[ICANN-EU] Letter to Board, re: At-Large Study

[Rob Courtney <rob@cdt.org>]

Attached is a letter that CDT, along with several other organzations, 
recently transmitted to the Board. It offers some recommendations and 
principles for the Board to consider as it constitutes the upcoming 
study of the At-Large Membership--since that study could have *very* 
significant consequences on the way that the public is represented on 
the Board in the future. I wanted to bring this to the list's 
attention, and I'd certainly appreciate any comments or questions 
that the group has.

Thanks

r

* * *

November 9, 2000

Esther Dyson
Chairman of the Board
Internet Corporation for Assigned Names and Numbers
4676 Admiralty Way, Suite 330
Marina del Rey, CA 90292


Dear Ms. Dyson:

On behalf of the undersigned public interest and research 
organizations, we are writing to suggest guiding principles for the 
ICANN board to follow in commissioning the study to take place after 
the Los Angeles board meeting about the future of the At Large 
directors.

As you know, many of us have been working over the last year to 
ensure that the internal governance processes of ICANN are fair, open 
and representative.

We believe that the nine At-Large Directors, and the goal of broad 
representation of the public's interest in ICANN, have been 
fundamental parts of the balance of interests in ICANN's governance 
structure. We remain concerned about the attempts of some to diminish 
this essential component of broad participation.

We have been supportive of many of the steps taken by the board to 
make the recent election of At-Large Directors more broadly 
representative of the Internet community. In particular, we applauded 
the decision made by the board at the Cairo meeting to make the 
election a direct rather than indirect vote of the membership. We 
were also pleased by some of the procedural decisions regarding the 
election made at the Yokohama meeting, in particular the decision to 
lower the petition threshold for a candidate to gain access to the 
ballot.

On the other hand, we were concerned by proposed by-law changes 
developed by the staff prior to the Yokohama meeting that appeared to 
phase out the At Large seats in anticipation of the study. Our 
understanding of the agreement reached in Cairo was that the board 
would hold a direct election for five of the nine At Large seats, 
pause to study the election process, make improvements to the process 
based on the experience in the first election, and then proceed to 
elect the remaining four At Large directors.

At Yokohama, this compromise was modified. The scope of the 
post-election study was significantly expanded by the Board to 
include explicitly the question of whether there should be any At 
Large directors at all. Although the board did not adopt the staff's 
proposed by-law change to begin an automatic phase out of the At 
Large directors, it did for the first time place that possibility on 
the study agenda.

Given this context, we believe it is crucial that the board conduct 
the post-election study in a way that commands the respect of the 
many diverse interests in ICANN. In particular, because the study 
will address the question of whether to have any At Large directors 
at all, it is important that the study process be - and be perceived 
to be - independent, fair, open, inclusive and representative.

With this background, we want to propose six principles that should 
govern the board in establishing the study process:

1.   *The study should be commissioned as an independent study.* This 
is a study that will address the basic structural composition of 
ICANN's internal governance. To be credible, the study should be 
conducted independently of ICANN's current board and staff, which 
has, at a minimum, the appearance of a vested interest in the outcome 
of the study. Further, to the extent the study may review actions and 
decisions made by the staff and board (such as in the conduct of the 
election), it is manifestly inappropriate for the study to be 
conducted by, or controlled by, those who themselves are under 
scrutiny.

It is not infrequent that a company or governmental entity commission 
an independent outside study of its structure or operations. This is 
done precisely in order to ensure objectivity and credibility for the 
conduct of the study. This kind of precedent is directly applicable 
here. The ICANN board should charge a working group outside of ICANN 
itself to undertake this study.

2.  *The group charged with conducting the study should be fairly 
balanced to reflect the interests of multiple stakeholders in ICANN.* 
Not only should the study, for the reasons set forth above, be 
conducted independently of the ICANN board and staff, but it should 
be conducted by a group that reflects the views and voices of the 
broad interests in ICANN - those of the non-commercial and public 
interest constituencies most affected by the issue of whether to have 
At Large seats, but also those in the commercial sector and from the 
supporting organizations. We also urge that there be included in the 
working group representatives of those who have raised concerns about 
ICANN's governance in the past. Only by opening the group to include 
the voices of critics will the study attain the legitimacy necessary 
to its effectiveness. Otherwise, it runs the risk of being dismissed 
from the start by the public. Finally, ICANN should make every effort 
to ensure that the group is substantially international, and is 
thereby reflective of the Internet's global reach.

3.  *The scope of the study should include the proper composition of 
the board as a whole, not just the At Large seats.* The original 
purpose of the study as proposed in Cairo was to assess how well the 
election for the first five At Large seats worked, and what 
modifications should be made before holding the election for the 
other four seats. This was changed in Yokohama to include the broader 
issue of whether there should be At Large seats at all, and if so, 
how many.

The study cannot address this larger question of whether to have At 
Large seats without examining it in the context of the overall 
composition of the board, its mission, its staffing, and its resource 
infrastructure. Thus, the study should review not only the purpose of 
the At Large seats, but also the role of the Supporting Organization 
seats as well. Only by developing a comprehensive proposal about 
which stakeholders should be represented on the board, how seats 
should be allotted to those stakeholders, and the proportions between 
interests that ought to be established, can the study fairly address 
the question of how many At Large seats there should be.

4.  *The study should be conducted by open procedures.* Meetings of 
the group should be held with prior notice and be open to the public. 
The group should engage in meaningful outreach to disparate views on 
an international basis, in order to make the study process inclusive. 
Memoranda, studies, data and other documents considered by the group 
should be available to the public. And members of the ICANN community 
should have the opportunity to present their views to the study group 
and to comment on any proposed recommendations made by the study 
group before they are adopted.

5.  *There should be open public access to all data and information 
about the recent election.* One key task of the study is to assess 
the election held last month for the first five At Large seats. The 
study should evaluate what went right and what went wrong with the 
election, what lessons can be learned, and what changes should be 
made for the future. In doing this, to the extent consistent with 
maintaining the privacy of voters, the study should review all data 
relevant to the election, including computer records relating to the 
registration and verification of memberships, and the process of 
voting itself. The study group also should have the ability to 
interview those who played key roles in the process, including staff 
at ICANN and at the outside vendor, election.com.

These records should also be made available to the public, so there 
can be independent scrutiny of the underlying facts necessary to 
evaluate the election. So too, records of interviews with staff 
should be maintained and made available for review by the public.

6.  *The board should devote sufficient resources to conducting the 
study.* Obviously, resources will be required in order to implement 
the principles outlined above. The board should ensure the necessary 
resources are made available so that the study group can do its job. 
There should be a budget for the study and staff available to 
facilitate its work.

***

The study to be commissioned at the Los Angeles meeting is important 
to the future of ICANN. The board must do this study right, so that 
its conclusions will command broad acceptance by the ICANN community. 
Any effort to pre-determine the conclusions of the study by stacking 
the deck of who does the study, how it is done, or what results it 
should reach, will simply undermine the credibility of those results, 
and ultimately, the credibility of the board itself.

Each of us would be pleased to assist you and the board on this 
matter in any way that we can.


Sincerely,

Jerry Berman
Executive Director
Center for Democracy and Technology

Scott Harshbarger
President
Common Cause

Rick Weingarten
Director, Office for Information Technology Policy
American Library Association

Stefaan Verhulst
Director
Programme in Comparative Media Law and Policy
University of Oxford


cc:	ICANN Directors and Directors-elect
	Mike Roberts
	Andrew McLaughlin
	Louis Touton, Esq.