Johnson and Crawford: 'What Joe Sims Doesn't Get'
Date: Sunday June 16 2002, @05:23PM
Topic: The Big Picture

Readers of Politech and Interesting-people have been treated to a not-so-genteel debate on ICANN this week. It began with an article by Prof Michael Geist, reacting to the ICANN hearings. That prompted a reply from ICANN Counsel Joe Sims, which invoked answers from Geist and Lauren Weinstein; and, most recently, Joe Sims's Answer to Weinstein.
[UPDATE (6/17): Lauren Weinstein's Beyond the ICANN World View]

I conclude from this exchange that there is nothing in the world that would prompt ICANN to swerve from its intended course, that we're engaged in a dialog with people who do not want to hear unless they are made to. Backs to the wall, they fall back on their chief weapon, the old line that "if not ICANN, then the evil governments." But this line is increasingly threadbare, as many people sick of the whole mess start casting about seriously for alternatives such as breaking ICANN into pieces...and as the traditional handmaiden of those "evil governments," the ITU, starts looking better and better in the right light.

Other people, however, are among nature's optimists. Among them are David R. Johnson and Susan P. Crawford, whose entry into this debate, entitled What Joe Sims Doesn't Get, follows.


What Joe Sims Doesn't Get

By David R. Johnson and Susan P. Crawford

It is easy to identify the key code words in the ICANN restructuring debate. ICANN is looking for "effectiveness" and "stability" -- code for the ability of the future ICANN Board (one that will not include At Large members) to make decisions on its own. At a recent Senate hearing, ICANN critics said they were looking for a "narrow mission" and "accountability" -- code for a narrowed top-down statement of ICANN's role and increased involvement of At Large members. Recently, there has been an interesting exchange between Joe Sims (ICANN's outside lawyer) and academics regarding the nature of reforms needed to achieve shared goals of "openness, fairness, and stability."

These exchanges make clear that ICANN is approaching its moment of truth. But there is a key problem raised by the language being used by both sides. The problem is that openness, fairness, accountability, and even "narrow mission" (in the sense of regulatory mission) all speak to questions that might confront a governmental body, not a private sector body. ICANN was always intended to be, and should remain, a purely private sector body.

Senator Burns, prior to last week's hearing, said that ICANN needs to operate with the same sort of internal processes as any other federal agency. But that was not the original idea. When the White Paper called for creation of a private sector ICANN, it meant that ICANN should not have the right to tell anyone else what to do other than through voluntary contracts. That's the thing about being private -- if you want to tell someone else what to do (and have a guarantee that they will obey), you have to go to a government (by way of a court or a legislature) and get a sovereign with jurisdiction to order that person to act. Only governments attempt to have a monopoly on the legitimate use of force within their territories. Private entities don't.

"Openness" and "Fairness" Are Regulatory Words. Unfortunately, both Joe Sims and ICANN critics regularly invoke and debate the amount of notice, commentary, and written justifications for ICANN's actions that would be appropriate -- the "Administrative Procedure Act" theory of ICANN "legitimacy." ICANN critics argue that ICANN should be more open and less secretive -- that it should give time for comments, read all the comments, and explain the reasons for its decisions. The problem is that, even if ICANN did all of these things, it still would not have the (legitimate) right to order other people around if they did not agree.

Joe Sims is right that even most truly governmental bodies don't have to hold every meeting in the open and listen to every voice as if it has the same significance. But he is very wrong to suggest that an ICANN that managed to become more "open and fair" would therefore be entitled to act like a regulatory body -- an entity that could order people around without their agreement.

"Accountability" is the Wrong Word -- Try Legitimacy. ICANN's critics err again to the extent they suggest that, once openness is achieved, the remaining task for ICANN is "accountability." The point about being private (as opposed to governmental) is that you don't have to be "accountable." But you do have to get others' agreement if you want to influence what they do. It is only those who can tell others what they must do who must be accountable -- because the power to order people around without oneself being subject to some orders from someone makes us justifiably nervous.

When Senators and Congressmen grumble about "accountability," they are thinking about the problem that would be posed if a governmental agency never had to report to them for an appropriation (or an upbraiding). The fact that the private citizens and private companies assembled in the hearing room are not "accountable" to the Congress in this sense is what makes those people part of the private sector (and free market).

The APA theory of legitimizing ICANN can never work -- not (as some critics suggest) because ICANN could not mend its ways to allow open comment forums, listen to such comments, and explain its decisions. ICANN could master all of these tasks and perform them thoughtfully. But it is hard to figure out how the concept of "fairness" applies to a job that is either purely technical (where "accuracy," rather than fairness, would seem to be required) or involves balancing incompatible values when making policy. When that balancing is needed, the right question will be not whether the decision-maker is neutral, but rather whether that decision-maker is entitled (perhaps most notably by the agreement of others to defer) to make the decision.

ICANN Cannot Be A Regulator. Both the critics' call for more openness and process, and Joe Sims's reasonable responses regarding the limits on how "transparent" an "effective" process can be, really miss the point. If ICANN is to be a private sector body -- rather than a governmental regulator disguised as a nonprofit -- then it cannot obtain the right to order others around against their will just by listening to comments (however thoughtfully).

If ICANN tries to regulate, no amount of process can render it legitimate because there is no basis on which it can claim to have governmental power. Even if its relationship with DoC and Congress or the GAC were altered to provide some reassurance that it was "accountable" to governments (or, indeed, even if Board members were elected and accountable to voters in that sense), that kind of "accountability" would still not give it the right to govern others. Nor would that "accountability" give it the right to use its control over some scarce resource -- such as a power to say who goes in "its" authoritative root -- to achieve the same result.

What Joe Sims doesn't get is that there is real meaning to the original requirement that ICANN operate as a private sector body. The point was not just that ICANN could operate more rapidly than governments. The point was also that it could be allowed to do so because it was a private sector body that didn't have the power to tell others what to do but had to instead achieve coordination by agreement.

We hate to harp on this, but that's where "consensus" comes in. Consensus, the agreement not to hold out irrationally against a widely supported global policy, is the basic deal that can be achieved voluntarily. Consensus keeps ICANN in the private sector, and keeps ICANN from purporting to regulate, while still giving ICANN the ability to influence the way the DNS operates.

No amount of "process" or "accountability" could legitimize converting ICANN from a private sector body into a regulatory body. Any reform proposed by those who think of ICANN as an effective representative of the global Internet community's view of the public interest simply cannot work. But the amount of process required to legitimize an ICANN that really is a private body -- and really has to "govern" by "consensus" -- is quite modest. Let's turn our hands to this latter task, and leave the regulating to the regulators.

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Re: Johnson and Crawford: 'What Joe Sims Doesn't G
by fnord (groy2kNO@SPAMyahoo.com) on Sunday June 16 2002, @06:44PM (#7218)
User #2810 Info
Much as I have been less than kind to Crawford and Johnson in their recent submission, I think they've hit the nail on the head with this one. What I think they miss, and I think most ICANNWatch editors and many Watchers, and even Joe Sims miss, is that whilst they debate how many angels can dance on the end of a dot, the real world is passing them by.

The number of downloads of free/shareware P2P file sharing programs is in the tens of millions, the number of files those downloaders share is conservatively 10x that again. It matters not a whit what domain name they originate from, some come from a geocities account or jump.to address that is functional for a few hours, some come from an IP address with no associated domain name (or useful WHOIS record), many come from other sources too esoteric to go into for my present purposes, but they do exist, at least temporarily. Neither the providers nor users pay much attention to ICANN, even in the wildest dreams of its most hardcore BoD and staff members they would be at a loss to stop this traffic. We are arguing irrelevancies here, of academic interest only to the student or teacher most in need of grasping at straws.

Joe Sims may or may not get this, if he does perhaps that is why he is apparently going to retire. Short of pulling the plug and shutting down the net (and those using this newfangled internet thing in the way it was first intended know that there is no one plug, not even the ICANN root), there is no hope for the control freaks, the situation is entirely out of control. The consensus that everyone seeks and no-one can find is out there now, we consent to share bits. In the time it has taken me to write this, or you to read it, I have shared more binary data (which may be a picture or a music file or a DDoS attack or a political tract) than the entire contents of ICANNWatch.org and ICANN.org and the GA archives put together.

I'm sorry to tack this on to a Crawford and Johnson submission as I think that generally they are people who do get it, they usually bring up angles and viewpoints that I, and I suspect many others, wouldn't otherwise think of, but geez, let's cut to the chase. Nothing Joe Sims thinks, says, or does, has any power over me at all, and that goes for his client as well. If y'all want to consent that it be otherwise then feel free to do so, give them that power. But don't expect my sympathy when they use it on you. -g

[ Reply to This | Parent ]
Re: Johnson and Crawford: 'What Joe Sims Doesn't G
by PeterBarron (pebarron@hotmail.com) on Sunday June 16 2002, @07:06PM (#7219)
User #3240 Info | http://www.icannwatch.org/
So let me see if I understand. ICANN is not a government, nor is it a regulator. Yet it has control over a resource, the root, by virtue of the fact that the United States has given ICANN the power to be the sole official suggestor of changes to that resource.

I cannot go to the United States, by example, and ask that a change be made in the root. I would be told that I have to go through ICANN.

So ICANN governs and regulates, as it has the power. End of story.

Or is it?

If ICANN is not a government, yet they control this resource, and they are not allowing open access, is that not a violation of United States law? Perhaps there's nothing I can do, as I'm not a citizen. But cannot any corporation in the United States make trouble out of this?

Blast with consensus and openness and transparency. What it seems to be to be is simply a case of unfair business.

++Peter
[ Reply to This | Parent ]
Re: I.C.A.N.N
by ANNODOMINI2000 (reversethis-{KU.OC.OOHAY} {ta} {D0002DA}) on Sunday June 16 2002, @11:14PM (#7222)
User #3359 Info | http://www.ad2000d.co.uk/
I used to assume I.C.A.N.N stood for International Corporation for Administration of Names and Numbers but, of course, I now know it doesn't!

Why don't we just cut all the crap, verbose talk and talk-back and get back to the basics of what this is all about?

(i) ICANN should - no, MUST - be administered Globally (ie, Internationally), with participation for ALL Internet-utilising countries

(ii) ICANN should - no, MUST - be non-profit making

(iii) ICANN should - no, MUST - not be allowed to employ biased or partisan outside agencies or lawyers to act or speak on its behalf

(iv) ICANN should - no, MUST - allow ALL Internet Users and Domain Name Holders (both small, big and medium) to have at least some SAY in how the organisation is run

(v) ICANN should - no, MUST - let the ENTIRE Internet Community (ie, ALL those who wish to be involved and play their part) have their own UNIVERSALLY-ELECTED COMMITTEE/COUNCIL that would ratify, review and/or approve new Legislation or amendments of Policy, and also conduct Appeals upon request of grass-root Internet Users

Will ICANN let all this happen?

NO WAY

So how can we make sure it happens?

GET RID OF ICANN AND REPLACE THEM WITH A NEW DEMOCRATIC GLOBAL ADMINISTRATION, or FORCE THEM TO CHANGE (fat chance!)

Or is it me and I'm simplifying things too much??
[ Reply to This | Parent ]
Re: Johnson and Crawford: 'What Joe Sims Doesn't G
by fnord (groy2kNO@SPAMyahoo.com) on Tuesday June 18 2002, @08:59PM (#7259)
User #2810 Info
Karl Auerbach and Michael Geist on politechbot about other things Joe Sims doesn't get. -g
[ Reply to This | Parent ]
Re: Enough babble from you
by ANNODOMINI2000 (reversethis-{KU.OC.OOHAY} {ta} {D0002DA}) on Monday June 17 2002, @10:04AM (#7229)
User #3359 Info | http://www.ad2000d.co.uk/
Hey! Nice copying of my writing style - I am very flattered!! Thank you so much! (*joke*)

But please do take another look in the mirror matey - you sound like you have a very bad case of what I believe those American 'shrinks' call 'transference' to me! (oh, and if you don't know what that is, just ask YOUR Psychiatrist! I don't have one, so you can ask them. Sorry, mate!)
[ Reply to This | Parent ]
Ps Re: Enough babble from you
by ANNODOMINI2000 (reversethis-{KU.OC.OOHAY} {ta} {D0002DA}) on Monday June 17 2002, @10:07AM (#7230)
User #3359 Info | http://www.ad2000d.co.uk/
What do you consider so 'non-sensical' about my common-sense and eminently sensible ideas please? (Speak up, or SHUT UP, as you so eloquently put, matey...)
[ Reply to This | Parent ]
Re: ICANN
by ANNODOMINI2000 (reversethis-{KU.OC.OOHAY} {ta} {D0002DA}) on Sunday June 23 2002, @02:09AM (#7395)
User #3359 Info | http://www.ad2000d.co.uk/
To be fair, the Arbitration Forums and Panelists are generally more to blame than ICANN regarding the UDRP, which is - basically - a good policy, in my opinion
[ Reply to This | Parent ]
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