[governance] Is ICANN Accountable to the Global Public Interest? - ICANN Ignores Noncommercial Users in Internet Policy Development Process

[Robin Gross]

Article with hyperlinks for further background at:
      http://ipjustice.org/ICANN/NCSG/NCUC-ICANN-Injustices.html

Is ICANN Accountable to the Global Public Interest?
ICANN Ignores Non-Commercial Users in Internet Policy Development  
Process
      By Robin D. Gross, IP Justice - 13 July 2009

Everyone is a Noncommercial User of the Internet

NCUC logoThe Non-Commercial Users Constituency (NCUC) is the home to  
noncommercial users in ICANN's GNSO policy development process.  NCUC  
represents 109 members from more than 40 countries, and includes  
large organizations, small nonprofits and individuals committed to  
developing Internet policy that protects the rights of noncommercial  
users.  NCUC is concerned with a broad range of issues including  
human rights such as freedom of expression and privacy protections,  
educational needs such as those of libraries or academic  
institutions, and concerns from community and religious  
organizations, consumer rights groups, and other noncommercial  
interests related to Internet governance.  (All noncommercial  
organizations and individuals are invited to join NCUC).

In today's world, everyone is a noncommercial user of the Internet at  
one point or another of our day.  This noncommercial interest, is an  
important interest which we all share, regardless of what we do for a  
living or the fact that we also use the Internet for commercial  
purposes.  We are also noncommercial users and want our ability and  
right to use the Internet for noncommercial purposes to be protected  
in ICANN policy negotiations.  This objective is in everyone's  
interest, so it should be respected throughout ICANN's policy  
development process and governance structures.

Restructuring ICANN's GNSO Policy Development Framework

ICANN's Generic Names Supporting Organizations (GNSO) is the  
supposedly "bottom-up" process that allegedly provides ICANN with  
legitimacy to make and enforce Internet policy decisions.  ICANN's  
GNSO is responsible for making policy recommendations to ICANN's  
Board of Directors regarding policies covering all generic top-level  
domains (such as .com, .edu, .org, .net).

Presently GNSO policy recommendations are negotiated among competing  
interests or 6 distinct "constituencies".  However, the GNSO is the  
process of restructuring and reforming its membership away from 6  
arbitrary and out-dated "constituencies" and into 4 distinct  
"stakeholder groups": i) noncommercial users; ii) commercial users;  
iii) registrar companies; and iv) registry companies.

Board Appointed (top-down) vs. Elected (bottom-up) Represent ion on  
GNSO Council

Noncommercial users have been fighting for years to obtain parity  
with commercial users in the GNSO policy development process at  
ICANN.  A 2006 report by the London School of Economics found ICANN  
undervalues noncommercial interests in the policy development process  
(5 specialized commercial constituencies vs. 1 noncommercial  
constituency to represent all noncommercial interests).  In February  
2008 the Board Governance Committee Report also recognized this  
imbalance and the need to address it in order to protect  
noncommercial interests in ICANN policy development.  As a result,  
the ICANN Board approved a major shift for ICANN's GNSO by deciding  
noncommercial users should finally be given parity with commercial  
users in the GNSO policy development process.

Specifically, beginning with the Seoul ICANN Meeting in October 2009,  
noncommercial users and commercial users are each supposed to have  
elected 6 representatives to the GNSO Council.  However, as a result  
of back channel lobbying by the commercial constituencies who lost  
the advantage in numbers of councilors, the 3 new GNSO Council seats  
that should have gone up for election to noncommercial users, will  
instead become board appointments.

Despite the lack of any support from ICANN, NCUC's membership has  
grown by more than 125% since 2008 when parity between commercial and  
noncommercial interests was established by the Board Governance  
Committee.  Yet despite the significant increase in participation  
from noncommercial users, the "parity principle" has lost support  
from the board, who now may deny the new noncommercial membership  
elected representation on the GNSO Council.

Development of Consensus for Charter for Noncommercial Stakeholder  
Group (NCSG)

In April 2009 noncommercial users responded to ICANN's call for  
public comment on how to design a stakeholder group charter to  
maximize the effectiveness of noncommercial users in policy  
development and encourage the broadest range of participation from  
the most diverse viewpoints.  The answer was clear: noncommercial  
users overwhelmingly supported a stakeholder group charter that  
encourages cooperation between constituencies, the charter proposed  
by the NCUC.

NCUC's charter was developed by a multi-stakeholder process that  
involved months of open consultations, dozens of participants,  
numerous discussions with ICANN board and staff, At-Large members,  
existing noncommercial participants at ICANN and prospective  
noncommercial participants.   NCUC's charter went through significant  
modifications in response to public feedback, including more than  
half a dozen distinct public drafts, before reaching a consensus on  
the final charter submitted for a Non-Commercial Stakeholder Group  
(NCSG).

In addition to NCUC's membership, ICANN's public comment period on  
the stakeholder group charters brought additional support to the NCUC  
charter, including support from over 63 organizations and dozens of  
individuals from all corners of the globe.

Public Comment Against a Charter that Would Stranglehold  
Noncommercial Users

Two competing proposals, vastly different in their substance and  
effect, were submitted to ICANN to charter the new Noncommercial  
Stakeholder Group (NCSG).  In addition to the charter supported by  
civil society from NCUC, another proposal was submitted from CP80, an  
Internet pro-censorship group led by Cheryl Preston, Ralph Yarro III  
(SCO Chairman), and Debra Peck out of Salt Lake City, Utah.

Outside from the drafters of the CP80 petition, not a single public  
comment argued in support of the CP80 proposal or its governance  
model during ICANN's Public Comment Period.  The lack of public  
support for the CP80 "constituency-based" voting model is not  
surprising since its provisions would stranglehold noncommercial  
users in endless competition among factionalized constituencies,  
constantly fighting over scarce resources and representation on  
ICANN's GNSO Council.

NCUC's charter encourages noncommercial users to work together toward  
shared goals, while the CP80 model keeps noncommercial users  
constantly fighting over their differences, and ultimately  
ineffective at influencing policy decisions at ICANN.

Noncommercial Organizations Unanimous in Favor of Joint Civil Society  
Proposal

During ICANN's April 2009 Public Comment period, a total of 23  
distinct comments from organizations and individuals were submitted  
on the topic of stakeholder group charters.  Several of these  
comments were signed by dozens of noncommercial organizations and  
individuals, increasing public participation by much more than 23  
comments would initially imply.  However of these 23 comments, the  
only 2 to argue in favor of the CP80 proposal to hard-wire GNSO  
Council Seats to constituencies were the drafters of the proposal  
themselves.  No one else.

As many commentators noted, CP80's proposed "constituency-based"  
structure would stranglehold noncommercial users and discourage  
consensus building and cooperation among competing constituencies.   
The "constituency-based" voting it proposes creates a constant zero- 
sum struggle between noncommercial constituencies, rendering the  
entire Non-Commercial Stakeholder Group ineffective in ICANN policy  
development.

In stark contrast to the lack of any support for the CP80 model, more  
than 63 organizations and 55 individuals submitted comments in favor  
of the joint civil society charter that provides for a democratic  
vote of all its membership to elect representatives to serve on the  
GNSO Council.   Every single noncommercial organization who submitted  
a public comment on the topic argued against the stranglehold charter  
model proposed by CP80 and in favor of the cooperation charter  
submitted by noncommercial users and created through a consensus  
process.

ICANN Defies Public Comment and Imposes Stranglehold Charter Model

What did ICANN do in response to the public comment it received and  
the global consensus against the stranglehold charter model proposed  
by CP80?  ICANN adopted the stranglehold charter model for  
noncommercial users, defying the unanimous public support expressed  
for the charter drafted by noncommercial users that was created  
through a consensus process.

Welcome to "bottom-up" policy making at ICANN: where participants are  
invited to build a "consensus" among a broad range of interests, only  
to have that consensus discarded by ICANN as a result of relentless  
insider back-channel lobbying from special interests.

Apparently we noncommercial users wasted our time building consensus  
among global civil society and participating in a public discussion  
forum, when we should have been lobbying ICANN board members and  
ICANN executive staffers -- since that seems to be the only channel  
of public input ICANN feels accountable to.

Obviously, noncommercial users will never be able to effectively  
participate in a policy development forum that is predicated on and  
dominated by insider lobbying from entrenched commercial interests.    
ICANN's Board of Directors has a responsibility to the global public  
interest to ensure noncommercial interests can play a meaningful role  
in ICANN policy development despite its lack of economic backing.    
Unfortunately protection for noncommercial interests is  
systematically being squeezed-out of ICANN's policy development  
process by commercial interests.

ICANN's Sneaky Move to Keep Plans Hidden

On 23 June 2009, when ICANN finally released its proposed charter to  
noncommercial users, in addition to the charter being an entirely  
different structure than the one created by the consensus process,  
ICANN's charter also omitted to include the most important section 5  
which deals with management of the NCSG and in particular,  
representation on the GNSO Policy Council.

Only after explicitly requesting to see the omitted section, was NCUC  
provided section 5 from ICANN with the understanding that it is  
staff's proposal for governing the NCSG.  One will not find ICANN's  
proposed section 5 in its NCSG charter published on the ICANN  
website, but it can read be read here -- and it must be read together  
with the ICANN-drafted NCSG charter for it be clear what sneakiness  
is at play.

Exactly the stranglehold governance structure that noncommercial  
users uniformly rejected in April, ICANN intends to march ahead with  
at full steam and impose on noncommercial users.  But not  
transparently and not in a manner that conveys its clear intentions  
to the public so those affected may provide feedback.

When asked at the 23 June 2009 ICANN meeting why didn't staff listen  
to non-commercial users in the public comment period about how they  
want to elect their GNSO Council Representatives, ICANN spokesman Ken  
Bour frankly said that ICANN staff adopted the constituency-based  
charter "because it is what staff wanted all along".

Tell ICANN to Listen to Noncommercial Users and Protect the Public  
Interest

The message is clear.  ICANN has forgotten who it works for - us -  
Internet users - including noncommercial users.  Now is the time to  
remind ICANN that it must be accountable to the global public  
interest or it has no business in Internet governance.

Tell ICANN to listen to noncommercial users and not to impose the  
stranglehold charter on noncommercial users against our will.  Send  
an email to gnso-stakeholder-charters at icann.org (until 21 July 2009)  
and ask that noncommercial voices be heard in Internet policy  
decisions.  Send a copy of your comment to your local Congressman or  
Member of Parliament to keep them informed about ICANN injustices to  
noncommercial users.  You can also file a complaint over ICANN  
injustices with the ombudsman, who is supposed to keep the  
organization accountable to the public.

Thomas Jefferson noted that the exercise of political power without  
the consent of the governed is illegitimate.

ICANN's attempt to impose a governance structure on noncommercial  
users against our will calls into question ICANN's legitimacy to  
govern; it undermines confidence in ICANN's commitment to democratic  
values; and it appears ICANN is unable to protect the broader public  
interest against commercial pressures.

We must remind ICANN to protect the public interest and the rights of  
noncommercial users - all of us.  Send a quick email to gnso- 
stakeholder-charters at icann.org today to remind ICANN who they work for.

All noncommercial organizations and individuals are invited to join  
NCUC:
   http://icann-ncuc.ning.com/main/authorization/signUp

More Background Information:
     http://ipjustice.org/ICANN/NCSG/NCUC-ICANN-Injustices.html



IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin at ipjustice.org



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