[Comment-Dnso] NSI comments

["Johnson, David" <DJohnson@Wilmer.COM>]

These comments are submitted on behalf of Don Telage, who had difficulty
posting them directly.

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NSI would urge the Board to use the occasion of considering proposed changes

in the Bylaws to rethink the nature of the constituencies, the role of the

Names Council, and the meaning of consensus.

In Singapore, there was a general consensus (following extensive discussions

in many other fora) on a means of reconciling two very different visions of

the DNSO. One view would have had the Names Council serve as an elected body

that deliberates and makes decisions regarding recommendations to forward to

the ICANN Board. Another view placed emphasis on the General Assembly as an

open body that must reach consensus, and treated constituencies as mutually

exclusive subsets of the GA membership. The compromise called for the Names

Council to facilitate and recognize consensus in the General Assembly, as

well as electing ICANN Board Members nominated by the GA. As the current

text of the Bylaws makes clear, the goal was to reduce any counterproductive

emphasis on zero-sum seat claiming in the NC. The compromise expressly gave

the gTLD constituency three seats even though it currently consisted of only

one member. On express advice from ICANN's counsel, the gTLD selected three

nominees, attempting at the Berlin meeting to use these seats in part to

overcome under-representation in the current constituencies of the

viewpoints of individual domain name holders and of companies that favor the

opening of new TLD registries.

A few loud comments from the audience that could make it in person to the

Berlin meeting hardly constitutes meaningful evidence of a "consensus" on

any particular amendment to the ICANN Bylaws. Bylaw provisions that were

worked out in detail with numerous parties after the Singapore meeting

should not be lightly altered. But, more importantly, so long as the Board

is rethinking the structure of the DNSO, it should carefully consider other

interim evidence suggesting that there are serious problems with the

compromise that was reached in Singapore. 

There is now no adequate means for representation of the interests of

individual domain name holders or of non-commercial interests on the Names

Council. The decision to allow membership in multiple constituencies has led

to domination of the NC and the DNSO by commercial entities who can pay for

active participation by their representatives. The registrar constituency is

dominated by registrars affiliated with one entity (CORE). Few steps have

been taken to create a robust and inclusive General Assembly, much less to

work out the detailed processes that will be needed to reach out to a broad

base of impacted parties and generate and document true consensus for

proposed policies. 

NSI respectfully suggests that the importance of any particular allocation

of seats to any particular parties or constituencies will be dramatically

reduced if the Names Council functions as originally envisioned by the Paris

Draft, and even as contemplated by the Singapore consensus-as a body that

facilitates and recognizes consensus in the General Assembly, rather than

deliberating and voting as if it were a "representative" body. Moreover, the

Names Council would be most certain to include diverse viewpoints-and to

facilitate true dialogue-if it were elected by constituencies formed from

the General Assembly on the basis of a rule that prohibits any GA member

from joining more than one constituency. If the Board adopted such a rule,

there would be no sound reason not to "recognize" any constituency that had

managed to attract the loyalties of at least some stated portion (say, five

percent) of the General Assembly membership, along with other constituencies

(such as registrars and registries) that need to be represented

independently of numerical support in light of their key functional roles. 

The Board has been understandably anxious to allow the DNSO to

"self-organize". But such deference is inappropriate in the context of

decisions regarding the very Bylaws that will either drive the DNSO NC

towards capture or will set it constructively on the path towards developing

and document true consensus among a full range of impacted stakeholders. NSI

urges the Board to act in a timely fashion to eliminate claims of capture

and illegitimacy that will inevitably undermine a Names Council selected on

the basis of artificially designated "constituencies", a NC that does not

represent important stakeholders, and a NC with a "top down" decision-making

structure. It is not too late for the Board to reconsider the question

whether constituencies should, instead, merely serve as a flexible means of

clustering like-minded General Assembly members. It is not too late for the

Board to turn "recognition" of constituencies back to the membership of the

General Assembly themselves. And it is not too late for the Board to make

absolutely clear in its Bylaws that the job of the NC is merely to

administer the GA processes, not to act as if the NC were an elected

legislature with the power to speak authoritatively on behalf of a wider

group.

On the one hand, allocating only one vote on the NC to the registry that now

operates the only TLDs subject to ICANN's policies is absurd. Unless the

operational concerns of the entity that must implement any policy

recommendations of the NC are given greater weight, there will be a serious

risk that unsound policies will be adopted. On the other hand, any

allocation of more than one vote-or a disproportionate number of votes -- to

any constituency would be highly artificial and de-legitimizing if the Names

Council is seen as a decision-making body. The best solution to this

conundrum seems to us to be clear recognition that the decision-making

(consensus-forming) body is the General Assembly, that the Names Council is

merely the facilitating administrator of the GA, and that constituencies

should function as non-overlapping subsets of the GA membership so that all

divergent viewpoints are assured of representation in the planning process

and in the context of selection of ICANN Board members from the DNSO.

Finally, in order that everyone have an opportunity to understand the

rationale for the Board's decision, we urge that the August 12 meeting be
open.