November 13, 2000
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 organizations, we write to protest the proposed study of the at large membership adopted by resolution at Yokohama and scheduled for implementation at this meeting. The “Clean Sheet” study breaks faith breaks faith with the United States Congress, before which you testified in August 1999 and promised a democratically elected Board. It
breaks faith with the Commerce Department, and those who participated in the ICANN approval process in 1998. Finally, and most importantly, it breaks faith with the Internet community as a whole, to which ICANN repeatedly promised permanent representation at least equal to that of the supporting organizations.
BACKGROUND: ICANN’S SHIFTING COMMITMENT TO THE AT LARGE MEMBERSHIP AND DIRECT ELECTIONS
A brief recitation of the history of the At Large Membership and direct elections is in order here. As demonstrated below, ICANN’s enthusiasm for an At Large Membership and direct elections has waned over time. Initially, when it sought approval from the United States government and the Internet community, ICANN professed great enthusiasm for an At Large membership, with the power to elect nine members of the Board through direct elections. Only after its position over the DNS became secure, Congress relaxed its vigilance, and the opposition of NSI was neutralized, did ICANN retreat from its commitment and oppose At Large representation on the Board.
When Commerce first sought to transition DNS management to a publicly accountable “bottoms up” private organization, ICANN pledged to create an open membership structure to assure public oversight and public input. ICANN promised to create an “At Large” membership which would directly elect 9 members of the Board, as a counterweight to the 9 directors elected by the Supporting Organizations. See Letter of Esther Dyson, Interim Chair, to J. Beckwith Burr November 6, 1998, http://www.ntia.doc.gov/ntiahome/press/ICANN111098.htm. That letter contained the following promise from the ICANN Board.
remain concerned that the Initial Board could simply amend the bylaws and
remove the membership provisions that we have just described above. We
commit that this will not happen.
In addition to our commitment, the U.S. government has publicly stated that it
will maintain oversight during the transition period, and we fully expect
that the creation of a membership and the transfer of authority to a fully
elected Board will occur before that transition period ends. (emphasis added)
Based on this assurance, the Commerce Department entered into a cooperative agreement with ICANN. See November 25, 1998 Cooperative Agreement,http://www.ntia.doc.gov/ntiahome/domainname/icann-memorandum.htm. That agreement explicitly requires that ICANN:
Collaborate on the design, development, and testing of appropriate membership mechanisms that foster accountability to and representation of the global and functional diversity of the Internet and its users, within the structure of private- sector DNS management organization.
ICANN initially appeared eager to make good on its pledge. ICANN formed a special Membership Advisory Committee (MAC) composed of a broad cross-section of the Internet community. ICANN assigned a swift timeline for study, and requested a report for its Berlin meeting in May of 1999. After much hard work and careful study, the MAC completed its task and submitted a comprehensive, balanced report.
In the summer of 1999, ICANN became the subject of criticism for its closed
processes, its lack of accountability to the Internet community as a whole, and
its proposed $1 “domain name tax.” Rep. Tom Bliley, Chair of the
House Commerce Committee, sent inquiries to ICANN and convened a Congressional
oversight hearing. Network Solutions, Inc. refused to recognize ICANN’s authority over the DNS, citing ICANN’s lack of accountability.
In response to these inquiries and criticisms, ICANN repeatedly promised that
establishment of an open membership, direct elections, and the resignations of
the initial Board members were it’s “top priority.” See, e.g., Letter of Esther Dyson to J. Beckwith Burr, July 19, 1999, found at http://www.icann.org/correspondence/icann-to-doc-19july99.htm. In particular, you assured the Department of Commerce (and the Internet community as a whole) on behalf of ICANN that:
Our goal, which I know you share, is to replace each and every one of the current Board members as soon as possible (emphasis added).
ICANN made similar pledges to Congress. In sworn testimony before the Congressional oversight hearing on July 22, 1999, you testified:
As to the second wave, it is ICANN's highest priority to complete the work necessary to implement a workable At-Large membership structure and to conduct elections for the nine At-Large Directors that must be chosen by the membership. ICANN has been working diligently to accomplish this objective as soon as possible. The Initial Board has received a comprehensive set of recommendations from ICANN's Membership Advisory Committee, and expects to begin the implementation process at its August meeting in Santiago. ICANN's goal is to replace each and every one of the current Initial Board members as soon as possible.
Testimony of Esther Dyson, Chair, ICANN, before the House Commerce Committee, Subcommittee on Oversight and Investigations, July 22, 1999 (emphasis added), found at http://www.icann.org/dyson-testimony-22july99.htm.
Congress appeared satisfied by these pledges. In addition, NSI entered into negotiations with ICANN and the Department of Commerce which ultimately culminated in the existing agreement whereby NSI recognizes ICANNUs authority and provides it with financial support
Once this oversight and opposition to ICANN vanished, however, so did ICANN's commitment to the At Large membership and direct representation. At the Santiago meeting in August 1999, the ICANN Board did not implement the recommendations of the MAC or step down in favor of elected representatives. Instead, the initial Board members extended their terms another year, and adopted a resolution to prohibit direct elections of directors by the At Large membership. See ICANN Board Resolutions, found at http://www.icann.org/santiago/santiago-resolutions.htm.
This announcement prompted outrage within the Internet community as a whole. It directly contradicted ICANNUs previous statements, quoted above, regarding the priority ICANN placed on membership, its commitment to public oversight, and its willingness to allow open elections. The cynical nature of this shift was lost on none, yet public interest organizations continued to attempt to engage the Board in discussion over this change of course. ICANN rebuffed these attempts at civil engagement and public dialog, although it gratefully accepted the $100,000 grant from the Markle Foundation to create an At Large membership. See ICANN Board Resolutions, found at http://www.icann.org/minutes/prelim-report-4nov99.htm.
In March 2000, an independent study by Common Cause and the Center for Democracy and Technology demonstrated that ICANN's proposed indirect election was a Rrisky experiment in democracy that must be dramatically improved for it to confer legitimacy on ICANN. See ICANN's Global Elections: On the Internet, For the Internet, March 2000, Found at http://www.cdt.org/dns/icann/study/
In response to this report and continued criticism, the ICANN Board agreed to the "Cairo Compromise." Under this proposal, ICANN would finally create the mechanism for general membership, but it would only allow the election of five of the promised nine At Large directors. See ICANN Board Resolutions, found at http://www.icann.org/minutes/prelim-report-10mar00.htm. In addition, the Board again extended the terms of initial Board members, allowing four of them to remain on the Board until October 2001. Id.
This proposal reduced the accountability of the Board in two ways. First, it perpetuated the terms of 4 of the unelected RInitialS or RInterimS Board members, despite the repeated pledges in 1998 and 1999 that these directors would be replaced by directors elected by the At Large. These RBoardsquattersS reduce the number of directors accountable to an electorate.
Second, it allowed any two Supporting Organizations to overwhelm the interests of the At Large membership. The structure ICANN first announced in 1998 allowed the general membership to serve as a check on the narrow representation of the SOs, while permitting the specialized SOs to neutralize the At Large only by complete agreement. Under the new structure, the three Directors from any two supporting organizations can neutralize the votes of the At Large membership.
Despite these flaws, the public interest community applauded the Cairo Compromise as a step in the right direction. At the time, those in Cairo and the broader Internet community fully expected that ICANN would, ultimately, make good on its repeated promises to have an open membership that elects Nine directors.
This hope, however, again proved vain. At its August 2000 meeting in Yokohama, the Board adopted a resolution calling for a "clean sheet" study of the At Large membership. The resolution explicitly contemplates that all aspects of At Large membership, indeed, its very existence, will be subject to re-argument and potential elimination. Recent comments from ICANN President Mike Roberts indicate that, despite the success of the recent elections in electing qualified candidates (although it experienced flaws in implementation), the Board intends to eliminate the At Large Directors rather than expand them to the full nine promised when ICANN first formed.
BY ITS ACTIONS, THE BOARD HAS CALLED ITS OWN LEGITIMACY INTO QUESTION
By its own actions, the Board has called its own legitimacy into question. ICANN received its current authority over the DNS based on bylaws that promised an open At Large Membership that directly elected nine directors to the Board. In response to charges that the insiders in ICANN would cynically delay, extend their terms, and wait until their positions were secure, were dismissed by ICANN. "We commit that this will not happen," wrote the Initial Board in 1998, and upon which promise it received authority over the DNS.
Two years later, we know the worth of ICANN's commitment, particularly that of the four Boardsquatters who have clung to power in the face of all promises and pressure to the contrary.
The proposed "Clean Sheet" study further vitiates any shred of legitimacy ICANN might hope to obtain from elections. At best, it becomes a means of intimidating those who favor a permanent At Large Membership with the power to elect Directors. "Behave," the Boardsquatters will say, "or we will eliminate the At Large entirely." More likely, the Boardsquatters and other elements of the Board will use the Clean Sheet study to further reduce the ability of the At Large to serve as an effective means of public oversight and a counter to Board capture by the unelected Boardsquatters.
This state of affairs is intolerable. Unless ICANN takes swift action to redeem itself, it will have perpetrated a fraud upon the Internet community and those who entrusted it with stewardship of the DNS. A house built on a false foundation cannot stand. ICANN's actions undercut its own legitimacy and undermine its ability to move forward as a consensus builder within the Internet community.
ICANN SHOULD ELIMINATE THE RCLEAN SHEETS STUDY, REMOVE THE BOARDSQUATTERS, AND INCREASE THE NUMBER OF AT LARGE DIRECTORS TO THE PROMISED NINE
For the sake of its own legitimacy, ICANN must move quickly to make good on its representations. It must reaffirm the role of the At Large, eliminate the Boardsquatters, and allow new At Large Directors accountable to the At Large Membership to fill their seats.
The road to these steps is easy and straightforward. Eliminating the "Clean Sheet" study requires nothing more than a bylaw change, a process with which the ICANN Board is intimately acquainted and has had no shyness in employing in the past. The Boardsquatters have it within their power to resign, which they should do forthwith.
Professor Michael Froomkin of the University of Miami School of Law has ably set forth a plan to replace the Boardsquatters with At Large Representatives, so that ICANN may function with a full compliment of Directors until ICANN can hold new elections. Following the Froomkin Plan, ICANN should permit the five elected At Large Board members to select the four replacement for the Boardsquatters. While Professor Froomkin is right that this is not a perfect solution, it is the most equitable way to solve the problem and allow ICANN to function until it has recovered from its unfortunate attempt to evade its responsibilities. A copy of Professor Froomkin’s proposal is available at http://personal.law.miami.edu/~froomkin/boardsquat2.htm.
The actions of ICANN’s unelected Directors have undermined ICANN’s legitimacy and compromised its ability to function effectively. This naked display of bad faith and ambition cannot help but repulse the Internet community as a whole, and prevent ICANN from claiming the mantle of an consensus rule and “bottoms up” management. If the unelected Board members, and in particular their Boardsquatting brethren, have any respect for the organization they have spent two years building, they will cease their assaults on the At Larger Membership and the elected Directors.