Comments on CIRA Governance Update

April 30, 2012

Dear CIRA, the Board of Directors and Members,

My name is Kevin McArthur, and I am a CIRA member and was a candidate in the 2011 Board of Directors election. I am a small business owner in B.C., an author and activist for digital rights in Canada. I am writing to you today with concerns about CIRA's newly proposed governance framework.

My concerns with the new framework encompass three main themes:

  • - The reduction of democratic oversight at CIRA.
  • - The concentration of board power.
  • - The use of electronic voting in CIRA elections.

Democratic Governance

As an organization, CIRA's obligations encompass more than dot-ca. The organization is also responsible for supporting the development of the Internet in Canada. Through CIRA's letters patent and Binder letter by the Government Of Canada CIRA also takes on a very important set of public interest obligations. These obligations accompany the privilege of operating dot-ca.

In the 2010-2011 fiscal year, CIRA collected approximately 13 million dollars from Canadians. In their simplest form, these collected revenues are a form of delegated Internet taxation that is made possible through the aforementioned letters patent and Binder letter.

It is undeniable that CIRA could operate a registry on far less than 13 million of revenues each year. There are, however, public policy reasons that domain registrations are maintained within their current cost-inflated structure and the alternative cost-recovery based land-rush approach not taken. This policy decision is supported, I believe, by the Internet community only on the stipulation that surplus funds are well-managed in the public interest. CIRA's role as an advocacy organization to support the deployment of next generation Internet technologies, digital literacy and participation in worldwide Internet governance are funded entirely off the excess registration fees collected and I believe are critically attached to CIRA's role as the dot-ca operator.

For my part, this means that CIRA is not simply an organization that aims to achieve prudent fiscal management, but an organization that must have political accountability to Canadians. Canadians must have a say in whether domain registration fees are increased to support a growing public interest mandate or whether they are curtailed to support a more conservative organization. Canadians must have a say in the policy positions taken by the organization and in decisions to support and foster new research and development in Internet-related technologies and social causes.

I believe that that the proposed governance changes will significantly weaken CIRA's already fragile oversight model. Distancing the organization's democratic base from nominating CIRA's governing directors is exactly the opposite approach that CIRA should be advocating for in governance reforms.

CIRA should adopt reforms that further enable the membership's democratic participation in the organization. Such participation should be manifest in all areas of the organization, from direct input into early-stage decision making, to director nominations and finally to the campaign process and director elections. CIRA ought to take this opportunity to address a number of oversight and transparency shortcomings that are present in the current institutional policy and structures. It should not be proposing governance changes that further restrict participation, that diminish public insight into CIRA's decisions and actions, and that undermine the public's capacity to promote individuals to the board who are reflective to the democratically identified interests of the public. While CIRA's current proposals may be fiscally prudent, it is prudential at the cost of the organization's democratic spirit and thus must not move beyond the consultation stage.

In response to this consultation I offer the following recommendations for discussion with the membership.

Recommendation 1.

CIRA should move to a single member-nominated slate of candidates.

The proposed nomination committee approach cannot address the democratic oversight needs of the organization, and there are no formal selection criteria that will produce democratic leadership for the Canadian Internet. As such, we should not try to develop arbitrary standards, such as educational requirements or adopt geography, age, sex or other personal characteristics to establish selection criteria for Board of Director nominations. We should instead learn from, and follow with, the base principles and processes that are ingrained in Canada's legislatures and Parliament. In doing so, all Canadians would enjoy equal and democratic opportunities to be elected to the CIRA board.

Given that, under CIRA's proposed changes, the nomination committee will be selected by the Board of Directors we can expect that the committee will favour directors reaching the end of their term for re-election. We have seen this be the case in previous elections. As such, the proposed Nomination Committee mechanism would further strengthen the power of the Board of Directors.

I argue that rather than strengthening the board, the nomination committee should be eliminated in favour of an open, member-driven process for nominations. The membership of CIRA is broad and skilled enough to responsibly choose board candidates who have the skills needed to govern CIRA.

The nominating committee proposal as recommended by CIRA threatens democratic governance and should be abandoned. Further, CIRA has statutory obligations under the new Canada Not-For-Profit Corporations Act that are poorly reflected in the governance update and proposed policy. As an example, the proposed policy fails to recognize the statutory ability for 5% of the membership to introduce a proposal for the election of directors. The proposed policy also fails to account for how such member-driven proposals will be integrated into the proposed online election and official campaigning mechanisms.

Recommendation 2.

CIRA should move to an annual membership renewal process that is distinct from the dot-ca registration renewals.

Too many CIRA members see membership as linked to their registration activities. Anecdotally, I noted a broad confusion between CIRA registration and CIRA membership during and following extensive discussions with members during the last election cycle.

We must recognize the right of all Canadians, not just registrants, to participate in the governance of Canada's Internet resources. Conversely, we must recognize that not all registrants have an interest in CIRA's governance. To increase the percentage of active voters I propose an affirmative process by which CIRA membership must be renewed annually. This process should be open to non-registrants who meet Canadian presence requirements.

The process for validating new members should be maximally lightweight while ensuring confidence that requirements for identification are met.

Recommendation 3.

CIRA membership should have a nominal annual fee that goes towards supporting the governance of the organization. I would suggest this fee be in the range of CAD $1 to $5, and collectible at registration time or separately in the case of non-registrants.

This change would have two primary effects. First, by keeping the fee low, it would ensure that those with an interest in CIRA governance could easily become members. It would also remove those who have no significant interest in the organization from the membership rolls.

Such a change would better enable member proposals to meet the required percentage thresholds. It would also help ensure that elections engage a significant portion of CIRA's membership.

Recommendation 4.

CIRA should move to open and transparent Board of Directors meetings.

CIRA should record in audio/visual format the meetings of the board of directors. Such recordings would permit for greater member oversight. Meeting minutes should reflect the substance of meetings and the points of contention.

In relation to this topic specifically, there are substantial deficiencies with the Minutes of the September 2011 Board of Directors meeting, where directors Barry Shell and Kerry Brown voted against the resolution that has led to CIRA's current governance reform proposals. It remains unclear what prompted these directors to vote against this motion given that the substance of the discussions at this meeting were not recorded and made publicly available.

Moving to more detailed meeting's minutes and audio/visual recording will ensure dissenting voices and their concerns are accurately communicated to the membership. Moreover, providing accurate and complete minutes will let the membership be more informed about, and consequently involved in, the governance of the Canadian Internet.

Recommendation 5.

Maintain the current board size of 12 directors.

The CIRA board holds considerable power over Canada's Internet and the proposed change from 12 to 9 directors will further concentrate this power into an even smaller group of individuals. As such, the board should continue forward with the existing size of 12 directors. This will ensure that there is a diversity of voices and opinions on the Board of Directors.

Recommendation 6.

Recognize weaknesses in electronic voting

CIRA is proposing to use an online voting mechanism to select directors. Online voting is an inherently insecure technology and not one that CIRA can guarantee the legitimacy of. The technology can circumvent prohibitions on proxy voting, vote selling and the improper influencing of voters.

CIRA's by-laws should reflect the insecurity and potential problems arising from online voting, and should provide for a fall-back option, such as a special meeting with paper ballots, should there be any suspicion of voting irregularities. Circumstances requiring a paper vote should include evidence of a number of votes from the same computer/IP address, denial of service attacks, computer viruses/intrusions targeting the election or any other reason that could cause members to question electronic election results.

Summary

In the end, I believe the proposed governance changes do not address the democratic nature of CIRA's position within the Canadian Internet ecosystem. Consequently, the changes should be rejected in their entirety. Members should be directly engaged in studying this issue through public consultation before any further proposals are suggested by the organization for member consideration.

Respectfully,

Kevin McArthur