June 5, 2000 Letter to Esther Dyson

June 5, 2000

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

Re: At-Large Board Elections
Dear Esther,

As you know, Common Cause and the Center for Democracy and Technology have had an active interest in the creation and implementation of self-governance procedures for ICANN. We are now writing to you to provide some comments on how the election process is progressing since Cairo, some suggestions for moving forward, and some specific ideas about the draft rules for nominations.

Funded by the Markle Foundation, our two organizations have been engaged with the ICANN community in seeking to ensure that important democratic values of openness and inclusiveness are respected in the development of innovative rules of self-governance for ICANN. The challenges that ICANN faces in this arena are truly unprecedented, and we applaud your leadership in ensuring that careful consideration in given to these important questions.

In this letter we set forth some overriding concerns with several of the broader framework steps already taken or contemplated by the ICANN staff and board in structuring the election process to date, and discuss two overriding principles that should inform the many decisions left to be made. We also provide specific comments on the rules for self-nomination recently proposed by the Nominating Committee.

Background

Our initial work in this area culminated with a report we presented to the Board at the Cairo meeting, "ICANN's Global Elections: On the Internet, For the Internet." In this report, we discussed ICANN's mission and the goals for ICANN elections. We also enumerated a series of major concerns which members of the ICANN community expressed to us about the preliminary plans for structuring the election procedures. We assessed various options for conducting the elections, and then set forth a series of recommended principles.

These principles continue to have vitality in informing the ongoing work of ICANN in developing election procedures, and so we wish to restate them here:

The Board and the ICANN community engaged in serious discussion of the election procedures at the Cairo meeting. We were pleased to have had the opportunity to present our report and our recommendations to the Board. We appreciated the thoughtful consideration given to our views.

We also were pleased that the Board took several key steps in line with our recommendations. Most notably, the Board voted at the Cairo meeting to change the ICANN by-laws in order to provide for a direct election by ICANN members of the At-Large board directors. This represented a welcome departure from the then-existing plan to have members select an At-Large Council, which would in turn select the At-Large board members.

The board at the Cairo meeting also adopted a modified schedule for the election of the At-Large directors. The original approach had contemplated nine At-Large directors to be selected this year. In light of the decision to change the voting procedures to direct elections, the board decided to select five seats this year, study the procedures used, and then make modifications before electing the remaining four members. In the interim, the terms of four initial At-Large directors would be extended. We believed that this decision was a reasonable accommodation of the various interests at issue.

We want to stress, however, that it is essential that the board abide by the original plan to have nine board members elected "At Large." The decision to bifurcate the election - and to proceed in stages with the election of the first five seats now - should in no way be construed as license to consider diminishing either the number of "At Large" board seats or the number of seats elected by the ICANN membership as a whole.

Comments on ICANN's Election Process Since Cairo

Since the March meeting, the Board and the staff have taken several important steps to implement the Cairo plan. In early May, the board announced the formation of a Nominations Committee and an Elections Committee. The former is charged with nominating a slate of candidates to stand for election, as well as devising procedures for other candidates to petition onto the ballot. The latter is charged with formulating specific procedures to carry out the election, and with promulgating rules regarding campaigning and the prevention of vote fraud, as well as the monitoring and oversight of the election.

The Nominations Committee recently issued a call for recommendations and expressions of interest for potential candidates to be officially nominated, and the ICANN staff also published proposed procedures for candidates to petition onto the ballot. Public comments on the latter are sought by June 5.

Our comments in this letter are informed not only by the eight general principles contained in our Cairo report, but also by two additional considerations which we believe are of overriding importance for evaluating this phase of the elections work.

First, it is crucial that ICANN abide by principles of transparency 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.

The recent criticism has stemmed from actions taken by ICANN in establishing the Elections and Nominating Committees. These Committees were formed by the board at non-public meetings, and then simply announced to the ICANN community. There was no opportunity given for public input as to the members of the Committees. Further, ICANN may have violated its own by-laws that govern the public release of minutes of its non-public meetings.

Such actions seriously undermine ICANN's public credibility. It is undoubtedly true that step-by-step consultation with the ICANN community will slow the elections process, yet such consultation is crucial if that process is to enjoy the confidence of the community. This problem is exacerbated if ICANN violates its own by-laws in the process of evading public consultation.

The ICANN community has much at stake in the composition of the Elections and Nominations Committees. These bodies will have the major role in not only setting the rules of the election, but also ensuring the integrity of them. Rather than make the composition of the Committees a fait accompli, it would have been much preferable to have either solicited comment on what types of individuals should be asked to serve on the committees, or to announce a proposed committee membership and taken comment on whether all appropriate viewpoints were represented. As it is, a crucial step in the election process was taken in secret and wholly without the participation of the ICANN community. Again, the importance of this lies in the missed opportunity for fostering public confidence in the election process to follow.

Much the same can be said about the decision - already apparently made - that the five seats at issue will be filled by geographic region, with members of a region voting for a representative from that region. This is a fundamental rule of how the election will be conducted; indeed, it defines the basic structure of the election. Yet so far as we are aware, this rule was set without prior notice to the public, without the solicitation or consideration of public comment - indeed, without even so much as a public explanation of why the board adopted this rule. We are not here saying the rule is unreasonable; simply that it is unexplained. Again, this violates what we believe should be a basic tenet of how ICANN should conduct the election process.

Second, it is vital that the underlying goal of this election - to provide representation to the Internet user community "at large" - be kept foremost in mind when setting the election procedures. The goal of this election is to elect board members who will represent the Internet user community "at large." Other 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. This means, we believe, that the constituency groups already represented on the board should not be allowed to capture or unduly influence the procedures for this election in a way that would threaten to degrade the ability of the general users of the Internet to select - and to believe that they have had a fair opportunity to select - board members who reflect primarily their interests and vision of who should be a board member..

Again, we believe that key actions already taken by the board do not well serve this goal. The Nominations Committee, for example, is composed of a majority of current board members. As we have noted, the committees established to conduct the election should have "a high degree of independence from the Board of Directors and other institutional players." We are concerned that this goal is not being met. The Nomination Committee is dominated by the board, draws its membership from the supporting organizations, and contains no identifiable voice from within the dissenting communities that have expressed so much concern about various elements of ICANN's activities.

Much the same is true of the Elections Committee. While there are members of the Committee who by virtue of their expertise or background are unquestionably outstanding choices to serve on this Committee, we have a concern that the majority of the Committee is drawn from a combination of current board members and those who are identified with the constituencies already represented on the board.

While this fact does not fatally compromise the integrity of the election process, it certainly puts pressure on the specifics of the rules to be established by these committees to ensure that the procedures are fair, open and accessible. It means that ICANN must go even further to foster trust and openness in the election rules. Given the closed nature of the initial steps in the process, and given the composition of the committees that have been established, every effort should be made to foster broad-based participation in the election.

To that end, we commend ICANN and its Committees for the steps it has already taken to increase openness and transparency, such as --

A detailed set of comments on the proposed nomination rules has been submitted to the ICANN public forum and is included below.

Comments on the Proposed Rules for Nominations

With our two overriding principles in mind, we wish to offer the following specific comments in response to the proposed procedures for nominations to the ballot:

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.

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 remains foremost in the mind of the Committee as it selects its nominees.

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.

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.

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.

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 conversations 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.

The work of both the Nominating Committee and the Elections Committee will break new ground in formulating electoral policies for what will be the first international, online elections. We do not underestimate the difficulty these Committees, and the board as a whole, face in crafting such rules. Yet the principles that should guide this work are the same ideals that inform all democratic efforts at self-governance - transparency, inclusiveness and fairness. Although the board has made a good start, more can be done in service of these overriding goals. The legitimacy of these elections, and hence the legitimacy of ICANN itself, will be enhanced if you do so.

We look forward to working with you in the coming months as this process moves forward.

Sincerely,