Section 8 - Enhance Constituencies

A case was put to us that the existing division of constituencies does not well serve “brands” that are, increasingly, acquiring their own TLDs in which they can be registries, registrars and business users, and within which policy rules may be different from open TLDs.

Suggest clarification:

A case was put to us that the existing GNSO Structure fails completely to serve “brands” that are, increasingly, acquiring their own brand registries. The business objective and internal policies of brand registries are radically different to the open registries around which the current GNSO was created. The charter of the Registry Stakeholder Groups does not allow for constituencies but a looser concept of Interest Groups.

Moreover, the arrival of brand registries challenges the very basis of the current GNSO structure with its division between users (the CSG and NCSG) and contract parties (RSG and RySG). A brand may well be simultaneously: a registry, a business user or a non-commercial user, and have intellectual property interests.

The changing environment drives a requirement for flexibility in policy-making and representative structures. An example of this is the interest of brands in new gTLDs – brand owners potentially become registries, registrars and users of domains, as well as maintaining their obvious interests in intellectual property.

In theory the current GNSO structure provides for the creation of new constituencies so that a wider range of views can be represented. 

Suggest clarification to paragraph2:

The current GNSO structure, which predates new types of TLDs, and the underlying charters of the stakeholder groups provides for the creation of new constituencies only in two of the four Stakeholder Groups (Commercial SG and the Non-Commercial SG). The charters of the Registry Stakeholder Group and the Registrar Stakeholder group do not allow for new constituencies.

I don’t think it is helpful to describe the cases described in testimony/allegations as “venal”.  The fact is, at least among civil society participants, that they are pitted against one another for funding in every field of activity, across the spectrum of development, human rights, free speech and political freedom, women’s education…you name it.  This has been well documented in my own field (privacy) by Colin Bennett, in his 2009 book The Privacy Advocates.  If ICANN is truly to become a leader in Internet governance through the multi-stakeholder model, it should recognize this fact, and take steps to remedy the situation through more funding, fair funding models, etc.  It is not helpful to pit one group against the other, and when this appears to be happening, significant, transparent efforts should be made to remedy the disagreements, including the scrupulous avoidance of manipulation (or the appearance of manipulation) by other stakeholders who could benefit from discord among the opposition ranks.  So far, I don’t think the approach that Westlake has taken to obtaining interviews (appears to be the squeaky wheel methodology) or citing allegations in this draft are helpful in this regard.

It would do much to establish trust if the SOI requirements were beefed up.  Who pays for volunteers to participate at ICANN?  I certainly would have no objection to greater transparency about funding issues regarding participation at ICANN, and I think it will be necessary if there is to be broader outreach to new countries and new groups.  I note that some speakers at the ICANN public forum are scrupulous about stating when they are representing the views of a client or stakeholder group, or views they are representing as advice to a client.  I regard this as a best practice, but it does not appear to be universal.

With respect to creating new groups and constituencies….it seems more sensible to get the existing groups working together better than to go out looking for more at this time.  Returning to funding for civil society….we do have a fair and transparent system for the limited funds available at the moment, so I am mystified as to where these comments are coming from. 

I agree that incumbency is a problem, but the idea of cutting off the “lifers” strikes me as shooting ourselves in the foot.  Furthermore, some of the folks who have been around for a long time are the best chairs.  As examples, I might select Chuck Gomes, Don Blumenthal and Steve Metalitz, who chair/co-chair PDPs I am on, and who in my view do an absolutely first-rate job of chairing.  Lets not move to get rid of veterans until we can be sure that we have well-trained, knowledgeable folks coming up in the ranks.  I would note in that context that Graeme Bunton, who co-chairs the PPSAI with Steve Metalitz, is a relative newcomer and is also doing a great job, doubtless assisted by working side by side with his colleagues.  This kind of mentoring is essential in my view.  The democratic process of selecting chairs appears to be working….and if it is not, lets have a look at improving it and providing for mentoring and “apprenticeship” rather than imposing arbitrary limits.  I for one would not be able to manage as many PDPs as a volunteer if the difficult task of chairing were not well managed.

In the recommendation that says constituency travel should be decided by ICANN, to whom individuals would have to prove their contributions would be valuable….how on earth would that be decided?  Constituencies should manage their own representation.  Don’t get ICANN staff involved in this.

The draft Report notes that barriers to participation in constituencies include linguistic (e.g. p. 84) and financial roadblocks (p. 89). Regarding the former, NCUC is trying to make our basic materials available in multiple languages, e.g. our outreach brochure is available in both English and Spanish. We hope to expand this effort, but whereas ICANN provides considerable language translation services to some segments of the community, it does not provide any at all to NCUC, which means members must donate their time to translate.
Regarding the latter, thanks to our own fundraising and management of scarce resources, we have recently committed to spending up to $4,000 per ICANN meeting to enable one or two NCUC members to come to the meetings who would otherwise not be able to afford to attend http://www.ncuc.org/governance/travel-policy/. We just had a young African new member attend the Singapore meeting in this manner.

The NCUC is a completely open and transparent network. The draft report calls for open membership lists published on the Constituency website (p. 88). Ours is at http://www.ncuc.org/about/members/.
The Board Governance Committee called for open mailing lists that are publicly archived (p. 67). The NCUC has always done this with all of its mailing lists: http://lists.ncuc.org/cgi-bin/mailman/listinfo.

The NCUC supports the call for increased diversity within ICANN. (e.g., p. 74-75). In terms of membership numbers, we are arguably the largest and most diverse constituency within the GNSO. It bears emphasizing that NCUC currently consists 404 members from 93 countries, including 102 noncommercial organizations and 302 individuals.

We recognize the problem identified by the draft’s authors concerning the predominance of individuals from developed countries in the GNSO (e.g., p. 70, p. 84). We are having success in changing the balance through volunteer outreach efforts. As currently constituted, a quarter of our current membership comes from, respectively, North America and Europe. Africa makes up nineteen percent of our member roll, Asia-Pacific just under eighteen percent and South America 12 percent. We can and want to do better, but we are already making progress in bringing individuals and noncommercial organizations from the developing world into ICANN.

Our leadership is equally diverse. The NCUC EC is elected by region, with one member each from North America, Europe, Asia-Pacific, Africa and South America. We note the draft report’s specific call for more participation from individuals from China and India (p. 87). We are pleased to note that one current member of the NCUC EC is a resident and citizen of the Peoples Republic of China. His predecessor was from India. We have experienced membership growth from both countries. Relative to any other GNSO constituency, NCUC continues to be the most diverse geographically.

We do have term limits for our EC members (three years) as recommended by the Board Governance Committee (p. 67).

The facts are clear: The Noncommercial Users Constituency is a leader in the GNSO in terms of accessibility, transparency and diversity. Yet the draft GNSO review does not acknowledge this, and instead portrays us as singularly problematic. The Report’s faulty methodology and curious inclusion of individual negative comments results in a picture of the NCUC that is fundamentally inaccurate.

How widespread is this perspective? ‘Some’ or ‘several’ are approximations that should not be used when precise data is available and easily obtained. This study consisted of a survey completed by 152 respondents, limited interviews of “about 40” individuals (p. 9) and supplemental interviews of “fewer than 20 or so” (p. 10). What are the precise numbers?

One wonders why these survey responses are flagged in the text when the same was not done with respect to other SG/Cs, for which the relevant numbers are not so different. Based on figures in the Table at pgs. 78-79, the draft could just as easily have observed that “some survey respondents considered that the [insert almost any SG/C name] EC is lacking in balance and resists new members.”
In any event, factually this “perspective” is incorrect, no matter how few or many people hold it.

The NCSG Executive Committee (EC) is balanced: two members appointed by the NCUC and two members appointed by the NPOC. The Chair is elected by the entire Stakeholder Group and is limited to two consecutive one-year terms. No Chair has been re-elected following their term limits. The NCUC EC appoints the constituency representatives on the NCSG EC. Our 2015 representatives include one incumbent and one new appointee. There has been turn-over in previous years as well. A factual comparison of leadership turn-over across SG/C’s would have been rather more useful than such unsubstantiated assertions.

Once again, the problem of approximation when precise data is available. How many is ‘some’?
Membership applications to the NCSG are considered, then accepted or rejected by the NCSG EC. The NPOC has two appointed representatives on this Committee and its membership participates in the election of the Chair. Membership applications are only rejected for cause, which in practice has principally meant that the applicants were not truly non-commercial organizations. As a noncommercial stakeholder group it is essential that members are truly noncommercial---applicants with commercial components are not eligible for membership. ‘Obstructing’ membership applications for any reason is not a valid cause and does not occur.
It should be noted that there are remedies, such as formal complaints with the Ombudsman, within ICANN that aggrieved parties can access should they believe the NCSG membership admissions process has treated them unfairly. We are unaware of any such complaint. Furthermore, the NCSG Charter provides the means for members of the stakeholder group who disagree with the EC’s practices to petition for a change to them. No such petitions have ever been lodged.

Not true.
All members of the NCSG EC have access to the spreadsheet containing applicant data. Applicants with queries about their application status, or anything else, are encouraged to contact the NCSG Chair through an e-mail link provided on the website: https://community.icann.org/display/gnsononcomstake/Membership.
The membership application process is transparent. It is also thorough. All five members of the NCSG EC vet each applicant for membership eligibility before approval is given.

Not true.
The applicants themselves determine which constituency, if any, they wish to belong to, and may join up to three under NCSG’s Charter. When applying for membership, applicants choose concurrently to apply to the NPOC, the NCUC, both, or to decline to join any constituency. The basic membership that carries a vote on GNSO matters is in the NCSG. It is the applicant’s choice, and the NCSG EC ‘process’ plays no role in constituency assignment. We have no idea on what basis it could be claimed that an organization “should be” in one constituency rather than the other, especially given that they can choose to be in both.

Not true.
There are three travel slots per constituency, full stop. NPOC is guaranteed these slots whatever NCUC does or thinks. And there are three slots for NCSG—one goes to the chair, one goes to a NCUC rep to the NCSG EC, the other goes to a NPOC rep to the NCSG EC. Support for other events from ICANN is based on ICANN decisions, and NCUC is not even aware of what NPOC applies for.

Not true, and another approximation by the Westlake Team. How many does ‘some’ represent? Is there any timely, verifiable factual basis for this assertion by ‘some’?

All NCUC lists and discussion forums are open, archived and available for public inspection. Is there any evidence on list for this asserted ‘view from some’?

Not true.
Again, the problem of approximation and context. This is a closed study. Actual numbers are available. How many is ‘some’? How widespread is this ‘perception’? In what context and by whom is this perception held?

With regard to our membership, the NCSG EC, consisting of representatives of both the NPOC and the NCUC, vets all applications for admission in the NCSG before a constituency (or none) is selected by the new member. The membership admissions process is designed specifically to prevent the admission of pseudo-organizations by any one constituency.

As to the size of NCUC member organizations, they of course vary. The Centre for Democracy and Technology, Global Voices, Article 19, the Internet Governance Project, the Internet Society (Belgium Chapter) and the Franklin Pierce Center for Intellectual Property are examples of small organizational members. The Association for Progressive Communications, Electronic Frontier Finland, the Center for Technology and Society, Freedom House, and Internews International are examples of large organization members.
It should also be noted that as NCUC admits individual members, there is no need for an individual to create an organization to join the NCUC. We welcome all organizations and individuals who meet our membership criteria as defined in the NCSG charter. We are unaware of any member organization that “may exist only for the purpose of ICANN participation.” Since the authors deemed this assertion worthy of inclusion, perhaps they could identify these organizations for us.

With regard to the NCUC EC, there is regular turn-over rather than “self-perpetuation.” This can be easily verified anyone who bothers to look at http://www.ncuc.org/governance/previous-executive-committees/. All members of the NCUC EC are limited to three consecutive one-year terms. EC members are elected by region to guarantee geographical diversity. In the twelve years since the NCUC was created under its current name, there have been seven different Chairs and twenty-seven EC members. There is no element of self-perpetuation in the NCUC EC, rather there is diversity. Can the same be said of all SG/Cs for whom no such allegation is made in the report?

Without quantification and qualification, this fact is  not very useful.  How many parties?  Were those parties from diverse groups or mostly from one group?

Are these concerns of existing GNSO participants or newcomer’s; I think that should be clarified because the conclusions that can be made depend on knowing that.

I don’t think many if any would disagree that the GNSO needs to be open and inclusive, but I encourage Westlake to recognize that adding new constituencies is not the only way to be open and inclusive.  A4 good recommendation for further study might be to determine whether there are barriers to openness and inclusiveness and then find out what those barriers are.  If there is strong openness and inclusivity in existing structures, then it may not be necessary to form a new constituency; in such cases, forming a new constituency may add a lot of complexity without adding value regarding openness & inclusivity.  If adding a constituency is not solving a problem of openness and inclusivity then we shouldn’t  justify making it easier to add constituencies based on improving openness & inclusivity.

Westlake appears to be falling into the trap of assuming that forming a new constituency solves a problem.  It is critical to understand what problem is being solved.

Why just Asian?

These changes may lead beyond the requirement to develop or amend GNSO policy. They may stimulate the initiation of new, and/or the amalgamation of existing, GNSO constituencies.

How is average calculated? Is it calculated on total raw numbers or is it an average of the percents for each group?  I think the former would be more valid but that is not technically an average. Regardless, a footnote explaining how average is calculated should be added.

This is only one reason. The fact of the matter is that to be a member of the RySG, a registry must have a contract with ICANN and there are extremely small numbers of registries in Africa and in Latin America and the Caribbean.

What does aggregation of voting mean?  Note that the three constituencies do not always vote alike nor are they required to do so.

Where is this required?  I think it is not.

There have been some CWGs that limited participation this way but it is not a universal characteristic of CWGs.

It is important to note that membership of many constituencies and SGs is made up of organizations, not individuals, or a combination of both.  This must be taken into account when discussing geographic diversity.  I know this makes it harder to analyze geographic diversity but it is a fact.  Some organizations have international membership.  Some companies have international locations and international employees.  This probably deserves at least a footnote.

Geographic location of Councilors in some cases does not have as much significance as others.  For example, the RySG always elects its three councilors from three different regions but those councilors do not have the freedom to vote independently.  They are required to vote as directed by the RySG.  At the same time, they are free to express personal views as long as they clarify that they are personal ; in those cases, geographical diversity would probably have more value.

I don’t think this is true.  To use the RySG as an example, in cases where there is not RySG consensus our charter allows for Councilors  to support different positions.  Ideally, we try reach consensus but that is not always possible and we always allow for minority statements.

How many?  What is the definition of ‘many’?  Broad terms like this reduce the validity of the report.

Is this really true of any WGs?  I question that.  Is it true for any SGs and constituencies?  If so it seems to me that any such groups should be named.  I know that RySG members are listed on our website, but keep in mind that that is a list of organizations not a list of individuals.  It is essential that these kind of nuances are recognized.

WRONG! Please see http://media.wix.com/ugd/ec8e4c_0d0616a2d2e04e7dbfb72fb88b633380.pdf

http://www.rysg.info/#!join-us/c3kh   I am curious why you do not have this information.  Did you not go to the RySG site?

The fact that some SGs/Cs charge membership subscriptions appears to be discriminatory because it disadvantages those cannot or are not willing to pay for access to policy-making, and because it may lead to differential levels of support

This is a terribly flawed statement especially because it charges all SGs/Cs as being discriminatory.  It is obvious that you have not looked at the RySG fee structure.  You should not make a statement like this without first doing due diligence.  And to suggest that different levels of support may lead to differential levels of support without backing that up with facts is irrespondible.

This is a noble statement but it begs this question: who should pay for those who cannot pay.  I think you need to go further than just making a noble statement.

The number of members in a WG is almost always very misleading.  It’s harder to measure, but the key is the number of active members and that is invariably much smaller especially for volunteer organizations.

We had better make sure we have qualified replacements before we disincentivize those who are willing to put in the time.

The ‘key clauses’ should be identified.  Or should I say ‘must’? 

How are sanctions imposed on volunteers?  What effect will that have on volunteers?

From our research, we understand the NCUC, NPOC and NCSG membership lists are publicly available. The following SGs/Cs do not make membership information publicly available: The RrSG and RySG, IPC, ISCPC and BC

The BC membership list is the first thing noted on our web site, right above our Charter:
http://www.bizconst.org/members/

That the GAC-GNSO Consultation Group on Early Engagement continue its two work streams as
priority projects. As a part of its work it should consider how the GAC could appoint a liaison (nonvoting)
to each GNSO PDP WG as a means of providing timely non-binding input.

Having been actively engaged in discussions for one (or more) GAC members to join the Nominating
Committee, the issues govenrments face in providing liaisons to the Nom Com, working groups or other
bodies is that no one nation can speak or act on behalf of another sovereign nation. Hence, even if there
was a significant number of GAC members in agreement with sending liaisons (and there is no evidence of
that as far as I see) there is no current mechanism to effect what Westlake is suggesting.