IV. DNSO Responsibilities
To what extent has the DNSO fulfilled the responsibilities in A, B and C?
The DNSO has not fulfilled its policy-development responsibilities to any meaningful extent, and has played little role in domain name policy development. On the one hand, Working Group A was able to develop a UDRP proposal, and the Names Council did approve that proposal. But Working Group A's plan was the target of considerable criticism on process and substantive grounds; the Names Council's approval was without extensive discussion and amounted to a rubber stamp. The ICANN Board reacted by setting aside the proposal in favor of a different one drafted by a registrars' group, with the caveat that the new plan would be modified further by Louis Touton in consultation with persons chosen by ICANN staff. The final plan owed little to the proposal that emerged from the DNSO.
With respect to protections for the holders of "famous" trademarks against the registration of second-level domains similar or identical to those marks, the DNSO was unable to generate any coherent recommendations. The Names Council issued a statement, but that statement had little content. While the Names Council managed to recommend that "there should be varying degrees of protection for intellectual property during the startup phase of new top-level domains," the statement stopped there; it did not speak at all to the nature and strength of that protection or how it should be achieved.
Finally, when it came to the addition of new generic top-level domains, the Names Council produced a statement of stunning generality. ICANN staff were hardly constrained in crafting their own proposal to the board; they responded by preparing a discussion document that requested public comment on 74 policy and technical questions that would have to be answered in connection with the rollout of new TLDs. Those questions, in turn, were just a subset of those that staff might have chosen to ask. Almost none of the key policy issues raised by the deployment of new top-level domains were addressed by the Names Council; they were left to be decided, either explicitly or sub silentio, by the ICANN staff and board. Indeed, the key policy decisions relating to adding new gTLDs, as well as a proposed country code top-level domain for the European Union, are currently being handled by ICANN staff, under the supervision of the board, with no DNSO participation.
Have the policies recommended by the DNSO represented an adequate consensus of the affected stakeholders? Have the viewpoints of all stakeholders been considered?
This question is difficult to answer, because I suspect that the search for "consensus" in the context of domain-name policy making may be misplaced. Two key factors have made "rough consensus" a workable approach in the traditional Internet standards context. First, the community of Internet engineers and system administrators has been a relatively small and homogeneous one, bound together by shared values and professional norms, including respect for technical expertise. Second, the issues addressed in the consensus process have been technical ones, and the question whether a proposed solution works has been capable of resolution via a (relatively) neutral performance metric.
Those factors are not present in the domain name context. The universe of stakeholders there is large and remarkably diverse. They do not share common values or professional norms, and many of the interested parties have strong economic interests in particular outcomes. Moreover, the questions to be decided largely rest on competing values and competing claims of right: If the name space is to be limited, how is this limited resource to be allocated? Should the ability to register domain names be governed by the first-come-first-served principle, by trademark rules, or by some other means? Should registries be operated on nonprofit or for-profit bases? How should we think about companies' sunk investments in the status quo? These are political issues, not technical ones, and they cannot be resolved from a pure engineering standpoint, asking which solution works best. They require value choices. In short, there is no reason to believe that any genuine consensus can be formed around domain-name issues. ICANN is proceeding with the deployment of new generic top-level domains notwithstanding that it has not sought to form consensus on any implementation point, and likely could not do so if it tried. Only the desirability of one or more new top-level domains is even close to common ground.
The Names Council has responded to the need for consensus by formulating policies on such a high level of generality that most areas of conflict are avoided. This, however, is not a useful long-term strategy.
Assuming that it is useful for the DNSO to search for consensus, finally, the Names Council is not well-suited to the task of recognizing the degree of consensus surrounding any given issue. The problems here stem from the DNSO's structural flaws, which I will discuss below.
Have the recommendations been well-defined, useful in terms of being timely and being structured with a degree of specificity / flexibility appropriate to achieve practical implementation?
The Names Council's recommendations on famous marks and new gTLDs were sufficiently general as to amount to little more than the following direction to the ICANN Board: "We approve of the careful introduction of new TLDs, and of some form of startup-phase trademark protection. Go with our blessing, and decide all of the associated policy questions." It may be that the Names Council cannot engage in a useful policy-making process with any greater specificity. But this is a mountain laboring and bringing forth a mouse. If outputs are to be this abstract, and if almost all policy decisions are to be made at the Board level in the first instance, it is not clear that it is worth maintaining the DNSO structure, and with it, the fiction that domain-name policy making is "bottom up."
How can the DNSO minimize the amount of subjectivity and increase the amount of objective consensus building, with it current structure? With a different structure?
The question of whether rough consensus is present seems inherently subjective. The only objective way of gauging the level of support for a proposal is counting votes; that in turn, though, only pushes the subjectivity into the determination of who shall be allowed to vote. One of the Names Council's major areas of subjectivity, as detailed below, is the allocation of the right to vote within the Names Council.
A. Names Council
Is the Names Council fulfilling its responsibility to steer and manage the DNSO consensus process, or can this be improved?
The Names Council has so far proved itself incapable of developing policy. The Council has taken the approach that it should primarily rely on policy work done by the Working Groups and should ratify the consensus, where appropriate, that those groups bring forward. Yet where a working group is unable to reach a conclusion (as with Working Group B), or where the Names Council is unwilling to endorse a working-group recommendation (as in the case of Working Group C), the council has been able to say little. Its members wrangle for several hours at their meetings, adopt a policy statement at a level of generality high enough to satisfy nearly all of them, and leave the remaining issues to ICANN staff in the guise of "implementation." ICANN staff then address the policy issues in the way they think best.
Should the NC take a more active role in managing the consensus-development process, for example by giving working groups more defined charters and more frequently reviewing the state of their work?
I doubt that it would be help the process for the Names Council to seek to micro-manage the working groups. If the Names Council cannot make effective policy decisions itself, it is unlikely to provide useful guidance to the working groups. To the extent that the Names Council's perspective on an issue is sharply different from that of a working group, it is at least as likely (see below) that the problem derives from the Names Council being out of touch with the domain-name community as it is that the working group is nonrepresentatve.
Are the constituencies a correct division? Are all DNSO interests adequately represented in the existing constituency groups? Do the current divisions aggregate individuals or entities with closely aligned interests and permit the development of focused positions?
I agree with Harald Alvestrand that the constituency structure is "a fundamental reason for the DNSO's problems," a "failure" that "should be abandoned." As he points out, the constituency structure has generated underrepresentation, because many interested parties cannot find a home in any of the approved constituencies; overrepresentation, because other parties can participate in multiple constituencies; and misrepresentation, because the selection of constituency representatives obscures significant differences of opinion within the constituencies.
Certainly, the list of constituencies ICANN selected seems skewed. There is a considerable overlap, after all, between commercial entities and trademark interests; on the other hand, individual domain name holders and ordinary Internet end-users, whom one would think have an interest in domain name policy development, are not represented on the Names Council at all. The more basic problem, though, lies not in the choice of particular constituencies, but in the incoherence of the underlying structure. Even if nobody were excluded, there would be no reason to think that we could reflect the views of the domain name community by identifying a set of activities necessary to, or enabled by, the domain name system or the Internet in general, collecting industry actors performing each of the activities on the list, and then giving equal votes to each group.
The Names Council structure may make more sense if we think of the Names Council not as a representative body, but rather as consensus-based. If the idea is that any industry actor represented on the Names Council should have the power to object to a proposal and thus block consensus, then relative voting strength becomes unimportant; the only question is whether every important actor in fact has a Names Council representative that can exercise its veto. Yet as I noted above, the search for consensus in domain-name policymaking is probably fruitless. No policy can gain the support of all affected actors; to demand that is a recipe for paralysis. If the Names Council is to take any action at all, therefore, it must be on the theory that its members represents the domain-name community. Yet there is no reason to think that the NC's current structure, which drastically under-represents ordinary user interests, meaningfully reflects the relevant communities.
The list of constituencies included in the Names Council reflects the political strength of the various actors at the time the institution was established. That constituency formation process neatly illustrated the lessons of Mancur Olson's The Logic of Collective Action that is, it advantaged groups for whom the costs and benefits of domain name policies were concentrated at the expense of those for whom those costs and benefits were widely distributed. Over the past eighteen months, advocates of an individual domain name owners' constituency have sought to press their case to the Names Council and to the ICANN board. They have failed so far, notwithstanding that the General Assembly has twice endorsed the formation of a working group to examine the constituency. There are two reasons behind this failure. First, absent enthusiasm for the proposal from major industry players, the Board and the Names Council have felt no special urgency to move forward. Indeed, it runs counter to the interests of current Names Council members to dilute their influence by agreeing to the formation of additional constituencies. Second, individual domain name holders, each of whom has only diffuse interests in Internet governance, have little incentive to join or organize a constituency-in-formation, and therefore group proponents have not succeeded in organizing individual domain name holders into any broad-based and representative group onto which the mantle of "constituency" could fall. Absent effective representation for individuals, though, together with other measures to reduce the current Names Council skew in favor of organized commercial interests, it is hard to argue that the DNSO policy making process represents the domain name community in any meaningful way.
Should there be a constituency for individuals, and if so, how should its membership be constituted?
How do you ensure that individuals who choose to form an individual constituency represent the vast interests of individuals?
There should be a constituency for individuals. So far, relatively few individuals have participated in the proposed IDNO. An important reason why participation has been so low, however, is that so far it has had no payoff. Individuals do not have constituency status, and a detached observer might be forgiven for concluding that it is unlikely that the Names Council and the Board will grant them that status. Energy expended on participation at this juncture, therefore, is likely to be in vain. By contrast, if such a constituency were in fact created, with the ability to elect and instruct Names Council representatives, I would expect participation to be much more extensive and more broadly based.
At some level, to demand assurances that an individuals' constituency will "represent that vast interests of individuals" may place on this proposed constituency a burden not imposed on the others. It is hardly clear, for example, that the Business and Commercial constituency represents "the vast interests of businesses," as opposed to the interests of the particular businesses who are most active in that constituency's affairs.
C. General Assembly (GA)
How can the level of participation by constituency members in the GA be improved?
How can the level of participation by GA members in the GA be improved?
The General Assembly labors under the handicap of having no function and no authority. The only function given by the bylaws to the General Assembly *as a body* is to "nominate, pursuant to procedures adopted by the NC and approved by the Board," the DNSO members of the ICANN board. Under the Names Council's procedures, a candidate shall be deemed nominated if he is endorsed by at least ten members of the General Assembly. Experience has shown this to be an inconsequential hurdle
Because the GA is powerless, participation in the affairs of the GA as a body has no payoff. Because participation has no payoff, few people participate in the GA's discussions. That result is inevitable so long as the GA, as a body, has no function.
If changes are made in the constituency structures, and possibly an individual constituency added, should the GA continue to exist?
The GA barely exists now. To the extent that the GA is simply a label for the set of interested persons who may volunteer from time to time to serve on working groups, etc., then that label can surely continue to be used. To the extent that the GA is intended to signify an institution that has have functions and authority *as a body* in the domain name policy making process, no such institution currently exists. I think that it would be desirable if such an institution did exist but we need not worry about abolishing something that doesn't exist today.
D. Working Groups
Are the working groups an appropriate mechanisms to foster consensus in the DNSO?
Are there mechanisms other than working groups that the NC should employ in managing the consensus-development process? For example, assigned task forces?
The appropriate treatment of working group results presents a difficult issue. On the one hand, the DNSO working group process can usefully narrow differences between opposed groups. It makes it possible for a broad range of participants to participate, and make their expertise available, in a direct and unfiltered way. On the other hand, because working groups are self-selected, there is no guarantee that any particular working group actually reflects the community as a whole.
The Names Council should ask, in each case, for adequate assurances that a working group was diverse, and that it adequately sought to collect comments from across the broad range of the community. If those conditions are met, the Names Council must pay careful attention to the working group's results. It should not simply dismiss those results on the basis of its members' intuition that the community consensus lies elsewhere; it may be the working group, rather than the Council, that is more closely attuned to community feeling. This point is especially vital given the Names Council's flaws as a representative body, discussed above. Assigned task forces do not provide the answer, because they replicate the failings of the existing constituency structure.