more on p An "interesting" view of ICANN obligations Replies are welcome

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: James Grimmelmann <jamesg () eff org>
Date: Wed, 25 Jun 2003 16:27:50 -0700
To: dave () farber net
Subject: Re: [IP] p An "interesting" view of ICANN obligations Replies are
welcome

At 03:00 PM 6/25/2003, Dave Farber wrote:

> ------ Forwarded Message
> From: Dan Hunter <hunterd () wharton upenn edu>
> Date: Mon, 23 Jun 2003 23:09:50 -0400
> To: dave () farber net
> Subject: [IP] ICANN - And here's who will be running the Internet for the
> next 3 years
>
> At the risk of trolling for flames, can I ask why it is that you (Dave) and
> Michael F. assume is that ICANN has democratic obligations of transparency,
> accountability and the like?  We don't ask this of organisations with real
> power (Shell, IBM, Harvard, etc) so why does a small, irrelevant
> organization with an extraordinarily-limited purview merit the kind of
> opprobrium that ICANN attracts?   I recently wrote on the idea of
> "democratic deficit" in ICANN
> (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=400000) arguing that
> ICANN's problems with its democratic deficit demonstrates that democracy is
> in fact anything but a coherent general theory of political action,
> especially in the online space, and asked whether we should continue to
> berate ICANN for its "undemocratic" actions.

Shell and IBM are publicly-traded corporations.  They have strong
obligations of transparency and accountability to their shareholders.  The
last I checked, they were legally required to have democratic mechanisms in
place for ensuring that accountability.  There's also not much question
that they have some accountability obligations to their employees; labor
law imposes a layer of democracy on that accountability.  Obligation to
consumers and other outside groups is more debated, but I think we've been
seeing a real push lately to increase corporate transparency, especially to
the public at large.  Much of the rhetoric of anti-corporatism is driven
precisely by the belief that these institutions should be more democratic.

Harvard, on the other hand, is a non-profit organization run by a
self-perpetuating Corporation whose records are sealed for 50 years.  It
has certain legal obligations, true, but the main thing keeping it
(relatively) open and accountable is public relations.  Its mission is so
intertwined with academic values that deviations from openness can be
highly embarrassing.  Some of these deviations it can defend on the grounds
of guaranteeing its independence--life tenure for judges comes to
mind--others become focal points for criticism.  Last I checked, Harvard
has gotten some nice lambastings in the last few years over instances in
which it operated too much in the shadow: land purchases on the sly,
secretive tenure processes, and some telling accusations of
censorship.  Again, the point should be clear: many people have strong
_expectations_ that Harvard ought to be transparent, accountable, and
somewhat democratic.  They can't always make it, but they do try.

As for ICANN, its coordination mission for the Internet makes it
inextricably bound up with the exchange of ideas and the formation of
community around the world.  It's appropriate to demand democratic values
from it because so much of its work touches on issues of concern to people
as citizens.  ICANN needs to be accountable because ICANN _matters_.

(Of course, you could say, as I read Dan to, that ICANN should get a pass
because of its "extraordinarily-limited purview.'  That is, ICANN can be
arbitrary and secretive because it doesn't ultimately matter much.  I
happen to disagree with the antecedent: I look at things like the whois
contract policy, the UDRP, and registrar accreditation, and I see important
decisions that affect people.  I don't think it's too much to ask that
these people have _some_ avenue to make themselves heard.  Even when courts
close themselves off, they still say "take it up with the
legislature."  But if ICANN is not to be accountable to end-users, who then
is the "legislature?")

James


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