CDT: ICANN Study

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

Common Cause and CDT urge ICANN to address the criticisms that have been made of the proposed procedures for electing the At-Large board members. We urge ICANN to adopt the following general principles:

1. ICANN should develop and promulgate as part of its bylaws, or in some comparably binding fashion, language to delimit the scope of ICANN's decision-making authority to technical management of the DNS and IP address system. We believe it is important to explain ICANN's mission to the public, making clear that ICANN is not intended to become some kind of "world government" for the Internet - that is, it is not to engage in policymaking functions that extend generally into contentious Internet issues such as privacy or content regulation. Even though statements about ICANN's limited role have been made in the past, we believe such statements need to be reaffirmed in some binding fashion.

We also recognize, however, that even within the proper scope of ICANN's jurisdiction, there are important policy decisions that will inherently and necessarily arise in the "technical management of the Internet". For this reason, openness, representation, and legitimacy must be considered high priorities for building the election process for the At-Large board members.

2. The "electorate" for the At-Large board members should broadly include individual Internet users. We believe that any severe limitation on who can participate in choosing the At-Large members of the ICANN Board will jeopardize the public legitimacy of ICANN. Further, any such limitation may not achieve the goal of a more engaged and deliberative membership, and may fail to adequately account for the rapidly changing nature of the Internet.

For instance, the leading proposal for limiting the electorate is to allow only domain name holders to participate in choosing the At-Large board members. But this proposal suffers from problems of its own. First, it is not clear that domain name holders, many of whom are corporate entities, are a suitable proxy for all of the individual interests that need to be part of the electorate and are not already represented in the Supporting Organizations. Limiting the electorate to domain name holders potentially excludes others directly affected by ICANN, such as those with an interest in technical standards and number allocation.

For all these reasons, while we are sympathetic to the goal of defining an electorate based on those who are most affected by ICANN, we nonetheless believe that an electorate broadly inclusive of the interests of individual Internet users should be a guiding principle in the design of the election. We are keenly aware of the acute practical difficulties posed by managing an electorate as large, diverse and geographically dispersed as the one we recommend. We believe, however, that it is preferable for ICANN to make a concerted effort to solve these daunting practical questions rather than to risk sacrificing the legitimacy that it needs to carry out its mission.

3. The electorate should directly elect the At-Large board directors. Having an At-Large Council as a mediating body in the election of At-Large board seats diminishes both the reality and appearance of an open, inclusive, representative and democratic election.

An intervening council will not prevent "capture" of these board seats, but it will diminish accountability. In fact, it could make capture by an interest group easier because winning only half the council seats would give that interest the power to select all nine board seats. It could also lead to a disengaged membership that fails to "watchdog" the board, because the very limited and indirect role of selecting electors will not inspire active participation.

3.a. If indirect elections are nonetheless pursued, some accountability mechanism - such as commitment to a slate - should be developed for At-Large Council members. Currently, there is little to bind council members to their ultimate choice of board members. Some mechanism for accountably binding council members to a set of board members is needed.

4. ICANN should develop a candidate nominating process that ensures that qualified candidates will appear on the ballot. As a general principle, ICANN should not impose high barriers to ballot access. Some objective criteria, such as an age requirement and willingness to state positions on issues, are reasonable. So too would be a requirement that a petition demonstrating a threshold level of support is necessary to be listed on the ballot.

In addition, we recommend that the board establish a deliberative nominating committee - either a committee of the board itself or a committee appointed by the board - that seeks highly-qualified candidates and has the power to place them on the ballot, listed as nominees endorsed by the board's selection process. This would ensure that a slate of candidates judged by the board to be highly qualified, and so endorsed, would be among the candidates presented to the electorate.

5. ICANN should use some form of a proportional-representation voting scheme for its At-Large elections. A proportional representation voting scheme, as opposed to a winner-take-all majority vote system, will disaggregate power, making it more difficult for one interest to capture the At-Large board seats. It will also enhance legitimacy and representation by providing real opportunities for representation to individuals and groups who do not hold majority viewpoints.

6. ICANN should place the goal of holding effective elections ahead of the goal of completing them by September 2000. Even if ICANN had already answered all the preliminary questions that must be addressed before holding elections, it is unlikely that proper voter registration systems, candidate qualification procedures, and voting mechanisms could be established in time to run a fair and effective election before September 30, 2000. We understand the urgency of holding elections for the At-Large seats, not the least of which is the fact that the interim board is proceeding to make important decisions which would benefit from the participation of board members who have been elected to represent public interests in the Internet. Yet, the need to hold quick elections must be tempered by the need to hold responsible and legitimate elections.

We are not certain that any delay from the current September 2000 target date is necessary or, if so, that a long delay will be entailed. But neither do we think that the September date should be viewed at this stage as a fixed deadline. Instead, we urge the board to move forward with all deliberate speed to decide on the procedural framework for an election, and then take the appropriate implementation steps on the most expeditious responsible timetable.

7. ICANN should establish an election authority with a high degree of independence from the Board of Directors and other institutional players. ICANN needs an independent auditing body to monitor its elections, and should avail itself of the expertise in the international community among groups that do election monitoring around the world, as well as companies that audit corporate board elections. We note that ICANN has taken a good first step in appointing an Implementation Task Force to consider some of these issues; an independent expert body should work with the task force in establishing detailed election rules.

8. ICANN should institutionalize periodic review of the At-Large membership and elections process. The rules and regulations adopted for the At-Large election should be evaluated on a regular schedule to determine if they continue to serve ICANN's goals and mission, and to ensure that changes in the development of the Internet have not made the At-Large election process obsolete. Such a "sunset" rule should include fair procedures by which changes can be made to the election rules - procedures that involve input from sources independent of the board members who are elected through those rules.

Independent of all of these recommendations, we note that there is a great deal of work to be done in reaching out to and educating those in the public who are part of ICANN's potential electorate. The appointment of an Implementation Task Force to do broad outreach all around the world is an essential first step. Ultimately, the success of this election will rise and fall on the ability of the ICANN community to engage an informed electorate.

Conclusion

We recognize that ICANN faces intense pressure to hold its elections this year. But given the serious concerns canvassed in this report, about matters ranging from membership to capture, ICANN cannot claim that the election system it has currently proposed will confer legitimacy on itself without much more work to address and resolve the myriad of issues that have been raised.

Given the unanswered questions about how the electorate will develop over time, and the rapidly changing nature of the Internet itself, ICANN should best view itself as involved in an iterative process of democracy. Rather than seeking to establish rules in perpetuity, ICANN may be best off looking at its initial election as a first experiment in democracy for this new technical management body, with rules for further elections to be established in the future upon further community deliberation.