REVISED Draft Letter to ICANN Board & CEO

Wed Aug 12 23:31:12 CEST 2009

Dear all,

Attached is an updated, substantially revised version of the letter
(I've provided both a clean and redlined version, though with all the
changes you're probably better off just reading the clean version!)

Here are a few "highlights":

- I've tried to include as many of the comments received as possible;
my apologies if I've omitted or misinterpreted anyone's suggestions.
I've also added a few more footnotes and references to actual Board
meeting minutes and other ICANN documents.

- I've beefed up and emphasized the "process" stuff and tried to link
it with the points about continuing misperceptions, lack of parity and
consequent injustice. I should say that this runs counter to Bill's
excellent points (below), but for a number of reasons I went this route
instead: mostly, I think that while our objections on the substance of
the staff charter have already (at last in part) been aired, and
virtually wholly put down in writing (eg. on the public comments forum),
I don't believe anyone's put down in writing, much less in one document,
all the process irregularities and resulting problems for NCUC.

I think focusing on the process side, and linking it to the
misconceptions while removing references to how insulted we are, may
work to force the Board to NOT dismiss the letter as "more rantings over
the same old stuff by NCUC, who simply won't give up on their charter
which we've already told them we don't like and won't adopt".

Finally, well, it's 5.30 a.m. in Singapore, I simply can't trawl
through ANY more ICANN documents (much less piece together numerous
posts and comments), and the letter's already pretty long. We could
consider sending it a 2nd letter focusing on the substantive
allegations, though (but I doubt I'll have the bandwidth for that).

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

>>> Robin Gross <robin at IPJUSTICE.ORG> 8/12/2009 11:46 AM >>>
Bill,

You make a very good point of beefing up the substantive points about
what is wrong with SIC's charter.  The board might not care about
process violations, but if they can see how these process violations
will lead to a terrible charter model, they might be more inclined to
care and do something.   If it is only a "process violation" with little
harm on the community they might not care so much.

Thanks,
Robin

On Aug 12, 2009, at 7:02 AM, William Drake wrote:

Hi

On Aug 11, 2009, at 11:05 PM, Avri Doria wrote:

Note: i was never in favor of constituency-less SG charters, but that
is what NCUC bottom up process originally decided on, and as I
understand only changed when it became clear that it would not be
allowed.  At least not for the NCSG.  I apologize for my role in helping
to convince NCUC to back down on that (and some other stuff) - but i
never envisioned that the Board would allow it - i was wrong.

Avri, this is not a criticism, just my own puzzlement:  I have never
entirely understood why you have characterized NCUC as having proposed a
"constituency-less" charter.  From v. 1 circulated by Milton to the list
on 9 November last year, there were community-formed, SG-approved
groupings called constituencies.  If what you mean is that unless the
board approves them they cannot rightly be considered constituencies in
the normal ICANN sense (as you note, we changed this pre-Mexico when we
heard that it was a sticking point in the Board's view) ok I get your
meaning, but others who are not bylaws-attuned may not appreciate that
that definitional requirement is the basis of the characterization.
Just wondering because the "NCUC vs constituencies" framing been central
to the little bits of justification we've variously been given for
what's supposed to be wrong with our charter.  Supposedly we somehow
wanted to marginalize them in order to capture and control, which of
course was never the case, so I'm skittish about how this gets posed
discursively.

Interesting to consider how this issue is addressed in the staff
summary of the public comment period.  It's characterized as the key
difference between the NCUC and SIC versions, and staff notes,

'The V-NCSG proposes that all members of the SG - organizations, large
and small, as well as individuals - become direct members of the NCSG
while “constituencies” are voluntary self-forming (ad hoc) groupings
that may be freely formed and dissolved for the purposes of coalescing
and advancing particular policy positions. In this model, constituencies
have no electoral or voting functions, per se, within the SG.'

I guess the quotes mean that our constituencies are not true
constituencies in the ICANN sense.  But this is odd, since we ultimately
conceded that, "The procedures for becoming a Board-recognized
Constituency within the NCSG are contained in the ICANN Bylaws and other
procedures approved by the Board."  Also odd is the statement that
they'd have no electoral or voting functions, when we say,

"Constituency Rights and Responsibilities.  Each NCSG Constituency
shall:
1.            Elect/appoint representative(s) to serve on the NCSG EC;
2.            Nominate candidates and participate in elections for GNSO
Council Representatives (CR);
3.            Develop and issue policy and position statements with
particular emphasis on ICANN consensus policies that relate to
interoperability,
technical reliability and stable operation of the Internet or domain
name system;
4.            Participate in the GNSO policy development processes;
5.            Select Nominating Committee delegate(s) as directed by
the ICANN Board; and
6.            Perform any other functions identified by the ICANN
Board, GNSO Council, or the NCSG as Constituency responsibilities."

Ok, we don't say each constituency is guaranteed a seat on the council
per CP80, but the staff version doesn't do that anymore either.  So how
exactly do we supposedly mess up this singularly important issue?  By
not forcing individuals into constituencies if they want to be in the
NCSG?

I'm wondering if we shouldn't be trying to address this more directly
in the letter.  It seems to me that the take off point for Mary's
excellent draft is procedural, rather than substantive.  We lead with a
complaint about how our processes and inputs have been ignored:
Paragraph 1 attributes the board's decision to " continuing
misperceptions and misinformation about the true extent of involvement
by non-commercial entities and individuals in the year-long process that
led to NCUC’s original proposal for an NCSG Charter."  I can easily
imagine board people thinking, gee we're sorry you feel bad, but what
matters is the end product, and we don't like yours.

We of course have to make the process points, but since these haven't
yet swayed them and are unlikely to in the future, might it not make
sense to get more quickly, and in more detail, to our substantive
problems with the SIC version?  Right now, that discussion doesn't start
until page 7.  I recall Milton wrote up some good material a ways back
on the SIC version's dysfunctional aspects (although the wired council
seats aspect is no longer operative, at least for the first year).
Maybe that could be tweaked and drawn in here?

Bottom line, a priori I would think we are better off emphasizing up
front that there are reasons why we rejected the sort of model they've
embraced and would have a hard time operating within it, and then
addressing afterwards the ways in which we've been mistreated, since the
latter quite obviously is not dispositive for them.

Bill

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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