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[ga] Common Cause/CDT Letter to ICANN re: At-Large elections
Attached is a letter from Common Cause and the Center for Democracy and
Technology (CDT) regarding the steps ICANN has taken since the March 2000
meeting in Cairo toward holding the first At-Large elections. The letter
comments on the appointment of the Nominating and Election Committees and
provides input on ICANN's proposed rules for "Self-Nomination."
This letter will also be available soon at: www.commoncause.org/icann.
Andy Draheim
Common Cause
June 5, 2000
Esther Dyson
Chairman
Internet Corporation for Assigned Names and Numbers
Suite 330
4676 Admiralty Way
Marina Del Ray, California 90292
Re: At-Large Board Elections
Dear Esther,
As you know, Common Cause and the Center for Democracy and
Technology have had an active interest in the creation and implementation of
self-governance procedures for ICANN. We are now writing to you to provide
some comments on how the election process is progressing since Cairo, some
suggestions for moving forward, and some specific ideas about the draft
rules for nominations.
Funded by the Markle Foundation, our two organizations have been engaged
with the ICANN community in seeking to ensure that important democratic
values of openness and inclusiveness are respected in the development of
innovative rules of self-governance for ICANN. The challenges that ICANN
faces in this arena are truly unprecedented, and we applaud your leadership
in ensuring that careful consideration in given to these important
questions.
In this letter we set forth some overriding concerns with several of the
broader framework steps already taken or contemplated by the ICANN staff and
board in structuring the election process to date, and discuss two
overriding principles that should inform the many decisions left to be made.
We also provide specific comments on the rules for self-nomination recently
proposed by the Nominating Committee.
Background
Our initial work in this area culminated with a report we presented to the
Board at the Cairo meeting, "ICANN's Global Elections: On the Internet, For
the Internet." In this report, we discussed ICANN's mission and the goals
for ICANN elections. We also enumerated a series of major concerns which
members of the ICANN community expressed to us about the preliminary plans
for structuring the election procedures. We assessed various options for
conducting the elections, and then set forth a series of recommended
principles.
These principles continue to have vitality in informing the ongoing work of
ICANN in developing election procedures, and so we wish to restate them
here:
1. ICANN should develop and promulgate as part of its by-laws, or in
some comparably binding fashion, language to delimit the scope of ICANN's
decision-making authority to technical management of the DNS and IP address
system.
2. The "electorate" for the At-large Board members should broadly
include individual Internet users.
3. The electorate should directly elect the At-Large board directors.
4. ICANN should develop a candidate nominating process that ensures
that qualified candidates will appear on the ballot.
5. ICANN should use some form of a proportional representation voting
scheme for its At-Large elections.
6. ICANN should place the goal of holding effective elections ahead of
the goal of completing them by September 2000.
7. ICANN should establish an election authority with a high degree of
independence from the Board of Directors and other institutional players.
8. ICANN should institutionalize periodic review of the At-Large
membership and elections process.
The Board and the ICANN community engaged in serious discussion of the
election procedures at the Cairo meeting. We were pleased to have had the
opportunity to present our report and our recommendations to the Board. We
appreciated the thoughtful consideration given to our views.
We also were pleased that the Board took several key steps in line with our
recommendations. Most notably, the Board voted at the Cairo meeting to
change the ICANN by-laws in order to provide for a direct election by ICANN
members of the At-Large board directors. This represented a welcome
departure from the then-existing plan to have members select an At-Large
Council, which would in turn select the At-Large board members.
The board at the Cairo meeting also adopted a modified schedule for the
election of the At-Large directors. The original approach had contemplated
nine At-Large directors to be selected this year. In light of the decision
to change the voting procedures to direct elections, the board decided to
select five seats this year, study the procedures used, and then make
modifications before electing the remaining four members. In the interim,
the terms of four initial At-Large directors would be extended. We believed
that this decision was a reasonable accommodation of the various interests
at issue.
We want to stress, however, that it is essential that the board abide by the
original plan to have nine board members elected "At Large." The decision
to bifurcate the election - and to proceed in stages with the election of
the first five seats now - should in no way be construed as license to
consider diminishing either the number of "At Large" board seats or the
number of seats elected by the ICANN membership as a whole.
Comments on ICANN's Election Process Since Cairo
Since the March meeting, the Board and the staff have taken several
important steps to implement the Cairo plan. In early May, the board
announced the formation of a Nominations Committee and an Elections
Committee. The former is charged with nominating a slate of candidates to
stand for election, as well as devising procedures for other candidates to
petition onto the ballot. The latter is charged with formulating specific
procedures to carry out the election, and with promulgating rules regarding
campaigning and the prevention of vote fraud, as well as the monitoring and
oversight of the election.
The Nominations Committee recently issued a call for recommendations and
expressions of interest for potential candidates to be officially nominated,
and the ICANN staff also published proposed procedures for candidates to
petition onto the ballot. Public comments on the latter are sought by June
5.
Our comments in this letter are informed not only by the eight general
principles contained in our Cairo report, but also by two additional
considerations which we believe are of overriding importance for evaluating
this phase of the elections work.
First, it is crucial that ICANN abide by principles of transparency in
establishing the rules of the election. ICANN has already been subject to
criticism on this account, and such criticism undermines the vitality of the
election rules, which in turn are crucial to fostering the legitimacy of
ICANN.
The recent criticism has stemmed from actions taken by ICANN in
establishing the Elections and Nominating Committees. These Committees were
formed by the board at non-public meetings, and then simply announced to the
ICANN community. There was no opportunity given for public input as to the
members of the Committees. Further, ICANN may have violated its own by-laws
that govern the public release of minutes of its non-public meetings.
Such actions seriously undermine ICANN's public credibility. It is
undoubtedly true that step-by-step consultation with the ICANN community
will slow the elections process, yet such consultation is crucial if that
process is to enjoy the confidence of the community. This problem is
exacerbated if ICANN violates its own by-laws in the process of evading
public consultation.
The ICANN community has much at stake in the composition of the
Elections and Nominations Committees. These bodies will have the major role
in not only setting the rules of the election, but also ensuring the
integrity of them. Rather than make the composition of the Committees a
fait accompli, it would have been much preferable to have either solicited
comment on what types of individuals should be asked to serve on the
committees, or to announce a proposed committee membership and taken comment
on whether all appropriate viewpoints were represented. As it is, a crucial
step in the election process was taken in secret and wholly without the
participation of the ICANN community. Again, the importance of this lies in
the missed opportunity for fostering public confidence in the election
process to follow.
Much the same can be said about the decision - already apparently
made - that the five seats at issue will be filled by geographic region,
with members of a region voting for a representative from that region. This
is a fundamental rule of how the election will be conducted; indeed, it
defines the basic structure of the election. Yet so far as we are aware,
this rule was set without prior notice to the public, without the
solicitation or consideration of public comment - indeed, without even so
much as a public explanation of why the board adopted this rule. We are not
here saying the rule is unreasonable; simply that it is unexplained. Again,
this violates what we believe should be a basic tenet of how ICANN should
conduct the election process.
Second, it is vital that the underlying goal of this election - to
provide representation to the Internet user community "at large" - be kept
foremost in mind when setting the election procedures. The goal of this
election is to elect board members who will represent the Internet user
community "at large." Other key constituency groups already have
representation on the ICANN board through the "supporting organization"
seats. It is important that the structure and procedures for this election
be dedicated to ensuring that it achieves its goal of providing a voice to
the general Internet user community. This means, we believe, that the
constituency groups already represented on the board should not be allowed
to capture or unduly influence the procedures for this election in a way
that would threaten to degrade the ability of the general users of the
Internet to select - and to believe that they have had a fair opportunity to
select - board members who reflect primarily their interests and vision of
who should be a board member..
Again, we believe that key actions already taken by the board do not well
serve this goal. The Nominations Committee, for example, is composed of a
majority of current board members. As we have noted, the committees
established to conduct the election should have "a high degree of
independence from the Board of Directors and other institutional players."
We are concerned that this goal is not being met. The Nomination Committee
is dominated by the board, draws its membership from the supporting
organizations, and contains no identifiable voice from within the dissenting
communities that have expressed so much concern about various elements of
ICANN's activities.
Much the same is true of the Elections Committee. While there are members
of the Committee who by virtue of their expertise or background are
unquestionably outstanding choices to serve on this Committee, we have a
concern that the majority of the Committee is drawn from a combination of
current board members and those who are identified with the constituencies
already represented on the board.
While this fact does not fatally compromise the integrity of the election
process, it certainly puts pressure on the specifics of the rules to be
established by these committees to ensure that the procedures are fair, open
and accessible. It means that ICANN must go even further to foster trust
and openness in the election rules. Given the closed nature of the initial
steps in the process, and given the composition of the committees that have
been established, every effort should be made to foster broad-based
participation in the election.
To that end, we commend ICANN and its Committees for the steps it has
already taken to increase openness and transparency, such as --
* setting forth the proposed criteria for candidate selection by the
Nominations Committee; and
* soliciting public suggestions for candidates.
Moving forward, we would encourage the Committee towards further openness by
--
* providing the community with the rationale behind its ultimate
choices for candidates; and
* proceeding with its work in a way that leaves sufficient time for
member-nominated candidates to operate on equal footing with other
candidates.
* A detailed set of comments on the proposed nomination rules has been
submitted to the ICANN public forum and is included below.
*
* Comments on the Proposed Rules for Nominations
*
* With our two overriding principles in mind, we wish to offer the
following specific comments in response to the proposed procedures for
nominations to the ballot:
*
* SELF-NOMINATION SHOULD BEGIN EARLIER IN ORDER TO CREATE A LEVEL
PLAYING FIELD FOR ALL CANDIDATES -- It is important that ICANN establish a
level playing field between candidates nominated by the Committee and those
nominated by petition. There should be no electoral "inside track" for
candidates put on the ballot by the Committee. In this light, we are
concerned that the schedule proposed contemplates that the official
nominations process will conclude by the end of July, and the
self-nomination process start only then. We see no reason why the
self-nominating process cannot begin earlier, while the official process is
underway.
*
* There is, to be sure, some value in the electorate knowing the
nominees selected by the Committee in order to decide whether to support a
petition candidate. But that value is outweighed by two competing
considerations.
*
* First, the proposed time period for self-nominations is very short,
and occurs during August, which is traditionally a time when many people are
on vacation and unavailable. The petition process would be more credible if
more time was provided for it.
*
* And second, the fact that the Committee nominees will be selected a
full month before the petition nominees creates at least the appearance that
the former will have an electoral advantage over the latter. Even if
"formal" campaigning does not start until after the petition process is
concluded, the identities and qualifications of the Committee nominees will
be circulating in the community well in advance of the successful petition
candidates. This lead time may provide an advantage to the officially
nominated candidates. Particularly because the rules for campaigning have
not yet been set, and the community thus does not know what kinds of
campaigning will take place, any possibility that the official nominees will
enjoy a "head start" over the petition nominees should be eliminated.
*
* Accordingly, we urge ICANN to allow the petition process to take
place concurrently with the Committee's nominating process.
*
* IN SELECTING NOMINEES, THE NOMINATIONS COMMITTEE SHOULD TAKE INTO
ACCOUNT THE SPECIAL ROLE OF THE AT-LARGE MEMBERSHIP. For the reasons stated
above, we strongly urge the Nominations Committee to select as nominees
individuals who not only have the interest and energy to fulfill the duties
of a board member, but also those who can best serve the role of At-Large
board members. As we have noted above, the other major defined Internet
constituency groups already have representation built into the structure of
the board through the supporting organizations. The point of these At-Large
seats is to represent the public, non-commercial user community. It is
imperative that this goal remains foremost in the mind of the Committee as
it selects its nominees.
*
* THE NOMINATIONS COMMITTEE SHOULD BE REQUIRED TO SELECT SEVERAL
CANDIDATES FOR EACH BOARD SEAT. The proposed rules do not specify how many
nominees the Committee intends to name for each seat. In principle, the
Committee could select more than one nominee for each seat, and we strongly
recommend that it do so. This would provide a greater opportunity for voter
choice. It is certainly possible, particularly given the high barrier to
entry set by the petition process, about which we comment below, that no
petition candidates will qualify to be added to the ballot. In such an
eventuality, there will be only one candidate on the ballot if the Committee
does not nominate more than one individual to each seat. This possibility,
which we believe is not unlikely, would result in a sham election, thereby
harming ICANN's quest for legitimate elections. Accordingly, and to avoid
this outcome, we recommend that the Committee seek at least three officially
nominated candidates for each seat.
*
* SELF-NOMINATION SHOULD BE MADE EASIER AND REQUIRE A LOWER THRESHOLD
OF SUPPORT. The proposed rules set a high barrier to entry onto the ballot.
The rules require a candidate to receive the support of 10 percent of the
members in his or her region in order to gain self-nomination for the
ballot, and those members must live in at least two countries.
*
* We seriously question whether the 10 percent threshold is too high.
Candidates seeking self-nomination will have no ability to contact ICANN
members and direct their attention to his or her qualifications. Thus, the
self-nomination process depends entirely on members of ICANN taking the
initiative of going to the official ICANN candidate site to review the
information posted about each potential candidate. Under the proposed
election schedule, the only relevant window of opportunity for this will be
a two-week period in the middle of August, which as we noted above, is a
time traditionally when many people are on vacation. We have a serious
concern whether there will be sufficient traffic to the candidate web pages
to engage enough members so that the 10 percent threshold is a realistic
goal for any candidate to reach.
*
* The countervailing concern, apparently, is that too many candidates
will qualify for the ballot, thereby jeopardizing the goal of "keeping the
ballot to a manageable size." We do not believe that this fear of providing
the possibility for robust voter choice justifies setting unreasonably high
petition requirements. It is not clear what is considered to be a ballot of
"manageable size," - 20 candidates? 10 candidates? 1 candidate? - or why
the electorate will not be able to manage a large ballot. (After all, given
that the election will be conducted on-line, there are very low transaction
costs for a ballot with multiple candidates.)
*
* If anything, we believe that the barriers to entry should be set low
for the initial election. We suggest that a petition candidate be required
to obtain no more than two percent of the membership in order to qualify for
the ballot. Because of the low membership in some regions, this two-
percent requirement should be qualified by a floor of at least 25 members on
the petition.
*
* Even these numbers may be difficult to reach, given the short time
window for potential candidates to demonstrate support, the time of the year
when this process will occur, and the fact that relatively few members may
find their way to the self-nomination web site.
*
* If these guidelines result in too many candidates gaining access to
the ballot, and this leads to problems with voter confusion or with the
"management" of the ballot, then the threshold can be raised for the future.
Any fixed number requirement - whether it is two percent or ten percent -
will be to some extent arbitrary. But particularly given the closed nature
of the Nominating Committee, and at least as an initial matter, the
Committee should err, if at all, on the side of a lower barrier to entry.
*
* MEMBERS SHOULD BE ABLE TO SUPPORT MORE THAN ONE CANDIDATE FOR
SELF-NOMINATION. Much the same is true of the Committee's curious proposed
rule that a member can support the petition only of a single candidate for
self-nomination. This exacerbates the proposed 10 percent threshold
requirement by making it even harder to appeal for support to the members.
But it also seems unreasonable on its face. A member might well believe
that two or more proposed candidates could make excellent board members, and
therefore would support putting both of their candidacies before the
electorate. Indeed, the process of debate during the campaign should, in
principle, provide a useful opportunity for the members to educate
themselves about a variety of candidates. It is perfectly rational for a
member to believe that more than one candidate is worthy of inclusion on the
ballot in order to participate in the dialogue of the campaign. For the
proposed rules to limit members to supporting only one potential
self-nominated candidate at this early stage is unnecessary, and works
against the openness and accessibility of the ballot that should be key
goals for the election process.
*
* ICANN MUST DO MORE TO ENSURE CANDIDATE ACCESS TO THE VOTING
MEMBERSHIP. We understand the reluctance to give proposed nominees the
addresses of the membership and the serious issues of privacy and potential
abuse that are raised.
On the other hand, it is essential for the fairness of the election
that candidates be able to communicate with the voters, and that the voters
be able to communicate with each other. To the extent that ICANN is the
exclusive conduit and filter for communications with and among the
membership, ICANN will face a great burden and will be subject to concerns
about openness.
Therefore, we urge ICANN to pursue further, better ideas for
communication regarding the election beyond those spelled out in the rules,
and perhaps including:
* Creation of an open mailing list of members available to all
candidates, possibly started using an opt-in for interested members.
* Creation and promotion of deliberative discussion spaces such as the
ICANN public forums for conversations with and among the membership.
* Regular mailings to members that include unfiltered statements by
all of the candidates.
At a minimum, we urge ICANN to send no less than weekly email to
members, describing the process underway and providing links to the web
pages of the candidates seeking support.
* We support the conflict-of-interest provisions that the Committee
proposes for self-nominated candidates. Voters are entitled to know
relevant information about the employment or ownership interests that
potential candidates may have. Such information is highly relevant to the
voters' choice, and should be provided as part of the nomination and
campaign process.
The work of both the Nominating Committee and the Elections Committee will
break new ground in formulating electoral policies for what will be the
first international, online elections. We do not underestimate the
difficulty these Committees, and the board as a whole, face in crafting such
rules. Yet the principles that should guide this work are the same ideals
that inform all democratic efforts at self-governance - transparency,
inclusiveness and fairness. Although the board has made a good start, more
can be done in service of these overriding goals. The legitimacy of these
elections, and hence the legitimacy of ICANN itself, will be enhanced if you
do so.
We look forward to working with you in the coming months as this process
moves forward.
Sincerely,
Jerry Berman Scott Harshbarger
Executive Director President
Center for Democracy Common Cause
and Technology
cc: Members of the ICANN Board
Andrew McLaughlin
Joe Sims
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