Charters RESPONSE

[Mary Wong]

Hi everyone

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.

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.

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.)

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.

Thanks,
Mary



Mary W S Wong
Professor of Law
Franklin Pierce Law Center
Two White Street
Concord, NH 03301
USA
Email: mwong at piercelaw.edu
Phone: 1-603-513-5143
Webpage: http://www.piercelaw.edu/marywong/index.php
Selected writings available on the Social Science Research Network
(SSRN) at: http://ssrn.com/author=437584

>>> Cheryl Preston <PRESTONC at LAWGATE.BYU.EDU> 12/1/2008 1:33 PM >>>
This topic has raised interesting discussion on the very kind of
issues
that non-commercial Internet users should be talking about.  We have
heard from all of the active NCUC folks, except for Robin and Carlos
and
they will probably weigh in later today.  Rather than respond to each
of
the statements made by Bill, Milton, Konstantin, Norbert and Mary (as
much as I may like to), I am going to focus on 3 VERY BIG issues.

1.The Alternative Charter is not too late.  I have again talked
with ICANN staff and there is no “deadline” that was missed.  The
only time frame was Milton’s offer to the Board representatives in
Cairo to turn in a draft before the end of November, and both versions
met this.  The staff is just beginning to address their procedures in
reviewing charter proposals.  ICANN as an organization is not going to
cut off valuable discussion and consideration of alternatives without
having a clear, publicly posted deadline.

2.Mary is correct in describing the “cohesive, unified”
approach that has been the hallmark of NCUC representation.  Rather
than
being a political strength, however, the single issue solidarity has
been seen by many in ICANN as a weakness, as a barrier to consensus
building.  The NCUC representatives are solidified around free
expression and the kind of “net neutrality” that overrides competing
concerns for protections and standards on the Internet.  If you would
like a list of NCUC statements and positions over the last few years,
let me know.

They are effective in voting as a block.  The business users group,
for
example, is made up of 3-4 constituencies who do not always have
“similar interests,” but sometimes widely inconsistent and
competing interests that have to be negotiated.  (Do you want
testimonials?)  A broad-based, consensus building model is meant to
foster compromises and balancing at every level.

I agree wholeheartedly with Norbert when he talks about the evils of
governmental repression of political speech.  Building an Internet
that
can resist such pressure is a fundamental value of mine as well.
However, we are capable of the more sophisticated approach, as is true
in the law of every free nation.  We need not oppose every kind of
regulation or law enforcement on the Web to reach our goals on
political
repression.  Mary notes that “NCUC is often the only forum/voice for
individuals and non-business interests to discuss fundamental public
policy issues such as fair and open Internet access/neutrality.”  The
fact that it is the only forum/voice is exactly why it needs to
include
and represent those who have other valuable concerns to balance with
“open access.”

3.You all have expertise to make the critical decisions about
charters.  ICANN is aware that their efforts to build a bottom-up
support organization have been impaired by the way newcomers are
treated
(Note: be sure to respond to the constituency survey before the
mid-December deadline).  We must avoid the kind of dialogue that
conveys
this message: “There is this bigger, scary political dynamic and rules
and deadlines you can’t understand, and you, as a newcomer, don’t
have nearly enough history, background, insider connections, and
expertise.”

The issue here is simple, and all of you are more than qualified to
address it:  Should the representatives for all non-commercial
Internet
users in ICANN’s policy processes unify in solidarity for free
expression in a simple structure that squeezes out other user
interests
and alternative approaches?

I see no reason to continue any discussion other than on the merits of
the two proposals.



Cheryl B. Preston
Edwin M. Thomas
Professor of Law
J. Reuben Clark Law School
Brigham Young University
434 JRCB
Provo, UT 84602
(801) 422-2312
prestonc at lawgate.byu.edu

>>> Mary Wong <mwong at PIERCELAW.EDU> 11/30/2008 11:54 pm >>>
Hello everyone

I'd like to add my own note of welcome to all new members, whose voice
and expertise I personally am looking forward to benefiting from. As
Norbert has done, I'd like also to introduce myself briefly and to do
what I can to clarify what's been happening at/within ICANN and NCUC.

Along with Bill Drake (who, with others who have long been involved in
Internet governance issues, is currently flying the flag for
bottom-up,
multistakeholder involvement at the IGF in Hyderabad) I was recently
elected as a new NCUC representative to the GNSO Council (joining
Carlos
Affonso de Pereira from Brazil). As many of you know, I pledged to
respect and further open discussion of what at times are disparate
voices, disagreements and differing priorities/issues amongst us,
while
trying my best to craft a representative and - if possible - unified
viewpoint to other constituencies and groups within ICANN. Unlike the
other GNSO constituencies, NCUC is unique in that our members will not
always have similar views on many issues; this, unfortunately, can
also
be our "weakness" (and I will explain what I mean by this below).

Although I have less personal experience/involvement in ICANN than
many
of you (especially Milton, Norbert, Robin, Carlos and others) my
recent
observations and experiences (from Paris and Cairo, and now - wading
daily through over a dozen (often more) lengthy emails and numerous
conference calls/requests regarding GNSO work) are as follows, first
on
GNSO/ICANN and then on the ongoing NCUC/NCSG process.

1. GNSO/ICANN

- I can't overly emphasize how vital it is for all NCUC members to
realize that we are often a group "under siege" by better-funded, more
unified (for having more clearly aligned - usually commercial -
interests) constituencies/groups, including - and sometimes especially
-
within the GNSO.

- The main reason for this lies mostly with the fact that, as our name
implies, we are there to represent the non-commercial users (whether
institutions or individuals); as such, NCUC is often the only
forum/voice for individuals and non-business interests to discuss
fundamental public policy issues such as fair and open Internet
access/neutrality.

- NCUC's Councillors generally endeavor to speak and vote according to
what we perceive - largely through feedback mechanisms such as this
listserv - to be the prevailing view (and if possible, consensus)
amongst NCUC members. While we three each cast individual votes, we
try
as far as possible to discuss and coordinate our actions and views. We
also know there will be times where there is no NCUC view or
consensus;
at such times, we try our best to discern an objective and fair
viewpoint to take. Should any NCUC member believe that any of our
votes
or speeches misrepresent the constituency view or are otherwise
unsupported/insupportable, we hope you will not hesitate to raise the
matter publicly (e.g. on this listserv.)

- ICANN is a hugely complex, and dare I say intimidatingly
bureaucratized, organization: not only are there multiple issues
(ranging from technical standards to public policy) being worked on at
once, but deadlines are usually tight, and coordination often
difficult
to achieve. This often also means that the better-funded and
professionally-staffed constituencies can muster views and positions
much more quickly and consistently than NCUC (since most if not all of
us do ICANN work on top of our regular jobs.) As I said before, my
view
therefore is that it's crucial for NCUC (or whatever group ultimately
represents non-commercial users at ICANN) to present a coherent and,
if
possible, unified public viewpoint, as this makes our position
stronger
and our views more likely to make an impact.

2. On the NCUC/NCSG question

- Milton and (I believe) Konstantinos has already outlined the
background and timelines involved in this, so let me just add my
personal belief that this is one issue where NCUC members CANNOT
afford
to appear fragmented and disunited. With the backgrorestructuring (and
recalling the recent, fraught and difficult battle
over the number of votes per existing constituency in the new
bicameral
house structure), the political reality is that it is entirely
possible
that a diffused and weakened Non-Commercial user group will mean less
influence and respect in the restructured GNSO.

- Let me add also that it is currently UNCLEAR what the relationship
between the proposed new Stakeholder Groups and constituencies will
be.
None of the official ICANN studies or documents discuss (much less
resolve) this question, making it all the more important that there be
a
unified, strong Non-Commercial Stakeholder Group that will continue to
represent - and fight - for non-commercial voices and interests.

- I support Milton's proposal for a number of reasons, including the
very strong impression I got in Cairo that it would greatly benefit
NCUC/NCSG to submit a formal proposal to the Board as early as it
could
possibly do so. The draft proposal was what was discussed and (as a
result) modified, and it was the modified document that was submitted
within the designated time period.

- Finally, and returning briefly to the "platform" upon which I asked
for all of your support in the Council, it is absolutely critical that
the Non-Commercial user group does NOT allow itself to be divided into
multiple and different groups that do not have a formal vote in the
new
GNSO structure. Milton's proposal has the benefit of allowing not just
the formation of new constituencies WITHIN a strong Non-Commercial
Stakeholder Group (NCSG), it also gives those new constituencies a
voice
and vote within the NCSG AND avoids the fragmentation and consequent
weakening of our "external positioning" that I have already mentioned.

With apologies for the length of this post,

Mary



>>> Norbert Klein <nhklein at GMX.NET> 11/30/08 3:16 PM >>>
Dear new individual members of the NCUC (the new NCSG does not yet
exist) who
wrote recently,

"Ralph D. Clifford" <rclifford at snesl.edu>
"Jon Garon" <jgaron01 at gw.hamline.edu>
"Kim, Nancy" <nsk at cwsl.edu>

May I first introduce myself: Norbert Klein, since 1990 in Cambodia,
working
since 1994 in non-commercial organizations – in 1994 I created the
first

Internet system in the country, in 1996 the country address .kh, and
in
1999
I joined the “non-commercials” in ICANN – at that time it had a
different
name. During the last three years I was sent by the NCUC as a
councillor
into
the GNSO. Since November 2008, I am a member of the ICANN Nomination
Committee.

Though my working day – though a Sunday – went beyond midnight, I
want
to
write to you and our community, because I am concerned about what you
write –
my mail is still basically a letter of welcome. I may not respond to
all
of
your concern and questions in a way you may expect – but I do so on
the
basis
of many hours during many years of a struggle to get our voice  - the
Non
Commercial Users Constituency – heard, as it developed over the
years,
and in
the context of ICANN. We found ourselves often in a difficult position
-

others with business, intellectual property, and technical mandates
had
often
better institutional support structures.

While I understand your hope, saying  to “add that simplicity is also

valuable,... ... without adding significant complexity to the
proposal”
- I
can only plead to spend quite some more time working through the
complexity
of the ICANN website:

http://www.icann.org

Surely you have done it – but I admit, after so many years, that I
am
still
struggling to be oriented – not only about the structures – but
about
the
dynamics and time lines, which exist and to which we have to adapt
ourselves,
if we want to have our voice heard, according to the right procedure,
at
the
right place, and at the right time.

One sentence makes me concerned: “The bottom line is that ICANN is
not
perceived to be an open organization, nor one that is willing to
proPerceived by whom? A complex network of cooperating organizations
and

institutions with their different interests cannot be called to be
“not
open”
for having worked out, changed, further developed, and revised again,
certain
rules and procedures. The discussions and outside consultancies and
preparations towards the present GNSO restructuring process have been
going
on for several years – and as it is a process where quite different
institutional actors are involved, not all of our concerns have been
received
with the same “openness” which we would have hoped for. But I
cannot
easily
accept to say that ICANN is “not willing to provide a voice to new
users
of
the Internet and Web.”

In 1999, and for some years to follow, there was an effort going on to
create
an “individual membership constituency” - which did not lead
anywhere,
because it was basically an effort by ONE person trying to decide what
has to
happen, and there was no support for this kind of approach in ICANN.
We,
in
the NCUC, received since that time the clear mandate to be a
membership

organization of organizations, though we were concerned that this
excluded
the possibility for quite a number of individual persons who would
have
liked
to bring their contribution into our fellowship.

Now, when we finally have taken the initiative to remove the
institutional
constraints for individuals – and have received the agreement within
the

ICANN-GNSO restructuring to accept also individual members into the
NCUC
(on
the way into the NCSG) - I see no reason to say that ICANN is “not
willing to
provide a voice to new users of the Internet and Web.”

You are among the first coming into this door we have worked to open.

I cannot comment much on the alternatives proposed by Prof. Cheryl
Preston –
presented at a point in time publicly known to have been too late to
be

integrated and sent to the ICANN board – after a draft had been
discussed in
different stages in the constituency, and we finally had a text which
had
received wide consensus and was sent on.

Let me close with some content concern, and not only with structures.
But it
is again a very complex, not a simple situation we face.

Freedom, justice, and openness have been extremely important elements
for my
work in Cambodia – in a context where the technological, economic,
and
political situation is VERY different from the one in most of the
north-Atlantic countries. It was for me personally always important to
have –
in the NCUC fellowship – a group of people from where I could get
support and
inspiration for our situation here – even when we were in ICANN
encountering
challenges which were not only encouraging for our efforts in Cambodia
(I am
editing, since more than 10 years, a review of the Cambodian language
press
in English). The media – not only the printed press – is in an
unending
struggle to find ways to communicate freely without intervention. The
discussions about freedom of expression – in ICANN, including in the
domain
name system - provide always a context for me here, as they have for
the

society in the USA. I just read, before writing to you, the following
article, a kind of homework for the  GNSO Councillors from the NCUC
–
and
this work is being done, of course, on the basis of discussion in the
constituency. Therefore I hope for some extensive comments back:

http://www.nytimes.com/2008/11/30/magazine/30google-t.html?ref=todayspaper&pagewanted=all



Whatever the time is at your end when you get this – here it is now
02:50. But
I wrote now because of a deep concern.


Norbert

--
Norbert Klein
Phnom Penh/Cambodia
PGP key-id 0x0016D0A9

If you want to know what is going on in Cambodia, please visit us
regularly -
you can find something new every day:

http://cambodiamirror.wordpress.com (English)
http://kanhchoksangkum.wordpress.com (Khmer)
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