As a new and unique body in need of a long-term system of public representation, ICANN has a special need to review its own past and to learn what it can from the discussion of the last several years. Many of the issues that the community now faces have persisted from ICANN's early days; they are of obvious importance but are complicated and, frequently, divisive.
From the time it was conceived, through its formation, and in its current infancy, ICANN has had a clear responsibility to establish a public role in its decision-making. Such responsibility in itself has frequently placed ICANN at the center of controversy. While the organization has several times declared its intention to build in a lasting role for the community of Internet users (sometimes in response to pressure from outside interests), consensus on the form and responsibilities of that role has been elusive, and progress has been slow.
In this section, we attempt to trace the development of ICANN's responsibility to public participation, and the obstacles it has encountered along the way.
Early Commitments to the Internet "Public." While responsible management of the Internet's addressing, naming, and protocol resources are of clear international concern, the history of ICANN's development as an organization was largely the result of negotiation with the American government. [ 5 ] In 1998, partly spurred on by recent international efforts to promote globally responsive naming and addressing administration, the U.S. Department of Commerce [ 6 ] (Commerce) released two policy documents calling for the creation of the corporate entity that eventually became ICANN. Known as the Green and White Papers, these documents provided an early conceptual sketch of the founding principles, authorities and responsibilities, and proposed organizational structure on which ICANN would be built.
"Representation" was one of the four founding principles that these documents laid out for ICANN. As the White Paper, put it:
The development of sound, fair, and widely accepted policies for the management of DNS will depend on input from the broad and growing community of Internet users. Management structures should reflect the functional and geographic diversity of the Internet and its users. Mechanisms should be established to ensure international participation in decision-making.
In imagining a governance structure for ICANN that would serve this principle, the Green and White Papers suggested a Board of Directors that would balance in a roughly even way the interests of specific domain name and IP number stakeholders with those of Internet "users." But these documents did not provide a specific blueprint for how the "user" half of the Board would be constituted or created. They suggested only that "commercial, not-for-profit, and individual" users were all likely participants. Thus, the key questions that would have to be addressed in providing opportunities for "public" or "user" participation in ICANN were left unanswered in the principal DOC policy documents regarding ICANN.
Initial Board Authority Over the At-Large Process. In early October 1998, ICANN submitted its proposal to become the corporation envisioned in the Green and White Papers. The proposed bylaws submitted in this process established a governing structure for ICANN that attempted to strike the balance called for in the Green and White Papers. ICANN proposed a 19-member board, which would include the corporation's appointed president. Nine board members would be selected three each by three Supporting Organizations created to represent specific Internet stakeholders the IP number registries, domain name registries, domain name registrars, and the technical community. The remaining nine seats would be occupied by "At-Large Directors" - though once again the form and function of those Directors was largely undefined.
To guide ICANN in its formative stages, a nine-member Initial Board of experienced people from industry, academia, and the research sector was created. ICANN's process for selecting this Initial Board was widely criticized for its lack of openness and inclusiveness, and many questioned the fundamental legitimacy of this Board (and still do, as four of its members remain on the ICANN Board today). [ 7 ]
One of the chief responsibilities placed this Initial Board was to determine the process for selecting the At-Large Directors who would later replace the Initial Board itself. Early drafts of the bylaws suggested that this would involve the creation of an At-Large membership to elect these nine directors. However, these bylaws left the Initial Board with broad discretion to fill in the details regarding the selection of the At-Large Directors, and even to determine whether or not a membership system would be part of the process.
These initial bylaws received significant criticism from groups like the Boston Working Group [ 8 ] for giving overbroad authority to the Initial Board. Should they so desire, there were no protections against the Initial Board simply deciding not to have any kind of At-Large membership whatsoever. Some went so far as to express concerns that the Initial Board had the power to reject not only the notion of a At-Large membership, but also the more general underlying principle of having At-Large Directors who would represent "users" to begin with.
The BWG strongly lobbied Commerce for revisions to the ICANN that would require the Initial Board to create some kind of membership structure (the specifics of which had not yet been determined). Ultimately, Commerce agreed, and ICANN, under pressure, revised its bylaws accordingly. Shortly thereafter, a Memorandum of Understanding was signed between ICANN and Commerce, under which ICANN began assuming the responsibilities set forth in the Green and White Papers.
The MAC Report. Since neither the MoU between ICANN and Commerce, nor the Green Paper, nor the White Paper, included any strong definition of what the "At-Large Membership" would look like or how it would run, ICANN appointed a 13-member Membership Advisory Committee (MAC) to address these questions. As MAC Co-Chair George Conrades put in an early committee conference, the questions the MAC faced boiled down to: "Who will be the members of the corporation? And what will the members do?" After thoroughly discussing these issues, the MAC made its final recommendations to the ICANN Board at its May 1999 meeting in Berlin. Among them were the following:
Yet the ICANN Board did not immediately implement the At-Large membership structure envisioned by the MAC. While reaffirming its intention to move forward with a system that would allow individuals to select At-Large directors, the Board resolutions passed in Berlin also recognized that developing such a system could be complex and expensive, and they directed the ICANN staff to "to analyze the MAC principles in the light of its discussion, and report back prior to the Santiago meeting."
Community Pressure for a Timely Election. In the period immediately following its Berlin meeting, ICANN continued to face strong outside pressure to realize the its founding principle of "representation" and replace its appointed Initial Board with an elected one. In June 1999, ICANN submitted its six-month status report to Commerce. In Commerce's response, Becky Burr wrote, "ICANN's top priority must be to complete the work necessary to put in place an elected Board of Directors on a timely basis." This urgency to provide elected representation on the Board was restated in testimony that another Commerce official gave before the U.S. Congress [ 9 ] and in letters to ICANN from the chair of a U.S. House of Representatives subcommittee.
Similar pressure also mounted in the online community. In responding to these concerns, ICANN reaffirmed its commitment to a representative Board of Directors. For example, in a July 1999 letter to Burr, ICANN said that putting in place an elected board "is our highest priority" and "we have been working diligently to accomplish this objective as soon as possible."
The At-Large Council Concept. Just before the August 1999 meeting in Santiago, Chile, ICANN staff posted its report following-up on the MAC's work. The staff report reflected the MAC's notion of an open membership consisting of individuals. However, it also recommended that the Board create an At-Large Council with largely analogous to the councils already formed to represent professional stakeholders in the Supporting Organizations (SOs). The staff report argued that this would create parity between the At-Large membership and the SOs, and that it would equip ICANN with a formal entity to help build the At-Large membership and help oversee the At-Large elections.
A legal analysis that accompanied this report also suggested that ICANN could protect itself from burdensome derivative lawsuits under California state law, if it removed the power to directly elect the At-Large Directors from the At-Large membership and placed it in the hands of this At-Large council instead. While the staff report did not explicitly recommend that an At-Large Council select the nine At-Large Board Directors, the Board discussed and passed resolutions to that effect at its meeting in late August 1999 in Santiago. It adopted the necessary bylaws changes that October.
Under the new bylaws, when the At-Large Membership reached a threshold population of 5,000, it would elect 18 members of an At-Large Council in two installments. The Council would then select the nine Board members.
Opposition to the Indirect Election. Some in the ICANN community liked the notion of indirect elections of the At-Large Board Members through an At-Large Council because it guarded against the threat of derivative suits, and would create a more deliberative setting for selecting directors than an direct popular election would provide. Many others attacked the plan as an effort to highjack the broad Internet user voice in ICANN, reasoning that no one would participate in a body that only provided the right to select individuals who would in term select policy-makers. According to this critique, indirect elections also would result in no direct lines of accountability between the ICANN Board and the "public."
At its March 2000 meeting in Cairo, the ICANN Board faced intense pressure to scrap the indirect election plan proposed by staff and hold direct At-Large elections. Advocates for the direct model argued that it offered enhanced accountability and legitimacy for a Board that, it was felt by some, was lacking in both. Ultimately, the Board accepted the validity of the direct election model and passed a compromise resolution, Resolution 00.18 - also termed the "Cairo Compromise."
Resolution 00.18 instructed staff to draft bylaws amendments that would:
Instead of filling all nine Directors at once, the compromise stated that only five would be elected in 2000, after which the election process would be studied before future action. At the time, the compromise seemed acceptable to most parties; direct democracy advocates avoided setting a precedent of indirect elections and placed five elected Directors on the Board, while those with stability concerns were assured that, should the election go badly, the five At-Large Directors would constitute a minority of the nineteen-member Board.
At the Yokohama meeting in July 2000, however, the spirit of the "Cairo Compromise" was revisited.
The Bylaws Amendments in Yokohama: When the Board asked staff to prepare new bylaws to flesh out the Cairo Compromise, neither those at the meeting nor the ICANN community as a whole had reviewed all the Compromise's possible implications. When the proposed bylaws were published immediately before the Yokohama meeting, the Board once again encountered strong opposition from the community, and criticism that it had both betrayed the spirit of the Cairo Compromise and failed to accurately gauge community sentiment. Members of the public interest community strongly criticized both the proposed bylaws and the process behind it.
While the proposed amendments did provide for the direct election of five At-Large Directors, followed by a period of study, they were self-extinguishing, deleting themselves from the ICANN bylaws as soon as the 2000 At-Large Election was finished. In the absence of direct action by the Board, this left ICANN with no process for ever selecting At-large Directors to the Board after 2000. At the same time, the amendments proposed that the "placeholder" At-Large Directors - those Directors of the Initial Board - would leave the Board at the end of 2001.
Since no process had been established to replace the departing Board members, the "At-Large" seats they occupied would vanish when their terms expired, leaving the At-Large community represented by just the five Directors elected in 2000. And even those Directors' terms were set to expire in 2002. Barring direct action by the Board, At-Large representation on the Board would dwindle from nine seats, to five, to zero. Advocates urged the Board to rethink the proposed amendments, and to secure At-Large Directors' positions for the foreseeable future.
Once again, the Board reversed course. It amended the bylaws to secure the positions of all nine At-Large Directors until late 2002 - though the bylaws setting up an At-Large Election self-extinguished after the 2000 election. Under those terms, the 2000 At-Large election took place - and ICANN was left, once again, without a clear concept of how to represent the public's interest in ICANN's activities.
Where we find ourselves. In a certain sense, the ICANN of 2001 and the ICANN of 1998 are not as far apart as they might seem. For both organizations, persistent questions demand quick resolution - and for both, community sentiment is deeply fragmented in its ideas about ICANN's future direction. Yet where the ICANN of 1998 had little idea of what the At-Large Membership might mean, or the role it might play, the ICANN of 2001 at least has the benefit of hindsight in seeking to resolve those issues.
| 1.1. A Value-based and Conceptual Approach | 1.3. Public Participation and the At-Large Membership |
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