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.