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IP Justice Comment on ICANN Injustices wrt Stakeholder Group Charters

  • To: gnso-stakeholder-charters@xxxxxxxxx
  • Subject: IP Justice Comment on ICANN Injustices wrt Stakeholder Group Charters
  • From: "Robin Gross" <robin@xxxxxxxxxxxxx>
  • Date: Tue, 21 Jul 2009 14:51:09 -0700

RE: ICANN Stakeholder Group Charter Injustices


IP Justice appreciates this opportunity to provide public comment. 
Founded in 2002, IP Justice is an international civil liberties
organization that works on intellectual property and Internet law and
policy issues.  IP Justice is a noncommercial 501(c)(3) public benefit
organization based in San Francisco with an international board of
directors and members in countries from all corners of the globe
(http://www.ipjustice.org).  IP Justice participates in the Generic Names
Supporting Organization (GNSO) as a member of the Noncommercial Users
Constituency (NCUC).

ICANN Cannot Ignore the Consensus Charter Created by Noncommercial Users
in a Bottom-Up Process

IP Justice is writing to express our deep disappointment with the unjust
manner in which previous public comment (period ending 15 April 2009) was
discarded by ICANN in the reformulation of the proposed Noncommercial
Stakeholder Group Charter [1].

NCUC undertook months of consultations with a diverse range of parties in
the creation of its draft charter [2] proposed for a Noncommercial
Stakeholder Group (NCSG).  NCUC participated in an extended consensus
process that involved global civil society, ICANN board, staff, members of
the At-Large community, and other noncommercial actors in the creation of
the charter submitted by NCUC in March 2009.

Civil society?s NCSG charter was explicitly supported by over 80
noncommercial organizations and individuals in the April 2009 Public
Comment period.  Every single noncommercial organization that submitted a
comment during the period supported NCUC?s charter and asked ICANN not to
force noncommercial users into constituencies for electing leadership
positions (the ?silo-model?).

During discussions at the March 2009 ICANN meeting in Mexico, NCUC
specifically asked ICANN if the NCSG charter it was drafting was
inconsistent with the report of the ICANN Board Structural Improvements
Committee (SIC) and NCUC was told its draft charter was not inconsistent.

Yet in June, without any explanation or regard for democratic or bottom-up
processes, ICANN staff and Board SIC threw out the consensus charter that
civil society developed and replaced it with an entirely different model
-- the silo-model that civil society explicitly said would stranglehold
noncommercial users in policy development. [3]

Why ICANN?s Proposed Silo-Model is Bad for Noncommercial Users

NCUC and civil society made numerous efforts in public statements in April
to explain why the silo-model of governance being imposed by ICANN harms
noncommercial interests in the overall GNSO policy process.[4]  Yet these
concerns remain unanswered by ICANN.

In particular, ICANN?s attempt to divide the GNSO Council and Executive
Committee seats among arbitrary (and board-selected) constituencies within
the NCSG encourages competition among constituencies, while an entire
stakeholder group wide election (as proposed by civil society) encourages
consensus building and cooperation between constituencies to elect NCSG
representatives.  Noncommercial users will be in a constant stranglehold
with each other, competing for scarce resources and representation, and
will remain ineffective in the larger GNSO policy negotiations, if the
ICANN drafted charter is allowed to replace the consensus charter drafted
by noncommercial users.

Noncommercial users understand well what we are up against in the ICANN
policy development arena: full-time highly paid lobbyists from the
wealthiest industries relentlessly lobby the ICANN Board and staff for
preferential advantages for their companies.  Noncommercial users
understand that if we are to have any chance of influencing ICANN policy
it can only happen when we join together and are able to work
cooperatively toward our shared objectives.  This can be accomplished by
stakeholder group wide elections, which encourage candidates to reach
beyond their own constituency for support.  But the charter drafted by
ICANN to keep noncommercial users accountable only to their own focused
constituency, rather than the entire stakeholder group, will render all
noncommercial interests dead on arrival in the new GNSO.  That is exactly
what the commercial constituencies want and why they lobbied the board to
change the NCSG charter to benefit commercial participants.  (Remember the
commercial representatives are still angry that noncommercial users are
supposed to be given parity to commercial actors on the GNSO Council, and
this is one way of keeping noncommercial users less effective on the

ICANN's attempt to impose a top-down governance structure on noncommercial
users against our will calls into question ICANN's legitimacy to govern;
it undermines confidence in ICANN's commitment to democratic values; and
it appears ICANN is unable or unwilling to protect the broader public
interest against commercial pressures.

Now ICANN should listen to noncommercial users and finally respect our
democratic wishes regarding a governance structure that advances
noncommercial interests.  Thus ICANN should seriously reconsider its
attempt to impose a controlling top-down charter on noncommercial users
against their expressed will.

Board Gives Commercial Constituencies a VETO Over Any Board Decision to
Permit Future Constituencies

Amazingly, the Commercial Stakeholder Group Charter [5] that was drafted
by the 3 existing commercial constituencies and which gives each of those
3 constituencies a VETO over any board vote creating a new commercial
constituency to be represented on the GNSO Council was rubber-stamped for
approval by the ICANN Board SIC.

In particular see ICANN?s proposed Commercial Stakeholder Group Charter:
"4.2. Membership shall also be open to any additional constituency
recognised by ICANN?s Board under its by-laws, provided that such
constituency, as determined by the unanimous consent of the signatories to
this charter, is representative of commercial user interests which for the
purposes of definition are distinct from and exclude registry and
prospective registry, registrar, re-seller or other domain name supplier
interests." (italics added)

If commercial constituencies can veto a decision by the Board of
Directors, who is running ICANN?

How will giving existing participants a veto to block new participants on
the GNSO Council encourage new commercial entrants?  If adopted, the CSG
charter will ensure that no new commercial perspectives are allowed to
take hold in the CSG ? only the 3 existing constituencies can hold all
power in the future under the CSG charter.

Treatment of Stakeholder Group Charters Shows ICANN Unaccountable to
Public Interest

Why did ICANN take all decision making authority away from the
noncommercial users, but give total decision making authority (+ veto
power) to commercial participants in the draft charters?

The difference in treatment by ICANN between commercial and noncommercial
users in the charters is astounding -- but points solidly to one of
ICANN?s biggest flaws: its subordination of the public interest to select
commercial interests engaged in insider-lobbying.

Fixing the SG charters to hold ICANN accountable to the public interest
and Internet users (instead of only commercial lobbyists) would be a good
start to addressing the pervasive lack of confidence in ICANN?s ability to
govern fairly.

Respectfully submitted,

Robin D. Gross
Executive Director
IP Justice

?Is ICANN Accountable to the Global Public Interest?? see:


[1] Public Comments Filed in Comment Period Ending 15 April 2009 on
Stakeholder Group Charters:
http://forum.icann.org/lists/sg-petitions-charters/ see also ?Is ICANN
Accountable to the Global Public Interest?? at

[2]  Consensus charter for noncommercial users developed by civil society
and submitted by NCUC:
http://gnso.icann.org/en/improvements/ncsg-petition-charter.pdf and its
Executive Summary:

[3] ICANN drafted NCSG Charter:
and its intended ?mystery? Section 5 at:

[4] For example, see Comment by Adam Peake at
http://forum.icann.org/lists/sg-petitions-charters/msg00013.html; Joint
Civil Society Statement at
http://forum.icann.org/lists/sg-petitions-charters/msg00019.html; Comment
from Milton Mueller at
http://forum.icann.org/lists/sg-petitions-charters/msg00011.html; Comment
from WSIS Civil Society Internet Governance Caucus at
http://forum.icann.org/lists/sg-petitions-charters/msg00009.html for just
a sampling of the many comments making this point.

[5] Proposed Commercial Stakeholder Group Charter (drafted by existing
constituencies and rubber-stamped by ICANN posted to:

Attachment: ipjustice-statement-charter-injustices.pdf
Description: Adobe PDF document

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