Dear Robin,

This is the first I or my constituency members have seen of these
revisions.  We had understood we would be included in discussing
revisions and compromise.  We do not have adequate time to respond in
full today.  We will post responses and questions as they are prepared
on the wiki or discussion commons for NCSG Charter proposals on the
ICANN website,
https://st.icann.org/ncsg-commons/index.cgi?non_commercial_stakeholder_group_commons.

Cheryl B. Preston
Edwin M. Thomas
Professor of Law
J. Reuben Clark Law School
Brigham Young University
434 JRCB
Provo, UT 84602
(801) 422-2312
[log in to unmask]

>>> Robin Gross <[log in to unmask]> 3/16/2009 1:14:37 pm >>>
Attached is the revised and latest version of the NCSG proposal and  
executive summary (based on discussions in and since Mexico City).

Please let me know if there are any suggestions for further  
improvements to the proposal by the end of the business day, so it  
can be submitted to the ICANN Board by the deadline.

Thank you to all of those who helped provide drafting and comments to 

the latest proposal (especially Mary, Carlos, and Brenden).  This has 

been a real community effort from a growing team of engaged members.  

Thanks again!

All best,
Robin

______________________________________
The NCUC is pleased to submit a proposed charter for the new  
Noncommercial Stakeholders Group (NCSG).  This revised proposal  
reflects comments received in meetings with the Board Governance  
Committee, during a “Users’ House” session and a joint ALAC-NCUC 

session at the 34th ICANN Public Meeting, in Mexico City, and in  
discussions with ICANN staff as well as among NCUC members.

This cover letter to our proposal provides: (i) an executive summary  
of its essential elements; (ii) an explanation on how it advances the 

principles and goals of the GNSO Improvements process through the  
adoption of innovative approaches to certain problems posed by the  
formation of stakeholder groups; and finally (iii) a summary of the  
specific changes made in comparison to our previous version of the  
NCSG proposal, as submitted to the ICANN Board on February 28, 2009.

1. Essential Elements of the proposal:

Noncommercial stakeholders join the NCSG directly, and the NCSG keeps 

track of membership and administers voting for Council seats by the  
membership as a whole.
The NCSG is administered by an annually elected Chair and a Policy  
Committee. The Policy Committee is composed of the 6 elected GNSO  
Councilors and one representative from each Constituency.
There are three classes of membership: 1) large organizations (which  
receive 4 votes), small organizations (which receive 2 votes) and  
individuals (who receive 1 vote)
Constituencies are created as subunits within the NCSG and its  
formation follows some simple procedures, managed by the Policy  
Committee, which then submits the petition for formation of a new  
Constituency to the ICANN Board´s approval.
We have de-linked Constituency formation from Council seats so that  
NCSG participants do not have artificial incentives to fragment into  
competing groups, ensuring that a voting system, conducted through  
all members of the SG, will result in a better and diverse  
representation on the GNSO than any other model that strings the  
formation of a Constituency to a seat the Council, favoring  
corporatism over democracy.
Constituencies are given special rights to propose Working Groups and 

assured that their positions are incorporated into any and all public 

comments submitted by the NCSG into the policy development process.

To protect the voice of minorities in the policy process, we require  
all NCSG representatives on the GNSO Council to vote in favor of the  
formation of a Working Group if it has the support of 1/3 of the  
constituencies or 1/5 of the whole membership.

2. How our proposal addresses Principles and Goals of the GNSO  
Improvements process:

We would like to explain how this proposal advances the principles  
and goals of the GNSO Improvements process. As you know, the Board  
has articulated four “vital principles” that are critical to the  
GNSO revitalization process. They are:

§       GNSO policy development activities should become more visible 

and transparent to a wider range of stakeholders;
§       Reforms should enhance the representativeness of the GNSO  
Council and its constituencies;
§       Operational changes should help enhance the GNSO’s ability  
to reach consensus on policy positions that enjoy wide support in the 

ICANN community; and
§       GNSO stakeholder representation structures need to be  
flexible and adaptable.

Our proposal meets these goals better than any of the proposed  
alternatives.

Principle 1: Visibility and Transparency.
When noncommercial stakeholders are fragmented into independent  
constituencies, each with their own mailing list, administrative  
structure and representatives, it is literally impossible for an  
ordinary noncommercial organization to keep track of them all.   
Noncommercial stakeholders in one constituency would have no idea  
what is happening in other constituencies.  Our proposal integrates  
all policy deliberation and voting into a unified structure. This  
enhances the visibility and transparency of the SG.

Principle 2: Representativeness.
Our proposal enhances representation in several ways.  First, by  
adopting a model of flexible and easy-to-form constituencies as  
subunits under the NCSG, we allow a far more diverse set of interests 

and coalitions to form.  Most important, through unified voting for  
GNSO Council seats, our proposal ensures that whoever represents  
noncommercial stakeholders on the Council has support across all  
constituencies, not just a bare majority of a small subgroup of the
SG.

Principle 3: Consensus.
We believe that the old GNSO constituency structure, which assigns a  
specific number of Council seats to specific constituencies, is  
inimical to the formation of consensus.  That approach encourages  
small subgroups to break away and form their “own” constituencies 

in order to gain a guaranteed Council seat.  Once a constituency  
controls specific Council seats/votes, they have little incentive to  
seek support from other Council members for their views or their  
representatives.  We already have evidence from this; we note that  
none of the “new constituencies” currently being proposed for the 

Noncommercial Stakeholders actually represent newcomers to the ICANN  
space.  All of them are existing members of NCUC or RALOs who wish to 

gain seats on the Council without having to win an election among a  
large number of other noncommercial entities and individuals.

Our proposal understands that policy development in the new GNSO will 

not come from a Council acting as a legislator, but from consensus- 
based Working Groups. Therefore, we allow relatively small minorities 

of the NCSG to bind our Council representatives to support the  
formation of a Working Group.  Once a Working Group is formed, its  
proponents will have to convince many other stakeholders to agree on  
a common policy. We think there should be a low threshold for the  
formation of a WG, so that anyone can have a chance to convince the  
rest of the GNSO of the need for a policy.

Principle 4: Flexibility and Adaptability.
The old constituency model is broken.  It rigidly assigns Council  
seats and representation to categories of users that are constantly  
changing, categories that may overlap in numerous ways.  Dividing the 

world up into mutually exclusive categories known as  
“constituencies” is always bound to exclude some people who  
don’t fit the categories, and at the same time over-represent  
entities who qualify for two or three of the categories.  By  
detaching Constituencies from Council seats, our proposal can make  
constituencies much more flexible and lightweight.  We make  
constituencies more like intra-Stakeholder Group working groups –  
easier to form and not mutually exclusive.  NCSG members can join  
multiple constituencies, and constituencies can form and disband more 

easily without disrupting the entire representational structure of  
the NCSG.
Under the old model, once a constituency is formed, there is a strong 

danger that it can be captured or controlled by a small group,  
especially as membership and participation declines.  The NCSG  
charter proposed here solves this problem by situating constituencies 

in a large NCSG membership that cannot be easily captured, as  
addressed in the item below.

3. Changes made to the previous (2/28/9) version of the proposal:

Dealing with “Threat” of Capture.

A central concern is the ability of special interests or a discrete  
group to gain a majority of GNSO Councilor seats in the reformed  
GNSO.  Comments suggested that existing participants within the NCUC  
might have special advantage, or the proposed structure might be  
subject to “gaming,” specifically capture of Councilor seats by a 

simple majority.

To the first point, the current NCUC will dissolve completely when  
the charter goes into effect.  Existing individual and organizational 

members will be free to form new constituencies and participate in  
elections according to the charter rules.  They are not privileged in 

any manner, having the same rights as any new members that chose to  
join the Stakeholder Group.  The various interests among NCUC members 

are extremely diverse, perhaps the most varied of all SG’s, and are 

difficult to capture by a single viewpoint, given the breadth of  
noncommercial interests.

To the second point, the threat of “gaming” exists under any  
proposed structure.  It should be recognized that concerns about some 

coordinated push to “capture” the Noncommercial Constituency have 

been made since 1999.  However, there is no factual basis to suggest  
this has occurred.  Instead, and as the Board realized in reviewing  
the BGC recommendations, the issue has always been under- 
representation of noncommercial interests.  It has always been the  
case for noncommercial interests that there are not enough people  
willing and able to get deeply involved and do the work required to  
participate effectively in the GNSO.  Despite this ongoing  
difficulty, NCUC’s membership has increased by more than 40% within 

the last six months, partially due to the membership being opened for 

individuals to join.

Nonetheless, in response to this perceived threat of capture, we have 

extended the minimum voting eligibility period for new Members to 90  
days (Section 3.4.3).  Such an adjustment should allow opportunity  
for countervailing interests to form, preventing the flooding of new  
members’ right before an election with the specific purpose of  
winning it, without any actual engagement of such members in the  
discussions and activities pertaining to the Stakeholders Group.

The current constituency-based model actually aggravates problems of  
capture because it potentially institutionalizes special interests.   
Once a constituency has formed and been allocated seats, there is no  
reasonable mechanism to remove a constituency’s representatives from 

the Council, no matter how the broader membership base may change.   
We partially address this concern by now requiring final approval of  
Constituencies by the ICANN Board (Section 2.3.1).

Dealing with the demand for diversity in representation on the GNSO  
Council:

Attempting to categorize individuals and organizations according to  
constituencies is inimical to growing diverse participation in the  
stakeholder group.  A constituency-based model of allocating seats is 

neither flexible nor adaptable to a growing noncommercial membership.


In this regard, the discussions in which we engaged during the Mexico 

meeting featured a wide range of comments on the issue of  
representation, and providing adequate solutions for a long-term  
perspective, as well as creating complex voting methods that would  
end up decreasing the broader representation we seek.


One approach suggested that an interim system in which each  
Constituency would be granted an automatic seat at the GNSO Council  
could be created as long as no more than six Constituencies exist  
within the NCSG structure.  This suggestion not only fails to provide 

a long-term solution for the issue, it also creates artificial  
incentives for the formation of groups that have little concern for  
the wider range of the membership who the NCSG Council must serve.


The outcome of an interim decision like that would encourage the  
election of NCSG Councilors who have little or no incentive to reach  
out to other views and constituencies that naturally constitute the  
non-commercial interest in ICANN.


The other proposal ties up non-commercial energy and resources with  
in-fighting between competing constituencies and dispute mechanisms.  

It presents complex systems for voting and/or for the allocation of  
members inside the specter of six forced Constituencies.  And its  
voting mechanism seems to create a difficult method for measuring the 

will of the members that integrate the NCSG.


There have been even some suggestions for fragmented voting.  We deem 

that no other system is simpler and direct than allowing each member  
to vote and that representation results from the election of the ones 

to whom the majority of votes has been casted.


In short, the other NCSG proposal allocates GNSO Council seats by  
constituencies competing with one another, while our proposal  
allocates Council seats via constituencies cooperating with one  
another to find a consensus.


The recently submitted charters of the Registries and Registrars  
provide for GNSO Councilors to be elected by Stakeholder Group-wide  
membership rather than individual constituencies.  In this matter,  
each of these charters (ours, the Registries, and the Registrars)  
seem to present the same solution for the issue of representation.

The reason for this in the non-commercial stakeholder group is  
simple: There are no concentrated benefits for noncommercial  
participants to counter their costs of participating in a global  
policy making institution.  A simple solution to this is to lower  
structural barriers to participation, as the NCSG charter does by  
providing for direct representation and easy participation within  
constituencies.

Our proposed NCSG Charter tackles the issue of representation, avoids 

interim suggestions, and puts forth a system that allows the broadest 

and most democratic representation of noncommercial interests.

Conclusion

Although it has transformed significantly along the way, our proposal 

is not new.  We have been working on this charter since June of 2008, 

and have entered into extensive consultations with ICANN staff  
members, ALAC, At Large representatives, board members, and our own  
constituency members on its development.  We feel that much has been  
improved to guarantee diversity in representation, to secure a space  
for minority views to be heard, and to address the concern over
capture.

We thank ICANN for allowing us an opportunity to provide this revised 

proposal that reflects the comments and suggestions received from all 

interested parties who have joined in the effort to present the best  
charter possible for the NCSG structure, built upon consensus and the 

principles that guide the GNSO Improvements process.  We stand ready  
to continue to work with the ICANN community to improve this NCSG  
proposal eve  further.

Best regards,

Robin Gross,
Chair, Noncommercial Users Constituency