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ICANN and the Virtues of Deliberative Policymaking - Part I

In this two-part series article, Andrew McLaughlin takes a critical look at the recently reported study, Public Participation in ICANN, by John Palfrey, Clifford Chen, Sam Hwang, and Noah Eisenkraft at the Berkman Center for Internet & Society at Harvard Law School.

In “Public Participation in ICANN”, Palfrey, Chen, Hwang, and Eisenkraft have made a valuable contribution to the growing literature analyzing ICANN. They have wrestled to the ground a very large amount of data, and attempted to draw from it a set of conclusions about the effectiveness of ICANN as a model of public participation.

The study’s presentation and analysis of data contain much of interest, and much that could assist ICANN (and other policy-making bodies) in improving its use and management of online public forums. But the study’s value is diminished by two rather fundamental shortcomings: (1) its misapprehension of both the theory and the practice of ICANN’s policy-development process, and (2) the sizeable gap between the broad scope of the study’s conclusions and the very narrow—indeed, myopic—focus of the analysis from which they are derived. Simply put, the study scrutinizes a small and misleading corner of ICANN (namely, its online public comment forums) and leaps to a sweeping (and, in my view, unwarranted) conclusion.

At its heart, the study appears to have been built around a basic misunderstanding of ICANN’s policy-development mechanics. ICANN is an experiment in deliberative, rather than “democratic” or “representative,” policymaking. As a thinly-staffed, non-profit coordinator of technical resources, ICANN cannot reasonably be expected to erect a global democracy, nor can it hope to achieve a Board or community of participants that is mathematically representative of the world’s population of Internet users. Given the primarily (though, to be sure, not exclusively) technical nature of its responsibilities, the ICANN model instead seeks to foster a reasonable and legitimate policymaking process that is open, transparent, and available to all, but structured to achieve consensus through dialogue and deliberation among informed stakeholders. The ICANN Board acts not as a legislative body that cooks up policies on its own initiative, but as the overseer of this deliberative, bottom-up, consensus-based policy-development process that takes place primarily in the Supporting Organizations. (Of course, the Board also does other things besides policy-setting, such as the implementation of policy, oversight of the staff and finances, and ministerial corporate activities.) Accountability to the Internet community is achieved through a variety of mechanisms, including the wide diversity of channels by which ICANN Board members are selected, the Memorandum of Understanding with the United States government, the various registry and registrar agreements, the Memorandum of Understanding with the Internet Engineering Task Force, and its own Bylaws, which calls for an Ombudsman (not yet hired), and procedures for reconsideration (already in place) and independent review (not yet implemented).

When the ICANN process is functioning well (and I freely acknowledge that it has on occasion functioned poorly; hence, the comprehensive reform and restructuring process of 2002), the role of the ICANN Board with respect to policy development is to ratify the policies that emerge from the consensus-oriented policy development process that takes place primarily in the Supporting Organizations, which are designed to foster informed dialogue and deliberation on proposed policy changes and are charged with actively soliciting public input. In addition to brushing past the central role of the Supporting Organizations, the study fails to distinguish between ICANN Board decisions that establish new policies and those that apply existing policy to make zero-sum choices among contending applications or proposals. This is a significant lacuna in the study’s methodology. Three of the four test cases (the selection of new top-level domain (TLD) registries, the selection of a new registry operator for .org, and the approval of the proposed Waiting List Service for .com and .net) involved Board decisions on proposals or applications in which policy was applied, not created; in those three cases, the vast majority of comments posted to the online public comment forums were, predictably enough, from obviously biased partisans. Counting those online comments and comparing the tallies to the Board’s ultimate decisions is, in my view, an unenlightening methodology that fails to account for the substantive weight, informativeness, or persuasiveness of a given comment. Rather than analyze the Board’s selection of new TLD registry operators (something of a zero-sum game of winners and losers), the study might more fruitfully have examined the deliberative, consensus-based process by which the new TLD policy itself was developed, revised, and ratified. More recently, the study might have looked at the role of public input in the development of ICANN’s policies on inter-registrar transfers or the handling of expired domain name registrations. Especially enlightening would be a look at a policy (such as the raising of a fee to fund ICANN activity of general benefit) that required the Board and the ICANN community to balance interests—looking out for all parts of the Internet, not only the noisy, interested partisans.

Laboring under these misapprehensions about the structure and operation of the ICANN policy process, it is not surprising that the study jumps from data analysis to what are, in my view, some unsupported and erroneous conclusions. For example, though limiting its scope to only one mechanism of input to the ICANN process (the online public forum), the study concludes that ICANN has failed to “attract[] and incorporat[e] ‘representative’ input from the global Internet user community, at least with respect to the public online forums.” Consequently, the study finds, ICANN needs “an overhaul of [its] governance structure away from its semidemocratic past.” In a sense, the first sentence is entirely true, but it misses the point: Due to the their obviously flawed nature, the online public forums and mailing lists were never intended or expected to “attract[] and incorporat[e] ‘representative’ input from the global Internet user community.” The ICANN process is a complex ecosystem of inputs, deliberative bodies, avenues of participation, and mechanisms of accountability. The ICANN model seeks to bring together a broad slice of the global Internet’s interested and knowledgeable stakeholders—excluding no one—and to facilitate, through a variety of channels, the development of some measure of consensus among them. Whether that model has succeeded or failed (I would argue that, on balance, the successes have outweighed the failures, and that the reformed ICANN 2.0 is even more likely to achieve meaningful consensus) has vanishingly little to do with what percentage of unauthenticated online comments posted in a public forum coincided with the Board’s subsequent decision.

What is puzzling about the study’s expansive conclusions is that the study itself goes to significant lengths to cabin the reach of its methodology, noting that “the primary limitation of this report ... is its limited scope and lack of inclusion of meaningful public participation data from within the Supporting Organizations and other ICANN committees.” That qualification seems exactly right to me. But the study’s failure to acknowledge the central role of the Supporting Organizations left the authors free to derive broad conclusions about the success or failure of public participation in ICANN without undertaking any assessment of the principal designated channels of public participation in ICANN’s deliberative process.

In short, concluding that the ICANN experiment in public participation has been a failure because online public forums have been a failure is like saying that television has been a failure because Cop Rock was a failure.

My observations in this piece derive from my service as ICANN’s Vice President and Chief Policy Officer, a position I left in June 2002. The views expressed in this piece are mine, and not ICANN’s. My thanks to John Palfrey, Clifford Chen, Sam Hwang, and Noah Eisenkraft, for offering the opportunity to post a concurrent comment on their study, and to Louis Touton, my longtime comrade and collaborator, who supplied his usual array of potent insights. Errors are solely my responsibility.

By Andrew McLaughlin, Senior Fellow at the Berkman Center, Harvard Law School

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Jeff  –  Dec 31, 2003 6:19 PM

I think that the main problem with ICANN is that they have little actual power. It’s kind of like Moses and the Ten Commandments- yes, they can make rules, but when it comes to making people follow them, the consequences of disobeying are rather weak.

It leaves ICANN in the position of offering suggestions instead of orders.

That’s why the dustup with Verisign went on so long.

Karl Auerbach  –  Dec 31, 2003 8:36 PM

This article is based on incorrect premises.

First, the article asserts that “ICANN is an experiment in deliberative, rather than ‘democratic’ or ‘representative,’ policymaking.”

Second, it asserts that ICANN is a “coordinator of technical resources”.

As to the first point: I was there at the birth of ICANN.  And I find
history to be quite different: ICANN was explicitly to be a body that
included the public.  The US Dep’t of Commerce coerced the promise
from ICANN that there would be significant and meaningful public
participation in ICANN’s decision making apparatus.  That promise remains unfulfilled.

As for the distinction between “deliberative” and “‘democratic’ or
‘representative’”: What can that mean except as a euphemism to say
that ICANN ought to be a closed, self-perpetuating oligarchy that
reigns by fiat rather than by the will of the community of internet

It is sad to see the resurrection of the claim that ICANN supervises
technical matters.  This contradicts the statements by ICANN to the
IETF that ICANN has neither the desire nor the power to oversee
technical matters of the DNS root servers or IP address allocation.
Except for the single matter of internationalized domain names, ICANN
has always engaged in matters of business and economic regulation of
the internet, and has evaded acts that might be construed as having a
technical component.

This article is yet another bucket of skim-milk thin whitewash that
tries to hide the underlying truth that ICANN has become a sick
organization serving no publicly beneficial purpose and acting to
enrich its “stakeholders” by controlling entry into the domain name
marketplace and by inhibiting innovation where that innovation could
harm the perceived financial interests and business positions of those

ICANN’s failure to ensure the stable operation of the DNS roots and
the IP address allocation systems leaves governments, businesses, and
the community of internet users with no responsible body that can be
held accountable to secure the reliable, predicable, and stable
operation of core internet infrastructures.

Is it time for outside forces to step in and rebuild ICANN from the
foundation on up?

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