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

[Cheryl Langdon-Orr]

Thanks for that Joly => I'm dashing to leave the office atm :-)   I do trust
that everyone interested  in this topic will read the FULL report though not
just the appendixes or a selection thereof ...  I just want to ensure that
you all note (and hopefully read and digest as well as discuss) more than 21
words of a 12717 word document  ( 12585 without headers, footers, TOC etc.,
  ;-)
CLO



2009/2/12 WWWhatsup <joly at punkcast.com>

>
> >
>
> 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
> http://wwwhatsup.com
> http://punkcast.com
> http://pinstand.com
>
>
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-- 
Cheryl Langdon-Orr
(CLO)