Below, and attached as a Word document, is the Statement of Purpose for The Alternative NCSG Charter. I welcome any feedback or questions. (This Statement of Purpose discusses the issues regarding the organization of the new Non-commercial Stakeholder Group raised in my comments on the NCUC Minutes of the Cairo Meeting. So few of those comments were taken into account in revising the NCUC Proposal for a NCSG Petition/Charter, an Alternative Charter giving other options in critical areas is necessary.) 1. Structural Balance The Alternative NCSG Charter creates five organizational structures. Two of these, the Council Representatives (CRs) on the ICANN Generic Names Supporting Organization (GNSO) and the NCSG Chair, are elected by a majority vote of all NCSG Members without regard to Constituency membership. These seven majority-elected officers also sit on the Policy Committee (PC). The seven will also be a majority on that PC, until participation in the NCSG multiplies exponentially. The other two structure are the Constituency Chairs Council (CC Council) and the Membership Committee (MC). The CC Council under the Alternative Charter is an oversight group, much like a corporate board of directors. It establishes top-level guidelines, approves budgets and funding, and resolves disputes. The Alternative Charter also moves decisions about membership qualifications and status, as well as Constituency qualifications, away from the discretion of the NCSG Chair. The MC is representative of the Constituencies, rather than a mere majority of Members. Objective detailed criteria against which to judge prospective members’ qualifications and status may eventually be developed, but at this point these decisions involve significant discretion. Dividing this kind of discretion from the already powerful NCSG Chair is especially important in determining vote allocations given to Large and Small organizations based on size and participation levels. A Member categories as a Large Organization can outvote three other Members. The MC, as the primary member management entity, is responsible for tracking memberships, votes, and election procedures. The primary difference between the NCUC Proposal and the Alternative Charter is balance of power. The Alternative Charter follows in principle the U.S. Constitution, which establishes a balance of power among three branches, and sets up the House of Representatives for merely majoritarian representation, and the Senate so that each state has equal votes, notwithstanding smaller populations. The NCUC Proposal operates on a majoritarian basis, with no effective protections or avenues for minority voices. A Constituency has only two meaningful functions under the NCUC Proposal. The first is to join together to elect two functionaries to the Executive Committee (EC), who can be outvoted by the Chair and the Chair-appointed Secretary/Treasurer because the NCSG Chair is empowered to act as a tie-breaker. The second function of Constituencies under the NCUC Proposal is to place a representative on the Policy Committee (PC). All Constituency representatives together can be outvoted by the seven PC members who are the majority-elected Chair and the majority-elected NSCG CRs, until such time as more than seven Constituencies (or eight assuming one Constituency controls the majority of Members and thus the NCSG Chair) are formed and are active. At that time, and before then as well, the only role of the PC that is different than what any individual may do anyway is to “approve policy statements issued in the name of the NCSG” (NCUC Proposal 3.3.2). The weight, purpose and point of such policy statements is unclear, since, under the NCUC Proposal, the Councilors need not abide by them while voting and ICANN permits statement of policy positions from everyone. For instance, any non-commercial Internet user around the globe can (1) develop its/her/his own policy positions and submit them, individually or by informal policy group, to ICANN as Public Comment; and (2) volunteer and recruit “NCSG members or supporters to serve on GNSO Working Groups, task forces, and drafting teams; and upon the request of one or more NCSG GNSO Council Representatives, to provide advice on how the Councilors should vote or what position to take on specific GNSO policy issues.” In another section of the NCUC proposal, Constituencies are given the right to “[i]ssue statements on GNSO Policy Development Processes which are included in the official NCSG response, but marked as constituency positions, and not necessarily the position of NCSG as a whole.” As any individual or group may be involved in ICANN workings and submit public statements, the right to have a view noted as a NCSG minority position could occur without formal Constituencies. Thus, if the internal structure of the new NCSG continues to be entirely majoritarian, there is no reason to have Constituencies at all. A handful of Members may have a “grouplet” by discussing policy or common interests they share at a bar without any formal organization. Assume, as an example, that the NCUC as a separate Constituency within the new NCSG continues to have the approximately 23 votes that were cast for NCUC elections this fall. Also assume all of the other Constituencies and Members together could come up with only 22 votes. In a purely majoritarian system as established by the NCUC Proposal, the “new and diverse voices” coming to the table following the GNSO restructuring, even if just one person short of a majority, would be unable to get any real leader representation. The NCSG Chair and the six GNSO Councilors would be elected by 23-22, and then the NCSG Chair would appoint a Secretary/Treasure, speak officially for the NCSG, maintain the discretion with respect to what new NCSG Members to admit and what Constituencies to form, and control (without any transparency requirements) all of the funding. Milton argues that giving Constituencies any kind of weight or power in the NCSG may provide improper incentives to create Constituencies. But the NCUC Proposal creates incentives to give votes to individuals and groups who need not otherwise be involved with the work and will rubber stamp positions, rather than pulling in new participants who will actually read and consider the issues. Moreover, in the Alternative Charter several structural protections are established to ensure that sham, shell and duplicate Constituencies are not formed. One issue with continuing a majoritarian system is in application. The NCUC majority has not historically considered its role as one of becoming familiar with the views of the obvious range of non-commercial users and representing that trust in GNSO council votes, official NCUC policies, or otherwise. As discussed in a lengthy email exchange on the NCUC-archived email list in September 2007 and at the Los Angeles ICANN Meeting in October 2007, the existing NCUC leaders have taken the position that they represent the particular views of their sponsor organizations unless such positions are out voted by other participants in NCUC. 2. Cumulative Voting The Alternative Charter follows the NCUC Proposal for staggering NCSG CR elections. That means that only three seats on the GNSO are subject to election each year, following the 2009 transition elections. The Alternative Charter gives each Member three votes that can be split over two candidates. This is not a difficult concept. In the future, more than a handful of Constituencies will certainly exist. At that time, as provided by the Alternative Charter, the PC and the MC will no longer be able to seat a representative from each Constituency. Thus, some ability to cumulate an extra vote for one candidate for the three GNSO Council seats available also helps diffuse the impact of basing elections on what may be a super slim majority. Another alternative is to consider only supermajority results, such as sixty percent of votes cast. 3. Grandfathering. The new NCSG, as a member of a new “house” of Internet users in a new GNSO, is not simply an altered form of the existing NCUC body. After the NCSG is formed and new Members are accepted, those Members are entitled to vote based on the provisions of the new Charter. It defies the principle of the GNSO Improvements project to subject the NCSG to the officers and CRs elected by the limited NCUC membership in October 2009. Under the Alternative Charter, the existing NCUC Councilors are entitled to run in the first NCSG elections, which under the Alternative Charter are held on a per-seat majoritarian basis, and not cumulative voting. If consistency of representation is important to the NCSG Members, they will likely be re-elected. 4. Transparency. As mentioned in the Comments to the Minutes of the NCUC Cairo Meeting, the NCUC has been receiving funding from a member of the ICANN supplier house, PIR. PIR manages the .org Top Level Domain, and may be an appropriate source of funding for non-commercial user representation. However, decisions about obtaining funding and, more critically, about dispensing funding have been within the discretion of the NCUC chair and are not public or disclosed to the membership. Moreover, under the NCSG, some funding sources may want to support only one or more Constituencies, not the entire NCSG membership. Loyalty and support tend to follow sources of funding. Providing funding for some participants, and not others, without clear, open criteria encourages, if not guarantees, the representation of some voices over others. Thus, the Alternative Charter provides that the CC Council appoints the Secretary/Treasurer rather than the NCSG Chair. The CC Council establishes procedures for basic approval and review of finances. The Chair and Secretary/Treasurer submit a general budget to the CC Council for approval and then report at the end of each year on the allocation of expenditures under the budget. The CC Council may also create guidelines for accepting funding and for its use. 5. Accountability of GNSO Council Representatives. The NCUC Proposal makes abundantly clear that the CRs are not subject to any NCSG activities or views. All decisions of the PC are, at best, advisory. As a general principle, a CR should not be required to get authorization for every vote from those he/she represents. The Alternative Charter continues with this ultimate autonomy regulated only by the next election. It adds, however, language clarifying that the CRs should, to the extent possible, use their best efforts to represent the positions that emerge from the PC. Critical questions of strategy and NCSG voting blocks belong to the PC. 6. Term Limits. Genuine term limits must be included in the effort to include new voices in ICANN processes. Current practice is to allow a series of terms, and then a brief hiatus before the same person returns to serve a fresh set of terms. New term limits must be worded to avoid superficial circumvention and assure opportunity for more voices, more issues, and more geographical areas to have opportunities of leadership. The trend of having career officers and representatives in the GNSO virtually assures the newcomers will be unwelcome or labeled as too “inexperienced” for office. To meaningfully deter capture and dynasties, terms must be considered in light of actual their effectiveness to incentivize new and broader participation. Under the Alternative Charter, the appropriate length of term for each NCSG structure is carefully considered and term limits are balanced so that no individual or Constituency can unreasonably dominate. The Alternative Charter considers the numbers of terms allowed within each ten year period. This encourages meaningful involvement of others and avoids the situation where a single person holds a particular office for eight out of ten years. If the existing officer can be back in position after a single-year rotation to a similar-minded substitute, there is little incentive for the Members to train and develop new leaders. 7. Representations for Geographic Regions and Other Significant and Distinct Groups An overarching decision about the nature of “representation” in the new NCSG must be made. Is a voice/position/region or any other category of interest only “represented” if a person fitting such category has a seat on the GNSO Council? If so, then provision must be made to ensure that representatives of various Constituencies, and other factors, also have a GNSO Council seat. This could be accomplished in a number of ways, including limiting the number of Constituencies in any House to six. In the long term, the NCSG will want to integrate other “representatives” of major non-commercial user interests, such as economic opportunity, amount and status of access, governmental restrictions, etc. However, if representation is a looser standard, then perhaps regional geography can also be represented in other ways than by assignment of Council seats. Only a power-diffused NCSG can open opportunities for such broad voices and, thus, it is imperative that the NCSG charter include other structures that are not merely majority elected. A particular priority for ICANN at this time is geographical balance. Thus, it makes sense to have specific provisions for regional representation now. The Alternative Charter includes the requirements for regional diversity of the NCUC Proposal. Determinations of regional status will have significant impact on the elections for GNSO Councilors under the NCSG Charter. The criteria for determining how to identify an individual or Organization Member representative as speaking for an ICANN region must, first, follow the careful guidelines being established by a working group and subject to approval of the ICANN board. Neither mere citizenship nor residency are very useful measures of whether an individual has sufficient contact with and experience in the issues unique to any region. More involved Members with longer-held and deeper contact with the region should be preferred over those who simply enjoy nonresident citizenship, or who have moved to a different region recently. Moreover, decisions about qualification to hold office as a regional representation should be made by a body other than the majority-elected NSCG Chair. Such decisions must be based on clearly stated guidelines. Under the Alternate Charter, the MC will establish these guidelines. Finally, as an ideal, the six GNSO Council seats might be allocated one to each five of the ICANN geographical region and then one open seat, which may be filled by a person from any region. This may not be practical in the short run when so few are involved. Unfortunately, a few of the past NCUC officers and GNSO Council members from all regions have rarely if ever contributed ideas and written work, have not attend meetings, or participate remotely by active email. This problem could be addressed by: (1) including an active participation requirement to obtaining and retaining office; (2) tying regional representation to having at least five active NCSG Members, or two viable candidates from such region; (3) forming regional Constituencies and, as soon as such Constituency has sufficient member to qualify, giving it either the representation rights of all other Constituencies, or the right to have one member on the GNSO Council. Hopefully, if a membership fee is not required, the NCSG will get broadly expanded participation even within the next year. 6. Other Issues to Consider. The following are not incorporated in the Alternative Charter at this point, but should be considered by the group. 1. Can a person who is an officer in the ALAC also concurrently serve as an officer, appointee, or councilor of the NCSG? The issue is that it would be very difficult for any individual to be fully informed of and engaged in the business of both groups but may join just to have the vote. Additionally, the groups typically meet at the same time at ICANN meetings so one could not attend both meetings. 2. Should GNSO Council seats be subject to other requirements for diversity besides geographical regions? 3. Should the ultimate goal be to have at least one GNSO Council representative from each geographical region? 7. Other Changes. The Alternative Charter contains other changes to build in protections, transparency, and accountability, as well as technical and formatting changes, and additions to cover issues not addressed in the NCUC Proposal. I would be happy to answer any questions about other changes. In addition, I am preparing a more detailed, section-by-section explanation of the changes in the Alternative Charter. 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]