Message from Marilyn Cade (Commercial and Business Users Constituency) to Vint Cerf
Date: Mon, 24 Feb 2003
From: Neuman, Jeff
To: Vint Cerf, Alejandro Pisanty, Louis Touton, Stuart Lynn
CC: GNSO Council, Joe Sims
Dear Vint and other members of the ICANN Board,
This letter is in response to a letter you have received from the Commercial and Business Users Constituency of ICANN (http://www.icann.org/correspondence/cade-to-cerf-24feb03.htm), stating that it was their understanding that the "equalized voting" provided for in the new ICANN Bylaws did not apply to the selection of the two directors to be chosen from the GNSO and hinting that had they known of the recent interpretation of the Bylaws from the General Counsel, they may not have supported the weighted voting. In addition, they argue that ICANN should revert to its old and inefficient method of voting, "one constituency one vote", for these directors, because elections do not occur frequently. These arguments are without merit and fly in the face of what ICANN's Reform effort is all about.
From the very beginning of the ICANN Reform effort, the gTLD Registries and gTLD Registrars acknowledged that true reform was needed both of the ICANN Policy Process as well as the process of selecting ICANN Board Directors. As the ICANN Board properly realized, not all stakeholders are equally affected by the policies recommended and passed by the ICANN Board of Directors. Not only are the gTLD registrars and registries responsible for most of the funding that ICANN receives, but they, unlike any other stakeholders, are contractually bound to comply with any ICANN consensus policies. New or changed policies can have significant financial, business and operational impacts on their operations. Although the reformed ICANN facilitates bottoms-up decision making, the reality is that there will be times when the ICANN Board Directors will be called up on to make policy decisions in which there may be disagreement among the contracted and non-contracted parties.
It would be inconsistent, to say the least, to have an equalized voting structure that recognizes the need, as you have, for weighted voting in the policy process, but not in the selection of ICANN Board Directors within the GNSO, who may be called upon to make such decisions. For if the GNSO voted for its ICANN Board Directors, as the Business Constituency argues, "one constituency, one vote", one can easily see that such a vote would be susceptible to capture by those that are not under contract with ICANN. After all, there are currently four non-contracting constituencies and that number will surely increase over the next couple of years (adding a small business constituency, an academics constituency, an individuals constituency, etc. as was hinted at during the reform process) as compared with two contracting parties.
The gTLD Registries would like to ensure that the ICANN Board Directors selected from the GNSO are truly representative of the GNSO community, which not only consists of user constituencies, but also contracting parties. There are many issues which uniquely affect the contracting parties, and it is not unreasonable to expect that such views, and persons representing those views, reflect such a diverse composition. The gTLD Registry Constituency believes that this process will only work if the safeguards proposed by the ERC and adopted by the ICANN Board in Shanghai are maintained. The proposal by the Commercial and Business Users Constituency will polarize the very constituents who are attempting to work cooperatively in the reformed ICANN.
We believe that the General Counsel's interpretation of the Bylaws with respect to weighted voting is the only way to interpret how the GNSO is to select its two ICANN Board of Directors. Without such a structure, we believe that it would be impossible to achieve "the broadest possible support of the GNSO."
Jeffrey J. Neuman
Chair, gTLD Registries Constituency
** The following Registries have expressed their support with the above statement: VeriSign, Inc., Afilias, Ltd., NeuLevel, Inc. and RegistryPro, Inc. In the interests of getting this statement to the ICANN Board before your discussion of the Bylaw corrections, we are submitting this statement despite the fact that the other registries were unable to provide their express support to this statement by the time of submission. However, we believe that the above statement is consistent with previous formal statements of the gTLD Constituency as a whole and that it therefore, represents the views of the constituency.