random thoughts

ICANN’s GNSO approves neocolonial restrictions on support for gTLD applicants from developing economies!

Today, the GNSO rejected a motion on a charter extension to the Joint AC/SO Working Group for gTLD Applicants from Developing Economies (JAS WG) that might have actually provided assistance for new applicants from developing economies.  Instead they approved a charter extension that only provides a single kind of aid.  The only type of help they approved was aid that would be provided by or through an incumbent partner or an established consultant.

Many of the types of aid approved in the ALAC charter extensions were excluded!

No application fee reductions;

No fund raising in order to give material assistance;

No use of windfall profits from auctions to help applicants from developing economies; 

No help in establishing coordinated efforts by applicants from developing economies.

The only kind of aid the JAS WG is allowed to work on is aid that makes a applicant from a developing economy beholden and subject to the control of an incumbent or an expert.

In other words, the only type of aid the GNSO approved is neocolonial aid.

Neocolonialism is a method by which corporations and multinational corporations from developed nations find ways, such as partnerships and advisor-ships, to exploit the resources of post-colonial developing economies.  The new gTLDs, especially those IDN gTLDs using local scripts and languages, are a rich resource open to exploitation.  By making partnering the only way to get assistance, the incumbent will gain some share of every new gTLD that requires aid. Further, by not providing material aid, local populations will be at a disadvantage in developing their own linguistic and cultural resources, leaving those resources as low hanging fruit available for incumbents.

Restricting the type of assistance to partnerships and advisors, though these can be an ingredient of a full program that includes material assistance, is a form of neocolonialism.  This is the case even if those in the Contracted Parties House (CPH) who tabled this motion and those in Non Contracted Parties House (NCPH) who went along with the motion and voted for it, do not know it is neocolonialism.  Even if exploitation was the furthest thing from anyone’s mind and they were only thinking of what was good for the incumbents and for their stakeholders, it is neocolonialism and it ignores the needs of developing economies.

And it is wrong.

What it is not, is a development conscious action! 

What it is not, is a response to the GAC’s advice that the new gTLD program be made accessible to developing economies!

The GNSO council went even further in that the motion that they approved gags the JAS WG by barring it from conveying its recommendations to the ICANN Board, the GAC or the community at large without first getting the approval of the GNSO.  It might even gag the WG from being able to put out a statement regarding the utter inadequacy of the motion approved by the GNSO.  The GNSO, in the process of protecting its gTLD sovereignty and its access to developing economy resources, is instituting military style top down chains of command in the ICANN bottom up organization.

These were the first major decision of the new 2011 GNSO council.  

This does not bode well.

Incumbent ICANN Registrars & Registries create roadblocks to assisting gTLD applicants from developing economies.

Despite protestations to the contrary made at the beginning of the GNSO meeting in Cartagena about how much the incumbent Registries and and Registrars of the Contracted Parties House (CPH) care about helping gTLD applicants from developing economies, it is my opinion that they are seeking to cripple the group trying to provide a framework for development aid to applicants for new gTLDs from developing economies.

Background

Early in process of creating a new gTLD program, concerns were raised that the program was not being sufficiently supportive of people from developing economies. These issues always got a polite nod of the head, and then the process moved on.  The final recommendations from the GNSO had very little to say about development support.  And as member of the group that came up with these recommendations, I am ashamed that our work product missed that critical point.  We worried about so many things, including intellectual property, morality and public order, protecting the reputation of minority communities, and protecting the interests of the incumbents. But in the end we said nothing about helping applicants from developing economies; the only possible mention of helping anyone was in the sub-text of what might happen with the windfall topics from auctions, should that be the method picked by the staff for deciding between contenting applications - as if there was any chance they would have chosen another method. Of course we did not know at that time that the expense for applications would be an order of magnitude greater than it had been in the previous round, but still we did not think of developing economy applicants.  This is something that ICANN must remedy, and some people are working hard to do so.

It became obvious that something needed to be done when the first implementation drafts, aka Draft Applicant Guidebooks or  DAG, appeared with price tags such as $185,000 USD for an application for a single name in addition to over-specified financial and technical obligations that would cost hundreds of thousands of USD. While these were seen as possibly reasonable for a technology entrepreneur with a Marina del Rey wallet, they were obviously prohibitive for anyone from a developing economy.  The Government Advisory Committee (GAC) was the first to raise the alarm at the way the program was being shaped. In May and August of 2009, the GAC raised the issue that the costs were prohibitive for the developing world.  For the most part their early warnings were ignored, after the appropriate nod of concern. It took until 13 March 2010 for there to be a Board resolution mandating that something be done to solve the problem of making the new gTLD program accessible to applicants from developing countries. That is, 5 years into the program, just before the end of the process, support for developing economies became a concern.  Late, but at least it happened.

As a result of the Board resolution the Joint AC/SO (Advisory Committee, Supporting Organization) Working Group for support of gTLD applicants (JAS WG for short) was created. Within 10 months of meeting twice weekly or more, this group created a package of recommendations for ways in which applicants from developing economies could be helped.  The types of assistance recommended for qualifying applicants include:

• Application fee cost reduction
• Sponsorship and other funding support
• Modification to the continued financial support mechanism
• Logistical support
• Technical Support
• Exception to rules concerning the separation of of Registries and Registrars.

It is important to note that this was a unified package that was the result of a bottom-up effort of many people, including participants from developing economies of what could be done.  These recommendations are available online in the 6 UN Langauges.

The idea was that different types of aid would be required for different applicants.  It was also the recommendation that ICANN volunteers and staff would work together to create the process for providing the aid.  Time is short, and we all need to pitch in to reach this important goal.  One of the important tasks has to do with fund raising and distribution.  One of the special concerns in fund distribution, including any auction windfall profits mentioned above, is that management of these funds not become part of ICANN’s budget management. Especially when it came to the windfall from auctions, these were not to be lost inside the ICANN budget, but rather be applied to helping new gTLD applicants with the multi-year expenses required by the new gTLD program.  Additionally, it was understood that the prospect of raising funds to help new applicants would also need to be handled separately from ICANN funds. It was, therefore, recommended that in order to both raise monies that could be given in aid and to handle any auction monies, an external fund of some sort would need to be established as soon as possible in order to be ready by the time the new gTLD process started.

The JAS WG knows what work needs to be done and is ready to do it - though they are looking for more volunteers to do the work (hint, hint). It was time for next steps.

Both the ICANN Board of Directors and the GAC encouraged the JAS WG to keep working and to take those next steps in their work, i.e actually figuring out how to do what it was recommending be done.  To this end the ALAC approved a motion to extend the charter so that it could do exactly that.  As the second of its chartering organizations, the GNSO Council, was also asked to approve a motion extending the charter of the working group.  It was at that point that the Contracted Parties House (CPH), composed of incumbent Registrars and Registries originally informed the JAS WG chairs that they would unanimously vote against the proposed charter.  After a set of conversations meant to try and find a compromise with the CPH, and with no attempt by the CPH to compromise, they eventually offered an alternate motion that, if approved, will cripple the efforts of the JAS WG.

Why is the CPH motion so crippling

(Note the text of all of the motions is included below)

In the charter extension approved by the ALAC there is a work item assigned to each of the recommendations made by the JAS WG.  In the incumbent CPH proposal they have removed half of the work items.  Instead of mandating the JAS WG to propose methods for fulfilling all of the recommendations, they only mandate the JAS WG to:

• Propose criteria for defining need;
• Propose methods for determining need;
• Propose methods to determine what sort of aid applicants should get;
• Make proposal how applicants could go about seeking aid.

These are of course important and do match some of the work items in the charter approved by the ALAC; about half of them.  They left out, however, any further work to raise funds, to find methods to deal with funds or methods to actually provide assistance.  Instead they want the JAS WG to propose a way to determine who needs aid, to determine what sort of aid they need and then to tell them how to go pull themselves up by their own boot straps.  The want to bar the group from doing any work that might actually provide any sort of aid.  That is what I mean by crippling the effort.

Without making any assumption about the intentions of the incumbents in the approach they take, the approach they are offering is the neo-colonial way of doing things. Instead of giving people the leg up they need to start a registry in a developing country, the type of aid that would be provided would restrict helping the applicants find a northern partner to help them. Instead of helping the applicant from a developing economy with lower fees, grants or loans that would help them do a local start-up registry service provider or to gain accreditation as a registrar, the proposal only provides help with pointers on where to find incumbent registry service providers, top-level domain consultants, translators, and technicians.  And while this a form of aid the JAS WG suggests, it should not be the only type of aid available.

I believe that the CPH motion go one step further.  In paragraph 4 of their proposed motion it declares that the JAS WG must not report to anyone other than the chartering organizations (the GNSO Council and the ALAC) and seeks to restrict the JAS WG from communicating directly with the ICANN Board, the GAC or the community at large.  The incumbent Registrars and Registries in the GNSO want to force all communications through a military style chain of command that goes through them.  This top-down control is wholly inappropriate in a bottom-up organization.  Yes, the chartering organizations are asked to endorse the work and are responsible for managing the process to make sure that it is inclusive, fair and transparent; but they are not empowered to restrict the ability of a WG to communicate as it sees fit with other parts of the organization.

A final thing I need to explain is why I believe that this crippling motion is the responsibility of the entire Contracted Parties House of incumbent Registries and Registrars instead of just the responsibility of the council members who made the motion and seconded it. These stakeholder groups engage in the practice of voting in blocks where their council representatives are not permitted an individual vote, but must vote as the leadership in the stakeholder groups have decided.  I was informed by both incumbent groups, the Registries Stakeholder Group and the Registrars Stakeholder Group, that they would vote against the charter approved by the ALAC and can only assume that the new motion made and seconded by CPH council members is one that both incumbent stakeholder groups in the CPH will support.

Having been the co-chair of the JAS WG during the first half of its work, though I have since been replaced by a new co-chair from a developing economy, I am very sad to see the work we did possibly rendered useless by these actions on the part of the Registries and Registrars.  I am concerned that the conflict over the motion has more to do with the CPH not understanding the priorities of a development agenda and the responsibilities of Northern wealth, than any sort of mean spirit. During the recent meeting in Cartagena, while I was explaining the work of the JAS WG, many good and sincere GNSO members from registries and registrars came up to me and explained that they had worked hard, started from nothing and had pulled themselves up by their own bootstraps.  They saw no reason why those from developing countries should not do the same.  They did not see that the needs of those in developing economies are special.  They did not understand that it was incumbent on the rest of us to actually help them join our club.  They did not understand that it is easier to pull yourself up by your bootstraps when you have boots.

Getting the work of the JAS WG to support applicants from developing countries done correctly is an imperative for ICANN.  It is an imperative that I hope is not crippled by a bad charter.  I think the alternate motion offered by the CPH is a bad charter that should be rejected.

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Charter proposals for reference

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Charter extension as approved by ALAC meeting on 11 Nov 2010

Whereas:

The GNSO Council and ALAC established the Joint SO/AC Working group on support for new gTLD applicants in April of 2010; and

The Working Group has completed the work as defined in its initial charter and published a Milestone report  on 10 November 2010 covering those chartered items 

and including a list of further work items that it recommended further work on; and

In recognition of the ICANN Board’s resolution 2010.10.28.21 in response to an Interim report from the JAS WG, which states: 

the  Board encourages the JAS WG and other stakeholders to continue their work on the matter, and in particular, provide specific guidelines on the implementation of their recommendations such as determining the criteria for eligibility for support.

Resolved:

1. The charter of the Joint SO/AC New gTLD Applicant Support Working Group is extended to include the following objectives:

a) Establish the criteria for financial need and a method of demonstrating that need. Financial need has been established as the primary criterion for support. The group should be augmented to have the necessary expertise to make a specific recommendation in this area, especially given the comparative economic conditions and the cross-cultural aspects of this requirement.

b) Definition of mechanisms, e.g. a review committee that would need to be established operating under the set of guidelines established in the Milestone Report and those defined in objective (a) above, for determining whether an application for special consideration is to be granted and what sort of help should be offered; 

c) Establishing a framework, including a possible recommendation for a separate ICANN originated foundation, for managing any auction income, beyond costs. for future rounds and ongoing assistance; 

d) Establish methods for coordinating the assistance, and discussions on the extent of such coordination, to be given by Backend Registry Service Providers; e.g. brokering the relationships, reviewing the operational quality of the relationship. 

e) Discuss and establish methods for coordinating any assistance volunteered by providers (consultants, translators, technicians, etc.); match services to qualified applicants; broker these relationships and review the operational quality of the relationship.

f) Establish methods for coordinating cooperation among qualified applicants, and assistance volunteered by third parties. g) In cooperation with ICANN Staff and donor experts establish policies and practices for fundraising and for establishing links to possible donor agencies. This activity may include assisting in the establishment of initial relationships with any donor(s) who may be able to help in first round with funding

h) Review the basis of the US$100,000 application base fee to determine its full origin and to determine what percentage of that fee could be waived for applicants meeting the requirements for assistance. 

2. The Working group is asked to present a schedule for the work that allows for completion in time for the opening of the application round, currently scheduled for Q2 2011.

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Charter extension as offered by the Contracted Parties House of the GNSO:

Whereas:

The GNSO Council and ALAC established the Joint SO/AC Working group on support for new gTLD applicants in April of 2010; and

The Working Group has completed the work as defined in its initial charter and published a Milestone report on 10 November 2010 covering those chartered items and including a list of further work items that it recommended further work on; and

In recognition of the ICANN Board’s resolution 2010.12.10 which reiterated its 2010.10.28.21 in response to an Interim report from the JAS WG, which states:

the Board encourages the JAS WG and other stakeholders to continue their work on the matter, and in particular, provide specific guidelines on the implementation of their recommendations such as determining the criteria for eligibility for support.

Resolved:

1. The charter of the Joint SO/AC New gTLD Applicant Support Working Group is extended to include the following limited objectives:

a) Propose criteria for financial need and a method of demonstrating that need. Financial need has been established as the primary criterion for support. The group should seek out expert advice in this area, especially given the comparative economic conditions and the cross-cultural aspects of this requirement.

b) Propose mechanisms for determining whether an application for special consideration should be granted and what sort of help should be offered;

d) Propose methods for applicants to seek out assistance from registry service providers. 

e) Propose methods for applicants to seek out assistance  from other top-level domain consultants, translators, and technicians,  in the application for, and administration of, a new top-level domain)

2. The Working group is asked to present a schedule for the work that allows for completion in time for the opening of the application round, currently scheduled for Q2 2011, in any event no delays for the new gTLD program should result from the working group’s work.

3.  The Working group shall report its results and present a final report directly to the GNSO Council and the ALAC for discussion and adoption, as appropriate, according to their own rules and procedures.

4.  All communication to the ICANN Board regarding the work of this Working Group shall be through the respective SO/AC unless expressly approved by the respective SO/AC.

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Compromise solution offered by NCSG council member and pending a vote.

Whereas:

The GNSO Council and ALAC established the Joint SO/AC Working group on support for new gTLD applicants in April of 2010; and

The Working Group has completed the work as defined in its initial charter and published a Milestone report on 10 November 2010 covering those chartered items and including a list of further work items that it recommended further work on; and

In recognition of the ICANN Board’s resolution 2010.10.28.21 in response to an Interim report from the JAS WG, which states:

the Board encourages the JAS WG and other stakeholders to continue their work on the matter, and in particular, provide specific guidelines on the implementation of their recommendations such as determining the criteria for eligibility for support.

Resolved:

1. The charter of the Joint SO/AC New gTLD Applicant Support Working Group is extended to include the following objectives:

a) Propose the criteria for financial need and a method of demonstrating that need. Financial need has been established as the primary criterion for support. The group should be augmented to have the necessary expertise to make a specific recommendation in this area, especially given the comparative economic conditions and the cross-cultural aspects of this requirement.

b) Propose mechanisms, e.g. a review committee that would need to be established operating under the set of guidelines established in the Milestone Report and those defined in objective (a) above, for determining whether an application for special consideration is to be granted and what sort of help should be offered;

c) Propose mechanism(s) for revenue income and other asset management to support new gTLD applicants who meet the criteria as established in objective (a) of this charter amendment.

d) Discuss with Backend Registry Service Providers the extent of coordination, to be given by Backend Registry Service Providers (e.g. brokering the relationships, reviewing the operational quality of the relationship) and propose methods for coordinating that assistance. 

e) Discuss and propose methods for coordinating any assistance volunteered by providers (consultants, translators, technicians, etc.); match services to qualified applicants; broker these relationships and review the operational quality of the relationship.

f) Propose methods for coordinating cooperation among qualified applicants, and assistance volunteered by third parties.

g) In cooperation with ICANN Staff and donor experts propose policies and practices for fundraising and for establishing links to possible donor agencies. This activity may include assisting in the establishment of initial relationships with any donor(s) who may be able to help in first round with funding

h) Review the basis of the US$100,000 application base fee to determine its full origin and to propose a percentage of that fee that could be waived for applicants meeting the requirements for assistance. Work with the ICANN new gTLD implementation staff to determine how the fee waivers would be accommodated.

i) Design mechanisms to encourage the build out of Internationalized Domain Names (IDNs) in small or underserved languages.

2. The Working group is asked to present a schedule for the work that allows for completion in time for the opening of the application round, currently scheduled for Q2 2011, in any event no delays for the new gTLD program should result from the working group’s work.

ICANN’s GNSO Council is omnipotent!

Sometimes I am slow, but I never realized this before because I always looked at the GNSO council from the perspective of its need to be bottom-up and the notion that all of its policy decisions need to be endorsed by the Board.

But when it comes to its own proceses, as the manager of the processes, there is no way to appeal its decisions.  And even though I was its chair for over 2 years, I only realize this now.  As I said, I can be slow.

The GNSO Council is about to do something I find unthinkable. It is a small thing, but it is the sort of small thing that decreases the credibilty of a body.

So, what is this small thing?  The current council, which ends on 10 December 2010, has decided to elect a chair for the next council. As I said, it is a small thing,  but it is something that the GNSO has never done before, and it is the sort of thing that will make me doubt the legitimacy of the election.  I know, I am being somewhat of a stickler for sticking to the rules and for accepted process, and that can be obnoxious. But I see not reason for the rush of this council to elect the next council’s chair.

In another sense it is a big thing, because it made me realize that when the GNSO council decides to do something like this, there is no way to appeal it and no way to ask for a reconsideration. There is nothing anyone in the GNSO can do, nothing any of the constituencies can do, and nothing the Stakeholder Groups can do.  There isn’t even a method to ask for a reconsideration.

And that is something that needs to be fixed.

Does the subject of Vertical Integration require a policy process?

For the last several months people in and around the GNSO have been discussing Vertical Integration and its cousins; joint marketing, cross/joint ownership, registrars owning registries, registrars selling the names of affiliated registries, etc. This discussion has been full of claims and of counter claims of possible and expected harm, or advantages, to ICANN’s 3Rs - Registrants, Registrars and Registries.

Some have called it the fifth overarching issue.  And some have indicated that even though it is such an overarching issue it should be left to the ICANN Staff implementation team to sort out.  This does not make sense to me.  Certainly it is the ICANN Staff that figures out the implementation once the policy is well understood and there is consensus on that policy. And everyone understands that implementation cannot be totally separated from the policy making process, that there is a give and take. But when implementation encounters policy issues that have not yet been solved, those problems should kicked back to the policy process, not solved with free-form implementation.

With such fundamental disagreements on an issue,  even to the point where the analysis of the current policy and its implications is a point of disagreement, how can the ICANN Staff be asked to sort out the proper policy for Vertical Integration and Joint Marketing etc?  That is not their job.  That is the job of the GNSO.

Again, while talking about implementation detail, we find ourselves in the realm of policy making, or more accurately policy clarification, confirmation and perhaps modification.  We have an 11 year policy that has been interpreted and reinterpreted by people making decisions to try and maximize their business propositions.  At this point we find ourselves trying to make future policy based on contradictory precedent and many conflicting normative interpretations.  There is nothing wrong with this, but resolving the issue is essentially a policy activity and not an appropriate implementation activity.   With the addition of new gTLDs, ICANN is facing many new variations on the registrar, registry, and registry services interrelationship, and needs to make sure that the policy which is implemented is one that is done for the public benefit and is such as to give a proper chance to new entrants. Again, that is the job of the GNSO’s policy development process.

The staff has recommended a blunt tool as a solution: Registrars would be able sell up to 100,000 names of an affiliated Registry’s new TLD.  At first blush this seems simultaneously to be a decent idea and to be contrary to the rules.  And I understand that arguments can be made that it is within the rules, outside the rules or against the rules, depending on your point of view.

The DAG is proposing to solve a multivariate problem with ball park figure.  This does not seem appropriate as it is a one size fits all solution for a problem which all experts, including CRA, agree does not lend its self to a single size solution. Even the ICANN Policy Staff issues report points out that there is no solution fit for all cases. A reasonable assumption is, therefore, that a procedure has to be created for handling the issue in its complexity and not with a single blunt instrument.

The Issue report, indicates that while this issue is in scope for the GNSO, it also comments that perhaps the GNSO is too busy to work on it and should leave it to the staff to take of. To me,  this, would seem to be an abdication by the GNSO of its responsibilities.  If there are policy issues that are within scope, and there is an issue which need to be resolved, then the it is the GNSO’s job to take up the task.  It is the GNSO Council’s job as a manager of the process to figure out how to do that.  The GNSO reorganization was done with an eye to allowing the GNSO more ability to do work, because the council was no longer the the group that needed to do the work. But the council seems to be falling into the trap of thinking that if the GNSO Council is too busy to do the work, then it is better leave the work to the staff implementors.

It seems clear to me, is that there is an issue of a complex historical policy for which there is no consensus understanding.  It also seems clear that the process defined in the DAG is a change in policy - and a change in policy can only be effected through a proper GNSO policy development process - the bylaws mandated PDP.  That is, the GNSO has a PDP to do.

Some have argued that if the GNSO takes up the issue, it will play into the hands of those who want to stop new TLDs.  I think this is just sowing FUD (Fear, Uncertainty and Doubt).  There is no reason to beleive this because the GNSO has shown that when the problem is important enough, it can rise to the challenge and come to consensus on a solution within a reasonable time frame.

I personally believe that a solution is needed that will allow lower entry barriers for newcomers who deserve such consideration according to a predefined set of criteria.  I also believe that there will be boutique or single user TLDs that would reasonably benefit from an exception from the rules regarding who can sell TLDs and when.  I do not think, however, this is a policy that should be hacked* together by the implementation team.

*hacked used in the sense of a software engineer who decides to just ‘hack’ some code instead of going back to the designers for a rethink.

On ICANN and the Policy Staff yet again:

I thought my days of frustration with the ICANN Policy Staff as a controlling group as opposed to a supporting group where at an end when my term as chair of the GNSO council ended.

Then I got involved in some of the GNSO ‘improvement’ committees and some of the work teams.

Then I got involved as a member of the Executive Committee of the new Non Commercial Stakeholder Group.

And then I found out how wrong I was.  So after a long vacation from blogging on ICANN (or anything else for that matter) I have decided it was time to get back to writing.

Instead of becoming a more supportive organization because of the reforms to make the GNSO a manager of the policy process operating in the public interest, they have ratcheted up their quest for complete control over the process.  This despite the fact that the Strategic plan still talks about support for Supporting Organizations - not control of Supporting Organization.  This was seen in the Policy Staff’s initial declaration that it was Staf who decides whether a group in the GNSO could have a face to face meeting - a claim that was fortunately successfully challenged by the GNSO council, and can be seen in the continuing effort by the Policy Staff to supplant the bottom up process in the Stakeholder groups with their own rules and by forming their own constituencies.

The issue at point in this blog contribution is that Policy Staff has a continuing policy of championing the formation of a new Consumer Constituency without any consultation with the Non Commercial Stakeholder Group (NCSG).  In itself, getting the Consumer Protection Groups involved in ICANN is a very important goal - in fact several such groups are already involved.  It is a goal many of us strongly support - whether we call it a constituency or an interest group*.  But, even though the Board had required that any new constituency work with the new NCSG and its Executive Committee (NCSG-EC - a committee formed under the rules set by the ICANN Board of Directors) the Policy Staff persisted in asking the Board to vote on a new constituency that has not had contact with the NCSG, its existing consumer protection members or the NCSG Executive Committee.  Instead of making sure that the new constituency worked closely with the Board appointed GNSO Council members and NCSG-EC member responsible for helping to create a consumer constituency, it continues to work behind the scenes and with either no or minimal contact between those it is recruiting to this new constituency and the Board empowered NCSG EC and GNSO Council member.

The Policy Staff should be acting as an enabler - helping to bring the new consumer agencies into the NCSG instead of working to thwart the new Stakeholder Group’s formation process or attempting to shape this new Stakeholder Group into an image that is pleasing and compliant to the Policy Staff.  The NCSG was created by the Board and despite having had to accept conditions not of its own choosing, is working within those constraints to build up the representation of Non Commercial Stakeholders in the GNSO process.    The NCSG is ready, in fact eager, to receive applications from any non commercial group interested in joining the NCSG and joining its work to make ICANN a more non-commercial friendly organization.

The NCSG is also ready to work with the Policy Staff - if only the ICANN Policy Staff was willing to work with us in a support of a bottom-up process instead of continuing in its attempt to impose its own agenda.  One has to wonder whether it will ever be possible for the Policy Staff to change its ways and become a supportive organization without a change in its executive leadership.  There are many good and talented people in the Policy Staff who I am sure are eager to work in a fully supportive role to the volunteer corps - if only the person they were forced to ‘obey or else’ was not their boss - some (names withheld to protect the employees) have even told me so.

I continue to hope that in this new age of ICANN, the ICANN of the Affirmation of Commitment a document that according to the ICANN CEO “cements the ICANN multi-stakeholder bottom-up model,” that we will see a change.

But as time goes on, my ability to hope is certainly being challenged.

(this was originally drafted on 8 Dec 2009, but then forgotten until today (26 Dec 2009 when it was updated)

* The issue of whether the NCSG has formal constituencies like the Commercial Stakeholder Group or Internet Groups like the Registries Stakeholder Group and the registrars Stakeholder Group is an open issues that has proponents on both sides of the issue.  what is agreed by most participants is that the activities involved in forming a Interest-Group/constituency are pretty much the same: first you organize, then you become active in the GNSO’s policy work, and then you get official status.

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.

——-

* 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.

Why I joined the NCUC in ICANN

It had not been my intention to join the Non Commercial Users Constituency (NCUC).  In fact I had opined to quite a few people that I never ever would join the NCUC.

I had actually been planning on trying to form an Individual Professional Registrant’s Constituency (IPRC), because I think one is very badly needed.  A constituency were artists, engineers, writers and other independent professionals who were registrants of a domain name they used to advertise themselves and their services could represent their needs.  No matter what anyone may tell us, the interests of these professionals are not covered by the existing commercial constituencies (and there are a lot of commercial constituencies - in fact all but one, a 5:1 ratio of constituencies are commercial of one sort or another).  As a protocol architect of both technical and governance systems, I often sell my services as a free lance professional and I have a domain name I use for the purpose - in other words I am a Independent Professional Registrant. and I do hope someone, someday does form an IPRC.  But it won’t be me.

I should also indicate why, though I felt qualified to start an IPRC within the Commercial Stakeholder Group of the GNSO, I still felt entitled to join the NCUC.  I have long felt an affinity for the NCUC - I am even a member of or a contributor to several of the organizations that are members of the NCUC.  But more then that, as a part time faculty member of a university that was not about to join the NCUC, I was qualified to become an individual member of the NCUC.  But as I said above, I did not plan on it.

Also, I had not really planned to do anything until after I finished my term as a Nomcom appointee to the GNSO council and my term as the chair of that council in October 2009.

But the situation inside ICANN became so intolerable I felt I had to take a stand.

For over a year now, the GNSO has been going through a Board initiated restructuring and reorganization of the GNSO and its council.  This has been a painful and difficult exercise for everyone.  Part of the process included having the 6 existing constituencies reform into 4 stakeholder groups.  Part of the restructuring also includes some reapportionment of seats on the GNSO council to redress the balance of representation and move from a situation where there were 5 assorted commercial constituencies to 1 non commercial constituency to a situation with 3 assorted commercial stakeholder groups to 1 non commercial stakeholder group.  One could wonder why 3:1 was considered fair, and while it is a good question, and one I might explore at some point, it is the not the point of this blog.   Certainly 3:1 was closer to fair then 5:1 had been.  Some, however, found this reapportionment intolerable and did all they could to keep it from happening. The story of how the organizations within what is to become the Commercial Stakeholder group did all they could to stop the reapportionment, might also make a good blog (but what do I know? I am new to blogging. I haven’t even read many blogs), but not today because it was not the reason I joined NCUC.

As part of this exercise NCUC had, therefore, been working on developing a charter for the Non Commercial Stakeholder Group.  They had worked hard on this for almost a year and had achieved rough consensus within the group for a charter.  Yet, even though this charter had the support of most all of the members of the NCUC and strong support from the Civil Society organizations and the Non Commercial community, it was thrown out by ICANN Policy Staff, a move that was supported by the Board.  I saw this as unjustified, and unjust. But still that was not enough to motivate me to join the NCUC.

The ICANN Policy Staff then went further and decided to ignore the comments  that came in during the review period against what they had done in creating a replacement charter. They said many of the comments were not valid because they had been sent as part of a letter writing campaign. But this same ICANN Policy Staff had told the NCUC to get these letters in a sequence that went something like this:

• A great number of organizations wrote in during the first public comment period indicating their strong support for the bottom-up charter created by the NCUC.
• After that bottom-up charter created by the NCUC was summarily replaced by the top-down charter written by ICANN Policy Staff, that new top-down Policy Staff written charter was put out for a public comment period.
• At a meeting one of the NCUC GNSO council members asked the ICANN Policy Staff if the great outpouring of support that had been received in regards to the discarded bottom-up NCUC written charter would be taken into account when reviewing the new top-down ICANN Policy Staff written charter.
• The answer was “no.”  They were told that if there were comments regarding this new top-down ICANN Policy Staff written charter they needed to get those people to write again.
• So the call went out to everyone - please review the new charter and send in your comments.
• And when the comments came in, they were rubbished because they had been solicited.
• And then the Board rubber stamped it.

The utter cynicism and disregard for ICANN bottom-up process and the importance of respecting public comments that was displayed by ICANN Policy Staff, and endorsed by the Board, in this sequence of events, and in fact in the whole sorry affair, left me with little choice but to support those who had followed the rules and the procedures and then been shafted.

As the chair of the GNSO council, I have attempted to faithfully and neutrally adhere to and enhance the rules and procedures as well as the spirit of bottom-up processes in ICANN. I feel compelled to support those who are being injured because the ICANN Policy Staff, endorsed by the Board, was transgressing against the rules and procedures as well as the spirit of ICANN.

So I joined the NCUC.

I do not plan for my support to consist of mere body count. I plan to be active and do all I can to make sure this wrong is redressed and the injury repaired.

My history tells me I can be relentless at times.

If that is so, I plan to be relentless this time.

——

Glossary for anyone who reads this (not that I really expect many will) and is not trained in the arcane alphabet soup:

ICANN - Internet Corporation for Asigned Names and Numbers

IPRC - Independent Professional Registrant Constituency - A part of the commercial User Stakeholder Group that does not exist, but in my opinion should exist.

GNSO - Generic Names supporting Organization, part of ICANN

NCUC - Non Commercial Users Constituency, part of the GNSO

Nomcom - the group within ICANN that chooses some of the Board members and Organization members such as GNSO Council members in lieu of elections.  The subject of elections in ICANN is an old sore chestnut that I may blog on someday. But not today.