IP: The crux of the ICANN legitimacy matter

[Dave Farber <farber@cis.upenn.edu>]

>From: "Johnson, David" <DJohnson@Wilmer.COM>
>To: "'Dave Farber'" <farber@cis.upenn.edu>
>
>
>In a response to David Post's concerns about the direction in which ICANN is
>headed, Mike Roberts (interim President of ICANN) states: "In the idiom of
>the ICANN Bylaws, consent of the governed is obtained through the operation
>of the public notice and comment provisions."
>
>That statement eloquently illustrates the current problem -- reflecting the
>apparent view of the current (unelected, interim) board that they are
>authorized to promulgate policy directives that somehow bind internet
>stakeholders. This is an illegitimate, top down view of the ICANN Board's
>role -- not authorized by the White Paper or even by the current Bylaws or
>MOU with the US Government.
>
>Properly understood and implemented, the ICANN Bylaws contemplate policy
>formulation by open supporting organizations, with a minimal role for a
>Board, whose major task is to facilitate the consensus-generating process.
>Consent of the governed is to come from an as yet unheld election process,
>from the consensus in the stakeholder communities (reflected in SO
>deliberations) and from bilateral contracts between  ICANN and those asked
>to implement any resulting policies. 
>
>We are experimenting with the very nature of the social contract, online.
>The White Paper process clearly generated a consensus that any policy
>standards (aka governance) should emerge (that's the meaning of bottom up)
>from an open dialogue among stakeholders. Because the net thrives on
>diversity, we should "standardize" (aka harmonize) rules only when there is
>widespread agreement among those who must follow the rules. In that context,
>it is decidedly NOT the case that "consent of the governed" -- or any
>legitimacy -- can stem from allowing a public gripe session before the Board
>goes into secret session and takes the view that the ABSENCE of agreement
>among stakeholders (aka consensus and contracts freely entered into among
>willing parties) gives it a license to decide important policy issues.
>
>David Johnson
>
>