Here’s APC’s comment on the NCSG Transitional Charter:

To the Board

The Association for Progressive Communications (APC) is a global network of civil society organisations whose mission is to empower and support organisations, social movements and individuals in and through the use of information and communication technologies to build strategic communities and initiatives for the purpose of making meaningful contributions to equitable human development, social justice, participatory political processes and environmental sustainability[1]. APC is a member of the Noncommercial Users Constituency (NCUC) in ICANN.s Generic Names Supporting Organisation (GNSO).

APC is concerned about the Non-commercial Stakeholder Group (NCSG) Transitional Charter which ICANN has posted for public comment.

At the level of due process, it appears that the submissions of the NCUC regarding the NCSG Charter have been ignored and the views of the anti-pornography, internet censorship group, CP80 have been adopted without any explanation. This is problematic because it is procedurally unfair and creates the perception of bias and arbitrary decision-making on the part of the ICANN Board. It also alienates a significant sector of civil society unnecessarily which is bad practice in terms of principles of sound organisational development. This is all the more curious as it is on these issues that ICANN is currently being assessed by the US Department of Commerce in terms of the Inquiry into the upcoming expiry of the Joint Project Agreement [Docket No. 090420688.9689.01].

We are also concerned at the level of substance. Non-commercial stakeholders, like most of civil society, consist of a heterogeneous mixture of constituencies. While the Board has the right to approve different constituencies of civil society to be placed in the NCSG, we think that the Board should practice forbearance in this regard. The organisation of civil society groups in arenas like the World Summit on the Information Society has generally recognised that it is better to allow civil society groupings to organise themselves rather than have this over-determined by an executive structure from the top. ICANN.s bylaws have identified a broad constituency . non-commercial stakeholders. To go beyond this . to slice and dice sub-constituencies from this general category . seems to us to go too far in trying to organise civil society from the top and undermines the notion of subsidiarity, which could usefully apply here. To quote Wikipedia, subsidiarity .is an organizing principle that matters ought to be handled by the smallest, lowest or least centralized competent authority. and is a key principle underpinning the European Union[2].

The NCUC.s NCSG Charter captures the notion of subsidiarity in its procedures for forming the membership of the Non-commercial Stakeholders Group. Membership, constituency formation and representation in the NCSG would take place at the lowest level and not at the highest level of decision-making. The criteria for membership of the NSCG are very clear in the NCUC-proposed Charter and constituencies within the NSCG are self-organised. Voting rights are also clear and linked to the three categories of membership. This is eminently democratic and bottom-up.

Membership provisions in the NCSG Transitional Charter, put up for public comment, are vague as membership is established on the basis of a constituency approved by the Board. This is immediately disempowering to any self-respecting civil society organisation or individual and removes the element of direct democracy that the membership structure of the NCUC Charter provides. The NCUC Charter.s approach to constituencies is democratic in that constituencies can self organise within the framework of the NCSG but do not override a single member.s right to vote directly. Basically, the NCSG Transitional Charter muddies the water in this regard and APC regards it as undemocratic.

If the aim of the GNSO reform process is to enhance democracy, increase participation and accountability in the GNSO, then the principle of subsidiarity as contained in the NCUC.s NCSG Charter is the way to go about it. The alternative is to unleash non-transparent lobbying activities around the ICANN Board as would-be non-commercial constituencies jostle for influence over the Board.s decision-making on choosing which constituencies to recognise. This is a recipe for deepening ICANN.s crisis of legitimacy rather than easing it in the direction of greater transparency, democracy and multi-stakeholder participation which were universally adopted as principles for internet governance by the World Summit of the Information Society[3].

We recommend to the ICANN Board that it reconsider the NCUC.s NCSG Charter proposal in the light of the principle of subsidiarity. We are of the view that if ICANN were to adopt the NCUC.s NCSG Charter, this would signal to civil society that ICANN takes civil society participation seriously and is turning over a new leaf with civil society groups. This is an opportunity for ICANN as an institution to take forward the GNSO reforms on a positive basis.

Thank you

Willie Currie

Manager, APC Communications and Information Policy Programme

New York

21 July 2009

[1] www.apc.org

[2] http://en.wikipedia.org/wiki/Subsidiarity

[3] Tunis Agenda for the Information Society, 2005, paragraph 29 http://www.itu.int/wsis/documents/doc_multi.asp?lang=en&id=2267|0