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Summary-Analysis of Comments in Public Forum - New GNSO Stakeholder Group Petitions and Charters

  • To: "sg-petitions-charters@xxxxxxxxx" <sg-petitions-charters@xxxxxxxxx>
  • Subject: Summary-Analysis of Comments in Public Forum - New GNSO Stakeholder Group Petitions and Charters
  • From: Robert Hoggarth <robert.hoggarth@xxxxxxxxx>
  • Date: Sat, 2 May 2009 19:16:26 -0700

Summary and analysis of public comments for:

New GNSO Stakeholder Group Petitions and Charters

Comment period ended: 15 April 2009

Summary published: 2 May 2009

Preparation by: Robert Hoggarth, Senior Policy Director

As part of the comprehensive GNSO Improvements effort, last August the ICANN 
Board approved the formation of four new Stakeholder Groups (SGs).  These SG 
structures represent a new concept for the GNSO that was envisioned by the 
Board Governance Committee Working Group on GNSO Improvements (BGC WG).  In 
accordance with the Board's direction and as facilitated by Staff, as of 5 
March 2009, charter petitions for the Registry SG, the Registrar SG, the 
Commercial SG and the Non-Commercial SG (NCSG) were submitted to the Board for 
review and approval.  A total of five proposed new charters were received as 
two proposals were submitted for the NCSG, one by the Non-Commercial Users 
Constituency (NCUC) and the other by the proposed CyberSafety Constituency.  
The background and role of SGs are described in the GNSO Improvements site 
located at:  http://gnso.icann.org/en/improvements/stakeholder-process-en.htm.

Community comment on the various charter proposals submitted, including their 
adherence to the existing Bylaws, is an important component of the Board's 
evaluation of these petitions and will be used to inform the Board's decisions 
to approve or, at its option, to recommend any alterations or amendments to the 
various submissions.


The forum remained open a few days beyond the 15 April deadline.  At the time 
this summary was prepared, a total of 27 community submissions were posted to 
the forum.  Two comments were unrelated to the topic at hand, two were exact 
duplicates, and one was an apparent spam posting; thus, there was a total of 
23.  The contributors, both individuals and organizations, are listed below in 
chronological order by posting date (with initials noted in parentheses).  The 
initials will be used in the foregoing narrative to identify specific quoted 

Organizations and Groups:

*      Allan Smart (AS) on behalf of himself, Ralph Yarro, David Bailey, Cheryl 
Preston, Debra Peck, and Marsali Hancock
*     INEGroup LLA, by Jeffrey A. Williams (JW) [Note: this post was off topic]
*     Internet Governance Caucus, by Ian Peter and Ginger Paque [18 Individuals 
and Organizations specifically listed] (IGC)
*     Deep Dish Network, by DeeDee Halleck (DDN)
*     Intellectual Property Constituency, by Steven Metalitz (SM)
*     Go Daddy.com, by Tim Ruiz (GDC)
*     Joint Civil Society and NCUC, by Robin Gross [56 Organizations, 31 
Individuals listed] (NCUC)
*     ALAC, by Alan Greenberg (ALAC)
*     AIM - European Brands Association, by Philip Sheppard (AIM)
*     Business Constituency, by Phillip Sheppard (BC)
*     International Association of Media and Communications Research, by 
Annabelle Sreberny (IAMCR)
*     Internet Rights and Principles Coalition, by Max Senges (IRPC)
*     Australian Privacy Foundation, by Nigel Waters (APF)


*     Len Goddard (LG)
*     Debra Peck (DP)
*     Kimberley Heitman (KH)
*     Graciela Selaimen (GrS)
*     Ginger Paque (GP)
*     Rafik Dammak (RD)
*     Milton L Mueller (MM)
*     Andrew A. Adams (AA)
*     Adam Peake (AP)
*     George Sadowsky (GeS)
*     Brenden Kuerbis (BK)


This document is intended to broadly and comprehensively summarize the comments 
of the various contributors to this forum but not to address every specific 
argument or position stated by any or all contributors.  The Staff recommends 
that readers interested in specific aspects of any of the summarized comments 
or the full context of others refer directly to the specific contributions.

Although intended as a public comment forum for all of the SG Charters 
submitted, the majority of contributions addressed only one or both of the two 
NCSG Charter proposals. Only a few commenters discuss or mentioned the other 
charter submissions. One contributor (GDC) offered a simple endorsement of both 
the Registry and Registrar SG Charters without providing any explanation for 
its support.  A couple of other commenters noted, in discussing the NCSG 
Charter proposal submitted by the Non Commercial Userds Constituency (NCUC), 
that certain features of the Registry and Registrar SG Charters were similar to 
those contained in the NCUC version (e.g. membership at the SG level).

The commercial entities of the Business, Intellectual Property, and Internet 
Services Provider Constituencies submitted a "transition" charter in which, for 
the next full year, the three existing Constituencies have proposed to continue 
largely status quo while they work toward developing a comprehensive Commercial 
Stakeholder Group (CSG) Charter.  No comments were submitted to the Forum 
regarding this plan.

As noted above, the majority of the comments submitted in the forum focused on 
the two NCSG charter proposals. Substantive comments focused on several 
thematic areas including: (1) the fairness and potential consequences of 
proposed NCSG voting systems; (2) the degree of linkage between approved 
Constituencies and Council seats; (3) the internal structures within the NCSG; 
(4) the presence of individuals in the NCSF and (5) views on implementation 

The remainder of this document will summarize the comments pertaining to the 
two NCSG Charter versions ("V") submitted by the Non-Commercial Users 
Constituency (hereinafter "V-NCUC") and by proponents of the proposed 
CyberSafety Constituency (hereinafter "V-CSC").

Preliminary Background on NCSG Structural Charter Differences

It is important to understand, at the outset, that the two NSG charter 
proposals present substantially different approaches to the organization of the 
NCSG. The major differences between the two charters concern:  (a) the role of 
Constituencies as presently defined within the ICANN Bylaws, (b) the 
methodology and process for filling the six Council seats assigned to the NCSG 
by the Board, and (c) how each one purports to attract and retain new entrants 
to the GNSO.

In the V-CSC model, NCSG membership consists of only Board-approved 
Constituencies.  Each Constituency appoints a representative to an Executive 
Committee (EC) and that group elects its Chair and Vice-Chair.  Except in one 
particular scenario (see discussion below), there are no elections or voting 
that takes place at the SG level.  In this version, the NCSG, as an entity, 
exists primarily to perform Council seat allocation among its member 
Constituencies according to criteria contained in the Charter.  All other 
functions, including policy development, are delegated to and remain with the 

The V-NCUC proposes that all members of the SG - organizations, large and 
small, as well as individuals - become direct members of the NCSG while 
"constituencies" are voluntary self-forming (ad hoc) groupings that may be 
freely formed and dissolved for the purposes of coalescing and advancing 
particular policy positions.  In this model, constituencies have no electoral 
or voting functions, per se, within the SG.[2]

   1.  The Fairness and Potential Consequences of Proposed Voting Systems

The two NCSG Charters each emphasize support for building consensus in 
decision-making, but they present completely different methodologies for 
electing officers, Council representatives, and making other decisions subject 
to voting.[3]

    Elections:  V-NCUC Prescribes a Simple Majority of Weighted Votes Cast

In the V-NCUC model, elections and voting take place at the SG level and not 
within constituencies.  The proposed election system employs numerical weights 
assigned to each member based upon its category (large-4, small-2, 
individual-1) and the outcome is determined by a simple majority of votes cast 
(except where geographic diversity is a requirement).

Several contributors express concern that a pure majority-based voting system 
tends to (a) concentrate and maintain power among those in control, (b) is 
thereby subject to capture, (c) diminishes the opportunity for minority 
candidates to be elected to office, and (d) discourages new participants from 
joining by making it appear too challenging to gain a foothold.

GeS says, "The way the voting rules are now defined allows a significantly 
large group of individuals to capture the organization without difficulty." AS 
comments, "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."  
AS observes further, "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%."

The ALAC notes that the voting structure proposed in the V-NCUC "makes the NCSG 
very vulnerable to take-over, particularly with the lack of a fee structure 
being specified, and the lack of rules or proposed process which could even 
verify that all individual members are in fact identifiable people acting on 
their own accord."  This "could, over a period straddling two annual meetings, 
allow takeover of all council seats," the ALAC says.

MM disagrees that the voting system necessarily leads to an outcome in which 
all six councilors would be elected by a majority.  MM says, "In the NCUC 
proposal, with individualized votes for 6 Council seats distributed across more 
than 6 candidates, and a requirement that no more than 2 of the 6 be from the 
same region, it is not only possible, but likely, that candidates with less 
than majority support would be elected to the Council."  MM provided an 
illustrative example using a hypothetical 48 voters, 11 candidates (from 5 
regions), electing 6 Council reps.  MM says, "This example is small for 
purposes of simplicity.  If the field of candidates and number of voting 
members increases, the likelihood of getting a single group of candidates with 
exactly the same views on all policy issues across 4 or 5 world regions 
diminishes to the vanishing point.  And that is the point of this integrated 
method of voting.  It encourages candidates to seek support from the entire 
stakeholder group - not just from their own regional cohort or ideological 

To address the threat of capture, the V-NCUC version 6 (submitted during the 
comment forum period) includes a provision to postpone new members from voting 
for a period of 90 days.  While this feature may delay capture for a period of 
time, some commenters note that it could also have a negative effect on 
proposed Constituencies currently petitioning the Board for recognition.  DP 
oberves, "This waiting period 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."

In terms of attracting new organizations and individuals, AS observes, 
"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."

   V-CSC Prescribes One Stakeholder Group Election Scenario

As discussed in Section 2 below, the V-CSC assigns responsibility to the NCSG 
Executive Committee (EC) to allocate Council seats among its member 
Constituencies.  Where the number of Constituencies is a multiple of 6 (e.g. 2, 
3, or 6), the seats will be divided evenly.  In the case where there is one or 
more odd seat, a set of criteria and a supermajority voting method are 
described that the EC would use to determine which Constituency should be 
granted the extra seat(s).  In the event that no decision can be reached under 
this provision, the charter provides for a general SG election where each 
individual member of recognized Constituencies is permitted to cast a single 
vote to determine a winner among a slate of nominated candidates.

This charter provision did not receive much attention among commenters in the 
public forum; however, MM observes that in the V-CSC a "...breakdown scenario 
occurs when the constituencies are not evenly sized." He also observes that the 
proposed structure presents its own "gaming" threats.

MM says the only remedy to resolve conflicts when constituencies are not evenly 
sized is for the Executive Committee (EC) to apportion an 'extra seat' to one 
constituency, at the expense of other(s), based on a petition.  But, he says, 
"this requires that the Constituency losing a seat agree to divest itself, 
which seems unlikely."  The V-CSC charter, he says, "does not resolve the 
problem.  The list of factors to be used in making these decisions is just that 
- an open-ended list, not a clearly defined decision rule."  Moreover, MM says, 
"there are many ways in which membership size can be gamed.  One constituency 
might have a nominal membership of 80-100, but only 5 or 6 active 
participants."  MM notes that in the kind of SG-wide election proposed by the 
NCUC, "members who are not active enough to vote have no influence.  In the 
[other] proposal, one can easily use membership 'on paper' to gain votes."

   2.  Linkage Between Approved Constituencies and Council Seats

Whether or not there should be a direct linkage between each Board-approved 
Constituency and a minimum number of Council seats is another significant 
difference between the two NCSG Charter proposals.  Underpinning this debate is 
the central question about what the definition and meaning of the term 
"Constituency" should be within a reconstituted GNSO and what roles, rights, 
and responsibilities should such an entity have within the organization.  A 
corollary concern deals with the ability to attract and retain participants in 
either model.  As DP observes, "The goal is to bring in new participants and 
expand the range of representation in the GNSO."

Commenters in favor of the V-NCUC expressed concerned about the "hard-wiring" 
of Council seats to Constituencies, especially due to arithmetic problems that 
could occur when the number of Constituencies is unevenly divisible by six as 
well as a circumstance in which the Board approves a number of Constituencies 
greater than six.

In opposition to the hard-wiring of Council seats, DDN says, "Such a model 
cannot be a long-term solution and requires constant re-negotiation over 
limited council seats every time a new constituency is approved, tying up 
scarce NCSG resources and energy with internal disputes rather than shared 
goals."  AP is also concerned about this and notes the need to "de-link" 
constituencies from GNSO Council seats. He fears that "competition for seats 
and power will make constituencies less effective in collaboration and 
representation of non-commercial interests."

MM articulates how the problem manifests itself in the V-CSC, "Another obvious 
breakdown point for the constituency model occurs when the number of 
Constituencies is not evenly divisible into 6.  For example, if there are 4 or 
5 Constituencies and 6 Council seats, the presumption of an even division of 
Council seats among Constituencies breaks down.  In that case, the EC has to 
allocate what the charter calls an 'extra seat.'  ... But with 4 or 5 
constituencies, there could easily be a deadlock.  With 4 Constituencies, you 
could get a tie; with 5 constituencies you could easily get a 3-2 vote that 
fails to achieve the 2/3 majority required for making the decision.  Deadlocks 
are likely - why would any constituency vote to reduce its share of the total 
number of seats?  This feature of the [V-CSC] proposal locks the NCSG into a 
perpetual zero-sum game of political infighting.  Members of a constituency can 
gain influence only by reducing the influence of another constituency."

On behalf of the V-CSC, DP explains, "The [CSC] charter seeks to allocate 
Council seats evenly to any constituency the Board sees fit to approve, and 
then extra seats, if any, through a consensus model before resorting to a more 
administratively involved voting system.  This simplified model will allow to 
the NCSG to focus on more important policy matters, rather than administrative 

On the matter of what happens when the Board approves a 7th Constituency, MM 
observes about the V-CSC, "The System Self-Destructs.  The most obvious 
breakdown scenario occurs when the number of recognized constituencies exceeds 
the number of seats on the GNSO Council.  This scenario poses deep problems for 
the Constituency model.  The main rationale for the Constituency-silo model is 
that it guarantees a voice on the Council to each Constituency.  But in this 
scenario, the Constituency model cannot guarantee that.  We really don't know 
what would happen under the [V-CSC] proposal if the Board recognized more than 
6 NCSG Constituencies.  This by itself is a fatal flaw."

Supporters of the V-CSC approach seem content to leave such structural 
complexities with the ICANN Board and to trust its judgment in the formal 
recognition of new Constituencies.  AS says, "Board approval of constituencies 
provides opportunity to ensure that the constituency is sufficiently broad and 
represents a significant category of non-commercial user interests."

On the topic of being able to recruit new members, MM says, "By detaching 
Council seats from constituency formation, we make it much easier to form 
constituencies.  This makes it possible to have more constituencies and thus 
more diverse voices and sub groupings within the NCSG.  Constituencies receive 
seats on the Policy Committee, which gives them influence over policy 
formulation, membership and other important things.  The NCSG is required to 
include the policy positions of each recognized constituency in any comments it 
makes on policy issues to the GNSO as a whole.  This assures that substantial 
minority voices will be well-represented."

The ALAC, observes, "The issue of Council seats cannot be ignored.  Although 
policy will likely be architected by Working Groups with open participation, it 
will be Council that decides what policies to address and what the WG charters 
will include.  Without a voice on Council, a Constituency may not be able to 
effectively participate in the discussions leading to these decisions.  And 
without an effective voice, there will be little incentive to bring new, 
non-commercial players into the gTLD policy arena -- one of the main reasons 
for the current reorganization and for the significant growth in the NCSG 
weighting compared to the NCUC in the current model."

   3.  Internal Structures Within the NCSG and Capture Concerns In Both 

The V-NCUC proposes a single Policy Committee comprised of a representative 
from each Constituency (recognized self-formed grouping), six Council 
representatives, and a Chair elected by the entire SG membership.

The V-CSC proposes a single Executive Committee (EC) comprised of a 
representative from each Board-approved Constituency and led by a Chair and 
Vice-Chair elected from the appointed representatives.

In his statement contrasting the two charter proposals, MM notes a number of 
capture concerns with the V-CSC's Executive Committee.  He says, "The small 
size of the EC, coupled with its important powers, makes it relatively easy for 
a dominant group to emerge and capture it."  He offers the following scenario 
as an illustration, "Let's say there are three Constituencies, and two of them 
believe basically the same thing and the third represents a viewpoint opposed 
by the others.  Not an unlikely scenario.  With a 2/3 majority on the EC, a 
group of exactly two people could dictate the Chair of the NCSG and strip the 
other Constituency of one or more of their seats on the Council.  It could also 
eliminate the other Constituency's influence over policy.  ... EC decisions 
occur without any direct ratification by constituency members, and there is no 
possibility of appeal."

MM also observes that the V-CSC is subject to potential EC deadlock when the 
number of Constituencies is small.  MM says, "In the CyberSafety proposal, the 
Executive Committee (EC) is composed of one delegate from each recognized 
Constituency within the NCSG.  This means that whenever there are disagreements 
between constituencies, EC can easily result in deadlocks.  This becomes 
especially problematical when there are only two Constituencies.  Two 
Constituencies is not a hypothetical or unlikely scenario - if the Board 
accepts the CyberSafety Constituency (CSC), there could for the foreseeable 
future be only two (rather hostile) noncommercial Constituencies in existence: 
CSC and NCUC.  If there are only two noncommercial constituencies, then any 
disagreement between constituency leaders will produce an insoluble deadlock.  
The NCSG would not even be able to elect a Chair."

While proponents of the V-NCUC argue that the V-CSC's EC can be potentially 
captured and/or deadlocked when the number of Constituencies is small (2 or 3), 
AS describes potential numerical scenarios that similarly affect the V-NCUC 
structure.  In describing this V-NCUC weakness, AS says, "The Policy Committee 
is composed of ... one representative from each Constituency [and] 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."

In the case of "Too Few," AS notes, "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."

Addressing the next scenario of "Too Many," AS continues, "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."

In its comments supporting the V-NCUC the IGC says, "It makes it easy to form 
constituencies or affinity groups, but avoids fragmentation of noncommercial 
stakeholders into independent constituencies..."

The possibility that Constituencies would be easy to form poses a concern to 
the proponents of V-CSC.  DP says, "The NCUC proposal permits individual 
representations from any three organizations of any size OR any ten individuals 
to form a constituency and put someone on the stakeholder group policy 
committee.  And since people can be in three constituencies at the same time, 
any single group of three organizations could create three full constituencies. 
 The NCUC proposed structure creates its own artificial incentives to create 
constituencies ... without any oversight other than counting to three and 
making sure no 'commercial' users have snuck in by disguise."

Support For Participation In NCSG By Individuals

Forum commenters did find common ground regarding the participation of 
individuals in the new NCSG.  The ALAC says, "the inclusion of individuals [in 
the NCSG] is satisfying on a number of levels."  The ICC, GDC, GeS and RD all 
also commented favorably about the potential for participation by individuals 
in the NCSG in various ways.

Implementation Timing - Calls For Further Deliberations

The IPC, ALAC and a few other commenters shared views that the Board should 
take more time to make a decision regarding the NCSG. The Intellectual Property 
Constituency (IPC) submitted a statement asking the Board to delay the Council 
Restructure on the basis that the current and near term projected state of the 
NCSG's formation does not adequately reflect the breadth and depth that the 
Board stipulated and that was part of the GNSO Council Restructuring Working 
Group consensus agreement.

The IPC says, "Our objection is based on the fact that the non-commercial 
stakeholder group fails to meet pre-established objective criteria for 
diversity and representativeness, as called for in the recommendations of the 
July 2008 report of the 'consensus group' on GNSO restructuring (now referred 
to as the Working Group on GNSO Council Restructuring)."  The IPC continues, 
"To seat six representatives of the NCSG on the GNSO Council in June 2009, no 
matter whether they are chosen by constituencies or otherwise, would be unfair, 
illegitimate, and contrary to the expressed intent of the Board Governance 
Committee which created the new GNSO structure."

The IPC emphasizes that its concern is independent of the two charter versions. 
 It explains, "Both NCSG charter proposals contemplate the selection and 
seating of six noncommercial representatives to the GNSO Council by a group 
that still lacks the requisite diversity and representativeness, especially 
with regard to the categories of non-commercial entities identified by the 
Board Governance Committee report, such as 'educational, research, and 
philanthropic organizations, foundations, think tanks, members of academia, 
individual registrant groups and other noncommercial organizations.'  It is 
time for the Board to step up to this problem and provide an alternative 
mechanism for filling these seats, and to defer the seating of the new Council 
until this mechanism has been established."

Both AIM and the BC express support for the IPC's position to postpone the GNSO 
Council Restructure.

In a related statement not specifically directed to the IPC's submission the 
ALAC states, "It now looks like there may be one or more actual new 
non-commercial Constituencies that could receive Board approval.  It would be 
far more satisfying to defer the long-term charter of the NCSG until these 
Constituencies could be present at the table and speak on their own behalf.  
Until such time, an interim model linking seats to Constituencies could be 
used.  Clearly that model would need to be replaced prior to the existence of 
more than six constituencies."

GeS suggests that the Board should accept neither plan at this time, "but if it 
is at all possible, somehow give encouragement to the current NCUC group to 
rethink those aspects of the plan that have been rationally criticized by 
others, and come up with a better version that attempts to remedy the problems 
that have been pointed out by its critics."  He says further, "We are nowhere 
near even rough consensus on this issue. I believe that closing the door now 
will leave fractures in the non-commer[ci]al community that will be difficult 
to heal. I see little [b]enefit to proceeding without a better consensus 
regarding the direction in which we are proceeding."


The ICANN Board is likely to consider all the relevant community input and move 
forward with guidance regarding all the SG submissions as soon as practicably 
possible.  Any decisions with respect to the approval of the existing SG 
Charters will likely take place in the context of the GNSO Improvements 
implementation processes.

[1] AS and DP submitted comments in support of the V-CSC.

[2] The V-NCUC was specifically supported by IAMCR, IGF, AF, DDN, AP, AA, GP, 
GrS, BK, KH, ICC, GDC among others.

[3] It is interesting to note that the NCUC's Stakeholder Group Charter and the 
CyberSafety Constituency Charter (not the subject of this public comment forum 
see http://www.icann.org/en/public-comment/#cybersafety) both use a similar 
methodology that assigns weights to different categories of membership.  While 
there are minor variations in the definitions, both groups assign 4 votes to 
Large organization members, 2 votes to Small organizations, and 1 vote to 
Individuals.  The major difference, as noted above, is not how weighted voting 
is determined, but where voting takes place (SG vs. Constituency level).  
Another important distinction between these two documents is that the 
CyberSafety Constituency Charter adopts "cumulative" voting whereas the NCUC's 
NCSG Charter employs a simple majority system.

Attachment: Summary of SG Public Comment-Closed 1 May 09 Final.doc
Description: Summary of SG Public Comment-Closed 1 May 09 Final.doc

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