Is ICANN Accountable to the Global Public Interest? ICANN Ignores Non-Commercial Users in Internet Policy Development Process

[Robin Gross]

Dear All,

Below is my blog post on the tragedy of the NCSG charter situation.

Blog post with numerous hyperlinks for further background reading at:
      http://ipjustice.org/ICANN/NCSG/NCUC-ICANN-Injustices.html

________________________

Is ICANN Accountable to the Global Public Interest?

ICANN Ignores Non-Commercial Users in Internet Policy Development
Process

By Robin D. Gross, IP Justice
13 July 2009

-----------------------------------------

Everyone is a Noncommercial User of the Internet

NCUC logoThe Non-Commercial Users Constituency (NCUC) is the home to
noncommercial users in ICANN's GNSO policy development process.  NCUC
represents 109 members from more than 40 countries, and includes
large organizations, small nonprofits and individuals committed to
developing Internet policy that protects the rights of noncommercial
users.  NCUC is concerned with a broad range of issues including
human rights such as freedom of expression and privacy protections,
educational needs such as those of libraries or academic
institutions, and concerns from community and religious
organizations, consumer rights groups, and other noncommercial
interests related to Internet governance.

In today's world, everyone is a noncommercial user of the Internet at
one point of their day or another.  This noncommercial interest, is
an important interest which we all share, regardless of what we do
for a living or the fact that we also use the Internet for commercial
purposes.  We are also noncommercial users and want our ability and
right to use the Internet for noncommercial purposes to be protected
in ICANN policy negotiations.  This objective is in everyone's
interest, so it should be respected throughout ICANN's policy
development process and governance structures.

Restructuring ICANN's GNSO Policy Development Framework

ICANN's Generic Names Supporting Organizations (GNSO) is the
supposedly "bottom-up" process that allegedly provides ICANN with
legitimacy to make and enforce Internet policy decisions.  ICANN's
GNSO is responsible for making policy recommendations to ICANN's
Board of Directors regarding policies covering all generic top-level
domains (such as .com, .edu, .org, .net).

Presently GNSO policy recommendations are negotiated among competing
interests or 6 distinct "constituencies".  However, the GNSO is the
process of restructuring and reforming its membership away from 6
arbitrary and out-dated "constituencies" and into 4 distinct
"stakeholder groups": i) noncommercial users; ii) commercial users;
iii) registrar companies; and iv) registry companies.

Board Appointed (top-down) vs. Elected (bottom-up) Represent ion on
GNSO Council

Noncommercial users have been fighting for years to obtain parity
with commercial users in the GNSO policy development process at
ICANN.  A 2006 report by the London School of Economics found ICANN
undervalues noncommercial interests in the policy development process
(5 specialized commercial constituencies vs. 1 noncommercial
constituency to represent all noncommercial interests).  In February
2008 the Board Governance Committee Report also recognized this
imbalance and the need to address it in order to protect
noncommercial interests in ICANN policy development.  As a result,
the ICANN Board approved a major shift for ICANN's GNSO by deciding
noncommercial users should finally be given parity with commercial
users in the GNSO policy development process.

Specifically, beginning with the Seoul ICANN Meeting in October 2009,
noncommercial users and commercial users are each supposed to have
elected 6 representatives to the GNSO Council.  However, as a result
of back channel lobbying by the commercial constituencies who lost
the advantage in numbers of councilors, the 3 new GNSO Council seats
that should have gone up for election to noncommercial users, will
instead become board appointments.

Despite the lack of any support from ICANN, NCUC's membership has
grown by more than 125% since 2008 when parity between commercial and
noncommercial interests was established by the Board Governance
Committee.  Yet despite the significant increase in participation
from noncommercial users, the "parity principle" has lost support
from the board, who now may deny the new noncommercial membership
elected representation on the GNSO Council.

Development of Consensus for Charter for Noncommercial Stakeholder
Group (NCSG)

In April 2009 noncommercial users responded to ICANN's call for
public comment on how to design a stakeholder group charter to
maximize the effectiveness of noncommercial users in policy
development and encourage the broadest range of participation from
the most diverse viewpoints.  The answer was clear: noncommercial
users overwhelmingly supported a stakeholder group charter that
encourages cooperation between constituencies, the charter proposed
by the NCUC.

NCUC's charter was developed by a multi-stakeholder process that
involved months of open consultations, dozens of participants,
numerous discussions with ICANN board and staff, At-Large members,
existing noncommercial participants at ICANN and prospective
noncommercial participants.   NCUC's charter went through significant
modifications in response to public feedback, including more than
half a dozen distinct public drafts, before reaching a consensus on
the final charter submitted for a Non-Commercial Stakeholder Group
(NCSG).

In addition to NCUC's membership, ICANN's public comment period on
the stakeholder group charters brought additional support to the NCUC
charter, including support from over 63 organizations and dozens of
individuals from all corners of the globe.

Public Comment Against a Charter that Would Stranglehold
Noncommercial Users

Two competing proposals, vastly different in their substance and
effect, were submitted to ICANN to charter the new Noncommercial
Stakeholder Group (NCSG).  In addition to the charter supported by
civil society from NCUC, another proposal was submitted from CP80, an
Internet pro-censorship group led by Cheryl Preston, Ralph Yarro III
(SCO Chairman), and Debra Peck out of Salt Lake City, Utah.

Outside from the drafters of the CP80 petition, not a single public
comment argued in support of the CP80 proposal or its governance
model during ICANN's Public Comment Period.  The lack of public
support for the CP80 "constituency-based" voting model is not
surprising since its provisions would stranglehold noncommercial
users in endless competition among factionalized constituencies,
constantly fighting over scarce resources and representation on
ICANN's GNSO Council.

NCUC's charter encourages noncommercial users to work together toward
shared goals, while the CP80 model keeps noncommercial users
constantly fighting over their differences, and ultimately
ineffective at influencing policy decisions at ICANN.

Noncommercial Organizations Unanimous in Favor of Joint Civil Society
Proposal

During ICANN's April 2009 Public Comment period, a total of 23
distinct comments from organizations and individuals were submitted
on the topic of stakeholder group charters.  Several of these
comments were signed by dozens of noncommercial organizations and
individuals, increasing public participation by much more than 23
comments would initially imply.  However of these 23 comments, the
only 2 to argue in favor of the CP80 proposal to hard-wire GNSO
Council Seats to constituencies were the drafters of the proposal
themselves.  No one else.

As many commentators noted, CP80's proposed "constituency-based"
structure would stranglehold noncommercial users and discourage
consensus building and cooperation among competing constituencies.
The "constituency-based" voting it proposes creates a constant zero-
sum struggle between noncommercial constituencies, rendering the
entire Non-Commercial Stakeholder Group ineffective in ICANN policy
development.

In stark contrast to the lack of any support for the CP80 model, more
than 63 organizations and 55 individuals submitted comments in favor
of the joint civil society charter that provides for a democratic
vote of all its membership to elect representatives to serve on the
GNSO Council.   Every single noncommercial organization who submitted
a public comment on the topic argued against the stranglehold charter
model proposed by CP80 and in favor of the cooperation charter
submitted by noncommercial users and created through a consensus
process.

ICANN Defies Public Comment and Imposes Stranglehold Charter Model

What did ICANN do in response to the public comment it received and
the global consensus against the stranglehold charter model proposed
by CP80?  ICANN adopted the stranglehold charter model for
noncommercial users, defying the unanimous public support expressed
for the charter drafted by noncommercial users that was created
through a consensus process.

Welcome to "bottom-up" policy making at ICANN: where participants are
invited to build a "consensus" among a broad range of interests, only
to have that consensus discarded by ICANN as a result of relentless
insider back-channel lobbying from special interests.

Apparently we noncommercial users wasted our time building consensus
among global civil society and participating in a public discussion
forum, when we should have been lobbying ICANN board members and
ICANN executive staffers -- since that seems to be the only channel
of public input ICANN feels accountable to.

Obviously, noncommercial users will never be able to effectively
participate in a policy development forum that is predicated on and
dominated by insider lobbying from entrenched commercial interests.
ICANN's Board of Directors has a responsibility to the global public
interest to ensure noncommercial interests can play a meaningful role
in ICANN policy development despite its lack of economic backing.
Unfortunately protection for noncommercial interests is
systematically being squeezed-out of ICANN's policy development
process by commercial interests.

ICANN's Sneaky Move to Keep Plans Hidden

On 23 June 2009, when ICANN finally released its proposed charter to
noncommercial users, in addition to the charter being an entirely
different different structure than the one created by the consensus
process, ICANN's charter also omitted to include the most important
section 5 which deals with management of the NCSG and in particular,
representation on the GNSO Policy Council.

Only after explicitly requesting to see the omitted section, was NCUC
provided section 5 from ICANN with the understanding that it is
staff's proposal for governing the NCSG.  One will not find ICANN's
proposed section 5 in its NCSG charter published on the ICANN
website, but it can read be read here -- and it must be read together
with the ICANN-drafted NCSG charter for it be clear what sneakiness
is at play.

Exactly the stranglehold governance structure that noncommercial
users uniformly rejected in April, ICANN intends to march ahead with
at full steam and impose on noncommercial users.  But not
transparently and not in a manner that conveys its clear intentions
to the public so those effected may provide feedback.

When asked at the 23 June 2009 ICANN meeting why didn't staff listen
to non-commercial users in the public comment period about how they
want to elect their GNSO Council Representatives, ICANN spokesman Ken
Bour frankly said that ICANN staff adopted the constituency-based
charter "because it is what staff wanted all along".

Tell ICANN to Listen to Noncommercial Users and Protect the Public
Interest

The message is clear.  ICANN has forgotten who it works for - us -
Internet users - including noncommercial users.  Now is the time to
remind ICANN that it must be accountable to the global public
interest or it has no business in Internet governance.

Tell ICANN to listen to noncommercial users and not to impose the
stranglehold charter on noncommercial users against our will.  Send
an email to gnso-stakeholder-charters at icann.org (until 21 July 2009)
and ask that noncommercial voices be heard in Internet policy
decisions.  Send a copy of your comment to your local Congressman or
Member of Parliament to keep them informed about ICANN injustices to
noncommercial users.  You can also file a complaint over ICANN
injustices with the ombudsman, who is supposed to keep the
organization accountable to the public.

Thomas Jefferson noted that the exercise of political power without
the consent of the governed is illegitimate.

ICANN's attempt to impose a governance structure on noncommercial
users against their will calls into question ICANN's legitimacy to
govern; it undermines confidence in ICANN's commitment to democratic
values; and it appears ICANN is unable to protect the broader public
interest against commercial pressures.

We must remind ICANN to protect the public interest and the rights of
noncommercial users - all of us.  Send a quick email to gnso-
stakeholder-charters at icann.org today to remind ICANN who they work for.






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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