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

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Dan Hunter <hunterd () wharton upenn edu>
Date: Wed, 25 Jun 2003 21:37:14 -0400
To: Einar Stefferud <Stef () thor nma com>, Brad Templeton
<brad () templetons com>
Cc: dave () farber net
Subject: Re: [IP] An "interesting" view of ICANN obligations Replies are
welcome

To deal with these various messages in turn:

I take Stef to mean section II.C.4 of the MOU
(http://www.icann.org/general/icann-mou-25nov98.htm).  This requires
ICANN to abide by some conception of "representation".  Clearly this
imports some aspect of an understanding of representative democracy,
but this is a poor proxy for a generalized conception of democracy
within ICANN.  For a start it only speaks to representation, and
doesn't explain what this might mean.  ICANN can point to the various
directors as "representatives" of numerous constituencies and can
presumably satisfy this requirement.  Second, the requirement is not
actionable by "constituents" and presumably it is for the DOC to bring
suit for breach of contract in the unlikely event that it thinks that
ICANN has breached its "representative" obligations.  I'd love to see
someone try to bring an action to require the DOC to enforce the terms
of the MOU.  Finally, and perhaps most obviously, the MOU clearly
doesn't import the obligations of transparency, accountability and the
like that Michael Froomkin and others insist are ICANN's lot.  I may be
wrong but it doesn't seem to me that ICANN has democratic obligations
founded in the MOU.

Of course this says nothing about other normative foundations for ICANN
democratic obligations.  Which is what I think that Brad is saying.
But just because users need the DNS (no argument there) it doesn't seem
to me to follow that this imports democratic obligations.  I don't
think that anyone really suggests that ICANN has failed to maintain the
DNS, which would be clear grounds for termination of its contract by
the DOC.  But we're not arguing about this, nor are we arguing about
whether it is a powerful organization.  We're arguing about whether it
has democratic obligations.  Everyone seems to assume that it *must*
have these obligations.  It intuitively seems right (to me too).  But
I'm hard pressed to find a good normative justification, and I haven't
seen anyone else who has provided one.

Take another example: the Lower Manhattan Development Corporation is
the organization charged with overseeing the rebuilding of the WTC
site.  When it presented its initial design, there was widespread
gnashing of teeth at how awful the design was.  New Yorkers (amongst
many others, most notably the families of the victims of 9/11) demanded
the right to have a say in the design, and so the LMDC created the
high-profile, public-vote competition that Liebeskind et al recently
"won."  But the LMDC doesn't have democratic obligations, even though
many people believe they have a right to have a voice in the design.
(And as an aside, the competition was an elaborate PR exercise, and the
final design of the building is going to be privately determined and is
not going to be the one that the people "voted" on).  There are many
things that we feel we *should* have a say in.  But just because we
believe that an organization should be democratic doesn't make it so.

Let me say that I'm not a fan of the way that ICANN operates, nor of
the people who comprise the officers of the organization.  I just
happen to believe that assuming that democracy applies to online
organizations is a bad bad idea (for reasons too dull to go into here,
but which I sketch in that article).

Dan.


On Wednesday, June 25, 2003, at 07:05  PM, Einar Stefferud wrote:

> It seems to me that you (Dan Hunter <hunterd () wharton upenn edu>) have
> not noticed that such democratic style obligations are part of the DoC
> contract that ICANN signed.
>
> So, this is not an abstract extension of the US Constitution, or a
> massive
> right wing conspiracy.  It is a contract obligation, voluntarily signed
> and assumed by proper ICANNic authorities.
>
> Cheers...\Stef
On Wednesday, June 25, 2003, at 06:24  PM, Brad Templeton wrote:

> Why should ICANN be accountable to the users of DNS and the other
> services it governs?   I can see where you're going in that Jon
> Postel had no official accountability and did a job that nonetheless
> satisfied people.
>
> However, the internet was designed to have few central choke points
> in its operation.   And a good job was done, as there are not many.
> But DNS, number allocation, the IETF standards and the BGP peering club
> are about all there are.   Otherwise, the IP network operates fairly
> much as an end to end network.
>
> But we agree we need naming, so that I can meet you and tell you my
> E-mail address, and you can go home and use it to send mail easily to
> me and only me.   You need to be able to remember and easily type
> the address I give you (thus numeric addresses do not suffice) and
> for privacy reasons I may not wish you to be able to use a search
> directory like google to help you find my address.  (And in any
> event the E-mail protocols, unlike the web browsers, don't have
> any well developed universal directories.)
>
> The uniqueness requirement requires there be a root to the naming
> system, some master who at least hands out the next levels down.
>
> Because this is one of the few, as well as the most visible single
> chokepoints, it is natural that there be much contention over it.
>
> But make no mistake -- it is there for the users.   Users want to
> be able to give out and use names.  Users want memorable, typable,
> unique, expressive, reliable, permanent, low-hassle, fairly allocated
> names.   A hard set of goals to match all at once.
>
> The great mistake of ICANN was Magaziner's suggestion that anybody
> but the users were "stakeholders."  The ISPs, the registrars and
> registry -- these are the _providers_ of service for the users.
> Making them stakeholders was like making the phone companies the
> stakeholders who will thus manage the PUCs and FCC.
>
> Whom else should DNS serve but the users?
>
> This has generated the IRE.  ICANN acts (and was set up to act) as
> though the values of service providers and trademark holders (outside
> their context as users) matter.   Even when their values conflict
> with those of the users of the system, the people who register and
> look up names.
>
> Thus the conflict, and the call for democracy.


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