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 comment-so@icann.org (View comments received).  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 are provided.

1.  Were any substantive changes made in the general powers and responsibilities of the Supporting Organizations as set forth in the original Bylaws?

Some wording changes were made, but they are made for clarity and not intended to cause  any substantive change.

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.

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.

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 created.

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.

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.

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.

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).

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.

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:

1.  The Address Supporting Organization ("ASO");

2.  The Domain Names Supporting Organization ("DNSO"); and

3.  The Protocol Supporting Organization ("PSO").

(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 6.

(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 and VI-C).

(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

[RESERVED]
 
 

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.

(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 entities.

(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.

(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 years.

(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 order):
 

1.  ccTLD registries;

2.  commercial and business entities;

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 interests.

(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.

(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

[RESERVED]