Re: [ifwp] Analysis of the draft

[Jeff Williams <jwkckid1@ix.netcom.com>]

Eric and all,

  Eric makes some very good points here that we hope the ICANN will
take very seriously along with the NTIA.  Below are our comments and
suggestions to what Eric has provided.

Eric Weisberg wrote:

> Here are my high-lights of the ICANN proposal, with minimal editorial
> comment.
>
> 1.  The purposes clause has been redrafted to only list the specific
> activities currently contemplated.  They are:
>
> (i)   coordinating the assignment of Internet technical parameters as
> needed to maintain universal connectivity on the Internet;
>
> (ii)  performing and overseeing functions related to the coordination of
> the Internet Protocol ("IP") address space;
>
> (iii) performing and overseeing functions related to the
> coordination of the Internet domain name system ("DNS"), including the
> development of policies for determining the circumstances under which
> new top-level domains are added to the DNS root system;
>
> (iv) overseeing operation of the authoritative Internet DNS
> root server system; and
>
> (v)  engaging in any other related lawful activity in
>      furtherance of items (i) through (iv).
>
> There is no structural impediment to changing the Articles to assume
> additional functions.

  Form this lack of a structural impediment we can only assume that
this proposal and the IANA as well as NSI did not or do not foresee a
need for such a structural impediment.  We find this to be rather short
sighted and potentially dangerous to the long term balance and
stability of the Internet and particularly potentially damaging to the
ecommerce constituents that are emerging as a larger portion of the
internet community and could serve to destabilize the economic
foundation of the Internet industry and possibly significantly damage
the financial structure of some nations.

>
>
> 2.  There is a disclaimer of personal liability of directors for acts or
> omissions.

  This is particularly troubling concern in our opinion.  It is common
that mostcompanies profit and non-profit alike directors and officers
must take on some degree of management responsibility.  These
responsibilities should be spelled out clearly and completely.  Some
potential financial incumbency in the form of business liability
insurance should be provided by the ICANN for these directors
and officers as is normal in most corporations, profit and non-profit
alike.

>
>
> 3.  The Articles may be amended by the affirmative vote of at least
> two-thirds of the directors or four-fifths of the members (if there are
> any).  The Articles do not limit how the By-laws may be amended.

  This is also another area that needs much attention and amendment
indeed.It has been stated and determined by a unanimous consensus of
the IFWP that this andy amendments to the bylaws should be determined
by the membership.  In that no membership is defined in the ICANN's
bylaws or articles of incorporation is is no wonder that this provision
reads as it does.

>
>
> 4.  There is no provision for members in the Articles.

Yes, and this is totally unexceptable.  By not having any membership or
provisionfor equal individual membership in particular is also a stark
example that there was little attention paid by the IANA specifically
in the creation of these ICANN bylaws and articles of incorporation.
This is also stark evidence as to ignore the White Paper to a great
degree as well.

>
>
>                         ***********************
>
> BY-LAWS:
>
> 1.  No INITIAL membership.
>
> 2.  The board and its subordinate organizations shall operate to the
> fullest extent feasible in an open and transparent manner.  The actual
> procedures to accomplish that goal are left for later determination by
> the board.

  Yes we are sure that the board will be open and aboveboard in
creating anmembership organization, right?   We think not.  Rather it
is terribly necessary that a membership organization to include both
Supporting organizational membership and individual membership on an
equal basis should be done initially.

This was also a consensus item of the IFWP that seems to have been
either ignored or not considered important enough to do at the present
time, even though several proposals for such a membership organization
were provided as part of the comments on the IFWP E-Mail list and also
sent to the IANA comments e-mail list on many occasions.

> This policy statement might better be put in the Articles
> where it would be more secure, and the policies could be defined in
> terms of existing legal constructs, such as USG Freedom of Information
> Act and the California Open Meetings and Open Records Acts.

  Good point here Eric.

>
>
> 2a. There is no provision for due process in adjudication.

  Agreed and yet another of several points that seems to have either been
overlookedor not considered paramount at this time.

>
>
> 2b. There is no provision for equal access to internet resources to the
> fullest extent feasible.

  This is also a VERY troubling point in that it is central to what
this new entityis supposed to be all about.  It may be that this
could and possibly should be determined by the SO's should there ever
be any pre-defined or to be determined later.

>
>
> 2c. There is no provision stating a preference for competition over
> monopoly solutions.

  Again a curious lack of inclusion as well.

>
>
> 3.  The board will make annual financial disclosures and post its
> minutes and those of the supporting organizations and councils.
> However, it will not have to post minutes relating to "matters that the
> Board determines are not appropriate for public distribution..."

  Yes, and these matters should be spelled out in the bylaws in detail.

>
>
> 4.  The notice of meetings provision generally contemplates notice of
> what will be considered at each meeting, but appears to allow new items
> to be discussed and decided which are not covered in the notice of the
> meeting.

  This should not be allowed or at least severely discouraged.

>
>
> 5.  The interim board can only act upon a 2/3 vote.

  This is a very difficult provision that has both good and bad possible
ramifications.

>
>
> 6.  The Corporation shall recognize and abide by the terms of any
> agreements entered into between the United States of America and
> Network Solutions Inc. and between the United States of America
> and the University of Southern California and between the United
> States of America and the Corporation in connection with the creation
> of this Corporation and the transition to the Corporation of various
> coordination and other responsibilities related to the Internet.

  This we find to be very curious and somewhat incomplete legally in
that it leaves out most of the rest of the world, and most especially
those other organizations within the US that have and are major
stakeholders.

>
>
> 7.  The Supporting Organizations shall constitute a primary funding
> source for the Corporation.  All fees and charges shall be set by the
> Board.

  This is both unwise and very limiting especially in  the early going.

>
>
> 8. The Board shall have nine At Large members, the president (when
> appointed) and those directors that have been nominated in accordance
> with these bylaws by any Supporting Organization(s).

  All supporting organizations should be subject to the vote of ALL of the
stakeholders.However there is not initial membership provided for in the bylaws,
hence this
provision we suppose.  We find this to be grossly unfair, in violation to the
White Paper, and not in keeping with the IFWP consensus.

>
>
> 9.  The At Large members of the Initial Board shall serve until
> September 30, 1999, unless by a two-thirds (2/3) vote of all the
> members of the Board that term is extended for an additional period, to
> expire no later than September 30, 2000.

  We find this to be far too long for Interim board members to be in
acontrolling position and frankly unnecessary if these board members
are of any worth.

>
>
> 10.  Upon receipt of nominations from supporting organizations, the
> Board shall elect such persons as members of the Initial Board.
> <This does not seem to contemplate discretion in the board.>
>
> 11.  The number of Directors shall be no less than nine (9) and no more
> than nineteen (19).

  This is fine, but most likely it is not necessary to have more than 15
directors initially.

>
>
> 12.  Each Board after the Initial Board shall be comprised as follows:
>
>           (i) Three (3) from the Addresses SO;
>
>           (ii) Three (3) from the DNS SO;
>
>           (iii) Three (3) from the Protocols SO; and
>
>           (iv) Nine (9) At Large Directors;  and
>
>           (v) The President
>
> 13.  The 9 at large directors shall be selected pursuant to a process to
> be established by a majority vote of all the At Large Board members of
> the Initial Board.
>
> 14.  No more than one-half (1/2) of the total number of
> At Large Directors serving at any given time shall
> be residents of any one Geographic Region, and no more
> than two (2) of the Directors nominated by each Supporting
> Organization shall be residents of any one Geographic Region.
>
> 15.  Directors shall be elected at each annual meeting of the Board,
> which means that they will be elected by the board and not the
> members nor the SOs.

  Yep, and this is just a very bad provision for obvious reasons.

>
>
> 16.  If the At Large directors determine that it is feasible to have a
> membership structure, they shall design a process for election of At
> Large directors by one or more categories of members.  Any
> process for election by members shall provide an initial means for
> determining adequate support for any nominee and establish
> qualifications for submission to the membership.

  This seems to violate the White Paper in that all stakeholders are
bydefinition members.  It is also in direct conflict with the NSI draft
and the IFWP consensus.

>
>
> 18.  Telephonic meetings are allowed, but there is no provision for
> public access.  There is no provision for on-line meetings.

  This too is also quite curious and frankly, just plain silly.  With
the adventof video conferencing and teleconferencing, there is no
reason that public access or at least membership access cannot be
provided for those that wish to participate.

>
>
> 19.  The Supporting Organizations shall serve as advisory bodies
> to the Board.

  We find this provision to exactly backwards.  Rather the board should
serve asimplementation and advisory capacities to the SO's and their
directors.  This provision as stated smacks of a collective
dictatorship model.

>
>
> 20.  The Board may add additional Supporting Organizations by a
> two-thirds (2/3) majority vote of all members of the Board and
> reallocate the positions on the Board.

  Again this provision is flawed in that it should say that the
membershipshould by majority vote determine the addition of any
additional SO's or SO seats for existing SO's.

>
>
> 21.  Any individual or organization that wishes to participate in a
> Supporting Organization may do so provided it meets the qualifications
> adopted by the Supporting Organization and ratified by the Board.

  Again this smacks of real trouble in that is is in effect a
collectivedictatorship model and leads to capture of the ICANN itself
by means of previous relationship or through bribery with the use of
financial consideration.

>
>
> 22.  The Articles of Incorporation and Bylaws of the Corporation may be
> amended upon two-thirds (2/3) majority vote of all members of the Board.

  Again a poor method of managing such a organization and leaves out
any real inputor consideration of a membership organization.  This
sort of thing should be determined by a majority vote of the
membership.

>
>
> 23.  There is no provision for initiative or referendum by a membership.
> However, there is mention in the Articles that the Articles may be
> amended by 4/5ths of all members (nearly impossible).  There is no
> provision for how the members would vote (presumably by e- and/or snail
> mail).

  Yes and this is extremely weak and is bound to be challenged in
  courtif adopted.

>
>
> Eric Weisberg, Gen. Counsel
> Internet Texoma
>
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 Regards,

--
Jeffrey A. Williams
DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com