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Public legitimacy: ICANN at the crossroads

Stefaan G. Verhulst
5 September 2001

This coming weekend, 7-8 September 2001, may witness a decisive moment: whether governing the internet will involve and retain a clear direct democratic element, or whether attempts to ensure this will be eroded away. The debate will take place at the ICANN Board Meeting in Montevideo, Uruguay.

ICANN is The Internet Corporation for Assigned Numbers and Names. It is tasked with managing aspects of the internet’s naming system and other critical technical functions. It is also an attempt to create a new mode of coordination or “governance” outside the traditional framework of international organisations and national governments.

As the internet becomes more widespread, pervasive and mature, policymakers worldwide are recognising the need for new modes of governance and coordination to address the global challenges posed by internet technology. Some nation-states are deferring to coordinating or policymaking organisations of a non-traditional or global character, either for guidance in harmonising national law-making or for the actual creation of binding policy. These entities are making decisions that once would have been made by nation-states through traditional legislation and administrative rule-making.

This shift in the locus of decision-making represents an important development and challenge for governance and social coordination elsewhere as well. It may eventually fulfil the promise to enable efficient, stable and international policymaking to support a rapidly growing industry. But it will not do so legitimately without adequate mechanisms for protecting the public interest on a global level.

Making ICANN legitimate

Yet the legitimacy of ICANN’s structure and policies has been questioned by various players in the internet community. The central plank of this criticism is that ICANN’s organisational structures and activities do not comply with the ethos of participatory and democratic governance. This need for new global governance structures on the one hand and the inclusion of the public voice on the other underpins the debate around ICANN’s At-Large Membership, outlined by Esther Dyson in her interview with openDemocracy, and continued in the questions put to her and her subsequent reply.

A weak attempt to enhance public representation was made last October when five of the 19 ICANN board posts were selected by global election to represent the At-Large Membership. Following this election, an official At-Large Study Committee (ALSC) was created to review the election and propose solutions to public participation within ICANN. Simultaneously, we at the Markle Foundation initiated the NGO and Academic ICANN Study (NAIS) to provide an independent process considering the range of options ICANN faces as it moves forward. These ranged from direct elections to reforming the current structure of supporting organisations.

Both the ALSC and NAIS efforts have now released their reports in the run-up to the Montevideo meeting. Both suggest ways to re-structure ICANN. Their recommendations differ substantially on how to achieve public representation and participation.

The NGO and academic group, in which I participated, recommends that the public interest can best be served through the creation of an inclusive public membership for ICANN, resting on two overarching principles:

  1. The public should be given a structure for participation in the ICANN decision-making process.

  2. The public membership should have the right to elect a significant number of the members of the ICANN Board.

The report calls on ICANN to commit itself to including the public in its internal governance in three major ways:

  1. ICANN should maintain a broad, open At-Large Membership, accessible to any internet user with an interest in ICANN’s activities.

  2. The At-Large Membership must be provided with strong participatory mechanisms to enable Members to have a meaningful role in the dialogue and debate that are part of the ICANN policy process.

  3. The Membership must also be strongly represented on the Board by having the right to directly elect a number of At-Large Directors equal to the aggregate number of Directors selected by the Supporting Organisations.

In our view, these three elements will substantially legitimise ICANN’s operations.

A moment of decision

In contrast, ICANN’s At-Large Study Committee takes a far more restricted view on who should participate and how they should be represented. Its draft report recommends a direct elections system with voting rights based on domain names (as opposed to everyone having an individual interest). It proposes the creation of a system in which those domain name holders wishing to be part of the process also become part of the process of setting up an At-Large Supporting Organisation. Finally, it recommends that the At-Large membership select only a third of ICANN’s Board – instead of the half currently mandated – so as to achieve “a balance among developers, providers and users”.

The two reports agree that ICANN can no longer be described as a technical standards setting body. Both conclude that it does make policy decisions. As such, both reports acknowledge the need for ICANN to provide for adequate representation of the public interest, if it is to be a legitimate entity that deserves compliance with its decisions, and has the standing and authority to substitute for governmental decision-making.

An open review of the virtues and weaknesses of both reports is sure to dominate the agenda at Montevideo. In anticipation of this, Zoe Baird, President of the Markle Foundation, has proposed three criteria on how to evaluate both efforts. They deserve to be widely reproduced.

They are:

  1. Does the proposal reduce or enhance the representation of internet users at large on the ICANN board?

  2. Does the proposal provide for representation of the broad and sometimes conflicting public interests implicated in ICANN decisions, in addition to commercial interests?

  3. Does the proposal provide adequate transparency and participation for internet users in the daily processes of the organisation and make some effort to equalise resources available for participation, to avoid capture by commercial or regional interests?

Zoe Baird argues that any reduction in seats representing internet users would be troubling. The demographics of domain name holders must be examined if they are to select users’ representatives: available data indicates that 80 per cent of domain name holders are companies. Any reduction could also increase the under-representation of developing countries.

She also points out that commercial interests could lean against the fostering of competition to protect the public interest, and that full representation is needed to ensure appropriate resolutions of intellectual property disputes.

Both reports illustrate the fundamental need for the enhancement of public representation and participation if ICANN’s long-term survival is to be assured. The stakes are high. The ICANN board members should take public participation and representation seriously, and make sure that they implement what recommendations are approved without any further delay.

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