Re: [bc-gnso] M O'Connor: Revised BC Charter - discussion and vote

[George Kirikos <icann@xxxxxxxx>]

Hello,

On Tue, Sep 1, 2009 at 8:41 PM, Mike O'Connor<mike@xxxxxxxxxx> wrote:
> i have taken a run at a red-line that purely reflects my personal views,
> although i'm drawing on a number of experiences as a member of the
> Credentials Committee.  you'll see that my main interest tends to run toward
> due-process although i've included a few other changes that i absorbed over
> time.
>
> feel free to comment/revise/improve.

I agree with many of the concerns raised by Mike O'Connor in his
annotated and edited version of the draft charter.

It might be best to start from scratch from a more solid foundation,
for example the City Top-Level Domain Constituency application had a
good start, using the template provided by ICANN staff.

http://gnso.icann.org/files/gnso/en/improvements/ctldc-petition-charter-redacted-01jun09.pdf

I think if we started from that (with tweaks), we would end up in a
better place than starting from the current draft presented earlier
this week.

I was planning the series of "bite-sized" posts on all that's wrong
with the current draft charter, but in light of Mike O'Connors massive
number of changes (and instead of creating a revised version of a
revised version), I'll simply list the 32 areas of concern I had
below.

Warning, long list ahead:

1. Change in the membership criteria so that domain parking is
considered illegitimate, see line 3.1 and compare to section 3 of the
existing charter:

"active development of content, communications and commerce on their web sites"

Notice the words "active development of content", vs. the existing
words "conduct business". Existing members like NameAdministration,
Parked.com, Mike O'Connor, the entire ICA, etc might be affected. Even
folks with live websites might be ensnared by this language, as who
decides how much development constitutes "active" vs.
"static/passive"?

You'll note there are no prohibitions against groups whose
primary mission is IP-related, for example, and who properly belong in
the IP constituency, from joining the BC.

2. Credentials committee (section 3.4.1) is now "up to three members"
whereas before it was "at least three paid-up members". And they're
all still appointed.

3. Credentials committee (3.4.2) "A review may be done upon request by
any member at the discretion of the Executive Committee. A review is
not limited to but may be indicated when:" Before, it took at least
two paid up members to complain, with much higher standards (3.6 of
old charter). Now' it's discretionary, and allows a review on
any basis (i.e. "not limited to").

4. 3.4.2 says you're subject to discipline/review if "a member takes
action, beyond mere internal communication, that contravenes an
adopted position of the Constituency and thus would seem to be
pursuing interests that may not be aligned with the Constituency;"
Obviously that's ridiculous, that means every member (not just
officers) has to agree with the constituency positions!

5. 3.4.2 "a member by their action leads directly or indirectly to
another member resigning from the Constituency;" This is suggesting
that members who resign suddenly have "standing" to make a dispute, a
dispute they should have brought when they were a member. Obviously a
no-go.

6. "a member acts as a spokesperson for another organisation whose
interests may not be aligned with the Constituency;" That would seem
to target a lot of people in this constituency, hmmm. It would also
give rise to the Officers being able to point to one as not being
aligned with the Constituency, when one really simply differs on
policy matters. Or, the Officers might think *they* are the
constituency, i.e. if your interests are not aligned with the
officers, then you are obviously someone who should be rooted out.

7. 4.2: Still no elected Treasurer or elected Secretary.

8. 4.2: "when present in whole or in part at a physical ICANN meeting
issue statements on behalf of the Constituency, so long as they are
not in contradiction to existing BC Positions;"

This means the officers can now issue statements without votes, e.g.
just like the IRT, as long as it doesn't contradict existing
statements. That gives them much greater latitude to say anything they
personally want, without the support of the entire membership and
without votes.

9. 4.2. "select, and oversee the work of, a Secretariat;" Once again, this
keeps the appointed secretariat, without competition or attempts to
manage affairs efficiently and economically, instead of having an
accountable and elected Secretary

10. 4.6. "To be eligible to stand as Chair or a Vice Chair the
candidate must have been a member of the Constituency for at least the
immediately preceding 12 months."  This helps maintain dominance of
incumbents, discouraging able and qualified newcomers.

11. 4.7. Finance committee is appointed, unelected, and unaccountable
(no vote on a budget, members can't ask to see the general ledger,
etc.).

a) "up to 3 members" (and all appointed)
b) "adopting the annual budget including the level of fees, as drafted
by the Secretariat " Why should the Secretariat be drafting the
budget, instead of putting out the duties for tender?
c) "establishing a reserve equivalent to one year’s operating costs"
This ensures that there's a perpetual balance held by the Secretariat,
that is never returned to the constituency members. It's like free
money, that is never going to be used or repaid. It should be held at
least
in an account held by ICANN, not by the Secretariat himself.
d) "delegating to the Secretariat the day to day management of
expenditure items within the budget" Basically no oversight, letting
the secretariat manage all the spending.

12. 4.8 spells out the "duties" of the Secretariat, lol. The expanded
 list went from the 4 items listed on 4.3 of the current charter, to now
list 12 tasks. Of course, this is basically trying to expand the list
to counter my posting at:

http://forum.icann.org/lists/bc-gnso/msg00314.html

which documented that the role of Secretariat is clerical in nature,
and doesn't take tens of thousands of Euros to do, on a "part-time"
basis. It
could be done for minimal cost, or even zero.

13. 5.2: elections (and votes) still handled by the Secretariat,
rather than using a neutral platform like BigPulse.com, or open voting
as in workgroups

14. 6.1. " From time to time the Executive Committee on the advice of
the Vice Chair for policy coordination shall appoint members as issue
managers, hereafter referred to as Rapporteurs, to develop positions
on relevant issues. " In other words, the EC controls who is rapporteur
for an issue, via appointment, so we'll likely never see the ICA be
rapporteur on the IRT, for example!

15. It's now more difficult to compel a vote on issues. Section 7.3
now reads as "If there are at least 15% of members who oppose a
position".....this compares to 3 in the current charter 7.3 which
REQUIRES a vote.

16. Related to #15, section 7.4 boosts the standard to require a vote
from the current 10% of paid up members (which was achieved in the IRT
debate), to "a split in the Constituency of more than 25% of the
number of members". Thus, we'll almost never get votes on issues when
there are divisions.

17. Section 7.5 is obviously ridiculous "When a member declares
themselves as a Constituency member, they shall remain faithful to
approved positions. " The new language removed the words "speaking in
the capacity of". One can be a constituency member, but openly
disagree with the positions, as long as one isn't speaking on behalf
of the entire
constituency.

18. 8.2.4 is against transparency and pro-censorship "content which is
internal but sent to the publically-archived open list intended for
policy discussion" This ensures that the budget is always kept secret,
or that debates about other matters deemed "sensititve" are kept off
the public mailing list.

19. 8.2.4 "content which makes personal allegations, or speculates on
personal motives" Notice that truth itself is not a defence against
breaking this rule of false "civility." If a person does have a
conflict of interest, you can't allege it, as it's "personal".
Contrast this to how Mike Rodenbaugh questioned Dirk's "context" or
how Philip Sheppard questioned mine. More speech leads to the truth,
not less. This charter shouldn't be drafted to discourage speech,
especially true and honest speech.

20. 8.2.4 "content about BC employees or contractors" All hail the
Supremo Secretariat! Thou shalt not question their authority or
discuss them in any way! Even if it's fair comment.

21. "content which infringes the intellectual property or privacy of
third parties including members or past members or their
representatives"  This is very subjective, and "truth" should be an
absolute defence to anything related to free speech.

22. "content which is repetitive or goes beyond relevant information
or is overly lengthy" Subjective, no word limit. One could use:

http://www.wordcounttool.com/

to impose a hard limit. Contrast that with long posts the officers
make on other lists, e.g.

http://gnso.icann.org/mailing-lists/archives/council/msg07217.html
http://gnso.icann.org/mailing-lists/archives/council/msg07229.html

Notice those are personal opinions, not voted upon by the
Constituency. Create a word limit, that everyone is obliged to follow.
Or, better, yet, enforce a standard format of posts, where each post
has an "Executive Summary" at the top, so that the gist of the message
can be obtained in a few lines, and people can delve into the
micro-level details at their own discretion.

23. "posting of more messages than is proportionate to the issue or
the responses from other members thus overburdening others with one
particular point of view: typically this may be more than one posting
a day from a member or ten a month. This limit does not apply to the
forwarding of ICANN informational e-mails or communications from the
Executive Committee on BC business."

In other words, Officers can post as much as they want, but members are
limited to 10 posts a months! And 1 per day. Basically, the BC list
will be a deadzone, no real debates. Contrast that with healthy lists
like the NCUC, which had 217 messages just in August alone.

http://listserv.syr.edu/scripts/wa.exe?A1=ind0908&L=ncuc-discuss&F=&S=&O=D&H=0&D=0&T=0

Just for the record, my posting at present is 4 per week, on average,
since the list has gone public. People that can't manage their
incoming email at such a low level should remove themselves from the
constituency. Alternatively, one could create a "digest list" which is
weekly, low traffic, and only contains summaries of the week's events,
instead of compelling inactive members from reading the main list.

24. 8.2.6 -- return of the secret "internal mailing list" in order to
engage in censorship of the BC budget, discipline, and other sensitive
debates. We obviously voted against that, and for transparency
instead.

25. The actual link to the "Respectful Online Communications" document
of ICANN (which prefers "civility" instead of honest speech) is at
http://www.icann.org/ombudsman/respectful-communication.pdf (not at
the link at Section 9. See prior discussion on ALAC at:

http://atlarge-lists.icann.org/pipermail/at-large_atlarge-lists.icann.org/2009q2/005518.html
http://atlarge-lists.icann.org/pipermail/at-large_atlarge-lists.icann.org/2009q2/005526.html
http://atlarge-lists.icann.org/pipermail/at-large_atlarge-lists.icann.org/2009q2/005528.html
http://atlarge-lists.icann.org/pipermail/at-large_atlarge-lists.icann.org/2009q2/005522.html

26. 9.8 "Refrain from filing any legal actions against the
Constituency." Unenforceable, people should act responsibly and they
won't get sued.

27. "11. Any disputes under this Charter will be decided upon by the
Executive Committee whose decision will be final. " No appeal
mechanism, all hail our illustrious leaders!

28. Section 12: "Category 3" members are still decided based on
revenues, instead of the more proper metric of number of employees.
Most real definitions of small businesses are 300 or less employees,
or 100 or less employees.

Alternatively, membership levels, votes, and fees could be set by the
number of domains registered by the organization, e.g.:

1 vote: 0 to 10 domains
2 votes: 11 to 100 domains
3 votes: 101 to 1000 domains
4 votes: 1,001 to 10,000 domains
5 votes: 10,001 to 100,000 domains
6 votes: 100,001 to 1 million domains
7 votes: 1 million+ domains (no private companies own this many, yet)

(and for proper disclosure, my company would end up with 3 votes with
just over 500 domains, so this would put me in the middle under the
above logarithmic scale; many others would end up at 5, or even 6
votes)

Trade associations could be tossed somewhere in the middle, perhaps
based on number of companies they represent or another metric (one
couldn't just add up the domains of their members, as their members
don't really often have direct input in debates, and often companies
are in multiple trade associations, or in a trade association AND a BC
member, etc.).

29. "No refund of membership fees will be given to a member resigning
of their own volition. A pro-rata refund will be provided to a member
removed by disciplinary action subject to the member supplying the
Secretariat with banking information within 30 days of their
removal."This document spent a lot of time thinking about disciplining
people. It spent little time on due process, i.e. protecting ordinary
members from the capricious actions of the officers. Power and rights
belong to the ordinary members, to protect them from abuse of power by
"kings." History has taught us that's who needs protection the most,
ordinary citizens.

30. Section 14. "This Charter may be amended from time to time.
Proposals for amendment that are not supported by the Executive
Committee require a proposer and expressions of support from 25% of
paid-up members." This means that the Executive have lower standards
for pushing through changes than anyone else.

31. Section 15: "All articles of this revised Charter shall take
effect immediately following an affirmative vote of the Constituency."
In other words, even if the Charter hasn't been approved by ICANN's
Board, which does need to approve the charter, they'll act on it
anyhow.

32. Section 4.2 doesn't prevent the "council members" from being
selected from the "Chair" or "Vice-chairs", thus instead of having 5
or 6 members in the executive committee, it might only be 3, like
today. Better to spread the power and workload around a bit more, and
deepen the "bench" of talent serving the constituency.

As I said above, it's probably best to start from scratch with another
constituency's charter as the template, rather than try to keep
modifying this one.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/