August 10, 2001 v2.1

A. INTRODUCTION

In November, 2001, on its third anniversary, the ICANN Board of Directors plans to complete work on its advisory and representation structure that began in the fall of 1998, and at the same time respond to the experience of the first year or two of operation of its advisory bodies. To assist it, the Board has commissioned a study of the representation of individual users in ICANN, and it also intends to consider a review of the functioning of its Domain Name Supporting Organization, one of the corporation's existing advisory bodies.

This paper describes some of the issues related to refinements in ICANN's organizational structure and makes recommendations for improvements in the scope and effectiveness of representation in the corporation's affairs. It is being issued at this time as background material for the public meeting of the ICANN At Large study committee on August 13 in Cupertino, California and the scheduled Board and public discussion of At Large issues at the ICANN Board meeting in Montevideo, Uruguay on September 9-10. The views expressed are solely those of the author and reflect his experience as the first President and a Director of ICANN from November, 1998 to March, 2001. Interested parties are invited to share their views with the author at the address provided at the end of the paper.

B. BACKGROUND

ICANN is a unique experiment in private sector industry self-regulation that has arisen out of a unique set of circumstances in the operational and technical evolution of the Internet. Lacking a model on which to base the new organization, ICANN's progenitors, principally a U.S. federal government committee, chose to focus on a definition of mission and a set of guiding principles, which were published in a policy document in the spring of 1998. ICANN's mission is essentially to take up a set of technical management responsibilities for the Internet's Domain Name and Address system (DNS) that were formerly carried out by research agencies in the federal government and their contractors. The four guiding principles are protection of the stability of the Internet, promotion of competition in the business aspects of the DNS, use of "bottom up" advisory mechanisms for decision making, and adoption of a broadly based stakeholder representation structure. See <http://www.icann.org/general/white-paper-05jun98.htm>.

For several reasons, ICANN was launched in late 1998 with its organization and operating procedures only partly formed. As a result, in its first several years of operation, the Board has necessarily addressed an action agenda inherited from the contentious milieu which marked the latter years of federal management while simultaneously working in parallel to complete an effective advisory structure.

ICANN is a non-profit California corporation with a nineteen member international Board of Directors. The drafters of the ICANN Bylaws chose the non-voting member form of corporate structure to ensure that participation in ICANN and control over selection of the corporation's Directors could be accomplished on an international basis rather than be vulnerable to statutory member litigation filed in the state of California in the United States. In lieu of voting members, the corporation has a complex set of advisory bodies that are designed to provide advice to the Directors, to select Directors, and to create a mechanism for interested individuals and organizations to participate in the work of the corporation.

ICANN, by the nature of its non-profit corporate structure, and by the intent of its designers, operates as a consensus-based organization. It has no statutory authority in the United States or elsewhere, and the Board's decisions are effective only to the extent that they are incorporated in contractual agreements entered into voluntarily by companies and organizations participating in the DNS. This places a premium in the Board's deliberations on finding solutions to issues that will attract broad support among major stakeholder groups. Which in turn calls for an advisory structure for the Board in which such groups see themselves and their constituents as fairly represented. Given the wide diversity of stakeholder interests in the DNS, the design and execution of representation structures has been and continues to be a challenge for the Board and the DNS community.

C. CURRENT ORGANIZATIONAL STATUS

ICANN's current organizational structure provides for five major advisory bodies, representing clusters of significant stakeholder interests in the technical management of the Internet's Domain Name and Address system. In addition to advice, four of these bodies select a number of the corporation's Directors. It is current Board policy that the groups are financially responsible for covering the costs of their advisory work. (For the DNSO, the requirement is also in Bylaws article VI-B, section 2(j).) Each of the groups is chartered in the Bylaws (see <http://www.icann.org/general/bylaws.htm>). They are:

• an Internet engineering and technical advisory body called the Protocol Council;

• an Internet address administration advisory body called the Address Council;

• a domain name administration advisory body called the Names Council;

• a mechanism for individual user ("At Large membership") participation and representation that is currently under (re)design by a special study committee appointed by the Board; and

• a government advisory committee composed of officials from government ministries.

The Protocol Council and the Address Council are part of Supporting Organizations (SO's) that were chartered and recognized by the Board through Memorandums of Understanding that were executed in 1999 at the conclusion of discussions with organizations in the respective areas. Each SO selects three members of the ICANN Board. The seats on the two Councils are normally occupied by senior scientists, professionals and managers from within the organizations that executed the MOU's.

The Government Advisory Council (GAC) was chartered in the original Bylaws drafted in the summer of 1998. The inclusion of such an advisory body in the organizational structure was intended to clarify the role of governments in ICANN and to provide a known mechanism for national governments to express their views on current and proposed policies of the corporation. One of the principal activities of the GAC has been to share inter-governmental views on national policies for encouraging the development of the Internet, and to seek uniformity in national treatment of DNS issues where feasible and desirable. For example, in February, 2000, the GAC issued a set of recommendations to the Board on relationships between and among national governments, ICANN and the managers of national ("country code") top level domain name registries.

The Domain Name Supporting Organization (DNSO) was chartered by the Board in March, 1999 following spirited discussion within the domain name community and a series of compromises on the means whereby the interested parties would be grouped into DNSO constituencies that would in turn have the right to select members of the Names Council. The decision of the Board was to create seven constituencies. Each constituency elects three members of the Names Council, which in turn selects three members of the Board. Unlike the ASO and PSO, the DNSO organizations have not executed an MOU with ICANN. In a number of cases, existing consituencies may lack the legal and financial ability to do so.

The manner in which individual users should be represented in ICANN was not defined at the time the corporation began operations. A group of nine Initial At Large Directors was selected by Jon Postel before his death in October, 1998. This group of Directors, whose background was both international and diverse in terms of profession and prior experience, guided the corporation's startup period, being joined by nine additional Directors from the three SO's at the first annual meeting in November, 1999. One of the first acts of the Initial Board was to set in motion an At Large Membership Advisory Committee (MAC), which was the first effort to find a consensus solution to individual user representation issues. Of greatest relevance to this paper is the work of the second At Large study committee, whose charter was adopted in January, 2001 and whose final recommendations are due at the annual meeting in November 2001. The study committee maintains a website at www.atlargestudy.org. The charter is at <http://www.icann.org/committees/at-large-study/charter-22jan01.htm>.

In addition to these advisory bodies, there is a Budget Advisory Group composed of management representatives of the domain name and address registry and registrar organizations that are directly responsible for the funding of ICANN's expenses through annual contributions based on their commercial activities. This body participates in the annual budget process and makes recommendations to the Board on the appropriateness of the corporation's planned expenses and of the allocation of contributions to registries and registrars to cover the budgeted expenses. This advisory body was not planned in ICANN's original chartering documents, but was a response of the Board and the President to general dissatisfaction among registry and registrar managements about the budget process and the procedure for allocating contribution amounts to various classes of registries and registrars.

D. REPRESENTATION ISSUES

D.1 Background

The White Paper guidance on the principle of "representation" states,

"The new corporation should operate as a private entity for the benefit of the Internet community as a whole. The development of sound, fair, and widely accepted policies for the management of DNS will depend on input from the broad and growing community of Internet users. Management structures should reflect the functional and geographic diversity of the Internet and its users. Mechanisms should be established to ensure international participation in decision making."

As noted above, the November, 1999, ICANN Bylaws, 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, saying only (in Article V, section 4):

"Each Board after the Initial Board shall be comprised as follows:

(i) Three (3) Directors nominated by the Address Supporting Organization, as defined in Article VI;

(ii) Three (3) Directors nominated by the Domain Name Supporting Organization, as defined in Article VI;

(iii) Three (3) Directors nominated by the Protocol Supporting Organization as defined in Article VI;

(iv) Nine (9) At Large Directors, selected pursuant to a process to be established by a majority vote of all the At Large Board members of the Initial Board; and

(v) The person who shall be, from time to time, the President of the Corporation."

(N.B. The restriction that the process for future selection of At Large Directors is to be decided by the At Large members of the Initial Board was subsequently rescinded. Decisions on At Large and other representation changes will be made by majority vote of the full nineteen member Board or, to the extent they require changes in ICANN bylaws, by a two-thirds vote of the full Board.)

Failing to identify a consensus position on the manner of user representation over the first two years of ICANN's existence, the Board appointed a second committee on At Large issues, charging it specifically to work with the community to find consensus answers to the following questions:

"(a) Should the ICANN Board include At Large Directors?

(b) If so, how many such At Large Directors should there be?

(c) How should any such At Large Directors be selected?

(d) If selection by an At Large membership is recommended, what processes and procedures should be used to create that At Large membership? What minimum criteria, if any, should be required for membership? Precisely how should an At Large membership select At Large Directors?

(e) If an At Large membership is to exist, what should its structure, role and functions be? How should it be funded?"

D.2 Scope and Character of Representation

A distinction is necessary between representation of stakeholder interests and stakeholder involvement in selecting Directors. Under the relevant California non-profit corporation law, and also Article V, section 8 of the ICANN Bylaws, Directors are obliged to represent the best interests of the entire organization. Directors, as such, are not expected to lobby or otherwise promote interests of the stakeholder community which selected them for the Board to the disadvantage of other legitimate constituency interests. To do so would violate their fiduciary responsibilities to ICANN itself that they assume when they choose to become an ICANN director. Therefore, a Director selection procedure for a given stakeholder group does not by itself provide for advocacy of that group's interests in the ICANN consensus policy development process.

To deal with this issue, specific provision was made in ICANN's Bylaws for advocacy of stakeholder interests in policy development by the creation of three Supporting Organization Councils. These bodies are specifically charged with advising the Board in their respective areas of expertise. Unfortunately, a means for advocacy of individual user interests has not been provided in the Bylaws thus far, to the substantial disadvantage of that stakeholder group.

Because ICANN is a unique private sector organization for a unique network of communication and information resources, interpretations of the meaning of its mission statement and of its concomitant commitment to broad and equitable representation in its consensus policy development processes vary widely. As would be expected, these varying interpretations tend to serve the special interests of their proponents. For instance, liberal advocates of developing an Internet governance organization as a step toward a socially just global government see an expansive future for ICANN. Their frequent comment to ICANN Directors is, "If you aren't paying attention to these Internet constitutional and governance issues, you should be." Conversely, a few in the Internet business and technical community see an excessively broad representation as a hindrance to their historically dominant role in resolving Internet issues. These conservative advocates desire a minimalist interpretation of ICANN's mission and some of them would just as soon see it cut back from its current scope. A variety of more moderate positions lie between these extremes.

As a practical matter, debates over mission "creep," either on the upside or the downside, have not been significant up to the present, because the major items on ICANN's work agenda have been part of its Memorandum of Understanding with the U.S. Department of Commerce and consequently deemed to be part of its mission.

It also seems very unlikely that a consensus among the major stakeholders will support either a significant expansion or a significant contraction of ICANN's mission in the foreseeable future. Thus, the resolution of representation issues at this time should assume that the scope and character of representation are intended to support the work of the corporation as it has evolved in the first several years and to be consistent with the present stated mission contained in the articles of incorporation. See <http://www.icann.org/general/articles.htm>.

D.3 Participation versus Entitlement.

The fundamental purpose of representation in a private sector organization with a limited mission such as ICANN is to ensure that the resolution of significant policy issues benefits from a broad base of competent analysis and informed opinion. ICANN is not a legislative body and its stakeholders do not have an automatic citizenship right to representation. The right to representation is earned through informed participation. Ignorance on the issues by stakeholders is not only a detriment to the quality and timeliness of policy processes and outcomes, but demonstrations of ignorance are bound to diminish the effectiveness and perceived authority and legitimacy of those who espouse such views.

Prior to the creation of ICANN, matters affecting the DNS were invariably handled by full time professionals. In the design of ICANN, provision was made for a continuation of this level of advice from the three Supporting Organizations. Where the White Paper states, "During the transition and thereafter, the stability of the Internet should be the first priority of any DNS management system," it was clearly intended that the stability principle took precedence over other considerations, thus giving continuity to the tradition of technical competence that is one of the reasons for the extraordinary growth of the Internet.

Any successful approach to an At Large solution must be based on the premise of informed participation. The means by which this may be achieved are not singular. They involve opportunities for education and local and regional dialog, along with organizations to aggregate individual views and make them effective at the ICANN Board level. Many avenues exist and all should be explored.

D.4 Aggregation of Stakeholder Interests

In order for ICANN representation structures to be effective, there must be some symmetry in their design. A lack of symmetry in representation structure makes it much more difficult for the Board to evaluate and weigh the importance of the advice it gets, and also leads to a sense of disenfranchisement among those who feel that their unequal representation has unfairly damaged their ability to affect the development of consensus decisions.

Symmetry needs to be considered in several dimensions, the most important of which is the level of aggregation. In complex modern organizations such as ICANN, which have defined structures and procedures for representation and advocacy, individual voices are seldom effective in the give and take of consensus development.

Improvements in ICANN representation structures, especially those related to At Large, must include a reasonably symmetrical provision for the development of advice, beginning with individual analysis and debate, and moving up through successive levels of critique and endorsement to the council or equivalent mechanism that is responsible to the Board for representation of its designated stakeholders. Although the Board is ultimately responsible for making ICANN decisions, the quality of advice the Board receives is a major contributor to the quality of its decisions.

It is not surprising that the two most effective representation structures in ICANN are the two with the best defined means for aggregating and presenting advice to the Board - the PSO and the ASO. In both cases, the level below the Council is composed of well structured organizations that themselves have sub-organizational structures and mechanisms for developing and aggregating policy positions. When the Board asks either Council for advice, it knows that it will receive the benefit of views that have been subjected to thoughtful and professional analysis across a range of informed opinion before they ever reach the ICANN Board. This does not necessarily imply that the position is unbiased. Rather, the position is the considered opinion of the relevant stakeholder community and intended to be treated by the Board as such.

Aggregation must be handled carefully. The DNSO has been dramatically less effective as an advisory body than have the PSO and ASO. Built from the ground up without an MOU, it has been further challenged by the unwieldy breadth of interests included among its constituency suborganizations. In the chronological history of the creation of the DNSO, it was the Supporting Organization which picked up all the areas not naturally covered by the PSO and the ASO, compounded by the additional hazard that some of its responsibilities might at a future date become part of the not-yet-designed At Large organization.

Tension within the DNSO has been increased by the inclusion of three disparate stakeholder groups: (i) providers of domain name services; (ii) organizational users of domain name services, both commercial and non-commercial; and (iii) trademark and intellectual property organizations, representing both providers and users of domain names. The DNSO also has a General Assembly composed of individuals whose relationship to the seven constituency groups and to the Names Council has been and continues to be controversial.

Additional pressure has been added by the fact that the domain name providers - registries and registrars - are the direct conduits for 90% (a projected $4.5 million in FY01-02) of ICANN's base funding, which gives a special dimension to their participation in DNSO proceedings. Further, the national domain name (cc) registry managers operate, in many cases, in national legal and business environments, and prospectively have registry agreeements with ICANN, that have or will result in a substantial degree of independence from ICANN policy deliberations and decisions.

Recently, the cc top level domain name registry constituency voted to seek an independent Supporting Organization status within ICANN. Analysis of the merits of this proposal and related changes in representation is included in section F below.

D.5 Evolution of ICANN Stakeholder Groups and Their Roles

Both the size and the character of interests in the Domain Name System have grown rapidly in recent years and will no doubt continue to do so. The White Paper took note of "the broad and growing community of Internet users" in the paragraph quoted above in section D.1. Groups that were not significantly involved in the early ICANN work, such as the country code top level domain name registries, are now important and active stakeholders. Groups that had special reasons for participation, such as the trademark community, are now less active as a result of ICANN decisions on UDRP, on procedures for expansion of TLD registries, and on other issues that have diminished their fears of adverse treatment.

With an ALSC report and one SO expansion proposal forthcoming, and more proposals likely before the November annual meeting, the Board and ICANN's stakeholders will need to address the question, "How many distinct advisory organizations are desirable in order to achieve the goal of effective and broad represenation in the ICANN policy process?" A corollary question is how to reformulate the stated missions of advisory organizations if more are to be created.

In the original vision of Supporting Organizations conceived by Jon Postel, the policy space was divided into three pieces and parceled out to the ASO, PSO and DNSO. Other interests did not get an equivalent seat at the table, primarily because their professional background in policy and level of interest in participating were completely unknown.

There are, of course, numerous reasons for the existence of advisory bodies in a non-profit corporation, and the sources of policy advice do not necessarily need to map to the allocation of representation interests. But because ICANN is chiefly a policy development organization with very modest operational responsibilities, it is desirable for reasons of both efficiency and timeliness of decision processes to make these two spheres of interest congruent for purposes of organizational structure and process.

But the SO's currently have a special role, which is to provide professional advice to the Board on fulfillment of its responsibilities for management of the domain name and address space of the Internet. Article VI of the Bylaws makes the recommendations of an SO in its assigned area of responsibility authoritative and presumptively correct.

If, and this is an important if, the groups included in proposals for new Supporting Organizations are willing to meet reasonable conditions of informed participation (see D.3 above), then there is good reason for them to be given explicit roles in policy development and consensus formation as part of their representation responsibilities.

With respect to the possible creation of new SO's in 2001, some thoughts are presented in section F below.

D.6 Funding of Participation

Several issues confront the Board when it considers the costs of participation in ICANN policy development. They include: (a) what level of financial assistance is needed to provide for high quality participation; and (b) to what extent should participation costs be part of the annual ICANN budget which is funded by contributions from registries and registrars?

D.6.1 Funding levels.

Experience to date suggests that the costs of an ICANN Supporting Organization are between $50,000 and $250,000 per year, depending on the size of its Council and subordinate organizational units, the frequency of face to face and electronic meetings, the scope of the secretariat services that are required, and the extent to which costs are monetized and recognized. In addition, it should be noted that the total resources consumed in the SO participation process are larger than these amounts since the personal time of the individuals involved is either subsidized by their employers or contributed by the individuals themselves.

The least costly of the existing SO's has been the PSO because the costs of its secretariat are provided on an in-kind basis by the signatory organizations of its MOU with ICANN, because it seldom meets except in conjunction with other meetings which its members are already scheduled to attend, and because much of the work for its policy area is actually performed during meetings of the constituent organizations, e.g., IETF. Since the ASO operates in a similar fashion, its costs are also low.

The most costly SO is the DNSO, which is large and complex organizationally, meets face to face at every ICANN meeting, has a funded secretariat, and is in the process of funding a dedicated staff position to support its work.

These cost projections do not include the costs of an At Large election process of the possible size or scope of the election held in 2000.

D.6.2 Supporting Organization funding from the ICANN Budget.

As is suggested from the previous description of organizational differences among the existing three SO's, the PSO and ASO have had little difficulty in self-funding their participation costs and have not sought funds from the ICANN budget. The DNSO has had less success in identifying an adequate level of internal financial support for its work and did request $100,000 in funding for FY2001-2002, but too late to be included in that budget cycle. Among the issues which the request has raised are the question of how to establish a basis for financial accountability without compromising the ability of the DNSO to conduct its own affairs without undue influence from the Board in the form of financial control, and the extent to which policy development by various stakeholder interests should be a component of and a responsibility of the base funding provided to ICANN through the domain name and address registries and registrars. Particularly in view of the need for staff support to whichever solution to At Large representation is adopted and of the likely expansion of the number of SO's, the ICANN staff will need to be expanded by at least one full time professional position to ensure that coordination of policy processes occurs in a timely and effective manner.

These issues will also affect decisions on creation of additional Supporting Organizations, especially if the proposals request ICANN funding.

E. DIRECTOR SELECTION ISSUES

E.1 Background

Because ICANN is a non-voting member type of non-profit corporation, its processes for identifying Directors are more accurately described as selection rather than election, regardless of the specific means which its Supporting Organizations and the to-be-determined At Large mechanism use to fill the seats allocated to them. The ICANN Bylaws are permissive rather than prescriptive with regard to the selection procedures, assuming that the required commitment to full and open participation will lead to fair procedures within the SO's that ultimately result in the selection of Directors.

E.2 At Large 2000 Director Election

As a result of the March 2000 Cairo Board meeting impasse on At Large representation, the Board directed the staff to revise the At Large member registration process then in progress to provide that instead of the election of the members of an At Large Council, the election would be for five Directors, one for each of ICANN's geographic regions, to serve two year terms commencing at the annual meeting in 2000. See <http://www.icann.org/minutes/minutes-10mar00.htm> for details of Board actions concerning At Large issues taken at the Cairo meeting.

The Board's decision was to hold this form of election once and to evaluate the results and related issues through appointment of a second At Large study committee following the 2000 annual meeting in November. The election was organized and conducted in the six months from early April through early October of 2000. Details of the nomination process, the voter activation process, the campaign process, the voting process and vendor, and the election calendar were developed by Board committees, staff and consultants and approved by the Board during April, May and early June. Final decisions were made at the Board meeting in Yokohama in July. See <http://www.atlargestudy.org/documents.shtml> for a variety of statistics about the election.

Member registration ended on July 31, at which point 143,806 valid member records had been created through an entirely online process. Activation of voting records ended at the beginning of September, at which time a total of 76,183 voter records had been created by means of members individually logging on to the registration site and entering their password, which had been distributed by email, and their pin number, which had been distributed by postal mail. Voting occurred over a ten day period on the election.com site at the beginning of October, during which 34,035 votes were cast. The voter turnout was thus about 24% of those who registered, or 45% of those who registered and completed activation.

The cost of the 2000 At Large project was approximately $350,000, of which $200,000 was received in the form of a grant from the Markle Foundation, and $150,000 was appropriated by the Board from ICANN's reserve account to cover the added costs resulting from the changes in the project and in the voting adopted after the Cairo meeting. This is a cost of about $2.40 per member record, $4.60 per registered voter, and $10.28 per vote.

Of the total costs incurred, approximately $150,000 or 43% were variable in the form of the printing, mailing, postage and handling costs of the letters sent to registrants which contained their pin numbers. The remaining $200,000 were largely fixed project costs including hardware and software purchases; contracted systems design, programming, testing, installation and optimization; voting system vendor contract; translation and other forms of member and public outreach, member and voter information and communications costs; temporary clerical help and project management and administration. No ICANN indirect costs, office support, general computer facilities, management or administration were charged to the At Large project. In addition, several hundred hours of skilled professional time were contributed pro bono over the course of the project. Thus, the total recorded cost of $350,000 is 25% to 50% lower than it would be if fully costed on ICANN's books or had been completely contracted out. However, some of the costs incurred were due to the project's first time nature and some of them are subject to economies of scale depending on the nature of the Board's decisions about any future At Large Director selection process. The net upward and downward impact of these budget factors would require careful analysis in order to develop a financial projection and funding requirement for the next stage of At Large development.

The cost figures above also do not include any of the expenses incurred by the individuals and organizations who actively participated in the election process, which in some regions were substantial and no doubt well in excess of the ICANN costs noted above.

E.3 Successes and Failures of the 2000 At Large Election

Under the constraints of limited time and severely limited resources, the 2000 At Large election nevertheless selected five Directors who more than meet the desired qualifications of an ICANN Director. All five brought to the Board from their respective regions a substantial level of experience in different aspects of Internet development, operations and business activities. Their participation since being seated as Directors at the annual meeting in November, 2000, has been active and thoughtful. The majority view of the new Directors has been well aligned with that of their fellow Directors.

Unfortunately, the results of the election experiment revealed a number of systemic flaws in the process, of both a one time and ongoing nature, as well as raising a series of issues about the nature of the election itself that were never resolved in its conceptualization.

E.3.1 Election conceptualization problems.

The Board, MAC and community discussions on At Large in 1999 were based generally on the premise that there was an active but relatively small group of individuals not formally affiliated with one of the SO's who wished to participate as At Large members and either were or would be willing to become sufficiently informed on important issues to be able to make effective contributions to the policy development process. At the Berlin meeting in May, 1999, one American academic asserted that he doubted there were more than 1000 individuals on the planet who were seriously interested in being At Large members. This was the prevailing wisdom until the Cairo meeting in March 2000, where the Markle Foundation sponsored study of At Large, conducted by the Washington, DC based Center for Democracy and Technology and Common Cause civil liberties organizations, was presented. The study asserted that there was a large, worldwide electorate which should be accorded the right to register and vote in a direct election to be conducted essentially on the basis of popular democratic standards.

The Board, then fifteen months into an At Large design process that had been expected to be completed early in 1999, capitulated to this view and changed its previously adopted indirect election plan to a direct election plan. The Board's decision left unanswered the important questions of how to define an electorate for an At Large organization that could contribute to ICANN's mission, how to measure the success of a membership campaign for that electorate, and how to evaluate the legitimacy of the actual voting in terms of its fairness as judged by the standards applied to legislative elections in democratic countries. These questions remain unanswered today, but some comments are possible.

Assuming that the electorate were to be limited to individuals who are regular users of the Internet, which was a registration requirement of the 2000 election by virtue of the fact that a valid email address was required in addition to a valid postal address, then the worldwide number of Internet users is currently estimated by various sources at 350 million to 450 million and growing by 50 million to 100 million per year. Industry experts are quoted frequently in the press that there will be one billion users by 2005. The number of At Large registrants who actually activated their voter registration in the 2000 election, 76,183, is approximately 2/100ths of a percent of the potential electorate if the lowest projection - 350 million - is used. The number of actual votes, 34,035, is equal to 1/100ths of a percent. These are not numbers which meet any test related to democratic legislative elections.

It might be observed that the haste with which the election was conducted, and the numerous occasions on which an underdesigned system prevented individuals from registering, resulted in an artificially low number of registrations and votes. While this is undoubtedly a correct observation, the result of lifting the capacity and time limits would also plunge the election process into financial calamity. If there were one million registrants in a new open direct election, still far from an acceptable percentage of the electorate by legislative election standards, and if the cost per registrant could be cut to 100% over the variable costs, or $2.00 - a very ambitious goal - then the election costs would exceed $2 million per year. This is clearly an amount beyond ICANN's financial reach even before considering its utility in the context of other claims on available budget resources. Further, if the election were truly open to an electorate of all worldwide Internet users, there would be no assurance that registrations would be limited to one million, especially if the types of aggressive registration campaigns that were mounted in China, Germany and Japan in 2000 (these three countries accounted for 59% of all registrations), were repeated and were emulated by other countries seeking to achieve a fair share of their users among the registrants. Beyond these conclusions, the creation of a body of a million plus individuals for whom ICANN would have an ongoing obligation to provide At Large member outreach and education would pose additional insuperable financial and administrative problems.

The adoption of an open, worldwide At Large election process with an electorate of all Internet users is not an affordable goal for ICANN, even if it were tangibly related to the corporation's mission, which it is not. The Board, with the assistance of the ALSC and its existing stakeholders, must come to agreement on a definition of At Large membership which contains participation requirements, preferably originating at the local and regional levels, which bring the numbers of members and costs of participation within limits that can be funded by means which are reasonably available to the Board and to the At Large membership.

E.3.2 Election integrity problems

Integrity problems in this context refers to the ways in which an election system, in this case an online worldwide election system, can have its intended authentication, verification and transaction processes defeated or damaged, thus making the election result questionable. Election systems, as Americans are very much aware of following the difficulties of their 2000 Presidential election, are not perfect. The points below summarize major items that caused trouble during the 2000 At Large election.

(a) Voting barriers. One of the tests of an election system's integrity is whether individuals who are qualified to vote and interested in voting actually are able to vote in a reasonable manner. Many aspects of the 2000 election system created voter difficulties, some of which are endemic to a worldwide system spanning many nations, cultures, languages, and levels of information infrastructure support, both electronic and physical. As an example, nearly 8,000 of the pin letters, out of a total over of 140,000, mostly from Asia, were returned as undeliverable. Without pins, these individuals were not able to vote. Another example is the lack of access to workstations and bandwidth in many parts of the world which suppport an encrypted web interface, which is a routine aspect of transaction handling on the Internet in the developed world. As a result of this problem, users who asked for an unsecure interface to the registration screens were allowed to make such connections in the interests of being inclusionary in a first election effort, with potential compromise of their registration information and privacy as a result. Attempts on the part of ICANN to remedy these problems to some uniform worldwide standard of giving everyone a fair chance to vote are not feasible considering the present state of the world's infrastructures.

(b) Fraudulent registration. One of the problems which the At Large project staff discovered was that possible fraud in online worldwide registrations is seldom black and white. Of particular concern were dozens of cases of multiple registrations from the same IP host address, and numerous registrations from the same postal address. Although these might be attempts to make fraudulent registrations, they could also be attributable to efforts at an Internet café in a developing country to assist individuals to join At Large, or to a father and mother being brought to At Large by their Internet active children. Over the five month registration period, hundreds of hours of staff time were expended in phone calls, emails, and postal letters in efforts to distinguish the honest from the dishonest efforts. At the conclusion of registration, some 33,000 registration records, or approximately 19%, were placed in a suspended category because of real or suspected registration fraud.

(c) Computer system vulnerabilities. As the massive impact of the recent Red Worm attack amply demonstrates, no computer system on the public Internet is safe from attack and penetration. Even when systems are not actively penetrated, malicious denial of service attacks, which flood servers with unwanted requests, can effectively take them out of service. Considerable effort was expended in the implementation of the At Large website and database to guard against intrusion. No compromise of the database during the registration and activation periods was detected, which does not mean it did not occur. In the culture of intrusion, many take pride in getting in and out without detection. These protective measures in some cases introduced transaction handling inefficiencies that reduced system throughput and it took many weeks to optimize the system performance to a level of more than 20,000 registrations per day, which was reached only a few days before the end of the registration period.

The recent report of the MIT/Caltech study of election systems concluded that the cumulative effect of network and system vulnerabilities on the public Internet at this time makes it unsuitable for legislative elections. Whether this judgment should also apply to an ICANN worldwide online election system is a matter for the Board and the community to review and decide.

F. CONCLUSIONS AND RECOMMENDATIONS

As of the date of this writing, there remain only thirteen weeks until the annual Board meeting at which decisions on At Large and SO expansion are planned to be made. It is time to draw the threads of study and analysis together into specific proposals for the Directors and the ICANN community to consider.

F.1 Evaluation of Representation Proposals

Proposals to the Board for improvements to ICANN's representation structures will be evaluated on several criteria. These may include:

• Greater effectiveness - the elements of the proposal, considered as a whole, represent a tangible improvement over the status quo, e.g., a greater reach of representation, more informed participation, more efficient handling of policy issue development, etc.;

• Attractiveness to major stakeholders - the proposal not only represents an improvement from the perspective of its proponents, but it has been endorsed by other major stakeholder interests in ICANN, demonstrating that consensus at the Board level is likely;

• Reasonable implementation and administration - implementation of the proposal is shown to be reasonable in the context of ICANN's managerial and administrative resources;

• Affordability - the proposal is self-funded or otherwise does not represent a significant drain on ICANN's very limited financial resources.

F.2 Priorities for Reorganization

Of the many good ideas for improving ICANN representation that have been offered, only a few potentially meet the tests described in the previous paragraph and also belong on the short list of issues that urgently need Board decisions at this year's annual meeting. These minimally appear to include the following:

(1) Stakeholder Reorganization. A reorganization of the DNSO and At Large stakeholder and constituency organizations is needed to better meet the representation needs and desires of the affected groups. The reorganization should make appropriate adjustments in the allocation of Director seats to provide representational equity. The At Large Study Committee's (ALSC) responses to questions (a) and (b) from its charter will be important to this decision.

(2) At Large User Advocacy Organization. The creation of a participative advocacy organization for individual user interests in ICANN's areas of mission responsibility is badly needed. The ALSC recommendations on questions (d) and (e) will be important to this decision.

(3) Selection of At Large Directors. A means for nominating and selecting At Large Directors must be established. The ALSC recommendation on question (c) will be important to this decision.

F.3 Recommendation on Stakeholder Reorganization

Perhaps the most difficult area for Board decision is revising the representation structure within ICANN. In the abstract, it is desirable that such structures be reviewed periodically and adjustments made to reflect changes in the community and in the organization's mission. In reality, corporate politics and established bases of power make such changes difficult. The issues are even more difficult in ICANN's case, where the question of representation for At Large individual user interests has been pending since ICANN's inception more than two years ago.

It is the author's view, based on the material presented in section D above, that individual users should be represented by a Supporting Organization tailored to their particular interests and ways of interacting. The requirements of Article VI of the Bylaws relating to SO's have sufficient flexibility in them to allow the At Large SO to encompass the important role of At Large users.

It also seems reasonable to respond at this time to the desire of some of the members of the DNSO to have their own Supporting Organizations. This will "decompress" the DNSO and potentially improve its functioning and its contributions to ICANN policy development.

There are clearly cost and efficiency tradeoffs between too few SO's and too many. The increase in Supporting Organizations from three to six suggested below represents a compromise between the efficiency of having fewer SO's and lower procedural and administrative requirements and expenses, and the functional utility of allowing many self-identified groups to function as Supporting Organizations.

Assuming that ICANN undertakes to fund the reasonable staffing requirements of those SO's which request it, the budget impact of this level of expansion on ICANN's central budget is likely to be in the range of $100,000 to $200,000 per year. This estimate does not include the costs of the new SO's which are internal to their own operations, such as meeting and election expenses.

Obviously, a case can and no doubt will be made that there are good reasons for the creation of additional SO's beyond three. However, the creation of more than three new Supporting Organizations at this time would severely stress the administrative and financial resources of ICANN. An expansion from three to six represents desirable incremental progress that will give the Board and its stakeholders an opportunity to test a limited expansion of representation in an orderly manner. For the first time in ICANN's history, to state it succinctly, every major stakeholder interest in ICANN will have "a seat at the table."

This recommendation proposes six Supporting Organizations representing the three major classes of stakeholders - developers, providers and users. Existing rights to select Directors would be reallocated as indicated below.

(1) a newly created At Large SO for individual users of domain names and addresses - 5 seats.

(2) a reconstituted DNSO for organizational users of domain names and addresses, both commercial and non-commercial, including intellectual property organizations - 3 seats;

(3) a newly created SO for the more than 240 national (cc) top level domain registries, whose special relationship with ICANN justifies a separate Supporting Organization to fairly represent their interests - 2 seats;

(4) a newly created SO for the ten global top level domain name registry providers and their registrars, whose members would have their existing accreditation agreements with ICANN revised as necessary to reflect the existence of an SO specifically created to deal with their needs - 2 seats;

(5) the existing PSO for DNS architects, designers, and developers - 3 seats; and

(6) the existing ASO for IP Address providers and administrators - 3 seats;

F.4 Recommendation on At Large User Supporting Organization.

The interests of individual users cannot be effectively developed and presented to ICANN's other stakeholders and to the Board without an At Large Council or equivalent mechanism for aggregating the views of a potentially large number of individual users. The Council must be allocated startup funding and staff resources, and it must be charged to develop permanent and independent funding sources for its work. As noted above in section D, whatever means is chosen to populate such a council, it should be focused on close ties to local and regional Internet user organizations so that the "grass roots" have a chance to participate in and influence the shape of this organization. The present At Large Directors, working with others from the At Large community, should be asked to lend their personal efforts to the planning and launching of ALSO in 2002. With teamwork and coordinated effort, a detailed charter for ALSO could be presented to the Board for adoption as early as the first ICANN meeting in 2002.

F.5 Recommendation on Selection of At Large Directors.

As described above in section E, although the Board has benefited from the contributions of an excellent group of five new Directors, the process through which they were chosen was fatally flawed, and no steps within ICANN's present financial or organizational reach can remedy those flaws sufficiently to consider another open, worldwide direct election process at this time. There are, however, a number of ways of designing an At Large Director selection process which could meet the appropriate standards of integrity and fair participation that are required. In general, these involve an explicit membership and an explicit connection to a recognized and verifiable local organization that provides a local culture and language-centered focus for participation and takes responsibility for authentication of identity and fraud prevention in membership activities including voting.

In the short time remaining before the November Board meeting, the design of such a selection system cannot be completed. The Board should consider appointing a working committee of representative and expert individuals to undertake the task. Depending on whether the Board adopts recommendation F.2 above relating to a new ALSO, the Board should consider deferring its decision on the selection mechanism until it receives a recommendation from the ALSO Council.

Author's contact information:
The Darwin Group, Inc.
339 La Cuesta Drive
Portola Valley, CA 94028
+1.650.854.2108 voice
+1.650.854.8134 fax
mmr@darwin.ptvy.ca.us