Summary-Analysis of Comments in Public Forum - New GNSO Stakeholder Group Petitions and Charters
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 I. BACKGROUND 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. II. GENERAL COMMENTS & CONTRIBUTORS 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 contributions. 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) Individuals: * 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) III. SUMMARY & ANALYSIS 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 timing. 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 Constituencies. 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. 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. 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 faction." 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 details." 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 Proposals 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." IV. NEXT STEPS 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. ________________________________  AS and DP submitted comments in support of the V-CSC.  The V-NCUC was specifically supported by IAMCR, IGF, AF, DDN, AP, AA, GP, GrS, BK, KH, ICC, GDC among others.  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.
Summary of SG Public Comment-Closed 1 May 09 Final.doc