Summary-Analysis of Comments in Public Forum - New Consumers Constituency Petition and Charter
Summary and analysis of public comments for: New Consumer's Constituency Petition and Charter Comment period ended: 13 February 2010 Summary published: 15 February 2010 Preparation by: Robert Hoggarth, Senior Policy Director I. BACKGROUND In June 2008, the Board of Directors endorsed a series of recommendations on how to improve the structures and operations of the Generic Names Supporting Organization (GNSO). One of the significant drivers of those recommendations was the goal of maximizing participation in the GNSO and its policy development processes. Among the various recommendations endorsed by the Board was that ICANN take steps to clarify and promote the option to self-form new constituencies as a means to increase participation in GNSO policy development activities. The current ICANN Bylaws provide that any group of individuals or entities may petition the Board for recognition as a new or separate constituency, in accordance with Section 5(4) of Article X. Such a petition must explain (1) why "the addition of such a Constituency will improve the ability of the GNSO to carry out its policy-development responsibilities" and (2) why "the proposed new Constituency would adequately represent, on a global basis, the stakeholders it seeks to represent." To date, the ICANN Board has received a total of four formal petitions from prospective constituencies, including the subject of this forum - the Consumers Constituency (CC). At the direction of the Board, the ICANN Staff developed a two-step process for potential new constituencies to follow. The proponent of the Consumers Constituency (CC) completed the first step of the process on 28 February 2009 by filing a Notice of Intent to Form a New Constituency <http://gnso.icann.org/en/improvements/consumers-constituency-noif-28feb09.pdf> [PDF, 28K]. The proponent of the Consumers Constituency (CC) completed the second step of the process- submission of a New Constituency Petition and Charter <http://gnso.icann.org/en/improvements/consumers-constituency-petition-charter-redacted-10apr09.pdf> [PDF, 228K] and Introduction Letter <http://gnso.icann.org/en/improvements/consumers-constituency-intro-letter-10apr09.pdf> [PDF, 109K] on 14 April 2009. The Consumers Constituency (CC) proposal was first made available for community review and comment on 15 April 2009 (see - http://www.icann.org/en/public-comment/public-comment-200905.html#consumers <http://www.icann.org/en/public-comment/public-comment-200905.html#consumers> ). The comments submitted in that proceeding were summarized by the staff and shared with the Board and the community (see - http://forum.icann.org/lists/gnso-consumers-constituency/msg00007.html <http://forum.icann.org/lists/gnso-consumers-constituency/msg00007.html> ). Subsequently, members of the Board had questions about the proposal that were communicated to the Consumers Constituency (CC) proponents by the Staff and resulted in the proponents modifying their proposal. Those modifications were transmitted to the Board on 15 September 2009 prior to the community gathering in Seoul, South Korea (see - http://gnso.icann.org/en/improvements/newco-process-en.htm <http://gnso.icann.org/en/improvements/newco-process-en.htm> , http://gnso.icann.org/en/improvements/consumers-constituency-noif-redacted-15sep09.pdf <http://gnso.icann.org/en/improvements/consumers-constituency-noif-redacted-15sep09.pdf> and http://gnso.icann.org/en/improvements/consumers-constituency-charter-15sep09.pdf <http://gnso.icann.org/en/improvements/consumers-constituency-charter-15sep09.pdf> ). Subsequently, the Board's Structural Improvements Committee directed the Staff to post the revised proposal for this further community review and comment period. Community comment on new constituency petitions and charters is an important component of the Board's evaluation of these petitions and will be used to inform the Board's decisions to approve or, at its option, to recommend any alterations or amendments to the various submissions. II. GENERAL COMMENTS & CONTRIBUTORS As of the time this summary was prepared, a total of 13 community members submitted comments in the forum regarding the revised CC proposal. The contributors, both individuals and organizations, are listed below in alphabetical order (with initials noted in parentheses). The initials will be used in the foregoing narrative to identify specific quoted contributions. Organizations and Groups: * At-Large Advisory Committee (ALAC) (submitted by Beau Brendler) * GoDaddy.com, by Tim Ruiz (GDC) (submitted by James Bladell) Individuals: * Beau Brendler and Holy Raiche (BB/HR) (as CC Co-chairs)(submitted by Beau Brendler) * Eric Brunner-Williams (EBW) * Rafik Dammak and Alex Gakura (RD/AG) * Avri Doria (AD) * Cheryl Langdon-Orr (CLO) * Evan Leibovitch (EL) * Milton Meuller (MM) * Holly Raiche (HR) * Gareth Shearman (GS) * Rosemary Sinclair (RS) (due to apparent technical difficulties, at the time of posting this summary/analysis document, RS's comments had not been fully accepted by the ICANN forum system. This document will be updated to reflect those comments at such time that the materials are recovered by the system or resubmitted. * Mary Wong (MW) (submitted twice due to technical problems) III. SUMMARY & ANALYSIS This document is intended to broadly and comprehensively summarize the comments of the various contributors to this forum but not to address every specific argument or position stated by any or all contributors. The Staff recommends that readers interested in specific aspects of any of the summarized comments or the full context of others refer directly to the specific contributions. All comments can be found in the order they were submitted at http://forum.icann.org/lists/consumers-constituency-petition/. With one exception, the submitted comments all generally support the concept of consumer representation in the GNSO, but reflect different points of view regarding the specifics of the pending proposal or the timing of Board action on the petition. Those in support of granting the petition at this time note the growing global support for the proposal by established consumer organizations, the substantial value a consumers voice would offer to the GNSO and the growing length of time the petition has been pending, Those opposing action at this time assert that even if the Board is inclined to support the pending CC proposal, that development of a permanent Non Commercial Stakeholders Group (NCSG) Charter should be concluded before consideration is given to the forming of any specific NCSG constituencies. Some express specific reasons for rejecting the pending proposal. They assert that premature approval of the CC could create difficulties in the relationship of the NCSG and any new/future constituencies. In some cases, opponents assert that the new CC is not even necessary given the direction that some favor for the NCSG organizational structure of the existing NCSG. Still others assert that the CC structure would be duplicative of existing ICANN bodies. Consumers Constituency (CC) Proposal Opponents: Mary Wong (MW) "strongly believe[s] that consumers - both commercial and non-commercial - are important contributors to ICANN and essential stakeholders in it. She does not, however, support the approval of the CC "in the form proposed at this time." She says, "the existing ICANN framework - including the NCSG, which has welcomed many new members who represent consumer organizations and/or who are involved in consumer policy issues - is adequately equipped to ensure that consumer interests are specifically represented." She says, "this is not to say that a better job of outreach and focused discussion over matters of concern to all consumers cannot and should not be done; however, the establishment of a formal constituency simply in order to do so, and at a time when the NCSG Charter is still being finalized, is both unnecessary and unwise." MW says, "it is not clear that a formal, Board-approved constituency is necessarily a better vehicle for funneling and representing community concerns than a bottom-up, self-organized interest group formed from within a wider SG." Noting that the Board has approved the Registry SG which encompasses the concept of interest groups, she says, "it seems far more preferable to encourage the formation of interest groups by and within the SGs rather than further entrench the old constituency model in its organizational framework." MW says, the proposed CC Charter itself is "problematic." For example, she says, "Many of the structures and processes elaborated on in the Charter (e.g. the provision for both an Executive Committee and Policy Committee) mirror the structures and processes of the NCSG." She says, "This additional layer of bureaucracy and operational procedure is likely to complicate and confuse both existing as well as potential NCSG members, and potentially lead to unnecessary delays and complications in SG-constituency relationships." She is concerned that the Charter "still reflects the potential for a one constituency one Councilor model." She is also concerned that "the single criteria for organizational membership of the Consumers Constituency is that it is a non-commercial entity." She asserts that "there is no requirement that members of the constituency have any link to any consumer-oriented interests or related work." Avri Doria (AD) says she "strongly supports the creation of a Consumer Interest Group/Constituency within the NCSG." She says "the influence of consumer advocacy groups, both non-commercial and commercial in ICANN is a critical necessity" and "depending on the nature of the final charter of the NCSG," she "may support a Consumer Interest Group/Constituency in getting Board approval as an official Board approved Constituency at some future time." But, regarding the present CC proposal AD asserts, "the pending proposal should be rejected for four reasons. First, AD says, "The proposed constituency is not representative of the non-commercial consumer organizations already present in the GNSO. She says, the NCUC contains a number of consumer organizations already and those members have not, to her knowledge, "been consulted or included in the formation of this proposed constituency." She says, "Additionally these consumer groups and individual advocates are currently discussing the formation of a Consumer Advocacy Interest-Group/Constituency within the structure of the NCSG." Second, AD says, "The membership criteria for this constituency are not clear." Echoing MW's concerns she says, "While the petition and the charter are clear that industry funded consumer agencies would not be eligible for membership it does not place any restrictions on the membership basis of the various consumer organizations." Third, AD says "The NCSG is still operating and developing under a temporary charter that would make it disruptive to ongoing processes to fold a new Board approved constituency into the new stakeholder group." She says, "The NCSG has established membership in the NCSG as basic to the stakeholder group and to Interest-Group/Constituency formation." AD says, "the NCUC is ready to devolve into a multitude of Interest-Groups/Constituencies with the NCSG." She says, "With the formation of the NCSG, it is the intention of many to try and spin out several Interest-Groups/Constituencies who can each focus on their own non-commercial agenda and participate in the GNSO processes as integral parts of the NCSG." She is concerned that, "If a new Consumer Constituency is created at this point, it will put a stop to this process and force the NCUC to remain a single large constituency." Finally, AD says that "even if the final status of the permanent NCSG charter were to require Board approved constituencies as opposed to Interest-groups, it is important that a new group show its commitment to ICANN and the GNSO before its existence be formalized." She says, "To date all that has been seen of the CC are the two leaders, and while they have participated in some working groups either in their own personal capacity or as ALAC representatives, there has been no apparent attempt on their part to bring the greater group of prospective members into the discussions." AD says, "It is my fervent hope that the consumer groups in the NCSG, including those already in the NCUC, and those who are part of the CC application, will form together to create an Interest-Group/Constituency for non commercial consumer advocacy." Milton Mueller (MM) says, "the main problem with the CC application is that it is being made before any final charter or structure for the NCSG has been ratified by the SIC and the Board, and before the advocates of the CC have even joined the NCSG." MM says, "It is imperative that the CC and the NCSG charter be based on compatible assumptions about voting, representation and procedure." He says, "it is imperative that those who want to claim the mantle of 'Consumer representatives' work together with any and all consumer organizations already involved in ICANN and not attempt to create a separate island." He asks the Board to "make it clear to the CC advocates that they need to join the NCSG, and make an effort to allow all eligible existing organizations within it to join in on its formation, before their application will be approved." MM says, "there are contradictions and incompatibilities between the way the NCSG is being set up and the proposed CC charter." He says, "These issues must be resolved before any new constituency is approved." He says, "It is simply a matter of following the proper sequence. One must complete the formation of the NCSG first, before an[y] new constituency applications are approved." MM asserts, "There are real issues regarding the legitimacy of this group's claim to represent consumers." He says, "There are also important questions about the degree to which its backers are part of the noncommercial sector or represent business interests." He says, "The major national and international noncommercial consumer advocacy organizations, such as the Consumers Union in the USA or Consumers International, do not seem to be involved in this effort." He says "To date, the advocates of this CC have not contacted the NCSG, nor made any effort to join it, nor have they invited the half-dozen or so consumer groups already in the NCUC to participate in their effort." MM admits that "the size and scope of group backing the CC proposal is a secondary issue." The real issue, he says, "is the contradiction between its organizational model and that of the NCSG. He says, "It is important to know that the NCSG charter currently being developed by the NCSG and reviewed by the SIC envisions a model in which all constituency members must first become members of the NCSG, subject to its eligibility requirements, and then go through an integrated NCSG voting process to elect Council representatives and form new constituencies." MM asserts that "if [the Board] approves the CC before the structure of the NCSG is set, or if there are incompatibilities between the CC charter and the NCSG Charter, they could create confusion and some severe contradictions and political tensions in the process of chartering the NCSG." In their joint comment, Rafik Dammak and Alex Gakura (RD/AG) say they oppose the CC charter proposal. As members of the African Region, their fundamental point of view appears to be that the proposed constituency is not representative of the global stakeholders it purports to represent and will not improve the GNSO in its policy development activities. They assert that they were not consulted in its formation, and express concern that the interests of the African Region have not been considered in the development of the constituency charter. They appear to believe that the interest of consumers and the African region can best be managed in the context of the present NCSG and that the CC proposal will not improve policy development process responsibilities relevant to or important to Africa. Go Daddy (GDC) asserts that "the primary concern in our earlier comments remains unresolved." GDC is concerned "that CC is duplicative of other bodies in the GNSO and ICANN." GDC says the revised NOI[F] and Charter do not "present a compelling reason why the issues it seeks to address cannot be raised in the context of the At Large community and the Non-Commercial Stakeholders Group." GDC asks the Board to "request further clarification and refinement of the membership criteria before approving the proposal." Eric Brunner-Williams (EBW says the Board should "thank the proposants for their efforts and decline the offer to create this particular Constituency." He provides some interesting background comments on the original vision of ICANN representation and raises some concerns about the overall constituency structure, including an expression of regret that the Board did not approve the proposal of the City TLD Constituency. With respect to the pending Consumers proposal, EBW is concerned that the CC Charter "proposes, at [Section] 11.2.3, to find funding 'From major actors in the industry, including without limitation, registrars, registries, Internet service providers, and so forth" and at [Section] 11.2.4, "From the Non-Commercial Stakeholders Group (NCSG) and ICANN." He says, "neither of these approaches could lead to an independent or sustainable Constituency" and "this weakness is not cured by [Section] 11.3, Conflicts of Interest." EBW notes that the CC Charter anticipates a rather small number of members participating in the activities of the Constituency, "as it devotes all of [Section] 10 to standards and discipline." He says, "If there are "users" the tools to manage their self-expression to their best ends is not a 'Communications Officer'." He asserts, "this simply can't scale, and seems irreconcilable with [Section] 9's statement on outreach, '... to be as inclusive and representative of non-commercial Internet users as possible ...'." CC Proposal Support: The CC Co-chairs (BB/HR) say, "Our commitment to this constituency has not wavered in the year since it was first proposed. Our intent remains the same: To create a venue for international organizations, whose primary duty is to advocate on behalf of consumers in matters of purchase and trade, to have a strong voice in the GNSO, the most active of ICANN's policy making bodies." BB/HR assert, "based on ... support from a growing number of consumer organizations, we believe the [B]oard should be strongly compelled to approve the Consumers Constituency." They say, "despite that the constituency has been in a holding pattern for several months, we have made a solid start in outreach and recruiting of organizations. They note that "formal (written) commitments to join the constituency have come from: Australian Communications Consumer Action Network (ACCAN) / Australia; Telecom and Internet Klantenvereniging (TIK) / Belgium; EKPIZO ["The Quality of Life"] Consumers Association / Greece; and ZPS Slovene Consumers' Association / Slovenia. Coincidently, addressing MM's earlier-submitted comment, they note that EKPIZO and ZPS are full members of Consumers International, "a 50-year-old member organization with 220 member organizations in 115 countries, and a likely ally in communication and recruitment for the larger organization." BB /HR explain that in addition to interest expressed by the Consumers Association of Canada (CAC), "two consumer organizations in France and Mexico have been contacted by the CC's ICANN board-appointed representative, and their status should be clear by the Nairobi meeting." They note that if the organization from Mexico chooses to join the nascent CC, "the proposed constituency would have representation from the North American, European, Asia-Pacific, and Latin American/Caribbean regions." They assert this is "a remarkable start for a proposed and not formally approved organization." Addressing the challenge of recruiting for an as-yet-unapproved body, they say, "we seek to remind the [B]oard of the significant challenge involved in recruiting any volunteers, let alone whole institutions with limited resources and full policy plates, to a 'constituency' yet to actually be approved, whose representational structure is untested, and whose role within a larger group (NCSG) remains unclear." The CC proponents assert that, "as promised in Seoul, we have continued to recruit organizations despite a lack of clarity on the proposed constituency's future. EKPIZO joined us a short time ago, quite some time after the SIC's meeting with the Consumer Constituency's co-chairs. In addition, since Seoul we have prepared various Consumers Constituency briefing papers. BB/HR say, "We remain committed to the principles and goals outlined in the revised Notice of Intent to Form and look forward to renewed and more effective outreach as soon as the [B]oard makes the decision to formalize the constituency's existence." Commenting separately, Holly Raiche (HR) expands on the recruiting aspect of her support for the CC. She says, "I am in the process of contacting other consumer organisations in the UK and Honk Kong, and I know other are doing the same elsewhere. As the organisaitons [sic] become aware of the potential impact of ICANN policies on the Internet, they become very interested in being involved in those policy debates. However, I am faced with the same issue each time I am asked how organisations can participate - it is difficult to ask organisations to join something that does not exist, particularly where support arrangements are not clear and membership not confirmed." In supporting the CC proposal, ALAC says, "consumer and public interest groups must have a representative voice in the GNSO policy-making environment." ALAC comments favorably on "the organizers' efforts to recruit additional organizations, including most recently the Greek consumer group EKPIZO, and to obtain formal commitments from those who have already expressed interest." ALAC notes, "Supporters of the Consumers Constituency include consumer organizations and consumer representatives in Australia, Belgium, Canada, Greece, Slovenia and the United States. ALAC says it, "strongly encourage[s] the Board to approve the Consumers Constituency so its organizers can continue to recruit new members to ensure the most solid foundation possible at this early stage of a constituencies' progress and give consumer and public interest groups a voice in the GNSO policy development process." <#_ftn1> Submitting comments in her personal capacity as "an active consumer advocate", Cheryl Langon-Orr (CLO) supports the CC petition and characterizes it as "an important step forward in assuring a variety of platforms exist within ICANN and the GNSO where our interests and objectives can be properly forwarded and developed into policy and process outcomes." In his personal capacity, Evan Leibovitch (EL) expresses support for the CC proposal. He says, "In my experience, consumer organizations have approached advocacy from a different perspective -- less theoretical and more results-driven than that of conventional civil society. As such, I believe it is important that ICANN empower this community as a discrete ICANN stakeholder group which may define common priorities, tactics and partnerships. Moreover, it will bring a much needed perspective directly within GNSO -- that of Internet end-users who depend upon a well-functioning domain name-space yet neither buy nor sell domains." EL says, "In discussions within the North American Region of ICANN At-Large, I have observed that our participants have consistently encouraged ALAC's support of a new consumer constituency. In addition, I offer my own personal and enthusiastic endorsement. This can't happen soon enough." <#_ftn2> IV. NEXT STEPS The ICANN Board is likely to consider all the relevant community input regarding the CC proposal and will move forward accordingly. ________________________________  <#_ftnref> Since the comments were submitted to the forum by one of the CC proponents, AD asks "is it the norm for the co-chair of the proposed Consumer Constituency to be the one to send endorsement from the ALAC to the comment area." AD says, "The ALAC chair offered her personal support, but did not pass on a formal ALAC endorsement, so I wonder the extent to which this is an endorsement of the currently proposed charter. Does the ALAC still have consensus on this proposal and have they approved Beau Brendler to speak in their name?"  <#_ftnref> Gareth Shearman also offered his support for the CC proposal without further elaboration.
Consumers Constituency Public Forum Summary & Analysis Feb '10.doc