Field Guide to ICANN Reforms (Part 4): Results are in on Noncommercial Stakeholder Group charter proposals

[Editors Note: This is the fourth installment in our series looking at the ongoing ICANN reforms. If you haven't already, be sure to read Part 1, Part 2, Part 3, Part 4
]

Public comments are in on the charter proposals that will shape the reformed GNSO. The politics of GNSO reform are now abundantly clear.

The good news: noncommercial organizations and individuals from a surprisingly broad swath of transnational civil society have participated in ICANN's GNSO reform proceeding, sending in comments. And virtually all of them are supporting the Noncommercial Stakeholders Group (NCSG) charter proposed by the NCUC.

The bad news: business (trademark) interests are still trying to undo the reforms that gave commercial and noncommercial stakeholders parity in their representation on the GNSO Council. Unbelievably, in the light of the widespread mobilization of noncommercial comment, they are claiming that “the non-commercial stakeholder group fails to meet pre-established objective criteria for diversity and representativeness.” This, despite the fact that a) no such criteria exist yet (see below), and b) the amount of comment and representational diversity in the noncommercial group vastly exceeds the small core of professional business lobbyists representing the trademark interests.

More bad news: the commercial groups' attempts to undo the GNSO reforms are being inadvertently helped by a deeply muddled At Large Advisory Committee (ALAC). Some ALAC members supported the NCUC proposal, others opposed it because they wanted to form their own fiefdoms in a NCSG, others played out petty organizational jealousies. On the whole, for the past year ALAC has had a chance to help NCUC formulate an acceptable proposal, but consistently failed to work on a charter, instead offering a few comments at the last minute. Equally bad, it failed to say anything about the Commercial Stakeholders Group proposal. Many participants in the At Large are small business owners and consultants. Thus, it made no sense for ALAC to pick at hypothetical problems with the NCSG proposal, while ignoring huge flaws in the CSG proposal. The CSG proposal disenfranchises commercial individual Internet users completely, by allowing the existing big business constituencies to split up the council seats among themselves with no change in voting distribution unless there is a unanimous vote of the existing constituencies. How is that model in the best interests of small business and individual commercial users that the At Large is supposed to represent?

More good news: the competing NCSG charter proposed by CP80, the Mormon-backed group that wants to use ICANN to censor the Internet, received no support except from a couple of CP80 members. This is important. The CP80 proposal was the spearhead of an effort to make constituency structures the basis of the NCSG. There is no way around it: The community has soundly repudiated the Constituency-based approach to NCSG formation. The Board could not adopt such a proposal without completely ignoring its bottom-up policy process.

More bad news: the Board might completely ignore its bottom-up policy process, because one or two members of ICANN's professional staff have decided that they like the Constituency-based approach. And the staff controls the flow of information to the Board.

Sound crazy? Welcome to ICANN, the procedural perpetual motion machine.

Let's look first at how transnational civil society weighed in on the competing charters for a noncommercial stakeholder group. Begin first with the observation that it is not easy to get nonprofit organizations to make public comments on a charter proposal for a relatively obscure subsection of one of three ICANN supporting organizations. Try asking your mother or an office mate not steeped in ICANN-o-politics what they think about the competing NCSG charters before ICANN. Contemplate how to get around the blank stare you will get. Nevertheless, ICANN received responses from 60 noncommercial organizations of an incredibly diverse type (see the full list below) endorsing the NCUC-proposed charter for the NCSG. Respondent organizations came from Bangladesh as well as Europe, from Romania and Indonesia as well as the USA and Canada. Many of these organizations (e.g., Free Press, and Center for Democracy and Technology, USA; RITS, Brazil; Article 19) are large and well-established, with international reputations.

Let's look next at the maneuver by the trademark interests. Steve Metalitz, a full-time, paid lobbyist for a small slice of the world's largest Western copyright and trademark holders, filed comments saying “the non-commercial stakeholder group fails to meet pre-established objective criteria for diversity and representativeness, as called for in the recommendations of the July 2008 report of the “consensus group”. Guess how many organizations wrote in to endorse the Commercial Stakeholder Group's charter? None.

But the strangest thing about Metalitz's comments is that no “objective criteria” for diversity and representativeness have been established by ICANN yet! The consensus group Metalitz refers to was calling for such criteria to be developed in the future and applied to ALL stakeholder groups – including his own. So now the trademark holders, apparently in desperation, are making a judgment about the degree to which noncommercial stakeholders meet criteria that do not exist yet. This tells you how “objective” their judgment is. In fact, this isn't really about diversity and representation. It's all about IPC's attempt to keep in place the good old days of ICANN, when commercial user interests were unfairly granted 9 votes to the noncommercial users 3 votes. That old system has been repudiated by an independent report from the London School of Economics, the Board Governance Committee, and the Consensus Working Group that Metalitz himself cites. All came out explicitly in favor of parity. The business interests have been fighting against parity tooth and nail for more than a year. They've lost that battle in all the fair venues, why not try some foul ones? To wit, if the trademark owners can sucker the Board into believing that there is something intrinsically wrong with the dozens of noncommercial organizations participating, then they can maintain their unfair voting advantage for a few more years.

Here is a partial list of the organizations and individuals who wrote in to support the NCSG Charter proposed by NCUC:

African Commons Project (South Africa)
AGEIA DENSI (Argentina)
AGEIA DENSI (Brasil)
Akiba Uhaki (Kenya)
Aktion Freiheit statt Angst (Germany)
Alfa-REDI (International)
APWKomitel – Association of Community Internet Center (Indonesia)
Appui Mutuel Pour le Développement (Belgium)
ARTICLE 19 (International)
Association for Progressive Communications (International)
Asociatia pentru Tehnologie si Internet (Romania)
Asociación por los Derechos Civiles (Argentina)
Bangladesh NGOs Network for Radio and Communication (BNNRC) (Bangladesh)
Campaign for Press and Broadcasting Freedom (UK)
Canadian Internet Policy and Public Interest Clinic (CIPPIC) (Canada)
Centre for Community Informatics Research, Development and Training (Canada)
Center for Digital Democracy (USA)
Center for Technology and Society (CTS) at Fundação Getulio Vargas (Brazil)
Centre for Independent Journalism (Malaysia)
Centre for Internet and Society – Bangalore (India)
Computer Professionals for Social Responsibility (CPSR) (International)
Computer Professionals for Social Responsibility-Perú (CPSR-Perú) (Perú)
CPR2 (Bangladesh)
Electronic Frontier Finland (Finland)
Electronic Frontier Foundation (EFF) (International)
Electronic Privacy Information Center (EPIC) (International)
Essential Action (USA)
European Digital Rights Initiative (EDRi) (Europe)
Foundation for Media Alternatives (Philippines)
Free Software Foundation Europe (Europe)
FreePress (USA)
Freedom for IP (USA)
Fundación Comunica (Uruguay)
ICT Consumers Association of Kenya (Kenya)
Imagining the Internet Center at Elon University (USA)
Information and Communications University (Korea)
Instituto Brasileiro de Direito da Informática (IBDI) (Brazil)
International Institute for Sustainable Development (Canada)
Internet Governance Project (International)
Internet Research and Innovation Institute (Lithuania)
Internet Society Mauritius (Mauritius)
Internews International (International)
IP Justice (International)
Knowledge Ecology International (International)
Multilingual Internet Names Consortium (MINC) (International)
PeaceNet Korea (Korea)
Privacy Activism (USA)
Privacy International (International)
Privacy Rights Clearinghouse (USA)
Public Knowledge (USA)
RITS – Information Network for Civil Society (Brazil)
SchoolNet Foundation (Bangladesh)
University of Aarhus (Denmark)
University of the West Indies At-Large Structure (International)
World Privacy Forum (USA)
Yale Law School Information Society Project (USA)

Individuals:
Dr Graham Dutfield, University of Leeds (UK)
Anriette Esterhuysen, Executive Director, APC
Daniel Dardailler, W3C and Web Foundation (France)
Divina Frau-Meigs, Professor, University Sorbonne Nouvelle (France)
William J. Drake, Centre for International Governance (Switzerland)
Bazlur Rahman, Member, Strategy Council, UN-Global Alliance for ICT and
Development (Bangladesh)
Anna Fielder, Consumer Advocate (UK)
Andrea Naranjo, Anthropologist (Belgium)
Wolfgang Kleinwaechter (Germany)
Bahareh Afghahi (Iran)
Lisa Horner, Global Partners (UK)
Rudi Rusdiah (Indonesia)
Dr. Lisa McLaughlin, Associate Professor, Miami University-Ohio (USA)
Michael Gurstein, Ph.D., Director, Centre for Community Informatics
Research, Development and Training (Canada)
Hans Klein, Associate Professor of Public Policy, Georgia Institute of
Technology (USA)
Claudia Padovani, University of Padova (University)
Dr Andrew A Adams, School of Systems Engineering, The University of
Reading, (UK)
Alex Gakuru (Kenya)
David Farrar, Director, Curia Market Research Ltd, (New Zealand)
Rafik Dammak (Tunisia)
Christine Horz, YECREA rep., section Diaspora, Media and Migration (Germany)
Jaco L. Aizenman, Presidente, Registro de Activos Financieros – RAF (Costa
Rica)
Prof. Hakikur Rahman, Post Doctoral Researcher, University of Minho
(Portugal)
Lina ORNELAS, Member of the International Association of Privacy
Professionals (IAPP) (Mexico)
Marco Toledo Bastos, University of São Paulo (Brazil)
Ledesma Piñeiro (Argentina)
Robin Gross, Attorney (USA)
Omar Kaminski (Brazil)
Jeff Chester (USA)
Virginia (Ginger) Paque, DiploFoundation (Venezuela)