Comments on Part II of Cairo Meeting Minutes

[Cheryl Preston]

below and attached

Minutes from the Cairo Meeting, Continued
Part II
(Mary’s minutes with my comments and additions in BOLD.)

The Chair summarized the positive responses the NCUC has received to
its institution of provisional individual membership, particularly
amongst the academic community (who may now proportionately be
over-represented within the NCUC.) He then explained the proposed NCSG
structure (see document entitled “Talking Points for NCSG Charter”
previously circulated by the Chair), noting that it is still under
discussion within the NCUC.

In response to the Chair’s question about what happens to
constituencies (and their Councillors) approved under the existing
bylaws between now and when the new structure is put into place in 2009,
the Board’s initial thought about constituencies under the new
structure was that these would simply be formed and approved as and
when. The Board does not appear to think the question of Council/house
representation will actually pose a real problem once things are
clarified during the upcoming process; they would not like to have an
interest group be represented in more than one group/place.

On the question of whether not giving constituencies an actual voice
through voting power, Roberto responded that the issue of voting power
should be decoupled from that of involvement/representation (i.e. having
a voice in the ICANN process.) Historically there has been a problem
with having a constituency of individuals. The question of voting should
be an internal matter for the SG. His personal opinion is that this is
what the Board would prefer, and that the first priority is that each SG
should have the possibility of having new and diverse views represented
in a fair and dynamic way, regardless of the form of representation. The
second priority would then be to ensure that nobody has double
representation. These are more valuable than the specific question as to
voting priorities.

I certainly concur that the ultimate objective is to give “new and
diverse views” ways to be “represented in a fair and dynamic way.”
 With an eye to this goal, a new NCSG charter needs to accommodate
voices that are not yet involved, those who will come in the near future
when the number is likely to be few, as well as those we hope to recruit
in the extended future, when many are involved.

On the staff’s issuance of documents inviting the formation of new
constituencies, Roberto pointed out that this is not a problem unique to
the NCUC, as even the commercial constituencies have divergent
viewpoints internally.

He emphasized that the balance of voting should be resolved internally
within each SG, with a view toward going beyond the old, rigid process
currently hardwired into the bylaws. He agreed that each SG Councillor
should try to represent not his/her individual constituency/interest,
but rather the view of the SG as a whole, even if that means basically
the majoritarian view.

I have no recollection of his saying anything about “majoritarian.”
Such a statement would seem inconsistent with his original statement
discussed above (and repeated in the next paragraph) about the ultimate
goal being giving representation to new and “diverse voices.”  Were
it not for the history of the NCUC of lacking structure to account for
minority voices and lacking a sense of representation of the range of
user interests, the importance of acknowledging minority voices in the
NCSG would be less severe.

In addition, the Board is not looking for uniform mechanisms across all
SGs, as long as the main point about ensuring new, fair and diverse
representation is assured. Roberto reminded the meeting that there would
also be another GNSO review soon.

On the question of whether an individual can/should be both a member of
ALAC and NCUC/NCSG or whether there should be an exclusive choice, this
was characterized as a “misformulation” by Harald. Roberto
emphasized as long as there is no risk of double- or
over-representation, there should not be only one way of participating
in ICANN. There may be a slight overlap but that is fine because there
could be the more important advantage of greater outreach and
collaboration.

The Chair noted that this is exactly NCUC’s position, as explained to
ALAC at yesterday’s joint meeting. NCUC was encouraged to submit its
proposal early, with the visiting Board members noting that the Board is
likely to set up a working group to review the process, and a member of
the ICANN staff will be assigned to assist the group. The Chair thought
that a draft preliminary proposal might be ready for the group to review
by the end of the month (November 2008.) As for the process itself, the
current practice is reflected in the bylaws, though it might be a good
thing to have a new process (but it would require a change in the
bylaws.) Nonetheless, the current practice should be viewed as being
fairly flexible, with room for evolution and fine-tuning.

The Chair then cautioned that the Board might receive a number of
requests to form constituencies that could comprise a sub-division of
existing members, such that approvals could result in simply
restructuring of existing participants rather than the entry of new
persons.

The new NCSG membership, when formed, needs to discuss the question of
what constitutes “new” voices.  Certainly, an important provision in
the new charter must be genuine term limits.  The current NCUC charter
provides for a three-term limit for the chair and executive committee.
In practice, however, the same person then returns after a one-year
hiatus to serve more terms.  Term limits need to be worded in ways to
avoid superficial circumvention, and to assure opportunity for more
voices, more issues, and more geographical areas to have opportunities
of leadership.

Another question embodied in the comment in green is whether it is
appropriate for existing ALAC members to participate in the new NCSG.  A
person or organization that brings a new insight, a new viewpoint, and a
new source of energy and work effort into the NCSG should be welcomed,
particularly at this point as NCUC participation has been so narrow and
limited.

Another question is the extent to which current NCUC members will be
representing a “new” voice or viewpoint in constituencies under the
new NCSG structure.  Certainly, those who have joined NCUC within the
last month for the purpose of getting a voice on the restructure and
charter proposals, but have had no prior policy or vote input, cannot be
considered as “restructuring of existing participants.”

On the question of travel funding, Roberto stated that he did not know
where the working group stood on whether these should be allocated to
constituencies, SGs or otherwise in the new structure. He felt that any
proposal to the Board must have absolute transparency on the question,
so as to ensure fairness in their allocation.

As I discuss below with respect to the secretary/treasurer position,
all matters of finances, funding from whatever sources, and allocation
of resources must become transparent.

4. Discussion with PIR (Adam Palmer, Policy Counsel of PIR, based in
DC)

Adam focuses on policy issues, collaboration and outreach with/to
groups that PIR feels it has similar interests, like NCUC. He conveyed
Alexa Raad’s apologies for not being present, as her grandfather is
seriously ill, and reiterated PIR’s priority in continuing its
relationship with NCUC.

He is not sure how PIR’s financial support for NCUC (which it hopes
to increase) will be impacted by the new structure of having
constituencies as well as SGs.

He described briefly a number of PIR’s collaborative efforts that he
thought would be of interest to NCUC, including its Registry Internet
Safety Group (RISG), on which he will be speaking to the ccNSO group
tomorrow. RISG will attempt to deal with Internet safety issues,
including malware and phishing. They are also working with DNSSEC to try
to have it implemented by sometime in 2009, again as part of PIR’s
effort to be seen as an exemplary provider entity. They do not, however,
wish to be perceived as a censor of the Internet (or as a supporter
thereof.)

What is omitted here is a lengthy discussion about PIR’s funding and
joint projects with the NCUC.  Adam was unaware of anyone (before me)
raising the potential of a conflict of interest with having the
non-commercial users group financed by a supplier (PIR is the registry
for .org).  Adam was also unsure whether future PIR funding would go to
the entire NCSG, or just to the NCUC as a separate constituency.  PIR
has in the past committed $5,000 to NCUC each year.  The uses to which
this funding is allocated have not been discussed at meetings or on the
NCUC member list.  Certainly, the records on this funding, as well as
the use of membership fees ($50-$100) for past years, should be
disclosed.  The new NCSG must decide on appropriate sources and uses for
funding and whether individual constituencies can accept funding from
suppliers, business users, or other stakeholder groups whose interests
may not completely align with those of the range of noncommercial
users.

As noted, Adam stressed the importance of the relationship between PIR
and the NCUC and expressed interested in working on joint projects in
the future.  When asked about what joint projects had been undertaken by
PIR and NCUC, Adam raised the recent letter regarding IDNs and free
expression.  The letter, brought up on screen, states: “ICANN is urged
to verify that the operator of any new IDN TLD be fully committed and
legally bound to maintaining an Internet that is open, interoperable and
globally accessible. . . . Criteria should be developed to ensure that
any new registry operator will not reduce Internet freedom or impose
burdensome restrictions, whether political or economic, on Internet
users.”

Discussion followed about how such language might impact efforts by
IDNs to protect children from harmful content, stop child porn, etc.
Asking ICANN to take affirmative steps by contract to prohibit content
regulation goes beyond neutrality and involves ICANN in content.  While
this particular letter is, as characterized by Robin, “water under the
bridge,” care needs to be taken in the future that officers not sign
with the title of the group without notice to and feedback from
members.

[The meeting adjourned for lunch and a “Users’ House” meeting
with the other user constituencies and ALAC.]

5. Discussion of Users’ House Meeting

The Chair sought feedback regarding useful or constructive topics that
arose during or as a result of the meeting with the Business and IP
Owners Constituencies, and ALAC. The first topic discussed was the
concern that some of these groups seemed to have regarding the apparent
lack of large organizations represented within NCUC. It was agreed that,
given both ICANN’s history and the occasionally technical issues that
arise in the domain name space, it will continue to be very difficult to
attract large universities and other similar entities to join. More
likely candidates will include libraries, think-tanks, research centers
and smaller schools. Many non-profit entities are also represented by
umbrella advocacy groups who could join NCUC on their behalf.

The meeting then discussed the issue that was raised during the
Users’ House Meeting regarding the NCUC proposal to allow 5 members
to form constituencies. It was felt that any number would be an
arbitrary number at best, and that, given the Board’s clear indication
that a larger, new and more diverse user base be recruited, NCUC’s
proposal for the new structure should continue to support a relatively
low threshold for constituency formation.

Milton stated that, given the history of low participation, five was
“a lot.”  The other groups continued to express concern about the
possibility of five individuals forming a constituency.  If a
constituency has no independent role or power in the new NCSG, then the
criteria for formation are irrelevant.  But, if a constituency matters,
we need to further discuss ways to evaluate representation to insure
that a constituency is meaningful.  Other groups have expressed a strong
resistance to a constituency of five individuals.  One way to control
the proliferation of meaningless constituencies is to have the ICANN
Board, or other supervisory committee, continue to make determinations
about when an interest or group is sufficiently significant to be given
status as a constituency.

Following the Users’ House Meeting, the NCUC meeting reconvened in
another room to continue discussions regarding Milton’s proposed NCSG
charter.  There were seven present.

Another issue related to voting. The group agreed that, particularly
given the meeting with the Board earlier in the day, the more important
question for NCUC is to determine – and include in its draft proposal
– what its “internal” voting structure is to be. Essentially, the
choice is between cumulative and non-cumulative voting.

As I discussed in an earlier email chain on the list, Milton’s
proposal is purely majoritarian, with no protections or avenues for
minority voices.  I brought up the concept, for instance, of how the US
Constitution sets up the House of Representatives for merely
majoritarian representation, but the Senate so that each state has equal
votes, notwithstanding smaller populations.  And, the Supreme Court is
another layer to insure that minority rights not be trampled on by
majoritarian legislative action.  If the internal structure of the new
NCSG is entirely majoritarian by per capita votes, there is no reason to
have constituencies at all.  If a handful of members want to have a
“grouplet,” they can informally discuss whatever policy at a
bar.

As an example, if the NCUC as a separate constituency within the new
NCSG continues to have the approximately 23 votes that were cast this
fall and all the other constituencies together could come up with only
22 votes, the “new and diverse voices” would be unable to get any
representation in terms of a GNSO councilor without some form of
cumulative voting.  If each member of the larger NCSG must vote for each
council seat, then the elections will turn on a mere majority – say 23
to 22 – for each of the six seats.  If NCUC is able to control all six
of the seats (or a majority) and the chair position based on a 23-22
split, then there is little point in having a “policy committee” as
outlined in Milton’s proposal.  The policy committee is comprised of a
representative from each constituency, and the six councilors and the
chair.  If these seven are the result of an NCUC majority, they would
outvote any other voices until such time as there are at least eight new
constituencies.  While there may be in the far future a proliferation in
constituencies, this is not foreseeable in the near future based on
historical involvement trends and the problems of getting participation
(as noted by Milton at the Users’ House Meeting).

In Milton’s proposal there is no other role for the constituencies,
except for voting for two members of the executive committee – which
committee, under the proposal, has only administrative duties.

Moreover, there is incentive to give votes to individuals and groups
who will rubber stamp positions rather on pulling in new participants
who will actually read and consider the issues.  Milton argues that
giving constituencies any kind of weight may provide incentives to
create constituencies.  But maintaining a majority allows the base
already built by NCUC to continue to exclude other voices and gives an
incentive to just add non-participatory votes.

NCUC has not historically considered its role as one of researching the
views of the range of users and representing that trust in GNSO council
votes.  As discussed in a lengthy email exchange in September 2007 and
at the Los Angeles Meeting in October 2007, the existing NCUC leadership
has held that they may represent the particular positions of their
sponsor organizations unless such positions are out voted by other
participants in NCUC.  I would be happy to forward these emails or
identify them on the NCUC archive for anyone interested.

Alternatives to pure cumulative voting were discussed, such as each
eligible voter be able to cumulate votes for two or three council seats,
but were at this meeting dismissed as too “complicated.”

An extensive discussion ensued. The meeting agreed that the general
membership should be consulted on the following issues: (1) whether
there should be cumulative voting; (2) whether there should be an
Executive Committee and a Policy Committee; and (3) a proposed
composition of the Committees, as follows:

- The Policy Committee comprising the Councillors and one
representative per Constituency. The objectives of the Policy Committee
will include initiating discussions/policy work (including at ICANN
level), deciding on letters, statements and other external policy
communications of the SG, and advising the Councillors on voting.

It was discussed at some length that, under new ICANN rules, an
individual who is not a member of any constituency or Stakeholder Group
can now join any ICANN working group and submit comments.  In addition,
ICANN provides for public comments, which can be submitted by anyone.
Thus, allocating to constituencies the ability to be involved in policy
work and comments on policies is meaningless.

As long as the Policy Committee is dominated by the six councilors (and
the majority elected chair who is supposedly only involved in
“administrative” work), then it makes little sense to say that
the Policy Committee is going to advise the councilors.  This is
especially true given the position taken by the majority, stated in the
Part I of these minutes, that the councilors should not be obliged to
vote in alignment with Stakeholder Group views anyway.

The Policy Committee, once fairly constituted, and not the chair,
should have control over any statement made by or on behalf of the
NCSG.

- The Executive Committee comprising a Chair, Secretary-Treasurer
(appointed by the Chair or voted) and 2 members voted by the
constituencies.

Clearly, the Secretary-Treasurer must be voted on by the constituencies
and not appointed by the chair.  To date, all funding available to NCUC
has been handled exclusively by the chair (and/or executive committee?)
without being transparent to members.  It is unreasonable not to suspect
that loyalties follow funding.  The only way to assure fairness and
transparency is to have all money matters public and decisions made
based on principles decided by the constituencies.  The
Secretary-Treasurer must be accountable to the constituencies, not just
the person who is the majority-elected chair.

In addition to cumulative voting, one way to give some balancing
control to constituencies would be to allocate to them all functions
other than the election of GNSO councilors and the chair (and purely
administrative duties).  A committee of or vote by the constituencies
should control, for instance, all determinations regarding:
1.	The criteria for membership in the Stakeholder Group.
2.	Whether an organization member qualifies for 1, 2, 3 or 4 votes
based on size and significance.
3.	The adequacy of applications of new members according to the
agreed upon criteria (including applications to the new NCSG from
organizations listed as current members of the NCUC, such as the Boulder
County, Colorado publicity organization).
4.	Voting procedures and qualifications to vote.
5.	Sufficient levels and standards of participation.
6.	Internal procedures and control of elections.
7.	Appointments of representatives on the Nominating Committee and
other ICANN structures.
8.	Appointments of liaisons.
9.	Structure and management of the Policy Committee.

There was no consensus as to whether the Councillors will have a vote
on the Policy Committee on matters relating to provision of advice to
them on how to vote in the house (there was general consensus that they
should be allowed to vote on statements, initiation of policy and such.)
One possibility might be to craft a transitional provision relating to
voting that would ensure adequate voice for the constituencies until
such time as the number of constituencies is greater than the number of
Councillors.

I have solicited new members from all quarters and found stiff
resistance to becoming involved in ICANN for a wide variety of reasons,
including the steep learning curve, the difficultly of newcomers
engaging with long-time, entrenched participants, questions about the
legitimacy of ICANN, etc.  Particular kinds of organizations (that well
reflect large segments of the non-commercial users population) are
particularly reluctant.  Pro-family and children organizations are
unlikely to have staff who are technology savvy or have any interest in
the Domain Name System.  Organization of users who are not making money
as business on or suppliers of the Internet are typically very short on
funding and expert services.

For instance, many groups are willing to assist civil society groups
focusing on “freedom of expression” or non-regulation.  Even though
ICANN policies are not  aimed at content, a number of issues arise that
will be relevant to the efforts of any nation or global group to address
content in the future (see, for instance, the NCUC and PIR letter on
IDNs).  Suppliers are anxious to stop anything that might create
intermediary liability or duties to monitor.  Pornographers and gambling
interests recognize their economic interest in preventing any
limitations on Internet content.  Thus, it makes sense for them to make
donations to and support organizations whic push for non-regulation or
any other position that aligns with the supplier and business
communities.  There is little money coming from children and isolated
cultures to fund groups to lobby for their interests at ICANN.

The group then discussed the issue of regional representation,
basically as to whether the new proposal should have a “no less than
4” or “no more than 2” structure (there are 5 recognized
geographic regions.) It was agreed that the membership will be consulted
on this issue, and that for now the draft could reflect a “no more
than 2 from each region” formulation.

Without question, geographical and economic diversity must be
represented.  But we need to be consistent with what “represented”
means.  If we argue that geographical diversity can only be represented
by allocating actual council seats by region, then it is disingenuous to
argue that minority voices on various issues are adequately
“represented” by not giving them council seats but only a
majoritarian election.  The new Stakeholder Group must carefully
consider what equals “representation” and how best to meet that goal
with the resources available.  At some point in the future, hopefully,
there will be a plethora of NCSG members who fairly represent the
legitimate range of non-commercial users in every region, economic
status, culture, religion, age-group, skill level and so-forth.  But we
are nowhere near that now.  If elected councilors hold in the GNSO
council a “trust” to represent the range of non-commercial users,
even those without a vote or a presence in the NCSG, then specific group
representation by a person would be less important.

On the need to hold new elections upon the new bicameral house taking
effect, some of the other Constituencies had reacted negatively to
NCUC’s proposal that its currently-elected 3 Councillors be carried
over into the new house, with new voting only for the 3 new Councillor
seats. After a brief discussion, the meeting concluded that the current
proposal should stand.

The non-commercial stakeholder reorganization is not simply a matter of
altering the form of the existing body.  The NCSG is not just a
reincarnation of NCUC.   Thus, it seems appropriate that the new NCSG
members be permitted to adopt a charter and elect officers, including
representatives on the GNSO council, without grandfathering in
representatives elected by NCUC.  It may be that the same persons will
be elected, especially if the body determines that continuity is an
important factor.  But the new body should decide.

There being no other business, the meeting adjourned at 6 p.m.




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
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