I suggest that we do our own legal analysis like we did with the two versions of the DAG to identify exactly what issues must stay in the Bylaws and develop our rationale for that so that we can either demand that those stay in the Bylaws or insist on mitigating language. I am sure that Jonathan Spencer will participate on our part. Should we arrange a conference call of RyC attorneys? Jeff - do you want to do that? Chuck

-----Original Message----- From: Neuman, Jeff [mailto:Jeff.Neuman@neustar.us] Sent: Sunday, April 05, 2009 9:13 AM To: avri@acm.org; council@gnso.icann.org; policy-staff@icann.org Cc: liaison6c@gnso.icann.org; Gomes, Chuck Subject: RE: [liaison6c] Re: [council] Draft Revisions to the ICANN Bylaws Relating to GNSO Restructure

All,

My biggest issues, which I have explained to staff and my constituency surrounds taking elements out of the Bylaws and putting them into an Operating Rules document as has been implied by many councilors as well as by staff. I understand the view that it MAY provide for some flexibility, but taking any elements of the PDP out of the bylaws has implications on the contracted parties which MUST be fully considered by the legal staffs on the registries/registrars and ICANN prior to taking any such actions since our agreements refer to the Bylaws for the policy process.

Perhaps more importantly, by taking elements out of the Bylaws, you are essentially removing those elements from the Independent Review Process. The IRP is only for cases in which the Bylaws are violated. If the elements are not in the Bylaws, there is no review and hence NO ACCOUNTABILITY. As we have seen in the XXX IRP, the ICANN staff considers the IRP to be extremely narrow (Too narrow in my opinion). Nonetheless, I for one do not want to take things out of the Bylaws without a commitment hardcoded in writing that removing them from the Bylaws would not remove them from the IRP in cases of any violations by the ICANN.

I cannot post to the Council list, but believe these points should be made clear to all of the Council members.

Jeffrey J. Neuman, Esq.: NeuStar, Inc. Vice President, Law & Policy

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-----Original Message----- From: owner-liaison6c@gnso.icann.org [mailto:owner-liaison6c@gnso.icann.org] On Behalf Of Avri Doria Sent: Saturday, April 04, 2009 11:48 PM To: council@gnso.icann.org; policy-staff@icann.org Cc: liaison6c@gnso.icann.org Subject: [liaison6c] Re: [council] Draft Revisions to the ICANN Bylaws Relating to GNSO Restructure

Denise,

Thank you for the detailed note on the Staff's position on these issues.

In this not I want tomake a few points on the issue concerning the changes to X.3.1

1. From the full report of the board (which is curiously difficult to find on line: for those who need to get new copy it can be found at: http://www.icann.org/topics/gnso-improvements/gnso-improvement s-report-03feb08.pdf ) The Board requests the Council, with support from Staff, to prepare suggested changes to the Bylaws, within six months, regarding the Council's structure on the basis of four broad stakeholder groups and voting practices consistent with the principles outlined above.

Thus unless the council agrees to the proposed amendments, they will not constitute changes prepared by the council with the support of the staff. In the case of the one council seat per constituency, I believe the staff is advocating an position that can neither be warranted by the Board recommendations nor by council decisions at this point. While the recommendations made by the staff are appreciated as a starting point, it is the GNSO council that must make the decisions. In reading your discussion, I had the feeling you were presenting us with what you felt was the only possible interpretation. I wish to take issue with this assumption.

2. I certainly see no language in the Board/BCG recommendations requiring that each new constituency get a seat on the council. In fact all of the discussions on seating in the council is at the SG level. And my reading of the recommendations, as well as the length discussions the council had with the BCG indicate the intention to de-link the seats in the council from the constituency structure. Perhaps we will need to get a ruling from the Board on this as it is difficult to proceed with such diametrically opposed understandings on the board's decision. My reading says that there is no direct linkage between the existence of a constituency and a seat on the Council, though of course the SG has to show that is is giving fair representation to all in the SG group - whatever constituency they may be a member of or however many constituencies they may be a member of.

3. There was certainly no language indicating that once we got to more then 6 constituencies in a non-contracted house or more then 3 constituencies in the contracted house that we would need to restructure yet again. I hope that we are successful in bringing new constituencies into the process, and I think that a well defined WG process will aid in doing so. But if the by-law change you and your staff advocate were to be advanced, I believe that pain of an additional restructuring as well as the waste of time and effort it would constitute would work as a disincentive to the acceptance on new constituencies. It would be as hard to add the 4th constituency to one of the contracted house as it was to add new constituencies before the reorg we are suffering through at the moment. I believe that creating disincentives for the creation on new constituency was definitely not something the Board was intending in its decision.

4. While it is true that the reason for constituting new constituencies is to allow greater voice, given the function of the future council as a management group, and given that voice is dependent on WG participation and not council membership, the subject of voice and a council seat are orthogonal to each other. Thus I do not believe that a requirement for one council seat for each new constituency can be backed up by an interpretation of the requirements for change made by the Board.

5. Finally it is up to the stakeholders charters, as approved by the board to determine the process by which seats are allocated - this is explicit in the BCG recommendation. Each of the SG has been given the opportunity to design a fair and comprehensive system for doing so. The Board will review each of these SGs in order to determine whether they do or not. It seems to me that the right of self determination by the SGs with the advice and consent of the Board must not be abrogated by Policy Staff fiat.

thanks

a.

On Tue, 2009-03-31 at 11:31 -0700, Denise Michel wrote:

...

Many thanks to all of you who have already commented on the draft revisions to the ICANN Bylaws relating to GNSO restructuring that were circulated late last week to start community discussion (also attached). Your emails were particularly useful in getting everyone to focus quickly on several specific issues. In this message, we'll attempt to address a number of the specific comments made Friday and over the weekend to give you some background on our drafting thoughts to help further the dialogue.

Article X:

§3.1 Issue: This proposed Bylaws amendment assigns the responsibility for selecting Council representatives to the four Stakeholder Groups with the stipulation that each Board-recognized Constituency shall be allocated a minimum of one seat on the GNSO Council.

This article seems to have garnered the most immediate attention and questions. Rather than prejudging this issue, Staff's view was that this revision was entirely consistent with the GNSO Improvements Report, the Board's resolution, and various Board discussions to-date. Existing constituency Council seats are currently hard-wired into the Bylaws and no Board member or Board committee has suggested to us that this be changed. As discussed in greater detail below, elements in the Board-approved GNSO Improvements Report and in Board resolutions suggest that the role of Constituencies within the GNSO continues to be significant and merits ongoing support in the Bylaws.

1. The GNSO Improvements Report produced by the Board Governance Committee (BGC) and endorsed by the Board last June emphasized the continued primacy of the Constituency structure as a fundamental building block of the GNSO. The Report did not attempt to change the existing Bylaws mechanisms by which the Board evaluates and approves GNSO Constituencies, but instead recommended that the process be more fluid, open, and accessible.

In fact, the Report contains many references to expanding Constituency involvement in the GNSO by (a) encouraging new groups to form, (b) providing those structures with standard "tool kits" of administrative services, (c) evening "the playing field" among constituencies, (d) creating general best-practice guidelines to ensure consistent operational practices across different groups, and (e) assuring the community that transparency, openness and fairness remain fundamental ICANN principles. The Report specifically states that: "It should be noted that we view the new stakeholder structure primarily as a way to organize the Council. While it will also encourage the constituencies to maximize their common interests, it does not on its own change the constituency structure itself." (Board GNSO Improvements Report, page 42).

The ICANN Board, in its 1 October 2008 resolutions, reinforced its support for the following principles pertaining to the formation of the new Stakeholder Groups. The Board specifically requested that, in establishing the newly formed structures, all constituency members and other relevant parties comply with the Board's principles including, "The inclusion of new actors/participants, where applicable, and the expansion of constituencies (emphasis added) within Stakeholder Groups, where applicable."

The GNSO Improvements Report anticipated the creation of a lightly structured Stakeholder Group (SG) organizational layer to be inserted between Constituencies and the GNSO Council with a primary responsibility to select/allocate/apportion GNSO Council seats among its Constituency members. It did not anticipate the elimination of Constituencies in favor of Stakeholder Groups, although some in the community now suggest that Constituencies may no longer be necessary.

Staff's position is not new and, at the Board's direction, Staff has made every effort to share its understanding with the community over the past six months through informal discussions with Constituency leaders and by providing sample organizational templates designed to: (a) help the community assess existing Constituency charters; (b) guide the development of potential new Constituency charters; and (c) assist community leaders as they fashioned new Stakeholder Group (SG) charters.

2. Second, among the stated goals of restructuring is to encourage the formation of new Constituencies to enhance the diversity of viewpoints in ICANN. As is true in the current Bylaws, Staff's proposed amendment in this section continues to place the responsibility with the Board to determine if the viewpoint represented by the Constituency applicant is significant enough to be entitled to recognition and, thereby, a minimum of one Council seat.

Based upon a few of the Stakeholder Group voting systems that have been submitted thus far, a newly approved Constituency may not gain a Council seat, which raises concerns about depriving the GNSO Council of the new voices that the Board formally recognizes. It is conceivable that, without the GNSO seat requirement, an incumbent interest group could control a Stakeholder Group and potentially prevent these new viewpoints from fully participating in the GNSO. Without the promise of being able to participate meaningfully at the Council level, Staff is concerned that prospective new organizations may not pursue the arduous tasks of organizing, petitioning, drafting a charter, and defending their viability in being formally recognized as a Constituency within the GNSO. Without Board protection in this potentially volatile and delicate vetting process, Constituencies in formation may cease to make the effort. If that reality should be allowed to unfold, the GNSO will have failed to achieve a vital element of the Board's vision.

It has been suggested that there should not be a hard-wiring of Constituencies to Council seats and seat allocation should be a Stakeholder Group responsibility. We agree that SGs should have that responsibility, although not without any constraints, and this is reflected in these proposed Bylaws to spur consideration and discussion. The current allocation of Council seats to Constituencies has been hard-wired since 2003. It does not seem inconsistent to accord a similar right to each prospective new Constituency that is Board-approved. (See Article XX below for discussion of what happens in the future should we reach a point where the number of Constituencies exceeds the number of Council seats.)

3. Third, as it relates to the non-contracted party house, the GNSO restructuring removed three seats (collectively) from the Commercial Constituencies and provided a new Non-Commercial Stakeholder Group with six seats. The rationale for this shift was that this was appropriate because, with the proper outreach and recruitment activities, additional non-commercial Constituencies would be formed that would hold seats to represent different viewpoints on the GNSO Council. "...a new non-commercial Stakeholders Group must go far beyond the membership of the current Non-Commercial Users Constituency (NCUC). We must consider educational, research, and philanthropic organizations, foundations, think tanks, members of academia, individual registrant groups and other non- commercial organizations, as well as individual registrants, as part of a non-commercial registrants Stakeholders Group." (Board GNSO Improvements Report, page 32)

Guaranteeing a Council seat to new Constituencies in this SG, which will have half of the Council's non-contracted party seats, provides assurance that diverse viewpoints will be represented and heard on the Council.

§3.3 Issue: Procedures and voting threshold for removal of an NCA for cause.

The language concerning removal of a Nominating Committee Appointee (NCA) for cause was included for completeness, but Staff is recommending that it (along with all non-PDP thresholds) be relocated to the GNSO Council's Operating Rules. The provision and voting thresholds, as specified for each house, were taken from the Working Group on GNSO Council Restructure (WG-GCR) Report approved by the Board in its 1 October 2008 meeting (see below).

It is, Resolved (2008.10.01.09), the Board adopts all voting thresholds proposed in the WG-GCR Report. The Board requests that the GNSO develop any additional voting thresholds or categories that may be needed as part of its proposed GNSO Improvements Implementation Plan to be submitted to the Board for approval.

This issue could conceivably be revisited in the context of the Council Operating Rules effort since it is anticipated that those rules would need to be approved by the Board before becoming effective.

§3.6: Issue: Board Seats #13 and #14

As explained in the footnote to this section, the language presented in yellow highlight was recommended in the WG-GCR Report; however, it has not been approved by the Board. Staff is hoping to collect some final additional community feedback on the matter again this month and expects final Board action on this matter at it's 23 April meeting. Once the Board has acted, this section will be amended to reflect the Board's decision as to the methodology and any other rules pertaining to these selections. I have asked Rob to make a final request to constituency leaders for feedback on the Board Seat issue and he will follow up on that mater this week.

§3.8 Issue: Confusion as to whether the NCAs are appointed to each voting house by the Nominating Committee.

Staff acknowledges that the original wording in (a) and (b) could be interpreted in a way that was not intended by the drafters. Staff recommends the following amendment to this section to avoid ambiguity as to how the NCAs are actually selected/appointed to each voting house:

a. The Contracted Party House includes the Registry Stakeholder Group (three members), the Registrar Stakeholder Group (three members), and one Nominating Committee Appointee (NCA) for a total of seven voting members; and b. The Non-Contracted Party House includes the Commercial Stakeholder Group (six members), the Non-Commercial Stakeholder Group (six members), and one Nominating Committee Appointee (NCA) for a total of thirteen voting members. The assignment of each Nominating Committee Appointee to a voting house is determined by the GNSO Council Operating Rules and Procedures.

Article XX

§5.1 Issue: Provision that the Board resolves any condition in which the number of Constituencies exceeds the available Council seats in a Stakeholder Group.

Staff refers to the explanation provided above in response to Article X, §3.1.

Arguably, this language may not need to be expressed in the Bylaws; however, Staff believes that it is important to recognize formally that this potential condition (i.e. Constituencies exceeding the number of SG Council seats) could have the effect of causing prospective new Constituencies to wonder how they can become involved if there are no remaining positions available. While the circumstance appears to be remote in today's environment, there should be a provision to address it before it occurs. If the Board elects to change the Council organization or voting structure then the Bylaws would have to be modified in any case. One alternative might be to move the language from this section to Article XX-Transition.

§5.5 Issue: Transition language to map the existing Constituency seats to the new Stakeholder Groups.

Staff emphasizes that this section of the transition article is only intended to map the existing Constituency seats (SGs do not yet formally exist) to the new Stakeholder Groups.

§5.11 Issue: Voting thresholds for Policy Development Process

As explained in an email sent to the Council list on Friday, 27 March by Ken Bour, the voting thresholds originally prescribed by the Working Group on GNSO Council Restructuring (WG-GCR) contained both PDP and non-PDP elements. In this re-drafting exercise, Staff recommended that the thresholds be parsed out as follows: the non-PDP voting thresholds will be contained in Council OR&P while the PDP thresholds will be included in Article XX-Transition until such time as the Policy Process Steering Committee (PPSC) and Policy Development Process (PDP) Work Team (Jeff Neumann, Chair) have completed deliberations and are prepared to recommend a formal revision to Annex A of the Bylaws. Since the PDP thresholds are currently specified in Annex A, which is not being revised as part of the Council restructuring effort, Staff recommends that the new PDP thresholds should be included in Article XX vs. Council OR&P. Article XX is a "transition" document only and, once the PDP voting thresholds are successfully relocated from Annex A to the Council OR&P (Staff's recommendation), Article XX can be removed from the Bylaws in its entirety (assuming all other transition matters are completed). Below are the voting thresholds recast into the two groupings:

Non-PDP: a) Elect Council Chair: requires 60% of both houses. b) Remove NCA for Cause: requires 75% of both houses (excluding the NCA subject to removal); subject to Board approval. c) All other GNSO Council Business (default): requires majority of both houses.

PDP: a) Create an Issues Report: requires more than 25% vote of both houses or majority of one house. b) Initiate a PDP within Scope: requires more than 33% vote of both houses or more than 66% vote of one house. c) Initiate a PDP not within Scope: requires a vote of more than 75% of one house and a majority of the other house ("Super Majority"). d) Approve a PDP without a Super Majority: requires a majority of both houses and further requires that one representative of at least 3 of the 4 Stakeholder Groups supports. e) Approve a PDP with a Super Majority: requires greater than 75% majority in one house and majority in the other house.

The PDP thresholds (above) were taken from the consensus recommendation of the WG-GCR and have been approved by the Board.

Staff recommends that, while the thresholds themselves are not subject to Council or community rewrite, the PPSC and PDP Work Team do have the goal of reengineering the entire PDP. If, in the course of those deliberations, it appears that some or all of the above thresholds need to be modified or recast, the Board will need to take those recommendations under advisement.

Staff also notes that the Operations Steering Committee (OSC) and the GNSO Council Operations Team are working on developing the methods, procedures, administration, and tools (to become part of the Council OR&P) that will need to be in place when the Council takes its first bicameral vote, which could be as early as its June meeting in Sydney.

General Comments

Finally, contrary to a recent comment, Staff would like to clarify that it has not prejudged or "made up its mind" on any of these issues. As the GNSO Improvements Report noted:

"Many details, of course, remain to be worked out concerning the new stakeholder structure for the Council, including the role of constituencies and/or interest groups within them. As noted earlier, we welcome the GNSO working with Staff to develop the appropriate Implementation Plan." (Board GNSO Improvements Report at page 33).

In preparing the draft Bylaws, Staff has tried to track the implementation of GNSO Improvements and Restructuring to specific directions from the Board. We hope that this exercise serves to facilitate discussions on these important topics in order to resolve them in a timely manner. We welcome further conversation about how these elements might be achieved with different language. All Policy Staff involved can be reached via policy-staff@icann.org and +1-310-823-9358.

Regards,

Denise Michel Vice President, Policy