Participation is bigger than voting

Preamble

Esther Dyson - Overall, having read all this and fresh from two days with the At-large Study Committee, I’d like to comment on the importance of consensus – and the process of achieving it.

We came quite far in our two days of face-to-face, and we will be announcing some more preliminary recommendations quite soon (in time for comments before the ICANN board meeting in Montevideo, September 5 to 9). We were sitting there thinking about how to get our recommendations accepted and implemented. Will the dogs eat the dog food?

I looked around the table of eight and asked: “Which of you has changed your mind about something substantive over the last two days?” That is, not agreed to compromise, but come to a different conclusion about some issue. All of us (as I recall; it was not a formal moment) raised our hands.

And that’s why the process is so important. The governance of ICANN is not just about who gets to vote and how, but about how people participate, throw their ideas into the pot and see them interact with each other to produce something called consensus.. a policy that is coherent and solid, having been poked and prodded and squeezed into shape.

Now indeed we will have to sell our proposal. As we talk to people, most of them, a lot of the response is on the order of: “As long as it makes sense and hangs together, and the other guys agree with it, I can live with it.” Most people are not wedded to one particular answer, but to one that works and that most of the community can buy into.

That’s what consensus (ideally) produces: a set of policies that work, and a set of people committed to operating by them because they feel they had a part (directly or through representatives) in developing them. Then, the role of the ICANN board (including the At-large Directors) is merely to guarantee the integrity of that process and to ratify the results.

Question: Maryam Maruf

Won't transparency flow more from media, discussion spaces, scrutinising the political process, than from political appointees joining career appointees?

It appears that arguments are being made now for developing a political staff around the ICAAN board, to work in parallel with the 'career' ICANN staff (a parallel: political party appointees in government, as against 'civil servant' type officers). Regrettably though, the transparency record of political officials is as chequered as that of civil servants, particularly when we come to unelected advisors and so forth. Would it not be better to concentrate on encouraging the scrutiny of the power bases than on setting up more? - or is the idea to fight fire with fire?

ED - To answer the question above the text: Absolutely, you need all these…most particularly an active and vigilant press, encouraged by people who disagree with those in authority. But one issue with ICANN is that it is short of staff to carry out its mission and to communicate with the public. I’d like that staff to feel accountable to the public as well as to the ICANN structure. I’m not sure we need political officers precisely, but something akin to the people in ICANN’s Supporting Organizations whose day jobs revolve around ICANN activities. They are the people who write the documents that ultimately become ICANN policy, the people who go to the meetings where these policies are debated. Many of them are concerned about the public interest (don’t laugh), but I think we also need people of that kind who feel directly accountable to the At-large Membership. Question: how are they funded?

Question: Paul Hilder, COO, openDemocracy

What do you see to be the respective roles for companies and individuals in the nascent parties and civil society that could develop around ICANN? Are they linked?

Since our interview with Esther Dyson the at-large process has moved on. The At-Large Committee of ICANN has posted its initial findings, which indicate little more than that internet users at large should indeed be involved in some way with the governance and policy development of ICANN. However, the timescale is tight: the Committee is to post a draft report by early September 2001 and submit its final recommendations by mid-November.

It is therefore reassuring that more developed ideas are to be found in three sample 'options' for the new structure of ICANN published more recently. All involve, inevitably, a restructuring not just of the At-Large membership but of the ICANN governance structure in the round.

At first glance, one of these options looks to be closely related to Esther’s thinking about parties as set out in our interview. Under this option 'A', 9 seats remain elected from (primarily technical) supporting organisation, 9 are directly elected by the public, and parties are expected to form within that public. The constituency for the 9 publicly elected seats is presented less clearly than before, though. During the previous round of elections it meant internet users at large – only individuals could be electors. This time around, it includes individuals, but also “companies, NGOs, ISPs, domain-name holders” – a much wider understanding of the term “users”, partly because it needs to take in part of the Domain Name Supporting Organisation constituency which it is proposed to be.

How can these bodies best play a constructive role here? Elsewhere on openDemocracy, we have just seen Maria Livanos Cattaui of the ICC proudly assert business’s place as a vital part of civil society – and with good reason. But companies, despite being legal persons, have not yet been given the vote in offline democratic politics. What, then, is their role in this user constituency? Do they get the vote here, in this online constituency?

ED - I made a mistake; for the record, I was actually responsible for option 'A' – though it was an option, and it does not fully reflect my current thinking. [I didn’t bother to correct my error because the point of the options was not to be any particular person’s work or manifesto, but rather starting points for thinking about the issues in a more concrete way. But for the purpose of this discussion, I can’t very well support option 'B' because I happen to agree with most of what Paul says so eloquently below.]

I do not think corporations and institutions should have a vote in this context, but I do think that their employees (as individuals) should be able to vote if they register to do so. But more important, I think orgs of all sorts – NGOs, businesses, churches, whoever wants to weigh in – should be able to have a voice, propose policies, and so on. As I said before, participation is more interesting than merely voting – though you need both.

PH - Esther in fact claims responsibility for option 'B', not option 'A', which makes little reference to “parties”. It explicitly divides the 9 seats for the “Customer” base into 4 from “Organisational” constituencies and 5 from “individual” constituencies. So it looks very clearly as though the individual electorate’s representation is being reduced from the 9 elected representatives of individual interest users at large currently mandated.

ED - See above.

PH - Presumably the idea is that board representatives may form party-like coalitions around particular issues. But this is a recipe for the seizing of power and then the changing of policy, not for election on clear platforms which are followed through. Party-like coalitions should emerge in the civil society and the consensus that develops there should feed through into representation.

ED - People other than board representatives can form coalitions and then I hope get elected on the basis of platforms and then participate in the formulation of policies reflecting those platforms.

PH - Why this division between “organisational” and “individual” constituencies for users? If we accept for the sake of argument that organisations have something to contribute here, why not in dialogue with and alongside individuals? Companies and NGOs could become directly involved, for reasons of self-interest or even enlightened altruism, in the process of developing policy – which would happen partly through the birth of “self-organising” parties. The organisations could thus feed a broad-based civil society dynamic around ICANN, to help provide financial and administrative grounding for those parties.

ED - I agree, as it happens. Thanks for saying this all so eloquently.

PH - Looking again to the offline world, could these organisations provide, not only expertise (perhaps in the form of seconded staff), but also funds to help the nascent parties? After all, they have to raise their funds somehow, and appeals to membership may not cover the costs of organising, developing the structures for that membership in the first place.

This would closely tie the parties that develop to particular interest groupings. Those interest groupings would most likely still be transient, coalescing around issues as they arose and then dissolving – but they would develop in the context of the civil society rather than post-hoc, in the process of coalition bargaining between board members. The close identification of companies and NGOs with the origin of these parties would be accepted by individuals for the sake of particular “crusades” but distrusted beyond them. Hence, the ossification of party structures such as that which we often see in official representative politics, and “capture” of the institutions or the public would be less likely.

So the question: how can companies and NGOs best contribute to the civil society of ICANN, to its user constituency and to its parties? Should they not work in concert with and in the same space as individuals?

ED - Yes!

Question: Sean Mchugh, Liverpool Dot.Com Man

The net is not a state. The net is not a marketplace. The net is not a community. The net is a rulebound address space. As such, the human use of it needs new words, not old ones.

In the interview with Esther Dyson, a number of interesting questions are raised. I would suggest that these questions are about the attempt to understand the Internet by comparing it to long-standing human institutions such as the nation state and the marketplace.

I am going to suggest both to openDemocracy and to Ms Dyson that your attempts at understanding by comparisons, by metaphor, are bound to fail. Such attempts are analysis by anachronism.

You will no doubt remember how the first railway carriages were built to look like several stagecoaches stuck together. This, even in an age of stagecoaches, was an anachronism.

Esther Dyson raises questions of identity and viewpoint on the net. Her plea for parties is a plea for a viable, popular, legitimate nation state: a government of the net, by the net, for the net: 'We think the internet community itself should create a supervisory body that reflects the will of the internet community'.

ED - You're right, ICANN is not a government over people. All the people on the net, for better or worse, are subject to physical jurisdictions, based on where they live, do business, whatever. Let’s not subject them to added jurisdiction from an additional nation state ICANN. Let’s limit ICANN to management of the infrastructure and rules for the name and address space and related protocols.

SM - I suggest that ICANN stops waiting for the kiss of democratic legitimacy and carves out its own claim to power by wielding it well. There are no governments or nation states whose backstories are pure. Power attempts to retain power. Let us not weep crocodile tears over that truism. As Esther has discovered there is a price to be paid - it is the fate of power to come under siege.

How might ICANN legitimise itself? Good works, I suggest. What the Internet can bring to the world, and especially the Third World, is attention, disinterested attention, for preference. I suggest that ICANN directs that attention as best it can towards the general good of the human race. And so builds the future it wants out of the resources and allegiance it can command by its current moral authority. If it does well it can grow that moral authority.

ED - Sorry, but ICANN exists to manage a particular public resource, and it will gain legitimacy by doing that well – in a way that ultimately meets with general approval because it is fair, transparent, responsive and reflects the public interest. It charges fees from its participants for that particular service; it has no business or authority to become a charitable venture and use those fees for other purposes than what is stated in the contracts according to which those fees are due. It oversees those resources in response to the public interest in those resources, not in the public interest overall.

Where does that public interest lie? In a well-functioning internet, with a single global address space over which anyone can reach anyone else, or any other connected resource. It also serves to make sure that addresses resolve accurately, without duplication. It also encourages competition wherever possible, which should foster better service, lower costs and innovation. Over time, it will need to watch (no doubt with the active participation of its online members) that its registries and registrars do not form a cartel, protected rather than regulated by ICANN. That means that it should become easier than it is now for someone to enter the business and start a new registry or registrar. All these are relevant public-interest issues for ICANN, and they are quite enough to keep it very busy.

Question: Karl Auerbach, Elected At-Large Representative, ICANN Board

From my experience on its Board, ICANN so far has not managed to reach even the foothills of the mountains of democracy.

ICANN's 'election' process - remember, ICANN even refuses to call it an election - was in many ways far from democratic. ICANN controlled, and mediated, all of the communications channels. This prevented the voters from discussing matters outside the 'hearing' of ICANN's management.

ICANN's heavy control impeded the formation of coalitions and proto-parties. And since the date of the election ICANN has refused to hold open even those limited communications channels, thus impeding the formation of a more mature electorate.

Sure, it is cute to cite an anecdote of someone who is waiting for the government to provide funds to start a political party. But no matter how cute it may be, the anecdote is simply not relevant. We are not asking for ICANN to do anything except to get out of the way. We are being forced to wait for ICANN to release information that should have been available in the first place - the voter rolls. We are not asking ICANN to provide funds (for which there is no need). Instead all we are asking is that ICANN simply publish the voter lists, as required by California law, so that the electorate can evolve and we elected representatives can communicate with our constituency. Otherwise, the huge sunk expense of signing up 158,000 voters would go to waste.

However, ICANN's staff has expressed hostility to the electorate and even claims that it no longer exists.

And ICANN's bylaws are biased against those of us who were elected – our terms are shorter (two years vs three years for other board members). Our terms end at the stroke of midnight on a certain date, while the terms of other directors continue, potentially forever, until someone new comes along to replace them.

We have a long way to go to obtain democracy in our systems of Internet governance. In Stockholm I proposed a resolution to the ICANN Board for the establishment of an at-large membership forum, 'at-large@icann.org', which will finally enable the constituency and representatives to communicate with one another. Without a space where this sort of dialogue can take place, we do not have a 'civil society' for ICANN.

I wonder if Esther would agree that we need such a forum for the ICANN constituency where constituents and representatives can communicate with one another, in order that parties and coalitions can emerge? – where the list of participants (and their addresses) is available to members, so that it is possible for those who wish to form coalitions to do so? It is critical for people to be able to communicate with one another outside of the confines of such a forum, as well as in it.

ED - Yes, I agree absolutely, as you know– and have asked for this, including when I was on the board and more recently in Stockholm. And I am pushing for it – though it doesn’t need much pushing, because it is clearly a good idea! – within the ALSC. However, I think you can do much the same and (at individuals’ option) preserve their privacy by using aliased mailing lists. See below.

KA - And also, why it is that Joe Sims still has an extraordinarily privileged, unelected, and unappointed role within ICANN (for instance, his recent renegotiation of the Verisign/Network Solutions contract, presented to the Board as a fait accompli)?

ED - I answer this question reluctantly, knowing that anything I say may be used against me (!), but negotiation of a contract is an extraordinarily complex business and is rarely conducted in public. It was not a fait accompli, but in fact a contract which aroused a lot of comment and which was voted on by the board – blame them and not Joe if you must blame someone -- after much discussion and I believe some amendments. I didn’t like it either, even as amended, and I might have taken a completely different approach, but I also assume it was the best NSI/VS would agree to.

But has it occurred to you that perhaps the ensuing outcry enabled Sims & Co. to eke out those last few concessions they got? I was not there for this one last spring, but I know from experience that NSI/VeriSign had an unusually favorable contract, and that at least under US law they could not be strong-armed out of it but had to be negotiated out of it with compensating concessions.

Question: David Johnson, US lawyer

Participation, not democratic elections, is the key.

ICANN's legitimacy comes from the fact that those with whom it contracts have agreed to comply with consensus policies (policies supported or acquiesced in by almost all affected parties). Those contracts don't require obedience to a decree from the Board or staff of ICANN, no matter how democratically elected it might be. Nor would it be feasible to show that any Board really acts as representatives of all those who might be impacted.

Accordingly, the real challenge is to get a maximally diverse set of voices on the Board and, as Esther notes, to facilitate a rich discussion of the issues. This takes both leadership and resources -- and one of the problems has been that most participants have been vying for office or control.

The good news is that failure to achieve consensus on most policies relating to the domain name system leaves decentralized actors in a position to try new things -- competing to make policies that attract adherents in the marketplace. One vice of a popular democracy is that it tends to encourage harmonized solutions that may not be optimal. In the ICANN context, there isn't even a bill of rights to protect minority interests.

In sum, we should focus on creating a global communication about the policy issues raised by internet infrastructure design -- and ICANN should minimize its controls to allow the greatest degree of experimentation consistent with preserving end-to-end connectivity. But we should be very careful about letting general calls for development of civil society slide into an attempt to create a new trans-national, not-really-accountable, and unconstrained sovereign.

ED - Thanks, David! You said it better than I could!

Question: Vittorio Bertola, ICANN At Large, Italy / .it Naming Authority Exec. Committee

Notwithstanding Esther's enthusiasm, ICANN is trying to reduce general public representation. But the Internet's freedom is crucial for the world, so keep ICANN democratic!

Wow, great! When you read this interview, you really think that, though with hard struggle and having to overcome hurdles of any kind, things are really going on well in the field of Internet government and of ICANN in particular.

I mean, it is highly agreeable that the fundamental issues about the management of the Internet - particularly those who affect free speech and fair access to resources, such as domain names management - should be governed by means of a global democracy; that you should have a balance between the interests and skills of the professionals and the right of all end users to have a voice; and that the original structure of ICANN board, with two sets of nine members, could be a reasonable compromise.

However, Esther Dyson apparently forgot to mention a few small details about what has happened in the past two years. When the board was first formed, the nine Directors that should have been elected by the general public (or better, the so called 'At Large membership' of ICANN, counting more than 100? members worldwide) were appointed, and were intended to expire in Summer 2000, when the elections would have been held.

Then, the initial 'temporary' board invested itself with the authority to decide that only five of those Directors would have been elected in 2000, while prolonging the mandate of four temporary Directors by one year; then, the 2001 elections were cancelled, prolonging that mandate indefinitely, while the so-called 'At Large Study Committee' was started, to question in first place whether there should be any representation of the general public at all.

ED - You are right about some of these facts, but they were not what you make them out to be: It is a pretty tough challenge to organize online elections, and in fact we did not do as good a job of it as we would like – and got justified criticism for the many of the glitches. Now the ALSC (At-large Study Committee) is trying to figure out how to do a better job – not just on the voting side, but on figuring out how to get participation from the At-large membership. See more on that elsewhere.

VB - In the meanwhile, other lobbies (above all the country-code TLDs lobby, representing the national domain registries outside the US, a role that usually is held by academic or governmental bodies) started to claim for reserved seats in the board.

So everybody is now betting that the 'Study Committee' will come up with the proposal to reduce the general public representation to just five members, and to increase the number of representatives of the different professional lobbies; in other words, to increase the weight of closed academic groups and of national and multinational businesses which make money from selling the domains and other services over the Internet (and that, for sure, are not so interested in granting free speech to everyone and preventing the current trend in which, according to WIPO arbitrates, personal and non profit sites which have a name that resembles someone else's trademark are being closed to make room for the trademark owner's advertisement pages) and to decrease the weight of the individual end users, who might be after all interested in maintaining some degree of freedom over the Internet.

[I mean, I don't have anything against making money over the Internet - I work for one of the few successful dot coms in Europe - but money should not become the only guiding light for the evolution of the Internet.]

Now, this is in turn a good reason to follow Esther's recommendation: after all, the above position *is* a political position, and should be a piece of a political platform. So I would be very, very happy to start aggregating ICANN's At Large members into a 'virtual party' or whatever you might call it; in part, this is already happening, as many different groups started debating the topic from the point of view of the end users.

However, there's a little problem... ICANN never made the list of the members public. In other ways, nobody except ICANN has the chance of contacting those members... so nobody has the chance of starting a debate and organizing their representation (except, maybe, those who own mainstream media... i.e. the same AOL that Esther mentioned).

ED - This is a very good point, and one that we are also working on (and something I had a problem with when I was on the board). The answer is pretty simple: provide some kind of opt-in/opt-out for people when they register as At-large Members. In addition, there’s the possibility of aliased mailing lists: that is, you can sign up to receive information without revealing your identity (or even a pseudonym), except to a service that manages the list. Other parties can moderate the lists, etc. etc. There could also be one global “list of record” that would not be filtered at all, so that ICANN could not/could not be accused of censoring it, but then individuals could choose lists moderated by people they trusted.

This is a no-brainer, and I wish it had happened already. Once ICANN establishes a global list for official announcements, including offers to people to sign up for the moderated lists, then these other lists/communities can emerge. And of course people can decide that they do want to disclose themselves if they want. And so on.

VB - There obviously are significant issues (for example, spamming) when thinking of making a list of 100? persons public. However, when in a democracy you cannot speak to the public to try to have electors vote for your proposals, it is not a democracy any more.

This was proven by the At Large elections, in which, for example, European voters were presented with a list of 75 candidates... and started to vote for the one that had already got more votes in their own nation, except for those members that were brought in by external lobbies. In the end, seven of the top 10 ranked candidates were German, because German newspapers had campaigned for people to register, and 60% of the voters were German. This, in turn, made people from other European countries feel like they didn't count anything. By the way, this might prove that intermediate levels of representation are necessary - you cannot think to have just five or nine elected representatives for the whole world.

ED - (This is just one of the problems with the elections, as I mentioned! But some of this may be inevitable. Getting people to focus on issues rather than individuals or nationalities may be part of the solution.)

VB - But another important point is that, as Esther herself says, ICANN is weak because it has no civil society behind it. If ICANN goes down the road of being mainly ruled by narrow lobby interests, it will be doomed to fail; people will ask to have a voice in ruling the Internet, and will disregard ICANN as illegitimate, while any other economical interest that feels menaced by any ICANN decision will claim the same (did anybody ever hear about new.net?).

On the other hand, there is a high demand for worldwide direct participation, as the success of the At Large membership registration campaign has shown. If this participation can be supported, and means are provided so that the membership can debate, organize and eventually, why not, come up with 'parties' or at least different sets of proposals that are then voted, it could be an historical seed for the future of the world's democratic govern gloment, and even a testbed for any kind of direct virtual representation of all the people of the world.

ED - For better or worse, I would not call the At-large registration campaign a success. Number one, it was a very small number of people compared to the total number of Net users, and many who tried to register gave up because the process was time-consuming, complicated or for practical purposes impossible. The follow-on confirmation process was also flawed. At the same time, many of the people who did register did not seem to know or care about the issues and did not vote; various anecdotal evidence suggests that especially in Asia many people registered only because of government or corporate pressure.

All that doesn’t mean we shouldn’t do it…just that we shouldn’t pretend it was a success and that we should figure out how to do it better.

VB - Moreover, the Internet is opening up revolutionary chances for a peaceful, integrated, free and democratic future for all the world, including those parts of it that still live under non democratic governments; we must defend its freedom, and prevent its transformation into yet another way of making people passive and slave.

This is why ICANN's destiny does not regard just those who run the Internet, but all the world's citizens. Thus we all need to claim more democracy and openness in ICANN. I am sure that many of us are ready to spend their time and efforts for this. So... let's do it.

ED - I have to argue vigorously against all the rhetoric about global democracy and the like. There is a need for good global governance of ICANN, not by ICANN, but I for one am scared about the notion of any kind of global organization “governing” anything other than some small, tightly defined resources - such as the technical infrastructure of the Internet – not the content on it, not the behavior of the individuals who use it, not the business practices (other than DNS contracts) of the people who buy and sell and advertise on it.

I do not want to give away my personal rights – freedom of speech, privacy, freedom of movement, freedom to contract, and on and on, to any global body, however “democratic” it may be. ICANN controls and guarantees access to one means of communication, a tremendously important one, but if you start thinking it is a global democracy you may be tempted to give it too much power and to extend its authority beyond what it has now.

Keep it limited; keep it responsive to the public and the public interest. But do not give it more weight than it can carry.