RE: [Fwd: merge5.txt]

["Antony Van Couvering" <avc@interport.net>]

I have to say that, absent the aspersions to Kent's character, I agree with
just about all of Michael's comments.

1. There needs to be a mechanism for jettisoning Names Council members if
necessary, especially with the addition of scary language that would allow
members to be thrown out.

2. With the language "the Names Council shall determine policy", this draft
reduces the role of the membership to a single function -- electing the
Names Council.  This will engender suspicion and alienation -- to say
nothing of bad policy -- as surely as politicians follow votes.

3. The Monterrey consensus was clear: the membership shall elect the Names
Council, the constituencies shall nominate the candidates.  That seemed to
me, and everyone there (at least a substantial majority of them) to be fair.
This clause would have the members even further divorced from any exercise
of power, since the constituencies themselves are likely to have leadership
structures -- and it's possible that their leadership would not be chosen
democratically.  So a member of a given constituency would have (a) little
say in who is nominated, (b) no say in who was elected, and (c) no say in
what was decided.  This is a recipe for patronage politics.

4. In general, a lot of the power politics go away when the function of the
Names Council is not to decide anything, but rather to determine the
consensus of the membership.  This is already a lot of power for the NC, but
at least it keeps the membership involved in determining policy.

5. I don't see the need for vesting executive authority in the NC?  What is
the purpose?  What executive decisions will the NC be making?  To appoint
committees?  To determine venues of meetings?  Such bureaucratic functions
do not need to be dignified with the language "executive authority."  Our
primary interest, as many have stated, is to preserve the stability of the
Internet.  As such, the DNSO, as a body that merely recommends to ICANN,
should be a conservative body, which reaches decisions (and recommends
policy) only when there is substantial agreement of its membership.  There
is no reason at all why executive authority should be vested in a small
group.

Generally, there is far too much here that seeks to define the powers of the
NC by limiting the power of the members.

Antony

> -----Original Message-----
> From: Michael Sondow [mailto:msondow@iciiu.org]
> Sent: Tuesday, January 19, 1999 12:45 AM
> To: Amadeu Abril i Abril
> Cc: transition@dnso.org
> Subject: Re: [Fwd: merge5.txt]
>
>
> ICIIU comments on merge5.txt.
>
>
> >     - A very precise set of bylaws designed to meet the
> >     requirements of corporate law.
> >
> >     - A charter for a unique Internet-based international
> >     organization, with no legal precedent.
>
> I have been studying the New York State laws of incorporation for both
> for-profit and not-for-profit corporations, which I assume to be not very
> different from those of other states. I've been doing this in part because
> the ICIIU may incorporate, and in part because I wanted to see for myself
> just what constraints on organizational framework derive from corporation
> law.
>
> So far as I have been able to tell, the law of corporations, at least
> insofar as not-for-profit corporations are concerned, does not oblige a
> corporation to adopt a particular form of organizational
> structure. A board
> of directors, for example, is not a requirement of the law. I called the
> Office of Corporations at the N.Y. Department of State about this, and was
> told that this is so: a corporation can be formed by a single
> "incorporator", and no BoD need ever be formed, although in the case of
> membership organizations there must be elections and a recall
> procedure for
> any leadership that is created.
>
> In brief, the top-down structure proposed in the INTA bylaws is not a
> product of corporate law but of the INTA, and a not-for-profit corporation
> can choose to organize itself in many other ways. This lie, that
> there must
> be vertical authority from the top down, as in the INTA proposal and these
> bylaws, will be exposed for what it is.
>
>
>
> > ================================================================
> >
> >                        PROVISIONAL - DRAFT DOCUMENT
> >
> >                                  DRAFT
> >
> >                           January 17, 1998
> >
> >                             PROPOSAL FOR
> >
> >                   DOMAIN NAME SUPPORTING ORGANIZATION
>
>
> > Section 2.  Membership in Constituencies [4][5]
>
> >     2.  Businesses and other organizations: a DNSO member who is any
> >     other business or organizations (defined as any legally
> >     constituted organization with a legitimate interest in Domain
> >     Name issues),[6]
>
> >     6.  Trademark and Anti-counterfeiting interests: a DNSO member who
> >     is an organization representing trademark interests, defined as
> >     entities whose primary interest is the protection of trademarks
> >     or the effort to stop trademark counterfeiting and infringement),
> >     or owners of trademarks [7],
>
> As stated previously, I strongly object to having two separate
> constituencies for businesses and trademarks, since these are in
> effect the
> same people and organizations.
>
>
> > ARTICLE IV.  NAMES COUNCIL
> >
> > Section 1.  Purpose and Powers
> >
> > The Names Council shall act as the executive body of the DNSO.  It
> > shall also fulfill the role of "Names Council" as described in the
> > ICANN Bylaws.
> >
> > The Names Council shall determine 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 ICANN's Bylaws, the Names Council shall make
> > recommendations on such subjects to the ICANN Board.
>
> In agreement with the NSI comments, the Names Council should be restricted
> to acting as an intermediary between the membership and ICANN, and all
> policies emanating from the DNSO should come from the membership and not
> originate with the Names Council. If the Names Council can
> originate policy
> and transmit it without subjecting it to a consensus of the
> membership, what
> is the purpose of having a membership except for voting once a
> year for the
> Names Council? As designed above, the membership is just a rubber
> stamp, and
> the DNSO is not a real membership organization.
>
> Furthermore, ICANN's bylaws specifically state that the DNSO will
> recommend
> DNS policy to ICANN, whereas the above text says "shall determine
> policies".
> This is clearly wrong. The person who wrote this has dictatorial
> tendencies.
>
>
> > The Names Council shall select three ICANN board member nominees as
> > described in ARTICLE IV, Section 10, below.
>
> Sorry, but it's the membership that will select the three ICANN Board
> members, not the Names Council. You have really gone too far here
> in giving
> in to the INTA. This will not stand up. No one but the DNSO.org drafting
> team, and maybe no one but Kent, is going to accept this. You are digging
> the DNSO.org's grave with language like this. The ORSC is going
> to win a lot
> of support from this. You are playing right into their hands.
>
>
> > The Names Council shall function as the executive authority of the
> > DNSO.  The Corporate officers, if any, shall
> > operate at the direction of the Names Council. [8]
>
> This is an outrage. "Executive authority", indeed! You have accepted the
> INTA's authoritarian schema lock, stock and barrel. This is not going to
> pass. I will not sign it, probably full half or more of the participants
> will not sign such a thing, and none of the ORSC , the BWG, or
> any of their
> many supporters will sign it. You will be so stigmatised by this that you
> will have to look for work with your friends in the INTA.
>
> There is absolutely nothing in corporate law that requires such a
> top-down,
> authoritarian structure. To say so is a lie. If you can accept
> this, or even
> suggest it, it is because you don't give two hoots for democracy,
> consensus,
> fairness, or the Internet.
>
>
> > Section 2.  Representative Composition [9]
> >
> > The Names Council shall consist of 21 [XX] members, elected from time
> > to time by the members of the DNSO, following the procedures set
> > forth below.  In addition, he President of the DNSO shall sit as a
> > non-voting ex officio member of the Names Council.
>
> As NSI has pointed out, there is absolutely no need for a President or any
> other superfluous officer of the DNSO. A democratic Names Council can
> easily, with the active participation of the membership, do all
> the work of
> the DNSO.
>
>
> > An entity that
> > is a member of more than one Constituency may make one nomination for
> > each Constituency of which it is a member.
>
> I don't see the justification for this. It's a formula for
> excessive control
> by one contingent and capture.
>
>
> > Section 5.  Transparent and Open Processes
> >
> > The processes of the Names Council, as well as the Constituencies and
> > the general membership, shall be governed by the same principles of
> > open and transparent non-discriminatory processes as those of ICANN.
>
> It should be written in that all Names Council meetings will be advertised
> in advance, and that they will be open, at least to the membership of the
> DNSO. No closed meetings of the Names Council!
>
>
> > It is the intent of the DNSO that, at least initially, there will be
> > significant review by the Constituencies over the decisions of the
> > Names Council; over time, the Constituencies may agree to reduce the
> > extent of review.  Therefore, in all cases the Names Council shall
> > seek input and review of its recommendations and Board nominations
> > from each of the Constituencies. [13]
>
> If it's left up to the Names Council, it won't happen. It must be
> stipulated
> that the Names Council can make no decisions without the agreement of the
> membership.
>
>
> > Section 6.  Dispute Resolution
> >
> > A.  Fair Hearing Panels
> >
> > The Names Council will appoint, as necessary, Fair Hearing Panels to
> > collect information concerning grievances, complaints, and conflicts
> > that may arise, to make recommendations to the Names Council for
> > possible remedial or other action.  The Names Council shall establish
> > the procedures and standards for Fair Hearing Panels, perhaps through
> > designation of a committee to study the issue.
>
> The membership, not the Names Council, must select the Fair
> Hearing Panels.
> If the Names Council does it, they'll choose people they can
> control and who
> won't point their finger at them. The main need for Fair Hearing Panels is
> as a check on the Names Council; you abrogate their usefulness by allowing
> the NC to choose and control them.
>
>
> > The Names Council shall appoint a nominating committee to research,
> > investigate
>
> I strongly suggest that you remove the word "investigate" from this text.
> You apparently have no shame, but perhaps you will at least have some
> reticence to insult the sensibilities of Latin Americans and
> others who have
> suffered persecution by the sorts of dictatorial regimes that you are
> attempting to create here. No one in any organization that I am a
> member of
> is going to be investigated.
>
>
> > The Names Council shall ensure that all candidates have a significant
> > understanding of the relationship between the Internet and business
> > practice, intellectual property, freedom of expression, and consumer
> > protection.
>
> That's all? No knowledge of the Internet or the DNS? So, you turn the DNSO
> into a representative of the trademarks interests? Isn't it just a little
> more important that the candidates understand how the Internet and the DNS
> functions?
>
> And, what's meant here by "understanding"? That they agree with
> the position
> of the INTA?
>
>
> > ARTICLE V.  INITIAL MEMBERSHIP AND INITIAL NAMES COUNCIL
> >
> > Section 1.  Initial DNSO and Constituency Membership
> >
> > The Initial membership of the DNSO shall be drawn from those entities
> > who sign the DNSO application to ICANN.
>
> No. The initial membership of the DNSO will be those persons and entities
> who join the DNSO once it is accepted by ICANN, not the people
> who sign your
> draft. You are trying to blackmail people into signing it.
>
>
> > All financial and other records in the custody of the Treasurer shall
> > be open to the Names Council and the ICANN Board at all times for
> > inspection or audit.
>
> The books of the DNSO will be open to the membership or the ICIIU will sue
> you.
>
>
> > Given the importance of having a global consensus on the policies and
> > procedures developed by DNSO, as well as expertise relating to the
> > objectives of the DNSO, the Names Council may create committees for
> > such terms and with such powers and duties, as it shall deem
> > appropriate.  The nomination of members to each committee and their
> > election by the Names Council shall be conducted in the same manner
> > as members of the Names Council are nominated under Article IV,
> > except that committee members shall be voted on by the Names Council
> > rather than by DNSO members.
>
> No committees unaccountable to the membership!
>
>
>
>
> ARTICLE VIII.  MEETINGS AND ELECTIONS
>
> The DNSO and all its components support the Internet; they are
> distributed around the world; and therefore, to the extent possible,
> all business of the DNSO, the Names Council, the Constituencies, and
> any Committees shall be conducted online, or otherwise without the
> requirement of physical meetings.
>
> Unless all these online meetings are conducted on open mailing lists, you
> are here providing a mechanism for secret meetings.
>
>
>
> Section 2. Suspension or Expulsion of a Member or Disqualification
>
> A.  A member may be suspended for a period or expelled for cause such
> as violation of any of the By-laws of the DNSO or for conduct
> prejudicial to the best interests of the DNSO.
>
> Where is a mechanism for suspension or expulsion of a member of the NC by
> the membership?
>