CDT: ICANN Study

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

1.1 Democracy, the Internet, and ICANN

The Internet is rapidly becoming an important part of life for millions of people worldwide, holding out new promise for empowering individuals, promoting economic growth, reinvigorating civil society, and enriching individual participation in government.

As the Internet grows, once arcane questions about who manages its underlying technical systems have taken on new public importance.

In particular, the prospective transfer of control over crucial Internet naming and numbering functions from the U.S. government to a newly created, non-governmental corporate entity, the Internet Corporation for Assigned Names and Numbers (ICANN), has raised urgent questions about how ICANN itself is to be governed. What is the appropriate democratic nature of a private entity vested with the technical management of the Internet? Who should it represent? Who should elect its board? What voice should the public have in its decision-making? In short, to what extent should principles of democracy play a role in the Internet's new technical governance structures?

The public election of directors to ICANN's board, scheduled to begin this spring and conclude by September 2000, demands that the Internet community now address these critical issues of governance.

In theory, ICANN's mission is narrow and technical. But even technical decisions about who gets which names and numbers can inherently have broader policy implications. Thus, ICANN's technical management of the central Internet name system and root servers unavoidably places it in the position of potentially formulating public policy of interest beyond the technical operation of the Internet's infrastructure.

And so, from its creation, there has been a sense that ICANN's unique role requires it to have a system of internal governance that is informed by a broad participation of interested stakeholders worldwide. This sense was embodied in the structural rule that nine members of the 19-member ICANN Board of Directors be elected by some conception of the public "at-large."

What this means, and how to do it, have proven to be vexing questions, raising virtually unprecedented problems of designing a system of democratic electoral procedures on a literally worldwide scale.

ICANN faces a range of fundamental election issues relating to representation, membership rights, candidate qualifications, and voting procedures that were not resolved - indeed, not even addressed - in its original bylaws.[1] Not surprisingly, participants in the ICANN process have developed very different ideas about how to answer these questions, based on very different conceptions of the electorate, representation, legitimacy and indeed, the very purpose of ICANN itself.

The interim board of ICANN has provided one set of proposed answers to these questions, by adopting bylaws that provide the outline of its At-Large election process. This outline has been the product of a great deal of debate within the ICANN community, and in-depth analyses by groups such as the Membership Advisory Committee (MAC).

But the current path towards the At-Large elections continues to raise a multitude of legitimate concerns. While ICANN has adopted a basic framework for the election process and is proceeding to implement it, many have expressed extreme skepticism about whether the election as currently structured will fulfill ICANN's interest in a fair, stable, legitimate, representative, and open election, free from capture by narrow interests.

In a basic sense, ICANN faces an age-old question of governance: How can the benefits and energies of democracy be balanced with the need for reasoned and deliberative decision-making?

ICANN carries a narrow technical mandate to manage the naming and numbering system of the Internet, and many believe that the primary goal of the At-Large elections is to produce directors who are technically knowledgeable and dedicated to preventing ICANN from moving beyond its narrow mission into wider regulatory matters (e.g., imposing content restrictions or taxes on domain name holders).

At the same time, ICANN's legitimacy as an international Internet oversight body rests on providing those affected by its policies with a fair opportunity to participate in ICANN's decision-making. How can ICANN balance these interests and establish an engaged electorate appropriate for its mission? And how can this be done within the short timeframe demanded?

This Election Study does not claim to answer all of these questions. Our goal has been to assess the current state of the ICANN At-Large election; to fairly characterize some of the many voices and perspectives in this debate; to identify and catalog outstanding concerns about the current election process and the range of options for moving forward; and to suggest possible principles for ICANN to adopt that we believe have promise and substantial community support. In doing so, our hope is to provide the Internet community with the basis for a serious debate.

1.2. Background on the Common Cause-CDT ICANN Election Study

This report is the result of a study of the ICANN election process undertaken by Common Cause and the Center for Democracy and Technology (CDT) in December 1999. Common Cause and CDT were asked to evaluate proposed plans for the election of the ICANN At-Large board members, and to make suggestions for improvements to assure a fair election that would enhance ICANN's legitimacy and effectiveness. This study was funded through the generous support of the Markle Foundation, an independent charitable organization based in New York. It was conducted independently of ICANN and is not an official project of ICANN.

Together Common Cause and CDT bring a range of experiences to this study effort:

Common Cause is a leading advocate for openness and accountability in government. A non-profit public interest group based in Washington, D.C., Common Cause brings its knowledge of fair and democratic electoral processes to this study, as well as a fresh perspective on issues of Internet governance. Common Cause was also able to engage electoral experts from a variety of disciplines to provide constructive analysis and recommendations.
The Center for Democracy and Technology (CDT), also based in Washington, is a non-profit public interest group dedicated to promoting individual liberty and democratic values online. CDT has extensive experience with Internet policy and technology issues relating to free expression, individual privacy, and open access to the Internet. Since its formation in 1994, CDT has also been involved with policy issues relating to the technical management of the Internet and domain name system.

Throughout this collaborative effort, CDT and Common Cause have brought together leaders in the nonprofit, technical, business, and academic communities, along with experts in electoral process, to engage in a constructive dialogue about the purpose of ICANN and the role of the At-Large election in fulfilling that purpose.

1.3. Study Procedure

Common Cause and CDT have conducted this study based on outreach to ICANN stakeholders, consultation with experts, and in-depth analysis focused on the purpose of the At-Large election, the concerns it raises, and prescriptive suggestions for improvement. A detailed discussion of our approach is included in Appendix I. Among our major activities:

In early February 2000, we hosted a roundtable workshop of election experts at Harvard's Kennedy School of Government. Included were high-level participants with experience in electoral theory, electronic voting systems, and the implementation and monitoring of elections around the world in places ranging from Kosovo and East Timor to towns and cities in the United States.

Finally, based on all this work, we present here some recommended principles for reshaping the ICANN At-Large elections. We believe these principles deserve prompt and serious consideration by the ICANN community.

We would like to acknowlege that our international outreach was limited due to time and resource constraints. However, we made every effort to include international representatives in our conversations with leaders from the nonprofit, business, and technical communities.

We have been mindful of the extensive discussions that have already taken place for over a year within various parts of the ICANN community. In particular, we are indebted to the hard work of the Membership Advisory Committee and the Berkman Center's Study on Representative Government, which studied these issues in depth as a precursor to ICANN's current plan. This study seeks to build on that work rather than duplicate it.

We also note that ICANN's new Implementation Task Force has begun to do a great deal of work to detail the rules to govern the existing election process. Rather than duplicating the work of this new group, our effort has been focused on a broader assessment of the current election process and alternatives for moving ahead, not on the details for specific implementation of the current system.

In considering a possible course of action, we have allowed ourselves to cast a wide net, soliciting and discussing a broad range of election options. We have also been mindful that ICANN's goal has been to elect At-Large board members by September of this year, and that any new steps to improve the election will need to be discussed, adopted and implemented almost immediately if that goal is to be met.

1: The original bylaws had a blank space in lieu of Article II, marked with the disclaimer, “This Article is reserved for use when the Corporation has members.” Full text of the original bylaws is available at http://www.icann.org/general/archive-bylaws/bylaws-06nov98.htm.