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Response to Sims

I attach my reponse to Mr. Sims's recent message.  It also appears at

A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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ICANN and Individuals</h1></center>

<center>Professor <a href="http://www.law.tm">A. Michael Froomkin</a>
<br>University of Miami School of Law
<br><a href="mailto:froomkin@law.tm">froomkin@law.tm</a>
<br>October 25, 1999</center>

Sims</a> is <a href="http://www.icann.org">ICANN's</a> chief counsel. <a href="http://www.icann.org/comments-mail/comment-bylaws/msg00025.html">His
message</a> to the <a href="mailto:comment-bylaws@icann.org">Bylaws comment
list</a> (which I understand he also copied to a Harvard Law School mailing
list) in reply to <a href="http://www.icann.org/comments-mail/comment-bylaws/msg00014.html">my
comment</a> on <a href="http://www.icann.org/general/bylaws-amend-redline-8oct99.htm">ICANN's
proposed bylaw amendments</a> carries no disclaimer that it is a personal
statement, so unless and until ICANN repudiates it, one must assume that
this is a statement of the official ICANN view, or at least consistent
with it.&nbsp; As someone who has argued <a href="http://www.law.miami.edu/~froomkin/articles/tprc99.pdf">again</a>
and <a href="http://www.law.miami.edu/~froomkin/articles/cpsr/sld001.htm">again</a>
that these discussions work best when the people who take the actual decisions
in bodies like ICANN participate, I very much welcome this dialog.
<p>Let's start with the main thing. We are told that elimination of the
direct input of the individual user of the Internet to the governance of
ICANN, rather than the protection of ICANN against suit, "<font color="#A040FF">is
the objective of the policy that the ICANN Board adopted in Santiago that
these bylaw amendments are designed to implement</font>".
more, it seems the purpose of this feature is no less than to save the
Internet from falling apart.&nbsp; It's true that ICANN's Board resolved
to change the nature of membership in Santiago.&nbsp; It has not, however,
been evident from the record until now that the fear of individual registrants,
rather than the fear of derivative actions, was what motivated this change.&nbsp;&nbsp;
I had hoped, therefore, that a comment suggesting that the fear of derivative
actions was very substantially overblown might lead to some reassessment.&nbsp;
It seems clear, however, that if the real fear is of the registrants, any
talk of the extensive protections offered by the business judgment rule
is pointless.&nbsp; (Incidentally, please see the note below for <a href="#note">a
correction on derivative litigation in California</a>.)
<p>Until now, ICANN has had a real claim to be an instantiation of the
body called for in the <a href="http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm">White
Paper</a>.&nbsp; Consciously adopting a plan designed to insulate ICANN
governance from the ordinary domain name registrant breaks that connection.&nbsp;
ICANN, in the person of Mr. Sims, states that the removal of meaningful
public representation in ICANN isn't a bug, but actually an essential feature.
The claim is that purely technical decisions are being made, and that the
end-user, the domain name registrant, has no place in making technical
decisions (although the technical qualifications of the current Board,
not to mention some of the recognized DNSO constituencies, might reasonably
be questioned), and that letting rabble such as myself have a direct role
in the Board selection process (I do not qualify for any existing DNSO
constituency being neither a corporation, a non-profit, a trademark holder
etc.) will produce dangerous instability. There are at least four problems
with this claim:
The <a href="http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm">White
Paper</a> imagined some role for the average Internet user. ICANN's original
founding documents (for which it claimed consensus) contemplated giving
that role some teeth.&nbsp;&nbsp; It appears that in ICANN's view, however,
the public is darned inconvenient to have around:</li>

<ul><font color="#A040FF">"<a NAME="trouble"></a>Indeed, one could make
a reasonable argument that, if stability is our objective, we should postpone
any movement to an At Large membership or Directors until ICANN is up and
running successfully; after all, we have had enough trouble getting consensus
out of those who make up the Supporting Organizations -- a much more homogenous
group than the population of the world. But the ICANN bylaws call for an
At Large membership, and the Initial Board feels bound by that call, and
so it has sought to carry out that responsibility in the best way it could."</font></ul>
An unkind person would find in this some support for the hypothesis that
ICANN's commitment to public participation is perhaps a little grudging.&nbsp;
Indeed, some might translate the above as, "Yes, we did agree to a membership
structure with meaning because that was the price of getting consensus,
but in our hearts we always thought it was a bad idea and we never really
meant to implement it.&nbsp;&nbsp; First we delayed it as long as we could,
and now that we have the power substantially to undo it, we are going to."&nbsp;
Some might even question the propriety of ICANN's spokesman saying that
the trains would run so much better if passengers would just be quiet and
go away, but I for one welcome the frank exchange of views.&nbsp; ICANN
indeed would have a quieter happier life if the small group of academics
and others who have stuck with this process despite everything were to
accept Mr. Sims's implicit invitation to retire from the field and let
the consensus be formed by those who he believes most have a right to be
heard, which I take to be
<font color="#A040FF">"the business community,
the infrastructure providers and other important political forces"</font>.&nbsp;
Unsurprisingly, many of the people Mr. Sims finds unimportant have already
given up on ICANN and stopped participating on the grounds that they were
being treated as if they didn't matter.
Until now ICANN has justified excluding <a href="http://www.idno.org">an
individual's constituency in the DNSO</a> -- the only case to date in which
a constituency (whatever you thought of it) truly self-organized, and the
only case to date in which an application has not been accepted, at least
provisionally, with alacrity -- on the somewhat plausbile theory that individuals
would be represented in the GA, and indeed might dominate it, so that they
shouldn't be double-represented.&nbsp; This theory, however, has turned
out to be invalid, as the Names Council and ICANN have since revealed that
they are opposed to allowing the GA to share in any actual policymaking
authority.&nbsp; Now this proposed by-law change would undermine whatever
was left of that rationale.</li>

Instability is not going be created by broad representation. Speed may
well be sacrificed. Democratic processes are not notoriously nimble. That
is a real cost, and brings no joy. But the Internet won't fall apart as
a result.</li>

The very technical people who built the Internet currently have no place
in the DNSO structure (although they do get to speak on technical issues
in the ASO and PSO). Yet these people are not just technicians - they have
opinions too. Even if there is no place in the ICANN world for pointy-headed
bleeding heart law professors because they are just too concerned with
the little guy, there ought to be a place for the folks who invented and
maintain the Internet to speak to political issues in their personal capacities.</li>
Huff and puff as it may, ICANN's current <a href="http://www.law.miami.edu/~froomkin/articles/governance.htm">legitimacy</a>
remains debatable.&nbsp; It has what de facto authority it possesses only
because it exercises that authority as the agent of the U.S. Department
of Commerce. It has what legitimacy it possesses only to the extent that
it is the sort of body envisioned in the White Paper (for better or worse,
I fully accept there was and remains a rough consensus on the White Paper),
plus or minus what it gets for its subsequent actions. So far, sadly, that
is at best a wash. The proposed By-law changes would move it far into the
minus column.
<p>I agree that a purely technical body wouldn't need to worry about representing
end users directly. (The <a href="http://www.ietf.org/">IETF</a> is the
model here, although it's instructive to note that anyone who turns up
a few times has full rights in the IETF.) I'd be much happier if ICANN
were restricting its activities to purely technical issues, although I
have sympathy for the view that says this is an unrealistic hope given
the fundamentally political aspects of some DNS issues.&nbsp; ICANN says
<font color="#A040FF">"ICANN's mission is extremely limited: to maintain
the stability of the DNS</font>."&nbsp; If that were the case, it wouldn't
have a domain name trademark dispute policy at all.&nbsp; A dispute policy
is not a technical stability issue, and the courts are doing a pretty good
job of sorting out the rules. By making a trademark dispute policy pretty
much its first order of business, ICANN has forfeited any claim it might
have had to being merely a technical body.&nbsp; Things like trademark
rights, consumer protection, dispute resolution, free speech, contract
law, are all things that we traditionally seek to subject to democratic
governance. ICANN is constructed in a manner that threatens to take these
matters out of the democratic process, under the rubric of freedom of contract.
Outcomes will be extorted by rationing access to desired resources, such
as domain names. This is a key part of the context.
<p>Another part of the reality - the context - is that the trademark interests
have a lot of political clout.&nbsp; Now, I happen to think that a sub-set
of the trademark concerns are real and legitimate.&nbsp; For example, I
don't see what legitimate interest is served by letting a person ransom
a domain name for the settlement value of a worthless case, so I agree
there is a place for arbitration. And,
<a href="http://www.law.miami.edu/~amf/icann-udp.htm">as
I've said elsewhere</a>, I think the current UDP proposals are an improvement
on their predecessors. But I also think that a noticeable part of the trademark
agenda has been motivated by either unjustified greed, the hope of getting
advantages from ICANN that were not forthcoming from the legislature, or
the need of in-house counsel to demonstrate to their bosses that they are
tough as nails. I just don't think any of this is "technical coordination"
of the Internet, or that the Internet will fall apart if the world isn't
optimized for large trademark holders.&nbsp; It may be that this trademark
regime is ICANN's price of admission, and that it will never sin again;
if that is the case, it should change its rules to make it clear that its
activities will be more limited in the future.&nbsp; I personally would
be happy to let bygones be bygones if that happened.
<p>To date, however, ICANN has not been able or willing to say that it
is acting outside of consensus due to political necessity.&nbsp; And one
quite possible consequence of the malleable view of consensus ICANN has
chosen to adopt is to set a precedent for an ICANN that can do pretty much
anything it wants; faced with that possible ICANN, issues of representation,
procedure, and structure take on the greatest importance (the <a href="http://www.icann.org/agreements.htm">deal
with NSI</a> doesn't fundamentally change this -- NSI's right to demand
an accounting of consensus is limited to matters that concern it, and is
exercised at NSI's discretion).&nbsp; If ICANN were able to define its
mission and powers in a way that really did restrict it to technical matters,
I would agree that the issue of representation was less urgent.&nbsp; Absent
such a change, however, I know for a fact that the people who demanded
the UDP will be back, seeking to have rights of personality, geographic
identifiers, and famous names subject to increased protection.&nbsp; In
each case, rather than have the rules set at the lowest common denominator
common to the legal systems of the world, the demand will be, is already,
for heroic protections.&nbsp; All couched as technical coordination, of
<p>* * *</center>

<p>We are told that the reason for the By-law change is to protect ICANN
from capture by some "<font color="#A040FF">determined minority -- whether
commercial, religious, ethnic, regional or otherwise</font>".&nbsp; This
assumes, first, that no minority has captured ICANN already.&nbsp; I hear
different views on that subject, although I do not hold one myself.&nbsp;&nbsp;
More to the point, it asserts that the danger of a "determined minority"
is sufficiently great to require ICANN craft protection against ... a majority.
<p>It is interesting to compare this new story to the one we had been told
until now:
The Membership Advisory Committee's <a href="http://www.icann.org/macberlin.htm">Final
Report</a> (May 26, 1999) stated that the membership should "include any
Internet user with access and verifiable identity in order to reflect the
global diversity of users."&nbsp;&nbsp; In Berlin, the MAC also stated
"The rights of the at-large membership shall be to elect the at-large directors
and to approve changes in the ICANN Articles of Incorporation.&nbsp; Members
should not have the right to unilaterally change the bylaws in disregard
of the SOs, and the right to bring shareholder derivative suits should
be limited."</li>

ICANN's Board responded in Berlin by <a href="http://www.icann.org/berlin/berlin-resolutions.html#3">stating</a>
that the Board, "reaffirms its intention to establish, as soon as practicable,
a system that permits individuals to select geographically diverse At-Large
Directors, but also recognizes that this effort, given the unique context
of a new form of global consensus organization with responsibility for
oversight of an important global resource, is likely to be both administratively
complex and expensive (especially in relation to ICANN's anticipated budget)."</li>

The <a href="http://www.icann.org/santiago/membership-staff-report.htm">August
11, 1999 Staff report </a>accepted and endorsed the principle that "Members"
should be individuals, and only "members" should vote for At Large Directors
on the grounds that "because the SOS are largely technical bodies, and
none of them at this time permits individuals as such to be voting members,
the rationale for an 'At Large' membership for individuals remains persuasive,"
but recommended adding a principle that "should be a general parity between
At Large 'members' of ICANN and other stakeholders participating in ICANN
through the Supporting Organizations with respect to matters such as initiation
and approval of changes to the bylaws and means for seeking relief with
respect to ICANN actions."&nbsp; The report did discuss&nbsp; the creation
of an at-large Membership Council, but as an aid to the membership rather
than a substitute for any part of its functions.&nbsp; Little if anything
in that discussion suggested disenfranchising individuals was on the table,
and much went directly the other way.&nbsp; Indeed one could read that
whole report and never suspect what ICANN was planning.</li>

The idea of changing the nature of membership was first floated in a companion
staff report on <a href="http://www.icann.org/santiago/membership-analysis.htm">Statutory
Members versus Nonstatutory Members for the ICANN at Large Membership</a>
that was also posted for comment on Aug. 11, 1999.&nbsp;&nbsp; The report
discusses 13 arguments for disenfranchising the membership.&nbsp; It dismisses
nine, and finds two that it thought supported a non-statutory membership,
and two others that might be relevant:</li>

The danger of derivative actions (reason 6) was said to be "a strong reason".&nbsp;
On my reading of this report, at least, this issue weighed by far the heaviest.</li>

A potential for misuse of a member's right to inspect membership lists
(reason 9) was said to be "some justification".</li>

The issue of the mechanics of Bylaw amendments (reason 10) was said to
need careful consideration, but appeared solvable.</li>

The ability to block "Member actions regarding validity of elections" (reason
13) was also thought to be a significant potential advantage of the change..</li>

This wholly new idea -- one completely contrary to all earlier statements
by ICANN on this subject -- was thus first floated for public input for
two weeks in the dog days of August, but only as a staff report, and as
the less important-seeming of the two reports at that.&nbsp; There was
in any case no actual proposal to respond to, merely a discussion of issues.&nbsp;
It may have been clear to ICANN insiders what was afoot, but it was not
set out in a manner calculated to put outsiders on notice.&nbsp; I would
like to report how much discussion this issue received, but this is currently
difficult to find out. <a href="http://www.icann.org/santiago/membership.htm">According
to ICANN</a>,&nbsp; "All comments received on membership issues prior to
August 11 have been archived at <a href="http://www.icann.org/comments-mail/membership/archive1/maillist.html">http://www.icann.org/comments-mail/membership/archive1/maillist.html</a>".&nbsp;
Yet when I visited that archive on the evening of Oct, 24, 1999, the last
message, # 634, was dated 20 July 1999.&nbsp; There surely must have been
something posted after that date.&nbsp;&nbsp; There's another archive for
postings after August 11, 1999, located at <a href="http://www.icann.org/comments-mail/membership/current/maillist.html">http://www.icann.org/comments-mail/membership/current/maillist.html</a>
and it seems to have fewer than ten comments dated before the Board meeting,
none of which appreciate the importance or relevance of the second staff
report.&nbsp; If this is representative, the import of the second staff
report as a potential action item does not seem to have been widely appreciated.</li>

At its August 26, 1999 meeting in Santiago, Chile, the ICANN Board <a href="http://www.icann.org/santiago/santiago-resolutions.htm">adopted
the proposal to limit the vote of ordinary members to the Membership Council</a>.&nbsp;
I will leave it to others to characterize the nature, quantity, and quality
of the oral debate.&nbsp; Although reasons for the decision are not given
in the resolution, one might be forgiven for assuming that they were the
ones set out in the staff report -- at least until Mr. Sims revealed what
now appear to be the real reasons: regular people, ordinary&nbsp; domain
name registrants, are dangerous to the stability of at least ICANN, if
not the entire Internet.</li>
Whether the ICANN Board took this August 26 decision because of a mistaken
fear of derivative litigation, or because of the reasons set out in Mr.
Sims's note, I think the decision was taken with inadequate discussion,
was deeply mistaken, and should be reversed in LA.
<p>It could fairly be said that my complaint would have been more timely
in late August.&nbsp; But it could also fairly be said that a two-week
comment period and the means by which this possibility of this revolutionary
change in the nature of ICANN was announced made the comment period inadequate.&nbsp;
When the Staff Report issued, I like many others was on vacation.&nbsp;
I had limited Internet connectivity, mostly email.&nbsp; By the time I
made it back to full Internet connectivity, I was worrying about other
things, and my ICANN-related attention was limited to the UDP.&nbsp; But
better late than later.&nbsp; There are two possibilities here:&nbsp; either
the Staff Report accurately states the reasons for the change in membership,
in which case I submit that the fear of derivative litigation is vastly
overstated and the policy which the by-law change implements needs re-thinking.&nbsp;
Or, Mr. Sims's latest accurately states the reasons for the policy, and
I submit that not only does the policy which the by-law change implements
need re-thinking, but ICANN needs to reinvigorate its commitment to public
<p>* * *</center>

<p>Let me now turn to the subtle ways in which ICANN's reply mischaracterizes
my views in order to belittle them. Contrary to what was asserted, I don't
think ICANN inevitably needs to be a global democracy in which every person,
or even every domain name holder votes. It needs to be legitimate. It needs
to be open. It needs to proceed in a deliberate manner that takes due regard
of the communication needs and abilities of the different peoples of the
world.&nbsp; It needs to document its reasoning and its claims of consensus.&nbsp;
It needs to have a place in which all the people affected by its policies
who care to come to the table are not only listened to with Mr. Sims's
courtesy and politeness, but also have some meaningful input into in the
outcome, one which cannot simply be ignored at the whim of the deciders.
There are many ways in which legitimacy might be achieved. <a href="http://www.icann.org/comments-mail/comment-bylaws/msg00015.html">Professor
Jonathan Weinberg's comments</a>, for example, suggest ways in which the
By-laws proposal might be changed substantially so that an elected council
might make sense.&nbsp; It happens however that <i>this</i> ICANN claims
that its legitimacy derives from "bottom up" governance processes, and
ICANN put forward the Bylaw revisions I was responding to.&nbsp; Since
"bottom up" governance is what <i>this</i> ICANN claims to be about, it
doesn't seem unreasonable to me (although it appears to be very surprising
to Mr. Sims) to expect ICANN's proposed actions to match its words.&nbsp;
Bottom up ought to mean some structure in which there is an actual formal
role for the ordinary domain name registrant, the end-user, or at least
that fraction of the end-user community that cares enough to participate.&nbsp;
There are probably many ways to achieve this, but the regime created by
the draft by-law changes posted for comment so restricts the influence
of both individuals at large and their Council that it is well outside
that set.
<p>The second bit of rhetoric is to confuse ICANN with the Internet. I
have argued that the proposed bylaw change disenfranchises the interested
public from its (oft-promised, but yet to appear) role in ICANN. That role
was promised by the White Paper, and that promise has been repeated by
ICANN throughout this process (or does "bottom up" mean something else?
Perhaps "bottom up" from the heady vantage point of ICANN means <font color="#A040FF">"the
business community, the infrastructure providers and other important political
forces"</font>?). Mr. Sims's reply to this claim of disenfranchisement
from ICANN is to say, <font color="#A040FF">"Pardon me, but exactly when
was "the public," whoever that is, in charge of the Internet?"</font> That
is, one would hope, irrelevant since we are talking about ICANN. It may
be that governance of ICANN is in fact governance of the Internet.&nbsp;
Until now, at least, the official ICANN line has been otherwise.
<p>A third bit of sleight of hand is the use of the term "minority" and
the attempt to paint every critic as an outlier.&nbsp; The goal of ICANN's
reply in tone and structure is to marginalize academic critics as out of
touch with reality not because of what they say, but because they are academics
(academics, readers are told, "<font color="#A040FF">have less real-world
responsibilities and thus fewer constraints on imaginative thinking</font>"
-- i.e. they are not serious folk like author and reader), and thus to
define them out of the relevant consensus.&nbsp; There is a reason why
a disproportionate fraction of ICANN's critics are academics.&nbsp; Few
others who are not being paid by someone with a financial interest in the
outcomes have the time to engage in the level of monitoring required to
keep up with ICANN's hydra-headed approach to dividing and conquering opposition
(I discuss an example of this behavior in <a href="http://www.icann.org/comments-mail/comment-bylaws/msg00014.html">my
original submission</a>).&nbsp; And, as my August experience suggests,
academics with families are not up to the task.
<p>Although it is far from the only explanation that fits the facts, ICANN's
proposed bylaws changes are consistent with what it would do if it were
worried about majorities of non-business people that might disagree with
it.&nbsp; In that light, the issue of who supports ICANN, and especially
who actually supports this change, is important.&nbsp; ICANN says over
and over that there is&nbsp; consensus for its actions.&nbsp; I (and <a href="http://www.icannwatch.org">others</a>)
believe it is ridiculous to claim that there is "<font color="#A040FF">broad
-- essentially unanimous -- support for where we are from those real world
entities&nbsp; I listed above....almost all of them think we got it acceptably
right"</font> when this apparently refers to <font color="#A040FF">"the
technical people who created the Internet, the infrastructure providers
who make it work, the businesses (large and small) who increasingly depend
on it for commercial activity, the more than one hundred million individual
users who benefit from the incredible increase in access to communication
and information that the Internet provides, and the national governments
around the world that view this global resource as an important global
asset."</font>&nbsp;&nbsp; But perhaps there is indeed a vast silent majority,
all part of a consensus I happen not to share. What a shame, then, that
it is so silent. Perhaps someone at ICANN could spare a few minutes to
<a href="http://www.icannwatch.org/archives/essays/935183341.shtml">document
it for us</a>?&nbsp; And, one also has to ask, if there is such a broad
consensus for ICANN, why can't the people who make up that consensus be
full members of the organization and suffice to protect it from capture
by minorities, whether made up of rabid academics or otherwise? We are
not told.
<p>Perhaps unintentionally, the most interesting aspect of&nbsp; ICANN's
reply to the claim that ICANN proposes to make itself a law unto itself
is this:<font color="#A040FF"> "to the extent that there is or should be
a "public" role in this effort, why is that not already accomplished by
the extensive involvement and control by the United States and many other
national governments throughout this process"</font>. I take this to be
a reference to the <a href="http://www.noie.gov.au/docs/gac1.htm">Governmental
Advisory Committee (GAC</a>) -- I say this because I presume that since
ICANN is committed to openness and transparency there is no secret undocumented
back channel we are not being told about. Yet it was Mr. Sims himself who
took the lead in persuading me and others some months ago that the GAC
was merely advisory, that ICANN had no duty to do what GAC said, could
ignore it any time ICANN liked, and that the GAC was nothing to worry about.&nbsp;
I believed him.&nbsp; ICANN cannot now have it both ways. Either GAC is
advisory, or it is a major check on ICANN (which raises its own issues).&nbsp;
Either ICANN is "bottom up" and has a real place for individuals, or they
don't and it isn't -- in which case ICANN will have to seek its legitimacy
somewhere new.
<a NAME="note"></a>Note</h2>
I am told by a California lawyer that in my <a href="http://www.icann.org/comments-mail/comment-bylaws/msg00014.html">earlier
submission</a> I should have cited to <a href="http://caselaw.findlaw.com/cgi-bin/getcode.pl?code=CA&law=corp&frame=right2&art=5710">Cal.
Corp. Code &sect; 5710</a> which pertains to derivative actions by members,
rather than &sect; 800 which refers to actions by shareholders. As I read
it, &sect; 5710 waives the bond requirement for any derivative action brought
by 100 members, or by the number of members authorized by Cal. Corp. Code.
&sect; 5036, whichever is less. Under &sect; 5036(c), for a body with membership
of 5,000 or more, "the authorized number shall be one-twentieth of 1 percent
of the voting power, but not less than 125".
<p>I don't think this changes anything important, but I feel obliged to
note it. I should emphasize that I am not a member of the California Bar.
<p>v. 1.....