[IFWP] Re: Rule of law vs. consensus

[Ken Freed]

Dear Jay and Mike (for all to read) --

I've been quiet for quite awhile, until this exchange between you
two. Please pardon the length here. This has been building up,
and my conclusions toward the end may surprise some of you.

Creating consensus is a relatively new phenom for humanity,
as a formal process, and the rules remain undefined, so far.
All voices need a chance to be heard. Sometimes shouting
to be heard is really a desperate plea to be heard above the
din of those too insecure in their positions to practice civility.
Building census is messy , ineffecient, and time consuming,
yet given time, the process can produce unanimous accords.

The central problem with consensus-building as a method for
making decisions, taking decisions, is that there's no defining
moment of cusp, no finite final measure, as with an up or down
vote -- so many voting yea, so many nay, and so many abstaining.
Fixed, on the record, a formal vote is there to be counted anew by
any doubting the tally. Barring vote fraud, there's no wiggle room.

In an ideally functioning democratic system, there's a prolonged
period of discussion and debate toward building a consensus,
but critical maters must be put to a vote, settled definitively, so
the talk can abate and the work can begin. Also ideally, for any
democracy to be considered legitimate, everyone who will be
affected by any decision needs to involved in the deliberations
and whatever vote is cast to eventually make the final decision.

As far as ICANN is concerned, if the question now before us is

the legitimacy of the corporation that emerged from dialogues
in the wake of the widely-opposed gTLD-MoU (followed by the
Green Paper & White Paper), if legitimacy is based on whether
the government governs with the consent of the governed, then

I hate being the one to say that the emperor has no clothes, but
on this one principle alone, I must say: ICANN lacks illegitimacy.

There has never been any formal vote by "we the people" around
the world giving our permission for the public Internet to become
privatised, and there certainly has never been any ballot measure
before the public transferring power to a committee called ICANN.

Because the decisions about the Internet being made today by
ICANN will have long-term consequences, changing the lives of
everyone on our planet, because all the uncounted billions of folks
not yet online may not agree with the concensus choices emerging
from the councils of technocrats, because ICANN represents only
the interested DNS players, how can anyone with an open mind
honestly say ICANN meets the tests of democratic legitimacy?

The vast majority of people worldwide are not fluent in techie lingo.
They can't tell their DNS from a gTLD, can't tell HTML from a hole in
the ground. The fact they may never understand I-net jargon doesn't
mean they have no right to a fair voice in the decisions affecting them.

And if you say I'm blowing ICANN's power out of proportion, let me reply,
to deny the global power of ICANN actions is to deny the permeating
power of interactivity itself. Pause to see the deeper reality here.

Interactions among people over the Internet already are penetrating
into all our lives, from primitive rainforest tribes to comfy suburbanites
in the great cities. Take any online purchase at some ultrahot website

with an unforgettable URL, a domain name to die for with the killer app,
of course, selling some hot product that ancient rainforests are being cut
down or pillaged to produce; such a loss of greenery further weakens the
thin blue line of atmosphere keeping all of us alive. And who among us
voted on the domain name system making all this commerce possible?
I never did. Did you? There's never been any vote in public elections.

Everyone on earth deserves a fair say in decisions affecting everyone on
earth. ICANN does not represent everyone on earth, only a tiny fraction --
DNS players. Since ICANN is affecting more lives than are being counted

in its councils, no matter how much consensus-building and lobbying may

go into influencing the decisions made by the ICANN Board, any claim of
ICANN democracy is a sham, a ruse, an act of self-delusion. No clothes.

In fact, all the efforts we devote to trying to make ICANN more democratic,
while I do intend to do what little I can toward this end, sadly, could all be
in vain, like betting on a mule to win the Kentucky Derby.

If we want genuine Internet democracy, yet again comes the call, let us
draft and enact for international ratification a global Internet Constitution
with a universal bill of rights and responsibilities for all netizens, not matter
who they are or how important. To accomlish this task, we could apply the
concensus process of the ICANN supporting organizations, like the DNSO
such as the Names Council or even the General Assembly if the GA met
often enough to be anythin more than a mere token of open democracy.
The ICANN Board itself could do the task, if it had the courage and will.

ICANN could be a true interim body, like the Continental Congress, that
calls for the vote to make itself obsolete, (even if keeping IANA's duties),
replaced by something far more openly democratic, less subject to the
influences of big players with the big bucks to make their influence felt.
Then the question of ICANN "caving in" to pressures would be moot.
The surest way to defeat backroom dealmaking is open democracy.

Perhaps this notion is too radical of a proposal this far along, but
the time to act is now, before ICANN is too entrenched to budge.

Given the way the "interim" board became the "initial" board,
given the appointment of reactionary Twomey to GAC, given the
denial of a fair hearing to the IDNO recognition proposal in Berlin,
given the latest stealth appointments, given the deals suspected,
ICANN's actions clearly call into question it's right to rule over us.

Kindly read or re-read the Global Sense essay (needs a rewrite),
and apply to ICANN the arguments there against the gTLD-MoU,
especially the introduction about any group's right to hold power.

Let there be rule of law, not rule by committee.
Network democracy makes global sense.

--ken

Ken Freed
Media Visions Webzine
http://www.media-visions.com

"Global Sense; Calling the Question of Network Democracy"
http://www.media-visions.com/globalsense.html








>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)