ICANN At Large Membership At a Crossroads

Emel Wadhwani (ewadhwan@law.harvard.edu) &
Len Kardon (lkardon@law.harvard.edu)
Harvard Law School

The document below is the work of Berkman Center student affiliates. Accordingly, it does not represent the views of the Berkman Center institutionally; rather, it presents the perspective of its authors.

Introduction

The Internet Corporation for Assigned Names and Numbers (ICANN) just concluded its first election for directors representing the At Large membership.  Article II of the ICANN Bylaws requires the initiation of "a comprehensive study of the concept, structure and processes relating to an 'At Large' membership" following the ICANN annual meeting in November.  The director selection process has been controversial, with much debate over the past two years regarding the makeup of the At Large membership and the structure for electing the directors. Underlying these discussions about process are fundamental disagreements over the purpose of ICANN and role of the At Large membership.  As the ICANN Board recognized, "there remains a considerable diversity of views concerning the purpose of and rationale for the At Large membership and Council” [ICANN Resolution 00.18].  This paper examines the two primary contending views, which we call the “Technical Body Vision” and the “Democratic Process Vision.”  The paper argues that the 2000 At-Large election, under pressure from both camps, failed to choose between these two visions and was thereby fraught with inconsistency.  A resolution of the membership debate is contingent on ICANN, its supporters, and its critics, making a clear, deliberate, and articulated choice as to the purpose of At-Large membership.

Background

ICANN was formed to address the Department of Commerce’s White Paper, which called for the creation of a private organization to "manage and perform a specific set of functions related to the coordination of the domain name system.”  Although vague in its details, the White Paper envisioned some role for a user membership:  “The organization and its board should derive legitimacy from the participation of key stakeholders. Since the organization will be concerned mainly with numbers, names and protocols, its board should represent membership organizations in each of these areas, as well as the direct interests of Internet users.” The Joint Project Agreement with the DOC requires ICANN to "[c]ollaborate 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 the private-sector DNS management organization."

A fundamental issue that has been deeply contested is exactly who “the Internet users” invoked by the White Paper are – individuals vs. organizations; domain holders vs. anyone with an e-mail address; potential Internet users vs. current users.  This year, anyone with an e-mail address and verifiable physical address was allowed to become an At Large member during the registration period.  Another controversial issue has been the mandate to reflect a “global and functional diversity,” raising questions about regional representation and voting mechanisms for ensuring a role for minority voices.  While these questions deserve more study, we have focused here on the more general issue of what the appropriate vision for the At Large membership is in the first place.  The details of who should be allowed to be members and how they should be represented on the board will partly follow from the vision adopted. 

Vision of At Large membership

The primary disagreement over the role of the At Large membership in ICANN centers on the purpose of ICANN.  Some see it as a very limited, technical standards body, with At Large membership providing a bottom-up, consensus generating process adding to the diversity of views within ICANN (the Technical Body Vision).  ICANN states: "ICANN is a technical coordination body for the Internet . . . assuming responsibility for a set of technical functions.” 

Others see the membership as the central component of a democratic process by which to make policy decisions concerning domain names and numbers and perhaps the Internet more broadly (the Democracy Vision).  The popular press as well as many advocacy groups perceive ICANN to be a powerful policy-making organization.  Wire reports refer to ICANN as "the powerful and controversial organization charged with managing the Internet's vital addressing system" [Newsbyte] and "an Internet oversight board" [Associate Press].  A group of ICANN-watchers contends that "ICANN has engaged in policy matters that have important public repercussions."  [Cyber-Federalist No. 1] 

Technical Body Vision: A way of diversifying and making more transparent the technical and standards-based decision making conducted by a non-profit corporation

Under this approach, the At Large membership is just one of many groups of Internet stakeholders.  The Membership Advisory Committee (MAC) report states that the purpose of the At Large membership is to “ensure representation on the ICANN board of directors of those individual and organizational users that are not already represented by the Supporting Organizations.”  The focus is on creating consensus.  “As a consensus-based body (unlike a legislature), the Board will work best when its members are chosen diversely from stakeholder communities and a broad, diverse, numerous membership.”  [E-mail from Andrew McLaughlin, ICANN Chief Policy Officer, 10/19/00]  The At Large membership should be selected and structured “to create a vehicle for consensus development of policies that will promote the continued stable operation of the DNS.”  [Joe Sim’s, response to Froomkin’s comments on Proposed Changes to ICANN Bylaws, Oct. 23, 1999] 

ICANN as an organization has generally adhered to the Technical Body Vision.  This is reflected in the initial bylaws proposed by Jon Postel and IANA in October 1998 that left the issue of whether to even create an At Large membership for the initial board to decide in the future.  [IANA proposed bylaws]  In August 1999, the ICANN Board modified the bylaws to create an At Large Council to be placed between the At Large members and the directors [ICANN Resolutions 99.87 and 99.88] disregarding the MAC report which called for direct elections (the Council was eliminated later).  This process would arguably provide greater organizational stability and lead to the election of more technically qualified and knowledgeable directors.

Democracy Vision:  A democratic process by which to make policy decisions concerning the Internet

This vision of the At Large membership is rooted in an understanding of ICANN as a policy-making entity with governance powers.  “In theory and by design, ICANN’s mission is narrow and technical.  But even technical decisions about who gets which names and numbers can have broader policy implications.  And because of ICANN’s central control over Internet functions, it will face pressures to make broad policy decisions.”  [Common Cause/CDT Report] Under this vision of ICANN as an Internet governance body, “Legitimacy can only come if ICANN operates with the consent of the governed – those bound by and affected by its policies.”[ibid.]

At the extreme, democracy advocates desire a fully elected board with no qualifications.  The dominant Democracy Vision, and the one used in this paper, recognizes that ICANN is a hybrid organization that requires expert decisionmaking balanced by policy accountability.  These advocates agree that the technical community should be represented on the board through the SO’s, yet as it is currently structured, ICANN “suffers from a democracy deficit.” [Statement on ICANN Elections, Civil Society Internet Forum.]  They see the At Large membership as a necessary counter-balance to the commercial interests represented by the SO's and their influence on policy.  In particular, the UDRP and the current selection process for new top level domains have received the most attention and have been widely perceived as substantive policy issues that could unfairly reflect a commercial bias.

Proponents of this perspective acknowledge that there is a tension between having qualified board members with adequate technical skills and a direct election process that enfranchises the Internet “user” [Common Cause/CDT Report].  They believe, however, that this tension can be resolved by putting some minimum qualifications on who can be nominated rather than eliminating direct voting.

The Democracy Vision is also supported, reluctantly, by those arguing that ICANN’s powers, even construed as narrowly as possible, are not legitimate or should not exist in the first place.  While preferring that no one exercise the policy-making functions they see ICANN performing, these critics argue for a more democratic ICANN in order to keep it in check.  "When Internet users have a voice in decision-making, hopefully ICANN's decisions can be carefully limited to minimize its regulatory role." [Cyber-Federalist No. 1]  Professor Neil Weinstock Netanel argues that any form of Internet governance, if not regulated by liberal nation-states, would be inimical to liberal democratic principals.  [Cyberspace Self-Governance: A Skeptical View from Liberal Democratic Theory, California Law Review, March 2000]  Furthermore, ICANN’s powers may be contested as an unconstitutional delegation of executive power by the Department of Commerce.  [Professor Michael Froomkin, Duke Law Journal, Vol. 50:17]  Given its tenuous legitimacy, argue these critics, ICANN should at least be accountable in a democratic process.

Current Status

The election process, as it actually played out over the last few months, has been a hybrid of the two visions.  Those advocating the Democracy Vision succeeded in ensuring direct elections by the At Large membership after the Cairo meetings eliminating the At Large Council.  The membership requirements were kept minimal to encourage as wide a participation of interests as possible.  The candidate selection process included both a nominating committee as well as member nominations constrained by some minimum support qualifications.  After criticism from Democracy Vision Advocates, the support needed for member nomination was reduced from 10 percent to two percent.  Subsequently, two of the five candidates elected to the board were member nominated. 

Yet, with only some 34 thousand of a potential membership in the millions actually casting votes, it is difficult to claim any kind of democratic victory here, regardless of whether the votes were cast directly.  Furthermore, membership was grossly disproportionate across national boundaries, limiting the extent to which a “global representation” could be claimed to have been achieved.  Membership drives were largely inspired by nationalistic sentiment, rather than an interest in the technical development of Internet domains, casting doubt on how educated the votes actually were.  Instead of adding to the diversity on the board, the directors elected from Asia/Pacific and Africa are already members of the DNSO Names Council.  Given these inconsistencies, it is hard to view this first At-Large election process as achieving either one of the visions that supported it – it was neither a democratic election nor a carefully and deliberately constructed process by which to diversify the views on ICANN’s board of directors. 

Conclusion

Resolution of the At-Large membership controversy is contingent on first choosing between the two competing visions described above.  The current structure is inconsistent with either vision.  More study on who registered and, of those, who voted may shed light on which interests were actually represented in this election and give us a sense of which vision may be winning out.  Christian Ahlert [ICANN Membership Implementation Task Force, e-mail, 10/20/00] makes the interesting point that the results of the membership drive as well as the election in Europe were more influenced by the popular press than by the online mailing group set up for exchange of information on the process.  These types of observations are useful in determining how great a “democratic” interest there may be in ICANN’s process.  

Whether or not the 2000 elections have been a “success” is highly subjective.  However, by failing to choose between the two visions, ICANN, its supporters, and its critics have also failed to take the steps that would have increased the legitimacy of the process and its results under either vision.    If the At Large membership exists to incorporate an actual democratic process, ICANN could find ways to increase voter participation and balance as well as encourage ongoing member involvement or at least attention to ICANN issues.  Although ICANN appointed a Membership Implementation Task Force to encourage registration in the election just completed, critics argue that its efforts were inadequate and that the technical problems that inhibited last minute registrations further discouraged participation.  If, on the other hand, the At Large membership exists to add another dimension of knowledgeable and technical views to those of the SO’s, then stricter membership criteria or a return to the concept of an At Large Council may inspire greater confidence in ICANN’s legitimacy.  At the same time, ICANN will also have to address the concerns that it has strayed beyond its technical mandate.  Under either vision, ICANN can ensure the directors selected by the At Large membership balance those selected by SO’s by requiring that At Large director candidates not have any membership interest in the SO’s.

The current amalgam will only lead to continued questions about ICANN’s legitimacy.  ICANN must make a choice and clarify the purpose and mission of the At Large membership before it can begin to think about how to reform the election process.