Commentsof the IPC on the Report of the ICANN Board Working Group on the Nominating Committee (the BWG-NomCom)

[John McElwaine <john.mcelwaine@xxxxxxxxxxxxxxxxx>]

The Intellectual Property Constituency (IPC) welcomes this opportunity to 
provide its comments on the Report of the ICANN Board Working Group on the 
Nominating Committee (the BWG-NomCom).  The IPC also appreciates the efforts of 
the BWG-NomCom to solicit feedback on its Report since its publication, 
including the formal and informal consultation sessions held at ICANN 51 in Los 
Angeles.

The IPC endorses a number of recommendations of the BWG-NomCom Report.  These 
include:

*         Recommendation 6, to downsize the number of the NomCom leadership 
positions;

*         Recommendation 7, to allow all members of the NomCom (excluding the 
two leadership positions) to vote for candidates;

*         Recommendation 10, to clarify qualifications for NomCom leadership 
and improve the process of recruitment;

*         Recommendation 11, to provide a two-year term for the NomCom Chair; 
however, for purposes of continuity, IPC recommends that a Chair be allowed to 
serve two two-year terms;

*         Recommendation 13, to provide for review of the performance of the 
NomCom Chair;

*         Recommendation 14, regarding removal of the Chair;

*         Recommendation 15, to continue NomCom appointments to entities other 
than the Board.

However, the IPC is strongly opposed to Recommendations 1, 2, 5 and 8.  These 
Recommendations would radically transform the membership and decision-making 
processes of the NomCom.  The IPC does not believe that such drastic 
restructuring is justified; we believe that, on the whole, the NomCom has 
performed its functions well.  Moreover, the sweeping changes proposed by the 
BWG NomCom would be counterproductive.  If adopted, they would make the NomCom 
operations more cumbersome, less accountable, and less capable of fulfilling 
its mission.

The IPC is especially concerned with the proposal to drastically reduce (from 7 
to 4, by over 43%) the number of NomCom members chosen by entities within the 
Generic Names Supporting Organization, and to abolish IPC's authority to choose 
a NomCom member, replacing it with a system in which a single member would be 
appointed by the Business, Internet Service Providers and Intellectual Property 
constituencies.  In a number of recent submissions, the IPC has expressed its 
view that the Commercial Stakeholder Group structure imposed upon it and the 
other two constituencies in the GNSO restructuring several years ago-which 
fails to account for the diversity of interests represented in these 
constituencies--has had significant detrimental impact on the participation of 
IPC members within ICANN and on our ability to recruit new and diverse members 
to participate because intellectual property interests are increasingly 
consigned to a marginal role.  These concerns are especially acute with regard 
to the IPC representation on the NomCom.  Under the BWG-NomCom plan, and 
assuming a system of rotating representation among the three constituencies 
involved, the IPC would only be able to choose a NomCom member once every six 
years, instead of every year as is now the case.  The IPC believes that to 
reduce so severely the opportunity of intellectual property interests to 
participate in the selection of most of the ICANN board, and other key 
leadership positions within the organization, cannot be justified by the 
abstract desire to align the NomCom's structure with that of the Supporting 
Organizations and Advisory Committees.

We believe that IPC representatives to the NomCom, as well as those of other 
constituencies representing the non-contracted business sector stakeholders in 
the Domain Name System, have contributed positively to the work of the NomCom 
and to the enhancement of ICANN leadership over the past decade.  The 
BWG-NomCom's recommendation is generally interpreted by the affected 
stakeholders as deriving from the opposite conclusion:  that our contributions 
have been counter-productive and should be diminished substantially.  While we 
know this was not the BWG-NomCom's intent, this is the message that has been 
communicated.
Similarly, while we are not opposed in principle to additional NomCom 
participation from representatives of the ccNSO and ASO, the proposal to 
quintuple the representation of these entities, at a time when it is proposed 
to reduce the participation of GNSO entities by 43%, is not justified.  While 
it might achieve the abstract goal of bringing greater parity to the different 
entities appearing on the ICANN organogram, it overlooks the fact that the 
substantive work of the Board is disproportionately directed to issues 
primarily of concern to the generic names space.  Furthermore, the proposed 
composition of the NomCom will result in a pool of appointees that run counter 
to direction that the ICANN Board has given the NomCom, which has indicated 
that the Board already has strong technical expertise in the areas these 
entities would provide:

"With respect to specific skill sets in the current Board, there is strong 
experience in the operation of gTLD registries and registrars, with ccTLD 
registries, with IP address registries, with Internet technical standards and 
protocols, with ICANN policy-development procedures, legal traditions, and the 
public interest."  Advice from the ICANN Board on Board Skills to the 
Nominating Committee, dated 5 February 2014.


Nor does the proposal serve the interests of increasing diversity on the 
NomCom, in practical terms.  Both ccNSO and ASO are organized on a geographical 
basis, but both are much more homogeneous than the GNSO in terms of the 
diversity of interests represented.  The result would be a less diverse pool of 
appointees that happen to live around the globe.  It is the fully diverse 
nature of the GNSO - representing businesses, Internet users, civil society, 
and registries and registrars and their customers - that will find, vet and 
select the best crop of Board candidates that can lead ICANN in the future.  We 
would add from our own constituency perspective that the prospect of a NomCom 
functioning for years on end without any participation from representatives of 
intellectual property interests suggests that our viewpoint is not considered 
necessary to achieve material diversity, even though decisions made by ICANN 
have an enormous impact on the intellectual property system worldwide.   We 
urge the BWG-NomCom to reconsider this position.

The IPC recommends that the BWG-NomCom educate and encourage the various 
appointing organizations to select geographically diverse candidates.  There 
should not, however, be a quota system geographic representation for the 
NomCom.  Geographic diversity is already hardwired into the appointment 
criteria in the ICANN Bylaws.
The BWG-NomCom rationale related to the scalability of the NomCom to allow for 
new constituencies is not persuasive.  Only one constituency has been formed 
since the GNSO was established more than a decade ago.  Nor are any proposals 
to establish new constituencies pending, to our knowledge.  The IPC joins the 
Business Constituency in supporting adding a seat on the NomCom for that 
constituency (the NPOC).    However, we do not see the scalability of the 
NomCom because of speculation about proliferation of new constituencies to be a 
realistic concern.

We also strongly oppose the BWG-NomCom recommendations to organize the NomCom 
into delegations and to require all voting to be on a delegation basis. This 
moves in exactly the wrong direction, making NomCom operations more rigid and 
unwieldy, encouraging NomCom representatives to work in silos and discouraging 
the cross-stakeholder fertilization that is one of the strengths of the current 
system.

As a practical matter, the delegation concept is unworkable as only one vote is 
taken by the NomCom, which is to select the final slate of candidates.  
Requiring voting by delegation would unduly complicate a system that is working 
well.  To this point, recent NomCom members have reported that "horse-trading" 
is not a concern.  If that label is applied to efforts to produce a compromise 
slate of candidates that can achieve strong support across the full spectrum of 
NomCom participants, then perhaps we need more "horse-trading," not less.

Moreover, the BWG-NomCom proposal does not address the very real likelihood of 
disagreements or deadlocks in the constituencies.  How do 4 members of the GNSO 
delegation split 3 votes if they do not agree on candidate?   Simply put the 
delegation voting block concept is unnecessary, non-transparent and a solution 
in search of a problem.  It should be eliminated from the BWG-NomCom proposal.

The IPC also does not support Recommendation 12, to eliminate the position of 
Chair-Elect. The key to any good organization is continuity.  The position of 
Chair-Elect allows that person to learn the skills, values and culture of the 
NomCom.  The IPC supports the concept that the Chair-Elect should be 
re-affirmed, but this uncertainty does not outweigh the benefits of succession 
planning and leadership training.

Finally, with regard to Recommendation 9, IPC supports the move from 1-year to 
2-year terms, but believes members should be allowed to serve consecutive 
terms. (Of course, the IPC would oppose any extension of terms, or any 
relaxation of term limits, if Recommendation 2 were adopted and we were 
deprived of our ability to choose a NomCom member to represent our 
constituency, or allowed to do so only on a rotating basis.)  The IPC strongly 
supports the staggering of terms to ensure continuity.  We do not support the 
concept that the members of the NomCom should be able to remove a member 
without cause, and suggest that the voting threshold for removal needs to be a 
higher percentage than a two-thirds vote.  Such a threat may chill speech and 
the sharing of unpopular opinions.

Thank you for your consideration of these IPC comments.  If the IPC can be of 
any further assistance to the BWG-NomCom, please do not hesitate to contact the 
undersigned or any officer of the IPC.

Best regards,

s/John C. McElwaine




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