NCUCers:

ICANN is still taking public comment on the "GNSO Improvements" issue, 
and in particular the Board Governance Committee Report and the 
restructuring of the GNSO.

Please send comments in to ICANN on this report. It is a very important 
opportunity to achieve meaningful reform at ICANN - so let's take it!

Thanks!
Robin

Comments on the Report can be posted to [log in to unmask] 
<mailto:[log in to unmask]> and reviewed at 
http://forum.icann.org/lists/gnso-improvements.

ICANN's webpage on GNSO Improvements:
http://www.icann.org/topics/gnso-improvements/

BGC GNSO Improvements Report:
http://www.icann.org/topics/gnso-improvements/gnso-improvements-report-15oct07.pdf

==============

*IP Justice Statement on ICANN Board Governance Committee Report
on
GNSO Improvements*

5 November 2007
------------------------------------------------------------------------

ICANN’s Board Governance Committee Report (BGC), in attempting to 
achieve the laudable result of greater inclusiveness, effectiveness, and 
efficiency conceives a near total restructuring of the GNSO and its 
processes. It proceeds from an assumption that any voting inherently 
inhibits the process and proceeds to find the most dramatic route to 
eliminate any vote. While many of the BGC Report’s recommendations would 
certainly improve the effectiveness of the GNSO, the report does not 
adequately consider the values inherent in the vote of the GNSO Council 
and the dangers of forcing consensus in all cases.

*GNSO Constituencies*

Laudably, the BGC report recommends replacing the current GNSO 
constituencies with four more-broadly conceived constituencies, each of 
which would receive and equal vote. The new constituencies would be 
Registries, Registrars, Noncommercial Users, and Commercial Users. This 
would consolidate the Commercial & Business, Intellectual Property, and 
Internet Services & Connection Providers constituencies into a single 
Commercial Users constituency. Since the interests of these groups 
already are virtually identical and they already act as a cohesive 
voting block, consolidating them will serve to avoid double 
representation of certain stakeholders and will serve to more fairly 
balance the voting in the GNSO. This re-balancing of the interests 
within the GNSO is critical to ensuring that ICANN not be unduly 
dominated by any single interest and that the rights of the billions of 
non-commercial users of the Internet is adequately taken into account in 
ICANN policy. Duplicative constituencies and weighted voting are perhaps 
the clearest ways in which unrepresentation of non-commercial users can 
occur. Consequently, it is imperative that these practices be ended and 
that GNSO Council representation reflect a fair balance of interests in 
ICANN decisions.

The proposed restructuring of the GNSO constituencies also has the 
advantage of creating greater accessibility to the GNSO by new 
stakeholders while keeping the GNSO Council at a manageable size. The 
broad constituencies proposed in the BGC report would provide a balanced 
representation for all users of the Internet. Any new stakeholder 
wishing to become involved with the GNSO would find a group through 
which they could become involved and represented without going through 
the onerous process of creating a new constituency.

The new constituencies also serve to reduce the size of the GNSO 
council, and thus will serve to increase efficiency and streamline 
discussion. The BGC report proposes a council size of nineteen. This 
may, however, still prove unwieldy. If each constituency elects three 
council members, rather than four, the size will drop to a more 
manageable fifteen. Given the breadth of the new constituencies, this 
figure will be unlikely to expand because newly interested parties will 
have the existing constituencies available to them.

In establishing the new constituencies, it is important that they be 
structured in a way that adequately reflects their intended breadth. 
Since individuals will be represented not as a distinct class but rather 
according to their interest, the new constituencies must ensure that 
their practices and fees do not erect unreasonable barriers to 
individuals. If, for example, the new Commercial Users constituency were 
to charge fees equal to those currently charged by the Business 
Constituency, it would prove an excessive obstacle to the majority of 
Internet start-ups, sole proprietors, or small businesses.

*Policy Development Process (PDP)*

The BGC report indicates that the ICANN contracts stipulate that the 
procedure for creating consensus policies will be contained in the ICANN 
bylaws. While this may prevent the optimal level of flexibility, the 
bylaws can and should be crafted with an eye towards flexibility. The 
Board should not be allowed, however, to reject GNSO policy 
recommendations that the Board considers to be “non consensus” policy 
issues. The GNSO Policy Council is and should remain the primary organ 
responsible for developing policy at ICANN. The GNSO Policy Council 
serves an important check on the power of the ICANN Board of Directors, 
who may be less in touch with the concerns of the constituencies. IP 
Justice disagrees with the BGC report and its attempt to transform the 
GNSO Policy Council away from a policy decision-making body and more 
towards an “manager” of the policy development process at ICANN. That 
repurposing of the GNSO Council would be a tragic mistake since it would 
remove another check on a policy development system that is necessary to 
ensure fair and adequate representation.

Rather than disempower the GNSO Council, the Board should take immediate 
steps to facilitate the participation of all GNSO Councilors at ICANN 
policy meetings by funding their reasonable travel costs. The Board 
should also amend the bylaws so as to permit proxy voting by GNSO 
Councilors who are unable to be physically present at a GNSO meeting.

*Working Groups*

The BGC report recommends that task forces be abandoned in favor of 
working groups. The BGC stresses that the current task force model 
duplicates the same policy discussion at the task force as at the 
Council, and that the prospect of a vote inherently polarizes the 
discussion at the earliest stages, inhibiting a more thorough 
discussion. To this end BGC recommends that these groups be made up of 
any interested stakeholders, operate on consensus, and not have their 
decisions subject to review by the GNSO Council. This proposal goes too 
far and ignores the inherent value of the review and vote by the GNSO 
Council. It also ignores the reality that consensus cannot always be 
reached (whois).

The selection of the constituencies who are represented on the GNSO 
Council is a deliberate choice to balance the interests of the wide body 
of individuals interested in ICANN policies. Great attention has been 
given to the restructuring of the GNSO constituencies precisely because 
this balance is so important. A supermajority vote by the GNSO Council 
assures that support is broad enough to justify action by ICANN. This 
gate-keeping function ensures that no working group is unduly dominated 
by one interest and allows GNSO Councilors to protect the interests of 
stakeholders who may be unable to be intimately involved in every 
working group.

This function is especially important considering that a direct 
stakeholder system with no fixed proportion of representation may be 
vulnerable to stacking by the wealthy stakeholders who can afford to 
participate to a greater extent. This tactic was recently used by 
Microsoft in attempting to gain rapid approval of its OOXML format. In 
that case, standards setting organizations such as the Swedish Standards 
Institute and the International Organization for Standardization saw 
their membership swell just before the vote. Though a consensus system 
would prevent workgroup stacking from realizing absolute control over a 
vote, stacking may still unduly dominate discussion or influence the 
chair. Since true consensus is not required, only “rough consensus,” a 
dominant faction could still stack a WG and claim that it had achieved 
agreement from “almost everyone.”

ICANN has already experienced precisely this problem with the recent 
unsuccessful WHOIS working group. In that
case, a disproportionately large number of trademark attorneys attended 
each conference. Because of the contentious nature of the issues 
involved, the process dragged on, and the chair ultimately allowed the 
trademark interest to control the result. In instances such as this, 
where one interest finds it cost effective to be overrepresented in the 
Work Group, the vote by the GNSO council is not redundant but instead a 
necessary step to prevent misuse. While the BGC is correct that 
replacing the current task force model can improve inclusiveness, 
increase efficiency, and may potentially decrease polarization, it is a 
mistake to remove review by the GNSO Council merely because it involves 
a vote. So long as the Working Group possesses the proper structure and 
culture to encourage compromise and craft a balanced proposal, then a 
vote by the Council will merely serve to ensure sufficiently broad 
support and need not inhibit compromise.

*Consensus*

The BGC report focuses strongly on eliminating or minimizing voting and 
replacing it with a consensus system of decision-making. The report 
espouses the belief that a focus on voting results in less compromise, 
distracts the GNSO with politicking, and ultimately results in deadlock 
or empty decisions. It asserts that a consensus system will be more 
inclusive, and leads to results more palatable to each party. While 
these goals are laudable, the BGC report does not adequately recognize 
the problems inherent in using a consensus system in this context, and 
does not adequately deal with the reality that consensus between 
competing parties is not always possible; sometimes a vote is both 
necessary and desirable.

The same feature which makes consensus so effective at eliciting 
compromise is also its greatest danger. In consensus every decision is 
threatened with deadlock. While this assures that all concerns will be 
addressed thoroughly, it can result in complete stagnation where two 
fundamentally irreconcilable positions are represented. In standard 
setting organizations, such as IETF, this danger is less significant 
because it is a more homogeneous community, and since standards must be 
voluntarily adopted by the industry, the working group’s decisions will 
require near unanimous support in order to be effective anyway.

In a regulatory organization such as ICANN, however, the risk of 
irreconcilable deadlock is far greater. Under the BGC proposals, the 
GNSO constituencies would represent every user of the Internet. Such a 
diverse group of stakeholders will inevitably include two parties with 
irreconcilable disagreement over an ICANN policy. Since certain 
stakeholders may be contractually bound by ICANN decisions, these 
disagreements may stem from countervailing economic interests, and hence 
it may be impossible to sway a blocking party through discussion or 
compromise.

These conflicts of interest lead to a special problem where one party is 
best benefited by no action. Whereas some organizations may have some 
assurance that all parties will be interested in any action, no such 
guarantee exists in ICANN. Consequently, any stakeholder interested in 
the status quo will have an incentive to block any action. Offers to 
compromise by the majority will necessarily be ineffective because the 
party interested in the status quo already has the best possible result. 
In such a scenario, the only recourse that may be left to the majority 
is for groups represented on multiple working groups to offer 
concessions to the holdout on unrelated issues in other working groups. 
Such gamesmanship could ultimately prove more polarizing than voting and 
would create a perverse incentive to block certain working groups in 
order to maintain bargaining chip.

It is further important to note that, even where working as intended, a 
consensus system may not arrive at the most desirable or best result. 
Specifically, it may give undue influence to a small, radical, and vocal 
minority. This problem is best understood in the working group context 
by assuming that each member of the working group represents a class of 
stakeholders. In compromising to appease a radical minority, each member 
may lose the support of some of the stakeholders he represents. In 
aggregate, these stakeholders may outnumber the stakeholders who the 
minority member represents. Consequently, the final compromise can enjoy 
less overall approval than what would have been agreed to by a 
supermajority. While this phenomenon is only a potential problem where 
the number of holdouts is particularly small, it is especially relevant 
here because proposes alternate system include supermajority of 
two-thirds or three-fourths. The essential structural difference between 
consensus and a supermajority vote is the treatment of small vigorous 
dissent.

Conclusion

The GNSO is structured to attempt to resolve the interests of a wide 
variety of stakeholders. The BGC proposal to restructure the GNSO 
constituencies into 4 main constituencies is a critical step towards a 
fair balancing of these interests and improves the ability of new 
stakeholders to obtain representation at ICANN and the GNSO. This 
restructured Council, however, will only be able to adequately balance 
these interests if it continues to serve a gate-keeping function and 
review the proposals created by the workgroups. Moreover, since some of 
these interests may ultimately prove irreconcilable, it is important 
that a single interest not be allowed to veto policy decisions.

This statement lives online at:
http://ipjustice.org/wp/2007/11/05/gnso_improvements_bgc-report/