NGO and Academic ICANN Study

Comments of NGO and Academic ICANN Study (NAIS) Relating to First and Second Discussion Paper of the ALSC

August 2001

 

The NGO and Academic ICANN Study (NAIS) team is pleased to submit comments to the At Large Study Committee (ALSC) on the first and second discussion papers recently released by the ALSC.

As you know, the NAIS group issued an interim report at the recent ICANN meeting in Stockholm. This interim report set forth our own analysis and conclusions on the need for a public voice in ICANN as it relates to the structures of representation and internal governance necessary for ICANN's legitimacy. The interim report also analyzed in detail the regional elections held last year for five ICANN at large directors.

We are planning to issue a final report prior to the Montevideo meeting. In this final report, we will set forth specific recommendations for how the At Large Membership should be organized and structured, how it should participate in ICANN policy-making, and how it should be represented on the ICANN board. Our final report will address many of the specific questions listed by the ALSC in your first discussion paper. We hope it will be useful for your continuing work.

In the meantime, we wish to make three general points concerning the two discussion papers released by the ALSC:

First, we strongly applaud the ALSC's clear reaffirmation of the public interest in ICANN, set forth in the first discussion paper. It is extremely important that the ALSC has concluded without equivocation that there is a need for a public voice in ICANN in order to ensure the legitimacy of the organization.

There has been much debate about whether ICANN is merely a technical body or a policy-making body. The outcome of this debate has important implications for the question of what kind of internal governance is appropriate for ICANN in order to best secure its legitimacy. In our view, it is increasingly obvious that ICANN has a key role in setting important public policies relating to the naming and addressing system of the Internet. This is an argument we set forth at length in the NAIS interim report, and this threshold principle remains a fundamental premise of our work.

Thus, we are very pleased that the ALSC has echoed our own conclusions in stating that "there is a 'public interest' responsibility vested in ICANN, and therefore some role for individuals�is appropriate." We agree with the ALSC's list of the various issues faced by ICANN � such as access to non-Latin domain names, or intellectual property matters � in which members of the general public have an interest and stake in the policy decisions made by ICANN.

Second, and largely for this reason, we are concerned about some of the options for representation set forth in the ALSC's second discussion paper. In our view, and for reasons that will be explained in our final report, the ICANN board should be balanced between representation of the public and representation of the specific stakeholder interests within the organization. This balance is necessary precisely in order to respect the fundamental principle stated by the ALSC � the importance of the public interest in the work of ICANN. Balance between the At Large director seats and the supporting organization seats also respects the founding principles that have been in place since ICANN was formed.

We are concerned that some of options set forth in the second discussion paper depart dramatically from this principle of balance and, in so doing, greatly undervalue the need for public representation.

Option A provides for direct election of half of the ICANN board by the public, and we agree strongly with this principle.

Option B appears to have no election mechanism for the selection of the board, and only 5 of the 18 board seats would be allocated for "individual constituencies" while four additional seats would represent "organizational constituencies," collectively constituting nine board seats from a "customer supporting organization."

Similarly, Option C has no election mechanism by the public. Instead, it contemplates nomination of directors by the At Large Membership, but election by the supporting organizations, which include a new "At Large/Individual supporting organization." This option provides no set allocation of seats to At Large Directors; instead all directors are elected collectively by the supporting organizations together.

We are concerned that both Option B and Option C will weaken the public voice within ICANN, and threaten to submerge it altogether in the collection of narrower interests in the organization.

We urge the ALSC to reject any formula for representation that provides for fewer than half of the board seats to be directly elected by the At Large Membership. Only Option A appears compatible with this principle.

Finally, we applaud the direction of the ALSC in extending its work beyond the questions of how to best organize and represent the At Large Membership within ICANN. The ALSC is embarked on a path that will surely lead to a set of broader recommendations for the overall restructuring of the board as a whole. We support this broadened scope of review and believe it is necessary and appropriate for the ALSC to take on these larger questions.

However, we are concerned that the implementation of a plan for the At Large Membership not be delayed while the larger questions about the overall structure of the board are being considered. There are four initial "At Large" directors who are serving as hold-over members of the board for two years beyond their original term. Further, the terms of the five elected At Large directors will expire in November, 2002.

In order to have new, legitimate At Large directors who can be seated in November, 2002 to replace those whose terms will expire then, we believe that it is necessary for the board to adopt a plan for the At Large Membership at its meeting in November, 2001, or shortly thereafter. This schedule is necessary in order to allow ICANN to undertake the time consuming process of establishing the At Large Membership and conducting an election in an orderly fashion for new board members to be seated by November, 2002.

Although we welcome the ALSC's recommendations on a broader restructuring of the board, we urge you to separate your recommendations, so that those concerning the At Large Membership can be implemented immediately, while the board studies additional changes to the supporting organizations. We believe this is possible if the ALSC structures its recommendations so that the plan for the At Large Membership is made to be independent from the plan for the supporting organizations.

What is important to avoid, in our view, is any delay in the implementation of the At Large Membership while the board and the ICANN community study any broader proposals related to restructuring the SO side of the board. It would be a great disservice to the public interest and to the At Large Membership, if the broader recommendations of the ALSC were used as an excuse to delay the already overdue changes to make the At Large Membership functional so that new directors can be elected and seated by November, 2002.

Accordingly, we urge the ALSC to make explicit to the board the need to proceed on new elections in time to seat At Large Directors by November, 2002, even if additional study and debate is necessary for other parts of the ALSC proposal.

We appreciate the opportunity to comment on the discussion papers published by the ALSC and we look forward to more interchange with you as we complete and release our own study of these important questions.

The NGO and Academic ICANN Study team




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