[Comment-Dnso] Individuals in DNSO Constituencies

["Bret A. Fausett" <baf@fausett.com>]

To:     The ICANN Board
From:   Bret Fausett
Re:     Individual Domain Name Holders
        and the Constituency Process

I would like the Board to consider the following comment in connection 
with its discussion on the approval of the Non-Commercial Domain Name 
Holders Constituency and any decision on the Individual Domain Name 
Holders Constituency. 

A perfect avenue for individual domain name holders to let their 
interests be known would be through participation in the constituencies 
with which they are naturally allied. Individuals using their domain name 
for commercial purposes could participate in the Business and Commercial 
Constituency, individuals using the domain for non-commercial purposes 
could participate in the Non-Commercial Constituency, and individuals who 
have interests in the interface between their registered domain and 
trademark law could participate in the Intellectual Property Constituency.

The ICANN Board recognized the value of such of a scheme in Singapore. In 
a Board resolution, it wrote: "Individual domain name holders should be 
able to participate in constituencies for which they qualify." (See, 
http://www.icann.org/dnso-formation.html). Unfortunately, all of the 
constituency proposals accepted by the Board to date have disallowed 
participation by individual domain name holders. 

The obvious point of the "for which they qualify" language seemed to be 
the preclusion of individual participation in the gTLD, ccTLD and 
Registrar constituencies, which historically have been, and are at the 
present time, based on corporate/organizational models. But as the Board 
resolution has been implemented, individuals have been artificially 
barred from the commercial, non-commercial and trademark groups. This is 
an "artificial," and false, distinction because individuals can operate 
for-profit enterprises (in the U.S., it's a recognized organizational 
form called a "sole proprietorship"), they frequently engage in 
non-profit endeavors, and they can register trademarks and gain trademark 
rights in names and phrases.

At best, the constituency drafters who submitted the successful interim 
constituency applications overlooked or undervalued the individual domain 
name holder in their organizational effort. The success of the IDNO and 
the intense interest that the rights of individual domain name holders 
have drawn on various public mailing lists illustrate, however, that as 
the ICANN Board contemplated in Singapore, individual domain name holders 
should be full, equal participants in the DNSO constituencies "for which 
they qualify." At a minimum, they are "qualified" to participate in the 
commercial, non-commercial, and trademark constituencies. 

All of the Board's recognitions to date are provisional. ICANN could 
rectify the exclusion of individuals by forcing all constituencies to 
open up their membership to qualified individual domain name holders in 
order to receive formal, permanent recognition. If this is done, 
individuals should be admitted to the constituencies sufficiently prior 
to Names Council elections to allow for meaningful participation in the 
voting and election process.

Short of such a measure though, the only way for ICANN to give life to 
the resolution from the Singapore meeting ("Individual domain name 
holders should be able to participate in constituencies for which they 
qualify") is to recognize the IDNO at the Santiago meeting. I hope it 
does one of the these two things. 

      -- Bret Fausett