The Center for Democracy and Technology (CDT) and Common Cause submit the following comments about proposed revisions to the ICANN bylaws relating to At-Large Directors.

As drafted, the proposed revisions would make a sweeping and unnecessary change to the structure of the ICANN Board. The revisions appear to eliminate the current guarantee that there will be nine At-Large Directors. Starting as early as 2001 the number of At-Large Directors would be reduced, and it would require an affirmative act of the board to reinstate them. Such a change is not necessary to implement the Board's At-Large resolution from Cairo, and we strongly encourage the Board to forgo the unneeded revisions of the bylaws that appear to reduce the At-Large seats.

The revisions are designed to establish new procedures for election of At-Large directors, as authorized by a resolution of the Board at the Cairo meeting in March. The bulk of the proposed revisions make authorized changes that simply institute the direct, staged election and study approved in Cairo. For the most part these revisions are a fair and sound implementation of the Cairo resolution.

However, some of the proposed revisions go a step further than is needed to implement either the spirit or letter of the Cairo resolution. As explained in detail below, the revisions would eliminate the current requirement that there should be nine At-Large Directors. Taken as a whole, these revisions would allow the number of At-Large Directors to shrink from nine currently to five in November 2001 and zero in November 2002. Further board action would be needed to add At-Large seats back into the Bylaws.

The proposed revisions create a presumption that there will be a reduction in At-Large directors. Any such fundamental change to the structure and governance of ICANN would be a radical departure from the founding principles of balance on which the legitimacy of the organization is based.

ICANN can conduct the comprehensive study of At-Large membership required in the Cairo resolution without changing the balanced makeup of the board. The Board should retain the existing requirement that there be nine At-Large Directors and drop the controversial revisions to Article V that would change that fundamental balance.

DETAILED ANALYSIS

The proposed revised bylaws accomplish the goals outlined by the Board's Cairo resolution. The question is whether they move radically beyond those goals as well.

The bulk of the revisions are a straightforward implementation of the direct, staged election and study:

• First, the proposed bylaw changes would strike Article II of the current bylaws in its entirety. Since this Article is the basis for the At-Large Council and the indirect election of At-Large Directors, it seems reasonable to repeal it in toto and craft an entirely new Article.

• The revisions propose a new Article II. Section 1 provides that ICANN shall not have "members" for purposes of California corporate law. Sections 2 and 3 provide that five At-Large directors shall be selected by November 1, 2000 and shall serve until the annual meeting in the fall of 2002. Section 5 provides that after election of the five directors ICANN shall undertake a "comprehensive study" of the At-Large membership. While some of these provisions are controversial, they are in keeping with the Cairo resolution.

• Revisions to other Articles make conforming changes. Section 1 of Article V extends the terms of five initial At-Large directors until their replacements are elected in Fall 2000. It extends the terms of the other four of the initial At-Large directors until Fall 2001.

"Section 4. QUALIFICATION OF DIRECTORS AFTER THE INITIAL BOARD Each Board after the Initial Board shall be comprised as follows: É (iv) Nine (9) At Large Directors, consisting of the At Large members of the Initial Board or their successors selected pursuant to the process set forth in Article II hereof;" (Art. V, Sec. 4)

The revised section would change this make-up:

"(iv) The Nine (9) At Large members of the Initial Board during their terms of office prescribed in Section 1 of this Article; (v) Successor At Large Directors seated according to Article II, Section 2 of these Bylaws;" (Proposed Art. V, Sec. 4)

In addition, the revisions would require that "no At-Large Director shall continue to hold office after the expiration of his or her term..." (Proposed Art. V, Sec. 9(c)) -- unlike all other Directors, who hold office until their replacements are seated.

Though a subtle drafting change, taken as a whole the revisions change the simple guarantee of "Nine (9) At Large Directors" and reduce the required number of At-Large directors:

• Four initial At-Large directors would serve until Fall 2001.
• Five directors would be elected in Fall 2000 and serve until Fall 2002.
• The ongoing requirement of nine At-Large Directors would be removed, and nothing in the revised bylaws would provide for replacement of the nine At-Large members following the expiration of their terms.

Thus, there will be a 19-member board through Fall 2001. Absent further amendment to the bylaws, the revised bylaws only require a 15-member board, including five At-Large directors, as of Fall 2001. And as of Fall 2002, the revised bylaws only require a 10-member board, with no At-Large directors.

[We note that Article V, Sec. 6, would still provide that "at least one citizen of a country located in each of the geographic regions...shall serve as an At Large Director on the Board...at all times." It is not clear how this provision fits with the other changes. Perhaps it would be interpreted to require five At-Large Directors, instead of the current nine.]

Such an outcome would be a major change from the current bylaws guarantee of a balanced board containing nine At-Large seats. Many in the ICANN community view the At-Large seats as a fundamental feature of ICANN's governance structure. As the Board itself noted in its Cairo resolution, "it is important that the various stakeholders that do not or cannot easily participate in the ICANN process through the Supporting Organizations have a voice in the development of ICANN policy."

Rather, the Board should adopt a more limited set of revisions that more directly implement the Cairo resolution. Article V, Section 4 should be left intact. And to allay community fears that the revisions are a pretext to eliminate At-Large directors, Article V, Section 9 should allow At-Large Directors to stay in office until their successors are chosen, just as other Directors may do.

The primary rationale for the proposed revisions is the Cairo Board resolution on At-Large elections. While that resolution calls for ICANN to --

"initiate a comprehensive study of the concept, structure, and processes relating to the At Large membership"

On a final note, the revisions to Article II establish a Nominating Committee and Elections Committee for the At-Large elections. It is not clear that ICANN needs to enshrine these committees in the bylaws. (In fact, the committees have been operating actively for the last two months.) Should it do so, we must renew our objection to the structure of the committees. There is no reason that Board Directors must dominate the Committees, and ICANN should not codify a requirement that 4 of 7 Nominations members and 3 of 7 Election members be Directors.

[Note: A more detailed discussion, including background information on the ICANN election and the resolution in Cairo, is available as an Appendix to these comments.]

CONCLUSION

If these revised bylaws are adopted as drafted, the bylaws will no longer provide for nine At-Large Directors. Absent further action by the Board, the number of At-Large directors will drop from nine to five next year, and from five to zero the year after. In other words, in the name of a "clean sheet" study, the proposed bylaws create the presumption of a radical restructuring of ICANN to exclude an important public voice from its governance.

If this is the intent of the board, it should say so explicitly, so that this position can be debated openly by the ICANN community. If this is not the intent of the board, it should make clear its commitment to the role of At-Large directors, even as the board studies how best to provide for their selection.

Changing just a few elements of the proposed revisions could easily implement the Cairo resolution without raising the sensitive issue of Board makeup. We strongly encourage the Board to adopt a narrower set of revisions that do not appear to eliminate such a fundamental feature of ICANN's structure.

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