Comments on BGC GNSO Improvements Report

[Robin Gross]

NCUCers:

ICANN is still taking public comment on the "GNSO Improvements" issue,
and in particular the Board Governance Committee Report and the
restructuring of the GNSO.

Please send comments in to ICANN on this report. It is a very important
opportunity to achieve meaningful reform at ICANN - so let's take it!

Thanks!
Robin

Comments on the Report can be posted to gnso-improvements at icann.org
<mailto:gnso-improvements at icann.org> and reviewed at
http://forum.icann.org/lists/gnso-improvements.

ICANN's webpage on GNSO Improvements:
http://www.icann.org/topics/gnso-improvements/

BGC GNSO Improvements Report:
http://www.icann.org/topics/gnso-improvements/gnso-improvements-report-15oct07.pdf

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

*IP Justice Statement on ICANN Board Governance Committee Report
on
GNSO Improvements*

5 November 2007
------------------------------------------------------------------------

ICANN’s Board Governance Committee Report (BGC), in attempting to
achieve the laudable result of greater inclusiveness, effectiveness, and
efficiency conceives a near total restructuring of the GNSO and its
processes. It proceeds from an assumption that any voting inherently
inhibits the process and proceeds to find the most dramatic route to
eliminate any vote. While many of the BGC Report’s recommendations would
certainly improve the effectiveness of the GNSO, the report does not
adequately consider the values inherent in the vote of the GNSO Council
and the dangers of forcing consensus in all cases.

*GNSO Constituencies*

Laudably, the BGC report recommends replacing the current GNSO
constituencies with four more-broadly conceived constituencies, each of
which would receive and equal vote. The new constituencies would be
Registries, Registrars, Noncommercial Users, and Commercial Users. This
would consolidate the Commercial & Business, Intellectual Property, and
Internet Services & Connection Providers constituencies into a single
Commercial Users constituency. Since the interests of these groups
already are virtually identical and they already act as a cohesive
voting block, consolidating them will serve to avoid double
representation of certain stakeholders and will serve to more fairly
balance the voting in the GNSO. This re-balancing of the interests
within the GNSO is critical to ensuring that ICANN not be unduly
dominated by any single interest and that the rights of the billions of
non-commercial users of the Internet is adequately taken into account in
ICANN policy. Duplicative constituencies and weighted voting are perhaps
the clearest ways in which unrepresentation of non-commercial users can
occur. Consequently, it is imperative that these practices be ended and
that GNSO Council representation reflect a fair balance of interests in
ICANN decisions.

The proposed restructuring of the GNSO constituencies also has the
advantage of creating greater accessibility to the GNSO by new
stakeholders while keeping the GNSO Council at a manageable size. The
broad constituencies proposed in the BGC report would provide a balanced
representation for all users of the Internet. Any new stakeholder
wishing to become involved with the GNSO would find a group through
which they could become involved and represented without going through
the onerous process of creating a new constituency.

The new constituencies also serve to reduce the size of the GNSO
council, and thus will serve to increase efficiency and streamline
discussion. The BGC report proposes a council size of nineteen. This
may, however, still prove unwieldy. If each constituency elects three
council members, rather than four, the size will drop to a more
manageable fifteen. Given the breadth of the new constituencies, this
figure will be unlikely to expand because newly interested parties will
have the existing constituencies available to them.

In establishing the new constituencies, it is important that they be
structured in a way that adequately reflects their intended breadth.
Since individuals will be represented not as a distinct class but rather
according to their interest, the new constituencies must ensure that
their practices and fees do not erect unreasonable barriers to
individuals. If, for example, the new Commercial Users constituency were
to charge fees equal to those currently charged by the Business
Constituency, it would prove an excessive obstacle to the majority of
Internet start-ups, sole proprietors, or small businesses.

*Policy Development Process (PDP)*

The BGC report indicates that the ICANN contracts stipulate that the
procedure for creating consensus policies will be contained in the ICANN
bylaws. While this may prevent the optimal level of flexibility, the
bylaws can and should be crafted with an eye towards flexibility. The
Board should not be allowed, however, to reject GNSO policy
recommendations that the Board considers to be “non consensus” policy
issues. The GNSO Policy Council is and should remain the primary organ
responsible for developing policy at ICANN. The GNSO Policy Council
serves an important check on the power of the ICANN Board of Directors,
who may be less in touch with the concerns of the constituencies. IP
Justice disagrees with the BGC report and its attempt to transform the
GNSO Policy Council away from a policy decision-making body and more
towards an “manager” of the policy development process at ICANN. That
repurposing of the GNSO Council would be a tragic mistake since it would
remove another check on a policy development system that is necessary to
ensure fair and adequate representation.

Rather than disempower the GNSO Council, the Board should take immediate
steps to facilitate the participation of all GNSO Councilors at ICANN
policy meetings by funding their reasonable travel costs. The Board
should also amend the bylaws so as to permit proxy voting by GNSO
Councilors who are unable to be physically present at a GNSO meeting.

*Working Groups*

The BGC report recommends that task forces be abandoned in favor of
working groups. The BGC stresses that the current task force model
duplicates the same policy discussion at the task force as at the
Council, and that the prospect of a vote inherently polarizes the
discussion at the earliest stages, inhibiting a more thorough
discussion. To this end BGC recommends that these groups be made up of
any interested stakeholders, operate on consensus, and not have their
decisions subject to review by the GNSO Council. This proposal goes too
far and ignores the inherent value of the review and vote by the GNSO
Council. It also ignores the reality that consensus cannot always be
reached (whois).

The selection of the constituencies who are represented on the GNSO
Council is a deliberate choice to balance the interests of the wide body
of individuals interested in ICANN policies. Great attention has been
given to the restructuring of the GNSO constituencies precisely because
this balance is so important. A supermajority vote by the GNSO Council
assures that support is broad enough to justify action by ICANN. This
gate-keeping function ensures that no working group is unduly dominated
by one interest and allows GNSO Councilors to protect the interests of
stakeholders who may be unable to be intimately involved in every
working group.

This function is especially important considering that a direct
stakeholder system with no fixed proportion of representation may be
vulnerable to stacking by the wealthy stakeholders who can afford to
participate to a greater extent. This tactic was recently used by
Microsoft in attempting to gain rapid approval of its OOXML format. In
that case, standards setting organizations such as the Swedish Standards
Institute and the International Organization for Standardization saw
their membership swell just before the vote. Though a consensus system
would prevent workgroup stacking from realizing absolute control over a
vote, stacking may still unduly dominate discussion or influence the
chair. Since true consensus is not required, only “rough consensus,” a
dominant faction could still stack a WG and claim that it had achieved
agreement from “almost everyone.”

ICANN has already experienced precisely this problem with the recent
unsuccessful WHOIS working group. In that
case, a disproportionately large number of trademark attorneys attended
each conference. Because of the contentious nature of the issues
involved, the process dragged on, and the chair ultimately allowed the
trademark interest to control the result. In instances such as this,
where one interest finds it cost effective to be overrepresented in the
Work Group, the vote by the GNSO council is not redundant but instead a
necessary step to prevent misuse. While the BGC is correct that
replacing the current task force model can improve inclusiveness,
increase efficiency, and may potentially decrease polarization, it is a
mistake to remove review by the GNSO Council merely because it involves
a vote. So long as the Working Group possesses the proper structure and
culture to encourage compromise and craft a balanced proposal, then a
vote by the Council will merely serve to ensure sufficiently broad
support and need not inhibit compromise.

*Consensus*

The BGC report focuses strongly on eliminating or minimizing voting and
replacing it with a consensus system of decision-making. The report
espouses the belief that a focus on voting results in less compromise,
distracts the GNSO with politicking, and ultimately results in deadlock
or empty decisions. It asserts that a consensus system will be more
inclusive, and leads to results more palatable to each party. While
these goals are laudable, the BGC report does not adequately recognize
the problems inherent in using a consensus system in this context, and
does not adequately deal with the reality that consensus between
competing parties is not always possible; sometimes a vote is both
necessary and desirable.

The same feature which makes consensus so effective at eliciting
compromise is also its greatest danger. In consensus every decision is
threatened with deadlock. While this assures that all concerns will be
addressed thoroughly, it can result in complete stagnation where two
fundamentally irreconcilable positions are represented. In standard
setting organizations, such as IETF, this danger is less significant
because it is a more homogeneous community, and since standards must be
voluntarily adopted by the industry, the working group’s decisions will
require near unanimous support in order to be effective anyway.

In a regulatory organization such as ICANN, however, the risk of
irreconcilable deadlock is far greater. Under the BGC proposals, the
GNSO constituencies would represent every user of the Internet. Such a
diverse group of stakeholders will inevitably include two parties with
irreconcilable disagreement over an ICANN policy. Since certain
stakeholders may be contractually bound by ICANN decisions, these
disagreements may stem from countervailing economic interests, and hence
it may be impossible to sway a blocking party through discussion or
compromise.

These conflicts of interest lead to a special problem where one party is
best benefited by no action. Whereas some organizations may have some
assurance that all parties will be interested in any action, no such
guarantee exists in ICANN. Consequently, any stakeholder interested in
the status quo will have an incentive to block any action. Offers to
compromise by the majority will necessarily be ineffective because the
party interested in the status quo already has the best possible result.
In such a scenario, the only recourse that may be left to the majority
is for groups represented on multiple working groups to offer
concessions to the holdout on unrelated issues in other working groups.
Such gamesmanship could ultimately prove more polarizing than voting and
would create a perverse incentive to block certain working groups in
order to maintain bargaining chip.

It is further important to note that, even where working as intended, a
consensus system may not arrive at the most desirable or best result.
Specifically, it may give undue influence to a small, radical, and vocal
minority. This problem is best understood in the working group context
by assuming that each member of the working group represents a class of
stakeholders. In compromising to appease a radical minority, each member
may lose the support of some of the stakeholders he represents. In
aggregate, these stakeholders may outnumber the stakeholders who the
minority member represents. Consequently, the final compromise can enjoy
less overall approval than what would have been agreed to by a
supermajority. While this phenomenon is only a potential problem where
the number of holdouts is particularly small, it is especially relevant
here because proposes alternate system include supermajority of
two-thirds or three-fourths. The essential structural difference between
consensus and a supermajority vote is the treatment of small vigorous
dissent.

Conclusion

The GNSO is structured to attempt to resolve the interests of a wide
variety of stakeholders. The BGC proposal to restructure the GNSO
constituencies into 4 main constituencies is a critical step towards a
fair balancing of these interests and improves the ability of new
stakeholders to obtain representation at ICANN and the GNSO. This
restructured Council, however, will only be able to adequately balance
these interests if it continues to serve a gate-keeping function and
review the proposals created by the workgroups. Moreover, since some of
these interests may ultimately prove irreconcilable, it is important
that a single interest not be allowed to veto policy decisions.

This statement lives online at:
http://ipjustice.org/wp/2007/11/05/gnso_improvements_bgc-report/