On July 30 a majority of the ICANN Board took a fateful step away from open public participation in domain name policy making. In a decision that seriously impairs ICANN’s claim to be a multi-stakeholder, bottom up institution, the Board voted 10-4 to impose upon civil society groups a charter that they did not support and which is designed to weaken and fragment their participation.

The Board-approved charter for a Non Commercial Stakeholders Group (NCSG) was drafted directly by ICANN’s staff, without any consultations with the affected noncommercial organizations. When it was put up for public comment the reaction was overwhelmingly negative. And yet the majority of the Board (with several strong dissents, see the “silver lining” below) didn’t care, and passively complied with the direction fed to it by its Vice Chair and staff. The staff did not make a single modification reflecting the views of the overwhelming majority of the affected community.

The importance of this issue goes well beyond the NCSG; it relates to the whole problem of public participation in ICANN. Is ICANN a structure to facilitate policy making by any interested and affected stakeholder, or is ICANN nothing more than a self-perpetuating corporation that sees the public as a potential threat and public participation as something to be carefully managed and controlled?

The decision puts into place an interim charter for the Noncommercial Stakeholders Group (NCSG) for one year. The charter disenfranchises civil society by empowering the Board (not the NCSG itself) to select half of the NCSG’s “representatives” for an indefinite period. None of the other three Stakeholder Groups (all corporate and commercial in character) were subjected to such a provision; the real purpose of this provision is to ensure that the only extant noncommercial constituency, the NCUC, doesn't get any more votes. It also paves the way for permanent fragmentation of the NCSG into Board-approved “constituencies.” This is designed to divide noncommercial users up into artificial categories and prevent users from selecting their own Council representatives directly and democratically. Nearly all public interest groups rejected that approach as a recipe for constant political infighting at best, and a divide-and-conquer strategy at worst. Oddly, after months of debate over this issue, neither the staff nor the Board committee in charge has ever bothered to address, much less answer, the arguments made against the constituency system by the overwhelming majority of GNSO participants (including registries and registrars).

The Board minutes provide a good idea of how insulated most Board members are from reality, due to the control of the information about issues by ICANN’s professional staff, which now has become a partisan force in the controversy. The staff-prepared minutes refer to “the opposition raised by some of the members of the current Non Commercial Users Constituency.” Those words seriously distort reality: in fact, all members of the current NCUC who have made their views known are opposed to the Board action, not “some”; in fact, more than 50 noncommercial organizations and individuals who are not members of the NCUC weighed in against the staff-created charter. A summary of public comment by staff member Robert Hoggart also dishonestly claimed that ICANN's At Large Advisory Committee (ALAC) had supported the staff's charter proposal, when in fact ALAC as a whole did not even discuss, much less approve, the staff-prepared charter.

As for new constituencies, the July 30 Board meeting did not approve any of the four new Constituencies that petitioned for recognition. This especially interesting development warrants a separate blog post. The Board did not specify why, but the specific reasons matter less than the fact that the staff and Board are establishing themselves as the gatekeepers of public participation in the GNSO. This action reinforces the basic criticism that opponents of a constituency-based system have made. Aside from dividing up civil society participation into arbitrary, confusing and competing organizational silos, a constituency-based structure puts public participation almost completely at the mercy of ICANN’s professional staff and the Board. The Corporation will decide who is and is not a constituency worthy of representation. This means that if petitioners bring in people and viewpoints the Corporation likes, the constituency will be approved; if they bring in people and viewpoints the Corporation doesn’t like, new constituencies will be rejected.

There was another, equally dangerous indication of how the Board plans to micromanage public participation. The July 30 meeting seems to have approved a staff proposal to engage in constant surveillance of public participants in the GNSO in order to determine who is “active” enough to be considered an appropriate “member” of a constituency. No member of the public and no GNSO constituency asked the staff to do this; numerous members of the public – even the commercial groups – opposed the staff’s suggestions in the public comment period. And yet the Board approved it, apparently for no other reason than that the staff asked them to. And so we have yet another top-down, self-serving action in an entity that claims to be bottom up. In the future, the staff will not only be deeply engaged in determining who is and who is not a “constituency,” now it will constantly spy on individual participation within them.

On the whole, it would be difficult to come up with a clearer example of a top-down decision, made without regard to the wishes of its own community of participants, than the July 30 decisions about GNSO reform. This is not what people had in mind when they created ICANN, and this is not what the Board Governance Committee had in mind when it proposed “improvements” to the GNSO.

There are, however, several silver linings to this dark cloud.

One is that four Board members broke apart from the unanimity that typically characterizes Board decisions about organizational issues. The preliminary minutes do not tell us who they are, but we will learn that soon. The existence of dissent is especially noteworthy because of the way the Corporation’s professional staff controls the information given to ICANN’s volunteer, unpaid Board members and the culture of collegiality and “going along to get along” that permeates Board culture. The willingness of four Board members to think for themselves and break with their colleagues shows that the growing protest generated by civil society organizations succeeded in breaking through the staff’s informational cocoon. The arguments made against the staff charter are in fact persuasive, and any Board members who bothers to learn the facts will eventually be persuaded. Because the interim charter will be reviewed after one year, civil society can continue to work to persuade additional Board members to live up to ICANN’s claim to be an open, multi-stakeholder policy making organization.

The other silver lining is that ICANN’s poor treatment of civil society groups, which is intended to isolate and disempower NCUC because of its critical stance toward key ICANN policies, has had the opposite effect. Membership in the Noncommercial Users Constituency has quadrupled, and continues to grow. The latest and most interesting addition to autonomous civil society is Avri Doria, the Chair of the GNSO Council. (She will, alas, step down from that role at the Seoul meeting in October.) Doria, an IETF participant and principled supporter of bottom up processes, originally supported the constituency model but joined NCUC as an individual member immediately after the July 30 decision. She did it as an act of “solidarity” with the group in response to the Board’s shabby treatment. The more ICANN discriminates against civil society participants, the more interested broader civil society gets in ICANN.

For more than a year, ICANN Board Vice-Chair Roberto Gaetano has attempted to rationalize the discriminatory treatment given to civil society stakeholders by claiming that the Noncommercial Users Constituency (NCUC) is insufficiently diverse and representative. And yet the whole controversy over the NCSG charter has proven beyond all doubt that the NCUC is now larger, more diverse and more active than any of the other GNSO groups. The real problem with NCUC, it seems, is that it represents a voice for civil society that is autonomous and outside the control of the Corporation.