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

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I've taken the liberty of reformatting Karl's statement for readability:



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.


Joly MacFie 
212 608 1334
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