[EURO-Discuss] [Fwd: Clarifications Regarding StaffSummary-Analysis of Stakeholder Group Charter Public Forum]
Mary Wong
MWong at PIERCELAW.EDU
Tue Aug 11 12:52:28 CEST 2009
[NOTE: Roberto's email doesn't show up when I hit Reply All, so I've
added his public ICANN email address to the To: line. If someone (Bill?)
knows how to get this to him more directly, please go ahead.]
Dear Roberto:
Just a couple of follow-ups to Bill's email, including adding my thanks
to you for taking the time to write and respond.
First, while I understand your and the SIC's frustration at the lack of
public comments that were actually directed toward the question of how
to implement the SIC/Staff-drafted NCSG Charter, I agree with Bill that
NCUC's opposition to it (given the Sydney discussions and the level of
civil society engagement with the process up to then) shouldn't be too
surprising. I wanted to add, however, that the NCUC was, and still is,
willing to work with the SIC and the Board to find a way to reach common
ground.
Please note that we understand why the Board wishes to move the whole
restructuring process along, which involves implementing the SG
framework and seating the new Council by Seoul. We did not intend our
opposition - on grounds of principle - to the Staff/SIC charter to be
impediments to the timing of these events. We had hoped that the
discussions we had with the SIC in and since Sydney would continue, and
would yield a workable NCSG charter that would be acceptable both to the
Board and the community before the Seoul meeting.
To facilitate this, the NCUC public comments to the SIC/Staff Charter
had requested that the Board direct the SIC/Staff to provide
explanations for the new Charter (including its very substantive
differences with the NCUC-submitted one). In addition, I believe we had
discussed the issue of the 3 Board-appointed transitional Councilors,
and had agreed to work with the SIC to encourage new candidates to come
forward to be considered.
As such, the Board & SIC should understand how shocked and upset many
of us (including the non-NCUC members who had publicly supported our
positions and charter) were when the Board voted to adopt the SIC/Staff
Charter without any further discussions, and directed the Staff to issue
a Call for Applications for the 3 Council seats!
Speaking personally, I am disappointed at the inexplicable changes and
abrupt actions that have occurred, but I am hopeful that these issues
can still be worked out amicably and with some finality before Seoul.
Would the Board and/or the SIC consent to meet and engage with us, on an
expedited basis, to resolve these fundamental issues?
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
>>> William Drake <william.drake at GRADUATEINSTITUTE.CH> 8/11/2009 5:14
AM >>>
Hi Roberto
Forgot you're on the Euralo list, good to hear from you. We haven't
had an opportunity for public discussions with board members on their
NCSG charter decision, so I appreciate you taking the time.
On Aug 10, 2009, at 6:14 PM, Roberto Gaetano wrote:
> Bill,
> I don't want to get into this debate about fairness of staff
> reporting, as
> this is a formal issue that you might want to solve between ALAC and
> Staff
> without interference.
I can assure you I'd rather not be into the debate either. But I'm
really puzzled how the ALAC leadership could have submitted such a
misleading public comment without seeking community consensus, how the
staff could have reported it in a way that was equally misleading, why
neither seem inclined to correct the public record, and so on. I'd
like to believe this will be righted without interference, but after
some days have seen nothing that to suggest this will happen, so
around we go, apparently digging into trenches. It's rather
discouraging.
>
> What I would like to comment on, is the substance of the comments,
and
> specifically the one from Cheryl.
> As Chair of the SIC, I have attentively read all comments within a
> couple of
> days maximum from their posting. The SIC needed to take decisions on
> modifications of the language of the charters immediately after
> closure of
> the comment period, so I needed to have direct, first hand
> information. I
> therefore read Cheryl's comment far before Staff's summary, and it
> appeared
> clear to me that she was talking from a personal point of view. I
can
> guarantee that the SIC never thought that ALAC had taken a position
> for one
> or the other model.
Good to know. Can you confirm that this applies to the rest of the
board as well? I can't help wondering, since board processes are
opaque, and some interactions with other members have raised questions
as to how closely they were actually following all this. Personally,
I couldn't be in Sydney, but in Mexico City I had discussions with
some who had developed a strong take on the NCUC proposed charter but
admitted to not having actually read it carefully. There have been
other indications along the same lines, and obviously, if information
is getting heavily filtered and decisions are made on the basis of
perceptions rather than facts, that's an issue. In this connection, I
note that the 30 July board report says you discussed "the opposition
raised by some of the members of the current Non Commercial Users
Constituency." Of course, it was not some members, it was all members
who submitted comments, plus a good many external civil society orgs
and individuals, including some that might be enticed into the NCSG if
they could be persuaded that it's not a pointless time suck. If the
board can approve a report on its conversations that gets wrong
something this basic, a priori it seems reasonable to question whether
all members took the time to become duly aware that the three ALAC
members who submitted comments supporting the SIC text spoke for
themselves and not a community-wide view.
>
> Incidentally, since the SIC met in Sydney with NCUC and came to an
> agreement
> on the future steps, what we were looking forward in the comment
> period was
> not counting fans of one or the other solution, but comments on the
> implementation of the different charters. Unfortunately, this was
> addressed
> only by a small number of comments, but there were significant
> elements,
> like the observation by Robin Gross that paragraph 4.2 in the CSG
> had to be
> striken out, which we did.
This puzzles me, in two senses First, I had thought that a key
function of a public comment period is to weigh the levels of support
within stakeholder communities (both those active within ICANN and
external allies and the relevant general public) on proposed
decisions. This is certainly a consideration with some other entities
that solicit public comments on pending decisions, e.g. US government
agencies like NTIA or FCC, and I'd thought that it was integral to
ICANN's claims to be a bottom-up, community driven operation. I'm not
a lawyer and expert on ICANN's contractual relationships with NTIA,
the workings of California law on public benefit corporations, or the
deep deconstruction of the operative bylaws provisions, but I had
assumed that the cumulative weight of public comments is pertinent to
the notion of 'accountability to the community.' So when you refer to
the exercise as just 'counting fans,' and when staff attributes the
level of community input to a 'letter writing campaign' and appears to
discount it on that basis (I understand there's also been oral
commentary to that effect), it leaves me wondering whether it really
is a relevant factor in board decisions. This goes not just to the
specific decision in question, but to participation in ICANN processes
more generally going forward. So if you could clarify whether and how
the volume and thrust of public comments is taken into account, this
would aid us in thinking about the charter decision and future
participation alike.
Second, and at the risk of being a bit obvious, if you did not receive
sufficient commentary on the implementation of the SIC's charter, this
may be because all of NCUC (save CP80) and the other civil society
stakeholders who've spoken (save the three people from ALAC) have
supported the NCUC version and hence opposed the sort of narrowly
constituency-centric model embodied in the SIC charter. You knew that
going in, it was made abundantly clear in the April public comment
period and elsewhere. So I don't understand why you would have been
expecting guidance on the implementation of a charter we do not want
to see implemented. BTW we did provide input on implementation of the
CSG charter, not that it mattered either.
> Personally, I think that some people lost a
> chance to express opinions, and influence decisions, on important
> aspects
> like modality of choice of councillors, interest groups or
> constituencies
> that should be represented, modification of the internal structure,
> and so
> on, to focus on a binary "Yes" or "No" for a matter that had been
> already
> jointly decided by NCUC and SIC in Sydney.
>
Again, in general, we have provided input on such items with respect
to the charter text we support, not the one we do not want forced upon
us. On the specific matter of the three board appointments to the
council (is this what you mean by jointly decided in Sydney?), after
much discussion Robin sent you three names on 15 July and asked for
guidance how to proceed with these. Are you saying we lose the chance
to influence this, and if so how? Sorry, I'm missing some info here.
Thanks much for your feedback,
Bill
>
>
>
>> -----Original Message-----
>> From: euro-discuss-bounces at atlarge-lists.icann.org
>> [mailto:euro-discuss-bounces at atlarge-lists.icann.org] On
>> Behalf Of William Drake
>> Sent: Monday, 10 August 2009 13:13
>> To: Nick Ashton-Hart
>> Cc: Discussion for At-Large Europe; Robert Hoggarth; NCUC Members
>> List
>> Subject: Re: [EURO-Discuss] [Fwd: Clarifications Regarding
>> StaffSummary-Analysis of Stakeholder Group Charter Public Forum]
>>
>> Hi Nick,
>>
>> Thanks for the reply. I don't want to go on beating a dead
>> horse, but just for the record:
>>
>> On Aug 10, 2009, at 12:06 PM, Nick Ashton-Hart wrote:
>>
>>> Dear Bill:
>>>
>>> As you addressed the question in the first paragraph to me, I'm
>>> replying, but as I didn't compose the staff summary Rob is
>> really the
>>> better person to say what was intended by the paragraph in
>> question,
>>> so I've copied him in.
>>>
>>> That said, I don't believe that Rob intended (or that what he
wrote
>>> actually suggests) characterises everything she said as being from
>>> ALAC - in fact it is made quite clear that her comment is a
>>> compilation of the previously-expressed views of the ALAC,
>> and not an
>>> Advisory.
>>
>> Here's the language:
>>
>> Finally, although the majority of comments were strongly in
>> support of returning to the original NCUC Charter version,
>> ALAC favored the SIC‟s NCSG Charter that, “best meets the
>> aims of the new GNSO Model and the Boards criteria, which we
>> support, and believe is (with the additional version changes
>> as at July 19th ) being essentially met.”
>> Continuing in this vein, ALAC noted, “Maturity and
>> development of the new design GNSO and specifically the
>> parity and viability of the User House will benefit greatly
>> with the „fresh start‟ this Charter in our opinion provides
>> and it should be noted that in it we can see that the
>> opinions and views brought forward in our processes,
>> activities and meetings on the matter have been recognised,
>> heard and considered.” [p.10]
>>
>> Two commenters did not concur with the majority view. ALAC
>> said, “At each of the User House Meetings since Cairo the
>> ALAC has advised a lack of support and various concerns about
>> the NCUC developed NCSG Charter version.” [p. 11]
>>
>> Whatever Rob intended, I think most people would read "ALAC
>> favored the SIC's NCSG Charter" as meaning that ALAC favored
>> the SIC's NCSG Charter, etc.
>>
>>>
>>> I would also note that whilst it is not mentioned, Alan's
>> statement to
>>> the consultation period seems salutary in respect of understanding
>>> more clearly what the issues were with the previous
>> comments made on
>>> previous drafts by the ALAC with respect to your third paragraph.
>>
>> Alan's statement
>>
http://forum.icann.org/lists/gnso-stakeholder-charters/msg00069.html
>> "reiterate[s] that these comments are consistent with
>> formal statements made by the ALAC over the last year." I
>> don't see a formally approved statement at
>> http://www.atlarge.icann.org/correspondence
>> . I do see in the previous comment period a message from
>> Alan
http://forum.icann.org/lists/sg-petitions-charters/msg00020.html
>> that says "The following comment has the explicit support
>> of a number of ALAC members, but has not yet been subjected
>> to a formal ALAC vote. It does reflect the comments that have
>> been made by ALAC members in recent months [checking the list
>> record, about a
>> handful]. The ALAC is divided on the support of the proposal
>> submitted by Robin Gross of the NCUC. Some members feel that
>> although there are some problems with the proposal, it
>> generally addresses their concerns, and in particular, the
>> de-linking of Council seats from Constituencies is a very
>> good move in the right direction.
>> Problems notwithstanding, the proposal should receive Board
>> approval.
>> Others feel that the issues still outstanding are sufficient
>> to withhold Board support at this time."
>>
>> It is not obvious how "ALAC favored the SIC's NCSG Charter"
>> can be deemed "consistent with" the earlier "The ALAC is
>> divided on the support of the proposal submitted by Robin
>> Gross of the NCUC..."
>> especially given the lack of discussion, much less consensus
>> or a formal position, on the SIC's NCSG Charter. But no
>> matter, we all understand where we are here.
>>
>> Cheers,
>>
>> Bill
>>
>>
>>>
>>> I hope this is helpful; I'm sure Rob will reply on his own
>> behalf in
>>> due course.
>>>
>>> William Drake wrote:
>>>>
>>>> Hi Nick
>>>>
>>>> Thanks for this. Let me make sure I understand what Rob's
>> saying.
>>>> CLO's personal statement endorsing the SIC charter can
>> properly be
>>>> characterized by staff as an ALAC endorsement of the charter
>>>> because a) the staff summary does not purport to address every
>>>> specific argument (but simply to mischaracterize them when
>>>> convenient?) and b) her message was prefaced by a disclaimer
>>>> stating that she was presenting a synopsis of ALAC conversations
>>>> from before the SIC charter was even produced. So ALAC did not
>>>> actually have to have discussed the SIC charter, much less have
>>>> reached consensus on it, in order for staff to characterize her
>>>> position as ALAC's. Do I have that right?
>>>>
>>>> Interesting parallel: I asked Rob in a GNSO council meeting, and
>>>> reiterated in my submission to the public comment period, that
>>>> statements made in support of the NCUC version by NCUC
>> members and
>>>> hundreds (counting the Internet Governance Caucus etc) of
>> external
>>>> supporters in the public comment period ending 15 April be taken
>>>> into account in the summary of the PC ending 23 July. The
>> reasons
>>>> for doing so were straightforward: there was no reason to believe
>>>> that the organizations and individuals that said they
>> supported the
>>>> NCUC model and therefore rejected the opposite model had changed
>>>> their positions, so they should not be required to all mobilize
>>>> and restate their stances a couple months later, in the summer
>>>> travel season (although some did). The suggestion was not acted
>>>> upon or even mentioned in the staff summary.
>>>>
>>>> So: a synopsis of ALAC conversations during the previous
>> PC period,
>>>> in which it was concluded that there was no consensus in ALAC on
>>>> the charters, can be cited as an ALAC endorsement of a
>> version that
>>>> was never discussed or agreed on. But a substantial number of
>>>> comments from NCUC and its supporters during the same previous PC
>>>> period that unambiguously supported the NCUC model and
>> rejected the
>>>> alternative did not merit mention. And in any event,
>> civil society
>>>> objections to the SIC charter in the July PC period should
>> sort of
>>>> be discounted because, the staff summary says, "well over half of
>>>> the responses appeared to be a direct or indirect [fuzzy math?]
>>>> result of a letter writing campaign initiated by Robin Gross."
>>>> Outreach soliciting the public comments ICANN was soliciting
>>>> renders those comments suspect, if it is done by NCUC.
>>>>
>>>> Thank you for clarifying once again how ICANN's bottom-up,
>>>> transparent, and accountable community processes work.
>>>>
>>>> Best,
>>>>
>>>> Bill
>>>>
>>>>
>>>>
>>>> On Aug 7, 2009, at 7:48 PM, Nick Ashton-Hart wrote:
>>>>
>>>>> Dear All:
>>>>>
>>>>> As a couple of queries have come in from Bill and Adam with
>>>>> respect to the staff summary of the NCSG public comment period,
>>>>> Rob has sent along the below.
>>>>>
>>>>> -------- Original Message --------
>>>>> Subject:Clarifications Regarding Staff Summary-Analysis of
>>>>> Stakeholder Group Charter Public Forum
>>>>> Date:Fri, 7 Aug 2009 08:50:47 -0700
>>>>> From:Robert Hoggarth <robert.hoggarth at icann.org>
>>>>> To:Nick Ashton-Hart <Nick.Ashton-Hart at icann.org>
>>>>>
>>>>>
>>>>> Dear Nick:
>>>>>
>>>>> I understand that there have been some recent discussion within
>>>>> the At-Large community regarding the Staff
>> Summary/Analysis (S/A)
>>>>> of the submissions in the GNSO Stakeholder Group Charter Forum
>>>>> that closed on 24 July.-
>> http://www.icann.org/en/public-comment/#stakeholder
>>>>> - and particularly the reference the S/A document makes to the
>>>>> comments submitted by ALAC Chair Cheryl Langdon-Orr.
>>>>>
>>>>> As the staff person responsible for that document, I wanted to
>>>>> make sure that I cleared up any potential confusion in the
>>>>> attribution assigned to Cheryl’s submission in the S/A. At the
>>>>> beginning of every S/A document we clearly include the
>> caution to
>>>>> the reader that:
>>>>>
>>>>> “This document is intended to broadly and comprehensively
>>>>> summarize the comments of the various contributors to this forum
>>>>> but not to address every specific argument or position stated by
>>>>> any or all contributors. The Staff recommends that readers
>>>>> interested in specific aspects of any of the summarized comments
>>>>> or the full statements of others refer directly to the
>> originally
>>>>> posted contributions.”
>>>>>
>>>>> Further, with respect to the specific comments submitted by
>>>>> Cheryl, I reproduced verbatim the disclaimer that she
>> provided at
>>>>> the top of her submission. Footnote one at the beginning
>> of the S/
>>>>> A document reads:
>>>>>
>>>>> “[1] The Submission by Cheryl Langdon-Orr specifically noted the
>>>>> following disclaimer, ‘This comment is intended to ensure that
>>>>> the Board Structural Improvements Committee (SIC) is
>> aware of and
>>>>> takes into account in this current public comment period the
>>>>> previous activities, views and opinions, including Advice to the
>>>>> Board, and ratified Statements of the At-Large Advisory
>> Committee
>>>>> (ALAC) and the At-Large Community with specific reference to the
>>>>> development of the new structure of the GNSO, its Council
>> and the
>>>>> Stakeholder Group model. This is not a formal or ratified
>>>>> statement or comment per se but rather a synopsis of those
>>>>> previously provided in various fora to date.’ For identification
>>>>> purposes this document uses the ‘ALAC’ initials to refer to
>>>>> the
>>>>> submission.”
>>>>>
>>>>> If for any reason, Cheryl would like to clarify her
>> comments or if
>>>>> she thinks the initials I used to identify her comments were
>>>>> inappropriate, please have her send me an email at
>> robert.hoggarth at icann.org
>>>>> and I will work with the web-admin and tech-support teams to re-
>>>>> open the Forum record to insert any clarifications she
>> might want
>>>>> to make to her submission.
>>>>>
>>>>> Besr,
>>>>>
>>>>> Rob Hoggarth
>>>>>
>>>>>
>>>>>
>>>>> --
>>>>> --
>>>>> Regards,
>>>>>
>>>>> Nick Ashton-Hart
>>>>> Director for At-Large
>>>>> Internet Corporation for Assigned Names and Numbers (ICANN)
>>>>> Tel: +33 (450) 42 81 83
>>>>> USA Tel: +1 (310) 301-8637
>>>>> Fax: : +41 (22) 594-85-44
>>>>> Mobile: (Switzerland): +41 79 595 5468
>>>>> email: nick.ashton-hart at icann.org
>>>>> Win IM: ashtonhart at hotmail.com / AIM/iSight:
>> nashtonhart at mac.com /
>>>>> Skype: nashtonhart
>>>>> Online Bio: https://www.linkedin.com/in/ashtonhart
>>>>
>>>> ***********************************************************
>>>> William J. Drake
>>>> Senior Associate
>>>> Centre for International Governance
>>>> Graduate Institute of International and
>>>> Development Studies
>>>> Geneva, Switzerland
>>>> william.drake at graduateinstitute.ch
>>>> www.graduateinstitute.ch/cig/drake.html
>>>> ***********************************************************
>>>>
>>
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***********************************************************
William J. Drake
Senior Associate
Centre for International Governance
Graduate Institute of International and
Development Studies
Geneva, Switzerland
william.drake at graduateinstitute.ch
www.graduateinstitute.ch/cig/drake.html
***********************************************************
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