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Username: jpaul
Date/Time: Wed, December 27, 2000 at 1:47 AM GMT (Tue, December 26, 2000 at 8:47 PM EST)
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Subject: The At-Large Counterweight

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        I, too, find the comments provided by the icann-europe list participants summarize many of my views on the staff recommendations for the At-Large study.  In particular, the staff's proposal to revisit the need for At-Large directors on the Board should simply be removed from the scope of the study.  In the U.S. Government's policy statement (the "White Paper") which set the foundation for ICANN, it was clear that Internet users were to be afforded equal opportunities to contribute to the decision-making activities of the Board.  This action speaks much louder than the staff's words on the need for an At-Large constituency.

The At-Large constituency has suffered to date from the laggard effort to organize, which has limited its ability to offer informed consensus on issues like the Uniform Dispute Resolution Policy (UDRP).  The staff's recommendations for a "clean sheet" study, and that said study should ask whether there should be any At-Large directors at all, skate close to stating that the Board wishes to disenfranchise At-Large members just at the point where this particular constituency is beginning to coalesce.  That, I believe, is a direction the Board should not go.  If the question of At-Large Directors is to be raised, then the comments of the Center for Democracy and Technology/Common Cause/Program in Comparative Media Law and Policy are particularly relevant.  Decisions about the number of At-Large Directors cannot be made in isolation from the total composition of the Board, as the bylaws of ICANN were structured to produce a balance between the Supporting Organizations (intended to aggregate the business constituencies) and the At-Large constituency (the mechanism for consensus-building for the rest of us).

The study should focus on organizing the constituency and the role we At-Large members are expected to play in ICANN.  This is not the first time this type of question has arisen.  The American Congress (with which I am most familiar) grounds the House of Representatives in the interests of individual citizens and the Senate in the states.  However, if we assume that ICANN is (or "should be" or "desires to be"; I leave the choice to each particular reader's particular view of ICANN) limited to the "technical administration" of the DNS system and IP addressing, I find myself drawn more to the United Kingdom's structure for Parliament.  I would draw the parallels thusly:

a) the Supporting Organizations would be equivalent to the House of Commons.  If ICANN is managing the technical issues related to DNS, IP numbers and the relevant protocols, then there is some sense in vesting the Supporting Organizations with authority in areas relevant to their particular competencies.  I would expect the Board to give great weight to their technical recommendations when such issues arise;

b) that leaves, therefore, the At-Large constituency to play the role of the House of Lords.  It should review the proposals of the Board and the Supporting Organizations from the broader perspective provided by the consensus of globally-distributed ordinary users.  I would argue that the Board should not be empowered to accept any recommendation that has not proceeded through the consensus-building process of this organization.  Like the House of Lords, however, this power of review (some will argue "delay") will be limited in some fashion.  At some point, the Board will have to make a decision.

I believe it will fall to the At-Large constituency to defend values such as free speech, privacy and the "fair use" of materials in the context of domain name assignment and protocol development (as noted by Professor Lawrence Lessig, we can hide a lot of cultural values in protocols).  Individual users are subject to the rules of the UDRP, but it is safe to say that said users were probably not as focused on the process of developing that policy as the more-focused and better-organized Supporting Organizations.  To borrow from James Madison and George Orwell, at the moment "all factions are equal, but some are more equal than others."

Ideally, all users of the Internet should know that they have a membership in the At-Large constituency of ICANN, and all should eagerly participate.  The Board would then be relieved from having to organize the constituency.  The study could examine the possibility of encouraging ISPs to add a step in their sign-up process that explains the role of ICANN and offers the user the opportunity to join the At-Large constituency.  Even if the user decides not to do so, he or she is made aware of ICANN from the start.  Some means for allowing existing members to interact with each other should also be provided.  The At-Large web page currently maintained by ICANN should be a primary means of building the necessary community of At-Large members.  Significant attention to communications between At-Large Members, the constituency and the Directors that serve in their names and with ICANN is merited in the study.