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>From: Antoun Nabhan <[EMAIL PROTECTED]>
>Subject: Analysis of the Model Proposals/White Paper
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>This document was posted to [EMAIL PROTECTED] prior to the RCS workshop=
> in Cambridge on 01.23.1999. On the eve of the Singapore meeting, we thought=
> it wise to post it again, CC:ed to the IFWP list. Please take a look at it=
> and respond with your thoughts/comments/etc.
>
>-A.
>
>How do the NTIA White Paper and the ICANN By-Laws Impact Membership?
>Berkman Center Commentary - January 19, 1999
>
>ICANN's By-Laws and Articles of Incorporation were drafted to conform to=
> principles laid out in the U.S. Government document entitled "Management of=
> Internet Names and Addresses," better known as the White Paper ("WP"). =
> (The White Paper is reprinted elsewhere in this briefing book; it is also=
> available online at:
>http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm.)
>
> The Berkman Center research staff is analyzing alternative proposals for=
> ICANN's membership structure according to the proposals' conformity with=
> the White Paper principles and the general structure outlined by the ICANN=
> By-Laws. These principles are a standard against which any proposal for=
> ICANN's membership structure must be considered. Further, ICANN's=
> membership structure should conform to the other sections of its By-Laws. =
> Ideally, no section should confuse the interpretation of another section.
>
>The RCS Group has been focusing its analysis on three discussion=
> alternatives. None of these is fully developed, and they certainly do not=
> represent the entire range of options. But taking a preliminary look at=
> them through the lens of the White Paper principles and the ICANN By-Laws=
> may highlight key areas for further development and research.=20
>
>I. History
>The initial impetus for the White Paper -- and ultimately, ICANN -- came in=
> July 1997. At that time, President Clinton directed the Secretary of=
> Commerce to privatize the domain name system as part of the Clinton=
> Administration's Framework for Global Electronic Commerce. Although the=
> Internet began as a strictly U.S.-based research vehicle, by 1997 it had=
> become an increasingly international platform for commerce, education, and=
> communication. This change in both size and role created a management=
> burden that the then-current administration groups were ill-equipped to=
> handle. Areas of specific concern included increasingly frequent conflicts=
> between trademark and domain name holders; massive increases in use of the=
> Internet outside of the United States, which required international=
> participation in Internet administration; and the need for a formal, robust=
> management structure to support commercial use of the Internet.
>
>In response to this situation, the U.S. government issued the Green Paper=
> (available at=
> http://www.ntia.doc.gov/ntiahome/domainname/022098fedreg.htm). After=
> receiving comments and criticism from many parties, the Clinton=
> Administration issued the revised White Paper proposal. The White Paper=
> calls for the creation of a private, non-profit corporation to handle four=
> primary functions in a coordinated, centralized manner: =20
>- determining the policy and allocation of IP number blocks,
>- maintaining the Internet root server system,=20
>- determining the policy for adding new Top Level Domains (TLDs),=20
>- and coordinating the assignment of technological parameters.=20
>
>
> The White Paper also sets forth four key principles to guide proposals for=
> the new corporation:
>- Competition: The White Paper requires that "[w]here possible, market=
> mechanisms that support competition and consumer choice should drive the=
> management of the Internet."
>- Stability: The White Paper emphasizes that stability should be the first=
> priority of any proposed DNS management system, and that any administrative=
> body should seek to maintain security and reliability of the DNS.
>- Private, Bottom-Up Coordination: The White Paper encouraged any new DNS=
> management system to "reflect the bottom-up governance that has=
> characterized the development of the Internet to date."
>- Representation: The White Paper argues that the new corporation should be=
> operated "for the benefit of the Internet community as a whole." It=
> requires management structures that reflect the "functional and geographic=
> diversity of the Internet and its users," and decision-making processes=
> that ensure international participation.
>
>These four White Paper principles have informed the drafting of ICANN's=
> By-Laws and Articles of Incorporation, and must be considered when=
> formulating proposals for ICANN's at-large membership structure.
>
>II. How Well do the Model Proposals Fit the White Paper?
>
>A. Competition: =20
>Membership is about process: How does the community choose representatives=
> to make its decisions, and how do those representatives, once selected,=
> make decisions? The WP advocates competition as a matter not of process=
> but of result: "ICANN should make decisions that foster competition." We=
> realize that processes have effects on result; nevertheless, the core=
> questions of membership structure address the WP's other three principles=
> more directly.
>
>B. Stability: =20
>The WP stresses the value of continued Internet reliability. A=
> standards-making body like the ICANN Board will, presumably, set better=
> policies and adopt better standards when parties who understand the=
> underlying technology are diligent participants. A successful plan will=
> provide a significant incentive for infrastructure providers (telcos, ISPs,=
> networking equipment makers, etc.) to get involved in the ICANN process. =
> Plans that allow providers to vote will provide this incentive in greater=
> measure than those that only allow providers nonvoting participation; plans=
> that allow nonvoting participation are more likely to draw infrastructure=
> providers than plans that exclude them altogether. Thus the "Organization"=
> plan is more likely to draw large organizations into the dialogue than the=
> "Individual" plan.
>
>Supporting Organizations do provide explicitly for input from networking=
> professionals and technical experts. So, are the SOs enough? As it=
> stands, the equal numbers of At-Large and SO-appointed Directors could=
> produce compromise or deadlock.
>
>Any structure that prevents this deadlock, however, will allow either=
> At-Large Directors or SO-appointed directors more control over ICANN=
> policy. The White Paper offers guidance only in the principle that "The=
> Board of Directors for the new corporation should be balanced to equitably=
> represent the interests of IP number registries, domain name registries,=
> domain name registrars, the technical community, [ISPs] , and Internet=
> users (commercial, not-for-profit, and individuals) from around the world."=
> =20
>
>Voice: Most corporations and associations will not qualify for membership=
> in an SO. Many would argue that they do not need group representation,=
> because they can influence individual voting decisions. The RCS=
> "Individual" model is predicated on this assumption. Yet this means of=
> group representation, even if effective, does not necessarily assure that=
> corporations' and associations' distinct "voice" will be heard. The White=
> Paper does use the word "equitable," rather than equal. The "Individual"=
> model's principle of "one individual, one vote; one company, no vote" may=
> not provide sufficiently direct representation to be "equitable." The=
> "Organization" represents the other end of the spectrum; there,=
> corporations may vote as a class and retain the opportunity to influence=
> individual behavior.
>
>One outstanding problem is that ISPs are not, as a class, represented by any=
> of the proposed SO structures. Since the White Paper explicitly lists the=
> ISPs as a group that must be "at the table" for the membership structure to=
> be equitable, this bears addressing somewhere in the at-large membership=
> structure. One possible response is that, even under an individual=
> representation model, ISPs may vote through individual representatives who=
> each act under a contractual or implied arrangement with an ISP. In=
> practice, these people would likely be employees or owners of ISPs who take=
> on ICANN voting as an incidental part of their duties. =20
>To differentiate ISPs from other corporations under this plan, their=
> representatives might be allowed one vote on behalf of the ISP and an=
> additional vote on their own individual accounts. This, in effect, creates=
> a sub-class of members and begins to resemble the "Organization" model=
> proposal.
>
>C. Private, Bottom-Up Coordination
>
>Funding: The WP notes that "the new corporation's activities would need to=
> be open to all persons who are directly affected by the entity, with no=
> undue financial barriers to participation or unreasonable restrictions on=
> participation based on technical or other such requirements." The first=
> part of this requirement, "undue financial barriers," raises the question=
> of how high the membership fee may be without being "undue." For example,=
> the "Organization" model's >$1000 minimum membership fee for corporations=
> might exclude many smaller e-commerce businesses, who would nonetheless=
> have a financial stake in ICANN decisions.
>
>The second part of that WP provision, "restrictions...based on technical or=
> other such requirements," opens further discussion. If ICANN requires even=
> minimal online access of its members, it may exclude stakeholders who,=
> though they do not use the Internet, are still "directly affected by the=
> entity." Under even a more modest interpretation, this phrase in the WP=
> demands that we consider the level of online accessibility required. The=
> graphical, forms-capable browser that would facilitate online voting is not=
> yet universal. The Berkman Center welcomes any input on the appropriate=
> threshold of technical capability for members, Director nominees, and Board=
> members.
>
>Furthermore, The WP suggests that, "Once established, the new corporation=
> could be funded by domain name registries, regional IP registries, or other=
> entities identified by the Board." NSI and its counterparts are quite=
> likely to continue charging customers for their service, so some might=
> argue that Internet users should not be charged by two different arms of=
> the Internet administration organization. However, the wording ("could=
> be") makes this particular clause just a suggestion, rather than a hard=
> requirement for ICANN. ICANN could be funded solely through a percentage=
> of domain registration fees, channeled through the SOs; however, the=
> organizations who register domain names would bear the costs of decisions=
> made by At-Large board members. =20
>
>Support of Elections: Article V, Section 9(e) of the By-Laws states,=
> "Resources of the Corporation will not be expended in support of any=
> campaign of any nominee for the Board." This could be interpreted to mean=
> that ICANN cannot provide Web space as a "soapbox" to nominees, although=
> such a provision might be a logical way to facilitate Director elections. =
> The Board might plausibly argue that a modest apportionment of HTML server=
> space or Webcasting time is still in the spirit of this section so long as=
> all nominees get an equal share. The Internet community benefits when the=
> candidates have some means of presenting their views (webcast debates,=
> moderated email discussions, etc.), all of which require some use of=
> impartial resources; ideally, Section 9(e) would not prevent ICANN from=
> providing those resources.
>
>D. Representation
>
>Geographic Diversity vs. SO Representation: None of the Center's three=
> models yet includes a mechanism for assuring that the elections fulfill the=
> requirements of Article V, Section 6: that "(1) at least one citizen of a=
> country located in each of the geographic regions listed in this Section 6=
> shall serve on the Board (other than the initial Board) at all times; (2)=
> no more than 1/2 of the total number of At-Large directors serving at any=
> given time shall be citizens of countries located in any one Geographic=
> Region, and (3) no more than one-half of the total number of Directors, in=
> the aggregate, elected after nomination by the SOs shall be citizens of=
> countries located in any one Geographic Region."
>
> Article V, Section 2 gives substantial latitude to the SOs in choosing=
> their representatives to the Board, however: "Immediately upon the=
> recognition of a Supporting Organization by the Board pursuant to Section=
> 3(b) of Article VI, the Board shall request that such supporting=
> Organization nominate three persons to be directors. Upon receipt of such=
> nominations, the Board shall elect such persons as members of the Initial=
> Board." Section 11 states that "If an SO votes to remove their appointed=
> Board Member, the "Board shall vote to remove such Director." At no point=
> do the By-Laws provide for the Board to overrule or decline a nomination=
> from a SO. Thus four At-Large Directors from a single region would=
> preclude the nomination of a SO-representative Director from that region,=
> but provide no means of enforcing the Section 6 prohibition. The same=
> problem would occur if the only Director from a given region was a=
> SO-representative Director, and his/her SO elected a Director from another=
> region in his/her stead.
>
>Election Oversight Committee: Each of the three models contemplates a large=
> number -- perhaps hundreds of thousands -- of potential nominees. One=
> suggestion within the RCS Group for dealing with this level of complexity=
> is to have a committee of the ICANN Board winnow the candidate pool before=
> elections. The procedure for winnowing is, obviously, a matter that would=
> itself have a large impact on the election outcomes; the RCS Group has not=
> yet examined the possible procedures in any depth. This "electoral college"=
> structure is formally a part of the "Individual" model, although it could=
> be an option in any model.
>
>The vetting provision creates a significant tension between democracy and=
> efficiency. The electoral function could occupy an enormous portion of the=
> Board's time each year, diverting the Directors from their primary duties=
> of Internet administration. Does that prohibit granting to a nomination=
> committee any ability to "filter"?
>
>Capture: The White Paper is fairly adamant about making ICANN's procedures=
> capture-resistant: "The new corporation's processes should be=
> fair...protecting against capture by a narrow group of stakeholders....=
> Super-majority or even consensus requirements may be useful to protect=
> against capture by a self-interested faction."=20
>
>The White Paper sets a difficult task with this requirement. Any membership=
> model can be subverted by special interests given the right circumstances;=
> the best that ICANN may do is craft careful and vigilant protections into=
> the model it eventually chooses. The "Organization" proposal allows a vote=
> to pass when only four-ninths ((2/3+2/3+0/3)=3D4/9) of the total membership=
> has actually acceded to it. The "Individual" model also could be captured=
> through a "machine politics" technique similar to that found in large U.S.=
> city governments if organizations funded their employees' membership fees=
> in return for a contract that the individuals would vote in the corporate=
> interest. The "Open" model does not contemplate any controls on who may=
> register to be a member, so groups might capture a vote through=
> ballot-stuffing.
>
>Capture Through Collective Apathy: Special interests might capture ICANN=
> more easily if the less focused parties simply lost interest and dropped=
> out of the process. ICANN should strive to have a large and diverse=
> membership in order to keep itself truly representative. Nothing in the=
> By-Laws suggests a minimum number of members or nominees, and it would be=
> possible to institute a provision requiring a certain "quorum" for=
> membership votes to be valid.
>
>III. Conclusion
>
>Each of the three models meets some of the White Paper criteria effectively=
> and others less well. In several cases, ambiguities in the By-Laws and=
> White Paper make it difficult to assess how specifically to balance these=
> concerns. The RCS Group continues to analyze these and other models, to=
> improve the set of alternatives and to elucidate the costs and benefits of=
> each. We are optimistic that the ambiguities and difficulties can be=
> resolved so as to make ICANN an ongoing benefit to the Internet community.
>
>
>-------------------------------------------------------------------------
>Antoun Nabhan * "Uh, I guess that makes me Draft Boy."
>[EMAIL PROTECTED] * - Antoun N.
>Berkman Center for * "And *that* makes me the League of Women's
> Internet & Society * Engineers!" - Wendy S.
>
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