[council] Comments on draft 6

["Harold J. Feld" <hfeld@mediaaccess.org>]

Regarding Board Composition, At Large, and Transparency.

This is my own personal opinion, as someone who has vigorously supported 
the At-Large and the position that the majority of the board should be 
elected.  The constituency is still developing its position.

The issues of Board composition, At Large, transparency, and 
accountability are all tied together and cannot be considered 
seperately.  For example, an elected at large may be entirely 
unnecessary if there are other ways in which the actions of the Board 
are constrained, ICANN is considered accountable for its actions, and 
affected stakeholders have confidence their views are heard.

Contrary to what some seem to believe, the election of the majority of 
the Board was not meant as some exercise in global democracy or a faith 
in popular wisdom over technical expertise.  Rather, it reflected the 
lack of satisfactory transparency and accountability mechanisms inherent 
in ICANN.  Indeed, at the inception of ICANN in 1998, the guarantees 
given to the general public to trust ICANN were (a) an intent to create 
an elected at large, (b) an understanding that ICANN would not alter the 
bylaws to suit its needs of the moment, so that the protections granted 
in the bylaws would constitute a "constitution" for ICANN, (3) and 
independent review panel, and (4) operation of U.S. antitrust law.

To date, none of this has proved an effective accountability mechanism. 
 The increasingly dismissive attitude of staff and directors to the 
hostility expressed in the few open public fora, such as the public 
meeting Accra, add to the feeling ICANN has increasingly become a 
fortress from which the public are excluded.

I see three mechanisms for redressing this and rebuilding popular 
confidence in ICANN.
1) Make ICANN directly accountable to a government body- this could be a 
US government body or an international government body, such as the ITU.  
This approach has several flaws.  What is a satisfactory government 
body?  The US DoC is clearly unacceptable to the vast majority of the 
world.   The ITU has been named as a possibility.  Alternatively, the 
current GAC could move from being and advisory committee to the ultimate 
ICANN decisionmakers.
Even assuming a proper governmental or intergovernmental overseer to 
ICANN can be found, how does one craft a relationship between ICANN and 
its oversight body to keep ICANN flexible (a goal of private sector 
management) while still accountabel to world governments?  
My own conclusion is that this may prove insurmountable.  On the plus 
side, it is a traditional structure and perhaps the most legitimate in 
that it does not reuire much by way of experimentation.  Frankly, I have 
heard grumblings within my own constituency that, at this point, the ITU 
would represent a significant improvement over ICANN.  

2) An elected ICANN board. This is clearly not in the cards, so I will 
spend little time on it.  It would resolve certain problems of 
accountability and oversight, although it opens the door to a new 
potetial set of problems.

3) An ICANN with genuine transparency and accountability mechanisms. 
 The key problem here is that ICANN has proven incapable of satisfying 
its own bylaws on issues of transparency.  Key resolutions for Accra, 
for example, were not posted until hours before the vote.  No mechanism 
exists to determine who is speaking to staff about what and how that 
influences policy outcomes.
Creating such accountability structures is an enormous undertaking, 
particularly since there is no enforcement mechanism.  Unlike an 
administrative agency in a country, one cannot sue ICANN for failure to 
follow its procedures or convince its funders to cut off funding unless 
it reforms.  Thus, even if we manage to create structures that look 
effective on paper and they are implemented, trust in them is entirely 
dependent on the Board and staff following them.   The feeling among 
stakeholders that I talk to is that there is no reserve of trust to draw 
upon.

All of this leaves me, I will confess, profoundly depressed about the 
future of ICANN reform.  I think 3 is probably the best option.  In 
which case there must be some formal process for examination of books 
and tracking decisions.  In the Unite States, for-profit public 
corproations have a number of protections for stockholders (here read 
stakeholders) which may be worth considering and copying: access to 
financial statements, a right to force votes on certain key issues and 
to introduce matters for vote by shareholders.
I am concerned that simply establishing an ombudsman, as appears to be 
propsed, will be perceived among disaffected stakeholders as not merely 
ineffectual, but insulting.  Disaffected stakeholders feel excluded from 
the ability to _impact_ decisionmaking.  A person hired to sooth 
complainants and perhaps address specifif issues in a narrow context, 
will be viewed as an ultimate statement that the Board either does not 
understand the nature of stakeholder disatsifaction (where stakeholders 
are dissatisfied) or is deliberately dismissive.

In this context, I wish to address a frequent objection: that when the 
time comes to do detail work at ICANN, no one shows up. 1) Part of the 
problem is the feeling of disaffected stakeholders that it is impossible 
to effect outcomes at ICANN, so why bother showing up?  Assuming you 
care about an issue (say, domain name transfers) why show up if anything 
you say is going to be ignored?  Alternatively, even if you show up, 
since the recommendations can be chanegd at any level of ICANN as the 
decisionmaking progress moves forward, and can be materially altered by 
staff at implementation, why show up at the task force or working group 
level?  Most stakeholders have extremely limited resources, and many 
interests outside ICANN.  They simply cannot _afford_to play at every 
level in the hope that this time (as opposed to any other time in their 
experience) they will have an impact.

2) The _right_ to participate is an importnat legitimizing agent, 
whether exercised or not.  For example, in many countries with popular 
elections, voter turnout is quite low (in the U.S. it has dropped below 
50% of eligible voters, if I understand correctly).  But we would not 
regard this as an excuse to abolish elected governments.  It is the 
_ability_ of people to participate, regardless of whether they actually 
do participate, that gives a system legitimacy in the eyes of the 
governed.  Many regulations are made by a variety of agencies in the 
U.S. and in the state of Maryland that will effect me personally. As 
long as I have the option to participate, I can't complain too hard if 
something I dislike becomes law.  After all, I could have participated 
had I wanted to do so.  But if I have no opportunity to participate, why 
should I regard a rule made as legitimate?

I appologize for the length of this posting and its abstract nature.  I 
have wrestled for some days to try to bring it down to something more 
concrete, and failed.  I would very much like the process to succeed, 
which I feel it cannot do if root problems of dissatisfaction are not 
addressed.  Hopefully, those more clever than I will see some way of 
bringing these down into more concrete recommendations.

Harold Feld

An addendum:
Although it is not under review, and I missed the meeting at which this 
was discussed, the document lists security and consumer protection as 
those areas of ICANN most subject to mission creep.  I will express a 
concern that _any_ aspect of ICANN is subject to mission creep.  For 
example, the IPC attempted to make control of content a consideration in 
the .biz contract negotiations.  From what was reported out, this was an 
attempt to extend a DMCA-like scheme of take down to a domain name, 
rather than a business, clearly an extension of ICANN authority.  While 
ICANN staff are appluaded for resisting this invitation to mission 
creep, it highlights what I tried to say on the first call: any area of 
ICANN authority is subject to mission creep where a constituency feels 
that its concerns can be addressed through an ICANN process and lobbies 
to that effect.  This will naturally cause the other constituencies and 
stakeholders to pressure ICANN on their issues (e.g., price control, 
"slamming" issues). As such, I would recommend listing specific areas 
(such as consumer protection) and changing the recommendation to a 
general caution.