proposed bylaws changes

[Jonathan Weinberg <weinberg@mail.msen.com>]

	The proposed changes to the ICANN bylaws are ill-advised in a variety of
respects.  These brief comments speak first to the central concerns raised
by the proposal for an "At-Large Council" and indirect voting for the
At-Large members of the ICANN Board.  Next, they address other issues
implicated by that proposal.  Finally, they address a provision in the
proposed bylaws intended to affect the relationship between the DNSO Names
Council and General Assembly.

1. The proposed indirect election scheme for At-Large Board members is
insufficient.

	The notion that ICANN's membership should not elect Board members, but
instead should elect members of an "At-Large Council" whose sole function
is to select Board members in a manner insulated from the public, was
floated by ICANN staff two weeks before the Santiago meeting. ICANN staff
released two documents: The first, titled "Staff Report: ICANN At Large
Membership," appeared to assume that the membership would elect Board
members directly, and posited an At-Large Council that would serve other
functions.  The second, titled "Analysis: Statutory Members versus
Nonstatutory Members for the ICANN At Large Membership," suggested towards
the end of the document that the ICANN should "consider" the alternative of
indirect elections as a means of avoiding the requirements of California
nonprofit corporations law.  This suggestion did not excite significant
public attention.  When, in Santiago, therefore, the Board adopted a
resolution that "the At-Large Directors should be selected by an At-Large
Council" rather than by the membership, there had been no meaningful
opportunity for public comment.  The first real opportunity for comment is
now, in connection with the draft bylaws changes that ICANN staff have
proposed.

	The At-Large voting scheme proposed in the bylaws is distressing.  The
essence of the scheme is to distance the actual choice of directors from
the voting membership, leaving users without meaningful voice.  It tosses
away the possibility that ICANN could gain legitimacy and buy-in by giving
individual users a stake in its structure and processes.  Few users will
consider it meaningful representation to have the right to participate in
the election of people who will then themselves participate in an election
of Board members; few users will believe that this structure gives them a
voice in the process.  I would be surprised if many thought this sole
privilege worth the price of ICANN membership fees.  Indeed, it is hardly
clear why anybody would consider it worthwhile to *serve* on the At-Large
Council.

	Some suggest that ICANN needs such a mechanism because the membership in a
direct election would elect kooks and loons.  This, I think, is entirely
unwarranted (and if it were true, then instituting an indirect-election
system probably wouldn't help much).  The closest thing we have had to
direct voting so far has been the balloting process leading to the
nomination, by the DNSO General Assembly, or DNSO candidates for the ICANN
Board.  Although the number of persons who participated was small, the
candidates who got the largest number of votes in that process were highly
serious and capable individuals (and, indeed, were more technically
proficient than the candidates the Names Council ultimately selected).

	ICANN staff have suggested that direct voting would carry with it an
impermissible risk of derivative lawsuits.  Professor Froomkin has
explained, in his comments, the degree to which this concern is overblown.
In any event, I don't think any sensible business would take as its primary
consideration in structuring its organization and operations the desire to
avoid frivolous suits -- that's ultimately a much less important concern
than the other representational issues that the decision implicates.

	Finally, ICANN staff have raised the argument that users would be better
served by an At-Large Council with the power to act as an effective voice
for users before the ICANN Board than they would be served by having a mere
direct vote for Board members.  It's true that the indirect election
proposal would seem more attractive and coherent if it came coupled with
other meaningful powers for the membership council — if it *in fact*
created an entity within ICANN that could act as an advocate, before the
Board, on behalf of the general membership.  Such a council might have two
powers.  The first would be to initiate policy proposals.  This would be
valuable because it would allow the membership to put on the agenda
proposals that had broad support, but were nonetheless bottled up in the
relevant SO Council because of process failures in that body.  The second
would be to review policy proposals initiated by the SOs.  This would be
valuable because it would give the membership a focused voice against
ill-considered proposals reflecting the narrow or skewed views of a
particular SO.

	The fact is, though, that the bylaws changes now before the Board don't
incorporate any such powers for the At-Large Council.  The mere existence
of the council will do nothing to create an advocacy mechanism for At Large
interests, since the council will have no functions other than meeting
periodically to select Board members.  No member of the Internet public
will accept the creation of the At-Large Council on the theory that it will
be an effective advocacy voice, unless the Board enacts provisions that
allow the Council to fulfill that role.  Nor is it sufficient for the Board
members to promise to consider such changes at some point in the future.
Rather, ICANN should define the powers of the At-Large Council at the same
time as it defines its structure.  It's no way to run a railroad to enact
the current bylaws proposal (at best incomplete, at worst incoherent) with
the promise of revisiting these concerns as an afterthought, sometime later
on.

	In short, if the creation of the At-Large Council is to be justified on
the ground that users would be better served by having the Council as a
voice for their interests within ICANN, then ICANN should act *now* to give
the Council the necessary powers.  That means pulling the current bylaws
proposals off the table, and rewriting them so that the At-Large Council
has the same powers of policy initiation and review as do the SOs.

2. The proposed membership provisions are problematic in other ways.

	The bylaws have several problematic features unrelated to the indirect
voting scheme.  Art. II, sec. 3 restricts members' communications with each
other using the registration list to "such ways and such circumstances as
the Board determines are appropriate and desirable."  To the extent that
ICANN staff (entirely reasonably) wishes to avoid spam using the
registration list, it should craft a more narrowly tailored prohibition.
This blanket assertion of control over the members' speech activities, in
the Board's unfettered discretion, is far too broad and carries with it the
potential for abuse.  Similarly, the provision in Art. II, sec. 4(g) that
the Board or Council can terminate a member for "conduct prejudicial to the
Corporation's purposes" seems the sort of tool beloved of despots, and
wholly unnecessary for ICANN.  If it responds to a specific concern, it
should be drafted narrowly to target that concern.  Art. II, sec, 2, in
allowing the Board to establish a membership fee, should provide explicitly
that the amount of the fee cannot exceed the sum necessary for fair
recovery of costs associated with the membership structure.

	Art. II, sec. 6, appears to incorporate a simple (though serious) drafting
error.  It carefully lays out the consequences if two-thirds of the Board
members determine that the At-Large selection process was fair and
effective, and the consequences if two-thirds of the Board members
determine that the At-Large selection process was *not* fair and effective.
 But suppose there is no two-thirds supermajority in either direction?  

3. The proposed change respecting the power of the DNSO General Assembly
should be reconsidered.

	The proposed bylaws contain one change apparently intended to affect the
relationship, within the DNSO, of the Names Council and General Assembly.
That relationship, currently, is somewhat one-sided: All policy authority
is in the hands of the Names Council (and this, the constituencies that
have gained official recognition); almost none is in the hands of the
Genreral Assembly.  

	Recently, in connection with the election of ICANN Board members from the
DNSO, participants' attention became focused on Art. VI-B sec. 4(d), which
provides that "[t]he GA shall nominate" candidates for the ICANN Board.
Some General Assembly members urged that the GA *as a body* should play a
role in the nomination of candidates.  As Roberto Gaetano put it

"Nominations . . . should also not be a purely formal (and trivial)
process. In other words, in order for the GA to have a *real* role in the
nominations, the output of the process should be a shortlist of candidates
that *the GA* nominates and supports, not a raw list of candidates that "10
out of I-don't-know-how-many-people" nominate and support. . . . This is
the added value that makes the list of candidates a "qualified list" - this
is the added value that makes the nominated people "nominated by the GA". .
. . This procedure will "give a role to the GA". The current procedure does
not."  <http://www.dnso.org/clubpublic/ga/Archives/msg01077.html>.

	ICANN staff have now proposed to amend Art. IV-B sec. 4(d), so that —
rather than providing that "[t]he GA shall nominate" candidates, it
provides instead that "[p]articipants in the GA shall nominate" candidates.
 The apparent purpose of the change is to remove any basis in the bylaws
for suggestions like Gaetano's, and to cement in the bylaws the proposition
that all institutional authority in the DNSO rests with the Names Council.

	It is by no means clear, though, that this change would be a good one.  In
my view, the DNSO would benefit from a process in which the GA had an
affirmative role to play in screening candidates for the ICANN Board,
subject to later election by the Names Council.  There surely has been no
adequate public ventilation of ICANN staff's reasons, if any, for believing
that to be a bad result as a policy matter.  This change, buried deep in a
raft of proposed bylaws changes and largely unremarked, should not go
through absent that public discussion.

Jonathan Weinberg
Professor of Law
Wayne State University