Response to Froomkin

["Joe Sims" <Joe_Sims@jonesday.com>]

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Professor Froomkin's literary skills are fine, but his analysis leaves a
lot to be desired.  Since his views might be taken by a reader who is
unfamiliar with the subject as having some particular validity, given his
academic credentials, it is probably necessary to provide at least some
context, something that Froomkin ignores.

Froomkin says that "one of the things that ICANN needs to enhance its
rather tenuous legitimacy is members."  This single statement reveals the
"complete disconnect," to use another Froomkin phrase, between his view of
what ICANN is and should be, and the real world.  In the real world -- the
world of 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 -- in that real world,  ICANN's mission is
extremely limited:  to maintain the stability of the DNS.  Or, to put it
more simply, to not screw it up.  This is the prime objective, the
overriding core task, the critical job.  Everything else is secondary, or
even lower than that, in importance and priority, and that includes
anything that can remotely be described as governance.

Given this real world fact, ICANN has been constructed to maximize its
potential to maintain stability, and to minimize the possibility that it
could do something that would increase the risk of instability.  Now, of
course, global and national politics, and the honest search for the
broadest possible consensus of all interested stakeholders, have combined
to produce an ICANN drafted by committee.  As could be expected, the result
is not a perfect instrument for anything, including its prime objective.
But the fact that there has always been a prime objective -- and that no
responsible participant in this effort has ever disagreed that this was and
should be the prime objective guiding the creation of ICANN -- has allowed
there to be a common definition of  progress that has led to where we are.
And, I might add, that has led to broad -- essentially unanimous -- support
for where we are from those real world entities I listed above.  None of
them think we got it exactly right, but almost all of them think we got it
acceptably right.

The principal exception to this rule is a class of critics, of whom
Froomkin is one, that believe that ICANN has been constructed with
insufficient attention to the needs, desires and inputs of the little guy
-- the individual user, the individual domain name holder, the small
entrepreneur.  They believe that, since ICANN will (they assert) have
control over an important global resource, it must itself be controlled, or
at least significantly influenced, by some form of global democracy -- if
not one person, one vote, then as close as they can get to that.  This is
not a frivolous position, but it is a fundamentally wrong-headed one,
because it is clearly not consistent with the principal objective of ICANN:
create a vehicle for consensus development of policies that will promote
the continued stable operation of the DNS.  This objective requires slower,
not faster, decision-making and incremental change; consideration of
technical issues that are generally not accessible to the population as a
whole, or even the user community as a whole; and the continued support of
the business community, the infrastructure providers and other important
political forces in this space.   The more direct influence that the
general population -- even the general user population -- is given over the
actual decision-making processes of ICANN, the more risk to the prime
objective of continued stability, and the more pressure there will be for
the only realistic alternative:  control of ICANN by some form of
multi-national body, where we would likely get stability all right, but
combined with more control. less freedom  and less innovation.  The fact
that the global community of national governments has so far allowed and
even encouraged this private sector approach is quite remarkable, and owes
great credit to the United States government for its leadership in this
regard, but this forebearance is neither pre-ordained nor guaranteed.

Froomkin says that the proposed At Large Membership structure
"disenfranchise[s] the public."  Pardon me, but exactly when was "the
public," whoever that is, in charge of the Internet?  The Internet was in
the beginning a US government research project, which has long since become
a global resource managed and made to function in large part by volunteers,
and now that it has become an increasingly important asset for commercial
transactions, is financed largely by private businesses, either through the
creation of infrastructure or of applications designed to make use of that
infrastructure.  Where exactly in this process was "the public"
enfranchised?  What has "the public" been voting on?  And is Froomkin's
"public" just the United States "public," or does it extend to a global
"public."  Finally, 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 -- and continuing, I might add, for the
foreseeable future?  Where is it written that for ICANN, unlike the ITU or
United Nations, for example, there needs to be direct involvement by
individuals in making policy decisions, rather than have those made by
representative bodies?

Finally, let's deal with his specific point, such as there is one:  that
the proposed At Large bylaws "remove direct end-user input into the
management of ICANN."   If by "direct end-user" he means to exclude all
those involved in the other three Supporting Organizations, and thus limit
the term to individuals that have no other connection to the DNS than as an
individual user of the Internet, he is correct -- and not only correct, but
that is the objective of the policy that the ICANN Board adopted in
Santiago that these bylaw amendments are designed to implement.  Keeping in
mind the prime objective of continued stability, the notion that half the
ICANN Board could theoretically be elected, especially in this first
election cycle when all nine will be up for election, by a determined
minority -- whether commercial, religious, ethnic, regional or otherwise --
is anathema.  In addition, since this particular portion of the Board is
supposed to be representative -- not simply the product of who can marshall
the most votes for a seat on a Board of an entity that the vast majority of
the "public" that Froomkin is so worried about has never even heard about
-- we have to be worried about how this clearly subsidiary goal of having a
membership can be met without interfering with our basic objective.  And
finally, while the indirect approach that is set forth in the Board's
policy that these bylaws implement does have the added benefit of
eliminating the concept of derivative actions -- another potential source
of instability -- that is certainly not the only reason it was adopted.
Froomkin's legal work on this point is interesting, but I suspect even he
would not want to guarantee that the arguments he presents will be
consistently successful, or that even if they are, an organization with
billions of potential members will not be constantly fighting some very
small subset of them -- which could quite easily amount to many hundreds or
thousands of individual matters.

In the end, I guess it is easy -- and maybe desirable -- for academics to
constantly seek a better world; after all, they have less real-world
responsibilities and thus fewer constraints on imaginative thinking.  Over
time, good ideas will gain support and bad ones will not.  And I would
certainly not want to discourage Professor Froomkin or anyone else from
continuing to advocate a change in focus or objectives for ICANN; after
all, if they don't speak out for what they see as the underrepresented, who
will?  Maybe at some time in the future there will be a consensus for a
globally-democratic ICANN, or some similar body; maybe at some point down
the road the Internet will be so stable that no one will worry about that
anymore.  But today, at least my perspective is that almost everyone
involved in this process is worried about stability, and that almost
everyone wants to avoid doing things in the creation of ICANN that would
risk continued stability of the DNS.  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 -- consistent with what it (and virtually all, if not
all, of the other participants) see as its principal goal of creating an
organization and a structure that would enhance, not risk, the continued
stability of the DNS.  I think its efforts so far have the support of --
dare I say it? -- a consensus, even a strong consensus, of the Internet
community, Professor Froomkin's views to the contrary notwithstanding.