NCUC Comment on NCSG Charter

[Robin Gross]

Attached and below are NCUC's comments on the NCSG Charter.

Big thanks to Mary for doing the lion's share of the drafting of this  
document!

Best,
Robin

________________________

NCUC Comments on the Proposed NCSG Charter

23 July 2009

The Non-Commercial Users Constituency (NCUC) welcomes this  
opportunity to
comment on the various Stakeholder Group (SG) charters that have been  
put
up for consideration and community discussion.  Nonetheless, NCUC is
compelled to state in the strongest possible terms that the current  
ICANN
drafted NCSG Charter, as made available for public comment, does not in
any way represent the consensus and support of 86 noncommercial
organizations and individuals for the original civil society drafted  
NCSG
Charter proposed by NCUC (V-NCUC ).  Although NCUC recognizes that ICANN
Staff and the SIC were directed by the Board to revise most of the
submitted Charters, we are dismayed by what appears to be, in this  
matter,
a near-complete disregard for democratic principles and exactly the kind
of bottom-up consensus-building explicitly endorsed elsewhere by ICANN.

NCUC’s specific comments on the draft NCSG Charter, as currently  
proposed
by the SIC and ICANN Staff (S-NCSG)  follows.

(1) Timing & Lack of Explanation for S-NCSG being a Substantially
Different Document from V-NCUC

         Despite the requirement in the Board’s May resolution  that  
an
Explanatory Memorandum be posted alongside the revised Charters, none  
was
provided to explain why civil society’s charter had been re-written by
ICANN and replaced with the governance model noncommercial organizations
unanimously said would stifle noncommercial interests in the GNSO.
Further, the S-NCSG document was only provided to NCUC during the Sydney
meeting (on 22 June 2009), leaving little (if any) time for any
meaningful substantive discussion of the changes before our meeting with
SIC moments later.  While NCUC is grateful to the SIC for meeting  
with us
during the Sydney meeting, the timing of the release of S-NCSG made it
practically impossible to discuss fully the scope and implications of
S-NCSG and to respond while stunned.

         In view of the fact that V-NCUC was supported by 55 non- 
governmental
organizations (NGOs) and civil society groups, and 31 individuals   
during
the April 2009 Public Comment Period, many NCUC members were upset to
find that S-NCSG differs in many significant respects from V-NCUC, in
particular it’s attempt to impose precisely the constituency based
(“silo”) governance model that civil society said it did not  
want.  The
lack of explanation for these changes, and the late release of S-NCSG,
can be interpreted by many, both within and outside the ICANN
environment, as a slap in the face of non-commercial users and civil
society.  This is particularly frustrating, given the fact that, in
response to the Board’s GNSO Improvements Report and related  
Resolutions,
that NCUC has dramatically increased its outreach efforts (with no staff
support) and increased its membership, both individual and nonprofit
organizations, by over 191% in the last year.

         Moreover, the main grounds of objection to V-NCUC raised by  
those opposed
to it can readily be refuted. Specifically, these grounds were (i) that
NCUC was too small and insufficiently diverse, and needed to expand
significantly (including representation of individuals and consumers);
and (ii) that the V-NCUC model means Council seats would be susceptible
to “capture” by a bloc of like-minded members, thus hindering true
representation.  On the first, we wish to highlight again the
demonstrated growth of NCUC over the last year (including, particularly,
members who are individuals and pro-consumer organizations), a trend  
that
shows no sign of slowing.  NCUC welcomes any other stakeholder group to
show members in 45 different countries.  On the second, we note that
while S-NCSG (the version posted to ICANN’s website without Section 5)
does not currently specify how Council seats are to be allocated after
the two-year transitional period, it does, however, envision a major  
role
for the NCSG Executive Committee (EC) in this matter .  S-NCSG thus does
nothing to address the potential “capture” problem that all  
stakeholder
groups face .

         As such, NCUC calls on the Board to reinstate the consensus  
charter
submitted by NCUC and to provide an immediate public explanation for why
V-NCUC was discarded and S-NCSG proposed, particularly in light of the
demonstrated overwhelmingly strong bottom-up consensus support for V- 
NCUC
and opposition against the model proposed in S-NCSG.

         Our comments on specific portions of S-NCSG follow, below.

(2) The Constituency Model within a Stakeholder Group Framework

         The Board’s GNSO Improvements Report envisaged a  
Stakeholder Group (SG)
framework for the GNSO Council, within which structure new  
Constituencies
may self-form in a bottom-up process, to be approved by the Board.  What
was not clear however, was the relationship between the various
Constituencies and the SGs.  V-NCUC was developed in the context of this
uncertainty, and over a period of several months between the latter half
of 2008 and February 2009, through multiple discussions both within and
outside the existing NCUC, including with members of the At-Large
communities, ICANN Board and Staff, and potential new Constituencies.

         In discussions with ICANN surrounding the March meeting in  
Mexico, NCUC
specifically asked ICANN if the stakeholder group wide election model it
was proposing was inconsistent with the Board Governance Committee’s
report; and we told the model was not inconsistent.

          V-NCUC proposed a light, flexible SG model in which  
Constituencies
(subject to their formation being approved by the Board) could form and
dissolve freely, and in which Council seats were voted on by the full SG
membership and not tied to particular Constituencies.  From S-NCSG, it
seems clear that this is not the model that SIC will permit for
noncommercial users, although it is permitted for 2 other stakeholder
groups (Registries and Registrars).

There is no legitimate reason for ICANN to treat noncommercial users as
second-class citizens to those in other SG’s and deny noncommercial  
users
representation unless they first decipher the ICANN matrix and decide
which constituency best represents them and they manage to  
successfully go
through the process of joining the constituency before they can join the
SG.  Noncommercial users should have the same voting rights as  
members of
other stakeholder groups and not increased barriers to participation as
proposed by ICANN.  Different representation rights between stakeholders
written into their charters is unfair to noncommercial users.

         NCUC believes that ICANN’s proposed constituency model is  
flawed for at
least three (3) reasons: (i) it creates potential “bloat” and  
tensions
within what is intended to be a light SG framework; (ii) it fosters a
tendency for members to cluster around particular, potentially  
divisive ,
issues; and (iii) it requires potential new members to decide whether
there is an existing Constituency they wish to join or (a more
intimidating proposition) try to figure out ICANN’s complexities so as
form a new, approved Constituency prior to getting involved with ICANN.
It seems to us that these problems, especially the last, would tend to
both diminish the effectiveness of ICANN’s bottom-up consensus- 
building
process and, perhaps more importantly, discourage new participants in
ICANN.

         As such, NCUC calls on the Board to allow noncommercial  
users to elect
their GNSO Council and other representatives on a stakeholder group wide
basis and to permit noncommercial users to participate within the NCSG
before deciding which constituency to join.

  (3) The Possibility of Board Amendments to the NCSG Charter

         In Section 6, S-NCSG provides that the Board may modify the  
Charter or
add provisions to it if, inter alia, “where it believes that changes
and/or additions are in the interests of improving fairness, openness,
transparency, or accountability within the GNSO’s processes and
structures; or where it comes to believe that changes shall produce
desirable benefits to the ICANN stakeholder community”. This  
language is
extremely broad and does not reflect the existence of actual “bottom- 
up”
processes as ICANN claims.  Furthermore this provision does not exist in
any of the other proposed SG Charters.  It was imposed upon  
noncommercial
users singularly, without any prior discussion or notification, and
without any explanation for its inclusion.

         As such, NCUC calls on the Board to remove this provision  
giving top-down
control over noncommercial users to the Board, or, failing that, to
insert an equivalent provision in the other SG Charters.

(4) Election of Councilors

         Since the 2008 Report from the Working Group on GNSO Council
Restructuring, it has been recognized that NCSG and CSG should have
parity in terms of the number of GNSO Council seats in the new bicameral
House structure, with the result that noncommercial users will have more
than its current 3 Council seats.  Noncommercial users having parity  
with
commercial users on the GNSO Council was also recommended by a Board
commissioned report from the London School of Economics on GNSO
restructuring in 2006 .  Despite subsequent efforts by some GNSO
community members to go back on this consensus, the draft new Bylaws
currently before the Board clearly accept this principle of parity
between the two SGs in the Non-Contracted Party “User House”.   
Even so,
and presumably in response to the perception that in the new structure
the CSG will have “lost” three (3) Council seats and the NCSG will  
have
“gained” three (3) seats, the community is now being asked to  
endorse a
transitional arrangement whereby the additional three (3) NCSG seats  
will
be occupied temporarily by Board appointees for the first two (2) years
of the new structure .  The board taking away elected representation  
from
noncommercial users and replacing it with “appointments”, up for
political lobbying by commercial parties is inappropriate, undemocratic,
and undermines ICANN’s efforts to obtain legitimacy in the governance
business.

         NCUC recognizes the fact that new Constituencies are an  
important means
of reflecting diversity.  We have stated publicly, many times, that we
welcome new voices and participants.  As such, and even though NCUC
believes that it would have easily found new and diverse representatives
to elect to fill the three (3) seats in question (particularly given its
unprecedented and recent membership growth), it has expressed to the SIC
its willingness to recommend to the Board appropriate appointees to
represent noncommercial interests.

Nonetheless, given the high levels of support for V-NCUC and the  
increased
NCUC membership, NCUC calls on the Board to acknowledge that  
increased and
new non-commercial voices and participants are emerging in NCUC and thus
ICANN.  This recognition is critical for NCUC and NCSG as the new GNSO
structure is implemented, and will go some way towards preventing
stalemates, stalling and other wastes of precious volunteer time as each
SG transitions into its final state.

(5) The Role of the EC

         As mentioned above, S-NCSG seems to leave a great deal of  
discretion
regarding the allocation of Council seats to the EC. In particular,
Section 3.2.4 states that, subject to the as-yet-unconfirmed Section  
5.1,
the EC “may, if it is able to achieve unanimity, apportion vacant GNSO
Council seats among its Constituency Members in any way that satisfies
their needs and interests” (emphasis added). This language is both
puzzling and vague, as besides granting discretion to the EC rather than
hold a SG-wide election, the word “apportion” implies that in such  
cases
the EC should divide up the vacant seat(s) amongst the-then number of
so-called unrepresented Constituencies.  For reasons that NCUC and other
commentators have pointed out previously, a system which links Council
seats to specific Constituencies is likely to be both divisive and
unworkable .

         S-NCSG also contains a transitional Appendix (in Section 8)  
in place of
Section 5, to deal with the question of Council seats.  While NCUC
understands that the SIC and ICANN Staff will work with it to create a
workable and fair process to be embodied in the final version of Section
5, NCUC also believes that approving S-NCSG with the blank space
currently earmarked for Section 5 but with Sections 3.2.4 and 2.1.2.3
(which also refers to Section 5.1) would be unwise and potentially
problematic.

         As such, NCUC calls on the Board to require the SIC and  
ICANN Staff to
work with NCUC to come up with satisfactory language to address the  
issue
of Council elections and seat allocations after the two-year  
transitional
period.

CONCLUDING REMARKS

         At this point, NCUC and the individuals and civil society  
groups that
supported V-NCUC cannot support S-NCSG, drafted by ICANN in defiance to
the expressed wishes of noncommercial users.

As ICANN’s operations and processes come under increased scrutiny by
governments, international organizations and users across the globe, to
see if they truly fulfill ICANN’s promise of open, accountable,
transparent and bottom-up policy development, it is crucial that the  
Board
demonstrate that it is willing and able to address the expressed  
concerns
of non-commercial users.

NCUC and its existing members have fulfilled, and will continue to
fulfill, the Board Governance Committee’s call to broaden its  
membership
numbers, base and diversity.  We undertook the long and difficult  
process
of negotiating and drafting the submitted consensus charter (V-NCUC)  
with
the express commitment, which we acted on, to consult with other members
and groups of the ICANN community.

The non-commercial users and interests that we represent, and which we
believe the Board will wish to continue to participate actively in the
restructured GNSO, are entitled to be listened to about the governance
model that best advances noncommercial interests, and certainly not be
treated with less deference and respect than other stakeholder groups in
the charters.  We call on ICANN to re-instate V-NCUC as the starting  
point
for NCSG charter discussions and respect the democratic will of
noncommercial users.

_______________________________

Footnotes:

   In order to avoid confusion, the original Charter submitted by  
NCUC in
March 2009 will be referred to hereinafter as “V-NCUC” (to use the
abbreviation coined by ICANN Senior Policy Director Robert Hoggarth, in
his Summary-Analysis of Comments in Public Forum – New GNSO  
Stakeholder
Group Petitions & Charters, posted to the public forum for that comment
process on 2 May 2009).  The V-NCUC consensus charter submitted by NCUC
is available at:
http://gnso.icann.org/en/improvements/ncsg-petition-charter.pdf

   “S-NCSG” the ICANN drafted NCSG charter is available at:
http://gnso.icann.org/en/improvements/ncsg-proposed-petition- 
charter-22jun09.pdf

   Board Resolution 2009-05-21-13.

   This figure does not include the various other individuals who  
submitted
public comments separately in favor of V-NCUC.

   As of 23 July 2009, NCUC has 131 members in 45 countries,  
representing a
broad swath of educational, research, consumer and other non-commercial
interests.  NCUC’s membership currently comprises 71 noncommercial
organizations and 60 individuals.  This figure represents a 191%
increase in membership since 2008 when NCUC’s membership was 45.

   See Section 2.1.2.3 and Section 3.2.4, referring to a currently blank
Section 5.1 (but outlined in a different document available at:
http://www.ipjustice.org/ICANN/NCSG/Council_Seat_Vacancies_Section_% 
285.0%29_DRAFT-1.pdf.

   See page __, below, for further comments on the role of the EC.  In
addition, NCUC continues to believe that, with its current growth and
the expectation that the Board will approve new Constituencies, the
problem of “capture” is an illusory one: see, e.g., the public  
comments
filed by Dr. Milton Mueller in response to the initial draft Charters,
dated 14 April 2009
(http://forum.icann.org/lists/sg-petitions-charters/msg00011.html).
   Given that NCUC currently does and, in the future, NCSG will  
represent
the “full range” of non-commercial users and entities of the  
Internet,
it is extremely likely that such divisiveness will occur.
   2006 Report from the London School of Economics available at:
http://www.icann.org/en/announcements/gnso-review-report-sep06.pdf

   See Section 8.1, S-NCSG.

   See, e.g. public comments submitted in response to the earlier  
round of
petitions regarding SG charters by Dr Milton Mueller, dated 14 April
2009 (http://forum.icann.org/lists/sg-petitions-charters/msg00011.html)
and Adam Peake, dated 16 April 2009
(http://forum.icann.org/lists/sg-petitions-charters/msg00013.html).

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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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