CAC/CPT bylaws comments

[Theresa Amato <amato@essential.org>]

To:  The ICANN Board
From:  Theresa Amato, on behalf of the Citizen Advocacy Center
and the Consumer Project on Technology
Re:  Proposed Amendments to the ICANN By-laws
Date:  October 28, 1999

Thank you for this opportunity to comment on the amendments to the
by-laws, posted on October 8, 1999.  These comments are submitted after
the posted deadline for comments, October 22, but we are sending them
for the record to memorialize in writing the opposition the Citizen
Advocacy Center and Consumer Project on Technology expressed verbally in
August at the Santiago, Chile public meeting on the then-articulated
formation of this “membership” proposal. We note at the outset that we
object to the abbreviated 14-day period to submit written comments on
something as fundamental as, ostensibly, half of the composition of
ICANN.   We say “ostensibly” because it appears from the proposed
amendments to the bylaws, the stillborn process on ICANN membership to
date, and the posted Saturday October 23, response to Professor
Froomkin’s comments by ICANN’s counsel, Mr. Joe Sims, that some within
ICANN do not believe that the individual user of the Internet has any
significant role in this organization.  Indeed, Mr. Sims’ written
remarks, to the extent they reflect or are consonant with his
representation of ICANN, would appear to indicate that the membership’s
role in ICANN is something that the “real world,” as demarcated by
ICANN, must overcome to prevent the “population” from “destabilizing”
the Internet.  See
www.icann.org/comments-mail/comment-bylaws/msg00014.html (Froomkin);
www.icann.org/comments-mail/comment-bylaws/msg00025.html (Sims).

 We support Professor Froomkin’s comments and oppose anything less than
statutory membership under California law.  The proposed Article II
amendments on membership are objectionable in almost every respect.  We
oppose:

1) Any fee on the registration of non-member “members” and any
discretionary procedure for establishing fee waivers or reductions that
are not further defined beyond for “reasonable purposes.”  Given the
concern about capture of the ICANN Board by organized blocks of
pre-existing membership organizations or corporations already
represented in the supporting organizations and able to dominate
election procedures, the only leveling power for the individual user is
to ensure that all individuals worldwide may easily join this entity and
exercise the right to vote without fee.  ICANN should be in the position
of welcoming individual users into the process rather than minimizing
any reason they may have for participating in this entity.   Under the
current proposal, people are being asked to pay for virtually no
benefits and a diminished role so that ICANN can appear to represent
stakeholders other than the corporate interests that dominate the
current structure.
2) Lack of full membership access to the corporate records and
membership lists for proper purposes, including organizing campaigns and
initiatives.  Indeed, the presumption for all ICANN records should be
one of openness.
3) Unspecified, discretionary termination as set forth in Section 5.
What constitutes “conduct prejudicial to the Corporation’s purposes”?
Why should ICANN be in the position of determining who can belong on the
basis of membership conduct?
4) The concept of an “at-large” council, much less the procedures set
forth in Sections 6 and 7 for electing it.  Members should vote directly
for their representatives and the diversity requirement should be
preserved, rather than skewed as it is currently set forth.  The
procedures do not prevent the possibility that one region could entirely
dominate the votes of the at-large council.
5) Closed sessions as provided for in Section 9 (d).
6) The deprivation of other statutory membership rights provided for in
the California Code, including the ability of statutory members to call
meetings, amend bylaws, contest elections, and remove directors.

We further suggest that Mr. Sims’ response to Professor Froomkin’s
comments is flawed. Contrary to the assertion that ICANN’s “primary”
mission is stability and DNS management, the Department of Commerce’s
White Paper sets forth four functions, not one “primary” one, for the
“NewCo” or ICANN.  Those four functions include administration of the
DNS, but do not set up DNS management as the primary mission of the new
company.  We understand how at this time this entity may be viewed
through this narrower prism, but we believe that the White Paper sets
out a larger overall mission for ICANN and that the ICANN interim board
should be cognizant of its broader duties.  Moreover, though
“stability” of the Internet is critical, the Department of Commerce
identified three other fundamental guiding principles for the NewCo:
competition, bottom-up coordination, and representation.  “Stability” is
one of those four and there is no reason to believe that the other three
guiding principles, including “bottom-up” coordination, are in conflict
with “stability.”   The proposed bylaw amendments on membership make a
mockery of the bottom-up requirement as they sacrifice any true
bottom-up features to an unwarranted fear that the people of the
Internet will somehow cause instability by exerting stakeholder control
over this corporation.  In short, ICANN cannot have it both ways.  ICANN
cannot assert that it is a bottom-up, representative organization with a
membership when it creates a membership –intentionally disempowered – in
the name of “preserving stability” by insulating itself from popular
control.

We, of course, are not wary of Mr. Sims’ “only realistic alternative:
control of ICANN by some form of multi-national body” as we have
suggested that such a result is precisely what is called for here to
establish a legitimate authority to administer the Internet.  See
www.cptech.org/econ/cpsr-icann.html A Framework for ICANN and DNS
Management, presented by Ralph Nader to Governing the Commons: The
Future of Global Internet Administration, a conference organized by
Computer Professionals for Social Responsibility, September 24-25,
1999.  The so-called “private sector” approach is not only “quite
remarkable” but fundamentally inappropriate for the authority being
vested in this entity as constituted.  The sooner everyone involved in
this process comes to understand this “real world” fact, the faster we
will be able to move to ensure the stability of the Internet by people
who believe in the kind of responsiveness and accountability that gives
legitimacy to those who would wield power.

Thank you again for the opportunity to comment

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