Reflections on Membership

So, what is ICANN? We've referred to it both ways.

Complicated by international aspect. Normal mode of international enforcement capacity is treaty-there is no treaty here.

In fact, it's neither one nor the other. Not really an interest group. Not really a typical, governmental regulatory agency (with all of the due process procedures that go along with that).

Two options:

Interest groups are bad at dealing with the public interest issues that will arise.

Ask, what is it realistic to do in a self governing mode, and what will governments have to deal with-and how will that be determined?

Conclusion: Can't answer these questions until we figure out what entity is.

Lessig: Government-strength power is possible in this non-governmental organization. What to do about that?

EK: As long as there is consensus, this hybrid is fine. Problem is where there is substantive disagreement, conflict within the community. ICANN will get sued.

LL: So, Scott Bradner, what will happen if ICANN doesn't recognize IETF protocal?

Scott Bradner: IETF might not sue b/c it doesn't have any real lawyers! Besides, ICANN doesn't have power to assign numbers or recognize protocols-just to coordinate. But other example=refusal to delegate power over top level domain .tv.

Daniel Kaplan: This is complex and may even fail. We have to be careful to strictly stick to limited functions ICANN has been given. If it moves toward being the "Internet Government," real governments will step in. Second, we should focus more on how we make decisions, not just on how we vote. Otherwise, when there are votes that make people unhappy, governments will come back in. If they want to take the power back, they can.

Izumi Aizu: Agree that we should put emphasis on how to reach a consensus. I work for APIA trade association and I'm also a user. As a trade association, we want ordinary decision-making. But as a user, I think we need more creative solution-buildin on IFWP, today's workshop, etc. Can't use traditional solutions for these new problems.

Andy Oram: If the attentive people see abuses, how will they be able to get attention of the members? How to deal with (or even promote) faction fights?

Ronda Hauben: Different model is public utility-something that people need is at stake. Here, central functions of the Internet are at stake and people will be fighting to grab the power. That's why we need government to sort it out-and not just behind the scenes. This is a precious resource that has been built with a lot of tax money. Government says they are stepping away, but they are still active-just where we can't see them. We need to get what's going on out in the open.

Jay Hauben: Regulatory agency/interest group model too simple. ICANN has been pushed to be something it can't be-a private entity-with no way out if that won't work. What if premises need to be reexamined before ICANN can move forward?

Jean Camp: It might turn out that you can't do this. Example of Tuvalu is a good example of a difficult test, but you might not fail. If courts get involved that doesn't necessarily mean failure. It's a new thing that's worth trying. Consent of the governed, distributed power, protects against worst abuses.

Larry Lessig: Rhetoric about bottom-up democracy on the Internet-but "consent of the governed" is an idea that justifies top down decision-making. Are all top-down requirements bad, or only the (substantively) bad ones?

Daniel Kaplan: One element of complexity is that ICANN both makes policy and enforces it. We are here to try to create something new and make it work. We have some positive examples in several fields. Bottom-up democracy has worked in several technical decision-making areas.

We should think about what ICANN will be in two years. There are two major policy problems now. One, is shortage of IP addresses (maybe not). That will probably be solved by technical means. The other problem is gTLDs. That one will be solved as well. We should think about a system that works for what it left.

Michael Sondow: Transfer of government property to the private sector is a non-issue. Nationalization and privatization happens in other countries all the time. In this country, public utility railroads were transferred to the private sector-without any democratic vote about it. See also telephone systems in South America, etc.

Elaine Kamarck: That's not true-people making the decisions in those cases were elected by citizens.

Michael Sondow: NSF transferred authority over the root to the Department of Commerce, which now has decided to transfer it to the private sector. I consider it a legal process. As for confusion between regulatory agencies and interest groups-Department of Commerce has told Internet interest groups to get together and self regulate. That seems clear enough.

Jay Hauben: There is still government activity (US in conjunction with other governments), so why is the entity confined to being a totally private entity.

Esther Dyson: We are a public entity, just not a US public entity. We are not trying to get the consent of the governed, but to get something that is the creation of the governed. We're trying to limit what we are governing, because now we have no legitimacy. Tuvalu example-there could be a collective decision to filter the domain. A "collective decision" is what a government does. DNS system has been system of acceptance, not filtering. We're trying to build from that consensus style beginning, and to make it more formal, with more explicit agreement.

Scott Bradner: The mechanism by which ICANN is designed to make policy is a bottom-up process: different groups within the constituency can propose (through their own processes) policies and procedures. That gets vetted through the wider constituency of ICANN. Then ICANN board accepts or rejects the recommendation from below (in the normal course of things). There are a couple of other ways in which policy can be developed (e.g. board can ask SO to think about recommending policy in an area, someone else can propose a new idea). But in any case, policy has to be approved by those who will be implementing it.

Larry Lessig: But Board has the power to recognize an SO. If SO "misbehaves" by not enforcing board actions, can't board say they are no longer the SO? Possibility of power that is not bottom up?

Scott Bradner: Not really. Example of Address SO-it is made up of the people who hand out addresses. Doesn't do board any good to recognize ASO that doesn't have any address assigners in it. Would be unproductive.

Jay Fenello: We are formalizing an informal process, while bringing in a lot of new stakeholders. What we are building is a system of contracts, so we understand what our rights and obligations are. That will transcend domain names and IP addresses. What we're really establishing is how these relationships will work. Without contracts, there would have to be legislation all over the world.

Ronda Hauben: Authority of Department of Commerce unclear-Becky Burr has just said "we don't need it." Department of Commerce/ICANN Memorandum of Understanding doesn't address it. Inspector General of NSG has raised this issue.

Will Zachmann: 100 years from now, decisions made here could be significant precedent for the kind of governance structures that are in place all over. Internet has run outside of the boundaries of existing structures. Consider possible ripple effect of what happens here: we are engaging the kinds of questions that will arise regarding human life on the planet.

Will Zachmann: 100 years from now, decisions made here could be significant precedent for the kind of governance structures that are in place all over. Internet has run outside of the boundaries of existing structures. Consider possible ripple effect of what happens here: we are engaging the kinds of questions that will arise regarding human life on the planet. Recall threat assessment we did: individuals were not seen as a threat. Yet there seems to be a pervasive notion that "letting individuals loose" as members is a bad idea-because big countries or companies could stack the deck somehow. We should consider that Netizens (potentially everyone on earth) should elect at least some of the directors: no fees, no qualifications.

Jie Liang: Now need a rule for distributing scarce resources. Should we only have one party, or multiple parties that balance each other in making these decisions.

About the Chinese government: it's more complicated than it looks. The Internet is becoming more important (2.5 million users).

Larry Lessig: Idea of "distributing a resource": there seem to be two models for this. One, that ICANN is just coordinating, based on SO recommendations. The other, that ICANN is resolving policy disputes (when SOs disagree, etc.).

Scott Bradner: ICANN will have to worry about the rules for IP address allocation. The Board will look at that-not just in light of ASO recommendations.

Larry Lessig: So what board does is balance the various interests.

Scott Bradner: And examine the balance the ASO achieved in light of the concerns of the other SOs and at large members.

Larry Lessig: What if board disagrees with the values that the SO balanced? Can they decide based on any values they pick?

Scott Bradner: They can decide for any reason.

Larry Lessig: This is the type of example that doesn't sound so bottom up anymore-if the Board has the power to define the values. That seems like an important governing function.

Scott Bradner: Yes, if SO doesn't suggest acceptable policy, Board can create its own (in extreme circumstances). But it may be difficult to enforce, other than through contracts (yet to be determined).

Larry Lessig: About these contracts-some of them will be enforced in the code itself (instead of something a court will enforce).

Scott Bradner: Example of ARIN contract with ICANN for assignment of IP number. ICANN will also have contracts with those who want addresses directly from ICANN. Contracts will include rules of conduct.

Johan Hjelm: That sounds like a regular private multinational company, which has companies regulating what its distributors can do-what's the big deal?

On governance question: The role of the SOs makes the appointment of at large directors more important, and user organizations should be involved.

Recommends ombudsman.

Tom Lowenhaupt: Head of the Communisphere Project. There should be a means for people who are not on the Internet now (and may never be) should be represented on your board too. There may be collateral damage.

Daniel Kaplan: Considering ICANN's role, what role would off-line community fill?

Tom Lowenhaupt: Everything done on the Internet has impact on entire community.

James Forest: There are many issues that ICANN should be concerned with-access, content, . . . . ICANN is entering into partnership with the Internet community-with certain roles and responsibilities for ICANN and its constituencies. The constituencies include educators, parents, children, more.

Izumi Aizu: Some of our conversation has focused on negative side. We should also think about the advancement side-how to promote the Net.

Jean Camp: This is just about names and numbers now, but it will get more interesting. ICANN won't just become a boring organization-questions will only become more interesting.

James Forest: This "regulatory agency" will be making decisions with international implications (economic, political, social). It may be destined for failure, or for metamophasis.

Daniel Kaplan: ICANN has been built with defined mission and once policy is sorted out, it will be boring. Lets start with today, and not try to build membership that is perfect democracy. One way to deal with complexity may be to let members define themselves as active or passive members.