Michael Froomkin, a Professor of Law at the University of Miami School of Law and one of the founding members of ICANNWatch has recently written an article for the Harvard Law Review called, “[email protected]: Toward a Critical Theory of Cyberspace”. One of the areas covered in this article is a comparison made between the ICANN model and that of the Internet Engineering Task Force (IETF).

Michael Froomkin has underlined several lessons that can be learned from this contrast, including a suggestion “that claiming kinship with the IETF model is a way of claiming legitimacy, but that not every one who makes this claim is entitled to do so”.

What follows is a two-part interview with Michael Froomkin and a closer look at his recent article in the Harvard Law Review:

CircleID: In your article you have made several comparisons between ICANN and IETF particularly in the area of decision-making process. Can you tell us why, in your view, “claiming kinship” with IETF is a “way of claiming legitimacy”?

Michael Froomkin: The IETF has a justly earned reputation for openness and trying to be fair. It is not perfect—nothing human is—but it has been remarkably good. Its decisions command a degree of respect in substantial part because people recognize that good processes are used to reach them. So, one rhetorical strategy available for a new institutional kid on the block that faces questions about its legitimacy is to intimate that it is much like the IETF. That sounds good. That’s reassuring. Alas, in ICANN’s case it proved to be sizzle rather than steak.

CircleID: What are the differences between ICANN and IETF models with respect to their ability to find true consensus?

Michael Froomkin: There are three major families of difference.

The first is that the ICANN problems are harder given that many, maybe most, of the issues are zero sum. In other words, on many issues, for every winner there are losers. Sometimes, in fact, people have a lot of money riding on outcomes. The IETF tends to be different—very often even though there is money at stake, the situation is a non-zero-sum game. In other words, rather than cutting up a pie, you are baking one. Often, everyone is better off than they started just by having a standard, even if it’s not their favorite. And, in the IETF much more than ICANN, if a standard is no good it’s often much easier to ignore. Alas, ICANN’s response to this situation was skewed by the fact that one faction pretty much captured control of it early on.

Second, the IETF model is very open. Anyone can join a working group mailing list. Although there is a degree of concentration of power in the IAB, it is selected in a manner that feels fair. Several IAB members are active participants in the work of the IETF—they are not remote. In contrast, ICANN policymaking has been captured by a coalition dominated by IP lawyers, registries in the legacy root, and leading registrars.

ICANN’s biggest difference from the IETF in respect to consensus, however, is that the IETF strives for it. ICANN uses it as a slogan. The IETF is open to divergent points of view. ICANN worked hard for years to exclude those who didn’t agree with the group that seized power as an “interim” Board—some of whom, the Board Squatters, still sit on the ICANN Board today, having extended their terms three times. I don’t want to suggest the IETF is perfect. There are some proposals that get pushed by the IAB, and others that get slowed down by it. But little gets by without a ‘rough consensus’ of those who are paying attention. In ICANN, it’s much more about who has the votes (and the money to keep attending far-flung meetings four times a year and shmooze folks).

CircleID: Given the nature of subject matters that ICANN has to deal with (such as political issues, selection of TLDs, and UDRP) compared to those of IETF’s which are more on the technical side, is it really possible for ICANN to find true consensus? What does ICANN need to do to maximize the achievement of consensus?

Michael Froomkin: As I noted above, ICANN faces a genuinely harder problem in this area than the IETF does. My first suggestion for ICANN would be to narrow the arena of controversy by doing or sponsoring some actual technical work. For example, for years ICANN has been telling us that there is a danger to too many new TLDs. It has made no effort to substantiate this, or to draw lines between “safe”, “dubious” and “dangerous”. Although not an expert myself, I’ve talked to lots. And I’m convinced that the primary reason for this failure is that ICANN insiders are smart enough to know they wouldn’t like the answer produced by a fair study of this question, which would support a significant expansion of the namespace—one large enough to hurt the investments of the first and second-movers who wield disproportionate power in the system.

I’ve made some other suggestions in earlier articles, notably part III of Form and Substance in Cyberspace.