who opposes constituencies?

[William Drake]

more FYI

Begin forwarded message:

> From: William Drake <william.drake at graduateinstitute.ch>
> Date: October 19, 2009 8:08:45 PM GMT+02:00
> To: Roberto Gaetano <roberto at icann.org>
> Cc: "'At-Large Worldwide'" <at-large at atlarge-lists.icann.org>,  
> "'ALAC Working List'" <alac at atlarge-lists.icann.org>
> Subject: Re: [At-Large] "placeholder" reps not placeholders?
>
> Hi Roberto,
>
> On Oct 19, 2009, at 6:40 PM, Roberto Gaetano wrote:
>
>> Bill,
>>
>> This is going to be my last message on the subject. Although  
>> interesting, I
>> think that we should continue in Seoul, where in a F2F situation we  
>> will
>> reduce the risk for further miscommunication and misunderstandings.
>
> Agreed
>>
>> A few clarifications:
>>
>>>
>>> "But the main point for the SIC to maintain the concept of
>>> constituency, against the open opposition of NCUC," which
>>> sounded to me like you were saying the main point for the SIC
>>> is to maintain the concept of constituency, against the open
>>> opposition of NCUC.  Sorry for my confusion.
>>
>> The confusion arises, IMHO, from the fact that we use the word
>> "Constituency" to mean different things.
>> I mean "the body that, as is right now, has ïnter alia the right to  
>> have
>> councillors in the GNSO Council". And, unless mistaken, the concept  
>> of
>> constituency as described is not what NCUC wants. And I do believe  
>> that the
>> NCUC has stated this openly.
>
> Right, we suggest no hardwiring, but rather democratic elections  
> (which in most plausible scenarios would yield the same  
> results...unless you green lighted the CP80 censorship constituency,  
> they might have trouble getting broad-based support).  But so do  
> you: you said "the SIC has decided, after long discussion, not to  
> have an automatic link between creation of a constituency and  
> establishment of a seat in the Council."  So by your own definition  
> above, this would mean you've decided constituencies will no longer  
> exist.  But this doesn't fit with you saying that the SIC was  
> struggling to maintain the concept against the opposition of NCUC.   
> How can you be agreeing with our position and at the same time  
> working to overcome our position?   I mean, I like a good oxymoron  
> as much as anybody, but this makes my circuits fizz out.
>
> Anyway, let's chalk it up to miscommunication and move on.
>
>> When you say that NCUC is in favour of "constituencies", you mean  
>> "the
>> bodies that are defined in the NCUC charter as being  
>> constituencies", which,
>> unless I am mistaken, have many rights but not the right of voting
>> councillors.
>> So, one way to progress is to say that that everybody is in favour of
>> "Constituencies", but that we need to come to an agreement to what  
>> will be
>> the exact "powers" of the constituencies.
>
> Agreed.  As far as I can tell, everyone sees the 'powers' fairly  
> similarly, except that NCUC thinks council seats should be filled by  
> elections, SIC thinks the EC should just hash out the allocation of  
> seats (which to us sounds like a recipe for trench warfare), and  
> some in ALAC feel there should be hard wiring.  Hopefully we can  
> have a focused discussion on the relative merits of these approaches  
> and the trajectories/scenarios they may point to in order to move  
> this to another level.
>
>>>
>>> [...]   (BTW, why did SIC ok RySG
>>> eliminating constituencies in their charter?  I never
>>> understood the rationale for not having harmonized structures
>>> across SGs, and it makes the misimpression about NCUC's
>>> charter which explicitly provides for constituencies seem all
>>> the more odd.)
>>
>> I think I have explained this a zillion times, but I can say this  
>> for the
>> zillionth+1 time.
>
> Not to me, sorry
>
>> One of the roles of the constituencies in the initial design of  
>> ICANN was to
>> provide a mechanism to define and register membership. This was  
>> addressing a
>> concern, which was to avoid capture by a group of people who were  
>> joining
>> the process in a category where they were not really qualified to be.
>> During the discussions related to the review, in the consultations  
>> with Ry
>> and Rar we realized that this risk was non-existent for them,  
>> because in the
>> way we had defined the SGs (i.e. as being the "Contracted Parties")  
>> we had
>> an automatic mechanism to sort out the issue: if the organization  
>> has a
>> contract with ICANN, it is in, otherwise it is out. And by virtue  
>> of this,
>> we also had a complete list of the membership.
>> This happened because during the process there was rough consensus  
>> by the
>> community (although I was personally against, having preferred a  
>> "Suppliers"
>> vs. "Consumers" approach) to have the "Contracted" vs. "Non- 
>> Contracted"
>> separation.
>> In the case of the non-contracted parties, we do not have such a  
>> mechanism.
>> Check, for instance, the discussion about the potential individual
>> registrants constituency, where one of the debates is how to sort  
>> out who is
>> a commercial and who is a non-commercial registrant, and how can we  
>> monitor
>> that the status at the moment of the registration is kept over  
>> time. Same
>> issue if we think about a business entity that is also an IP  
>> holder, how we
>> determine who is an internet service provider and who is not, etc.  
>> In simple
>> words, we do not have an easy mechanism to determine who is  
>> qualified and
>> who is not to join a SG. However, we have that for the  
>> constituencies, in
>> the way that constituencies are currently defined and chartered.
>> So, the proposal of the SIC (and the decision by the Board) has  
>> been that we
>> could get rid of the constituencies in the contractual house, but  
>> not in the
>> non-contractual house. You may agree or disagree with the decision,  
>> that has
>> been already taken by the Board and is not on the table for further
>> discussion, but this is the explanation of the rationale for it.
>
> Ok, well thanks
>>
>>
>>>
>>> Entirely separate from the principal of constituencies are two  
>>> issues:
>>>
>>> [...]
>>
>> You make good points here. I am looking forward to discuss these,  
>> among
>> other things, in Seoul. I would like to keep this email short,  
>> addressing
>> just clarifications and potential misunderstandings.
>>
>>
>>>
>>> I didn't characterize the SIC as bad and ugly.  It is
>>> unquestionably true though that the SIC imposed a solution
>>> that was opposed by NCUC's 80 organizational and 87
>>> individual members and a wide array of non- member supporters
>>> and was supported by 3 people.  If you don't like calling
>>> this top down, ok, give me another term for something done by
>>> the board over the strenuous opposition of the community in
>>> question.
>>> I'm not hung up on language, just facts.
>>
>> Quite interestingly, I just read the email from Dominik Filipp, who  
>> agrees
>> with you that the SIC did not follow a bottom-up process.
>> However, what he objects on, is exactly the opposite: for him  
>> constituencies
>> should be not only created and approved, but should have voting  
>> power in the
>> council. The fact is that the bottom-up process is usually defined as
>> "taking the decision that suits me" ;>)
>
>>
>> On a more serious vein, I invite everybody to take a step back and  
>> a deep
>> breath. We started this process years ago, with a council where the  
>> voting
>> ratio between non-commercial and commercial users was 1:3. The BGC  
>> before,
>> and the SIC[K] after the changes in the Board committee structure,  
>> have
>> analysed proposals, discussed with the community (all parts of the
>> community), gathered feedback, proposed a solution, presented the  
>> solution
>> to the different parts, rediscussed over and over again with all  
>> those who
>> were opposing it from different sides, repeated these iterations  
>> several
>> times, and arrived now at the final step where hopefully in a  
>> couple of
>> weeks we will have this historic change, and a GNSO Council where the
>> commercial and non-commercial communities are represented on a base  
>> of
>> parity.
>> In order to achieve this, it was necessary to go through an interim  
>> phase,
>> during which we had transitional charters, giving ourselves time to  
>> think
>> thoroughly the new composition and functioning of the SGs, but in a
>> situation in which we were progressing from the past, and  
>> established as a
>> matter of principle the parity between commercial and non-commercial.
>> I was prepared to hear the grumbling of the commercial users,  
>> noting that
>> they will be less represented than before, but I was incredibly  
>> astonished
>> by the fact that all what I am hearing is the bitching of the  
>> different
>> components of the non-commercial community, fighting bitterly for the
>> control of the additional seats, yelling and screaming at the SIC  
>> from
>> different sides, apparently forgetting completely that it was the  
>> BGC and
>> SIC who recommended in first place to have this new balance.
>
> We all recognize and appreciate the rebalancing, admittedly more in  
> principal than in practice.  But 1) there's been a pretty fair bit  
> of bitching from the CSG too, which inter alia you cited as a reason  
> we ought to just suck it up and go along with the SIC charter, and  
> 2) we're not fighting for control of seats, we're arguing the  
> noncommercial space should be organized in a democratic manner that  
> doesn't lock us in perpetuity into precisely the sort of  
> dysfunctional competition you decry.
>
>> To be honest, if I had the chance to rewind the clock, over my dead  
>> body I
>> would have ever accepted the task to deal with this matter, and  
>> would have
>> much preferred to leave things as they were, raising my arms to show
>> powerlessness, and suggesting to have everybody getting together  
>> and achieve
>> consensus in a real "bottom-up way", and to come back to the Board  
>> when a
>> consensus was found. Anybody has a guess on where we would be now?  
>> My bet is
>> that we would still be with the old GNSO structure, as who likes  
>> the status
>> quo would have prevented any move.
>
> Plenty of angst and frustration to go around, alas.
>
>> The bottom-up process is not a process by which the decision is  
>> taken by the
>> bottom, but a process in which the Board consults the community to  
>> the
>> maximum extent possible, takes idea and proposals from the  
>> community to the
>> maximum extent possible, but then makes a decision that does not  
>> necessarily
>> please everybody.
>>
>>
>>>
>>> Unfortunately, the consultation, negotiation and compromise
>>> didn't really involve NCUC.
>>
>> What?!?
>> In Sydney alone the SIC had two official meetings with NCUC, plus the
>> discussions in the corridors, plus emails before and after. And  
>> even outside
>> the SIC, other Board members were involved. I know that neither you  
>> nor
>> Milton were there, but other NCUC folks, including the Chair, were  
>> there,
>> you can check with them.
>
> I have, but let's not rehash the past at this point.  What matters  
> now is we sit and talk through the question of institutional design  
> in a reasoned and depersonalized manner while bracketing all the  
> other stuff that is not integral to it.
>>
>>
>>> But we can still do that, and
>>> very much look forward to working with you in Seoul and
>>> beyond to arrive at a lasting solution that is supported by
>>> the actually existing NC community.
>>
>> I hope so.
>
> Ditto.  Cheers,
>
> Bill

***********************************************************
William J. Drake
Senior Associate
Centre for International Governance
Graduate Institute of International and
  Development Studies
Geneva, Switzerland
william.drake at graduateinstitute.ch
www.graduateinstitute.ch/cig/drake.html
***********************************************************


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