June 2, 2000

Esther Dyson
Chairman
Internet Corporation for Assigned Names and Numbers
Suite 330
4676 Admiralty Way
Marina Del Ray, California 90292

Re: Comments of the Center for Democracy and Technology and Common Cause Regarding the Nomination Rules for ICANN's At-Large Board Elections

Dear Esther:

The Center for Democracy and Technology and Common Cause are pleased to submit these comments regarding the proposed Nomination Rules for ICANN's At-Large Board Elections. The Draft Rules set forth are a good first step towards a thoughtful and deliberative dialog by the ICANN community, and we commend ICANN for considering the comments of the public in its rule-making. We believe that important changes in the Draft Rules are needed to ensure that the crucial nominating process for the election is fair and legitimate.

Our review of the Draft Rules is informed by two principles that we believe should guide ICANN in its creation of election rules:

1. ICANN should abide by principles of transparency and fairness in establishing the rules of the election. ICANN has already been subject to criticism on this account, and such criticism undermines the vitality of the election rules, which in turn are crucial to fostering the legitimacy of ICANN. It is essential that ICANN now work doubly hard to ensure openness in its election processes, a level playing field for all candidates, and easy access to the ballot and the voters by a wide cross-section of the interested Internet community.
   
   
2. The underlying goal of this election - to provide representation to the Internet user community "at large" - must be kept foremost in mind when setting the election procedures. Many key constituency groups already have representation on the ICANN board through the "supporting organization" seats. It is important that the structure and procedures for this election be dedicated to ensuring that it achieves its goal of providing a voice to the general Internet user community.
   

1. SELF-NOMINATION SHOULD BEGIN EARLIER IN ORDER TO CREATE A LEVEL PLAYING FIELD FOR ALL CANDIDATES -- It is important that ICANN establish a level playing field between candidates nominated by the Committee and those nominated by petition. There should be no electoral "inside track" for candidates put on the ballot by the Committee. In this light, we are concerned that the schedule proposed contemplates that the official nominations process will conclude by the end of July, and the self-nomination process start only then. We see no reason why the self-nominating process cannot begin earlier, while the official process is underway.
   
   There is, to be sure, some value in the electorate knowing the nominees selected by the Committee in order to decide whether to support a petition candidate. But that value is outweighed by two competing considerations.
   
   First, the proposed time period for self-nominations is very short, and occurs during August, which is traditionally a time when many people are on vacation and unavailable. The petition process would be more credible if more time was provided for it.
   
   And second, the fact that the Committee nominees will be selected a full month before the petition nominees creates at least the appearance that the former will have an electoral advantage over the latter. Even if "formal" campaigning does not start until after the petition process is concluded, the identities and qualifications of the Committee nominees will be circulating in the community well in advance of the successful petition candidates. This lead time may provide an advantage to the officially nominated candidates. Particularly because the rules for campaigning have not yet been set, and the community thus does not know what kinds of campaigning will take place, any possibility that the official nominees will enjoy a "head start" over the petition nominees should be eliminated.
   
   Accordingly, we urge ICANN to allow the petition process to take place concurrently with the Committee's nominating process.
   
   
2. IN SELECTING NOMINEES, THE NOMINATIONS COMMITTEE SHOULD TAKE INTO ACCOUNT THE SPECIAL ROLE OF THE AT-LARGE MEMBERSHIP. For the reasons stated above, we strongly urge the Nominations Committee to select as nominees individuals who not only have the interest and energy to fulfill the duties of a board member, but also those who can best serve the role of At-Large board members. As we have noted above, the other major defined Internet constituency groups already have representation built into the structure of the board through the supporting organizations. The point of these At-Large seats is to represent the public, non-commercial user community. It is imperative that this goal remain foremost in the mind of the Committee as it selects its nominees.
   
   
3. THE NOMINATIONS COMMITTEE SHOULD BE REQUIRED TO SELECT SEVERAL CANDIDATES FOR EACH BOARD SEAT. The proposed rules do not specify how many nominees the Committee intends to name for each seat. In principle, the Committee could select more than one nominee for each seat, and we strongly recommend that it do so. This would provide a greater opportunity for voter choice. It is certainly possible, particularly given the high barrier to entry set by the petition process, about which we comment below, that no petition candidates will qualify to be added to the ballot. In such an eventuality, there will be only one candidate on the ballot if the Committee does not nominate more than one individual to each seat. This possibility, which we believe is not unlikely, would result in a sham election, thereby harming ICANN's quest for legitimate elections. Accordingly, and to avoid this outcome, we recommend that the Committee seek at least three officially nominated candidates for each seat.
   
   
4. SELF-NOMINATION SHOULD BE MADE EASIER AND REQUIRE A LOWER THRESHOLD OF SUPPORT. The proposed rules set a high barrier to entry onto the ballot. The rules require a candidate to receive the support of 10 percent of the members in his or her region in order to gain self-nomination for the ballot, and those members must live in at least two countries.
   
   We seriously question whether the 10 percent threshold is too high. Candidates seeking self-nomination will have no ability to contact ICANN members and direct their attention to his or her qualifications. Thus, the self-nomination process depends entirely on members of ICANN taking the initiative of going to the official ICANN candidate site to review the information posted about each potential candidate. Under the proposed election schedule, the only relevant window of opportunity for this will be a two-week period in the middle of August, which as we noted above, is a time traditionally when many people are on vacation. We have a serious concern whether there will be sufficient traffic to the candidate web pages to engage enough members so that the 10 percent threshold is a realistic goal for any candidate to reach.
   
   The countervailing concern, apparently, is that too many candidates will qualify for the ballot, thereby jeopardizing the goal of "keeping the ballot to a manageable size." We do not believe that this fear of providing the possibility for robust voter choice justifies setting unreasonably high petition requirements. It is not clear what is considered to be a ballot of "manageable size," - 20 candidates? 10 candidates? 1 candidate? - or why the electorate will not be able to manage a large ballot. (After all, given that the election will be conducted on-line, there are very low transaction costs for a ballot with multiple candidates.)
   
   If anything, we believe that the barriers to entry should be set low for the initial election. We suggest that a petition candidate be required to obtain no more than two percent of the membership in order to qualify for the ballot. Because of the low membership in some regions, this two percent requirement should be qualified by a floor of at least 25 members on the petition.
   
   Even these numbers may be difficult to reach, given the short time window for potential candidates to demonstrate support, the time of the year when this process will occur, and the fact that relatively few members may find their way to the self-nomination web site.
   
   If these guidelines result in too many candidates gaining access to the ballot, and this leads to problems with voter confusion or with the "management" of the ballot, then the threshold can be raised for the future. Any fixed number requirement - whether it is two percent or ten percent - will be to some extent arbitrary. But particularly given the closed nature of the Nominating Committee, and at least as an initial matter, the Committee should err, if at all, on the side of a lower barrier to entry.
   
   
5. MEMBERS SHOULD BE ABLE TO SUPPORT MORE THAN ONE CANDIDATE FOR SELF-NOMINATION. Much the same is true of the Committee's curious proposed rule that a member can support the petition only of a single candidate for self-nomination. This exacerbates the proposed 10 percent threshold requirement by making it even harder to appeal for support to the members. But it also seems unreasonable on its face. A member might well believe that two or more proposed candidates could make excellent board members, and therefore would support putting both of their candidacies before the electorate. Indeed, the process of debate during the campaign should, in principle, provide a useful opportunity for the members to educate themselves about a variety of candidates. It is perfectly rational for a member to believe that more than one candidate is worthy of inclusion on the ballot in order to participate in the dialogue of the campaign. For the proposed rules to limit members to supporting only one potential self-nominated candidate at this early stage is unnecessary, and works against the openness and accessibility of the ballot that should be key goals for the election process.
   
   
6. ICANN MUST DO MORE TO ENSURE CANDIDATE ACCESS TO THE VOTING MEMBERSHIP. We understand the reluctance to give proposed nominees the addresses of the membership and the serious issues of privacy and potential abuse that are raised.
   
   On the other hand, it is essential for the fairness of the election that candidates be able to communicate with the voters, and that the voters be able to communicate with each other. To the extent that ICANN is the exclusive conduit and filter for communications with and among the membership, ICANN will face a great burden and will be subject to concerns about openness.
   
   Therefore, we urge ICANN to pursue further, better ideas for communication regarding the election beyond those spelled out in the rules, and perhaps including:
   • Creation of an open mailing list of members available to all candidates, possibly started using an opt-in for interested members.
   • Creation and promotion of deliberative discussion spaces such as the ICANN public forums for conversatons with and among the membership.
   • Regular mailings to members that include unfiltered statements by all of the candidates.

   At a minimum, we urge ICANN to send no less than weekly email to members, describing the process underway and providing links to the web pages of the candidates seeking support.
   
   

7. WE SUPPORT THE CONFLICT-OF-INTEREST PROVISIONS THAT THE COMMITTEE PROPOSES FOR SELF-NOMINATED CANDIDATES. Voters are entitled to know relevant information about the employment or ownership interests that potential candidates may have. Such information is highly relevant to the voters' choice, and should be provided as part of the nomination and campaign process.
   

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