<nettime> Appeal for support from ICANN civil society

[Geert Lovink <geert@xs4all.nl>]

> From: Milton L Mueller <mueller@syr.edu>
> Date: August 17, 2009 11:44:21 PM EDT
> To: "MADCoList" <MADCoList@list.media-democracy.net>
> Subject: [MADCoList] Appeal for support from ICANN civil society
>
> Dear colleagues
>
> Many of you have already heard of the controversies surrounding the  
> ICANN Board's mistreatment of noncommercial participants. At issue  
> is whether global governance of critical Internet resources will  
> continue to be "tilted" toward governmental and commercial  
> interests, and whether ICANN's unaccountable staff will be allowed  
> to punish or handicap independent and oppositional voices.
> Despite the setbacks we have succeeded in gaining the support of  
> some Board members and in creating some pressure to review and amend  
> the decisions. We are now pushing for a meeting with the Board in  
> the Seoul meeting, and a few other requests. We are sending the  
> attached letter, which has the unanimous support of the  
> Noncommercial Users Constituency (NCUC), to the Board as soon as  
> possible, and we'd like for this letter to include signatures from  
> public interest groups who are not already members of NCUC. Please  
> help us fight for an open and bottom up policy making process for  
> the global Internet, and indicate your support for a more democratic  
> approach to Internet governance.
>
> Thanks!
> --MM


TO: The ICANN Board of Directors and Mr. Rod Beckstrom, ICANN  
President and CEO

RE: Call to the ICANN Board to Correct Problems with the NCSG Charter,  
and to Address Continuing Misperceptions about Noncommercial  
Involvement in ICANN

This letter comes from nearly 150 individual and organizational  
members of ICANNâs Non-Commercial Users Constituency (NCUC).  It is  
also endorsed by public interest groups outside of NCUC.  We are all  
deeply concerned about the July 30, 2009 ICANN Board decisions  
regarding the restructuring of the Generic Names Supporting  
Organization (GNSO).  We believe that the Noncommercial Stakeholder  
Group (NCSG) chartering process has been seriously flawed on both  
procedural and substantive grounds.  We appeal to you to address these  
problems before permanent damage is done to ICANNâs reputation, to  
the GNSO reform process, and to the interests of noncommercial users  
of the Internet.

This letter is, first and foremost, an urgent plea to the ICANN Board  
to grant three specific requests:

1) First, because you have never had the opportunity to get the full  
story, we are asking for a direct meeting between the full Board and  
NCUC representatives at the Seoul ICANN meeting in October.

2) Second, because of important flaws and the complete lack of  
community support for the Structural Improvements Committee (SIC) and  
ICANN staff-revised transitional NCSG charter[1], we ask that you make  
a public commitment to completely review the transitional NCSG charter  
within one year (i.e., by July 30, 2010) in a way that explicitly  
guarantees that the charter originally proposed by the NCUC[2] and  
overwhelmingly supported by the noncommercial community will be  
considered as an alternative.  As part of this review, we commit  
ourselves to finding opportunities to reconcile the differences  
between the two models in a way that can gain consensus from the  
noncommercial community.

3) Third, because of the danger of locking in a suboptimal structure,  
we ask you not to approve any new Constituencies under the SIC and  
ICANN staff-imposed transitional NCSG charter until the ongoing  
debates over the status of Constituencies and their role in the NCSG  
is resolved next year.  It is necessary to first determine the  
framework of the stakeholder group in which Constituencies will take  
their place.

We emphasize that this letter does not ask the Board to repeal its  
decision of 30 July.  Although many NCUC members initially favored  
rejecting the SIC/staff imposed charter in its entirety, we decided to  
work within the confines of the imposed transitional NCSG charter  
provided that the Board agrees to work with the noncommercial  
community to create a final NCSG charter that meets the needs of both  
the Board and noncommercial users.

  NCUC did this to demonstrate our support for moving forward with the  
GNSO restructuring process, including implementing the new SG  
structure and seating the new, bicameral Council at the October Seoul  
meeting.  Thus, even though we believe it constitutes a grievous  
mistake, NCUC is willing to work within the confines of the imposed  
transitional NCSG charter including the Boardâs appointment of three  
transitional new NCSG Councilors.  Subject to certain conditions, we  
pledge to work within those parameters for the next year if our  
requests are granted.  We recognize the time constraints you are  
operating under and, in a spirit of cooperation we are proposing a  
practical way for you to minimize the damage that will be caused by  
the mistaken July 30 decision.

Nonetheless, you still need to understand that the Boardâs adoption  
of the SIC/ICANN staff NCSG charter has resulted in significant harm  
to ICANNâs credibility among civil society and non-commercial  
Internet users, who increasingly perceive ICANNâs decision-making  
process to be far from the âbottom-up, consensus-basedâ[3] platform  
it is supposed to be.

We hope you are able to respond promptly, publicly and directly to the  
grounds we set out herein in support of our three requests.  This  
letter is also an open call to the entire ICANN community to recognize  
that noncommercial representation in ICANN is in fact robust,  
stronger, more diverse and more representative of noncommercial users  
of the Internet than recent public statements by the Board, staff, and  
other GNSO constituencies have alleged.

We address the rationale for each of these requests in the next three  
sections.

I.  A Meeting with the Board in Seoul in October

It is obvious to anyone who has followed this controversy that there  
has been a serious breakdown in communication between the Board,  
ICANNâs management and the noncommercial community.  It is not  
important to assign blame for this breakdown; it is most important to  
recognize that it exists and to address it.  We are therefore asking  
for a direct meeting with the full Board to help overcome this  
problem.  The Board can no longer rely on the intermediation of staff  
and a few Board members with entrenched positions.  We need to have a  
direct exchange on the fundamental issue of ICANNâs governance  
structure.

             The SICâs abrupt substitution of its own charter for the  
community-developed one, the Boardâs July 30 vote ratifying that  
decision, the ICANN Staffâs dismissal of the outpouring of civil  
society and individual support for the NCUC and its proposals, and the  
persistent misconception of what the NCUC is and stands for all reveal  
basic and critical misunderstandings of why and how individuals, non- 
profit groups and public interest organizations participate in ICANN  
and other international groupings.  This gap can only begin to be  
bridged through a direct meeting.

We note that the Board and CEO have on numerous occasions in the past  
met for breakfasts or other focused meetings with other Constituency  
groupings, notably business interests.  We think it is time for the  
same access to be afforded noncommercial stakeholders.

II.  One Year Review

While we have many procedural issues to raise (and these will be  
addressed in a separate Ombudsman complaint), the Board needs to  
understand that our most fundamental and important concerns with the  
SIC charter are substantive.  They relate to an important debate over  
the best way to encourage and organize the participation of  
noncommercial groups in the GNSO.  For more than a year, we have  
advocated a single layer of Stakeholder Group (SG) organization in  
which noncommercial organizations and individuals join NCSG directly  
and vote directly for their representatives on the GNSO Council  
(subject to geographic diversity requirements).  This SG model allows  
for noncommercial organizations and individuals to be the basic unit  
of membership in the NCSG.  The staff and the SIC, in contrast, have  
favored Constituencies as the basic unit of organization and would  
have representatives of Constituencies negotiate over the  
apportionment of Council seats.  Under the staff model, forming a new  
Constituency becomes a very complex, uncertain, and difficult process,  
involving numerous reviews, criteria and ultimately complicating the  
process of Board approval.

The debate over those two options was unfairly and unwisely cut short  
in May 2009, when staff cancelled its planned June meeting with civil  
society to negotiate a resolution of the differences over the  
charter.  And then in June, together with SIC, staff disregarded  
public comment and threw out civil societyâs charter proposal,  
offering their own alternative without making any concessions or  
modifications in line with the views of those questioning staffâs  
Constituency-based model.

Noncommercial users believe that the Constituency-based model imposed  
on us by the SIC is based on false premises and will not work well.   
We are convinced that it will cause wasteful, energy-sapping political  
infighting and competition; that it will raise the barriers to  
participation by new groups; that it discourages consensus building;  
and that it will lend itself to capture at the Executive Committee  
level.  We note that the At Large Advisory Committee (ALAC) agreed  
with the NCUC charter proposal on a critical point.  In its only  
formally discussed and agreed-upon statement on the NCSG charter, the  
ALAC statement said that âthe de-linking of Council seats from  
Constituencies is a very good move in the right direction.â[4]

Additionally, we note that the Board-approved SG Charters for the  
Registries and Registrars also agree with the NCUC-proposed model.   
The RySG and RrSG do not require any Constituencies at all.  Instead,  
self-forming âInterest Groupsâ are permitted to organize within  
each SG.  This is almost exactly the structure that the NCUC proposed  
for the new NCSG!  Indeed, it is evident that the registries and  
registrars adopted this concept from our proposal.  Was the Board  
aware of this?  On what basis did it discriminate between what it  
considers the best structure for noncommercial users and for business- 
supplier interests?  While in the short term it may be argued that the  
members of contracting-party SGs might have more interests and issues  
in common than commercial or noncommercial users, this will not  
universally be the case. As the number of registries expands with new  
gTLDs and they become more geographically and economically diverse,  
there may be major differences among them.  With over 600 registrars  
and often bitter differences of opinion among them with regard to  
policy, the Registrar SG is already quite diverse; there is no  
feasible case for making a qualitative distinction between registrars  
and the non-contracting parties.

We have already prepared detailed analyses supporting our critique of  
the Constituency-based model and are happy to prepare additional  
argumentation going forward.  At this juncture our point is a simple  
one.  Given the lack of support for a Constituency-based model by  
three of the four Stakeholder Groups, and the adoption of a different  
model by two of them, the Board must recognize that the relationship  
between Constituencies and Stakeholder Groups is an open question.  We  
are, therefore, asking you to revisit that question with noncommercial  
users over the next year.  We ask that the Board firmly and explicitly  
commit itself to a review and revision of the SIC/staff-imposed NCSG  
charter within the year, and that it explicitly make the role and  
status of Constituencies a primary issue to consider.  In that review,  
we ask that the NCUC-proposed model not be arbitrarily thrown out of  
consideration by the staff, but be placed alongside the SIC model for  
open comparison and debate.  In a fair and open debate over these  
alternatives, we think it is very likely that some compromise between  
the SICâs purported desire to encourage new constituencies and the  
NCUC-proposed charter could be found within a year.

III.  Resolve the Charter Issue Before Approving New NCSG Constituencies

The July 30 decision noted that the new Constituency petitions for  
entry into the NCSG were not ready for approval, and called for  
further negotiations between their advocates and the staff.  We  
believe that it would be unwise to approve any new Constituencies  
until the NCSG charter is no longer an âinterimâ charter,  
particularly given the open question over the nature of the final NCSG  
charter.  Therefore we are asking you to defer this issue until the  
charter issue is resolved a year from now.  We wish to emphasize,  
however, that we remain committed to working with ICANN to continue  
our outreach to bring in new and diverse noncommercial participants in  
the GNSO policy development forum over the next year.

There can be no such thing as an âinterimâ Constituency.  Once a  
Constituency is recognized by the Board, it is incorporated into the  
bylaws and it gains specific rights and privileges under the charter  
and bylaws.  Moreover, the organizers of the Constituency and its  
prospective members have to spend a lot of time and effort recruiting  
people and setting up their own organizational structures.  To  
recognize new Constituencies before finalizing a permanent NCSG  
charter, therefore, would be to place the organizers of these  
Constituencies in a difficult and nonviable position.  They will not  
know exactly how they fit into the GNSO organization.  Or, worse, the  
recognition of these new Constituencies under the interim charter  
would create pressures to make the âinterimâ charter a permanent  
one.  In this case, the Boardâs decisions about the final NCSG  
charter would not be driven by getting the organizational issues  
right, but by prior, uncoordinated decisions regarding  
Constituencies.  We believe it is important to get the foundational  
organizational issues right.

We wish to make it clear that we strongly support the formation of new  
Constituencies in the NCSG and the Boardâs discretion in approving  
them.  Our original charter proposal was designed to make it very easy  
to form new Constituencies, in contrast to the staff/SIC model, which  
makes new Constituencies top-heavy, organizationally burdensome and  
expensive to maintain.  Given the known problems with the current  
petitions to form new Constituencies in the NCSG we ask that the Board  
defer formal approval of any new NCSG Constituencies for a year.

We also believe it is important for the Board to understand that  
NCUCâs members will âspin-outâ into various Constituencies of  
self-forming interest groups with competing agendas; it does not make  
logical sense to have a âNoncommercial Users Constituencyâ and a  
âNoncommercial Stakeholders Groupâ as the terms are synonymous.

IV.  Misunderstanding Over Non-Commercial Representation and  
Participation in ICANN

Finally, weâd like to address, prior to our meeting in Seoul, one of  
the core problems that seems to hamper resolution of these issues.

The following public statement from ICANN seems to have been the basis  
for the Boardâs adoption of a transitional NCSG Charter that  
inexplicably removes the ability of noncommercial users to  
democratically elect all of its Councilors to the new Non-Contracting  
Party House:

âthe current non-commercial community participation in the GNSO is  
not yet sufficiently diverse or robust[5] to select all six of the  
NCSG's allocated Council seats.â[6] (emphasis added)

This view has been repeated publicly several times by a number of  
Board members, as well as by other ICANN, and GNSO community  
participants.  But these statements are patently inaccurate, and NCUC  
has provided facts to contradict it numerous times.  We reproduce them  
below:

First, NCUC has been, and still is, currently the most geographically  
diverse Constituency.
According to the 2006 London School of Economics (LSE) GNSO Review[7]  
-- which is the only systematic and independent study of the GNSO ever  
conducted -- diversity of membership in NCUC then was already  
ârelatively strongâ and âshows quite a close fit to the  
distribution of global Internet users across at least four out of five  
[ICANN geographic] regionsâ.

Since then, NCUC has continued to engage in active outreach (without  
ICANN financial or staff support), resulting in a current NCUC  
membership today of 141 members including 73 organizations and 68  
individuals from 48 countries.  Please note that this is a growth of  
over 215% since the Board Governance Committee (BGC) Working Group  
(WG) report on GNSO Improvements was released in February 2008.  NCUC  
members come from developed and developing countries, and from outside  
North America and Europe (from countries and continents such as  
Africa, Korea, Cambodia, Bangladesh, Australia and China).  Unlike the  
Commercial Constituency, whose website indicates 58% of its members  
reside in a single country (the USA), or the Commercial Stakeholder  
Group, whose first 3 GNSO Councilors (50%) will represent the USA,  
NCUCâs membership is, in fact, truly diverse.

Secondly, NCUC is also diverse in terms of representation of those  
individuals and groups that we have repeatedly been told have been  
âunder-representedâ at ICANN, such as consumers, researchers and  
libraries.  Numerous groups that champion consumer causes are NCUC  
members (e.g. ICT Consumer Association of Kenya, International  
Parents, Media Access Project, Read Write Web France, Uganda ICT  
Consumer Protection Association, FreePress, and the Association for  
Progressive Communications (APC) just to name a few); as are  
individual bloggers, academics, professors, researchers, schools and  
libraries (e.g. telecommunications, law and technology researchers/ 
educators, Global Voices, Yale Law School Information Society Project,  
Diplo Foundation, several chapters of the Internet Society, EDUCAUSE,  
the American Library Association, and Egyptâs Library of Alexandria) 
[8]. In addition, all three of NCUCâs current GNSO Councilors are  
academics and researchers affiliated with universities, think-tanks  
and research centers.

Thirdly, NCUC leaders have distributed the powers, duties and  
responsibilities of managing the Constituency much more widely than  
the commercial Constituencies and ICANN staff have alleged.  The 2006  
LSE Report documented that NCUC has had the highest number of  
different people serving on the GNSO Council of any Constituency,  
while the commercial Constituencies have rotated the same 5 people for  
a decade.  The current NCUC Chair and all 3 of NCUCâs GNSO Councilors  
are serving their first term in office.  More than a dozen new leaders  
from the noncommercial community have found their way to ICANN in  
recent months and are eager and ready to contribute to policy  
development.  These noncommercial leaders were willing to stand for  
election for the GNSO Council, had the board allowed democratic  
representation to noncommercial users.

In view of the above, NCUC calls on the Board and the ICANN community  
to recognize that NCUC has not just met, but exceeded, the BGCâs 2008  
call for âthe new non-commercial Stakeholders Group [to] go far  
beyond the membership of the current Non-Commercial Users Constituency  
[and] must consider educational, research, and philanthropic  
organizations, foundations, think tanks, members of academia,  
individual registrant groups and other non- commercial organizations,  
as well as individual registrantsâ[9].  We fully anticipate that the  
new NCSG will continue to expand and diversify and we are committed to  
working with the Board to bring new and diverse noncommercial  
participants into the GNSO policy development process.

Conclusion

To conclude, we believe that our three requests are reasonable and not  
at all burdensome for the Board to grant.  We look forward to your  
response.

Signed,

Members of the Noncommercial Users Constituency (NCUC)


Organizational Members of NCUC:

Bibliotecha Alexandrino (Egypt's Library of Alexandria)


Electronic Frontiers Finland


FreePress


Diplo Foundation


AGEIA DENSI (Argentina)


Deep Dish Network


Global Voices


Freedom House


Centre for Internet and Society


Aktion Freiheit statt Angst e.V.


ICT Consumers Association of Kenya


Uganda ICT Consumer Protection Association


Free and Open Source Software Foundation for Africa (FOSSFA)


APWKomitel (Association of Community Internet Center)


Yale Law School Information Society Project


FreePress.net


Internet Society - New York


Alfa-Redi (NGO)
Bangladesh NGO's Network for Radio & Communication (BNNRC)


Read Write Web France


Privacy Activism


The Thing


Information Network for the Third Sector - RITS


Audience Act for Good TV Programs


Boulder Community Network


Estonian Educational and Research Network (EENet)


Fundacion Escuela Latinoamericana de Redes


GLOCOM


IPLeft (Intellectual Property Left)


Internet Association of Korea (IAK)


Jamaica Sustainable Development Network Ltd.


Korean Progressive Network Jinbonet


Labor News Production


Media Access Project


Open Institute of Cambodia


PeaceNet Korea


Philippine Network Foundation, Inc. (PHNET)


Stichting A.G. van Hamel voor keltische Studies


Internet Governance Project


SDNP Bangladesh


Virtueller Ortsverein der SPD (VOV)


Phillipine Sustainable Development Network


GIP Renater


American Civil Liberties Union (ACLU)


Electronic Privacy Information Center (EPIC)


Korea Advanced Institute of Science and Technology


Information and Communications University


EDUCAUSE


Internews International


American Library Association


Computer Professionals for Social Responsibility


IP Justice


Association for Progressive Communications (APC)


Advisory Network for African Information Society


Internet Society Chapter of Mauritius


AfriDNS
Africa Leadership Forum


Jenne Redean Sans Frontieres - Tunisia


Comità para DemocratizaÃÃo da InformÃtica de Pernambuco


Multilingual Internet Names Consortium


CP80 Foundation


Electronic Frontiers Australia


Africa Leadership Forum


FGV Centro de Tecnologia e Sociedade (CTS)


Loyola Law School


Pierce Law School


Canadian Internet Policy and Public Interest Clinic (CIPPIC)


Strathclyde Law School


Church of Reality


Free Software Foundation Europe


Netwerk Freies Wissen


NIC Senegal


International Parents


China Organization Name Administration Center (CONAC)


Individual Members of NCUC:

YJ Park


William Drake


Yang Yu


David Olson


Charles Knutson


Jon Garon


Lamees El Baghdady


Ralph Clifford


Lehrstuhl Weber


David Bailey


Nancy Kim


Divina Frau-Meigs


Rafik Dammak


Carlo N. Cosmatos


Ian Peter


Schome Boudouin


Edward Nunes


Ron Wickersham


Timothy McGinnis


Graciela Selaimen


Fouad Bajwa


Kathy Kleiman


Rudi Vasnick
Marco

Toledo
Michael

Haffely
Gita Bamezai


Tapani Tarvainen


Ãngel SÃnchez Seoane


Hala Essalmawi


Lisa Horner


Robert Bodle


Andrew Adams


Virgina Paque


Wolfgang KleinwÃchter


Alan Levin


Claude Almansi


David Farrer


Jeanette Hofmann


Dan Krimm


Isaac Mao


Robert Pollard


Saleem Khan


Oscar Howell


Poomjit Sirawongprasert


Nathaniel James


Willie Currie


Glenn Harris


Amira Al Hussain


Nancy Handshaw Clark


James Tay


E. Christopher Carolan


Jack Lerner


Jorge Amodio


Margaret Osburne


Carl Smith


Seth Johnson


Hojatollah Modirian


Cedric Laurant


Eduardo Suarez


Oksana Prykhodko


Avri Doria


Desiree Miloshevic


Charles Mok


Rossella Mattioli


Jean-Robert Bisaillon


Patrick Reilly


Drew Jensen


cc. ________

CIVIL SOCIETY SUPPORTERS OF THE NCUC


[1] http://gnso.icann.org/en/improvements/ncsg-proposed-petition-charter-22jun09.pdf

[2] http://gnso.icann.org/en/improvements/ncsg-petition-charter.pdf

[3] See, e.g. ICANNâs GNSO Council Position Notification, 4 August  
2009:  http://www.icann.org/en/committees/improvements/soi-notification-board-ncsg-appointments-04aug09-en.pdf 
.

[4] http://forum.icann.org/lists/sg-petitions-charters/msg00020.html

[5] In this letter, we address primarily the question of diversity, as  
it has never been made clear to us what being sufficiently ârobustâ  
means or entails, given that NCUC has been a long-recognized ICANN  
Constituency and has continued to grow and attract new members.

[6] Background & Explanation to the Call for Applications for Non- 
Commercial GNSO Council Seats, 5 August 2009: http://www.icann.org/en/announcements/announcement-05aug09-en.htm 
.

[7] See http://www.icann.org/en/announcements/gnso-review-report-sep06.pdf 
.

[8] The current NCUC membership roster can be viewed at http://ncdnhc.org/page/membership-roster 
.

[9] Extract from the Board Governance Committee Working Group Report  
on GNSO Improvements: http://www.icann.org/en/topics/gnso-improvements/gnso-improvements-report-03feb08.pdf 
.


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