least in the sense – if you look at the Rhonda Hauben stuff, she says ‘you guys are really engaged in unethical and immoral conduct because you fail to recognize your responsibility to make cyberspace a better place for humanity.’  Well, that’s her point of view and that’s certainly not what we’re trying to do.  Whether or not it’s a valid point of view, we’re not trying to do that.

ICANN: What Values Does ICANN Serve?

Q: What is it you are trying to do then? What value do you most want to serve?  Is it competition? Stability? Humanity?

A: A healthy growing internet that serves all parts of society.   That’s the goal that those of us who have been around the internet have, that’s the goal that is set out in the White Paper. 

Q: What does that mean?  All of these things are conflicting – more competition may in time mean less stability of the technical structure of the internet…Can you be more specific than for it to be able to do what everyone wants it to do?

A: When you have a wave of technological innovation, whether you look at the telegraph, the railroad, the movies, radio, television, you never know going into a new wave exactly how society is going to be affected.  You don’t know how it is going to play out.  One of the things that bothers me about Larry’s book is that he tries to make the case that the internet is going to hell because somebody’s constitutional rights might be infringed.  If you go back thirty years ago and look at television, we went through exactly the same scenario of a burst of idealism and altruism at the new communications technology and then decades of unhappiness that it didn’t turn out that way. 

Q: Let me repeat something that Joe Sims wrote in an exchange with Jay Fenello.  This is just a short sentence. I don’t have the whole clip in front of me.  He wrote, “The meta-goal of ICANN is stability, not global democracy.” Do you agree with that?

A: There are four goals set out in the White Paper, of which stability is the first that’s presented and is widely viewed by many people as the most important.  I don’t take a position myself on which ones of the four are more or less important than the others. 

CONSENSUS: Is it the Right Standard?

Q:  As ICANN moves from purely technical questions, as it did in the earliest forerunners of what is now ICANN, and moves closer to questions that are clearly political in nature, what do you make of retaining consensus as a decision making tool?  Is it too manipulable?

A: I’ve said a number of times that the jury is out about that.  I think that the issue here is - regardless of whether you take the liberal or conservative political view  - you have to ask yourself if the internet becomes the primary information resource base for social and political dialogue in human society on a global basis, is it conceivable that a piece of the technical architecture and the administration of that architecture can be left out of direct control of national governments? I don’t think anybody knows the answer to that question.  Magaziner went around the world in the winter of 98 before the White Paper came out and he had a hot time of it because most of the major countries felt that they should do a major economic power get together and just decide on these things.  He convinced them using the leverage of the Clinton-Gore administration that they were better off to proceed on a private sector basis.  It will be pretty easy to determine whether ICANN should continue or not and the way that you’ll find that out is whether as decisions are taken and policies are put in place the community goes along with them or there are major defections. 

ICANN: Limits on ICANN’s Authority

Q: It sounds as if the only legitimate review or check on ICANN’s policies is the threat of defection.  Is there anything, any more formal structure by which these questions and policies can be reviewed? If not, should there be?

A: There was a lot of comment about that in the summer of 98 in constructing our by-laws.  As among by-laws for non-profit technology oriented companies, and I’ve started up several of those companies, these by-laws have very extensive checks and balances in them for looking at the judgment of the directors.  For one thing, there’s the creation of supporting organizations which are given the presumptive power to make the primary recommendations in the technical areas for which they are responsible.  There’s the reconsideration provision in which any decision can be challenged by anyone and the board is required to specifically review such a challenge.   Beyond that, there’s the independent review provision which we’re almost done with and which will create an external body to deliberate on whether in any given situation the board violated its own by-laws.  There are very few, if any, - in fact I’ve never seen or heard of another American non-profit corporation - that has those structures associated with double checking the judgment of the directors.  That doesn’t mean that the verdict over the next several years will be that they are necessarily adequate but they certainly are a substantial step up from any comparable model.