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I submitted the following comments and proposals to the ICANN At-Large Study Committee (ALSC) <http://www.atlargestudy.org> for consideration at the ALSC Outreach Meeting in Mountain View, CA, USA, 13 August 2001 <http://www.atlargestudy.org/sv_mtg.shtml>. I also testified in person, along similar lines, at that public meeting.
The ALSC was chartered by the Board of Directors of the Internet Corporation for Assigned Names and Numbers (ICANN), to study, among other questions, "If an At Large membership [in ICANN] is to exist, what should its structure, role and functions be?" <http://www.icann.org/committees/at-large-study/charter-22jan01.htm>.
Most of the discussion in the ALSC forum <http://www.atlargestudy.org/forum.shtml> has concerned the method of selecting members of the ICANN Board of Directors. I believe, however, that the "role and functions" of the at-large membership, as contemplated in the charter of the ALSC, should not be limited to participation in selecting the ICANN Board.
In its "Discussion Paper #1" <http://www.atlargestudy.org/DiscussionDraftRev.5.4.htm>, the ALSC says, "Regardless of how individual involvement is ultimately achieved, it is reasonable to expect that ICANN's Board will continue to be the focal point for critical decisions."
I strongly disagree.
While the ALSC should, of course, address the issue of at-large participation in the selection of the ICANN Board of Directors, I urge you also to address the critical need for at-large participation in decision-making at other levels, particularly at the generic top level domain (gTLD) level.
Internet decision-making has, historically, been highly decentralized, with most decisions being made by relatively small groups of people concerned with particular specialized subtopics. Different procedures have been appropriate in different areas, and different decisions on the same issues have been made by subgroups concerned with different topics or geographic regions.
As the Internet and ICANN's responsibilities continue to grow, the proportion of significant decisions which it is possible for the ICANN Board to make themselves, or to exercise meaningful oversight of, will continue to decrease. Most ICANN decision-making authority is already delegated. Much of the dissatisfaction with the lack of opportunity for at-large input into ICANN decision-making has, in fact, related to decisions made by entities with delegated authority -- such as gTLD registry operators and registrars -- and not to decisions made directly by the ICANN Board.
Neither the ALSC nor ICANN need to adopt a "grand unified solution" to the problem of at-large participation in decision-making, solely through the selection of ICANN Board members. Even direct at-large election of the entire ICANN Board would be unlikely to provide sufficient opportunity for at-large input into, and oversight of, the many decisions made by entities to which authority is delegated by ICANN.
The experience of governments suggests that public participation in the selection of central decision-making bodies becomes less and less sufficient for real democracy as the size of the polity grows. Public interest and participation is actually much greater, in many cases, in the regional, local, and special-purpose political entities where larger numbers of decisions are made -- often with more immediately perceptible effects -- than in higher-level bodies.
The Internet is no different. It is already a practical impossibility for the ICANN Board to review each decision by a gTLD registry operator or other technical or topical working body, or for the inherently limited number of ICANN Board meetings to provide an adequate opportunity for public input into those decisions. Particularly as the number of gTLD's increases -- as it will -- at-large participation in decisions at the gTLD and other delegated levels, such as through participation in GTLD registry operator decision-making, will become increasingly essential for meaningful at-large participation in the governance of the domain name system.
Thus it is crucial to recognize that:
If ICANN can't, in and of itself, provide adequate opportunity for at-large participation in Internet governance, then its most important role in the promotion of such participation is to require that it be provided, in some fashion, by those to whom ICANN delegates authority.
According to the ALSC Discussion Draft, "Thus far, our view is that a successful structure and process should ... Ensure that ICANN operates in a manner that is ... transparent." Presumably, the relevance of transparency to at-large participation is that without transparency an ostensible entitlement to participate in decision-making may be a sham.
Transparency, like the opportunity for participation, is most important at delegated levels of decision making, and should be addressed at those levels. But the experience of governments with transparency-in-government requirements -- referred to in the USA as "freedom of information" and "sunshine" laws -- suggests that a common set of transparency standards can be enacted and applied to diverse entities to which authority is delegated.
In the USA, for example, the same statutory standards have successfully been applied to entities ranging in scale from neighborhood boards to the state government of California, and from general-purpose decision-making entities such as the state legislature to specialized entities with authority over waste disposal, education, land use planning, and so forth.
So it should be possible for the ALSC and ICANN to develop and adopt standards for transparency in decision-making the can be applied both to ICANN itself and to those to whom it delegates decision-making authority with respect to specific gTLD's or technical areas.
(Aside from transparency-in-government legislation, other mechanisms that have been useful in governmental contexts as supplements to elections have included provisions for recall of elected officials, at-large referenda on measures enacted by representative bodies, and direct at-large enactment of legislation by initiative. All of these may warrant consideration by the ALSC, in addition to its apparent focus to date on the method of selecting the ICANN Board.)
My particular concerns over the potential for abuse of delegated decision-making authority, especially by corporations operating registries for gTLD's, and the importance of transparency in decision-making at delegated levels, are exemplified by the ".aero" gTLD, with respect to which ICANN is negotiating an agreement with SITA as the sponsor of ".aero".
SITA proposed ".aero" as "a Top Level Domain for the entire Air Transport Community (ATC)" <http://www.icann.org/tlds/air1/18Oct-Description%20of%20TLD%20Policies.htm>. (For the complete SITA proposal, originally for ".air" but amended by ICANN to ".aero", see <http://www.icann.org/tlds/air1/>.)
In the proposal, "the definition of ATC is: 'All companies and organizations for which the main activity is related to Air Transport.' The ATC includes airlines, aerospace companies, airport authorities and governmental organizations."
This list is fine, so far as it goes. But the ATC as defined in the ".aero" proposal -- "All companies and organizations for which the main activity is related to Air Transport" -- also includes a wide variety of non-governmental, non-corporate entities at many levels.
Among these members of the Air Transport Community, whose main activity is related to air transport, are:
All of these were included in SITA's definition of "the Air Transport Community" and the ".aero" constituency. But since SITA's proposal was accepted by the ICANN Board in November 2000, none of these constituencies have been included in the process of deciding on eligibility criteria for ".aero" registration.
ICANN reported to the USA Dept. of Commerce in July 2001, "Agreements still remain to be signed for ... .aero. ...Contract negotiations are continuing ..., and are expected to be completed later this summer ." <http://www.icann.org/general/statusreport-03jul01.htm>
But with contract negotiations expected to be completed within weeks, no information whatsoever has been provided to at-large members of the Air Transport Community, or to non-corporate, non-governmental members of the ".aero" constituency, as to what criteria for registration of ".aero" domain names are being contemplated.
SITA itself has shifted to describing ".aero" as "the Internet top level domain (TLD) name ... for the air transport industry" <http://www.sita.int/aero/info/index.asp>. And the most recent (February 2001) public SITA statement of intent as to "Who can register .Aero domains?" <http://www.ec-pop.org/20010111/aero/sld023.htm > lists only corporate and governmental entities. (It's also testimony to the lack of transparency on SITA and ICANN's part that, despite being virtually their only public comment on ".aero" since November 2000, this Web page is linked from neither the SITA nor the ICANN Web sites.)
But a community and an industry are not the same thing. And an industry -- a sphere of economic activity -- includes users as well as providers of services, workers as well as corporations, consumer advocates as well as corporate lobbyists.
The apparent conflation of "community" with "industry", and the further collapse of "industry" to "corporations and governmental entities" -- to the exclusion of workers, consumers, airports' neighbors, etc. -- is a natural consequence of the lack of at-large participation in the SITA decision-making process, and testimony to the need for a mandate for at-large participation in the delegation of authority over a gTLD (or a specialized area) by ICANN.
When I e-mailed SITA as to what -- if any -- representatives of members of the Air Transport Community other than corporations or governmental entities were participating in the formulation of ".aero" policy, and what criteria were being considered for ".aero" registrations by at-large and other non-corporation, non-governmental entities, I was told only that "the exact definition of the individuals or entities qualifying for registration and related policies are currently being developed in close co-operation with representatives from various industry bodies.... We shall communicate the service availability as well as the details of registration policies and procedures in due time and we shall inform you directly once the launch date for the Registry Operation and Registration Services has been confirmed." <http://hasbrouck.org/icann/sita.html> In other words, no information about the decisions will be provided to at-large stakeholders until after the decisions affecting their interests have been finalized without their participation.
SITA's lack of transparency and exclusion of at-large interests in the establishment of ".aero" are significant not just for themselves but because, as SITA itself correctly states, "This is the first time any specific industry grouping would be allowed to adopt its own TLD." There are likely to be many more gTLD's for specific economic sectors, and the ".aero" application warrants particular care because it is setting precedents.
Whether the ICANN Board accepts SITA's redefinition of "community" to "industry" to "corporations and governmental entities", and SITA's exclusion of at-large stakeholders within the Air Transport Community from the formulation of criteria for eligibility to register domain names in ".aero", will be the test case of how ICANN will deal with the balancing of corporate and at-large interests in the establishment of new domains for specific economic sectors that are already largely dominated by corporate interests.
In light of the analysis above, I urge the ALSC to recommend (in addition to its recommendations with respect to at-large participation in selection of the ICANN Board of Directors):
Please consider this as an addition to your Options A, B, and C for ALSC recommendations.
- Passenger air travel and travel e-commerce consumer advocate, author, and FAQ-maintainer
- Member-at-large of the Air Transport Community and the ".aero" gTLD constituency
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