[NA-Discuss] [At-Large] FULL Karl Auerbach: Statement appended to ALAC Review Document...

[Cheryl Langdon-Orr]

For those of you who wish to immediatly look at ALL of Karl's statement  I
have inserted into the body of this message as text...
<copy of pages 32 - 37 of the full report>
Appendix 3: Concurrence from Karl Auerbach, member of the
ALAC Review WG
I concur with the report of our working group. Yet, while I agree with
nearly all of
our recommendations, I am not satisfied. I would like more. But knowing that
progress is achieved by small steps more often than by great leaps I see our
report as a
step towards a destination and not the destination itself.

Our report is a complex work of many hands; the Westlake Group, those who
commented, the staff who helped put together the text, and ourselves, the
working
group members. I was impressed by the remarkable degree of open dialog, open
minded consideration of ideas, and the total absence of any self-interested
agendas.
What I write here may appear to stretch beyond the charter of our working
group.
Perhaps. But it is necessary. ICANN's at-large Advisory Committee is a facet
of the
central issue of ICANN: the operation of the internet's domain name and IP
address
systems so that they serve the public interest. Artificial constraints on
our inquiry
would lead to artificial results. I chose to err, if I err, on the side of a
more synoptic
treatment.

I watched ICANN before and as it was created; I have not forgotten some of
the
promises1 that were made. These promises should be remembered and honored.
The current ALAC was a step backwards from the system that it replaced. That
prior
system self-organized and self-funded itself into a vibrant system of debate
and
information exchange. ICANN merely ran the election machinery. In that
system the
public itself nominated and elected people onto the ICANN Board of
Directors, a far
cry from the thickly insulating committee upon committee upon committee
intricacy
of the present ALAC. Today's ALAC, even after six years of funding and
intensive
management by ICANN, has not approached the vibrancy or scope of its
predecessor.
It is my view that ICANN ought to scrap the ALAC in its entirety and return
to the
status quo ante.

But I do not feel that there is, as yet, adequate support within ICANN for
such a
move.

So I am forced to accept incremental improvements to the ALAC.

Much as I agree with the incremental improvements that our working group is
recommending, the result is not even a shadow of its predecessor.
Rather than suggesting more minor adjustments, I will focus here on one
particular
principle, that of accountability of ICANN to the public.

To my mind all other issues are subordinate to this question of public
accountability.

{this is footnote 1} For example of one such promise see the statement of
Esther Dyson, Chairman of ICANN, made the before the US House of
Representatives Committee on Commerce, Subcommittee on Oversight
and Investigations, July 22, 1999.


Someone or something must have the power to require ICANN to meet its
obligation
to serve the public benefit.

Who or what ought to have that power? My answer is simple: ICANN should be
answerable to the same public for whose benefit ICANN was created.
ICANN is already accountable to the people of the State of California
through its
publicly elected Attorney General. My thesis is that it is better to vest
that
accountability into the community of internet users than into a government
official.
ICANN's structure is so complicated that it is nearly impossible for any
group, much
less the public, to hold ICANN accountable.

Moreover, ICANN's Board of Directors has exercised only weak authority over
the
activities of their chosen executives and their staff. This has created a
highly
imbalanced situation in which ICANN and its decisions are largely driven by
a
freewheeling ICANN staff. The Board has the authority to remedy this problem
but it
shows no signs of doing so. As long as the Board allows this imbalance to
continue,
it matters little whether the Board of Directors or the ALAC become more
strongly
representative of the public: As long as ICANN's Board allows ICANN staff to
"run
the show", effective oversight of ICANN, and thus accountability of ICANN,
will not
exist.

Our working group was constrained; we could not deal with the larger issue
of
ICANN structure. And we were faced with an ambiguity whether our charter
allowed
us to go beyond the Westlake report. As a consequence the best we can do is
to try to
cure some mild symptoms of the ALAC's weaknesses.

There are two causes of that weakness:


The ALAC is excessively complex.

The word "byzantine" was not invented to describe the ALAC, but it does
apply. The
ALAC is simply too complicated and inserts too many layers between internet
users
and the policy making engines of ICANN. At a minimum the "RALO" layer of the
ALAC serves little purpose and should be eliminated.
The ALAC is unlikely to be an effective source of accountability or advice
as long as
it retains its labyrinthine form. And internet users will feel that the
layers of the
ALAC operate to insulate and isolate ICANN from their opinions.


The ALAC has too little authority.

I am pleased that our working group partially remedies this lack of
authority by
recommending two at-large filled voting seats on ICANN's Board of Directors.
I
wish that number were significantly larger and that the number of other
seats were
reduced.

It is important that the public's choice of Directors not be filtered and
diluted through
the nominating committee.

The ability to fill voting seats on ICANN's board will give the ALAC some
much
needed actual credibility. But that credibility will be pointless unless it
can be well
exercised – which requires that the ALAC push more resources out to its
edges.

Our report recommends that more resources be made available at the edges of
the
ALAC. I strongly agree. In addition, I also believe quite strongly that the
edges
should be as autonomous and independent as possible, even to the degree of
allowing
the edges to engage in decisions to hire, or discharge, people. (The legal
implications
of this to ICANN could be significant.)

Such autonomy and independence could lead to some waste and possibly even to
misuse. I believe that such risks are worthwhile. ICANN can minimize these
risks by
imposing good and timely cost tracking and accounting on any resources that
ICANN
makes available.

In addition, the ALAC is not really independent. The ALAC depends on ICANN
for
money and resources. The ALAC resembles a "company union", a form that has a
checkered reputation and has even been outlawed in some locales.
Nor does it help that the ALAC's job is widely perceived in a narrow way,
that the
ALAC's role is to do little more than be a source of advice that others
within ICANN
might chose to consider, or not.

These problems make the ALAC ineffective. And that, in turn, diminishes the
perceived value of ALAC participation by people who might consider joining.

The ALAC is further weakened by its context. The ALAC is structured as a
polite
debating society. Yet it most operate in the middle of a maelstrom.
ICANN is a political battlefield on which economic and social forces engage
in ways
that are not necessarily pretty. The position and structure of the current
ALAC doom
it to be little more than a defenseless waif lost on this battlefield.

Can that waif ever grow-up to be a titan in that battle? ICANN's system of
permanent
structural preferences for selected "stakeholders" makes that very unlikely.
We have been asked to overlook the ALAC's flaws on the grounds that it is
new and
needs time. I do not agree.

The ALAC was created six years ago. The ALAC has had six years and hundreds
of
thousands of dollars, if not more, of direct ICANN funding and staff
support. While
one can say that that the ALAC has achieved some formal structure and a
small cadre
of active adherents, it can not be said that the ALAC has obtained a wide
following,
particularly when compared to the hundreds of thousands who tried to
participate in
ICANN's year 2000 elections.

The ALAC is not a new system and there is no reason to excuse its faults on
the
grounds that the ALAC is new and needs more time.

And finally, I am disappointed that even after a year since we first began
asking,
ICANN has not been able to produce current or historical data on the cost of
the
ALAC.

It is my belief that our report would have been different, in detail and in
gross, had
historical and present cost data for the ALAC been available.
This lack of financial data is particularly ironic given that the system of
elections that
preceded the ALAC was dismantled in large part because it was considered
too expensive.

Even in the absence of financial data it is very clear that the ALAC system,
including
the ICANN staff that manages it, is very expensive. It is quite apparent,
simply by
looking at the number of staff members involved and the few visible funding
numbers, that the ALAC is much more expensive then the elective system that
it
replaced.


ICANN Is A Regulatory Body; Its Debates And Decisions Are
Political, Not Technical

There seem to be many within ICANN who feel that ICANN is above the fray of
politics, that ICANN is some kind of higher creation in which ideas are
weighed on
unbiased scales and discussed by purely disinterested minds.
That is a beautiful idea. But it is is not consistent with actual practice.
The real ICANN is a body of internet governance. The real ICANN does not do
technical coordination. The real ICANN engages in economic and social
engineering.


The real ICANN is a full fledged regulatory body.

The impact of ICANN's regulations are significant. ICANN's policies have an
impact
upon the community of internet users that is measured in multiples of
billions of US
dollars ($1,000,000,000 US) each and every year. ICANN's decisions are life
or
death sentences to completely lawful innovations on the internet.
We should not expect the debates about ICANN policy to be pretty set pieces
or
Victorian tea parties. We should recognize the interest groups will confront
one
another with a full armory of political weaponry.
ICANN can, at best, create a playing field and rules of engagement; ICANN
can not
stop the battle.

The ALAC is at a disadvantage. With the ALAC being largely an ICANN
dependency, structured, funded, staffed, and operated by ICANN, the ALAC is
a
weak pawn while ICANN's stakeholder constituencies are rooks, bishops, and
knights.

ICANN's long term goal should be to engender an independent at-large or ALAC
that
is able to act on its own behalf, manage (and fund) its own affairs, and
have a direct
and significant role in the actual process through which ICANN makes
decisions.


Accountability to the Public

To avoid misconception, I am not proposing anything like an ALAC or at-large
plebiscite on every ICANN matter. Rather I am suggesting that accountability
to the
public requires that the public, via its arm, the ALAC, be able to have a
reasonable
ability, over a period of time, to induce ICANN to more closely track the
public
interest. This can be realized in concrete terms by several techniques, the
most direct
being a majority of voting seats on the Board of Directors. But there are
other means.
For example perhaps objections by the ALAC on a matter would trigger
supermajority voting requirements before the Board could adopt that matter.

It is reasonable that there be dampers and constraints on this power to hold
ICANN
answerable, but those dampers and constraints should be impediments that
bring
caution and inhibit rash actions, they should not be insurmountable barriers
that moot
the reality of accountability.

There is a theory that ICANN's Board of Directors represents the public and
forms the
bulwark of accountability. Clearly the Board has the authority to take the
helm and
change ICANN's course should ICANN's course veer from the public interest.
However, ICANN's Board members are chosen by means that are too remote from
the
public. So while it is the case that ICANN's Board members are people of
great
integrity and have great concern for the public's interests, those people
are not chosen
by the public, they do not serve at the pleasure of the public.
(This insulation from the public is also a problem for the ALAC, which is
why I
strongly believe that that ALAC can not itself be considered an effective
means of
public accountability until its structure is significantly streamlined and
some of its
layers removed.)


The Public's Role Is Not Primarily To Give Advice

To be an effective voice for internet users the ALAC must have a seat at the
table
where decisions are made. An advisory role is not sufficient.
Many consider the proper public role in ICANN to be largely passive. That
view
holds that ICANN will be wise and just, and, if provided with enough public
comments, ICANN will create the best of all possible answers.

There are two problems with this:

First, much as we may wish otherwise, ICANN is not a college of wise and
disinterested philosopher kings. Experience with ICANN has shown that in
practice
ICANN is typical; it emits results that mirror the forces that industrial
and technical
interests bring to bear and the public interest is often overlooked.
Second, whether advice is well formed ought not to be a precondition on the
person
giving of that advice but rather a measure of credibility that is applied by
the one
hearing that advice. In a political forum, such as ICANN, the measure of
quality of
advice is very subjective and often depends on which side of an issue the
speaker and
listener happen to be on.

The ALAC and the public have a self-interest in making their advice as
cogent and
persuasive as possible; we ought merely to support the ALAC in that effort
but not
expend too much energy trying to coerce the ALAC in that direction.


An Error In The Westlake Report

Our report corrects a flaw in the Westlake report. That report contained a
recommendation that the ALAC be permitted to designate two people who could
observe and speak to the board but who would not have the rights,
particularly voting
rights, and duties of full board members. That recommendation was based on a
presumption that presence of full board membership would deny the ALAC's
choices
freedom to consider the interests of the public.

In this the Westlake report misapprehended the fiduciary obligations of
ICANN's
directors. In actuality, because ICANN is a "public benefit" corporation,
ICANN's
directors, all of them no matter how they obtained their seats, are required
by law to
consider the impact of their decisions, whether for or against a matter (or
even to
abstain), on the public interest. In other words, the public interest is a
material
element to be considered when deciding whether a matter is in ICANN's
interest.
Thus, whether or not an ALAC director has a vote, he or she may, indeed he
or she
must, take the public interest into account when evaluating what position to
take on a
matter before the board.
******************

2009/2/12 Danny Younger <dannyyounger at yahoo.com>

> My thanks to Karl for his honest assessment of what ought to be done with
> the ALAC.
>
> You may read the ALAC Review WG Draft Final Report (along with Karl's
> comments) here:
> http://www.icann.org/en/announcements/announcement-11feb09-en.htm
>
>
>
>
>
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-- 
Cheryl Langdon-Orr
(CLO)