Jay,
The vehicle of law vs. who shouts loudest seems to me a tough question.
If ICANN made simple rules and hewed to them in a vacuum it'd be criticized
for "ignoring community consensus" and acting unaccountably--you've been
one of the strongest proponents of ICANN (or anything serving its function)
deriving legitimacy through how well it represents that consensus. If
ICANN purports to represent consensus--and change a policy as a result--it
can be criticized for "caving in to whomever shouts loudest" and changing
course from its prior rules.
I agree with the view that consensus cannot be measured by who shouts
loudest at a meeting, or even--at least in this highly politicized
context--by who hums at a meeting, as the IETF would measure it. The
problem goes a level higher with membership, too: make membership open, and
there's a danger that whoever can push enough people to the ballot box can
take the election, regardless of what the "overall" community preference
might be. Some people at the Berlin meeting advocated limiting membership
to "stakeholders" as a result--though I haven't yet seen or been able to
think of a satisfying limiting principle.
All this said, I'm curious: how do we measure that elusive thing called
consensus? And, on the merits, do you think any one entity, whether NSI or
MCI or CORE or anyone else, should pick three seats to the Names
Council? ...JZ
At 10:54 AM 7/10/99 , Jay Fenello wrote:
>>As NSI's representatives at the Berlin ICANN meetings have surely informed
>>you, there appeared to be a near-unanimous sentiment expressed at the
public
>>ICANN meeting on May 26 that no one company should be able to place more
>>than one representative on the Names Council.
>Hi Mike,
>
>Is ICANN a vehicle of law, or is it a vehicle of
>whomever shouts the loudest at an open meeting?
>(which, coincidentally, was held in conjunction
>with an ISOC meeting).
>
>
> >>The peculiar situation of the
> >>gTLD Constituency Group -- at the moment, NSI is the only member -- means
> >>that, absent compliance with the Board's request, a single company would
> >>select one-seventh of the members of the Names Council. It seemed clear in
> >>Berlin that the community consensus, with which I and the Board agree, was
> >>that no one company should have that level of influence in a body that is
> >>designed to be broadly representative of the various worldwide communities
> >>of interest that constitute the DNSO.
>
>
>Then why did the Board write their by-laws to
>specifically *give* NSI the right to select one-
>seventh of the members of the Names Council?
>
>
>http://www.icann.org/bylaws-09apr99.html
>
>VI-B:3(c) Members of each Constituency shall select three individuals to
>represent that Constituency on the NC . . . no such member may make more
>than one nomination in any single Constituency; provided that this
>limitation shall not apply to any Constituency with less than three members.
>
>
> >>Your letter of last week, which nominates an employee plus two of your
> >>lawyers to the Names Council, is not consistent with the views of the
> >>community. Since this is the second letter from Network Solutions which
> does
> >>not accept the consensus view, the ICANN Board must now do what it is
> >>supposed to do: follow the community consensus.
>
>
>I agree with William and others, that you and
>the ICANN Board are a party to the gaming and
>capture of the DNSO, and this letter is simply
>
>another bogus attempt to retain a controllable
>majority within that body.
>
>Jay.
Jon Zittrain
Harvard Law School
Executive Director, Berkman Center for Internet & Society
http://cyber.law.harvard.edu
Lecturer on Law
http://cyber.law.harvard.edu/is98
http://cyber.law.harvard.edu/msdoj
+ 1 617 495 4643
+ 1 617 495 7641 (fax)
