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[npoc-voice] Urgent Fwd: At Large White Paper

  • To: npoc-voice <npoc-voice@xxxxxxxxx>
  • Subject: [npoc-voice] Urgent Fwd: At Large White Paper
  • From: Cintra Sooknanan <cintra.sooknanan@xxxxxxxxx>
  • Date: Wed, 2 Jan 2013 13:36:39 -0400

Dear Members,

Please see the attached comment drafted on behalf of NCSG by Mary Wong with
the original R3 White Paper found at
https://community.icann.org/download/attachments/34603268/R3+-+Paper+FINAL+-+EN.pdf?version=1&modificationDate=1350161916000
.

I am in agreement with Mary's points and willing to sign on. Do let me know
if there are others in NPOC who would also wish to endorse this statement.
The deadline is 23.59 UTC today therefore your very early response is
appreciated.

Kind regards

Cintra Sooknanan

---------- Forwarded message ----------
From: <Mary.Wong@xxxxxxxxxxx>
Date: Wed, Jan 2, 2013 at 11:46 AM
Subject: Re: At Large White Paper
To: NCSG-DISCUSS@xxxxxxxxxxxxxxxx


Hello everyone,

As the deadline for public comments on the At Large R3 White Paper is
today, I thought I'd put together a short general comment that I can submit
either on behalf of NCSG members who wish to sign on as well, or if not,
just as a personal comment. At the moment there is no other submission;
nonetheless (and perhaps even more as a result) I know that many of us
would like to see NCSG, NPOC and NCUC become more active on all policy
fronts, including submitting public comments on just about all issues of
interest to our members.

Please reply to the list with comments and if you wish to be included as
signing on to this comment, and I will add your name (and your organization
if applicable/desired). Thank you, and a happy new year to all!

My draft comment is attached (and I hope it goes through!)

Cheers
Mary




Mary W S Wong
Professor of Law
Director, Franklin Pierce Center for IP
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW
Two White Street
Concord, NH 03301
USA
Email: mary.wong@xxxxxxxxxxx
Phone: 1-603-513-5143
Webpage: http://www.law.unh.edu/marywong/index.php
Selected writings available on the Social Science Research Network (SSRN)
at: http://ssrn.com/author=437584

>>> Avri Doria <avri@xxxxxxx> 12/25/12 1:36 AM >>>
hi,

On 23 Dec 2012, at 13:45, Milton L Mueller wrote:

>> -----Original Message-----
>>
>>
>> Ithink most everyone can recognize that the strict direemption of the
>> Council and the Houses was a really bad idea.
>
> [Milton L Mueller] I don't agree. Even though I am not sure what
"direemption" is....
> The problems of the GNSO are manifold, but none of them that I can see
are related to the balancing act involving the Houses.

a misspelling of diremption: to forcibly rend into two parts

>
>> I think we see stakeholders who want to be involved but can't be
>> involved because their don't fit the US vs. THEM divisions. I think we
>> see attempts to shoehorn new stakeholders into groups that don't really
>> fit.
>
> [Milton L Mueller] true. But this is for political reasons, i.e., BC/IPC
don't want new constituencies in CSG and they want to further dilute NCSG
by throwing new constituencies at us. This kind of game will continue - or
get worse - as long as the representational structure is unstable.

I think political reasons are just one of the kinds of reasons.

>
>> We have inconsistent application for the Constituency/Stakeholder
>> mandate from the Board.
>
> [Milton L Mueller] Not sure what you mean by this.

The RySG is allowed to create just the ad-hoc types of grouping we
advocated, i.e. Interest groups. They are not being held to the same strict
divisions into ICANN hardened constituencies that were required for NCSG.

>
>> In the contracted house, we see a situation
>> where soon, just about every company will belong in the two of the
>> Stakeholder groups, so subsidiaries will join different Stakeholder
>> groups.
>
> [Milton L Mueller] True. So what?

It means they orchestrate the Contracted Party veto with greater ease.

>
> In the NonContracted parties house, we have to recognize that
>> the world is not strictly divided between the Non-Commercial and
>> Commercial and there are Registrant/User groups that have both aspects,
>> and that there are a variety of technical stakeholders who need a varied
>> representation model.
>
> [Milton L Mueller] disagree.
> [Milton L Mueller] Basically you, and many people in ICANN, are spending
an inordinate amount of time chasing after the chimerical idea that some
kind of perfect representational structure can be frozen into place and
will perfectly correspond to everyone's identity. Stop chasing that ideal,
it will never be found, any more than you will find the end of the rainbow.

Actually I have been arguing for the more adhoc structure for a while, I
just accept that constituencies exist and that they should get seats on
nomcom etc. So i figure it is good to use the system we have got.

I do not think we have ever debated the nature of a sustainable & evolvable
organizational structure, so I doubt you know my views of dynamic
organizational architectures.


> What we need is simple: A basic balance of power/interests among industry
suppliers, trademark/brand interests and noncommercial users.

the need is simple.
the way to achieve it complex.

> One of the biggest problems with the current structure is the idea that
new constituencies - and thus new power centers and resource demands - can
be created at any time. We already know that this is a never-ending source
of political gamesmanship and until and unless it stops, we will have to
pay great attention to this internal stuff instead of actually developing
policies.

I do not quite understand how you simultaneously seem to argue for an
evolving structure but with no new entities.

As for wasting time with structure instead of policies, I think most tend
to work on both recognizing that in an organization like ICANN the one
affects the other and dirempting them into two different classes of thing,
one 'that is a waste of time' and one 'we should be doing' misses the point.

>
> The other big problem with GNSO is that the Board does not respect, and
the GAC does not respect, it as the "bottom" in the bottom up policy
development process. That is a problem that dwarfs all the others. Until
that changes, the representational structure of the GNSO is really a minor,
secondary issue.

I agree, the Board needs to respect this.
I think the GAC can push as hard as it wants for its PoV.
As can we.


>
>
>> Mostly we have to review the notion of the regulated having an effective
>> veto in regard to their regulations. I am well aware that this is a
>> vestige of regulation by contract and the nature of picket fence, but
>> once we realize that these contracts are not regular contracts but are a
>> form of regulation, it becomes less obvious that Contracted Parties
>> should have an effective veto over changes to the regulations. A fully
>> participatory set of roles and responsibilities, certainly, but not a
>> veto. Until that gets fixed, ICANN remains vulnerable to calls of CoI
>> and malfeasance.
>
> [Milton L Mueller] These are good points, I may not agree with all of
them but it is a conversation we need to have. However, it pertais to the
constitution of ICANN and thus is way beyond our remit as NCSG or even
GNSO. I will set this one aside for another day, another forum.
>
>> I think that if ICANN is a new form of multistakeholder regulatory
>> organization, it should have something to say about the ccTLDs. It is
>> ridiculous that ccTLDs are not bound by a same basic rules as the
>> gTLDs. Sure issues of administration have a sovereign aspect to them,
>> but the basic registrant and user protection should be equivalent. I
>> admit I have more sympathy for the ccTLD that focuses on their country,
>> and perhaps its diaspora, than I do for those who walk and quack as
>> though they were gTLDs, except for when it comes to responsibilities
>> including registrant and user protection. I understand that this is
>> linked to the nature of ICANN as an organization subject to California
>> law. I have argued and keep arguing for progress on the evolution of
>> becoming a free standing organization, with appropriate multistakeholder
>> oversight, that is hosted by a country without being subject to its
>> political whims. I think it is important that all TLDs have a similar
>> basic regulatory aspect.
>
> [Milton L Mueller] same as above. Too big an issue for this forum. And
the politics that produced the current equilibrium are unlikely to change.
> Furthermore, I am not sure it is an improvement to create a centralized
form of regulation that applies to ALL TLDs, rather than just to gTLDs. At
the current moment I view ccTLDs as basically outside the regime, and that
is basically a GOOD thing, though I agree with Avri that many ccTLDs play
both sides of the fence.

I am not sure that this forum is limited from these topics in so far as
they may have an effect on the governance of gTLDs and the competitive
environment they exist within. This was another division into two separate
things that I think is problematic.

But yes, some of it is for a broader discussions that NCSG can opt to stay
out of. I was more speaking of the topics in the R3 document, not the
NCSG's specific charter.

>
>> I was on the committee that produced this dog's breakfast of a GNSO
>> organizational modality. As is too often the case, I was the only
>> dissenting voice. In the end I only agreed to stop fighting about it
>> because it could be undone a few years later if the experiment failed.
>> It failed. It is time to undo it. I think the contributions from R3
>> should, and will, be fed into the analysis that is done on the upcoming
>> GNSO review.
>
> [Milton L Mueller] what failed, exactly?
> What is your criterion for determining success or failure?
> I bet you an expensive cocktail at an overpriced ICANN hotel that you
cannot define such a criterion without invoking the process failures (e.g.,
IOC/RC re-dos, GAC overrides, etc.) that have absolutely nothing to do with
the GNSO's organizational modality.

That is challenge I will accept. I need to think on it and work on it a
bit. But I have time until our next drink in an expensive ICANN hotel.

And while I will leave out specific policy points of process failures, I do
not think process failures qua process failures can be left out when
talking about the failure of an organizational design. An organization that
encourages process failure is a failure. Of course I have yet to prove that
this is the case or not.

As an ex-chair of the GNSO council and the current NCSG representative on
the GNSO Standing Committee on [GNSO] Improvements, if I am going to
declare the current structure a failure, then I better be able to back it
up with a coherent argument. I will work on getting my statement done in
time for the document deadline for Beijing.

BTW, I hope the bet doesn't necessarily include one of us convincing the
other - as way back when you were a proponent of the current GNSO structure
while I was an opponent. If that is the case, I expect we both be paying
for our own drinks at the end of the day. Or maybe we will both be buying
the other one an expensive drink.

cheers, and happy celebrations

avri

Attachment: Comment on R3 Paper.docx
Description:



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