9.5 Representation: Barriers to Entry

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While the new regime was busy defining, expanding, or securing the property rights of registrars, trademark holders, and registries, the rights and interests of end users went unrepresented. It is widely recognized in social theory that the interests of large numbers of people with a small stake in a resource tend to lose out in collective action processes to small, wellorganized stakeholder groups with a concentrated economic interest ( Olson 1971). Yet, in ICANN's case, the perspectives of end users and individuals were minimized not because of a lack of participation or interest but because decisions about the design of the institution deliberately blocked their entrÈe into the process. ICANN's structure was supposed to provide two avenues for broad representation: the constituencies of the DNSO and the membership structure that would elect the nine at-large board members. Both channels were totally or partially closed off to ordinary Internet users in ICANN's first two years.

9.5.1 Representation in the DNSO

The DNSO was supposed to be representative of domain name stakeholder communities. The Green Paper, White Paper, and the IFWP deliberations all considered the general population of Internet users to be a constituency worthy of representation. ^{[21 ]}The final DNSO constituency structure, however, emerged from a series of meetings controlled by leaders of the dominant coalition: the Information Technology Association of America (ITAA) and its international sister organization, the World Information Technology and Services Alliance (WITSA), the Internet Society, the International Trademark Association (INTA), and the Policy Oversight Committee of the gTLD-MoU. ^{[22 ]}The constituency structure proposed by these groups, and accepted by ICANN's board with minor modification, was manipulated to magnify the voting power of business, trademark, and registrar groups, and to minimize or eliminate the influence of civil society organizations, noncommercial groups, and individuals.

Five of the seven DNSO constituencies (Internet service and connectivity providers, business and commercial, registrars, trademark constituencies, and TLD registries) represented business interests. Noncommercial interests were given one residual constituency that had to embrace an extremely diverse and ill-defined set of interests. No constituency for individuals was created; the leaders of a group that wanted to represent individual domain name holders were perceived as hostile to the dominant coalition and denied recognition. ^{[23 ]}In short, the DNSO constituency structure gave the members of the dominant coalition an unbreakable majority of the Names Council. The election of board members by the Names Council could not, therefore, act as a check upon management, which was selected by the same set of interest groups. Nor did it broaden representation on the board.

9.5.2 At-Large Membership

The debate over organizational models for ICANN sparked by the International Forum on the White Paper (IFWP) was never really resolved; instead, ICANN emerged as an uncomfortable compromise. Fundamentally, it was a public benefit corporation able to modify its bylaws at will, as Postel's lawyer had intended. But a membership requirement had been tacked onto its bylaws because of pressure from activists and the U.S. government. ^{[24 ]}Despite promising beginnings, ICANN's management repeatedly delayed or obstructed the election of at-large board members, and once they were chosen, the impact of membership was minimized as much as possible.

Admittedly, the problem of membership was a challenging one. The scope of the organization had to be global, like the Internet name and address spaces. The fledgling organization had to define workable criteria for a kind of global Internet citizenship and in the process confront questions of regional representation and linguistic and economic diversity. Without appropriate structures and safeguards, democratic voting methods are no less susceptible to capture and manipulation than other forms of decision making.

ICANN's original Membership Advisory Committee took the challenge quite seriously. Harvard's Berkman Center, Boston Working Group member Diane Cabell, Izumi Aizu of Japan, and board member Greg Crew constituted the core of the group. By May 1999 the Committee had delivered a comprehensive membership proposal to the ICANN board, a highly democratic model accompanied by a convincing rationale for having an atlarge membership. ^{[25 ]}It proposed a one-person/one-vote election, in which individuals rather than organizations would be the voting unit. Members would have to renew annually, but there would be no membership fee. The at-large members would elect five board members on a regional basis and four on a global basis. A critical mass of 5,000 members would have to be registered before the elections would go into effect.

ICANN's management, however, dragged its feet in implementing the proposal. A May 27, 1999, board resolution observed that the elections are 'likely to be both administratively complex and expensive' and called for the cost of implementation to be borne by the membership.

Management then discovered what it considered to be an even more serious problem. California law automatically gives specific rights and powers to any member of a nonprofit corporation. Statutory members can bring derivative actions against the corporation, and inspect accounts and records. A 'member' is defined by the law as 'any person who, pursuant to a specific provision of a corporation's articles or bylaws, has the right to vote for the election of a director or directors or . . . has the right to vote on changes to the articles or bylaws.' Thus, by creating an election for its atlarge board members, ICANN would be creating statutory members. ^{[26 ]}

ICANN's management responded to this problem by using a legal technicality to ensure that at-large members would not really be members within the meaning of the statutory nonprofit corporations law and therefore could not claim the rights granted by the law. ^{[27 ]}Management attempted to avoid the problem of creating statutory members by adopting the election plan as a board resolution instead of 'pursuant to a specific provision of a corporation's articles or bylaws.'

A few months later, ICANN's management abandoned the recommendations of the Membership Advisory Committee. There would be no direct election of at-large board members by individuals. Instead, individual members would choose members of an at-large council, who would in turn elect board members. Faced with a rebellion at its Cairo meeting, the board backed down and promised that in the fall of 2000 individual ICANN members would directly elect one board member in each of five world geographic regions. The five elected at-large directors would sit for two years alongside four holdover directors from the initial board. A grant from the Markle Foundation funded the election process and made it possible to avoid charging membership fees.

The results of the at-large election (October 11, 2000) were stunning (table 9.1). In North America and Europe, the two world regions where the elections had been widely publicized and discussed, all of the candidates nominated by ICANN's nominating committee were defeated. The winners-and even the second and third-ranked candidates-were opponents of ICANN's policies and practices. Karl Auerbach, the victor in the North American seat, was closely affiliated with the Boston Working Group. Andy Mueller-Maguhn was described by the press as an ' anarchist hacker.' ^{[28 ]}The 'Internet community consensus' that ICANN had been claiming since its inception seemed not to exist.

Table 9.1: At-Large Election Results

Candidate	View on ICANN	Nominated by	Votes
North America
Karl Auerbach	Very critical	Members	1,074
Barbara Simons	Critical	Members	771
Lawrence Lessig	Critical	ICANN	725
Emerson Tiller	Critical	Members	490
Harris Miller	Supporter	ICANN	179
Lyman Chapin	Supporter	ICANN	127
Don Langenberg	Supporter	ICANN	83
Europe
Andy Mueller-Maguhn	Very critical	Members	5,948
Jeannette Hofmann	Critical	Members	2,295
Winfried Schuller	Critical of U.S. Department of Commerce	ICANN	990
Alf Hansen	Supporter	ICANN	629
Olivier Muron	Supporter	ICANN	544
Maria Livanos Cattaui	Supporter	ICANN	514
Oliver Popov	Supporter	ICANN	389

Following its decisive defeat in the elections, the ICANN management and board acted to contain the elected board members and minimize their impact. The bylaws were altered to keep the newly elected directors out of the selection process for new TLDs. A new executive committee of the board was formed that excluded the maverick members. The board pulled back yet again from the prospect of a member-elected at-large board of directors. It decided to commission a lengthy 'study' of the future role of the at-large members. The study became known as the 'clean sheet' study because it was based on the assumption that the very existence of the atlarge membership was up for examination.

^{[21 ]}The Green Paper, in discussing 'representation,' referred to 'membership associations' representing 'Internet users' as deserving representation on the board of a new corporation. The White Paper has said that the new organization should be 'representative of Internet users around the globe.'

^{[22 ]}'Application to Become the Domain Name Support Organization, pursuant to Art. I, Section 3(b) of the Bylaws of Internet Corporation for Assigned Names and Numbers (the 'Corporation'),' February 9, 1999. The organizations submitting the proposal to ICANN were listed as Electronic Commerce Europe (ECE), European ISP Association (EuroISPA), Information Technology Association of America (ITAA), International Chamber of Commerce (ICC), Internet Council of Registrars (CORE), International Trademark Association (INTA), Internet Society (ISOC), Policy Oversight Committee (POC), World Information Technology and Services Alliance (WITSA).

^{[23 ]}Individual Domain Name Holders Constituency, April 23, 1999, petition to ICANN board for recognition, <http://www.democracy.org.nz/idno/petition.htm>.

^{[24 ]}In her October 20 letter to the ICANN management, Commerce Department official J. Beckwith Burr noted, 'Many commenters expressed the view that the principles of private, bottom-up coordination and representation set out in the White Paper are unlikely to be achieved in the absence of some type of membershipbased structure. We believe ICANN should resolve this issue in a way that ensures greater accountability of the board of directors to the Internet community.'

^{[25 ]}The report adduced the following reasons for an at-large membership: to reflect the global diversity of users (membership should not be limited to IP address or domain name holders); 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; to provide input from the user community to the ICANN directors and management. MAC Report, Berlin meeting, May 26, 1999.

^{[26 ]}ICANN Staff Report, 'Statutory Members vs. Nonstatutory Members for the ICANN At-large Membership,' August 11, 1999.

^{[27 ]}ICANN Bylaws, Article II, ß{\!s}1.

^{[28 ]}Axel Steuerwald, 'Mueller-Maguhn CANN; From Anarchist-in-the-making to Euro Net Lord,' USC Annenberg Online Journalism Review, November 7, 2000, <http://ojr.usc.edu/content/story.cfm?request=479>.

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