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.
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
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."
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.