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Elusive Consensus

by ICANNWatch Editors (David Post, Michael Froomkin, David Farber)
Webposted on 21 July 1999

ICANN's response to the Commerce Department's July 8 letter is an interesting document. Commerce's letter made 4 points: 

  1. ICANN's top priority must be to complete the work necessary to put in place an elected Board of Directors on a timely basis.
  2. ICANN should eliminate the $1 per-year, per-domain name registration user fee.
  3. ICANN should immediately open its Board Meetings to the public. 
  4. ICANN should "assure all registrars and registries through its contractual relations that it will restrict its policy development activities to matters that are reasonably necessary to achieve the goals specified in the White Paper and that it will act in accordance with the procedural principles set forth in the White Paper." 
On all points, ICANN's response was a conciliatory one. They reiterated their goal to "begin to implement" a process for electing At-Large Directors at their next meeting and to "replace each and every one of the current Board members as soon as possible," they agreed to "defer" the $1 fee, and to hold the Santiago meeting as a public meeting. And finally, though they viewed concerns about "over-regulation" as "misplaced," given the "clear limitations in ICANN's articles and bylaws on the scope of its permissible activities and because ICANN "is nothing more than the reflection of community consensus," they agreed to include language in their contracts with registrars and registries that "no ICANN policy is being agreed to in those contracts that is not fully consistent with, and reasonably related to, the goals of ICANN as set forth in the White Paper, which are replicated in ICANN's bylaws." 

There is much one can say about this. ICANN's recognition that it was overstepping its bounds by attempting to impose an Internet-wide fee, and that it needs to increase the transparency of its affairs, are all to the good. 

But they still don't get it on the governance front, and it is worrisome that they don't appear to take these concerns seriously. The idea of including a provision in ICANN's contracts that ICANN will restrict itself to things that are "reasonably necessary" to achieve the White Paper goals is a good step -- though as one of us [MF] has pointed out, it would be considerably more effective if this provision were enforceable not just by the registries and registrars, who may have commercial reasons to fear upsetting ICANN, but by Internet users themselves. 

But it hardly seems reasonable to say that the concerns of its critics are "misplaced" because of the "clear limitations in ICANN's articles and bylaws on the scope of its permissible activities." However good the language in the ICANN Articles and Bylaws, the real question is: by what mechanism are those "clear limitations" to be enforced? The Soviet Constitution had as many "clear limitations" on the government's ability to interfere with the lives of its citizens as you could ask for, and it failed because the folks who did the interfering were the same ones deciding whether or not the "clear limitations" had been transgressed. One of us [DP] has in the past urged ICANN to set up an Independent Review Board that would have the power to review ICANN's actions and to enforce those limitations, and we continue to believe that this is worth exploring as one way (though it is not and should not be the only way) to make sure that this particular check on ICANN's power actually works. We hope that -- or some alternative(s) to provide a meaningful check on ICANN's exercise of power -- is still high on ICANN's top-priority agenda. 

Second, this notion that ICANN "is nothing more than the reflection of community consensus" continues to defy common sense. How ICANN interprets "consensus," and how it thinks such a consensus is uncovered, is deeply mysterious (and of the greatest importance). On the one hand, they "do not see a global consensus demanding that ICANN hold all its meetings in public" -- probably the one thing, in this whole process, on which it looks to us like there IS global consensus. [Who, besides the Board itself, has argued against full transparency and openness in all Board meetings!] On the other hand, does ICANN really believe that they HAVE achieved a global "consensus" on the other policy issues on which they have taken positions -- endorsing portions of the WIPO Report, say, or imposing the $1 fee? They cite an "evident consensus" that the Bylaws should be changed to prevent NSI from naming non-NSI opponents to the Names Council -- without explaining where exactly they found this consensus. We perceive a great divergence of opinion on these questions, and do not regard the issues as settled, or consensus as found, by a poll of the the people who had enough time and money to attend an ICANN public meeting. 

The problem of figuring out how gauge consensus in a highly fragmented on-line environment is a very difficult one. The DNS, and many other aspects of Internet infrastructure, do function on the basis of global consensus, consensus that has been built up over many years and by means of complex relationships and interactions we don't pretend to understand fully. It can, we are confident, be replicated -- but not easily, not simply, not with the stroke of a pen, and not without a lot of time and a lot of hard work. Our confidence that ICANN is willing to take that time and do that work does not increase when they continue to act as if the problem did not even exist.