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.