Non-commercial Users Constituency (NCUC)

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Permalink Reply by Seiiti on November 6, 2008 at 11:22am

http://www.ncdnhc.org/

The Noncommercial Users Constituency (NCUC) is the home for civil society organizations in ICANN's Generic Names Supporting Organization (GNSO). With real voting power in ICANN, it develops and supports Internet policies that favor noncommercial communication and activity on the Internet, and it participates in the selection of ICANN Board members.
The NCUC is open to noncommercial organizations involved in education, community networking, public policy advocacy, development, promotion of the arts, children's welfare, religion, scientific research, human rights and many other areas. See our charter for membership eligibility. Please join us, and get involved in protecting the communication and activities we value on the Internet!

At the Paris meeting, the NCUC decided to open up nonvoting membership to individuals. If you have registered domain names for personal, family or noncommercial use; if you are an Internet user who is primarily concerned with the public interest aspects of domain name policy, and is not represented in ICANN; or you are employed by or a member of a large noncommercial organizations (universities, colleges, large NGOs) and it is too complicated or lack the standing to join on an organizational basis, you can participate as an individual. Application form

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Permalink Reply by Seiiti on November 6, 2008 at 1:00pm

Here are some notes taken by Mary Wong and Cheryl Preston in the Cairo 08 meeting:

---

Discussion of Cairo minutes by Cheryl Preston.

My comments are in larger font and bold. I have marked in green parts of Mary’s minutes to highlight certain statement.

This is part I of the minutes. I will get to Part II after the next event. I appreciate your patience.

Please send back any comments on the discussion points raised here.

Thanks, Cheryl

MINUTES OF NCUC MEETING AT ICANN CAIRO

Date: 4 NOVEMBER 2008

Time: 9.00 a.m.

Venue: Hotel Intercontinental Citystars, Cairo, Egypt

The Chair opened the meeting by welcoming everyone and noting that there was a telephone available in the meeting room for anyone who wished to call in. He then outlined the agenda for the day. An attendance list was circulated and signed by all present.

1. NCUC Businesss

Elections & Membership

The first topic discussed was the recent NCUC election results.

A question arose as to continuity once the existing GNSO Council is restructured under the proposed new bicameral house voting framework. It is currently unclear what will happen to existing Councillors once the new structure is in place. NCUC would prefer that for continuity reasons, seated Councillors should retain their positions. It may be that, as new Council seats open up, NCUC will fill them either according to the order of the recent election results, or some other way.

The “NCUC” has not formed an intent or a preference. There was not consensus at the meeting, and there was not a quorum. This should be discussed. I propose that, once the new structure is in place and the new constituencies are included, the new (and now non-existent) Non-Commercial Stakeholder Group (NCSG) convene (online) and hold elections for all six GNSO councilor seats. Mary and Bill were elected by 16 and 10 votes, respectively at a time when none of the members of the proposed new constituencies were involved or had a vote. There is no reason to grandfather in for two year terms, in addition to Carlos who also has a GNSO councilor seat through 2009. It may be that, for consistency reasons or otherwise, Mary, Bill and Carlos would be re-elected to hold three of the six councilor seats allocated to the new and now non-existent NCSG, but that should be decided by those who are members of the new NCSG, not by the prior NCUC.

As for Committee assignments, only Carlos Afonso of Brazil was voted in. Under our existing Charter, NCUC can keep its existing Executive Committee (EC) members.

I am unclear which Charter is referenced. A charter does not now exist for the unformed NCSG. Thus, this must refer to the charter of the former NCUC, which will not be binding on any of the other constituencies in the NCSG. In addition, as noted below, the afternoon discussion suggests a different vision of the EC.

A question was asked regarding the formation of new constituencies and timing. It is currently unclear what will happen to new constituencies formed under the existing structure and approved by the Board before summer 2009.

Membership was next discussed. The Chair noted that a good number of individual as well as organizational applications had been recently received. In addition to the list of 9 pending applications circulated by the Chair, a representative of the Diplo Foundation who was present expressed an interest in joining. A number of the individual applicants are interested in joining the new constituency that current member Cheryl Preston is forming.

The meeting agreed to go through the list to approve or reject the applications. The following were admitted:

* Diplo Foundation (organization)
* Lehrstuhl Weber (known from GigaNet) (individual)
* Ralph Clifford (US law professor) (individual)
* Lamees El Baghdady (also from GigaNet) (individual)
* Seitti Arata (Brazilian, formerly Diplo fellow and IGF Secretariat/MAG)
* Jon Garon (US law professor) (individual)
* Charles Knutson (US computer scientist professor) (individual)
* David Olson (US law professor)
* Girls Against Porn (approved; type of membership subject to applicant’s determination of either individual or organizational status)



In the discussion of new members, we were unable to articulate a clear statement of the criteria for organizations and the standards for diving large and small organizations.

Under Milton’s proposal, “large organizations” get 4 votes. The current criteria is only in terms of numbers of employees or members, not in terms of how involved or organization is. Thus, I could join as my university and get 4 votes, but it is unlikely that anyone but me would be reviewing and approving policy. This criteria for 4 votes, especially given that the last election garnered only 23 votes total, should be discussed by the new NCSG as a whole.

Further, we discussed the criteria for being considered a small organization with 2 votes versus an individual with 1 vote. Robyn noted that legal status as a non-profit was not necessary, but the discussion did not resolve the issues outstanding on the list. Because an organization doubles the vote of an individual, it is important to articulate standards for such a decision rather than just the discretion of the chair.

As I propose below, decisions about legitimacy for membership and size of representation or weighted voting should, in the new NCSG, be decided by a committee of the constituencies, not solely by the chair or by an executive committee that does not include representation of the separate constituencies.

Proposed New Stakeholder Group

A brief discussion ensured over the joint meeting with ALAC that was held on November 3. The meeting agreed that an individual Internet user could both be an NCUC member (if he/she satisfies the membership criteria) as well as ALAC. If the ICANN Board or ALAC itself wishes to make membership mutually exclusive, they can do so. It was noted that the ALAC midterm report seems to indicate that ALAC should be the sole representative for individual users.

The question of joint membership in NCUC and ALAC has not been resolved and is contested. Few if anyone would have the time and energy to be fully informed on the business of both the NCSG and the ALAC, or able to attend the meetings for both as the times overlap. While, I favor allowing joint membership, the allocation of votes and offices should be discussed by the new NCSG. A person could join the NCSG and obtain a vote, but make no effort to be involved in discussions, participate on the list, attend meetings, review documents, or otherwise contribute to the work. Then, based on the recommendation of a friend in one of the NCSG constituencies, vote on important NCSG issues. We need to consider whether some minimum participation is required or at least the reading of the statements of position by the various sides on an issue. In addition, it seems obvious that no on person should be an officer, appointee, or councilor of the NCSG if also holding an office in ALAC.

The GNSO Steering Committee will be examining possible guidelines and other matters relating to formation of constituencies and other issues that apply across the GNSO. As such, NCUC should prepare a coherent proposal for submission to the Board prior to the upcoming Mexico meeting.

It is unclear whether, under the new GNSO structure, it is possible for a new constituency (approved by the Board under the current rules) can continue to exist as a “free flowing” entity, not affiliated with any new Stakeholder Group (SG). This has implications for voting and representation, which under the new structure is based on SGs, as well as other matters such as travel funding. There is a possibility that the Board will prefer that constituencies are affiliated with a SG.

The Chair reminded the meeting that under the new structure, it is possible for people to get involved in ICANN through working groups, without having to be a member of any constituency or SG.

As discussed below, this is a critical fact. If any person, whether a member of any ICANN structure or not, may join a working group (and submit public comments, etc.), the constituencies must be given some power beyond putting a person on a working group if there is any point to creating constituencies at all.

2. Issues Arising from Joint Meeting with ALAC on November 3, 2008

The meeting then discussed certain questions that arose during the joint meeting with ALAC:

(1) How must individual Councillors vote (e.g. free agents or speaking only for the SG)?

Currently, NCUC Councillors do not have to get consensus of the membership before a vote, although they provide prior information and feedback on ongoing GNSO policy issues to enable input and comments from the members. If the membership does not like how a Councillor is voting or acting, they can vote that Councillor out at election time. This seems a good practice that should be retained into the new structure.

It is true that councilors should not have to return to the membership to get feedback on every issue, especially those with less than a couple of weeks of turnaround time. However, the councilors accept a trust to make an honest effort to represent the voices of the constituencies within the NCSG when they vote. Because councilors are seated for two year terms, and many decisions are made in the fast-moving world of the Internet in very short timeframes, the mere power to elect someone different is not adequate protection.

(2) What should the role of the NCUC/new SG Policy Committee be?

The Chair suggested that it could highlight issues that may not yet have come to the attention to the GNSO Council; it could also appoint members to work on specific issues as well as coordinate work across constituencies that have similar interests or are working on the same issue.

The possibility of doing away with the Policy Committee was discussed. The new SG could simply have a single Executive Committee (EC), consisting of the Chair, the Councillors and one representative from each constituency. Although that raises the issue of scalability, it may be possible to propose this representative structure now and to revisit the issue once the number of constituencies reaches a certain number (e.g. 6.)

(3) How, if there is a diversity and lack of agreement across constituencies with respect to a particular issue, are the Councillors who are supposed to represent the SG to vote?

It was noted that there will be “external” (i.e. to the SG) reasons why it might be necessary for the Councillors on behalf of the SG to present a unified vote.

The occasions when the councilors would not represent the group should be extremely rare. Any decision for councilors to take a unified view when the stakeholder group is in wide disagreement, should be made by the constituencies. The reasons for needing a unified vote should be explained and the strategic decision of muffling some voices to get a block vote should be made by the constituencies or members, not solely by the councilors. Especially because under the voting scheme proposed in Milton’s plan, each councilor would be elected by a mere majority. Thus, a 51% to 49% split view in the stakeholder group could, under this statement, decide to all vote consistent with the 51% at the council level, thus silencing 49% of the members and perhaps a majority of the constituencies.

(4) How will the “internal” voting structure of the SG work?

The meeting discussed whether the votes will go according to membership (including votes allocated according to size of organization) or constituencies (e.g. one vote per constituency.)

3. Discussion with ICANN Board Members

Two representative of the Board visited the group: Harald Tveit Alverstrand and Roberto Gaetano. Harald was asked if he could clarify the concept of constituencies and SGs under the new structure. He felt that the bylaws should not have been so detailed in the first place, but, given the reality, considered that the Board’s main concerns were that (1) communities are largely self-organizing, and (2) their processes should be transparent.

Both Herald and Roberto emphasized that they were not speaking “for” the Board, but only giving their at the moment thoughts. They stated that many of these issues have not been thought through yet or even considered. Thus, these statement are helpful feedback from two members of the Board, but do not represent the Board position.

What the Board does not want is to see that the same few people who show up for ICANN meetings are basically taking over the group they claim to represent, or that the same voices are always the ones that are heard.

It was also explained that one concern was to have broad representation from research and academia in the non-commercial, non-contractual community, to make sure different voices are heard. This was one reason for the broadening of the Council. That was one of the issues the Board Governance Committee (BGC) was supposed to address.

The thoughts of the ICANN Board members summarized here are important. There is no point to restructuring or adding constituencies if non-commercial users are still represented by the exact, narrow positions of the historical NCUC. This principle will be important in considering any charter for the NCSG.

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Permalink Reply by Seiiti on November 6, 2008 at 5:26pm

This message was sent Nov 6 2008 by Robin Gross:

QUOTE
Below are the updated comments that pull together a number of comments from myself and others that focus exclusively on Objections based on Morality and Public Order. I'll send more comments next that focus on the objections based on "legal rights of others".

In the GNSO meetings last Sat-Sun here on this topic, ICANN Morality Tzar Kurt Pritz told the GSNO that he surveyed "every jurisdiction in the world" and has come up with a list of categories of expression to ban based on morality and public order because such bans are "universally agreed principles of international law". And the 29 Oct. paper additionally suggests that "panelists be provided significant discretion to find that other categories" should also be banned.

Morality Tzar Pritz is incorrect in his analysis and conclusions in a number of important ways, and it is clear the objection is content regulation of websites, not merely URLs.

The 3 categories of speech to auto-ban based on "morality and public order" are:
1. Incitement to violent lawless action.
2. Incitement to or promotion of discrimination based upon race, color, gender, ethnicity, religion or national origin.
3. Incitement to or promotion of child pornography or other sexual abuse of children.

I. Incitement to Violent Lawless Action

US rule on this category: The right to free expression does "not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio (US Supreme Court 1969)
So Pritz's recommendation is missing 2 parts of the test under US law:
- no IMMEDIATE violence is required for ICANN to ban the speech;
- no LIKELINESS of actually producing any violence for ICANN to ban the speech.
(Technically, it is a 3-part test in the US because the speaker must INTEND to produce the imminent lawless violence.)

Further, Pritz's paper shockingly changes the AND to an OR in his description of the US test:
Morality Tzar Pritz: "This limit should be construed as applying only to violent lawless action that is imminent or likely to result from the incitement." (p. 4 of 29 Oct. paper)

So instead of this being a 2-part test as US law requires, the speech will be auto-banned under if it meets either prong of the test - big difference. I don't know who or how much ICANN paid to do this legal research, but I'd give this analysis an "F"-grade in the law school classes I teach.


II. Incitement to or promotion of discrimination based upon race, color, gender, ethnicity, religion or national origin.

Category 2 (banning "meanness") is NOT an accepted principle of international law as Pritz claims and is in clear contrast to US law for violating freedom of expression.

This category of prohibited speech is the "European Standard" for limiting free expression, but is certainly not universally accepted international law as claimed. This standard would be illegal policy in the US, the jurisdiction in which ICANN resides.

Principle G of GSNO's Recommendations explicitly state "The string evaluation process must not infringe the Applicant's freedom of expression rights", but that has fallen off of the radar screen of ICANN.

The Draft Implementation Guidelines also eliminate the right of applicants to challenge any ICANN decision or related dispute proceedings in a national court (unlike under the UDRP). So applicants would have no protection at all for their free expression rights and national courts would have no means of protecting their citizens from an abuse in an ICANN proceeding about a domain name. This point was also NOT in the GNSO's recommendations and is something that staff pulled out of a hat (as part of its bottom-up process) presumably in an attempt to protect itself from being sued.


III. Incitement to or promotion of child pornography or other sexual abuse of children.

It is well-settled principle of international law that child pornography illegal. No argument about that. But "incitement or promotion" to engage in child porn is different than the porn itself. So there is conflation between the law on child porn itself and the law on statements about child porn.

Again it appears ICANN is attempting to regulate the content of websites, not URLs, since a domain name (2-6 letter string) cannot be child porn or sexual abuse of children.


IV. Other Concerns on Morality and Public Order Objections

- STANDING: The issue of who has standing to object is not determined. The papers say it could be either i) only governments who have standing to object, or ii) anyone in the world would have standing to object. Morality Tzar Pritz told me when I asked him point blank that he is pushing for the second option - anyone in the world can object based on a perceived offense to their own sense of morality and public order.

- Objections based on the Morality and Public Order objection will be determined by the International Chamber of Commerce, so there is concern that non-commercial interests won't get a fair shake from ICC, which represents and advocates on behalf the world's largest businesses.

- Dispute resolution panelists can choose (without the request of parties) to make their proceedings and finding confidential and sealed from the public. What about transparency and accountability?

- Specific language on eliminating right to appeal to national court.
DAG Term 6 of the terms and conditions states:
"APPLICANT AGREES NOT TO CHALLENGE, IN COURT OR IN ANY OTHER JUDICIAL FORA, ANY FINAL DECISION MADE BY ICANN WITH RESPECT TO THE APPLICATION, AND IRREVOCABLY WAIVES ANY RIGHT TO SUE OR PROCEED ON THE BASIS OF ANY OTHER LEGAL CLAIM AGAINST ICANN AND ICANN AFFILIATED PARTIES WITH RESPECT TO THE APPLICATION. APPLICANT ACKNOWLEDGES AND ACCEPTS THAT APPLICANT'S NONENTITLEMENT TO PURSUE ANY RIGHTS, REMEDIES, OR LEGAL CLAIMS AGAINST ICANN OR THE ICANN AFFILIATED PARTIES WITH RESPECT TO THE APPLICATION SHALL MEAN THAT APPLICANT WILL FOREGO ANY RECOVERY OF ANY APPLICATION FEES, MONIES INVESTED IN BUSINESS INFRASTRUCTURE OR OTHER START-UP COSTS AND ANY AND ALL PROFITS THAT APPLICANT MAY EXPECT TO REALIZE FROM THE OPERATION OF A REGISTRY FOR THE TLD."

References:
http://www.icann.org/en/topics/new-gtld-draft-rfp-24oct08-en.pdf
http://www.icann.org/en/topics/new-gtld-program.htm
http://icann.org/en/topics/new-gtld-morality-public-order-draft-29o...
UNQUOTE

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Permalink Reply by Seiiti on November 14, 2008 at 1:29pm

This is the continuation of the notes by Cheryl Preston:

QUOTE

Minutes from the Cairo Meeting, Continued
Part II
(Mary’s minutes with my comments and additions in BOLD.)

The Chair summarized the positive responses the NCUC has received to
its institution of provisional individual membership, particularly
amongst the academic community (who may now proportionately be
over-represented within the NCUC.) He then explained the proposed NCSG
structure (see document entitled “Talking Points for NCSG Charter”
previously circulated by the Chair), noting that it is still under
discussion within the NCUC.

In response to the Chair’s question about what happens to
constituencies (and their Councillors) approved under the existing
bylaws between now and when the new structure is put into place in 2009,
the Board’s initial thought about constituencies under the new
structure was that these would simply be formed and approved as and
when. The Board does not appear to think the question of Council/house
representation will actually pose a real problem once things are
clarified during the upcoming process; they would not like to have an
interest group be represented in more than one group/place.

On the question of whether not giving constituencies an actual voice
through voting power, Roberto responded that the issue of voting power
should be decoupled from that of involvement/representation (i.e. having
a voice in the ICANN process.) Historically there has been a problem
with having a constituency of individuals. The question of voting should
be an internal matter for the SG. His personal opinion is that this is
what the Board would prefer, and that the first priority is that each SG
should have the possibility of having new and diverse views represented
in a fair and dynamic way, regardless of the form of representation. The
second priority would then be to ensure that nobody has double
representation. These are more valuable than the specific question as to
voting priorities.

I certainly concur that the ultimate objective is to give “new and
diverse views” ways to be “represented in a fair and dynamic way.”
With an eye to this goal, a new NCSG charter needs to accommodate
voices that are not yet involved, those who will come in the near future
when the number is likely to be few, as well as those we hope to recruit
in the extended future, when many are involved.

On the staff’s issuance of documents inviting the formation of new
constituencies, Roberto pointed out that this is not a problem unique to
the NCUC, as even the commercial constituencies have divergent
viewpoints internally.

He emphasized that the balance of voting should be resolved internally
within each SG, with a view toward going beyond the old, rigid process
currently hardwired into the bylaws. He agreed that each SG Councillor
should try to represent not his/her individual constituency/interest,
but rather the view of the SG as a whole, even if that means basically
the majoritarian view.

I have no recollection of his saying anything about “majoritarian.”
Such a statement would seem inconsistent with his original statement
discussed above (and repeated in the next paragraph) about the ultimate
goal being giving representation to new and “diverse voices.” Were
it not for the history of the NCUC of lacking structure to account for
minority voices and lacking a sense of representation of the range of
user interests, the importance of acknowledging minority voices in the
NCSG would be less severe.

In addition, the Board is not looking for uniform mechanisms across all
SGs, as long as the main point about ensuring new, fair and diverse
representation is assured. Roberto reminded the meeting that there would
also be another GNSO review soon.

On the question of whether an individual can/should be both a member of
ALAC and NCUC/NCSG or whether there should be an exclusive choice, this
was characterized as a “misformulation” by Harald. Roberto
emphasized as long as there is no risk of double- or
over-representation, there should not be only one way of participating
in ICANN. There may be a slight overlap but that is fine because there
could be the more important advantage of greater outreach and
collaboration.

The Chair noted that this is exactly NCUC’s position, as explained to
ALAC at yesterday’s joint meeting. NCUC was encouraged to submit its
proposal early, with the visiting Board members noting that the Board is
likely to set up a working group to review the process, and a member of
the ICANN staff will be assigned to assist the group. The Chair thought
that a draft preliminary proposal might be ready for the group to review
by the end of the month (November 2008.) As for the process itself, the
current practice is reflected in the bylaws, though it might be a good
thing to have a new process (but it would require a change in the
bylaws.) Nonetheless, the current practice should be viewed as being
fairly flexible, with room for evolution and fine-tuning.

The Chair then cautioned that the Board might receive a number of
requests to form constituencies that could comprise a sub-division of
existing members, such that approvals could result in simply
restructuring of existing participants rather than the entry of new
persons.

The new NCSG membership, when formed, needs to discuss the question of
what constitutes “new” voices. Certainly, an important provision in
the new charter must be genuine term limits. The current NCUC charter
provides for a three-term limit for the chair and executive committee.
In practice, however, the same person then returns after a one-year
hiatus to serve more terms. Term limits need to be worded in ways to
avoid superficial circumvention, and to assure opportunity for more
voices, more issues, and more geographical areas to have opportunities
of leadership.

Another question embodied in the comment in green is whether it is
appropriate for existing ALAC members to participate in the new NCSG. A
person or organization that brings a new insight, a new viewpoint, and a
new source of energy and work effort into the NCSG should be welcomed,
particularly at this point as NCUC participation has been so narrow and
limited.

Another question is the extent to which current NCUC members will be
representing a “new” voice or viewpoint in constituencies under the
new NCSG structure. Certainly, those who have joined NCUC within the
last month for the purpose of getting a voice on the restructure and
charter proposals, but have had no prior policy or vote input, cannot be
considered as “restructuring of existing participants.”

On the question of travel funding, Roberto stated that he did not know
where the working group stood on whether these should be allocated to
constituencies, SGs or otherwise in the new structure. He felt that any
proposal to the Board must have absolute transparency on the question,
so as to ensure fairness in their allocation.

As I discuss below with respect to the secretary/treasurer position,
all matters of finances, funding from whatever sources, and allocation
of resources must become transparent.

4. Discussion with PIR (Adam Palmer, Policy Counsel of PIR, based in
DC)

Adam focuses on policy issues, collaboration and outreach with/to
groups that PIR feels it has similar interests, like NCUC. He conveyed
Alexa Raad’s apologies for not being present, as her grandfather is
seriously ill, and reiterated PIR’s priority in continuing its
relationship with NCUC.

He is not sure how PIR’s financial support for NCUC (which it hopes
to increase) will be impacted by the new structure of having
constituencies as well as SGs.

He described briefly a number of PIR’s collaborative efforts that he
thought would be of interest to NCUC, including its Registry Internet
Safety Group (RISG), on which he will be speaking to the ccNSO group
tomorrow. RISG will attempt to deal with Internet safety issues,
including malware and phishing. They are also working with DNSSEC to try
to have it implemented by sometime in 2009, again as part of PIR’s
effort to be seen as an exemplary provider entity. They do not, however,
wish to be perceived as a censor of the Internet (or as a supporter
thereof.)

What is omitted here is a lengthy discussion about PIR’s funding and
joint projects with the NCUC. Adam was unaware of anyone (before me)
raising the potential of a conflict of interest with having the
non-commercial users group financed by a supplier (PIR is the registry
for .org). Adam was also unsure whether future PIR funding would go to
the entire NCSG, or just to the NCUC as a separate constituency. PIR
has in the past committed $5,000 to NCUC each year. The uses to which
this funding is allocated have not been discussed at meetings or on the
NCUC member list. Certainly, the records on this funding, as well as
the use of membership fees ($50-$100) for past years, should be
disclosed. The new NCSG must decide on appropriate sources and uses for
funding and whether individual constituencies can accept funding from
suppliers, business users, or other stakeholder groups whose interests
may not completely align with those of the range of noncommercial
users.

As noted, Adam stressed the importance of the relationship between PIR
and the NCUC and expressed interested in working on joint projects in
the future. When asked about what joint projects had been undertaken by
PIR and NCUC, Adam raised the recent letter regarding IDNs and free
expression. The letter, brought up on screen, states: “ICANN is urged
to verify that the operator of any new IDN TLD be fully committed and
legally bound to maintaining an Internet that is open, interoperable and
globally accessible. . . . Criteria should be developed to ensure that
any new registry operator will not reduce Internet freedom or impose
burdensome restrictions, whether political or economic, on Internet
users.”

Discussion followed about how such language might impact efforts by
IDNs to protect children from harmful content, stop child porn, etc.
Asking ICANN to take affirmative steps by contract to prohibit content
regulation goes beyond neutrality and involves ICANN in content. While
this particular letter is, as characterized by Robin, “water under the
bridge,” care needs to be taken in the future that officers not sign
with the title of the group without notice to and feedback from
members.

[The meeting adjourned for lunch and a “Users’ House” meeting
with the other user constituencies and ALAC.]

5. Discussion of Users’ House Meeting

The Chair sought feedback regarding useful or constructive topics that
arose during or as a result of the meeting with the Business and IP
Owners Constituencies, and ALAC. The first topic discussed was the
concern that some of these groups seemed to have regarding the apparent
lack of large organizations represented within NCUC. It was agreed that,
given both ICANN’s history and the occasionally technical issues that
arise in the domain name space, it will continue to be very difficult to
attract large universities and other similar entities to join. More
likely candidates will include libraries, think-tanks, research centers
and smaller schools. Many non-profit entities are also represented by
umbrella advocacy groups who could join NCUC on their behalf.

The meeting then discussed the issue that was raised during the
Users’ House Meeting regarding the NCUC proposal to allow 5 members
to form constituencies. It was felt that any number would be an
arbitrary number at best, and that, given the Board’s clear indication
that a larger, new and more diverse user base be recruited, NCUC’s
proposal for the new structure should continue to support a relatively
low threshold for constituency formation.

Milton stated that, given the history of low participation, five was
“a lot.” The other groups continued to express concern about the
possibility of five individuals forming a constituency. If a
constituency has no independent role or power in the new NCSG, then the
criteria for formation are irrelevant. But, if a constituency matters,
we need to further discuss ways to evaluate representation to insure
that a constituency is meaningful. Other groups have expressed a strong
resistance to a constituency of five individuals. One way to control
the proliferation of meaningless constituencies is to have the ICANN
Board, or other supervisory committee, continue to make determinations
about when an interest or group is sufficiently significant to be given
status as a constituency.

Following the Users’ House Meeting, the NCUC meeting reconvened in
another room to continue discussions regarding Milton’s proposed NCSG
charter. There were seven present.

Another issue related to voting. The group agreed that, particularly
given the meeting with the Board earlier in the day, the more important
question for NCUC is to determine – and include in its draft proposal
– what its “internal” voting structure is to be. Essentially, the
choice is between cumulative and non-cumulative voting.

As I discussed in an earlier email chain on the list, Milton’s
proposal is purely majoritarian, with no protections or avenues for
minority voices. I brought up the concept, for instance, of how the US
Constitution sets up the House of Representatives for merely
majoritarian representation, but the Senate so that each state has equal
votes, notwithstanding smaller populations. And, the Supreme Court is
another layer to insure that minority rights not be trampled on by
majoritarian legislative action. If the internal structure of the new
NCSG is entirely majoritarian by per capita votes, there is no reason to
have constituencies at all. If a handful of members want to have a
“grouplet,” they can informally discuss whatever policy at a
bar.

As an example, if the NCUC as a separate constituency within the new
NCSG continues to have the approximately 23 votes that were cast this
fall and all the other constituencies together could come up with only
22 votes, the “new and diverse voices” would be unable to get any
representation in terms of a GNSO councilor without some form of
cumulative voting. If each member of the larger NCSG must vote for each
council seat, then the elections will turn on a mere majority – say 23
to 22 – for each of the six seats. If NCUC is able to control all six
of the seats (or a majority) and the chair position based on a 23-22
split, then there is little point in having a “policy committee” as
outlined in Milton’s proposal. The policy committee is comprised of a
representative from each constituency, and the six councilors and the
chair. If these seven are the result of an NCUC majority, they would
outvote any other voices until such time as there are at least eight new
constituencies. While there may be in the far future a proliferation in
constituencies, this is not foreseeable in the near future based on
historical involvement trends and the problems of getting participation
(as noted by Milton at the Users’ House Meeting).

In Milton’s proposal there is no other role for the constituencies,
except for voting for two members of the executive committee – which
committee, under the proposal, has only administrative duties.

Moreover, there is incentive to give votes to individuals and groups
who will rubber stamp positions rather on pulling in new participants
who will actually read and consider the issues. Milton argues that
giving constituencies any kind of weight may provide incentives to
create constituencies. But maintaining a majority allows the base
already built by NCUC to continue to exclude other voices and gives an
incentive to just add non-participatory votes.

NCUC has not historically considered its role as one of researching the
views of the range of users and representing that trust in GNSO council
votes. As discussed in a lengthy email exchange in September 2007 and
at the Los Angeles Meeting in October 2007, the existing NCUC leadership
has held that they may represent the particular positions of their
sponsor organizations unless such positions are out voted by other
participants in NCUC. I would be happy to forward these emails or
identify them on the NCUC archive for anyone interested.

Alternatives to pure cumulative voting were discussed, such as each
eligible voter be able to cumulate votes for two or three council seats,
but were at this meeting dismissed as too “complicated.”

An extensive discussion ensued. The meeting agreed that the general
membership should be consulted on the following issues: (1) whether
there should be cumulative voting; (2) whether there should be an
Executive Committee and a Policy Committee; and (3) a proposed
composition of the Committees, as follows:

- The Policy Committee comprising the Councillors and one
representative per Constituency. The objectives of the Policy Committee
will include initiating discussions/policy work (including at ICANN
level), deciding on letters, statements and other external policy
communications of the SG, and advising the Councillors on voting.

It was discussed at some length that, under new ICANN rules, an
individual who is not a member of any constituency or Stakeholder Group
can now join any ICANN working group and submit comments. In addition,
ICANN provides for public comments, which can be submitted by anyone.
Thus, allocating to constituencies the ability to be involved in policy
work and comments on policies is meaningless.

As long as the Policy Committee is dominated by the six councilors (and
the majority elected chair who is supposedly only involved in
“administrative” work), then it makes little sense to say that
the Policy Committee is going to advise the councilors. This is
especially true given the position taken by the majority, stated in the
Part I of these minutes, that the councilors should not be obliged to
vote in alignment with Stakeholder Group views anyway.

The Policy Committee, once fairly constituted, and not the chair,
should have control over any statement made by or on behalf of the
NCSG.

- The Executive Committee comprising a Chair, Secretary-Treasurer
(appointed by the Chair or voted) and 2 members voted by the
constituencies.

Clearly, the Secretary-Treasurer must be voted on by the constituencies
and not appointed by the chair. To date, all funding available to NCUC
has been handled exclusively by the chair (and/or executive committee?)
without being transparent to members. It is unreasonable not to suspect
that loyalties follow funding. The only way to assure fairness and
transparency is to have all money matters public and decisions made
based on principles decided by the constituencies. The
Secretary-Treasurer must be accountable to the constituencies, not just
the person who is the majority-elected chair.

In addition to cumulative voting, one way to give some balancing
control to constituencies would be to allocate to them all functions
other than the election of GNSO councilors and the chair (and purely
administrative duties). A committee of or vote by the constituencies
should control, for instance, all determinations regarding:
1. The criteria for membership in the Stakeholder Group.
2. Whether an organization member qualifies for 1, 2, 3 or 4 votes
based on size and significance.
3. The adequacy of applications of new members according to the
agreed upon criteria (including applications to the new NCSG from
organizations listed as current members of the NCUC, such as the Boulder
County, Colorado publicity organization).
4. Voting procedures and qualifications to vote.
5. Sufficient levels and standards of participation.
6. Internal procedures and control of elections.
7. Appointments of representatives on the Nominating Committee and
other ICANN structures.
8. Appointments of liaisons.
9. Structure and management of the Policy Committee.

There was no consensus as to whether the Councillors will have a vote
on the Policy Committee on matters relating to provision of advice to
them on how to vote in the house (there was general consensus that they
should be allowed to vote on statements, initiation of policy and such.)
One possibility might be to craft a transitional provision relating to
voting that would ensure adequate voice for the constituencies until
such time as the number of constituencies is greater than the number of
Councillors.

I have solicited new members from all quarters and found stiff
resistance to becoming involved in ICANN for a wide variety of reasons,
including the steep learning curve, the difficultly of newcomers
engaging with long-time, entrenched participants, questions about the
legitimacy of ICANN, etc. Particular kinds of organizations (that well
reflect large segments of the non-commercial users population) are
particularly reluctant. Pro-family and children organizations are
unlikely to have staff who are technology savvy or have any interest in
the Domain Name System. Organization of users who are not making money
as business on or suppliers of the Internet are typically very short on
funding and expert services.

For instance, many groups are willing to assist civil society groups
focusing on “freedom of expression” or non-regulation. Even though
ICANN policies are not aimed at content, a number of issues arise that
will be relevant to the efforts of any nation or global group to address
content in the future (see, for instance, the NCUC and PIR letter on
IDNs). Suppliers are anxious to stop anything that might create
intermediary liability or duties to monitor. Pornographers and gambling
interests recognize their economic interest in preventing any
limitations on Internet content. Thus, it makes sense for them to make
donations to and support organizations whic push for non-regulation or
any other position that aligns with the supplier and business
communities. There is little money coming from children and isolated
cultures to fund groups to lobby for their interests at ICANN.

The group then discussed the issue of regional representation,
basically as to whether the new proposal should have a “no less than
4” or “no more than 2” structure (there are 5 recognized
geographic regions.) It was agreed that the membership will be consulted
on this issue, and that for now the draft could reflect a “no more
than 2 from each region” formulation.

Without question, geographical and economic diversity must be
represented. But we need to be consistent with what “represented”
means. If we argue that geographical diversity can only be represented
by allocating actual council seats by region, then it is disingenuous to
argue that minority voices on various issues are adequately
“represented” by not giving them council seats but only a
majoritarian election. The new Stakeholder Group must carefully
consider what equals “representation” and how best to meet that goal
with the resources available. At some point in the future, hopefully,
there will be a plethora of NCSG members who fairly represent the
legitimate range of non-commercial users in every region, economic
status, culture, religion, age-group, skill level and so-forth. But we
are nowhere near that now. If elected councilors hold in the GNSO
council a “trust” to represent the range of non-commercial users,
even those without a vote or a presence in the NCSG, then specific group
representation by a person would be less important.

On the need to hold new elections upon the new bicameral house taking
effect, some of the other Constituencies had reacted negatively to
NCUC’s proposal that its currently-elected 3 Councillors be carried
over into the new house, with new voting only for the 3 new Councillor
seats. After a brief discussion, the meeting concluded that the current
proposal should stand.

The non-commercial stakeholder reorganization is not simply a matter of
altering the form of the existing body. The NCSG is not just a
reincarnation of NCUC. Thus, it seems appropriate that the new NCSG
members be permitted to adopt a charter and elect officers, including
representatives on the GNSO council, without grandfathering in
representatives elected by NCUC. It may be that the same persons will
be elected, especially if the body determines that continuity is an
important factor. But the new body should decide.

There being no other business, the meeting adjourned at 6 p.m.




Cheryl B. Preston
Edwin M. Thomas
Professor of Law
UNQUOTE

▶ Reply to This

Permalink Reply by Siranush Vardanyan on November 18, 2008 at 12:13pm

During Cairo meeting there were a LOT of discussions separately within ALAC (At Large Advisory Committee), within NCUC, as well as joint sessions between these constituences. A lot of discussions had been confusing, as both constituences are dealing with Internet users. Can someone here explain (if there are people from NCUC), what is the difference - CLEAR difference of these two different structures, but both dealing with internet users' perspectives? As for me for the last three ICANN meetings I followed discussions within ALAC, but in Cairo got confused with who is doing what exactly. Would highly appreciate if someone can give clear explanation. Thanks

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Permalink Reply by Seiiti on November 18, 2008 at 3:48pm

Interesting question. Honestly I am not able to reply as I do not belong to any of the groups (withdrew my participation because of other commitments) ... maybe someone else?

Siranush Vardanyan said:

During Cairo meeting there were a LOT of discussions separately within ALAC (At Large Advisory Committee), within NCUC, as well as joint sessions between these constituences. A lot of discussions had been confusing, as both constituences are dealing with Internet users. Can someone here explain (if there are people from NCUC), what is the difference - CLEAR difference of these two different structures, but both dealing with internet users' perspectives? As for me for the last three ICANN meetings I followed discussions within ALAC, but in Cairo got confused with who is doing what exactly. Would highly appreciate if someone can give clear explanation. Thanks

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Permalink Reply by Rafik on November 18, 2008 at 4:36pm

Hi all,

I am fairly following ALAC activities and tried to catch some discussions during last meeting the confusion about even the definition of "individual users" is still present! the problem with ICANN is that they see user only as possible registrants and from this raises many misunderstandings.
I would like also to remind that there is the ALAC summit which will organized next meeting at Mexico and it is supposed to target individual users.
@Seiiti, I spent many times to ask people from GNSO and ALAC about individuals participation and nobody provide an answer, my last trial was to join GNSO working group but first question was what group I belong!
is it still possible to join to join NCUC?

Regards

Rafik

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Permalink Reply by Siranush Vardanyan on November 19, 2008 at 9:39am

Rafik, if you want to join NCUC, probably you may give the explanation, how it differs from ALAC vision?

At least what I have heard during Cairo meeting, discussions on this issue are still in the process, and probably they will become one of the key issues to be discussed during ALAC summit in Mexico. Hope to follow those discussions in future.

I consider internet users not only people with technical background, there are a lot of people (including me), who are not technicians, but still use the internet in their professional life (there is no need to know how computer is technically working, in order to use it, similar to there is no need to know how mobile phones are technically made, but everybody can use it).

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Permalink Reply by Gabriel Piñeiro on December 6, 2008 at 1:12pm

@Seitii, @Rafik and @Siranush,
Well, I gonna try to do an explanation of how both structures differs between each other. The first big difference, is that one structure is a Commitee that's under the Board umbrella, and the other is a Constituency of the GNSO.

The At Large process suffer many changes as the years where passing (a long time ago, it was the way users could elect ICANN Boards) However, as that wasnt a very inclusive process, the new ALAC was born. And the way it was thought was through an indirect system of representation (so if you are affiliated to an NGO, those NGOs are the ones that have the mandate of represent their associates)

However, the NCUC (the former NCDNHC) its to defend the intrests of the NGOs (and not its members) within the limits of the GNSO (former DNSO) However, since the meeting in Paris, the NCUC allows the participation of individuals if (and I will quote):

"a) I am an individual who has registered domain names for personal, family or noncommercial use;"
"b) I am an individual Internet user who is primarily concerned with the public interest
aspects of domain name policy, and I am not represented in ICANN through membership in
another Supporting Organization or GNSO Stakeholder Group; "
"c) I am employed by or a member of a large noncommercial organizations (universities,
colleges, large NGOs) and it is too complicated or I lack the standing to get my
organization to join on an organizational basis."

In the new charter of the NCSG, there wont be any conflicts about being at the NCUC and the At Large. So yes, there are differences. And this is due their different nature. ICANN is a HIGHLY complex organization (with an even more complex representation system), but this is to ensure the participation of every intrested parties from the five corners of the earth in the root managing. So I hope to gave some clarification to you (and if not, just ask!). My two cents!

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Permalink Reply by Siranush Vardanyan on December 6, 2008 at 1:20pm

Dear Gabriel,

Thanks for clarifications, which are very useful. Hope that the discussions which are now in the process will be finalized son and more clear approach to this issue will be given. Again thanks

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Permalink Reply by Gabriel Piñeiro on December 6, 2008 at 4:30pm

Rafik said:

@Seiiti, I spent many times to ask people from GNSO and ALAC about individuals participation and nobody provide an answer, my last trial was to join GNSO working group but first question was what group I belong!

Rafik, if you feel that you belong to the At Large, you first need to contact your RALO (there's a RALO for each one of the five ICANN zones of the world) Then, you need to affiliate your NGO as an ALS, which is the mechanism of participation (its indirect due the huge quantity ammount of internet users)
But if you feel that the At Large does not representate you, you might apply as an individual to the NCUC (please, carefuly check the requirements at http://www.ncdnhc.org/)

And as far as right now individuals might be members of the NCUC, if you work for a NGO that cares about this IG issues, and if your NGO is intrested in participate in the root management, and if they authorize you to representate them, you could certainly join the NCUC being their representative (please, check the requirements at the website) The thing is that you cant simple contact the GNSO if its not through their Constituencies (each one of them, representating a sector)

And if you feel you have any doubt, please, just ask me! My two cents!

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