Under pressure from trademark interests, ICANN undoes the GNSO reforms

A little-noticed outcome of the Sydney ICANN meeting (overshadowed by the excitement surrounding the selection of its new CEO) was a shockingly flagrant display of how arbitrary and unfair ICANN can be. A year ago a Board Governance Committee recommended, and the full Board adopted, a proposal to give civil society and commercial user interests the same number of votes (6) on the GNSO Council. The action was intended to correct what was widely perceived as an indefensibly unfair distribution of votes, in which trademark/ commercial interests were given nine votes and noncommercial interests only three. The rebalancing was first proposed in an independent, expert evaluation of the GNSO by the London School of Economics, and later endorsed by the Board. A July 2008 GNSO committee – which included representatives of the trademark and commercial users – also endorsed the idea of representational parity.

But when faced with the prospect of equal representation of commercial and noncommercial user interests, the commercial user groups revolted. Having lost the fight against parity on principle grounds, they shifted tactics and “went negative,” claiming that the Noncommercial Users Constituency was not “representative enough” and did not warrant additional representation. The staff and Board were inundated with non-stop criticism of this sort for months. Numerous threats about withdrawing from the GNSO were made.

From any objective standpoint, the complaints about the “representativeness” of noncommercial groups actually backfired on the business interests. When it initially authorized the rebalancing, the Board said that it expected noncommercial users to broaden its representation. And broaden they did; the Noncommercial Users Constituency (NCUC), which is the home of civil society in the GNSO, increased its membership by 65% in 10 months preceding the Sydney meeting (and has since increased it by 100%). No other GNSO group – certainly not the business interests – has grown its membership that much. The NCUC prepared a charter for the new Noncommercial Stakeholders Group, and in an impressive display of widespread interest and support in civil society, over 80 individuals and organizations sent in public comments to ICANN supporting the proposed charter. By way of comparison, the charter proposals of the other stakeholder groups attracted no interest and only one or two comments from long time ICANN insiders. If ICANN was interested in opening itself up to real participation by the noncommercial sector, it got what it asked for.

And yet, in Sydney the Board's Structural Improvements Committee turned a deaf ear to the vibrant new participation and caved in to the incessant pressure of the commercial interests. Two decisions, almost unbelievable in the degree to which they discriminate against civil society and completely ignore public comments, emerged from the Sydney meeting.

First, the Board would give organized civil society only 3 seats on the GNSO Council, and it would appoint the remaining three seats for the NCSG itself. Second, the staff was allowed to throw out the charter developed by the NCUC and supported by the overwhelming majority of public comments, and write one itself. The organizational structure of the staff-proposed NCSG is a brittle, top-down structure in which an Executive Committee composed of as few as two people not directly elected by the membership has absolute power over the operations of the NCSG and Council representatives are selected by this small group instead of by the membership. The staff-proposed NCSG charter seems deliberately designed to weaken and dilute the influence of real noncommercial organizations. Its constituency-based structure seems tailored to allow ICANN staff to create artificial new “constituencies” who will be guaranteed voting seats on the Council and will vote with the business interests.

Apologetic Board members openly confessed that they did this simply to appease the commercial user groups who, they feared, would “go ballistic” and create trouble for them in Washington if they did not. A truly shameful admission.

In the meantime, the staff endorsed a Commercial Stakeholder Group charter that allows existing business constituencies to prevent the formation of any new constituency in the CSG – essentially locking into place the power of the tiny group of professional trademark industry lobbyists who have controlled the commercial constituencies for ten years. Indeed, despite their phony complaints that the noncommercial groups are insufficiently representative, it is noteworthy that the same people (e.g., Philip Shepherd, Steve Metalitz) have sat on the GNSO Council for more than a decade now.

What happens next? First, we must watch and see who the Board appoints to “represent” noncommercial users. Second, the staff-proposed NCSG charter needs to be jeered off the table. Not that we expect the staff to pay attention to public comments, but one can at least make it clear and unambiguous that what they are doing has no support. The issue of the charter is actually far more important than the top-down appointments, because it lays the foundation for future representation of noncommercial interests. Finally, expect procedural challenges to the SIC decision.


4 comments

  1. Anonymous

    You're going to take this the wrong way because I work for ICANN but this come from my perspective as general manager of public participation and is genuine.
    The thing that stands out in your post is the use of percentages. “The Noncommercial Users Constituency (NCUC)… increased its membership by 65% in 10 months preceding the Sydney meeting (and has since increased it by 100%)…”
    What do the percentages actually mean in real numbers? The fact that 65 percent is a round number worries me – it means you could be talking as few people as 33, up from 20. And a 100 percent increase could therefore be just 40 people.
    As I understand it, one of the biggest arguments against following the path that the NCUC outlined was that there was so few people involved. And that meant that a huge amount of power within the GNSO would be held by a very few people.
    And I think you'll find that if it was you on the other side of that argument that you would be arguing strongly about a lack of representativeness.
    It's the same with ALAC to my mind. Until an ALAC representative can stand up and point to the fact that they speak for 100,000 Internet users who have all expressed their view – until that number of people are represented in real terms – well, then it's just some an individual that has spent alot of time in the organization.
    What commercial interests represent are resources – big resources. What governments represent are million of people through the traditional power structures. What the NCUC and ALAC need to represent before they will given full equal weighting in real terms as well as organizationally is a very large number of canvassed Internet users.
    Now if you want my help in getting those people in, just ask – that's my job after all. But I've never been asked by anyone in ICANN the community organization to help them go get more people. I'd be happy to do so.
    That's not the mindset at the moment though. The mindset, unfortunately, is to spend much more time and effort railing against perceived slights rather than getting on with the job of correcting the power interplay through force of numbers.
    Sorry for the criticism. I'd be more than happy to help the NCUC get more people on board if that is genuinely what you want.
    Kieren McCarthy
    General manager of public participation, ICANN

  2. Anonymous

    Just a simple question : why has ICANN consistently avoided involving registrants (and I do not mean only large domain owners – aka domainers – or commercial companies) ?
    After all, registries or registrars are supposed to have direct means of contact (Whois registration or billing info among other) with individual registrants.
    Why not agree that they would send a simple email inviting registrants to participate in ICANN's activities / structures. Is it because that would be considered spam ? I would not see why.
    Isn't that the best way to broaden representation ? Although I'm not sure that participation of the different stakeholders should only be weighted in relation to how many people they “represent”.
    Has NCUC explored this ? And rejected it for some reason ?

  3. Anonymous

    Bertrand:
    It is an interesting and provocative idea. Thanks for making it. Actually, similar ideas were discussed years ago in line with the debates over membership. I see two issues here.

    First, you may be making the assumption that a large number of ordinary people who register domains are going to participate regularly and actively in ICANN policy processes once they hear about them. This is an incorrect assumption. I have explained why this is true repeatedly in the ICANN context, so I will do it again. It is a well-established fact about political science, grounded in collective action theory. People are basically rational actors when it comes to ordinary policy – they will invest time and resources proportional to the stakes they have in the policy. Therefore, people with a $20/year stake in a household domain name will not get involved in day to day ICANN policy processes. If they are a commercial user, they will not join CSG simply because they have a domain; and if they are a Noncommercial users they will not join NCSG simply because they have a domain.
    Think about what it takes to follow even the simplest ICANN policy process. You join a constituency or SG; you get added to an email list; you read tons of emails; you read numerous reports (ICANN releases them at a rate of 5-10 a month); and maybe, just maybe, you go to an international meeting and spend $2-3k on airfare and hotels. you're talking at least 10 hours a week. Now who is going to do that?
    Either their economic and personal stakes in a policy must be very large (e.g., a big domainer, or a registrar business or a major brand owner) or they must be ideologically committed to certain values (free expression, privacy, cybersafety, whatever). In other words, _by definition_ the vast majority of domain name holders are not ever going to get involved in making GNSO policies and processes.
    ICANN staff learned this when they spent nearly a million dollars a year supporting ALAC and its RALOs – travel, facilities, staff support, etc. And what do they have to show for it? NCUC is more active than ALAC. The RALOs are dormant. It's not just about money, it's about the motivations and incentives of stakeholders to participate. People have other things to do in their lives.
    Does this mean that we should not have user representation? No. It means you let the users who are interested and involved get involved. Furthermore, large numbers of people will get involved under two conditions: 1) ICANN or something under its control does something terribly, terribly wrong and creates a disaster, as happened with the RegisterFly situation, and/or 2) you give people a simple, easy, very low cost way to express their preferences, such as VOTING FOR BOARD MEMBERS. In any national polity, the number of people who regularly participate in regulatory proceedings at the national level is tiny compared to the number who vote.
    My second point is that using Whois data to harvest email addresses to send unsolicited emails in bulk to people is indeed spam. No question about it. That kind of spamming may or may not be illegal (e.g., if you tell recipients how to get off the list and not send any future emails, it may be legal). Aside from its legality or classification as spam, from a practical standpoint one is likely to get 10 angry responses for every positive response you get. Even if it were something we wanted to do, again, based on the arguments above the likelihood that someone will decide to devote 10 hours a week to ICANN because they received an email solicitation is very small.
    A final point. I'd advise you not to buy in to Kieren's insinuation that there is something unique about NCUC here. That's part of the game he's playing. In objective fact, NCUC is now larger than any of the business constituencies. True, few of our people are paid lobbyists and thus fewer can afford to fly to international meetings or devote time to writing official comments. (But you will note that in all comment venues related to the GNSO charters, there are more comments from us than from any other SG.) Obviously, contracting parties don't have that problem because their whole livelihood depends on ICANN and its policies.
    All this staff and Board talk about “representation” is completely arbitrary and manipulative, because no objective standards and criteria have ever been circulated defining what is “representative” enough or what makes a SG representative. Tell me, where is the standard K. uses to determine whether NCUC's size is big enough? We don't know, you don't know and he doesn't know. This talk about “representativeness” is all an after-the fact rationalization for a political decision to discriminate against pesky public interest groups and in favor of business because, as Kieren himself puts it, the businesses “have RESOURCES.” If you want to understand ICANN's behavior just do what Twomey himself told me, and “follow the money.”
    My view is that representation in ICANN processes is a right, not a privilege. ICANN has global governance authority over essential facilities. We have a right to influence, on equal terms, how decisions are made. Staff members, and even Board members, have no business posturing as judges of the value of different public participants; their job is to provide the framework for the people to make policy. Kieren needs to keep doing his honest work running servers that allow remote participation and avoid opining about things well over his head.

  4. Anonymous

    Very encouraging to hear all about the efforts you and the NCUC are making to enlarge your membership.
    And I'm delighted to see you answered the point about the very small number of people the NCUC represents.
    I thought for a minute your response would simply attack me personally and make vague conspiratorial hints rather than step up to the plate and answer everyone's concerns.
    Just goes to show that every now and again people can surprise you by looking at things afresh.
    Kieren McCarthy
    General manager of public participation, ICANN