In the first part of our interview with Michael Froomkin, a Professor of Law at the University of Miami School of Law and one of the founding members of ICANNWatch, several issues were discussed regarding his recent article in the Harvard Law Review called, “[email protected]: Toward a Critical Theory of Cyberspace”.

Michael Froomkin, who has underlined several striking lessons to be learned from IETF/ICANN contrast, continues with us in the second part of this interview, addressing even deeper matters such as ICANN’s institutional design.

CircleID: Could you elaborate on the following quote from your article?

“...when large sums of money are at issue, and the affected stakeholders are not only diverse, but their interests are also at loggerheads, then consensus cannot be achieved and discourse ethics loses its relevance. I think this is the wrong conclusion. Discourse ethics is a fundamentally proceduralist theory. It requires actual or reasonably hypothesized consensus as to the procedure for making decisions, not the decisions themselves.”

Michael Froomkin: This is an attempt to explain one of Habermas’s core ideas. Lacking infinite time to make decisions, when faced with contentious choices we can’t make perfect ones, and we can’t achieve perfect agreement. The best we can do is, first, to expect from our neighbors and ourselves a commitment to do our best at each decision. In contrast, Habermas suggests that there is a class of decisions—the fundamentally procedural ones about how we organize our decision making—on which we can reasonably expect reasonable people to agree. In part—and here there is more than an echo of Kant—this is because Reason instructs us on the parameters of basic justice and inclusion that define any legitimate process. One of those parameters is that if actual consensus on the procedures cannot be achieved, then those who impose them must nonetheless sincerely believe that the opposition stems from misinformation or the opponents’ inability to understand their true interests; in other words that the procedures genuinely are fair to everyone. Within those parameters, different societies and times must find their own procedures. The procedures themselves do not have to use consensus. Voting is a legitimate way to make many decisions that need to be made in real time, albeit not those about fundamental rights.

CircleID: A quote from another part of your article says:

“The ICANN experience emphasizes the importance of being willing to listen. The IETF did not get its internal procedures right from the start. But when the membership protested in 1992 that the IAB was oligarchic and out of touch with the rank and file, the IETF changed its procedures to accommodate its concerns. In contrast, when ICANN’s membership elected a candidate to the Board that the majority distrusted, ICANN’s reaction was to change its bylaws to emphasize that “members” were not legally members and then to eliminate the at-large electoral mechanism entirely.”

Do you think this will be a procedure that ICANN will continue to resort to?

Michael Froomkin: I’m not entirely sure I follow this question. If you mean, “do I think ICANN will continue its conscious policy of disenfranchising and marginalizing those who disagree with the group that currently controls it” then I’m afraid I do.

CircleID: Yes, that was the question…

Michael Froomkin: I think the odds are good that the new Nominating Committee (NomCom) will have a majority of members who reflect the dominant faction on the Board today, and that they will use a voting system that allows the minority few if any seats on the Board. Just ask yourself this: ICANN says it is currently trying to build new participatory structures. Did it start with the people who voted in the only election ICANN ever had? No. Because those voters elected the wrong people. So rather than declare all the voters to be participants in good standing, and to work to include them in the new structures, ICANN is again starting from scratch, building what Hans Klein called the membership equivalent of a company union. (Cyber-Federalist No. 15)

CircleID: Finally, you have indicated, “ICANN’s chief failures have been in institutional design”. It includes issues such as failure to use “the Internet as a tool for making decisions”. Can you point out some of the key institutional design problems that ICANN has committed and therefore needs to avoid in order to overcome future failures?

Michael Froomkin: This is an enormous question. Let me give just a few examples. Institutionally, ICANN is too unwilling to trust the market, and too hung up on methods of framing issues that aggrandize its powers. Why should ICANN pick the names of TLDs? Why should ICANN even pick registries? ICANN says it should pick the “best” registry on technological grounds. I think it should only make standards and reject those who fall beneath them. As for names, this is not a technological issue at all. It’s psychological, emotional, and especially marketing. I can’t see what qualifications ICANN has in these domains. In fact, ICANN’s greatest institutional failure is mis-match between its capabilities and knowledge and the decisions it takes. ICANN may have the competence for a narrow technical mission; it doesn’t have the competence to write arbitration rules. And it shows.

ICANN’s failure to use the Internet intelligently for its deliberation and decisions is very puzzling. I think ICANN should require that all decisions be discussed via public mailing lists in which the staff takes part. There may be private lists now, but the decision makers are not active on the public ones since they don’t matter much.

I think ICANN needs to move away from the model that the Board ratifies decisions at in-person meetings (often in a place far from most internet users). Rather, the Board member should be asked to congregate in several separate places, and to hold the meeting over the net, with all of us watching. Having Board members rely on remote access for their participation will ensure that it’s good. Either everyone will be on equal footing from home, or at least there would be set places on each continent where people who wanted to go could participate in a constellation of equal meetings rather than having one central one with patchy remote access.

I can dream, can’t I?