[gnso-review-dt] Comment on newest revision of the Westlake review

["BRG" <philip@xxxxxxxxxxxxxxxxxxxxxx>]

I would like to thank Westlake for the latest report and make the following
5 comments and recommendations.

1. Page 14 preamble on structure
"Many people commented on the GNSO’s structure and complexity and argued
that these needed to change. We do not consider that the GNSO’s structure is
perfect, or that it cannot be improved, but, having analysed the issues in
some detail, our view is that the structure of the GNSO is not the main
cause of its most pressing challenges.
In addition, the current structure of the GNSO has been in place for only
about three years."
This comment is misleading.
The 2 House structure was implemented in 2008. That is 7 years ago.
Do Westlake mean the current form of the PDP and Working Groups?
This is different.
Please change the text to clarify.

2. The "pressing challenges" and recommendations 36 - 41.
These all focus on diversity.
They are  fine recommendations but NOT ones that addresses the issue of
structure. Please change the text to clarify.

3.ICANN Board
In its resolution of 28 September 2013 the ICANN Board stated:
"GNSO Structure is unlikely to accommodate the anticipated new stream of
stakeholders resulting from the expansion of the TLD space. The GNSO Review
will be an important vehicle for considering and addressing this issue. The
unbalance that is already occurring needs to be addressed by the GNSO
Review. ”
Why is this Board resolution not addressed in the report?

4. Page 14: "Many people commented on the GNSO’s structure and complexity
and argued that these needed to change"
Why is the opinion of "many people" not addressed in the report?

5. Understanding the past and the present.
Little attempt to analyse the lack of relevance* today of the 2 Houses
structure has been made.
Why is this?
*See below for a snip from the BRG survey submission


Philip Sheppard
---------------------------------------------------------------------
EDIT FROM BRG PAPER AND SURVEY SUBMISSION

The 2008 GNSO reform created two Houses within the GNSO: the Contracted
Party House and the Non-Contracted Party House. Put simply there is a
suppliers House and a users House. And those Houses were given equal votes.
This was a change from the GNSO of several separate Constituencies. This
created a 4-tier structure.

 

The rationale for the 2008 reform was threefold. 

a) Separable interests. 

There was a belief that the underlying user groups and supplier groups had
separable interests that could be divided into six separable entities
(registries, registrars, business interests, intellectual property
interests, internet service providers, non-commercial interests).

 

b) Commonality. 

The rationale for the two Houses was that suppliers are impacted
economically by policy and may be impacted in the same way: and users are
impacted in a variety of ways by policy and may be impacted in the same way.


 

c) Balance between the Houses. 

There was a belief that the interests of users and suppliers should be
balanced.

 

Issues

In 2014, everything has changed. The rationale has changed. Indeed, the
current structure creates new conflicts of interest.

 

a) Separable interests. 

While different interests continue, it is no longer true that the separable
interests are accurately reflected by the six separable entities
(registries, registrars, business interests, intellectual property
interests, internet service providers, non-commercial interests). There are
two reasons for this.

§         Conflicting relationships. There is a complex web of relationships
that overlap and conflict within the six groups. A typical .brand registry
may be simultaneously: a Registry, a Business Constituency member, an
Intellectual Property Constituency member, and have a contractual
relationship with other generic registries for back-end services.

§         What is commercial? The old division within the users House
between commercial and non-commercial is no longer relevant. Just within the
400 .brand registry applicants, some 15 are not-for-profit organisations
representing some $69 billion in annual turnover. Two of these are current
BRG members. 

 

b) Commonality. 

The commonality assumption was historically questionable. 

The commonality of interests within the old groups has changed. 

§         It was never true that users within each House acted as if they
were impacted in the same way by policy. There has often been disagreement
between commercial and non-commercial users, and between types of
non-commercial user. This has been seen most clearly on issues connected
with crime prevention (such as accurate Whois records and a difference of
opinion on the balance of freedom of speech versus crime prevention). 

§         It is no longer true that Registries are impacted economically by
policy in the same way. The 400 .brand Registries will have a different view
on many policy issues to the 800 generic Registries. This divide will be
most clear where there is a choice between the costs imposed by a policy and
the benefits of that policy such as crime prevention. In such a choice,
generic registries and brand registries will typically have different
opinions on cost versus benefit.

 

c) Balance between the Houses.

There is no objective reason for the current balance of votes.

§         The belief that the interests of users and suppliers should be
balanced was predicated not on an external objective reason but on an
internal compromise. In the 1999 Names Council a number of groups
self-formed. These groups became the Constituencies of the GNSO. These
groups in 2008 were charged to agree GNSO reform but they disagreed. The
Houses concept was a compromise proposed to overcome this disagreement by
severing the link between seats and votes. It was adopted out of expediency.


 

d) Unnecessary complexity of Council /House /Stakeholder Group /Constituency

§         The Houses structure has made voting unnecessarily complex. 

§         Post 2008, for some groups Council changed from a 2-tier to a
4-tier structure. This has created unnecessary complexity and duplicated
meeting agendas.