IP: The crux of the ICANN legitimacy matter

[Dave Farber <farber () cis upenn edu>]

> From: "Johnson, David" <DJohnson () Wilmer COM>
> To: "'Dave Farber'" <farber () cis upenn edu>
>
>
> In a response to David Post's concerns about the direction in which ICANN is
> headed, Mike Roberts (interim President of ICANN) states: "In the idiom of
> the ICANN Bylaws, consent of the governed is obtained through the operation
> of the public notice and comment provisions."
>
> That statement eloquently illustrates the current problem -- reflecting the
> apparent view of the current (unelected, interim) board that they are
> authorized to promulgate policy directives that somehow bind internet
> stakeholders. This is an illegitimate, top down view of the ICANN Board's
> role -- not authorized by the White Paper or even by the current Bylaws or
> MOU with the US Government.
>
> Properly understood and implemented, the ICANN Bylaws contemplate policy
> formulation by open supporting organizations, with a minimal role for a
> Board, whose major task is to facilitate the consensus-generating process.
> Consent of the governed is to come from an as yet unheld election process,
> from the consensus in the stakeholder communities (reflected in SO
> deliberations) and from bilateral contracts between  ICANN and those asked
> to implement any resulting policies. 
>
> We are experimenting with the very nature of the social contract, online.
> The White Paper process clearly generated a consensus that any policy
> standards (aka governance) should emerge (that's the meaning of bottom up)
> from an open dialogue among stakeholders. Because the net thrives on
> diversity, we should "standardize" (aka harmonize) rules only when there is
> widespread agreement among those who must follow the rules. In that context,
> it is decidedly NOT the case that "consent of the governed" -- or any
> legitimacy -- can stem from allowing a public gripe session before the Board
> goes into secret session and takes the view that the ABSENCE of agreement
> among stakeholders (aka consensus and contracts freely entered into among
> willing parties) gives it a license to decide important policy issues.
>
> David Johnson
>
>