NCUC Statement on GNSO Restructuring & Board Governance Committee Report

[Robin Gross]

Below is a draft of the constituency statement on GNSO Structuring  
and the Board Governance Committee Report.

Please send any comments and suggestions for edits soon as the  
official deadline for submission of comments is 25 April.

Thank you,
Robin
NCUC Statement on GNSO Restructuring and the

ICANN Board Governance Committee Report

25 April 2008



Rebalancing the Constituencies



The most critical aspect of any GNSO reform is the reshaping of GNSO  
constituencies to ensure that everyone who has a stake in ICANN  
policy is represented and that the votes of the constituencies be  
structured to represent a fair balance of these interests.  To this  
end, the Board Governance Committee Report recommends more widely  
interested constituencies and proposes a four constituency model.   
NCUC, together with the other 3 “user constituencies” in the GNSO and  
the At-Large Advisory Committee (ALAC) have jointly proposed a more  
balanced three constituency model for the GNSO consisting of  
contracting parties, commercial users, and non-commercial users of  
the Internet.  The three constituency model represents the fairest  
balancing of interests between these various stakeholders and this  
submission hereby incorporates the Joint Users Group Proposal of 23  
April 2008 available online at http://forum.icann.org/lists/gnso- 
improvements-report-2008/msg00012.html.



Contract Parties



The principal difference between the two models is that the four  
constituency model would gives registrars and registries each their  
own constituency, whereas the three constituency model would collapse  
them into a single contract parties constituency.  This means that  
under the four constituency model the parties with a contractual  
relationship to ICANN would have effective veto power, whereas in the  
three constituency model they would be on equal footing with other  
interests.

Because ICANN regulates the conduct of the contractual parties, it is  
important that they not be given a disproportionately large stake in  
ICANN policies.  If the registrars and registries had effective veto  
power over any GNSO policy, it would mean that ICANN would be  
effectively captured by the very entities it purports to regulate.   
This would not only undermine the effectiveness of the GNSO, but also  
undermine public perception of ICANN and possibly invite governmental  
action.

More importantly, the GNSO should recognize that the business  
interests of the contracting parties do not outweigh those of the  
numerous people and entities rely on the Internet for business and  
communication.  Although the unique concerns of the contracting  
parties do warrant them having a direct voice at ICANN, this voice  
must not be so great as to drown out all other interests.



The Working Group Model



The Board Governance Committee Report suggests making working groups  
the focal point of the new GNSO structure.  It proposes eliminating  
voting by the GNSO council entirely and empowering working groups  
directly to create consensus policy.  Under this new model, the GNSO  
council would not vote on any policy, but instead function as an  
administrator of working groups, with each working group operating on  
a basis of “forced” consensus.

The primary motivation for this new model is fear of voting.  The  
Board Governance Committee asserts that voting polarizes the GNSO and  
drives the constituencies to focus on building alliances rather than  
developing policy.  It concludes that the solution to this  
politicking is to eliminate voting and to force compromise through a  
consensus based policy development process.  This simplification  
overlooks both the dangers of consensus as a policy making tool and  
the benefits of the GNSO Council's current decision making role.



Dangers of Consensus



“It has been said that democracy is the worst form of government,  
except for all the other forms  that have been tried from time to  
time.”  -- Winston Churchill


Even if the Board Governance Committee's fears about voting are  
accurate, it does not follow that voting must be entirely replaced by  
consensus.  Any danger of politicking inherent in a system of voting  
is significantly outweighed by the dangers of a consensus system,  
which is far more open to gaming and strategic manipulation.

In a system of “true” consensus, any one participant in a policy  
development process can prevent a proposal from going forward.   
Although this is intended to foster discussion and compromise, it  
gives rise to a number of problems.  Most significantly, anyone who  
has an interest in the status quo has an absolute ability to preserve  
it.  This creates an excessive obstacle to action in these situations  
and may guarantee inaction on contentious issues.

Even where there is general agreement that some action should be  
taken, consensus still gives disproportionate power to the minority.   
A sufficiently obstinate objector can force the majority to include  
changes that the majority find objectionable, on the threat of  
blocking any action at all.  While in some cases these compromises  
may make for better policy, in other cases they will strip the  
proposal of most of its merit or create unwarranted exemptions.  The  
super-majority vote currently required already promotes compromise,  
but this current proposal skews the balance too far in the favor of  
hold outs.

These dangers are only partially ameliorated by using a system of  
“rough” consensus.  Under this model, the chair of a working group  
has the authority to let a policy go forward not withstanding the  
objection of a small minority, but the exact size of that minority is  
a moving target.  This is effectively just a requirement of a  
supermajority vote with a moving target.  The judgment about how  
large a minority needs to be to have veto power ought to involve a  
uniform judgment and ought to be made with respect to the balancing  
of interests in the GNSO, not the proportion in which those interests  
are represented in an individual working group.  To do otherwise  
would be to encourage abuse of power by chairs and the stacking of  
working groups by constituencies.



Role of the GNSO Council



The extreme Working Group model also ignores the important functions  
served by the GNSO council to make policy decisions.  As it stands,  
the GNSO council serves a gate keeping function to ensure that the  
interests of each constituency are considered and protected during  
every policy development process.  While it is good to encourage  
interested parties to participate directly in working groups, it  
would be a mistake to assume that the only people effected will be  
those that get actively involved.  The GNSO constituencies serve the  
important function of guaranteeing that everyone is fairly  
represented throughout the policy development process.  The vote by  
the GNSO council is an important step in this process which ensures  
that an experienced constituency representative familiar with the big  
picture asserts the interests of their constituency.

Additionally, the vote by the GNSO council represents a careful  
balancing of interests which are being fine tuned by the current  
restructuring.  The GNSO constituencies represent everyone with an  
interest in ICANN policies.  The distribution of votes among these  
constituencies is the product of a careful balancing of interests  
intended at developing the best and fairest policies.  Entirely  
eliminating the GNSO Council's vote would remove an important check  
and the benefit of this balancing.

Finally, the GNSO Council serves as a regular forum for the GNSO  
constituencies to meet and discuss policy issues.  As the same  
representatives meet to discuss different issues, this provides a  
focal point for the creation of working relationships between the  
constituencies, and keeps the channels of communication and  
compromise open.



Institutional Culture



It should also be remembered that politicking is not necessarily the  
by-product of a defunct system of policy creation.  While a  
problematic structure can encourage politicking, it can also be a  
product if institutional culture and, to some degree, a natural by- 
product of any system of policy development where divergent interests  
are represented.  While it is good for the GNSO to strive for an  
atmosphere of cooperation and compromise, it would be a mistake to  
assume that drastic structural change can or should be employed to  
remove all politicking.  At some point cooperation must stem from  
good will rather than change to the policy development process.









IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin at ipjustice.org



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