This is a summary of the comments submitted to the open dnso

Jan. 7, 1999

Antony Van Couvering

avc@interport.net

This is a summary of the comments submitted to the open dnso.org discussion list concerning the dnso.org draft application to become the ICANN’s Domain Name Supporting Organization, from December 15, 1998, when the last draft was released, to January 5, 1999, the deadline for comments to this draft. I have summarized – or quoted verbatim, if the comments were succinct enough. This is a working document for use by the drafting team of the dnso.org group in redacting a new draft. It is entirely possible that I may have misrepresented an opinion or comment, though I have used my best efforts not to do so. If in doubt, those interested should refer to the original email. To this purpose, I have included the date and author of the comment, so that any given message may be easily consulted.

I have not included any comments that deal with the internal workings of the dnso.org discussion list, or with the fairness or unfairness of the process by which comments are received and incorporated into drafts, or back-and-forths about whether the dnso.org group is open and transparent, or a conniving cabal. I have restricted myself to comments dealing substantively with the 12/15/98 Draft Application released by the dnso.org group.

Another important thread, also not included, deals with whether the DNSO should even bother to go ahead, because of a strong feeling by not a small number of participants that the ICANN, by refusing to provide protection for legal liability, and effectively forcing the DNSO to incorporate separately, had really made the SOs *not* part of ICANN any more. The thinking goes that the DNSO would just be used as a liability shield, and as a separate organization, with different membership etc., the ICANN had divorced itself from the DNSO and made it a useful toy, reserving all real power within the ICANN board. The contending viewpoint, while by and large conceding that the ICANN action was a Bad Thing, thought that it was better to be at the bottom of the barrel than out of the barrel altogether, and we should just get on with the application. Since the real choice here is to play or not to play, I included summaries from this thread only when it had to do with something the drafting team could use for its work in redacting a new draft application.

I have given a category to every comment, and I’ve tried to keep the category labels consistent. If a comment dealt with more than one issue ("category"), I made more than one entry.

The summary is based on my personal archive of the dnso.org "discuss" list, with the exception of comments from Jeff Williams, which I delete as soon as I receive them. So shoot me.

This document was created in Microsoft Word 97, saved in Microsoft Word 6.0 format. The comments are in a table within Word, which may be easily imported into a spreadsheet or database.

Date	Author	Category	Summary
12/15/98	John B. Reynolds	Names Council	"Am I reading this correctly – Names Council members are elected by the Entire DNSO membership, rather than by the consituencies they represent? If One or two constituencies constitute a majority of DNSO members, they could Determine the entire NC membership."
12/17	Bill Semich	Fair Hearing Panels/ new gTLDS	Says that it was consensus in Mty that we would have fair hearing panels, in response to Einar Steffarud’s call for a fair hearing panel to deal with prospective gTLDs
12/17	Ken Stubbs	Fair Hearing Panels/ new gTLDS	Agrees that we had consensus on fair hearing panels, but wants to see more meat on the bones on how they would be conducted. Urges Einar Steffarud to propose language for incorporation into the draft proposal
12/17	Herbert Vitzum	Fair Hearing Panels/ new gTLDS	Agrees that we should have fair hearing panels. Thinks that there should be an open objective process for applying for a new gTLD, if they are followed, the new gTLD should be allowed
12/17	Michael Sondow	Names Council	Wants to clarify that it was agreed that the six seats on the NC allotted to TLDs will be composed of 3 from ccTLDs, 3 from gTLDs
12/17	Michael Sondow	Members	Doesn’t think we agreed that NC should decide who’s a member. Let criteria be established, then decide objectively on the basis of that criteria. Looks unfair and is more work for NC if NC decides.
12/17	Michael Sondow	Members	Thinks definition for "at-large" is flawed. Wants language talking about incorporation taken out. There are many persons and groups who should be qualified who are not incorporated entities.
12/17	Kent Crispin	Names Council	Disputes M. Sondow’s idea that it was explicitly agreed that there should be 3 NC seats for ccTLDs and 3 for gTLDs. He notes that it was envisaged that this would eventually happen, but that the practical effect of putting it into practice immediately would be to given NSI 3 seats, since there are no other gTLDs.
12/17/98	Cliff Dilloway	Fair Hearing Panels	Wants to see a definition of Fair Hearing Panels.
12/17/98	Michael Sondow	Names Council	Wants to see phasing in of seats from ccTLDs to gTLDs made explicit in the draft application.
12/17/98	Michael Sondow	Members	Agrees with Kent Crispin’s suggestion that Appendix B should add a section F to define "at-large" membership; notes that the concept is fuzzy at the moment
12/18/98	Einar Steffarud	Fair Hearing Panels	Wants to add FHP in an advisory role to the NC, chosen from regions. Thinks it difficult and unwieldy to have a "Board of Directors" geographically represented, wants the FHP to bear the weight of geographical balancing. Wants this written into bylaws.
12/18/98	Einar Steffarud	Names Council	Sees the ccTLD/gTLD initial 5/1 split as ignoring aspirant gTLDs. Wants therefore to weight the 6 TLD NC seats between ccTLDs and "gTLD interests". Notes that he made same proposal in Monterrey.
12/18/98	Kent Crispin	Names Council	ccTLD/gTLD 5/1 split a "side discussion", not written in. Sees aspiring gTLDs as a transient group, because either their aspirations will be fulfilled, or not. Therefore permanent representation on NC is pointless.
12/18/98	Bret Fausett	Legal Structure	Important to incorporate because lawyers will advise their clients to avoid participating in a group that is unincorporated and thus exposes individuals within it to personal liability.
12/18/98	David Schutt	INTA Application	Thinks that INTA definition of "legitimate interest" as tied to a revenue threshold is a "country club" and [he implies] should be rejected.
12/19/98	Michael Sondow	INTA Application	Agrees with David Schutt that an economic threshold gives pause, but notes that as long as there is a membership category that does not have such strictures, it ought to be up to other constituencies to set their own guidelines for membership, including economic ones.
12/19/98	Michael Sondow	Legal Structure	Thinks that B. Fausett’s comments are "dishonest" because SOs are integral parts of ICANN and can be covered by ICANN’s corporate umbrella.
12/19/98	Michael Sondow	Members	Submits a proposal for a DNSO membership committee. To summarize: Formed of one member of NC and one member from each consituency. NC member will ensure that applicants meet minimum DNSO requirements; constituency members will ensure that consituency requirements are met. Membership committee will disseminate membership applications as widely as possible; explicitly, their goal should be to attract as many qualified members as possible.
12/19/98	David Maher	Fair Hearing Panels	Stef: "whose members are appointed by geopolitical regions" Appointed by whom? I am still unable to see how any appointment process is superior to a properly structured democratic process of election of "directors" or "Names Council" members. David
12/19/98	Kent Crispin	Legal Structure	Thinks legal protection is very important, but wants ICANN to provide that. If they don’t, then DNSO should incorporate. Wants protection, but the simplest, most effective possible. Agrees with B. Fausett that stringent bylaws may well accomplish what incorporation would, to force rigorous thinking. Believes that content rather than form of documents is the contentious issue. Thinks that Fausett’s comments are ahead of the discussion; sees writing of up of documents as an "implementation" issue. Raises point that place of incorporation, should incorporation be necessary, is likely to be contentious also.
12/19/98	Michael Sondow	Legal Structure	Says that B. Fausett’s suggestion that bylaws be written first is a way to force DNSO to incorporate so that Fausett can become its lawyer.
12/20/98	Michael Sondow	INTA Application	Out of place for trademark org to submit application, since he believes it is not clear that trademark orgs have a clear legitimate interest in DNS matters. ICIIU (Sondow’s organization) doesn’t recognize the authority of the DNSO or ICANN to regulate the relationship of domain names and trademarks. ICIIU sees INTA’s application as an attempt to "fabricate an identity" between domain names and trademarks in order to appopriate domain names for commercial use, a purpose for which they were not intended. Thinks that INTA’s idea that the DNSO should look into trademark problems is a usurpation of the prerogatives and jurisdiction of civil authorities.
12/20/98	Einar Steffarud	Members	Makes the point that a vote for a Board member is different than a real voice in the process. He wants members to have a vote and a voice.
12/21/98	Roberto Gaetano	Names Council	Re: the ccTLD/gTLD 5/1 split, he notes that nowhere is it said that prospective gTLDs cannot be represented within the TLD constituency.
12/21/98	John Reynolds	Legal Structure	Notes that the ICANN release giving guidelines to potential SOs makes it clear that (1) ICANN membership will be different from SO membership, and (2) SOs are legally separate from ICANN. Thus, if SOs don’t incorporate separately, there will be no legal protection for SOs.
12/21/98	Kent Crispin	Legal Structure	Disappointed by the ICANN release which, he thinks, leaves little choice for SOs – they must incorporate. Thinks we should proceed as if incorporation were necessary.
12/21/98	Michael Sondow	Legal Structure	Says ICANN release goes against White Paper and ICANN’s own bylaws, which define ICANN as being made up of the SOs. Calls the release a "trick" and declares that ICANN cannot do this. Notes that SOs must contribute funding to ICANN, but ICANN won’t provide legal protection – sees this as one-sided. Suggests that SOs are being presented with an unfair fait accompli.
12/21/98	Michael Sondow	Legal Structure	Says that ICANN’s guidelines for SOs are in effect new bylaws, since they contravene earlier bylaws. Says that in effect ICANN retains all power, but lets SOs act as lightning rods for lawsuits. Says DNSO must consult with its lawyers to find if incorporation is advantageous or disadvantageous.
12/22/98	Roeland M. J. Meyer	Constituencies	Argues that trademark interests should not be enfranchised as a constituency, they "are not here in "good faith" and will abrogate any compromises at the first opportunity. They are not above, going outside the process." Objects to lumping together trademark concerns with commercial interests, suggests they are entirely different.
12/22/98	Einar Steffarud	Fair Hearing Panels	Fair Hearing Panels are advisory in nature, his idea of having them be geographically representative is so that regions can be assured that they will get a fair hearing from the panel. Suggests that we use the Internet to conduct FHP business.
12/22/98	Kent Crispin	Legal Structure	ICANN’s primary interest is in the stability of the Net. Therefore ICANN is building firewalls between the different and SOs and ICANN. The DNSO is by far the most likely org to attract lawsuits, so separating it legally from other SOs and the ICANN board will allow the others to get on without fear of being dragged into a lawsuit.
12/22/98	Roberto Gaetano	Legal Structure	If DNSO must incorporate, there is one less issue to discuss, we should get on with writing our bylaws.
12/22/98	Kent Crispin	Legal Structure	Questions whether if DNSO is a separately incorporated entity, if it possible for it to be "division" of ICANN, and if its members can automatically be made members of ICANN. Sees the issue as one of liability protection, and sees incorporation as the cheapest and most effective method to assure protection.
12/22/98	David Schutt	Legal Structure	Suggests that given the lack of benefit to being an SO, and the risks involved, we’d be better off just joining ICANN and forming an advisory body on domain name matters.
12/22/98	Amadeu Abril i Abril	Legal Structure	Agrees that incorporation is the quickest cheapest path to legal liability protection. As to membership linkages, he notes that almost anything is possible with corporate law.
12/22/98	Roberto Gaetano	Legal Structure	Suggests that if the main purpose of incorporation is to shield us from liability, then we might choose Switzerland, because it is difficult to sue (and win) against a Swiss not-for-profit.
12/22/98	David Maher	Fair Hearing Panels	If FHPs are advisory, in what way do they differ from a properly representative NC?
12/22/98	Joop Teernstra	Legal Structure	Incorporation may mean legal liability protection, but it will also mean becoming a target for lawsuits. There are funding implications. How does this affect the SO’s fiscal policy, and should there be a legal defense fund set up? Suggests Netherlands or Netherlands Antilles as useful places for incorporation because the distinction between for-profit and not-for-profit is not so fine.
12/23/98	Michael Sondow	Legal Structure	Says that David Schutt’s 12/22 message, that we should form an advisory body within ICANN, is what the SOs were supposed to be until ICANN turned the relationship on its head.
12/23/98	Einar Steffarud	Legal Structure	Says that if ICANN is going to pursue its intention to give no shield to SOs, we should just check out and let ICANN form its own SO. Bad negotiating practice to agree to something before the terms have been worked out.
12/23/98	Michael Sondow	Legal Structure	Would like to see a lawyer’s opinion (David Maher’s) on the merits of incorporating. Before anyone signs, they should have the right to know.
12/23/98	Michael Sondow	Legal Structure	Notes that a note (the release of guidelines for SOs) is not a "constraint" on the Internet community, that in fact ICANN is constrained by its own bylaws and the White Paper.
12/23/98	Kent Crispin	Legal Structure	A legal defense fund only attracts lawsuits. The DNSO, if sued, could cease to exist, then come back soon after. Thus, incorporation is not necessary to protect the DNSO itself, just its members. ICANN, however, must have protection. Must distinguish between civil liability and political liability. The members of the DNSO must have liability proection, because unpopular decisions will be made.
12/23/98	Amadeu Abril i Abril	Legal Structure	Concerned that the ICANN process is becoming too bureaucratic; best solution is to be part of ICANN, not a separate incorporated entity. Recalls that at the Monterrey meeting we realized it was possible that we would have to incorporate, recalls that most participants indicated they could live with it either way. Wants a DNSO in any case; agrees with Michael Sondow on the facts, but puts a different spin on things.
12/23/98	Bret Fausett	Overview	Purpose of DNSO is not to decide controversies, but to establish a vehicle for doing so fairly.
12/24/98	Roberto Gaetano	Fair Hearing Panels	Since ICANN has the final say in just about everything, why not put the FHPs in ICANN?
12/25/98	David Maher	Legal Structure	Question is not whether DNSO can win lawsuits, but rather that it is a tremendous strain on financial resources to defend any lawsuit at all, spurious or not. Dislikes ICANN’s current position, wants ICANN to supply legal liability protection.
12/28/98	Mikki Barry	Members	Wants to see mention of domain holders "rights", since there are many references to the rights of trademark holders.
12/30/98	Kent Crispin	Communication	Notes that we are required to have geographical representation, so how best to achieve this operationally. Notes that we have agreed to do something "online", and proposes that DNSO, NC, and constituencies must all develop and implement online procedures for meeting and balloting. All official decisions must be online. Cost implications are not trivial.
12/30/98	Kent Crispin	DNSO procedures	Wants DNSO to have explicit rules for voting [e.g. 50% of votes plus one rules the day]. After a long and cogent discussion of decision procedures he proposes a procedure whereby upon becoming a DNSO member, an email address is designated as the member’s "official" address. In a vote, balloting is done by email, in a standard format, in a two-stage process; stage one, a vote collection phase, stage two, a verification and possible protest phase. The method has been used successfully in PAB and other places. Smaller groups within the DNSO could use other methods.
12/30/98	Michael Sondow	DNSO procedures	Approves of Kent’s discussion of decision procedures, notes however that attention has to be paid to the procedure that decides what is put up for a vote, and how the question is framed. Notes the "Deliberation Space" developed by the Cyber Law Institute as a model to be examined.
1/2/99	Roberto Gaetano	DNSO procedures	Agrees with Kent, wants however to add digital authentication (PGP), deems it will be a minimal addition complexity.
1/2/99	Kent Crispin	DNSO procedures	Digital authentication is problematic because it requires a technical infrastructure, its legal status is unclear, and it will be daunting to some members. Chance of fraud is very slim even without digital authentication.
1/3/99	Roberto Gaetano	Members	Encloses a suggestion from Onno Hovers, in which the membership structure is changed from specific constituencies to classes of membership within which the consituencies would find their place. RG suggests that we give this plan serious consideration as a compromise solution.
1/3/99	Michael Sondow	Members	Contends that the decision to allow membership in more than one constituency was never "consensualized" in Monterrey, and was not intended to allow the capture of the general membership vote by a single constituency.
1/3/99	Michael Sondow	INTA Application	Contends that an INTA draft proposal was withheld from members at Monterrey, which shows duplicity, and that there is no justification for negotiating with INTA, it would result in the effective capture of the entire DNSO by the INTA.
1/3/99	Marty Schwimmer	INTA application	Notes that he had only a "for discussion purposes only" INTA draft, it had not been agreed upon by INTA, there was no subterfuge.
1/3/99	Kent Crispin	Members	Notes that the one-member/multiple constituency rule was "consensualized", notes various voting and procedural safeguards that prevent capture by a single constituency.
1/4/99	Michael Sondow	INTA application	Personal attack on the integrity of Marty Schwimmer, focused on the idea that he wasted people’s time by not sharing the INTA discussion draft.
1/4/99	Michael Sondow	Members	Contends that the meeting notes showing a consensus doesn’t mean it’s so; feels that the voting rules are ambiguous; thinks that the power to belong to different constituencies, and therefore have disproportionate power in nominating candidates, is important.
1/5/99	Fay Howard (CENTR)	Funding	CENTR opposes a "tax" on registrations and wants registries to be able to determine their own methods for funding the DNSO and ICANN.
1/5/99	Fay Howard (CENTR)	Members	Opposes establishment of at-large membership, since ICANN itself already has public membership.
1/5/99	Fay Howard (CENTR)	Names Council	NC should have expertise to develop DNS policy.
1/5/99	Fay Howard (CENTR)	Overview	Recalls the consensus reached at 13 November meeting (concurrent with ICANN meeting) in Boston, voices its support for the principles agreed upon there. Compares the INTA and DNSO proposals for compliance with those principles.
1/5/99	Roberto Gaetano	Members	Membership is the area of the most disagreement; would like to revisit the constituency-based model.