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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