RE: ICANN Public Comment Period: http://www.icann.org/en/public-comment/#gnso-restructure

Comments of the Non-Commercial Users Constituency (NCUC) on the Proposed GNSO Bylaws Amendments
24 August 2009

ICANN’s Noncommercial Users Constituency (NCUC) represents 150 members including 74 noncommercial organizations and 76 individuals from 51 different countries (1). NCUC is dedicated to advancing the interests of noncommercial users of the Internet and participates in policy discussions in ICANN’s Generic Names Supporting Organization (GNSO).

NCUC strongly objects to Section 2 (Composition) of Article VII Nominating Committee (paragraph 7). In particular, noncommercial users object to the imbalanced treatment given between commercial users and noncommercial users in the selection of the Nominating Committee and the number of voting delegates given to the two interests. The draft posted by ICANN for adoption gives 4 delegates to the commercial interests, while only giving 1 delegate to noncommercial interests. This unfair 4:1 ratio does not match the attempt to restructure the GNSO with parity between commercial and noncommercial interests. The number of delegates to the Nominating Committee should reflect parity, equality, between commercial and noncommercial interests. The Non-Commercial Stakeholder Group (NCSG) should have the same number of delegates as the Commercial Stakeholder Group (CSG) in the Nominating Committee under the bylaws.

We note that Section 2 (Composition) of Article VII Nominating Committee (paragraph 8) contemplates (in footnote 11) assigning an “academic” delegate to the NCSG. NCUC supports that proposal since it would provide noncommercial users with more than the mere 1 delegate otherwise assigned to it in these proposed bylaws. By accepting NCUC’s proposal, noncommercial:commercial representation on the Nominating Committee would move from 1:4 to 2:4 — and that is a small step in the right direction to achieving the parity between commercial and noncommercial interests that is supposed to be happening at ICANN.

We object to Section 2 (Organization) of Article X Generic Names Supporting Organizations because it does not allow individuals or organizations to join the Noncommercial Stakeholder Group (NCSG) and then decide which constituency is most appropriate for them to join subsequently. The staff’s bylaws proposal will discourage individuals and organizations from joining the NCSG since they are forced to pick an existing constituency upon joining, or undertake staff’s burdensome procedure to create a new constituency. Imagine if people were forced to join a political party before they were allowed to vote in a democratic election! That would not happen in a legitimate democracy, but ICANN is attempting to create that barrier to participation here in these bylaws. NCUC strongly objects to this gating mechanism and believes ICANN should be making it easy for Internet users to become involved in Internet policy – especially those without an economic interest, but those who are concerned with the public interest.

We object to Section 3 (GNSO Council) of Article X Generic Names Supporting Organizations (paragraph 11) because the voting thresholds proposed for GNSO actions are too low and can leave a minority viewpoint with no protection for having their views incorporated into the final policy. The voting thresholds to undertake GNSO actions, including passing PDPs are too low and should be raised.

We are concerned about Section 5 (Stakeholder Groups) of Article X Generic Names Supporting Organizations (paragraph 5). We note with concern that the staff is proposing to bypass actual noncommercial users and to explicitly ask the board to create new noncommercial constituencies on its own motion, and thus, outside of a true bottom-up fashion. We note that such a procedure is ripe for abuse and manipulation by ICANN staff and board in the management of noncommercial interests at ICANN.

We are concerned about Section 7 (Task Forces) of Annex A (paragraph 7d). We believe in the “collection of information” for a Constituency Statement that (iv) should be amended to include “other” impacts besides financial impacts on a constituency. Since NCUC is not working for an economic interest, most often our concerns are not “financial impacts” so a constituency statement should be allowed to consider those other impacts and not discouraged from considering non-financial impacts as the proposed text implies. Therefore, we propose 7d. (iv) be re-written as: “An analysis of how the issue would affect the constituency or Stakeholder Group, including any financial or other impact on the constituency or Stakeholder Group;”.

The same concern as noted immediately above applies equally to Annex Section 11 (Council Report to the Board) paragraph (d) and we suggest it be re-worded as follows: “An analysis of how the issue would affect each constituency or Stakeholder Group, including any financial or other impact on the constituency or Stakeholder Group”.

We object to the low voting threshold created by Section 12 (Agreement of the Council) of the Annex that approves GNSO Council recommendations with only a 50.1% majority of each house and only 3 of the 4 stakeholder groups needed support the action. Since this vote is “deemed to reflect the view of council” it seems unfair that an entire stakeholder group’s concerns can be left behind and still call the vote “the view of council”.

We note with disappointment that leaders of commercial and IPR constituencies have commented that permanent GNSO Bylaws be re-written to reflect the board’s decision to temporarily appoint 3 new NCSG GNSO Councilors and we disagree that it should be written into the permanent GNSO Bylaws and certainly not without a fixed length. There is no reason to write transitionary provisions into permanent bylaws, unless of course the intent is to make the transition “permanent”, which is why the leaders of the commercial constituencies have been requesting this redrafting in this comment period. However, it is inappropriate to use non-contentious bylaw revisions as an attempt to make transitionary policy permanent as proposed by the commercial constituencies.

We also note that the CSG and the NCSG are given entirely different “geographical” requirements for GNSO Council representation in the “reformed” GNSO. In particular, the CSG is allowed to elect all 6 of its GNSO Councilors from only 2 geographic regions in its charter. They additionally want a “special circumstances” exception to that already flimsy requirement in the proposed bylaws (Section 3 paragraph 2 of of Article X on the GNSO). The NCSG is not only allowed to have more than 2 GNSO Councilors from the same geographic region, and we think that should be the requirement for the CSG also, and that it should be incorporated into the bylaws. We are troubled by the lack of geographical diversity within the CSG and note that the first 3 of 6 CSG GNSO Councilors will represent the USA and more than 58% of the Commercial Constituency’s membership is from the USA.

We look forward to the next draft of these GNSO Bylaws and to a more equitable treatment between stakeholder groups including a commitment to equal rights between noncommercial and commercial users of the Internet in policy decisions. Rather than write press releases about “bottom-up policy making”, ICANN could write bylaws that instill real equality into policy structures.

Thank you,
Robin Gross
NCUC Chair
NCUC Website: http://ncdnhc.org/

(1) Current NCUC Membership Roster:
http://ncdnhc.org/page/membership-roster