[discuss] ICANN governance structure

JFC Morfin jefsey at jefsey.com
Wed Mar 19 17:52:02 UTC 2014

Mike and John,

Your memories are important. What I gather is that the key evaluation 
is "The Board discovered almost immediately that Jon's dream of 
decision making outside of ICANN had no legal basis".

1. would you have a precise description of Jon's dream? This would be 
very precious input. I do not know him, but I know most of the 
managers of the networks we internationally interconnected until 
1986. I respect their experience and judgment, and I tend to think 
that if we would have left them to collectively decide, the situation 
could be quite different (please note that I am speaking of the 
network managers, not of the services administrators or providers).

2. IMHO, the NTIA's move is completing the situation that Mike 
describes: the rule of law, of a national law. The maturity that the 
NTIA says ICANN has acquired is its experience with that law. NTIA 
thinks that the transition period is over: ICANN is now able to 
conciliate the law of the code and the law of the nation that hosts 
it: it does not need its Executive to serve as a strategic 
conciliator any more. It looks like the USG doctrine is that the 
legal building of the internet project, as engaged by Joe Sims, is 
completed (or has to be considered as such after the international 
loss of international trust in US agencies).

In such a perspective, Benny's proposition makes a lot of sense: the 
internet legal layer is made of ties between entities that have no 
technical legitimacy, but do have an operational complementary role. 
The more ties, the more stability through a mutually built 
legitimacy. This is a tensegrity: the more spokes, the more 
stability. However, in this process, we come back to the same problem 
again: the hub. The problem is not the way it works: it is its mere 
existence. The legal networking is centralized: decentralizing is a 
good point but does not change that the real network is distributed. 
The only existing possibility to distribute the legal network is to 
use international law: this is what the USG definitely opposes and 
the NTIA's announcement explicitly refuses and defuses. Our problem 
is to find and build another solution.

IMHO, the USG opposition has several reasons rooted both in the US 
and in the general interest. This is because the general interest 
also includes the US interest that the USG is by its very essence to 
exclusively serve. These are the reasons to list and review, because 
the context keeps changing and our knowledge/understanding and 
comprehension of it keeps improving. National laws should keep 
adapting (Brazil is an example). Changing national laws (and most of 
all assuming responsibility) is up to the Congress, not to the 
Executive. The same as IAB has delegated its technical guidance 
responsibility to the economics of global markets. The responsibility 
is too big not to be collectively assumed.

The real issue seems to be possibly phrased as the global extension 
of the virtual national territory and nationality, hence sovereignty. 
This blurs the notions of what is national and international. We have 
had this problem for 30 years: trans-border-data-flows, 
trans-national-corporations, technical-barriers-to-trade, etc. the 
internet has gained a transnational global nature that evades the 
sovereignties' current legal framework. There is no reason for the US 
to lose the fruits of the progress they made in that area: this new 
phase or a continuation of Deregulation. The common interest is that 
the US progress in managing a state's global reach is copied, 
considered, or adapted everywhere; the same as the French/European 
progress in other areas (privacy, precaution, and moral person) is 
copied everywhere; the same for the contribution of every other 
experience. This is why we have to adjust.

Obviously, during this "grand adjustment", private or national 
interests will attempt to influence things. However, and this is the 
root and probably the solution to the problem:

- "global" (mondial) does not mean "multilateral at different 
stakeholder layers" (even at a popular democratic layer); something 
that foreign affairs know how to proceed with. This is a legacy of 
the former nation state world.

- It means the "people centered, à caractère humain, centrada en la 
persona" (WSIS) multitude: democracy has no experience in dealing 
with the interconnected global and ulterior multitudes at the 
individual citizen layer.

This is what I call "polycracy" and I know how to transpose it in 
technology (we can use it as a test-bed to acquire experience) 
through VGNs. This is because Aristotle defined policy as the art of 
commanding free men, and we are demanding it now to be the art, we 
are exploring, of commanding free increasingly interconnected men, 
ideas, interests, and things.


At 03:20 19/03/2014, Mike Roberts wrote:
>John -
>Thanks for your elaboration.  I think that steps and missteps by the 
>ICANN Directors in the early days can be instructive as we attempt 
>to fashion a broader, more inclusive global base for Internet governance.
>The Board obviously found that the initial Bylaws did not fit the 
>reality of what was going on in the DNS and what the community 
>wanted, which, of course, was a multitude of voices. They have been 
>revised on numerous occasions. With a changing IG environment, how 
>firm vs how flexible should the bylaws be?
>The transition from a research agency/academic partnership based on 
>collaboration and cooperation to a legalistic environment with 
>antagonistic lawyers around every corner resulted in a lot of tough 
>decisions based on legal gray areas. E.g., the importing into ICANN 
>policy circles of ongoing struggles over copyrights and 
>trademarks.  In today's environment, the Board seldom makes a 
>significant move without a lot of legal advice.  Is this the way it 
>just has to be?
>The Board discovered almost immediately that Jon's dream of decision 
>making "outside" of ICANN had no legal basis.  The Directors were on 
>the hook for decisions.  Of course, given ICANN's mission, it needs 
>a lot of advice, much of it complex and technical.  What is the best 
>approach to structuring advice and taking it?  The lawyers thinking 
>of suing have their views, but how do we provide for the Directors 
>doing the right thing, with consensus, when the outcome is 
>overturned in litigation. The law requires "diligence" by the 
>Directors in taking advice.  Is there a way to reduce that to norms 
>that the community can endorse?
>Lawyers will tell you that ICANN and its Directors are accountable 
>to the public interest through the functioning of the California 
>corporate statute and its remedies for behavior that is found to be 
>unlawful.  Many find this unsatisfying.  Is there a better way, 
>still grounded in the rule of law, to accomplish the aim of mission 
>appropriate behavior?
>I don't want to belabor the issue. The above points, a 
>non-exhaustive list, suggest the complexity of what we are about, 
>and the difficulty of reducing theory to workable practice.
>- Mike
>On Mar 18, 2014, at 4:37 PM, John Curran <jcurran at istaff.org> wrote:
> > On Mar 18, 2014, at 11:15 PM, Mike Roberts <mmr at darwin.ptvy.ca.us> wrote:
> >
> >> Perhaps a little background would help on this item.
> >
> > Sure...  I was there, but would love to hear your perspective.
> >
> >> In the summer of 1998, there was an effort to socialize - 
> globally - the White Paper recommendations about a new non-profit 
> entity to become the home for functions previously managed by 
> federal research agencies.  The signal to noise ratio of these 
> meetings was not good, for obvious reasons.  Jon Postel and his 
> IETF colleagues were alarmed by the prospect of an ICANN Board 
> doing wholesale damage to Internet infrastructure as a result of 
> ignorance, malevolence, or both.  Joe Sims, Jon's lawyer (pro bono 
> by the way), created a variation on the standard corporate 
> committee structure in which considerable autonomy was ceded to 
> three "Supporting Organizations," covering the three responsibility 
> areas of protocols (PSO), numbers (ASO) and names (DNSO).  The 
> Bylaws provided that these SO's would be self-created by a 
> community process with experts in those areas and would be prima 
> facie the voice of authority on policy, subject to the Board's 
> final approval.  Most of the year 1999 was consumed in the process 
> of populating the SO's.
> >
> > Fine so far.
> >
> >> We'll never know whether Jon's plan would have succeeded because 
> he didn't get to preside over it.  In his absence, the two 
> technical pieces, PSO and ASO, felt a lot of discomfort about their 
> implied subservience to the USG through ICANN.  Especially since 
> their membership and functions had long since become global.  They 
> moved to the "distant" but cooperative relationship with ICANN that 
> exists today.
> >
> > Umm... Actually, we went into ICANN Singapore meeting (this was 
> March 1999) with
> > both ASO and PSO principals on-board with the formation of 
> > even issued a call for DNSO applicants, and the initial Board had 
> reviewed two
> > applications for recognition as the ICANN Domain Name Supporting 
> Organization.
> > At the public meeting, the Board indicated that it would not 
> adopt either of
> > the two, indicating that the community deserved "the best DNSO 
> possible" (to
> > the best of my recollection) and instead outlined some concepts 
> and a structure
> > (with constituencies) on which a Domain Name Supporting 
> Organization advisory
> > group _within ICANN_ would be based.  When I pointed out that 
> this was contrary
> > to initial ICANN Bylaws, the Board took that under advice and in 
> the end decided
> > to change the Bylaws to align with the chosen direction.  For 
> reference (or to jog
> > the memory of those who were there), feel free to review the 
> "Summary of Actions
> > Taken by the ICANN Initial Board of Directors at its Meeting in 
> Singapore" -
> > <http://archive.icann.org/en/meetings/singapore/singapore-statement.htm>
> >
> > So, perhaps it would be best to say we don't know whether Jon's plan would
> > have succeeded, not because he didn't get to preside over it, but because
> > it underwent substantial change during implementation.  As a result of this
> > change, ICANN added DNS policy development _within ICANN_ 
> (terminology per the
> > ICANN Board's own statement above) in addition to its overall coordination
> > duties and its IANA implementation duties.  Additionally, it meant the DNS
> > service provider community lost an opportunity for 
> self-organization with an
> > independent voice and finances of its own, i.e. distinct from 
> that gained by
> > participation in the Internet names and numbers coordination organization.
> >
> > Given that the original blueprint was to have structural separation for
> > policy development (as you put it above, "considerable autonomy ceded")
> > from ICANN proper, the decision to bring the DNSO within ICANN meant that
> > the Board approved the actual process for DNS policy development, approved
> > the policy outputs of the development process, led the implementation of
> > the DNS policies including approval of individual DNS requests... pretty
> > much everything except actual insertion of DNS entries into the root zone,
> > and all of this in addition to its original mission of coordination and
> > oversight across the entire Internet identifier ecosystem (much as Jon
> > et al had done as "the IANA".)  The departure from the original plan made
> > it challenging to see how an organization doing all things DNS was also
> > going to provide oversight for itself, not to mention creating some
> > significant long-term organizational repercussions for ICANN given the
> > the growth of DNS policy development compared to its original tasking.
> >
> >> The DNSO/GNSO relationship has seen many adjustments over the 
> years, and it is fair to say that substantial numbers of its 
> constituents aren't all that happy about the way it functions. 
> There are disparate views on whether ICANN's SO's, as such, have 
> been a success or not.  Careful scrutiny will be required on 
> constituent structures in any new arrangements.
> >>
> >> In that context, Barry's hub and spoke idea has merit and ought 
> to be explored.
> >
> > Indeed.  It might be good to seek common understanding of what principles
> > regarding accountability are desirable, and then consider what 
> strengthening
> > and restructuring of ICANN's existing mechanisms are best suited 
> to satisfy.
> >
> > FYI,
> > /John
> >
> > Disclaimers: My views alone, particularly regarding historical 
> events. Note, however,
> >             that I am the CEO of ARIN, and ARIN's performance of 
> its mission for the
> >             community is predicated upon a stable and secure 
> environment in which to
> >             operate (including protection the community-based 
> multi-stakeholder policy
> >             development model); this obviously drives some of my 
> underlying concern
> >             in making sure that ICANN has foundational strength 
> sufficient to succeed
> >             for decades to come, including in circumstances sans 
> NTIA oversight.
> >
> >
> >
> >
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