Replacing the ICANN Board Squatters

By A. Michael Froomkin
Professor, University of Miami School of Law
Nov. 9, 2000

Suppose the ICANN Board Squatters resign, then what?  It's a very fair question, especially as ICANN in its various public statements has misleadingly framed the question as a false choice between the Board Squatters and empty chairs.  The answer, I think, is to have elections as soon as reasonably possible after a short period in which voters are given a second chance to navigate the ICANN registration gauntlet.  Since even with the best will in the world that will take some time, in the interim we have no choice but to follow the procedures in the ICANN by-laws, and have the ICANN Board appoint four replacements.  Those replacements would serve only until replaced by elected Board Members.  Admittedly, there are some difficult questions about how the Board would select the temporary directors, but these are surmountable.  The best interim solution would be to have the five elected at-large directors propose four names for the full Board's approval.

My main point throughout this debate has been that the compromise that made ICANN possible was predicated on having half the Board represent the public, and that participants in ICANN have a moral duty to respect this deal.  As soon as ICANN secured the Department of Commerce's recognition, however, ICANN immediately set to work to undermine this commitment.  When this strategy produced howls of protest, ICANN agreed to hold an election, against its will, but limited it to five of the nine promised seats.

New Elections Quickly

The decent thing for ICANN to do is to make good on its original promise, and elect the next four at-large directors as quickly and as fairly as possible.  ICANN originally objected to having nine elected at-large directors because it feared, not utterly without reason, that the election might be 'captured' by a determined and organized religious, national, political, or ideological minority that would wreak havoc with ICANN.  The results of the first election, which produced a diverse crop of victors, suggest that in the short term at least this risk did not materialize.  As a result, and without any prejudice to the study ICANN is planning, it ought to be possible to find some quick fixes for  the grossest and most obvious problems with the first round of elections, and hold another round for the next four seats pending further reflection about how the ICANN electoral system should be organized.

Nobody I know thinks ICANN's first election was perfect, or even good enough to make one particularly comfortable.  There are far too many known problems, and an even larger number of things we don't know about the election, for anyone to say that.  We do know, for example that an extraordinarily large number of people who attempted to register, especially towards the end of the registration period, were not able to do so due to ICANN's computer problems.  (Rumors abound that the software in question was written by a well-known opponent of the process; whatever the facts, it is clear that the job of writing it was not put up for bids and that the software is not open source.)  It appears also that when ICANN became aware of the issue it did nothing.  We know, at least anecdotally, that some people who registered never received PIN numbers (I should say, however, that I got mine).  Using a metric that has not, so as I know, been revealed publicly, or even subjected to any outside review at all, ICANN rejected an extraordinarily large number of the registrations as potentially fraudulent or otherwise deficient.  Without more information it is impossible to know whether this represents over-vigillance, under-vigillance, or good sense.  We know also that there was a substantial additional drop-off between the number who got PINs and the number who voted.

Given the very limited state of our knowledge, I think that the registration process ought to be re-opened for a period before having new elections.  Even with that, there remain sufficient questions about the entire process that it is only fair to say that whatever is done in the short term should be without prejudice to thinking more carefully about what should be done in the long term.  ICANN is right that the sort of election it is trying to run poses genuinely difficult and novel problems, and there is no point in pretending otherwise, even if some of the problems experienced were of ICANN's own making.

One other problem will need to be resolved: there are five regions but only four open seats.  Given all the international political implications and the depth of feeling on the issue, redrawing the constituencies is not, I think, a practical option in the time available.  My own preference for resolving this issue -- again, as a temporary matter, without prejudice to finding a better long-term solution -- would be to hold the election in all five regions, but agree not to seat the director whose geographic region casts the smallest number of ballots.  Alternately, once the registrations are closed, the two regions with the smallest number of registered voters could be amalgamated for this one election.

In the Interim

New elections using the existing, deficient, voter roll could presumably be held fairly quickly, but I have argued above that greater fairness would be achieved by re-opening the registration process.  Even if registration is only open for a few weeks that, plus the process of sending out PINs, plus the election itself, will take time, as much as several months perhaps.  If By-Law revisions are needed to implement this solution, that too requires notice and comment periods which take time.  In the interim, there are three basic possibilities: I think the first option is out of the question, for all the reasons given in my essay "Beware the ICANN Board Squatters".

The second option has the severe disadvantage of further perpetuating the unfairness that this exercise is designed to remedy.  Worse, if -- as seems to be the case -- ICANN remains opposed to the idea of elections, this option creates an incentive for ICANN to drag its feet on holding them.

By far the best option, or the least bad one anyway, is the third one.  The problem here, however, is that while the entire Board is vested with the power of picking replacement directors, who serve out the term of the predecessors, the current Board minus the squatters remains dominated by representatives of the functional constituencies.  It doesn't make enormous sense for representatives of the functional constituencies to have the deciding votes to pick the persons to represent the at-large which is supposed to act as a balance against them.  Here, however, ICANN has already shown us the way.  Just as the self-appointed at-large directors met among themselves to decide which four among their number would be the squatters, so too could the five elected directors meet among themselves and propose four names to the full Board for its approval.  (Unlike the secret selection of the Board squatters, however, the proposal would be public before the full Board acted on it, thus allowing the public to comment.) While this is admittedly a very messy solution, and one that requires the willing cooperation of the entire Board, it seems as good an interim solution as we are likely to get.

A Special Note About Representation at the LA Meeting

Technically, every one of the self-appointed at-large directors became a Board Squatter on Nov. 1, 2000, since their original (extended) terms expired last month.  Furthermore, four of the sitting ICANN directors are recusing themselves, perhaps somewhat belatedly, from the only issue currently on the agenda for the upcoming meeting, that of new gTLDs.  In light of this, it seems especially odd and unfair that the five elected directors will not be allowed to participate in this decision but will only be seated at the end of the meeting.  When ICANN seated representivatives of business groups last year, from the functional constitutencies, it seated them at the start of the meeting; yet, when ICANN seats at-large representatives, they are frozen out as long as possible.

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