ICANN Injustices wrt Stakeholder Group Charters

[Robin Gross]

RE: ICANN Stakeholder Group Charter Injustices

Dear ICANN:

IP Justice appreciates this opportunity to provide public comment.   
Founded in 2002, IP Justice is an international civil liberties  
organization that works on intellectual property and Internet law and  
policy issues.  IP Justice is a noncommercial 501(c)(3) public  
benefit organization based in San Francisco with an international  
board of directors and members in countries from all corners of the  
globe (http://www.ipjustice.org).  IP Justice participates in the  
Generic Names Supporting Organization (GNSO) as a member of the  
Noncommercial Users Constituency (NCUC).

ICANN Cannot Ignore the Consensus Charter Created by Noncommercial  
Users in a Bottom-Up Process

IP Justice is writing to express our deep disappointment with the  
unjust manner in which previous public comment (period ending 15  
April 2009) was discarded by ICANN in the reformulation of the  
proposed Noncommercial Stakeholder Group Charter[1].

NCUC undertook months of consultations with a diverse range of  
parties in the creation of its draft charter[2] proposed for a  
Noncommercial Stakeholder Group (NCSG).  NCUC participated in an  
extended consensus process that involved global civil society, ICANN  
board, staff, members of the At-Large community, and other  
noncommercial actors in the creation of the charter submitted by NCUC  
in March 2009.

Civil society’s NCSG charter was explicitly supported by over 80  
noncommercial organizations and individuals in the April 2009 Public  
Comment period.  Every single noncommercial organization that  
submitted a comment during the period supported NCUC’s charter and  
asked ICANN not to force noncommercial users into constituencies for  
electing leadership positions (the “silo-model”).

During discussions at the March 2009 ICANN meeting in Mexico, NCUC  
specifically asked ICANN if the NCSG charter it was drafting was  
inconsistent with the report of the ICANN Board Structural  
Improvements Committee (SIC) and NCUC was told its draft charter was  
not inconsistent.

Yet in June, without any explanation or regard for democratic or  
bottom-up processes, ICANN staff and Board SIC threw out the  
consensus charter that civil society developed and replaced it with  
an entirely different model -- the silo-model that civil society  
explicitly said would stranglehold noncommercial users in policy  
development.[3]

Why ICANN’s Proposed Silo-Model is Bad for Noncommercial Users

NCUC and civil society made numerous efforts in public statements in  
April to explain why the silo-model of governance being imposed by  
ICANN harms noncommercial interests in the overall GNSO policy  
process.[4]  Yet these concerns remain unanswered by ICANN.

In particular, ICANN’s attempt to divide the GNSO Council and  
Executive Committee seats among arbitrary (and board-selected)  
constituencies within the NCSG encourages competition among  
constituencies, while an entire stakeholder group wide election (as  
proposed by civil society) encourages consensus building and  
cooperation between constituencies to elect NCSG representatives.   
Noncommercial users will be in a constant stranglehold with each  
other, competing for scarce resources and representation, and will  
remain ineffective in the larger GNSO policy negotiations, if the  
ICANN drafted charter is allowed to replace the consensus charter  
drafted by noncommercial users.

Noncommercial users understand well what we are up against in the  
ICANN policy development arena: full-time highly paid lobbyists from  
the wealthiest industries relentlessly lobby the ICANN Board and  
staff for preferential advantages for their companies.  Noncommercial  
users understand that if we are to have any chance of influencing  
ICANN policy it can only happen when we join together and are able to  
work cooperatively toward our shared objectives.  This can be  
accomplished by stakeholder group wide elections, which encourage  
candidates to reach beyond their own constituency for support.  But  
the charter drafted by ICANN to keep noncommercial users accountable  
only to their own focused constituency, rather than the entire  
stakeholder group, will render all noncommercial interests dead on  
arrival in the new GNSO.  That is exactly what the commercial  
constituencies want and why they lobbied the board to change the NCSG  
charter to benefit commercial participants.  (Remember the commercial  
representatives are still angry that noncommercial users are supposed  
to be given parity to commercial actors on the GNSO Council, and this  
is one way of keeping noncommercial users less effective on the  
council).

ICANN's attempt to impose a top-down governance structure on  
noncommercial users against our 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 or unwilling to  
protect the broader public interest against commercial pressures.

Now ICANN should listen to noncommercial users and finally respect  
our democratic wishes regarding a governance structure that advances  
noncommercial interests.  Thus ICANN should seriously reconsider its  
attempt to impose a controlling top-down charter on noncommercial  
users against their expressed will.

Board Gives Commercial Constituencies a VETO Over Any Board Decision  
to Permit Future Constituencies

Amazingly, the Commercial Stakeholder Group Charter[5] that was  
drafted by the 3 existing commercial constituencies and which gives  
each of those 3 constituencies a VETO over any board vote creating a  
new commercial constituency to be represented on the GNSO Council was  
rubber-stamped for approval by the ICANN Board SIC.

In particular see ICANN’s proposed Commercial Stakeholder Group  
Charter:
"4.2. Membership shall also be open to any additional constituency  
recognised by ICANN’s Board under its by-laws, provided that such  
constituency, as determined by the unanimous consent of the  
signatories to this charter, is representative of commercial user  
interests which for the purposes of definition are distinct from and  
exclude registry and prospective registry, registrar, re-seller or  
other domain name supplier interests." (italics added)


If commercial constituencies can veto a decision by the Board of  
Directors, who is running ICANN?

How will giving existing participants a veto to block new  
participants on the GNSO Council encourage new commercial entrants?   
If adopted, the CSG charter will ensure that no new commercial  
perspectives are allowed to take hold in the CSG – only the 3  
existing constituencies can hold all power in the future under the  
CSG charter.

Treatment of Stakeholder Group Charters Shows ICANN Unaccountable to  
Public Interest

Why did ICANN take all decision making authority away from the  
noncommercial users, but give total decision making authority (+ veto  
power) to commercial participants in the draft charters?

The difference in treatment by ICANN between commercial and  
noncommercial users in the charters is astounding -- but points  
solidly to one of ICANN’s biggest flaws: its subordination of the  
public interest to select commercial interests engaged in insider- 
lobbying.

Fixing the SG charters to hold ICANN accountable to the public  
interest and Internet users (instead of only commercial lobbyists)  
would be a good start to addressing the pervasive lack of confidence  
in ICANN’s ability to govern fairly.


Respectfully submitted,


Robin D. Gross
Executive Director
IP Justice
http://www.ipjustice.org

“Is ICANN Accountable to the Global Public Interest?” see: http:// 
bit.ly/34tmz

[1] Public Comments Filed in Comment Period Ending 15 April 2009 on  
Stakeholder Group Charters: http://forum.icann.org/lists/sg-petitions- 
charters/ see also “Is ICANN Accountable to the Global Public  
Interest?” at http://ipjustice.org/ICANN/NCSG/NCUC-ICANN- 
Injustices.html

[2]  Consensus charter for noncommercial users developed by civil  
society and submitted by NCUC: http://gnso.icann.org/en/improvements/ 
ncsg-petition-charter.pdf and its Executive Summary: http:// 
gnso.icann.org/en/improvements/executive-summary-ncsg-proposal.pdf


[3] ICANN drafted NCSG Charter: http://gnso.icann.org/en/improvements/ 
ncsg-proposed-petition-charter-22jun09.pdf and its intended  
“mystery” Section 5 at: http://www.ipjustice.org/ICANN/NCSG/ 
Council_Seat_Vacancies_Section_%285.0%29_DRAFT-1.pdf

[4] For example, see Comment by Adam Peake at http://forum.icann.org/ 
lists/sg-petitions-charters/msg00013.html; Joint Civil Society  
Statement at http://forum.icann.org/lists/sg-petitions-charters/ 
msg00019.html; Comment from Milton Mueller at http://forum.icann.org/ 
lists/sg-petitions-charters/msg00011.html; Comment from WSIS Civil  
Society Internet Governance Caucus at http://forum.icann.org/lists/sg- 
petitions-charters/msg00009.html for just a sampling of the many  
comments making this point.


[5] Proposed Commercial Stakeholder Group Charter (drafted by  
existing constituencies and rubber-stamped by ICANN posted to: http:// 
gnso.icann.org/en/improvements/csg-proposed-petition- 
charter-22jun09.pdf.





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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