Comments of Common Cause and
the Center for Democracy and Technology
Proposed Revisions to ICANN Bylaws on At-Large Membership
The Center for Democracy
and Technology (CDT) and Common Cause submit the following comments about proposed
revisions to the ICANN bylaws relating to At-Large Directors.
As drafted, the proposed
revisions would make a sweeping and unnecessary change to the structure of the ICANN
Board. The revisions appear to eliminate the current guarantee that there will be
nine At-Large Directors. Starting as early as 2001 the number of At-Large Directors
would be reduced, and it would require an affirmative act of the board to reinstate
them. Such a change is not necessary to implement the Board’s At-Large resolution
from Cairo, and we strongly encourage the Board to forgo the unneeded revisions of
the bylaws that appear to reduce the At-Large seats.
The revisions are designed
to establish new procedures for election of At-Large directors, as authorized by
a resolution of the Board at the Cairo meeting in March. The bulk of the proposed
revisions make authorized changes that simply institute the direct, staged election
and study approved in Cairo. For the most part these revisions are a fair and sound
implementation of the Cairo resolution.
However, some of the proposed revisions
go a step further than is needed to implement either the spirit or letter of the
Cairo resolution. As explained in detail below, the revisions would eliminate the
current requirement that there should be nine At-Large Directors. Taken as a whole,
these revisions would allow the number of At-Large Directors to shrink from nine
currently to five in November 2001 and zero in November 2002. Further board action
would be needed to add At-Large seats back into the Bylaws.
The proposed revisions
create a presumption that there will be a reduction in At-Large directors. Any such
fundamental change to the structure and governance of ICANN would be a radical departure
from the founding principles of balance on which the legitimacy of the organization
ICANN can conduct the comprehensive study of At-Large membership
required in the Cairo resolution without changing the balanced makeup of the board.
The Board should retain the existing requirement that there be nine At-Large Directors
and drop the controversial revisions to Article V that would change that fundamental
The proposed revised bylaws accomplish the goals
outlined by the Board's Cairo resolution. The question is whether they move
radically beyond those goals as well.
The bulk of the revisions are a straightforward
implementation of the direct, staged election and study:
* First, the proposed
bylaw changes would strike Article II of the current bylaws in its entirety.
Since this Article is the basis for the At-Large Council and the indirect election
of At-Large Directors, it seems reasonable to repeal it in toto and craft an entirely
* The revisions propose a new Article II. Section 1 provides
that ICANN shall not have "members" for purposes of California corporate law.
Sections 2 and 3 provide that five At-Large directors shall be selected by November
1, 2000 and shall serve until the annual meeting in the fall of 2002. Section 5 provides
that after election of the five directors ICANN shall undertake a "comprehensive
study" of the At-Large membership. While some of these provisions are controversial,
they are in keeping with the Cairo resolution.
* Revisions to other Articles make
conforming changes. Section 1 of Article V extends the terms of five initial At-Large
directors until their replacements are elected in Fall 2000. It extends the
terms of the other four of the initial At-Large directors until Fall 2001.
changes are more problematic. Section 4 of Article V currently sets forth the existing
19-member structure of the board, divided between the Supporting Organizations and
At-Large directors. Currently, the section guarantees nine At-Large members:
"Section 4. QUALIFICATION OF DIRECTORS AFTER THE INITIAL BOARD
Board after the Initial Board shall be comprised as follows:
(iv) Nine (9) At Large Directors, consisting of the At Large members
of the Initial Board or their successors selected pursuant to the
process set forth in Article II hereof;" (Art. V, Sec. 4)
The revised section would
change this make-up:
"(iv) The Nine (9) At Large members of the Initial
their terms of office prescribed in Section 1 of this
(v) Successor At Large Directors seated according to Article II,
Section 2 of these Bylaws;" (Proposed Art. V, Sec. 4)
addition, the revisions would require that "no At-Large Director shall continue to
hold office after the expiration of his or her term..." (Proposed Art. V, Sec.
9(c)) –- unlike all other Directors, who hold office until their replacements are
Though a subtle drafting change, taken as a whole the revisions change
the simple guarantee of "Nine (9) At Large Directors" and reduce the required number
of At-Large directors:
* Four initial At-Large directors would serve until Fall
* Five directors would be elected in Fall 2000 and serve until Fall 2002.
The ongoing requirement of nine At-Large Directors would be removed, and nothing
in the revised bylaws would provide for replacement of the nine At-Large members
following the expiration of their terms.
Thus, there will be a 19-member board
through Fall 2001. Absent further amendment to the bylaws, the revised bylaws
only require a 15-member board, including five At-Large directors, as of Fall 2001.
And as of Fall 2002, the revised bylaws only require a 10-member board, with no At-Large
[We note that Article V, Sec. 6, would still provide that "at least
one citizen of a country located in each of the geographic regions...shall serve
as an At Large Director on the Board...at all times." It is not clear how this
provision fits with the other changes. Perhaps it would be interpreted to require
five At-Large Directors, instead of the current nine.]
Such an outcome would be
a major change from the current bylaws guarantee of a balanced board containing nine
At-Large seats. Many in the ICANN community view the At-Large seats as a fundamental
feature of ICANN’s governance structure. As the Board itself noted in its Cairo resolution,
"it is important that the various stakeholders that do not or cannot easily participate
in the ICANN process through the Supporting Organizations have a voice in the development
of ICANN policy."
Rather, the Board should adopt a more limited set of revisions
that more directly implement the Cairo resolution. Article V, Section 4 should be
left intact. And to allay community fears that the revisions are a pretext to eliminate
At-Large directors, Article V, Section 9 should allow At-Large Directors to stay
in office until their successors are chosen, just as other Directors may do.
primary rationale for the proposed revisions is the Cairo Board resolution on At-Large
elections. While that resolution calls for ICANN to --
"initiate a comprehensive
study of the concept, structure,
and processes relating to the At Large membership"
a comprehensive study does not require the elimination of the current At-Large structure
moving forward. The ICANN community is completely capable of conducting an impartial
study and debate of the At-Large membership, as directed, while retaining the current
structure of nine At-Large directors.
On a final note, the revisions to Article
II establish a Nominating Committee and Elections Committee for the At-Large elections.
It is not clear that ICANN needs to enshrine these committees in the bylaws. (In
fact, the committees have been operating actively for the last two months.) Should
it do so, we must renew our objection to the structure of the committees. There is
no reason that Board Directors must dominate the Committees, and ICANN should not
codify a requirement that 4 of 7 Nominations members and 3 of 7 Election members
[Note: A more detailed discussion, including background information
on the ICANN election and the resolution in Cairo, is available as an Appendix to
If these revised bylaws are adopted as drafted,
the bylaws will no longer provide for nine At-Large Directors. Absent further action
by the Board, the number of At-Large directors will drop from nine to five next year,
and from five to zero the year after. In other words, in the name of a "clean sheet"
study, the proposed bylaws create the presumption of a radical restructuring of ICANN
to exclude an important public voice from its governance.
If this is the intent
of the board, it should say so explicitly, so that this position can be debated openly
by the ICANN community. If this is not the intent of the board, it should make
clear its commitment to the role of At-Large directors, even as the board studies
how best to provide for their selection.
Changing just a few elements of the proposed
revisions could easily implement the Cairo resolution without raising the sensitive
issue of Board makeup. We strongly encourage the Board to adopt a narrower set of
revisions that do not appear to eliminate such a fundamental feature of ICANN’s structure.