The
Dakar meeting marked an important milestone in ICANN’s development. The milestone
was the completion of the reform of the GNSO and in particular the finalization
of the new Noncommercial Stakeholders Group (NCSG). The NCSG is the
representational vehicle for civil society in ICANN’s policy development
process. If you support the “multi-stakeholder” model of Internet governance
and you think representatives of business interests should be balanced with representatives
of public interest groups and nonprofits, then the fate of the NCSG should be
important to you (however boring the bureaucratic details may be).
Just
before the Dakar meeting the NCSG concluded the first Stakeholder Group-wide
election for its Chair and for 4 GNSO Council seats. Robin Gross, who ran
unopposed, will be the new NCSG Chair. The election was vibrant: eight people,
covering all but one world region, ran for 4 open GNSO Council seats. The top 4
vote-getters were an impressive group. The highest number of votes went to digital
rights lawyer Wendy Seltzer, a fellow at Yale’s Information Society Project and
ICANN veteran who served as the At Large Advisory Committee’s liaison to the
Board. The irrepressible German communications professor Wolfgang Kleinwachter,
once a member of the UN’s Working Group on Internet Governance and an
articulate advocate of multistakeholder governance, was also elected. Kleinwachter
has just completed a term as chair of the important Nominating Committee, which
appoints a sizable chunk of the Board members. The third council member elected
was a newcomer to the institution: Joy Liddicoat, a former human rights
commissioner from New Zealand with a decade of experience working on rights issues
in the Asia Pacific region. The fourth was Rafik Dammak, a young Tunisian technologist
who just completed his engineering studies. Dammak has been a major force on
the JAS Working Group, which seeks to facilitate the participation of
applicants from poorer or developing countries in the new gTLD process. This
all-star, geographically diverse group took their seats on the Council at the
end of the Dakar meeting.
This
election took on added significance because, up this point, half of the
Noncommercial stakeholders’ representatives on the GNSO Council (i.e., 3 of the
6) were not even elected by the members of the NCSG. They were, instead,
appointed by the Board. How did this happen? The Board appointments, made under
an “interim charter” in 2009, were rationalized on the grounds that the
Noncommercial users were not “diverse” enough. This was untrue – the NCUC was
the most geographically diverse constituency and had a larger membership than
the Commercial constituencies when the appointments were made. “More diversity,”
however, was a code word for the fact that the NCUC was dominated by civil
rights and civil liberties groups who resisted ICANN policies that catered to the
powerful trademark lobby and to governmental law enforcement interests. So in a
stunning departure from its oft-claimed bottom up approach, the Board used a top-down
decision to make the executive director of a business telecommunications users group
and a trademark lawyer for the Red Cross representatives of noncommercial users
on the GNSO Council.
In the
meantime, a new constituency was formed within NCSG, known as the Nonprofit
Operational Constituency (NPOC). NPOC, which is led by the aforementioned Red
Cross counsel appointed by the Board, caters to large nonprofits with trademark
and brand protection concerns. It has also attracted a significant number of ICT
for Development groups and now has about 30 organizational members. Over the
past two years the legacy noncommercial stakeholders in NCUC went through a
contentious and arduous process of creating a new charter that would open up
space for the new constituency while resolving conflicts over the best
organizational structure for the whole SG. The Board, led by SIC Chair Ray
Plzak, took a fairly even-handed role. That unpleasant process is now over.
The
elections were also important because they were the product of a Stakeholder-Group
wide election, rather than elections within the small subgroups known as Constituencies.
The controversy over this seemingly obscure structural issue was covered at length
in this blog’s “Field Guide to the ICANN Reforms” several years ago.
From the
beginning of the GNSO reforms, civil society advocates tried to convince ICANN
Board and staff that assigning a fixed number of Council seats to
Constituencies was a bad idea. It would incentivize structural fragmentation
and segregate noncommercial stakeholders into insulated silos, making it ever
more difficult to forge consensus around policy. Eventually civil society
advocates succeeded in winning that argument. The results of this election show
that the integrated model works effectively. It is far more representative of
member preferences and better able to get the best candidates onto the Council.
That issue, too, is now settled.
But some
of the controversies surrounding that process live on. A couple of months ago
Robin Gross published a paper about civil society participation in ICANN.
In that paper, Gross characterizes NPOC as a “Trojan Horse” for the trademark
interests. The NPOC leadership was so incensed at that article that it sent a
complaint to the Board,
and kept raising the issue during and after the Dakar meeting. The NPOC
complaint to the Board criticized the NCSG Executive Committee’s handling of
their member applications (see the NCSG Executive Committee members’ response)
but the real impetus behind the complaint seems to have come from the Gross
article. Recognizing the legitimacy of the election and the need to work out
the problems at the SG level, the Board refused to intervene. Instead it encouraged
the new Ombudsman to mediate a meeting between the parties in Dakar (which this
author participated in remotely).
Most of
the real issues raised by the NPOC letter were caused by procedural hiccups,
which are to be expected during the implementation of an unfamiliar charter by
two groups suspicious of each other. Ironically, what seems to have happened is
that NPOC’s own representative on the NCSG Executive Committee forgot about 5
organizational applications, and they got lost in the shuffle as a result. At
any rate, those problems could not have altered the results of the election,
and are easily correctable going forward (all of those organizations will soon
be admitted to NCSG). More troublesome is the extent to which some NPOC members
and supporters are still trying to make an issue of Robin Gross’s paper on
civil society participation in ICANN. We find it difficult to understand this. NPOC
claims that as chair of NCSG, the Gross article is proof that they will not get
“fair and equal treatment.” But the SG Chair is an administrative position; all
it gives its holder is a lot of drudge work on the maintenance of email lists,
application forms, setting up meetings and the like. NPOC didn't even run anyone against her for the Chair position, and it is perfectly legitimate for her to hold those views.
Let’s
face facts. There are important, strongly-felt differences between the policy
perspectives of the trademark-oriented, brand-protection perspective of the NPOC
leadership and the policy perspectives of the civil liberties-oriented NCUC
members. With the formation and recognition of NPOC, the NCSG now incorporates both
of these views. Shouldn’t both sides in this controversy have the right to
express themselves? Furthermore, is it reasonable to complain about Robin Gross
bad-mouthing NPOC when we all know that Gross and the NCUC have been
bad-mouthed by their counterparts in NPOC and business for years? The only
difference is that Gross’s views are openly stated and public, whereas most of
the criticisms of Gross and NCUC have been made by whispering in the ears of
board members in corridors, where the arguments cannot be challenged or refuted.
Agree with it or not, the Gross paper is a reasoned, fairly well-documented
discussion of the competition between business interests and noncommercial
perspectives in the context of ICANN. It would be naïve and dishonest to
pretend that political competition of this sort does not exist within ICANN. Why
should anyone complain now that the cards have been put on the table?
