3.3.2 Benefits and challenges of direct elections

We have come to these recommendations following long deliberation and consideration of the strengths and weaknesses of our proposal for direct elections, and the review of other possible options.

A system of direct elections is of course not without its problems. The main criticisms made of direct elections as a means for choosing ICANN board members tend to fall into four categories:

Such elections provide only the illusion of representation. Some argue that it is wrongheaded to think that the relatively few individuals who would participate in an ICANN election can be thought to "represent" the public in any meaningful sense. Given a potential electorate of hundreds of millions of people who have an e-mail address, the approximately 40,000 voters who actually voted in the ICANN election last year are a trivial number. Such low participation does not result in a process that can be viewed as a valid representation of the public, in the way that elections are typically thought to provide democratic legitimacy in a traditional political context. To put the sharpest point on this view, for instance, critics argue that an at-large director elected with 67 votes out of 130 total votes cast in Africa cannot in any meaningful sense to said to "represent" all of Africa.
Such elections are inherently subject to fraud and manipulation. Related to the criticism about illusory representation are concerns about fraud and manipulation. Critics argue that there is no practical and fail-safe way to guard against multiple registrations from one individual, against "manufactured" registrations generated by a central source (whether it is a corporation or a government) or indeed, against registrations that are entirely fictitious. They also argue that the low participation heightens concerns about "capture," whereby a company or government generates votes to "win a seat." Evidence from last year's elections heightens this concern because of nationalistic behavior by voters worldwide and by some governments. This manipulation, critics contend, is only likely to grow worse in the future.
Such elections are expensive. These critics point to the costs of success as much as the problems of failure. If ICANN does attract public attention and support, they claim, the mechanism of elections is not readily scalable because of the sheer cost of maintaining a membership and authenticating participation through the mail. The financial burden of running elections, they contend, will overwhelm the ICANN budget.
Such elections cannot be sustained over time as a valid means to select board members. Critics here wonder whether the public really cares about ICANN, and if it does, whether it will continue to care. These critics are concerned that even if the novelty of the first, or the first few, ICANN elections attract press and public attention, that interest is likely to fade over time, which will leave the elections within the control of a relatively small handful of ICANN "insiders" who cannot be said to represent the views or interests of the public at large.

The response to these problems is one that reframes the question. The criticisms measure the representative "legitimacy" of ICANN elections using the same "yard stick" that is applied to democratic elections for governmental representatives. But ICANN is not a government-it doesn't have the power to police, to send people to jail, or to raise armies. Rather, the point of ICANN elections is to choose representatives who have the perspective of public users of the Internet, and who can speak in a public voice on issues of policy concern about the Internet.

In other words, ICANN elections could not-and are not meant to-replicate elections for governmental office, and they should not be judged by such a standard. They serve a different purpose and will necessarily be conducted by a less stringent set of criteria than would be acceptable for governmental elections.

What we seek is a proper "fit" between the functions of ICANN, the need for a public voice to provide legitimacy for those functions, and the kind of election that is practical and appropriate to serve that need. One degree of "fit" would serve governments, but another can serve ICANN. To confuse those different standards is to judge ICANN's elections by a measure that is unrealistic, unnecessary and unfair.

Moreover, ICANN is a membership organization, not a government. The elected At-Large directors are not meant to "represent" the entire worldwide public at large, nor even all Internet users. The elected directors are chosen by the members of the organization and, in their service as Directors, are expected to bring the perspectives of those members to the Board.

Membership in ICANN should be open to any individual with an e-mail address and the interest to join. This low barrier to entry ensures that anyone with the time and interest to participate can do so. That very openness provides the opportunity for participation to those who want it, and in so doing validates the public legitimacy of the process. It is precisely the lack of barriers to public participation as a member that legitimizes the election as a selection process, not its "representativeness."

That is why last year's ICANN election was not inherently "illegitimate" because only 40,000 voters participated. The frame of reference is not that only 40,000 voters participated out of the billions of global citizens, or out of the hundreds of millions of e-mail users. The frame of reference is that 40,000 voters participated out of the 75,000 individuals who had the interest to register and activate their memberships.

The existing Supporting Organizations would be equally vulnerable if the sharp criticisms applied to the at large election were also applied to the SOs. It is not clear by what measure of legitimacy or representation a board director selected by the DNSO, for instance, can be said to validly represent the interests of all the various members of the various constituency groups within the DNSO. Few in ICANN criticize the DNSO because only a small handful of businesses, out of the millions of businesses worldwide, actively participate in the business constituency group and in the selection of the Names Council representative. The same is largely true of participation in the ASO and PSO, and of the legitimacy of the directors they select.

As in any election, there is an unavoidable possibility that some voters will engage in fraud or will attempt to inappropriately manipulate the election. To be sure, the nature of ICANN elections makes protection against these manipulations less reliable than in the offline context. However, we believe that the ICANN elections can tolerate a lower level of protection than governmental elections might.

The system of authentication by postal mail used last year provides a meaningful level of protection, and can be supplemented by additional steps that we suggest in our more detailed discussion of the problem in section 3.5. While ICANN should make every effort to protect against fraud and manipulation, the At-Large election will enjoy a margin for error resembling that of an organizational election, a standard of considerably less rigor than would be acceptable for governments.

Additionally, a strongly worded "code of conduct" might significantly reduce the incidence of questionable "electioneering" practices that occurred in certain regions in the 2000 election. In part, these efforts took place simply because they were not clearly proscribed. We urge ICANN to undertake a serious effort to develop and promote a uniform standard of conduct to be applied in the next election.

So too, we believe the problems of capture by governments or corporations are real, but overstated. There was some evidence of national efforts to capture in last year's election, while not so much evidence of corporate capture. To some degree, "capture" can arises as a result of little more than a vigorously sponsored effort at voter registration and participation-generally a desired part of elections. Of course, one person's effort at "capture" is another person's get-out-the-vote drive.

More generally, the best response to capture is not less elections, but more democracy. In other words, if one nation mounts a voter drive to encourage its citizens to participate in ICANN elections, the hope is that other members of the global community might respond with efforts of their own to counter that drive. While in an ideal world the ICANN electorate would respond as citizens of a global cyberspace and not of individual nations, the problem of nationalistic voting is not one that fundamentally undermines the integrity of the elections. We believe that nationalist voting is a problem that can be countered by ensuring that the electorate is better informed about ICANN and by making potential members aware that the membership exists to give the individuals the opportunity to participate in and contribute to ICANN's work, not just to vote.

The cost question is also a real one. We address this at length in section 3.5. Ultimately, the expense of elections is one that must be borne by ICANNin other words, from ICANN's budget revenues raised from those registries and other organizations that profit from the existence of a stable DNS and addressing system, and hence benefit from the existence of a stable ICANN. These businesses should bear this as a cost of doing business because it is the cost of being legitimate.

This kind of cross-subsidization is warranted because those interests that profit from the stable management of the Internet have a strong financial self interest in ensuring the continued existence and legitimacy of ICANN, in order to forestall less favorable alternatives such as management by governments. It is, in our view, an inseparable part of the responsibility to ICANN these business interests have that they bear the costs of meaningful public participation in order to make ICANN robust and legitimate. Whether cross-subsidization is necessary as a permanent solution is not clear. We believe it is needed-and it is justified-at least during the start-up phase of the At-Large Membership.

As to the fear that public interest in ICANN will wane, leaving elections to the control of a fringe few ICANN zealots, that is a concern that can only be tested over time. We do not think this will happen because we believe that ICANN will become more, not less, relevant and visible to the public. Every indication is that the Internet will become increasingly pervasive in daily life. The policy issues faced by ICANN are likely to grow in their relevance to individual users, and that in turn is likely to stimulate interest and participation in ICANN.

3.3.1 The reason for an At-Large Membership that enables participation and provides for public representation by electing the At Large Directors

3.3.3 Analysis of alternative models of selection