Re: The IANA ByLaws - Third Iteration

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

Jon and all,

Jon Postel wrote:

> Hello.
>
> For several months now, we at the IANA have been working with many
> others in the Internet community to create a beginning structure for a
> New IANA, capable of taking on the somewhat broader responsibilities
> envisioned in the White Paper.  We have had too many conversations to
> count, participated in one way or another in nearly all of the
> meetings held around the world to discuss this subject, and received
> comments and suggestions via e-mail from hundreds of individuals and
> organizations.
>
> We have tried faithfully to serve as an "honest broker", seeking to
> combine all this input into concepts and documents that would have the
> broadest possible acceptance from all parts of the Internet community.

  If this statement were true you Jon Postel would be participating in the
discussionsand debates on the IFWP E-Mail list.  In that you have not we cannot
accept
this statement as genuine and is a purposeful misleading statement in total.  It
is
this kind of statement that has lead many of us to have little trust in the
leadership
of the IANA.

> We are now coming to the end of this long process.  I believe the
> result is a proposal for a New IANA that does have the support of a
> substantial majority of the Internet community.
>
> The third iteration of draft bylaws produced by the IANA is now
> available on the IANA web site.  We hope and believe that this third
> version is essentially the final version and that it will be endorsed
> and supported by nearly all of those stakeholders that are
> participating in this process, and will protect the legitimate
> interests of the millions of individuals and groups that have an
> interest in the outcome of this process but have not been able to
> directly participate in it.

  Well after reading the third iteration of the IANA's bylaws, they show
littledifference from the first iteration in as much as structure is concerned.
And it is this structure that is basic in the long term success of the the New
non-profit
corporation.

  The total lack of equal participation of individuals in your bylaws is not a
balanced
approach and does not in our minds meet the needs, requirements or desires of
the
majority of Stakeholders, of which Individuals, devoid of membership or as
members
of what your bylaws call "Supporting Organizations".  Each individual member
must have a VOTE in this process and in the policies that may come from the
eventual structure of the new non-profit corporation that the White Paper
requires.

>
>
> There have been a number of changes made from the second iteration in
> direct response to specific comments and suggestions, including the
> following:
>
>         -- several comments suggested there should be specific
>         guidelines to insure that the Supporting Organizations (SOs)
>         were in fact open and inclusive.  Additional specific criteria
>         were added.

  This is fine, but it is stacked in the favor of well financed organizations
andthereby sets up a barrier to entry.  It is doubtful that these changes will
meet
legal and moral musters.

>
>
>         -- proposed language that made it clear that every Board
>         member, no matter how selected, owed his or her legal and
>         fiduciary duty to the Corporation, rather than to a particular
>         SO, employer or other entity, was added.

  THis is a good idea an should be put in place.

>
>
>         -- in response to concerns that industry users were not
>         sufficiently represented, specific language was added to make
>         it clear that industry and other users are an important
>         constituency whose input must be given appropriate weight in
>         both the Corporation and particularly in the Names Supporting
>         Organization and Council.

  This is a nice statement, but does not get to the ROOT of the problem
withsection 5 and sections 4 that outlines whom may serve on the Board and the
relevant councils and how they are elected.  In fact there is no provision for
individuals to have the equal opportunity to serve on these councils and the
board
nor is there a provision for individuals to vote unless that vote is cast by
some
"Supporting Organization".  Had you been following the tenor of the discussion
on the
IFWP list, you would know that the need and desire for individuals to be the
base or
the new Non-profit corporation on an equal basis with any and all "Supporting
Organizations".

>
>
>         -- the transparency requirements were expanded in response to
>         specific suggestions to require more notice of meetings,
>         disclosure of payments to directors, disclosure of reasons why
>         any particular Board action is not publicly disclosed (for
>         example, sensitive personnel matters) and to add a specific
>         timing requirement for the public posting of Board minutes.

  All board minuets must and should be posted immediately if a true open,fair
and transparent non-profit corporation is to be formulated.

>
>
>         -- the prohibition against governmental officials becoming
>         members of the Board was clarified and narrowed in response to
>         concerns that it would inappropriately exclude knowledgeable
>         people from many parts of the world, and the geographic
>         diversity requirement was clarified by adopting a specific
>         suggestion.
>
>         -- the funding provisions were adjusted to make it clear that
>         the Board sets the funding mechanism and levels, and to make it
>         clear that the SOs are a primary (but not necessarily
>         exclusive) source of funding.

  Yes but the modification of this provision is very unclear and does not
outline in briefeven.  And it is not appropriate to make the SO's the primary
source of funding
when other much more effective funding mechanisms are available and more secure.

We posted several examples of those other sources as well.  It is clear that
they
were either ignored or not well understood.  they are in short as follows:

1.) Issuance of warrants that can be sold.
2.) A bond issue
3.) Private stock
4.) Donations from international or research trusts.


>
>
>         -- two specific Advisory Committees (for Governments and the
>         Root Server) were established in response to specific
>         suggestions.
>
> It is clear from some of the comments we received, and some of the
> public statements that have been made, that some of the provisions of
> earlier drafts were not understood by all who read the document.
> Thus, we also have specifically answered some of the most common
> questions that have been asked about the draft bylaws, immediately
> following this statement.  In addition, we have annotated the third
> iteration of the draft bylaws so as to help the reader to understand
> both the reasons for a particular approach and to highlight changes
> from previous versions.
>
> It is important to remember that the goal is to produce an
> organization that will be recognized around the world as the
> legitimate body to undertake the coordination tasks that the White
> Paper sets forth as necessary to the continuing stability and security
> of the Internet.  The New IANA must have legitimacy -- that is, it
> must be supported by a consensus of what the White Paper calls the
> "stakeholders".

  The problem with the third iteration of the IANA's bylaws is neither timely
nor
does it meet the standard of true representation of all of the stakeholders,
especially
individuals that do not belong to any SO or care to.  I also leaves out the vast
majority
of the user community as they are mostly individuals not associated with any
specific SO nor do they care to be.

>
>
> This requires compromise, and it also means that few (if any) of the
> most contentious issues that are so important to so many people will
> (or could be) resolved at this time.  Those issues -- new TLDs,
> trademark dispute resolution procedures, profit vs. non-profit
> registries, the precise role of the various stakeholders in the new
> body and its subordinate organizations, and many others -- are
> important and difficult.  But they are problems that the New IANA will
> have to address, not issues that can be resolved during the very short
> time that we have to actually form the new organization.  The critical
> goal -- the one that cannot be postponed -- is the creation of a
> consensus organization sufficiently ahead of September 30, 1998, that
> it can take its proper place in the discussions between the United
> States Government and relevant parties over the shape and content of
> the transition over time of the various activities that have been
> carried out by the IANA, NSI and others.
>
> This limited objective is difficult enough; "global" and "consensus"
> are two very difficult concepts in this context.  But it cannot
> possibly be accomplished if the various stakeholders are not willing
> to, in good faith, create what can and must be done now -- a
> legitimate consensus organization -- and defer for the Board's later
> consideration those issues which require additional open dialog both
> with and within the Supporting Organizations and the broader Internet
> community.

  And the current IANA have not acted in good faith in this process far morethan
any other organization or individual as the IANA nor any of its leadership
have participated fully in the discussions in the IFWP e-mail list or all of the

conferences.  ANd it is this lack of participation that is very telling on their

real interests to many.
  Handing over all of the power in the decision making process to the BOard,
as stated in this comment above is a good example of how the lack of
understanding and
awareness the current IANA has as to the needs, desires and requirements of the
Stakeholders.

> This has been the objective of the IANA drafts from the
> beginning and it continues to be the objective now -- to find the
> common ground around which a sufficient number of stakeholders can
> coalesce so that it can fairly be described as a consensus
> organization.

  And from these drafts, it is obvious even to the casual observer that the
participationand attention of the IANA has been terribly lacking in may ways as
we have pointed
our on several occasions including this one.

>
>
> I hope that we have accurately collected and set forth in this latest
> iteration the ideas and concepts that will earn the endorsement and
> support of all who read them.  We have certainly tried very hard to
> include in each of our documents the best thinking of the community as
> we understood it at the time, and this latest version benefits from
> considerable public and private discussions over the last several
> weeks.

  Well if you Jon or any other or your staff at the IANA had been paying
adequateattention, you would know that none of the Drafts of your bylaws have
even come
close to anything near a consensus.

> Because we do not have much time left, it is now time to come
> to closure on the structural issues of the New IANA, and move on to
> deal with the actual creation of the New IANA and the necessary
> discussions and negotiations leading to a smooth transition of various
> responsibilities on September 30, 1998.

  It has been past time Jon, for over two years now.

>
>
> Of course, we continue to welcome suggestions and comments for
> improvement in this latest draft, but we would also encourage those of
> you who are willing to support and endorse this effort to go on the
> record to that effect, so it will be clear to all relevant parties that
> this effort does have the strong consensus support of the Internet
> community.

  Well as I have stated above, we do NOT support for these bylaws.

>
>
> Please see the new bylaws on the IANA web pages at
>
>                 http://www.iana.org/bylaws3.html
>
> --jon.
>
>                         FREQUENTLY ASKED QUESTIONS
>
> 1.  Why don't the draft bylaws simply provide for a single world-wide
> membership of Internet users?
>
>      This entity is basically an administrative entity, not a governance
> entity.  Its primary purpose will be to preserve the stability and security
> of the Internet, and that purpose will involve technical coordination
> issues to a very significant extent.  Thus, a major -- arguably the most
> important -- task of the New IANA will be to do what the old IANA has done:
> ensure that the Internet functions efficiently from a technical
> perspective.  The practical reality is that universal suffrage -- at least
> in all the ways we have seen proposed so far -- would significantly
> increase the risk of preventing or impeding the New IANA from efficiently
> carrying out its critical administrative functions, and some great risk
> that the entity could be either paralyzed by process or easily captured by
> narrow interests that do not represent the Internet community as a whole.
>
>      Having said that, it is clear that the New IANA is also likely to have
> a role, perhaps an important role, on issues that are not purely technical,
> such as dispute resolution policies and the number and kind of TLDs.  While
> these issues may have technical aspects, they clearly also have policy and,
> in some cases, commercial implications that go beyond technical issues.  In
> this context, it seems clear that those who are likely to be affected by
> decisions of the New IANA should have some way to influence those decisions
> to ensure that their voices are heard in the policy debates.  Thus,
> commercial interests (including but not limited to trademark holders),
> individual entrepreneurs, even individual users or their representatives
> (who could theoretically be private organizations or governmental bodies),
> in addition to the various entities (address and name registries, etc.)
> that actually directly contribute to the operation of the Internet -- all
> these "stakeholders" have a legitimate interest in how this New IANA is
> structured and will function.
>
>      Unfortunately, that conclusion is the easy part; creating the
> processes and structures that will accomplish all these objectives -- which
> can be summarized as accountability and effective operations -- without
> creating the dangers noted earlier is very hard.  Simply having a single
> world-wide membership, with the logistical difficulties that necessarily
> entails, might make it impossible for the entity to respond to technical
> needs as they arise, and could endanger the stability and security of the
> Internet.  By instead creating as the working part of the New IANA several
> SO's, which will be required to have open and inclusive membership rules
> and will be principally responsible for the development of policies, the
> New IANA will be able to keep the technical aspects of the Internet stable
> and secure in a manner that is responsive to the stakeholders.
>
> 2.  Why did the most recent drafts of the IANA bylaws omit a Supporting
> Organization for Industry and Users?
>
>      The original IANA draft bylaws called for the creation of four
> Supporting Organizations (Protocols, Addresses, Names and Industry/Users)
> that were intended to represent the various stakeholders populate the New
> IANA's board.  There seemed to be a general consensus in favor of the first
> three of these SO's, but widespread criticism of the Industry/User SO.
> Although there was universal recognition that industry and other users were
> a very important constituency, the concerns about the proposed
> Industry/User Supporting Organization boiled down to an uncertainty about
> how such an SO would get established, and whether it could possibly
> represent the potentially diverse interests of all users and commercial
> interests.  In short, almost no one who expressed a view liked that
> solution to the problem of giving a voice to industry and other users.
>
>      As a result, more recent drafts have replaced the Industry/User
> Supporting Organization with At Large Board members, on the belief that At
> Large members would represent the public interest, including particularly
> any interests of commercial and individual users that were not adequately
> dealt with in the other SO's.  In addition, the number of At Large members
> was increased from the 6 originally to be nominated by the Industry/User SO
> to 9, to provide a stronger voice and representation to industry and other
> users and thereby balance the more specialized board members selected by
> the other three SO's.  Since it was clear that it was not possible to
> actually produce an immediate consensus on how those At Large members would
> be selected in the future, the Initial Board was given the specific charge
> to devise the methodology for that selection process.  Of course, should it
> find it useful or desirable, the Initial Board could also create a
> Supporting Organization to represent users.
>
>      In addition, the IANA draft bylaws have always contemplated that the
> Supporting Organizations, whose Councils would be the working level
> entities of the New IANA,  would be membership organizations, with open and
> inclusive membership rules.  Since, for the reasons noted earlier, it was
> not immediately obvious how individual (as opposed to organizational)
> memberships could be practically managed without interfering with the
> effective functioning of the important technical and policy decision making
> of the SO's, they and the Initial Board were specifically charged with
> considering this issue.  Thus, the approach used in the IANA draft bylaws
> was to have half of the Board selected by the SO's, which are clearly
> membership organizations, and the other half be At Large members, charged
> with representing the broad public interest, and to assign to the Initial
> Board the difficult job of figuring out what means of Board selection and
> SO membership would best balance the need for proper accountability and the
> need for an effectively functioning organization.
>
> 3.  Why doesn't the IANA support a single world-wide membership open
> to all interested persons, with "nominal" dues, voting by proxy, and
> with the right of any member to appeal decisions that are made.  Isn't
> that approach preferable?
>
>      We do not believe that any of the proposals we have seen so far
> adequately address the problems that are inherent in such an approach.
> First, such unstructured  membership provisions could rather easily be
> manipulated by a determined minority to capture control of the New IANA.
> The combination of "nominal" dues, a relatively small  quorum requirement
> (which would probably be essential to ever allow any business to take
> place) and the use of proxies would make it very easy to stack any
> particular meeting simply by paying the nominal membership fees of a large
> number of people and then obtaining their proxies.  In addition, the
> practical difficulties in keeping records relating to individual members
> from all around the world, and authenticating their votes (and proxies),
> would be very substantial -- and undoubtedly very expensive.
>
>      In addition, the proposals we have seen combine broad membership with
> notice and "due process" features that seem completely unworkable.  Under
> one plan, a proceeding could be initiated by any member, and while it is
> not clear as to exactly what the Board would have to do with each of these
> "proceedings" -- which given the "nominal" dues could easily amount to the
> thousands or even hundreds of thousands -- the potential for the Board to
> be inundated and prevented from doing its real work is very real.  Since
> under this proposal notice would have to be given to "any affected party,"
> which could easily number in the millions or more, and any "affected party"
> could appeal any Board decision with which he or she disagreed, this
> process could literally be endless.
>
>      These points are illustrative of the kinds of problems with very broad
> and open membership rules.  The "bottom up" process set forth in the IANA
> draft bylaws -- where open and inclusive Supporting Organizations are the
> primary source of policy initiatives and half of the Board is selected to
> represent those interests not directly involved in the Supporting
> Organizations -- balances the need for openness and accountability with the
> absolute necessity that the New IANA be able to function effectively.  To
> the extent that there are different or additional procedures that could be
> established that would be consistent with these objectives, the Initial
> Board is charged to investigate those possibilities and make whatever
> changes are consistent with the purposes of the Corporation.
>
> 4.  What authority do the IANA draft bylaws give to the Supporting
> Organizations, and what authority do they give the Board?
>
>      The IANA draft bylaws place the primary responsibility for developing
> policy and making recommendations in the Supporting Organizations and their
> Councils.  The Board reviews any recommendations from the SO's/Councils,
> and either approves them or returns them with comments for further
> consideration.  The Board must approve any such recommendations if they (1)
> comply with the Articles and Bylaws, (2) were arrived at through fair and
> open processes (including permitting participation by other SOs), (3) are
> not opposed by any of the other SOs,  and (4) further the purposes of the
> New IANA.  Only in the extraordinary circumstance where, after reasonable
> efforts, the Board does not receive a proposal that meets these standards
> or there is a conflict between the SOs can the Board act on its own
> initiative.  This procedure was intended to preserve the need for the
> Board, which is the legally responsible entity, to act if it needs to, but
> to make clear that except in unusual circumstances policy decisions by the
> Board will be based on recommendations from the SO's/Councils.  This should
> ensure the New IANA is accountable and responsive to stakeholders, can deal
> effectively with technical issues as they arise, and preserves the
> stability and security of the Internet.
>
>      Once the policy decisions have been made, they would be carried out by
> the staff of the New IANA, which would be hired and directed by the Board.
> The Board would set the budget and carry out the other administrative
> duties of the New IANA.  Thus, in operational details the Board has the
> principal authority, while on policy matters the principal authority lies
> with the Supporting Organizations and their Councils, all of which must be
> open, inclusive membership organizations as set forth in the draft bylaws.
>
> 5.  Why do the draft bylaws provide for incorporation in California?  Since
> most companies are incorporated in Delaware, isn't that a better choice?
>
>      There has been surprising amount of attention to this subject, which
> would seem to be a technical matter of little importance.  There seems to
> be general agreement that, as set forth in the White Paper,  the New IANA
> should be a U.S. non-profit, tax exempt corporation.  This follows a
> well-known pattern for service organizations of this kind.  If such an
> entity is incorporated in the U.S., one must choose one of the states.
> Delaware is the most popular state for for-profit corporations, because its
> laws governing for-profit corporations are well-developed and generally
> favorable to the prerogatives of management.  The Delaware law on
> non-profit corporations, however,  is not as well developed.  In fact,
> Delaware does not even have a specific non-profit corporation code, and
> instead relies on its general corporation law for the formation and
> operation of non-profit corporations.  This reliance has led to litigation,
> and some uncertainty, as to the applicability of certain provisions of the
> general corporate law to non-profits.  California, on the other hand, is a
> large and populous state with a specific non-profit corporation code and a
> very well-developed body of law dealing with non-profit organizations.  In
> addition, because of the high concentration of high technology companies
> and other scientific activities in California, the California courts may be
> more aware of and knowledgeable about technology issues than the courts in
> many other states.  Thus, California seems a logical choice.  We are
> unaware of a compelling argument for any other state, even though we have
> solicited that information on several occasions.  If such a compelling
> argument exists, we would be glad to consider it, and if it is indeed
> compelling, we would certainly have no objection to taking advantage of
> that preferable jurisdiction.
>
> ===========================================================================

 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