Response to Question One: ICANN Input Processes

Mailing lists such as [names] are not a workable forum for public comment to ICANN, because they don't scale up. The names list has only about 20 participants other than harvard.edu folk and ICANN personnel. It could not workably provide a similarly meaningful forum for an ICANN membership numbering in the thousands or larger. While some mailing lists have membership much larger than [names], meaningful interchange in those mailing lists is generally limited to a smaller core membership who have made the decision to invest in active participation. The first alternative to a [names]-style mailing list is one ICANN is in fact pursuing: (non-interactive) requests for comments. In some contexts, this approach can work well. In order to work well, though, it requires a commitment from the decisionmaker to take the comments seriously and to incorporate them into its decisionmaking. One would expect in a well-functioning system that at least summaries of the comments would be conveyed to the Board members (not merely to staff); that ICANN would from time to time make meaningful changes in its proposals in response to comments; that ICANN, in response to comments, would alter its tentative position and then issue *new* requests seeking comments on its newly-altered views; that ICANN from time to time would seek comments *before* deciding on its tentative positions. In fact, none of that much seems to be happening; ICANN for the most part seems to see the necessity of asking for comments as a procedural nuisance rather than as a source of useful input.

Part of the problem lies in the fact that in the administrative-law context, where this system works well, the mechanism of judicial review compels the agency to take comments seriously. In the ICANN context, there is no similar mechanism. Indeed, this lack casts doubt on any system of structured public interaction for ICANN. This is not to say that a system corresponding to judicial review for ICANN would be desirable -- I don't think it would be -- only that its absence carries costs.

An entirely different mechanism for communication between ICANN and the public at large lies in institutions of structured representation. This is what the DNSO is supposed to do: members of the Internet public who fall within the various constituencies who wish to communicate their views on domain-policy matters pass them on to their constituency representatives, who pass them on to the Names Council, who pass them on to the Board. This system was designed to scale up. As the NC demonstrates, though, designing representative institutions is difficult. The NC constituencies are neither complete nor coherent. A majority vote on the NC (counting the number of ICANN-approved constituencies on each side of a proposition, and then multiplying by three) is likely to correspond to the views of the "Internet community" only on a random basis. ICANN may seek to create a similar institution for the at-large memberhip. Its track record so far, though, doesn't engender confidence.

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