DNSO Review Report Version 2.0a**
For DNSO Public Comment
I. Background and Overview of DNSO Review Process1
Requested at the ICANN Board meeting in Yokohama, Japan, July 2000,2 the objectives of the DNSO Review are:
To facilitate the DNSO review, the Names Council established a Task Force,3 consisting of one representative from each Constituency and the Chair of the General Assembly. The Task Force's responsibility is to oversee the review, receive comments and prepare the draft reports. The first job of the Task Force was to prepare a questionnaire4 to begin the review process. The purpose of the questionnaire was to identify questions and solicit discussion on issues pertaining to the DNSO, including its responsibilities of the organization, and structure. In addition to the Task Force, the DNSO Review Working Group5 was established with the mandate to assist with outreach in the extended time period of the review process.
The Task Force finalized the DNSO Review Questionnaire following discussion on the 21 September 2000 Names Council call. The Questionnaire was sent to all Task Force representatives on 29 September 2000,6 with the request that each Task Force representative coordinate input from their respective constituency, and the General Assembly, by 9 October 2000.7 The review process was delayed due to other issues requiring attention within the DNSO.8 The new time-line for completion of the review was discussed at the Marina del Rey Names Council Meeting, and finalized shortly thereafter, for 10 January 2001. This time-line was extended again to January 15th in order to accommodate the schedule of the DNSO Review Working Group.9
Comments received are annexed to this report, and include comments from the Internet Service Provider Constituency, the Intellectual Property Constituency, the gTLD Registry Constituency, the NCC AdCom, the DNSO Review Working Group, and members of the Registrar Constituency, the General Assembly and the Non-Commercial Constituency. Additionally, several individuals involved in the DNSO process submitted comments, and several articles addressing the DNSO process provided additional input.10
The draft DNSO Review Report prepared by the Task Force was discussed at the January 24th Names Council conference call. Names Council comments were incorporated into this draft, which is now posted for DNSO public comment. Following DNSO public comment, the DNSO Review Report will be forwarded to the ICANN Board for its review and public comment period.
The DNSO11 of ICANN has the responsibility of advising the ICANN Board with respect to policy issues relating to the domain name system.12 Additionally, the Board can refer proposals for substantive policies regarding the domain name system to the DNSO for initial consideration and recommendation to the Board.13
The DNSO was formally established in March 1999 as one of ICANN's three Supporting Organizations.14 Since its establishment it has undergone tremendous growth in both membership of stakeholders and geographic representation. [To be added: statistics from each Constituency and General Assembly].
Since its formation, the DNSO has made three recommendations for policies to the ICANN Board involving dispute resolution,15 new top-level domains, and famous trademarks,16 and chosen four directors to the ICANN Board through two sets of elections.17
III. Issues identified and commented upon during Review Process
The structure of the DNSO defines responsibilities for the respective components of the DNSO, namely the Names Council, Constituencies, General Assembly, Working Groups, and the relationship among them. The constituency-based structure was the result of numerous discussions during the establishment of the DNSO.18 While the DNSO has fulfilled many of its responsibilities, review of its structure and instilling some procedures may help the DNSO's ability to address issues brought to its attention by the Names Council, and improve responsiveness where input is sought.19
Names Council recommendations incorporating Working Group outcomes try to accommodate strong interests for specific outcomes and divergent interests.20 Generally, comments received noted that while the DNSO had a difficult task with some recommendations due to the contentiousness of the issues, it performed fairly well under the circumstances, and recommendations have been clearly referenced in ICANN Board decisions.21 However, there is clearly room for improvement in the DNSO process to provide recommendations.22
In sum, comments reflected that the DNSO can perform better and the method for establishing consensus within the DNSO must be improved.23
Recommendation: [Suggestion: The overall performance of the DNSO, both structurally and procedurally, to improve substantive input to the overall ICANN process can be improved. Perhaps further study to find ways to include expertise for the purposes of solving problems or issues the DNSO addresses, improve management of the consensus process.]
The seven constituencies within the DNSO represent a wide range of stakeholders. The constituency memberships are divers [GET EXACT NUMBERS FROM EACH CONSTITUENCY], and their structures differ [GET STRUCTURE FROM EACH CONSTITUENCY]. Each constituency has the same number of seats on the Names Council.24
Involvement in constituencies, and between constituencies, is challenged by the voluntary nature of participation and the need to balance participation with other daily commitments. Review discussions25 on constituencies highlighted two areas regarding constituencies. First, representation and procedures within a constituency; second, overlap of constituencies and whether all stakeholders are represented with the current numbers of constituencies.
As noted above, the structures of constituencies differ with some constituencies having very hierarchical structures and others less so. Comments reflected that there is considerable overlap between some constituencies.26 Structural changes included ensuring greater commonality in constituency structures and procedures, including common standards and practices within constituencies on determining the 'position of a constituency' as opposed to statements made by some members of a constituency, on behalf of the constituency, without members given opportunity for input.27
The overall question of the correct division of constituencies,28 and ensuring that stakeholders are sufficiently represented raises the question on what alternatives would exist and if they would be any better.29
The role of constituencies and representation, and overlap, was also reflected in discussions on establishing an 'Individual Domain Name Holders Constituency'. It also arose with regards to the ccTLDs, and their statement at the Marina del Rey ICANN Board Meeting on establishing a separate ccTLD Supporting Organization.30 Comments received indicated strong support for andIndividual Domain Name Holders/Owners Constituency.31 (See section C.)
Recommendation: [Suggestion: The communications within constituencies, and between constituencies on the NC, should be improved. Study of constituency structures, and whether establishing consistency between Constituencies internal structure is beneficial.
The NC and the Board should also establish a means of communicating, to ensure that the NC is consulted on an ongoing basis, and DNSO input can be constructive. This can only be done if the NC takes a stronger leadership role in the DNSO]
Comments received, for example, from the General Assembly and the DNSO Review Working Group;32 reflect that while not all agree with the need for an Individual Domain Name Holders Constituency, there is sufficient support to explore its establishment.33 If a Individual Domain Name Holders Constituency is added, a procedure will need to be established to ensure that it is done in a transparent manner, is representative of its charter, and that the role of the General Assembly, Non-Commercial Constituency, and the At Large is looked at in relation to such a Constituency to prevent overlap.
Recommendation: [Suggestion: recommendation for establishing an individual domain name holder's constituency. Included in the recommendations provisions to ensure an adequate level of participation and representative of the individual domain name holders. Clearly define the membership, which must have broad and international representation. Different models should be looked at to see how best to ensure this, such as provisional recognition for membership.]
The General Assembly of the DNSO is an open forum for participation in the work of the DNSO. The participants are individuals with an interest in participating in the DNSO, and issues pertaining to the areas for which the DNSO has primary responsibility. Participants may also contribute expertise to the work of the DNSO, including work items and participation in working groups.
While the GA has extensive membership [GET EXACT NUMBERS] it appears to be handicapped by having no little participation or authority. How to address the current structural problems to enhance the GA within the DNSO has received much discussion,34 and should be further addressed.35
Recommendation: [Suggestion: If there is an Individual Domain Name Holders constituency, the structure of the GA should be revisited to avoid duplication with the role of the individual constituency. For example, the GA could perform the role of an issue-intake mechanism. This could also be explored even if there is not an individual domain name holder's constituency, as the role of the GA in the DNSO process would then be very important. Recommend that ICANN in its request to the NC on the establishment of an individual constituency, include that the role of the GA should there be an individual constituency be evaluated and recommendations made.]
Working Groups, established by the Names Council, are one mechanism for discussing issues within the DNSO. Working Groups under the current system of an open model are not as effective as they could be.36 Open discussion groups can be valuable in identifying perspectives, educating on the issues, and even identifying areas where perspectives appear to merge. But the make-up of open forums caters towards those who have the time and inclination to show up at any given moment, and are not necessarily in a position to reflect a consensus of the Internet community. It is a balance, with the need for open forums, but recognizing that debate, and even votes,37 should be viewed as valuable intellectual inputs into the consensus development process; but they can not be presumed to be the consensus-development process itself.38
The comments received during the review process noted that there is a need to more strongly enforced Working Group mandates, establish stronger procedures,39 and establish mechanisms for training Working Group chairs to focus on a Working Group's mandate.40 For example, an IETF type consensus-building model could be explored.41
Recommendation: [Suggestion: [Procedures similar to those of the IETF size of working groups? Additionally, use of a smaller group, such as a task force of limited participants form the DNSO should be explored as an alternative to the working group structure. Additional reflection on size of working groups should also occur. For example, should the NC enhance the level of technical or other expertise employed in the consensus-development process by limiting the number of people in a WG. Suggestions have included limiting to three representatives from each constituency.]
The Names Council is responsible for the management of the consensus-building process of the DNSO. The NC consists of representatives selected by each of seven Constituencies. The NC functions via a list serve, regular teleconference calls, and physical meetings in conjunction with ICANN quarterly meetings.
Part of the DNSO review was to determine whether the Names Council is fulfilling its responsibility to steer and manage the DNSO consensus process. Comments observed that the NC's time appears to be dominated by administrative practices, and matters that are more related to its own process than to substantive matters seem to dominate the NC's time. In part, this could be due to the lack of structure and rules for policy formation, in addition to the fact that it is a volunteer body and there is no person (i.e. Secretariat) to help the NC administer the DNSO and keep the timetables on track. Additionally, due to the voluntary nature of the NC, NC representatives often lack personal involvement and commitment to the work of the NC.42
Structurally and procedurally,
the NC needs to develop approaches that will allow for greater
involvement of NC representatives, minimize the amount of subjectivity
and increase the amount of measurable objective criteria in the
consensus-building process. This means, the NC has to be clear
on its mandate and responsibilities, and develop procedures and
timelines to fulfill them. Some comments also observed that it
would be good for the NC to establish better communication with
the ICANN Board Members, as well as with the other SO Councils.
Staffing of the DNSO is important for the overall carrying out of DNSO, Constituency, General Assembly, and Names Council activities. The DNSO has operated almost entirely on volunteer efforts and a line of credit/donation extended to it from AFNIC. As with any organization, a secretariat to oversee administrative issues is central to ensuring the effective functioning of the Names Council and the DNSO.43 Additionally, with constituency secretariats, there may be benefit in making use of potential synergies between the DNSO and respective constituency secretariats.
Recommendation: [Suggestion - Establish a coordination between constituency secretariats themselves, and the DNSO secretariat. Request the NC to provide a recommendation.]
ICANN, its Supporting Organizations, and its Advisory Committees, have international participation that require methods of addressing issues in a multi-cultural, culturally and linguistically sensitive manner. Additionally, efforts have been, and should continue to be made to accommodate all participants, regardless of a participant's time zone and/or ability to technologically or economically participate in the ICANN process.
The DNSO should seek to continue efforts to ensure global participation. Some recommendations to help achieve this objective have been under discussion during the review process.44
Recommendation: [Explore provision for translations to increase international accessibility. Results of assessment should be posted for public comment, including what languages would be translated, and cost of translations for professional or alternative translation services.]
The DNSO requires participation by interested stakeholders in the forums of interest. To ensure participation, methods must exist so that participants from whichever interest group are not overburdened and discouraged from participating.45 In addition to friendly forums, participants should also be able to review materials, have access to translations where possible, and have access to the medium to communicate. In this context, the review process may have identified ways to better the DNSO procedures, enhance Working Group functionality and thereby participation, improve communication among and within Constituencies, and amongst stakeholders.46
Recommendation: [Suggestion: identify specific action items that facilitate increased levels of participation, and address means to fulfill those items if not already being addressed.]
Issues identified in the Working Group, and polled.47
GTLD registry comments: http://www.dnso.org/clubpublic/nc-review/Arc00/msg00083.html
IPC Comments (will be on Task Force Archives)
ISP Comments: http://www.dnso.org/clubpublic/council/Arc04/msg00486.html
General Assembly Comments: [add citation]
DNSO Review Working Group Report, including annexes (some annexes are comments listed separately below): http://www.dnso.org/clubpublic/nc-review/Arc00/msg00086.html; http://www.dnso.org/clubpublic/nc-review/Arc00/msg00087.html.
Non-Commercial AdCom Comments: http://www.dnso.org/clubpublic/council/Arc04/msg00662.html
Other Non-Commercial Comments: Kent Crispin's Comments on the DNSO Review: http://www.dnso.org/wgroups/wg-review/Arc02/msg01428.html; http://www.dnso.org/wgroups/wg-review/Arc02/msg01487.html; http://ncdnhc.peacenet.or.kr/0014.html
MHSC Summary Opinion: http://www.dnso.org/clubpublic/nc-review/Arc00/msg00088.html
European Brands Association (AIM): http://www.dnso.org/clubpublic/nc-review/Arc00/msg00063.html
Jonathan Weinberg's Comments on the DNSO Review: http://www.law.wayne.edu/weinberg/dnso_review.htm
Harald Alverstrand Personal Comments: http://www.dnso.org/clubpublic/ga/Arc05/msg00836.html
Press Announcement of Working Group: http://www.dnso.org/clubpublic/council/Arc04/msg00611.html
Articles of interest to the review process:
David Johnson & Susan Crawford, http://www.icannwatch.org/archives/how2fixicann.htm; http://www.icannwatch.org/archives/essays/967072831.shtml; http://www.icannwatch.org/archives/consensusmodel.htm
Jonathan Weinberg, ICANN and the Problem of L egitimacy, http://www.law.duke.edu/shell/cite.pl?50+Duke+L.+J.+187
* Task Force Members are: Axel Aus der Muhlen, Peter de Blanc, Roger Cochetti, Roberto Gaetano, Hirofumi Hotta, Paul Kane, Youn Jung Park, Theresa Swinehart. The Task Force would like to thank all for their contributions and input into the DNSO Review Process, and looks forward to receiving comments during the public comment periods.
** Version 1.0 discussed on the 24 January 2001 Names Council Call. Comments received incorporated in Version 2.0. Version 2.0a is edited for spelling, sentence and paragraph flow, and some footnotes filled in.
1 An overview of the DNSO Review process' timetable can be found at http://www.dnso.org/wgroups/wg-review/wgreview-history.html. The adjustment in schedule is found at http://www.dnso.org/clubpublic/nc-review/Arc00/msg00078.html.
2 Cite to Pindar Wong's presentation at Yokohama meeting.
3 The NC-Review task force archives can be found at http://www.dnso.org/clubpublic/nc-review/Arc00/maillist.html.
4 The questionnaire raises questions on the DNSO responsibilities, achievements, and its structure, to provide input into the review process. See NC Review 2.0 Circulation for Comment at http://www.dnso.org/clubpublic/nc-review/Arc00/msg00053.html. The questionnaire was forwarded to the General Assembly for input. It was circulated on 29 September 2000 and 4 December 2000. Archived at http://www.dnso.org/clubpublic/nc-review/Arc00/mail2.html.
5 Press Release announcing Working Group charged with 'with actively seeking input from the widest possible set of Internet stakeholders.' http://www.icann.org/announcements/icann-pr21dec00.htm. Schedule for submission of comments revised to accommodate working group, e-mail archived at http://www.dnso.org/clubpublic/nc-review/Arc00/mail2.html. Full archive of the working group discussion is found at http://www.dnso.org/wgroups/wg-review/Arc02/maillist.htm.
7 Comments and discussion on the GA list, e.g., http://www.dnso.org/clubpublic/ga/Arc05/thrd14.html#00836
8 [cite to Marina del Rey Names General Assembly and Names Council meeting, November 2000.
9 http://www.dnso.org/wgroups/wg-review/Arc02/msg02059.html; reminders of the due date were sent on January 6, 2001 to all Constituency representatives, Chair and Co-Chair of the GA, and the Chair of the DNSO Review Working Group, and are archived at http://www.dnso.org/clubpublic/nc-review/Arc00/mail2.html
10 See, Annex II, and e.g., http://www.icannwatch.org/archives/how2fixicann.htm; http://www.icannwatch.org/archives/essays/967072831.shtml; http://www.icannwatch.org/archives/consensusmodel.htm; Jonathan Weinberg, ICANN and the Problem of Legitimacy, http://www.law.duke.edu/shell/cite.pl?50+Duke+L.+J.+187.
12 ICANN Bylaws, Article VI-B, Section I, the DNSO shall a) [ ]advise the Board with respect to policy issues relating to the Domain Name System. b) [ ]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.
13 Subject to the provision of Article III, Section 3, of the ICANN bylaws, the Board shall accept the recommendations of the DNSO if it finds that the recommended policy (1) furthers the purposes of, and is in the best interest of, ICANN; (2) is consistent with ICANN's articles of incorporation 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 the ASO or PSO. Under Article VI, Section 2(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 take actions that the Board finds are necessary or appropriate to further the purposes of the Corporation."
14 The other two Supporting Organizations are the Address Supporting Organization and the Protocol Supporting Organization.
15 Universal Dispute Resolution Policy (UDRP): Working Group A, Names Council's review of Working Group A report, followed by the Names Council recommendation based on the Working Group A's report to the Board and the final adoption by the ICANN Board.
16 New generic Top Level Domains (new gTLDs): Working Group B and C, Names Council review of Working Group B and C's reports, followed by its recommendations to the Board.
17 DNSO ICANN Board Elections: Two elections held: 1) October 1999, choosing three ICANN Board members for 3, 2, 1 years respectively; 2) September 2000, filling the 1 year expired seat.
18 History of the DNSO, http://www.dnso.org
19 E.g., the response to the questionnaire and the DNSO review process required numerous extensions.
20 Crispin's comments to the questionnaire, with support from the NCC, noted that Working Groups A, B, and C, 'tackled some of the most difficult problems that the DNSO will ever have to face, they were tackled as the very first assignment for the new organization, and there was determined opposition to any progress. Given these difficulties, the DNSO has not done too badly. But there is no question that much better outcomes could be easily imagined, and there is also no doubt that the DNSO should learn from this experience.
21 ICANN Report 'Introduction of New Top-Level Domains', section 1-c.
22 Comments by the ISP Constituency to the DNSO Review Committee, 10 October 2000 (attached); gTLD Registry Constituency to the DNSO Review Committee, 15 January 2001, archived at http://www.dnso.org/clubpublic/nc-review/Arc00/mail2.html
23 Some insight into the current efforts, see report on the consensus and process questions http://www.dnso.org/wgroups/wg-review/Arc02/msg01831.html was adopted with 15 yes, 2 no, 4 don't know. The WG adopted the text including the disclaimer about participation levels. While the report attempts to get objective data, it also shows the difficulty of getting widespread objective data.
24 The gTLD Registry Constituency has two vacant seats to be filled by the additional new gTLD Registries.
25 See Annex II, in particular DNSO Review Working Group report annexes 2, 3, 4, on constituencies and whether interests are adequately represented in existing constituency groups. See also ISP and IPC Constituency comments.
26 See Annex II, in particular DNSO Review Working Group annexes 2 and 3.
27 http://www.dnso.org/clubpublic/council/Arc04/maillist.html; http://ncdnhc.peacenet.or.kr/0034.html; http://www.dnso.org/wgroups/wg-review/Arc02/msg02060.html; http://www.dnso.org/wgroups/wg-review/Arc02/msg02070.html.
28 DNSO Review Working Group Report, 15 January 2001, Section 2.2. Despite extensive debate, the Working Group could not could not reach any decisions on the issue of constituencies and the DNSO. http://www.dnso.org/wgroups/wg-review/Arc02/msg02062.html.
29 DNSO Review Working Group report, and annexes 2 (Weinberg) and 3 (Crispin).
30 Cite to Marina del Rey meeting].
31 Individual domain name holders and Internet users, are not represented on the Names Council, nor the Non-Commercial Constituency. But see http://www.dnso.org/clubpublic/nc-review/Arc00/msg00126.html for discussion on accuracy of the statement.
32 Text adopted by the WG on the individuals' constituency question http://www.dnso.org/wgroups/wg-review/Arc02/msg01825.html, adopted by a vote of 17 yes, 1 no, 3 don't know.
33 DNSO Review Working Group Report, 15 January 2001, Section 2.4, and annexes 5 and 7.
34 On Constituencies and the General Assembly http://www.dnso.org/wgroups/wg-review/Arc02/msg01832.html, adopted by a vote of 13 yes, 1 no, 5 don't know.
35 Few comments during the review addressed the General Assembly.
36 See Crispin's comments on Working Groups (DNSO Review Working Group report, annex 20 and 21). Working Groups are additionally challenged by misuse of list-serves, as well as strong interests represented by various participants.
37 See voting results from working group, whereby total number of voters was [ADD NUMBERS] with [ADD] being the same who dominated dialogue in postings. Use of votes in Working Groups is useful for information gathering purposes, but it tends to polarize opinion, and should be used with caution.
38 The gTLD Registry Constituency comments of 15 January 2001. Expertise withdrawing from participation is not unusual due to the enormous list-serve traffic and inappropriate list behavior, thereby leaving only zealots with their own agendas who often have minimal knowledge of the issue, or the entire impact of the debate. Also, http://www.dnso.org/wgroups/wg-review/Arc02/msg02061.html; http://www.dnso.org/wgroups/wg-review/Arc02/msg02064.html
39 IPC, AIPLA, Comments 10 October 2000. http://www.dnso.org/clubpublic/nc-review/Arc00/mail2.html A independent observation, http://www.dnso.org/wgroups/wg-review/Arc02/msg02100.html. There is a need for structure and methodology for managing working groups. Without a definitive, understandable, methodology, it is very difficult to ascertain that the finished product really represents legitimate, broad-based, consensus opinions.
40 Problems have existed with Working Group chairs not keeping the working group focused on its mandate, or actively advocating that a working group ignore the purpose approved by the NC. This inconsistency causes problems to the consensus building process. An example of this was evident in the DNSO Review Working group, which was mandated to specifically ensure outreach in the DNSO review process. See wg-review archives, and specifically notes by NC members to remind chair of deadline and need to adhere to scope of working group mandate. [add cites and urls] http://www.dnso.org/clubpublic/nc-review/Arc00/maillist.html. This working group consisted of [TO BE FILLED IN] number of e-mails [to be filled in] from participants in a period of .. . Analysis of the posts from 1/1 thru 1/6 indicated that there were approx 1275 posts from 58 parties but 79 % (approx 1020 posts) came from just 18 people.] Review of comments show many off-point discussions.
41 For IETF procedures, see http://www.ietf.org; individual suggestion raised in working group http://www.dnso.org/wgroups/wg-review/Arc02/msg01952.html
42 Comments from gTLD Registry and IPC Constituency, as well as DNSO Review Working Group report annexes 2 and 3.
43 Funding and financing of a secretariat, as well as participation in the DNSO for purposes of maintaining list-serves, conference calls, and other matters, requires further attention. See also comments of DNSO Review Working Group and gTLD Registry Constituency.
44 DNSO Review Working Group and DNSO Names Council archives and discussion on translation of materials into multiple languages.
45 See, e.g., for related discussions DNSO Review Working Group Report, Annexes 2, 3, 20 and 21; and ISP and IPC Constituency comments.
47 Preliminary reports are included in the appendices from YJ, including the polling data, as appendices 23 and 24 (CHECK)
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