Electronic Frontier Foundation
1550 Bryant Street, Suite 725
San Francisco, CA 94103
September 23, 1998
Internet Assigned Numbers Authority
4676 Admiralty Way
Marina del Rey, CA 90292
Network Solutions, Inc.
505 Huntmar Park Drive
Herndon, VA 20170
U.S. Presidential Advisor on the Internet
National Telecommunications and Information Administration (NTIA)
U.S. Department of Commerce
14th and Constitution Avenue, N.W.
Washington, DC 20230
Dear Jon, Gabe and Ira,
It was with great anticipation that the Electronic Frontier Foundation (EFF) read the Bylaws agreed to by IANA and NSI for the creation of the nonprofit organization to oversee the Domain Naming System (DNS). (See http://www.iana.org/bylaws-coop.html.) Unfortunately, the latest version of the Bylaws does not address many of the concerns articulated by EFF and other organizations.
EFF has been tracking the DNS governance issue for the past several years. One of our Board members is on the IANA Transition Advisory Group; another has agreed to join the Interim Board; a third was instrumental in the CORE effort to provide a capable competitor in global domain registration. In addition, our legal staff has tracked and commented on numerous proposed policies and drafts, while our activists have closely followed the controversies online and in the press.
We believe that the latest IANA/NSI proposed Bylaws do not follow the requirements set forth by the White Paper for protecting openness and free expression. As you will recall, the White Paper specifically posited the following definitions as central components for a new organization:
Governance. The organizing documents (Charter, Bylaws, etc.) should provide that the new corporation is governed on the basis of a sound and transparent decision-making process, which protects against capture by a self-interested faction. . . .
Operations. The new corporation's processes should be fair, open and pro-competitive, protecting against capture by a narrow group of stakeholders. Typically this means that decision-making processes should be sound and transparent; the basis for corporate decisions should be recorded and made publicly available.
Yet, there is no transparency in the IANA/NSI proposed Bylaws. Interested parties cannot attend important meetings, meeting minutes are delayed and key contracts are unavailable to the public, and no provisions are included for asserting due process protections. Furthermore, there is no statement of intent to honor free speech principles in the governance of the DNS.
Specifically, the proposed New IANA Bylaws do not protect the public in the following four important areas:
EFF has crafted a set of enhanced and revised Bylaws that address these four key areas, which we believe are vital to protect the public interest. We have changed Article III, Transparency and Procedures, to incorporate principles from the U.S. Freedom of Information Act and the Government in the Sunshine Act. These revised provisions now give the public the right to attend IANA and Supporting Organization meetings and to obtain documents from them. Both of these provisions, along with a revised Board Reconsideration section, now permit aggrieved parties to sue for relief in any court with jurisdiction over the New IANA, if it violates its Bylaws.
We also have changed Article IV, Powers, to eliminate a provision that would bind the New IANA to contracts entered into by third parties, including government entities. This section was moved to the Contracts section, where it now requires publication of any contract before it can bind the New IANA, and specifically requires prior publication, solicitation of public comment, and a vote of the full Board before adopting any transition contracts. We believe these new provisions will open up the transition process, making all parties to negotiations accountable to the Internet community. It would also protect the new IANA, which has the responsibility and authority to make policy in the best interests of the entire Internet community, from being overriden by self-interested third parties.
We also made some procedural modifications to the Bylaws. We made minor revisions to the Directors' right of inspection, which now cannot be abridged by the New IANA. We also removed the provision that prevents the Bylaws from being amended by the Initial Board, so it can correct unworkable or unpopular provisions within the first nine months.
Finally, we have added a new Article XIII, Protection of Fundamental Human Rights, preventing the New IANA from violating fundamental human rights as defined by the U.N. Declaration of Universal Human Rights. This section also guarantees due process. Our draft revisions also specifically deny the New IANA the power to allow its delegatees, such as domain name registrars, to violate these rights. As Internet administration moves out from under direct government supervision, the Internet needs constitution-like protection for these fundamental rights. This is not a change to the current structure of Internet administration, which, due to its government-sponsored history, has been required by the U.S. Constitution to uphold human rights from the start. It merely continues the current protections into the new structure, while internationalizing their legal form.
We believe that these revised Bylaws would result in a DNS governance structure that would last for many years, providing workable methods for resolving the controversial and commercially valuable disputes that have pained all parties on all sides of the domain name issues. We urge IANA, NSI, and the US Government to incorporate using the revised Bylaws in preference to the fourth draft Bylaws proposed by IANA and NSI.
Please feel free to contact us if we can help to clarify any of our proposals. We look forward to working with you on correcting the Bylaws to offer the best protections for the Internet community.
The Board and Staff of the Electronic Frontier Foundation
cc: Internet community
Enclosure: New draft Bylaws
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