I propose calling it Values Disorder Syndrome (VDS). It is a virus affecting groups of people. Though rational as individuals, sufferers acting in groups display an inexplicable addiction to the thrill of impunity. That behavior is totally irrational and unrelated to any perspective of gain or purpose.
But then again it may be the Accountability Avoidance Anguish Hyperventilation (AAAH), triggered by an insidious virus transmitted by word of mouth. High-risk carriers of that virus include legal experts, custodians of critical resources and soothsayers.
It is certainly a virus, and we know it goes around in ICANN circles. The proof is that the ICANN board has caught it. Outstanding achievements, superb intelligence, irreproachable ethical standards, fluency in English, witch-hunts and conflict-of-interest purges offer no defense or cure. Legal advice only seems to worsen the condition.
The virus warps an infected group's perception. Here is how it will think: "Why take a straight and open path if we can creep through a murky loophole?" "Why be accountable when we can outsource our job to a casino?"
The ICANN Board's obsession with lotteries and games matches the symptoms. It wants gTLD applicants to travel to California and buy a 100-dollar lottery ticket (see the announcement: "Use of a Drawing for Prioritizing New gTLD Applications”). The ICANN web site is filled with ludicrous phrases like "New gTLDS: The Draw – An equitable prioritization of new gTLD applications".
Why a lottery and not the TLD string in inverse alphabetical order? Or sort by TLD string spelled backward? Or the order by the highest Unicode code point in each TLD string? After all it cannot be changed, the applicants have already made their rational selection.
Well, because it is not rational. It's the warped perception. Some say the ICANN Board is fed up with designing systems that are gamed (misused) by others. Traumatized, it wants itself to game a system. "So why not game the California lottery law? Staff found an irresistible provision in California statute books: not-for-profit organizations may conduct fund-raising lotteries!"
That's just the beginning. Unless cured, ICANN will start lotteries for Board seats, sponsorship slots, ICANN meeting venues, exemptions from attendance of Music Night, papal indulgences for policy violations etc. In the terminal stage of the malady, infected groups offer themselves for sale in a big Tombola — in a perfectly "equitable" manner that is, following an "objective" process.
Before we discuss the cure, let's analyze:
With 400 million dollars in its coffers, ICANN hardly needs to raise petty cash. The administrative costs dwarf the proceeds. It's not about fund raising.
With a clear mandate to make decisions in the public interest, ICANN does not need a lottery as a substitute for accountability. It's not about an objective process.
I am not a lawyer. But the Law might just happen to offer ways to remedy (1) when an exemption is clearly misused, (2) when a lottery scheme forces people to play against their will, (3) when the lottery is damaging and unfair, and (4) when the lottery's effects are contrary to the public interest.
Let's have a look:
(1) Misuse: the exemption is designed to allow not-for-profit fund-raising. But no funds (to speak of) are needed or raised. It is a Fake Fundraising Lottery.
(2) Forcing people to play: ICANN's delays are extremely costly for many applicants. Some applicants are not sensitive to time per se, but badly affected if competitors in the same industry group are unfairly favored. When the lottery offers the only — albeit unreliable — way of avoiding trouble, participation it is a necessity, not a free choice.
(3) Damage: the proposed lottery does clear damage to everyone. This is because the pointless randomness destroys optimization both globally for the entire process, and individually for each applicant or group. And even in doing damage it is unfair, as it does much more damage to some applicants than others.
(4) The effect of that unfairness is particularly undesirable: most damage goes to public-interest projects. Purely self-interested applicants lose little, especially the speculative portfolios.
Processing priority must go by public interest, then by practicality, then by preference, in that order. This is not new. All proper public processes are organized that way. Courts of law must decide on which cases they hear, government agencies must decide in which order they review requests for building permits, emergency rooms have to decide which patient to treat first. There is a good reason why lotteries are not used.
ICANN asked for community input, compiled it — and discarded it. Look at all the reasonable options ICANN seems to have discarded in favor of a travesty.
– It is not difficult to give priority based on the TLD being an IDN string, the application being formally supported by a government authority, the application being designated as community-based, or the TLD serving hitherto disadvantaged Internet users or communities.
– It is not difficult to allow applicants to indicate a preferred roll-out time. Many will go for a later roll-out, but would prefer to decide themselves.
– It is not difficult to require applicants to commit now (rather than upon signature of contract) to either exclusive TLD use or third-party TLD use. Just as decently run cities give priority to social housing over luxury residences, third-party-use TLDs should have processing priority over exclusive-use TLDs. And even exclusive-use applicants get an advantage: they be allowed to say which other exclusive-use applicants they see as same-industry competitors that should not be favored over them in terms of processing priority.
– It is not difficult to allow portfolio applicants to declare their portfolios and their own order of preference within their portfolio. It is an option advantageous to all, the portfolio applicants AND those who run against them.
If after applying the above sort keys there are too many applications with the same priority score, why not take order by TLD string. My favorite is descending order by highest Unicode code point in each TLD string.
So far so good. We know there is no need whatsoever for a lottery. We know that the lottery proposal is the result of a pathological condition in wiring of ICANN's Board. But what's the cure?
Here comes the good news: there is a cure, and ICANN has built it right into its bylaws. The cure has many names, such as "multi-stakeholder model", "accountability and transparency", "open microphone", "public comment forum", "public participation", "bottom-up process", "outreach". In plain English: just talk about it, let there be debate.
We just need to overcome some recently acquired bad habits of preventing discussion. There is progress. Compared to Digital Archery, decreed ex-cathedra by the infallible New gTLD Committee, the Fake Fundraising Lottery is a proposal, complete with comment period. Talking about how to replace the Fake Fundraising Lottery is excellent therapy.
By Werner Staub
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