CONTENTShttp://cyber.law.harvard.edu/rcs/macsing.html

1.1 Purpose
1.2 Background
1.3 Methodology (link to names of experts, rcs personnel)

2.1 Purpose
2.2 Relation to ICANN
2.3 Relation to Supporting Organizations

3.1 Who is a Member

4.1 Defining “capture”
4.2 Who might capture, and how?
4.3 General and specific prevention

5.1 Direct or Indirect Voting
5.2 Nomination Principle
5.3 Candidate Qualifications
5.4 Nomination Process

1.1. Purpose of Report

This document has been prepared by the Membership Advisory Committee (MAC) of the Internet Corporation for Assigned Names & Numbers (ICANN) and the Berkman Center for Internet & Society (BCIS) for the purpose of soliciting comment from the Internet community on the subject of the at-large membership of ICANN. Under the Articles of Incorporation and the Bylaws of ICANN, the MAC has the responsibility for proposing structures for the at-large membership, in accordance with the principles laid out in the U.S. Government's Statement of Policy on the Management of Internet Names and Addresses (White Paper) and ICANN Bylaws.

This document is being developed in preparation for the March 2, 1999 ICANN conference in Singapore, when the MAC will make recommendations to ICANN regarding membership structure. Public comment on this document is welcome and may be made in electronic form to membership@icann.org.

We are preparing this report in an effort to clarify the options and their effects before the MAC in making its recommendations and the Initial Board in making a final determination. The report raises arguments and objections, gathers experiences and points of view, and explores ideas. Most of the questions have several viable alternatives; this report attempts to focus on the competing values served by each. It is expected that the MAC will make its final report public, so that its data and reasoning processes will be well-known.  This report does not contain any specific recommendations made by the MAC or by ICANN.

1.2 Background

United States President Clinton, as part of his Administration's activities in support of global electronic commerce, announced the process leading to privatization of the domain name system (DNS) in a directive dated July, 1997. Subsequently, the U.S. Department of Commerce issued a Request for Comment, and, after receiving public comment, developed "A Proposal to Improve the Technical Management of Internet Names and Addresses," known as the Green Paper, in January, 1998 [published in 63 Fed. Reg. 8826-33 (Feb. 20, 1998)]. A principal aim of the Green Paper was to "privatize the management of Internet Names and Addresses in a manner that allows for the development of robust competition and facilitates global participation in Internet management." (U.S. Department of Commerce, "Management of Internet Names and Addresses," (White Paper) describing the Green Paper.) After receiving comments and critiques from many quarters, the Clinton Administration issued the revised White Paper proposal. The White Paper calls for the creation of a private, non-profit corporation to handle four primary functions in a coordinated, centralized manner: (1) determining the policy and allocation of IP number blocks, (2) maintaining the Internet root server system, (3) determining the policy for adding new Top Level Domains (TLDs), and (4) and coordinating the assignment of technological parameters.

The White Paper also sets forth four key principles to frame the new corporation:

Competition: Where possible, market mechanisms that support competition and consumer choice should drive the management of the Internet.

Stability: Stability should be the first priority of any proposed DNS management system, and any administration body should seek to maintain security and reliability of the DNS.

Private, Bottom-Up Coordination: Any new DNS management system should reflect the bottom-up governance that has characterized the development of the Internet to date.

Representation: The new corporation should be operated for the benefit of the Internet community as a whole. Management structures should reflect the functional and geographic diversity of the Internet and its users and decision-making processes must ensure international participation.

These four White Paper principles have informed the drafting of ICANN's Bylaws and Articles of Incorporation, and must be considered when formulating proposals for ICANN's at-large membership structure.

1.3 Methodology

This report is was generated from an outline provided by Greg Crew of the MAC with additions from other members and advisors of the committee.  Additional structure was provided by Wendy Seltzer of BCIS based on the research being conducted at Harvard. The MAC outline was then published on a Bulletin Board at http://cyber.law.harvard.edu/mac/bbtop.htm and pointers were sent to several listservs such as IFWP, ORSC, BWG, domain-policy and the newly-generated membership@icann.org.; See BCIS data concerning list participation.

This document is the distillation of comment drawn from the archives of the listservs and from MAC committee meetings and internal communications. In addition, BCIS staff, coordinated by Kimberly Isbell, have undertaken a sytematic effort to identify and conduct personal interviews with experts in membership organization. Part of that project included a public panel presentation and breakout discussion sessions at a workshop on representation in cyberspace in January. Comment from the workshop has also been included in this report. Finally, relevant sections of the White Paper; the Memorandum of Understanding, the ICANN Bylaws and Articles of Incorporation, and the California Corporations Code have also been cited.

2.0 PURPOSE OF AT-LARGE MEMBERSHIP

2.1 Purpose of the Membership

The at-large membership will elect nine members of the Board of Directors.

According to the White Paper, the Board of Directors for the new corporation "should be balanced to equitably represent the interests of IP number registries, domain name registries, domain name registrars, the technical community, Internet service providers (ISPs), and Internet users (commercial, not-for-profit, and individuals) from around the world." Some of these entities will be represented by the Supporting Organizations, each of which has the right to nominate three candidates to the Board. It falls to the at-large membership to ensure that the remaining interests have a voice on ICANN's Board of Directors.

The at-large membership will also ratify changes to the Bylaws and Articles of Incorporation. Because ICANN must operate "for the benefit of the Internet community as a whole," and must reflect the "functional and geographic diversity of the Internet and its users," the membership structure should represent this global Internet community. A broad-based membership will help to provide representational legitimacy to ICANN as the body tasked with managing domain names and numbers.

Public comment indicates that the at-large membership should both establish the consensus necessary for Internet self-regulation and highlight areas in which consensus cannot be reached, thereby presenting to the Board the varying approaches of a diverse group of Internet users.  While the SOs have a responsibility to ensure connectivity, the at-large membership should protect the "right to connect" by blocking any undue interference with access.

Q1: What is the purpose of the at-large membership?
Q2: How should that purpose relate to the purpose of ICANN as a whole?

2.2 Relation to ICANN

The at-large membership could either be within the ICANN corporate body or could operate at a reserve, as the Supporting Organizations do.  The benefit of such a firewall is the reduction in exposure to frivolous shareholder derivative suits, which can be a serious drain on both finances and personnel.

Regardless of the membership structure, comment supports the idea that ICANN should provide some services, including an informational website, voting mechanisms, registration and billing services, and mail service. ICANN could provide further member services, but such services would increase the cost of maintaining the at-large membership.

Q3: If the at-large membership is a separate organization, how would it be defined?
Q4: What services should ICANN provide to its membership?
Q5: What resources should be devoted to the at-large membership? If any, will these resources derive from ICANN's general budget to should there be a separate funding mechanism?

2.3 Relation to Supporting Organizations

At-large membership is clearly distinct from membership in an SO. The question is left open, however, whether individuals or even organizations may be both members of an SO and ICANN at-large members. This is of particular concern to IP address and domain name holders if they are not provided a voice in the SOs.  Even if they are recognized in the SOs, there is some public support for the idea that members of ICANN's Supporting Organizations should be included in the at-large membership, perhaps without voting rights since that would result in over-representation for those who could vote in both.

If ICANN adopts a full or partial registered membership, SOs could be made members without the right to vote for at-large directors. If members of SOs are prohibited from joining ICANN as registered members in their own right, an expensive registration and cross-checking mechanism would be required on the part of both ICANN and the SOs to police this, and the check could be readily bypassed. Similarly, if no registration is required to vote, members of SOs could vote for at-large directors as without registering. If the at-large membership includes organizations, organizations could belong to multiple SOs as well as the at-large membership. Additionally, employees of corporate members of SOs could vote for at-large membership, regardless of whether registration is required for voting.

Q6: Should SOs and/or their members be included in the at-large membership and/or be allowed to vote for at-large directors?
Q7: If SOs and/or their members were excluded from the at-large membership, how would that exclusion be regulated and enforced?

3.0 MEMBERS 3.1 Who is a member

Differing conceptions of membership make tradeoffs among the values of participation, representativeness, deliberation, and efficiency. By calling for ICANN to manage names, numbers, and addresses "for the benefit of the Internet community" without defining that community, the White Paper opens a wide range of potential constituencies.

Possibilities include: everyone in the world (regardless of Internet access); all Internet users (individual and corporate); domain name holders; IP address holders; ISPs; entities that use the Internet commercially (such as banks and corporations); educational institutions; public interest organizations; organizations composed of a minimum number of Internet users constituted for the purpose of representing their views to ICANN; and individuals only (excluding corporate and organizational members). Further undetermined is whether organizations, individuals, or both shall be members, or how, if both are admitted, their votes should be weighed against one another.

Other models have been presented which draw upon two or more of the preceding categories, such as that all domain name holders are automatic members through an additional fee charged at registration, while allowing for others to join on their own initiative. Some add a suggested division of members into classes, with differing rights and privileges.

Of particular concern to many who have responded are future users of the Internet. Public comment suggests that users of any background should have the opportunity to be represented by ICANN, and that membership should not be restricted to Internet-intensive organizations [see the "Internet users issues" presented by IT Finance to ICANN board on 25 November 1998 in Brussels]. Certain "developing" entities are not currently active in the Internet community, but will become so. These, including citizens, governments and institutions of developing countries; small and medium-sized enterprises everywhere; educational institutions on limited budgets; and users still unfamiliar with the Internet, may require special consideration. In order for these developing entities (especially those with little Internet connectivity at present) to participate, special provisions (aside from the Government Advisory Panel) may be necessary to secure their involvement in the process, without violating the current Bylaw restriction excluding government participation. At the very least, the final membership structure adopted should be flexible and dynamic enough to incorporate these groups as they begin to have a greater Internet presence in the future.

An alternative viewpoint expressed in public fora suggests that only users with a particular interest in ICANN's areas of responsibility (e.g. domain name holders and IP address holders) should be included in the at-large membership, and that others would be able to contribute ideas using the open communication facilities of the Internet. ISPs, for example, actually facilitate use of the Internet, and therefore are interested parties; they communicate with users constantly and therefore are aware of user needs and concerns. Democratic organizations, as well as "all-user" petitions and referenda could also be used to represent the disenfranchised.

There is also debate as to whether individuals, organizations, or both should be included in the at-large membership. Organizational membership might lend stability that individuals (with lower levels of interest and greater time constraints) might not be able to provide. An Organizational structure could include a "public interest representative" or ombudsman to counteract any anti-individual tendencies that an organizations-based membership might have. Individual membership, however, promotes equality and, where both large and robust, may be less amenable to "capture" [see below].

Some have indicated that, while some individuals or organizations may not want to be active in the governance of ICANN, they might still want a "voice," and that the at-large membership and public comment procedures should be structured in a way that allow that "voice" to be heard. This presents a scalability issue: how can a potentially overwhelming number of individuals or organizations each receive attention, and know that their communications are being received and considered?

Q8: Who should be included in the at-large membership? Everyone?  Everyone with e-mail? Domain name holders?  IP address holders?
Q9: How should developing interests be accommodated while they remain a minority? Is the use of an ombudsman sufficient?
Q10: Should individuals, organizations, or both be included in the at-large membership?
Q11: Should non-members be afforded a "voice" other than membership?  If so, how?

3.1.1 Levels of Membership

If ICANN chooses a membership model other than one individual/one vote, it faces the question of how the membership should be structured and votes weighted.  The choice should be based on considerations such as: Will the Board be more accountable thereby?  Will it more effectively represent the interests of the different Internet communities? Will it mediate among competing interests to represent the objectives of the Internet as a whole (stability, expansion, fairness)?  Will it make ICANN less vulnerable to capture by a few strong interests?  Will it be simpler to manage, even though less representative?  Will it be easier to change in the future?

Some have suggested local chapters, such as those used by ISOC, to facilitate communication between ICANN and the membership. Such a structure would have the benefit of easing somewhat the problems of verification, as a local chapter in Bangalore is better suited to investigate the claims of a member from Bangalore than is ICANN staff in California; on the other hand there have been know examples of one idividual spoofing a chapter and attempting to highjack policy.  A major concern raised by this option is the fear that chapters with few users would be dominated by a few larger national powers (e.g. ccTLD registries, governments), but it is unclear whether this concern would be alleviated or aggravated by an undifferentiated at-large membership which includes the entire world. Another variation would permit large membership associations such as ISOC, AIP and others to partner their memberships with ICANN such that membership in one is included in the other.

Many have commented that in an at large membership comprising both individuals and organizations, counting corporate and individual votes equally seems absurd. To alleviate this problem, some have suggested separating the at-large membership into two (or more) tiers, with different rights assigned to each tier; or the possibility of a bicameral structure with each "house" having an equal voice, but perhaps different institutional limitations.

In a two-tiered model, organizational members could either receive votes with greater weight than individual members (with some formula to determine the proportion), or could receive no vote at all (election of at-large board members being the sole province of individual members), but get another mechanism for raising their concerns with the Board. Even if organizational members could not vote for at-large members, they might still be granted the ability to vote for ratification of changes to the Articles of Incorporation and Bylaws, or in referenda.

One area of concern in such a two-tiered model would be the possibility of "double-counting" the votes of individuals who are both members in their own right and members of constituent organizations. It would seem difficult, if not impossible, to effectively identify and disqualify such individuals, however. Yet given a large enough individual membership, the problem of such double-counting could be minimized.

Another possibility would be a two-tiered structure in which organizational and individual members voted for separate candidate pools to fill slots on the board. Seats could be apportioned to each tier (subject to the geographic provisions of the Bylaws), or the "elections" in each tier could be a for members of a candidate pool that would then go before the entire membership for a vote (subject, again, to the geographic provisions of the Bylaws).

In either a two-tiered at-large membership or a membership comprised solely of organizations, ICANN faces the question of weighing organizations' votes relative to one another Should the vote of an organization with 50 members be given the same weight as an organization with 100,000 members? While weighting the organizational votes according to membership size would avoid this problem, it places ICANN in the position of having to verify membership numbers and raises the possibility of fraud through inflated membership roles. In addition, ICANN must then verify corporate or association status.

Finally, should for-profit and non-profit organizations be in the same class, or placed into different classes? Although both should probably be separated from the individual membership class, their lack of common interests suggest that it might be better not to lump them into one undifferentiated "organization" class.

Q12: Should ICANN's structure be based on a local-chapter model?
Q13: Should individual and organizational members be separated into different tiers?
Q14: Should individual members and organizational members be given the same rights, and have their votes weighted the same?
Q15: Should organizations with different sized memberships have the same voice?
Q16: Should for-profit and non-profit organizations be treated the same?

3.1.2. Criteria and Authentication

Depending on who will be included in the at-large membership, ICANN must develop criteria which parties must meet before becoming at-large members. These criteria could include an online access requirement and/or a requirement that the member have a unique e-mail address. Stricter qualifications, such as academic or professional requirements, might be appropriate if ICANN relied on the at-large members for technical expertise, but less relevant to getting a broad sense of the interests impacted by ICANN actions. Even minimal criteria of online access could pose barriers to members from developing countries and future Internet users. If members were structured in local chapters, these could set up their own more finely-tuned regulations, possibly bringing ICANN closer to local publics.

ICANN must decide whether or not to verify these criteria and/or authenticate member identities. This is especially true if the at-large membership model includes both individuals and organizations and attempts to prevent double-voting by individuals already represented by organizations. In the case of domain name and IP address holders, verification could be done at the time of domain name/IP address [re]registration. In the case of organizational and individual identity, this could be done through the ISP (although there will be some who do not have an ISP, and thus an alternative means of verification would be necessary). Corporations could be made to produce proof of incorporation; associations to produce their constitution and membership list. All applicants could be required to produce their own or a representative's name, address, phone number (when available), and e-mail address, although there might be privacy concerns with providing such information.  Needless to say, the burden of verifying such documentation could be staggering.

Some public commentators have proposed that membership be determined by an ICANN committee or by an external professional organization (assuming a model other than one where anyone can become a member and vote, without meeting any criteria or being subjected to any verification). Various suggestions have been made concerning its structure and functions, including the following:

• A Membership Committee of ICANN shall be formed, comprised of one member of the Board, who will also act as the Committee's Chairman and help report on Committee activities to the Board, and five members to be chosen by the general membership. The Membership Committee's function will be to review applications for voting membership in ICANN.
• An international legal association might assist in advising the Committee of the methods of verification in each jurisdiction.
• The Committee will circulate applications for membership among its members, or otherwise perform its function, with as little expenditure of time and effort as possible and by employing Internet-based communications.
• The Committee's function is to include in ICANN as many entities with an interest in domain names as possible, rather than to exclude any entities or parties by devising restrictive practices or by exerting personal prejudice, and that cases of rejection of an application for membership will be unusual, the onus of defending such rejection bearing on the Committee.
• ICANN should be proactive in encouraging domain name and IP address holders to be members; therefore, this process could be done automatically (although voluntarily) at the time of registration, with fees being included in DN/IPA registration fees.
• The Membership Committee should be combined with the Elections/Nominations Committees (see below).

There are several potential advantages to requiring a signed application for membership, either faxed or mailed by post: it gives a weak additional form of authentication, it would make it somewhat difficult for a single individual to submit many applications in bulk, it would give a weak screen for frivolous members, and it could spell out clearly what the rights and obligations of membership were, in a legally binding way. In particular, it could specify rules of conduct for discussion, rules that could be enforced. This last advantage could also be met by posting membership conditions on a website, and requiring applicants for membership to state in an e-mail application that they have read and accept the conditions for membership (either of which would theoretically be more palatable to some courts than a provision that imputes agreement from the action of accessing a website).
 
Q17: Should there be criteria membership?  If so, what?
Q18: How should it be decided whether a party meets those criteria?
Q19: How should parties verify their identities?  What investigation of documentation, if any, should ICANN undertake?
Q20: How should privacy concerns associated with verification be addressed?
3.2 Fees

According to the California law, "Subject to the articles or bylaws, memberships may be issued by a corporation for no consideration or for such consideration as is determined by the board" (Cal. Corp. Code § 5311). This gives the Board discretion as to whether or not to charge a fee for membership. There are advantages and disadvantages to charging a fee for membership. If no fee is charged, the membership will be more accessible, easier to administer.  ICANN's business product, after all, is names and numbers therefore its revenue should come from those activities, not from membership dues.

There have been suggestions, however, that members will be more likely to take seriously and participate in an organization in which they have made a monetary investment. It has been suggested that at a minimum, the fee should cover the costs associated with processing the application and providing for that member to vote and participate in ICANN. A high enough fee might also aid in preventing "capture," as described below, and in preventing massive fraud via multiple-registrations. A fee that is too high, however, might exclude many individuals with a stake in the process, and ensure that ICANN is dominated by wealthier corporate interests. Either way, until the organization has proven itself, many potential members would likely be unwilling to pay high fees.

Public commentary indicates that a fee should be no lower than US$5 and no higher than US$100. ISOC membership costs US$10/member, including one election. The fee could be scaled to consider local economies, with the scaling to be determined by the ICANN Board and/or Membership Committee, although this has been attacked by some as paternalistic. Critics of this approach suggest something more akin to an individual means test, either by scaling based on the individual's wealth, or setting the fee low and asking that those who can afford to pay more do so. The first option, however, presents an administrative nightmare; the second, while subject to collective action problems, appears to be the preferred method of solving this problem among organizations who have confronted it in their own memberships.

In the case of multiple levels of membership, fees could be scaled by membership status, as urged by participants at the Berkman Workshop in January. Corporate fees could be US$250-10,000 per annum; fees for associations of individuals could be US$250-1,000 per annum; and fees for associations of corporations could be US$250-50,000 per annum. The question again becomes whether to set a flat fee and encourage those who can to supplement that fee, or to devise a sliding scale based on net worth for corporations.

If an efficient process for collecting the fees is not designed, the fees will become more expensive to collect than they are worth. Credit card payment and a higher fee (US$100) would be the most efficient method, but could discriminate against those without credit cards (which would disproportionately affect the poor and those in developing countries).

At the Berkman Workshop, the consensus of the breakout session on elections was that it is acceptable to charge fees (or dues) to cover the reasonable costs of membership authentication and registration. Furthermore, it is urged that such fees should take into consideration the disparities between various national economies and reflect an equitable distribution of such costs. In this case, any such fees should not be considered a poll tax.
 

Q21: Should ICANN charge fees for membership, and if so, how high should those fees be?
Q22: Should all members pay the same fee?
Q23: How should fees be collected?  Credit card, debit card, checks?


3.3  Other Rights and Obligations

The rights of the at-large membership include "nominating" and determining a process for electing the at-large directors and ratifying Bylaw and Article amendments. Cal. Corp. Code § 5222 also permits them to remove directors without cause.  Obligations include registering as members, and possibly paying a fee. Members have limited liability for ICANN debts.

Under California law, members who elect board members can call for special meetings and bring derivative suits against a corporation.  The membership list must be accessible to all members.  Are there alternatives which are less burdensome on the corporate body but still serve to keep ICANN accountable?  Would a special website or paper publication which posts criticisms of the Board's actions  to which the Board would be required to respond be a sufficient substitute?  Would permitting a non-voting membership to nominate candidates for the Board be enough?

ICANN cannot grant special privileges to its members in exercising its basic functions, because it holds these powers in trust for the whole Internet community. It may, however, allow members to give input in a structured forum and to contribute to policy formation. Members would join, therefore, because they are motivated by an interest (which could be commercial or non-commercial) in the development of the Internet as a means for interaction with other users.  In addition, ICANN could provide discussion mailing groups, informational web pages, management, and root server system management so that the general public as well as ICANN members subscribed to the mailing lists will be able to contribute ideas on issues in a constructive manner. ICANN should provide for consideration of policies proposed and/or voted upon by the membership, and should provide information upon request within a reasonable amount of time to any and all members.

Other possible membership functions are supporting the work of ICANN, legitimating its authority, conscientiously studying candidates and determining which would serve most effectively, monitoring Board activity to ensure it meets the primary objectives of the organization and holding it accountable to the public interest.
 

Q24: In addition to the obligations established in the Articles and Bylaws, are there other responsibilities ICANN should take towards its at-large members? What privileges should ICANN at-large membership afford?
Q25: What should the at-large membership's responsibilities be toward ICANN?

4.1 Defining "capture"

According to the White Paper, ICANN should be "governed on the basis of a sound and transparent decision-making process, which protects against capture by a self-interested faction." Broadly defined, capture is the exercise of power disproportionate to a group's stake. Yet the understanding of capture itself differs according to the conception of legitimate sources of ICANN's powers. To James Fishkin, who places great weight on public representativeness, control by the self-selected interested parties amounts to capture. Selecting and educating a random sample of the relevant population would, he suggests, both raise the deliberative quality of decisions and ensure that they represented the broad scope of public interests. The self-selected membership appropriate to an interest group may not be the right power base for a regulatory organization, Elaine Kamarck suggests. Even among membership organizations representing interest groups, the "activists," as Fred Wertheimer described them, may not speak for the views of the members at large. This view of capture, that an interested minority may act against the interests of a passive majority, takes as its basis that every stakeholder should have an equal voice -- and moreover, that the quieter of those voices be sustained against the noisier interests.

By contrast, many of the participants in the process seem to feel that their involvement entitles them to a greater say in Internet management, or that technical expertise should merit them greater weight. Their involvement brings experience to the process. Likewise, organizations with financial stakes in the Internet may claim that they are more likely to be acting for the public good in bolstering Internet stability. An involved segment of the membership should not necessarily be said to have "captured" control from a disinterested majority.

Capture should probably be distinguished from outright fraud, yet the two may blur. Corporations might offer to fund the memberships of employees who agreed to vote as dictated by corporate policy. If the structure included organizational membership, a corporation might spin off subsidiaries or individuals might "incorporate" solely to gain additional memberships. Even a group of organized individuals might lobby uninterested people and buy their votes. In each of these cases, if the practice met the letter of the Articles and Bylaws, it would violate the spirit by giving disproportionate voice to some entities.

Q26: How will ICANN identify the legitimate interests of the at-large constituency?
Q27: How will ICANN define and recognize capture?
Q28: How should we distinguish between legitimate and illegitimate interests and means of pursuit?

4.2 Who might capture, and how?

To protect against capture, the organization should understand its likely sources and motivations. Participants in the working group were most concerned with threats of capture by national interests and corporations. Additional sources might be the Supporting Organizations, the current Board or represented interests through institutional stasis, and individuals.

Two different scenarios were of greatest concern with respect to national interests. The United States might be able to capture ICANN through the strictures of California law or through its bottleneck role in approving the transfer of authority to ICANN. It has also been feared that a large country such as China could enroll its citizens as members and dictate their votes, to swamp an election.

It is feared that corporations would not always act in the best interests of the "Internet community," but to strengthen their business interests or to weaken competitors. Corporations or corporate interests might pressure employees or business partners to support their positions, and would have significant resources for lobbying or registering disinterested members. If the corporations themselves were members, a small group might, depending on the structure of corporate membership, be able to threaten veto power as a lever. Existing corporate interests might try to entrench their power while denying membership to new entrants.

A Supporting Organization, with three of its own elected directors, would need fewer converts to capture the ICANN board. They, or an existing board, might be able to enact structures to perpetuate their power, through purportedly innocuous amendments or exploiting ambiguous current language. They might register enough non-voting members to prevent a quorum. Even though prohibited from endorsing candidates, the Board might use its official status to present one-sided information to members.  The Board might also capture the organization through any authority it might have to nominate members of an Internal Review or Nomination Committee.

With individual capture, the predominant question seems to be whether a self-selected group of activists could overwhelm the interests of a more passive majority. If ICANN had only sporadic contact with its members, many might not be aware of the possible impact of issues under consideration. Indeed, many of those potentially affected might not be members, leaving the "technical detail" to others.

Q29: Are there parties or interests that should not be represented by ICANN?
Q30: What might be the illegitimate interests of a nation or a corporation?

4.3 General and specific prevention

On a general level, transparency of decision-making processes will allow the at-large membership to serve as a check against capture of the ICANN Board. Early awareness of capture will most effectively enable members to take steps to counter it, such as voting to remove Directors or amend the Bylaws against future incidents.

It is suggested that in many of the classes mentioned above, competing interests within the class will serve as a safeguard. Given a transparent structure in which it is able to watch proceedings, one nation will not allow another to exercise superordinate power; a corporation's competitors will be alert to its threatened capture. One suggestion was that separate classes of at-large membership for national interests, corporations, and individuals would strengthen this natural check by focusing each on its most immediate competition. Another suggestion was that all of these levels of interest would be represented through individual at-large membership. Further, the perception that individuals were least likely to capture the organization suggests that the broadest feasible base of individual members might most effectively constrain corporate and national interests.

To guard against a larger-scale institutional capture, the Bylaws have some built-in checks. The Board is required to publish minutes of meetings (Article III, Section 2), to provide for notice and comment (Section 3), and reconsideration (Section 4). The nine at-large Directors balance the power of the nine SO Directors on the Board.

There were further concerns that ICANN not be captured against the interests of future users and those not represented in the initial membership. Sunset provisions, by which basic structures such as membership or election would automatically come up for renewal after a set time could help guard against capture by those interests with the current power to determine the structures.

Q31: Can member registration methods help to limit potential for capture?
Q32: How does prevention against capture balance against our interest in stability?

5.0 AT-LARGE VOTING

5.1 Direct or Indirect Voting?

The representational criteria established in the White Paper could be met by having a membership which is broad enough to reflect all interests, as discussed above. Or they could be met by targeting candidates who are qualified to serve this purpose, as considered below. There is one serious disadvantage to the stability of network administration that arises from a large membership base, however, and that is the threat of frivolous derivative shareholder suits. While legitimate shareholder actions act as a much needed brake on corporate excess, the US in particular is reknowned for the tendency of citizens to resort to expensive and time-consuming litigation to resolve differences of opinion. Simply defending the corporation against even frivolous lawsuits drains both personnel and financial resources and in turn adds to the cost of the service provided.

Any value to reducing the field of litigants must be balanced with the goal of designing a truly representative organization. California law (§ 5330) permits the establishment of different membership classes with different rights and privileges and some suggestions have been made which use this to point toward such balance. One example would be to establish a large membership which would elect a smaller body that actually votes on candidates. This is the approach being proposed for the Supporting Organizations. A variation on that theme is Deliberative Polling, a technique by which sampling techniques are used to indentify a smaller but statistically reliable population which would then be selected as the electoral body.

Q:33:  Should voting be directly by the membership at large, or through an intervening representative body?

5.2 Nomination Principles

The corporation Bylaws, in Article V, Section 9(c), require at a minimum that nominations shall come from "Internet users, industry participants, and organizations, and should give consideration to such nominees." Article V, Section 6 imposes obligations of regional representation on the Board. These sections reflect principles of diversity and adequate representation established by the White Paper. The Memorandum of Understanding with the Department of Commerce Section (8)(c) requests mechanisms that foster accountability to and representation of the global and functional diversity of the Internet and its users. The California Corporate Code § 5510-5527 permits a range of nomination procedures.

These principles are flexible enough to permit a choice of methods for nominating candidates. There are some limitations on who may be considered for election, however, and these will be examined first.

5.3 Candidate Qualifications

Article V Section (1) of the Bylaws prohibits Initial Board members from running for office until at least two years have elapsed from their initial service. Section (5) eliminates any official of a national government or a multinational entity established by treaty or other agreement between national governments. Section 9(d) prohibits directors from running for a third term.

A low barrier to nomination is inexpensive, easy to administer and results in the broadest possible selection of candidates for a representative Board. Failure to set other criteria for candidates may be quite costly on the back end, however. Spoofed nominations, fraudulent qualifications, and conflicts of interest may result in an election process that does not command the confidence of the Internet community. A large number of candidates may tax voters’ attention and lead to haphazard voting. Directors who are not sufficiently accessible to the Internet community will not be able to adequately represent those interests.

Consequently, the Membership Advisory Committee recommends that candidates be required to meet a minimum set of criteria which are objective in nature and which relate directly to the ability to perform the duties in an authentic, timely, and responsible manner. These suggested requirements are:

• proof of identity
• proof of citizenship at time of nomination as defined by the country of claimed citizenship (necessary to determine regional representation)
• biographical information not exceeding 250 words
• a statement of positions on issues not exceeding 250 words
• a statement identifying sources of income and possible conflicts of interest
• commitment to provide Internet access sufficient to fulfill the responsibilities of office
• commitment to provide adequate personal time to fulfill the responsibilities of office
• commitment to provide for own language translations as necessary to fulfill the responsibilities of office
• proof of adulthood

The Membership Advisory Committee believes that the best interests of the stability of the Internet are served when candidates provide sufficient, reliable information to enable members to make adequate evaluations. It is recommended that the candidate be required to submit proof in advance of the election that these criteria have been met.

Q34: How should the term "conflicts of interest" be defined?
Q35: Should the commitments to provide Internet access and adequate personal time be defined in more particular terms, such as a specific number of hours? Would they have an unreasonably discriminatory impact?
Q36: In placing the burden of accurate communication on the candidate, rather than requiring ICANN to provide translation services, will this unduly constrain a representative sampling of candidates?
Q37: Should proof of adulthood include a statement of age or simply a claim of qualification under the laws of the country of citizenship?
Q38: Should other disqualifications be added, such as a concurrent term as a Board representative of a Supporting Organization or Nomination Committee, or proof of campaign fraud? What standard of proof would be adequate?

5.4 Nomination Processes

Article V(9)(c) of the Bylaws states that the at-large directors shall be elected by a process that consists of "nominations from Internet users, industry participants, and organizations, and should give consideration to such nominees." Three methods for the nomination of candidates were considered: 1) self-nomination, 2) self-nomination with show of membership support and 3) recommendation by committee.

5.4.1 Self-Nomination

This option permits any member to be nominated by any individual or organization, including him/herself, whether or not the nominating party is also a member. It is simple, flexible, and easy to administer and provides the richest field of candidates unfiltered by special interests of any kind. The lower the entry barrier, the easier it is to respond to changing and emerging interests and such responsiveness is a key element required by the White Paper.

Q39: How will nominations from organizations be solicited as required by V(9)(c) if organizations are not members?

Low barriers also permit the entry of irresponsible and inexpert candidates. An over-subscription may result in a field of candidates so large that it overwhelms the voter and results in selection on the basis of irrelevant characteristics such as placement at the top of the ballot. Alternatively, failure of a sufficiency of candidates may produce an ineffective or unrepresentative Board.

5.4.2 Self-Nomination with Show of Member Support

This option permits the nomination of any member as above with an additional show of support from (25, 50, 100) members. The advantage is that it reduces the probability of data-smogging oversubscription and produces more validated candidates.

The disadvantages are that verification of support adds both delay and administrative burdens and may or may not actually produce more representative candidates. Further, candidates from countries with fewer Internet users might be disadvantaged.

Q40: How much support would be sufficient to assure legitimate interest without discouraging less well-known candidates?
Q41: Will this effectively rule out all but those individuals fielded by organizations?

5.4.3 Recommendation of Nomination Committee

A Nominating Committee may take responsibility for authenticating candidates, ensuring that an adequate field of representational nominees is available, and making selections for exceptional ability, effectiveness, and trustworthiness. These selections may be based on criteria established through membership consensus. The Nom Com might either select candidates from among the at-large membership or screen self-nominees. On the other hand, unless the Nom Com itself is selected in an authenticated and transparent manner, its choices may be perceived as totally unrepresentative and could lead to entrenchment of existing Board interests.

Q42: How would a Nom Com be selected?

5.5 Campaigns

The California Corporate Code places many restrictions on election procedures and many of them differ depending on the size of the membership, including, for large memberships, a 50-day minimum waiting period between the close of nominations and the election. Sections 5522 (b) and (c) dictate that all nominees be allowed a reasonable opportunity to solicit votes and have a reasonable opportunity to communicate to the members the nominee's qualifications and the reasons for the nominee's candidacy. On the other hand, Article V Section 9(e) of the Bylaws prohibits the expenditure of resources in support of any nominee for the Board.

An official ICANN webpage featuring a list of candidates would be of great utility to members. Inclusion of criteria data and links to candidate's homepages would be ideal.

Q43: May ICANN post a webpage with a list of candidates (and accompanying data as suggested a the previous section on Criteria) without violating V(9)(e)? Does this fulfill the dictates of California law?
Q44: Would a listserv for campaign discussion violate V(9)(e)?
Q45: Could ICANN underwrite other campaign debate fora, including the use of streaming media?
Q46: What is ICANN's obligation, if any, to provide foreign language translations of campaign material to the membership?

5.6 Eligible Voters

There are three categories of voters under consideration: individuals, corporations, and associations. The White Paper offers minimal guidance, stating that "The Board of Directors for the new corporation should be balanced to equitably represent the interests of IP number registries, domain name registries, domain name registrars, the technical community, [ISPs], and Internet users (commercial, not-for-profit, and individuals) from around the world." "Equitable" is not the same as "equal," however, and "Internet user" is never defined.

At the present time, the operating assumption is that each member shall be entitled to one vote on each matter submitted to a vote of the members. Consequently, a corporate member, regardless of its size, would only have one vote to cast. Alternatively, membership could be extended to all employees of a corporation, either as individuals or as representatives of the corporate member, but it has been suggested that this is not so reasonable a method of ensuring that a corporation's unique interests would be heard, as an employee's interest may not conform to that of the employer.

Q47: Should the pool of voters be identical to the pool of members?

5.6.1 Individuals

A vote limited to individuals adheres most closely to the one-man-one-vote principles of representational democracy. It prevents capture by governmental regimes or large corporations seeking to vote on behalf of their entire constituent populations. It is also most likely to produce the largest membership, most representative membership base, and greatest scrutiny of ICANN performance, but also likely to necessitate lower fees and higher administration costs. There seems little advantage to disqualifying an individual simply due to membership in a Supporting Organization or employment by another member since the burden of investigating these connections would be high and the rational for such disqualification is weak.

A larger membership base may result in paralysis if an indifferent, no-show population fails to produce the necessary quorum required on certain votes. California law sets the quorum requirement at one-third of the membership, unless raised by corporate Bylaws. The larger the membership, the greater the risk of derivative suits and other complaints. An individual-only membership diminishes the value of the stable resources and unique perspectives that organizations can contribute.

Q48: Should voting be limited to individuals?

5.6.2 Organizations

The White Paper advises "[t]he organization and its board should derive legitimacy from the participation of key stakeholders." Organizations (whether corporations or associations) are by far the largest category of domain and IP address holders. They have significant financial investments dependent on the proper operation of the DNS and their interests are often quite distinct from those of individuals. With individual corporations and organizations holding millions of domains, it seems less than rational, and potentially threatening to the stability of the Internet, to deny them stakeholder status. On the other hand, this would place extra value on financial interests at the expense of non-commercial interests. Giving organizations representation equal to the numbers of their employees/constituents, however, seems unrelated to the nature of their interest.

Corporations are easy to identify legally and some may be able to provide more resources (such as personnel and their transportation for intensive volunteer committee work and higher financial contributions) per capita than individual members. On the other hand, most corporations are individually owned and may suffer from the same vagaries as individuals, and "association" is an ill defined term with great potential for voting abuse.

The present demographics of domain and address holders may well change dramatically as the Internet population continues its rapid growth.

Q49: Should corporations have voting status as members?
Q50: Should associations have voting status as members?
Q51: How should associations be identified?
Q52: Should organizations have one vote each or one vo>

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/constituent or one vote per entity?
Q53: Should there be separate candidate pools for different kinds of organizations?
Q54: Should legal entities that are directly represented by the SOs be denied an additional vote in the at-large membership?
Q55: Should governments be permitted to vote on the same basis as other organizations?

5.7 International Representation

5.7.1 Regional Representation

Article V Section 6 of the Bylaws sets three conditions to reach the laudable goal of regional diversity. Unfortunately, they are mutually inconsistent and fraught with unnecessary complication. The terms require that (1) at least one citizen from each of the (5) geographic regions shall serve on the Board (other than the Initial Board) at all times; (2) no more than one-half (1/2) of the total number of at-large directors serving at any given time shall be from any one Geographic Region, and (3) no more than one-half (1/2) of the total number of directors, in the aggregate, elected after nomination by the Supporting Organizations, shall be citizens of countries located in any one Geographic Region.

This seems straight-forward until one turns to Article V(9)(b), which requires the Board to elect automatically the directors nominated by the Supporting Organizations. The SOs, however, are not required to meet any regional criteria. This leads to confusing situations in which elections of the at-large directors might be upset by prior inconsistent nominations by the SOs. Voters in the at-large membership have no way of knowing whether their vote for a particular regional candidate will be effective.

While sophisticated mathematical calculations, or superseding recommendations of a Nominating Committee, could resolve these complexities, they would necessarily occur after the fact of voting and still leave the at-large member at a significant disadvantage.

It is the strong recommendation of the Membership Advisory Committee that Article V Section 6 of the current Bylaws be amended to provide as follows: no two directors from the same SO may be from the same region; the at-large membership must include at least one director from each region and may have no more than 4 from the same region. The regional cap on the total Board aggregate of directors should be eliminated. The Bylaws may be amended at this point by a two-thirds vote of the Interim Board.

Q56: Should the Bylaws be amended to provide for more simple voting procedures to effect regional representation?
Q57: In the event of a lack of candidates from a region, should residents be permitted to stand for election?

It has also been proposed that at-large members might elect candidates from regional pools with the eventual nominees being the candidate with the highest number of votes from the region that must be seated to meet the Board quotas. Other commentators felt this would lead to an unhealthy fragmentation of cyberspace.

Suggestions have also been made to amend the Bylaws to provide for elections representative of language or other demographic characteristics, in particular "user density".  User density (number of users per capita) pools would ensure that developing nations are represented and correlates more accurately with the nature of the services provided by ICANN, however it may result in advantages to the more populous nations in each pool unless geographic limitations are also imposed.  Such proposals are worthy of more research and consultation. Article V Section 6 does, in fact, require the Board to revisit the regional representation Bylaw from time to time (at least every three years) to determine whether any change is appropriate, taking account of the evolution of the Internet.

5.7.2 Identification of Regions

Article V Section 6 asks the Board to determine the specific countries included in each geographic region. Where identification might be questionable, it would be most appropriate to align with RIR demarcations.  While not exhaustive, the following suggestions have been made and should be expanded upon:

1. Africa includes the African continent plus the mid-East to Iran and the West Indian Ocean Islands;
2. Asia/Australian/Pacific includes the Mid-East, Pakistan, India, China, Japan, Australia, Afghanistan and countries to the East, including East Indian Ocean islands, Antarctica, exclude US and L.American possessions.
3. Europe includes eastern and western Europe, N. Atlantic islands, Scandinavia, Turkey, Russian Federation plus previous members of USSR;
4. Latin America includes the South American and Central American continental nations plus their possessions, Caribbean Islands, and the S. Atlantic Islands;
5. North America includes the USA, Canada (including territories and possessions)

        Q58: How shall the remainder of the nations be assigned?

5.8 Voting Mechanics

5.8.1 Authentication of Voters

The consensus of the breakout session on Elections at the Berkman Workshop was that identification and authentication of voters should take place at the time of membership registration. At that point, an identifier can be assigned which will be used to assign ballots. No organization should be permitted to barter for votes or vote on behalf of individuals.

5.8.2 Ballots

Paper ballots (with double envelopes) can be used for greatest security (except in the case of cumulative voting, below). Digital certificates are expensive, not available everywhere, and not very user-friendly. Online polling using a member's registration code is an option. CD-ROM diskette applications bear further investigation.

If secrecy and anonymity are important goals, costs will be higher. A public website displaying every voter's ballot choices would allow for inexpensive electronic voting and permit fraud to be quickly detected, but would conflict with desires for personal privacy.

In order for cumulative votes to be used strategically, it is necessary first to know how many votes will actually be cast.  With this data, one can then calculate the minimum number of one's votes that need to be devoted to any particular candidate in order to elect that candidate.  Cumulative voting is therefore inconsistent with privacy and with paper ballots under § 5513(e) of the Cal. Corp.Code:

Directors may be elected by written ballot under this section, where authorized by the articles or bylaws, except that election by written ballot may not be authorized where the directors are elected by cumulative voting pursuant to § 5616.

These calculations may seem irrelevant in an organization where large numbers of shares cannot be accumulated; however if ICANN adopts the use of proxies such accumulations may in fact result.  Requiring physical presence, however, would effectively eliminate voting participation by members who could not travel for such purposes.

Q59: Should balloting be public or private?
Q60: What is the most cost-effective method of balloting?
Q61: Is cumulative voting preferable to voting by ballot?

5.8.3 Waiting Period

The Membership Advisory Committee recommends a month waiting before a newly registered member is permitted to vote. This will encourage more stable membership and reduce somewhat the opportunity to inflate the voter rolls to influence a particular election.

Q62: Should a waiting period be required between registration and exercise of the right to vote?

5.8.4 Voter Quorum

Serious concern has been voiced about a possible lack of voter participation. A large but apathetic membership means that it will be difficult to meet quorum requirements for the purposes of conducting elections or other business. If membership is restricted to smaller numbers, or the quorum reduced, this poses a higher risk of capture by special interests. The default quorum under California law [Cal.Corp.Code § 5512(a)] is one-third of the voting power represented at a meeting in person or by proxy unless the Bylaws specify otherwise. If the corporation has members, this particular Bylaw change may only be made by a vote of the membership [Cal.Corp.Code § 5512(a) and § 5034].

Q63: What percent of the membership should be required to constitute a valid quorum?

Q64: May electronic participation count toward the quorum requirement?

5.8.5 Voting Method

Unless otherwise specified in the Bylaws, each member is entitled to one vote on each matter submitted to a vote of the members. Candidates receiving the highest number of votes are elected. Cumulative voting methods are said to result in more accurate correlation's with actual voter preference, and the corporation may authorize cumulative voting if it desires. In that case, however, Cal.Corp.Code § 5513(e) proscribes the use of written ballots which would limit voting to those physically present at the meeting called for this purpose. To ensure that a quorum is obtained in that case, the use of specific (rather than general) proxies would be advisable.

Three alternative methods have been suggested.

1. Single Transferable Vote (STV)/English Preferential Ballot. Voters are asked to rank all candidates in order of preference. All 1st preferences are tallied and the candidate with the fewest 1st preference rankings is eliminated; the ballots for that candidate are then distributed among the remaining candidates according to their 2nd place preferences. This is repeated until the number of candidates remaining is equal to the number of positions open. While this method allows voters to cast meaningful ballots even if their first-choice candidate is certain to lose, it may produce voter confusion and disconnection from the final results.

2. Regular Cumulative Voting. If there are three positions open, a voter may use all three of his votes for one candidate or may divide them among different candidates. The candidate with highest number of votes wins.

3. Approval Voting (Vote Yes or No for each candidate, then tally results) or a variation known as Offset Approval (vote each candidate with a number between +10 and -50) or Rational Approval (vote Yes or No for each candidate, and divide the Yes count by the No count).

Q65: What voting method should be used to elect Directors?
Q66: Should specific proxies be permitted?

5.8.6 Number of Directors

The Bylaws currently call for staggered elections, three each year. It has been suggested that putting all nine seats up for election each year would result in greater protection of minority positions because it would require fewer votes (1/9 of the total as opposed to 1/3 at present) to win a seat on the Board. The disadvantage of this plan is that it reduces continuity, heightens inefficiency and discontinuity due to frequent possible turnover of personnel, and makes the Board equally susceptible to capture by majority interests. Any change requires an amendment to the Bylaws.

Q67. Should all of the at-large Directors be re-elected annually?

5.9 Enforcement

5.9.1 Election Management

California corporate law requires a number of detailed procedures surrounding the election of directors. These may be managed by ICANN staff or by an Election/Nominating Committee. In addition to overseeing the mechanics of the election process, including verification of candidate criteria, it may be necessary to investigate complaints, assess election misconduct and exercise enforcement procedures. The Berkman Workshop breakout group recommends that a standing advisory committee be established to oversee the mechanics of elections and other voting activities. By the terms of Bylaw Section VII(3)(c), the current Membership Advisory Committee will expire upon establishment of a process for the election of at-large directors.

Q68: Should a permanent advisory committee be established to oversee election procedures?

5.9.2 Fraud

The potential for fraud runs through the entire process of nominating and electing candidates and there is little chance at present that a cost-effective mechanism exists to eliminate it entirely. Any solution will be a compromise solution.

It is the strong recommendation of the Membership Advisory Committee that member identification and authentication should occur at the point of membership registration. Voter authentication should be tied (by issuance of a password or other code) to member identification.

Protections against voter and candidate fraud may be taken at several points in the election process. Prior to elections, the corporation could assume a low likelihood of fraud and simply rely on the honesty and diligence of of members and the degree of transparency in voting mechanisms. Candidates could be required to submit sworn statements verifying their eligibility. Waiting periods following registration permit time to authenticate members. Pre-election protections could be applied to all candidates and members, or random samples could be taken and more thorough investigations conducted if warranted by sample results.

Post-election protections include disqualification of candidates for candidate fraud, disenfranchisement of organizations engaged in fraud and de-certification of election results in egregious cases.

It is recommended that the standing committee on elections review these and other questions and make specific recommendations for consideration by the Board.

Q69: Should voter authentication be part of membership registration or part of the voting process?
Q70: How much and what kind of member/voter authentication should be required?
Q71: What standards of proof should be required in cases of voter/candidate fraud?
Q72: Should candidates be disqualified upon proof of fraudulent qualifications?
Q73: What is the consequence to a candidate on whose behalf fraud has been committed?

5.10 Amendments and Ratification

5.10.1 Approvals & Removals

It is traditional to make it difficult to change the principles of a corporation’s constitution (its Articles) but somewhat easier to change its laws (Bylaws). The present configuration of ICANN follows this practice. Bylaws may be amended by vote of two-thirds of the Directors but changes in the Articles will also require approval of two-thirds of the membership.

In exchange for flexibility on the Bylaws, however, ICANN corporate documents may deny the members their legal right to approve such changes. Section 5150(b) specifically gives members (defined as those who are entitled to elect the Directors) the right to approve adoptions, amendments and repeals of the Bylaws. While the Board’s right to make Bylaw amendments can be restricted or eliminated [§ 5150(a) and (c)], there is no provision which eliminates the right of the members to approve such changes. (???)

Cal. Corp. Code § 5222 also permits the removal of directors without cause on approval of the members.

Q74: Can the membership be excluded from exercising a right of approval over Bylaw amendments?
Q75: Do the Bylaws need to be amended to conform to California law?
Q76: Should ratification/removals be conducted under terms identical to elections?

5.10.1Referenda

According to the Bylaws (Article III, Section 4), the membership has the right to appeal ICANN decisions. The membership also elects Board members to act as representatives on its behalf. Members could further be allowed to petition ICANN for or against a proposal or Board decision, or to ask the Board or an SO to address a new issue. Comment supports the idea that while the Board should consider requests for policy formulation from any quarter, it will remain the Board's decision whether to act on a request.

While there is no specific requirement for the Board to consult the membership directly on matters of policy, one of the great values of the Internet is its utility as a means of mass communication. The Board is urged to use Internet consultation as an aid for reaching a broader consensus on policy matters.

Some mechanisms for accessing membership opinion include authoritative listservs, website comment boards, and more sophisticated opinion gathering mechanisms such as Deliberative Polling.

Q77: Should ICANN utilize outreach mechanisms for soliciting the opinion of the membership?

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Diane Cabell, Kim Isbell, Betsy Rosenblatt, Wendy Seltzer