Staff Recommendation on At Large Study Implementation

15 November 2000

Staff Recommendation on Implementation of Article II, Section 5 of ICANN Bylaws, calling for an At Large Study

In Yokohama, the Board adopted changes to its bylaws (Article II) dealing with At Large membership issues. The new bylaw provisions include Section 5, which reads as follows:

"Section 5. Study of "At Large" Membership

Beginning immediately following the conclusion of the Annual Meeting of the Corporation in 2000, the Corporation shall initiate a comprehensive study of the concept, structure and processes relating to an "At Large" membership for the Corporation. The study shall be structured so as to allow and encourage the participation of organizations worldwide, and shall be a "clean sheet" study -- meaning that previous decisions and conclusions regarding an "At Large" membership will be informative but not determinative, and that the study will start with no preconceptions as to a preferred outcome. The study shall include, but not necessarily be limited to, the following issues, taking into account the limited technical and administrative responsibilities of ICANN:

Whether the ICANN Board should include "At Large" Directors;

If so, how many such Directors there should be;

How any such "At Large" Directors should be selected, including consideration of at least the following options: selection by an "At Large" membership; appointment by the existing Board; selection or appointment by some other entity or entities; and any combination of those options;

If selection by an "At Large" membership is to be used, the processes and procedures by which that selection will take place; and

What the appropriate structure, role and functions of an "At Large" membership should be.

The Board shall establish, by the Annual Meeting in 2000, a process and structure for the study that will enable it to meet the following deadlines:

a. The results of the study should be presented to the Board no later than the second quarterly meeting of the Corporation in 2001;

b. The Board shall review the study, and propose for public comment whatever actions it deems appropriate as a result of the study, on a schedule that would permit the Board to take final action on the study no later than the Annual Meeting of the Corporation in 2001; and

c. Any actions taken by the Board as a result of the study that require the selection of any "At Large" Directors should be implemented on a schedule that will allow any new "At Large" Directors to be seated no later than the conclusion of the Annual Meeting of the Corporation in 2002."

Because of the volume of work required by the TLD application process, the staff has not until now been able to produce a suggested template for the At Large study called for by Section 5. What follows is a suggested approach based on the staff's best judgment of the kind of study that has the potential to produce the desired result: a solution to this problem that will enjoy broad consensus support throughout the Internet community.

I. Context.

For the benefit of those who have not followed this issue closely, it may be useful to set forth the following explanation, so as to place the staff recommendation in proper context.

ICANN is a consensus development body. Its Supporting Organizations are charged with the development of policy recommendations in their respective areas of expertise. ICANN's mission is narrowly (and properly) circumscribed, but even within those boundaries its actions can affect in various ways the whole community of Internet users. Thus, it has been assumed from the time of ICANN's creation that there must be some mechanism for the Internet community as a whole to provide input and accountability to ICANN -- and to help to more broadly legitimize the decisions and actions of what is a unique non-governmental organization.

The method by which this participation should take place has been the subject of quite contentious debate since even before the creation of ICANN. Notwithstanding very considerable discussion and analysis inside and outside ICANN over the two years since ICANN was created, it is apparent that there is still today no general consensus on this issue among the broad Internet community.

II. The Problem is Complex, but its Solution is Essential to Continued Progress by ICANN.

Within the Internet community, there are a range of very diverse views on how ICANN should be structured and operated, ranging from an emphasis by some on broad global democratic procedures to other views that favor leaving ICANN to be governed by those with the requisite expertise over what are described as the narrow technical and administrative tasks of ICANN. In addition, there are serious mechanical issues; no matter where on the policy spectrum one falls, all participants in the debate are interested in avoiding fraud, abuse or capture by determined minorities. Even this brief and very general statement of the issues illustrates how complex this problem is, and explains why arriving at a consensus solution has proven to be extremely difficult.

Still, no matter how difficult the problem, it must be solved. ICANN depends for its success and ultimately its existence on the voluntary cooperation of independent actors (including root server operators, ISPs, name and address registry operators, and registrars) in the Internet community around the world. ICANN has no weapons; it has no coercive power. Its ability to carry out its mission over the long term requires broad global consensus and broad global support. It also depends on the continued acquiescence of the world's governments in the notion that an private sector entity like ICANN can best manage this critical resource. Continued controversy over the proper role and function of the general Internet community in ICANN's decision-making processes is not helpful to these objectives.

Finally, it seems logically inescapable that the general Internet community should have some appropriate input into ICANN policy decisions, since those decisions surely can affect their ability to use the Internet in many different ways. There may be a very legitimate debate on the form that community input should take, but there should be no debate that some appropriate form of general Internet community input must be found.

ICANN is engaged in an organizational and development process that has produced significant progress since its creation two years ago. Assuming decisions on TLD issues at this meeting, it will have taken some action on each of the specific objectives set forth for it in the White Paper. Not all of ICANN's structural and organizational issues have been completely solved, but on all of them, with the obvious exception of the At Large problem, great progress has been or is being made.

Unfortunately, it is hard to see that any real progress has been made on this problem since ICANN's creation. To some extent, this issue seems to provide the ultimate challenge in generating consensus from the entire Internet community -- which includes not only individual users, but governments, technical managers, businesses and non-commercial organizations, among others. All of these segments of the Internet community have a legitimate interest in the solution to this problem, and especially in a solution that does not threaten the stability of the various aspects of the Internet for which ICANN has some responsibility. Thus, it is axiomatic that any effective solution must attract the support of the entire Internet community; without that consensus, as we have seen over the last several years, the problem will remain unresolved.

III. The Current State of Affairs.

In Cairo and Yokohama, after considerable public discussion and faced with an apparent lack of consensus support for any particular method of populating an At Large component of the ICANN Board, the Board adopted a compromise interim solution: the direct selection of five ICANN directors by a self-selected At Large constituency, combined with the continued service of four of the original ICANN directors (for a period not to exceed two years) to ensure that there would remain nine At Large "slots" on the ICANN Board until (at a minimum) the results of the At Large study were implemented. As part of this compromise, it was agreed that, during the next two years, there would be a "clean-sheet" study of how to appropriately provide for input and influence into ICANN policy deliberations and actions by the general Internet community, including whether and how At Large directors should be selected in the future, and any other issues necessary to solve this problem. The five At Large directors have now been chosen, in a process that was certainly not free of problems, but which will provide very useful factual data for this study. The four continuing original directors have also now been identified. The next step is to create a structure for a study that has the potential to be (1) effective in trying to solve the problem, and (2) credible in its conclusions.

IV. Proposed Conceptual Basis for the Study.

This problem must be solved in some way that actually works mechanically, but it must also be solved in a way that generates broad consensus support for the solution as a workable and appropriate mechanism for broad Internet community input into the ICANN consensus development process. This means that the study must be (and be perceived to be) open and inclusive; it must be managed in a way that promotes the development of consensus, not a battle of competing designs; and the result must satisfy the legitimate desire of the broad Internet community to have meaningful input into ICANN processes and decisions. This is obviously easier said than done, but we believe it can be done.

The ICANN staff suggests that the following general principles should guide this study:

1. The study should be undertaken by a group separate from the ICANN Board. The Study Committee, as we will refer to it in these comments, should be a relatively small group (perhaps 5-9 people) that is to the extent possible representative of the Internet community as a whole. We suggest that one member of the Study Committee should be a sitting ICANN Board member, bringing to the Study Committee the history and experience of ICANN's efforts to deal with this issue. The remaining members of the Study Committee should, to the extent practical, reflect the breadth of relevant interests in the Internet community, including non-commercial interests, commercial interests, public bodies (governments, treaty organizations or other multi-national organizations), the technical community, and the general user community. We believe it would be desirable to include on the Committee one member who is expert in election issues generally. Finally, the Study Committee should, again to the extent practical, also be geographically representative. We suggest that the Board solicit recommendations from the community, as described below, for appropriate members of this Study Committee, and in particular for a Chair (or co-Chairs) whose reputation(s) will help to generate confidence in the objectivity of the effort.

2. An Executive Director should be selected who would undertake the day-to-day staff work, under the direction of the Study Committee, of the consensus development effort itself. For purposes of funding and administration, the Executive Director should report to the ICANN CEO; in all other respects, the Executive Director should report to the Study Committee Chair.

3. The Study Committee should be specifically charged with finding a consensus solution to this problem that will provide a mechanism for appropriate input by the general Internet community while also permitting effective and efficient management of ICANN and the achievement of its specific technical and administrative mission. The Study Committee in its final report should specifically answer the following questions (along with such other specific inquiries as it deems appropriate):

a. Should the ICANN Board include At Large Directors?

b. If so, how many such At Large Directors should there be?

c. How should any such At Large Directors be selected?

d. If selection by an At Large membership is recommended, what processes and procedures should be used to create that At Large membership? What minimum criteria, if any, should be required for membership? Precisely how should an At Large membership select At Large Directors?

e. If an At Large membership is to exist, what should its structure, role and functions be?

Any report and recommendations by the Study Committee should, at a minimum, provide a report on the consensus position in the community, if one has been generated, on each of these questions, along with a clear explanation of the rationale underlying that consensus.

4. As implied immediately above, the Study Committee should function as a true consensus development body, seeking input from all and attempting to facilitate the creation, from all of those participating, of a true consensus solution to this problem. This probably means that the Study Committee, in addition to commissioning or undertaking any studies or analyses it thinks appropriate or necessary, should also facilitate and encourage broad participation by multiple other groups, either by encouraging them to undertake (at their own cost) their own analyses or studies and submitting those to the Study Committee for its use in the consensus development process, or by encouraging their participation in any public forums or other meetings that the Study Committee might sponsor. Any independent studies that are undertaken should, to be most useful, document the process, input and nature and extent of support for any particular proposal. The Study Committee should also provide multiple mechanisms for input from the community, including bulletin boards, mailing lists, and perhaps (in its discretion) one or more public meetings. The Study Committee should seek to facilitate the transformation of the various inputs that it receives toward a recommendation that could receive broad support throughout the community In addition, the Study Committee should seek to facilitate consensus in any other appropriate way, including the preparation and distribution of concept papers and the promulgation of specific questions and other inquiries to those participating in this effort.

5. Assuming it is able to identify a consensus, the Study Committee should report and document that consensus, and accept and evaluate any public comment on that preliminary report. Following that public comment and any further efforts it feels are necessary and appropriate in light of those comments, the Study Committee should report its findings to the ICANN Board, and simultaneously post that final report for public comment. Following receipt of the Study Committee's report, the ICANN Board should receive and evaluate any public comments on that report, and devote a minimum of one full day at one or more quarterly Board meetings to public discussion and debate on the report and its suggestions.

6. Following the conclusion of the process outlined above, the ICANN Board should take such actions as it deems appropriate to recognize any community consensus that exists on this subject, and in particular to amend its bylaws and/or take any other steps necessary to provide an appropriate mechanism for input and involvement by the general Internet community in the ICANN consensus development process.

V. Funding.
In addition to the schedule, another critical issue relating to the study is the budget necessary to accomplish its purpose - both the amount and the source of the funds. One advantage of the Study Committee acting principally as a consensus development body, and encouraging multiple independent studies as part of that process, is the fact that funding requirements will be dispersed to some extent, but the Study Committee itself will still require significant resources. There are no funds in the current ICANN budget for this purpose. The staff recommends that the community be asked to make suggestions for how the Study Committee's work be funded in the comment period recommended below. In addition, we suggest that the Study Committee be required to include in its Melbourne report a recommended budget (and suggestions for the source of any funds not at that time already committed) for the completion of its work from that point.

VI. Timing.

The process adopted by the ICANN Board in Yokohama contemplated that the study required by the bylaws would be completed by the time of the second ICANN meeting in 2001, and that the ICANN Board would adopt whatever bylaws or other changes were necessary to implement the recommendations it chose to adopt by its annual meeting in 2001. The notion was that this would leave sufficient time to take whatever actions were required so that the selection of any new At Large directors, assuming that was the result of the Board's action, could be done so that they could take their seats on the Board no later than at the conclusion of the Annual Meeting in 2002. On reflection, it may be that this is too aggressive a schedule at the beginning and too generous at the end, but the staff is reluctant to suggest specific changes. Therefore, we suggest that the Study Committee itself be required to report at the first ICANN meeting in 2001, to be held in Melbourne, Australia on March 10-13, 2001, on the schedule and process it thinks is necessary to accomplish its mission, with the caveat that any such schedule must conclude with an ICANN Board decision that can be fully implemented, as required by the current bylaws, no later than the ICANN Annual Meeting in 2002.

VII. Recommendation.

The staff recommends that the Board publish these staff recommendations during the Annual Meeting in 2000, and solicit comments on them over the 30 days following the conclusion of that meeting. During that time, the Board should also solicit recommendations from the community for membership on the Study Committee, and for potential sources of funding for the study. As soon as possible following the public comment period, but no later than January 15, 2001, the Board should either establish the Study Committee or, if persuaded by the public comments to adopt some different approach, take such other action as is appropriate to initiate the At Large study process required by Article II, Section 5 of the Bylaws.

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