Re: [ALSC-Forum] Mike Roberts' paper: Towards ImprovedRepresentation in ICANN

[Mike Roberts]

I don't find anything in Adam's analysis that conflicts with the 
points in my paper, except as noted below with reference to statutory 
members.  The charge to the current At Large study committee says, 
"undertake a comprehensive study of the concept, structure and 
processes relating to an "At Large" membership for ICANN..."

There is nothing in the record he cites below that has any specifics 
about what kind of election, nor who the actual electorate would be.

It is certainly true that there were many points of view on at large 
membership in 1998 and there still are in 2001.  As my paper 
indicates, the challenge is for the committee and the community to 
find common ground in a centrist solution that accommodates differing 
perspectives.

- Mike Roberts


At 23:27 +0900 8/21/01, Adam PEAKE wrote:
>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.

Actually, the choice of non-voting member status under California's 
non-profit corporation law was made to ensure that indeed the voting 
and representation rules would those contained in the Bylaws and not 
those contained in the statute under the option for a statutory 
voting membership.

>
>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