ICANN Operating Principles

[Joe Sims <jsims@xxxxxxxxxxxx>]

As some who read these comments will recall, I had a substantial amount of
involvement in the creation of ICANN, and in its operation over the first
several years of its existence. For the last few years, my role has been
confined to providing legal support to ICANN, but I retain an interest in
its successful development and operation, and thus try to generally stay
aware of major events.  I have read the ICANN papers that originally
sparked this discussion, and reviewed the comments on the specific
questions ICANN sought responses to.  I agree with many of the basic points
made -- ICANN should strive to be as open and understandable to the broad
range of persons and entities that are interested in and affected by its
operations, and should continue to improve the mechanisms available for all
those interested to participate in ICANN processes.  But the fact is that
"those interested in ICANN" is an incredibly broad and diverse group,
notwithstanding the fact that it is almost certainly a microscopic fraction
of the universe of persons and entities that are or could be affected by
ICANN's decisions.  This inevitably means that some -- those with direct
business interests, who have a financial incentive to affect ICANN's
actions, and those with a professional (if non-economic) interest in
process and public representation -- will have greater ability and
incentive to participate, while the larger group of those affected by but
not knowledgable about, or sufficiently interested in, the details of
ICANN's operation will typically not be heard.  For this reason, ICANN was
originally structured with several different "buckets" of interests, with
the goal that in various ways all those affected could participate and be
heard in some way, and no one group of particularly motivated (either by
economics or political ideals) persons could dominate the ICANN
decision-making process.

Of course, everyone involved in ICANN from the beginning recognized that it
was a unique entity -- not a governmental body, but with some of the
attributes of such entities; not completely a private body, but with some
of the attributes of such entities; not a representative body, but broadly
representative of the interests and entities affected by ICANN; not a
democratic body, but a broadly open and acessible organization where all
interested voices could be heard.  Everyone involved in ICANN can probably
agree that it has not yet met all these objectives, although I would think
there would be wide agreement that ICANN's existence has seen a steady
trend of improvement in almost every respect.  The current ICANN staff is
clearly the most effective in ICANN's history, and in particular Paul
Twomey has both unmatched experience with all aspects of ICANN and the
long-term commitment to making it work as effectively as it possibly can --
which I know from considerable contact with Paul means trying to reach all
of the goals set for ICANN by its creator, Jon Postel.  This current
exercise in planning and consultation is certainly aimed at those goals.

I had two basic points to make, reacting to the thoughtful comments
submitted so far.  First, and I cannot emphasize this enough, ICANN is not,
should not be, and should not be modeled after, a government agency.  If a
government agency is what is needed to carry out ICANN's mission, there are
plenty already in existence; there is no need to invent a new one.  But
ICANN's raison d'etre is to avoid having the Internet managed by a
government bureaucracy, with all that implies.  Indeed, one concern I have
about the recent growth of the ICANN staff structure is that it may turn
into, for all practical effects, a government bureaucracy.  Of course, that
is not what anyone intends, but bureaucracies of all kinds are
self-perpetuating and insatiable growers, and while ICANN surely needed
more structure and funding than it had in the early years, the risk of
becoming just another bureaucracy is a real one, constantly to be resisted.
So I disagree with CDT and the other commenters who seek some form of
Administrative Procedure Act structure to ICANN decision-making.  The
better answer lies in some of the other comments from CDT and others -- a
true and understandable visibility to all of ICANN's actions.  As I will
explain in more detail below, this does not mean a show of hands on
everything, but it should not be all that difficult, now that ICANN has a
respectable and predictable level of funding, to ensure that what happens
at every level of the entity is explainable and explained, in words and
language that is understandable to the broad range of ICANN constituencies.
If this actually happens -- and we are clearly not there yet, although
heading in the right direction -- there will be plenty of opportunity for
those who have different views to make them known and to persuade others,
and to effectively criticize actions and decisions that are contrary to
what they think should be happening.

This leads me to the main issue -- which has been the main issue since
ICANN was formed:  How shall it be managed and governed?  There still is
present in these comments, although less so than in earlier years, a strain
of commentary to the effect that the staff has too much power.  Well, time
for a reality check:  the "staff," whether it is the civil service
employees in a government body, or the rank and file in a corporation, or
for that matter the permanent staff of the CDT, always has a lot of
influence on the actions of any body.  They are the people that are
permanently focused on just the issues before that entity, while the board
or elected officials or senior management are more transient.  Every
effective organization has good, influential staff.  The key is that the
staff is given appropriate policy direction by the group that represents
the constituency(ies) that "own" the entity.  In an ordinary corporation,
it is the Board of Directors as elected by stockholders.  In a non-profit
corporation, like ICANN, it is the Board as representative of the various
relevant constituencies.  In a government, it is the elected or appointed
officials.  In a law firm, it is the Managing Partner or Committee,
selected by any number of different techniques.  In all cases, if they are
doing their job right, they are trying to understand the desires and needs
of all the relevant constituencies, and balancing those to arrive at the
most appropriate decisions for the entity as a whole.  There are several
interconnected elements required to make this work.  First, the Board (or
other governing body) needs to be committed to making the decisions,
sometimes hard and unpopular, that are necessary to enable the entity to
most effectively carry out its mission.  Second, the Board needs to be
generally representative of all the relevant constituencies; an
unrepresentative Board could theoretically make all the right decisions,
but still face criticism as being "illegitimate," as we found out in the
early days of ICANN.  And finally, there needs to be some form of
mechanism, which could be nothing more than periodic replacement, to hold
the Board accountable to the constituencies it is supposed to be serving.
I don't want to get into a debate here about what the perfect ICANN
structure is or could be; we all know Karl Auerbach's position (everyone
must be elected) and most of us know as well that is unworkable and
unrealistic.  It would produce a "democratic" result, but given the widely
varying degrees of understanding and access around the world, it is hard to
imagine that it would actually be truly representative.  And it is its
representative quality, not how it gets there, that seems to me to be most
important.  ICANN has struggled since its creation with how to find the
most representative Board, and the present system is certainly not above
criticism, but it does seem to me that it has generally produced an
acceptable quality of representative Board members.  Of course, there is a
variety of effectiveness and focus among the members of the Board, but this
is true of any body of more than one person, and the combination of
non-voting liaisons, persons selected by various constituencies, and
persons selected by a very broadly representative Nominating Committee has
worked pretty well.  It is certainly as likely to produce a representative
Board as the processes of the vast majority of non-profit organizations,
probably including those that participate actively in ICANN.

And finally, the notion that the Board should not act until there is a
"consensus" in the ICANN community is simply not workable.  This is a
hold-over from the original concept that ICANN should be a bottoms-up
organization, interpreted by some (mostly theorists and those who wanted a
weak ICANN) as merely a body (probably very small) that simply implemented
decisions already arrived at by a broad consensus of all interested
parties.  This probably made no practical sense from the beginning, but it
clearly would not work today, given the wide variety of economic and other
incentives driving particular members of the ICANN community.  Just look at
the various lawsuits by registrars trying to protect their narrow business
interests, or the understandably parochial approach of many registry
operators, or for that matter some of the more naive positions taken by
those with mainly philosophical interests at stake, to see how incredibly
difficult it would be to arrive at a consensus that would be recognized as
such.  ICANN is a new kind of entity, but it does not repeal the laws of
common sense or economics or politics, and so it has to work within those
practical constraints.  This means that the Board has to be able to arrive
at decisions that are informed and influenced by the actions of various
parts of the ICANN community, but like all Boards, it has a fiduciary legal
duty to act in the best interests of the organization, and if that requires
acting before or contrary to someone's idea of consensus, so be it.  Given
the regular turnover of Board members, and the wide variety of backgrounds
and interests that they bring (in fact, that they must bring, consistent
with ICANN bylaws) to the Board, there is plenty of opportunity for those
unhappy with decisions or directions to make their views known and to try
to gain enough support to promote people to the Board that would share
their views.  The Board selection process can no doubt be improved, and
there is certainly room for improvement in the clarity and visibility of
ICANN process and decision-making, but there is no reason to change the
fact, embodied in the ICANN Bylaws now for the last several years, that the
Board has the responsibility and authority to make decisions on behalf of
ICANN.   Given ICANN's unique attributes, managing it is an extremely
challenging proposition in the best of circumstances; to ask anyone to take
on that responsibility but not allow them to exercise their best judgment
in so doing would make it impossible -- and probably insure that very few
qualified people would ever want to become ICANN directors.

Joe Sims