on ICANN Evolution and Reform
Final Implementation Report and Recommendations
2 October 2002
1. The Purpose of Reform
2. How These Recommendations Respond to the Identified
A. Mission Statement
B. The Structure of ICANN
C. ICANN's Processes
E. Participation by Critical Entities
3. The New Bylaws
A. ICANN's Mission
B. Board of Directors
C. Supporting Organizations
D. Advisory Committees
E. Nominating Committee
4. Policy and Process
5. Transparency and Accountability
6. Government Participation
On 24 February 2002, ICANN President Stuart Lynn released his President's
Report: The Case for Reform, which clearly and persuasively set forth
the need for constructive change in ICANN's structure and processes if
ICANN is to fulfill its mission responsibilities. That report initiated
a very constructive and wide-ranging discussion throughout the ICANN community.
This document, and the proposed
New Bylaws that accompany it, are the result of that discussion.
1. The Purpose of Reform
ICANN is a bold experiment in the management of an important feature
of a global resource with significant public policy implications. The
goal is straightforward and unobjectionable: to combine the greater
speed and agility of private-sector management with appropriate public
sector – including governmental – input to ensure
that the results are consistent with the broad public interest. But
however worthy the goal, there is a wide variety of views on whether
this is even possible, and if so, on how best to accomplish it. ICANN
is still clearly an ambitious work in progress, and thus as yet the
outcome of the experiment remains unknown.
In certain respects, ICANN has been very successful; in others, less
so. Over the almost four years of its existence, its accomplishments
have frequently been overshadowed by its continuing struggle to find
the right mix of public and private, of broadly inclusive deliberation
and effectiveness, of accountability and agility, that is essential
if the experiment is to succeed. This mixed record, and the challenges
still remaining, provided the motivation for Dr.
Lynn's report earlier this year, and that report was itself the
precursor to the intense debates and discussions that have taken place
since, which will culminate in Shanghai with
the adoption of a comprehensive plan for a reformed ICANN.
Dr. Lynn identified
three basic issues that stood between the status quo ICANN and success:
(1) too little participation by critical entities; (2) too much process;
and (3) too little funding, with the latter two a partial reason for
the first. He recommended a number of changes in ICANN to deal with
these problems. As the public discussion began, it became clear that
all of these issues could not be dealt with simultaneously, and the
decision was made to focus on the structural, process, and funding issues
that could be addressed directly, with the expectation that if ICANN
could stabilize its core, critical participants would find it more attractive
to participate and other issues could then be dealt with more effectively.
The focus on ICANN reform over these past seven months has been intense,
both within ICANN and outside it, in both the private and public sectors.
To coordinate these reform discussions, the ICANN Board created
the Evolution and Reform Committee at its meeting in Accra in March.
Since then, the ERC has catalyzed a very substantial global discussion,
documented in various e-mail lists (both within and outside of ICANN)
and in numerous materials prepared by individuals, groups, and entities,
again within and outside of ICANN. This discussion, and the ERC's compilation
of it, has been catalogued by a number of Working Papers, Status Reports,
and Interim Implementation Reports produced by the ERC. These have benefited
from and reflected both formal and informal input from the entirety
of the sources providing that input, including the full range of ICANN
stakeholders and specific Assistance Groups established by the ERC to
help it consider various specific subjects. Links to most of these inputs
can be found at <http://www.icann.org/committees/evol-reform/links.htm>.
The first phase of the reform effort culminated in the Blueprint
for Reform, published on 20 June by the ERC, and adopted
and endorsed by the ICANN Board on 28 June at its meeting in Bucharest.
The Blueprint represented the synthesis of an enormous number of suggestions
on how ICANN could improve its structure and processes, and thus its
effectiveness, while preserving its essential character as an open and
transparent non-governmental policy-development body. The Blueprint
contained an outline; this Report includes the detailed Bylaws that
will implement that outline, along with an explanation of why and how
the proposed Bylaws deal with the identified problems of ICANN past.
Throughout this process, the goal has been to fix the identified problems,
while preserving both what was working and the critical principles and
concepts that led to the creation of ICANN in the first place. In this
set of "final" recommendations,1
we set forth the changes that the ERC believes, based on all the inputs
from throughout the community over the past seven months, will effectively
deal with the identified problems, and position ICANN to successfully
fulfill its mission.
We do not claim that every suggestion received from the community has
been integrated. Many suggestions are in conflict with each other. Others
are in conflict with the Blueprint. Still others reflected narrow perspectives.
The ERC has, however, carefully considered all suggestions and incorporated
many of them (often in combination with one another). This final implementation
report has been greatly by influenced by the extensive comments received.
We are extremely grateful to all members of the community and to all
ICANN's constituent bodies that took the time and trouble to consider
this important topic and to submit their thoughts.
Transition. This document focuses on
the new ICANN in steady state; it does not address the transition from
the current structure to the new structure. Effectively addressing the
steady-state future in the time available is a difficult enough challenge:
the community and the ICANN Board should not be distracted from focus
on this critical objective by issues of how to make the transition.
Thus, we believe that the Shanghai meeting should focus only on the
steady-state future. Once that is decided, a recommended transition
plan will be prepared and presented separately to the community and
the Board for approval. To achieve this, the ERC recommends to the Board
that the Annual Meeting of ICANN for 2002 be a separate, webcast forum
and public meeting held in early December, at which the only subject
(other than the obligatory
election of officers) will be to consider a transition plan developed
by the ERC, and posted for public comment and review approximately thirty
days prior to that meeting. Because Director terms expire at the conclusion
of ICANN's Annual Meetings, there would be no change in the Board until
the conclusion of that early-December meeting. The transition plan will
recommend a Transition Article to be added to the New Bylaws at the
2002 Annual Meeting that sets forth the interim measures necessary to
move from the status quo to the structure set forth in the New Bylaws.
As noted, included with this Report are proposed
New Bylaws, which are intended to replace in their entirety the
Bylaws. The New Bylaws, if and when adopted by the ICANN Board,
will constitute the definitive description of a reformed ICANN, not
this Report. As such, the New Bylaws should be reviewed carefully, since
they, and not this Report, contain the controlling and, if the New Bylaws
are approved, binding language implementing the Blueprint. This Report
summarizes, explains and where appropriate amplifies what is contained
in the proposed New Bylaws, but the New Bylaws represent the authoritative
recommendations of the ERC. The appropriate sections of the New Bylaws
are referenced in this Report for convenience.
2. How These Recommendations Respond
to the Identified Problems
There are many changes from the status quo in the proposed ICANN Bylaws,
but in this portion of our Report, we focus on what we believe are the
critical changes, and on why these changes are directly responsive to
the identified problems of ICANN.
A. Mission Statement
One recurring challenge for ICANN has been the unease of many that
ICANN's scope was not framed by a clear and bounded mission. This
unease has been one of the major reasons for the reluctance of some
significant stakeholders to participate fully within ICANN, and has
also led to calls for the elaborate processes that have made it extremely
difficult for ICANN to be effective. Thus, the one point on which
there seems unanimous agreement is that defining a clear and bounded
mission is an essential pre-condition to addressing the identified
problems of ICANN. An appropriate mission statement, along with an
articulation of the core values that should guide ICANN's pursuit
of its mission, is a necessary first step allowing definition of structures,
processes, and funding requirements that are appropriate for achievement
of the mission. The articulation of such a mission statement and core
values can be found in Article
I of the New Bylaws.
B. The Structure of ICANN
An enormous amount of the global energy related to ICANN over the
last four years has been focused on ICANN structure, and in particular,
two aspects of that structure: the At Large issues (how to incorporate
the informed participation of a broad range of Internet users), and
the proper role of governments and other public authorities in ICANN.
The proposed New Bylaws deal directly with both of these issues in
a manner designed to promote ICANN's effective pursuit of its defined
With respect to At Large issues, the proposed New Bylaws create
an At Large Advisory Committee, which will serve as a vehicle
for informed participation in ICANN by the global community of interested
Internet users. In addition, the proposed New Bylaws provide that
over half of the ICANN Board (8 of 15 seats) will be selected
by a broadly based Nominating Committee that includes representatives
from the full range of interested stakeholders. More than a quarter
of the Nominating Committee members will ultimately be selected by
the At Large Advisory Committee, and the criteria that the Nominating
Committee is required to follow in making its selections will ensure
that the ICANN Board is itself broadly representative of the entire
community. The ICANN community spent a good part of the last four
years struggling with these issues, and the overhang of this problem
had a very adverse effect on the ability of the community to devote
its attention to the substantive issues facing ICANN. The resolution
of this issue, through the creation of the At Large Advisory Committee,
is critical to an effective ICANN moving forward.
It is now clear that a purely private-sector body cannot effectively
carry out the ICANN mission. As a result, the proposed New Bylaws
provide for a more effective integration of the Governmental
Advisory Committee with the other constituent bodies of ICANN,
including the ICANN Board. Those directly responsible for public policy
must participate appropriately and effectively in ICANN, alongside
representatives of the private sector, if ICANN is to be successful.
The provisions in the New Bylaws providing that the GAC may provide
liaisons to the ICANN Board and other ICANN bodies will allow governments
and other public authorities, working through the vehicle of the GAC,
to work more closely with the private sector in carrying out ICANN's
coordination and policy-development roles.
In addition to these two changes, the proposed New Bylaws realign
the policy development bodies of ICANN so that they are more precisely
focused on the areas where ICANN has some global coordination responsibility –
global names and address policies. Since it is now clear that those
areas require different structures and processes to most effectively
deal with their respective issues, the proposed New Bylaws abandon
the "one size fits all" model of the old Bylaws, and tailor
the structure and responsibilities of each Supporting Organization
to the particular needs and entities involved.
C. ICANN's Processes
It has often been pointed out that ICANN's problems may originate
not only in its structure but also in the processes by which it functions.
One of the critical flaws of the original ICANN design was that it
did not anticipate sufficiently the need for structured processes
for policy development, especially in the highly contentious and political
environment of global names policy, a core aspect of ICANN's mission.
The proposed New Bylaws establish (1) specific processes for
policy development in the GNSO, incorporating incentives to build
consensus around realistic and achievable policies; (2) revised
procedures for the independent review and reconsideration of ICANN
actions and decisions, which should achieve accountability and transparency
without unduly burdening the processes; and (3) clear mechanisms
(and the necessary staff support) for thorough-going public exposure
of ICANN policy-development efforts so that few occasions will provoke
use of the review and reconsideration mechanisms. In addition, the
proposed New Bylaws create an Office of Ombudsman, to serve as an
advocate for fairness within ICANN, and a resource for those who feel
that they have not been treated fairly in some way.
The net result is a full platform of more effective processes directed
to the achievement of ICANN's mission, enabling all who want to participate
to do so without overwhelming ICANN's ability to actually do the substantive
work it was created to do. This platform should also make critical
stakeholders more confident in the value and effectiveness of their
participation in ICANN.
Ironically, the funding problem has proven to be the easiest to solve.
The mechanisms have always been available, through ICANN's contracts
with registries and registrars. What was missing in the past was the
will to fully utilize those mechanisms, likely driven in large part
by a concern that ICANN was not structured to be able to effectively
use more funds even if they were made available. Once it became clear
that ICANN was on the road to effective reform, the response from
the funding stakeholders was very positive, and ICANN today does not
face a significant shortfall in funding operations at its current
level of obligations, although there is still a shortfall in funding
for building adequate reserves. We also expect that ICANN's current
contractual relationships – coupled with the positive reaction
of the funding stakeholders – will provide sufficient funding
to support the new level of commitments implied in this final report.
The long-term funding needs of reform should be addressed through
the annual budget process for the 2003-2004 fiscal year, and the shorter-term
transition needs should be addressed through adjustments to the current-year
budget once the transition needs are fully defined.
Of course, the funding problem is not solved; a more automatic funding
mechanism should be developed that depends less on day-to-day events
for its implementation. The key point at this moment is that the existing
contractual mechanisms permit a level of funding that is sufficient
to fund an effective ICANN. With the same level of cooperation experienced
recently in this area, a reformed ICANN should be able to generate
a sufficient, and sufficiently stable, flow of funds to be able to
carry out its mission, and to provide for adequate reserves.
E. Participation by Critical Entities
This is the one area in which the current reform initiatives have
not yet accomplished their full purpose; there is still not the level
of committed participation by all entities necessary to allow ICANN
to be truly successful. There are a variety of reasons for this, all
of which can and will be addressed over time, so the work continues.
The ERC has made considerable efforts, and will continue to pursue
them, to discuss with these entities (and the communities around them)
the reasons why they should participate in a reformed ICANN.
If ICANN is to carry out its mission, it must be inclusive of the
country code and generic name registries and registrars, the address
registries, the root name server operators, major commercial and non-commercial
users, the general Internet user community, the major Internet standardization
bodies, and governments and public authorities. Not all of those sectors
are yet sufficiently included in the ICANN community. With the stabilization
of the ICANN core represented by this reform effort and these proposed
New Bylaws, the next point of emphasis must be to complete this process
by appropriately, almost certainly in different ways reflecting their
unique circumstances, involving each of these communities to the extent
not yet accomplished.
As the above description demonstrates, the New Bylaws we propose here
are directly focused on the core problems first identified in Dr. Lynn's
Report last February, and since then broadly accepted as an accurate
diagnosis of ICANN's ills. We believe that the specific changes reflected
in the proposed New Bylaws, drawn from seven months of intense community
discussion about how to fix these problems, will do just that. No doubt
other changes will be necessary in the future; an organization like
ICANN, dealing with a medium as rapidly changing as the Internet, must
be willing and able to change as required by future events. But humans
do not function as effectively in constantly changing environments,
and so there must also be periods of repose. To accommodate these somewhat
inconsistent facts of life, we include in these New Bylaws (in Section
4 of Article IV) a requirement for periodic review of all elements
of ICANN, to ensure that bureaucratic inertia does not set in –
but we call for these reviews only every three years for any one aspect
of ICANN, so that there can be periods during which participants and
observers can become familiar with ICANN's structure and procedures.
What follows is an explanation of the New Bylaws, highlighting the
important changes. We reiterate again, however, that the explanations
and descriptions in this Report are explanatory only, and not authoritative.
The only authoritative document is the New Bylaws, and we urge every
interested member of the ICANN community to review them carefully.
3. The New Bylaws
There are many differences between the old ICANN Bylaws and the New
Bylaws recommended by this Committee. The New Bylaws are intended to
be a complete substitute for the old ICANN Bylaws, and thus it would
be difficult and probably hopelessly confusing to try to specify every
change made. We highlight below what we consider to be the most important
aspects of the New Bylaws, including specific changes from the old ICANN
Bylaws where appropriate. Nevertheless, we urge all who are interested
to read carefully the New Bylaws in their entirety.
We have taken the opportunity presented by the reform initiative to
make a number of changes to time periods and other aspects of the old
ICANN Bylaws based on the accumulated experience showing that those
changes are appropriate. To avoid claims that these changes are an effort
to make changes without notice; we hereby give explicit notice that
there are a large number of small changes in the New Bylaws from the
old ICANN Bylaws, and we invite all to review them carefully. It would
not be surprising to find inadvertent errors or inconsistencies in the
proposed New Bylaws, despite our best efforts to avoid them, and we
urge all in the community who identify such to bring them to our attention.
In addition, of course, any substantive concerns should also be raised
as early as possible, so that the Committee and the community can evaluate
them prior to the Shanghai meeting.
As noted above, the ERC's recommendation is that at the Shanghai meeting
in late October the community and Board focus on the structure and processes
of the steady-state future of ICANN, and defer until an annual meeting
in early December the many details of how to transition from the current
ICANN to the reformed ICANN. The New Bylaws presented with this document
therefore do not include the various transition provisions, which the
ERC anticipates will be included in the form of a Transition Article
at the end of the New Bylaws.
What follows are descriptions of what the Committee believes to be
the most important provisions of the New Bylaws:
A. ICANN's Mission
The final recommendations for the text of ICANN's Mission and Core
Values may be found in Article
I of the New Bylaws. The basic structure and substance have remained
largely unchanged from the
Blueprint. The most significant difference is the substitution
of the phrase "reasonably and appropriately related" for
the word "necessary" in the part of the Mission Statement
relating to policy development. For the reasons set forth in some
detail in the First Interim Implementation Report (ERC-1), the
ERC concluded that "necessary" was not the appropriate limiting
phrase, and suggested the substitution noted, asking for community
reaction. There has been very little response to this request, leading
the ERC to conclude that this change, while not perfect even in the
view of the ERC, is both acceptable and satisfactory, so it remains
in the final recommendations and has been incorporated into the New
Incorporating concepts into bylaws requires taking account of a variety
of considerations, which are reflected and discussed throughout this
Report. Language must be carefully reviewed and adjusted as necessary
to fit bylaws requirements, and to reduce ambiguity wherever possible.
In addition, language is frequently not self-executing, and provisions
must sometimes be added to describe how the bylaws language will or
should be applied. One illustration of this is found in the last paragraph
2 of Article I of the New Bylaws.
It should also be noted that the Mission
Statement speaks generally of "coordinating" unique
identifiers (domain names, IP addresses and AS numbers, and protocol
port and parameter numbers). The means of coordination differs for
different types of identifiers; this makes "one size fits all"
approaches inappropriate. To accommodate the different means of coordination,
the New Bylaws continue the use of separate Supporting Organizations
for different types of identifiers, and differentiate among them based
on their circumstances. In the case of protocol port and parameter
numbers, experience has shown that ICANN's role differs significantly
from its role with respect to the operation of the domain name system
and unicast IP address assignment, and should continue to be covered
by a separate agreement (ICANN's Memorandum of Understanding with
the Internet Engineering Task Force Concerning the Technical Work
of the Internet Assigned Numbers Authority (RFC
2860)). Under this arrangement there is no need to maintain a
Supporting Organization for protocol issues. The technical guidance
function of the original Protocol Supporting Organization is adequately
covered by the proposed
Technical Advisory Committee.
B. Board of Directors
Composition and Selection. The relevant provisions of the
New Bylaws are found in Article
VI. They follow the structure set forth in the Blueprint:
- 8 Directors selected by the Nominating Committee
- 2 Directors selected by each of the three Supporting Organizations
- The President of ICANN as an ex officio Director
forth in the Second Interim Implementation Report (ERC-2) and
detailed in Section
9 of Article VI, we recommend that there be 6 non-voting liaisons
to the Board, rather than the 5 recommended in the Blueprint. The
sixth is the result of our recommendation to create an At
Large Advisory Committee, following the directive
of the ICANN Board in its resolution adopting the Blueprint, which
we believe should also provide a non-voting liaison to the Board.
Terms. We continue the recommendation in the Blueprint that
the voting members of the Board should serve three-year terms. With
respect to the non-voting liaisons, we have modified the Blueprint
recommendation of three-year terms, and we now recommend that those
liaisons serve one-year terms, subject to reappointment. This will
provide those bodies with added flexibility in allocating the responsibilities
of their various members.
The New Bylaws no longer provide that a Director selected by a Supporting
Organization can be removed by that Supporting Organization. Since
the Directors selected by the Nominating Committee should obviously
not be subject to removal by that group, and because in any event
Directors once seated have a fiduciary obligation to act in the best
interests of ICANN and not just the group that selected them, the
New Bylaws provide that all Directors, however selected, can be removed
only by a three-fourths (3/4) vote of all Directors.
Qualifications. We continue to recommend that Directors should
meet specific criteria, found in the New Bylaws in Sections
3 and 4 of Article VI, and that geographical, cultural, and other
diversity factors must be incorporated wherever possible, as set forth
in both Section
2 and Section
5 of Article VI. These criteria apply by their terms to all Directors,
whether selected by the Nominating Committee or by the Supporting
C. Supporting Organizations
We continue to recommend the creation of three Supporting Organizations:
the Generic Names Supporting Organization (GNSO), the Country Code
Names Supporting Organization (ccNSO), and the Address Supporting
Organization (ASO). The only change from the Blueprint is in the name
of the ccNSO, which results from community comments. The relevant
provisions of the New Bylaws are Article
VIII (ASO), Article
IX (ccNSO), and Article
The ERC has appointed
an Assistance Group to help in the development of detailed recommendations
on the structure and operations of the ccNSO. This Group has not yet
provided its recommendations, and thus Article
IX of the New Bylaws is blank, awaiting those recommendations.
In addition, the ERC continues to discuss with the RIRs various aspects
of their relationship with ICANN. Pending the conclusion of those
discussions, the New Bylaws basically repeat the current bylaws provisions
relating to the ASO.
We also recommend that funded ICANN staff assistance be made available
to each of the Supporting Organizations (and Advisory Committees)
to facilitate effective performance. This is reflected for the GNSO
4 of Article X. It is anticipated that a similar provision will
be included for the ccNSO in Article
IX after the ccNSO completes its recommendations. The RIRs, which
along with ICANN jointly formed the ASO in October 1999 according
to a Memorandum
of Understanding, have indicated that they may wish to continue
providing for the ASO secretariat through in-kind designation of RIR
personnel; if a Supporting Organization wishes to obtain staff assistance
by means other than ICANN funding, of course it should be allowed
to do so.
GNSO. We reaffirm our recommendation
in the Blueprint that the GNSO should initially be composed of
the following six constituencies:
- the gTLD registries constituency
- the gTLD registrars constituency
- the ISP constituency
- the business users constituency
- the intellectual property constituency
- the non-commercial users constituency
We also recommend that new constituencies be recognized upon a proper
showing that (1) the addition of the constituency would improve
the ability of the GNSO to carry out its policy development responsibilities
and (2) that the proposed new constituency would adequately represent
the interests, on a global basis, of the stakeholders it seeks to
represent. The relevant New Bylaw provision is found in Section
5.3 of Article X.
We recommend that the business of the GNSO be managed by a GNSO Council
that is composed initially of three representatives of each of the
six constituencies listed above, and three voting members selected
by the Nominating Committee. All would serve renewable two-year terms.
The designation of three representatives from each constituency would
be specified as a term of the Transition Article (not included in
the attached, but to be adopted at the 2002 annual meeting), which
would apply until the 2003 annual meeting. The ERC believes that the
large size of the GNSO Council (21 members) required by the having
three representatives from each constituency will significantly hamper
the effective operation of the GNSO Council. At the end of the first
year of operation of the GNSO, we recommend that the Board review
this issue, and absent strong evidence that the existing structure
is functioning effectively, allow the transition to expire and revert
to a GNSO Council composed of two representatives of each recognized
constituency. See Section
3 of Article X.
In addition to the voting members described above, we recommend that
the GAC be permitted to appoint a non-voting liaison to the GNSO Council
if it believes such would be appropriate and desirable. See Section
3.1 of Article X of the New Bylaws.
A significant change from the Blueprint is the exact form of balance
sought on the GNSO Council. The Blueprint sought to achieve balance,
in the form of equal voting power, between providers and users. This
balance was thought desirable to encourage and create incentives for
the development of consensus whenever possible. Based on community
comments received (and noting that this is a matter of heated debate),
the ERC has become convinced that the more appropriate balance is
between those constituencies representing entities under contract
to ICANN, and those constituencies representing all others, for the
set forth in detail in ERC-2. Thus, we recommend that voting on
the GNSO Council be equalized so that the gTLD registry and registrar
constituencies are allocated the same number of votes in the aggregate
as the four other initial constituencies collectively have. We recommend
that this be accomplished by allocating two votes to each of the gTLD
registry and registrar representatives on the GNSO Council, and one
vote to each of the representatives of the other four constituencies.
If and when any new constituencies are added or subtracted, these
allocations would be adjusted to maintain the balance between those
constituencies representing entities under contract and all others.
The ERC believes that this balance, augmented by the presence on the
GNSO Council of three Nominating Committee selections without any
real or perceived obligations to any particular constituency, will
improve the opportunity for the development of consensus policy positions
by the GNSO Council. The relevant section in the New Bylaws is Section
5.2 of Article X.
The Blueprint recommended that the GNSO General Assembly be a cross-constituency
meeting place, chaired by a member of the GNSO Council, and not be
a forum for making decisions or recommendations, or taking formal
positions. There is no apparent enthusiasm for this recommendation
from the GNSO constituencies, without whose active cooperation it
could not function in the manner contemplated by the Blueprint. Therefore,
the ERC recommends that in the steady-state future there be no GNSO
General Assembly. The purpose of communication among the broader community
that it has served to date can be absorbed by the At Large Advisory
Committee recommended in this Report. Until such time as the ALAC
is able to function effectively, we recommend that the GNSO Council
manage a moderated mailing list open to all for discussion of names
Finally, the Blueprint recommended that the proposed GNSO (including
the structure and operation of its Council) should be reviewed by
an entity independent of either after one year of experience under
the new structure. This recommendation has subsequently been generalized,
as set forth in Section
4 of Article IV.
ccNSO. As noted above, Article
IX concerning the ccNSO has not yet been drafted. After the ccNSO
assistance group [click
here for progress report] makes recommendations and they have
undergone public comment and discussion, an appropriate article will
ASO. We recommend that the current ASO
structure and operations, as set forth in the Memorandum of Understanding
between ICANN and various regional Internet address registries, remain
unchanged. We believe that it would be appropriate for the Address
Council to have a non-voting liaison designated by the Governmental
Advisory Committee, but discussions on this topic are still ongoing
with the RIRs. The RIRs have raised other concerns with, and proposed
other changes regarding, the role of the ASO, which should be the
topic of continuing discussions.
D. Advisory Committees
As noted earlier, we recommend that there should be the four
standing Advisory Committees recommended in the Blueprint (the
Government Advisory Committee, the Technical Advisory Committee, the
Root Server System Advisory Committee, and the Security and Stability
The ERC has prepared a carefully
limited charter for the Technical Advisory Committee (which does
not presently exist) based on input from the bodies to be included
in that committee. It is important to note that the Technical Advisory
Committee will have no role whatsoever in connection with the IANA's
work for the IAB/IETF/IRTF. The Technical Advisory Committee has been
painstakingly designed to accommodate numerous, differing views as
to what structure will best contribute to its limited purpose.
In addition, we recommend the creation
of an At Large Advisory Committee to provide a vehicle for structured
involvement and informed participation of the global individual user
community in ICANN and the ICANN policy development process. The relevant
provisions of the New Bylaws with respect to Advisory Committees are
found in Article
XI. The New Bylaws provisions relating to the At Large Advisory
Committee may be found in Section
2.5 of Article XI.
E. Nominating Committee
We remain persuaded that a broad-based Nominating Committee is the
preferred way to select a majority of the ICANN Board. The specific
provisions of the New Bylaws dealing with the Nominating Committee
can be found in Article
Composition and Selection. The Blueprint recommended a Nominating
Committee composed of 19 voting members, a non-voting Chair appointed
by the Board, and non-voting liaisons from the RSSAC and the SAC.
Four of the 19 voting members were designated to be "unaffiliated
public interest persons" and one was to be selected by "individual
domain name holders." In addition, one delegate was to be selected
by small business users and one delegate by large business users,
and one by the IAB/IETF. The ERC's current recommendations differ
from the Blueprint in the following ways:
1. The addition of the previous year's Chair as a non-voting member,
to improve continuity.
2. The replacement of the one "unaffiliated public interest"
and the four "individual domain name holders" delegates
with five delegates ultimately to be selected by the At Large Advisory
Committee once it becomes fully operational. Section
2.5 of Article VII provides that, in the steady state, these
five delegates will be selected by the ALAC; the Transition Article
(to be adopted at the early-December annual meeting) will set forth
selection procedures in the interim until the At Large Advisory
Committee goes into full operation and has shown that it can function
3. The change from IAB/IETF to simply Internet Engineering Task
Force selection of one delegate.
4. The selection of both the small and large business users delegates
by the Business User Constituency of the GNSO, because it includes
both categories in its membership and is a practical initial solution.
We have indicated that we are uncertain how the "academic and
other public entities" delegate should be selected, and are seeking
input on that issue. Until this is clarified we do not recommend including
such a delegate. We recommend that the "consumer and civil society
groups" delegate be selected by the Non-commercial Users Constituency
of the GNSO.
Terms. We reaffirm our recommendation in the Blueprint that
Nominating Committee members should serve one-year terms, renewable
for at most one additional one-year term. The details can be found
3 of Article VII of the New Bylaws.
4. Policy and Process
The ERC reaffirms the discussion of these topics in the Blueprint.
The specific application of these principles to the work of ICANN so
far articulated may be found in the provisions of the New Bylaws relating
to the Policy Development Process in the GNSO, set forth in Section
6 of Article X and Annex
A, which largely track the recommendations
of the Assistance Group on this subject.
5. Transparency and Accountability
The New Bylaws provide many mechanisms to ensure that ICANN operates
transparently, with participation by all with interest in its actions,
and that the ICANN structure and operations are accountable to the broad
Internet community. The primary ways in which this occurs are in the
selection of Directors (through a distributed process reflecting the
variety of stakeholders in ICANN), in the operation of ICANN's policy
development bodies, and in the various advisory committees that provide
input from specific sectors of the ICANN community. But in addition
to the basic structure of ICANN, the New Bylaws provide several additional
provisions for transparency, accountability, and general fairness in
carrying out ICANN's mission.
III of the New Bylaws retains, and elaborates upon, the general
obligation of ICANN to operate transparently to the maximum extent feasible.
Ombudsman. The New Bylaws set forth
a requirement for the creation of an Office of Ombudsman in Article
V. The structure and operational rules largely track the recommendations
of the Assistance Group on this subject. One addition is found in
4.5 of Article V, which specifically prohibits the Ombudsman from
assisting in any way any legal actions against ICANN or its constituent
bodies. The Ombudsman is an independent part of ICANN, and the role
of the Ombudsman does not include litigating, or assisting in litigating,
against other parts of ICANN.
Public Participation. The
Blueprint advocates that there be a Manager of Public Participation
(or equivalent title) to actively manage, ensure, and enhance the means
of soliciting and presenting public input and comment. We continue to
support this concept and recommend it to the Board, as set forth in
3 of Article III.
Reconsideration. The Reconsideration
Policy can be found in the New Bylaws at Section
2 of Article IV. It largely tracks the recommendations
of the Assistance Group on this subject.
Infringements of Bylaws and Articles of Incorporation. These issues
are the subject of the Independent Review Process, found in Section
3 of Article IV. It largely tracks the recommendations
of the Assistance Group on this subject.
The Independent Review Process recommended in these New Bylaws is not
the "Supreme Court of ICANN" that some in the community have
urged. We do not believe that such a body would add value or effectiveness
to the structures and procedures that are recommended, and it would
clearly add another layer of governance to a system for which a significant
goal of reform has been to reduce overreaching process and increase
effectiveness. As have been discussed in numerous forums during and
before this reform process, such a "Supreme Court," with the
power to revisit and potentially reverse or vacate decisions of the
ICANN Board, would itself raise many difficult questions, such as: (1) how
the members of this body would be appointed; (2) to whom or what
this body would be accountable; and (3) pursuant to what review
criteria would this body act?
Considering the intense debates surrounding the process for selection
of the ICANN Board, it is hard to imagine that the process for determining
how a "Supreme Court of ICANN" would be populated, or the
definition of the scope of its powers, would be less contentious. We
believe that the ICANN Board envisioned in the New Bylaws, including
members appointed by the Nominating Committee, is broadly representative
of the entire range of ICANN stakeholders, and is thus the most appropriate
body to make final decisions on ICANN policies, within the scope of
the mission also set forth in those New Bylaws. Thus, the IRP recommended
in the New Bylaws is focused on claims that the Board has acted inconsistently
with the New Bylaws.
Periodic Review. We recommend,
4 of Article IV, that every ICANN constituent body undergo independent
review of its structure and operations every three years. This is intended
to recognize the rapidly changing environment in which ICANN operates,
and to reduce the risk of bureaucratic inertia resulting in reduced
effectiveness and reduced accountability.
6. Government Participation
recommended that the GAC (a) appoint a non-voting liaison to
the Board, (b) appoint one voting delegate to the Nominating Committee,
and (c) appoint non-voting liaisons to each of the SO Councils
and to the RSSAC, the TAC, and the SAC. (To this list we have added
the ALAC.) These liaisons could be either members or non-members of
the GAC, with sufficient expertise to participate effectively in each
body. Each of these recommendations has been affirmed in the New Bylaws,
and can respectively be found in Section
1 of Article VI (Board liaison), Section
2 of Article VII (Nominating Committee), and Section
2.1 (g) of Article XI (Advisory Committee liaisons).
suggested that the way to provide the funding required to support
the activities of ICANN would be to provide that 25 cents of the price
paid for each domain name registered in those domain name registries
that have entered into agreements with ICANN be earmarked as direct
funding for ICANN. The ERC, based on an analysis presented by the President,
now believes this figure is higher than required to achieve the necessary
goals. In the steady state, a maximum passthrough equivalent to 17 cents
per domain name should suffice to cover operational requirements, including
the additional costs implied by the proposed reform activities (estimated
to require the addition of 7 FTEs to the ICANN staff). This number should,
in our view, be appropriately restated every year to ensure that the
total revenue to ICANN does not increase, except for inflationary reasons,
as the number of applicable domain names grows (unless otherwise justified
and approved as part of the annual budgetary cycle). By comparison,
the current ICANN budget provides for a passthrough of approximately
13 cents per domain name. In addition, the ERC recommends that the passthrough
be increased an additional 3 cents per domain name (to a total of 20
cents) until such time as ICANN's audited unrestricted reserves rise
to the level of one year's operating costs, following which this additional
amount should be discontinued. We note that other funding sources, such
as voluntary contributions from ccTLDs not under agreement, may also
contribute to the rise in these reserves.
Details on funding of the transition depend on the transition plan
itself, and will be included with the transition recommendations to
be posted separately. There is reason to believe that any transition
costs that would occur in the current 2002-2003 fiscal year could be
funded out of the current budget, given the fact that staff hiring is
occurring at a slower than budgeted rate, and the time it would take
to recruit the new "reform" positions.
The recommendations contained in the attached New Bylaws, and described
in this Final Implementation Report and Recommendations are the product
of an extraordinary amount of effort by a very large number of people.
This Committee has had the privilege to be the scribe, but the ideas
and concepts reflected here are largely the work of the community acting
as a Committee of the Whole, to use a legislative analogy. As has been
noted many times previously, developing global consensus is a very difficult
task, whether it is on names policies or the precise words of bylaws.
We have done our best to synthesize the diverse positions advanced by
the community into what we believe will be a truly workable ICANN, able
to put behind it the growing pains of the last four years and move forward
effectively to deal with the complex issues that lie within the scope
of its narrow but important mission.
With this, we recommend to the ICANN Board of Directors the adoption
of the attached
New Bylaws as a complete substitute for the existing ICANN Bylaws.
Committee on ICANN Evolution and Reform
2 October 2002
1. While these recommendations in most respects represent
the conclusions of the ERC, taking into account the very considerable
thought and effort noted above, and should be thus be considered its final
recommendations, there are still some areas where work remains to be done.
In addition, it can be expected that there may be additional inputs as
a result of review of these recommendations that would call for some slight
modifications. Thus, the ERC is likely to augment these recommendations
on one or more occasions prior to the Shanghai meeting; we anticipate
that any modifications that are recommended are likely to be relatively
minor, with the exception of the areas noted in this Report where significant
substantive work remains to be done.
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