IP: Beware the ICANN Board Squatters

[Dave Farber <farber () cis upenn edu>]

> Date: Sat, 28 Oct 2000 14:21:22 -0400 (EDT)
> From: "Michael Froomkin - U.Miami School of Law" <froomkin () law miami edu>
> To: Dave Farber <farber () cis upenn edu>
>
> http://personal.law.miami.edu/~froomkin/boardsquat.htm or, of course, via
> http://www.icannwatch.org
>
> Beware the ICANN Board Squatters
>
> By A. Michael Froomkin
> Professor, University of Miami School of Law
> October 27, 2000
>
> Four of ICANN's self-appointed directors have announced they will
> perpetuate themselves.  Through an arbitrary and secretive process, four
> of the initial directors, each of whom had originally undertaken to serve
> for only one year, or two years at most, have been chosen to serve for at
> least two more years. In confronting this upcoming opportunity to again
> perpetuate themselves, each of these four persons must ask themselves:
> "Are my promises to be trusted? What would continuing on the ICANN Board
> say about me?" The answer is clear: "Staying on past your original term
> says you are a Board Squatter."
>
> Who decided which Directors would stay on? "The decision on those who
> would accept extended terms was made by the nine original Directors" in
> secret, with no public process.  In the past, ICANN's unelected Board
> members have cited 'continuity' as a reason for staying on. That's
> balderdash: even if they all left today, a majority of the Board - nine
> members - would be experienced, and only five would be new (what's more,
> most of the five new directors have considerable ICANN experience and/or
> superior technical credentials). Plus, there's the continuity provided by
> the staff members who have been with ICANN since it started. No, the real
> reason why unelected Board members would hang on is because they are
> afraid of what ICANN might do if they are not there to stop it. They don't
> trust their own system, and they especially don't trust the result of
> elections.
>
> I call on Frank Fitzsimmons, Hans Kraaijenbrink, Jun Murai, and Linda
> Wilson to honor the pledge made at the time you were named: that your term
> would end not later than two years after your appointment. Resign. It is
> the right thing to do.
>
> A Tiny Bit of History
>
> Back in the days of the White Paper, the document which still provides the
> foundation for whatever legitimacy ICANN may retain, the United States
> government assured all that the initial, secretly appointed members of the
> ICANN Board were only temporary.
>
> As the White Paper put it, NewCo (later, ICANN) should:
>
> "appoint, on an interim basis, an initial Board of Directors (an Interim
> Board) consisting of individuals representing the functional and
> geographic diversity of the Internet community. The Interim Board would
> likely need access to legal counsel with expertise in corporate law,
> competition law, intellectual property law, and emerging Internet law. The
> Interim Board could serve for a fixed period, until the Board of Directors
> is elected and installed, and we anticipate that members of the Interim
> Board would not themselves serve on the Board of Directors of the new
> corporation for a fixed period thereafter."
>
> Anyone who dared suggest that the Board's power to amend its rules at will
> might lead this "Interim Board" to entrench itself was dismissed as a
> crank. Nice people, responsible people, the kind of people of long
> experience and reputation selected to form ICANN, don't do things like
> that, my dear boy.
>
> Although the Interim Board was self-appointed, the White Paper called for
> half of the ICANN Board to be selected in a manner calculated to represent
> user interests. But first, the other half of the Board was to be selected
> on corporatist principles from the three 'functional' constituencies - the
> ASO, the PSO, and the now dysfunctional DNSO. Presently, within a year or
> at very maximum two, the Directors elected by the "membership" would
> replace the Interim Board Members. In order to demonstrate the seriousness
> of the commitment that the Interim Board members would be gone in one
> year, the early ICANN By-laws required that the Board vote by a special
> majority if it determined that it needed to stay in office a second year:
>
> "The At Large members of the Initial Board shall serve until September 30,
> 1999, unless by a two-thirds (2/3) vote of all the members of the Board
> that term is extended for some or all of the At Large members of the
> Initial Board for an additional period, to expire no later than September
> 30, 2000. The members of the Initial Board (other than the At Large
> members) shall serve the terms specified in Section 9(d) of this Article.
> No At Large member of the Initial Board shall be eligible for additional
> service on the Board until two years have elapsed following the end of his
> or her term on the Initial Board."
>
> The ICANN Board duly extended itself in Resolution 99.86, but still said
> it would leave office no later than the original (extended) schedule:
>
> "RESOLVED [99.86], that under in Article V, Section 1 of the Corporation's
> bylaws the term of each of the At Large Directors of the Initial Board is
> extended to expire on the sooner of (i) the seating of the At Large
> Director's successor selected pursuant to the process referred to in
> Article V, Section 4(iv) of the Bylaws and (ii) September 30, 2000."
>
> As we all know, key players in ICANN never believed that member elections
> were appropriate and they worked hard to prevent it, first by attempting
> to prevent direct elections then, when met by massive opposition, by
> grudgingly allowing only five of the nine promised seats to be subject to
> open election. That left the Board four seats short, but it promised that
> the four seats would be filled by elections later, once it was clear that
> global online membership elections could work. (Are the Initial Directors
> of the opinion that the elections didn't work, and thus require their
> continued presence as a corrective? If so, don't the rest of us deserve to
> hear this?) Outside observers such as Common Cause and the Center for
> Democracy & Technology worried that the ICANN Board might never allow
> those four seats to be filled by election, but ICANN didn't listen.
>
> ICANN Changes Its By-laws to Permit Board Squatting
>
> Meanwhile, however, ICANN pulled a fast one: at its July, 2000 meeting in
> Yokohama -- without any prior public warning or time for public comment --
> it decided that the least legitimate members of the Board would stay in
> office until replaced, for as much as two more years, making what was
> initially described as a one-year term into a four-year term. ICANN did
> this by first, reducing the number of seats that could be elected by the
> membership from nine to five, and then by deciding that the seats that
> would not be filled by election would, instead of becoming vacant, be
> reserved for the Interim Directors. Since there are nine Interim (now
> 'Initial') directors, and five are being replaced by the elected
> directors, that will leave four Board Squatters in place.
>
> In fact, the four lucky Board Squatters could stay on longer than four
> years: Amazingly, only legitimate directors have to vacate their seats
> when their terms end, whether or not there is a replacement chosen. The
> four Board Squatters get to stay on in perpetuity if no replacements are
> chosen. And, there is absolutely no guarantee that these replacements will
> ever materialize, since ICANN plans to re-open the question of whether
> there should be any member-elected directors at all.
>
> ICANN's explanation for this takes some suspension of disbelief.  ICANN
> CEO Mike Roberts recently stated his understanding that, had the original
> Directors left office as they had promised ICANN would then be four
> directors short of a full complement and someone might have thought ICANN
> was up to something.  Since ICANN has apparently no present intention of
> actually electing four more directors from the membership -- this might
> actually create a theoretical danger that business interests might lose
> control -- it needed the four extra bodies so that critics wouldn't think
> ICANN was trying to shrink the Board.  WAIT A MINUTE?  ICANN is acting to
> please critics who claim that the organization lacks legitimacy -- and
> that's why it is breaking promises and making surprise self interested
> decisions without public notice or comment and, once again, finding new
> reasons to renege on the commitment in the White Paper and in ICANN's
> founding documents for a sunset to the self-selected Directors?  Be
> serious.  The people who argued from the start that ICANN lacked
> legitimacy, and who complained of the manner in which the interim
> Directors were selected, are the group demanding they stay?
>
> ICANN is about to do something utterly illegitimate, without even the
> usual fig leaf of transparency, consultation, or 'bottom-up' support. As
> ICANN approaches its second annual meeting, and as the maximum original
> term of the self-selected directors has come to an end, it is time to
> direct some pointed questions at any Board member thinking of staying on
> through this meeting:
>
> Some Questions for the ICANN Board Squatters:
>
> * Why was this decision as to who should stay on taken in secret?  Where
> was the public process?
>
> * Why should anyone believe that these Board Squatters will ever leave?
> What is to keep them from amending the ICANN by-laws to make themselves
> members-for-life?
>
> * Is the presence of the four Board Squatters to be used as an excuse to
> put off the election of four more directors from the ICANN membership? If
> not, when is that election to be held?
>
> * Will the Board Squatters promise to recuse themselves, and also to
> absent themselves from the discussion, when the new Board is making
> decisions regarding the election of new directors, since the election of
> the full complement of nine member-selected directors would result in
> their replacement? Does this self-interest qualify as a conflict of
> interest under ICANN's conflict policy?
>
> * Is each would-be Board Squatter prepared to explain in public why they
> believe that their presence on the Board is critical to the achievement of
> ICANN's objectives of "stability, competition, private bottom-up
> coordination, and representation"?
>
> And Finally...
>
> * Are you prepared to have your integrity questioned at every Board
> meeting you attend?
>
> * If you go back on your original commitment to the Internet community,
> won't that be what you have earned?
>
>
>
>
>  On Sat, 28 Oct 2000, Dave
> Farber wrote:
>
> >
>
> --
>                 Please visit http://www.icannwatch.org
> A. Michael Froomkin   |    Professor of Law    |   froomkin () law tm
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> +1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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