Follow-Up to NCSG Charter-Structure Questions

[Mary Wong]

Hi all

Just my two cents' worth on what we might want to highlight in the new
draft, given recent discussions and suggestions with ALAC et al:

1. Emphasize that the new NCSG should be structured in such a way as to
(a) include and facilitate the participation of individual users; (b)
empower minority views and representation; (c) be flexible as ICANN and
the GNSO move forward; and (d) minimize bureaucratic hassles and
time-consuming processes.

2. Note that the non-commercial user group is necessarily diverse, and
can include registrants and non-registrants, as well as individuals,
organizations and other entities (Norbert's made a similar point
previously).

3. Point out that our proposal is currently the only one (that we are
aware of) that tries to address all of these issues while remaining a
workable and representative model; perhaps also state (tactfully) that
while no proposal may be perfect, ours goes a long way toward
concretizing and proposing a pragmatic solution to issues others have
raised but not proposed solutions for.

4. Finally, with respect to the SG/Constituency/Council seats issue,
how about a rule that if there are more Constituencies than there are
available seats, then at least one such seat should go to a minority
Constituency (defined as "less than [__] members or less than [__]% of
NCSG total membership")?

I'm offering these suggestions now as I won't be able to join a Friday
afternoon call - I'll be leaving a conference to catch the night flight
out to Mexico City (so as to make it in time for the Saturday morning
GNSO Council meeting!)

Cheers
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> 2/23/2009 4:17 PM >>>
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 either
way I can setup an Elluminate session, so those who can't be there can
listen to 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 ( http://internetgovernance.org/ )




From: Robin Gross [mailto: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, 2009, at 9:46 AM, Milton L Mueller wrote:




Hello, all
You will remember that I sent questions to the staff questioning the
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]

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 possible in any proposed model including your 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, on its own, produced as much geographic diversity as it possibly
could, and yet the end result could be 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



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