[council] Discussion Item: Changes to ICANN Bylaws

[Neuman, Jeff]

All,

In the rationale used in the BGC's recommendation against the NCSG's Reconsideration Request, the BGC argues that:

"There is no defined policy process within ICANN that requires Board or staff consultation with the GNSO Council if the Board or staff is acting in contravention to a statement made by the GNSO Council outside of the Policy Development Process.  Therefore, even if staff's action here was in direct contravention to the GNSO Council statement in a letter, the Bylaws requirement for consultation does not apply..."

Technically and legally, the BGC is correct.  As much as this goes against the very nature of the multi-stakeholder model (and frankly the message ICANN delivers to the world), the ICANN Board/staff is free to ignore the GNSO Council (and thus has no accountability for these actions).   This is true despite the fact that the Bylaws also state:  "There shall be a policy-development body known as the Generic Names Supporting Organization (GNSO), which shall be responsible for developing and recommending to the ICANN Board substantive policies relating to generic top-level domains."  Therefore, what the BGC is telling us is that despite the fact that the Bylaws charges the GNSO with developing and recommending substantive policies, it can ignore the GNSO community at any time if the issue did not go through a formal PDP.

I personally believe that is broken.  Therefore, I would like for the Council to consider recommending to the ICANN Board a change to the Bylaws for an additional measure of accountability that at a minimum would require some form of consultation if the GNSO Council (on behalf of the GNSO Community) issues a recommendation or develops policy outside of a formal PDP.  As the former chair of the PDP Working Group that helped revise the PDP process, I can tell you that we were encouraged by the community to allow other mechanisms for developing policy outside of formal PDPs.  We spent countless hours on this very topic.  Yes, if it does not go through a formal PDP, it may not trigger a 2/3 Board vote to overturn the recommendation, but it was never our intention that after going through that process, the Board to IGNORE the GNSO Community.  At a time when the community is trying to find ways to develop policies outside of the stringent PDP, this is NOT an incentive for doing that.

Therefore, I would like to see the following changes made to the Bylaws (no pride in authorship here...so feel free to suggest other words).  This is language that is VERY similar to the language the GAC has in the Bylaws:



The substantive policies and recommendations of the Generic Names Supporting Organization relating to generic top-level domains shall be duly taken into account, both in the formulation and adoption of policies, whether or not the policy development process as set forth in Article X, section 6 were followed. In the event that the ICANN Board determines to take an action that is not consistent with the GNSO policies or recommendations, it shall so inform the GNSO and state the reasons why it decided not to follow that advice. The GNSO and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. If no such solution can be found, the ICANN Board will state in its final decision the reasons why the GNSO recommendations or policies were not followed.

If the multi-stakeholder model truly has any meaning, I view these changes as non-controversial and essential to preserve what so many have so long been advocating.

Thanks.

Jeffrey J. Neuman
Neustar, Inc. / Vice President, Business Affairs
46000 Center Oak Plaza, Sterling, VA 20166
Office: +1.571.434.5772  Mobile: +1.202.549.5079  Fax: +1.703.738.7965 / jeff.neuman at neustar.biz<mailto:jeff.neuman at neustar.biz>  / www.neustar.biz<http://www.neustar.biz/>

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