I don't know how Craig meant to phrase the question, but as you point out,
I'd hate to think that ICANN's being "private" has to dictate anything
about its structure.
You set out two axes:
- accountable/free. Yes! We need ICANN to be accountable, and
ultimately ballots are the way it'll happen--through an at-large membership
of users, or through the roughly "supply"-oriented side of the SO's, who
run their own elections. The opposite of accountable here would be
"rogue," I guess, answering only to itself and therefore capable of all
sorts of terrible things. Of course, there's still a politics that binds
ICANN--indeed, many seem to think the government advisory committee is
running the show anyway. For those who see a route to accountability
through governments, that might even be solace, but my point is that even
in its current incarnation ICANN seems to me to have quite tight
constraints on what it can do.
More important, there's another way to view "rogue," and that's as
"independent." We need ICANN to be able to make decisions in the public
interest, apart from one special interest or another--hence everyone's
worry about capture. If the Federal Communications Commission were made
more "accountable"--i.e. taken from its current rather insulated status to
instead be elected by stakeholder groups of telephone, television, cable,
and radio companies, it would not be able to readily serve an oversight
function. Federal judges, too, have lifetime tenure and guaranteed
salaries--talk about unaccountable!--precisely so they can make decisions
about "justice" without political, financial, or "constituent"
pressure. No one's suggesting that for the ICANN board, but particularly
when the topics ICANN covers are as abstruse as they are widely impacting,
there's a serious worry about capture that has to be reconciled with the
need for accountability.
- Limited, enumerated powers vs. ever-expanding mandate. Agreed that
the former is best, and that, as Craig has pointed out, ICANN has been
falling all over itelf to say "we're *just* doing technical mgmt of names
and addresses..." That's inevitably something with a political/policy
component; one look at the WIPO suggestions makes that clear, and all the
anxiety over process and accountability shows that this isn't mere
standards-setting like how big the flange on an A/C cord should be.
I propose a third axis: open/closed. Many gov't processes are
open--notice and comment periods, open mtgs, etc.--and this is completely
contrary to the way a typical private corporation operates. It's too bad
that ICANN's private corporate form has included much of the default
corporate baggage that ill suits it. Frankly, I think operating in an
ever-watchful and oft-hostile environment has made it difficult to generate
more openness, even though these are things that democratic
governments--and politicians--are used to as a matter of course. I think
ICANN has a ways to go here, but, unlike others, am still willing to see
them move towards doing it. Hence BCIS interest in webcasting from mtgs,
and building architectures for meaningful electronic public
participation--architectures that are still very much in development, both
technically and conceptually within a meeting.
What started me this afternoon was reading Craig's message, which I thought
well highlighted the bind that any organization will find itself in when
trying to assert itself in this very sensitive space. This is not the
formation of a new coordinating body from scratch; it's happening within a
history of conflict, mistrust, and disparate interests that may well
guarantee that at any one time some significant number of them are crying foul.
...JZ
At 05:49 PM 7/3/99 , Michael Froomkin wrote:
>Craig McTaggart asks whether it's unfair for people to accuse ICANN of
>lacking public virtues when this is a feature rather than a bug in a
>private body.
>The danger, it seems to me, is having the worst of both worlds. Public
>and private have different accountability modes. To oversimplify a lot,
>one is ballots,the other is market. ICANN has little to no of either.
>This doesn't prove that ICANN will do anything bad, just as accountability
>doesn't always prevent organizations from doing bad things.
>
>But it's a worry.
>
>Organizations have a tendency to expand. It's almost a bureaucratic
>imperative. A body with no check on its access to funds is particularly
>vulnerable to this tendency.
>
>It's a worry.
>
>For me the relevant continuum is no public-private. That's almost as
>unhelpful as ICANN v. NSI. The relevant dichotomies are accountable/free
>and clearly-bounded-limited-task/generalizable-mandate-subject-to-
>revision.
>
>It's a worry.
>
>Then there's the issue of who chooses the deciders....
>
>--
>A. Michael Froomkin | Professor of Law | [EMAIL PROTECTED]
>U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
>+1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
> --> It's hot here. <--
Jon Zittrain
Executive Director, Berkman Center for Internet & Society at Harvard Law School
http://cyber.law.harvard.edu
[EMAIL PROTECTED]
