By Nick Patience
The controversy over the membership structure being introduced by the Internet Corporation for Assigned Names and Numbers (ICANN) is certain to dog it for quite a while as many in the community see it as a way of suppressing opposition to its policies while giving the impression of being a democratic, member-led organization. The idea is for nine of the 19 board members to be selected by an at-large membership. ICANN intends for them to be selected by an 18-person at-large council, which will itself be directly elected by the at-large membership. It is the insertion of the at-large council layer that has led to suspicions within the community. However, ICANN argues that there is a sound legal reason for doing it, namely that if it did not, it would leave itself open to potentially vast numbers of lawsuits that would stop it carrying out its administration of the net’s addressing system, which could in turn, lead to instability of the internet.
Professor of law at Boston University, Tamar Frankel, who participated in the process that preceded ICANN and has been observing ICANN since its inception, believes that its choice of membership structure is perhaps inevitable given its constituency. ICANN’s actions could, in theory affect all the world’s internet users at some point or another, so the insertion of an at-large council – rather than letting a general membership elect it directly – was perhaps inevitable, believes Frankel.
Frankel chaired the International Forum on the White Paper (IFWP) meetings in the US, Switzerland and Singapore last year that many of the participants believed would lead to the non-profit body the US government was seeking to administer the internet’s addressing system. However, while the meetings were happening, a team was being formed behind the scenes by ICANN’s predecessor, IANA and various corporations, which led to the formation of the current ICANN interim board.
However, should ICANN fail for any reason, Frankel strongly believes in the internet’s ability to pick up the ball and continue to operate the domain name and numbering systems in a stable manner. If ICANN goes really out of line, she says, there will be an alternative technical solution. Frankel is talking here about the various alternative root mechanisms that are in the works.
The reason ICANN inserted the group of 18 people, called the at- large council to select nine of the eventual 19 board seats is that if the board members were directly elected by the at-large membership, the corporation (ICANN) would be susceptible to derivative lawsuits, or suits where the corporation is sued using its own resources. They are useful as an extra level of checks and balances against a board that is not acting in the best interests of the corporation, and by extension its members and/or shareholders. But they can also be abused by so-called trivial strike suits. Frankel says there is no precise law governing them, but various federal rules of civil procedure, statute, and judicial decisions make up the derivative action legal framework.
Derivative actions in non-profit organizations are rare, mainly because they mostly do non-controversial work, such as museums, or food aid programs, says Frankel. But with ICANN, that’s obviously different. If ICANN permitted derivative actions, it would have to trust judges to throw out the nuisance suits and only allow the substantive ones, but that’s leaving a lot to chance and there could be vast numbers of suits. The only route the general membership will have, it seems, is to appeal to the California Attorney General or take out a private law suit, which could prove very expensive.
Joe Sims, ICANN’s outside counsel says the at-large council members would have the same status as the members of the three supporting organizations, in that they would not be members themselves. He says they would only have rights as they are set out in the bylaws, such as the right to select board members. And as there doesn’t seem to be any desire to include the right to bring derivative actions, that won’t be included as one of those rights, says Sims.
Frankel says ICANN seems to have created a likely membership that formally has no strength, but it should not assume that it’s a membership that doesn’t informally have strength. In other words, there’s more than one way to route a domain name.
Frankel believes that a good test of whether or not the at-large council is some sort of back door method of control by some set of interests will be judged by the kind of people who volunteer to stand for election. The elections will probably be in two tranches to test the procedure, but the first won’t happen until the spring or summer of 2000 under the current timetable spelled out late last month by ICANN’s interim board.
ICANN formed a membership advisory committee back in December 1998 and is basing its ideas on its findings. However, it won’t recognize a membership until it has at least 5,000 members, hence the drawn-out process. And some board members have said a lack of money has been a barrier to forming an at-large membership. That obstacle seems to have been removed with the knowledge that it is actually a relatively straightforward exercise to reach out to everybody on the net that might have an interest in joining an ICANN membership.
Frankel says the board has taken too many decisions before any of its number is elected, but she feels lots of these decisions can be adjusted, down the line. She predicts that there will continue to be friction between ICANN and the community but the true test of its survivability will come when it’s out of line. If they disaffect too many interests, technology will step in, she says.
