[ncdnhc-discuss] Revised Resolutions.

[Harold J. Feld]

I have added the resolutions proposed by Milton Mueller, on addition of 
new TLDs, and myself, on disagregation of the NCDNHC.

Harold Feld


 Proposed Resolution #1
 
 PROPOSED RESOLUTION: BOARD EDUCATION ON DUTIES
 
 Whereas: ICANN's responsibilities extend globally, but its place of 
 incorporation is in the state of California in the United States.
 
 Whereas: California Corporations Law specifies both rights and 
 obligations of corporate directors including directors of Public Benefit 
 Corporations such as ICANN under which directors personally may incur 
 both civil and criminal liabilities.
 
 Whereas: Under the California Corporations Law, directors of a Public 
 Benefit Corporation, have a legal duty to perform their duties on the 
 Board and on committees of the Board "in good faith, in a manner such 
 director believes to be in the best interests of the corporation and 
 with such care,
 including reasonable inquiry, as an ordinarily prudent person in a like 
 position would use under similar circumstances." (Calif Code, Section 
 5231, Nonprofit Public Benefits Corporation, 
 www.leginfo.ca.gov/.html/corp_table_of_contents.html).
 
 Whereas: California Code Section 5231 requires an understanding of 
 complex legal concepts that are influenced and interpreted under 
 California and United States law and cases.
 
 Whereas: Only one current Director of the ICANN board is a) a U.S. 
 citizen or b) an attorney licensed in California. Accordingly, the ICANN 
 Directors may not be expert in their legal responsibilities or even in 
 the culture from which these rules and obligations are derived.
 
 Whereas: All Constituencies of ICANN are entitled to and deserving of 
 Directors who know and understand their legal obligations under 
 California law with respect to the employees and staff of ICANN, the 
 purposes of the Corporation, and the corporate actions taken by the 
 Directors (including MoUs and contracts signed).
 
 Be it hereby resolved that:
 
 The ICANN Board undertake immediately after the Shanghai meeting, and 
 prior to any further meetings, conference calls, or decisions, to engage 
 an independent legal expert to offer a class or classes (online, by 
 telephone or in person) on the rights and obligations on Board members 
 under US and California law. Such an expert must be neutral, and come 
 from a law firm or ethics practice that does not currently participate 
 in the ICANN process or represent clients who participate in the ICANN 
 process.
> 
 Such a process must delve into the meaning of obligations including 
 "good faith," "care," "reasonable inquiry" and "ordinarily prudent person."
 
 Such a class must be obligatory on all existing Directors, and a 
 prerequisite for all new Directors prior to assuming their office.
 
 ###
 
 Proposed Resolution #2
 
 Submitted by Hans Klein
 Director, Civil Society Democracy Project
 Computer Professionals for Social Responsibility (CPSR)
 
 PROPOSED RESOLUTION: NEUTRALITY OF STAFF AND COUNSEL
 
 Whereas: The deliberations and decisions of ICANN must be made in the
 interests of the global Internet community as a whole.
 
 Whereas: The protection of ICANN and the protection of its directors
 require that its policy and legal advice come from independent and neutral
 advisors.
 
 Whereas: All ICANN constituencies are entitled to the reassurance that
 their concerns and recommendations are being fairly and impartially
 evaluated by the staff and counsel responsible for the preparation of
 recommendations and reports to the directors and to the Internet
 community.
 
 Whereas: The Neutrality and Independence of ICANN's staff and counsel
 are critical to public perceptions of legitimacy and accountability.
 
 Be it resolved that:
 
 The ICANN Board should take immediate steps to adopt a policy
 which requires that no staff or counsel of ICANN who is engaged in policy
 or legal recommendations or reports shall directly or indirectly 
 represent (as
 a legal matter) or directly or indirectly benefit (as a financial 
 matter) from
 individuals or entities who participate in any of the ICANN constituencies
 or in any ICANN process.
 
 ###

RESOLUTION CALLING FOR A UNIFORM,
FIXED PROCEDURE FOR ADDING TOP-LEVEL
DOMAINS TO THE DNS ROOT
Proposed by Milton Mueller



1. Whereas ICANN's primary duty in the administration of
DNS is to coordinate a root-level registry and to determine
the contents of the root-level zone file; and

2. Whereas there is now, and will be for the foreseeable
future, legitimate demands to add new TLD names
and to permit the entry of new registry operators into
the domain name services market, and

3. Whereas ICANN has to date established no fixed,
uniform and predictable procedure for responding to
those demands; and

4. Whereas, success or failure in the marketplace,
not the predictions of central planners, should
determine which TLDs exist and who operates
them; and

4. Whereas ICANN's ad hoc methods for considering
new TLD additions creates uncertainty in the marketplace,
increases the costs of entering the market, restricts
competition, harms consumers and users, and contributes to
arbitrary decisionmaking and the corruption of ICANN
processes:

BE IT RESOLVED, THAT

1. ICANN should call upon the Internet Engineering
Task Force to form a working group to determine how
many TLDs can be safely added to the DNS root each
year;

2. ICANN should initiate efforts to specify a set
of minimal technical requirements for the operation of a
TLD, these requirements to be ready within six months
of the end of the Shanghai meeting;

3. Once the IETF has defined the safe number
of TLD additions per year, ICANN staff should define a
routine procedure for applying for, qualifying, and
awarding TLDs to applicants on an annual or semi-annual
basis. This procedure should NOT involve evaluations of the
business plans or social worth of the applications, but simply
their ability to operate a registry without imposing noticeable
technical externalities upon other users/suppliers of the DNS.

4. ICANN should use non-discretionary methods,
such as auctions, lotteries or some other objective method,
to resolve incompatible applications for TLDs.

5. A transition plan should be defined allowing
registries operating under legacy contracts to be
operated on the same lightweight contractsl as new
entrants.

6. Economic and conduct regulation of TLD
registries should be considered out of ICANN's scope
as a technical coordinator, and devolved to national
governments
____________________
RESOLUTION ON DISAGREGATION OF NONCOMMERCIAL CONSTICUENCY
Proposed by Harold Feld


Resolved: The Non-commercial Consticuency recommends the creation of further 

non-commercial consticuencies that may more properly represent the diversity of 

non-commercial user voices.  While non-commercial entities share many characteristics, 

discrete sets of non-commercial entities have different interests.  

It would better serve the ICANN process for these different interests to 

self-organize into more coherent units than the current broad "non-commercial" catagorization.

The Names Council should encourage this disagregation and signal its willingness 

to admit new, self-organized consticuencies.