Randy (et al): Included below is the response by Joe Sims (Jones Day) to Professor Froomkin's similar arguments in 1999. I include it because it's not that long but the link is: http://archive.icann.org/en/comments-mail/comment-bylaws/msg00025.html I found it interesting and very readable. Not necessarily authoritative, but interesting. If nothing else it covers much of the ground being re-hashed here and seems thoughtful even if one doesn't agree. -Barry Shein --- Professor Froomkin's literary skills are fine, but his analysis leaves a lot to be desired. Since his views might be taken by a reader who is unfamiliar with the subject as having some particular validity, given his academic credentials, it is probably necessary to provide at least some context, something that Froomkin ignores. Froomkin says that "one of the things that ICANN needs to enhance its rather tenuous legitimacy is members." This single statement reveals the "complete disconnect," to use another Froomkin phrase, between his view of what ICANN is and should be, and the real world. In the real world -- the world of the technical people who created the Internet, the infrastructure providers who make it work, the businesses (large and small) who increasingly depend on it for commercial activity, the more than one hundred million individual users who benefit from the incredible increase in access to communication and information that the Internet provides, and the national governments around the world that view this global resource as an important global asset -- in that real world, ICANN's mission is extremely limited: to maintain the stability of the DNS. Or, to put it more simply, to not screw it up. This is the prime objective, the overriding core task, the critical job. Everything else is secondary, or even lower than that, in importance and priority, and that includes anything that can remotely be described as governance. Given this real world fact, ICANN has been constructed to maximize its potential to maintain stability, and to minimize the possibility that it could do something that would increase the risk of instability. Now, of course, global and national politics, and the honest search for the broadest possible consensus of all interested stakeholders, have combined to produce an ICANN drafted by committee. As could be expected, the result is not a perfect instrument for anything, including its prime objective. But the fact that there has always been a prime objective -- and that no responsible participant in this effort has ever disagreed that this was and should be the prime objective guiding the creation of ICANN -- has allowed there to be a common definition of progress that has led to where we are. And, I might add, that has led to broad -- essentially unanimous -- support for where we are from those real world entities I listed above. None of them think we got it exactly right, but almost all of them think we got it acceptably right. The principal exception to this rule is a class of critics, of whom Froomkin is one, that believe that ICANN has been constructed with insufficient attention to the needs, desires and inputs of the little guy -- the individual user, the individual domain name holder, the small entrepreneur. They believe that, since ICANN will (they assert) have control over an important global resource, it must itself be controlled, or at least significantly influenced, by some form of global democracy -- if not one person, one vote, then as close as they can get to that. This is not a frivolous position, but it is a fundamentally wrong-headed one, because it is clearly not consistent with the principal objective of ICANN: create a vehicle for consensus development of policies that will promote the continued stable operation of the DNS. This objective requires slower, not faster, decision-making and incremental change; consideration of technical issues that are generally not accessible to the population as a whole, or even the user community as a whole; and the continued support of the business community, the infrastructure providers and other important political forces in this space. The more direct influence that the general population -- even the general user population -- is given over the actual decision-making processes of ICANN, the more risk to the prime objective of continued stability, and the more pressure there will be for the only realistic alternative: control of ICANN by some form of multi-national body, where we would likely get stability all right, but combined with more control. less freedom and less innovation. The fact that the global community of national governments has so far allowed and even encouraged this private sector approach is quite remarkable, and owes great credit to the United States government for its leadership in this regard, but this forebearance is neither pre-ordained nor guaranteed. Froomkin says that the proposed At Large Membership structure "disenfranchise[s] the public." Pardon me, but exactly when was "the public," whoever that is, in charge of the Internet? The Internet was in the beginning a US government research project, which has long since become a global resource managed and made to function in large part by volunteers, and now that it has become an increasingly important asset for commercial transactions, is financed largely by private businesses, either through the creation of infrastructure or of applications designed to make use of that infrastructure. Where exactly in this process was "the public" enfranchised? What has "the public" been voting on? And is Froomkin's "public" just the United States "public," or does it extend to a global "public." Finally, to the extent that there is or should be a "public" role in this effort, why is that not already accomplished by the extensive involvement and control by the United States and many other national governments throughout this process -- and continuing, I might add, for the foreseeable future? Where is it written that for ICANN, unlike the ITU or United Nations, for example, there needs to be direct involvement by individuals in making policy decisions, rather than have those made by representative bodies? Finally, let's deal with his specific point, such as there is one: that the proposed At Large bylaws "remove direct end-user input into the management of ICANN." If by "direct end-user" he means to exclude all those involved in the other three Supporting Organizations, and thus limit the term to individuals that have no other connection to the DNS than as an individual user of the Internet, he is correct -- and not only correct, but that is the objective of the policy that the ICANN Board adopted in Santiago that these bylaw amendments are designed to implement. Keeping in mind the prime objective of continued stability, the notion that half the ICANN Board could theoretically be elected, especially in this first election cycle when all nine will be up for election, by a determined minority -- whether commercial, religious, ethnic, regional or otherwise -- is anathema. In addition, since this particular portion of the Board is supposed to be representative -- not simply the product of who can marshall the most votes for a seat on a Board of an entity that the vast majority of the "public" that Froomkin is so worried about has never even heard about -- we have to be worried about how this clearly subsidiary goal of having a membership can be met without interfering with our basic objective. And finally, while the indirect approach that is set forth in the Board's policy that these bylaws implement does have the added benefit of eliminating the concept of derivative actions -- another potential source of instability -- that is certainly not the only reason it was adopted. Froomkin's legal work on this point is interesting, but I suspect even he would not want to guarantee that the arguments he presents will be consistently successful, or that even if they are, an organization with billions of potential members will not be constantly fighting some very small subset of them -- which could quite easily amount to many hundreds or thousands of individual matters. In the end, I guess it is easy -- and maybe desirable -- for academics to constantly seek a better world; after all, they have less real-world responsibilities and thus fewer constraints on imaginative thinking. Over time, good ideas will gain support and bad ones will not. And I would certainly not want to discourage Professor Froomkin or anyone else from continuing to advocate a change in focus or objectives for ICANN; after all, if they don't speak out for what they see as the underrepresented, who will? Maybe at some time in the future there will be a consensus for a globally-democratic ICANN, or some similar body; maybe at some point down the road the Internet will be so stable that no one will worry about that anymore. But today, at least my perspective is that almost everyone involved in this process is worried about stability, and that almost everyone wants to avoid doing things in the creation of ICANN that would risk continued stability of the DNS. Indeed, one could make a reasonable argument that, if stability is our objective, we should postpone any movement to an At Large membership or Directors until ICANN is up and running successfully; after all, we have had enough trouble getting consensus out of those who make up the Supporting Organizations -- a much more homogenous group than the population of the world. But the ICANN bylaws call for an At Large membership, and the Initial Board feels bound by that call, and so it has sought to carry out that responsibility in the best way it could -- consistent with what it (and virtually all, if not all, of the other participants) see as its principal goal of creating an organization and a structure that would enhance, not risk, the continued stability of the DNS. I think its efforts so far have the support of -- dare I say it? -- a consensus, even a strong consensus, of the Internet community, Professor Froomkin's views to the contrary notwithstanding.