Comments of IPC
On Friday April 8, 2011 the Intellectual Property Constituency of the GNSO submitted comments to Staff regarding the Proposed Process for Recognition of New GNSO Constituencies. Those comments are copied below and a copy of the submission (in .doc format) is also attached to this message. Robert Hoggarth Senior Policy Director ICANN _____ Comments of the Intellectual Property Constituency (IPC) on the Proposed Process for Recognition of New GNSO Constituencies The IPC is pleased to provide the following comments on the proposed “Process for Recognition of New GNSO Constituencies” (“Proposed Process”), which ICANN published for public comment on February 2, 2011. (http://www.icann.org/en/announcements/announcement-02feb11-en.htm) I. General Comments The IPC agrees with the ICANN Board’s stated goal of maximizing participation in the GNSO and its policy development processes by improving the mechanism by which new constituencies can form themselves and be evaluated for acceptance, as set forth in Article X, Section 5(4) of the ICANN Bylaws. However, we also recognize the need to develop objective criteria and clear guidelines for the Board to follow to ensure any new Constituency adequately represents, on a global basis, the stakeholders it seeks to represent, and that its addition will improve the ability of the GNSO to carry out its policy-development responsibilities asrequired under Article X, Section 5 of the ICANN Bylaws. We also have certain concerns about certain proposed review mechanisms and evaluation criteria. For example, some of the evaluation criteria appear to be overly technical and arbitrary, which could act as an artificially high barrier to entry for new constituents. Moreover, we believe additional measures may be needed to counteract the risk that incumbent members will reject or increase the burden on prospective new constituents out of self-interest. Adding new constituencies could possibly have an effect on the voice of existing members, and also arguably may reduce the availability of finite ICANN staff resources for the existing constituencies. As a result, even though the ICANN By-laws permit new constituencies to be added, Stakeholder Group members may be hostile towards new constituents. This dynamic is important to take into consideration in developing any process for the recognition of new constituencies. We note, as an aside, that the Proposed Process will directly impact the Stakeholder Groups within the Non-Contracted Parties House (i.e. the Commercial and Noncommercial Stakeholder Groups), and will not directly impact Stakeholder Groups in the Contracted Party House because Constituencies are not recognized in the Contracted Party House charters. As a result, we believe that ICANN should give greater weight to any comments ICANN receives from the Non-Contracted Parties House; consideration to comments from the Contracted Parties House should bear in mind that additional new Constituencies will not affect the structure or voting rights in the Contracted Parties House. We would like to emphasize that our concerns should not be taken as an indication that we believe that formation of a new constituency should be easy. Rather, the process should be thorough and the evaluation criteria should be objective and fair to ensure any new Constituency adequately represents, on a global basis, the stakeholders it seeks to represent, and that its addition will improve the ability of the GNSO to carry out its policy-development responsibilities as required under Article X, Section 5 of the ICANN Bylaws. Furthermore, we appreciate that ICANN has recognized that these comments are not intended to apply to existing applicants for new constituencies, but as feedback for refining the process for futureapplicants. The following sections provide comments on the proposed evaluation criteria, the delegation of authority to Stakeholder Groups, and comments on the Forms/Tools. II. Specific Comments A. Evaluation Criteria a Welcome Improvement; Some are Arbitrary and Lack Merit The process currently used to evaluate new constituencies is a two-step process, beginning with the submission of a “Notice of Intent to Form New Constituency.” After submission of the Notice, the Board notifies the petitioner whether it is invited to move to Step 2, involving the submission of a “New Constituency Petition and Charter” form. To date, only five groups have applied for constituency status, but none have yet been accepted. The current process can be improved in a number of areas. For example, it is questionable whether the Board receives sufficient information in Step 1 to adequately review the petition. On the other hand, Step 2 requires a petitioner to prepare a complete draft charter even though the Board may well still deny the petition. Also, there is a lack of clear published criteria and a timetable. One petition apparently has been pending for nearly two years. Finally, the process lacks transparency. The Proposed Process recasts the consideration of new constituencies into an “Applicant” and “Candidate” phase, and sets clear evaluation criteria and some time limits. The detailed process and evaluation criteria bring needed transparency and accountability to the Proposed Process. Stated goals of the process include reducing the early-stage burden on applicants, streamlining the process, providing specified qualifying criteria and transparency, and establishing more limited (yet flexible) time frames. The IPC agrees with these goals. The IPC likewise agrees that minimum quorum and geographic diversity requirements should be placed on both Applicants and Candidates. There should be some threshold requirements for potential new constituents to Stakeholder Groups because adding constituencies has potentially long-reaching implications for each Stakeholder Group’s existing structure and, consequently, its stability. Establishing both geographic diversity and significant community support is necessary to ensure that the new Constituency represents a sufficiently significant representative voice within the Internet community. However, we believe that some of the standards set forth in the Proposed Process are arbitrary and undermine the integrity of the process. The following suggestions address specific concerns about the evaluation criteria: · Eliminate Arbitrary Requirements for Support from Specific Number of “Large” and “Small” Organizations (Appendix 1, No. 4) Under the Proposed Process, an Applicant comprised primarily of organizations must submit letters of support from two large and eight small organizations. This seems to be an arbitrary line lacking any logic or policy rationale. An Applicant who instead claims letters of support from eight large and two small organizations and thousands of individuals could not become candidates because they fail to meet the magic formula. As an alternative, we recommend setting a minimum number of letters of support for all members and eliminating the distinction between “Large” and “Small” organizations. · Abolish Distinction between Constituencies (Appendix 1, No. 4; Appendix 2, No. 5) We also recommend abolishing the different standards set forth for constituencies composed “primarily” of organizations and those composed “primarily” of individuals. · Representational Focus (Appendix 1, No. 3) The Proposed Process requires that membership of the proposed constituency be limited to a “segment” (or logically related segments) as defined in a recognized classification system (three are listed as examples). Alternatively, the applicant may propose arevamping of the SG into which it seeks membership to provide for an “alternative construct.” The first part of this requirement is overly technical and has no logical or policy basis. The only thing it accomplishes is to introduce a formalistic technical criterion that is not needed, and thatcould act as a barrier to entry. Given the very few number of expected applicants, based on the ICANN experience to date, we believe such a rigid system is completely unnecessary. The second part of this requirement is not an antidote to the first part, because it seems highly unlikely that there will be another restructuring of the Stakeholder Groups anytime soon. If that does occur, it will not be as a result of an initiative by an applicant for admission as a new constituency. · Authorized Letters of Support (Appendix 1, No. 4, Appendix 2, No. 5) Under the Proposed Process, the Applicant/Candidate must provide authorized letters of support from members of the community. While we support requiring documented support, requiring an Applicant to supply ratified letters from Board of Directors committing to participate in the new Constituency is too high of a barrier - few companies will commit to becoming a member of a Constituency that has not yet formed, whose future is uncertain, and whose Charter has not been created. We recommend specifying what is and is not necessary to be included in letters of support and ensuring the bar is reasonable and not set too high. · “Active” Participation Is a Two-Way Street (Appendix 2, Nos. 2, 4) We agree that the Candidate must be willing to attend scheduled meetings, but that it may be difficult for new candidates to break into established Working Groups. We recommend either requiring Working Groups to actively participate with new Candidates, or acknowledge that an exception could be made for Candidates that do show up but through no fault of their own are blocked from participating by the established Working Group and/or Stakeholder Group. B. Delegation of Authority to SGEx Requires Additional Checks on SGEx Power The proposal delegates a considerable and powerful evaluation and decision-making role to the affected GNSO Stakeholder Group at both stages of the process. Under the Proposed Process, an Application will be submitted to one of the two Stakeholder Group Executive Committees (SGEx) in the Non-Contracting Party House – not the Board. The Board must then review and then ratify or reject the SGEx’s decision. Although SGEx decisions are subject to Board review, IPC is concerned about the extent to which the review is being delegated to the Stakeholder Group. A Stakeholder Group’s input is appropriate and important. However, in view of the self-interest involved (e.g., the potential dilution of influence and voting power if new constituencies are approved), we question whether the incumbent Stakeholder Group leadership is the appropriate gate-keeper. We also note that adding new Constituents has different effects on different Stakeholder Groups. The Commercial Stakeholder Group currently allocates two votes to each of three Constituents. It is not clear how the votes should be allocated if a new constituent is accepted, presumably the burden shifts to the new constituent to design an acceptable voting scheme and amend the Charter. The following proposals are designed to help curb the danger that the SGEx could dominate the new constituency process by rejecting applicants who fail to meet existing policy objectives while promoting those that align with their own self-interests: * Create a Separate Committee to Review Applications * Board – SG Committee Rather than delegate the review of applications for new constituencies solely to the affected Stakeholder Group, we propose that the Board establish a special committee for this purpose. The committee should include representatives of the applicable Stakeholder Group, but should also include an equal number of committee members from outside the Stakeholder Group, but within the Non-Contracted Party House. We believe this will result in a broader, more objective initial review. * Alternative – Board & Combined SG Committee As an alternative proposal, we suggest including members from leadership of the other SG group to review the applications, for example, have three members from the affected SG, two from the other SG, and one non-SG board member (who is not affiliated with a contracted party or the affected SG). * Allow Applicant/Candidate Public Response to Committee Decisions Prior to Board Consideration * Formal Rebuttal of SGEx Statements Any Applicant or Candidate that is initially rejected by the committee should have the opportunity to formally rebut the reasons for the rejection and seek Board review of the decision. There should be a process for the Applicant or Candidate to appeal or rebut the SGEx’s evaluation, the Board’s decision, the SGEx’s reconsideration, or the Board’s decision on the SGEx’s reconsideration. Doing so would not only increase the fairness and transparency of the process, in accordance with ICANN’s stated goals[1], but would also give the Constituency the opportunity to rebut any issues the SGEx and/or the Board may have with the AFC or RNR that if addressed, would result in the Constituency being approved to the benefit of ICANN and its stakeholders. * Increase Board Oversight * Make Board Analysis Publicly Available. All of the Board’s decisions regarding the rejection or approval of an Applicant or Constituency, including a decision on the SGEx’s re-evaluation, should be written and publicly available. Such written, publicly available decisions would further ICANN’s goal of transparency for the GNSO Constituency recognition process[2] and be consistent with the public availability of the SGEx’s decisions regarding the Constituency’s candidacy. * Place Stricter Requirements on the Board to Make a Decision. The SIC’s proposal only requires that the Board “shall strive” to ratify or reject the SGEx’s decision within a set timeframe. We recommend instead that the Board should be required to ratify or reject any SG’s decision regarding the Constituency, or make a determination to accept or reject the Request for Recognition (RFR), within two (2) regular meetings after receiving the SGEx’s decision on the RFR. The language that the Board “shall strive to take action” (pages 5 and 6) is vague and does not provide a limited timeframe for the Board to make a decision on the RNR, which contradicts ICANN’s third goal for the Recognition of GNSO Constituencies[3] - a specific but limited timeframe for the recognition of new GNSO Constituencies. Undue delay can potentially prejudice a proposed Constituency when there are time sensitive issues that could affect the Constituency’s stakeholders, especially given the fact that ICANN’s regular board meetings do not fall on set dates. Further, establishing a set time for making a decision on the SG’s decision or the RNR, as the case may be, could insulate the Board from accusations that it unduly delayed making a decision which prejudiced the Constituency. C. Comments on Forms/Tools The Proposed Process contains several Forms/Tools to assist potential new GNSO Constituency Applicant’s/Candidate’s navigate the proposed two-step process. These Tools/Forms include: 1. GNSO Constituency Charter Elements Checklist (Appendix 3); 2. GNSO New Constituency Recognition Flowchart; 3. Application for Candidacy (AFC) as a New GNSO Constituency; and 4. Request for Recognition (RFR) as a New GNSO Constituency and Charter Template. All of these documents are generally straightforward, easy to understand, lay out a framework of what appear to be objective criteria, and appear to conform with the By-laws and Stated Goals. The format and content of the Tools and Forms are also consistent with the requirements and process laid out in the Proposed Process. We note that the new Application for Candidacy form is an improvement over theexisting Notice of Intent form, because it seeks more information and allows for a more thorough initial review. The new Request for Recognition form, on the other hand, seems very similar to the existing New Constituency Petition, and still requires a draft charter. However since this will be prepared only after a more thorough initial review, it may be appropriate. The GNSO Constituency Charter Elements Checklist (Appendix 3), the Application for Candidacy (AFC) as a New GNSO Constituency, and Request for Recognition (RFR) as a New GNSO Constituency and Charter Template will be helpful resources to prompt and assist an Applicant Constituency (or Candidate Constituency) to consider and take all necessary steps to comply with the criteria for each step set forth in the Proposed Process. The GNSO New Constituency Recognition Flowchart is a bit dense, but provides a useful 1 page visual “snapshot” depiction of the entire Proposed Process from start to finish, with an articulation of timelines and who is responsible for each step. III. Conclusion We agree with ICANN that there is a need to improve the current process for forming new constituencies, and applaud the efforts of the SIC. The evaluation criteria are important to combat the lack of transparency in the existing process. However, we believe the process must be thorough and the evaluation criteria should be objective and fair to ensure any new Constituency adequately represents, on a global basis, the stakeholders it seeks to represent, and that its addition will improve the ability of the GNSO to carry out its policy-development responsibilities as required under Article X, Section 5 of the ICANN Bylaws. Thank you for considering the IPC’s views on this important matter. ________________________________ [1] Ibid. [2] Ibid., goal 1. [3] http://www.icann.org/en/announcements/announcement-02feb11-en.htm. Attachment:
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IPC Comments on Prop#BA6A71.doc |