[lir-wg] ICANN Reform

At 9:07 PM +0200 10/6/02, Hans Petter Holen wrote:
>Reading trough another important document the proposed bylaws I have the
>following comments:
>http://www.icann.org/committees/evol-reform/proposed-bylaws-02oct02.htm
>
>>Article I  Mission & Core values
>I note that policy development trough Openness and Transparency are not part
>of the mission or core values.

Hans Petter,

Surely that's what this core value statement (from the list in section 2) says:

"7. Employing open and transparent policy development mechanisms that 
(i) promote well-informed decisions based on expert advice, and (ii) 
ensure that those entities most affected can assist in the policy 
development process."

>Transparency is treated in a separate article III
>
>>Article II
>I note that the board may act by a majority vote, some times of all members,
>but in most cases of the members present. While this is normal and
>sufficient for most activities I am uncertain if this provides stability
>enough for ICANN. There should actually be a reference here to Article XIX
>which requires 2/3 for alterations or amendments to the bylaws.

Good point - the wording is "In all other matters, except as 
otherwise provided in these Bylaws..."; Article XIX is an example of 
"except as otherwise provided," but it would be clearer to refer to 
it specifically in the text of Article II.

>Article XIX should in my view also require an open process for changes and
>amendments, this process should explicitly include some endorsment from
>thesupporting organisations.
>
>The rationale behind this is that in a normal corporation or organisation
>changing the bylaws is not within the powers of the board but rather a task
>for the general assembly. Thus should be with ICANN aswell.

This may reflect a difference between what is "normal" in different 
countries. In a normal corporation or organization in the U.S., 
changing the bylaws is definitely within the powers of the board. For 
a public company, the shareholders (the general assembly?) can force 
or prevent bylaw changes by removing or seating individual directors, 
but they have no specific power of review. However, as this issue 
hadn't occurred to me before you raised it, I'd be interested to hear 
other viewpoints on how the Board's power to amend the bylaws should 
be specified.

>Artilce II Transparency
>some of the details on how to opreate a website hardly belongs in the bylaws
>but rather in some operating procedures.

True; we may have gone a bit too far in this Article, as ICANN has 
frequently been criticized on "transparency" grounds.

>Section 5.2
>Actions taken by the board shall be made public within 5 days.
>I am uncertain if this applies to the AC aswell ? Mayby they should ?

The new bylaws do not impose this requirement on the AC (nor does the 
existing MoU http://www.aso.icann.org/docs/aso-mou.html), but the AC 
could certainly choose to adopt such a requirement on its own account.

>Article IV Accountability and review and Article V Ombudsman
>I note that this is a fairly substantial set of roles and procedures to
>handle disputes etc:
>- and Ombudsman
>- reconcideration comittee of the board
>- Independendt review panel
>
>I whish a simpler structure could have been possible, but I guess the
>learnings have shown that this is necessary ?

Unfortunately, yes. Section 2(C) of the Final Report refers to our 
hope that the processes of the reformed ICANN will be sufficiently 
transparent and bottom-up that there will be fewer circumstances in 
which disagreements get to the point of requiring these 
dispute-resolution measures. While I think it is reasonable to *hope* 
for this, it would be naive to *expect* it.

>Article  VI
>Composition of the Board.
>As I understand the current ICANN Bylaws there shall be no less than nine
>(9) and no more than nineteen (19) members of the board.
>
>Three (3) Directors selected by the Address Supporting Organization,
>Three (3) Directors selected by the Domain Name Supporting Organization
>Three (3) Directors selected by the Protocol Supporting Organization
>
>and Nine (9) at large directors.
>
>pluss the president.
>
>In the new board there will be
>Eight (8) voting members selected by the nomination comitee
>Two  selected by the Address Supporting Organization
>Two selected by the Country-Coude Names Supporting Organisation
>Two selected by the Generic Names Supporting Organisation
>  plus the president
>
>To view the shift of influence on ICANN desicions I made the following
>simple calculations:
>
>      Old   New
>       ASO 3 16 %  2 13 %
>       PSO 3 16 %  0 0 %
>       Cc  0 %  2 13 %
>       G  0 %  2 13 %
>       Names 3 16 %
>       Other 9 47 %  8 53 %
>       President 1 5 %  1 7 %
>      19   15
>
>
>My observation is that the IP addressing community direct influence is
>reduced from 16% of the votes on the board to 13 % While the manes community
>direct influence is increased from 16 to 23%. To balance the view the
>addressing comunity is given some influence on the selection of the other
>board members by a seat on the nomination comitee just as we had some
>influence on the election of the at large representatives in the old bylaws
>trough participation on equal terms with other members of the community in
>the election process.
>
>I think this change reflects the focus of ICANN and I can understand, even
>tough I do not necessarily fully agree, thosse who think this change is so
>bad that the addressing comunity should walk away from ICANN.

I'm a bit confused by this. It seems to me that the interests of the 
addressing community and those of the names community are parallel, 
not overlapping, and certainly not in conflict; so this is not a 
"battle" in which the side with more Board members "wins." The world 
of names is much more controversial, and full of differing opinions, 
than the world of addresses. It is harder to ensure that all of the 
different viewpoints in the names arena are represented than it is to 
do this for the addressing arena. It's not "names are more important 
to ICANN than addresses."

>As a matter of principle I personnaly do not think it is a good idea to have
>the CEO of a company or a corporation be a voting member of the board. The
>CEO should report to the board and be sresponsible for carrying out the
>desicions of the board and thus not be part of the desicion makers
>themselves. This is however not a change to the current structure, and may
>just as well be a cultural thing.

I realize that this is done differently in different countries. In 
the U.S., every board I have been on has included the CEO as a voting 
member. However, it is not necessary (to put it mildly) for ICANN to 
always follow the U.S. model, so if anyone else feels that this is 
something that we should change, please let me know.

>Section 8.
>I am somewhat confused by this, couldnæt this be made much simpler ?

I don't much like it either, but we tried many different ways to 
describe this in simpler terms, and every one of them turned out to 
be either inaccurate or even harder to understand. Sigh.

>Article VIII Address supporting organisation
>As this mainly refers to the existing MOU I have no comments other than
>- there is the addition of a GAC liason to the Address Council which I see
>no harm in. I would however raise the question on wether the AC could have a
>liason to the GAC in return ?

This might be a good idea, but there's also the possibility that the 
GAC liaison could operate effectively in both directions - this is 
what we expect to be the case, for example, with the liaison from the 
TAC to the Board. It would be a good question for the AC to consider.

>- does the MOU need to be reviewed to fit better in the new Bylaws ?

We (the ERC) didn't see anything in the existing MoU that is in 
conflict with the new Bylaws (or vice versa), but it would certainly 
be a good idea for the AC to review both documents together.

>Article IX and X
>I note that while the ASO article consists of 5 parts of half a page or so,
>the Articles concerning the names span several pages. Most of this belong in
>the Bylaws or MOU of that particular supporting organisation.

You're right - Article VIII is short because there's another document 
(the MoU establishing the ASO) that contains the details; Article X 
is long because it's the only place, for now, to put the details for 
the GNSO. (Presumably, Article IX will be roughly the same length as 
Article X when the details of the ccNSO have been worked out, unless 
by then we have a separate MoU in which to put them.)

>Bottom line from reading this is that while I personally could live with
>most of it I get
>- less feeling of a bottom-up organisation with open processes, and more the
>feeling of an organisation with a board making top down desicions.

I know that the ERC's intention is for the reform process to produce 
an ICANN that is much more clearly driven bottom-up, with open 
processes; but I also understand that many people read the documents, 
and don't get that impression. It may be that the number of words 
necessary to be very careful and specific about what the groups at 
the "top" - the board, the SOs, and the other structures of ICANN - 
can and cannot do, and the way in which they must do it in order to 
be genuinely open and transparent, is just so much greater than the 
number of words necessary to say that "policy development is a 
bottom-up process that gathers input from the broadest possible range 
of interested parties through procedures that are open and 
transparent to all participants..." We tried to balance in the Final 
Report some of the inevitably top-heavy language of the Bylaws, but I 
do not think that we have been completely successful.

- Lyman