Would I join this club if it would have me as a member?

by Andy Oram
February 18, 2000

Groucho Marx’s well-known quip comes to mind when I consider signing up for the Internet Corporation for Assigned Names and Numbers (ICANN). Although they initially opposed any membership structure, and agreed to admit members only after considerable external pressure, the ICANN Board is now revving up a recruitment effort. They are supported by $200,000 from a well-respected philanthropic foundation that promotes public access to communications, the Markle Foundation.

Readers of this publication may find the invitation to join the General Assembly enticing. After all, ICANN has made headlines as the first organization dedicated entirely to setting policy on the Internet. Its decisions (particularly in domain names) may directly concern you. But before you join, read the fine print and think carefully about what you’re trying to achieve.

I want to elect the ICANN Board

Hold it right there. The word “elect” appears nowhere in the bylaws for the General Assembly. Members will not elect the Board directly, but will “select” an At Large Council, ultimately to consist of six people, who will then “select” representatives on the Board. A recent expert roundtable on ICANN membership uniformly condemned this structure as detrimental to minorities and discouraging to everyone. (Imagine that a bare majority—that is, half—of members select the At Large Council and a bare majority—half—of the At Large Council select Board representatives. In that case, a well-organized one-quarter of the membership could end up controlling all representatives.) Following the experts’ advice will be a hard change for the current Board because their choice had nothing to do with organizational structure; later I will examine why they did it this way.

But at least the General Assembly has indirect control over the Board

Sorry, that’s not true either. There are 18 Board members, of which the General Assembly chooses only nine. The other nine are divided among the Supporting Organizations, special interest groups that supported the foundation of ICANN and can be counted on to support the current Board’s policies:

So nine of the 18 Board members are firmly in the camp of the current Board. Even if you pulled off the greatest organizing drive the world has ever seen and manage to get people devoted to change as all nine of your Board representatives, you’d still lose key Board decisions. The reason? There’s a 19th vote, and it goes to—the President of the Board.

Well, I’ll get more information as a member

Don’t count on it. ICANN is very parsimonious with information. While they maintain a mailing list, official responses to comments are rare. They used to post comments on a Web page with an incongruously folksy name (“Community Feedback”) but nothing has been added since the middle of last December.

In my research of Internet policy over the years, I’ve had the pleasure of reading numerous court orders, FCC notices, and other official government documents. These works are impressive historic documents that exhaustively consider every point raised by all sides, bring in the background that applies to each point, and carefully lay out the reasoning that leads to a final decision. Nothing like this appears in ICANN public documents. They are terse bulletins that list decisions made and brief technical justifications.

Provisions for member-to-member communication are also vague. (Section 3 requires ICANN to “provide a method for Members to communicate with other Members in such ways and under such circumstances as the Board determines are appropriate and desirable.”)

Many non-profit organizations let members vote on by-law changes, examine accounting books, and so forth. If ICANN members were allowed to elect its Board, they’d have the same rights. But the trick of setting up an intermediate At Large Council allows ICANN, by the laws governing non-profit corporations in the state of California where it is incorporated, to withhold such basic rights of membership. The ramifications are all laid out in an unofficial analysis on the ICANN Web site. In short, the Board chose indirect voting in order to withhold common powers from members.

So is there anything I can do as a member?

Not now. The General Assembly doesn’t take any action until it has 5,000 members. That means that, even if you accept the advisory role of the Assembly and signed up today, you have to twiddle your thumbs until another 4,999 er…optimists make the same choice.

When ICANN does formalize the role of the General Assembly, though, you may find yourself footing the bill for ICANN’s complex, multi-leveled structure and its commitment to hold meetings on every continent around the world, habits that have driven it to the brink of bankruptcy three times.

To hell with it, I’ll join the Domain Name Supporting Organization instead

Yes, ICANN’s by-laws require a General Assembly for the DNSO too. Perhaps you’ll be tempted to focus your attention there, because domain names lead to more policy disputes than IP addresses or protocols. But it is an almost foregone conclusion that the DNSO General Assembly will be dominated by the same interests that control its constituencies, and who together choose its governing Names Council.

The General Assembly meets only once a year. Its chair is chosen not by its members, but by the Names Council. Members of the General Assembly nominate representatives to ICANN’s board, but it is the Names Council that actually decides which nominees become representatives. And only the Names Council can propose actions to ICANN’s Board. The General Assembly has recently suffered the resignations of several ICANN challengers who have given up on it as a forum for expressing dissent.

Is there any positive role one can play vis-a-vis ICANN?

In the movie Horse Feathers Groucho Marx’s signature song goes, “Whatever It Is, I’m Against It.” Often ICANN critics are accused of harboring this attitude, but for my part I reject the characterization. Despite the lack of transparency, ICANN has been found to bend in response to criticism. Many policies have been compromises among various forces. The most prominent example is the Uniform Dispute Resolution Policy, which scouts out a middle ground between the most trademark-friendly proposals and the laissez-faire policy of activists defending small domain name holders.

Beneficial results have been reported by people acting outside the organization as much as those within it. I myself have written several position papers regarding ICANN policies and have attended two meetings, all as an outsider. At one of these meetings, chairperson Esther Dyson addressed critics directly, saying that ICANN would do the right thing because “you’ll be watching us and keeping us honest.” With so many experts on Internet policy establishing their credentials outside the purview of ICANN, the Board would hurt only itself by suddenly instituting a members-only policy when running meetings or accepting comments.

But working inside might not be so bad either. Even as many public-interest representatives leave the field in despair, a new crop jumps in, as shown by the study being conducted by Common Cause and CDT. These organizations sponsored the expert roundtable mentioned earlier in this article, and are now requesting comments from the public.

The ICANN Board would be crazy to exploit the loopholes described in this article to the limit. The memorandum from the Commerce Department setting up ICANN in November 1998 explicitly calls for members, and Dyson promised a U.S. Congressional investigation in August 1999 that ICANN would have a membership. If they end up treating members like dirt, they may have to answer to a court or to the U.S. government—and the next Commerce Department or Congressional committee could turn out to be tougher than current ones.

I believe the important thing is not to ensure that the number of Asians in ICANN (for instance) is proportional to the number of Asians on the Internet or to the total population of Asia. What’s critical is to draw in Asians (and others from around the world) who care about their communities, who understand the issues that ICANN is dealing with, and who have the time and resources to participate. We must make sure that all have access to information and can reach the public with their views. In other words, transparency and access are the best guarantee of fairness, and membership is useful if it fosters those virtues.

So each reader will end up making his or her own choice. But I can tell you right now, I’m not going to go through the trouble and frustration of becoming an ICANN General Assembly member. And neither—you bet your life—would Groucho.

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Andy Oram is an editor at O’Reilly Media. This article represents his views only. It was originally published in the online magazine Web Review.