Follow-Up to NCSG Charter-Structure Questions

[Cheryl Preston]

Dear All,

I will be in route to Mexico City tomorrow during this scheduled time.
I would be available later in the evening or the next day (Saturday).  I
understand that you have to juggle many schedules and I do not expect
you to make a change for me.

I did want to mention that the proposed CyberSafety Constituency is
submitting a charter proposal to the Board.  I hope to have a draft to
circulate to you tonight.

Briefly, this charter proposes a "thin" model, conceiving of the SG role
as: 1. coordinating, facilitating, and encouraging the flourishing and
proper functions of the constituencies; and 2. allocating council seats
in cases where the even division of council seats among the existing
constituencies is not possible.

The presumption is even division.  If there are 4 or 5 constituencies,
so that even division is not possible, the EC of the SG (comprised of
one representative from each constituency) will allocate one seat to
each constituency and then follow a procedure for allocating the
remaining seat(s).  First they will attempt to reach agreement within
the EC, applying principles set forth in the charter.  A 2/3 vote or
higher vote of the SG EC is sufficient to pass a proposal for
allocation.

The proposal for allocation may be initiated by any constituency and
must state whether the request is to:

allocate seats to particular constituencies for them to fill with their
established election procedures; or

allocate seat(s) to identified individual within a certain constituency,
or to an individual who is a member of more than one constituency.

If the matter cannot be resolved in the SG EC, the SG EC will conduct an
election for the extra seat(s) giving each member of any constituency
within the SG (based on one vote per one individual/organization) who is
in good standing under the rules of each constituency's standards.

In anticipation of a time when the Board is presented with a petition
for a 7th constituency, my proposal recommends a working group to
further study potential bases on which to organize the NCSG so that it
can reach the objective of adequate stakeholder representation in a
structure of 6 constituencies.  I also have 2-3 proposals for ways to
devise an organization that guarantees broad and complete coverage with
6 constituencies.

Cheryl B. Preston
Edwin M. Thomas
Professor of Law
J. Reuben Clark Law School
Brigham Young University
424 JRCB
Provo, UT  84602
(801) 422-2312
prestonc at lawgate.byu.edu
>>> Brenden Kuerbis <bkuerbis at INTERNETGOVERNANCE.ORG> 02/26/09 7:13 AM
>>>
Meeting Name: *NCUC: Follow-Up Meeting on NCSG Charter-Structure*  Start
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On Mon, Feb 23, 2009 at 4:17 PM, Robin Gross <robin at ipjustice.org>
wrote:

> Great!  How about 16:30 (EST) on Friday the 27th for the call?  That
is
> 21:30 UTC on Friday the 27th.
>
> Does that time work for folks who want to join?
>
> Using Elluminate again would be terrific, thank you.
>
> All best,
> Robin
>
>
>
> On Feb 23, 2009, at 12:13 PM, Brenden Kuerbis wrote:
>
> Hi, Robin
>
> I would like to join the call if possible. My preference would be for
> meeting on Friday, as I'll be traveling to MC on Saturday.  But > the recording.
>
>
> Best,
>
> Brenden Kuerbis
> Internet Governance Project
> http://internetgovernance.org
>
>
> On Mon, Feb 23, 2009 at 2:08 PM, Robin Gross <robin at ipjustice.org>
wrote:
>
>>  Thanks, Milton.  This sounds like a good approach and should address
>> some of those concerns from staff.
>>
>> How about a call on either this Fri., or Sat. to try to hammer this
out
>> further?
>>
>> I'm less optimistic that it will pacify those who are fixated on
>> controlling counsel seats, but is an inclusive approach that will
empower
>> minority voices within the constituency.
>>
>> Thanks,
>> Robin
>>
>>
>>
>> On Feb 23, 2009, at 6:33 AM, Milton L Mueller wrote:
>>
>>  Robin
>> I will try to have a draft that incorporates the reasonable staff
comments
>> and some new ideas (thresholds for working group formation) that came
out of
>> our discussions with ALAC/NARALO people by the middle of this week.
If we
>> could schedule a call sometime late evening EST this week I could
squeeze it
>> into my schedule.
>>
>> Let me explain this new idea. Brenden Kuerbis actually came up with
it,
>> and it solves many problems related to minority representation under
an
>> integrated structure. It should appeal to "dissenters" within NCUC
such as
>> Cheryl Preston.
>>
>> The idea is that when a certain threshold of the membership or the
policy
>> committee wants to form a GNSO Working Group on a policy issue dear
to them,
>> then ALL NCSG Council representatives must vote to support the
formation of
>> that WG.
>>
>> Example: A constituency or faction within the NCUC wants to promote
policy
>> X. The first step is to get the GNSO Council to create a WG on X.
Once a WG
>> is formed, any supporters of X can join that WG and work on the
issue, it
>> doesn't matter whether they have a Council seat or not. So we have a
vote in
>> the SG or the Policy Committee on whether to form the WG and if a
certain
>> low threshold is met - say, 20% - then ALL of the NCSG Councillors
are
>> obliged to vote for the formation of that WG, whether they like the
idea or
>> not.
>>
>> Of course, forming the WG does not mean that the supporters of X will
get
>> exactly the policy they want. But NCSG cannot guarantee that in any
event --
>> all the other factions, constituencies and SGs will be involved in
any WG.
>> It does, however, guarantee that minorities within the NCSG have a
chance to
>> get their ideas past the Council and into the WG phase.
>>
>> Milton Mueller
>> Professor, Syracuse University School of Information Studies
>> XS4All Professor, Delft University of Technology
>> ------------------------------
>> Internet Governance Project:
>> http://internetgovernance.org
>>
>>
>>  ------------------------------
>> *From:* Robin Gross [mailto:robin at ipjustice.org
<robin at ipjustice.org>]
>> *Sent:* Sunday, February 22, 2009 7:27 PM
>> *To:* Milton L Mueller; NCUC-DISCUSS at LISTSERV.SYR.EDU
>> *Subject:* Re: [NCUC-DISCUSS] FW: Follow-Up to NCSG Charter-Structure
>> Questions
>>
>> Thanks, Milton.
>> You are right that we have to continue to remind the ICANN staff and
board
>> that the constituency model that the staff is proposing encourages
>> stake-holder groups to be in a perpetual power struggle within
themselves
>> (and between constituencies) to hold on to counsel seats.  The way
staff is
>> trying to organize the GNSO it appears they are trying to disempower
the
>> GNSO even further by requiring all energies to be consumed in
un-ending
>> administrative tasks and political battles.   Too bad.  This "GNSO
reform"
>> was a real opportunity for ICANN to reform some of its more nasty
tendencies
>> (like staff dominating the board, the GNSO, etc.)
>>
>> We should revise our draft SG proposal for submission by 1 March
(taking
>> into account the feedback we've received so more).
>>
>> Should we schedule a call this week to discuss the submission
further?
>>  Any suggestions?
>>
>> Thanks,
>> Robin
>>
>>
>>
>>  On Feb 21,>> practicality of certain aspects of their favored model for a NCSG.
The good
>> news is that they have taken the inquiry seriously and responded. The
bad
>> news is that, as I feared, the only way to make their favored model
work
>> requires enormous amounts of organizational overhead – an additional
>> bureaucratic overlay that creates not only complexity but the
possibility of
>> top-down manipulation of constituency election results.
Interestingly, the
>> more workable approaches start to look a lot like the integrated
election
>> process we already proposed. Read for yourself.
>>   ------------------------------
>>  *From:* Robert Hoggarth
[mailto:robert.hoggarth at icann.org<robert.hoggarth at icann.org>
>> ]
>>
>> Milton:
>>
>> Thank you for your recent email (below) in which you posed a couple
of
>> questions for the Staff concerning the new Stakeholder Group model.
The
>> questions are challenging and we have done our best to provide what
we think
>> are reasonable recommendations as to how they might be addressed.
>>
>> *Q1: How does a constituency-based model produced balanced geographic
>> representation in Council seats?
>> *
>> We envision geographic diversity as a representational responsibility
of
>> each Stakeholder Group (SG) in fulfilling its role of allocating GNSO
>> Council seats to member Constituencies.  We are currently working
with the
>> General Counsel to draft Bylaw amendments consistent with that
approach.
>>
>> Using your example, if the SG has six seats and three Constituencies,
it
>> may choose to allocate seats evenly although it would not be required
to do
>> so.  In the simplest case, if there are two seats assigned to each
>> Constituency, the SG would alert its members that it needs to have
all five
>> geographic regions represented with no more than two Councilors
coming from
>> the same one.  In order to accomplish that goal, the SG might ask
certain
>> Constituencies to produce its candidates from a limited set of
geographic
>> regions.
>> Another option might be to solicit a larger candidate pool, e.g.
three
>> from each Constituency or nine total (voted from within), and choose
those
>> six that best satisfy the SG's geographic diversity needs.  In a
situation
>> where the number of Council seats to be allocated is not evenly
divisible,
>> the SG might decide to designate certain seats to specific geographic
>> regions and candidates from various Constituencies could campaign for
those
>> available slots.
>> MM commentary: note the last line: "designating certain seats to
specific
>> geographic regions" and allowing "candidates from various
Constituencies
>> [to] campaign for those available slots" sounds suspiciously close to
an
>> integrated, Stakeholder Group-wide election, which is what we
proposed! In
>> other words, Council candidates would have to appeal for votes from
across
>> the entire SG, not just inside their constituency
>> We believe that the SG, working collaboratively with its member
>> Constituencies, can continue to ensure that its GNSO Councilors
reflect a
>> profile consistent with the organization's geographic diversity
goals.
>>
>> *Q2: How does a constituency-based model apportion Council seats
among
>> Constituencies when they are of different size?
>> *
>> While the decisions may be challenging, we think that one principal
role
>> of the SG's leadership team[ 1] <see footnote below> is to establish
the
>> very criteria (and methodology) that would allow such apportionment
>> determinations to be made.  A SG could utilize factors other than
size, for
>> example, geographic diversity and possibly others.  To take a
concrete
>> example, if there were six seats and four constituencies, the SG
could end
>> up with a 2-2-1-1 or 3-1-1-1 configuration utilizing whatever
>> decision-making criteria it adopted (and had approved, via its
Charter, by
>> the Board).  You raise the possibility of gaming the system and, of
course,
>> such behavior is theoretically p>> own.  In that circumstance, the SG leadership should reexamine its
>> methodology and adjust, as necessary, to minimize any undesirable
outcomes.
>>  Once the seats are allocated, if a new constituency is subsequently
>> admitted to the SG by the Board, we recommend that, at its next
annual
>> cycle, the SG reallocate seats taking into consideration five members
vs.
>> four.  The most likely Council member configuration, given the
limited
>> combinations, would be 2-1-1-1.  We do make the tacit assumption that
any
>> Constituency approved by the Board would have satisfied ICANN's
fundamental
>> stakeholder representational requirements and, thus, would be
entitled to at
>> least one seat on the Council.
>>
>> In terms of oversight, we believe that the Board's role will be not
only
>> to ensure that each of the SG Charters is structured in a fair, open,
and
>> transparent manner; but, it will also likely monitor SG activities,
>> especially in the period immediately after initial implementation.
>>
>> We would be happy to continue discussing this matter with you and, of
>> course, we would welcome another set of questions if there are still
>> unresolved issues in your mind.
>>
>> Regards,
>> Denise Michel
>>
>> [1] <#_ftnref> *We would envision an Execeutive Committee comprised
of
>> one delegate from each recognized Constituency.
>> *
>> MM comment: This proposal creates a potential nightmare. It requires
a
>> group of delegates from each constituency to fight among themselves,
with no
>> pre-set criteria, to decide who gets how many Council seats.
Unacceptable,
>> and unnecessary. In our proposal, size differences among
constituencies are
>> automatically reflected in voting totals for Council seats. There is
no need
>> for top-down, negotiated allocations. Those negotiations create all
the
>> rigidities that the Board Governance Committee was trying to get rid
of, and
>> present all kinds of opportunities for abuse. Even when they are not
abused,
>> they will consume enormous amounts of time. It is apparent that
ICANN's
>> professional staff – which gets paid to do this work – still does not
>> appreciate the way in which imposing additional layers of bureaucracy
and a
>> constant need to contend and negotiation for power inside a SG saps
the
>> energy of noncommercial groups and prevents them from doing the real
work of
>> policy development. I ask for your support to tell the staff that
this is
>> not an acceptable option.
>>
>> **
>>  *MM's Original Email of 6 February, 2009:
>> *
>> Robert, Denise and Ken
>>
>> Thanks a lot for your valuable feedback on our draft Charter (v4.0).
It is
>> clear that we are making progress, although there is a long way to
go.
>>
>> In respect to some of your questions or requests for explanation, let
me
>> turn the tables on you a bit. The presumption in many of these
exchanges is
>> that there's something complicated or "different" about what we are
>> proposing, and that the "constituency-based SG model" is
straightforward and
>> poses no problems. In many ways, however, an integrated SG structure
is far
>> simpler, and we have no idea how a constituency model would work even
if we
>> thought it desirable to implement it.
>>
>> Let me give you two examples. I will pose them in the form of
questions
>> because it genuinely would like to have answers from you or any other
>> defender of the constituency-based SG model.
>>
>> *Q1: How does a constituency-based model produced balanced geographic
>> representation in Council seats?
>> *
>> Think about this. Let's say there are 3 independent constituencies in
a
>> SG, and each of them elects 2 Council seats without reference to the
other.
>> So Constituency A elects (in accord with its own geog. representation
rules)
>> a person from North American and a person from Latin America;
Constituency B
>> elects a person from North America and a person from Latin America;
and
>> Constituency C elects a person from North America and another from
Latin
>> America. End result: each constituency has, >> that only two world regions are represented on the Council.
>>
>> I would be very interested to see how you propose to avoid this
problem
>> while staying in the constituency model.
>>
>> An integrated SG model, by contrast, can impose proportions on the
six
>> seats as a whole, thereby ensuring that most if not all regions are
>> represented.
>>
>> *Q2: How does a constituency-based model apportion Council seats
among
>> Constituencies when they are of different size?
>> *
>> Let's suppose there is an "old constituency" that has 50 members, and
a
>> "new" constituency that starts and gets recognized by the Board, and
has
>> only 10 initial members (or even less). How many Council seats does
each
>> constituency get? Do they inherently get the same number of seats
simply by
>> virtue of the fact that they are constituencies? Or does their
>> representation on the Council reflect their relative size? If the
latter,
>> who decides what allocation principle is used, when there is no
>> pre-established SG decision-making method? And once Council seats
depend on
>> membership size, what is to stop one constituency from extending
membership
>> in an overly easy way, regardless of appropriate criteria, to inflate
its
>> relative size? Will the Board monitor this?
>>
>> These questions are not impossible to answer, but they obviously
impose a
>> very complex layer of organization, monitoring and procedure that an
>> integrated SG model does not have to worry about.
>> Frankly, Bob and Denise, I could produce about a dozen more questions
like
>> this. But let's see how you do with these two first.
>>
>> My point is to put this discussion of SG models on a more solid
footing
>> with an equal burden of proof. If you can convince us that a
>> constituency-based model handles such basic and obvious issues as
well as an
>> integrated model,we'd be more inclined to change our view.
>> --MM
>>  ------------------------------
>>  [1] <#_ftnref> *We would envision an Execeutive Committee comprised
of
>> one delegate from each recognized Constituency.*
>>
>>
>>
>>
>>
>> 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
>>
>>
>>
>>
>>
>>
>>
>> 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
>>
>>
>>
>>
>
>
>
>
> 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
>
>
>
>