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Comments on August 11 staff report on at large membership




My comments on the August 11 staff report on at-large membership...

These comments may also be found at:
	http://www.cavebear.com/icann/membership.htm

	--karl--

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<title>ICANN - Staff Report on At-Large Membership - August 11, 1999</title>
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<div align="center"><font size="+3" face="Arial">ICANN</font> 
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  <h2 align=center><b><font face="Arial">STAFF REPORT:</font></b></h2>
  <h3 align=center><b><font face="Arial">ICANN AT LARGE MEMBERSHIP</font></b></h3>
  <h4><b><font face="Arial">August 11, 1999</font></b></h4>
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<p><b><font color="#0000FF" face="Arial">COMMENT: This writer strongly supports
the concept of the at-large membership, and applauds the staff's goals of
redressing the imbalance of power that exists between the weak at-large
membership defined in the current by-laws and the powerful supporting
organizations.</font></b></p>
<p><b><font color="#0000FF" face="Arial">However, this writer is very concerned
that at-large members are being required to jump through hoops and meet
stringent proof-of-identity requirements that are not being applied to other
participants in the ICANN process.</font></b></p>
<p><b><font color="#0000FF" face="Arial">In addition, this writer perceives that
this report is being used as a &quot;Sophie's Choice&quot; - it is being used to
coerce individuals to make a choice between their two children - one being
participation in the at-large and the other being participation in the SO's with
full parity with other interests.&nbsp; This writer believes that it is improper
to use at-large membership as a substitute for full SO participation.</font></b></p>
<p><b><font color="#0000FF" face="Arial">And finally, this report establishes a
&quot;sunrise&quot; threshold, a minimum number of at-large members who will be
required before the at-large body is given any recognition.&nbsp; This writer
suggests that such a threshold is unwise.&nbsp; However, if such a
&quot;sunrise&quot; threshold is adopted, that same threshold should be applied
to all bodies under ICANN, including SO's and Constituencies.</font></b></p>
<p><b><font face="Arial">I. Introduction</font></b></p>
<div align="center">
<p align="left"><font face="Arial">By resolution at its <a href="http://www.icann.org/berlin/berlin-resolutions.html">Berlin 
    meeting</a>, the ICANN Board <a href="http://www.icann.org/berlin/berlin-resolutions.html#3">asked 
    staff</a> to review the <a href="http://www.icann.org/macberlin.htm">Membership 
    Advisory Committee (MAC) report and commentary</a> and make recommendations 
    to the Board for consideration at its Santiago, Chile meeting on an implementation 
    plan that is responsive to the MAC's suggestions.</font></p>
  <p align="left"><font face="Arial">In Berlin, the Board adopted four general 
    principles dealing with creation of an At Large membership for ICANN:</font></p>
</div>
<blockquote> 
  <div align="left"> 
    <p><font face="Arial">1. "Members" should be individuals, and only "members" 
      should vote for At Large Directors.</font></p>
    <p><font face="Arial">2. The election process for At Large Directors should 
      take place in stages, to allow for adjustments in the process based on experience.</font></p>
    <p><font face="Arial">3. At Large Directors should be geographically diverse 
      and broadly representative of the Internet user community.</font></p>
    <p><font face="Arial">4. The costs of At Large membership should be borne 
      by the At Large members.</font></p>
    <p><font face="Arial" color="#0000FF"><b>COMMENT: I would suggest that the
    assumption made by most who looked at the MAC report were that the costs
    would be reasonably low.&nbsp; It is beginning to appear as if ICANN has
    been overcome with a fear of fraudulent members and is moving towards the
    adoption of procedures to deal with that fear but which would also
    substantially increase the cost of membership.&nbsp; This fear, which is yet
    unproven in practice, and the costs that arise out of this fear could
    readily make the at-large membership too expensive and cause it to be a
    failure.</b></font></p>
    <p><font face="Arial" color="#0000FF"><b>In addition, I note that the
    anti-fraud procedures being considered for the at-large membership are not
    used to validate the legitimacy of members of other elements of ICANN.&nbsp;
    For example, there is no validation that corporations in the DNSO constituencies
    are, in fact corporations, or that the people who participate under those
    corporate names are, in fact, legitimately designated representatives of
    those corporations.</b></font></p>
  </div>
</blockquote>
<div align="center"> 
  <p align="left"><font face="Arial">For the reasons discussed below, there is 
    one other core principle that the staff recommends the Board adopt:</font></p>
</div>
<blockquote> 
  <div align="left"><font face="Arial">5. There should be a general parity between 
    At Large "members" of ICANN and other stakeholders participating in ICANN 
    through the Supporting Organizations with respect to matters such as initiation 
    and approval of changes to the bylaws and means for seeking relief with respect 
    to ICANN actions.</font></div>
  <div align="left">&nbsp;</div>
  <div align="left"><font face="Arial" color="#0000FF"><b>COMMENT: This is
    important because with the failure of ICANN even to accept the IDNO's
    petition, it is apparent that ICANN is considering the at-large membership
    as a substitute for membership in the Supporting Organizations and on that
    basis is denying interested individuals full, peer access to the policy
    making machinery of ICANN, i.e. the Supporting Organizations.</b></font></div>
  <div align="left">&nbsp;</div>
  <div align="left"><font face="Arial" color="#0000FF"><b>However, I note that
    although it is a worthy goal to give the at-large members parity with the
    Supporting Organizations, I ask how is this possible?</b></font></div>
  <div align="left">&nbsp;</div>
  <div align="left"><font face="Arial" color="#0000FF"><b>The SO's are the
    primary source of policy.&nbsp; How does ICANN expect to give the at-large
    members a power that is on-par with the ability of SO members to form and
    shape policy at a stage when there is the most room for flexible and
    creative approaches, i.e. when the first policy drafts are being written,
    debated, and discussed?</b></font></div>
  <div align="left">&nbsp;</div>
  <div align="left"><font face="Arial" color="#0000FF"><b>We all know that once
    a proposal has evolved through the debates in an SO, that that proposal will
    be endowed with a presumption of validity.&nbsp; In fact, the ICANN bylaws
    contain language to that effect.&nbsp; The ability of the at-large to make
    changes at that stage will be more difficult, burdened with higher
    procedural costs, and the freedom of decision will be constrained by, at a
    minimum, institutional inertia - the SO's will have an institutional stake
    in seeing that their work is not overturned or reworked by the at-large no
    matter what the merits of the changes might be.</b></font></div>
</blockquote>
<div align="center">
  <p align="left"><font face="Arial">The original notion of a "membership" was 
    to provide a vehicle for participation in the ICANN process for those who 
    would not be able to meaningfully participate through the Supporting Organizations. 
    Since individuals can participate in the SOs indirectly (either through entities 
    such as the DNSO General Assembly or through organizations such as ISOC or 
    IETF), it could be argued that a membership is unnecessary for this purpose. 
    Still, because the SOS are largely technical bodies, and none of them at this 
    time permits individuals as such to be voting members, the rationale for an 
    "At Large" membership for individuals remains persuasive.</font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>COMMENT: The above
  paragraph is full of invalid assumptions.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>First, the
  &quot;original notion&quot; of 'membership' was far more than merely a vehicle
  for those who would be excluded from the SO's.&nbsp; For many, the
  &quot;original notion&quot; would be that the &quot;membership&quot; would be
  the body who whom ICANN would be responsible to be &quot;open&quot;,
  &quot;transparent&quot;, and most importantly, &quot;accountable&quot;.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>The notion that
  Supporting Organizations would be the exclusive country clubs for a few, but
  not all, directly interested parties is one held only by a relatively few.&nbsp;
  Unfortunately, it has become the status quo.</b></font></p>
  <p align="left"><b><font face="Arial" color="#0000FF">Further, the statement
  that &quot;individuals can participate in the SOs indirectly&quot; is simply
  not true.&nbsp; The DNSO, ASO, and PSO all exclude enormous numbers of
  individuals even if those individuals chose to attempt to participate by indirect means.</font></b></p>
  <p align="left"><b><font face="Arial" color="#0000FF">But further, the
  statement reflects an extremely paternalistic attitude, one that says
  &quot;individuals are not intelligent to know their own minds and hence must
  be represented by intermediaries.&quot;</font></b></p>
  <p align="left"><b><font face="Arial" color="#0000FF">In addition, the staff
  report makes an unwarranted assumption that such intermediary organizations
  themselves have means for the reflection of member opinion.</font></b></p>
  <p align="left"><b><font face="Arial" color="#0000FF">Finally, th</font></b><font face="Arial" color="#0000FF"><b>e
  above paragraph says: &quot;the SOS are largely technical bodies&quot;.&nbsp;
  That is simply not true.&nbsp; The SO's are largely policy bodies, not
  technical bodies.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>Moreover, if the SO's
  were technical bodies, why is the DNSO composed of so many non-technical
  constituencies?&nbsp; Certainly, one can not seriously contend that the
  Intellectual Property Constituency of the Business Constituency or the
  Non-Commercial Constituency bring any technical expertise about the Domain
  Name System.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>Indeed, individual
  domain name owners, are far more likely to be familiar with the technology because
  they are more likely to have hands-on operational experience with it.</b></font></p>
  <p align="left"><font face="Arial">On the other hand, it would not make sense 
    for individual users of the Internet to be able to make policy decisions or 
    otherwise dictate ICANN policies or procedures to the exclusion of the infrastructure 
    providers, </font><font face="Arial">technical experts and various name interests 
    that make up the SOS </font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>COMMENT: Why should
  individuals not be allowed to add their weight, which is a substantial weight,
  to bring that weight to bear on ICANN's decision making processes?&nbsp; This
  paragraph is simply an attempt to make one look away from the fact that even
  if all of the recommendations of this staff report were implemented, the prime
  decisions making vehicles of ICANN, the SO's, would be the private preserves
  for infrastructure providers and various special interests.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>The paragraph should be
  rewritten as &quot;It does not make sense for infrastructure providers and the
  various special interest groups that make up the SO's to dictate Internet
  policy or procedures to the exclusion of individuals.&quot;</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>This writer notes that
  the paragraph once more forgets that the interests of individuals extend well
  beyond the domain name system.&nbsp; As consumers of IP address space and as
  parties interested in the propagation of new internet technologies,
  individuals have a clear and direct interest in the work of the ASO and PSO as
  well as the DNSO.</b></font></p>
  <p align="left"><font face="Arial">Therefore, the staff recommends that the 
    Board adopt the concept that a general parity between the powers and authority 
    of the At Large members and those of SO participants should be maintained, 
    in the context of the somewhat different roles of those groups (e.g., the 
    different Directors to be selected by them and the policy role of the SOS). 
    This would mean, for example, that to the extent that members had any authority 
    with respect to ICANN bylaw amendments, such authority would be shared with 
    the SOS Similarly, At Large members and SO participants should have similar 
    rights to reconsideration and review of ICANN actions (whether through the 
    processes afforded by ICANN or through lawsuits). This principle would also 
    be relevant in determining whether At Large members are considered statutory 
    or non-statutory members under California law, which affects the determination 
    of the rights and powers of At Large members, as described in greater detail 
    below and in a separate document. </font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>COMMENT: It is good to
  see that the staff report implicitly recognizes the vast disparity between the
  powers of the SO's and that of the At-Large membership.&nbsp; However, nowhere
  in this report is that gulf crossed.&nbsp; Even if all the recommendations
  were adopted, the At-Large members would have no effective participation in
  the early stages of policy development, the stages during which the most
  options are available and before institutional rigor mortis and automatic
  opposition to change sets in.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>In addition, this writer
  strongly objects to any attempts to avoid ICANN's responsibility to be
  &quot;accountable&quot;.&nbsp; If ICANN succeeds in avoiding its
  responsibilities to &quot;members&quot; under California law, then to whom
  will ICANN be &quot;accountable&quot;?</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>This writer objects to
  the assertion that California law is a home for troublemakers who will bring
  unwarranted derivative actions.&nbsp; California is a state that is known for
  its ability to foster the growth of small and financially under funded
  companies.&nbsp; If California were the hotbed of derivative actions that the
  staff report assumes, then California would not be the home of nearly all the
  start-up activity in the United States, if not the World.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>ICANN selected
  California as its home and asks for the protection of California law and its
  courts.&nbsp; It is a slap in the fact to my state's laws to assert that
  California law encourages unjust derivative actions.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>If ICANN wants to avoid
  derivative actions, it should adhere to its rules and follow fair procedure.</b></font></p>
  <p align="left"><font face="Arial">The remainder of this staff report discusses 
    outstanding issues related to the ICANN At Large membership and, consistent 
    with the principle set forth above, makes a series of recommendations, some 
    of which will require the approval of resolutions at the Santiago meeting. 
    A summary of the recommendations requiring Board resolutions may be found 
    in the final section. The report, along with an accompanying analysis from 
    counsel, will be posted for public comment prior to the meeting.</font></p>
  <p align="left"><b><font face="Arial">II. At Large Membership Council</font></b></p>
  <p align="left"><font face="Arial">The Membership Advisory Committee's report 
    and commentary suggested "that the Board convene a new committee to assist 
    in ongoing AL membership issues such as outreach, recruitment, authentication, 
    and election procedures." Subsequently, in its Berlin membership resolution, 
    the Board asked for a staff recommendation on a continuing role for a membership 
    advisory body.</font></p>
  <p align="left"><font face="Arial">The staff recommends that the Board adopt 
    the concept of an At Large Membership Council, with duties and responsibilities 
    to the At Large membership and to the ICANN Board analogous to those of the 
    Supporting </font></p>
  <p align="left"><font face="Arial">Organization Councils and their respective 
    organizations. Some of its advisory responsibilities to the Board might include:</font></p>
  <div align="left"> 
    <ul>
      <li><font face="Arial">planning and participating in outreach and recruitment 
        of a broad and numerous membership; </font>
      <li><font face="Arial">recommending ways in which individual Internet users 
        can have a more direct role in the ICANN policy-making process; </font>
      <li><font face="Arial">design of efficient membership authentication and 
        election procedures; </font>
      <li><font face="Arial">monitoring and supervising of At Large Membership 
        elections, to assure that they are conducted openly and fairly.</font></li>
    </ul>
  </div>
  <p align="left"><font face="Arial">Although development of SO policy recommendations 
    is the principal responsibility of the SO responsible for the relevant subject 
    matter, the At Large Membership Council could provide a means to express the 
    views of </font><font face="Arial">Internet users on those recommendations. 
    </font></p>
  <p align="left"><font face="Arial">In the interests of being responsive to the 
    immediate needs of proceeding with creation of the At Large membership electorate 
    and related outreach efforts, at least some of the initial members of the 
    At Large Membership Council should be appointed by Board resolution at its 
    Santiago meeting. A decision on a permanent mechanism for populating the At 
    Large Membership Council can be made at the Los Angeles meeting based on public 
    comment and advice from the Council itself. </font></p>
  <p align="left"><font face="Arial">The ICANN bylaws provide that ICANN Directors 
    are to represent the entire range of Internet stakeholders, and not simply 
    the constituencies from which they are selected. This should be just as true 
    for the At Large </font><font face="Arial">Directors as it is for the Directors 
    selected by the SOS, and will be more likely to be achieved if the At Large 
    Directors do not feel that they are the only representatives of the user community. 
    In addition, an At Large </font><font face="Arial">Membership Council formed 
    now could materially assist the Board in resolving the details of creation 
    of the At Large membership and the election of the At Large Directors. A number 
    of specific issues to which a </font><font face="Arial">Membership Council 
    might give attention are noted in the following sections of this report.</font></p>
  <p align="left"><b><font face="Arial">III. At Large Membership Criteria</font></b></p>
  <p align="left"><font face="Arial">Although the Board has already agreed with 
    the MAC that membership should be limited to individuals, that could mean 
    any interested person, or it could be limited to individuals that meet certain 
    pre-set criteria. While there are a large number of possibilities, the most 
    obvious potential limitation would be the possession of a domain name. After 
    all, ICANN is concerned with the Domain Name System, and as such the holders 
    of domain names are directly affected by DNS policy and technical decisions. 
    Domain name holders are readily identifiable, and at least arguably more likely 
    to be knowledgeable about the issues before ICANN than users of the Internet 
    in general.</font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>COMMENT: ICANN covers
  matters well beyond domain names.&nbsp; Indeed, there are many, including this
  writer, who consider that the ICANN's IP address policies will have a
  long-term impact far in excess of those in the Domain Name area.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>And one must ask - why
  should those people who have a direct interest in domain name issues,
  particularly those people who own domain names, quietly settle for the policy
  backwater of the At-Large while their would-be opposition in domain name
  matters get direct access to the policy-making SO's?</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>The At-Large is a place
  for all people who are effected by the Internet.&nbsp; The SO's have become a
  place for those with direct interests, that is it has becomea place for all of
  those with direct interests <u>except</u> for individuals.&nbsp; That is
  improper.</b></font></p>
  <p align="left"><font face="Arial">But the range of individuals affected by 
    ICANN's policy decisions on DNS and other issues extends well beyond the population 
    of domain name holders. Many individuals who care deeply about DNS, IP addressing, 
    protocol parameter assignment, and the root server system do not hold their 
    own domain name. Additionally, many domain names are held by organizations 
    and, especially with respect to smaller organizations, there would be a number 
    of practical difficulties in distinguishing among individual interests and 
    corporate interests if holding a domain name were to be the test for At Large 
    membership. In addition, to limit membership to domain name holders would 
    shut off opportunities for most individual users to participate in ICANN. 
    </font></p>
  <p align="left"><font face="Arial">Balancing these considerations, the staff 
    recommends that membership be open to all individuals, without regard for 
    whether they are domain name holders or not. However, reflecting the MAC recommendations, 
    the minimum criteria for At Large membership should be (i) a commitment to 
    participate, (ii) an Internet electronic mail address, (iii) a postal mail 
    address, (iv) verifiable citizenship and residency, and (v) ability to </font><font face="Arial">support 
    the costs of ICANN At Large membership when a cost recovery mechanism is identified 
    and approved.</font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>COMMENT: These same
  membership requirements should be applied to those who would participate in
  SO's, Constituencies, or any other element of ICANN.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>Further, if the at-large
  membership is to be required to support the costs of that membership
  structure, it is important that the other parts of ICANN also bear the costs
  that they cause.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>And those other parts of
  ICANN should not receive the benefit of preferential assumptions.&nbsp; Just
  as individuals are being required to prove their identity, corporations and
  associations active in other parts of ICANN should be subjected to a similarly
  rigorous process, and be required to pay for that cost.&nbsp; A corporation or
  association should to be required to demonstrate the legitimacy of the
  corporation or association and that the people who are operating under the
  aegis of that corporation or association are truly empowered by that
  corporation or association.</b></font></p>
  <p align="left"><b><font face="Arial">IV. Creating the At Large Membership</font></b></p>
  <p align="left"><font face="Arial">In Berlin, the Board accepted in principle 
    the notion that there should be a "sunrise" provision in the membership criteria 
    -- i.e., that a minimum number of members should exist before any election 
    process for At Large Directors begins. The rationale for this is that the 
    At Large Directors should be, to the extent possible, broadly representative 
    of Internet users. Without a numerous and globally diverse electorate, it 
    will be difficult to achieve that objective. The staff concludes that 5000 
    members is obtainable and would constitute a minimal indication of representativeness. 
    Accordingly, the staff recommends that the threshold </font><font face="Arial">for 
    creating a membership electorate should be 5000 individuals. </font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>COMMENT: No such
  &quot;sunrise&quot; provision has been applied to the Supporting Organizations
  or to the Constituencies of the DNSO.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>This writer suggests
  that if such a &quot;sunrise&quot; provision is adopted for the At-Large, that
  a all SO's and Constituencies that can not demonstrate a similar number of
  actual members be immediately disestablished.</b></font></p>
  <p align="left"><font face="Arial">It is not obvious that 5000 individuals will 
    quickly sign up to be ICANN members without a significant outreach effort. 
    Notwithstanding the intense focus on ICANN by a relatively small number of 
    individuals, that </font><font face="Arial">number is far less than 5000, 
    and most individual users are probably not even aware that ICANN exists. The 
    MAC recommended an organized and staffed outreach effort; the staff concurs 
    and recommends that the necessary human and financial resources be identified 
    and approved at the Santiago meeting. </font></p>
  <p align="left"><font face="Arial">The At Large Membership Council could play 
    a major role in this effort.</font></p>
  <p align="left"><font face="Arial">In order to facilitate the rapid recruitment 
    of a large and diverse membership base, the staff believes that consideration 
    should also be given to membership partnership arrangements with a number 
    of existing Internet-related membership organizations. Such arrangements might 
    include automatic ICANN At Large membership for members of the other Internet-related 
    membership organizations, or the ability for ICANN to send a specific invitation 
    to their members to join ICANN's membership electorate.</font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>COMMENT: While it makes
  sense to use existing bodies to build a mailing list, automatic enrollment is
  impolite.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>And the choice of
  existing bodies should be fairly wide.&nbsp; Certainly, the IFWP mailing list
  is as valid a place to start as is the membership of something like ISOC.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>But the best list of all
  is the list of those people who actually have and pay for domain names and IP
  addresses - the list of contacts found in the whois databases.</b></font></p>
  <p align="left"><font face="Arial">Among the considerations in forming an At 
    Large membership is cost to members. Any financial burden on an individual 
    At Large member presents a potential conflict between the goal of attracting 
    as many members as possible and the fact that charging a membership fee will 
    deter some individuals from becoming members. There are also other, countervailing 
    consequences of membership fees; for example, it is likely that fees will 
    produce a more committed membership, which is likely to translate into a larger 
    participation in the At Large election process. In addition, more committed 
    members are more likely to participate generally, making it easier to achieve 
    a quorum in any circumstances in which that may be necessary. It is at least 
    arguable that charging a membership fee will reduce the potential (or at a 
    minimum, increase the cost) of capture of the membership by a committed minority. 
    On the other hand, it can be argued that a membership fee may facilitate capture 
    by discouraging many Internet users, with a broad diversity of interests and 
    viewpoints, from becoming members. It should also be noted that the collection 
    of a membership fee, which might further some membership goals, has the downside 
    of increasing the administrative costs of the At Large membership.</font></p>
  <p align="left"><font face="Arial">The staff, recognizing these inherent conflicts, 
    nevertheless believes that an ad hoc and temporary solution should be adopted 
    to allow the membership outreach and initial election process to move forward 
    promptly. To that end, it recommends that a source or sources of one time 
    funding for the At Large membership be vigorously sought, and that, if such 
    a source can be found, membership fees for the initial round of elections 
    of the nine At Large directors be waived. It is further recommended that the 
    At Large Membership Council be asked to propose a long-range funding strategy 
    for the At Large membership.</font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>COMMENT: If ICANN
  believes that fees make better members, then fees should be imposed on
  membership in SO's and Constituencies.</b></font></p>
  <p align="left"><b><font face="Arial">V. At Large Election Process</font></b></p>
  <p align="left"><font face="Arial">The staff recommends that the At Large Director 
    election process should begin only after a membership pool of the recommended 
    size and diversity has been formed. The Board may wish to publicly report 
    on the demographic characteristics of the membership pool as part of its pre-election 
    actions.</font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>COMMENT: This report
  selects an initial size that may never be realized.&nbsp; During that possibly
  unlimited period before there are adequate At large members, the board will be
  filled by the SO's alone.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>And, as we have already
  seen in the DNSO, it is the early choices, the ones that will occur before an
  at-large of the required size arises, that will matter.&nbsp; By the time the
  at-large gets enough members and its internal structures are formed, the bulk
  of ICANN's most far-reaching policy decisions will already have been made and
  adopted.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>This will leave the
  at-large no choice but to pursue a politically unpopular policy of dismantling
  the decisions already adopted by the SO's and the ICANN board.</b></font></p>
  <p align="left"><font face="Arial">Once an At Large electorate pool meeting 
    the appropriate criteria has been achieved, the staff recommends that At Large 
    elections should take place in at least two separate election events. The 
    first election would select three At Large Directors, with the remaining six 
    to be selected in a subsequent election, using procedures modified to the 
    extent thought appropriate or necessary based on an analysis of the process 
    and results of the first election. </font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>COMMENT: Staggered
  elections are a classic means of disenfranchising minorities.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>This writer recommends
  that elections not be staggered, that all voters have votes for every seat,
  and that voting be performed using Cumulative, STL, or other voting procedures
  designed to reflect the mix of minorities in the electorate.</b></font></p>
  <p align="left"><font face="Arial">Within this recommended election structure 
    of three positions first and six positions second, the Board will need to 
    determine what type of seats, i.e., with which diversity requirements, and 
    what length of term are to be assigned.</font></p>
  <p align="left"><font face="Arial">Because of the time required to conduct the 
    At Large membership outreach and formation activities, the staff believes 
    that - in parallel with the membership formation - it should continue to develop 
    recommendations on the exact details of election procedures for consideration 
    by the Board at its November meeting in Los Angeles. At that time, the Board 
    will know or be in a better position to predict whether and when the minimum 
    At Large electorate size will be reached. The advice of the proposed At Large 
    Membership Council on nomination and election procedures would also be very 
    helpful.</font></p>
  <p align="left"><b><font face="Arial">VI. Diversity and Representation</font></b></p>
  <p align="left"><font face="Arial">Both the MAC and the Board have discussed 
    diversity and representation issues affecting the selection of ICANN At Large 
    Directors. Although many concerns about desirable representation characteristics 
    of ICANN Directors have been voiced, primary attention has been given to geographic 
    diversity. Two approaches have been discussed: all AL Directors elected by 
    regional electorates, and all AL Directors elected by a single worldwide electorate, 
    with requirements for geographic diversity among those elected. Each of these 
    methods has advantages and disadvantages. Regionalization is generally designed 
    to protect minority interests, but its implementation can be cumbersome and 
    may result in the overrepresentation of some minorities at the expense of 
    others. A single electorate voting for all At Large seats gives stronger weight 
    to the democratic principle of one person - one vote but in the present situation 
    of uneven development of the Internet in different regions of the world it 
    is possible that a single pool would lead to most or all of the At Large Directors 
    being elected from the United States, Europe and Japan.</font></p>
  <p align="left"><font face="Arial">A working compromise was proposed by the 
    staff in Berlin that provided for five At Large Directors to be elected from 
    each of the existing five geographic areas defined in the ICANN Bylaws, and 
    four to be elected from a single pool of nominations on a worldwide basis. 
    Details remain to be worked out. The staff believes that additional public 
    comment on the Director diversity issue is appropriate, to be followed by 
    Board discussion in Santiago, with a decision made either at the Santiago 
    meeting or at the Los Angeles meeting. This is another area in which the advice 
    of the At Large Membership Council would be valuable.</font></p>
  <p align="left"><b><font face="Arial">VII. At Large Membership Costs</font></b></p>
  <p align="left"><font face="Arial">Because of the number of still unresolved 
    issues associated with At Large membership, it is very difficult to make any 
    precise cost estimates of implementing the membership program. Examples of 
    assumptions which affect the development of administrative procedures and 
    systems and associated costs include:</font></p>
</div>
<ul>
  <li><font face="Arial"> Is At Large "membership" to include any of the standard 
    features of association membership, or is it to be essentially limited to 
    an elections procedure? </font></li>
  <li>I<font face="Arial">s the At Large membership computer system to be designed 
    to handle financial transactions, including credit cards, or will it contain 
    only personal information on the members required to validate membership, 
    along with a voting module?</font></li>
  <li>A<font face="Arial">re the procedures and related computer systems and software 
    to have robust anti-fraud and independent third party verification features 
    built in, or will such protections be handled manually by a volunteer Elections 
    C</font><font face="Arial">ommittee?</font></li>
  <li>S<font face="Arial">hould computer systems and software be sought on a volunteer 
    or pro-bono basis, or must they be procured through standard systems specification 
    and contract procedures and related enforceable remedies for non-performance?</font></li>
  <li>S<font face="Arial">hould ICANN staff assume a permanent At Large membership 
    and hire a permanent staff person to assume responsibility for member contacts 
    and the routine support of At Large membership activities and elections? [There 
    is no present provision for either a staff person or an At Large membership 
    expense in the FY99-00 budget.]</font></li>
</ul>
<p><font face="Arial" color="#0000FF"><b>COMMENT: The at-large is being
subjected to a presumption of fraud and impersonation that has not been proven
to exist in practice.&nbsp; These amount to a ball and chain being attached to
the legs of the fledgling at-large body.&nbsp; The costs of these procedures
could easily cause the at-large to be stillborn.</b></font></p>
<p><font face="Arial" color="#0000FF"><b>Any presumption of fraud and impersonation
should be applied with equal weight to corporations and associations in other
elements of ICANN.&nbsp; Just as individuals will be required to prove their
identity, corporations and associations should be required to demonstrate that
they are properly formed and are current in the obligations they own to their
chartering states.&nbsp; In addition, any person claiming to represent a
corporation or association should be required to prove the authenticity of that
appointment.</b></font></p>
<div align="center">
  <p align="left"><font face="Arial">During previous MAC and Board discussions, 
    estimates of startup and ongoing annual At Large membership costs have ranged 
    from a few thousand to hundreds of thousands of dollars. These large variations 
    no doubt result from varying personal opinions on assumptions such as those 
    noted above. </font></p>
  <p align="left"><font face="Arial">It is not reasonably possible to pin down 
    all of the uncertainties associated with implementation of At Large membership 
    at this time. The previous discussions by the MAC, the ICANN Board, and contributions 
    by the </font></p>
  <p align="left"><font face="Arial">public during the Singapore and Berlin meetings 
    have progressively narrowed the range of desirable membership features, and 
    the forthcoming Santiago meeting should further this process through public 
    comment and Board discussion, which will permit more accurate estimates of 
    funding requirements for At Large membership costs.</font></p>
  <p align="left"><font face="Arial">In other sections of this report, staff recommends 
    that the Board take action in Santiago to: (i) begin the membership creation 
    process, (ii) begin an At Large membership outreach effort, (iii) form an 
    At Large </font><font face="Arial">Membership Council and seek its advice 
    on remaining membership issues, and (iv) seek and/or identify a source of 
    one time funding to support these activities.</font></p>
  <p align="left"><font face="Arial">The Board need not, at this time, make decisions 
    about long term membership program parameters and associated costs, so long 
    as the approximate amounts are recognized as a commitment of future budgets. 
    Non-profit membership associations in the U.S. commonly spend $25 to $50 per 
    member per year to </font><font face="Arial">support direct membership expenses. 
    If ICANN were to reach and stabilize at the level of 5000 At Large members, 
    and if its At Large membership program was typical of other membership organizations, 
    then it would be committed to an annual expense of $125,000 to $250,000. A 
    variety of decisions could cause this number to vary up or down.</font></p>
  <p align="left"><font face="Arial">However, dealing only with essential out 
    of pocket costs for the next three to six months, and assuming that decisions 
    on the assumption questions above are neither at the "quick and dirty" end 
    of the range, nor at the </font><font face="Arial">"completely bulletproof" 
    end of the range, then the staff believes that a budget of approximately $100,000 
    for (i) a temporary but full time staff person to administer the At Large 
    membership program and support the At </font><font face="Arial">Large Membership 
    Council, (ii) the services of a full time technical staff person to develop 
    and implement the necessary initial At Large membership computer support, 
    (iii) the services of a full time professional membership consultant to design 
    and coordinate the outreach program, and (iv) incremental computer and miscellaneous 
    administrative expenses would be sufficient. </font></p>
  <p align="left"><font face="Arial">It should be clearly recognized that the 
    recommended amount substantially understates the full cost of initiating the 
    program because it includes neither the budgeted time of current ICANN staff 
    and counsel, nor the many hours of unpriced - but "priceless" - time of ICANN 
    volunteers. But it offers an avenue for continuing forward into the deployment 
    phase of the At Large membership program for which the Board may be able to 
    find funding.</font></p>
  <p align="left"><b><font face="Arial">VIII. Rights of Members</font></b></p>
  <p align="left"><font face="Arial">There is an important legal issue here. Under 
    California law, a nonprofit corporation can, but need not, have "members." 
    If it chooses to have members, those members can be so-called statutory members, 
    with rights as set forth in California law, or they can be non-statutory members, 
    with powers specified in the Articles and Bylaws. Even if an organization 
    has statutory members, it may limit or condition various powers of such members. 
    Thus, a threshold decision for ICANN is what powers or "rights" should its 
    members have and how should they be exercised?</font></p>
  <p align="left"><font face="Arial">Consistent with the staff's recommendation 
    that At Large members have no greater rights than other participants in ICANN, 
    and consistent with the MAC recommendation that members should not have the 
    right to bring derivative actions (a right of statutory members under California 
    law), it may be appropriate to establish the ICANN membership in a way that 
    does not create statutory members under California law. This issue is complex 
    and involves significant underlying legal issues, an analysis of which is 
    contained in a separate document.</font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>COMMENT: If ICANN succeeds
  in this endeavor, then to whom will it be &quot;accountable?&quot;</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>ICANN's attempt to
  become an utterly independent body with no clear line of responsibility to
  anyone, will complete the transformation of ICANN's motto of &quot;open,
  transparent, and accountable&quot; from a high ideal to an institutional joke.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>And as a Californian,
  this writer objects to the report's implied assertion that California corporations law is a tool for unjustified derivative suits.&nbsp;
  I am, and have been, involved with many California non-profits and never once have I seen a member derivative action, much less one that was simply
  intended to be disruptive and without merit.</b></font></p>
  <p align="left"><font face="Arial" color="#0000FF"><b>I would suggest that the California law is a
  well considered balance of interests.&nbsp; ICANN knowingly, and over objection, chose California and the
  Non-Profit/Benefit form.&nbsp; ICANN should not now try to avoid the consequences of California's corporations law while at the same time
  taking advantage of the State's other protections.</b></font></p>
  <p align="left"><b><font face="Arial">IX. Summary of Recommendations</font></b></p>
  <p align="left"><font face="Arial">The foregoing sections of this report make 
    the following staff recommendations requiring Board actions by resolution 
    on At Large membership issues to be taken at the forthcoming Santiago Board 
    meeting.</font></p>
  <p align="left"><font face="Arial">Recommendation II.1: The Board should create 
    an At Large Membership Council with duties and responsibilities to the At 
    Large membership and to the ICANN Board analogous to those of the Supporting 
    Organization Councils and their respective organizations. Some of its advisory 
    responsibilities to the Board might include:</font></p>
  <div align="left"> 
    <ul>
      <li><font face="Arial">planning and participating in outreach and recruitment 
        of a broad and numerous membership; </font>
      <li><font face="Arial">recommending ways in which individual Internet users 
        can have a more direct role in the ICANN policy-making process; </font>
      <li><font face="Arial">design of efficient membership authentication and 
        election procedures; </font>
      <li><font face="Arial">monitoring and supervising of At Large Membership 
        elections, to assure that they are conducted openly and fairly.</font></li>
    </ul>
  </div>
  <p align="left"><font face="Arial">Recommendation II.2: At least some of the 
    initial members of the At Large Membership Council should be appointed by 
    Board resolution at its Santiago meeting.</font></p>
  <p align="left"><font face="Arial">Recommendation III.1: ICANN At Large membership 
    should be open to any individual who meets the following minimum membership 
    criteria: (i) a commitment to participate, (ii) an Internet electronic mail 
    address, (iii) a postal mail address, (iv) verifiable citizenship and residency, 
    and (v) ability to support the costs of ICANN At Large membership when a cost 
    recovery mechanism is identified and approved.</font></p>
  <p align="left"><font face="Arial">Recommendation IV.1: The threshold for creating 
    an At Large membership electorate should be 5000 individuals.</font></p>
  <p align="left"><font face="Arial">Recommendation IV.2: An organized, staffed 
    and funded outreach effort should be initiated to assist in attracting at 
    least 5000 At Large members of ICANN.</font></p>
  <p align="left"><font face="Arial">Recommendation IV.3: A source or sources 
    of one time funding for the At Large membership should be vigorously sought; 
    if such a source can be found, membership fees for the initial round of elections 
    of the nine At Large directors should be waived.</font></p>
  <p align="left"><font face="Arial">Recommendation V.1: Subject to review, revision 
    and an implementing resolution at the ICANN Annual Meeting in Los Angeles 
    in November, the election of At Large Directors should take place in at least 
    two separate election events. The first election would select three At Large 
    Directors, with the remaining six to be selected in a subsequent election, 
    using procedures modified to the extent thought appropriate or necessary based 
    on an analysis of the process and results of the first election. </font></p>
  <p align="left"><font face="Arial">Recommendation VI.1: Subject to further review, 
    revision and an implementing resolution at the ICANN Annual Meeting in Los 
    Angeles in November, geographic diversity among At Large Directors should 
    be achieved by electing five Directors from each of the existing five geographic 
    areas defined in the ICANN Bylaws, and four from a single pool of nominations 
    on a worldwide basis. </font></p>
  <p align="left"><font face="Arial">Recommendation VII.1: Subject to the receipt 
    and availability of funds in the amount of at least $100,000, the Interim 
    President/CEO should be directed to immediately undertake the implementation 
    of Phase I of the At Large Membership program, comprising the following minimum 
    components: (i) a temporary but full time staff person to administer the At 
    Large membership program and support the At Large Membership Council, (ii) 
    the services of a full time technical staff person to develop and implement 
    the necessary initial At Large membership computer support, (iii) the services 
    of a full time professional membership consultant to design and coordinate 
    the outreach program, and (iv) incremental membership computer and administrative 
    expenses.</font></p>
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</div>
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Title: ICANN - Staff Report on At-Large Membership - August 11, 1999
ICANN

STAFF REPORT:

ICANN AT LARGE MEMBERSHIP

August 11, 1999


COMMENT: This writer strongly supports the concept of the at-large membership, and applauds the staff's goals of redressing the imbalance of power that exists between the weak at-large membership defined in the current by-laws and the powerful supporting organizations.

However, this writer is very concerned that at-large members are being required to jump through hoops and meet stringent proof-of-identity requirements that are not being applied to other participants in the ICANN process.

In addition, this writer perceives that this report is being used as a "Sophie's Choice" - it is being used to coerce individuals to make a choice between their two children - one being participation in the at-large and the other being participation in the SO's with full parity with other interests.  This writer believes that it is improper to use at-large membership as a substitute for full SO participation.

And finally, this report establishes a "sunrise" threshold, a minimum number of at-large members who will be required before the at-large body is given any recognition.  This writer suggests that such a threshold is unwise.  However, if such a "sunrise" threshold is adopted, that same threshold should be applied to all bodies under ICANN, including SO's and Constituencies.

I. Introduction

By resolution at its Berlin meeting, the ICANN Board asked staff to review the Membership Advisory Committee (MAC) report and commentary and make recommendations to the Board for consideration at its Santiago, Chile meeting on an implementation plan that is responsive to the MAC's suggestions.

In Berlin, the Board adopted four general principles dealing with creation of an At Large membership for ICANN:

1. "Members" should be individuals, and only "members" should vote for At Large Directors.

2. The election process for At Large Directors should take place in stages, to allow for adjustments in the process based on experience.

3. At Large Directors should be geographically diverse and broadly representative of the Internet user community.

4. The costs of At Large membership should be borne by the At Large members.

COMMENT: I would suggest that the assumption made by most who looked at the MAC report were that the costs would be reasonably low.  It is beginning to appear as if ICANN has been overcome with a fear of fraudulent members and is moving towards the adoption of procedures to deal with that fear but which would also substantially increase the cost of membership.  This fear, which is yet unproven in practice, and the costs that arise out of this fear could readily make the at-large membership too expensive and cause it to be a failure.

In addition, I note that the anti-fraud procedures being considered for the at-large membership are not used to validate the legitimacy of members of other elements of ICANN.  For example, there is no validation that corporations in the DNSO constituencies are, in fact corporations, or that the people who participate under those corporate names are, in fact, legitimately designated representatives of those corporations.

For the reasons discussed below, there is one other core principle that the staff recommends the Board adopt:

5. There should be a general parity between At Large "members" of ICANN and other stakeholders participating in ICANN through the Supporting Organizations with respect to matters such as initiation and approval of changes to the bylaws and means for seeking relief with respect to ICANN actions.
 
COMMENT: This is important because with the failure of ICANN even to accept the IDNO's petition, it is apparent that ICANN is considering the at-large membership as a substitute for membership in the Supporting Organizations and on that basis is denying interested individuals full, peer access to the policy making machinery of ICANN, i.e. the Supporting Organizations.
 
However, I note that although it is a worthy goal to give the at-large members parity with the Supporting Organizations, I ask how is this possible?
 
The SO's are the primary source of policy.  How does ICANN expect to give the at-large members a power that is on-par with the ability of SO members to form and shape policy at a stage when there is the most room for flexible and creative approaches, i.e. when the first policy drafts are being written, debated, and discussed?
 
We all know that once a proposal has evolved through the debates in an SO, that that proposal will be endowed with a presumption of validity.  In fact, the ICANN bylaws contain language to that effect.  The ability of the at-large to make changes at that stage will be more difficult, burdened with higher procedural costs, and the freedom of decision will be constrained by, at a minimum, institutional inertia - the SO's will have an institutional stake in seeing that their work is not overturned or reworked by the at-large no matter what the merits of the changes might be.

The original notion of a "membership" was to provide a vehicle for participation in the ICANN process for those who would not be able to meaningfully participate through the Supporting Organizations. Since individuals can participate in the SOs indirectly (either through entities such as the DNSO General Assembly or through organizations such as ISOC or IETF), it could be argued that a membership is unnecessary for this purpose. Still, because the SOS are largely technical bodies, and none of them at this time permits individuals as such to be voting members, the rationale for an "At Large" membership for individuals remains persuasive.

COMMENT: The above paragraph is full of invalid assumptions.

First, the "original notion" of 'membership' was far more than merely a vehicle for those who would be excluded from the SO's.  For many, the "original notion" would be that the "membership" would be the body who whom ICANN would be responsible to be "open", "transparent", and most importantly, "accountable".

The notion that Supporting Organizations would be the exclusive country clubs for a few, but not all, directly interested parties is one held only by a relatively few.  Unfortunately, it has become the status quo.

Further, the statement that "individuals can participate in the SOs indirectly" is simply not true.  The DNSO, ASO, and PSO all exclude enormous numbers of individuals even if those individuals chose to attempt to participate by indirect means.

But further, the statement reflects an extremely paternalistic attitude, one that says "individuals are not intelligent to know their own minds and hence must be represented by intermediaries."

In addition, the staff report makes an unwarranted assumption that such intermediary organizations themselves have means for the reflection of member opinion.

Finally, the above paragraph says: "the SOS are largely technical bodies".  That is simply not true.  The SO's are largely policy bodies, not technical bodies.

Moreover, if the SO's were technical bodies, why is the DNSO composed of so many non-technical constituencies?  Certainly, one can not seriously contend that the Intellectual Property Constituency of the Business Constituency or the Non-Commercial Constituency bring any technical expertise about the Domain Name System.

Indeed, individual domain name owners, are far more likely to be familiar with the technology because they are more likely to have hands-on operational experience with it.

On the other hand, it would not make sense for individual users of the Internet to be able to make policy decisions or otherwise dictate ICANN policies or procedures to the exclusion of the infrastructure providers, technical experts and various name interests that make up the SOS

COMMENT: Why should individuals not be allowed to add their weight, which is a substantial weight, to bring that weight to bear on ICANN's decision making processes?  This paragraph is simply an attempt to make one look away from the fact that even if all of the recommendations of this staff report were implemented, the prime decisions making vehicles of ICANN, the SO's, would be the private preserves for infrastructure providers and various special interests.

The paragraph should be rewritten as "It does not make sense for infrastructure providers and the various special interest groups that make up the SO's to dictate Internet policy or procedures to the exclusion of individuals."

This writer notes that the paragraph once more forgets that the interests of individuals extend well beyond the domain name system.  As consumers of IP address space and as parties interested in the propagation of new internet technologies, individuals have a clear and direct interest in the work of the ASO and PSO as well as the DNSO.

Therefore, the staff recommends that the Board adopt the concept that a general parity between the powers and authority of the At Large members and those of SO participants should be maintained, in the context of the somewhat different roles of those groups (e.g., the different Directors to be selected by them and the policy role of the SOS). This would mean, for example, that to the extent that members had any authority with respect to ICANN bylaw amendments, such authority would be shared with the SOS Similarly, At Large members and SO participants should have similar rights to reconsideration and review of ICANN actions (whether through the processes afforded by ICANN or through lawsuits). This principle would also be relevant in determining whether At Large members are considered statutory or non-statutory members under California law, which affects the determination of the rights and powers of At Large members, as described in greater detail below and in a separate document.

COMMENT: It is good to see that the staff report implicitly recognizes the vast disparity between the powers of the SO's and that of the At-Large membership.  However, nowhere in this report is that gulf crossed.  Even if all the recommendations were adopted, the At-Large members would have no effective participation in the early stages of policy development, the stages during which the most options are available and before institutional rigor mortis and automatic opposition to change sets in.

In addition, this writer strongly objects to any attempts to avoid ICANN's responsibility to be "accountable".  If ICANN succeeds in avoiding its responsibilities to "members" under California law, then to whom will ICANN be "accountable"?

This writer objects to the assertion that California law is a home for troublemakers who will bring unwarranted derivative actions.  California is a state that is known for its ability to foster the growth of small and financially under funded companies.  If California were the hotbed of derivative actions that the staff report assumes, then California would not be the home of nearly all the start-up activity in the United States, if not the World.

ICANN selected California as its home and asks for the protection of California law and its courts.  It is a slap in the fact to my state's laws to assert that California law encourages unjust derivative actions.

If ICANN wants to avoid derivative actions, it should adhere to its rules and follow fair procedure.

The remainder of this staff report discusses outstanding issues related to the ICANN At Large membership and, consistent with the principle set forth above, makes a series of recommendations, some of which will require the approval of resolutions at the Santiago meeting. A summary of the recommendations requiring Board resolutions may be found in the final section. The report, along with an accompanying analysis from counsel, will be posted for public comment prior to the meeting.

II. At Large Membership Council

The Membership Advisory Committee's report and commentary suggested "that the Board convene a new committee to assist in ongoing AL membership issues such as outreach, recruitment, authentication, and election procedures." Subsequently, in its Berlin membership resolution, the Board asked for a staff recommendation on a continuing role for a membership advisory body.

The staff recommends that the Board adopt the concept of an At Large Membership Council, with duties and responsibilities to the At Large membership and to the ICANN Board analogous to those of the Supporting

Organization Councils and their respective organizations. Some of its advisory responsibilities to the Board might include:

Although development of SO policy recommendations is the principal responsibility of the SO responsible for the relevant subject matter, the At Large Membership Council could provide a means to express the views of Internet users on those recommendations.

In the interests of being responsive to the immediate needs of proceeding with creation of the At Large membership electorate and related outreach efforts, at least some of the initial members of the At Large Membership Council should be appointed by Board resolution at its Santiago meeting. A decision on a permanent mechanism for populating the At Large Membership Council can be made at the Los Angeles meeting based on public comment and advice from the Council itself.

The ICANN bylaws provide that ICANN Directors are to represent the entire range of Internet stakeholders, and not simply the constituencies from which they are selected. This should be just as true for the At Large Directors as it is for the Directors selected by the SOS, and will be more likely to be achieved if the At Large Directors do not feel that they are the only representatives of the user community. In addition, an At Large Membership Council formed now could materially assist the Board in resolving the details of creation of the At Large membership and the election of the At Large Directors. A number of specific issues to which a Membership Council might give attention are noted in the following sections of this report.

III. At Large Membership Criteria

Although the Board has already agreed with the MAC that membership should be limited to individuals, that could mean any interested person, or it could be limited to individuals that meet certain pre-set criteria. While there are a large number of possibilities, the most obvious potential limitation would be the possession of a domain name. After all, ICANN is concerned with the Domain Name System, and as such the holders of domain names are directly affected by DNS policy and technical decisions. Domain name holders are readily identifiable, and at least arguably more likely to be knowledgeable about the issues before ICANN than users of the Internet in general.

COMMENT: ICANN covers matters well beyond domain names.  Indeed, there are many, including this writer, who consider that the ICANN's IP address policies will have a long-term impact far in excess of those in the Domain Name area.

And one must ask - why should those people who have a direct interest in domain name issues, particularly those people who own domain names, quietly settle for the policy backwater of the At-Large while their would-be opposition in domain name matters get direct access to the policy-making SO's?

The At-Large is a place for all people who are effected by the Internet.  The SO's have become a place for those with direct interests, that is it has becomea place for all of those with direct interests except for individuals.  That is improper.

But the range of individuals affected by ICANN's policy decisions on DNS and other issues extends well beyond the population of domain name holders. Many individuals who care deeply about DNS, IP addressing, protocol parameter assignment, and the root server system do not hold their own domain name. Additionally, many domain names are held by organizations and, especially with respect to smaller organizations, there would be a number of practical difficulties in distinguishing among individual interests and corporate interests if holding a domain name were to be the test for At Large membership. In addition, to limit membership to domain name holders would shut off opportunities for most individual users to participate in ICANN.

Balancing these considerations, the staff recommends that membership be open to all individuals, without regard for whether they are domain name holders or not. However, reflecting the MAC recommendations, the minimum criteria for At Large membership should be (i) a commitment to participate, (ii) an Internet electronic mail address, (iii) a postal mail address, (iv) verifiable citizenship and residency, and (v) ability to support the costs of ICANN At Large membership when a cost recovery mechanism is identified and approved.

COMMENT: These same membership requirements should be applied to those who would participate in SO's, Constituencies, or any other element of ICANN.

Further, if the at-large membership is to be required to support the costs of that membership structure, it is important that the other parts of ICANN also bear the costs that they cause.

And those other parts of ICANN should not receive the benefit of preferential assumptions.  Just as individuals are being required to prove their identity, corporations and associations active in other parts of ICANN should be subjected to a similarly rigorous process, and be required to pay for that cost.  A corporation or association should to be required to demonstrate the legitimacy of the corporation or association and that the people who are operating under the aegis of that corporation or association are truly empowered by that corporation or association.

IV. Creating the At Large Membership

In Berlin, the Board accepted in principle the notion that there should be a "sunrise" provision in the membership criteria -- i.e., that a minimum number of members should exist before any election process for At Large Directors begins. The rationale for this is that the At Large Directors should be, to the extent possible, broadly representative of Internet users. Without a numerous and globally diverse electorate, it will be difficult to achieve that objective. The staff concludes that 5000 members is obtainable and would constitute a minimal indication of representativeness. Accordingly, the staff recommends that the threshold for creating a membership electorate should be 5000 individuals.

COMMENT: No such "sunrise" provision has been applied to the Supporting Organizations or to the Constituencies of the DNSO.

This writer suggests that if such a "sunrise" provision is adopted for the At-Large, that a all SO's and Constituencies that can not demonstrate a similar number of actual members be immediately disestablished.

It is not obvious that 5000 individuals will quickly sign up to be ICANN members without a significant outreach effort. Notwithstanding the intense focus on ICANN by a relatively small number of individuals, that number is far less than 5000, and most individual users are probably not even aware that ICANN exists. The MAC recommended an organized and staffed outreach effort; the staff concurs and recommends that the necessary human and financial resources be identified and approved at the Santiago meeting.

The At Large Membership Council could play a major role in this effort.

In order to facilitate the rapid recruitment of a large and diverse membership base, the staff believes that consideration should also be given to membership partnership arrangements with a number of existing Internet-related membership organizations. Such arrangements might include automatic ICANN At Large membership for members of the other Internet-related membership organizations, or the ability for ICANN to send a specific invitation to their members to join ICANN's membership electorate.

COMMENT: While it makes sense to use existing bodies to build a mailing list, automatic enrollment is impolite.

And the choice of existing bodies should be fairly wide.  Certainly, the IFWP mailing list is as valid a place to start as is the membership of something like ISOC.

But the best list of all is the list of those people who actually have and pay for domain names and IP addresses - the list of contacts found in the whois databases.

Among the considerations in forming an At Large membership is cost to members. Any financial burden on an individual At Large member presents a potential conflict between the goal of attracting as many members as possible and the fact that charging a membership fee will deter some individuals from becoming members. There are also other, countervailing consequences of membership fees; for example, it is likely that fees will produce a more committed membership, which is likely to translate into a larger participation in the At Large election process. In addition, more committed members are more likely to participate generally, making it easier to achieve a quorum in any circumstances in which that may be necessary. It is at least arguable that charging a membership fee will reduce the potential (or at a minimum, increase the cost) of capture of the membership by a committed minority. On the other hand, it can be argued that a membership fee may facilitate capture by discouraging many Internet users, with a broad diversity of interests and viewpoints, from becoming members. It should also be noted that the collection of a membership fee, which might further some membership goals, has the downside of increasing the administrative costs of the At Large membership.

The staff, recognizing these inherent conflicts, nevertheless believes that an ad hoc and temporary solution should be adopted to allow the membership outreach and initial election process to move forward promptly. To that end, it recommends that a source or sources of one time funding for the At Large membership be vigorously sought, and that, if such a source can be found, membership fees for the initial round of elections of the nine At Large directors be waived. It is further recommended that the At Large Membership Council be asked to propose a long-range funding strategy for the At Large membership.

COMMENT: If ICANN believes that fees make better members, then fees should be imposed on membership in SO's and Constituencies.

V. At Large Election Process

The staff recommends that the At Large Director election process should begin only after a membership pool of the recommended size and diversity has been formed. The Board may wish to publicly report on the demographic characteristics of the membership pool as part of its pre-election actions.

COMMENT: This report selects an initial size that may never be realized.  During that possibly unlimited period before there are adequate At large members, the board will be filled by the SO's alone.

And, as we have already seen in the DNSO, it is the early choices, the ones that will occur before an at-large of the required size arises, that will matter.  By the time the at-large gets enough members and its internal structures are formed, the bulk of ICANN's most far-reaching policy decisions will already have been made and adopted.

This will leave the at-large no choice but to pursue a politically unpopular policy of dismantling the decisions already adopted by the SO's and the ICANN board.

Once an At Large electorate pool meeting the appropriate criteria has been achieved, the staff recommends that At Large elections should take place in at least two separate election events. The first election would select three At Large Directors, with the remaining six to be selected in a subsequent election, using procedures modified to the extent thought appropriate or necessary based on an analysis of the process and results of the first election.

COMMENT: Staggered elections are a classic means of disenfranchising minorities.

This writer recommends that elections not be staggered, that all voters have votes for every seat, and that voting be performed using Cumulative, STL, or other voting procedures designed to reflect the mix of minorities in the electorate.

Within this recommended election structure of three positions first and six positions second, the Board will need to determine what type of seats, i.e., with which diversity requirements, and what length of term are to be assigned.

Because of the time required to conduct the At Large membership outreach and formation activities, the staff believes that - in parallel with the membership formation - it should continue to develop recommendations on the exact details of election procedures for consideration by the Board at its November meeting in Los Angeles. At that time, the Board will know or be in a better position to predict whether and when the minimum At Large electorate size will be reached. The advice of the proposed At Large Membership Council on nomination and election procedures would also be very helpful.

VI. Diversity and Representation

Both the MAC and the Board have discussed diversity and representation issues affecting the selection of ICANN At Large Directors. Although many concerns about desirable representation characteristics of ICANN Directors have been voiced, primary attention has been given to geographic diversity. Two approaches have been discussed: all AL Directors elected by regional electorates, and all AL Directors elected by a single worldwide electorate, with requirements for geographic diversity among those elected. Each of these methods has advantages and disadvantages. Regionalization is generally designed to protect minority interests, but its implementation can be cumbersome and may result in the overrepresentation of some minorities at the expense of others. A single electorate voting for all At Large seats gives stronger weight to the democratic principle of one person - one vote but in the present situation of uneven development of the Internet in different regions of the world it is possible that a single pool would lead to most or all of the At Large Directors being elected from the United States, Europe and Japan.

A working compromise was proposed by the staff in Berlin that provided for five At Large Directors to be elected from each of the existing five geographic areas defined in the ICANN Bylaws, and four to be elected from a single pool of nominations on a worldwide basis. Details remain to be worked out. The staff believes that additional public comment on the Director diversity issue is appropriate, to be followed by Board discussion in Santiago, with a decision made either at the Santiago meeting or at the Los Angeles meeting. This is another area in which the advice of the At Large Membership Council would be valuable.

VII. At Large Membership Costs

Because of the number of still unresolved issues associated with At Large membership, it is very difficult to make any precise cost estimates of implementing the membership program. Examples of assumptions which affect the development of administrative procedures and systems and associated costs include:

COMMENT: The at-large is being subjected to a presumption of fraud and impersonation that has not been proven to exist in practice.  These amount to a ball and chain being attached to the legs of the fledgling at-large body.  The costs of these procedures could easily cause the at-large to be stillborn.

Any presumption of fraud and impersonation should be applied with equal weight to corporations and associations in other elements of ICANN.  Just as individuals will be required to prove their identity, corporations and associations should be required to demonstrate that they are properly formed and are current in the obligations they own to their chartering states.  In addition, any person claiming to represent a corporation or association should be required to prove the authenticity of that appointment.

During previous MAC and Board discussions, estimates of startup and ongoing annual At Large membership costs have ranged from a few thousand to hundreds of thousands of dollars. These large variations no doubt result from varying personal opinions on assumptions such as those noted above.

It is not reasonably possible to pin down all of the uncertainties associated with implementation of At Large membership at this time. The previous discussions by the MAC, the ICANN Board, and contributions by the

public during the Singapore and Berlin meetings have progressively narrowed the range of desirable membership features, and the forthcoming Santiago meeting should further this process through public comment and Board discussion, which will permit more accurate estimates of funding requirements for At Large membership costs.

In other sections of this report, staff recommends that the Board take action in Santiago to: (i) begin the membership creation process, (ii) begin an At Large membership outreach effort, (iii) form an At Large Membership Council and seek its advice on remaining membership issues, and (iv) seek and/or identify a source of one time funding to support these activities.

The Board need not, at this time, make decisions about long term membership program parameters and associated costs, so long as the approximate amounts are recognized as a commitment of future budgets. Non-profit membership associations in the U.S. commonly spend $25 to $50 per member per year to support direct membership expenses. If ICANN were to reach and stabilize at the level of 5000 At Large members, and if its At Large membership program was typical of other membership organizations, then it would be committed to an annual expense of $125,000 to $250,000. A variety of decisions could cause this number to vary up or down.

However, dealing only with essential out of pocket costs for the next three to six months, and assuming that decisions on the assumption questions above are neither at the "quick and dirty" end of the range, nor at the "completely bulletproof" end of the range, then the staff believes that a budget of approximately $100,000 for (i) a temporary but full time staff person to administer the At Large membership program and support the At Large Membership Council, (ii) the services of a full time technical staff person to develop and implement the necessary initial At Large membership computer support, (iii) the services of a full time professional membership consultant to design and coordinate the outreach program, and (iv) incremental computer and miscellaneous administrative expenses would be sufficient.

It should be clearly recognized that the recommended amount substantially understates the full cost of initiating the program because it includes neither the budgeted time of current ICANN staff and counsel, nor the many hours of unpriced - but "priceless" - time of ICANN volunteers. But it offers an avenue for continuing forward into the deployment phase of the At Large membership program for which the Board may be able to find funding.

VIII. Rights of Members

There is an important legal issue here. Under California law, a nonprofit corporation can, but need not, have "members." If it chooses to have members, those members can be so-called statutory members, with rights as set forth in California law, or they can be non-statutory members, with powers specified in the Articles and Bylaws. Even if an organization has statutory members, it may limit or condition various powers of such members. Thus, a threshold decision for ICANN is what powers or "rights" should its members have and how should they be exercised?

Consistent with the staff's recommendation that At Large members have no greater rights than other participants in ICANN, and consistent with the MAC recommendation that members should not have the right to bring derivative actions (a right of statutory members under California law), it may be appropriate to establish the ICANN membership in a way that does not create statutory members under California law. This issue is complex and involves significant underlying legal issues, an analysis of which is contained in a separate document.

COMMENT: If ICANN succeeds in this endeavor, then to whom will it be "accountable?"

ICANN's attempt to become an utterly independent body with no clear line of responsibility to anyone, will complete the transformation of ICANN's motto of "open, transparent, and accountable" from a high ideal to an institutional joke.

And as a Californian, this writer objects to the report's implied assertion that California corporations law is a tool for unjustified derivative suits.  I am, and have been, involved with many California non-profits and never once have I seen a member derivative action, much less one that was simply intended to be disruptive and without merit.

I would suggest that the California law is a well considered balance of interests.  ICANN knowingly, and over objection, chose California and the Non-Profit/Benefit form.  ICANN should not now try to avoid the consequences of California's corporations law while at the same time taking advantage of the State's other protections.

IX. Summary of Recommendations

The foregoing sections of this report make the following staff recommendations requiring Board actions by resolution on At Large membership issues to be taken at the forthcoming Santiago Board meeting.

Recommendation II.1: The Board should create an At Large Membership Council with duties and responsibilities to the At Large membership and to the ICANN Board analogous to those of the Supporting Organization Councils and their respective organizations. Some of its advisory responsibilities to the Board might include:

Recommendation II.2: At least some of the initial members of the At Large Membership Council should be appointed by Board resolution at its Santiago meeting.

Recommendation III.1: ICANN At Large membership should be open to any individual who meets the following minimum membership criteria: (i) a commitment to participate, (ii) an Internet electronic mail address, (iii) a postal mail address, (iv) verifiable citizenship and residency, and (v) ability to support the costs of ICANN At Large membership when a cost recovery mechanism is identified and approved.

Recommendation IV.1: The threshold for creating an At Large membership electorate should be 5000 individuals.

Recommendation IV.2: An organized, staffed and funded outreach effort should be initiated to assist in attracting at least 5000 At Large members of ICANN.

Recommendation IV.3: A source or sources of one time funding for the At Large membership should be vigorously sought; if such a source can be found, membership fees for the initial round of elections of the nine At Large directors should be waived.

Recommendation V.1: Subject to review, revision and an implementing resolution at the ICANN Annual Meeting in Los Angeles in November, the election of At Large Directors should take place in at least two separate election events. The first election would select three At Large Directors, with the remaining six to be selected in a subsequent election, using procedures modified to the extent thought appropriate or necessary based on an analysis of the process and results of the first election.

Recommendation VI.1: Subject to further review, revision and an implementing resolution at the ICANN Annual Meeting in Los Angeles in November, geographic diversity among At Large Directors should be achieved by electing five Directors from each of the existing five geographic areas defined in the ICANN Bylaws, and four from a single pool of nominations on a worldwide basis.

Recommendation VII.1: Subject to the receipt and availability of funds in the amount of at least $100,000, the Interim President/CEO should be directed to immediately undertake the implementation of Phase I of the At Large Membership program, comprising the following minimum components: (i) a temporary but full time staff person to administer the At Large membership program and support the At Large Membership Council, (ii) the services of a full time technical staff person to develop and implement the necessary initial At Large membership computer support, (iii) the services of a full time professional membership consultant to design and coordinate the outreach program, and (iv) incremental membership computer and administrative expenses.