[governance] Reinstate the Vote

[Dan Krimm]

It strikes me that ICANN may be proceeding from a board-election process
typical among private nonprofit organizations as incorporated under US and
California laws.

Nonprofit orgs can set up their bylaws with various options, but they need
not have "members" that elect the directors, and even when they do they
need not allow members to nominate candidates.  (And whether ICANN's "open"
processes for determining NomCom members is genuinely representative of the
public interest is quite debatable.)

NPOs (i.e., typical civil society organizations operating under nonprofit
status) may be familiar with a variety of such options, and many of them
(us) indeed keep a fairly tight rein on the membership of the board.  In
fact, this is often a good thing, when an NPO needs to consider its "board
matrix" to determine if important skill sets are missing from the board, in
order to properly conduct effective oversight of the organization for which
it has a fiduciary responsibility to protect the public interest, according
to the organization's mission statement.

But NPOs are not designed as public institutions (they have a tax-exempt
status to the extent that they honor the public interest mission stated in
their articles of incorporation -- that's about it), and the standards of
accountability for a private NPO are quite distinct from the standards of
accountability for public institutions, partly because the public
constituency of an NPO is typically quite different from (i.e., much
narrower than) that of a generally public institution.

This is where the location of ICANN "in the gray area" between public and
private status is most confusing and vague, and allows opportunities to be
"creative" in navigating accountability issues.  In short, ICANN is "in
between the cracks" of public and private legal status, and I believe that
is the origin of the bulk of this debate.

For example, if ICANN were indisputably a public entity (i.e., an official
arm of the USG), it would be subject to US statutory constraints WRT public
notice-and-comment procedures, freedom of expression, etc. (and its current
operation would almost certainly be in violation of some of these
provisions).  OTOH, if it were entirely private it would be subject to the
same antitrust laws that govern other private entities involved in commerce.

But by aiming for the cracks (via the white paper and MoU/JPA with
DoC/NTIA, with relatively weak oversight by NTIA -- wink, wink, nudge,
nudge, let's talk about it offline and in the back room) it seems to be
aiming to escape the jurisdiction of both public entities and private
antitrust law, in a sort of legal "none of the above" categorization.

ICANN has often said it is "inventing a new way" to do things, and part of
that new way is this intermediate legal status that is not well defined in
statute or the courts (at least in the US).  However, eventually the legal
system might well catch up to them, perhaps more likely starting in the
courts since they can respond to changing circumstances more quickly than
statutes and even federal agency regulations.

Okay, so, bottom line question:  Should ICANN model itself after NPOs or
public agencies in terms of public accountability?

The answer:  It depends on what ICANN is really doing.  If it is fulfilling
important governance functions typical of public institutions, then it
makes sense that its processes of accountability should be modeled after
public institutions (like public voting for positions that have ultimate
policy-making/approving authority, especially when actual government
oversight is weak and thus the electoral process that provides some measure
of accountability for public institutions is weak in its application to
ICANN).

I concur with those who see ICANN as clearly addressing public political
issues and public governance -- it is "inventing new law" and a new legal
jurisdiction with significant political impacts on the public at large --
and thus it ought to model itself after the precedents for public
accountability of governments, rather than seeing itself serving only a
small constituency of tech elites.

So, not that this has solved anything (I have gradually come to understand
that the "only technical" versus "public policy" debate has been part of
ICANN since its inception), but hopefully this sets the discussion in an
additional theoretical context to help evaluate the options.

Part of the problem with the whole "privatization of government" movement
over the last 20-30 years is that this "new public management" approach to
what is now being termed "cross-sectoral governance" in the public policy
profession has no clear precedent, and the whole thing is being invented
from scratch, with lots of mistakes along the path due to the
trial-and-error methods of this invention process (i.e., there's a lot of
error along the way, as we proceed through a series of trials).

When these experiments settle down, they tend to involve new forms of
regulation to replace direct provision of services by the government, but
in the transition period it is often the case that these semi-private
entities are under-regulated, leading to systematic problems in serving the
public interest.  ICANN is undoubtedly still a work-in-progress, and so the
public accountability debate must remain one of the most critical issues
before the organization.  In this context, I personally come down on the
side of urging more public accountability, of course (I see ICANN as still
under-regulated from the point of view of public interests, and this allows
private powers to run a little freer than they ought, at present).

Dan

PS -- FWIW, I'm a big fan of IRV voting methods.  I wish we had it for all
of our political elections in the US.  Basically, I like the way it
preserves "one citizen/one vote" for all head-to-head matchups between all
possible candidates, and removes the problem of the split vote in voting
blocs.  But, it needs a reliable voter-verified paper audit trail in order
to remain effectively accountable to the public, otherwise we have no way
of checking whether an election was carried out fairly and justly.



At 10:30 AM -0500 11/26/07, Milton L Mueller wrote:
>Craig:
>Thanks for your constructive intervention. I've reviewed the site and it's
>interesting. Of course from political science I am familiar with different
>techniques of voting and yes, one can design systems that are much better
>at aggregating preferences than what ICANN did in 2000, or for that matter
>one could improve the voting systems used by any organization.
>
>The problem is that we are not engaged on a debate about the proper voting
>technique; we are debating whether there should be voting _at all_. It is
>an essentially political debate in which one side feels that they cannot
>trust a democratic Board election system and prefer something more
>manageable and controllable; the other side wants to empower a global
>public. Until there is broader political consensus on this question, the
>question of the specific technique used to implement democracy is
>secondary.
>
>--MM
>
>> -----Original Message-----
>> From: Craig Simon [mailto:cls at rkey.com]
>> Sent: Saturday, November 24, 2007 9:05 AM
>> To: governance at lists.cpsr.org; Kieren McCarthy
>> Subject: Re: [governance] Reinstate the Vote
>>
>> Is it better to reinstate the vote, or to push for something better?
>>
>> Many of the old-timers on this list will remember me from the early
>> ICANN period, when I was researching a Ph.D. that focused on DNS
>> politics (Thanks again to those who graciously put up with my
>> pestering). Since then, I've thought a lot about how a practical venue
>> for online democracy might work. Earlier this year I decided to apply
>> myself to implementing and refining some of those ideas.
>>
>> I call my project an experiment in collaborative expression of
>> converging and diverging opinion. It's ultimately about creating a
>> massively scalable mechanism for structured argument and consensus
>> building.
>>
>> What's been achieved so far is largely inspired by the preferential
>> voting system used in ICANN's 2000 election. It showcases an interactive
>> ranked choice ballot and highly granular visualizations of Instant
>> Runoff Vote (IRV) elections, displayed round by round. See an
>> operational example (for the ongoing US Democratic Party presidential
>> primary) at http://www.choiceranker.com/election.php?eid=157. Thus far
>> I've been promoting the system to political bloggers, to pollsters, and
>> also to various advocates of IRV and online democracy in the US.
>>
>> My long-term take on IRV goes far beyond a preferential ballot system.
>> I've put groundwork in place at my site to allow for what I call "panel
>> voting." It's a way of filtering and reaggregating results to show the
>> behaviors within slices of the voting population.
>>
>> Panel voting would permit display of collective preferences among
>> pre-designated and self-designated groups of individuals. Those groups
>> could be aggregated by geopolitical/regional origins, credentialed
>> qualifications, professed loyalties, etc. That filtering feature is also
>> intended to provide a way for new coalitions to become "conscious" of
>> themselves, as potential coalition members come to recognize their
>> shared preferences.
>>
>> The most ambitious aspect of the project is providing a way for new
>> ideas to be offered, vetted, refined, and embraced within online
>> communities. My approach, still mostly on paper, would combine an open
>> nomination process with dynamically convened panels whose members would
>> serve as vetting juries.
>>
>> I agree with Kieren about the legitimating virtue of venues in which
>> power (in the form of respected candidates for leadership) can "bubble
>> up" within a structured chain.
>>
>> The challenge is to provide an online mechanism by which candidates for
>> decision - not just people seeking office, but position papers, policy
>> statements, formal agreements, and so on - can be nominated and bubbled
>> up through and across various constellations of panels, seeking final
>> ratification by the group as a whole.
>>
>> Achieving an effective level of large-scale online democracy requires
>> far better leverage of web technology than what's been demonstrated so
>> far. In my view, mailing lists, blogs, and traditional online fora are
>> generally too linear and too noisy to help sort out the problems of
>> widely diverse and rapidly growing communities. Yet they are also too
>> prone to becoming echo chambers suited best for preaching to the choir.
>> Wikis, though excellent at expressing the results of consensus-oriented
>> processes, are poorly set up for venting the give and take of an
>> underlying debate.
>>
>> The purpose of constitutional politics is to channel conflict and
>> competition. What's needed for an Internet-based decision-making venue
>> is a widely accessible, democratically open consensus-forging mechanism
>> that can simultaneously open up new channels for fresh and useful input
>> while also allowing friendly refinements that fortify existing
>> contributions.
>>
>> ICANN's 2000 election struck me as a squandered opportunity. Though so
>> many thousands of people registered and voted, there was no followup
>> attempt to reconnect them and nurture what might have emerged as a
>> viable online community
>>
>> I'm not writing to lament the past, however, but to offer thoughts about
>> how to structure a useful and enduring medium for online democracy...
>> something that would be worthy of such a large community.
>>
>> Does my project sound the like the right direction toward a solution set
>> that would satisfy the ICANN community?
>>
>> Craig Simon
>>
>>
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