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<DIV>Hi everyone</DIV>
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<DIV>Just a brief clarification that I didn't mean to give the impression (in my last email) that the other GNSO Constituencies are each always unified in a single view, or that it is always a pitched battle between NCUC and the other Constituencies. There have, for example, been instances where NCUC and a number of the other Constituencies have voted together and have worked together on issues.</DIV>
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<DIV>I do want, however, to emphasize the point that the present time - of GNSO restructuring, Constituency/Stakeholder Group re-organization and general process uncertainty - is in my view not at all a good time for NCUC to appear (as Bill and I have mentioned) fragmented and confused. As such, if there are members who see significant problems with the draft that was discussed and submitted - regardless of whether or not this means you prefer Cheryl's alternative proposal - we should discuss this internally on our listserv. There will likely be time and opportunity to refine what has already been submitted to the Board, especially since we currently have little sense of what types of questions/clarifications they may seek from us as the process moves along.</DIV>
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<DIV>Finally - and here I would like to emphasize that this is both my personal view as well as that of Franklin Pierce Law Center whom I represent within the NCUC - I do not think either that the NCUC/NCSG should be viewed as the forum that will fight blindly for totally free expression unhindered by any other public interest consideration. Even in the most democratic of societies, there are necessarily certain limits that are necessitated by equally fundamental public policy concerns. What we as NCUC/NCSG should be striving for is to enshrine the basic principles of access, openness and freedom into the Internet architecture, and to accept only those restrictions that are just as necessary for the protection and development of democratic and open societies (e.g. as recognized and as limited in the major human rights treaties and instruments.)</DIV>
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<DIV>As such, I very much hope that the current and future NCUC/NCSG will be the place where this type of balance is openly discussed. We will not each always agree with one another, and there may be times where an NCUC statement - or indeed your Councillors' votes - may not be of a single position, but I think our strength then will be in presenting a cohesive if not necessarily always a sole viewpoint that is well-reasoned, openly discussed and reflective of the range of user interests that we each represent.</DIV>
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<DIV>Thanks,</DIV>
<DIV>Mary</DIV>
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<DIV><STRONG><FONT color=#800080>Mary W S Wong</FONT></STRONG></DIV>
<DIV>Professor of Law</DIV>
<DIV>Franklin Pierce Law Center</DIV>
<DIV>Two White Street</DIV>
<DIV>Concord, NH 03301</DIV>
<DIV>USA</DIV>
<DIV>Email: <A href="mailto:mwong@piercelaw.edu">mwong@piercelaw.edu</A></DIV>
<DIV>Phone: 1-603-513-5143</DIV>
<DIV>Webpage: <A href="http://www.piercelaw.edu/marywong/index.php">http://www.piercelaw.edu/marywong/index.php</A></DIV>
<DIV>Selected writings available on the Social Science Research Network (SSRN) at: <A href="http://ssrn.com/author=437584">http://ssrn.com/author=437584</A></DIV></DIV>
<DIV><BR>>>> Cheryl Preston <PRESTONC@LAWGATE.BYU.EDU> 12/1/2008 1:33 PM >>><BR>This topic has raised interesting discussion on the very kind of issues<BR>that non-commercial Internet users should be talking about. We have<BR>heard from all of the active NCUC folks, except for Robin and Carlos and<BR>they will probably weigh in later today. Rather than respond to each of<BR>the statements made by Bill, Milton, Konstantin, Norbert and Mary (as<BR>much as I may like to), I am going to focus on 3 VERY BIG issues.<BR><BR>1.The Alternative Charter is not too late. I have again talked<BR>with ICANN staff and there is no “deadline” that was missed. The<BR>only time frame was Milton’s offer to the Board representatives in<BR>Cairo to turn in a draft before the end of November, and both versions<BR>met this. The staff is just beginning to address their procedures in<BR>reviewing charter proposals. ICANN as an organization is not going to<BR>cut off valuable discussion and consideration of alternatives without<BR>having a clear, publicly posted deadline.<BR><BR>2.Mary is correct in describing the “cohesive, unified”<BR>approach that has been the hallmark of NCUC representation. Rather than<BR>being a political strength, however, the single issue solidarity has<BR>been seen by many in ICANN as a weakness, as a barrier to consensus<BR>building. The NCUC representatives are solidified around free<BR>expression and the kind of “net neutrality” that overrides competing<BR>concerns for protections and standards on the Internet. If you would<BR>like a list of NCUC statements and positions over the last few years,<BR>let me know. <BR><BR>They are effective in voting as a block. The business users group, for<BR>example, is made up of 3-4 constituencies who do not always have<BR>“similar interests,” but sometimes widely inconsistent and<BR>competing interests that have to be negotiated. (Do you want<BR>testimonials?) A broad-based, consensus building model is meant to<BR>foster compromises and balancing at every level. <BR><BR>I agree wholeheartedly with Norbert when he talks about the evils of<BR>governmental repression of political speech. Building an Internet that<BR>can resist such pressure is a fundamental value of mine as well. <BR>However, we are capable of the more sophisticated approach, as is true<BR>in the law of every free nation. We need not oppose every kind of<BR>regulation or law enforcement on the Web to reach our goals on political<BR>repression. Mary notes that “NCUC is often the only forum/voice for<BR>individuals and non-business interests to discuss fundamental public<BR>policy issues such as fair and open Internet access/neutrality.” The<BR>fact that it is the only forum/voice is exactly why it needs to include<BR>and represent those who have other valuable concerns to balance with<BR>“open access.” <BR><BR>3.You all have expertise to make the critical decisions about<BR>charters. ICANN is aware that their efforts to build a bottom-up<BR>support organization have been impaired by the way newcomers are treated<BR>(Note: be sure to respond to the constituency survey before the<BR>mid-December deadline). We must avoid the kind of dialogue that conveys<BR>this message: “There is this bigger, scary political dynamic and rules<BR>and deadlines you can’t understand, and you, as a newcomer, don’t<BR>have nearly enough history, background, insider connections, and<BR>expertise.” <BR><BR>The issue here is simple, and all of you are more than qualified to<BR>address it: Should the representatives for all non-commercial Internet<BR>users in ICANN’s policy processes unify in solidarity for free<BR>expression in a simple structure that squeezes out other user interests<BR>and alternative approaches? <BR><BR>I see no reason to continue any discussion other than on the merits of<BR>the two proposals.<BR><BR><BR><BR>Cheryl B. Preston<BR>Edwin M. Thomas<BR>Professor of Law<BR>J. Reuben Clark Law School<BR>Brigham Young University<BR>434 JRCB<BR>Provo, UT 84602<BR>(801) 422-2312<BR>prestonc@lawgate.byu.edu<BR><BR>>>> Mary Wong <mwong@PIERCELAW.EDU> 11/30/2008 11:54 pm >>><BR>Hello everyone<BR><BR>I'd like to add my own note of welcome to all new members, whose voice<BR>and expertise I personally am looking forward to benefiting from. As<BR>Norbert has done, I'd like also to introduce myself briefly and to do<BR>what I can to clarify what's been happening at/within ICANN and NCUC.<BR><BR>Along with Bill Drake (who, with others who have long been involved in<BR>Internet governance issues, is currently flying the flag for<BR>bottom-up,<BR>multistakeholder involvement at the IGF in Hyderabad) I was recently<BR>elected as a new NCUC representative to the GNSO Council (joining<BR>Carlos<BR>Affonso de Pereira from Brazil). As many of you know, I pledged to<BR>respect and further open discussion of what at times are disparate<BR>voices, disagreements and differing priorities/issues amongst us,<BR>while<BR>trying my best to craft a representative and - if possible - unified<BR>viewpoint to other constituencies and groups within ICANN. Unlike the<BR>other GNSO constituencies, NCUC is unique in that our members will not<BR>always have similar views on many issues; this, unfortunately, can<BR>also<BR>be our "weakness" (and I will explain what I mean by this below).<BR><BR>Although I have less personal experience/involvement in ICANN than<BR>many<BR>of you (especially Milton, Norbert, Robin, Carlos and others) my<BR>recent<BR>observations and experiences (from Paris and Cairo, and now - wading<BR>daily through over a dozen (often more) lengthy emails and numerous<BR>conference calls/requests regarding GNSO work) are as follows, first<BR>on<BR>GNSO/ICANN and then on the ongoing NCUC/NCSG process. <BR><BR>1. GNSO/ICANN<BR><BR>- I can't overly emphasize how vital it is for all NCUC members to<BR>realize that we are often a group "under siege" by better-funded, more<BR>unified (for having more clearly aligned - usually commercial -<BR>interests) constituencies/groups, including - and sometimes especially<BR>-<BR>within the GNSO.<BR><BR>- The main reason for this lies mostly with the fact that, as our name<BR>implies, we are there to represent the non-commercial users (whether<BR>institutions or individuals); as such, NCUC is often the only<BR>forum/voice for individuals and non-business interests to discuss<BR>fundamental public policy issues such as fair and open Internet<BR>access/neutrality. <BR><BR>- NCUC's Councillors generally endeavor to speak and vote according to<BR>what we perceive - largely through feedback mechanisms such as this<BR>listserv - to be the prevailing view (and if possible, consensus)<BR>amongst NCUC members. While we three each cast individual votes, we<BR>try<BR>as far as possible to discuss and coordinate our actions and views. We<BR>also know there will be times where there is no NCUC view or<BR>consensus;<BR>at such times, we try our best to discern an objective and fair<BR>viewpoint to take. Should any NCUC member believe that any of our<BR>votes<BR>or speeches misrepresent the constituency view or are otherwise<BR>unsupported/insupportable, we hope you will not hesitate to raise the<BR>matter publicly (e.g. on this listserv.)<BR><BR>- ICANN is a hugely complex, and dare I say intimidatingly<BR>bureaucratized, organization: not only are there multiple issues<BR>(ranging from technical standards to public policy) being worked on at<BR>once, but deadlines are usually tight, and coordination often<BR>difficult<BR>to achieve. This often also means that the better-funded and<BR>professionally-staffed constituencies can muster views and positions<BR>much more quickly and consistently than NCUC (since most if not all of<BR>us do ICANN work on top of our regular jobs.) As I said before, my<BR>view<BR>therefore is that it's crucial for NCUC (or whatever group ultimately<BR>represents non-commercial users at ICANN) to present a coherent and,<BR>if<BR>possible, unified public viewpoint, as this makes our position<BR>stronger<BR>and our views more likely to make an impact.<BR><BR>2. On the NCUC/NCSG question<BR><BR>- Milton and (I believe) Konstantinos has already outlined the<BR>background and timelines involved in this, so let me just add my<BR>personal belief that this is one issue where NCUC members CANNOT<BR>afford<BR>to appear fragmented and disunited. With the backgrorestructuring (and<BR>recalling the recent, fraught and difficult battle<BR>over the number of votes per existing constituency in the new<BR>bicameral<BR>house structure), the political reality is that it is entirely<BR>possible<BR>that a diffused and weakened Non-Commercial user group will mean less<BR>influence and respect in the restructured GNSO.<BR><BR>- Let me add also that it is currently UNCLEAR what the relationship<BR>between the proposed new Stakeholder Groups and constituencies will<BR>be.<BR>None of the official ICANN studies or documents discuss (much less<BR>resolve) this question, making it all the more important that there be<BR>a<BR>unified, strong Non-Commercial Stakeholder Group that will continue to<BR>represent - and fight - for non-commercial voices and interests.<BR><BR>- I support Milton's proposal for a number of reasons, including the<BR>very strong impression I got in Cairo that it would greatly benefit<BR>NCUC/NCSG to submit a formal proposal to the Board as early as it<BR>could<BR>possibly do so. The draft proposal was what was discussed and (as a<BR>result) modified, and it was the modified document that was submitted<BR>within the designated time period.<BR><BR>- Finally, and returning briefly to the "platform" upon which I asked<BR>for all of your support in the Council, it is absolutely critical that<BR>the Non-Commercial user group does NOT allow itself to be divided into<BR>multiple and different groups that do not have a formal vote in the<BR>new<BR>GNSO structure. Milton's proposal has the benefit of allowing not just<BR>the formation of new constituencies WITHIN a strong Non-Commercial<BR>Stakeholder Group (NCSG), it also gives those new constituencies a<BR>voice<BR>and vote within the NCSG AND avoids the fragmentation and consequent<BR>weakening of our "external positioning" that I have already mentioned.<BR><BR>With apologies for the length of this post,<BR><BR>Mary<BR><BR><BR><BR>>>> Norbert Klein <nhklein@GMX.NET> 11/30/08 3:16 PM >>><BR>Dear new individual members of the NCUC (the new NCSG does not yet<BR>exist) who <BR>wrote recently,<BR><BR>"Ralph D. Clifford" <rclifford@snesl.edu><BR>"Jon Garon" <jgaron01@gw.hamline.edu><BR>"Kim, Nancy" <nsk@cwsl.edu><BR><BR>May I first introduce myself: Norbert Klein, since 1990 in Cambodia,<BR>working <BR>since 1994 in non-commercial organizations – in 1994 I created the<BR>first<BR><BR>Internet system in the country, in 1996 the country address .kh, and<BR>in<BR>1999 <BR>I joined the “non-commercials” in ICANN – at that time it had a<BR>different <BR>name. During the last three years I was sent by the NCUC as a<BR>councillor<BR>into <BR>the GNSO. Since November 2008, I am a member of the ICANN Nomination <BR>Committee.<BR><BR>Though my working day – though a Sunday – went beyond midnight, I<BR>want<BR>to <BR>write to you and our community, because I am concerned about what you<BR>write – <BR>my mail is still basically a letter of welcome. I may not respond to<BR>all<BR>of <BR>your concern and questions in a way you may expect – but I do so on<BR>the<BR>basis <BR>of many hours during many years of a struggle to get our voice - the<BR>Non <BR>Commercial Users Constituency – heard, as it developed over the<BR>years,<BR>and in <BR>the context of ICANN. We found ourselves often in a difficult position<BR>-<BR><BR>others with business, intellectual property, and technical mandates<BR>had<BR>often <BR>better institutional support structures.<BR><BR>While I understand your hope, saying to “add that simplicity is also<BR><BR>valuable,... ... without adding significant complexity to the<BR>proposal”<BR>- I <BR>can only plead to spend quite some more time working through the<BR>complexity <BR>of the ICANN website:<BR><BR><A href="http://www.icann.org">http://www.icann.org</A> <BR><BR>Surely you have done it – but I admit, after so many years, that I<BR>am<BR>still <BR>struggling to be oriented – not only about the structures – but<BR>about<BR>the <BR>dynamics and time lines, which exist and to which we have to adapt<BR>ourselves, <BR>if we want to have our voice heard, according to the right procedure,<BR>at<BR>the <BR>right place, and at the right time.<BR><BR>One sentence makes me concerned: “The bottom line is that ICANN is<BR>not <BR>perceived to be an open organization, nor one that is willing to<BR>proPerceived by whom? A complex network of cooperating organizations and<BR><BR>institutions with their different interests cannot be called to be<BR>“not<BR>open” <BR>for having worked out, changed, further developed, and revised again,<BR>certain <BR>rules and procedures. The discussions and outside consultancies and <BR>preparations towards the present GNSO restructuring process have been<BR>going <BR>on for several years – and as it is a process where quite different <BR>institutional actors are involved, not all of our concerns have been<BR>received <BR>with the same “openness” which we would have hoped for. But I<BR>cannot<BR>easily <BR>accept to say that ICANN is “not willing to provide a voice to new<BR>users<BR>of <BR>the Internet and Web.” <BR><BR>In 1999, and for some years to follow, there was an effort going on to<BR>create <BR>an “individual membership constituency” - which did not lead<BR>anywhere, <BR>because it was basically an effort by ONE person trying to decide what<BR>has to <BR>happen, and there was no support for this kind of approach in ICANN.<BR>We,<BR>in <BR>the NCUC, received since that time the clear mandate to be a membership<BR><BR>organization of organizations, though we were concerned that this<BR>excluded <BR>the possibility for quite a number of individual persons who would<BR>have<BR>liked <BR>to bring their contribution into our fellowship.<BR><BR>Now, when we finally have taken the initiative to remove the<BR>institutional <BR>constraints for individuals – and have received the agreement within<BR>the<BR><BR>ICANN-GNSO restructuring to accept also individual members into the<BR>NCUC<BR>(on <BR>the way into the NCSG) - I see no reason to say that ICANN is “not<BR>willing to <BR>provide a voice to new users of the Internet and Web.”<BR><BR>You are among the first coming into this door we have worked to open.<BR><BR>I cannot comment much on the alternatives proposed by Prof. Cheryl<BR>Preston – <BR>presented at a point in time publicly known to have been too late to be<BR><BR>integrated and sent to the ICANN board – after a draft had been <BR>discussed in <BR>different stages in the constituency, and we finally had a text which<BR>had <BR>received wide consensus and was sent on.<BR><BR>Let me close with some content concern, and not only with structures.<BR>But it <BR>is again a very complex, not a simple situation we face.<BR><BR>Freedom, justice, and openness have been extremely important elements<BR>for my <BR>work in Cambodia – in a context where the technological, economic,<BR>and <BR>political situation is VERY different from the one in most of the <BR>north-Atlantic countries. It was for me personally always important to<BR>have – <BR>in the NCUC fellowship – a group of people from where I could get<BR>support and <BR>inspiration for our situation here – even when we were in ICANN<BR>encountering <BR>challenges which were not only encouraging for our efforts in Cambodia<BR>(I am <BR>editing, since more than 10 years, a review of the Cambodian language<BR>press <BR>in English). The media – not only the printed press – is in an<BR>unending <BR>struggle to find ways to communicate freely without intervention. The <BR>discussions about freedom of expression – in ICANN, including in the<BR>domain <BR>name system - provide always a context for me here, as they have for<BR>the<BR><BR>society in the USA. I just read, before writing to you, the following <BR>article, a kind of homework for the GNSO Councillors from the NCUC<BR>–<BR>and <BR>this work is being done, of course, on the basis of discussion in the <BR>constituency. Therefore I hope for some extensive comments back:<BR><BR><A href="http://www.nytimes.com/2008/11/30/magazine/30google-t.html?ref=todayspaper&pagewanted=all">http://www.nytimes.com/2008/11/30/magazine/30google-t.html?ref=todayspaper&pagewanted=all</A><BR><BR><BR>Whatever the time is at your end when you get this – here it is now<BR>02:50. But <BR>I wrote now because of a deep concern.<BR><BR><BR>Norbert<BR><BR>-- <BR>Norbert Klein<BR>Phnom Penh/Cambodia<BR>PGP key-id 0x0016D0A9<BR><BR>If you want to know what is going on in Cambodia, please visit us<BR>regularly - <BR>you can find something new every day:<BR><BR><A href="http://cambodiamirror.wordpress.com">http://cambodiamirror.wordpress.com</A> (English)<BR><A href="http://kanhchoksangkum.wordpress.com">http://kanhchoksangkum.wordpress.com</A> (Khmer)<BR></DIV></BODY></HTML>