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What Joe Sims Doesn't Get
By David R. Johnson and Susan P. Crawford

It is easy to identify the key code words in the ICANN restructuring debate.
ICANN is looking for "effectiveness" and "stability" -- code for the ability
of the future ICANN Board (one that will not include At Large members) to
make decisions on its own. At a recent Senate hearing, ICANN critics said
they were looking for a "narrow mission" and "accountability" -- code for a
narrowed top-down statement of ICANN's role and increased involvement of At
Large members. Recently, there has been an interesting exchange between Joe
Sims (ICANN's outside lawyer) and academics regarding the nature of reforms
needed to achieve shared goals of "openness, fairness, and stability."

These exchanges make clear that ICANN is approaching its moment of truth.
But there is a key problem raised by the language being used by both sides.
The problem is that openness, fairness, accountability, and even "narrow
mission" (in the sense of regulatory mission) all speak to questions that
might confront a governmental body, not a private sector body. ICANN was
always intended to be, and should remain, a purely private sector body.

Senator Burns, prior to last week's hearing, said that ICANN needs to
operate with the same sort of internal processes as any other federal
agency. But that was not the original idea. When the White Paper called for
creation of a private sector ICANN, it meant that ICANN should not have the
right to tell anyone else what to do other than through voluntary contracts.
That's the thing about being private -- if you want to tell someone else
what to do (and have a guarantee that they will obey), you have to go to a
government (by way of a court or a legislature) and get a sovereign with
jurisdiction to order that person to act. Only governments attempt to have a
monopoly on the legitimate use of force within their territories. Private
entities don't. 

"Openness" and "Fairness" Are Regulatory Words. Unfortunately, both Joe Sims
and ICANN critics regularly invoke and debate the amount of notice,
commentary, and written justifications for ICANN's actions that would be
appropriate -- the "Administrative Procedure Act" theory of ICANN
"legitimacy." ICANN critics argue that ICANN should be more open and less
secretive -- that it should give time for comments, read all the comments,
and explain the reasons for its decisions. The problem is that, even if
ICANN did all of these things, it still would not have the (legitimate)
right to order other people around if they did not agree.

Joe Sims is right that even most truly governmental bodies don't have to
hold every meeting in the open and listen to every voice as if it has the
same significance. But he is very wrong to suggest that an ICANN that
managed to become more "open and fair" would therefore be entitled to act
like a regulatory body -- an entity that could order people around without
their agreement. 

"Accountability" is the Wrong Word -- Try Legitimacy. ICANN's critics err
again to the extent they suggest that, once openness is achieved, the
remaining task for ICANN is "accountability." The point about being private
(as opposed to governmental) is that you don't have to be "accountable." But
you do have to get others' agreement if you want to influence what they do.
It is only those who can tell others what they must do who must be
accountable -- because the power to order people around without oneself
being subject to some orders from someone makes us justifiably nervous.

When Senators and Congressmen grumble about "accountability," they are
thinking about the problem that would be posed if a governmental agency
never had to report to them for an appropriation (or an upbraiding). The
fact that the private citizens and private companies assembled in the
hearing room are not "accountable" to the Congress in this sense is what
makes those people part of the private sector (and free market).

The APA theory of legitimizing ICANN can never work -- not (as some critics
suggest) because ICANN could not mend its ways to allow open comment forums,
listen to such comments, and explain its decisions. ICANN could master all
of these tasks and perform them thoughtfully. But it is hard to figure out
how the concept of "fairness" applies to a job that is either purely
technical (where "accuracy," rather than fairness, would seem to be
required) or involves balancing incompatible values when making policy. When
that balancing is needed, the right question will be not whether the
decision-maker is neutral, but rather whether that decision-maker is
entitled (perhaps most notably by the agreement of others to defer) to make
the decision. 

ICANN Cannot Be A Regulator. Both the critics' call for more openness and
process, and Joe Sims's reasonable responses regarding the limits on how
"transparent" an "effective" process can be, really miss the point. If ICANN
is to be a private sector body -- rather than a governmental regulator
disguised as a nonprofit -- then it cannot obtain the right to order others
around against their will just by listening to comments (however
thoughtfully). 

If ICANN tries to regulate, no amount of process can render it legitimate
because there is no basis on which it can claim to have governmental power.
Even if its relationship with DoC and Congress or the GAC were altered to
provide some reassurance that it was "accountable" to governments (or,
indeed, even if Board members were elected and accountable to voters in that
sense), that kind of "accountability" would still not give it the right to
govern others. Nor would that "accountability" give it the right to use its
control over some scarce resource -- such as a power to say who goes in
"its" authoritative root -- to achieve the same result.

What Joe Sims doesn't get is that there is real meaning to the original
requirement that ICANN operate as a private sector body. The point was not
just that ICANN could operate more rapidly than governments. The point was
also that it could be allowed to do so because it was a private sector body
that didn't have the power to tell others what to do but had to instead
achieve coordination by agreement.

We hate to harp on this, but that's where "consensus" comes in. Consensus,
the agreement not to hold out irrationally against a widely supported global
policy, is the basic deal that can be achieved voluntarily. Consensus keeps
ICANN in the private sector, and keeps ICANN from purporting to regulate,
while still giving ICANN the ability to influence the way the DNS operates.

No amount of "process" or "accountability" could legitimize converting ICANN
from a private sector body into a regulatory body. Any reform proposed by
those who think of ICANN as an effective representative of the global
Internet community's view of the public interest simply cannot work. But the
amount of process required to legitimize an ICANN that really is a private
body -- and really has to "govern" by "consensus" -- is quite modest. Let's
turn our hands to this latter task, and leave the regulating to the
regulators.



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