[ALSC-Forum] Mike Roberts' paper: Towards Improved Representation in ICANN

[Adam PEAKE]

Hi, 
I haven't seen any mention on the list of the paper Mike Roberts
submitted for last week's ALSC meeting.  And I can't find a link to it
mentioned on the study website. It's at <http://www.atlargestudy.org/roberts_paper.html>

An interesting paper, and of course given the authors role in ICANN
since its inception is a particularly important point of view.

I have a couple of initial comments.

Section D "Representation Issues" of the paper says that the ICANN
bylaws (I think he gets the date wrong, 1998 not 1999) "adopted at the
time of recognition of ICANN by the Department of Commerce, are silent
on the manner in which users are to be represented". This doesn't
accurately reflect the situation at the time. The bylaws may be silent
(and concerns over implications of statutory membership may be an issue
here, further mention of this below), but it is very clear that ICANN
was only recognized in response to the explicit promise that it would
create a membership structure to elect At Large Directors. It's
important that we recognize this when we consider the issue of
representation generally, and important specifically when reading Mike's
paper in that I think the background image of user representation he
presents to us, and builds arguments on, is actually incorrect.

Look at the process that lead to ICANN's recognition as the "NewCo"
described in the White Paper:

1. <http://www.ntia.doc.gov/ntiahome/press/icann102098.htm>
Beck Burr, NTIA, Dept of Commerce, writes in reply to ICANN's submission
to be recognized as the NewCo that their proposal is fine except for
concerns (quote) "Under your submission, the Interim board is encouraged
but not required to establish an open membership structure. Many
commenters expressed the view that the principles of private, bottom-up
coordination and representation set out in the White Paper are unlikely
to be achieved in the absence of some type of membership-based
structure. We believe ICANN should resolve this issue in a way that
ensures greater accountability of the board of directors to the Internet community."

2.  <http://www.ntia.doc.gov/ntiahome/press/icann111098.htm>
Esther replies on behalf of the board:

"Neither the drafters of the ICANN bylaws nor anyone else has yet been
able to devise a membership structure that is generally accepted to be
appropriate and practical for the At Large membership. For this reason,
the October 2 bylaws provided that if the Initial Board decides that it
is not "possible" to create a "workable" membership structure, it would
have to devise some alternative structure to elect the nine At Large
Directors. Since this caveat has contributed to the concerns on this
issue you reference in your letter, we have eliminated it. The bylaws
now make it clear that the Board has an unconditional mandate to create
a membership structure that will elect the At Large Directors of the
Board, as proposed by the BWG and some other commenters."

and

"Some 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."

---

ICANN responds to the Dept. of Commerce's  concerns with a commitment to
creating a membership structure that will elect At Large Directors. The
Department, among other things, expects this membership structure to
ensure greater accountability. It is a clear statement that the
representation of Internet users is a condition of ICANN being
recognized by the US Government.

The letter making these promises has a set of bylaws (those adopted by
the corporation on Nov. 6 1998) included with it.

I believe the probable reason the bylaws themselves are silent on the
commitment to elections (as they safely can be because the letter making
the commitment is attached) is due to concerns about vulnerability to
actions of statutory members (concerns mentioned by Mike Roberts in his
section b, background.) I understand statutory members are those with
the right to elect directors pursuant to specific provisions of an
organizations articles or bylaws. So to avoid creating statutory members
ICANN provided the right to elect dependent only on resolutions of the
board. With the caveat that I am no lawyer, I wonder if this perhaps
explains the bylaws' silence.

3. <http://www.icann.org/correspondence/doc-to-icann-08july99.htm>
About 1 year later ICANN submits its first progress report and the Dept.
of Commerce responds:

"ICANN's top priority must be to complete the work necessary to put in
place an elected Board of Directors on a timely basis. Specifically,
ICANN must do everything within its power to establish the Supporting
Organizations, and ensure the election of nine board members by those
Organizations to begin serving at the November 1999 Board Meeting. The
process of electing At-Large Directors should be complete by June 2000."

Another quote from White Paper that I think useful discusses structure:

"Structure. The Internet community is already global and diverse and
likely to become more so over time. 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. "

I believe the Dept. of Commerce's responses (above URLs) clarify that
when the White Paper talks about representing the interests of Internet
users it means via a membership structure and it means by the election
of directors by those members.

Thanks -- and apologies for the length of this note! Seemed sensible to
include relevant quotes rather than just give links,

Adam

Adam Peake
GLOCOM  Tokyo