[wg-review] Some background for the lay people.

[Sotiropoulos <sotiris@hermesnetwork.com>]

The following is excerpted from a piece by Jonathan Zittrain entitled 
ICANN: Between the Public and the Private, Comments before Congress.
I'm sure many of you will find this helpful and interesting.  If you are 
interested in reading the entire document, please refer to:
http://www.law.berkeley.edu/journals/btlj/articles/14_3/Zittrain/html/text.html

Sotiris Sotiropoulos
           Hermes Network, Inc.
          
"Consensus is not demonstrated simply by assent of self-identified 
stakeholder
  corporations and other organizations. ICANN's bylaws provide that half 
of its
  board must be selected through an "at-large" electorate.42 Apparently 
this electorate is open to anyone who wants to sign up. A fear is
  that the only people who will sign up are the people who have direct 
stakes
  in the process, and therefore the process might become a race to the 
ballot
  box to see who can get in the most votes. In some sense, that is a 
normal election.
  But in another sense, it is a recipe for capture if a number of the 
interests
  that ICANN should be looking out for-perhaps the greater interest of 
the public
  at large-are not joining ICANN by becoming members, or members in 
representative proportions.

Jim Fishkin of the University of Texas is fond of telling the story of what
  happened when a poll concerning who would be Time's "Man of the
  Century" was put to the world through an open Internet poll. Mustafa 
Kemal
  Ataturk-hero of the modern Turkish state-emerged as the leader in all 
categories,
  eclipsing Bob Dylan as the best entertainer of the century and 
Einstein as the
  best scientist. A last-ditch effort was apparently mounted by Greece 
to vault
  Winston Churchill over Ataturk as best statesman.43

Assuming the vote was not fraudulent-i.e. no one voted twice-was Ataturk 
deserving
  of the best "entertainer and artist" mantle, or had there been capture
  in the election? In the absence of a framework of campaign finance 
laws, electoral
  abuse laws (and commensurate penalties), the specter of one entity 
paying a
  grassroots lobbying group to create the "astroturf" of public 
sentiment around an issue or candidate through vote-buying cannot be 
discounted. This
  is a prospect that is particularly threatening with ICANN so long as 
ICANN's
  work is abstruse and technical even if it is political as well. 
Understandably,
  would-be voters may not hasten to register as members or exercise 
their votes
  for domain name management responsibilities, even if they may 
legitimately wish
  to be represented in the process either by an elected representative, 
or an
  appointee. Thus are the decision making activities of the FCC, the 
Supreme Court,
  and the Commerce Department legitimized-perhaps more than they would 
be under
  criteria of "democratic representation" were their leaders chosen
  by direct election.

It is likely that ICANN will have to move forward with some form of 
electorate
  if only for political acceptance. Accountability to an open membership 
is a
  way of tethering ICANN so as to lessen the need for direct government 
intervention.44 Currently ICANN appears to be moving toward adoption of 
an Electoral College
  model in which an open membership votes for a council, that in turn 
votes for
  at-large board seats.45 This may be the worst of both 
worlds-indirection that does not lead to any more
  representation or stability, and lessens the value of an individual 
vote in
  terms of direct influence over the organization. A possible outcome 
will be low public participation coupled with high registration rates 
among warm bodies
  motivated (or paid) by distinct interests.

A number of groups led by the Markle Foundation, and ranging from the 
Berkman
  Center to Common Cause to the Carter Center, have recently joined (or 
re-joined)
  the fray.46 This participation will be judged on the basis of how well 
it helps ICANN fashion
  an electoral system from something other than simply reasoning from 
first principles.
3. Due Process
Due process is another area of ferment. The idea is to ensure that
  people have a formal opportunity to be heard and afforded the chance 
to protest
  in a meaningful way if they think their rights are being trampled. The 
process
  developing within ICANN is one that struggles to adopt internal 
structures for
  guaranteeing due process and deliberation. For instance, once a policy 
proposal
  is made, it may be referred to one of ICANN's supporting 
organizations. In the
  case of the Domain Name Supporting Organization ("DNSO"), the proposal
  goes to one or more "constituencies" or cross-constituency working
  groups.47 The constituencies deliberate, form views, and make 
recommendations to the DNSO.48 After allowing other supporting 
organizations a similar chance for comment,
  the DNSO makes recommendations to the ICANN Board.49 The ICANN Board 
votes and decides.50 At that point an internal reconsideration process 
can be invoked by someone
  who feels that the decision is contrary to ICANN's structure and 
bylaws.51 If the challenge gets past this "appeal" stage, there is a 
structure
  emerging-still not here, to be sure-for an independent board of 
review, which
  will look at the disputed issue and may require the Board to come 
explicitly
  to a new judgment on the subject.52

In litigation, there is a need to balance due process with a means to 
authorize
  closure. This balance attempts to prevent abuse by those who may make 
frivolous
  claims in an effort tie up a policy within a structure. ICANN faces a 
similar
  tradeoff, and it must choose a structure to reach an appropriate 
balance. The
  initial instinct (more process rather than less, and without an 
overall sense of unifying structure) has led to a proliferation of 
committees, advisory bodies,
  supporting organizations, working groups, ad hoc groups and other 
entities,
  each struggling to define and understand its role in relation to the 
others.
  A shakeout seems inevitable and healthy, presuming that what remains 
approximates
  an ability to participate with a clear momentum toward closure.
III. What If ICANN Fails
As we judge ICANN, it makes sense to be aware of the likely alternatives.
  I see three possibilities if ICANN fails.53
A. Son of ICANN
First, one can imagine the creation of a "Son of ICANN" which
  would try to reconstitute a new organization that would improve upon 
that which
  ICANN has not done so well. I am skeptical about the success of a 
second attempt
  because it may be difficult to energize increasingly cynical parties 
to try
  again for a new ICANN. Also, I am uncertain it would be any better.

Further, if someone believes he or she is going to lose out as a result of
  the actions of ICANN or its possible replacement, a perfectly rational 
approach
  may be to attempt to undermine the whole organization rather than live 
under
  what the person considers adverse policies. Therefore, there may 
always be attempts
  to destabilize ICANN in order to re-start the process, to throw the 
dice again
  and see what might come out. This is not to say that any criticism of 
ICANN
  is the result of sour grapes; rather, that in a healthy environment 
there will
  always be criticism, and indeed some of it will call for ICANN's end.
B. An Inter-governmental Entity
A second possibility is that ICANN's functions would be assigned to
  an inter-governmental entity. It is hard to imagine the U.S. 
government alone
  trying to continue domain name system management responsibilities for 
the very
  reasons stated in the White Paper54 as well as the fact that national 
governments are waking up to the value of
  country code domains ("ccTLDs") and beginning to assert a proprietary
  interest in their management.55 An international treaty organization 
is one possible way that governments could
  reach an agreement on how the DNS should be run.56 It is not clear to 
me that such an organization would make policies that are
  any more in touch with the Internet community than those proposed by a 
well-functioning
  ICANN. More importantly, as the historical context suggests, the power 
of the
  root derives from the fact that a critical mass of system 
administrators and
  "mirror" root zone server operators choose to follow it.57 A drastic 
turnaround in the management of Internet top-level functions-either 
through a sea change in favor of much more aggressive government 
involvement,
  or one that purports to literally privatize the whole system (imagine 
auctioning
  it off to the highest bidder)-could result in abandonment of the 
network by
  the technical or user community. RealNames might seem a more appealing 
alternative
  to addressing than it has to date. Engineers who run the domain name 
servers
  (that in turn subscribe to the root server for information about 
domain names)
  might simply point the servers elsewhere. The web of contracts 
currently buttressing
  the natural network effects (that auger only one predominant naming 
scheme) do not yet reach to every Internet service provider. 
Universities, companies
  like Prodigy or the Microsoft Network, and large corporations could 
cease listening
  to Jon Postel's "legacy root" for authoritative information about
  <.com>, <.net>, and <.org>.58
C. Free Market
Indeed, this hints at a third possibility following a demise of ICANN:
  the market is simply left to its own devices. In the absence of 
another ICANN
  or an "acceptable" government takeover, a battle would be fought by
  existing market players for control of the current root. Either 
through technical
  or legal maneuvering, some private party would end up running the 
root, and
  it would likely not be structured to foster due process, checks and 
balances,
  nor consensus building in the manner of the ideal ICANN. In other 
words, the
  winner would be truly "private," rather than "private, public
  trust." Network Solutions, Inc. would likely continue to operate the 
<.com>,
  <.net>, and <.org> top level registry.

The new "owner" of the existing root would then compete against
  the for-profit and non-profit entrepreneurs who are experimenting with 
alternative
  naming schemes. These schemes would also substitute their respective 
proprietary
  decision-making for "public trust" authority in allocating names to
  a particular entity or site.

Internet users and their respective Internet service providers would be 
able
  to specify where they would like to get their domain name information 
and they
  could choose any alternative root authority that the market might 
offer. Alternately,
  they could choose to adopt entirely separate directory and naming 
architectures
  that work independently of the domain name system. The problem is that 
there
  is such enormous benefit in having a single repository that it is 
difficult
  to switch out of a system that nearly everyone-and everyone's 
software-has inherited.
  Because of this, the likely result is either a continued dominance of 
the legacy system (and the private party controlling it), or "tipping 
behavior"
  through which a new naming scheme would predominate, and a different 
private
  party would end up with control of a new root. Either way, Internet 
naming would
  be run by a private entity answerable (presumably) only to itself or 
its shareholders,
  insensitive to market forces to the extent that its dominance is 
locked in through
  global use. Enforcement of individual countries' antitrust laws or 
other ad
  hoc mechanisms would be the primary instruments of preventing abuse of 
this
  new de facto "essential facility."59
IV. Conclusion
ICANN has inherited an extraordinarily difficult situation, with high
  expectations all around, and with almost no discretionary room to 
move. The
  set of realistic options for substantive policy making and procedural 
structure
  is quite small. For better or worse, ICANN faces swift dispatch if it 
strays
  too far from the desires of any of the mainstream Internet technical 
community,
  the United States and other governments (including executive, 
legislative, and
  judicial branches, which in turn may not agree) and powerful corporate 
interests.
  Indeed, those representing the "little guy" and/or those wanting a
  maximally unregulated Net-one where political concerns have no place 
in technical
  management-are quick to worry about capture of ICANN by one or another 
of these powerful interests.

The key in this critical transition period is for those entities more 
powerful
  than ICANN-governments, large corporations, the technical community-to 
give
  ICANN enough rope to demonstrate either that it can operate to foster 
trust
  and respect among disparate interests (the kind of respect that has 
even the
  "losers" in a given policy question know they got a fair shake), or
  show a conclusive inability to rise to the challenge.

* * * * *

ICANN is fashioned as a private, public interest municipal government. It
  is independent of the government functions of any single sovereign. 
This is
  in keeping with today's zeitgeist that government regulation of the 
Internet-whether
  of its users or the very networks that it comprises-is anathema to its 
nature
  and harmful to its explosive growth. ICANN's roads thus are not the 
roads of Mobile.

Yet ICANN is to be apart from proprietary interests or behavior consonant
  with mere profit-making. Unlike the Gulf Shipbuilding Company, ICANN 
is intended
  to internalize notions and practices representing due process, notice 
and opportunity
  to be heard, and a balancing of interests-all in the public trust-in 
its administration
  of the top level functions that in large part define the Internet's 
nature.
  Its roads thus are not the roads of Chickasaw.

Indeed, the Gulf Shipbuilding Company's management of Chickasaw was an 
operation
  incidental to its core task of building ships. Today, the difficulties 
of running
  a private community with attention to the public interest-more than 
simply the
  interests of the market-are only slowly being worked through in the 
context
  of gated communities.60

ICANN's middle path is improvisational. It demands of ICANN a self-sealed
  structure that attempts to keep its politics from overflowing into the 
realms
  of countries that usually govern such systems or of the engineers who 
realized
  that their technical work on these systems was increasingly 
interrupted by non-technical
  disputes. If ICANN succeeds, it might serve as a model for the type of 
forum
  through which other Net-wide political issues might be worked out. The 
recent
  debates within the IETF about whether to build wiretapping into the 
next generation
  Internet protocol standards are sorely testing the IETF's desire to 
limit its
  jurisdiction to the technical. 61 The creation of such entities as the 
"Realtime Blackhole List," through
  which a few people can effectively exercise discretion over one's 
sending and
  receipt of electronic mail on the Internet (they do so for the 
purposes of reducing
  unsolicited "spam"), highlights the beginnings of an era of private
  undertakings that have regulatory outcomes without any particular due 
process,
  representation or openness components.62

ICANN's power could evaporate quickly, whether through adverse litigation
  outcomes that trump its decisions, legislation by sovereigns seeking 
to seize
  or control the intangibles ICANN tries to manage, or through an 
attrition of
  attention by which network operators or users could seek to substitute 
a new,
  separate domain name system or set of naming databases in place of the 
old. With this evaporation may go the notion that a medium as distinct 
at the Internet
  calls for a commensurately distinct mode of governance, one that 
aspires to
  the best of private and public rather than the worst."