Re: [IFWP] Fwd: Re: [names] Consensus on "consensus"

["Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>]

I would like to note for the record that participation does not equal
consent in an ad hoc process of this sort.  That is especially the case
where the process is continually changed (I will not say "manipulated") so
the ground rules do not remain consistent.  Statements of this sort are in
my opinion irresponsible and counter-productive, as they suggest that
those of us on the outside might as well just stay away.  

It is even more true when the notice periods for comments in an
international process are so short. 

I remain shocked by the claim I have heard from ICANN that the SEVEN DAY
notice period that the registrar's draft would become the basis for
ICANN's adoption -- a draft written in secret by one group -- is somehow
the basis for consensus adoption of the UDP rules.

Since I never had actual notice that this was the ICANN plan -- who would
have thought to look for the one line notice buried in the agenda -- I
cannot be said to have consented or participated in any meaningful way.
[Note that before ICANN took this action of adopting the registrar
language it was previously saying that the registrars would act on their
own, without ICANN involvmenet.  There was no reason to expect the ICANN
u-turn on this issue, and there was no warning.  Don't look for a week
and , pow!, you are part of the consensus?  I don't think so.]

I think ICANN should adopt an iron-clad rule that all public notice
periods should be 30 days.  Nothing less will do.  

On Fri, 8 Oct 1999, Jay Fenello wrote:

> 
> 
> FYI:
> 
> 
> >Date: Fri, 08 Oct 1999 10:34:05 -0400
> >To: Becky Burr <bburr@ntia.doc.gov>,
> >         "eric.link@mail.house.gov" <eric.link@mail.house.gov>,
> >         paul.scolese@mail.house.gov, mark.harrington@mail.house.gov,
> >         james.tierney@usdoj.gov, Esther Dyson <edyson@edventure.com>,
> >         Mike Roberts <mmr@darwin.ptvy.ca.us>, comments@icann.org
> >From: Jay Fenello <Jay@iperdome.com>
> >Subject: Re: [names] Consensus on "consensus"
> >Cc: names@spike.fibertron.com
> >
> >
> >At 08:41 AM 10/8/99 , Joe Sims wrote:
> >>___________________________________________________________________________
> >>____
> >>
> >>  This message is intended for the individual or entity named above.  If you
> >>are not the intended
> >>  recipient, please do not read, copy, use or disclose this communication to
> >>others; also please
> >>  notify the sender by replying to this message, and then delete it from
> >>your system.  Thank you.
> >>___________________________________________________________________________
> >>____
> >
> >
> >Hi Joe,
> >
> >It looks like Jonathan invited in
> >some reinforcements.  Welcome . . .
> >
> >
> >>with all due respect, one person's "manipulation" of consensus is another
> >>person's "recognition."  The best test of whether ICANN is in fact a
> >>consensus-based organization is whether most of the Internet stakeholder
> >>constituencies are working within and with ICANN to help it succeed.
> >
> >
> >IMHO, that's a ridiculous claim.
> >
> >I suppose you would also claim that the
> >Soviet Union had total support from its
> >citizens, because virtually all of them
> >voted in their national elections!
> >
> >Almost every organization that I know
> >that is participating in ICANN, is doing
> >so to try and mitigate any more damage
> >from ICANN.
> >
> >
> >>I would submit that the roster of ICANN participants -- by definition
> >>those who think that ICANN is functioning satisfactorily as a
> >>consensus-development body -- is rather larger than the lineup of those,
> >>like David, that happen to disagree with policies or procedures that the
> >>majority of stakeholders have created through the ICANN vehicle, and define
> >>that disagreement as "manipulation" of consensus.
> >
> >
> >Up is down,
> >Good is bad,
> >Black is white,
> >Welcome to 1984!
> >
> >Maybe you missed it, but we've just been
> >told that the entire reason we are using
> >consensus instead of voting is to give
> >minority voices a chance to be heard.
> >
> >Your response, however, is typical.  If
> >the minority doesn't comport with ICANN's
> >agenda, then they are marginalized, even
> >when it includes legal scholars like a
> >David Post and Larry Lessig, or consumer
> >protection organizations like Ralph Nader's
> >CPT and the Small Business Administration.
> >
> >But then again, this only proves my point.
> >
> >Using the arbitrary definition of consensus
> >provides those in power with a tremendous
> >amount of discretionary power.  Your comments
> >only confirm how this power can be abused.
> >
> >Jay.
> >
> >
> >>
> >>  (Embedded
> >>  image moved   David Post <Postd@erols.com>
> >>  to file:     10/07/99 10:34 PM
> >>  pic08406.pcx)
> >>
> >>
> >>
> >>Extension:
> >>
> >>To:   names@spike.fibertron.com
> >>cc:    (bcc: Joe Sims/JonesDay)
> >>Subject:  Re: [names] Consensus on "consensus"
> >>
> >>
> >>
> >>
> >>At 01:32 PM 10/7/99 -0400, Jay F. wrote:
> >>[snip]
> >>
> >> >When the minority strongly objected to the
> >> >ICANN by-laws that had no constraints on
> >> >the board's power, and no representation
> >> >for minority interests, this ICANN board
> >> >said the consensus was that their by-laws
> >> >were supported.
> >> >
> >>[big snip]
> >>
> >>Jay, NO ONE (especially me) is disagreeing with you that the Board has
> >>manipulated the definition of consensus in rather egregious ways.  The
> >>question is whether that is somehow an inherent flaw in a system based
> >>on consensus.  I don't think it is.  I think all of these examples you
> >>give are reasons why we should not allow the Board to determine,
> >>without explanation, whether or not there is consensus.  I take it you
> >>agree about this.  There's a need for a process to make sure that this
> >>manipulation does not happen -- but I'm not in favor of throwing the
> >>consensus baby out with the bathwater.
> >>David
> >>****
> >>David Post -- Temple Univ. School of Law
> >>202-364-5010        215-204-4539         Postd@erols.com
> >>http://www.temple.edu/lawschool/dpost.html
> >>Also, see http://www.icannwatch.org
> >>****
> 
> 
> 

-- 
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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