[ALSC-Forum] NAIS Comments on ALSC Discussion Papers

[Rob Courtney]

Attached are the comments of the NGO and Academic ICANN Study to the 
discussion papers so far circulated by the ALSC. I am posting these 
for review by the community, and we look forward to your responses 
and to further discussion!

Rob Courtney

* * *


August 2001

Comments of
NGO and Academic ICANN Study (NAIS)
Relating to First and Second Discussion Paper of the ALSC

The NGO and Academic ICANN Study (NAIS) team is pleased to submit 
comments to the At Large Study Committee (ALSC) on the first and 
second discussion papers recently released by the ALSC.

As you know, the NAIS group issued an interim report at the recent 
ICANN meeting in Stockholm.  This interim report set forth our own 
analysis and conclusions on the need for a public voice in ICANN as 
it relates to the structures of representation and internal 
governance necessary for ICANN's legitimacy.  The interim report also 
analyzed in detail the regional elections held last year for five 
ICANN at large directors.

We are planning to issue a final report prior to the Montevideo 
meeting.  In this final report, we will set forth specific 
recommendations for how the At Large Membership should be organized 
and structured, how it should participate in ICANN policy-making, and 
how it should be represented on the ICANN board.  Our final report 
will address many of the specific questions listed by the ALSC in 
your first discussion paper.  We hope it will be useful for your 
continuing work.

In the meantime, we wish to make three general points concerning the 
two discussion papers released by the ALSC:

First, we strongly applaud the ALSC's clear reaffirmation of the 
public interest in ICANN, set forth in the first discussion paper. 
It is extremely important that the ALSC has concluded without 
equivocation that there is a need for a public voice in ICANN in 
order to ensure the legitimacy of the organization.

There has been much debate about whether ICANN is merely a technical 
body or a policy-making body.  The outcome of this debate has 
important implications for the question of what kind of internal 
governance is appropriate for ICANN in order to best secure its 
legitimacy.  In our view, it is increasingly obvious that ICANN has a 
key role in setting important public policies relating to the naming 
and addressing system of the Internet.  This is an argument we set 
forth at length in the NAIS interim report, and this threshold 
principle remains a fundamental premise of our work.

Thus, we are very pleased that the ALSC has echoed our own 
conclusions in stating that "there is a 'public interest' 
responsibility vested in ICANN, and therefore some role for 
individualsŠis appropriate."  We agree with the ALSC's list of the 
various issues faced by ICANN  - such as access to non-Latin domain 
names, or intellectual property matters - in which members of the 
general public have an interest and stake in the policy decisions 
made by ICANN.

Second, and largely for this reason, we are concerned about some of 
the options for representation set forth in the ALSC's second 
discussion paper.  In our view, and for reasons that will be 
explained in our final report, the ICANN board should be balanced 
between representation of the public and representation of the 
specific stakeholder interests within the organization.  This balance 
is necessary precisely in order to respect the fundamental principle 
stated by the ALSC - the importance of the public interest in the 
work of ICANN.  Balance between the At Large director seats and the 
supporting organization seats also respects the founding principles 
that have been in place since ICANN was formed.
We are concerned that some of options set forth in the second 
discussion paper depart dramatically from this principle of balance 
and, in so doing, greatly undervalue the need for public 
representation.

Option A provides for direct election of half of the ICANN board by 
the public, and we agree strongly with this principle.

Option B appears to have no election mechanism for the selection of 
the board, and only 5 of the 18 board seats would be allocated for 
"individual constituencies" while four additional seats would 
represent "organizational constituencies," collectively constituting 
nine board seats from a  "customer supporting organization."

Similarly, Option C has no election mechanism by the public. 
Instead, it contemplates nomination of directors by the At Large 
Membership, but election by the supporting organizations, which 
include a new "At Large/Individual supporting organization."  This 
option provides no set allocation of seats to At Large Directors; 
instead all directors are elected collectively by the supporting 
organizations together.

We are concerned that both Option B and Option C will weaken the 
public voice within ICANN, and threaten to submerge it altogether in 
the collection of narrower interests in the organization.

We urge the ALSC to reject any formula for representation that 
provides for fewer than half of the board seats to be directly 
elected by the At Large Membership.  Only Option A appears compatible 
with this principle.

Finally, we applaud the direction of the ALSC in extending its work 
beyond the questions of how to best organize and represent the At 
Large Membership within ICANN.  The ALSC is embarked on a path that 
will surely lead to a set of broader recommendations for the overall 
restructuring of the board as a whole.  We support this broadened 
scope of review and believe it is necessary and appropriate for the 
ALSC to take on these larger questions.

However, we are concerned that the implementation of a plan for the 
At Large Membership not be delayed while the larger questions about 
the overall structure of the board are being considered.  There are 
four initial "At Large" directors who are serving as hold-over 
members of the board for two years beyond their original term. 
Further, the terms of the five elected At Large directors will expire 
in November, 2002.

In order to have new, legitimate At Large directors who can be seated 
in November, 2002 to replace those whose terms will expire then, we 
believe that it is necessary for the board to adopt a plan for the At 
Large Membership at its meeting in November, 2001, or shortly 
thereafter. This schedule is necessary in order to allow ICANN to 
undertake the time consuming process of establishing the At Large 
Membership and conducting an election in an orderly fashion for new 
board members to be seated by November, 2002.

Although we welcome the ALSC's recommendations on a broader 
restructuring of the board, we urge you to separate your 
recommendations, so that those concerning the At Large Membership can 
be implemented immediately, while the board studies additional 
changes to the supporting organizations.  We believe this is possible 
if the ALSC structures its recommendations so that the plan for the 
At Large Membership is made to be independent from the plan for the 
supporting organizations.

What is important to avoid, in our view, is any delay in the 
implementation of the At Large Membership while the board and the 
ICANN community study any broader proposals related to restructuring 
the SO side of the board.  It would be a great disservice to the 
public interest and to the At Large Membership, if the broader 
recommendations of the ALSC were used as an excuse to delay the 
already overdue changes to make the At Large Membership functional so 
that new directors can be elected and seated by November, 2002.

Accordingly, we urge the ALSC to make explicit to the board the need 
to proceed on new elections in time to seat At Large Directors by 
November, 2002, even if additional study and debate is necessary for 
other parts of the ALSC proposal.
We appreciate the opportunity to comment on the discussion papers 
published by the ALSC and we look forward to more interchange with 
you as we complete and release our own study of these important 
questions.

				The NGO and Academic ICANN Study team

-- 

Rob Courtney
Policy Analyst
Center for Democracy & Technology
1634 Eye Street NW, Suite 1100
Washington, DC 20006
202 637 9800
fax 202 637 0968
rob@cdt.org
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http://www.cdt.org/