Marked by the ICANN Commercial Stakeholder Group
The issue of this blog is that I was named for unethical behavior by ICANN’s Commercial Stakeholder Group, the CSG. Being as brief as possible, I want to take the complaint seriously, explore it, and decide for myself whether I think it has any validity. The reader is invited to come to their own conclusions.
On 3 September 2009 the CSG called a Point of Order during a GNSO Council meeting. This in itself was interesting because, while the GNSO Council has procedures, it does not run on Robert’s Rules of Order. In over 2 years of chairing the meetings this was the first time I recall anyone having called a Point of Order. By definition, a Point of Order is called when someone has committed an infraction or lack of decorum in speaking and must be made immediately after the infraction is made. Since we had just approved minutes from the previous meeting, I was not sure what Point of Order we really had. But allowing a Point of Order is almost a reflex for a chair - one does immediately grant the floor.
Well the alleged infraction was something I had done a month before - almost to the day. I had joined the NCUC in solidarity for mistreatment I felt they had received at the hands of ICANN Policy Staff. So it was not really a legitimate Point of Order. But what is a chair to do? I let it go on and allowed them to read their complaint. I then turned the meeting over to the GNSO council vice-chair for the discussion.
It was an interesting piece. I do not know if it just came from the leadership or whether it had been approved by the constituencies the leadership represents. I do not have a copy I can quote, but some of the more relevant aspects were:
- Joining a constituency was unethical for a someone appointed to an ICANN post by the Nominating Committee (Nomcom)
- The ethical breach could not be alleviated by a Statement of Interest (SOI) declaration.
- The redress for this ethical breach was to either:
- remove the voting ability of all Nomcom Appointees (NCA)
- amend the ICANN Bylaws to make being a member of a constituency a prohibition for NCA appointment or remaining in office.
I will try to touch on all of these as I do my random walk through the topic.
The Announcement
I did make an announcement when I revised my Statement of Interest (SOI) to state what I had done and why, and that is on record. The SOI is the mandated way in which all members of the GNSO council and all members of GNSO Working Groups etc are to list any issue that may affect how they vote. I was quite specific in this about what I had done, why I had done it, and how it would affect my behavior as a council member.
One of the things they quoted was from the SOI and one was from a blog I had written.
As a new blogger this was almost enough to put the fear of the censor in me. If they can quote things I write about ICANN in an outside forum, and use them to hurt me and hurt the things I support inside of ICANN, I better be quiet and no longer comment on what I see and believe. As the expression I was taught when I lived in the Republic of Korea reminds me, ‘it is the nail that stands up that gets hammered.’ As I said, it was almost enough to silence me, but whenever I approach that point were fear is enough to make me stand down, I feel the need to stand a little straighter and talk a little more. Hence this article exploring the accusation.
The Lapse in Ethics
Like most people I am very concerned with behaving ethically. I try to live ethically and to think through the things I do in those terms. And I can’t claim to always succeed in making the right ethical choice, though I wish I could; I do sometimes miss the mark. And when a moral authority tells you that you have missed the ethical mark, it behooves you to think about it seriously. Maybe this was one of those times.
Yes, one could possibly question the moral authority of the CSG leadership in making the accusation. But I am not equipped to make such ethical judgments as I do not count myself as a moral authority in judging others. I can only assume that the leadership of the 3 non-contracted commercial constituencies believe that they are such a moral authority, for they felt qualified to make an ethical judgment of me. They judged my actions as an NCA to have ethically lapsed in joining the Non Commercial Users Constituency (NCUC). I accept, for the purposes of this argument, that joining any constituency would have had the same ethical impact, even if I had joined one their constituencies. I also expect that the ethical judgment would have been the same if I had gone to work for any of the companies who are members of any of the other constituencies as I then would have had a financial relationship with a company that was a member of a GNSO constituency. This does bring up an interesting question: does participation as a Nomcom appointee, limit ones ethical ability to take a job anywhere in the DNS name related industry?
The specific claim was that I had breached Article 3 on the Nominating Committees Code of Ethics which reads:
3. NomCom’s Role
NomCom is responsible for the selection of portions of the members of the ICANN Board of Directors, GNSO Council, Interim ALAC, and ccNSO Council, filling these leadership positions in a way that complements the selections made for such positions by the Supporting Organizations and Interim ALAC.
The central rationale for using a nominating committee to select a portion of the ICANN leadership bodies is to balance those who can represent particular areas of knowledge and interests with those who place the broad public interest of the global Internet community ahead of any particular interests. NomCom’s role is to select individuals of the highest integrity and capability who place the broad public interest of the global Internet community ahead of any particular interests, and who are nevertheless knowledgeable about ICANN’s mission and environment.
To achieve this broad public-interest orientation, the members of NomCom are drawn from across the ICANN and global Internet communities. They act only on behalf of the interests of the global Internet community within the scope of the ICANN mission and the responsibilities assigned to NomCom by ICANN Bylaws. They act as individuals and are not beholden to their appointing constituencies as they work by consensus to derive the NomCom slates of Selected Nominees for these leadership bodies.
The NomCom functions independently from the ICANN Board, Supporting Organizations, and Advisory Committees. The NomCom selections are final; no further approval or ratification is needed.
Together the NomCom and Supporting Organization selection pathways ensure that ICANN benefits from functional, cultural and geographic diversity in its policy development and decision-making as the Internet evolves.
NomCom is responsible for the selection of all ICANN Directors except the President and those selected by ICANN’s Supporting Organizations, and for such other selections as are set forth in the Bylaws. [Bylaws Article VII, Section 1, see http://www.icann.org/general/bylaws.htm#VII-1]
The first thing I would note about this, is that this section applies specifically to members of the Nomcom and not to the appointees. But relying on that mistake would just be relying on a technicality and ethical judgment and defense do not rest on technicalities. So, for the sake of argument, I go on with judging myself against this standard. The specific charge related to my inability to place the broad public interest ahead of any particular interests, a duty that is defined in Article 3.
NomCom’s role is to select individuals of the highest integrity and capability who place the broad public interest of the global Internet community ahead of any particular interests, and who are nevertheless knowledgeable about ICANN’s mission and environment.
The claim was that by having joined the Non-Commercial Users Constituency, I was no longer capable of putting a broader public interest above the interest of non commercial users.
In the update to my Statement of Interest, a part they did not quote in their complaint, I had stated:
For the duration of my term, however, I will continue to function within the council as an NCA and as Chair in the same manner as I have up until now. That is, I will not be speaking for the NCUC on any issues within the purview of the GNSO Council, but will be speaking in my independent capacity.
I should mention, that I have been active in civil society organizations for a long time, and have never made a secret of my support for the non profit world, even before I joined NCUC as an individual member. This was known by the Nomcom when they selected me the first time, the second time and even the third time. And throughout all my years on the GNSO I have been able to take a broader view and have even voted for things that seemed right to me though they were not favored by civil society or the NCUC. If one looks at my voting record, it will become obvious that I do not always vote with the NCUC. But somehow joining the NCUC in solidarity over the restructuring issue, an issue that is not within the purview of the GNSO council, was supposed to make it impossible for me to now be independent.
Nonsense. My goal is always to take every issue on its own merits and make my own decisions based on what I understand of the issue and what I understand of the greater good. This is what I have always done and this is what I will always do - no matter what team I join. I am not saying I am always right and sometimes in retrospect when I have learned more, I have wished I had made a different decision. What I am saying is that my decisions are never anyone’s but my own. And that is not going to change just because I join a constituency.
They even went further and said that declaring that I would not be bound by NCUC policies (something I also told the NCUC before joining) but would continue to vote in my individual capacity and according to my conscience was meaningless and irrelevant to the ethical considerations. Yet the whole basis of the conflict of interest policy and the publication of a Statement of Interest is just to list all those areas where there may be a possible conflict of interest in the broader perspective. The ICANN Bylaws are quite specific about behavior in cases where conflict of interest is possible - and I would now certainly be constrained from taking any vote in the GNSO Council that would have a material effect on the NCUC constituency, e.g I would have to abstain on any motion that allocated funds to the NCUC - just as any constituency member would have to abstain on any motion that allocated funds to their constituencies or its members.
Incidentally no specific charges of behavior demonstrating conflict of interest were made. Even when pressed during the meeting by several council members, no charges were forthcoming. The only breach was in joining a constituency. And this is neither a breach of the rules or of ethics, not even for a Nomcom appointee.
At this point, having examined the charges in some detail, I am comfortable in making the claim that not only did I not take any steps that were against the Bylaws (and I checked with ICANN legal staff before I joined the NCUC), I also did nothing that was in any way unethical. I am still able to put broad public interest of the global Internet community ahead of any particular interests, have never done otherwise and will never do otherwise. I will continue to be true to my duty as a Nomcom appointee and to my identity as a free thinker.*
The redress being sought
One possible redress available to the council in the case of ethical breach by a NCA is to vote them out. Specifically:
A GNSO Council member selected by the Nominating Committee may be removed for cause stated by a three-fourths (3/4) vote of all members of the GNSO Council (excluding the member to be removed), subject to approval by the ICANN Board.
Specifically if they felt that I had breached the Bylaw’s mandates for ethical behavior, they could have made a motion to have me put out of the council. They did not propose such a motion. Instead they proposed the two interesting alternatives I mentioned at the beginning of this article. I will discuss each briefly in turn.
- Remove the vote from all Nomcom Appointees
I believe that it has long been a goal of various members from within the constituencies that make up the Commercial Stakeholder Group to remove votes from the Nomcom appointees. This goal was partially achieved in the new bicameral council where one of the NCAs was disenfranchised and many of their arguments can be found in the archives of the Working Group on Council Restructuring. Using my so-called ethical lapse as a reason to achieve their ultimate goal in this is very clever. But I see no justifying argument. If I had done what they claim, that might have been a reason for removing me, but would still not have been a reason for complete disenfranchisement of NCAs. Everyone comes into the Nomcom process with a viewpoint. And the Nomcom picks people who they believe can put aside their particular point of view, maintain an open mind and vote on the issues as presented. I think it can be shown in the GNSO Council as well as on the Board of Directors, the ccNSO council and the ALAC, that Nomcom appointees have been able to set aside their personal biases to make open minded decisions. Does the leadership of the CSG propose disenfranchising the NCAs within other parts of ICANN as well as the GNSO Council? I do assume the reasoning would be the same so believe that it follows logically that they would. I would hope not, but if their logic is allowed to stand, this might be the case. Does this make any sense at all? I think not.
- Change the Bylaws to prohibit NCAs from being members of a constituency
On the face of it, this might be a reasonable change if people think that there is a risk in constituency members not being able to live up to the obligation to take the broader interests to heart. I don’t believe this, but the leadership and maybe even the membership of the CSG does believe it. So from their perspective, it might be a reasonable proposal.
Would they make this a rule that only applied to individual members of constituencies? Or would it also have to apply to anyone who was an employee of a company that was a member of a constituency. Certainly having a financial relationship with a company that was a constituency member would be as binding, it not more so, as having a social relationship of an individual membership in a constituency. Should anyone who works for a member of a company that is a member of the CSG, for example, be barred from Nomcom appointment? If they are serious about this suggestion, then I ask them to consider that aspect and to decide if they think taking all those employees out of consideration is the best thing for ICANN. I do not think so, but consistency in the proposal would, in my mind, demand it.
Conclusion
All in all, while I did not really appreciate the surprising attack by the CSG, feel it was an inappropriate use of a Point of Order, and was an unsubstantiated accusation with unreasonable conclusions, I have enjoyed the opportunity to explore the issues. That is the silver lining in this cloud. As I argued, I do not think I was guilty of an ethical breach and do not believe that the remedies offered would be reasonable in any case.
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* Though I do not consider my actions to have been unethical and do not consider the complaint valid, I have decided to abstain on all GNSO Council votes until such time as the ICANN Board of Directors’ Structural Improvements Committee (SIC) have had a chance to make a determination. My reason for doing so is that I do not wish for any GNSO Council votes to be invalidated should a decision go against me.
