DRAFT DRAFT DRAFT 2.0

Beware the ICANN Board Squatters

If you have any outrage left, here's a good place to direct it: the means by which four self-appointed ICANN directors are about to perpetuate themselves, and the arbitrary and secretive means by which those four will be chosen.

In confronting the upcoming opportunity to again perpetuate themselves each of the current self-appointed Board members must ask themselves: "Are my promises to be trusted? What would continuing on the ICANN Board say about me?"

ICANN's unlected 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. Not to mention the continuity provided by the staff members who have been with ICANN since it started. No, the real reason why unlected 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.

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 to 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 never mind that for right now.

ICANN Changes Its By-laws to Permit Board Squatting

Meanwhile, however, ICANN pulled a fast one: at its July, 2000 meeting in Yokahama -- 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 suspention of disbelief.  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 theorteical danger that business interests might lose control -- it needs the four extra bodies so that people won't think ICANN is trying to shrink the Board.  WAIT A MINUTE?  ICANN is acting to please critics who claim that the orgnization lacks legitimacy -- and it's doing this by breaking promises and making surprise self-interested decisions without public notice or comment and, again, finding new reasons to reneg on the committment in the White Paper and in ICANN's founding documents for a sunset to the self-selected Directors.

ICANN is about to do something utterly illegitimate, without even the usual figleaf 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 Interim Board Members Considering Becoming Board Squatters:

And Finally...

Naming Names: Who are the Board Squatters?

In one sense, every member of the Interim Board who holds office after September 30, 2000 deadline has passed is a Board Squatter. But the most serious, and persistent, Board Squatters will be those four persons who cling to office after the five member-elected directors are seated.  (Strangely, the five new member-elected directors will only be seated at the end of ICANN's annual meeting -- thus disenfranchising them from the decisions on new gTLDs that are expected to be made at this meeting.  Contrast that with the treatment of the directors from the ASO, PSO and DNSO who were all seated at the start of their first meeting.)

The potential long-term Board Squatters are the initial board members who do not resign this November:
 
Name Resigning November 2000?
Esther Dyson Resigning.
Geraldine Capdeboscq  Resignation Rumoured
George Conrades ?
Greg Crew  Resignation Rumoured
Frank Fitzsimmons  ?
Hans Kraaijenbrink No way.
Jun Murai ?
Eugenio Triana  ?
Linda S. Wilson  ?

If you are personally acquainted with any of these people, now would be a good time to drop them a note and let them know that that people are watching.