CYBER-FEDERALIST No. 11 September 15, 2001
The Future of Democracy in ICANN:
At ICANN's recent meeting in Montevideo, the At Large Study Committee (ALSC) released its draft recommendations for user representation in ICANN. , This document contains recommendations that may shape the future of democratic governance not only of ICANN, but of the Internet generally. Unfortunately, the document is deeply flawed. It abandons the foundational commitments made at ICANN's creation and proposes to radically reduce user representation in ICANN.
I start by commending the ALSC for providing a useful analysis. The report facilitates understanding of many issues surrounding user representation in ICANN. Moreover, it confirms what is by now widely acknowledged: ICANN's actions have public policy content. The report notes that ICANN's decisions affect users in a myriad of ways that users care about, including: "the potential use of IP addresses and domain names for identification or location of individuals and groups," the "competition and choice (or not) in the provision of various services," "domain name intellectual property issues," and "practices of gTLDs and ccTLDs."  Taken together, ICANN's policies in these areas constitute a form of Internet governance. It is encouraging to see this acknowledged in print.
Despite these useful points, however, the report's core recommendations are flawed in substance and in justification. If the recommendations were implemented they would radically reduce user representation in ICANN: a reduced number of board seats would be available to represent a reduced electorate. The ALSC justifies these recommendations with inappropriate principles of pragmatism (what can be implemented) and political expediency (what the current Board will accept.) The ALSC ignores the agreements hammered out in the 1998 International Forum for the White Paper (IFWP), in which the U.S. government, the Internet user community, and a wide variety of industry, government, and non-commercial groups agreed on a set of bylaws for ICANN. The IFWP agreement was founded on 1) the principle of equal representation of industry experts and users and 2) an inclusive vision of users. The ALSC, by proposing that the ICANN board unilaterally abrogate this foundational agreement, risks undermining the stability of the Internet.
In what follows, I analyze the report's substantive recommendations, the justifications for these recommendations, and the principles and justifications of the 1998 IFWP process. I conclude with some comments on the stability of the Internet.
Of the ALSC's many recommendations, three stand out. First, the ALSC proposes to reduce the number of At Large directors from nine to six.  This one-third reduction in user representation would end the balance of interests on the board, leaving users in a permanent minority of 6 directors on a board of 19.
Second, the ALSC proposes a corresponding increase of representation for ICANN's other constituencies. Stakeholders now represented by the three supporting organizations (ASO, PSO, and DNSO) would increase their directors from nine to twelve, thereby gaining a permanent majority of 12 on the board of 19. These stakeholders would be re-categorized as "developers" and "providers." 
Finally, the ALSC proposes to drastically redefine At Large Membership. The qualifications for voting would go from possession of an Email and snail mail address to being the designated contact in a domain name registration. (The proposed qualification for membership is somewhat misleadingly called "individual domain name holder"; in fact, it restricts the franchise largely to commercial organizations.)  This would change the membership in number and character. Since there are far fewer domain name registrants than users, the potential electorate would drop by an order of magnitude. More importantly, since most domain names are registered by organizations not individuals, this recommendation would transfer voting rights away from individuals and over to organizations. Significantly, most of these organizations would be businesses: since about two-thirds of all name registrations are in .COM or commercial domains like .CO.UK, the ALSC proposal would put most voting rights in the hands of commercial entities. Finally, the ALSC recommends attaching fees to membership, thereby creating a barrier to participation that is especially onerous to non-commercial entities. The overall effect of these recommendations would be to redefine the At Large Membership, changing the definition of an Internet user from an individual using the Internet to a business operating a host computer.
In their totality, the ALSC recommendations are radical: they would effectively eliminate individual Internet user representation from the ICANN board. Evidently, the committee took its "clean sheet" mandate to heart.
Justification for Recommendations
The ALSC offers three main justifications for its recommendations.
First, the ALSC frequently invokes "consensus." The draft report contains such phrases as, "we found no consensus support for the position that ...," "found potential consensus support for the notion that...", and "there is an emerging consensus that ..."  However, nowhere does it define the term. As readers may know, critics of ICANN have frequently complained of the invocation of consensus to justify top-down decisions. The draft report uses a similar rhetorical practice to justify its recommendations. Absent a meaningful definition of the term, however, this risks confusing readers into believing that a recommendation had wide, verifiable support. This seems unlikely, since the ALSC "... found it difficult to generate a high degree of interest in these issues."  Invocations of consensus to justify recommendations seem to be without basis.
A second, related justification used by the ALSC seems to be political feasibility. The ALSC justifies its recommendations by noting that they can win the top-down support of the Board. Here again the ALSC employs the language of "consensus": "We believe the approach with the best chance for consensus support is ... organizing ICANN along ... functional lines of developers, providers and users, by defining At-Large members as 'individual domain name holders' ..., and by providing these At-Large members with the opportunity to ... select one-third of its Board."  Here consensus seems to mean political feasibility and board approval. This justification also lacks merit. Since ICANN never fully implemented user representation on the board, the body remains dominated by industry representatives. The current board might be unwilling to approve any recommendation that would allow Internet users to counter-balance industry interests.
A final justification for the recommendations is pragmatism: the proposals can be implemented fairly easily. In particular, redefining users as domain name holders is justified as a way to solve the administrative problems of voter registration and authentication. The ALSC claimed that the alternatives, most notably the snail mail authentication system used in the 2000 election, "risks totally undermining the finances of ICANN."  Such assertions are not without merit, but they are also not completely convincing. ICANN pays very high staff salaries and legal fees, so the admittedly high costs of snail mail authentication of voters would be in line with these. The Markle-funded NAIS report has stated that it believes ICANN can afford to continue using the system used in the 2000 election.  In any case, the gain in cost-effectiveness would be accompanied by such a loss in user representation that this pragmatic justification is weak.
In summary, the ALSC has recommended radical changes to user representation in ICANN and has provided only weak justification for them. While the recommendations could be adopted by the ICANN board in a top-down proclamation, they have no demonstrated support in the broader Internet community and seem unlikely to attract such support.
ICANN's Founding Principles: The IFWP
For guidance on today's questions about the At Large Membership, the Internet community should turn back to ICANN's founding "constitutional moment," the International Forum for the White Paper (IFWP). Not only does the IFWP provide concrete answers to questions of user representation, it also offers a foundation of legitimacy for those answers.
As many readers will recall, following publication of the White Paper in 1998, the US government initiated an open, participatory process through which the Internet community could achieve consensus on the design of an organization to house the core technical functions of the Internet (the IANA). This process produced the original bylaws of ICANN. Accounts of those events are available from Mueller, Lessig , and Klein ,.
The IFWP produced the following agreements:
Principle of balance: the IFWP produced a design for the Board of Directors that is balanced between supply industry/expert representatives and user representatives. This balanced representation between suppliers and users is the keystone of ICANN's legitimacy.
Expansive conception of users: the idea for user representation in ICANN was developed by the Boston Working Group.  It is there that we can turn to better understand the definition of user intended for ICANN's bylaws. The BWG championed an open and expansive vision of users. Furthermore, that open definition was adopted and implemented in the election of year 2000.
Due process: the two principles above resulted from an extended, global, and participatory process, the IFWP "constitutional convention." While that process was not without problems (many stakeholders on today's board unsuccessfully attempted to move policy-making to closed forums,) it produced the two principles above. The principles of balanced representation and an expansive conception of users are founded on due process. The results of that constitutional convention are binding on all of today's stakeholders, including the ALSC and the Board of Directors.
The ALSC has recommended
The IFWP already addressed these issues in 1998. Its principles were:
The ALSC recommendations to effectively disenfranchise users, and the prospect of approval by the Board, must alarm anyone concerned about the stability of the Internet. The stability of the Internet depends on the professionalism of the men and women who govern and administer ICANN. That professionalism must include a willingness to honor commitments, to respect the rights of other stakeholders, and ultimately to accept the rule of law. As the NAIS report notes , the ICANN board has already re-written its bylaws nine times since its incorporation -- a practice that European Commission official Christopher Wilkinson characterized as "extremely cavalier."  The ALSC recommendations risk carrying ICANN further down this path. This would be a disaster for the Internet. Disenfranchising users and unilaterally abrogating the commitments made in 1998 opens the way for unrestrained expansion of ICANN's mission into additional areas of Internet governance. It removes constraints from capture by the Internet supply industry and from self-interested actions by the Board. It would fatally undermine public confidence in ICANN. ICANN's legitimacy would be grievously compromised.
The ALSC should thoroughly revise its draft report to eliminate conflicts with the letter and the spirit of the IFWP agreements. Likewise, the ICANN Board of Directors should reject any recommendations that conflict with the letter and the spirit of the IFWP agreements. A unwavering commitment to the rule of law is essential for the stability of the Internet.
The Cyber-Federalist is written by Hans Klein:
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