“A Contract with You”

When ICANN’s Fadi Chehadé said that “The Affirmation of Commitments needs to change from being a contract between ICANN and the US Government, to a contract between ICANN and you” what exactly did he mean?  Was it just another Fadi-esque appealing turn of phrase? Was it anything more than a rhetorical jab at accountability to a wider public?

Or was Chehadé opening the door to a reconsideration of membership within ICANN?

Membership, after all, is as close to a “contract between ICANN and you” as one can get. Membership implies a relationship of legally recognized eligibility criteria, rights and obligations between people and the organization.

We’ve suggested previously that ICANN’s membership provisions need to be revived. That is because membership provides one of the most important ways out of ICANN’s increasingly dangerous lack of accountability. Membership also solidifies the status of Internet users as a sovereign polity with the capacity to govern themselves.

Currently, Article XVII of ICANN’s bylaws blatantly declares that it has no members, and sits there like an ugly set of bullet holes in ICANN’s constitution. But the organization’s Articles of Incorporation recognize that it could have members if it decides to in the future. And indeed, California nonprofit public benefit law was written mainly to keep these types of organizations accountable to their members.

Only if a contract with you defines specific rights and obligations of membership can we get an ICANN that is accountable and fulfills the multistakeholder aspirations of the organically evolved Internet institutions.

A quick history of membership at ICANN

In the initial setup of ICANN, membership was considered one of the primary accountability mechanisms. The small group of people clustered around Jon Postel who first incorporated ICANN did not want members (or any form of external accountability). But in its decision to recognize ICANN as the new corporation called for in the White Paper, the Clinton administration told them that it had to develop a membership structure capable of keeping the organization accountable. A Membership Advisory Committee was duly created to determine the nature and form that membership would take. After nearly two years, global elections were held to elect 5 Board members.

ICANN’s brief encounter with open elections produced Board members that were not to the liking of ICANN’s staff and self-appointed initial board. (See Klein, (ed.) 2001; NAIS, 2001) And so after 2002, ICANN abolished its membership and abandoned directly elected Board members. (Froomkin, 2003) In the place of membership, ICANN’s Board created the At Large Advisory Committee (ALAC) and a Nominating Committee. These bodies select 1 and 8 individuals to the Board, respectively. The remaining 7 Board members include the CEO of ICANN and individuals selected by the Supporting Organizations. In essence, Board members are vetted and self-selected by people who are already insiders in ICANN. It’s incestuous.

The abandonment of membership was one of the first and most important structural changes in ICANN. It marked the ascendancy of a governance model which substituted participatory structures and corporate patronage relationships for direct modes of accountability. (IGP, 2009) We attribute many of ICANN’s current problems to the lack of accountability these changes left in their wake.

Reestablishing membership at ICANN would be a complex exercise and would require reworking the organization’s bylaws. Like any reform of institutional rules it will open up debates that can result in shifts in power and distributional outcomes – and thus would be resisted by those who are comfortable with the status quo. But by keeping in mind the end goal, i.e., an ICANN accountable to its stakeholders, the exercise can remain focused and the overall bottom up policy development process (PDP) largely unchanged.

Rather than propose a specific, detailed plan for membership it is better at this stage to scan over some broader alternatives and principles.

The People’s Advisory Committee

One option is to replace the current At Large Advisory Committee (and its multi-tiered and largely dormant regional and local at large structures), with a popularly elected People’s Advisory Committee (PAC). Shouldn’t internet users, after all, have as much of a say as governments? And should the peoples representatives be elected directly? As the true representative of  individual Internet users, the PAC should be able to veto policies or decisions made by the ICANN board. Its powers would thus be comparable to, but in fact greater than, those currently exercised by the Governmental Advisory Committee. But its powers should be negative rather than positive; in other words, it could be used to demonstrate the lack of consensus for a policy and thus prevent proposals from being implemented, but it could not actively formulate and pass policies. The PAC could veto GAC advice too, if it modified board decisions in ways that did not achieve broad consensus in the PAC members

The PAC could consist of 50 – 100 people elected by any registered individual Internet user by means of a transferable, revocable proxy voting system. If you think this sounds messy or subject to gaming we suggest you take a hard look at how ALAC members are currently elected. We suspect that if the PAC had real influence on ICANN decisions that it would attract far more participation than the thinly populated At Large regime.

A more accountable board

Another option is to simply use the transferable proxy voting system to elect half the board again. Worldwide, individuals would participate in an election, just as they did in 2000, only ICANN would actually take the process seriously and improve its procedures for registering voters and aggregating and tallying votes. The Supporting Organizations would continue to elect the other half through current processes. Please don’t bore us with arguments that the 2000 elections proved that this was all “impossible” to do. We are familiar with the studies and remain convinced that it is perfectly feasible if a real commitment is made to carry it out. After all, the shareholders of private corporations and nonprofits with members hold international elections all the time.

The real problem with this proposal is not its feasibility but its lack of teeth. Electing half the board may help to prevent the board from continuing to override bottom up process; but it will not prevent the GAC from holding policy implementations hostage at the last minute and it will not prevent staff from making policy in the name of implementation. It would, however, make the board as a whole considerably more accountable to a broad spectrum of Internet users.

Defining ICANN’s membership

There are two basic classes of stakeholders which participate in ICANN and to whom the institution should be accountable. These include:

  1. Domain name users (which could include only registrants or both registrants and non-registrants)
  2. Domain name registration service suppliers (registries, registrars, name server operators)

One simple way to narrow membership fairly and make it more manageable would be to confine the user class to domain name registrants. In that case there would be a clear record of who they are as well as a clear stake in the process. Given the low price of holding a domain name this would not exclude many people, and such a restriction would help to prevent ICANN and its participants from thinking of themselves as a general “Internet governance” authority.

These classes exclude stakeholders with interests in IP addresses, a group which in practice has very little to do with ICANN’s policy making yet retains a Board seat. IP address holders are in fact represented well – as voting members – in the Regional Internet Registries. It is fair to question whether the portion of the IANA contract that deals with numbers should even be within ICANN’s remit (it may be an artifact of a simpler time).

Voting rights, responsibilities and structures

Perhaps the most important decisions in reestablishing membership at ICANN would be determining voting rights and responsibilities, and how interests are aggregated in voting for Board seats.  One of the chief criticisms of the 2000 elections was top-down orchestration of voter registration leading to winning of a regional seat by special interests (Kang, 2001). Arguably, this was in large part due to the easily fulfilled election participation criteria – anyone 16 years or older with an email and verified “snail mail” address could participate. On the other hand, real democratic elections of governments often hinge on the outcome of voter registration drives, so this argument in no way discredits elections as a whole. As noted above, confining membership to domain name holders helps to solve this problem.

One way to address this, if one ascribes to the “bottom up” model of governance, might be to condition voting rights upon actual participation in ICANN’s PDP. “Participation” would need to be defined but could include relatively easy to track activities that facilitate the PDP, like joining working groups, attending meetings (in-person or virtually), or proposing and commenting on policies.  Of course, there are many individuals and organizations impacted by ICANN policies (particularly noncommercial interests) who don’t necessarily have incentives to devote the necessary time and resources to participate in ICANN. Their influence might be eliminated under a “participation requirement.”

A compromise solution might incorporate some sort of interest aggregation. While broad categories of stakeholder groups has caused more trouble than it may be worth, one could achieve more organic interest aggregation using new innovative governance platforms like LiquidFeedback, which combine elements of direct and representative democracy. By allowing the electorate to either engage directly or delegate their vote, the platform accommodates diverse participation and scales effectively. One idea would be to combine such a platform that grants widespread voice with a requirement that voters for Board seats must participate in the PDP.  The positions of participating members to whom the most votes were delegated would thereby have greater influence in governing the organization.

All in all, we hope the current ferment in Internet governance will produce real reforms in actual Internet governance structures, and not be completely diverted by seductive calls for gigantic global parliaments with no authority, or by more attempts to throw calls for “more participation” at problems of accountability.

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