NCDNHC UPDATE: PROPOSED GUIDELINES FOR THE NON-COMMERCIAL DOMAIN NAME HOLDERS CONSTITUENCY

Submitted by Michael Sondow
May 2, 1999. Posted May 3, 1999

http://www.icann.org/dnso/NCDNHC_Update.htm

NON-COMMERCIAL DOMAIN NAME HOLDERS CONSTITUENCY (NCDNHC) - REPORT AND ORGANIZATIONAL STATEMENT

Submitted by Marty Burack
May 3, 1999. Posted May 5, 1999

http://www.icann.org/dnso/ncdnhcupdate2.htm

ICANN has requested that each constituency present a proposal for criteria for constituency participation and a plan for a Names Council member selection process. This is the proposal of the organizations listed below.

COMPROMISE PROPOSAL FOR THE NON-COMMERCIAL DOMAIN NAME HOLDERS CONSTITUENCY SUBMITTED BY THE ASSOCIATION FOR COMPUTING MACHINERY COMMITTEE ON INTERNET GOVERNANCE

Submitted by Milton Mueller
May 18, 1999. Posted May 19, 1999

http://www.icann.org/dnso/ncdnh-compromise.html

ICIIU POSITION ON THE DEFINITION OF THE NCDNHC

The position of the ICIIU on the question of a membership definition of the NCDNHC is colored by the fact that there are various constituencies available to most entites involved in this process, but that the ICIIU and like organizations have only one: the NCDNHC. Thus we insist that no persons, organizations, corporations, or associations of these, may be members of the Non-Commercial Domain Name Holders Constituency if a significant percentage of their funding comes from commercial sources, since such entites and their funding sources are more than adequately provided with other constituencies in which to influence the DNSO.

This means, for example, that no non-profit corporation, not even one that is incorporated as a charity, may join the NCDNHC if its funding comes from private companies organized for profit; for if such a non-profit corporation were permitted membership in the NCDNHC it could easily become a shield behind which its commercial funding sources manipulated the NCDNHC and used its three seats on the Names Council for votes favoring the commercial sector, rather than the non-commercial one that was intended by this constituency's creation.

Under this definition ISOC, although incorporated as a non-profit  corporation, may not join the NCDNHC if a significant percentage of its funding comes from private business and commercial enterprises,  and the same would apply to it constituent organizations and supporters. It remains to be seen what are the funding sources of ISOC, or for that matter the other entities adhering to the NCDNHC. It may be necessary to require all associations that apply for membership in the NCDNHC, the ICIIU included, to demonstrate that they are indeed non-commercial, that their own constituents are either themselves non-commercial or do not use monies gained in commerce to finance the association, that the applican association does not use the Internet for profit, that no commerce is done by it through its domain name, and that, as a association, its constituent members are not engaging in commercial or profit-making activities through their domain nam and usage of the World Wide Web and the Internet. For indeed ICANN itself could not join the NCDNHC so long as its funding came from commercial corporations using the Internet for profit.

Such a strict exclusionary definition of the NCDNHC is the necessary consequence of naming and thus defining constituency by economic criteria, as has been done for not only the NCDNHC but the Business Constituency as well. An while the ICIIU may not agree with this method of construing the DNSO membership we intend to adhere to it and apply it strictly so that the commercial interests may not dominate and control the DNSO totally. We believe that this was the intention of the board when they provided this constituency for the non-commercial Internet interests, and we intend to preserve it for this purpose, even if this means taking a very firm stand on admission to it for associations whose funding is unknown. And were an association whose funding sources are commercial, or unknown and in doubt, to apply for membership in the NCDNHC, the ICIIU would refuse to allow it; and if that organization insisted, we would take the matter to the highest instances of justice within the legal jurisdiction of ICANN, ask the court to force the association applying for membership in the NCDNHC to reveal the sources of its funding, and, if its funding were found to be commercially derived, to refuse it entry in the NCDNHC.

Such is the position of the ICIIU as regards the NCDNHC. Let anyone who expects that the NCDNHC can be easily infiltrated by disguised commercial interests be forewarned that it is defended against them. The ICIIU has legal assistance, and it will not permit commercial interests to consume the NCDNHC, as they are consuming the other constituencies, the DNSO, and ICANN.

Furthermore, the bylaws of ICANN and the U.S. Government's White Paper  require that this constituency as well as all others be open to individuals as well as organizations. The ICIIU guidelines accept individuals as members of the NCDNHC on an equal footing with organizations, as is right and lawful. However, other organizers of this constituency as well as organizers of other constituencies are attempting to exclude individuals from membership. They will not succeed, because the ICIIU will not permit it. The Internet has empowered the individual, the independent human beings who inhabit this planet and can now, thanks to the Internet, communicate freely with each other. We do not intend to allow corporations, regardless of how they may be disguised, to take this freedom away from us. 

CRITERIA FOR CONSTITUENCY PARTICIPATION

Based on the belief that it is impractical to have both individual members and organizations as voting members within a constituency, the NCDNHC proposes that stakeholder organizations, holding domain names, which are organized not-for-profit under the laws of any jurisdiction, and organizations which, although not formally incorporated, are recognized as having substantially similar purposes, e.g., educational, religious, charitable, or professional, shall be eligible for membership.

The range of stakeholder organizations eligible for membership in the NCDNHC should be construed broadly so that organizations interested in such matters as dispute resolution or Internet governance, other than furthering commercial interests, will be included. Govermental organizations will not be eligible.

The NCDNHC believes that the interests of individual members are best represented by the types of organizations that have already indicated an interest in participating. Proposals have also been made for a separate constituency composed of individual domain name holders. Because other constituencies will be available for non-profit organizations established primarily to promote the commercial interests of members, such as 501(c)(6) organizations under US law, this type of non-profit organization shall not be eligible to participate in the NCDNHC.

An open issue is the question of voting rights for organizations that are formally or legally separate but are included within an umbrella organization that is also a member. For example, the chapters of the Internet Society and the subsidiary organizations of IEEE pose this question. Pending a decision by the constituency, it is proposed that such subsidiary organizations may be members of NCDNHC but are not entitled to vote.

The NCDNHC proposes that the membership shall be entitled to vote on all issues that may arise, including, but not limited to, qualifications of applicants for membership, conflicts of interest, authentication and procedures for votes. 

Applicants may be required to provide evidence as to qualifications, including such factors as number of members, purposes and date of organization.

The Association for Computing Machinery (ACM) is the world's oldest and largest educational and scientific computing society. ACM is an international organization with over 80,000 computing professional members in more than 100 countries. Founded in 1947, ACM serves as a forum for, and uses the Internet to promote, the exchange of information, ideas and discoveries to advance arts, sciences and applications of information technology.

ACM's Committee on Internet Governance (ACM-IGC) has carefully reviewed the two proposals for Non-Commercial Domain Name Holders Constituency (Non-Commercial Constituency) of the Domain Name Supporting Organization (DNSO) set out on the ICANN website and finds itself unable to support either proposal. Because there is merit in both proposals, ACM-IGC submits this Compromise Proposal to clarify the goals and purposes of the Non-Commercial Constituency and to bring together the groups organized by ISOC and the ICIIU, with ACM-IGC and others, to form the Non-Commercial Constituency as a united group at ICANN's upcoming meeting in Berlin, May 25-27, 1999.

ORGANIZATIONAL GUIDELINES OF THE NON-COMMERCIAL DOMAIN NAME HOLDERS CONSTITUENCY (NCDNHC)

I. DEFINITION

The Non-Commercial Domain Name Holders Constituency (NCDNHC) is a constituency within the Domain Name Supporting Organization (DNSO) of the Internet Corporation for Assigned Names and Numbers (ICANN), as defined in the ICANN Bylaws, Art. VI-B Sec.3.

ORGANIZATIONAL STRUCTURE

Because of limited financial resources of many or most non-profit organizations, the NCDNHC proposes that this constituency have a small formal organization at this time.

I. GOALS OF THE NON-COMMERCIAL CONSTITUENCY

ACM-IGC submits that the goals of the Non-Commercial Constituency should be made explicit and clear to all who review its organizing documents. In light of ICANN's creation of no less than six other constituencies to represent commercial entities and commercial activities within the DNSO [two specifically commercial constituencies: Commercial and business entities (Business Constituency) and Trademark, intellectual property, anti-counterfeiting interests (Trademark Constituency), and four technical constituencies comprised largely or entirely of commercial entities: ccTLD registries, gTLD registries, ISPs and connectivity providers, and Registrars], ACM-IGC believes the Non-Commercial Constituency has a special place in the DNSO. It must provide the voice and representation for organizations that serve non-commercial interests and provide services such as community organizing, promotion of the arts, children's welfare, pure scientific research, and human rights. These organizations are otherwise entirely unrepresented in the DNSO.

ACM-IGC recognizes that the Non-Commercial Constituency envisioned here may not yet have a significant number of members willing to participate in this process. Many of the organizations eligible to join are unaware of ICANN and its processes. ACM-IGC believes that these organizations, with their unique and distinct uses of the Internet and the domain name system, will soon be very interested in participating in Internet Governance issues, including the DNSO and ICANN. Accordingly, it is appropriate that the Non-Commercial Constituency be kept open for them.

II. PURPOSE

The purpose of the NCDNHC is to provide a forum for discussion of all matters concerning the internet domain name system that relate to non-commercial domain name holders, to formulate policy recommendations on these matters, and to communicate such policy recommendations to the Names Council of the DNSO through the three seats on the Names Council pertaining to the NCDNHC.

II. WHAT THE NON-COMMERCIAL CONSTITUENCY MUST NOT BE ALLOWED TO BECOME

ICANN cannot allow the Non-Commercial Constituency to serve as a catch-all for all organizations that do not fit into another category. There is ample room within the DNSO for representation of general business and business legal interests. It is inappropriate to include within the Non-Commercial Constituency organizations that primarily or largely serve the Interests of another constituency, even if the organizations are not-for-profit in structure and are themselves engaged i non-commercial speech on the Internet. For example, a non-commercial organization devoted primarily to lobbying the U.S. Congress for commercial entities must be excluded from membership in the Non-Commercial Constituency. Similarly, a non-commercial organization that exists to create and promote Internet policies for registrars and registries must also be excluded. The interests of both such groups lie with other DNSO constituencies, namely the Business Constituency and the various registrar and registry constituencies.

ACM-IGC notes that these recommendations will leave some organizations without representation in the DNSO because of the narrow membership rules being set by other constituencies. Some organizations may promote intellectual property Interests but fail to meet the minimum membership of the Trademark Constituency; others may promote commercial Interests yet not be incorporated or meet the other membership criteria of the Business Constituency. In such circumstances, These organizations must seek to change the membership criteria of the most directly applicable constituency or appeal to ICANN. ACM-IGC underscores that the Non-Commercial Constituency is not designed and must not become a catch-all or default constituency. Organizations promoting the interests of business, trademark, registrars and registries are not properly Included within the Non-Commercial Constituency. The Non-Commercial Constituency provides a voice in the Names Council for a unique group those who provide the Internet with communication regarding non-commercial activities, communities and needs and with so much representation for commercial entities this non-commercial voice must not be diluted or weakened.

III. TRANSPARENCY, OPENNESS, AND DUE PROCESS

All activities of the NCDNHC, including its deliberative and policy recommendation activities, the selection of its officers, committees, and chairman if such are created, and the nomination and election of its seats on the Names Council of the DNSO, will be conducted in an open and transparent manner in accordance with democratic principles, due process, the rules of order, and the bylaws of the DNSO and ICANN.

III. THE SPECIAL CASE OF INDIVIDUALS

Because ICANN has not clarified where individual domain name holders belong in the DNSO, and because individuals are clearly not represented in any other constituency, it appears that individuals are being sent to the Non-Commercial Constituency. Although we accept this as a short-term expedient, in the long run, ACM-IGC believes that the Non-Commercial Constituency is a poor representative of individuals.

First, individuals are registering domain names in large numbers. Although individuals are often categorized as consumers in the passive role of browsers (to sites such as e-commerce sites), ACM-IGC finds that these stereotypes are inaccurate.

Individuals in the millions are registering domain name for use with personal speech, family web sites, community organizations, and their own small businesses. While Network Solutions, Inc., does not keep figures on the breakdown of domain names registered to individuals, the large and growing number of domain names issued to individuals in the gTLDs probably make this group the largest class of domain name holders.

Second, the activities of individuals on the Internet make them a unique category because their work covers the gamut from non-commercial to commercial activity. Further, unlike any existing constituency in the DNSO, individuals use of domain names often changes over time as a personal web site evolves from showing the non-commercial interests of the domain name holder to promoting the commercial businesses, writings or services of the individual. Individuals have a task unlike any other constituency to preserve the rights of individuals to obtain domain names and to ensure that domain names can continue to be used for the variety of commercial and non-commercial purposes available today.

It is the strong opinion of ACM-IGC that individuals need their own constituency within the DNSO to represent their unique experiences and needs. While the interests and voices of individuals may occasionally overlap with the interests and voices of large non-commercial organizations and educational institutions, most often they will not. Further, ACM-IGC submits that the relationship between individuals and the Non-Commercial Constituency is much farther apart than that of the Business Constituency and the Trademark Constituency. ACM-IGC proposes that ICANN immediately create for individuals their own constituency with the full standing of the other constituencies. In the meantime, in order to avoid disenfranchising individuals, we propose to temporarily incorporate them into the noncommercial constituency.

IV. MEMBERSHIP

A. Individuals: All persons having administrative control of a domain name that is used for non-commercial purposes may be members of the NCDNHC.

B. First-Level Organizations: All corporations of individuals, duly registered as not-for-profit corporations, a majority of whose members do not use the Internet for commercial purposes, and whose principal source of funding is not from commercial enterprises, may be members of the NCDNHC. Likewise, all associations of such individuals, whether incorporated or not, may be members of the NCDNHC.

C. Second-Level Organizations: All corporations or associations of organizations, a majority of whose constituent member organizations satisfy the criteria of "B" above, may be members of the NCDNHC.

D. Members of other DNSO constituencies may be members of the NCDNHC if they meet the above criteria.

There shall be a governing board consisting of one representative of each member organization. The governing board shall elect from its members, for annual terms, three officers, a Chair, Vice-Chair and a Secretary. Voting for officers and for Names Council members shall be by a simple majority of members, and the nomination and election of officers and Names Council members shall be conducted by email. Consultation by Names Council members with the constituency shall also be conducted by email or other electronic means that may be made available. The officers of the governing board shall refer all contested issues to a vote of the membership.

In order to assure the required geographic distribution of Names Council members, no two members shall reside in the same one of the geographic areas defined in  the ICANN bylaws, no two members shall represent the same organization, and no single member may represent more than one organization.

IV. MEMBERSHIP CRITERIA

ACM-IGC recommends that Membership in the Non-Commercial Constituency be limited to organizations who serve non-commercial interests and provide services such as community organizing, promotion of the arts, children's welfare, pure scientific research, and human rights. Membership should also include entities which support the organizations above with services such as education, advocacy and funding.

As a temporary measure, ACM-IGC recommends that individuals who are holding a domain name for their own personal speech, or the speech of their families, be admitted to the Non-Commercial Constituency for the purpose of organizing and advocating their own constituency.

V. ORGANIZATIONAL PRINCIPLES

ACM-IGC submits that large organizations and small organizations should have full and fair representation into the decision-making processes and elections of the Non-Commercial Constituency.

ACM-IGC recognizes that balancing the voices of the many potential members of this Constituency will be challenging.

Large organizations must have a full and fair voice because they speak for very large groups. Smaller organizations must have a full and fair voice because they represent a wide array of non-commercial activity on the Internet.

To accept the variety of organizations who should be members of this Constituency, ACM-IGC recommends dividing the membership of the Non-Commercial Constituency into two subgroups:

Large Organizations: Organizations meeting the membership criteria and goals for promoting non-commercial activity on the Internet as set out in Section IV above, incorporated as a not-for-profit entity, and, for membership organizations, having a current membership over 1000 people or, for nonmembership organizations, having 200 or more employees (such as a not-for-profit university).

Small Organizations: Organizations meeting the membership criteria and goals for promoting non-commercial activity on the Internet as set out in Section IV above, operating on a not-for-profit basis for the benefit of more than one individual or family, and whose membership is under 1000 or, for nonmembership organizations, having less than 200 employees.

VI. THE SPECIAL QUESTION OF CHAPTERS AND SPECIAL INTERESTS GROUPS OF A LARGE ORGANIZATION AND SCHOOLS WITHIN A UNIVERSITY

ACM-IGC envisions that most large organizations will have worldwide chapters, schools within a university, numerous special interest groups and other subdivisions. ACM-IGC recommends that these subgroups of the larger organization be represented by and participate in the Non-Commercial Constituency under their parent in the Large Organization subgroup.

Creating a single point of representation for a group will avoid giving any one Large Organization a disproportionate voice in this Constituency's discussions and decisions.

V. SELECTION OF NCDNHC SEATS ON THE NAMES COUNCIL

A. General rules for nomination and voting.

(a) The nomination of candidates and the election of NC seats will be conducted by an election officer, who may be the chairman of the NCDNHC. For the initial nominations and elections, an interim election officer will be chosen by the members gathered. This initial election officer may be a person who is not a member of the constituency.

(b) There is no limit to the number of candidates who may run for NC seats, but no more than one member of any first-level organization may be a candidate.

(b) No more than one member, supporter, or representative of a coalition formed as an organizing group of the NCDNHC may be elected to the Names Council in any election, nor may more than one such person occupy a Names Council seat concurrently as an elected representative of the NCDNHC.

B. Selection of candidates.

(a) Candidates for NC seats must be nominated by members other than themselves, and their candidacy must be seconded by at least one member other than the member making the nomination.

(b) Members of the NCDNHC who are unable to be present at a meeting to nominate candidates for NC seats may propose candidates by email before the date of that meeting. A candidate thus nominated will be considered seconded by the chair, or in the case of the initial election by the election officer, pro forma.

(c) Neither presence at a meeting at which candidates are to be nominated, nor at a meeting at which the NCDNHC's NC seats are to be elected if that is done subsequent to the nomination of candidates, is a requirement for either candidacy or election to those seats.

C. Election of NC seats.

(a) Voting for the NCDNHC's three NC seats will be by direct vote, each NCDNHC member having three votes that must be cast for three separate candidates.

(b) Voting will be done by secret written ballot of those present at the election meeting and by proxy.

(c) Designated proxies are required to present to the election officer an email requesting such from the absent member and sent from that member's email address.

(d) If more than 25% of the constituency are not present at an election meeting and desire to vote yet express their unwillingness to do so by proxy, voting will be done at least one day subsequent to the day candidates are nominated. In this case the election officer will communicate information about the candidates by email to the absent members, and will request from them an email ballot which will be presented by the election officer at the election.

(e) Nomination and election meetings for NC seats, as well as other meetings of the NCDNHC in which a vote needs to be taken, may be done by electronic communications if a majority of the members of the NCDNHC wish it, so long as the above rules of order and process are adhered to. If such electronic meetings are held, adequate notification of members must be made by the chairman or the officers of the NCDNHC, or by the person(s) planning to call a vote.

VI. OTHER MATTERS.

All other matters concerning the organization of the NCDNHC and its activities will be decided by vote of its membership once formed.

The following procedures shall apply for elections of Names Council members:

1.      The election process will be initiated by a nomination period of one week. Each member of the NCDNHC may nominate one person for the Names Council.

2.      There shall be an election period of one week, during which members will vote by email.

3.      Names Council members will be elected by the largest number of votes processed as follows:

a.      All nominees from the same region as the person with the largest number of votes will be eliminated. From the resulting list, all nominees from the same region as the person with the second number of votes will be eliminated. The three people at the top of the remaining list will be elected.

b.      In case of a tie, a tie-breaker election between the two candidates with an equal number of votes will be held.

VII. VOTING PRINCIPLES AND PROPOSALS

A. Voting Principles

While the Non-Commercial Constituency may develop many ways of arriving at consensus and providing input in the domain name policy discussions of the larger DNSO organization, it will need clear voting principles and mechanisms to elect the three (3) Names Council representatives allocated to each constituency by the ICANN Bylaws. In keeping with the Organizational Principles set out in Section V, the Non-Commercial Constituency must find a way to provide large and small organizations with a full and fair vote for election of Names Councilmembers and other decisions.

B. Voting Proposals

ACM-IGC welcomes the opportunity to work with ISOC, the ICIIU and others to develop the mechanisms for full and fair voting. For purposes of discussion, ACM-IGC submits the following ideas to the non-commercial community. ACM-IGC recommends that the Names Council representatives from the Non-Commercial Constituency be elected by the large and small organizations as follows:

• one Names Council representative by the Large Organizations,
• one Names Council representative by the Small Organizations, and
• a third Names Council representative elected from a slate of nominees submitted half by the Large Organizations and half by the Small Organizations and with voting on this joint slate weighted by an algorithm that balances combined number and size of the large organizations with combined number and size of the small organizations.

IN THE FIRST ELECTION AND THE FIRST ELECTION ONLY, because individuals will be a part of the Non-Commercial Constituency, ACM-IGC recommends that the Names Council Representatives be elected in the following manner:

• one Names Council representative by the Large Organizations,
• one Names Council representative by the Small Organizations, and
• one Names Council representative by the individuals.

We recommend this measure solely because individuals will not otherwise have a vote for Names Council Representative. Upon organization of a constituency for individuals, the Representative elected by individuals should immediately become the Representative for the new individuals constituency and the Non-Commercial Constituency should elect a new Representative.

VIII. CREDENTIALS COMMITTEE AND QUESTIONS ABOUT MEMBERSHIP

ACM-IGC recommends that a three-person Credentials Committee be created to handle questions and concerns about membership. Eligible representatives for such a committee must be people familiar with the wide range of noncommercial activities on the Internet. For the first Credentials Committee (since questions are likely to be raised regarding membership from the outset), ACM-IGC recommends that one representative each from ISOC, ICIIU and ACM-IGC serve. ACM-IGC also recommends that every two years the Credentials Committee be reelected in its entirety in a one organization, one vote proceeding.

IX. GOING FORWARD

In this Compromise Proposal, ACM-IGC does not seek to set out a full set of procedures for the Non-Commercial Constituency. Rather, ACM-IGC has tried to set out a vision for the Non-Commercial Constituency and a guideline for its membership and voting processes. ACM-IGC hopes that this middle ground will bridge the basic differences between the two existing proposals. Further ACM-IGC would like to work with both ISOC and ICIIU and others on the remaining details of voting and substantive procedures so that together we can present one Non-Commercial Constituency to be chartered by ICANN. ACM-IGC looks forward to working with all both groups and others by email and in Berlin to move forward together.

[ An updated list is maintained on the ICIIU website http://www.iciiu.org/NCDNHC.htm ]

International Congress of Independent Internet Users (ICIIU)

Namibian Internet Development Foundation (NAMIDEF)

The Communisphere Project

Revista Electronica de Derecho Informatico REDI

Electronic Frontier Foundation (EFF)

NETSCAN

The Schatz

Comision Técnica Regional de Telecomunicaciones de Centro América (COMTELCA)

The Biological Anthropology Forum (BAF)

Personal Domain Name Holders Association (PDNHA)

Distributed Knowledge Project (DNP)

PENSIVE.org

Asociacion de Internautas del Peru (AIP)

NON-COMMERCIAL DOMAIN NAME HOLDERS TAKING PART IN THIS INITIATIVE

[An updated list is maintained at http://www.isoc.org/internet/issues/dns/990409.shtml ]

Asociacion de Usuarios de Internet (AUI)

Assumption University of Thailand

Domini-ct.org/TLD for Catalonia

EDUCAUSE

European Telecommunications Standards Institute (ETSI)

Fundació Catalana per a la Recerca

GLOCOM

International Council for Computer Communication (ICCC)

Internet Association of Japan

IEEE Computer Society (IEEE)

IEEE Communications Society

Institute for Information Industry (III)

Internet Society (ISOC)

Internet Users Society - Niue

New York University

NYSERNet, Inc.

Policy Oversight Committee (POC)

Red de Desarrollo Sostenible de Panama

Sociedad Internet de Mexico

SURFnet

Trans European Research and Education Networking Association

University of Washington

Respectfully Submitted to ICANN and the Internet Community,

ASSOCIATION FOR COMPUTING MACHINERY, INTERNET GOVERNANCE COMMITTEE

Committee members:

Dr. Milton Mueller, Syracuse University School of Information Studies, Director

Lawrence Lessig, Harvard University

Randy Bush, Network Startup Resource Center, Verio