APC comment on NCSG Transitional Charter

[Willie Currie <wcurrie@xxxxxxx>]

To the Board


The Association for Progressive Communications (APC) is a global network 
of civil society organisations whose mission is to empower and support 
organisations, social movements and individuals in and through the use 
of information and communication technologies to build strategic 
communities and initiatives for the purpose of making meaningful 
contributions to equitable human development, social justice, 
participatory political processes and environmental sustainability[1] 
<#_ftn1>. APC is a member of the Noncommercial Users Constituency (NCUC) 
in ICANN's Generic Names Supporting Organisation (GNSO).
APC is concerned about the Non-commercial Stakeholder Group (NCSG) 
Transitional Charter which ICANN has posted for public comment.
At the level of due process, it appears that the submissions of the NCUC 
regarding the NCSG Charter have been ignored and the views of the 
anti-pornography, internet censorship group, CP80 have been adopted 
without any explanation. This is problematic because it is procedurally 
unfair and creates the perception of bias and arbitrary decision-making 
on the part of the ICANN Board. It also alienates a significant sector 
of civil society unnecessarily which is bad practice in terms of 
principles of sound organisational development. This is all the more 
curious as it is on these issues that ICANN is currently being assessed 
by the US Department of Commerce in terms of the Inquiry into the 
upcoming expiry of the Joint Project Agreement [Docket No. 
090420688--9689--01].
We are also concerned at the level of substance. Non-commercial 
stakeholders, like most of civil society, consist of a heterogeneous 
mixture of constituencies.  While the Board has the right to approve 
different constituencies of civil society to be placed in the NCSG, we 
think that the Board should practice forbearance in this regard. The 
organisation of civil society groups in arenas like the World Summit on 
the Information Society has generally recognised that it is better to 
allow civil society groupings to organise themselves rather than have 
this over-determined by an executive structure from the top.  ICANN's 
bylaws have identified a broad constituency -- non-commercial 
stakeholders. To go beyond this -- to slice and dice sub-constituencies 
from this general category -- seems to us to go too far in trying to 
organise civil society from the top and undermines the notion of 
subsidiarity, which could usefully apply here.  To quote Wikipedia, 
subsidiarity 'is an organizing principle that matters ought to be 
handled by the smallest, lowest or least centralized competent 
authority' and is a key principle underpinning the European Union[2] 
<#_ftn2>.
The NCUC's NCSG Charter captures the notion of subsidiarity in its 
procedures for forming the membership of the Non-commercial Stakeholders 
Group.  Membership, constituency formation and representation in the 
NCSG would take place at the lowest level and not at the highest level 
of decision-making. The criteria for membership of the NSCG are very 
clear in the NCUC-proposed Charter and constituencies within the NSCG 
are self-organised. Voting rights are also clear and linked to the three 
categories of membership. This is eminently democratic and bottom-up.
Membership provisions in the NCSG Transitional Charter, put up for 
public comment, are vague as membership is established on the basis of a 
constituency approved by the Board. This is immediately disempowering to 
any self-respecting civil society organisation or individual and removes 
the element of direct democracy that the membership structure of the 
NCUC Charter provides. The NCUC Charter's approach to constituencies is 
democratic in that constituencies can self organise within the framework 
of the NCSG but do not override a single member's right to vote 
directly. Basically, the NCSG Transitional Charter muddies the water in 
this regard and APC regards it as undemocratic.
If the aim of the GNSO reform process is to enhance democracy, increase 
participation and accountability in the GNSO, then the principle of 
subsidiarity as contained in the NCUC's NCSG Charter is the way to go 
about it. The alternative is to unleash non-transparent lobbying 
activities around the ICANN Board as would-be non-commercial 
constituencies jostle for influence over the Board's decision-making on 
choosing which constituencies to recognise.  This is a recipe for 
deepening ICANN's crisis of legitimacy rather than easing it in the 
direction of greater transparency, democracy and multi-stakeholder 
participation which were universally adopted as principles for internet 
governance by the World Summit of the Information Society[3] <#_ftn3>.
We recommend to the ICANN Board that it reconsider the NCUC's NCSG 
Charter proposal in the light of the principle of subsidiarity. We are 
of the view that if ICANN were to adopt the NCUC's NCSG Charter, this 
would signal to civil society that ICANN takes civil society 
participation seriously and is turning over a new leaf with civil 
society groups. This is an opportunity for ICANN as an institution to 
take forward the GNSO reforms on a positive basis.
Thank you

Willie Currie

Manager, APC Communications and Information Policy Programme

New York

21 July 2009


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[1] <#_ftnref1>              www.apc.org

[2] <#_ftnref2>              http://en.wikipedia.org/wiki/Subsidiarity

[3] <#_ftnref3>              Tunis Agenda for the Information Society, 
2005, paragraph 29 
http://www.itu.int/wsis/documents/doc_multi.asp?lang=en&id=2267|0