[governance] limits of technical jurisdiction (was: GeoTLD)

[Dan Krimm]

At 6:39 PM +0100 12/23/07, Michael Leibrandt wrote:

> ... The core function of ICANN is that of a technical co-ordination body,
>and wherever possible, it should stick to that role.

Indeed, this rhetorical statement seems to be universally agreed in
principle by all associated with ICANN and IG in general.  So, why do we
continue to have such persistent disagreements about it?

It comes down to the interpretation of *very* vague words such as:
"wherever possible" -- the ultimate loophole, because such qualifications
have no clear definition anywhere in ICANN's bylaws.  In particular:

http://www.icann.org/general/bylaws.htm

Article I, Section 2 has some relevant phrases:

 2. "... limiting ICANN's activities to those matters within ICANN's
mission requiring or significantly benefiting from global coordination."

But what exactly is "within ICANN's mission" or "requiring or benefiting
from global coordination"?  How much benefit qualifies for such
intervention?  How broadly does such benefit have to extend to qualify
(i.e., who benefits, and in what way)?

Followed by the disclaimer at the end of Section 2:

"These core values are deliberately expressed in very general terms, so
that they may provide useful and relevant guidance in the broadest possible
range of circumstances. Because they are not narrowly prescriptive, the
specific way in which they apply, individually and collectively, to each
new situation will necessarily depend on many factors that cannot be fully
anticipated or enumerated; and because they are statements of principle
rather than practice, situations will inevitably arise in which perfect
fidelity to all eleven core values simultaneously is not possible. Any
ICANN body making a recommendation or decision shall exercise its judgment
to determine which core values are most relevant and how they apply to the
specific circumstances of the case at hand, and to determine, if necessary,
an appropriate and defensible balance among competing values."


So, great: the writers of these bylaws have completely punted here in the
sense of utterly refusing to create a "rule of law" to govern these
decisions, leaving the decisions to the "rule of man" or more specifically,
the rule of those who have the greatest resources to influence the
policy-making processes at ICANN -- within an "ICANN body [exercising] its
{necessarily subjective} judgment".

Make no mistake, this seems to have been *intentional* and not an
oversight, because if it was an oversight it was inexcusably egregious.

There is no institutional separation of powers, such as creating a truly
independent "judiciary" to evaluate the outcomes of PDPs etc.  There is no
way to contest the "defensibility" and "balance" of their judgments in a
formal process of *independent* review.  The Board ultimately approves
policy, and the Board is also the power to which appeals are directed (see
Article IV, the Board establishes the Reconsideration Committee to handle
such appeals), which also means that the Board ultimately has the
responsibility for determining who has standing to  (i.e., what is
"materially affected by an action of ICANN" and who decides).  If the
ultimate authority for redress is the same as the ultimate authority for
making the original policy, that is a joke from a procedural standpoint.
Where is the "independent supreme court" of ICANN?  It does not exist.

And I could go on and on about the structural issues inherent here, but I
won't repeat myself for the moment.  The point here is that if we can't
agree on this very basic fundamental starting point (what is or is not
within ICANN's legitimate jurisdiction, based on what is or is not a
legitimate institutional structure for governance -- and the answer to
these two questions is partly interdependent: what is an appropriate
institutional structure depends partly on the jurisdiction, for example
IETF's governance structure may work acceptably within its relatively
narrow technical jurisdiction [and often "noncritical" -- if consensus
fails, the community merely agrees to disagree and moves on] but does not
scale well to general political governance), none of the important (and
thus disputed) details we discuss here will be tractable, because all of
those specific details proceed from this structural origin.


The devil is in the details, but in this case, the lack of details in what
is formally stated in ICANN's "constitution" is what creates the devilish
dynamics in dealing with details as they arise.

There is simply no hope that RC-squared (rough consensus and running code)
as a governance model could ever be successful in fairly addressing the
full range of political disagreements (ever heard of "the tyranny of the
majority"? -- even if the standing issue can be fairly resolved, which may
not be the case if there is any limitation on participation or
representation at all), and even the relatively narrow realm of IP/DNS will
have increasingly "generally political" ramifications if the boundaries are
not strictly delimited.

All roads lead to this question, and as long as the IG community as a whole
fails to address the institutional structure question head on, it will
continue to be embroiled in contentious debates of increasing volatility.

You think we've had a rough autumn?  Unfortunately I believe this is just
the beginning, unless the structural governance issue is put clearly on the
table and engaged outright on the merits.

Politics have invaded IG (indeed, they likely have been there from the
beginning), and there is no escape.  Resistance is futile, because politics
are not even a codified enemy like the Borg in Star Trek -- they are an
inherent characteristic of human communities emerging from our basic
nature, and they are as inevitable as breathing.

Humans are intrinsically political creatures, similarly human societies are
inescapably political, and our governance institutions are as well.

Sorry for this depressing message on Xmas eve, but perhaps this is an
opportune moment to consider the interests of those who cannot represent
themselves, and to be explicit about devising a governance structure that
can fill that gap and ultimately do justice to the global commonwealth as a
whole.

Dan
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