For structural and historical reasons, there is a need for improved public participation in the current internal governance of ICANN in order to establish its legitimacy as a quasi-public body that has a mission to decide policy matters of public interest and importance relating to the functionality of the Internet.
Addressing the need for public participation in turn suggests two subordinate questions: what is meant by the public? and what is understood by participation?
There are various ways to define which "public" has an interest in ICANN. The answer is perhaps best thought of as a sliding scale from a narrow definition focused on domain name holders, those stakeholders who are most directly affected by ICANN policies, to a much broader definition that includes all those who "use" the Internet, such as all email address holders. And even beyond this, the broadest definition would essentially include the entire public - both those who currently use the Internet and those who are potential users in the future.
ICANN should recognize that its decisions have a broad impact. Because the Internet is a global resource, decisions about the functionality of the Internet have a global impact. And because the Internet is used directly by individuals on a global basis, that impact extends down to the individual level.
It is important as well to acknowledge that the class of those affected is dynamic. As the Internet expands, particularly in underdeveloped regions, the class of individuals who begin using it will grow. Yet these potential users of tomorrow will be impacted by the decisions ICANN makes today in setting domain name policy that will structure the Internet in the future.
For these reasons, we believe that ICANN should broadly construe the "public" affected, and potentially, affected by its decisions.
Even if the "public" is defined broadly, that does not mean there must be only a single means for individuals to "participate" or "be represented" in ICANN's decision making. ICANN's structure suggests not one, but several avenues for the public to participate in ICANN's work. By far the most important - and under-developed - is the At-Large Membership (ALM). Before discussing the untapped potential of the ALM, we want to take note of the other existing avenues, as they ultimately impact the role the ALM can and should play
The three existing supporting organizations - the Address Supporting Organization (ASO), the Protocol Supporting Organization (PSO) and the Domain Names Supporting Organization (DNSO) -- provide open routes of input into decision-making by ICANN.
The supporting organizations each directly elect three members to the ICANN board. Further, each of the SO's, at least in principle, is consulted prior to board decisions affecting their particular area of interest. The supporting organizations in turn are as a formal matter open to participation by anyone who attends their meetings or participates in their listserv discussions. [ 10 ] Thus, any member of the public can indirectly participate in ICANN decision-making through participation in the supporting organizations.
There are, however, several limitations on the adequacy of this avenue for public participation. First, the supporting organizations are each forums of particularized and specialized interest - they do not easily contain the interests of the general public in ICANN's issues. The ASO and PSO in particular are viewed as bodies of technical specialists which, although formally open to any member of the public, are not natural or comfortable forums for general public participation. And past attempts to house the concerns of the general public within the DNSO have been unsuccessful. Indeed, the lengthy, and as yet unresolved, debate over whether even to create an Individual Domain Names Holder Constituency suggests that there is not any constituency group within the DNSO that provides a forum for general public concerns. Even the IDNH constituency, were ICANN to charter it, would speak only for a small class of the general public - those with individual domain names - but not for the public at large.
Further, the supporting organizations are largely viewed as forums for corporate and business interests within ICANN, not for individual interests. This perception weakens the ability of the SO's to serve as an effective vehicle for public participation within ICANN. It is one available route for expression of public voices, but an avenue within inherent limitations.
Democratic governments themselves are institutions that embody and represent the public (although governments can vary widely in the degree to which they are truly representative). But to the extent that governments, as such, have input into the decision-making process of ICANN, this is another avenue for public participation in ICANN's internal governance.
Again, however, this is an avenue with significant limits. Governments play a formal role in ICANN through the Government Advisory Committee (GAC), which provides institutional views to the ICANN board on matters of relevance to it. But the role of GAC is poorly delineated. Although it is supposed to be advisory only, the GAC exercises apparently significant influence. But it does so with poor mechanisms for transparency, and for public input and participation because it operates largely in a closed and inaccessible fashion.
In its current form, the GAC's influence may be unavoidable. Though their formal authority in ICANN is minimal, the actual effect of strong government statements or policy initiatives should not be discounted. In that light, transparency and openness, not attempts at structural limitations on influence, offer the best hope for equitable participation by governments.
Public participation in ICANN through representation by governments in the GAC is an unsatisfactory solution for a deeper reason as well. The underlying principle of ICANN is that it is a non-governmental institution. Indeed, the very point of ICANN is as an experiment in non-governmental self-organization. Governments are viewed with suspicion by the Internet community, mainly because of their inefficiency and lack of responsiveness to rapidly changing social and technological developments that have marked the growth of the Internet.
As is discussed above, ICANN was deliberately structured to be non-governmental. Although it is to operate on a global basis, it is not to be an inter-national or multi-lateral organization such as other inter-governmental treaty entities. In this sense it is not, like many other international entities, an organization formed by governments or consisting of governmental representatives. Instead, it is to be a global organization operating on a quasi-public basis outside of international governmental control.
Public participation on a global basis should reflect this underlying premise of ICANN's structure. Thus, although governments, through the GAC, may indirectly reflect the views of their citizens, and thus provide another vehicle for indirect public participation in ICANN, this is again a highly restricted form of participation by the public.
The third avenue for public participation in ICANN is through the At-Large Membership (ALM).
A concept that is anticipated in the foundational documents of ICANN (such as the White Paper), the ALM has yet to be adequately defined and institutionalized in ICANN's framework of operations. The ALM remains the great - and as yet unrealized - potential opportunity for public participation in ICANN.
The ALM has been organized to date only in the context of the election for five board seats held in October 2000. Although voting for board members may remain an important function of the ALM, its role does not need to be limited to serving as the electorate for At-Large director seats. Indeed, if the only role of the ALM is to participate in elections, the full potential for public participation in ICANN will remain unrealized, and even the role it plays in electing directors will be under-developed.
The ALM can serve diverse goals of participation, representation and accountability. In fulfilling each of these functions, a fully developed ALM will strengthen the legitimacy of ICANN to make the kinds of policy-based decisions about the functioning of the Internet in which it is now engaged.
In fostering participation, the ALM could become a means for communication and outreach to the broader public for ICANN. The ALM could create empowerment of the public and empowerment yields a sense of collaboration. It could also be a channel for consultation and input into organizational decision-making. Institutionalizing this sort of participation might be done through ALM forums or meetings that can be convened in conjunction with each ICANN meeting, or through the development of on-line mechanisms. [ 11 ] The ALM could be structured into more manageable sub-units or committees by region or by issue, or by some combination of both.
In fostering representation, the ALM can serve as the electorate for the At-Large board seats. Representation through election can make participation operative and give it meaning. The election could be structured in different ways, including the direct election not only of directors to the ICANN board, but also, for instance, to an At-Large Council which can serve as an intermediary entity between the general At-Large membership and the ICANN board. When the ICANN board is perceived as representative, then the mode and degree of participation can be balanced to adapt to the goals and mission of the ICANN, the heterogeneity and size of the community, the need for stability and efficiency.
And in fostering accountability, the ALM can serve as a kind of public "watchdog" on the actions of the board, and can be a means to ensure that at least the elected At-Large directors reflect the views and interests of Internet users at large and act in a responsible manner. Accountability devices may include, for instance, the specific creation of substantive and procedural rules designed to enable board member responsiveness and a set of ex post mechanisms to allow responses to decisions taken (including rationales and justification for decisions made).
The ALM is a key piece of the structure of ICANN that has not yet been brought to maturity. Developing the ALM is necessary to make elections work in virtually any form. But institutionalizing the other roles of the ALM in providing the means for participation and accountability, as well as representation, will have additional and equally important consequences for establishing the public legitimacy of ICANN.
| 1.2. ICANN's History and its Commitment to Public Representation | 2. Lessons and Challenges: The 2000 At-Large Election |
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