[To: council[at]gnso.icann.org] Dear Council Members, Please see a posting the Chair of the Registrar constituency, Jonathon Nevett, has requested be passed on to the Council regarding Proposed Bylaws Amendment. The attached word document is in plain text below and the marked up text in the document has been put in square brackets [] Kind regards, Glen de Saint Géry GNSO Secretariat - ICANN gnso.secretariat[at]gnso.icann.org http://gnso.icann.org ......................................................................... One year ago today, the GNSO passed a resolution recommending that the Board adopt the attached changes to the Bylaws. The recommendations were promptly forwarded to the Board for consideration. The proposed changes make it explicit that contracts that “substantially affect the operation of the Internet or third parties;” and contracts that have “a material impact on a third party member of the Internet Community” would have to be published for public comment prior to execution by ICANN. This does not include every contract that ICANN signs, rather a limited subset of the universe. Please recall that this request came in response to ICANN’s failure to post the final .net registry agreement for public comment prior to its execution. When asked about this occurrence in Luxembourg, the General Counsel stated that he had received advice from outside counsel that there wasn’t a */requirement/* that ICANN post the agreement for comment prior to its execution. While many of us disagree with that interpretation, we proposed the attached Bylaws amendment to make it clear that such a requirement does, indeed, exist. The following is an excerpt from the minutes from the 8/18/05 GNSO meeting: ** “John Jeffrey** commented from a staff perspective it was understood that the recommendation concerned issues that were raised in Luxembourg and were being presently articulated. Marilyn Cade's proposed change to the language was important and there was also some question regarding whether the scope of the language on which contracts would be included in such process was concise enough. John Jeffrey went on to say that clearly input from the Council was appreciated and that the Board should consider the recommendation but passing on specific language would not be appropriate at this early stage given that the Board would need to consider the input, and any Bylaw change would require a public comment period before it could be approved.” http://gnso.icann.org/meetings/minutes-gnso-18aug05.shtml Has the Board considered the recommendation in the past year? What has caused the delay? Will the recommendation be sent for public comment? I urge the GNSO and the Board to take action on this important issue. Thanks. Jon Nevett Network Solutions Attached word document: ICANN-bylaw change-ensure ARTICLE III: TRANSPARENCY Section 6. NOTICE AND COMMENT ON POLICY ACTIONS [AND CONTRACT APPROVALS] 1. With respect to any policies [or contracts] that are being considered by the Board for adoption [or approval] that substantially affect the operation of the Internet or third parties, including the imposition of any fees or charges, ICANN shall: a. provide public notice on the Website explaining what policies or contracts are being considered for adoption or approval and why, at least twenty-one days (and if practical, earlier) prior to any action by the Board; b. provide a reasonable opportunity for parties to comment on the adoption of the proposed policies [or approval of the proposed contracts,] to see the comments of others, and to reply to those comments, prior to any action by the Board; and c. in those cases where the policy action [or contract] affects public policy concerns, to request the opinion of the Governmental Advisory Committee and take duly into account any advice timely presented by the Governmental Advisory Committee on its own initiative or at the Board's request. [d. In those cases where the policy action or contract affects public policy concerns, notify the relevant Supporting Organization’s policy council and take into account any advice presented by said Council on its its own initiative or at the Board’s request.] 2. Where both practically feasible and consistent with the relevant policy development process, an in-person public forum shall also be held for discussion of any proposed policies as described in Section 6(1)(b) of this Article, prior to any final Board action. 3. After taking action on any policy [or contract] subject to this Section, the Board shall publish in the meeting minutes the reasons for any action taken, the vote of each Director voting on the action, and the separate statement of any Director desiring publication of such a statement. ARTICLE XV: GENERAL PROVISIONS Section 1. CONTRACTS [Consistent with ICANN’s transparency principles in Article III, the Board must approve all of ICANN’s material contracts in advance of execution.] The Board may authorize any Officer or Officers, agent or agents, to enter into any contract or execute or deliver any instrument in the name of and on behalf of ICANN, and such authority may be general or confined to specific instances. In the absence of a contrary Board authorization, contracts and instruments may only be executed by the following Officers: President, any Vice President, or the CFO. Unless authorized or ratified by the Board, no other Officer, agent, or employee shall have any power or authority to bind ICANN or to render it liable for any debts or obligations. [Before ICANN enters into or approves a contract that may have a material impact on a third party member of the Internet community, such contract must be published for public comment in final form and in its entirety (only information constituting trade secrets may be excluded when necessary) for at least 21 days before the Board can approve the contract for execution.]