Transmittal Letter from the ICANN to NTIA, 11/23/98

Transmittal Letter from ICANN to NTIA, November 23, 1998

November 23, 1998

J. Beckwith Burr
Associate Administrator (Acting)
National Telecommunications and
Information Administration
United States Department of Commerce
Washington, D.C. 20230

Dear Ms. Burr:

On behalf of the Internet Corporation for Assigned Names and Numbers (ICANN), I am writing to inform you of the further changes we have made to our articles and bylaws in order to reflect emerging consensus about our governance and structure, and our own clearer understanding of that consensus. We believe we are now fully prepared to fulfill the mission identified in the White Paper -- to allow the management of Internet names, addresses and protocols to be administered by a new, international, not-for-profit corporation that will be transparent and fully accountable to communities it serves.

Despite the many different views that have been expressed throughout this process, all of us have a common goal -- making this organization effective in its tasks and accountable to those it serves. Clearly, it must make the proper trade-offs between efficient functioning and the enjoyment of broad support from and responsiveness to its many constituencies. Although we will inevitably make decisions that will displease some parties, we need all parties to recognize our authority as valid and our decision-making as fair, objective and transparent. We are continuing to refine our organizational documents and policies to accomplish these goals, and the enclosed articles and bylaws reflect this. We still need to develop appropriate implementing policies and procedures over the next months, and we believe these organizational documents provide a sound foundation for this effort.

Furthermore, we pledge to respect the principles for which we were established, including stability of the Internet and its operation, free and fair competition where feasible, private, bottom-up coordination, and representation of and accountability to the global Internet community.

Accordingly, we are now asking the U.S. Government to officially recognize ICANN, and the enclosed documents, as the product of a broad if somewhat laborious consensus, and to quickly negotiate the necessary transition agreement with the Corporation as governed by these bylaws and further implementing changes outlined below. With genuine consensus support and with the U.S. Government's recognition, we hope to move forward without debilitating conflicts over ICANN governance while we deal with the more substantive questions that lie ahead.

We understand that we have a constrained mission, as defined in the White Paper, our articles and other documents:

These tasks are not Internet "governance" in the broad sense: We are not governing the Net or the people on it. But we are not merely a charity organization, managing our own resources for our vision of the public benefit. Those who serve on the ICANN Board will be stewards of public resources, and as such, their positions on important policy and management issues need to be derived from public consensus, not simply the personal views of the individuals who happen to serve on the Board at any given time. We recognize that we need to respect the public's direct interest in how we manage these resources, and in policies that affect them and the disposition of those resources and functions.

We have now revised our bylaws to better reflect this reality. Specifically, the changes that I outline below have been made to more clearly guarantee openness and transparency, along with the effectiveness of ICANN's coordination and management functions, in response to the concerns raised by various constituencies within the Internet community and as reflected in our conversations with you.


We have committed to making ICANN a membership organization, with a Board of Directors elected by at least four membership pools, including three Supporting Organizations representing specific areas of interest/expertise (Domain names, Addresses, and Protocols), and one At Large membership drawn from the entire Internet community. We will shortly call for volunteers to serve on an advisory committee on membership that we hope will propose several alternative approaches to membership criteria, rights and responsibilities. Obviously, all proposals we consider will be subject to the extensive notice, comments and discussion procedures of our bylaws. All parties affected by our decisions on membership will be able to guide us in developing a membership structure that will make the Board truly representative of and accountable to all of those -- big and small, individuals and organizations -- with an interest in the resources we manage.


We will follow many specific procedures and policies designed to let the community understand and have input into the decisions we make. As defined in the bylaws, we must observe a variety of specific provisions for giving notice of all our meetings and of the decisions we will be making during them -- and for collecting comments in advance.

Moreover, we will hold an open public meeting in conjunction with each regular Board meeting, of which we plan about four annually around the world. At those meetings we will not only solicit comments and input on policy issues then under consideration and other matters of interest to the community, but we will also make our own opinions known and discuss them interactively among ourselves and with the participants. In this way we hope to engage the public in genuine mutual education rather than just a formal comment-and-response process. We will follow the same approach at other open meetings between subsets of the Board and the public at other times, as policy issues arise and as schedules and interest indicate.

While our formal, voting Board meetings will not be public, in order to foster frank and full discussion, we will publish timely and complete minutes of our Board meetings reporting the votes taken, the positions of the individual Board members on those votes, and the arguments raised and the reasons behind the decisions taken.

Independent Review

We recognize the need for a way to obtain recourse in the event that someone may believe ICANN or its staff has broken our own bylaws or otherwise not followed the rules that we have set forth for ourselves and for our successors. As with membership, we support this concept, but we have not yet figured out how to implement it. Therefore, at this point we have simply revised the bylaws to make mandatory the creation of some such process. As in the case of membership, we will look to an Advisory Committee on Independent Review with outside members to guide us in developing a mechanism for independent, third-party review in such cases. As with the Advisory Committee on Membership, we will shortly be putting out a call for volunteers to serve on this committee to develop proposals for public review and consideration.

Certain Conflicts of Interest

We have a number of provisions in place to guard against conflicts of interest. Three new ones are worthy of mention:

We have added a provision to the bylaws to require that in the case of votes on proposals generated by a particular supporting organization, the votes of the Directors representing that Supporting Organization may not be the deciding margin of a vote to adopt that proposal. This will ensure that any such proposal that is adopted will have the support of the requisite number of Directors required to adopt any such proposal without the votes of the Directors affiliated with the Supporting Organization that made the proposal.

Second, we have added language concerning our funding mechanisms -- which we have not yet determined -- making clear that any fees and charges that we do impose will be subject to the full notice and comment provisions of the bylaws. Further, no funding mechanism will be adopted that will, by its very nature, affect our policy decisions.

Third, we have removed the language in Article V, Section 9c that directs the Board to determine minimal qualification of candidates for the Board. This provision was intended to ensure geographic diversity, and the other changes we have made in this revision of the bylaws make this language superfluous.

Geographic Diversity

We have tried to ensure that the larger, permanent Board will be even more geographically diverse than is the Initial Board. However, this goal is arguably inconsistent with an open, unconstrained electoral process. Thus, we have been reluctant to impose specific requirements for geographic representation ahead of the process of determining membership and election criteria, which will be the subject of deliberations by the Advisory Committee on Membership. Nonetheless, given the continued expressions of concern on this subject, we have revised the bylaws to further guarantee geographic diversity in two respects: by requiring the permanent Board have at least one representative from each geographic region, and by requiring that no more than half of the directors elected by the Supporting Organizations in the aggregate shall be citizens of any single geographic region. The Advisory Committee on Membership will thus be required to take account of these provisions in its recommendations relating to election procedures and policies.

In addition, we have made some minor changes to the specifics of some other bylaws, including the insertion of some general language in the Articles of Incorporation making it clear that ICANN will comply with relevant and applicable international and local law; tightening the provisions under which the Board can consider certain matters confidential by requiring a three-fourths vote of the Directors present to do so; a small revision of Article XI, Section 2, of the bylaws deleting the word "rights" as potentially misleading and in any event unnecessary; and the addition of language making it clear that any consideration of changes in the countries included in geographic regions or other matters relating to geographic diversity will take into account the evolution of the Internet.


Of course, the Board and I would be happy to discuss any of these changes and the reasons behind them with you and your colleagues, or with any parties affected, but we hope that this letter explains them clearly. We will be in touch with you shortly to discuss negotiation of the transition agreement. Thank you for your patience during this process!

Yours sincerely,

Esther Dyson
Interim Chairman
On Behalf of the ICANN Board

Please send comments on this web site to:
Page Updated 23-November-98.

(c) 1998  The Internet Corporation for Assigned Names and Numbers
All rights reserved.