I don't disagree that the commercial folks have hijacked ICANN to a large
extent.  That's a given, at this point.

There are various levels of public representation, and sometimes one level
needs to get itself out of the way so that the proper level can handle it.
That may be the best thing for ICANN, in the current context (restrict
itself to genuine technical matters, and punt the other sticky policy
matters to different institutions better designed to address them).

ICANN has the further complication that its status as some sort of
institution of public representation is structurally problematic (is it a
government agency? a private consortium? a hybrid? what legal precedents
*really* govern the authority this institution has?).

The big problem, as I noted, is how we define "we" in institutional terms.
This has been an issue for ICANN since its inception, partly because it was
intentionally created in a "novel" manner so as to fall between the cracks
of well-understood public institutions, to give it more elbow room.  There
was a deep distrust of public government among those who created ICANN, and
they somehow thought they could do a better job by sort of "starting over"
with something they had more room to invent anew.

Unfortunately, public governance in the real world is a lot harder than
those who are not experienced with it often realize.  There are a lot of
myths about how public governance works (and doesn't work) that have less
to do with reality than with ideology.  IMHO that led ICANN to bite off
more than it could chew, in structural terms (because they thought it would
really be just about technical matters, and missed the potential to bleed
into other policy areas where real consensus is rare).  This idea of
modeling public governance on the IETF model seems to me an elementary
mistake made by relatively inexperienced people who thought they could do
better than "the professionals" who screwed up public institutions.

But the reason public governance is screwed up has less to do with
structure than with the power dynamics that leverage that structure, and
you can't get rid of the power dynamics by changing the structure.
Ideally, you want a structure that minimizes the damage that power dynamics
can do (things like separation of powers, checks and balances,
transparency, accountability of those who govern to those who are
governed), but the IETF model is not appropriate to such circumstances
where consensus is increasingly difficult to reach, and the public stakes
increasingly important beyond the narrow world of private commercial
competition.

I don't see a simple answer to this conundrum.  Re-jiggering ICANN's
constituency balance in a fairer manner is probably/potentially helpful.
But really, the whole thing needs a soup-to-nuts overhaul in every way,
because it has turned into a Frankenstein Monster of jerry-rigged patchwork
that explicitly lacks the sort of structural controls that make public
governance at all plausible as a way to represent the interests of the
broadest public.

Simply laying claim to the Internet as "we" doesn't begin to address the
real structural issues at ICANN.  It's a point that I would think everyone
at NCUC agrees on already.  But what would it mean in detail to try to
implement that idea?  The devil is in the details, as everyone here knows
well enough.

Dan


--
Any opinions expressed in this message are those of the author alone and do
not necessarily reflect any position of the author's employer.



At 12:09 PM -0700 4/18/09, Marc Perkel wrote:
>I agree with you for the most part Dan in the we need some sort of
>structure or organization to ensure the public gets the maximum
>experience out of the Internet. However I feel that the Commercial Users
>have a disproportionate stronger voice in this that the Non-Commercial
>users and they are not representative of what's best for the future of
>humanity.
>
>Commercial interests are more focused on creating monopolies to make
>money. They would squeeze us like the oil companies and credit card
>companies. They would put the value of preventing illegal downloads over
>free speech. They would want to monitor, regulate, spy, and manipulate
>our communication. Similarly governments have different cultures and
>values. In Iran people like me would be put to death. Women could be
>stoned for getting online without a male supervisor to keep them out of
>trouble. So we as the people of the world need to assert control and
>prevent domination be commercial entities and government entities.
>
>ICANN governs best when it governs least. We need to minimize rather
>than to expand our regulatory role and only act to expand the
>possibilities of what the Internet can provide. We aren't law
>enforcement, nor an extension of government, nor are we the protectors
>of corporate profits. We need to think through our role and to ensure
>that non-commercial users are dominate.
>
>Dan Krimm wrote:
>> I've been mostly lurking here since moving on from my work with IP Justice,
>> but the core of this idea seems sound, even for those of us who approach
>> policy from a stance separate from (but not necessarily in conflict with)
>> the spiritual experience.
>>
>> In economic terms, the precedent exists in infrastructure we often call
>> "public utilities" (these can be services delivered directly by [local]
>> government, or in a broader sense, services delivered by private companies
>> but regulated by government in the public interest).  This often occurs in
>> the realm of so-called "natural monopolies" where the structure of the
>> market (high start-up costs, ever-lowering marginal costs) leads to
>> incentives to have a single service provider (basically because duplicate
>> or non-interfacing infrastructures are wasteful or less effective, and in
>> some cases unnecessarily intrusive on public property).
>>
>> The main point here is that the Internet is no longer "an option" in order
>> to live a productive life in the 21st Century Technological Society, any
>> more than recusing oneself from centralized water delivery, electricity
>> delivery, natural gas, and sewer systems.  Yes, you could carry water up
>> from a river, burn a wood generator for electricity, purchase propane from
>> retail stores, have an individual septic system, but these are far less
>> efficient means of delivering these services than the central services,
>> especially in urban contexts, and a modern society relies on the
>> centralized infrastructure to lubricate the economy.
>>
>> The Internet surely represents a similar advance in communication
>> infrastructure, and should be viewed in similar ways.
>>
>> In particular, it should be viewed as a proper domain of public regulation
>> in the public interest.  And in my view, one of the primary public
>> interests here is the general principle of "common carriage" which has
>> precedents in public infrastructure for transportation (bridges, ferries,
>> roads), but also extends to information services such as telephone and
>> cable television service (yes, it already extends to telecommunications
>> services in other technological domains).
>>
>> So I would argue that the public as a whole has a right to regulate such
>> services to protect such public interests, even when specific services are
>> owned and delivered privately.
>>
>>
>> As for what institutions have standing to represent the public interest,
>> well, that's a different question.  I personally would want to require some
>> structural accountability to the general public (not just one subset of the
>> public, and not on condition of tangential criteria of membership) in order
>> for any relevant institution to have such standing.
>>
>> Structuring such accountability is the chief challenge confronting ICANN,
>> and getting it right (or at least less wrong) seems more important than
>> ever.  The big question is, who is "we" and how is "we" defined in legal
>> and representative terms?
>>
>> Dan
>>
>>
>> --
>> Any opinions expressed in this message are those of the author alone and do
>> not necessarily reflect any position of the author's employer.
>>
>>
>>