Re: [council] Response to Pelage Audit

["Joe Sims" <jsims@jonesday.com>]

FWIW, I find this analysis generally quite cogent.  It would obviously be
silly to try to measure representativeness for registrars and registries
the same way you measure it for user constituencies.  User constituencies
are by definition going to have to be representative; registrar and
registry constituencies, at least potentially, can be all-inclusive.  So
this is apples and oranges of the worst sort, and quite frankly not the
most important issue facing ICANN by several orders of magnitude.  I would
strongly encourage everyone to spend their limited time and energy for
ICANN on the core issues facing the community in this last month before
Shanghai; internecine carping at each other is not only not productive, but
is directly fueling the initiatives and agendas of others who may not have
the best interests of ICANN or the ICANN community at heart.  The idea
here, after all, is consensus development; its very hard to encourage that
when the parties responsible for that effort are demonstrating that they
are more interested in gaining some advantage over each other.  This is, at
the core, why the ICANN Board and ERC have been so reluctant to accept the
protestations of some  that there really is nothing wrong with the current
DNSO that more staff support will not cure.  Watching this debate, that
assertion is laughable.

Joe Sims
Jones Day Reavis & Pogue
51 Louisiana Avenue NW
Washington, D.C. 20001
Direct Phone:  1.202.879.3863
Direct Fax:  1.202.626.1747
Mobile Phone:  1.703.629.3963


                                                                                                                   
                    "Harold J. Feld"                                                                               
                    <hfeld@mediaacce     To:     "Names Council (E-mail)" <council@dnso.org>                       
                    ss.org>              cc:                                                                       
                                         Subject:     [council] Response to Pelage Audit                           
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                    09/26/02 07:50                                                                                 
                    PM                                                                                             
                                                                                                                   
                                                                                                                   




I understand from ICANNWatch that Michael Palage conducted an audit of
the "representativeness" of the various DNSO consticuencies.  I have
posted the following response, which I share here.

I believe that the basic premise of the Palage audit is flawed.  It
proceeds from a premise that for a consticuency to have value and be
"representative," it must *contain* a substantial numerical
representation and cross section of the effected community, not merely
have the *potential* for any concerned member to join and participate
equally.  This fundamentally misconceives the only way in which the
ICANN consticuency system can function.

While I do not mean to cast aspersions on Michael Palage's efforts, I
would observe that this report has the effect of maximizing the
legitimacey of the Registrar consticuency and its most closely aligned
consticuencies (gTLD and ccTLD registries), while deligitimizing the
consticuencies with the least confluence of common interests (end-users).

Under the assumptions of the audit, only three consticuencies can be
truly "representative" because the universe of entities is clearly
identifiable, sophisticated, small enough to be organized, and with a
sufficient vested interest in ICANN to ensure maximum participation by
potential members.  (1) gTLD registries; (2) gTLD Registrars; and (c)
ccTLD registries.

The rest of the consticuencies have issues of "representativeness"
because they are open ended places for general alignments of interest.
How many busniesses are in the business consticuency as compared to the
total number of businesses in the world?  How about IP organizations or
practitioners? Or ISPs?  And, of course, the one consticuency that
ALWAYS gets blasted for this, Non-coms.

So this has the effect and appearance, bluntly, of an attempt by the
registrars to push end users out.  End users will never be
"representative" by any of these criteria.

The fallacy of this is immediately apparent, since the only other option
is to simply eliminate the end user voice completely.  In modern policy
making, we rely on representation- individuals come together in groups
and the groups advocate.  In addition, in modern nation states, the
government theoretically acts "in the public interest."

But ICANN doesn't have a public interest mandate.  It is explicitly a
"consensus building body."  That means that it derives its decisions
based on "stakeholder participation."  i.e., if you don't show up, you
don't have a voice in the process and you can't complain later.

This ignores the problem that, as a practical matter, it is simply flat
out impossible for 99.99% of the people potentially effected by an ICANN
decision to meaningfully participate.

One alternative is to use the consticuencies as a proxy for the parties
who should be there.  By this logic, we look to see if the consticuency
is representative in the sense that it appears to have the right
collection of interests rather than numerical participation.  This is
hardly ideal, but the alternative is no voice for these interests at all.

If these interests are dismissed, however, you will end up with a train
wreck.  This has already happened with other closed orgs,like the RIRs.
  Anyone remember when the RIRs decided they were going to outlaw
multihoming IP addresses?  Well, turned out LOTS of people who weren't
included in those deliberation cared ALOT because they used this
technique for a number of things that they thought were important and
the insulated interests around the RIR table didn't.

Happily for the RIRs, they pulled back pretty damned fast and have stuck
to their knitting every since.  But ICANN is on its way to making many
such mistakes.  If it moves without a public interest voice because
those voices are deemed "not sufficiently representative," ICANN will
find itself walking smack into a moving train without ever knowing what
happened.

Harold





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