Both professors Frankel and Zitran worry about the problem of protecting the rights
and interests of "passive users" (i.e., those who use the Internet but do not
participate in the "Internet governance" debate).
I first raised this point in 1997, as one of my concerns regarding the gTLD-MoU. The
answer I received was that those who did not trouble themselves to participate
deserved what they got. Despite a certain appeal of this argument, I have always
regarded it as flawed for the following reasons:
1) It is intrinsicly unfair. Most Internet users are niot only unaware of this
process, but have no good way about finding out about it. Few can appreciate what is
at stake. Furthermore, as one fellow with a start-up business in Boston pointed out,
individuals do not have the resources to participate.
1a) A classic counter is that individuals may join organizations to represent them,
thus pooling resources. This answer is not satisfactory, however, because many
individuals do not have the resources to join such organizations, to make their views
known, or to even locate like-minded organizations. Nor are organizations given equal
weight (should it be done by number of members, quality of members, some other means).
Finally, organizations may not adequately represent the individual members (see the
current debate as to whether the actions of the ISOC leadership are in fact
representative of its membership. I do not say that they are or are not, but the
matter is hardly settled. Nor is it unique to ISOC. This question is repeated
constantly wherever you have an organization representing individual members. For
example, it was debated in Jewish organizations in 1993-94 whether established
organizations "really" represented the opinion of their consitutents on the Oslo
accords.)
2) In addition to being unfair, it is dangerous. If the great unwashed are ignored,
they will eventually get pissed enough to rise up and do something about it. Examples
include cable television (which was regulated in 1992 as a result of price abuses
under the 1994 Act), children's television (where parent groups prevailed on Congress
to impose its will on an
industry that refused to acknowledge parental concerns), a variety of consumer
protection laws, etc.
So we have a group of people who do not participate in the process but whose opinions
we want to capture (at least to the extent of keeping them from getting too mad).
Worse, this group of people frequently doesn't know what it wants. If you asked the
random
person on the street in 1990 if they wanted a service capable of providing
communications, entertainment and shopping through their personal computer, what sort
of response rate would you get? In 1994, how many people would say they would buy a
book online? (One of the reasons why big companies got o far behind the 8-ball is that
they trusted their customer surveys and opinion polls. Entreprenuers brought products
to market and looked to see if they made a profit.)
Oddly enough, the problem is not unique to ICANN. The problem is endemic to running
any kind of business or project for the public good. As Michael Hammer of
"re-engineering" fame observed in his book, most customers do not even bother to
complain, they simply leave. We can look to other models and see how they cope.
One common model is the "consumer advocate" instituitonalized within the business or
agency. On the business side, my local supermarket chain has a "consumer advocate"
whose job is to listen to the public complaints and press the store to do something
about it other than shrug. In addition to handling individual cases, the consumer
advocate is supposed to notice underlying problems and help the chain correct them (at
least according to the commercial, I'll be the first to admit I do not have a good way
to observe the consumer advocate in action).
In public agencies, a requirement to serve the public interest is usually included in
the agency's charter, forcing at least some acknowledgement of the public good
(although at some agencies this has become quite formulaic, becoming little more than
a ritual invocation that the action serves the public interest). some agencies,
however, have staff designed to take an active role. For example, the Federal Energy
Regulatory Commission (FERC) has staff dedicated to doing the public interest
analysis. When a filing is made, staff acts as a third party to the process in
addition to the filing party and any intervenors. significantly, the Commission does
not *rely* on staff analysis, but treats staff analysis as if it were submitted by a
third party. (Contrast this to the FCC, where staff provide non-public analysis for
the Commissioners or bureau chiefs).
The danger of such an institutionalized approach is that, if the Board is intent on a
particular course of action, the public advocate can become little more than an
institutionalized token. If the public advocate is captured by particular interests,
it becomes hard to build an outside record.
Another approach is to regard the activitis of those individuals who participate as
representative of a larger whole, in the manner fo a focus group. To take the Boston
meeting last November as an example, it is true that the room was divided into equal
parts by number into ICANN supporters and critics. But one could see patterns that
emerged. E.G., representatives from Asia and Latin America had a number of similar
concerns regarding geographic representation. While the individuals involved
certainly did not *represent* all Internet users in Asia and Latin America, they were
*representative,* and the concerns should be treated as more significant than simply
noting that the majority of people at the meeting did not appear to share the concern.
Obviously problems exist with this approach as well. What constitutes a representative
group? It is easy for me (or anyone else) to point to those who agree with me and say
they are representative, while those who disagree are not.
These problems are not insoluble, and they will not provide perfect solutions. We
must avoid making the best the enemy of the good, and shoould not despair of
developing a workable solution simply because any proposed solution will have flaws.
By the same token, however, the fact that all solutions have flaws does not make them
all equally valid. We must not adopt a solution in the name of expediency and simply
to move things along, trusting to future generations to give voice to those excluded
and correct what went wrong.
(A long-standing complaint against first the gTLD-MoU and then ICANN. While we should
work toward closure, the sky is *not* falling. Last year, ecommerce produced 8
BILLION dollars in sales. This is a medium on the verge of collapse and doomed to
marginalization unless we fix the TM problem and get a system of central governance in
place? Hardly.)
The process is complicated by the fact that the ICANN is structured as a non-profit, a
terribly unresponsive and insular corporate form, based on the assumption that those
who do good works do not need to be watched. This limitation, however, makes
developing an effective mechanism to capture the opinions of passive users all the
more critical. As the tragic death of Dr. Postel makes clear, a system cannot be
based on the good intentions or brilliance of an individual. Individuals die, retire,
move on to other things. It is therefore not enough to say that we should trust this
board. We must have a propers system institutionalized.
(The institutionalization of such a system would, of course, also help the Board, by
providing a mechanism for building trust. Unfortunately, this concept seems lost on
some Board members. More and more, Mike Roberts' comments remind me too much of the
marketing representative in Dilbert who, on being informed that the product is
actually defective,
remarked with a snear: "You sound just like one of our whiney customers.")
Harold
