Re: [Membership] message from Antoun Nabhan

[jeff Williams <jwkckid1@ix.netcom.com>]

Molly and all,

Molly Shaffer Van Houweling wrote:

> This document was posted to membership@icann.org prior to the RCS workshop
> in Cambridge on 01.23.1999. On the eve of the Singapore meeting, we thought
> it wise to post it again, CC:ed to the IFWP list. Please take a look at it
> and respond with your thoughts/comments/etc.

 Ooops Molly didn't you do a no-no CCing this to other lists?  Shame on you!

>
>
> -A.
>
> How do the NTIA White Paper and the ICANN By-Laws Impact Membership?
> Berkman Center Commentary - January 19, 1999
>
> ICANN's By-Laws and Articles of Incorporation were drafted to conform to
> principles laid out in the U.S. Government document entitled "Management of
> Internet Names and Addresses," better known as the White Paper ("WP").
> (The White Paper is reprinted elsewhere in this briefing book; it is also
> available online at:
> http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm.)
>
>  The Berkman Center research staff is analyzing alternative proposals for
> ICANN's membership structure according to the proposals' conformity with
> the White Paper principles and the general structure outlined by the ICANN
> By-Laws. These principles are a standard against which any proposal for
> ICANN's membership structure must be considered.  Further, ICANN's
> membership structure should conform to the other sections of its By-Laws.
> Ideally, no section should confuse the interpretation of another section.
>
> The RCS Group has been focusing its analysis on three discussion
> alternatives.  None of these is fully developed, and they certainly do not
> represent the entire range of options.  But taking a preliminary look at
> them through the lens of the White Paper principles and the ICANN By-Laws
> may highlight key areas for further development and research.
>
> I.  History
> The initial impetus for the White Paper -- and ultimately, ICANN -- came in
> July 1997.  At that time, President Clinton directed the Secretary of
> Commerce to privatize the domain name system as part of the Clinton
> Administration's Framework for Global Electronic Commerce.  Although the
> Internet began as a strictly U.S.-based research vehicle, by 1997 it had
> become an increasingly international platform for commerce, education, and
> communication.  This change in both size and role created a management
> burden that the then-current administration groups were ill-equipped to
> handle.  Areas of specific concern included increasingly frequent conflicts
> between trademark and domain name holders; massive increases in use of the
> Internet outside of the United States, which required international
> participation in Internet administration; and the need for a formal, robust
> management structure to support commercial use of the Internet.
>
> In response to this situation, the U.S. government issued the Green Paper
> (available at
> http://www.ntia.doc.gov/ntiahome/domainname/022098fedreg.htm).  After
> receiving comments and criticism from many parties, the Clinton
> Administration issued the revised White Paper proposal.  The White Paper
> calls for the creation of a private, non-profit corporation to handle four
> primary functions in a coordinated, centralized manner:
> -       determining the policy and allocation of IP number blocks,
> -       maintaining the Internet root server system,
> -       determining the policy for adding new Top Level Domains (TLDs),
> -       and coordinating the assignment of technological parameters.
>
>  The White Paper also sets forth four key principles to guide proposals for
> the new corporation:
> -       Competition:  The White Paper requires that "[w]here possible, market
> mechanisms that support competition and consumer choice should drive the
> management of the Internet."

  This is one area that thus far through the dictatorial style that Th. ICANN
"Initial" and Interim board has decidedly taken that has not been met.
Rather due to that dictatorial style, we have found ourselves facing a
situation where with the MAC and the "Accreditation Guidelines"
in a position where TRUE "market mechanisms that support competition
and consumer choice", cannot be achieved due to the structure of the
Process now underway at some length.

>
> -       Stability:  The White Paper emphasizes that stability should be the first
> priority of any proposed DNS management system, and that any administrative
> body should seek to maintain security and reliability of the DNS.

  Indeed Stability should be paramount.  To achieve that Stability there must
be stakeholder DIRECT participation that is not "Directed" by the ICANN
"Initial" and Interim board as so many have thus far pointed out as being a
flawed part of the current ongoing process.  Many had made excellent
suggestions in the early going of the ICANN "Initial" and Interim board
that have either been completely ignored or just paid some "Lip Service"
from Esther Dyson, and to a lesser extent, Mike Roberts.  This sort of
attitude and weak and unresponsive initial leadership is akin to the
gTLD-MoU process that lead to the Green Paper and later the White
Paper.  The gTLD-MoU process, was in part lead by none other
than Mike Roberts (CEO ICANN).

>
> -       Private, Bottom-Up Coordination:  The White Paper encouraged any new DNS
> management system to "reflect the bottom-up governance that has
> characterized the development of the Internet to date."

  This is another area where the ICANN "Initial": and Interim board has not
only terribly failed, but as Mike Roberts has definitively stated, that this
cannot occur.  That being the attitude of the ICANN "Initial" and Interim Board,
there is little doubt to nearly everyone that has taken notice, that such a
concept is completely in contrast to the actions and stated intent of this
ICANN "Initial" and Interim Board.

>
> -       Representation:  The White Paper argues that the new corporation should
> be operated "for the benefit of the Internet community as a whole." It
> requires management structures that reflect the "functional and geographic
> diversity of the Internet and its users," and decision-making processes
> that ensure international participation.

  This is an area that the ICANN "Initial" and Interim Board has only met
half of the requirement, that being the Internationalization or geographic
diversity element.

>
>
> These four White Paper principles have informed the drafting of ICANN's
> By-Laws and Articles of Incorporation, and must be considered when
> formulating proposals for ICANN's at-large membership structure.
>
> II. How Well do the Model Proposals Fit the White Paper?
>
> A.  Competition:
> Membership is about process:  How does the community choose representatives
> to make its decisions, and how do those representatives, once selected,
> make decisions?

  This decision was made Unanimously at the Reston IFWP conference.

> The WP advocates competition as a matter not of process
> but of result:  "ICANN should make decisions that foster competition."  We
> realize that processes have effects on result; nevertheless, the core
> questions of membership structure address the WP's other three principles
> more directly.
>
> B.  Stability:
> The WP stresses the value of continued Internet reliability.  A
> standards-making body like the ICANN Board will, presumably, set better
> policies and adopt better standards when parties who understand the
> underlying technology are diligent participants.

  This should indeed be the case as stated.  It must also be understood
that it is not JUST the board that should be making these decisions, it is
the Membership as a whole that MUST in order to meet the WP
requirement of "Private, Bottom-Up Coordination".

> A successful plan will
> provide a significant incentive for infrastructure providers (telcos, ISPs,
> networking equipment makers, etc.) to get involved in the ICANN process.
> Plans that allow providers to vote will provide this incentive in greater
> measure than those that only allow providers nonvoting participation; plans
> that allow nonvoting participation are more likely to draw infrastructure
> providers than plans that exclude them altogether.  Thus the "Organization"
> plan is more likely to draw large organizations into the dialogue than the
> "Individual" plan.

  True, an thus the "Individual" plan is more responsive to the Private, Bottom-Up
Coordination requirement of the WP and will be better able to ensure
that there is " market mechanisms that support competition and consumer
choice"  as stated clearly in the WP.

>
>
> Supporting Organizations do provide explicitly for input from networking
> professionals and technical experts.  So, are the SOs enough?  As it
> stands, the equal numbers of At-Large and SO-appointed Directors could
> produce compromise or deadlock.

  Deadelock should not be a problem if you have true free and open
Individual stakeholder final approval of any proposal/policy.

>
>
> Any structure that prevents this deadlock, however, will allow either
> At-Large Directors or SO-appointed directors more control over ICANN
> policy.

  Your use of the Term "Any" as an absolute logically is invalid.  Hence
this kind of thinking is based out of a desire for some other process
than that of Bottom-up stakeholder driven.

> The White Paper offers guidance only in the principle that "The
> Board of Directors for the new corporation should be balanced to equitably
> represent the interests of IP number registries, domain name registries,
> domain name registrars, the technical community, [ISPs] , and Internet
> users (commercial, not-for-profit, and individuals) from around the world."
>
> Voice:  Most corporations and associations will not qualify for membership
> in an SO. Many would argue that they do not need group representation,
> because they can influence individual voting decisions.  The RCS
> "Individual" model is predicated on this assumption.  Yet this means of
> group representation, even if effective, does not necessarily assure that
> corporations' and associations' distinct "voice" will be heard.  The White
> Paper does use the word "equitable," rather than equal.  The "Individual"
> model's principle of "one individual, one vote; one company, no vote" may
> not provide sufficiently direct representation to be "equitable."  The
> "Organization" represents the other end of the spectrum; there,
> corporations may vote as a class and retain the opportunity to influence
> individual behavior.
>
> One outstanding problem is that ISPs are not, as a class, represented by
> any of the proposed SO structures.  Since the White Paper explicitly lists
> the ISPs as a group that must be "at the table" for the membership
> structure to be equitable, this bears addressing somewhere in the at-large
> membership structure.  One possible response is that, even under an
> individual representation model, ISPs may vote through individual
> representatives who each act under a contractual or implied arrangement
> with an ISP.  In practice, these people would likely be employees or owners
> of ISPs who take on ICANN voting as an incidental part of their duties.

  This thinking and consideration sets a dangerous precedent or potential
defacto userption of the Individual Stakeholder/user and relegates it
to the whim of the ISP that many may be customers of.  To do this
puts the individual stakeholder in a subservient position that would not meet
the WP requirement of "Private, Bottom-Up Coordination" and  " market
mechanisms that support competition and consumer choice".

>
> To differentiate ISPs from other corporations under this plan, their
> representatives might be allowed one vote on behalf of the ISP and an
> additional vote on their own individual accounts.  This, in effect, creates
> a sub-class of members and begins to resemble the "Organization" model
> proposal.
>
> C.  Private, Bottom-Up Coordination
>
> Funding:  The WP notes that "the new corporation's activities would need to
> be open to all persons who are directly affected by the entity, with no
> undue financial barriers to participation or unreasonable restrictions on
> participation based on technical or other such requirements."  The first
> part of this requirement, "undue financial barriers," raises the question
> of how high the membership fee may be without being "undue." For example,
> the "Organization" model's >$1000 minimum membership fee for corporations
> might exclude many smaller e-commerce businesses, who would nonetheless
> have a financial stake in ICANN decisions.

  Where did the amount of $1000 come form?  This sort of decision should
be made AFTER a Membership organization is in place, not before.

>
>
> The second part of that WP provision, "restrictions...based on technical or
> other such requirements," opens further discussion.  If ICANN requires even
> minimal online access of its members, it may exclude stakeholders who,
> though they do not use the Internet, are still "directly affected by the
> entity."  Under even a more modest interpretation, this phrase in the WP
> demands that we consider the level of online accessibility required.  The
> graphical, forms-capable browser that would facilitate online voting is not
> yet universal.  The Berkman Center welcomes any input on the appropriate
> threshold of technical capability for members, Director nominees, and Board
> members.

  Again once a MEMBERSHIP is in place than these issues can be looked at
in greater detail and a reasonable "Bottom-Up" decision can be made.

>
>
> Furthermore, The WP suggests that, "Once established, the new corporation
> could be funded by domain name registries, regional IP registries, or other
> entities identified by the Board."

  Under US law the ICANN can be funded by many means, even floating a
Tax free bond.

> NSI and its counterparts are quite
> likely to continue charging customers for their service, so some might
> argue that Internet users should not be charged by two different arms of
> the Internet administration organization.  However, the wording ("could
> be") makes this particular clause just a suggestion, rather than a hard
> requirement for ICANN.  ICANN could be funded solely through a percentage
> of domain registration fees, channeled through the SOs; however, the
> organizations who register domain names would bear the costs of decisions
> made by At-Large board members.

  Any and all decisions of this or any other nature by WP definition which you
stated above, should be made by the Membership or with Membership
Approval in order to meet the "Private Bottom-Up" requirement.

>
>
> Support of Elections:  Article V, Section 9(e) of the By-Laws states,
> "Resources of the Corporation will not be expended in support of any
> campaign of any nominee for the Board."  This could be interpreted to mean
> that ICANN cannot provide Web space as a "soapbox" to nominees, although
> such a provision might be a logical way to facilitate Director elections.
> The Board might plausibly argue that a modest apportionment of HTML server
> space or Webcasting time is still in the spirit of this section so long as
> all nominees get an equal share.  The Internet community benefits when the
> candidates have some means of presenting their views (webcast debates,
> moderated email discussions, etc.), all of which require some use of
> impartial resources; ideally, Section 9(e) would not prevent ICANN from
> providing those resources.
>
> D.  Representation
>
> Geographic Diversity vs. SO Representation:  None of the Center's three
> models yet includes a mechanism for assuring that the elections fulfill the
> requirements of Article V, Section 6: that "(1) at least one citizen of a
> country located in each of the geographic regions listed in this Section 6
> shall serve on the Board (other than the initial Board) at all times; (2)
> no more than 1/2 of the total number of At-Large directors serving at any
> given time shall be citizens of countries located in any one Geographic
> Region, and (3) no more than one-half of the total number of Directors, in
> the aggregate, elected after nomination by the SOs shall be citizens of
> countries located in any one Geographic Region."
>
>  Article V, Section 2 gives substantial latitude to the SOs in choosing
> their representatives to the Board, however:  "Immediately upon the
> recognition of a Supporting Organization by the Board pursuant to Section
> 3(b) of Article VI, the Board shall request that such supporting
> Organization nominate three persons to be directors.  Upon receipt of such
> nominations, the Board shall elect such persons as members of the Initial
> Board."  Section 11 states that  "If an SO votes to remove their appointed
> Board Member, the "Board shall vote to remove such Director."  At no point
> do the By-Laws provide for the Board to overrule or decline a nomination
> from a SO.  Thus four At-Large Directors from a single region would
> preclude the nomination of a SO-representative Director from that region,
> but provide no means of enforcing the Section 6 prohibition.  The same
> problem would occur if the only Director from a given region was a
> SO-representative Director, and his/her SO elected a Directo!
> !
> !
> !
> r from another region in his/her stead.
>
> Election Oversight Committee: Each of the three models contemplates a large
> number -- perhaps hundreds of thousands -- of potential nominees.  One
> suggestion within the RCS Group for dealing with this level of complexity
> is to have a committee of the ICANN Board winnow the candidate pool before
> elections.  The procedure for winnowing is, obviously, a matter that would
> itself have a large impact on the election outcomes; the RCS Group has not
> yet examined the possible procedures in any depth. This "electoral college"
> structure is formally a part of the "Individual" model, although it could
> be an option in any model.

  The "Electoral College" structure is not needed and would be divisive as
it would allow for minority control of the ICANN.  This would therefore
be in violation of the WP's "Private Bottom-Up" requirement.

>
>
> The vetting provision creates a significant tension between democracy and
> efficiency.  The electoral function could occupy an enormous portion of the
> Board's time each year, diverting the Directors from their primary duties
> of Internet administration. Does that prohibit granting to a nomination
> committee any ability to "filter"?

  Yes it would.  And further why is there a need for a "Nomination Committee"?

>
>
> Capture:  The White Paper is fairly adamant about making ICANN's procedures
> capture-resistant:  "The new corporation's processes should be
> fair...protecting against capture by a narrow group of stakeholders....
> Super-majority or even consensus requirements may be useful to protect
> against capture by a self-interested faction."

  THe best way to avoid capture and many have already pointed out
on this line is to have a open a membership and process as possible.
The more restrictive the Membership is, the more susceptible to
"Capture" it becomes.

>
>
> The White Paper sets a difficult task with this requirement.  Any
> membership model can be subverted by special interests given the right
> circumstances; the best that ICANN may do is craft careful and vigilant
> protections into the model it eventually chooses.

  Overly protection can also indeed lead to capture and are in and of
themselves both self defeating, and divisive.

> The "Organization"
> proposal allows a vote to pass when only four-ninths ((2/3+2/3+0/3)=4/9) of
> the total membership has actually acceded to it.  The "Individual" model
> also could be captured through a "machine politics" technique similar to
> that found in large U.S. city governments if organizations funded their
> employees' membership fees in return for a contract that the individuals
> would vote in the corporate interest.  The "Open" model does not
> contemplate any controls on who may register to be a member, so groups
> might capture a vote through ballot-stuffing.

  Ballot stuffing has been discussed at length and is preventable to a
great degree through using already in existence Electronic online
Internet voting using PKS technology and login validation over the web or
via E-Mail.  This process is already being used by the US Military, the
State of Florida, The state of Minnesota, and the State of Texas
currently with great success.

>
>
> Capture Through Collective Apathy:  Special interests might capture ICANN
> more easily if the less focused parties simply lost interest and dropped
> out of the process.  ICANN should strive to have a large and diverse
> membership in order to keep itself truly representative.  Nothing in the
> By-Laws suggests a minimum number of members or nominees, and it would be
> possible to institute a provision requiring a certain "quorum" for
> membership votes to be valid.

  The need of instituting a provision for a "Quorum" in a membership
voting process is not necessary and is again divisive in a Reverse-capture
potentiality.  The best way that could eliminate or severely reduce
"Voter Apathy" would be to Require all members to vote or loose their
membership.  It would also be useful to notify each member of
upcoming elections or votes of policy resolutions as they are
about to occur.

>
>
> III. Conclusion
>
> Each of the three models meets some of the White Paper criteria effectively
> and others less well.

  As we (INEGroup) have already submitted, NONE of the three
Models effectively meet the requirements as has been shown in
our response to this post (See above comments).

> In several cases, ambiguities in the By-Laws and
> White Paper make it difficult to assess how specifically to balance these
> concerns.

  The ambiguities in the By-Laws with the White Paper certainly do exist,
which shows that as early on in the ICANN bylaws process, that many
of the suggestion made to correct those ambiguities in the By-Laws
were not heeded and need severe revision post haste.

> The RCS Group continues to analyze these and other models, to
> improve the set of alternatives and to elucidate the costs and benefits of
> each.  We are optimistic that the ambiguities and difficulties can be
> resolved so as to make ICANN an ongoing benefit to the Internet community.

  As just previously stated the need to both modify the models and the
By-Laws as has been known for some time now in the case of the
By-Laws is well known but still ignored and most likely forgotten by
the current ICANN "Initial" and Interim Board.

>
>
> -------------------------------------------------------------------------
> Antoun Nabhan            * "Uh, I guess that makes me Draft Boy."
> anabhan@law.harvard.edu  *                      - Antoun N.
> Berkman Center for       * "And *that* makes me the League of Women's
>  Internet & Society      *  Engineers!"         - Wendy S.
>
> ----- End Included Message -----

Regards,

--
Jeffrey A. Williams
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-447-1894
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208