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 staffıs 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 ICANNıs internal governance. To be credible, the study should be conducted independently of ICANNıs 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 ICANNıs 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 Internetıs 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.
Joe Sims, Esq.

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