The Center for Democracy & Technology (CDT), Common Cause and the Programme in Comparative Media Law and Policy (PCMLP - Oxford University) offer the following concerns and comments on the ICANN Staff Recommendation on At-Large study implementation.

General Framework and Principles

We support the staff's conception of a study that relies on self-generated studies from within the ICANN and Internet community in order to propose and explore different solutions to the problems of ICANN.

We support the creation of a formal Study Committee to coordinate these outside studies and to help guide them toward community consensus.

ICANN's responsibilities to the study effort

A largely outsourced approach to the study cannot and should not, however, absolve ICANN of important responsibilities it has to the Internet community as a whole. ICANN's founding documents, public statements made by its officers, and its agreements with the U.S. government all have committed ICANN to meaningful representation of the Internet user community on its board of directors.

We believe that ICANN's requisite commitment to the concept of public representation should guide the Staff Recommendation and consequently, the implementation of the At-Large Study.

The Staff Recommendation on At-Large Study Implementation reiterates this principle by acknowledging that "it has been assumed from the time of ICANN's creation that there must be some mechanism for the Internet community as a whole to provide input and accountability to ICANN ­ and to help to more broadly legitimize the decisions and actions of ICANN."

CDT, Common Cause, and PCMLP strongly believe that the nine Board seats currently reserved for At-Large Directors fulfill that purpose, and are necessary to counterbalance the nine seats held by the Supporting Organizations. In the past, we have strongly opposed any effort that appeared to put at risk these nine At-Large seats. It has been our consistent view that the so-called "Cairo compromise" contemplated a post-election study of how best to select the At-Large directors, not whether to have any At-Large directors at all.

However, the board in Yokohama expanded the scope of the study to review "whether the ICANN Board should include "At Large" Directors[, and] if so, how many such Directors there should be." We believe this expansion of the study was unwarranted and unnecessarily opened up a question that should by now be settled in favor of ICANN's commitment to have a strong public voice in its internal governance.

Accordingly, we urge the Board to keep ICANN's organizational commitment to public representation in mind ­ what the staff paper calls the "logically inescapable" principle that "the Internet community should have some appropriate input into ICANN policy decisions" ­ while evaluating the Staff Recommendation on the At-Large Study Implementation.

We offer the following specific comments on the staff proposal:

1. The Study Committee should spend significant effort on inter-study coordination, and general outreach.

   We strongly support the staff report's recognition of the Study Committee's responsibility to "facilitate and encourage" studies outside its own. Effective conduct of these studies, however, will require a substantial effort at communication and coordination on the part of the Study Committee. Study processes should be diverse, but also transparent and open in their activities. We hope, therefore, that the Board will provide the Study Committee with more specific indications of its proper role, including:

   • The establishment and maintenance, throughout the study process, of a web-based forum for public input.

   • A fully transparent and public Committee process, including open meetings of the Committee with prior notice to the Community, and public access to all studies, reports, memoranda and other documents considered by or generated by the Committee.

   • The creation of a Study Committee web site, for intercommunication and data sharing both among independent study groups and between those study groups and the Study Committee.

   • The creation of electronic mailing lists, for updates on the study process, intercommunication between its participants, and discussion by the public.

   • Several in-person meetings sponsored by the Study Committee, in a geographically-diverse set of locations, to conduct public outreach and solicit input.

   • A substantial workshop, sponsored by the Study Committee, about the study of the At Large directors, to take place in conjunction with the ICANN Meeting in Melbourne.

   • Development of suggested timelines for the conduct of independent studies.

   • A substantially open drafting process, with full justification of any conclusions reached in the Committee's final report to the Board.

   In addition, the Board should explicitly charge the Study Committee with on- and off-line outreach, coordination, and education, and should expect vigorous activity from the Committee.

2. ICANN should guarantee adequate resources to the Study Committee.

   Since the Study Committee will play a critical role in securing the public's long-term voice in ICANN, the Board should fully support the Committee's work. It cannot reasonably do so without assuming responsibility for funding the Committee's activity. ICANN resources should be used to provide at least a substantial part of the Study Committee's operating expenses, and the Board should direct staff to explore additional funding sources.

   Should ICANN fail to make funding a top priority, the Internet community may perceive a lack of commitment to the study effort and could prevent meaningful consensus from ever being reached. Further, a lack of funding will likely cripple the Committee's ability to perform effectively the necessary co-ordination tasks outlined above.

3. The Study Committee should provide election data swiftly, widely and in a manner consistent with personal privacy.

   The Study Committee should, consistent with ICANN's commitment to personal privacy of its members, take responsibility for public provision of all data regarding the At-Large Membership's registration and voting processes. In doing so, the Study Committee should consider available methods of protecting individual privacy, such as withholding election data that is personally identifiable and not critical to the study effort (such as name and address), or transforming election data that is personally identifiable but critical to studying the election (such as IP address and member ID number), so that personal identities are not disclosed.

4. In its consideration of the Board's structure, the Study Committee should explore the larger context of decision making within ICANN.

   The ICANN Bylaws call for the Study Committee to consider both whether there should continue to be At Large directors and, if so, how many. We believe that these questions about the Board's structure can be addressed only in the larger context of considering the number of Directors from all of ICANN's constituencies.

   Recommendations from the Study Committee about the structure of the Board structure could well lack legitimacy unless the overall questions of the Board's composition are fairly included within the study. Accordingly, if questions about the existence and number of At Large directors are to be put into the study agenda, we urge the Board to properly shape the mission of the Study Committee by providing it with a sufficiently broad mandate to study the overall composition of the Board as a whole.

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