Hi everyone Just a brief clarification that I didn't mean to give the impression (in my last email) that the other GNSO Constituencies are each always unified in a single view, or that it is always a pitched battle between NCUC and the other Constituencies. There have, for example, been instances where NCUC and a number of the other Constituencies have voted together and have worked together on issues. I do want, however, to emphasize the point that the present time - of GNSO restructuring, Constituency/Stakeholder Group re-organization and general process uncertainty - is in my view not at all a good time for NCUC to appear (as Bill and I have mentioned) fragmented and confused. As such, if there are members who see significant problems with the draft that was discussed and submitted - regardless of whether or not this means you prefer Cheryl's alternative proposal - we should discuss this internally on our listserv. There will likely be time and opportunity to refine what has already been submitted to the Board, especially since we currently have little sense of what types of questions/clarifications they may seek from us as the process moves along. Finally - and here I would like to emphasize that this is both my personal view as well as that of Franklin Pierce Law Center whom I represent within the NCUC - I do not think either that the NCUC/NCSG should be viewed as the forum that will fight blindly for totally free expression unhindered by any other public interest consideration. Even in the most democratic of societies, there are necessarily certain limits that are necessitated by equally fundamental public policy concerns. What we as NCUC/NCSG should be striving for is to enshrine the basic principles of access, openness and freedom into the Internet architecture, and to accept only those restrictions that are just as necessary for the protection and development of democratic and open societies (e.g. as recognized and as limited in the major human rights treaties and instruments.) As such, I very much hope that the current and future NCUC/NCSG will be the place where this type of balance is openly discussed. We will not each always agree with one another, and there may be times where an NCUC statement - or indeed your Councillors' votes - may not be of a single position, but I think our strength then will be in presenting a cohesive if not necessarily always a sole viewpoint that is well-reasoned, openly discussed and reflective of the range of user interests that we each represent. Thanks, Mary Mary W S Wong Professor of Law Franklin Pierce Law Center Two White Street Concord, NH 03301 USA Email: [log in to unmask] Phone: 1-603-513-5143 Webpage: http://www.piercelaw.edu/marywong/index.php Selected writings available on the Social Science Research Network (SSRN) at: http://ssrn.com/author=437584 >>> Cheryl Preston <[log in to unmask]> 12/1/2008 1:33 PM >>> This topic has raised interesting discussion on the very kind of issues that non-commercial Internet users should be talking about. We have heard from all of the active NCUC folks, except for Robin and Carlos and they will probably weigh in later today. Rather than respond to each of the statements made by Bill, Milton, Konstantin, Norbert and Mary (as much as I may like to), I am going to focus on 3 VERY BIG issues. 1.The Alternative Charter is not too late. I have again talked with ICANN staff and there is no “deadline” that was missed. The only time frame was Milton’s offer to the Board representatives in Cairo to turn in a draft before the end of November, and both versions met this. The staff is just beginning to address their procedures in reviewing charter proposals. ICANN as an organization is not going to cut off valuable discussion and consideration of alternatives without having a clear, publicly posted deadline. 2.Mary is correct in describing the “cohesive, unified” approach that has been the hallmark of NCUC representation. Rather than being a political strength, however, the single issue solidarity has been seen by many in ICANN as a weakness, as a barrier to consensus building. The NCUC representatives are solidified around free expression and the kind of “net neutrality” that overrides competing concerns for protections and standards on the Internet. If you would like a list of NCUC statements and positions over the last few years, let me know. They are effective in voting as a block. The business users group, for example, is made up of 3-4 constituencies who do not always have “similar interests,” but sometimes widely inconsistent and competing interests that have to be negotiated. (Do you want testimonials?) A broad-based, consensus building model is meant to foster compromises and balancing at every level. I agree wholeheartedly with Norbert when he talks about the evils of governmental repression of political speech. Building an Internet that can resist such pressure is a fundamental value of mine as well. However, we are capable of the more sophisticated approach, as is true in the law of every free nation. We need not oppose every kind of regulation or law enforcement on the Web to reach our goals on political repression. Mary notes that “NCUC is often the only forum/voice for individuals and non-business interests to discuss fundamental public policy issues such as fair and open Internet access/neutrality.” The fact that it is the only forum/voice is exactly why it needs to include and represent those who have other valuable concerns to balance with “open access.” 3.You all have expertise to make the critical decisions about charters. ICANN is aware that their efforts to build a bottom-up support organization have been impaired by the way newcomers are treated (Note: be sure to respond to the constituency survey before the mid-December deadline). We must avoid the kind of dialogue that conveys this message: “There is this bigger, scary political dynamic and rules and deadlines you can’t understand, and you, as a newcomer, don’t have nearly enough history, background, insider connections, and expertise.” The issue here is simple, and all of you are more than qualified to address it: Should the representatives for all non-commercial Internet users in ICANN’s policy processes unify in solidarity for free expression in a simple structure that squeezes out other user interests and alternative approaches? I see no reason to continue any discussion other than on the merits of the two proposals. 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] >>> Mary Wong <[log in to unmask]> 11/30/2008 11:54 pm >>> Hello everyone I'd like to add my own note of welcome to all new members, whose voice and expertise I personally am looking forward to benefiting from. As Norbert has done, I'd like also to introduce myself briefly and to do what I can to clarify what's been happening at/within ICANN and NCUC. Along with Bill Drake (who, with others who have long been involved in Internet governance issues, is currently flying the flag for bottom-up, multistakeholder involvement at the IGF in Hyderabad) I was recently elected as a new NCUC representative to the GNSO Council (joining Carlos Affonso de Pereira from Brazil). As many of you know, I pledged to respect and further open discussion of what at times are disparate voices, disagreements and differing priorities/issues amongst us, while trying my best to craft a representative and - if possible - unified viewpoint to other constituencies and groups within ICANN. Unlike the other GNSO constituencies, NCUC is unique in that our members will not always have similar views on many issues; this, unfortunately, can also be our "weakness" (and I will explain what I mean by this below). Although I have less personal experience/involvement in ICANN than many of you (especially Milton, Norbert, Robin, Carlos and others) my recent observations and experiences (from Paris and Cairo, and now - wading daily through over a dozen (often more) lengthy emails and numerous conference calls/requests regarding GNSO work) are as follows, first on GNSO/ICANN and then on the ongoing NCUC/NCSG process. 1. GNSO/ICANN - I can't overly emphasize how vital it is for all NCUC members to realize that we are often a group "under siege" by better-funded, more unified (for having more clearly aligned - usually commercial - interests) constituencies/groups, including - and sometimes especially - within the GNSO. - The main reason for this lies mostly with the fact that, as our name implies, we are there to represent the non-commercial users (whether institutions or individuals); as such, NCUC is often the only forum/voice for individuals and non-business interests to discuss fundamental public policy issues such as fair and open Internet access/neutrality. - NCUC's Councillors generally endeavor to speak and vote according to what we perceive - largely through feedback mechanisms such as this listserv - to be the prevailing view (and if possible, consensus) amongst NCUC members. While we three each cast individual votes, we try as far as possible to discuss and coordinate our actions and views. We also know there will be times where there is no NCUC view or consensus; at such times, we try our best to discern an objective and fair viewpoint to take. Should any NCUC member believe that any of our votes or speeches misrepresent the constituency view or are otherwise unsupported/insupportable, we hope you will not hesitate to raise the matter publicly (e.g. on this listserv.) - ICANN is a hugely complex, and dare I say intimidatingly bureaucratized, organization: not only are there multiple issues (ranging from technical standards to public policy) being worked on at once, but deadlines are usually tight, and coordination often difficult to achieve. This often also means that the better-funded and professionally-staffed constituencies can muster views and positions much more quickly and consistently than NCUC (since most if not all of us do ICANN work on top of our regular jobs.) As I said before, my view therefore is that it's crucial for NCUC (or whatever group ultimately represents non-commercial users at ICANN) to present a coherent and, if possible, unified public viewpoint, as this makes our position stronger and our views more likely to make an impact. 2. On the NCUC/NCSG question - Milton and (I believe) Konstantinos has already outlined the background and timelines involved in this, so let me just add my personal belief that this is one issue where NCUC members CANNOT afford to appear fragmented and disunited. With the backgrorestructuring (and recalling the recent, fraught and difficult battle over the number of votes per existing constituency in the new bicameral house structure), the political reality is that it is entirely possible that a diffused and weakened Non-Commercial user group will mean less influence and respect in the restructured GNSO. - Let me add also that it is currently UNCLEAR what the relationship between the proposed new Stakeholder Groups and constituencies will be. None of the official ICANN studies or documents discuss (much less resolve) this question, making it all the more important that there be a unified, strong Non-Commercial Stakeholder Group that will continue to represent - and fight - for non-commercial voices and interests. - I support Milton's proposal for a number of reasons, including the very strong impression I got in Cairo that it would greatly benefit NCUC/NCSG to submit a formal proposal to the Board as early as it could possibly do so. The draft proposal was what was discussed and (as a result) modified, and it was the modified document that was submitted within the designated time period. - Finally, and returning briefly to the "platform" upon which I asked for all of your support in the Council, it is absolutely critical that the Non-Commercial user group does NOT allow itself to be divided into multiple and different groups that do not have a formal vote in the new GNSO structure. Milton's proposal has the benefit of allowing not just the formation of new constituencies WITHIN a strong Non-Commercial Stakeholder Group (NCSG), it also gives those new constituencies a voice and vote within the NCSG AND avoids the fragmentation and consequent weakening of our "external positioning" that I have already mentioned. With apologies for the length of this post, Mary >>> Norbert Klein <[log in to unmask]> 11/30/08 3:16 PM >>> Dear new individual members of the NCUC (the new NCSG does not yet exist) who wrote recently, "Ralph D. Clifford" <[log in to unmask]> "Jon Garon" <[log in to unmask]> "Kim, Nancy" <[log in to unmask]> May I first introduce myself: Norbert Klein, since 1990 in Cambodia, working since 1994 in non-commercial organizations – in 1994 I created the first Internet system in the country, in 1996 the country address .kh, and in 1999 I joined the “non-commercials” in ICANN – at that time it had a different name. During the last three years I was sent by the NCUC as a councillor into the GNSO. Since November 2008, I am a member of the ICANN Nomination Committee. Though my working day – though a Sunday – went beyond midnight, I want to write to you and our community, because I am concerned about what you write – my mail is still basically a letter of welcome. I may not respond to all of your concern and questions in a way you may expect – but I do so on the basis of many hours during many years of a struggle to get our voice - the Non Commercial Users Constituency – heard, as it developed over the years, and in the context of ICANN. We found ourselves often in a difficult position - others with business, intellectual property, and technical mandates had often better institutional support structures. While I understand your hope, saying to “add that simplicity is also valuable,... ... without adding significant complexity to the proposal” - I can only plead to spend quite some more time working through the complexity of the ICANN website: http://www.icann.org Surely you have done it – but I admit, after so many years, that I am still struggling to be oriented – not only about the structures – but about the dynamics and time lines, which exist and to which we have to adapt ourselves, if we want to have our voice heard, according to the right procedure, at the right place, and at the right time. One sentence makes me concerned: “The bottom line is that ICANN is not perceived to be an open organization, nor one that is willing to proPerceived by whom? A complex network of cooperating organizations and institutions with their different interests cannot be called to be “not open” for having worked out, changed, further developed, and revised again, certain rules and procedures. The discussions and outside consultancies and preparations towards the present GNSO restructuring process have been going on for several years – and as it is a process where quite different institutional actors are involved, not all of our concerns have been received with the same “openness” which we would have hoped for. But I cannot easily accept to say that ICANN is “not willing to provide a voice to new users of the Internet and Web.” In 1999, and for some years to follow, there was an effort going on to create an “individual membership constituency” - which did not lead anywhere, because it was basically an effort by ONE person trying to decide what has to happen, and there was no support for this kind of approach in ICANN. We, in the NCUC, received since that time the clear mandate to be a membership organization of organizations, though we were concerned that this excluded the possibility for quite a number of individual persons who would have liked to bring their contribution into our fellowship. Now, when we finally have taken the initiative to remove the institutional constraints for individuals – and have received the agreement within the ICANN-GNSO restructuring to accept also individual members into the NCUC (on the way into the NCSG) - I see no reason to say that ICANN is “not willing to provide a voice to new users of the Internet and Web.” You are among the first coming into this door we have worked to open. I cannot comment much on the alternatives proposed by Prof. Cheryl Preston – presented at a point in time publicly known to have been too late to be integrated and sent to the ICANN board – after a draft had been discussed in different stages in the constituency, and we finally had a text which had received wide consensus and was sent on. Let me close with some content concern, and not only with structures. But it is again a very complex, not a simple situation we face. Freedom, justice, and openness have been extremely important elements for my work in Cambodia – in a context where the technological, economic, and political situation is VERY different from the one in most of the north-Atlantic countries. It was for me personally always important to have – in the NCUC fellowship – a group of people from where I could get support and inspiration for our situation here – even when we were in ICANN encountering challenges which were not only encouraging for our efforts in Cambodia (I am editing, since more than 10 years, a review of the Cambodian language press in English). The media – not only the printed press – is in an unending struggle to find ways to communicate freely without intervention. The discussions about freedom of expression – in ICANN, including in the domain name system - provide always a context for me here, as they have for the society in the USA. I just read, before writing to you, the following article, a kind of homework for the GNSO Councillors from the NCUC – and this work is being done, of course, on the basis of discussion in the constituency. Therefore I hope for some extensive comments back: http://www.nytimes.com/2008/11/30/magazine/30google-t.html?ref=todayspaper&pagewanted=all Whatever the time is at your end when you get this – here it is now 02:50. But I wrote now because of a deep concern. Norbert -- Norbert Klein Phnom Penh/Cambodia PGP key-id 0x0016D0A9 If you want to know what is going on in Cambodia, please visit us regularly - you can find something new every day: http://cambodiamirror.wordpress.com (English) http://kanhchoksangkum.wordpress.com (Khmer)