NCSG Proposal Version 6

[Cheryl Preston]

Dear Robin,

This is the first I or my constituency members have seen of these
revisions.  We had understood we would be included in discussing
revisions and compromise.  We do not have adequate time to respond in
full today.  We will post responses and questions as they are prepared
on the wiki or discussion commons for NCSG Charter proposals on the
ICANN website,
https://st.icann.org/ncsg-commons/index.cgi?non_commercial_stakeholder_group_commons.

Cheryl B. Preston
Edwin M. Thomas
Professor of Law
J. Reuben Clark Law School
Brigham Young University
434 JRCB
Provo, UT 84602
(801) 422-2312
prestonc at lawgate.byu.edu

>>> Robin Gross <robin at IPJUSTICE.ORG> 3/16/2009 1:14:37 pm >>>
Attached is the revised and latest version of the NCSG proposal and
executive summary (based on discussions in and since Mexico City).

Please let me know if there are any suggestions for further
improvements to the proposal by the end of the business day, so it
can be submitted to the ICANN Board by the deadline.

Thank you to all of those who helped provide drafting and comments to

the latest proposal (especially Mary, Carlos, and Brenden).  This has

been a real community effort from a growing team of engaged members.

Thanks again!

All best,
Robin

______________________________________
The NCUC is pleased to submit a proposed charter for the new
Noncommercial Stakeholders Group (NCSG).  This revised proposal
reflects comments received in meetings with the Board Governance
Committee, during a “Users’ House” session and a joint ALAC-NCUC

session at the 34th ICANN Public Meeting, in Mexico City, and in
discussions with ICANN staff as well as among NCUC members.

This cover letter to our proposal provides: (i) an executive summary
of its essential elements; (ii) an explanation on how it advances the

principles and goals of the GNSO Improvements process through the
adoption of innovative approaches to certain problems posed by the
formation of stakeholder groups; and finally (iii) a summary of the
specific changes made in comparison to our previous version of the
NCSG proposal, as submitted to the ICANN Board on February 28, 2009.

1. Essential Elements of the proposal:

Noncommercial stakeholders join the NCSG directly, and the NCSG keeps

track of membership and administers voting for Council seats by the
membership as a whole.
The NCSG is administered by an annually elected Chair and a Policy
Committee. The Policy Committee is composed of the 6 elected GNSO
Councilors and one representative from each Constituency.
There are three classes of membership: 1) large organizations (which
receive 4 votes), small organizations (which receive 2 votes) and
individuals (who receive 1 vote)
Constituencies are created as subunits within the NCSG and its
formation follows some simple procedures, managed by the Policy
Committee, which then submits the petition for formation of a new
Constituency to the ICANN Board´s approval.
We have de-linked Constituency formation from Council seats so that
NCSG participants do not have artificial incentives to fragment into
competing groups, ensuring that a voting system, conducted through
all members of the SG, will result in a better and diverse
representation on the GNSO than any other model that strings the
formation of a Constituency to a seat the Council, favoring
corporatism over democracy.
Constituencies are given special rights to propose Working Groups and

assured that their positions are incorporated into any and all public

comments submitted by the NCSG into the policy development process.

To protect the voice of minorities in the policy process, we require
all NCSG representatives on the GNSO Council to vote in favor of the
formation of a Working Group if it has the support of 1/3 of the
constituencies or 1/5 of the whole membership.

2. How our proposal addresses Principles and Goals of the GNSO
Improvements process:

We would like to explain how this proposal advances the principles
and goals of the GNSO Improvements process. As you know, the Board
has articulated four “vital principles” that are critical to the
GNSO revitalization process. They are:

§       GNSO policy development activities should become more visible

and transparent to a wider range of stakeholders;
§       Reforms should enhance the representativeness of the GNSO
Council and its constituencies;
§       Operational changes should help enhance the GNSO’s ability
to reach consensus on policy positions that enjoy wide support in the

ICANN community; and
§       GNSO stakeholder representation structures need to be
flexible and adaptable.

Our proposal meets these goals better than any of the proposed
alternatives.

Principle 1: Visibility and Transparency.
When noncommercial stakeholders are fragmented into independent
constituencies, each with their own mailing list, administrative
structure and representatives, it is literally impossible for an
ordinary noncommercial organization to keep track of them all.
Noncommercial stakeholders in one constituency would have no idea
what is happening in other constituencies.  Our proposal integrates
all policy deliberation and voting into a unified structure. This
enhances the visibility and transparency of the SG.

Principle 2: Representativeness.
Our proposal enhances representation in several ways.  First, by
adopting a model of flexible and easy-to-form constituencies as
subunits under the NCSG, we allow a far more diverse set of interests

and coalitions to form.  Most important, through unified voting for
GNSO Council seats, our proposal ensures that whoever represents
noncommercial stakeholders on the Council has support across all
constituencies, not just a bare majority of a small subgroup of the
SG.

Principle 3: Consensus.
We believe that the old GNSO constituency structure, which assigns a
specific number of Council seats to specific constituencies, is
inimical to the formation of consensus.  That approach encourages
small subgroups to break away and form their “own” constituencies

in order to gain a guaranteed Council seat.  Once a constituency
controls specific Council seats/votes, they have little incentive to
seek support from other Council members for their views or their
representatives.  We already have evidence from this; we note that
none of the “new constituencies” currently being proposed for the

Noncommercial Stakeholders actually represent newcomers to the ICANN
space.  All of them are existing members of NCUC or RALOs who wish to

gain seats on the Council without having to win an election among a
large number of other noncommercial entities and individuals.

Our proposal understands that policy development in the new GNSO will

not come from a Council acting as a legislator, but from consensus-
based Working Groups. Therefore, we allow relatively small minorities

of the NCSG to bind our Council representatives to support the
formation of a Working Group.  Once a Working Group is formed, its
proponents will have to convince many other stakeholders to agree on
a common policy. We think there should be a low threshold for the
formation of a WG, so that anyone can have a chance to convince the
rest of the GNSO of the need for a policy.

Principle 4: Flexibility and Adaptability.
The old constituency model is broken.  It rigidly assigns Council
seats and representation to categories of users that are constantly
changing, categories that may overlap in numerous ways.  Dividing the

world up into mutually exclusive categories known as
“constituencies” is always bound to exclude some people who
don’t fit the categories, and at the same time over-represent
entities who qualify for two or three of the categories.  By
detaching Constituencies from Council seats, our proposal can make
constituencies much more flexible and lightweight.  We make
constituencies more like intra-Stakeholder Group working groups –
easier to form and not mutually exclusive.  NCSG members can join
multiple constituencies, and constituencies can form and disband more

easily without disrupting the entire representational structure of
the NCSG.
Under the old model, once a constituency is formed, there is a strong

danger that it can be captured or controlled by a small group,
especially as membership and participation declines.  The NCSG
charter proposed here solves this problem by situating constituencies

in a large NCSG membership that cannot be easily captured, as
addressed in the item below.

3. Changes made to the previous (2/28/9) version of the proposal:

Dealing with “Threat” of Capture.

A central concern is the ability of special interests or a discrete
group to gain a majority of GNSO Councilor seats in the reformed
GNSO.  Comments suggested that existing participants within the NCUC
might have special advantage, or the proposed structure might be
subject to “gaming,” specifically capture of Councilor seats by a

simple majority.

To the first point, the current NCUC will dissolve completely when
the charter goes into effect.  Existing individual and organizational

members will be free to form new constituencies and participate in
elections according to the charter rules.  They are not privileged in

any manner, having the same rights as any new members that chose to
join the Stakeholder Group.  The various interests among NCUC members

are extremely diverse, perhaps the most varied of all SG’s, and are

difficult to capture by a single viewpoint, given the breadth of
noncommercial interests.

To the second point, the threat of “gaming” exists under any
proposed structure.  It should be recognized that concerns about some

coordinated push to “capture” the Noncommercial Constituency have

been made since 1999.  However, there is no factual basis to suggest
this has occurred.  Instead, and as the Board realized in reviewing
the BGC recommendations, the issue has always been under-
representation of noncommercial interests.  It has always been the
case for noncommercial interests that there are not enough people
willing and able to get deeply involved and do the work required to
participate effectively in the GNSO.  Despite this ongoing
difficulty, NCUC’s membership has increased by more than 40% within

the last six months, partially due to the membership being opened for

individuals to join.

Nonetheless, in response to this perceived threat of capture, we have

extended the minimum voting eligibility period for new Members to 90
days (Section 3.4.3).  Such an adjustment should allow opportunity
for countervailing interests to form, preventing the flooding of new
members’ right before an election with the specific purpose of
winning it, without any actual engagement of such members in the
discussions and activities pertaining to the Stakeholders Group.

The current constituency-based model actually aggravates problems of
capture because it potentially institutionalizes special interests.
Once a constituency has formed and been allocated seats, there is no
reasonable mechanism to remove a constituency’s representatives from

the Council, no matter how the broader membership base may change.
We partially address this concern by now requiring final approval of
Constituencies by the ICANN Board (Section 2.3.1).

Dealing with the demand for diversity in representation on the GNSO
Council:

Attempting to categorize individuals and organizations according to
constituencies is inimical to growing diverse participation in the
stakeholder group.  A constituency-based model of allocating seats is

neither flexible nor adaptable to a growing noncommercial membership.


In this regard, the discussions in which we engaged during the Mexico

meeting featured a wide range of comments on the issue of
representation, and providing adequate solutions for a long-term
perspective, as well as creating complex voting methods that would
end up decreasing the broader representation we seek.


One approach suggested that an interim system in which each
Constituency would be granted an automatic seat at the GNSO Council
could be created as long as no more than six Constituencies exist
within the NCSG structure.  This suggestion not only fails to provide

a long-term solution for the issue, it also creates artificial
incentives for the formation of groups that have little concern for
the wider range of the membership who the NCSG Council must serve.


The outcome of an interim decision like that would encourage the
election of NCSG Councilors who have little or no incentive to reach
out to other views and constituencies that naturally constitute the
non-commercial interest in ICANN.


The other proposal ties up non-commercial energy and resources with
in-fighting between competing constituencies and dispute mechanisms.

It presents complex systems for voting and/or for the allocation of
members inside the specter of six forced Constituencies.  And its
voting mechanism seems to create a difficult method for measuring the

will of the members that integrate the NCSG.


There have been even some suggestions for fragmented voting.  We deem

that no other system is simpler and direct than allowing each member
to vote and that representation results from the election of the ones

to whom the majority of votes has been casted.


In short, the other NCSG proposal allocates GNSO Council seats by
constituencies competing with one another, while our proposal
allocates Council seats via constituencies cooperating with one
another to find a consensus.


The recently submitted charters of the Registries and Registrars
provide for GNSO Councilors to be elected by Stakeholder Group-wide
membership rather than individual constituencies.  In this matter,
each of these charters (ours, the Registries, and the Registrars)
seem to present the same solution for the issue of representation.

The reason for this in the non-commercial stakeholder group is
simple: There are no concentrated benefits for noncommercial
participants to counter their costs of participating in a global
policy making institution.  A simple solution to this is to lower
structural barriers to participation, as the NCSG charter does by
providing for direct representation and easy participation within
constituencies.

Our proposed NCSG Charter tackles the issue of representation, avoids

interim suggestions, and puts forth a system that allows the broadest

and most democratic representation of noncommercial interests.

Conclusion

Although it has transformed significantly along the way, our proposal

is not new.  We have been working on this charter since June of 2008,

and have entered into extensive consultations with ICANN staff
members, ALAC, At Large representatives, board members, and our own
constituency members on its development.  We feel that much has been
improved to guarantee diversity in representation, to secure a space
for minority views to be heard, and to address the concern over
capture.

We thank ICANN for allowing us an opportunity to provide this revised

proposal that reflects the comments and suggestions received from all

interested parties who have joined in the effort to present the best
charter possible for the NCSG structure, built upon consensus and the

principles that guide the GNSO Improvements process.  We stand ready
to continue to work with the ICANN community to improve this NCSG
proposal eve  further.

Best regards,

Robin Gross,
Chair, Noncommercial Users Constituency