CDT: ICANN Study

A Study of the ICANN At-Large Elections by
Common Cause and the Center for Democracy and Technology

The design and evaluation of an election process is best understood in the context of the mission of the body to be elected. An early and striking finding of this study is how many of the basic questions about the mission of ICANN, and the role of the elections for the ICANN Board, remain open and contentious.

2.1. ICANN and its Origin

ICANN, a private non-profit corporation organized under the laws of the State of California, was created in 1998 as part of an effort by the United States government to privatize certain technical management functions of the Internet. ICANN reached an agreement with the U.S. government to assume management responsibilities for the Internet's Domain Name System (DNS) and other central technical functions concerning numbering and protocols. The DNS is probably the most publicly understood part of ICANN's responsibilities, as it coordinates Internet addresses (e.g., www.icann.org) and translates them into Internet Protocol (IP) numbers understood by computers (e.g., 157.150.192.2), making it possible for computers to communicate across the Internet and allowing users to efficiently navigate the network.

As spelled out in a Memorandum of Understanding with the U.S. government providing for DNS oversight by ICANN, and subsequently in ICANN's articles of incorporation and bylaws, ICANN's mandate is to ensure the universal connectivity of Internet computers by establishing technical standards for network communication and coordinating the assignment of Internet names and numbers. More detailed background on ICANN and its history is provided in Appendix III.

There appears to be some agreement in the Internet community on several key principles related to ICANN:

ICANN's primary mission is to develop sound policies regarding the operation of the domain name system and the allocation of IP numbers. These policies are to be developed in a bottom-up, consensus-based manner, driven first and foremost by the technical experts and stakeholder representatives participating in ICANN's supporting organizations and working groups.

ICANN must operate on a global basis to be effective. Because the Internet itself is global in nature, domination of Internet policies by any one country or region would damage its legitimacy and effectiveness, as would domination of ICANN by any single interest group at the expense of other stakeholders.

ICANN lacks governmental powers and it cannot impose its rules by fiat. Moreover, ICANN is subject to procedural and structural constraints on its activities. Its articles and bylaws impose procedural limitations on its actions. It is subject to U.S. law and the law of the State of California in which it is incorporated, and much of its activity requires the approval of the U.S. Department of Commerce. A primary means of enforcement of its policies is through its contracts with registries, registrars, and other third parties. While ICANN cannot force anyone to enter into a contract, its unique position in the management of Internet technical operations does give it a unique level of control over the registries, registrars, numbering authorities, and others involved in those operations.

Agreement on these principles is important. But there is a lack of consensus on key questions about the scope of ICANN's mission - and the implications of its authority.

2.2. ICANN's Mission

ICANN's authority is of central importance because of the great power that inherent to the regulation of the domain name and addressing system and the control over Internet root servers. [2] In a highly decentralized network like the Internet, the naming and numbering function is a key point of centralized control - indeed, virtually the only one. The possible power to grant or withhold domain names has the potential to be used - covertly or overtly - to impose policies on, and exercise control over, all domain name holders. Such a control point could be sought by interest groups, organizations, or even governments to enforce policies that would impose their own interests on the operation of the Internet.

While many in the ICANN community state that ICANN's mission is limited to the "technical management of central Internet naming and numbering functions," we have discovered a wide divergence of views as to what constitutes the proper scope of "technical management."

Because of the power inherent to control of the root server and other central technical systems, and because of the potential that ICANN might itself someday be swayed by the temptation posed by such power, a dominant view in the Internet community is that ICANN should be strictly limited to technical decision making. In theory, ICANN should not develop and impose policies, the impact of which is unrelated to the technical operation of the Internet.

An alternative view places ICANN more squarely in the role of a governance body for the Internet, and sees ICANN as a powerful new alternative to government regulation that can be appropriately used to develop and enforce policies across the Internet. Many have already noted that ICANN could prove an attractive mechanism for dealing with enforcement of the law online, as well as criminal activity, consumer fraud, intellectual property disputes, or undesirable content. [3]

A third view is somewhere in the middle. By this view, ICANN should - to the extent possible - be limited in its mission to technical issues relating to the naming and numbering functions of the Internet. But those who adhere to this view argue that important policies with broad implications will inevitably be set by ICANN, even assuming it operates only within the sphere of its narrow technical mandate. On one hand, the intellectual property community might view ICANN as an attractive alternative to the courts for arbitrating trademark disputes on domain names. On the other hand, the regulation of domain names alone could easily embroil ICANN in thorny questions of politics or social policy, even if it seeks to avoid them. [4] Thus, even while it is true on one level that the scope of ICANN's mandate is limited to addressing technical matters of Internet operations, it is true on another level that decisions with potentially far-reaching non-technical consequences can inherently be bound up in the disposition of seemingly technical questions.

How one views this debate about the mission of ICANN significantly influences how one views the questions relating to the election of ICANN's board. To the extent that one sees ICANN as properly limited to a technical role of "making the Internet's trains run on time," the election of the At-Large board members should be structured to emphasize the values of efficiency, and the technical competence of those elected. But to the extent that one sees ICANN as involved - whether by design or by inherent practice - in setting policy for the Internet that has ramifications beyond the merely technical, then some broader, more inclusive participation in the ICANN elections, and some more representative "public" voice on the ICANN Board, becomes correspondingly more important.

2.3 The Goals of ICANN Elections.

ICANN, like all corporations, began corporate existence with an interim board appointed by its founders. One of the first tasks faced by this interim board was to design a process to replace itself - in other words, to craft a mechanism for the selection of a permanent board on an ongoing basis.

The organizational structure created by ICANN's founders and its interim board calls for a 19-member board of directors to govern ICANN. The president of ICANN, who is selected by and serves at the pleasure of the ICANN Board, will occupy one board seat. The 18 remaining board members will serve three-year terms. Half will be chosen by ICANN's three "Supporting Organizations" - the addressing, protocol, and domain name groups that provide a formal, institutional forum within ICANN for companies and organizations from the business, technical, and noncommercial communities. The other nine members of the board are to be selected through an At-Large election of the ICANN membership. Additional detail on the structure of ICANN is contained in Appendix III.

When we sought opinions on the purpose of the At-Large election, participants in the ICANN Election Study provided a diversity of responses. This is not surprising given the diversity of views about the underlying questions concerning the scope and limits of ICANN's mission.

While there appears to be little consensus on the ultimate role of the election, several major themes have emerged among the responses that we have heard:

To give a voice in ICANN's governance to those bound by and affected by ICANN's decisions - a diverse population of potentially tens of millions of people all around the world. A major goal for many is to ensure that ICANN acts "with the consent of the governed." Others articulated this goal as "providing a voice in ICANN to those not already represented in the Supporting Organization structure."

To complete the election by September 30, 2000 in order to allow the appointed At-Large board members to be replaced, and to inject an elected voice into the board's ongoing decision-making as quickly as possible.

These goals are in tension with each other. For example, including millions of potential voters who today have little knowledge of ICANN and are unlikely to vote creates the potential for capture by a motivated interest group. On the other hand, completing the election by September 2000 will make it difficult to have an educated electorate that will participate broadly in the election and thereby diminish the prospect of capture.

We believe that many of the ongoing concerns about ICANN's proposed election result from the fact that these goals cannot be fully reconciled. Any election system undertaken in the short term will inevitably be compromised by fundamental problems.

2.4 Current Plans for the At-Large Election

Over the last year, the interim ICANN Board has developed and begun to implement a plan for the At-Large election. The current plan has been enacted through a combination of bylaws changes and board resolutions based on committee reports and community debate. Its major features are:

Indirect Elections - Members will elect an At-Large Council of 18. This council will in turn elect the nine At-Large board members, through a process that to-date has not been spelled out.

Two-stage election - The initial election will take place in two stages. Six of the 18 At-Large Council members will be elected first, and they will in turn select three of the nine At-Large board members. The remaining 12 At-Large Council and six board members will be elected subsequently.

Geographic diversity - ICANN has divided the world into five geographic regions (Africa, Asia/Australia/Pacific, Europe, Latin America/Caribbean islands, North America). According to ICANN's bylaws, there must be two At-Large Council members and one At-Large board director from each of those five regions.

Terms - Like their counterparts on the Supporting Organization side of the At-Large board, the At-Large board members will serve staggered three-year terms with three seats up for election each year (after the initial elections). The terms of election for the At-Large Council mirrors this structure.

2.5 Assumptions

Certain objections to the current election plan are beyond the scope of this study, because they address basic elements of ICANN's existence and structure, such as the Supporting Organization framework or the overall structure of the board itself, that we believe at this point should be taken as givens. These include:

The basic structure of the ICANN Board, based on a balance between members selected by the Supporting Organizations and members selected in an "At-Large" process.

The goal of the ICANN Board to implement a bottom-up policy development process that relies on input from and consensus building among the parties most impacted.

While the larger thematic concerns that challenge these assumptions are important, we believe they are necessarily outside of the scope of this investigation.

2: An overview of the domain name system, addressing, root servers, and other technical details can be found at http://www.cdt.org/dns

3: For example, in January 2000 two prominent U.S. Congressmen suggested instructing ICANN to establish a ".adult" top level domain to deal with their concerns about Internet content viewed as inappropriate for children.

4: For example, ICANN might be drawn into the realm of international relations - for instance, a decision like whether or not the Palestinian Authority should be granted a country-code top-level domain (ccTLD). It also might be asked to intervene on behalf of individuals whose websites have been high-jacked by oppressive regimes - just as Network Solutions, Inc. was asked to stop traffic to the Radio B92 resistance web site in Belgrade after Serbian forces captured it. Should or will ICANN make judgements on such matters? Are these not decisions that affect the broader public? Likewise, it will be difficult for ICANN to remain neutral if domain name holders use their domains to violate basic human rights or commit criminal acts.