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[Comment-Dnso] Comments of the Electronic Frontier Foundation

Internet Corporation for Assigned Names and Numbers (ICANN) 
4676 Admiralty Way, Suite 330 
Marina del Rey, CA 90292 

Sent Via Email to comment-dnso@icann.org

Dear Board of Directors,

I am writing to you in response to your request for comments for the
"Proposed Amendment to the ICANN Bylaws."  The Electronic Frontier
Foundation (EFF) shares the ICANN Board's interest in maintaining a
diversity of representation on the Names Council.  However, we are
concerned that the specific proposals you recommend do not address the most
important flaw in the current Bylaws: that individuals and not-for-profit
organizations do not have adequate representation on the Names Council.
Furthermore, the ICANN proposed Bylaws would give too much policing power
to the ICANN Board and not enough power to the Names Council to police itself.

The Electronic Frontier Foundation (EFF) is a nonprofit, public interest
organization working to protect rights and promote responsibility in the
electronic world.  We have been tracking the Internet domain name process
for the past several years.  One of our Board members is Chairman of the
Board of ICANN; another was on the IANA Transition Advisory Group; a third
was instrumental in the CORE effort to provide a capable competitor in
global domain registration.  In addition, our legal staff has tracked and
commented on numerous proposed policies and drafts, while our activists
have closely followed the controversies online and in the press.

The ICANN Board's current proposals are more sweeping than necessary to
achieve your stated goal of limiting participation on the Names Council to
a single representative from any one organization.  But even more critical,
the designed makeup of the Names Council is structurally flawed, and any
limitation on a single company's participation on the Names Council would
merely be placing a Band-Aid on a life-threatening wound.

According to the ICANN Bylaws, there are seven Constituencies:

 Commercial and business, which get three members on the Names Council,
 ISP and connectivity providers, which get three members on the Names
 Non-commercial, which get three members on the Names Council,
 Registrars, which get three members on the Names Council,
 gTLD registries, which get three members on the Names Council, and
 ccTLD registries, which get three members on the Names Council, and
 Trademark and anti-counterfeiting interests, which get three members on
the Names Council.

EFF believes that commercial interests are disproportionately represented
on the Council.  This is apparent when you consider that trademark and
anti-counterfeiting interests are a subgroup of commercial and business, as
are ISP and connectivity providers, gTLD registrars, ccTLD registrars and
registries.  There are only three seats on the Council in the
non-commercial Constituency to represent all individuals, educational
institutions, hospitals, churches, and other non-profit organizations.
Three seats out of 18 are woefully insufficient, and we firmly believe that
the Names Council has to have more diversity of representation to meet
ICANN's broad interests and objectives.  EFF supports amendment of the
ICANN Bylaws to make the Names Council more accurately reflect the various
Constituencies that deserve a voice in policy-setting for the Internet.

Furthermore, EFF believes that the changes the ICANN Board is proposing
vest too much power in the Board to overrule the decisions of the Names
Council.  Instead of creating rules that permit the Board discretion in
overruling decisions of the Council, the ICANN Board should merely be
providing a framework that permits fair representation of all interested
parties on the Names Council.  The fact that one company is attempting to
usurp three seats of its own is unacceptable.  We strongly support
amendment of the Bylaws to prohibit such action.

With our concerns in mind, EFF proposes the following amendments to the
Bylaws relating to the Names Council:

RESOLVED, that Section 2(a) of Article VI-B of the Bylaws of the
Corporation is hereby replaced in its entirety with the following:

"The NC shall consist of representatives, selected in accordance with
Section 3(c) of this Article, from each Constituency recognized by the
Board pursuant to the criteria set forth in Section 3 of this Article."

Rationale:  The discretion to resolve disputes about proper membership in
the Names Council should be left with the existing members of the Names
Council, rather than conferred to the ICANN Board.

FURTHER RESOLVED, that Section 3(b) of Article VI-B of the Bylaws of the
Corporation is hereby replaced in its entirety with the following:

"The initial Constituencies shall consist of (in alphabetical order): 

1.  ccTLD and gTLD registries;

2.  educational and non-governmental research institutions;

3.  individuals owning domain names or communicating online."

4.  ISP and connectivity providers;

5.  non-commercial organization domain name holders;

6.  other commercial and business entities; and

7.  registrars.

Rationale:  This distribution is much more representative of stakeholders
within the Internet community than the one in the current Bylaws.
Trademark holder interests will be represented within the commercial,
registry, ISP and registrar Constituencies.  There is no logical reason to
give these holders double the number of seats on the Council.  This
proposal also recognizes that individuals and educational and research
institutions are critical members of the Internet community, each with
differing needs than general non-profit organizations.

FURTHER RESOLVED, that Section 3(c) of Article VI-B of the Bylaws of the
Corporation is hereby replaced in its entirety with the following:

"Each Constituency shall select up to three individuals to represent that
Constituency on the NC, no two of which may be residents of the same
Geographic Region, as defined in Article V, Section 6. No two individuals
sharing a common affiliation in an interested party or organization may
serve on the NC at the same time."

Rationale:  The ICANN Board should not be able to permit certain Geographic
Regions to be more or less represented than others; therefore the phrase
"except with the consent of the Board" has been removed.  The rest of the
proposed language was obtuse.  The corrected sentence is designed to make
it clear that any one company can only provide one person to sit on the
Names Council.

FURTHER RESOLVED, that Section 2(f) of Article VI-B of the Bylaws of the
Corporation is hereby replaced in its entirety with the following:

"Unless shortened by the Board in its recognition of a Constituency, the
term of office for each member of the NC shall be two years, subject to
earlier removal by the Constituency that selected such member."

Rationale:  The ICANN Board should not have the authority to remove members
of the Names Council, even with a three-fourths majority.

Thank you for giving us the opportunity to express our concerns with the
current structure of the Names Council.  Please feel free to contact me at
301.283.2773 or ssteele@eff.org if you need further clarification or if I
can provide you with any additional assistance.


Shari Steele
Shari Steele
Director of Legal Services
Electronic Frontier Foundation		ssteele@eff.org
P.O. Box 649					301-283-2773 (voice)
Bryans Road, MD  20616			301-283-5337 (fax)