icc comments on dnso draft

Kent Crispin (kent@songbird.com)
Fri, 15 Jan 1999 09:13:30 -0800


The ICC has submitted extensive comments to the DNSO draft. I am
forwarding them to the list in text form. Personally, I think their
comments are *extremely* good -- thoughtful, considered, and
productive. Though the "hour is getting late", the drafting team
will definitely include this material in their work.

Here's their document -- ICC comments are generally in brackets, and
identified.

================================================================
Preliminary ICC comments on the
Barcelona/Monterrey Application to ICANN.

General Observations:

1. The general framework of the Barcelona/Monterey Proposal
(BMP) provides a foundation which can underlie a unified
submission to ICANN. A number of factors need further
fleshing out and certain paragraphs will be the subject of
further discussion.

2. The INTA by-laws proposal may provide some of the needed
details.

3. An ICC text of general principles may also provide a
needed chapeau - or context for the framework.

4. There is a need to review a number of items related to
corporate structure which will have to be clarified by the
ICANN Board.

5. Another major problem, which we encounter, is the
continued circularity in nomination and approval. How to
recognize the initial set of constituency representatives or
Names Council participants remains a critical, and seemingly
unsatisfactorily resolved issue.

6. Lastly, there are categorization and qualification
issues. Where are the cut off lines in the categories and
what are, if any, the minimum qualification for membership,
constituency, names council. How determinative should
factors like geography be? Before getting into any
discussions on numbers, we should develop agreement on the
diverse stakeholder categories or constituencies.

7. Manageable number of members. We are concerned that the
concept of individual memberships could overwhelm the
effectivess of the DNS. Lists and postings must clearly be
open to exchange information and provide transparency.
Individuals must have representative voices as well. But
there must be a mechanism to select/develop appropriate
representative or constituent groups for Individuals or as
well suggest "general" stakeholder representatives.

8. Missing items: a process for nominating three directors
to ICANN and whether there are criteria for the nominees in
terms of experience and expertise.

9. A number of comments are in the form of questions. We
find them difficult to resolve as well. A number of these
issues may be the critical issues for discussion during the
Friday meeting.

10. Funding issues. Clearly funding must be addressed, but
it will require some adjustment based on membership
categories. Flat fee or different rates for different
"types" of members? Certain issues related to separate
incorporation will also impact funding due to potential
greater liability implications of separate incorporation.

More specific comments (underlined!) may be found within the
document.

December 6 - DWM further revised Draft of Proposal for DNSO
Format

NB: This is a DRAFT; it is intended to be a
framework for discussion as proposed in the
announcement of the DNSO process. Note that the
terminology and Section references refer to the
amended ICANN bylaws.

APPLICATION TO BECOME THE DOMAIN NAME SUPPORT ORGANIZATION,
(pursuant
to Art. VI, Section 3 (b) of the Bylaws of Internet
Corporation for
Assigned Names and Numbers (the "Corporation")

Introduction

This application is made by the undersigned to become the
Domain Name Support Organization ("DNSO"), pursuant to
Article VI, Section 3 (b) of the Bylaws of the Corporation.
The undersigned hereby commit to fulfill the undertakings
and policies set forth in this application. This application
is organized under the headings set forth in Article VI,
Section 3 (b) as follows:

I. Membership criteria for the DNSO, and for the Names
Council to be created pursuant to Article VI, Section 3 (a)
(ii) of the Bylaws of the Corporation.

II. Methods for developing substantive Internet policies
and selecting Board nominees

III. Open and transparent non-discriminatory processes

IV. Policies to ensure international and diverse
participation

V. Policies for disclosure to the Corporation by members of
or participants in the DNSO of conflicts of interest or
other financial interests in matters within the scope of the
DNSO

VI. Methods for funding the DNSO and providing funding for
the Corporation.

Discussion

I. MEMBERSHIP CRITERIA

A. MEMBERSHIP IN THE DNSO:

The qualifications for membership in the DNSO are set
forth in Appendix A to this application, entitled
"QUALIFICATIONS FOR MEMBERSHIP IN THE DOMAIN NAME SUPPORTING
ORGANIZATION".

B. MEMBERSHIP IN THE CONSTITUENCIES:

Each member of the DNSO shall be either a member of the
At Large constituency or a member of one or more of the
constituencies described below. Qualifications for
membership in each of the constituencies are set forth in
Appendix B to this application entitled "QUALIFICATIONS FOR
MEMBERSHIP IN THE CONSTITUENCIES". DNSO members who are not
members of one of the constituencies 1-5 below are
automatically members of the At Large constituency. [ICC:
Use of the term "At Large" may be too confusing with the
identity of the At Large Board. Perhaps the concept of
"general" membership would be better.]

The constituencies described herein are an initial set
of constituencies. The DNSO and the Names Council will
develop fair procedures for the creation, deletion, and
merger of constituencies; and adjustment of the
representation of constituencies on the Names Council.

The constituencies are [ICC:(we presume that these are
presented in no order of priority or importance - perhaps
alphabetical would be best...)]:

1. Registries

2. Registrars

3. Infrastructure and connectivity providers

4. Businesses,[ICC: MSC: non-profit, and] other
organizations

5. Organizations primarily concerned with the
interests of
trademark owners [ICC:(This constituency should also include
large trademark holders which are primarily concerned with
doing business, but for which trademark is a vitally
important policy issue. While we are aware that these
companies are represented by associations, they may have
specific interests which require direct representation as
well.)]

6. At Large [ICC:(general...)]

A member of the DNSO may be a member in more than one
constituency if it meets the qualifications for each
constituency for which it applies and pays the membership
fees for each such constituency. No member of any of the
constituencies 1-5 may be a member of the At Large
constituency.

C. THE NAMES COUNCIL

There shall be a Names Council consisting of 21
members, elected from time to time by the members of the
DNSO, following the procedures set forth below. The
constituencies shall each have the right to be represented
by the following numbers of members of the Names Council:
[ICC: put them all back to "X"]
1. Registries - X 6

2. Registrars - X 3

3. Infrastructure and connectivity providers - X 3

4. Business and other organizations -X 3

5. Organizations primarily concerned with the
interests of trademark owners - X 3

6. At large general- X 3[ICC: to "general"]

[ICC: The above categories represent a good ‘first cut” at
an inclusive list of broadly representative constituencies.
There must be flexibility to assure that potential
constituencies that are not now included could be provided
for later. While there should be no “magic number” there
need to be voting restrictions or other assurances that no
constituency can be disenfranchised by the collective action
of a number of other constituencies acting in concert. It
seems unlikely that any of the current constituencies would
cease being relevant stake holders, but we might wish to
consider whether special criteria and mechanisms need to be
developed to address issues of new constituency addition or
removal. Questions of voting and decision-making processes
for the NC must also be addressed. Consensus? Majority?
Super majority - for all issues?]

In order to assure geographical diversity among members
of the Names Council, the members of the Names Council
representing each constituency must each be from different
geographical regions, unless there are more such
representatives than there are regions. In this latter case
no region shall have more than one more representative than
any other region. The geographical regions shall be those
set forth in Article V, Section 6 of the Corporation's
bylaws. In particular, because the Registry constituency is
represented by 6 members of the Names Council, and there are
only 5 regions, not more than 2 representatives of the
Registry constituency may be from the same geographical
region.

[ICC: One caution, while we should strive for this goal, but
in light of the need to find qualified and available
representatives in short order, some North American or
European skewing may result. Everyone would be pleased if
this were not a problem, but we must face some realities.
These nominees will need to be known and established.
Nominating a person solely on the basis of geographic origin
is not in the DNSO’s best interest. Geographical diversity
is a very important factor, but it can not be the only
determinant.]

D. APPLICATIONS FOR MEMBERSHIP IN CONSTITUENCIES 1-5

After formation of the Names Council, applications for
membership in the constituencies 1-5 shall be submitted to
the Names Council. The Names Council shall have the right
to approve or disapprove each application. [ICC: How does
this work? After formation of the Names Council
constituencies can be applied for. How is the Names Council
constituted and how does the Names Council accept the
Constituencies? Will the Names Councils provide objective
criteria for the Constituencies? Isn’t this a problem of
circular reasoning - the proverbial chicken and egg?] If
an application is not approved, the applicant shall have the
right to appeal to the Fair Hearing Panel (described below).

E. ELECTION OF THE NAMES COUNCIL

Within four weeks of acceptance by ICANN of this
application the undersigned will self-select into
constituencies, and elect members of the Names Council.
[ICC: This seems like a problem waiting to happen. This
concept of self-selection presumes that all participants
within a constituency are in agreement as to who is in the
constituency. Without greater detail in the parameters of
the constituency this could be a problem. Businesses and
Organizations for instance - does this mean all business
including SOHO and mom and pop? Some among them may feel
that their interests may be more akin to general users. And
which organizations qualify? Unfortunately, there is no
suggestion for a better solution. Perhaps this could be a
brainstorming question for a future call?]

Members of each constituency shall nominate individuals
to represent that constituency. There seems to be more
circularity here. We seem incapable of escaping the need to
have some initial group that is “touched by an angel” to
start off the process. The self-organization of memberships
remains unclear. Will there be outreach beyond the
undersigned? Is there any upper numerical limit on DNSO
membership? Nominations within each constituency may be made
by any member of the constituency, provided, however, that
each member of a constituency may make no more than one
nomination for a Names Council member representing that
constituency. An entity that is a member of more than one
constituency may make one nomination for each constituency
of which it is a member. Every nominee shall be identified
as representing a particular geographical region. {ICC:
Will geographic representation be maintained after
nomination? Geographic diversity should be sought, but once
appointed there should be no competition to ensconce or
further any one geographical interest. Geographical
diversity, rather ensures broad representation and prevents
geographic discrimination. All of these issues must be
reviewed in light of overall stability and end-user utility
of the Internet.]

Elections for Names Council members shall be held once
each year for vacant seats. The term of office for each
member of the Names Council is three years, staggered so
that each year one third of the Names Council members shall
be elected.

Each member of the DNSO may cast one vote for one
nominee for membership in the Names Council from each of the
constituencies [ICC: Clarification: the nominations are made
by the constituencies, but elections are made by all? If
not, it should be that way to assure that only nominees
representative of the constituency are up for election...]

The winning nominees from within each constituency
shall be determined as follows:

Within the group of nominees for each constituency, the
nominees shall be grouped according to their geographical
identification, and shall be ranked according to the votes
received. Winners will be selected by the following
criteria: Nominees identified with regions with the least
number of current representatives for the constituency will
be considered as a group. Within this group, the nominee
with the most votes is selected, and is then considered a
member of the group of current representatives. This
procedure is repeated until there are no vacancies. Any
ties shall be broken by random processes. [ICC: While there
is a certain logic of fairness to this method, we have seen
no limit as to qualification that requires specific
knowledge or expertise. This should not be a layman’s
Council. We have no qualms with geographical diversity as
long as all participants demonstrate proper qualifications
of technological or policy expertise. There will be
substantive policy and technical problems raised within the
near term that require experience and expertise to discuss,
negotiate and reach closure on. ]

[There are two choices on how to proceed if there is
insufficient geographical representation: leave seats empty
if the geographical distribution requirements are not met;
or fill remaining empty seats with candidates with the most
votes, even though the geographical requirements are not
met.] [ICC: If this ends up being the process, then filling
seats with candidates that are qualified and have received
most votes is the way to go.]

[The following two paragraphs are an earlier
description of a procedure.]

Within each group of nominees for each constituency,
nominees from the same geographical region as any incumbent
member of the Names Council with an uncompleted term of
membership representing the same constituency shall not be
selected.

All remaining nominees shall be grouped according to
geographical region and, from each region, the eligible
nominee (or, with respect to the Registries' constituency,
the two eligible nominees for not more than one geographical
region) with the most votes shall be elected to fill the
available vacant seats on the Names Council.

The term of office for members of the Names Council
shall be three years. However, for the first election the
first third of the nominees selected through the above
process shall receive a three-year term, the second third
shall receive a two-year term, and the remainder shall
receive a one-year term. In the event of a resignation or
other event that disturbs the even distribution of terms a
similar fair process of adjusting the terms of newly elected
members shall be used to regain an even distribution. If for
any reason fewer than the seats allocated to a constituency
are filled, the seats remain unfilled until the next
election.

II. METHODS FOR DEVELOPING SUBSTANTIVE INTERNET POLICIES AND
SELECTING
BOARD NOMINEES

The Names Council is delegated the task of determining
policies regarding TLDs, including operation, assignment and
management of the domain name system and other related
subjects, and, in accordance with Article VI, Section
3(a)(ii) of the Corporation's Bylaws, the Names Council
shall make recommendations on such subjects to the
Corporation's Board. The Names Council shall also have the
power to select the nominees of the DNSO to the
Corporation's Board.

The Names Council shall seek input and review of its
recommendations and Board nominations from each of the
constituencies. It is the intent of the DNSO that,
initially, there will be significant review by the
constituencies; over time, the constituencies may agree to
reduce the extent of review.

Decisions by the Names Council on recommendations and
selection of Board nominees shall be made by [majority]
[ICC: two-thirds] vote.

The DNSO, the Names Council and each of the
constituencies will establish on-line methods of [ICC:
collecting opinion, canvassing constituencies,] meeting and
conducting ballots.

The DNSO will develop procedures for its deliberations.
Applicable IETF procedures will be examined as a possible
model.

III. OPEN AND TRANSPARENT NON-DISCRIMINATORY PROCESSES

The processes of the Names Council (and the processes
of each constituency) shall be governed by the same
provisions for open and transparent non-discriminatory
processes as those of the Board of the Corporation. A
general mechanism for review of conflicts and grievances
will be developed, and the Names Council shall appoint a
Fair Hearing Panel which will, among other responsibilities
delegated to it by the Names Council, hear appeals pursuant
to Section I.D. of this application.

Other such conflicts and grievances heard by this Fair
Hearing Panel might include those regarding dominance or
control of any single issue by means of membership in more
than one constituency, other methods of unfair domination by
special interests, matters concerning disputed membership in
a constituency or the DNSO, disputes concerning membership
dues, either in the DNSO or in a constituency, and so on.
[ICC: Should there be objective criteria of proof required?
Does recourse to a fair hearing panel require a minimum
number of Names Council members? Is it reasonable to assume
that an entire constituencies representatives must object?
Is there the danger that a vocal/disruptive minority could
abuse the Fair Hearing Panel? Does a Fair Hearing complaint
suspend the activity until it’s resolution? Is there a de
minimus showing that must be made to avail one’s self of the
fair hearing panel? Are there policies controlling the
appointment of the Fair Hearing Council - need for
constituency representation. Must fair hearing council
decisions be by consensus? unanimous? by majority? super
majority? ]

IV. POLICIES TO ENSURE INTERNATIONAL AND DIVERSE
PARTICIPATION

Because of the composition of the Names Council, there
will automatically be international and diverse
participation.

V. POLICIES FOR DISCLOSURE TO THE CORPORATION BY MEMBERS OF
OR
PARTICIPANTS IN THE DNSO OF CONFLICTS OF INTEREST OR OTHER
FINANCIAL
INTERESTS IN MATTERS WITHIN THE SCOPE OF THE DNSO.

These policies shall be the same as those for the Board
of the Corporation.

VI. METHODS FOR FUNDING THE DNSO AND PROVIDING FUNDING FOR
THE CORPORATION

The DNSO shall fund all costs of DNSO and Names Council
membership and other meetings and communications, and all
administrative and other costs associated with membership,
from membership fees as established from time to time.
Membership fees shall be set at a level sufficient to cover
administrative and other costs associated with membership,
(including the cost of verification of identity?).

[ICC: Does part of the funding requirement depend on the
corporate structure - part of ICANN vs. independently
incorporated. There is no final decision-making authority
in DNSO so costs of policy-related litigation should be born
by ICANN, even though DNSO would also be named in the suit.
As a separately incorporated entity, DNSO would have to bear
a share of litigation costs. Also what if DNSO determines
that a study or research would be needed? Shouldn’t ICANN
bear that burden out of user fees rather than DNSO
membership fees?]

The constituencies 1-5 shall fund all other
expenditures and contributions to ICANN.
[ICC: Should there be consideration of SO funding from fees,
like ICANN? This would be a further argument in favor of
one ICANN corporation with separate SO subdivisions.]

The Names Council shall draw up a budget for each
calendar year which shall include receipts and all
expenditures for which the DNSO is responsible. These
include the contributions payable to ICANN? [ICC: This
presumes ICANN funding will be independent of registration
fee surcharges, or does this make the DNSO a pass-through
entity which may have certain tax recognition importance,]
the administrative costs for DNSO and other expenditures for
membership meetings, conferences and hearings. The budget
shall include a provision for reasonable reserves, not to
exceed [xx]% of the previous year's budget.

Members of the Names Council shall serve without
compensation, provided, however, that members of the Names
Council may be reimbursed by the DNSO for out of pocket
expenses incurred in connection with their function if the
expense is objectively necessary, and if the member seeking
reimbursement can document the expense and show plausibly
that the member could not perform the member's duties as a
member of the Names Council without such reimbursement.

Members of the DNSO shall provide funding as follows:

A. Each member must pay annual dues in an amount
equivalent to US$xx [$50-$100]. [ICC: Does this include
individual/general/at large members?
It’s unclear that this amount will generate sufficient fees.
With some more detailed budget assumptions we may wish to
consider a system whereby a slightly higher charge is paid
by corporate and association members. We will need to
ascertain what requirements exist. Staffing (part time?)
Executive director? Administrative fees for listservs etc.
Legal advice? Travel? How many non-virtual meetings?]

Membership fees can only be changed by resolution of the
entire membership by affirmative vote of at least 80% of the
membership [ICC: eligible to vote] [voting on the [ICC:
resolution with a minimum quorum of 4/5 of those eligible to
vote]. The membership may not vote to reduce membership fees
without a substantiated showing that expenses of the DNSO
can be met by the reduced fees.

B. Pursuant to the Corporation's Bylaws Art. VI,
Sec.3(b)(vi) and Art XI, Sec.4(b), fees and charges imposed
by the Corporation shall be passed along by the DNSO [ICC:
to the parties receiving the services or benefits provided
by the Corporation ??? Please clarify.] Any other amounts in
the DNSO budget that are not covered by the membership fees
referred to in A. above shall be paid by each constituency
in an amount proportional to its number of representative
members on the Names Council.

C. Payments required to be made can only be changed by
an affirmative vote of at least 80% of the Names Council,
and only after the Names Council has consulted with all the
constituencies regarding the change. [The change must be
approved by the ICANN Board.][ICC: How does this work? Does
the Names Council suggest to ICANN that there be different
payments? ]

D. Each year's budget must be submitted by the Names
Council to each of the constituencies for approval. If the
constituencies do not unanimously approve the budget, it
shall be submitted to the entire DNSO membership for
approval. Approval by the DNSO membership shall be decided
by a simple majority vote of [the members voting] [the
members voting][ICC: all eligible voters]. If the membership
does not approve the budget, the budget shall be submitted
to the Board of the Corporation [ICC: (DNSO??? - is there a
process for Board Election - are we referring to the Names
Council?)] which shall have the power to determine the
budget.

E. Any surplus from membership fees in a fiscal year
shall be carried forward [ICC: and applied to] the next
year's budget.

F. The Names Council shall appoint, by vote of at least
50% of the
Council, one of its members to be the Treasurer of the DNSO,
who shall have administrative control over receipts and
expenditures. If the
Treasurer finds that receipts or expenditures are
significantly different from the budgeted amounts, the
Treasurer shall propose an amended budget, which shall be
subject to adoption and approval in the same manner as the
original budget.

APPENDIX A

QUALIFICATIONS FOR MEMBERSHIP IN THE DOMAIN NAME SUPPORTING
ORGANIZATION (pursuant to Art. VI, Section 2 of the Bylaws
of
Internet Corporation for Assigned Names and Numbers (the
"Corporation"))

The following are the qualifications for participation by
any entity
or organization for membership in the Domain Name Supporting
Organization ("DNSO"), as described in Article VI, Section 2
of the
Bylaws of Internet Corporation for Assigned Names and
Numbers (the
"Corporation"):

Any entity or individual person with a legitimate
interest in the
Internet is eligible to be a member of the DNSO.
[ICC: This seems to be a very vague and subjective
definition. Who decides what is a legitimate interest? It
will be read to mean all people/organizations are included
if they have a subjective belief that they have a legitimate
interest.]

APPENDIX B

QUALIFICATIONS FOR MEMBERSHIP IN THE CONSTITUENCIES

The following are the qualifications for participation
by any entity or organization for membership in the
constituencies, as described in Article IB of this
application:

1) Any entity or organization that is either

a) Registry: A name registry (defined as an entity with
write authority to a zone referenced by a TLD),

b) Registrar: or a registrar of generic/global or country-
code top-level
domains ("TLDs") (defined as an entity with a direct
contractual relationship with a registry to register names
within a TLD zone),

c) or Infrastructure and Connectivity Provider: a network
operator or service provider (defined as a legal person
operating a name server for clients and offering Internet
connectivity to third parties),

d) Business (legal persons properly incorporated as for-
profit enterprises) and other organizations Or other
business or organizations(defined as any legally constituted
organization primarily engaged in the representation or
promotion of businesses with a legitimate interest in Domain
Name issues),

e) Trademark or an organization representing trademark
interests, defined as entities primarily concerned with
trademarks or defending business against
counterfeiting.[ICC: (again, what of businesses that are
substantial trademark holders?) ]

2) Associations of organizations qualified to participate in
the constituencies may also become members, as may
associations of associations (umbrella associations) whose
members meet the conditions for participation in the
constituencies. Associations and umbrella associations
must, however, be legally recognized entities with
substantial numbers [ICC:(vague delineating factor)] of
members. The Names Council will decide any questionable
cases.

[ICC: Are there any qualifications for at large or general
members? Can any individual join?]

-- 
Kent Crispin, PAB Chair				"Do good, and you'll be
kent@songbird.com				lonesome." -- Mark Twain