RE: [bc-gnso] Ballot for a new BC Charter

[Phil Corwin <pcorwin@xxxxxxxxxxxxxxxxxx>]

The ICA is concerned that BC members are being asked to vote within one week 
upon a very modestly revised proposed charter that has just been made available 
for review.

However, without substantial further change the potential of proposed Section 
3.4.2 to stifle free speech and the ability of individual BC members to pursue 
and protect their interests where they have a legitimate disagreement with a BC 
position on an ICANN policy issue is unacceptable and would require that we 
cast a vote against the Charter. Based upon comments made during the 
Constituency call to discuss the proposed Charter we expected to see far more 
sweeping changes to this Section than have been made. While members of trade 
and other professional organizations sometimes voluntarily resign from an 
organization when it takes a position that is unacceptable to them it is highly 
unusual to have members threatened with involuntary expulsion when they 
disagree with an organization's position on a given issue and pursue their own 
interests independently. If a conscientious effort is made to enforce this 
provision it will likely result in either a substantial diminution of BC 
members or a push toward vague and mushy positions on key policy issues. If any 
provision like this remains in the Charter we would advocate setting the bar 
for adopting positions on Policy issues at a much higher threshold than 51% of 
a 50% of total votes quorum, since that would allow for adoption of a Policy 
position by a mere 26% of total BC votes yet would subject members to potential 
discipline or expulsion for public disagreement with the adopted policy 
position.

I have set forth some specific questions regarding the provisions of Section 
3.4.2 below.


3.4.2 Review

Membership may be reviewed by the Credentials Committee at any time, if there 
is a change in the circumstances of the member that may impact on its 
qualification for membership or if the member engages in inappropriate 
behaviour. A review may be done upon request by any member at the discretion of 
the Executive Committee. A review must include a thorough examination and may 
include a review of supporting documentation. A review is not limited to but 
may be indicated when:

*

a member takes action, beyond mere internal communication of dissent, that 
contravenes an adopted position of the Constituency and thus would be pursuing 
interests that may not be aligned with the Constituency; What is "mere internal 
communication of dissent"? Does this term solely cover dissent voiced within 
the confines of the BC or does it allow for communication of dissent within 
internal ICANN processes (which, by its nature, whether written or oral, 
becomes public and therefore could be regarded as external)?

*

a member by their action leads directly or indirectly to another member 
resigning from the Constituency; Why should a member be subject to discipline 
if their legitimate activities cause another member to depart from the BC - 
especially if it is only an indirect cause of the action?

*

a member acts as a spokesperson for another organisation whose interests are 
not aligned with the Constituency; As members are all corporations, trade 
association, or consultancies - that is, businesses - how could a business act 
as a spokesperson for another business?

*

a member acts in conflict to this Charter, or in particular acts in conflict 
with Articles 8 - 10 of this Charter; Without getting into the merits of 
Section 8-10, much of which seem vague and subjective, since a member can 
already be subject to 14 day suspension under Section 8 for such conduct as 
making a comment about a BC employee or contractor (and where else but within 
the BC would one make such comment?) or posting more than ten e-mails in a 
month (that is, 2.5 per week) even when the BC may be involved in vigorous 
internal debate on a policy issue, why is it necessary to have additional 
penalties, including expulsion, available? Also, as Section 9.5 states:
9.5 Listen to the views of all stakeholders when considering policy issues. 
ICANN is a unique multi-stakeholder environment. Those who take part in the 
ICANN process must acknowledge the importance of all stakeholders and seek to 
understand their points of view;
Does that mean that members on the losing side of a BC policy debate can seek 
disciplinary action against members of the majority if they believe that such 
members did not sincerely seek to understand their POV? (I realize that some of 
these comments may seem divorced from probable reality - but the reality is 
that we are being asked to vote on a Charter that literally says that a member 
can be disciplined for failing to see to understand another member's viewpoint.)



*

a member engages in acts which appear to be inappropriate for the stability, 
functionality or bona fide reputation of the Constituency; No question -- but 
"inappropriate" conduct damaging to the BC's "reputation" is an awfully 
subjective basis for discipline.

*

a member is or threatens to be a vexatious litigant; What is a "vexatious" 
litigant, as opposed to an ordinary litigant? And litigant against whom or what?

*

a member's circumstances are such that would be grounds for a refusal of an 
initial application.



After such review the Credentials Committee by simple majority may apply the 
following depending on the circumstances:

*

a formal written warning;

*

a period of suspension of all Constituency privileges;

*

termination of membership in the Constituency. Such termination must be 
endorsed by the Executive Committee. Except for instances where the member 
would no longer qualify for membership, termination must be preceded by at 
least one other disciplinary action.



Before any disciplinary action may take effect the member subject to the action 
will have:

*

an opportunity to review the complaint

*

an opportunity to provide a response to the Committee.



Credentials and Executive Committee members who are affected by the disputed 
behavior will recuse themselves from the discipline process.

Since a member's freedom of speech and ability to protect its interests are put 
at risk by this disciplinary process under rather vague and subjective 
standards, why is there no appeals process by which a member can seek review of 
what it considers inappropriate disciplinary action -- perhaps by the overall 
membership of the BC?



All that said, I think our starting point should be an assumption that members 
of the BC, who have chosen to pay dues and expend time on BC activities, in a 
belief that such participation improves the overall functioning of ICANN and 
business community interests broadly defined,   should be assumed to be 
represented by responsible adults who know how to conduct themselves in a civil 
manner and will generally work toward consensus. I simply don't see how 
subjecting members or potential BC members to significant disciple under vague 
and subjective standards, and by threatening members with expulsion when they 
are on the losing end of a BC policy debate and continue, as any business 
would, to pursue their own interest, can possibly help expand the membership 
ranks or reputation of the BC.

Involuntary suspension or expulsion of a duly admitted BC member should be 
reserved for only the most extreme and clearly defined circumstances - that the 
nature of its business has changed to the extent where it would no longer be 
eligible for admission, it has been convicted of a criminal offense, has made 
undocumented charges against another member that appear libelous, etc. Trying 
to enforce standards of behavior of professionals over policy disagreements 
really goes too far and threatens to saddle the BC with a reputation that will 
marginalize it..






Philip S. Corwin
Partner
Butera & Andrews
1301 Pennsylvania Ave., NW
Suite 500
Washington, DC 20004

202-347-6875 (office)

202-347-6876 (fax)

202-255-6172 (cell)

"Luck is the residue of design." -- Branch Rickey

________________________________
From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of BC 
Secretariat
Sent: Tuesday, October 13, 2009 8:09 AM
To: bc-gnso@xxxxxxxxx
Subject: [bc-gnso] Ballot for a new BC Charter

Dear Members

Ballot on revised BC Charter

At the request of the BC Officers and with reference to the message below, I 
have today opened a 7-day voting period for the newly revised BC Charter.

A majority approval vote means the new Charter will be adopted. A majority 
non-approval vote means the Charter will not be adopted.

A ballot form is attached. Each member organisation has one vote. The vote 
should be placed by the principle BC contact for the membership organsiation or 
by notified proxy. I will apply weighted voting when I receive your ballot 
form. All ballots will be acknowledged.

The voting period closes at midnight in your time zone on Monday 19 October 
2009. Ballots cannot be accepted after this time.

Best wishes
Gary
----------------------------------------------------

We would like to ask all members to cast their vote in favour of the attached 
revised BC Charter.
A definitive PDF version is attached.
A Word version showing recent track changes is also provided for information.

The Charter accommodates necessary changes for the re-structured GNSO in which 
the stakeholder groups provide representatives to the GNSO council.
As such the BC will move from a situation in which its three GNSO 
representatives were also BC Officers, to a separation of these roles.
There will be a new executive committee with a chair and two vice-chairs in 
addition to the two representatives to the GNSO Council.
The Charter also includes other changes recommended by members and ICANN staff 
based on learning since the last Charter.
The officers have done their best to accommodate all member perspectives given 
the diversity of those perspectives.
The Board has requested Constituencies complete work on Charter revision by 
Seoul.

Zahid Jamil
Mike Rodenbaugh
Philip Sheppard

BC Officers