Membership Advisory Committee's "Commentary on the Principles
of the At-large Membership"
Exhibit C to May 27 Meeting Minutes
"Berlin" and * refer to action taken in Berlin on 25 May 1999.
See also Proposals for Outreach
"Report" refers to the Singapore Report of the ICANN Membership Advisory Committee
"White Paper" refers to the document "Management of Internet Names and Addresses" of the US Department of Commerce
"Bylaws" refers to the ICANN Bylaws
"Articles" refers to the ICANN Articles of Incorporation
1. At-large membership should primarily represent those individuals and organizations that are not represented by the Supporting Organizations (SOs). The goals of the at-large membership are as follows:
(a) to include any Internet user with access and verifiable identity in order to reflect the global diversity of users (membership should not be limited to IP address or domain name holders),
(b) to elect Directors to the ICANN Board by procedures that are valid and authentic,
(c) to ensure that ICANN’s corporate structure operates for the benefit of the Internet community as a whole, is not captured, and continues to provide fair and proportional representation of the entire user community,
(d) to provide input from the user community to the ICANN Directors and
(e) to do so in a cost-efficient manner.
*The rights of the at-large membership shall be to elect the at-large directors and to approve changes in the ICANN Articles of Incorporation. Members should not have the right to unilaterally change the bylaws in disregard of the SOs, and the right to bring shareholder derivative suits should be limited.
Most of the goals of the at-large membership are based on the standards of open participation established in the White Paper (see Governance and Structure). The Supporting Organizations will represent the special and technical interests while the at-large membership will provide a voice for the rest of the Internet user population. Limiting membership to IP address or domain holders would unreasonably ignore the interests of the majority of the users of the Internet who make significant financial payments for their access. An open, bottom-up decision-making structure, however, must be balanced by reasonable steps to assure that the membership is authentic and representational. See 3.0 of the Report.
Berlin: The MAC considered some of the risks to ICANN that would result from a large membership with few entry barriers. The Committee reaffirmed that the powers of the At-large Members are to elect at-large directors and to approve changes to articles of incorporation. Other rights were reconsidered.
If California law specifies rights and duties of members of a corporation that differ from ICANN bylaws regarding the rights of members, reconciliation may be needed. Could ICANN have "members" under its bylaws without necessitating their being formal members as defined by the California code? The MAC had some concerns about this, even if it were done simply to implement desired structures.
Some of the issues were:
1. Ability of members to bring derivative suits. This right is provided by California Code, but it is a right that can be abused to the point of crippling ICANN's ability to function. Given alternative (and more accessible) review and reconsideration processes built-in to the ICANN structure, rough consensus that members should not have right to bring derivative actions, which could be abused.
2. Right to change the by-laws. Members should not have the right to unilaterally change the bylaws in disregard of the SOs.
*2. At-large membership shall be open only to individual persons. Individuals who are members of the SOs or their constituencies are welcome to join the at-large membership. The most feasible protection against capture by interests that are not representative of the the user community at large is to enroll as many Members as possible.
Berlin: After reconsideration, the rough consensus of the MAC (over strong objection) is that only individuals should be eligible to be at-large members. This is a reversal from the Singapore consensus. Many organizations will be accommodated through the emerging SO structures. Small and mid-sized organizations may participate through their individual owners and employees. Because it is important to have organizational support for ICANN, this policy should be revisited periodically by the Board.
There are many good reasons to restrict voting rights to individuals (simplicity being an important one), however it is important to recognize that an organization is a legal entity also and has interests that are different from those of any individual who may be a part of that organization. The active involvement and support of organizational users is crucial to the stability of the Internet consequently, and a right to vote is an incentive for such participation. To reduce spoofing and fraud, however, organizations must present evidence of their legal validity.
Because the goal of the at-large membership is to represent interests that are not already expressed by the SOs, the organizations that elect or otherwise select SO Directors may not join the at-large. However, any individuals who are members of such organizations also have personal interests that are different from those of their organization, and different from their official role within such organizations, therefore individuals are welcome in the at-large regardless of their role in the SOs. If the at-large membership population is small, then this duplication of special, technical or commercial interests could conflict with the goal of broad representation, therefore ICANN should take aggressive action to enroll as many individual users as possible. See 2.3 and 5.2 of the Report.
3. It is not recommended that membership fees be assessed at this time. If membership fees should be assessed in the future, they shall reflect the economic differences of the various geographic regions.
The need for membership fees is dependent on many factors such as the size of the actual at-large enrollment and ICANN’s other sources of revenue. Cost recovery and financial stability are legitimate goals. Many interested parties, however, are already paying fees for addresses and domain registration and they question the need to pay an additional amount in order to voice their concerns. Developing nations find such additional costs unduly burdensome, particularly since the amount of actual use in such locations is often quite limited by other access factors. Any scaling of fees must balance this with the costs of administering the membership and the elections. Fees may reduce the number of fraudulent registrations but only among populations where the fee assessed is meaningful. Voluntary donations and other private support is welcome but should not threaten the independence of the organization. See 3.2 of the Report.
Berlin: The question of fees was revisited in Berlin in light of public comments received after Singapore. Concern was expressed that low entrance barriers would result in a large enrollment of people who were not actively interested but enrolled only because it was easy to do so. This could bring a halt to at-large elections if these disinterested members failed to participate in sufficient numbers to meet minimum quorum requirements. It would also waste expensive services. On the other hand, because fees are a barrier to wide participation, scaling fees is not cost-effective due to administration and currency conversion costs, fees are not universally acknowledged as a valid measurement of interest and because fees only prevent capture by the less wealthy, the MAC's rough consensus remains opposed to the imposition of fees at this time. It was suggested that member rolls could be culled for non-voters after each election and an absolute number as a quorum requirement should be investigated.
4. Online membership registration procedures should be favored, however reasonable efforts should be made to authenticate the identity of applicants. The suggested procedure for registration is as follows: an online form is filled out by the applicant who may thereafter be required to supply physical proof of existence. ICANN will respond by postal mail sending the applicant a membership identification code to use for voting and other transactions. An applicant shall provide the following data in the application:
physical mail address
e-mail contact (preferably an individual account)
an organization shall also provide the name of its voting representative, that representative's e-mail address, and evidence of legal identity
This procedure has worked reasonably efficiently for several other organizations and it is hoped that it will do so for the at-large membership as long as ICANN takes reasonable measures to authenticate the identity of applicants and to delete abusers (see Section 5 below). Additional safeguards may be imposed if fraudulent registrations are excessive. See 7.1 of the Report.
5. Membership shall expire 30 days afer the annual election of Directors and must be renewed annually. Unless otherwise specified, renewal will generally be effective upon electronic confirmation by the member of the accuracy of existing registration data. Members shall be required to notify ICANN of any changes of address (e-mail and postal) during the term of membership. Failure to do so may result in deletion from the membership list or ineligibility to vote.
Annual renewal will avoid clogging the membership rolls with abandoned memberships that would result in wasted resources and inflate quorum requirements to levels that might prevent the membership from conducting business. Renewal should not be unduly burdensome, however. It shall be the Member's responsibility to keep ICANN apprised of changes in address so that voting materials will be delivered appropriately. The ability to delete fraudulent membership registrations is critical to a fairly representation of the membership. See 4.0 and 7.1.4 of the Report.
6. From time to time, ICANN shall sample the membership applications in order to determine whether the goals of membership are being met and whether fraudulent registrations exist in sufficient number as to call into question the ability of the membership to meet the goals of Section 1 above. ICANN may take reasonable steps to assure that these goals are met. Members who submit fraudulent or inaccurate data shall be deleted from the membership list. Multiple applications from the same organization or individual shall be deleted from the list.
*ICANN should collect and publish current membership demographics so that everyone can sense how the membership is constituted.
The first at-large Directors seated by the membership should be elected on a staggered basis.
Fraudulent membership registrations are unacceptable. On the other hand, the ability to detect fraud on a global basis can be a complicated and expensive undertaking. Because different kinds of fraud may require different remedies (e.g., a false membership application is different from fraud committed by candidates for election) ICANN should have additional ability and flexibility to tailor the response to the specific problem. Particularly in the initial membership enrollment period, ICANN should be monitoring the membership applications in order to detect and take steps to correct all possible irregularities including, for example, spoofed applications an under-enrollment in particular regions. See 4.0 and 7.2 of the Report.
Berlin: The MAC considered establishing criteria by which to determine whether the membership was sufficiently representative of all interests for the first election to be held. The idea is to ensure a minimally representative and diverse membership and test the assumptions with reality before a vote is exercised. The following possible objective criteria were considered.
a. The idea of "critical mass" was discussed. Should the membership have reached a minimum size to be considered validly representative? 5,000 ws suggested as the necessary minimum size of total membership and 500 was suggested for regional minimums. Although these numbers were considered realistic and obtainable, the MAC was divided on the propriety of requiring any minimums at all. There was concern that elections might be unduly delayed and/or that meeting such quota might result in padding of the membership with mechanical registrations. Suggestions were made that the Board set targets (rather than firm rules) and that specific outreach activities (such as recruitment meetings sponsored by ICANN in each region) could be completed before the elections.
b. Electing the at-large directors in stages on a relatively aggressive timetable is recommended by the MAC on a rough consensus basis. This will permit improvement of outreach and election mechanisms, many of which will be tested for the first time. It will also reflect the continuity and staggered terms established in the ICANN bylaws. The MAC was divided in its preference for electing directors three-at-a-time or electing them in two stages of five and four each. Those who favored a single election were concerned about losing membership interest over so many elections, the duplication of costs and the need to have a validly elected Board making policy decisions as soon as possible.
7. If desired, ICANN may appoint a committee (a) to assist in soliciting candidates in regions where there are few candidates or (b) to oversee election details such as fulfillment of candidate criteria, however it shall not be a function of such committee to filter, screen or otherwise evaluate candidates on any grounds other than for failure to supply the required campaign documentation of Section 12below, in a true, accurate and timely fashion.
*Having completed its task with its report to ICANN in Berlin, the MAC recommends that the current members be dismissed. MAC also suggests that the Board convene a new committee to assist in ongoing AL membership issues such as outreach, recruitment, authentication, and election procedures. In addition, the Board should consider establishing a permanent Membership Secretariat to develop and provide continuing services to the At-large members.
8. Privacy concerns should be foremost in the collection, safeguarding and use of a Member's data. Except as may be required by applicable law, no Director, officer or Member of ICANN shall be permitted to use such personal data for commercial or other private purpose nor shall any Member's individual vote be made public.
Regional protections for personal data vary considerably, however, shareholders of corporations may be entitled under law to use certain personal information about other shareholders. ICANN should restrict use of personal data to the minimum use required by law. See 6.4 of the Report.
Berlin: Public comment after Singapore suggested that publishing a record of each member's vote would be the best method for assuring that elections were authentically administered. Without disputing that point, it remained the unanimous vote of the MAC that the protection of privacy was essential to the success of the membership. It was recommended that the Board investigate other methods to ensure fair and credible election results, such as having election review officials or independent audits.
9. At-large voting shall be on the principle of one-person-one-vote. An organization shall be limited to casting one vote on behalf of the entire organization. Individuals who vote for SO Directors in their capacity as representatives of SO-member organizations shall also have a right to vote for at-large Directors in a personal capacity if they also register as individual at-large Members.
Both individuals and organizations shall be treated equally. No organization shall receive additional votes due to its size because any of its employees are free to enroll as individual members. The person who is the official voting representative of a member organization shall, however, have the right to register and vote as an individual member as well. See 2.3 and 5.2 of the Report.
*10. The at-large membership shall consist of five regional voting pools based on residence. A Member may not vote in any election that occurs less than one month after the Member has been registered.
Berlin: The MAC has changed its consensus on voting classes since Singapore to one that supports voting pools whereby residents of each of the five regions will be able to exclusively select their own representatives. The committee was divided over the following two proposals:
1) One global voting pool. All members vote for all open seats. This is simple and straightforward. There is only one "class" of Board member; candidates must campaign globally. Regional representation requirements would still ensure a diverse Board. Geography does not and should not define common interests.
2) One global voting pool that selects four seats (which retains many of the benefits of 1) above) plus five regional voting pools (one per region) that elect regional candidates. Idea is to ensure regional representation by having some candidates elected solely by their respective regions. This prevents the voters from one populous region from outvoting smaller native populations in other regions.
Singapore: Classes are generally inflexible because once they are established it becomes difficult to alter them to reflect changes in the character of the membership. The Internet user population is changing too rapidly for such rigid structures. Any possible benefit to the public interest that might arise from giving organizations special voting status is counteracted by the voting complexity that would result from trying to meet both class distinctions as well as regional representation requirements. Organizations should be treated on an equal basis with individuals in terms of electoral power. In order to prevent capture of an election by massive enlistment of "phantom" applicants, Members must enroll sufficiently in advance of an election so that there is time to authenticate the voter.
One concern has been expressed by developing nations that do not have many online users as yet. They point out that the more populous nations have enough voting power to select the person they favor as the representative of another region. One solution to this problem would be to divide the at-large into regional voting classes, however it was not recommended because it would entail the burdensome task of authenticating the citizenship of all Members. See 4.0, 5.2 and 5.3 of the Report.
11. Any individual who is a Member may stand for election as an at-large Director. In the event that the number of candidates is so large as to discourage careful consideration by voters, then ICANN shall have the option of requiring all candidates to provide evidence of a reasonable amount of support from other Members for their candidacy. ICANN shall take efforts, to the extent permitted by applicable law, to encourage participation of candidates from regions where there may be a shortage of such volunteers.
Only a Member may run for election as at-large Director, however any Member who meets the criteria, and is not otherwise disqualified by other bylaws, may do so. Article V, Section 9(c) of the Bylaws lists the interests that should be able to nominate candidates and self nomination allows all of them to participate. If the size of the membership is substantial, it is possible that the number of candidates may be so large as to discourage voters from careful and thorough consideration of all the candidates. In that case, ICANN may have the option of setting an additional requirement in the form of a show of support by a number of other Members. Care should be taken in selecting the number of supporters that may be required so that candidates from regions that have fewer Members are not unfairly disadvantaged. Should a region be unable to supply a candidate, ICANN should take a role in reducing barriers to that participation (within the limits of law which prohibits providing support for individual candidates). See 6.1 and 6.3 of the Report.
Berlin: In light of public comment after Singapore suggesting that membership not be a pre-requisite for candidates, the Committee reviewed the issue and reconfirmed it's original position. Given that membership has a very low barrier to entry, it is not an unreasonable requirement.
12. Candidates for ICANN at-large Director shall provide the following documents prior to the final date for submitting nominations:
proof of identity
proof of citizenship (necessary to determine regional representation)
proof of membership
proof of adulthood as defined in the nation of the candidate's citizenship
agreement to be online and accessible to the membership via the Internet with sufficient frequency to fulfill the responsibilities of office
agreement to provide adequate personal time to fulfill the responsibilities of office
agreement to provide for translations to and from the candidate's language into English as necessary to fulfill the responsibilities of office (although it is hoped ICANN will provide translation of all its materials as soon as that becomes economically practicable)
biographical information not exceeding 250 words
statement of positions on issues not exceeding 250 words
statement identifying sources of income, financial interests and other possible conflicts of interest
In order to assure authentic and committed candidates, nominees should meet a number of objective criteria. Subjective criteria, however are not recommended. In general, it is believed that for a volunteer organization to function effectively, it is reasonable to require candidates to make a strong commitment to fulfill their responsibilities. See 6.2 of the Report.
13. ICANN shall post the list of candidates and the data in items numbered 8 - 10 in Section 12 on its web site no later than 30 days prior to the election. ICANN may elect to provide online discussion fora or other formats for purposes of the campaign debate.
See 6.4 of the Report. The ability to discuss candidate qualifications and election issues is critical to detecting candidate fraud and in making the electorate more confident of its choices.
14. Election fraud shall consist of at least the following: providing false or inaccurate information concerning the candidate's obligations, offering financial or other value in exchange for voting in a specified manner, or requiring a Member to vote in a particular manner as an obligation of employment or office. Any Member who participates in election fraud shall be deleted from the membership registration.
In order to have valid, authentic and representative elections, member registration and voting fraud must be prevented. See 3.1.2 of the Report.
15. Voting shall be conducted using Internet-based methods to the greatest extent possible consistent with authentication requirements and applicable law. ICANN will work to design a method of cumulative voting by electronic methods that satisfies the requirements of applicable law and enhances the likelihood of achieving quorums. If proxies are used, they shall be limited to specific proxies which authorize and direct an officer of ICANN to vote exactly as specified in the proxy document.
It is hoped that the use of online voting mechanisms will permit quick, easy and cost-efficient voting procedures for a world-wide constituency. Further, the MAC recommends use of a cumulative or preferential type of procedure if possible. However, there are still some details of applicable law, such as the requirements for written signatures for example, which need further study before determining the which method to use. Because it appears that proxies may be exercised by electronic means, their use may be a necessary element in any online voting procedure. To avoid capture, any proxies used shall be specific proxies which allow a Member to give precise directions as to which candidate(s) should receive his votes. See 7.0 of the Report.
16. Article V Section 6 of the ICANN Bylaws should be amended so that the SOs and the At-large may select their representatives without regard to the election results of any of the other of them. The following principles are recommended:
a) unless authorized in advance by the Board of Directors, no two Directors from the same SO may be from the same region, and
b) the at-large Directors must include at least one from each region and may have no more than 4 from the same region, and
c) as a consequence of establishing independent regional requirements for each component of ICANN, the cap on the aggregate total of all Board Directors from one nation should be eliminated.
The present ICANN bylaw requires the at-large membership to meet regional representation requirements after the SOs have selected their representatives. Since SOs may hold elections at different times, and since Directors may sometimes be replaced before the end of a term, it becomes very difficult for the at-large membership to know which of their own candidates will actually be eligible to serve. The MAC recommends that regional requirements be maintained, but that each of the ICANN components should meet them independently, so no one part need await the results of the other's elections. See 5.3 of the Report.
17. All general meetings of the at-large membership shall be open to the public and minutes thereof shall be kept and promptly posted on the ICANN web site.
The White Paper (see provisions on Governance and on Operations) and Article 4 of the ICANN Articles call for open and transparent mechanisms. Meetings that are open to the media and to non-members will allow information to better reach those who are attempting to find their way online and those who are interested but ineligible for Membership (such as SO organizations and government bodies). Open meetings may also encourage wider dissemination of information through media that are less expensive for many users to access. See 2.1of the Report.
18. Until further notice, all official communications to and from ICANN concerning the at-large membership shall be in the English language.
The cost of translating official communications into the vast number of languages used by the global community would place an extraordinary financial burden on ICANN. While translations are highly desirable and to be encouraged, until such time as translation is affordable the language of communications shall be English.
See Question 58 in 6.0 of the Report.
Commentary last updated on 26 May 1999 by committee member Diane Cabell.