GNSO representation & WHOIS

[Cheryl Preston]

Below, and attached as a Word document, is the Statement of Purpose for
The Alternative NCSG Charter.  I welcome any feedback or questions.

(This Statement of Purpose discusses the issues regarding the
organization of the new Non-commercial Stakeholder Group raised in my
comments on the NCUC Minutes of the Cairo Meeting.  So few of those
comments were taken into account in revising the NCUC Proposal for a
NCSG Petition/Charter, an Alternative Charter giving other options in
critical areas is necessary.)

1.	Structural Balance

The Alternative NCSG Charter creates five organizational structures.
Two of these, the Council Representatives (CRs) on the ICANN Generic
Names Supporting Organization (GNSO) and the NCSG Chair, are elected by
a majority vote of all NCSG Members without regard to Constituency
membership.  These seven majority-elected officers also sit on the
Policy Committee (PC).  The seven will also be a majority on that PC,
until participation in the NCSG multiplies exponentially.
The other two structure are the Constituency Chairs Council (CC
Council) and the Membership Committee (MC).  The CC Council under the
Alternative Charter is an oversight group, much like a corporate board
of directors.  It establishes top-level guidelines, approves budgets and
funding, and resolves disputes.
The Alternative Charter also moves decisions about membership
qualifications and status, as well as Constituency qualifications, away
from the discretion of the NCSG Chair.  The MC is representative of the
Constituencies, rather than a mere majority of Members.  Objective
detailed criteria against which to judge prospective members’
qualifications and status may eventually be developed, but at this point
these decisions involve significant discretion.  Dividing this kind of
discretion from the already powerful NCSG Chair is especially important
in determining vote allocations given to Large and Small organizations
based on size and participation levels.  A Member categories as a Large
Organization can outvote three other Members.  The MC, as the primary
member management entity, is responsible for tracking memberships,
votes, and election procedures.
The primary difference between the NCUC Proposal and the Alternative
Charter is balance of power.  The Alternative Charter follows in
principle the U.S. Constitution, which establishes a balance of power
among three branches, and sets up the House of Representatives for
merely majoritarian representation, and the Senate so that each state
has equal votes, notwithstanding smaller populations.  The NCUC Proposal
operates on a majoritarian basis, with no effective protections or
avenues for minority voices.
A Constituency has only two meaningful functions under the NCUC
Proposal.  The first is to join together to elect two functionaries to
the Executive Committee (EC), who can be outvoted by the Chair and the
Chair-appointed Secretary/Treasurer because the NCSG Chair is empowered
to act as a tie-breaker.
The second function of Constituencies under the NCUC Proposal is to
place a representative on the Policy Committee (PC).  All Constituency
representatives together can be outvoted by the seven PC members who are
the majority-elected Chair and the majority-elected NSCG CRs, until such
time as more than seven Constituencies (or eight assuming one
Constituency controls the majority of Members and thus the NCSG Chair)
are formed and are active.  At that time, and before then as well, the
only role of the PC that is different than what any individual may do
anyway is to “approve policy statements issued in the name of the
NCSG” (NCUC Proposal 3.3.2).  The weight, purpose and point of such
policy statements is unclear, since, under the NCUC Proposal, the
Councilors need not abide by them while voting and ICANN permits
statement of policy positions from everyone.
For instance, any non-commercial Internet user around the globe can (1)
develop its/her/his own policy positions and submit them, individually
or by informal policy group, to ICANN as Public Comment; and (2)
volunteer and recruit “NCSG members or supporters to serve on GNSO
Working Groups, task forces, and drafting teams; and upon the request of
one or more NCSG GNSO Council Representatives, to provide advice on how
the Councilors should vote or what position to take on specific GNSO
policy issues.”  In another section of the NCUC proposal,
Constituencies are given the right to “[i]ssue statements on GNSO
Policy Development Processes which are included in the official NCSG
response, but marked as constituency positions, and not necessarily the
position of NCSG as a whole.”  As any individual or group may be
involved in ICANN workings and submit public statements, the right to
have a view noted as a NCSG minority position could occur without formal
Constituencies.
Thus, if the internal structure of the new NCSG continues to be
entirely majoritarian, there is no reason to have Constituencies at all.
 A handful of Members may have a “grouplet” by discussing policy or
common interests they share at a bar without any formal organization.
	Assume, as an example, that the NCUC as a separate Constituency
within the new NCSG continues to have the approximately 23 votes that
were cast for NCUC elections this fall.  Also assume all of the other
Constituencies and Members together could come up with only 22 votes.
In a purely majoritarian system as established by the NCUC Proposal, the
“new and diverse voices” coming to the table following the GNSO
restructuring, even if just one person short of a majority, would be
unable to get any real leader representation.  The NCSG Chair and the
six GNSO Councilors would be elected by 23-22, and then the NCSG Chair
would appoint a Secretary/Treasure, speak officially for the NCSG,
maintain the discretion with respect to what new NCSG Members to admit
and what Constituencies to form, and control (without any transparency
requirements) all of the funding.
Milton argues that giving Constituencies any kind of weight or power in
the NCSG may provide improper incentives to create Constituencies.  But
the NCUC Proposal creates incentives to give votes to individuals and
groups who need not otherwise be involved with the work and will rubber
stamp positions, rather than pulling in new participants who will
actually read and consider the issues.  Moreover, in the Alternative
Charter several structural protections are established to ensure that
sham, shell and duplicate Constituencies are not formed.
One issue with continuing a majoritarian system is in application.  The
NCUC majority has not historically considered its role as one of
becoming familiar with the views of the obvious range of non-commercial
users and representing that trust in GNSO council votes, official NCUC
policies, or otherwise.  As discussed in a lengthy email exchange on the
NCUC-archived email list in September 2007 and at the Los Angeles ICANN
Meeting in October 2007, the existing NCUC leaders have taken the
position that they represent the particular views of their sponsor
organizations unless such positions are out voted by other participants
in NCUC.

2.	Cumulative Voting

The Alternative Charter follows the NCUC Proposal for staggering NCSG
CR elections.  That means that only three seats on the GNSO are subject
to election each year, following the 2009 transition elections.  The
Alternative Charter gives each Member three votes that can be split over
two candidates.  This is not a difficult concept.
In the future, more than a handful of Constituencies will certainly
exist.  At that time, as provided by the Alternative Charter, the PC and
the MC will no longer be able to seat a representative from each
Constituency.  Thus, some ability to cumulate an extra vote for one
candidate for the three GNSO Council seats available also helps diffuse
the impact of basing elections on what may be a super slim majority.
Another alternative is to consider only supermajority results, such as
sixty percent of votes cast.

3.	Grandfathering.

	The new NCSG, as a member of a new “house” of Internet users
in a new GNSO, is not simply an altered form of the existing NCUC body.
After the NCSG is formed and new Members are accepted, those Members are
entitled to vote based on the provisions of the new Charter.  It defies
the principle of the GNSO Improvements project to subject the NCSG to
the officers and CRs elected by the limited NCUC membership in October
2009.
Under the Alternative Charter, the existing NCUC Councilors are
entitled to run in the first NCSG elections, which under the Alternative
Charter are held on a per-seat majoritarian basis, and not cumulative
voting.  If consistency of representation is important to the NCSG
Members, they will likely be re-elected.

4.	Transparency.

As mentioned in the Comments to the Minutes of the NCUC Cairo Meeting,
the NCUC has been receiving funding from a member of the ICANN supplier
house, PIR.  PIR manages the .org Top Level Domain, and may be an
appropriate source of funding for non-commercial user representation.
However, decisions about obtaining funding and, more critically, about
dispensing funding have been within the discretion of the NCUC chair and
are not public or disclosed to the membership.  Moreover, under the
NCSG, some funding sources may want to support only one or more
Constituencies, not the entire NCSG membership.  Loyalty and support
tend to follow sources of funding.  Providing funding for some
participants, and not others, without clear, open criteria encourages,
if not guarantees, the representation of some voices over others.
Thus, the Alternative Charter provides that the CC Council appoints the
Secretary/Treasurer rather than the NCSG Chair.  The CC Council
establishes procedures for basic approval and review of finances.  The
Chair and Secretary/Treasurer submit a general budget to the CC Council
for approval and then report at the end of each year on the allocation
of expenditures under the budget.  The CC Council may also create
guidelines for accepting funding and for its use.


5.	Accountability of GNSO Council Representatives.

The NCUC Proposal makes abundantly clear that the CRs are not subject
to any NCSG activities or views. All decisions of the PC are, at best,
advisory.  As a general principle, a CR should not be required to get
authorization for every vote from those he/she represents.  The
Alternative Charter continues with this ultimate autonomy regulated only
by the next election.  It adds, however, language clarifying that the
CRs should, to the extent possible, use their best efforts to represent
the positions that emerge from the PC.  Critical questions of strategy
and NCSG voting blocks belong to the PC.

6.	Term Limits.

Genuine term limits must be included in the effort to include new
voices in ICANN processes.  Current practice is to allow a series of
terms, and then a brief hiatus before the same person returns to serve a
fresh set of terms.  New term limits must be worded to avoid superficial
circumvention and assure opportunity for more voices, more issues, and
more geographical areas to have opportunities of leadership.  The trend
of having career officers and representatives in the GNSO virtually
assures the newcomers will be unwelcome or labeled as too
“inexperienced” for office.
To meaningfully deter capture and dynasties, terms must be considered
in light of actual their effectiveness to incentivize new and broader
participation. Under the Alternative Charter, the appropriate length of
term for each NCSG structure is carefully considered and term limits are
balanced so that no individual or Constituency can unreasonably
dominate.  The Alternative Charter considers the numbers of terms
allowed within each ten year period.  This encourages meaningful
involvement of others and avoids the situation where a single person
holds a particular office for eight out of ten years.  If the existing
officer can be back in position after a single-year rotation to a
similar-minded substitute, there is little incentive for the Members to
train and develop new leaders.

7.	Representations for Geographic Regions and Other Significant and
Distinct Groups

	An overarching decision about the nature of “representation”
in the new NCSG must be made.  Is a voice/position/region or any other
category of interest only “represented” if a person fitting such
category has a seat on the GNSO Council?
If so, then provision must be made to ensure that representatives of
various Constituencies, and other factors, also have a GNSO Council
seat.  This could be accomplished in a number of ways, including
limiting the number of Constituencies in any House to six.  In the long
term, the NCSG will want to integrate other “representatives” of
major non-commercial user interests, such as economic opportunity,
amount and status of access, governmental restrictions, etc.  However,
if representation is a looser standard, then perhaps regional geography
can also be represented in other ways than by assignment of Council
seats.  Only a power-diffused NCSG can open opportunities for such broad
voices and, thus, it is imperative that the NCSG charter include other
structures that are not merely majority elected.	
A particular priority for ICANN at this time is geographical balance.
Thus, it makes sense to have specific provisions for regional
representation now.  The Alternative Charter includes the requirements
for regional diversity of the NCUC Proposal.
Determinations of regional status will have significant impact on the
elections for GNSO Councilors under the NCSG Charter.  The criteria for
determining how to identify an individual or Organization Member
representative as speaking for an ICANN region must, first, follow the
careful guidelines being established by a working group and subject to
approval of the ICANN board.  Neither mere citizenship nor residency are
very useful measures of whether an individual has sufficient contact
with and experience in the issues unique to any region.  More involved
Members with longer-held and deeper contact with the region should be
preferred over those who simply enjoy nonresident citizenship, or who
have moved to a different region recently.
	Moreover, decisions about qualification to hold office as a
regional representation should be made by a body other than the
majority-elected NSCG Chair.  Such decisions must be based on clearly
stated guidelines.  Under the Alternate Charter, the MC will establish
these guidelines.
Finally, as an ideal, the six GNSO Council seats might be allocated one
to each five of the ICANN geographical region and then one open seat,
which may be filled by a person from any region.  This may not be
practical in the short run when so few are involved.  Unfortunately, a
few of the past NCUC officers and GNSO Council members from all regions
have rarely if ever contributed ideas and written work, have not attend
meetings, or participate remotely by active email.  This problem could
be addressed by: (1) including an active participation requirement to
obtaining and retaining office; (2) tying regional representation to
having at least five active NCSG Members, or two viable candidates from
such region; (3) forming regional Constituencies and, as soon as such
Constituency has sufficient member to qualify, giving it either the
representation rights of all other Constituencies, or the right to have
one member on the GNSO Council.
Hopefully, if a membership fee is not required, the NCSG will get
broadly expanded participation even within the next year.
	
6.	Other Issues to Consider.

The following are not incorporated in the Alternative Charter at this
point, but should be considered by the group.

1.	Can a person who is an officer in the ALAC also concurrently
serve as an officer, appointee, or councilor of the NCSG?  The issue is
that it would be very difficult for any individual to be fully informed
of and engaged in the business of both groups but may join just to have
the vote.  Additionally, the groups typically meet at the same time at
ICANN meetings so one could not attend both meetings.
2.	Should GNSO Council seats be subject to other requirements for
diversity besides geographical regions?
3.	Should the ultimate goal be to have at least one GNSO Council
representative from each geographical region?

7.	Other Changes.
	
	The Alternative Charter contains other changes to build in
protections, transparency, and accountability, as well as technical and
formatting changes, and additions to cover issues not addressed in the
NCUC Proposal.  I would be happy to answer any questions about other
changes.  In addition, I am preparing a more detailed,
section-by-section explanation of the changes in the Alternative
Charter.



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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