REVISED Draft Letter to ICANN Board & CEO
Robin Gross
robin at IPJUSTICE.ORG
Wed Aug 12 23:53:12 CEST 2009
Mary,
I'm confused why this letter still says we are not asking for a
reconsideration of the board's decision, since that was what was
decided in the constituency meeting on Tuesday, and several comments
have pointed out from the last draft. If you are burnt-out from
working on this document I can work on it some tomorrow.
Thanks,
Robin
On Aug 12, 2009, at 2:31 PM, Mary Wong wrote:
> 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
>
>
>
> <v4 CALL TO CORRECT CONTINUING MISPERCEPTIONS ABOUT THE NCUC AND
> THE PROPOSED NEW NCSG.doc><REDLINE v3 and v4.doc>
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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