Comments on Draft DNSO Amendment to ICANN Bylaws

[Michael Sondow <msondow@iciiu.org>]

Comments on Draft DNSO Amendment to ICANN Bylaws:


Article VI-B, Section 2(g) reads: "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."

FAQ 8 states further: "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)."

Nevertheless, it is too much power for one person to sit on both the
Names Council and the ICANN Board, as will surely occur if there
isn't any provision discouraging it. Saying that Board Directors
should serve in the best interests of the Corporation is just
wishful thinking; they will serve first and foremost in their own
interests, then in the interests of their constituency, and only
then perhaps in the interests of others. Your bylaws Article VI-B,
Section 2(e) gives the Names Council the power to choose the DNSO's
three Directors; they will end up choosing themselves, regardless of
nominations originating with the General Assembly; and this is
neither democratic, nor just, nor in the best interests of the NewCo
or the Internet.

Furthermore, when I submitted a comment about this danger to members
of the Board it seemed to be well received. Subsequently, I had a
difference of agreement with a staff member - Andrew McLaughlin -
who I believe has been involved in drafting these new bylaws
concerning the DNSO. I can't help thinking that my disagreement with
him has been the cause of seeing the exact opposite of what I
recommended to the Board confirmed in the bylaws. It would be a
shame, and a sad thing for this process, if it were true.
..................................

Article VI-B, Section 2(i) says: "The NC shall elect the Chairman of
the GA annually." Why may not the General Assembly elect its own
chairman? Haven't you given enough power to the Names Council
already, in providing that they choose the ICANN Board Directors
allocated to the DNSO and can elect themselves to those positions,
without giving them also the power to chair, and thereby control,
the General Assembly? This is what the BMW draft wanted. But there
was a Paris draft, too, and a CENTR compromise draft. How can you
justify incorporating all that the BMW wanted, rather than a
compromise between the two drafts, as you were asked to do, and as
you said you would do?

Your own FAQ 4, "How exactly will the General Assembly function?",
says that "in keeping with the bottom-up nature of the organization,
they [the details of the General Assembly operation] should at least
initially be the product of interaction among those most directly
involved." Do you think that giving the Names Council control of the
General Assembly as well as electoral control over the DNSO's Board
seats, which they themselves can fill, is an example of "bottom-up"
organization?
................................

Article VI-B, Section3(d) says: "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."

This is excessive, and goes against the consensus of both the BMW
and Paris drafts that Constituencies are not limited to the original
ones and that they should be self-forming. Why should some unnamed
staff person have the power to decide whether or not a new
constituency is to be considered by the Board? Isn't a simple
petition from a group desirous of forming a new constituency
sufficient to put its acceptance on the table?
.....................................

Please permit me to point out once again (I submitted this note to
the comment-so list last week) that my proposal for a DNSO
Membership Committee (appended below) was accepted by both the Paris
and BMW drafts (you have only to read them to see that I am telling
the truth), and that it was left off the CENTR consensus document in
Singapore by mere inadvertence under the pressures of the day. 

Such a DNSO Membership Committee as I propose is an important
adjunct to the present DNSO Principles and especially to the
provisions regarding constituencies as it helps to ensure that they
remain open to new members. I had hoped that, since it's inclusion
was agreed upon by a consensus of all parties in the formation of
the DNSO, you would add it to the final DNSO document. I urge you to
do so now.
................................

Lastly, FAQ 5 says: "The staff will arrange meeting space in Berlin
for any constituencies-in-formation requesting it in advance." The
ICIIU formally requests such meeting space, if the Non-Commercial
Domain Name Holders constituency has not yet been formed and has not
yet chosen its Names Council members by the time of the Berlin
meeting.
.............................................................


Proposal for a DNSO Membership Committee.

A Membership Committee of the DNSO shall be formed, comprised of one
member of the Names Council, who will also act as the Committee's
Chairman and report on Committee activities to the Names Council,
and one member of each of the Constituencies. The Membership
Committee's function will be to review applications for voting
membership in the DNSO.

The Names Council member of the Membership Committee will act to
assure that all applicants for membership in the DNSO fulfill the
minimum criteria for membership in the DNSO, for example that they
possess a domain name (if that is so decided). The other Committee
members will act to assure that applicants have applied with the
appropriate Constitutencies, and that they fulfill the
Constituencies' minimum requirements for membership.

The Committee will circulate applications for membership among its
members, or otherwise perform its function, with as little
expenditure of time and effort as possible and by employing
Internet-base communications. It is understood that the Committee's
function is to include in the DNSO as many entities with an interest
in domain names as possible, rather than to exclude any entities or
parties by devising restrictive practices or by exerting personal
prejudice, and that cases of rejection of an application for
membership in the DNSO will be unusual, the onus of defending such
rejections bearing on the Committee. There will furthermore be no
investigation of applicants beyond the ascertainment of their
personal identity, nor any other measures restrictive to individual
freedom and the right to privacy.
......................................................................

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