ICANN and Individuals

Professor A. Michael Froomkin
University of Miami School of Law
froomkin@law.tm
October 25, 1999

Joe Sims is ICANN's chief counsel. His message to the Bylaws comment list (which I understand he also copied to a Harvard Law School mailing list) in reply to my comment on ICANN's proposed bylaw amendments carries no disclaimer that it is a personal statement, so unless and until ICANN repudiates it, one must assume that this is a statement of the official ICANN view, or at least consistent with it.  As someone who has argued again and again that these discussions work best when the people who take the actual decisions in bodies like ICANN participate, I very much welcome this dialog.

Let's start with the main thing. We are told that elimination of the direct input of the individual user of the Internet to the governance of ICANN, rather than the protection of ICANN against suit, "is the objective of the policy that the ICANN Board adopted in Santiago that these bylaw amendments are designed to implement". What's more, it seems the purpose of this feature is no less than to save the Internet from falling apart.  It's true that ICANN's Board resolved to change the nature of membership in Santiago.  It has not, however, been evident from the record until now that the fear of individual registrants, rather than the fear of derivative actions, was what motivated this change.   I had hoped, therefore, that a comment suggesting that the fear of derivative actions was very substantially overblown might lead to some reassessment.  It seems clear, however, that if the real fear is of the registrants, any talk of the extensive protections offered by the business judgment rule is pointless.  (Incidentally, please see the note below for a correction on derivative litigation in California.)

Until now, ICANN has had a real claim to be an instantiation of the body called for in the White Paper.  Consciously adopting a plan designed to insulate ICANN governance from the ordinary domain name registrant breaks that connection.  ICANN, in the person of Mr. Sims, states that the removal of meaningful public representation in ICANN isn't a bug, but actually an essential feature. The claim is that purely technical decisions are being made, and that the end-user, the domain name registrant, has no place in making technical decisions (although the technical qualifications of the current Board, not to mention some of the recognized DNSO constituencies, might reasonably be questioned), and that letting rabble such as myself have a direct role in the Board selection process (I do not qualify for any existing DNSO constituency being neither a corporation, a non-profit, a trademark holder etc.) will produce dangerous instability. There are at least four problems with this claim:

Huff and puff as it may, ICANN's current legitimacy remains debatable.  It has what de facto authority it possesses only because it exercises that authority as the agent of the U.S. Department of Commerce. It has what legitimacy it possesses only to the extent that it is the sort of body envisioned in the White Paper (for better or worse, I fully accept there was and remains a rough consensus on the White Paper), plus or minus what it gets for its subsequent actions. So far, sadly, that is at best a wash. The proposed By-law changes would move it far into the minus column.

I agree that a purely technical body wouldn't need to worry about representing end users directly. (The IETF is the model here, although it's instructive to note that anyone who turns up a few times has full rights in the IETF.) I'd be much happier if ICANN were restricting its activities to purely technical issues, although I have sympathy for the view that says this is an unrealistic hope given the fundamentally political aspects of some DNS issues.  ICANN says that "ICANN's mission is extremely limited: to maintain the stability of the DNS."  If that were the case, it wouldn't have a domain name trademark dispute policy at all.  A dispute policy is not a technical stability issue, and the courts are doing a pretty good job of sorting out the rules. By making a trademark dispute policy pretty much its first order of business, ICANN has forfeited any claim it might have had to being merely a technical body.  Things like trademark rights, consumer protection, dispute resolution, free speech, contract law, are all things that we traditionally seek to subject to democratic governance. ICANN is constructed in a manner that threatens to take these matters out of the democratic process, under the rubric of freedom of contract. Outcomes will be extorted by rationing access to desired resources, such as domain names. This is a key part of the context.

Another part of the reality - the context - is that the trademark interests have a lot of political clout.  Now, I happen to think that a sub-set of the trademark concerns are real and legitimate.  For example, I don't see what legitimate interest is served by letting a person ransom a domain name for the settlement value of a worthless case, so I agree there is a place for arbitration. And, as I've said elsewhere, I think the current UDP proposals are an improvement on their predecessors. But I also think that a noticeable part of the trademark agenda has been motivated by either unjustified greed, the hope of getting advantages from ICANN that were not forthcoming from the legislature, or the need of in-house counsel to demonstrate to their bosses that they are tough as nails. I just don't think any of this is "technical coordination" of the Internet, or that the Internet will fall apart if the world isn't optimized for large trademark holders.  It may be that this trademark regime is ICANN's price of admission, and that it will never sin again; if that is the case, it should change its rules to make it clear that its activities will be more limited in the future.  I personally would be happy to let bygones be bygones if that happened.

To date, however, ICANN has not been able or willing to say that it is acting outside of consensus due to political necessity.  And one quite possible consequence of the malleable view of consensus ICANN has chosen to adopt is to set a precedent for an ICANN that can do pretty much anything it wants; faced with that possible ICANN, issues of representation, procedure, and structure take on the greatest importance (the deal with NSI doesn't fundamentally change this -- NSI's right to demand an accounting of consensus is limited to matters that concern it, and is exercised at NSI's discretion).  If ICANN were able to define its mission and powers in a way that really did restrict it to technical matters, I would agree that the issue of representation was less urgent.  Absent such a change, however, I know for a fact that the people who demanded the UDP will be back, seeking to have rights of personality, geographic identifiers, and famous names subject to increased protection.  In each case, rather than have the rules set at the lowest common denominator common to the legal systems of the world, the demand will be, is already, for heroic protections.  All couched as technical coordination, of course.

* * *

We are told that the reason for the By-law change is to protect ICANN from capture by some "determined minority -- whether commercial, religious, ethnic, regional or otherwise".  This assumes, first, that no minority has captured ICANN already.  I hear different views on that subject, although I do not hold one myself.   More to the point, it asserts that the danger of a "determined minority" is sufficiently great to require ICANN craft protection against ... a majority.

It is interesting to compare this new story to the one we had been told until now:

  • The Membership Advisory Committee's Final Report (May 26, 1999) stated that the membership should "include any Internet user with access and verifiable identity in order to reflect the global diversity of users."   In Berlin, the MAC also stated "The rights of the at-large membership shall be to elect the at-large directors and to approve changes in the ICANN Articles of Incorporation.  Members should not have the right to unilaterally change the bylaws in disregard of the SOs, and the right to bring shareholder derivative suits should be limited."
  • ICANN's Board responded in Berlin by stating that the Board, "reaffirms its intention to establish, as soon as practicable, a system that permits individuals to select geographically diverse At-Large Directors, but also recognizes that this effort, given the unique context of a new form of global consensus organization with responsibility for oversight of an important global resource, is likely to be both administratively complex and expensive (especially in relation to ICANN's anticipated budget)."
  • The August 11, 1999 Staff report accepted and endorsed the principle that "Members" should be individuals, and only "members" should vote for At Large Directors on the grounds that "because the SOS are largely technical bodies, and none of them at this time permits individuals as such to be voting members, the rationale for an 'At Large' membership for individuals remains persuasive," but recommended adding a principle that "should be a general parity between At Large 'members' of ICANN and other stakeholders participating in ICANN through the Supporting Organizations with respect to matters such as initiation and approval of changes to the bylaws and means for seeking relief with respect to ICANN actions."  The report did discuss  the creation of an at-large Membership Council, but as an aid to the membership rather than a substitute for any part of its functions.  Little if anything in that discussion suggested disenfranchising individuals was on the table, and much went directly the other way.  Indeed one could read that whole report and never suspect what ICANN was planning.
  • The idea of changing the nature of membership was first floated in a companion staff report on Statutory Members versus Nonstatutory Members for the ICANN at Large Membership that was also posted for comment on Aug. 11, 1999.   The report discusses 13 arguments for disenfranchising the membership.  It dismisses nine, and finds two that it thought supported a non-statutory membership, and two others that might be relevant:
  • Whether the ICANN Board took this August 26 decision because of a mistaken fear of derivative litigation, or because of the reasons set out in Mr. Sims's note, I think the decision was taken with inadequate discussion, was deeply mistaken, and should be reversed in LA.

    It could fairly be said that my complaint would have been more timely in late August.  But it could also fairly be said that a two-week comment period and the means by which this possibility of this revolutionary change in the nature of ICANN was announced made the comment period inadequate.  When the Staff Report issued, I like many others was on vacation.  I had limited Internet connectivity, mostly email.  By the time I made it back to full Internet connectivity, I was worrying about other things, and my ICANN-related attention was limited to the UDP.  But better late than later.  There are two possibilities here:  either the Staff Report accurately states the reasons for the change in membership, in which case I submit that the fear of derivative litigation is vastly overstated and the policy which the by-law change implements needs re-thinking.  Or, Mr. Sims's latest accurately states the reasons for the policy, and I submit that not only does the policy which the by-law change implements need re-thinking, but ICANN needs to reinvigorate its commitment to public participation.

    * * *

    Let me now turn to the subtle ways in which ICANN's reply mischaracterizes my views in order to belittle them. Contrary to what was asserted, I don't think ICANN inevitably needs to be a global democracy in which every person, or even every domain name holder votes. It needs to be legitimate. It needs to be open. It needs to proceed in a deliberate manner that takes due regard of the communication needs and abilities of the different peoples of the world.  It needs to document its reasoning and its claims of consensus.  It needs to have a place in which all the people affected by its policies who care to come to the table are not only listened to with Mr. Sims's courtesy and politeness, but also have some meaningful input into in the outcome, one which cannot simply be ignored at the whim of the deciders. There are many ways in which legitimacy might be achieved. Professor Jonathan Weinberg's comments, for example, suggest ways in which the By-laws proposal might be changed substantially so that an elected council might make sense.  It happens however that this ICANN claims that its legitimacy derives from "bottom up" governance processes, and this ICANN put forward the Bylaw revisions I was responding to.  Since "bottom up" governance is what this ICANN claims to be about, it doesn't seem unreasonable to me (although it appears to be very surprising to Mr. Sims) to expect ICANN's proposed actions to match its words.  Bottom up ought to mean some structure in which there is an actual formal role for the ordinary domain name registrant, the end-user, or at least that fraction of the end-user community that cares enough to participate.  There are probably many ways to achieve this, but the regime created by the draft by-law changes posted for comment so restricts the influence of both individuals at large and their Council that it is well outside that set.

    The second bit of rhetoric is to confuse ICANN with the Internet. I have argued that the proposed bylaw change disenfranchises the interested public from its (oft-promised, but yet to appear) role in ICANN. That role was promised by the White Paper, and that promise has been repeated by ICANN throughout this process (or does "bottom up" mean something else? Perhaps "bottom up" from the heady vantage point of ICANN means "the business community, the infrastructure providers and other important political forces"?). Mr. Sims's reply to this claim of disenfranchisement from ICANN is to say, "Pardon me, but exactly when was "the public," whoever that is, in charge of the Internet?" That is, one would hope, irrelevant since we are talking about ICANN. It may be that governance of ICANN is in fact governance of the Internet.  Until now, at least, the official ICANN line has been otherwise.

    A third bit of sleight of hand is the use of the term "minority" and the attempt to paint every critic as an outlier.  The goal of ICANN's reply in tone and structure is to marginalize academic critics as out of touch with reality not because of what they say, but because they are academics (academics, readers are told, "have less real-world responsibilities and thus fewer constraints on imaginative thinking" -- i.e. they are not serious folk like author and reader), and thus to define them out of the relevant consensus.  There is a reason why a disproportionate fraction of ICANN's critics are academics.  Few others who are not being paid by someone with a financial interest in the outcomes have the time to engage in the level of monitoring required to keep up with ICANN's hydra-headed approach to dividing and conquering opposition (I discuss an example of this behavior in my original submission).  And, as my August experience suggests, academics with families are not up to the task.

    Although it is far from the only explanation that fits the facts, ICANN's proposed bylaws changes are consistent with what it would do if it were worried about majorities of non-business people that might disagree with it.  In that light, the issue of who supports ICANN, and especially who actually supports this change, is important.  ICANN says over and over that there is  consensus for its actions.  I (and others) believe it is ridiculous to claim that there is "broad -- essentially unanimous -- support for where we are from those real world entities  I listed above....almost all of them think we got it acceptably right" when this apparently refers to "the technical people who created the Internet, the infrastructure providers who make it work, the businesses (large and small) who increasingly depend on it for commercial activity, the more than one hundred million individual users who benefit from the incredible increase in access to communication and information that the Internet provides, and the national governments around the world that view this global resource as an important global asset."   But perhaps there is indeed a vast silent majority, all part of a consensus I happen not to share. What a shame, then, that it is so silent. Perhaps someone at ICANN could spare a few minutes to document it for us?  And, one also has to ask, if there is such a broad consensus for ICANN, why can't the people who make up that consensus be full members of the organization and suffice to protect it from capture by minorities, whether made up of rabid academics or otherwise? We are not told.

    Perhaps unintentionally, the most interesting aspect of  ICANN's reply to the claim that ICANN proposes to make itself a law unto itself is this: "to the extent that there is or should be a "public" role in this effort, why is that not already accomplished by the extensive involvement and control by the United States and many other national governments throughout this process". I take this to be a reference to the Governmental Advisory Committee (GAC) -- I say this because I presume that since ICANN is committed to openness and transparency there is no secret undocumented back channel we are not being told about. Yet it was Mr. Sims himself who took the lead in persuading me and others some months ago that the GAC was merely advisory, that ICANN had no duty to do what GAC said, could ignore it any time ICANN liked, and that the GAC was nothing to worry about.  I believed him.  ICANN cannot now have it both ways. Either GAC is advisory, or it is a major check on ICANN (which raises its own issues).  Either ICANN is "bottom up" and has a real place for individuals, or they don't and it isn't -- in which case ICANN will have to seek its legitimacy somewhere new.


    Note

    I am told by a California lawyer that in my earlier submission I should have cited to Cal. Corp. Code § 5710 which pertains to derivative actions by members, rather than § 800 which refers to actions by shareholders. As I read it, § 5710 waives the bond requirement for any derivative action brought by 100 members, or by the number of members authorized by Cal. Corp. Code. § 5036, whichever is less. Under § 5036(c), for a body with membership of 5,000 or more, "the authorized number shall be one-twentieth of 1 percent of the voting power, but not less than 125".

    I don't think this changes anything important, but I feel obliged to note it. I should emphasize that I am not a member of the California Bar.

    v. 1.....