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@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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