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ICANN and the Consensus of the Internet Community 

by David Post
Webposted on 20 August 1999

In her testimony before the House Commerce Committee, ICANN Chairwoman Esther Dyson said that ICANN is nothing more, and nothing less, than an institution embodying and reflecting the "consensus of the Internet community."(1)

Now, I happen not to believe that claim; I don't believe that ICANN can, at this point, lay claim to being a true consensus-based institution.(2)

But I also think that it would be a good thing if ICANN truly were built along those lines; if someone or something is to manage a resource as critical as the Internet's naming/numbering system, the most constructive (and the least dangerous) thing it can be is an institution that truly reflected and implemented consensus among the global community of Internet users. 

It is relatively easy to state what consensus is not: it is not produced by "majority vote," it is not the product of closed meetings, it cannot generally be imposed by fiat from above, and it does not exist if there is substantial reasoned opposition from a significant segment of the affected population. 

It is harder, though, to state what it is. Building a truly consensus-based institution is no simple task, and it is worth asking: if we were to build ICANN to those specs, how would we do it? What would it look like? What would it be doing that it is not now doing? If we are to hold the ICANN Board's feet to the fire on this question -- and I believe we should -- what steps should they be taking to satisfy us that their policies are supported by this elusive "consensus of the Internet community"? 

There is no shortage of models on the net itself for this -- much of the Internet's infrastructure has been built by a consensus-based process (by, among others, the IETF, the W3 Consortium, and similar organizations).(3)  Let me suggest the following concrete proposals: 

1. We could do worse than starting by writing the principle down(4) and getting ICANN to agree, in its Charter or Bylaws, that it will behave only in accordance with that principle. That, after all, is what those documents are for -- to state the principles on which the institution is founded and on which it is, or is not, authorized to act. If ICANN is nothing more (and nothing less) than the expression of the consensus of the Internet community, it should be prepared to say as much in its foundational documents. 

I would therefore propose inserting the following into ICANN's Charter: 

"ICANN will implement only policies derived from a demonstrable consensus of those in the Internet community who will be affected by, and those who will be called upon to implement, those policies."
[We can argue about the specific language I've chosen, and about the ways that this provision can be enforced(5) -- but let's put those issues aside for the moment.] 

2. The role of the ICANN Board of Directors changes significantly under this model. Its primary purpose is no longer to decide what it thinks would be best for the Internet, but rather to uncover and ratify -- or to try to develop -- a "demonstrable consensus of those in the Internet community who will be affected by, and those who will be called upon to implement, those policies."  The Board needs to develop a set of principles that will guide its determinations.  If Working Group J of sub-constituency 4 of some constituency of the Domain Name Supporting Organization suggests that there is some "consensus" that ICANN take, or not take, some action, in what circumstances should the Board believe that claim? 

This is not a simple question. Other Internet institutions (like the IETF and the W3 Consortium) have struggled with similar questions. I would propose the following as a candidate for a minimum set of principles that should guide the Board's actions: 
 

A. Openness. Consensus is not the product of closed meetings or backroom deals. Transparency at all stages is integral to consensus decision-making. The Board should demand evidence, whenever it is presented with a claim that a consensus policy has been developed, that the development process was truly open, free of imposed barriers to the participation of interested parties in the deliberations leading up to the policy formulation. 

B. Time. Building consensus around any policy necessarily takes time -- time for interested parties to inform themselves, to participate in deliberations and discussions that are at least minimally thoughtful, and to understand alternative views and modify proposals accordingly. 

C. Documentation. The Board should insist that any claim that there is a consensus on any policy be accompanied by some form of written report or other documentation of the process by which consensus was reached. That report should (a) explain the steps that were taken to ensure adequate participation in the deliberations by those with a stake in the particular policy in question, (b) demonstrate that there was sufficient time for deliberation and discussion to achieve a true consensus among the affected community, (c) lay out the primary areas of agreement, and disagreement, that surfaced during the process, and the primary grounds of support for, or opposition to, the proposal. Consensus does not necessarily mean complete unanimity of view. But it does require some demonstration that opposing voices were allowed to speak, that their views were considered, and that the existence of opposition does not negate the existence of consensus because the opposition is either limited in intensity, isolated, or unreasoned.

3.  Finally, we hope to create here at Icannwatch an archive of the consensus building process. The ICANN universe is large and complex, and is growing larger and more complex by the day; there are policies and procedures under active consideration by working groups and other components of the ICANN apparatus too numerous to count. We are soliciting your help in trying to keep track of this process, reports from the field, as it were, about whether the processes that are taking place are, or are not, producing true consensus among the participants. For more on this, follow this link. 
  Please direct any comments on the above to me at Postd@erols.com

NOTES

1. The White Paper, for its part, had outlined the expectation that ICANN's "private coordinating process" should "as far as possible, reflect the bottom-up governance that has characterized development of the Internet to date." 

2. See Elusive Consensus, where we wrote: 

"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 people who had enough time and money to attend an ICANN public meeting." 


3. See Joe Reagle's interesting paper on "Why the Internet is Good: Community Governance that Works Well," at http://cyber.law.harvard.edu/reagle.html. 

4. Some might object here; writing it down in this way is, perhaps, both unnecessary and even counter-productive. Most of us are members of any number of associations that operate by consensus that do not seem to need a written statement to that effect. I am a member of a book club, for example, which I started with several friends a number of years ago and which chooses whether or not to add new members "by consensus." We surely don't need to write that principle down anywhere; we all know each other, we trust each other to act in the appropriate way (i.e., not to invite anyone in unless there is a consensus that it would be a good idea to do so), nobody has any real incentive to act outside of the group's consensus (and, after all, not that much is really at stake). Writing it down in some "Rules of the Bookclub" would almost certainly add an element of formality to our association that would like be destructive of the informal nature of the group; among other things, once we write it down we have to start figuring out what we actually mean when we talk about a "consensus" -- does it mean unanimity? If not, does a single strongly-held opposing view mean that no consensus has been achieved? -- that might best be avoided. 

With an institution like ICANN, however, we do need some type of "formal" acknowledgment of the consensus-based nature of its decision-making processes. We -- the members of the global community of Internet users whose activities may well be affected quite profoundly by ICANN's decisions -- do not all know, nor do we necessarily all trust, each other, or the current or future members of the ICANN Board, and ICANN is at least potentially powerful enough that there is, and will continue to be, serious and substantial pressure exerted on the ICANN Board to act in ways that benefit some at the expense of others. 

So writing it down is, I think, a good start -- necessary, perhaps, but hardly sufficient. 


5. Placing the appropriate provision in the ICANN Charter may be a good, and necessary, step, but it is unlikely to be sufficient. Language -- unlike computer code -- is not self-executing, and mere words about consensus, in the ICANN Charter (or elsewhere), will not make it so. How will this promise be enforced? This is a complicated question, and I want to defer detailed consideration for the moment. Two observations. I think that there is a greater likelihood that this provision will have real meaning if an Independent Review Board is empowered to hear claims that the Board of Directors acted in the absence of a true consensus; see ICANN and Independent Review, at http://www.icannwatch.org/reviewpanel/index.shtml. Second, language to this effect can be placed in ICANN's contracts -- with domain name registrars and registries, for instance -- so that those entities can independently bind ICANN to act in this manner.