Prepared By: The Berkman Center for Internet and Society at Harvard Law School
Ben Edelman, Larry Lessig, Molly Shaffer Van Houweling, Jonathan Zittrain
| 3. Corporate Procedures and Obligations | |||
| White Paper 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, and which provides for robust, professional management of the new corporation. The new corporation could rely on separate, diverse, and robust name and number councils responsible for developing, reviewing, and recommending for the board's approval policy related to matters within each council's competence. Such councils, if developed, should also abide by rules and decision-making processes that are sound, transparent, protect against capture by a self-interested party and provide an open process for the presentation of petitions for consideration. The elected Board of Directors, however, should have final authority to approve or reject policies recommended by the councils. 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. Super-majority or even consensus requirements may be useful to protect against capture by a self-interested faction. The new corporation does not need any special grant of immunity from the antitrust laws so long as its policies and practices are reasonably based on, and no broader than necessary to promote the legitimate coordinating objectives of the new corporation. Finally, the commercial importance of the Internet necessitates that the operation of the DNS system, and the operation of the authoritative root server system should be secure, stable, and robust. | "Consensus" The processes of the new entity shall be open and transparent, utilizing the Internet to this end to the fullest extent possible. The need to preserve transparency in the management of Newco is stressed. To collaborate in this objective, an appeal instance for interested parties should be created, for those cases where it is found that normal mechanisms are unsatisfatory, similar to the functions of an Ombudsman, who has a free hand to act, independent from the Board of Directors. | IANA Draft Bylaws v5 5. Notwithstanding any other provision (other than Article 8) of these Articles: e. In no event shall the Corporation be controlled directly or indirectly by one or more "disqualified persons" (as defined in § 4946 of the Code) other than foundation managers and other than one or more organizations described in paragraph (1) or (2) of § 509 (a) of the Code. ARTICLE III: TRANSPARENCY AND PROCEDURES Section 1. GENERAL The Corporation and its subordinate entities shall operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness. In addition to the specific procedures set forth in these Bylaws, the Initial Board shall investigate the development of additional policies and procedures designed to provide information about, and enhance the ability of interested persons to provide input to, the Board and Supporting Organizations. Any such policies and procedures shall be widely publicized by the Board in draft form, both within the Supporting Organizations and on a publicly-accessible Internet World Wide Web site maintained by the Corporation (the "Web Site"). Any such policies and procedures may be adopted only after a process for receiving and evaluating comments and suggestions has been established by the Board, and after due consideration of any comments or suggestions received by the Board. Section 2. ACCESS TO INFORMATION The Board shall publish, at least annually, a report describing its activities, including an audited financial statement and describing any payments made by the Corporation to Directors (other than reimbursements of expenses). All minutes of meetings of the Board, Supporting Organizations (and any councils thereof) and Committees shall be approved promptly and immediately following approval shall be made publicly available on the Web Site and otherwise; provided, however, that any minutes relating to personnel or employment matters, legal matters (to the extent the Board determines is necessary or appropriate to protect the interests of the Corporation), matters that the Corporation is prohibited by law or contract from disclosing publicly and other matters that the Board determines are not appropriate for public distribution shall not be included in the minutes made publicly available. For any matters that the Board determines not to disclose, the Board shall describe in generic terms the reason for such nondisclosure. Section 3. NOTICE AND COMMENT PROVISIONS (a) The Board shall post on the Web Site (i) periodically a calendar of scheduled meetings for the upcoming year, and (ii) in advance of each Board meeting, a notice of the fact and time that such meeting will be held and, to the extent known, an agenda for the meeting. If reasonably practicable the Board shall post notices of special meetings of the Board at least fourteen (14) days prior to the meetings. (b) Prior to adoption of any policies that substantially affect the operation of the Internet or third parties, the Board will: (i) provide public notice on the Web Site explaining what policies are being considered for adoption and why; (ii) provide a reasonable opportunity for parties to comment on the adoption of the proposed policies, to see the comments of others, and to reply to those comments; and (iii) after a reasonable comment period, take action on the proposed policies, establishing an effective date, and publishing the reasons for the action taken. (c) As appropriate, the Board will facilitate the translation of final published documents into various appropriate languages. Section 4. BOARD RECONSIDERATION The Board shall adopt policies and procedures through which a party affected by an action of the Board can seek reconsideration of that action. These policies and procedures may include threshold standards or other requirements to protect against frivolous or non-substantive use of the reconsideration process. The Board may, in its sole discretion, provide for an independent review process by a neutral third party. ARTICLE X: GENERAL PROVISIONS No loans will be made by or to this Corporation and no evidences of indebtedness will be issued in its name unless authorized by a resolution of the Board. Such authority may be general or confined to specific instances; provided, however, that no loans will be made by the Corporation to its Directors or Officers. | Boston Working Group Same provision as IANAv4 draft. Section 1. GENERAL Same provision as IANAv4 draft. ARTICLE III: TRANSPARENCY AND PROCEDURES Section 2. ACCESS TO INFORMATION Added: Minutes shall be approved and published no later than 30 days after voted upon by Directors. Section 3. NOTICE AND COMMENT PROVISIONS (b) Prior to adoption of any policies that substantially affect the operation of the Internet or third parties, the Board will: Changed: (iii) after a reasonable comment period, take action on the proposed policies, establishing an effective date, and publishing the reasons for the action taken. Removed: The Board shall adopt policies and procedures through which a party affected by an action of the Board can seek reconsideration of any Board action. Section 4. BOARD RECONSIDERATION Added: The Board shall adopt policies and procedures through which a party affected by an action of the Corporation can seek reconsideration of that action by the Board. ARTICLE IV: POWERS Added: Section 26 HEARINGS AND APPEALS Added: There shall be established a process for hearings and appeals of substantive adjudications made by the Corporation. Such process shall be in accord with established principles of fairness and due process. ARTICLE X: GENERAL PROVISIONS Same provision as IANAv4 draft. |