revised draft of NCUC comments on LSE Report on GNSO reform

[Robin Gross]

Thanks Milton and Adam for the edits to the text. I've incorporated them 
into the document and will now file the final version (see below).

Happy holidays!

Robin

===============================

Comments of the Non-Commercial Users Constituency (NCUC) on the
GNSO Review: LSE Report and Recommendations
December 2006


ICANN’s Non-Commercial User Constituency (NCUC) welcomes the London 
School of Economics (LSE) report on the GNSO and urges the Board to 
implement many, but not all, of its recommendations.

Recommendation 1
“A centralized register of all GNSO stakeholders should be established, 
which is up-to-date and publicly accessible. It should include members 
of Constituencies and others involved in the GNSO task forces.”
[no opinion developed]

Recommendation 2
“GNSO Constituencies should be required to show how many members have 
participated in the policy positions they adopt.”

* While NCUC is in favor or transparency, we find this recommendation to 
be unrealistic. The issue is not "how many" participated but whether the 
members support the position and whether the membership has had an 
opportunity to review and disagree with a position, and an opportunity 
to re-elect or rebuff representatives who do things that do not reflect 
their views. Domain names are a small part of the mission of most 
nonprofits. Members in our constituency do not have the time or 
resources to track in detail every single action taken by ICANN's GNSO. 
Of necessity, constituency participants must focus their time on the 
specific issues that interest them the most and leave to others the ones 
that don't.

Recommendation 3
“There needs to be greater coherence and standardization across 
constituency operations. For this to work effectively, more ICANN staff 
support would be needed for constituencies.”

* NCUC does not support recommendation 3. Constituencies should be 
funded by ICANN so they can provide their own staff support for these 
roles. It does not have to be an ICANN staff member that fulfills this 
function and role, which NCUC agrees needs to be filled.

Recommendation 4
“A GNSO Constituency support officer should be appointed to help 
Constituencies develop their operations, websites and outreach activity.”

* NCUC supports recommendation 4 as it would enable constituencies, 
particularly the less-funded constituencies to carry out the work of the 
organization in a more consistent fashion.

Recommendation 5
“Constituencies should focus on growing balanced representation and 
active participation broadly proportional to wider global distributions 
for relevant indicators.”

* NCUC supports recommendation 5 and notes that according to the LSE 
report the NCUC has the best record in this regard, although there is 
still room for improvement.

Recommendation 6
“The basis for participation in GNSO activities needs to be revised, 
from Constituency based membership to one deriving from direct ICANN 
stakeholder participation.”

* NCUC supports recommendation 6 since many people or entities do not 
fit neatly into any ICANN constituency and it is important the ICANN 
hear from all viewpoints. Also, because hardly anyone in the public has 
heard of the GNSO, participation in ICANN via the GNSO will not garner 
much interest and remain at a low level.

Recommendation 7
“The GNSO should improve the design and organization of the current 
website, develop a website strategy for continual improvement and growth 
over the next three years, and review usage statistics on a regular 
basis to check that traffic to the website is growing over time and 
understand more fully what external audiences are interested in.”

* NCUC supports recommendation 7. Since the website is the main tool 
through which GNSO policy discussions are made available to the world, 
it is extremely important the information be accessible and easy to 
find. Most agree that ICANN should continue to upgrade its website, 
including the GNSO website.

Recommendation 8
“Document management within the GNSO needs to be improved and the 
presentation of policy development work made much more accessible.”

* NCUC supports recommendation 8. Closely tied to recommendation 7, an 
online document management system to better provide the public with GNSO 
policymaking discussions and reports would be an important improvement.

Recommendation 9
“The GNSO should develop and publish annually a Policy Development Plan 
for the next two years, to act both as a strategy document for current 
and upcoming policy work, and as a communications and marketing tool for 
general consumption outside of the ICANN community. It should dovetail 
with ICANN’s budget and strategy documents.”

* NCUC supports recommendation 9. Developing policy development plans at 
the GNSO will encourage long-term thinking and prioritization of issues.

Recommendation 10
“The GNSO and ICANN should work proactively to provide information-based 
incentives for stakeholder organizations to monitor and participate in 
GNSO issues.”
[no opinion developed]

Recommendation 11
“The position of the GNSO Council Chair needs to become much more 
visible within ICANN and to carry more institutional weight.”

* NCUC supports recommendation 11. In general the GNSO needs to be more 
widely recognized as the appropriate forum for public policymaking at ICANN.

Recommendation 12
“The policy on GNSO Councilors declaring interests should be 
strengthened. Provision for a vote of ‘no confidence’ leading to 
resignation should be introduced for noncompliance.”

* NCUC supports recommendation 12. Transparency and accountability 
regarding the various interests of GNSO Councilors is always an 
appropriate objective for good public policy making.

Recommendation 13
“Fixed term limits should be introduced for GNSO Councilors either of 
two two-year terms (as applied in some Constituencies already) or 
perhaps of a single three-year term.”

* NCUC strongly supports recommendation 13. In order for there to be an 
even playing field across all constituencies, they should all have term 
limits. Otherwise the constituencies who do have limits have an 
advantage over those that do not in directing GNSO policy work over 
time. Being a GNSO councilor should not be a “career”, but rather a 
public service done only for a few years. The GNSO election structures 
should discourage career GNSO councilors and encourage the widest range 
of participation and a diversity of viewpoints. NCUC supports either a 
three term limit for two-year terms, or 2 terms of 3 years for each 
constituency.

Recommendation 14
“The GNSO Council and related policy staff should work more closely 
together to grow the use of project-management methodologies in policy 
development work, particularly focusing on how targeted issue analysis 
can drive data collection from stakeholders (rather than vice versa) .”

* NCUC does not support recommendation 14. The GNSO policy decisions and 
recommendations should be made by the various constituencies, not by 
ICANN policy staff as the text supporting this recommendation suggested. 
ICANN policy staff officers best serve in the role of facilitators of 
the discussion, not arbiters of competing policy issues.

Recommendation 15
“The GNSO Council should rely on face-to-face meetings supplemented by 
online collaborative methods of working. The Chair should seek to reduce 
the use of whole-Council teleconferencing.”

* NCUC does not support recommendation 15. Even if ICANN were able to 
pay for the travel costs of the meeting participants, it is unlikely 
NCUC members (or members of other constituencies) can donate a number of 
days of their time to attend more face-to-face meetings. Most NCUC 
members (as with other constituencies) have full-time jobs that do not 
allow for frequent face-to-face meetings at different corners of the 
globe for ICANN policy work. NCUC supports getting as much work done via 
telephone and email as possible, and to rely upon holding face-to-face 
meetings, only when absolutely necessary.

Recommendation 16
“The GNSO Councilors should have access to a fund for reasonable travel 
and accommodation expenses to attend designated Council meetings, 
instead of having to meet such costs from their own resources as at 
present.”

* NCUC strongly supports recommendation 16. The lack of funding 
available to constituencies is one of the biggest impediments to 
participation at ICANN meetings. ICANN should be serious about its 
attempt to engage in policymaking by providing for the travel of the 
councilors doing the work of the organization. ICANN should 
automatically fund the reasonable travel costs of all GNSO council 
members and an executive member of each constituency to ICANN Board 
members. ICANN should also provide for the reasonable travel costs of 
task force members who are carrying out the work of the organization.

Recommendation 17
“The GNSO Council should make more uses of Task Forces. Task Force 
participants should be more diverse and should be drawn from a wider 
range of people in the Internet community, and national and 
international policy-making communities.”

* NCUC supports recommendation 17. Better use of task forces would help 
the GNSO to carryout its work much for effectively and through a wider 
range of stakeholders. However, unless these taskforces are better 
managed and pushed to reach agreement or defined areas of no agreement 
more rapidly, a larger number of simultaneous Task Forces will only 
create more confusion and gaming of the policy development process.

Recommendation 18
“An ICANN Associate stakeholder category of participation should be 
created, so as to create a pool of readily available external expertise, 
which can be drawn upon to populate Task Forces where relevant.”

* While NCUC supports more diversity of viewpoints and a broader range 
of expertise in GNSO policy making discussions, who would choose these 
"stakeholders"? Who will decide that they are "experts"? How can we 
ensure that they are balanced in terms of their policy perspectives? 
Unless these questions are answered, we cannot support this recommendation.

Recommendation 19
“The current GNSO Constituency structure should be radically simplified 
so as to be more capable of responding to rapid changes in the Internet. 
The Constituency structure should be clear, comprehensive (covering all 
potential stakeholders) and flexible, allowing the GNSO to respond 
easily to rapid changes in the makeup of Internet stakeholders. We 
suggest a set of three larger Constituencies to represent respectively 
Registration interests, Business and Civil Society.”

* NCUC strongly supports recommendation 19. The LSE report suggests that 
GNSO be restructured into three basic groupings: the registration supply 
industry, business interests, and civil society. NCUC agrees that this 
is a cleaner and more workable constituency structure than now exists. 
There are important details to be worked out, however.

The existing structure gives business, particularly entertainment 
companies or other intellectual property interests, too much power in 
GNSO policy making and an unfair advantage. Non-commercial interests 
should be given equal weight to commercial interests in GNSO policy 
making as a matter of principle.

Recommendation 20
“A reorganization of the GNSO Constituencies would also allow the 
Council to be made somewhat smaller (we suggest 16 members) and hence 
easier to manage.”

* NCUC strongly disagrees with recommendation 20. While the Council 
should be made smaller, the details for implementing that vague goal are 
unsupportable.

We disagree with the report's proposal that registration suppliers and 
business users be given 5 votes on the policy making Council, while 
civil society be given only 3. This kind of discrimination against a 
particular sector of societal interests is unjustified. Nothing in the 
factual findings of the report supports this discrimination. The report
does not even mount an argument for it. We suggest that the supply 
industry be given 5 members, and business and civil society each given 
4, with the remaining 3 appointed by the NomCom.

We note that the existence of three "at large" GNSO Council members 
appointed by the Nominating Committee does not compensate for this 
inequality. The NomCom-appointed Council members can come from any 
constituency; the NomCom contains diverse interests and is not 
guaranteed to appoint members sympathetic to civil society.

How the civil society representatives on the Council are selected is 
very important condition upon our support. We note that the concept of a 
"civil society" category leaves unresolved issues about the relationship 
between NCUC and ALAC. While we strongly favor a more unified structure 
for civil society participation in ICANN, NCUC representatives are 
elected under a formal and legitimate membership structure, whereas the 
process of selecting ALAC Board members is complicated and 
non-transparent. As long as ALAC and GNSO are structurally separate, and 
ALAC's structures are incomplete, civil society representation within 
the GNSO will have to be mediated by NCUC.

Recommendation 21
“The definition of achieving consensus should be raised to 75 per cent. 
Weighted voting should be abolished. Both measures could be used to 
create more incentives for different constituencies to engage 
constructively with each other, rather than simply reiterating a ‘bloc’ 
position in hopes of picking up enough uncommitted votes so as to win.”

* NCUC does not support recommendation 21. The LSE Report proposes to 
raise the threshold for a "consensus policy" to 75% of the vote. We do 
not support this recommendation and would prefer to retain a 2/3 
supermajority as the threshold for "consensus." Under the LSE proposal, 
supplier interests and business interests could, if only 4 of their 
representatives agreed, prevent a 75% majority from forming and thus 
block any policy. The public interest advocates in civil society, even 
if they were completely unified, could not exercise such a veto. This is 
not a correct balance of policy influence. Moreover the very high 75% 
requirement would basically freeze the status quo in place. If the 
status quo were a very good state of affairs, this might be an 
acceptable approach. The LSE’s recommendation would give commercial 
interests an automatic veto over the public-interest without any 
explanation or justification.

If representation on the council is to be weighted, it is reasonable 
that the registration industry, whose survival depends entirely on ICANN 
contracts and policies, have some kind of special status in the outcome 
of policies. They need to be protected against various forms of 
crippling regulation or expropriation at the hands of GNSO Council
legislators who do not have to directly bear the costs of their 
policies. But there is no legitimate reason why commercial interests 
should be given the same veto power while non-commercial ordinary 
Internet users denied it. We also think that registrars and registries 
often have conflicting interests and therefore it is better for there to 
be wider representation for them in order to accommodate this structural 
difference.

Recommendation 22
“The way in which the GNSO Council votes to elect two directors to the 
ICANN Board should be changed to use the Supplementary Vote system.”
[no opinion developed]

Recommendation 23
“The amount of detailed prescriptive provision in the ICANN Bylaws 
relating to the operations of the GNSO should be reduced. ICANN Bylaws 
should outline broad principles and objectives for the GNSO but the 
detailed operational provision (including the section on the PDP) should 
be transferred to the GNSO Rules of Procedure. This would allow the GNSO 
to agree amendments and to introduce new innovations in its working 
methods and timelines in a more realistic and flexible way, while 
operating within ICANN’s guiding principles.”

*NCUC supports recommendation 23. The current structure in the ICANN 
Bylaws is far too micro-managing of the GNSO work to be useful. Much of 
the detailed prescriptive provisions in the ICANN Bylaws for GNSO work 
should be removed. The GNSO is the best position to manage its internal 
operations and objectives.


Recommendation 24
“Both ICANN and the GNSO Council should periodically (say once every 
five years) compile or commission a formal quantitative and qualitative 
assessment of the influence of the GNSO's work on developing policy for 
generic names. This should include an analysis of how the GNSO's 
influence with national governments, international bodies and the 
commercial sector might be extended.”
[no opinion developed]


=================================


Milton Mueller wrote:

>Fantastic work, Robin. A few additional comment where I would like to
>add something below:
>
>  
>
>>>>Robin Gross <robin at ipjustice.org> 12/21/2006 3:20:47 PM >>>
>>>>        
>>>>
>>Recommendation 2
>>"GNSO Constituencies should be required to show how many members
>>    
>>
>have 
>  
>
>>participated in the policy positions they adopt."
>>    
>>
>
>We find this recommendation to be unrealistic. The issue is not "how
>many" participated but whether the members support the position and
>whether the membership has had an opportunity to review and disagree
>with a position, and an opportunity to re-elect or rebuff
>representatives who do things that do not reflect their views. Domain
>names are a small part of the mission of most nonprofits. Members in our
>constituency do not have the time or resources to track in detail every
>single action taken by ICANN's GNSO. Of necessity, constituency
>participants must focus their time on the specific issues that interest
>them the most and leave to others the ones that don't. 
>
>  
>
>>Recommendation 5
>>"Constituencies should focus on growing balanced representation and
>>    
>>
>
>  
>
>>active participation broadly proportional to wider global
>>    
>>
>distributions 
>  
>
>>for relevant indicators."
>>    
>>
>
>We agree and note that according to the LSE report the NCUC has the
>best record in this regard, although there is still room for
>improvement.
>
>  
>
>>Recommendation 17 -- I would like to add something to Robin's
>>    
>>
>statement:
>
>  
>
>>* NCUC supports recommendation 17. Better use of task forces would
>>    
>>
>help 
>  
>
>>the GNSO to carryout its work much for effectively and through a wider
>>    
>>
>
>  
>
>>range of stakeholders. 
>>    
>>
>
>ADD: However, unless these TFs are better managed and pushed to reach
>agreement or defined areas of no agreement more rapidly, a larger number
>of simultaneous Task Forces will only create more confusion and gaming
>of the policy development process. 
>
>  
>
>>Recommendation 18
>>"An ICANN Associate stakeholder category of participation should be
>>    
>>
>
>  
>
>>created, so as to create a pool of readily available external
>>    
>>
>expertise, 
>  
>
>>which can be drawn upon to populate Task Forces where relevant."
>>
>>* NCUC supports recommendation 18. A new means of obtaining more 
>>diversity of viewpoints and a broader range of expertise would be a 
>>useful input into GNSO policy making discussions.
>>    
>>
>
>PROPOSED REPLACEMENT: Who would choose these "stakeholders"? Who will
>decide that they are "experts"? How can we we ensure that they are
>balanced in terms of their policy perspectives? Unless these questions
>are answered, we cannot support this recommendation.
>
>
>  
>