May 30, 2000

Welcome to As the CaveBear Growls.

This publication is an occasional newsletter covering topics of interest to the author, generally related to the Internet to a greater or lesser degree.

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My Comments at the Conference on The Internet and Governance
John F. Kennedy School of Government
Harvard University
May 30, 2000

Let me declare that ICANN has been a successful experiment in governance of the Internet.

You look surprised - Let me explain - An experiment is successful if we learn something. - We may learn how to do things.  And we may learn how not to do things.

In that latter sense ICANN has been a rip-roaring success of the first magnitude.

From ICANN we have learned that a governance body must have several characteristics.   Let's look at a few of these:

A governance body ought to have integrity - it ought not to deceive itself about what it is and what it does.

ICANN has long tried to claim that it is not a governance body at all and that it engages merely in "technical coordination".

One only has to look at ICANN's powers to see that it is indeed a governmental body - perhaps one lacking a firm foundation of public legitimacy - but a governmental body nevertheless.

And quick examination of ICANN's acts - such as establishing procedures by which trademark holders can take away domain names from non-trademark holders - are not "technical" by any stretch of the imagination.

Governance bodies ought to be somewhat predictable.

In criminal law, one of the elements of insanity is the question whether one can conform one's acts to the requirements of law.  Such a definition is premised on the notion that one can know what the law is.

Unfortunately, one can not make reasonable predictions about what ICANN will or will not do.

ICANN's organic documents - its Articles of Incorporation and By-laws - are apparently not worth the paper they are printed on.  ICANN ignores those documents at its pleasure and uses twisted logical syllogisms to interpret them to reach desired results.

Let's take a case in point - ICANN's bylaws clearly call for matters pertaining to the domain name system to be handed to the Domain Name Supporting Organization.  In the case of the contract between ICANN, the Department of Commerce, and Network Solutions - a matter undeniably pertaining to the domain name system - ICANN's board didn't even bother to involve the DNSO at all.

Several months after the fact, a member of ICANN's staff said that the board of directors bypassed those obligations by taking advantage of a provision in the bylaws that lets the board act if the board finds an overriding need.

That would have been reasonable except for two things - first of all, ICANN's board never made any such finding that an overriding need existed - the question was never on any agenda, it was never discussed, and it was never voted upon.  Secondly, ICANN's interpretation violated well-established canons of interpretation - in particular that a legal document should be read so as avoid making some of the provisions meaningless.  ICANN's interpretation more than merely violates that canon - it transforms a large part of ICANN's by-laws into nothing more than superfluous suggestions.

ICANN claims it acts by reading the "consensus" of the Internet community.  That's such a vague standard that it can be twisted into anything - and it usually is.   ICANN wields consensus as a modern day equivalent of the Royal Prerogative.  Where ICANN finds this so-called "consensus" - whether from crystal balls or tea leaves - no one ever knows.

An impartial body of governance would not give preferences to some entities and people over others.

ICANN is far from impartial.  ICANN has created a system in which it has designated who are and who are not "stakeholders" in the Internet.  If you are not one of these "stakeholder" then ICANN does not care about your opinion.

ICANN refuses to recognize that you and I - those of us who actually use the Internet who ultimately bear the cost of ICANN's actions - have any role as Internet "stakeholders".  We are excluded from those parts of ICANN, the Supporting Organizations, in which Internet policy is supposed to be formulated.

ICANN has engaged in a relentless effort to disenfranchise Internet users.  ICANN has attempted to nullify or repeal every democratic element of its structure.  ICANN has systematically removed every membership right granted by California law.

ICANN is finally beginning to create an At-Large membership, but the sole power of that membership is to elect a minority of the board seats.  And ICANN has created rules that make it exceedingly difficult for there to be any viable candidate for those seats except those candidates picked by the board's own so-called nominating committee.

Good governments have open procedures and transparent decisionmaking.

ICANN has never yet had a truly open meeting that exposed the decisionmaking process.  Yes, ICANN has had a few so-called "open" meetings, but those have been little more than mere performance art and revealed nothing about how ICANN makes its decisions.

There is considerable evidence that ICANN's board has effectively abandoned the act of making most decisions to "the staff".  Such an abrogation of director responsibility is, in my opinion, a breach of the directors' individual and collective fiduciary obligations.

ICANN has made itself even more opaque by its repeated failures to give any, much less adequate, advance notice of its proposed actions.  For example, ICANN did not publish notice of its intent to create a nominations committee until after that committee had been created and the seats filled.

One of the most valuable parts of a democratic institution is the right of the electorate to toss the incumbents out of office.

But for the electorate to do that they need to be able to see how the incumbents are doing.

ICANN's lack of open and transparent procedures, coupled with utterly inadequate minutes make it virtually impossible to learn anything about how ICANN reaches its decision - One can not perceive what issues were considered, what evaluations were made, or what quid-pro-quos were made.

I'd like to close by asking three questions:

First - If ICANN is at all representative of the future of Internet governance, then is all the talk about the Internet empowering the individual merely hype?  Is ICANN teaching us that the individual is going to be further submerged by organized corporate interests?

Second - given the extent and degree of ICANN's flaws, would it be better to remodel it or to start afresh with a new, better designed experiment?

Third - none of the lessons we learned from ICANN are new.  One must ask why the Department of Commerce was so bull-headed that it insisted on chartering an obviously flawed plan in the first place and why it has silently let ICANN become an epitome of faux democracy?

Updated June 20, 2001 12:30:43 AM -0700