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:
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:
§ 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.
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.
Chair, Noncommercial Users Constituency