Cyber Safety Constituency Response to version 6

[Allan Smart <getsmart22@xxxxxxxxx>]

CyberSafety Constituency Response to Version 6,
NCUC-proposed NCSG Charter
16 Mar. 2009
Submitted by Ralph Yarro, Allan Smart, David Bailey, Cheryl Preston, Debra
Peck, Marsali Hancock

Below are specific responses to statements made in summary of the NCUC
proposal in the cover letter to version 6, 16 March 2009; From: Robin Gross,
Chair, Noncommercial Users Constituency.
(The CSC Comments to the NCUC letter are highlighted in red.)

1. Essential Elements of the proposal:

1. Noncommercial stakeholders join the NCSG directly, and the NCSG keeps
track of membership and administers voting for Council seats by the
membership as a whole.  Under the NCUC proposal, a 50.1% majority vote of
NCSG members will elect the NCSG Chair (who also has tie breaking authority
on the Policy Committee) and all six GNSO Councilors.  The interests of
49.9% of the membership can thus be excluded from any representation on the
GNSO Council.

2. The NCSG is administered by an annually elected Chair and a Policy
Committee. The Policy Committee is composed of the 6 elected GNSO Councilors
and one representative from each Constituency.  The Policy Committee
includes the majority-elected Chair and 6 Councilors.  It will function
effectively only when the number of constituencies is not too few or too
many.
Too Few.  With 8 or fewer constituencies, the PC may be composed of a Chair,
6 Councilors and one representative from a single constituency (for a total
of 8), and thus the mere majority of members (who elected the 6 Councilors
and Chair) could outvote everyone else on the PC.  With 9 constituencies, it
could be a tie, but the majority-elected Chair is the tie breaker.
Too Many.  Things may function on a more balanced basis when more than 9
constituencies are formed, but at that point the number of persons on the PC
is 17.  Working with a committee of 17 or more persons is very cumbersome
and ineffective.  If, as was suggested by NCUC at the Mexico City meeting,
dozens or hundreds of constituencies will form under this proposal, the PC
will be paralyzed.

5. We have de-linked Constituency formation from Council seats so that NCSG
participants do not have artificial incentives to fragment into competing
groups, ensuring that a voting system, conducted through all members of the
SG, will result in a better and diverse representation on the GNSO than any
other model that strings the formation of a Constituency to a seat the
Council, favoring corporatism over democracy.  Having all elected positions
determined by a bare majority does not broaden representation until there
are enough participants so that no singular viewpoints can control a
majority.  In the meantime, potential new entrants will be discouraged with
the possibilities for meaningful voice.  The majority voting system proposed
is identical to the one in place in the current NCUC.  Efforts by newcomers
to be involved in the NCSG Charter development process were summarily
dismissed without meaningful discussion in that system.  A majority vote
system within a stakeholder group with such diverse viewpoints rewards
finding “votes,” but does nothing to require discussion or actual
participation by “voting” members.  Additionally, since members may join up
to three constituencies, the exact same group of people could theoretically
form three constituencies with allegedly differing objectives, and put three
people on the PC.
It would, however, be a vast improvement over the NCUC format to have the
list of eligible voting members and numbers of votes allocated open to
everyone in the stakeholder group.  The votes should also be made public
following elections to ensure accountability.
To protect the voice of minorities in the policy process, we require all
NCSG representatives on the GNSO Council to vote in favor of the formation
of a Working Group if it has the support of 1/3 of the constituencies or 1/5
of the whole membership.  The ability to work together and submit a proposal
to the GNSO is also available to the public, without membership in any GNSO
stakeholder group.  Any person or group can create its own project group and
work themselves for months at any time.  They can then submit a public
proposal to ICANN or the GNSO.  A working group formed under this charter
has no special deference or significance requiring it to be taken any more
seriously than a public proposal.  Both can be equally ignored.

2. How our proposal addresses Principles and Goals of the GNSO Improvements
process:

Principle 1: Visibility and Transparency.
When noncommercial stakeholders are fragmented into independent
constituencies, each with their own mailing list, administrative structure
and representatives, it is literally impossible for an ordinary
noncommercial organization to keep track of them all.  On the other hand a
mailing list that includes all members of the stakeholder group, which
hopefully will become at least dozens, will be ineffective.  No one will
read all posts.  The individual groups will still need to create smaller
communications organs to discuss who to place on the PC, what policies they
support, what working groups they wish to form, etc.  A stakeholder-wide
mailing list is available under either proposal.  Noncommercial stakeholders
in one constituency would have no idea what is happening in other
constituencies.  That information will be available in the same way that
NCSG stakeholders obtain information from other ICANN entities, such as the
business users stakeholder group.  The CyberSafety Charter proposal includes
a mechanism for organizing meetings and discussion among various
constituencies within NCSG.

Principle 2: Representativeness.
Our proposal enhances representation in several ways.  First, by adopting a
model of flexible and easy-to-form constituencies as subunits under the
NCSG, we allow a far more diverse set of interests and coalitions to form.  The
ability to form loose and perhaps frivolous constituencies runs the risk of
gaming to get a spot on the PC.  The incentive will be to form multiple
constituencies each with the minimal number of participants, 10 individuals
or 3 organizations, each of whom may also be counted as a member of two
other NCSG constituencies.  Board approval of constituencies provides
opportunity to ensure that the constituency is sufficiently broad and
represents a significant category of non-commercial user interests.  Most
important, through unified voting for GNSO Council seats, our proposal
ensures that whoever represents noncommercial stakeholders on the Council
has support across all constituencies, not just a bare majority of a small
subgroup of the SG.  This proposal does not guarantee that Councilors have
support “across all constituencies.”  All that is required is a bare
majority of the stakeholder group.  A proposal to permit cumulative voting
or to require a certain percentage of each constituency in support would
perhaps make the voting system meaningful.  But a mere majority does not
necessarily require any outreach to the other 49%.

Principle 3: Consensus.
Once a constituency controls specific Council seats/votes, they have little
incentive to seek support from other Council members for their views or
their representatives.  All councilors will have the incentive of reaching a
consensus with others on the GNSO Council, the same as the representatives
from other constituencies and stakeholder groups.  Further, the CSC Charter
provides guidelines to councilors in terms of fairly representing the full
NCSG.  We already have evidence from this; we note that none of the “new
constituencies” currently being proposed for the Noncommercial Stakeholders
actually represent newcomers to the ICANN space.  All of them are existing
members of NCUC or RALOs who wish to gain seats on the Council without
having to win an election among a large number of other noncommercial
entities and individuals.  All those who attended the NCUC meeting in Cairo
know that most of the new members are those who intend to be participants in
the proposed CSC.   The NCUC brags below in this letter of a recent 40%
increase.  Because we cannot obtain a member list it is difficult to
determine with precision, but a substantial number of these are
organizations and persons who became involved for the purpose of
participating in the CSC and joined the NCUC in a (thwarted) attempt to be
involved in developing a NCSG charter proposal through NCUC.  The Fall 2008
NCUC elections raised approximately 23 votes.  A 40% increase would be
approximately 10 new members.  At least 6 of these are new CSC participants
introduced at the Cairo meeting.  In addition, most of the others on the
proposed CSC member list had no prior involvement with NCUC or a RALO prior
to posting the Notice of Intent to Form the CSC Constituency. Our proposal
understands that policy development in the new GNSO will not come from a
Council acting as a legislator, but from consensus-based Working
Groups. Working
groups can make proposals to the GNSO, as can any public participant.

Principle 4: Flexibility and Adaptability.
The old constituency model is broken.  It rigidly assigns Council seats and
representation to categories of users that are constantly changing,
categories that may overlap in numerous ways.  Dividing the world up into
mutually exclusive categories known as “constituencies” is always bound to
exclude some people who don’t fit the categories, and at the same time
over-represent entities who qualify for two or three of the categories.  A
group who does not fit in an existing constituency may petition to form a
new one under a constituency model.  In addition, the NCUC proposal permits
one person or organization to participate in three constituencies and thus
be over-represented.

3. Changes made to the previous (2/28/9) version of the proposal:

Dealing with “Threat” of Capture.

Nonetheless, in response to this perceived threat of capture, we have
extended the minimum voting eligibility period for new Members to 90 days
(Section 3.4.3).  Such an adjustment should allow opportunity for
countervailing interests to form, preventing the flooding of new members’
right before an election with the specific purpose of winning it, without
any actual engagement of such members in the discussions and activities
pertaining to the Stakeholders Group.    Does the 90 days run from the
Notice of Intent to form a new constituency, from filing the Petition and
Charter for a new constituency, or from when the ICANN Board formally
approves a petition to form a new constituency following the 30 day comment
period currently running?  How can the participants in the proposed CSC
“join” a NCSG that has not formed?   The measurement of 90 days could
effectively preclude any new participants from voting until after the June
ICANN meeting and after the existing and new councilors reach the end of
their two year terms. A 90 day rule only favors existing participants; it
does not foster new involvement.
The current constituency-based model actually aggravates problems of capture
because it potentially institutionalizes special interests.  Once a
constituency has formed and been allocated seats, there is no reasonable
mechanism to remove a constituency’s representatives from the Council, no
matter how the broader membership base may change.  As long as the Board
maintains the right to approve constituencies, and the GNSO can be
restructured (as is currently occurring), the reformation, compression or
expansion of constituencies is available.  We partially address this concern
by now requiring final approval of Constituencies by the ICANN Board
(Section 2.3.1).  This provision is the same as the CSC proposed Charter.

Dealing with the demand for diversity in representation on the GNSO Council:

One approach suggested that an interim system in which each Constituency
would be granted an automatic seat at the GNSO Council could be created as
long as no more than six Constituencies exist within the NCSG structure.
 This suggestion not only fails to provide a long-term solution for the
issue, it also creates artificial incentives for the formation of groups
that have little concern for the wider range of the membership who the NCSG
Council must serve. The NCUC proposal provides NO long-term solution.  The
proposal calls for administration by a Policy Committee populated with 6
Councilors, a Chair and a representative from each constituency. Once a
dozen constituencies are formed, the PC will be too unwieldy to function.
 It also fails to provide a short-term solution.  Until at least 9
constituencies are formed, the PC may be captured by a 50.1% majority.  The
outcome of an interim decision like that would encourage the election of
NCSG Councilors who have little or no incentive to reach out to other views
and constituencies that naturally constitute the non-commercial interest in
ICANN.  The NCUC proposed structure based on a unitary organization with
majority voting is identical to the existing NCUC structure.  Over the
course of several years, this structure has not been effective in supporting
meaningful inclusion of new and broader interests.

Other questions on NCUC proposal, version 6:

1. Is the Secretary-Treasurer who is involved in admitting new members in
section 2.2.6 the same as the Secretary of the PC?

2. Why are constituency charter-drafting meetings required to be open to the
general public under 2.3.1 3), given that the charter must also be submitted
to the PC for ratification in 4)?

3. The end of section 2.0 of version 6 states:  “Constituencies can exclude
NCSG members who apply to join them based on an objective and
nondiscriminatory application of their eligibility criteria.”  A charter for
a constituency can only be reviewed for compliance with the requirement for
a sufficient number of participants and the non-inclusion of commercial
interests.  Thus, couldn’t “eligibility criteria” be drafted include any
number of things that cannot be applied in an “objective and
nondiscriminatory” manner?  If all communications are open to all
stakeholders, rather than by constituency, what is the necessity for
excluding some participants in any constituency?

4. Will funds be allocated for the benefit of all of the stakeholders and
constituencies? Or will each constituency be free to raise its own funds?
 Who shares in the NCSG membership fees and donations such as those received
by NCUC in the past from the Public Interest Registry?

5. Section 3.3.2 d) provides that “upon the request of one or more NCSG GNSO
Council Representatives, [the PC may] provide advice on how the NCSG GNSO
Councilors should vote or what position to take on specific GNSO policy
issues.”  Does this mean that policy positions are developed by in the PC
only if one of the 6 councilors requests advice?

6. Section 3.4.5 retains the language that, for purposes of regional
representation on the Council, either mere citizenship or mere residence is
sufficient.  How does this reconcile with the recommendations that ICANN
focus on a much deeper and more meaningful representation of regions that
these two factors?  (The report of the ICANN Geographic Representation
Working Group is available at
http://gnso.icann.org/drafts/icann-geographic-regions-26aug08.pdf .)

7. When an organization includes so many who travel internationally, host
long conferences, and require translation, is a voting period of only one
week under 3.5.4 sufficient?

8. Can you explain section 3.5.7, “policy positions that reach broad
consensus within the NCSG Policy Committee are binding on the NCSG
Councilors’ votes cast on the GNSO Council”?  Does this mean that councilors
are bound to a particular policy position if it is “broadly” accepted in the
PC?  What does “broad” consensus mean when the councilors themselves are the
majority on PC?  Does this provision override the ability of a councilor
elected by a mere majority to vote with the interests of that majority?
 Does a “broad consensus” require more or less than a majority of members?