STAFF DRAFT: DNSO AMENDMENTS TO ICANN BYLAWS
March 15, 1999
The following is a staff draft of proposed changes to the ICANN Bylaws
designed to establish the framework for the creation of the three Supporting
Organizations called for in the Bylaws as originally adopted. The
approach set forth in this draft assumes that the Supporting Organizations
will be policy advisory bodies within ICANN, with the additional characteristics
that (1) they each select three Directors of ICANN and (2) there is a presumption
(rebuttable if they fail to meet the criteria set forth in the Bylaws)
that their recommendations will be approved by the Board. If the
approach reflected in this draft is finally adopted, the actions of those
participating would presumably be subject to the insurance and other protections
afforded ICANN officers, directors and employees so long as they were within
the legitimate scope of the Supporting Organization's activities.
This is a staff draft, but it rests on the Board decisions taken in
Singapore and the detailed discussion of many of the concepts adopted and
reflected in the DNSO
Formation Concepts statement adopted by the ICANN Board of Directors
on March 4, 1999. Comments on the draft are welcome, at email@example.com (View
The ICANN Board of Directors plans to vote on this proposal in a special telephone meeting on March 31, 1999.
In order to assist in understanding the Bylaws, the following FAQ's
1. Were any substantive changes made in the general powers and
responsibilities of the Supporting Organizations as set forth in the original
Some wording changes were made, but they are made for clarity and not
intended to cause any substantive change.
2. How are the initial constituencies to be formed?
The assumption is that they will self-form, and will each collectively
decide on membership or participatory criteria and standards. A constituency-based
organization, with no absolute limit on the number of recognized constituencies,
has an inherent tension between the size and scope of each constituency
and the number of constituencies. For example, in the event that
the "commercial and business entities" constituency limits the type or
size of organizations or points of view that can join that constituency,
there will likely be pressure for the formation of a new constituency that
provides a place for those excluded. If, on the other hand,
that constituency allows membership by any entity that applies, it may
become unwieldy and perhaps not even representative in the way originally
contemplated. The staff believes that the way to deal with this tension
is to allow each constituency to make its own determinations on these issues,
and to deal with any extreme or inappropriate limitations on an ad hoc
basis, either in the approval process for each constituency or ultimately
through the recognition of additional constituencies.
3. How will the nomination and election processes be conducted, both
for the representatives of each constituency to the Names Council and for
the ICANN Directors to be selected by the DNSO?
The staff believes that these processes should initially be left to
the constituencies and the Names Council, subject to the ultimate review
and approval by the Board.
4. How exactly will the General Assembly function?
Again, the details of the General Assembly operation should be left
in the first instance to the Names Council, subject to the ultimate review
and approval of the Board. These details are important, but in keeping
with the bottom-up nature of the organization, they should at least initially
be the product of interaction among those most directly involved.
The critical issue at this point is the formation of the initial constituencies
-- some of these other decisions should be deferred until after the
initial constituencies have been formed and a Names Council has been
5. Is there a deadline for constituency formation?
The staff believes that the Board should announce that it will act
on the recognition of initial constituencies and, if possible, the Names
Council and General Assembly at the Berlin meeting in May, and that the
DNSO should begin operation with whatever constituencies have been formed,
recognized and selected representatives to the Names Council by that time.
Obviously, this may result in something less than a full Names Council
complement at the beginning, but given the press of time, it seems desirable
to set artificial deadlines to encourage early action on the formation
of the constituencies. The staff will arrange meeting space in Berlin
for any constituencies-in-formation requesting it in advance.
6. How do the geographic diversity requirements of the ICANN bylaws
apply to the Supporting Organizations?
This is a difficult question for which there is no answer as yet.
The Staff Draft states that no two of the ICANN directors selected by a
Supporting Organization may be from the same geographic region, and that
no two of the Names Council representatives from each constituency should
be from the same geographic region. This may or may not be the optimal
way to deal with this issue, and the staff invites reactions. The
Staff Draft does not resolve the complex problem of how the rules applying
to the At Large members of the Board -- yet to be determined -- will interact
with those applying to the Directors selected by the Supporting Organizations.
Quite frankly, the current Bylaws provisions are probably not practically
workable, but this is a broader question that must be dealt with by the
Board; this Staff Draft simply leaves that issue unresolved.
7. Do all of the procedural provisions (notice and comment, reconsideration,
independent review, etc.) of the ICANN Bylaws automatically apply to the
The Staff Draft specifically provides, in Article VI, Section 3(a),
that the policies and procedures of the Supporting Organizations prevail
over any inconsistent provisions of other articles of the ICANN Bylaws.
This approach recognizes that the Supporting Organizations are different
bodies with different purposes than ICANN itself and that the Supporting
Organizations are each likely to be unique organizations, and allows the
Board and the Supporting Organizations to tailor the appropriate policies
and procedures for each Supporting Organization individually.
8. Are members of the DNSO Names Council eligible for selection by
the DNSO as ICANN Directors?
The Staff Draft does not exclude anyone from eligibility for selection
as a DNSO-designated ICANN Director. Such Directors must be chosen
from among those nominated by the General Assembly, pursuant to procedures
to be determined (and approved by the Board), and must have the majority
support of the Names Council. Since, as is required of all Directors
by Article V, Section 8 of the Bylaws, the Directors selected by
the Supporting Organizations serve as individuals with a duty to act in
the best interests of the Corporation, there seemed no reason to exclude
any person from nomination by the General Assembly or consideration by
the Names Council (other than those excluded by Article V, Section 5).
9. How will the DNSO be funded?
As stated by the Board in its DNSO
Formation Concepts statement, released in Singapore, the DNSO should
be self-supporting and not funded from general ICANN revenues.
10. How will members of the General Assembly or constituencies that
do not agree with the decisions of the Names Council make their voice heard?
First of all, the Names Council is charged, in Article VI-B, Section
2 (b) and Section 2 (c) with making sure that it has in fact heard all
responsible voices on any issue before it acts. Second, Section 4
provides for a General Assembly that is open to "all who are willing to
contribute to the work of the DNSO." Finally, the Board will both
have access to the complete record of all proceedings and comments, and
will not act on any DNSO recommendation that meets the standards of Article
III, Section 3, without following the procedures set forth in that Section.
In combination, these procedures will ensure that all those who want to
be heard on subjects involving the DNSO will have that opportunity.
[The following should be substituted for the entirety of current
Article VI of the current ICANN Bylaws]
NEW ARTICLE VI: SUPPORTING ORGANIZATIONS
Section 1: DESCRIPTION
(a) The Board, by a two-thirds (2/3) vote of all members of the
Board, may create advisory bodies known as Supporting Organizations.
Once created, a Supporting Organization can be disbanded only upon a two-thirds
(2/3) vote of all the members of the Board.
(b) The initial Supporting Organizations shall be the following:
Section 2: RESPONSIBILITIES AND POWERS
(a) Each Supporting Organization shall select Directors to those
seats on the Board designated, pursuant to Section 4 of Article V, to be
filled by that Supporting Organization. No two Directors selected
by any particular Supporting Organization shall be citizens of countries
located in the same Geographic Region, as defined in Article V, Section
Section 3: SUPPORTING ORGANIZATION FORMATION
(b) The Supporting Organizations shall serve as advisory bodies
to the Board, with the primary responsibility for developing and recommending
substantive policies regarding those matters falling within their specific
responsibilities, as described in this Article VI (including VI-A, VI-B
(c) The Board shall refer proposals for substantive policies not
received from a Supporting Organization to the Supporting Organization,
if any, with primary responsibility for the area to which the proposal
relates for initial consideration and recommendation to the Board.
(d) Any recommendation forwarded to the Board by a Supporting
Organization shall be simultaneously transmitted to all other Supporting
Organizations so that each Supporting Organization may comment to the Board
regarding the implications of such a recommendation on activities within
their individual scope of primary responsibility.
(e) Subject to the provisions of Article III, Section 3, the Board
shall accept the recommendations of a Supporting Organization if the Board
finds that the recommended policy (1) furthers the purposes of, and is
in the best interest of, the Corporation; (2) is consistent with the Articles
and Bylaws; (3) was arrived at through fair and open processes (including
participation by representatives of other Supporting Organizations if requested);
and (4) is not reasonably opposed by any other Supporting Organization.
No recommendation of a Supporting Organization shall be adopted unless
the votes in favor of adoption would be sufficient for adoption by the
Board without taking account of either the Directors selected by the Supporting
Organization or their votes.
(f) If the Board declines to accept any such recommendation of
a Supporting Organization, it shall return the recommendation to the Supporting
Organization for further consideration, along with a statement of the reasons
it declines to accept the recommendation. If, after reasonable efforts,
the Board does not receive a recommendation from the Supporting Organization
that it finds meets the standards of Section 2(e) of this Article VI or,
after attempting to mediate any disputes or disagreements between Supporting
Organizations, receives conflicting recommendations from Supporting Organizations,
and the Board finds there is a justification for prompt action, the Board
may initiate, amend or modify and then approve a specific policy.
(g) Nothing in this Section 2 is intended to limit the powers
of the Board or the Corporation to act on matters not within the scope
of primary responsibility of a Supporting Organization or to take actions
that the Board finds are necessary or appropriate to further the purposes
of the Corporation.
(a) The initial Supporting Organizations contemplated by Section
1(b) of this Article VI shall be formed through community consensus, as
reflected in applications or similar proposals to create an initial Supporting
Organization. The Board shall recognize that consensus through the
publication and subsequent adoption, by a two-thirds (2/3) vote of all
members of the Board, of amendments to these Bylaws establishing the Supporting
Organization. Such amendments shall, in the Board's judgment, (1)
be consistent with these Bylaws; (2) ensure that the full range of views
of all interested parties will be fairly and adequately reflected in the
decisions of the Supporting Organization; and (3) serve the purposes of
the Corporation. Upon the adoption of such Bylaw amendments,
the Supporting Organization shall be deemed to exist for purposes of these
Bylaws. Once accepted by the Board through the amendment of these
Bylaws and the failure of the Board to disapprove any subsequent decisions
by the Supporting Organizations or their constituent bodies, the procedures
of the Supporting Organizations shall prevail in the case of any inconsistency
with any other provisions of these Bylaws.
(b) The Board may create additional Supporting Organizations if
it determines, by a two-thirds (2/3) vote of all members of the Board,
that it would serve the purposes of the Corporation. In the event
of a staff recommendation that an additional Supporting Organization should
be created, the Board will post the staff recommendation, including a detailed
explanation of why such action is necessary or desirable, set a reasonable
time for the receipt of public comments, and not make a final decision
to seek the consensus development of such additional Supporting Organization
until it has taken into account all such comments.
NEW ARTICLE VI-A: THE ADDRESS SUPPORTING ORGANIZATION
NEW ARTICLE VI-B: THE DOMAIN NAME SUPPORTING ORGANIZATION
Section 1: DESCRIPTION
(a) The DNSO shall advise the Board with respect to policy issues
relating to top-level domains.
Section 2: THE NAMES COUNCIL
(b) The DNSO shall consist of (i) a Names Council ("NC"), consisting
of representatives of constituencies as described in Section 3 of this
Article VI-B ("Constituencies") elected by those Constituencies and (ii)
a General Assembly ("GA"), consisting of all interested individuals and
(a) The NC will consist of three representatives from each Constituency
recognized by the Board pursuant to the criteria set forth in Section 3
of this Article.
(b) The NC is responsible for the management of the consensus
building process of the DNSO. It shall adopt such procedures and
policies as it sees fit to carry out that responsibility, including the
designation of such research or drafting committees, working groups and
other bodies of the GA as it determines are appropriate to carry out the
substantive work of the DNSO. Such bodies shall include at least
one representative from each recognized Constituency, and shall provide
appropriate means, as determined by the NC, for input and such participation
as is practicable under the circumstances by other interested parties.
Any reports or recommendations presented to the NC by such bodies shall
be simultaneously posted on a website accessible by the public for public
review and comment; absent clear justification, which shall be publicly
stated at the time of any action, the NC shall not act on any report or
recommendation until a reasonable time for public comment has passed and
the NC has reviewed and evaluated all public comments received. The NC
is responsible for ensuring that all responsible views have been heard
and considered prior to a decision by the NC.
(c) Constituencies or others may propose that the NC consider
specific domain name policies or recommendations. If the NC undertakes
consideration of a domain name topic, or if a Constituency so requests,
the NC shall designate one or more research or drafting committees, or
working groups of the GA, as appropriate to evaluate the topic, and shall
set a time frame for the conclusion of the project. Following the
receipt of a report or recommendation from such a body, the NC may accept
the report or recommendation for submission to the Constituencies for comment
and consultation, or return the report or recommendation to the body from
which it originated for further work. After the report or recommendation
is submitted to the Constituencies and the comment period for the Constituencies
has expired, the NC shall evaluate the comments to determine whether there
is a basis for a consensus recommendation to the Board.
(d) If two-thirds (2/3) of the members of the NC determine that
the DNSO process has produced a community consensus, that consensus position
shall be forwarded to the Board as a consensus recommendation, along with
all materials or other information that could reasonably be relevant to
the Board's review of that determination, including (but not limited to)
the dissenting statement(s) of any member(s) of the NC. If more than
one-half (1/2) but less than two-thirds (2/3) of the members of the NC
determine that the DNSO process has produced a community consensus, that
position may be forwarded to the Board as a NC recommendation, along with
statements of majority and minority views, and any separate or dissenting
statement(s) of any member(s) of the NC. Any proposed recommendation
that is not supported by an affirmative vote of one-half (1/2) of the members
of the NC shall be returned to the body from which it originated, or shall
be assigned to a new body, for further work. The NC is responsible
for ensuring that the Board is informed of any significant implementation
or operational concerns expressed by any responsible party.
Section 3: THE CONSTITUENCIES
(e) The NC shall forward to the Board, from among those persons
nominated by the GA, its selection(s) for the Director(s) to fill any open
Board position(s) reserved for the DNSO. Any such selection(s) must
have the affirmative votes of at least one-half (1/2) of all the members
of the NC.
(f) The term of office for each member of the NC shall be two
(g) No more than one officer, director or employee of a corporation
or other organization (including its subsidiaries and affiliates) shall
serve on the NC at any given time. Service as a member of the NC
shall not disqualify a person from being selected by the DNSO as one of
the Directors of the Corporation it is entitled to select.
(h) Meetings of the NC may be held in person, via videoconference
or teleconference, at the discretion of the NC, so long as all members
of the NC participating can speak to and hear one another. Advance
notice of such meetings shall be posted on a website that is available
for public access and, if reasonably practicable, at least 14 days in advance
of the meeting. Except where determined by a majority vote of members of
the NC present that a closed session is appropriate, meetings shall be
open to physical or electronic attendance by all interested persons. The
NC shall post minutes of its meetings to a website that is available for
public access as soon as practicable following the meeting, and no later
than 21 days following the meeting.
(i) The NC shall elect the Chairman of the GA annually.
(j) The NC shall establish, subject to review and approval by
the Board, an appropriate mechanism for review of grievances and/or reconsideration.
(k) [RESERVED FOR CONFLICTS POLICY IF NECESSARY]
(a) Each Constituency shall self-organize, and shall determine
its own criteria for participation, except that no individual or entity
shall be excluded from participation in a Constituency merely because of
participation in another Constituency. The Board shall recognize
a Constituency (including the initial Constituencies described in (b) below)
by a majority vote, whereby the Constituency shall be deemed to exist for
purposes of these Bylaws.
(b) The initial Consituencies shall consist of (in alphabetical
3. gTLD registries;
4. ISP and connectivity providers;
5. non-commercial domain name holders;
6. registrars; and
7. trademark, other intellectual property and anti-counterfeiting
(c) Members of each Constituency shall select three individuals
to represent that Constituency on the NC, no two of which may be citizens
of countries in the same Geographic Region, as defined in Article V, Section
6. Nominations within each Constituency may be made by any member
of the Constituency, but no such member may make more than one nomination
in any single Constituency; provided that this limitation shall not apply
to any Constituency with less than three members.
Section 4: THE GENERAL ASSEMBLY
(d) Any group of individuals or entities may petition the Board
for recognition as a new or separate Constituency. Any such petition
will be posted for public comment pursuant to Article III, Section 3.
The Board may create new Constituencies in response to such a petition,
or on its own motion, if it determines that such action would serve the
purposes of the Corporation. In the event of a staff recommendation
that the Board should recognize a new constituency, the Board shall post
that recommendation, including a detailed explanation of why such action
is necessary or desirable, set a reasonable time for public comment, and
not make a final decision on whether to create such new Constituency until
after reviewing all comments received.
(a) The GA shall be an open forum for participation in the work
of the DNSO, and open to all who are willing to contribute effort to the
work of the DNSO. The participants in the GA should be individuals
who have a knowledge of and an interest in issues pertaining to the areas
for which the DNSO has primary responsibility, and who are willing to contribute
time, effort and expertise to the work of the DNSO, including work item
proposal and development, discussion of work items, draft document preparation,
and participation in research and drafting committees and working groups.
(b) The GA shall meet at least once a year, if possible in conjunction
with regularly scheduled meetings of the Board. To the maximum extent
practicable, all meetings should be available for online attendance as
well as physical attendance.
(c) The costs of GA meetings shall be the responsibility of the
DNSO, which may levy an equitable, cost-based fee on GA attendees to recoup
those costs. There shall be no other fees required to participate
in the GA.
(d) The GA shall nominate, pursuant to procedures adopted by the
NC and approved by the Board, persons to serve on the Board in those seats
reserved for the DNSO.
NEW ARTICLE VI-C: THE PROTOCOL SUPPORTING ORGANIZATION