[ga] CYBER-FEDERALIST NO.13: Staying the Course on Internet Privatization

["Hans Klein" <hans.klein@pubpolicy.gatech.edu>]

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   CYBER-FEDERALIST          No. 13         31 May 2002

   STAYING THE COURSE ON INTERNET PRIVATIZATION
                  Comments on ICANN Reform [1]

              Civil Society Democracy Project (CivSoc)
    Computer Professionals for Social Responsibility (CPSR)
                   http://www.civsoc.org

               The Internet Democracy Project
          http://www.internetdemocracyproject.org/
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The ICANN board and staff are currently considering major changes to the 
design of ICANN.  These changes were first proposed in President Stuart 
Lynn's February Report (the "Lynn Proposal") [2] and are being elaborated 
by the ICANN Committee on Evolution and Reform [3,4,5,6].

Computer Professionals for Social Responsibility (CPSR) is the oldest 
non-profit, mass membership organization working on social impacts of 
computer technology.  CPSR's Civil Society Democracy Project (CivSoc) has 
been an active participant in Internet privatization since before the 
launch of ICANN.  CivSoc has offered the following comments to ICANN on reform.

* The Lynn Proposal would redefine US policy for Internet 
privatization.  However, such policy redefinition is outside the scope of 
ICANN's authority.  Modification to the terms of the 1998 Internet 
privatization should be made by the US Department of Commerce (DoC), in 
consultation with other parties (including other governments.)

* ICANN does exercise policy authority in DNS matters.  While the 
appropriate breadth of its policy-making power is an object of considerable 
debate, the fact that it makes policy is no longer contested -- even by 
ICANN [4].  This exercise of policy-making power creates the need for 
legitimacy.

* ICANN has not fulfilled the conditions of the 1998 Internet 
privatization.  In particular, ICANN still lacks the required degree of 
user representation on its Board.  Industry control of the ICANN board has 
created a legitimacy deficit.

* The main mechanism for legitimacy in ICANN has been the election of user 
representatives to serve as At Large Directors.  The Lynn proposal rejects 
this mechanism.  However, elections were successfully conducted in 2000. 
Moreover, the use of elections to select At Large Directors has been 
explicitly endorsed by:
o the European Commission's Christopher Wilkinson [7]
o former ICANN Chair Esther Dyson [8]
o former Swedish Prime Minister Carl Bildt [8]
o Carter Center official Charles Costello [8]
o Numerous academic studies [9, 10]
o Numerous public interest groups [11,12]

* Problems with the At Large elections may have their source more in the 
opposition of the ICANN staff than from the inherent difficulties of 
conducting elections.  A good faith effort to hold elections again would 
likely yield even better processes than in 2000.

* The keyword for the Lynn Proposal is "effectiveness." By that is meant 
that ICANN should significantly reduce its emphasis on procedural 
safeguards (legitimacy) and be empowered to act in a more direct and 
unfettered manner.  The Lynn Proposal recommends that ICANN become a more 
centralized authority with reduced accountability to outside entities and 
should be able to impose contracts on registries and other parties and to 
call on national governments for enforcement.    This call for centralized 
authority with strong power of enforcement is a dramatic departure from 
established Internet practices of decentralized management and voluntary 
cooperation.

* The Lynn Proposal's inclusion of governments in ICANN seems as much 
motivated by a need for assistance in enforcement as by a concern for the 
public interest.  Greater enforcement powers of ICANN policies by national 
governments would be a dramatic departure from established Internet practices.

* The ICANN Committee on Evolution and Reform has introduced the term "the 
ICANN community" where the previous term of reference was "the Internet 
community" [6].  This manifests a significant narrowing of the vision of 
input and accountability within ICANN.

* The recently announced resignations of top ICANN staff raise the specter 
of a sharp drop in organizational effectiveness [13].  The combination of 
staff turnover and major restructuring could introduce so much simultaneous 
change into ICANN that it cannot function effectively.  ICANN faces a 
near-term risk of destabilization.

* The Department of Commerce faces a number of choices:
o DoC could allow ICANN to pursue it current course of redefining itself 
and of redefining Internet privatization generally.  That puts US 
policy-making in the hands of the private groups on the ICANN board and 
leaves open the risk of organizational destabilization.
o DoC could use the upcoming expiration of its ICANN agreements to revise 
US policy on privatization.  Revising the various the ICANN-related 
agreements (be they MoUs, contracts, or procurements) would allow for an 
appropriate policy-making process, i.e. a process under the authority of 
the DoC.  A revised Internet privatization policy might embody part or all 
of the Lynn Proposal.  Alternately, it might employ more market mechanisms 
(as recommended by New.Net [14]) or might seek greater involvement by 
international treaty organizations (as recommended by the International 
Telecommunications Union [15]).  In any case, the US government and not 
ICANN would oversee the policy-making process.
o Alternately, the DoC could stay the course.  DoC could reaffirm the terms 
of the 1998 Internet privatization and require ICANN to implement that 
policy.  In particular, DoC could move ICANN to quickly implement At Large 
elections, thereby settling a contentious issue that has consumed much of 
the organization's attention.  As noted above, this would be consistent 
with recommendations of the European Commission's leading official in this 
area and by ICANN's At Large Study Committee [7,8].

* CPSR's CivSoc recommends that last option:
o DoC should stay the course.  It should work closely with ICANN to fully 
implement the original 1998 Internet privatization policy.  That policy 
addressed the inescapable need for legitimacy in ICANN with a mechanism 
that proved workable in 2000: elections.  By avoiding a major 
restructuring, DoC also avoids the destabilizing combination of 
organizational change and staff turnover.  Finally, by staying with the 
original privatization policy, DoC would uphold the Internet traditions of 
private, voluntary, and decentralized management.
o DoC should use all available means to gain ICANN's commitment to 
implement the founding agreements of 1998.
o ICANN should cooperate with DoC in this process.



References
----------
[1] This document is available online at
http://www.cpsr.org/internetdemocracy/cyber-fed/Number_13.html
http://www.CivSoc.org
  [2] Lynn, Stuart, "President's Report: ICANN - the Case for Reform," 24 
February 2002. http://www.icann.org/general/lynn-reform-proposal-24feb02.htm
[3] "Interim Report of the Committee on ICANN Evolution and Reform," 29 
April 2002. http://www.icann.org/committees/evol-reform/report-29apr02.htm
[4] "Working Paper on ICANN Core Mission and Values," 6 May 2002.
http://www.icann.org/committees/evol-reform/working-paper-mission-06may02.htm
[5] "Working Paper: The Policy Development Process," 7 May 2002.
http://www.icann.org/committees/evol-reform/working-paper-process-07may02.htm
[6] "Working Paper on the ICANN Structure and the Nominating Committee 
Process," 9 May 2002.
http://www.icann.org/committees/evol-reform/working-paper-structure-09may02.htm
[7] Wilkinson, Christopher, "Public Policy Issues in Internet Governance," 
On the Internet, January/February 2002.  [Written after the author reviewed 
the Lynn Proposal; see note 4.]
http://www.isoc.org/oti/articles/1201/wilkinson.html
[8] ICANN At Large Study Committee, "Final Report on ICANN At-Large 
Membership," 5 November 2001.
http://www.atlargestudy.org/final_report.shtml
[9] Klein, Hans, ed., "Global Democracy and the ICANN Elections", Special 
issue of INFO-The Journal of Policy, Regulation and Strategy for 
Telecommunications, Vol. 3, No. 4, August 
2001.  http://www.ip3.gatech.edu/publications/info.htm
Contents are:
* Wolfgang Kleinwächter, University of Aarhus (Denmark), "The Silent 
Subversive: ICANN and the New Global Governance"
* Stephen D. McDowell and Philip E. Steinberg, Florida State University, 
"Non-state Governance and the Internet: Civil Society and the ICANN"
* Renée Marlin-Bennett, American University, "ICANN and Democracy: 
Contradictions and Possibilities"
* Jonathan Weinberg, Wayne State University, "Geeks and Greeks"
* Hans Klein, Georgia Institute of Technology, "The Feasibility of Global 
Democracy: Understanding ICANN's At-large Election"
* Myungkoo Kang, Seoul National University, Beyond Underdevelopment of the 
Public Sphere: Democratizing Internet Governance in Asia"
* Hans Klein, Georgia Institute of Technology, Editor's Introduction: 
"Global Democracy and the ICANN Elections"
[10] Klein, Hans, "Online Social Movements and Internet Governance," Peace 
Review, Vol. 13, No. 3, September 2001, 403-410.
[11] Center for Democracy and Technology and the Markle Foundation, "ICANN, 
Legitimacy, and the Public Voice: Making Global Participation and 
Representation Work," The NGO and Academic ICANN Study, 31 August 2001.
http://www.naisproject.org/report/final/
[12] CivSoc, "User Interest in ICANN is Broad and Deep," Cyber-Federalist 
No. 12, 14 February 2002.
http://www.cpsr.org/internetdemocracy/cyber-fed/Number_12.html
[13] ICANN, "Lynn to Retire in 2003; McLaughlin to Go Half-Time," Press 
Release, 27 May 2002.
http://www.icann.org/announcements/announcement-27may02.htm
[14] New.Net, "A Proposal to Introduce Market-Based Principles into Domain 
Name Governance."
http://www.icann.org/icp/icp-3-background/new.net-paper-31may01.pdf
[15] Zhao, Houlin, "ITU-T and ICANN Reform," International 
Telecommunications Union, 17 April 2002.
http://www.itu.int/ITU-T/tsb-director/itut-icann/index.html


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CYBER-FEDERALIST is a series of analyses and commentaries
on Internet governance and ICANN produced by the
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Computer Professionals for Social Responsibility (CPSR).
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