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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:

And Finally...


 

This document resides at http://personal.law.miami.edu/~froomkin/boardsquat.htm