Re: DNSO / Fluid Constituencies

[Bret Fausett <baf@fausett.com>]

Kent Crispin wrote:

> Thus the notion of bylaws is not, strictly
>speaking, applicable.  Instead we might think in terms of some sort
>of charter document -- but that is what the application is. 
> ...
>Indeed.  But we don't need bylaws, given that there are no plans
>to separately incorporate.  That is why we are concentrating on the
>application :-)

I disagree. Is there any *legal* requirement that the DNSO, as an 
unincorporated association affilliated with ICANN, draft and abide by its 
own set of bylaws, of course not. But if the only thing that unites the 
"DNSO" is an application for recognition by ICANN, that (IMHO) seems a 
flimsy basis on which to build such an important body. Every 
organization, especially a global one responsible for domain policy, 
needs rules and processes; these rules will prevent (to the greatest 
extent possible) disputes down the road.

But since, as we seem to agree, the application itself is a kind of 
charter (or bylaws, if you will), there is no reason not to think about 
the two hand in hand. Hunks of the draft application could be recast as 
charters/bylaws, and the two could be drafted simultaneously. While the 
DNSO likely would be bound by the promises made in its application, I, 
for one, would suggest the more formal approach of presenting ICANN with 
fully formed body, complete with a charter or bylaws.

I know that I have come to this process late (to the extent that coming 
to an unformed association weeks or even months prior to its formal 
creation and operation can be considered "late"), so to the extent that 
there is an existing plan about how to create the additional rules and 
procedures (beyond those found in the application) that will govern the 
DNSO, please let me know. Perhaps my concern is overstated, but I'd like 
to hear what is envisioned for formalizing the group.

>By taking the path of proposing the DNSO 
>as a part of ICANN we gain some flexibility -- we can leave some 
>details to be worked out with the ICANN board.  Also, we are 
>automatically constrained to follow the ICANN rules concerning 
>transparent process etc etc.

I noted the proposal in the draft DNSO applications that the DNSO would 
be bound by the same transparency rules governing ICANN itself, but I was 
hoping for more. The ICANN concept of transparency (even as recently 
modified) is still the subject of some debate as to its adequacy, and I 
was hopeful (and still am) that this group can to do better. My reading 
of the ICANN bylaws suggests that the SOs must be transparent, but there 
is nothing to prevent them from being *more* transparent than ICANN 
itself.

Bret Fausett

 

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     Bret A. Fausett
     Fausett, Gaeta & Lund, LLP
     e-mail: baf@fausett.com
     http://www.fausett.com

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