[ALSC-Forum] Re: Query for Sims, Lynn and Dyson

[Joe Sims]

Sorry to have missed this point.  While I do not want to speak for
Stuart or Esther, let me give you my personal reaction.  First, there is
no mention in the White Paper or any other constitutional document for
ICANN of 9 board members for an At Large membership.  In fact, there is
no mention of an At Large membership at all; the White Paper simply
said:

"The Green Paper attempted to describe a manageably sized Board of
Directors that reflected the diversity of the Internet.  It is probably
impossible to allocate Board seats in a way that satisfies all parties
concerned.  On balance, we believe the concerns raised about the
representation of specific groups are best addressed by a thoughtful
allocation of the "user" seats as determined by the organizers of the
new corporation and its Board of Directors, as discussed below. 

* * *

The new corporation should operate as a private entity for the benefit
of the Internet community as a whole.  The development of sound, fair,
and widely accepted policies for the management of DNS will depend on
input from the broad and growing community of Internet users. 
Management structures should reflect the functional and geographic
diversity of the Internet and its users.  Mechanisms should be
established to ensure international participation in decision making. 

* * *

The Board of Directors for the new corporation should be balanced to
equitably represent the interests of IP number registries, domain name
registries, domain name registrars, the technical community, Internet
service providers (ISPs), and Internet users (commercial,
not-for-profit, and individuals) from around the world.  Since these
constituencies are international, we would expect the board of directors
to be broadly representative of the global Internet community."

In other words, the White Paper set out general principles that I
believe have been the guiding principles as the community has sought to
find a consensus solution to the At Large issue.  In fact, it did not
mandate a particular form of governance, but only called for the
appropriate representation of all stakeholders:

"The organizing documents (Charter, Bylaws, etc.) should provide that
the new corporation is governed on the basis of a sound and transparent
decision-making process, which protects against capture by a
self-interested faction, and which provides for robust, professional
management of the new corporation.  The new corporation could rely on
separate, diverse, and robust name and number councils responsible for
developing, reviewing, and recommending for the board's approval policy
related to matters within each council's competence.  Such councils, if
developed, should also abide by rules and decision-making processes that
are sound, transparent, protect against capture by a self-interested
party and provide an open process for the presentation of petitions for
consideration.  The elected Board of Directors, however, should have
final authority to approve or reject policies recommended by the
councils."

So it is clear that none of the founding documents mandated a particular
structure for the At Large nor did they set a particular number of
directors for any group.  Indeed, the White Paper recognized, as logic
required, that changing circumstances would likely require evolution and
change from the original structure:

"The new corporation's charter should provide a mechanism whereby its
governing body will evolve to reflect changes in the constituency of
Internet stakeholders.  The new corporation could, for example,
establish an open process for the presentation of petitions to expand
board representation."

Now, Esther's letter is a different thing.  It was generated not because
of any community consensus, but because of the imposition on the
community consensus of the personal political views of Ira Magaziner,
who for his own reasons chose to exercise the personal leverage that he
had at the moment to extract from the new Board, recently installed
after the untimely and unexpected death of Jon Postel, a commitment that
it told him it was not sure could be met, and that clearly was never a
part of the community consensus that produced ICANN.  There was no
consensus on this issue then, just as there is no obvious consensus on
it now; as a result, the bylaws originally proposed by ICANN provided
for a certain structure and procedure for At Large Directors, but only
"if feasible." Magaziner's position (typical of the short-term
perspective of some in the political process who know they are not going
to be around to have to deal with the consequences of something that
seems politically attractive at the time) was that he wanted a
commitment, whether it was feasible to comply with or not.  This was not
a position demanded or even supported by the Internet community as a
whole, by the rest of the world's governments, or even by many of those
in the US Government at the time.  But Magaziner had apparently been
sufficiently cowed by the small number of self-appointed loud voices who
claimed to represent the "people of the globe," or maybe was more
interested in avoiding public criticism than in getting it right, that
he insisted that the Board excise the words "if feasible" from the
proposed bylaws.  And so they did, while at the same time telling him
that this was not a consensus position and might not be doable. 

My personal view is that this "commitment," extracted as a form of
political blackmail by a single official of a single government that
happened to have some leverage at the moment, and clearly not
representing anything remotely like a consensus position of the Internet
community, is worth what its circumstances imply.  But the fact is that
the Board tried very diligently, working within its obligation to make
decisions based on community consensus, to find a way to carry out that
commitment.  It created the MAC, solicited comments from the entire
community, and came up with a suggested process that it thought
accomplished the goal of broad user representation while minimizing
capture and other problems.  It became clear in Cairo that this proposal
did not have consensus support.  That resulted in the temporary election
of five AL Board members and the creation of the ALSC, which has been
searching for consensus ever since.  I will leave to your judgment
whether that search has been successful, reminding you that consensus by
definition cannot mean unanimity, or every participant would be able to
veto a solution acceptable to the vast majority. 

Now, to return to the core of your question, there is nothing magic
about 9 At Large Board members, just as there is nothing magic about 3
each for the SO's.  All of these numbers are arbitrary.  The
requirement, if ICANN is to function as it was hoped it would, is that
all relevant stakeholders, including business and individual users, the
technical community, the provider community (including the cc's) and all
the other elements of the DNS stakeholder community, are appropriately
represented throughout ICANN processes, including its Board.  If they
are, ICANN may be able to effectively carry out its functions; if they
are not -- either because one element is overweighted or another is
underweighted -- ICANN will probably not function effectively.  In fact,
ICANN is about the most open organization that can be imagined, in
practically every way; those who complain about closed discussions of
the GAC or the Board, or about too much staff involvement, either have
cynical agendas or no practical appreciation of the necessary elements
of operation of an entity like ICANN.  It is impossible for any entity
to function without staff, and with never a private discussion; there is
no functioning body in the world, including the representative bodies in
the US (from which most of these complaints come) that functions any
differently. 

My personal views are well known -- I think there should be user
representation on ICANN's Board; I do not think that group or any other
single element of ICANN stakeholders should be able to capture the
organization or the Board, or be able to veto actions clearly preferred
by the consensus of stakeholders; and I have serious doubts about the
practical utility of selecting any ICANN Board members, representing any
constituency, through massive direct elections of any group numbering in
the millions or billions.  Any system that meets those criteria and
deals with these issues is certainly within the range of alternatives
that I (and I suspect many others) would find acceptable and workable,
and more directly to your question would clearly meet the constitutional
mandates set forth in the White Paper and elsewhere.  The fact that Karl
Auerbach or Hans Klein, or Jeff Williams (assuming he really does
exist), has a different view is not going to keep me up nights.