What the ICANN Board needs to know about the new SG charters

ICANN’s Board meets tomorrow to discuss the charters of the new Stakeholder Groups that will make up the new, reformed GNSO. As we have explained in other posts, this reorganization is an important, long overdue reform. It has the potential to create a fairer, more balanced and more productive GNSO. It is still possible, however, for ICANN’s Board to fumble the ball. That is because there are groups who don’t want to fix the GNSO. Rather, they want to prolong or worsen its problems so that special interests can hang on to power and continue to play the obstructionist games that have made the GNSO an exercise in futility for so long.

Looming in the background of this decision is the problem of the so-called “Cybersafety Constituency” petition. Cybersafety is really a front for CP80, a Mormon-backed anti-pornography, Internet censorship group based in the U.S. ICANN has received about 120 comments in favor of forming this constituency – all but a handful from the Mormon network. It has received about 110 comments strenuously objecting to the recognition of this constituency. These opponents include some of the pillars of the Internet technical community in the W3C and IETF. What, then, will ICANN do? If pro-censorship groups are recognized as a constituency and given a guaranteed number of seats on the Council, why not also free expression groups? Why not also privacy groups? What if there is a Muslim or (another) Christian or a Hindu or a Wiccan Constituency? How does one form consensus when voting blocks are organized around specific political viewpoints?

There is a fair and constructive way to resolve this conflict, and that is to approve the kind of Stakeholder Group charter proposed by the Registrars, Registries and Noncommercial Users. These SG charters do not assign Council seats based on Constituency groupings. Instead, they require Council members to be elected by the Stakeholder Group as a whole. This is the only rational way out of the mess ICANN’s call for new “Constituencies” has gotten it into.

The idea of a “Constituency” is one of the biggest stumbling blocks to GNSO reform. In the old GNSO, a Constituency was a heavy organization — explicitly recognized in the bylaws and guaranteed a specific number of seats on the GNSO Council. Let’s call this a Constituency with a Capital C. Everyone recognized that there were representation gaps and imbalances in this structure. Commercial users got 9 votes on the Council, noncommercial users only 3; there was no place for organizations that wanted to apply for new TLDs or for individuals. In theory, anyone could form a new Constituency; in practice, the old Constituencies – especially the trademark and business constituencies, who dominated the Council – would not allow any new constituencies to be recognized. Their reasoning was simple: adding new constituencies would dilute their voting power. With the exception of the under-represented Noncommercial Users, who were more than happy to add new groups that would break the stranglehold business interests had on the Council, none of the old constituencies would ever agree to recognize a new constituency for that reason. For that reason, no new DNSO/GNSO constituencies were created for ten years.

The brilliant thing about the London School of Economics recommendations, and the reform plan approved by the Board Governance Committee (BGC), was that it proposed forming much broader, more generic stakeholder groups into which any individual and any interest group could fit. These SGs would be balanced to ensure broad representation, but could remain stable over time as interest groups and policy predilections shift.

The BGC’s proposed reforms called for more constituencies, but here we get into a terminological confusion. It was clear from context that GNSO Improvements report was not talking about Constituencies with a capital-C. It was talking about welcoming new voices, new groupings of stakeholders into the GNSO. Let’s call that constituencies with a small-c. ICANN staff, however, interpreted these calls for broader participation in a literal-minded way as a call for forming new (Capital-C) Constituencies. This mistake threatens to derail the GNSO reforms.

Forcing new voices to form Constituencies, and giving each Constituency hardwired seats on the Council is actually a barrier to the representation of new voices. First, it imposes a huge layer of organizational overhead on new participants. Second, it creates a zero-sum game in which a new Constituency can only gain votes on the Council by taking them away from another Constituency. (Each Stakeholder group gets a fixed number of seats on the Council). This sets in motion unhealthy forms of political bickering and competition. It certainly does not encourage consensus, rather it encourages smaller and smaller groups to form in order to guarantee themselves of a seat on the Council. Finally, there is the problem of how you divide up a fixed number of seats on the Council into a infinitely variable number of constituencies. What happens, for example, if there are 8 Constituencies in the Noncommercial SG vying for one of the 6 seats?

The Noncommercial Stakeholders Group thought long and hard about this problem and came up with an excellent solution. It proposed to detach Council seats from constituency formation. Its charter proposal is designed to make it easier to form constituencies, but also takes away their hard-wired voting power on the Council. Constituencies can be formed as policy advocacy groups within the SG, but if those (small-c) constituencies want to gain a seat on the GNSO Council they must appeal to a broad cross-section of the Stakeholder Group and win an election.

So under the charter proposed by NCUC, Mormons and other “cybersafety” or pro-censorship advocates could form a (small-c) constituency. This would allow them to organize their efforts in GNSO Working Groups, develop position papers, lobby the Board, and so on. But it would not alter their voting power in the Stakeholder Group as a whole. In order to win seats on the Council, they would have to gain support from other groups and win elections in the entire Stakeholder Group. In order to do that, they would have to win the support and trust of a large number of other actors in the SG. They would have to find areas of consensus. And that is what the BGC reforms were designed to encourage.

Only one argument has been made against the NCUC-proposed charter. It is that it would allow a bare majority to “capture” all the Council seats. But one only has to examine this kind of hypothetical scare-talk to realize that it is phony. Note first that this argument is only being applied to the Noncommercial charter, when in fact two other proposed charters, for the Registries and Registrars, use the same method. If this is a problem with the NCSG charter, it is also a problem with the Registry SG and Registrar SG. Is the Board ready to shove the Constituency model down the throats of the GNSO as a whole?

But to address the majority issue more directly, the noncommercial users of the world are a very diverse group and the idea that one homogeneous group can capture the entire thing by getting 50.1% of a single vote is a misrepresentation of the voting system proposed. SG members must vote for individual candidates, not slates, and the winners must be filtered by geographic region so that no more than two of them are from the same region. In a mathematical analysis of the voting method in the proposed charter, I showed how geographical diversity requirements make it virtually impossible for a simple numerical majority to win all Council seats. Unlike the other Stakeholder Groups (who are currently trying to wriggle out of geographic diversity requirements), the NCSG embraces geographic diversity. And ultimately, if a large number of SG members, distributed across all 5 geographic regions, support a certain policy, well then the SG voting structure ought to make it possible for that position to prevail.

The Board can usher in a new era of reform and cooperation in the Council by approving the NCSG charter proposed by Noncommercial users.

4 comments

  1. Anonymous

    Putting an important caveat upfront here: I do work for ICANN but I have not followed the GNSO Improvements process sufficiently closely to have a full understanding, nor do my views in any way represent the views of ICANN.
    So as Devil's Advocate and with my main concern being the effective participation of larger numbers of more diverse participants within ICANN:
    Doesn't the Charter as put forward by the NCUC effectively undercut the new constituency groups that have applied to be recognised?
    You mention the contentious CyberSecurity constituency, but there are three others that I'm aware of that aren't contentious – Consumers, IDN gTLDs and City TLDs. Those group's applications are either still out for public comment or have just come back from public comment.
    Isn't the NCUC jumping the gun a bit here by asking for a more free-form constituency approach when we haven't even got the new applications approved?
    Again, from my perspective of wanting to see new participants and effective participation – I've always liked the idea of new formal consistuencies because they bring people in on particular topics and by being formal it imposes the kind of structured participation that is effective in producing actual results.
    If you have it more free-form, people just won't get together sufficiently to come up with solid input. And that means that whoever does the work gets the last say.
    I would argue that this approach – where you have to follow ICANN obsessively to have an impact – is behind alot of the participation problems with ICANN. Instead, if people with votes were forced to go and ask for people's opinions, it would allow effective participation for those that don't have the time or inclination to answer every email and read every mailing list.
    Again, this is posted purely in the spirit of discussion – if you think your approach would lead to broader and more effective participation, I'm happy to be persuaded the other way.
    Kieren McCarthy
    (general manager of public participation, ICANN)

  2. Anonymous

    Fair enough, Kieren.
    But I can tell from your comments that you haven't spent much time in the GNSO's actual trenches.

    On some issues, you have your facts wrong. On other issues, the situation is the opposite of what you describe it.

    1. There are 3 “new constituency” applications. I put “new” in quotes because 2 of the 3 of the three “new” constituencies are not new voices, they are just existing people forming constituencies and hoping to get guaranteed Council seats. (Cybersafety and Consumers.) Cheryl Preston and her crowd have been members of NCUC for years. Beau Brendler has been involved in ALAC for more than a year, too. Note that not a single consumer organization filed comments in favor of that application. So you basically have a one-person show, and as noted the person is already involved.) The third application, for IDN gTLD, is indeed a new set of voices — but as prospective suppliers of registry/registrar services they applied to be part of the Commercial Users. The CSG will be organized along the old model – (but note that according to their charter, new constituencies must be approved by existing constituencies, and that simply won't happen because it would dilute their power. That is the argument I made in the original post, please try to answer it. If there is a City TLD group (I haven't seen a formal petition from them yet) they would be in the Registry constituency. And they too are people who have been around for years. And as contracting parties the registries are also unlikely to share their “precious” council votes with people who don't yet have contracts with ICANN. So you are proving my point for me: tying constituencies to Council votes actually discourages new groupings.

    2. Telling new voices that they have to organize a constituency before they can be heard imposes an huge entry barrier on them. Not only do they have to fill out forms and learn the administrative ropes but — and this is the real killer — they have to get formal approval of the Board. Do you have any idea, Kieren, how formidable a political obstacle that is? With the current constituencies the process has already taken nearly a year and is nowhere near being completed. They have to set up their own organizations, mailing lists, etc. that relates back to poinbt #1 above. The only people who know enough about ICANN to effectively navigate the formation and approval of a constituency are people who are already involved. And as noted above, existing constitutencies will fight tooth and nail against new ones because it will dilute their voting power.
    In the NCSG model we propose, you just join the NCSG, have full participation rights, learn the ropes, and form BoFs or SIGs or constituencies within the NCSG whenever and however you want.
    3. Does our proposed charter undercut new constituency proposals? Quite the opposite. If you tie new constituencies to council seats they become very difficult and contentious to form. Take Cybersafety as an example. If ICANN has to accept this constituency under the old terms, i.e. write it into the bylaws and guarantee it seats on the Council, it is almost certain that the constituency will not be approved. It opens a pandoras box and invites every other ideological group in the world to get a seat on the Council by forming a constituency. But under the NCUC plan, letting them form a constituency is no problem. They can have a group, a seat on the NCSG policy Council, etc.

    4. Don't take this as an insult, I am just trying to be honest, but based on your comments I think you still don't quite understand what this issue is about. It is not about whether people can form groups of like-minded people to participate in GNSO. It is, instead, whether the model of the SGs links those groups to guaranteed seats on the Council, or whether Council members have to win a significant amount of support from the entire SG before they are seated as representatives on the Council. Please try to address that issue in future comments and discussions.

  3. Anonymous

    Interesting points.
    I try as far as possible to avoid the internal GNSO politicking; my approach being to encourage participation and act only on efforts to restrict or inhibit participation.
    It sounds to me that in this case we have two classic problems:
    1. It is not clear what the process is
    2. It's not clear why new people would want to get involved
    If it was possible to remove these two barriers i.e. there was a very clear process for applying and receiving approval or not AND there was some simple documentation that explained to people why forming a new constituency is a good idea and what they could expect from it — would that then solve some or most of the problems you outline?
    Or do you feel that the system itself would still not result in what the intention of the whole restructure was – to bring in new groups?
    Kieren

  4. Anonymous

    I should say that I haven't tackled your point about the SG and Council seats for the simple reason that I'm not well informed on this point to not get things wrong.
    I'll dig out the reports when I have a second and have a look. But with the core group of people having lived this process for three years, there's little point in me pontificating here unless I have a better idea of what's been happening.
    Kieren