Below please find the comments of the Center for
Democracy
and Technology, Common Cause, and Oxford University's
Programme in Comparative
Media Law and Policy regarding the
ICANN Staff Proposal for At-Large Study Implementation.Rob
Courtney
Policy Analyst
Center for Democracy & Technology
1634 Eye St. NW,
Suite 1100
Washington, DC 20006
202 637 9800
fax 202 637 0968
http://www.cdt.org/
rob@cdt.org
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COMMENTS OF
THE CENTER FOR DEMOCRACY AND TECHNOLOGY,
COMMON CAUSE, AND
THE
PROGRAMME IN COMPARATIVE MEDIA LAW AND POLICY
(OXFORD UNIVERSITY)
ON THE ICANN
STAFF RECOMMENDATION ON AT-LARGE
STUDY IMPLEMENTATION
The Center for Democracy
& Technology (CDT), Common
Cause and the Programme in Comparative Media Law and
Policy (PCMLP - Oxford University) offer the following concerns
and comments
on the ICANN Staff Recommendation on
At-Large study implementation.
GENERAL
FRAMEWORK AND PRINCIPLES
We support the staff’s conception of a study that relies
on
self-generated studies from within the ICANN and Internet
community in
order to propose and explore different solutions to
the problems of ICANN.
We support the creation of a formal Study Committee to
coordinate these outside
studies and to help guide them toward
community consensus.
ICANN'S RESPONSIBILITIES
TO THE STUDY EFFORT
A largely outsourced approach to the study cannot and should
not, however, absolve ICANN of important responsibilities it has
to the Internet
community as a whole. ICANN’s founding
documents, public statements made by its
officers, and its
agreements with the U.S. government all have committed ICANN
to meaningful representation of the Internet user community on
its board
of directors.
We believe that ICANN’s requisite commitment to the concept of
public
representation should guide the Staff Recommendation
and consequently, the implementation
of the At-Large Study.
The Staff Recommendation on At-Large Study Implementation
reiterates this principle by acknowledging that "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 ICANN."
CDT, Common
Cause, and PCMLP strongly believe that the nine
Board seats currently reserved
for At-Large Directors fulfill that
purpose, and are necessary to counterbalance
the nine seats
held by the Supporting Organizations. In the past, we have
strongly
opposed any effort that appeared to put at risk these
nine At-Large seats. It
has been our consistent view that the
so-called "Cairo compromise" contemplated
a post-election
study of how best to select the At-Large directors, not whether
to
have any At-Large directors at all.
However, the board in Yokohama
expanded the scope of the
study to review "whether the ICANN Board should include
"At
Large" Directors[, and] if so, how many such Directors there
should be."
We believe this expansion of the study was
unwarranted and unnecessarily opened
up a question that
should by now be settled in favor of ICANN’s commitment to
have a strong public voice in its internal governance.
Accordingly, we urge
the Board to keep ICANN’s organizational
commitment to public representation
in mind – what the staff
paper calls the "logically inescapable" principle that
"the Internet
community should have some appropriate input into ICANN
policy
decisions" – while evaluating the Staff Recommendation
on the At-Large Study
Implementation.
**We offer the following specific comments on the staff
proposal:**
1.
THE STUDY COMMITTEE SHOULD SPEND SIGNIFICANT
EFFORT ON INTER-STUDY COORDINATION
AND GENERAL
OUTREACH.
We strongly support the staff report’s recognition of
the Study
Committee’s responsibility to "facilitate and encourage" studies
outside
its own. Effective conduct of these studies, however, will
require a substantial
effort at communication and coordination
on the part of the Study Committee.
Study processes should be
diverse, but also transparent and open in their activities.
We
hope, therefore, that the Board will provide the Study Committee
with
more specific indications of its proper role, including:
- The establishment and
maintenance, throughout the study
process, of a web-based forum for public input.
-
A fully transparent and public Committee process, including
open meetings of
the Committee with prior notice to the
Community, and public access to all studies,
reports,
memoranda and other documents considered by or generated
by the
Committee.
- The creation of a Study Committee web site, for
intercommunication
and data sharing both among independent
study groups and between those study
groups and the Study
Committee.
- The creation of electronic mailing lists,
for updates on the study
process, intercommunication between its participants,
and
discussion by the public.
- Several in-person meetings sponsored by the
Study
Committee, in a geographically-diverse set of locations, to
conduct
public outreach and solicit input.
- A substantial workshop, sponsored by the Study
Committee,
about the study of the At Large directors, to take place in
conjunction
with the ICANN Meeting in Melbourne.
- Development of suggested timelines for the
conduct of
independent studies.
- A substantially open drafting process, with
full justification of
any conclusions reached in the Committee’s final report
to the
Board.
In addition, the Board should explicitly charge the Study
Committee
with on- and off-line outreach, coordination, and
education, and should expect
vigorous activity from the
Committee.
2. ICANN SHOULD GUARANTEE ADEQUATE RESOURCES
TO
THE STUDY COMMITTEE.
Since the Study Committee will play a critical role
in securing the
public’s long-term voice in ICANN, the Board should fully support
the Committee’s work. It cannot reasonably do so without
assuming responsibility
for funding the Committee’s activity.
ICANN resources should be used to provide
at least a
substantial part of the Study Committee’s operating expenses,
and
the Board should direct staff to explore additional funding
sources.
Should
ICANN fail to make funding a top priority, the Internet
community may perceive
a lack of commitment to the study effort
and could prevent meaningful consensus
from ever being
reached. Further, a lack of funding will likely cripple the
Committee’s
ability to perform effectively the necessary
co-ordination tasks outlined above.
3.
THE STUDY COMMITTEE SHOULD PROVIDE ELECTION
DATA SWIFTLY, WIDELY, AND IN A MANNER
CONSISTENT
WITH PERSONAL PRIVACY.
The Study Committee should, consistent with
ICANN’s
commitment to personal privacy of its members, take
responsibility
for public provision of all data regarding the
At-Large Membership’s registration
and voting processes. In
doing so, the Study Committee should consider available
methods of protecting individual privacy, such as withholding
election data
that is personally identifiable and not critical to the
study effort (such as
name and address), or transforming
election data that is personally identifiable
but critical to studying
the election (such as IP address and member ID number),
so
that personal identities are not disclosed.
4. IN ITS CONSIDERATION OF THE
BOARD'S STRUCTURE,
THE STUDY COMMITTEE SHOULD EXPLORE THE LARGER
CONTEXT
OF DECISION MAKING WITHIN ICANN.
The ICANN Bylaws call for the Study Committee
to consider both
whether there should continue to be At Large directors and,
if so,
how many. We believe that these questions about the Board’s
structure
can be addressed only in the larger context of
considering the number of Directors
from all of ICANN’s
constituencies.
Recommendations from the Study Committee
about the
structure of the Board structure could well lack legitimacy unless
the overall questions of the Board’s composition are fairly
included within
the study. Accordingly, if questions about the
existence and number of At Large
directors are to be put into the
study agenda, we urge the Board to properly
shape the mission
of the Study Committee by providing it with a sufficiently
broad
mandate to study the overall composition of the Board as a
whole.
CDT,
Common Cause and PCMLP appreciate this opportunity to
comment on the implementation
of the At-Large study process.
We look forward to working with the Board to establish
a
legitimate and effective study process.