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The October 2, 2002 draft "Proposed New Bylaws Recommended by the ERC" purports to give the Board power to impose policies in the absence of documented consensus. The new Bylaws allow the Board to adopt policies by majority vote (if the Names Council cannot agree by supermajority vote) or by a two-thirds Board vote (overriding a supermajority vote of the Names Council to the contrary). Once the Board adopts a particular policy, the Bylaws direct the ICANN staff to "take all necessary steps to implement the policy." Taken together with a mission statement that authorizes any policy development activities "reasonably and appropriately related" to coordination of the domain name system, the draft Bylaws suggest that the Board has potentially broad powers to enact mandatory rules -- to make ICANN "effective," in ERC-speak.
But the Bylaws are not self-executing. ICANN can enforce its rules only through the contracts it has signed with registries and registrars. Right now, those contracts make new ICANN policies binding only when they are supported by a documented consensus among substantially affected parties, and only if there is an Independent Review Panel with the power to review complaints that the necessary consensus has not been demonstrated. (An IRP with such powers is not created by the Bylaws). In carrying out the "all necessary steps" language, ICANN staff may refuse to renew registry contracts (and registrar accreditations) unless and until the registries and registrars agree to sign a new contract giving the ICANN Board these enlarged policy-making powers. We have seen ICANN refuse to amend entries in the IANA database absent a ccTLD's agreement to sign the contract ICANN puts in front of it. Such a blatant use of force in support of the new policymaking regime is likely to work. The Department of Commerce continues to accept ICANN's recommendations regarding what entries should be made in the A-root server -- regardless of whether the recommendations are being used by ICANN to support an illegitimate exercise of government-like powers.
So, faced with the possibility that the Board will be able to make the rules, and that it will be possible at least to require a two-thirds vote of the Board (and thus, perhaps, block the imposition of an unwelcome policy) only if the Names Council itself has acted by supermajority, the registries and registrars have naturally focused on claiming as many votes on the Names Council as they can.
ICANN has offered the registries and registrars a deal in exchange for their support of ICANN's new powers. The proposed Bylaws provide for an equal balance of votes on the Names Council between parties under contract with ICANN (the gTLD registries and registrars) and all others. This deal provides no guarantee that rules will become binding only if supported by documented consensus, but it may be better than the alternative: without this bargain in place, registries and registrars are sure to be outvoted by a supermajority on the Names Council every time. (However, an increased potential for stalemate at the Names Council level only increases the Board's powers, under the proposed Bylaws, by allowing action at the Board level by a simple majority.)
But even this recent bargain is now under attack from a number of directions. Giving those under contract with ICANN enough votes to prevent a supermajority on the Names Council is being characterized as industry capture. And some groups with aspirations to capture the Names Council would like to create many additional constituencies, each of which might get votes that would further dilute those of the parties who must abide by ICANN's policies. Meanwhile, the ERC has not acted to create voting rights for those most obviously and directly bound by ICANN policies: domain name registrants.
Focusing on voting rights in the Names Council is not the best way to reform ICANN. The Board, which has always shown a tendency to act unanimously, can do whatever it wants anyway under the new Bylaws. Reserving half of the Names Council votes for contracted parties will not protect that group against arbitrary Board policies. As we noted above, it may only prevent a Names Council supermajority, making it easier for a bare majority of the Board itself to take binding action.
The real victim of this vote-oriented bargaining may be ICANN's own legitimacy. Seat counting and special deals for artificially-defined constituencies may undermine ICANN's ability to demand deference from governments. And even a widely-accepted compromise on the structure of the Names Council, crafted late at night in Shanghai, will not solve the problem of establishing ICANN's legitimacy in the eyes of those who have not signed up to be bound by rules made by the Board.
The basic problem with any system of allocating votes to decide on ICANN gTLD policies is that no one can claim to be acting as the "representative" of any identifiable group in this complicated online world. The registries show up in person, but even they cannot plausibly claim to speak on behalf of others who would like to be registries but have been denied that opportunity by ICANN's restrictive approach to new TLDs. Many of the accredited registrars also show up, but they do not speak for the resellers and other vendors that may wish that registries did not have to deal only with "accredited" registrars. And beyond the groups that have actually signed contracts, claims of representative status become even more absurd. No one could speak on behalf of all intellectual property holders, small and large businesses, or noncommercial entities affected by ICANN's policies. The Board itself concluded, as a predicate to its "reform," that broad-based democratic elections of "representative" ICANN Board members are impossible.
Since there is no reasonable, principled way to apportion voting power, particularly among groups who cannot plausibly claim to be representing portions of a defined citizenry, ICANN seems to base its claim to regulatory power on its willingness to listen to all the comments that might be made by anyone who shows up. But that claim makes the careful allocations of voting power in the Names Council look even sillier. If the ultimate goal is to inform a "wise" Board that will weigh the merits and do what it thinks is best for the "Global Internet Community," then why should the Board listen to Names Council votes at all?
In any event, ICANN's sincere willingness to listen to comments will not convince anyone other than the Board that ICANN's policies should be obeyed. There has not been and will not be general agreement in the "global Internet community" that the ICANN Board will always be either open-minded or wise. To be obeyed, the Board must either be demonstrably accountable to those they purport to govern, or they must govern only when the affected community generally agrees that they should do so.
In the long term, new ICANN policies will only be enforceable if most who are substantially affected by them agree to go along. ICANN needs a way to test whether policies are strongly opposed by affected parties. Tallying the votes of artificially defined and unrepresentative constituencies will not do the trick. ICANN's only reasonable alternative is to do the work of asking whether (1) there are strong objections to a proposed policy from some portion of those who actually show up to comment and are affected by the policy, and (2) those objectors seem reasonably likely to be "representative" (in the statistical sense, not the elected sense) of a broader group that will be similarly affected but that does not have the time or resources to fly to Shanghai (or has never heard of ICANN). ICANN could gain legitimacy by making it clear that it will not impose a rule in the face of strong objections by those who are affected, argue rationally, actually show up, and are (statistically) representative of a larger group. This also means that, assuming reasonable publication of proposed policies, ICANN may proceed to adopt a binding policy if no one shows up to object.
The impossibility of constructing a global online democracy does not have to be fatal to ICANN's legitimacy. Reserving the power for the Board to make any decision it wants by majority vote, in the absence of consensus among affected parties, poses grave risks to ICANN's future, however. No elaborate deal with respect to who may be allowed to cast which votes on the Names Council will convince the wider world that the ICANN Board should be listened to. But binding ICANN not to impose mandatory global rules unless there is genuine agreement among those who show up that a global rule is necessary (and there is evidence that the proposed rule is acceptable to most of those affected by it) will greatly enhance ICANN's legitimacy and power. Sometimes power increases with a ruler's willingness voluntarily to accept principled constraints.
What ICANN needs to rely on, and what its current contracts compel it to listen to, is the voice of those who are affected by its policies, rather than the vote of arbitrarily-designated, gerrymandered constituencies within the Names Council structure. Both sides of the current debate about Names Council voting structure are wrong. The registries and registrars are wrong to put all their eggs in the "Equal-Names-Council-Vote-For-Contracted-Parties" basket, because the Board can do what it wants anyway under the proposed Bylaws. Those pushing to tinker with the Names Council in the other direction are wrong as well, to the extent that they also want to count votes rather than assure that all voices must be heard and deferred to. The engagement by affected parties that the ICANN reform proposal so urgently seeks to produce can only result from a system that makes the voices of affected parties outcome determinative.
Most importantly, the Board is wrong to try to give itself power to enforce policies in the absence of documented consensus. It is quite possible that it will succeed in this effort with respect to registries and registrars whose investors need them to survive the renewal process. But such a course will ultimately force others, such as governments or registrants excluded from the ICANN inner circle and adversely affected by some future ICANN policy, to bring fatal challenges to ICANN's claimed powers.
No short-term vote allocation compromise can assure ICANN's long-term success. The only "bargain" that can do that is a "social contract" that assures those who will be affected by ICANN's policies that their voices will be respected. The only way to seal that bargain is to write a set of Bylaws that constrains the ICANN Board's power to adopt binding policies in the face of strong, reasoned opposition from those who must obey, or who will be significantly affected by, those policies.
*David R. Johnson is the founder of Graphical Groupware and is teaching a course at Yale Law School about Internet governance and policy. Susan P. Crawford is a partner with Wilmer, Cutler & Pickering. This article was written in our personal capacities and not on behalf of any client of Wilmer, Cutler & Pickering.