Is ICANN Accountable to the Global Public Interest? ICANN Ignores Noncommercial Users in Policy Development Process

Is ICANN Accountable to the Global Public Interest?

ICANN Ignores Non-Commercial Users in Internet Policy Development Process

By Robin D. Gross, IP Justice*
13 July 2009

Everyone is a Noncommercial User of the Internet

NCUC logo

The Non-Commercial Users Constituency (NCUC) is the home to noncommercial users in ICANN's GNSO policy development process. NCUC represents 112 members from more than 40 countries, and includes large organizations, small nonprofits and individuals committed to developing Internet policy that protects the rights of noncommercial users. NCUC is concerned with a broad range of issues including human rights such as freedom of expression and privacy protections, educational needs such as those of libraries or academic institutions, and concerns from community and religious organizations, consumer rights groups, and other noncommercial interests related to Internet governance. (All noncommercial organizations and individuals are invited to join NCUC).

In today's world, everyone is a noncommercial user of the Internet at one point or another of their day. This noncommercial interest, is an important interest which we all share, regardless of what we do for a living or the fact that we also use the Internet for commercial purposes. We are also noncommercial users and want our ability and right to use the Internet for noncommercial purposes to be protected in ICANN policy negotiations. This objective is in everyone's interest, so it should be respected throughout ICANN's policy development process and governance structures.

Restructuring ICANN's GNSO Policy Development Framework

ICANN's Generic Names Supporting Organizations (GNSO) is the supposedly "bottom-up" process that allegedly provides ICANN with legitimacy to make and enforce Internet policy decisions. ICANN's GNSO is responsible for making policy recommendations to ICANN's Board of Directors regarding policies covering all generic top-level domains (such as .com, .edu, .org, .net).

Presently GNSO policy recommendations are negotiated among competing interests or 6 distinct "constituencies". However, the GNSO is the process of restructuring and reforming its membership away from 6 arbitrary and out-dated "constituencies" and into 4 distinct "stakeholder groups": i) noncommercial users; ii) commercial users; iii) registrar companies; and iv) registry companies.

Board Appointed (top-down) vs. Elected (bottom-up) Representation on GNSO Council

Noncommercial users have been fighting for years to obtain parity with commercial users in the GNSO policy development process at ICANN. A 2006 report by the London School of Economics found ICANN undervalues noncommercial interests in the policy development process (5 specialized commercial constituencies vs. 1 noncommercial constituency to represent all noncommercial interests). In February 2008 the Board Governance Committee Report also recognized this imbalance and the need to address it in order to protect noncommercial interests in ICANN policy development. As a result, the ICANN Board approved a major shift for ICANN's GNSO by deciding noncommercial users should finally be given parity with commercial users in the GNSO policy development process.

Specifically, beginning with the Seoul ICANN Meeting in October 2009, noncommercial users and commercial users are each supposed to have elected 6 representatives to the GNSO Council. However, as a result of back channel lobbying by the commercial constituencies who lost the advantage in numbers of councilors, the 3 new GNSO Council seats that should have gone up for election to noncommercial users, will instead become board appointments in the initial term. This shift raises concerns that the noncommercial GNSO Council appointments will neither be representative of nor accountable to noncommercial users (the purpose of an election). Instead, the noncommercial council appointments become the subject of intense lobbying by commercial actors clawing to get those council seats back.

Despite the lack of any support from ICANN, NCUC's membership has grown by more than 150% since 2008 when parity between commercial and noncommercial interests was established by the Board Governance Committee. Yet despite the significant increase in participation from noncommercial users, the "parity principle" has lost support from the board, who now may deny the new noncommercial membership elected representation on the GNSO Council.

Development of Consensus for Charter for Noncommercial Stakeholder Group (NCSG)

In April 2009 noncommercial users responded to ICANN's call for public comment on how to design a stakeholder group charter to maximize the effectiveness of noncommercial users in policy development and encourage the broadest range of participation from the most diverse viewpoints. The answer was clear: noncommercial users overwhelmingly supported a stakeholder group charter that encourages cooperation between constituencies, the charter proposed by the NCUC.

NCUC's charter was developed by a multi-stakeholder process that involved months of open consultations, dozens of participants, numerous discussions with ICANN board and staff, At-Large members, existing noncommercial participants at ICANN and prospective noncommercial participants.   NCUC's charter went through significant modifications in response to public feedback, including more than half a dozen distinct public drafts, before reaching a consensus on the final charter submitted for a Non-Commercial Stakeholder Group (NCSG).

In addition to NCUC's membership, ICANN's public comment period on the stakeholder group charters brought additional support to the NCUC charter, including support from over 63 organizations and dozens of individuals from all corners of the globe.

Public Comment Against a Charter that Would Stranglehold Noncommercial Users

Two competing proposals, vastly different in their substance and effect, were submitted to ICANN to charter the new Noncommercial Stakeholder Group (NCSG). In addition to the charter supported by civil society from NCUC, another proposal was submitted from CP80, an Internet pro-censorship group led by Cheryl Preston, Ralph Yarro III (SCO Chairman), and Debra Peck out of Salt Lake City, Utah.

Outside from the drafters of the CP80 petition, not a single public comment argued in support of the CP80 proposal or its governance model during ICANN's Public Comment Period. The lack of public support for the CP80 "constituency-based" voting model is not surprising since its provisions would stranglehold noncommercial users in endless competition among factionalized constituencies, constantly fighting over scarce resources and representation on ICANN's GNSO Council.

NCUC's charter encourages noncommercial users to work together toward shared goals, while the CP80 model keeps noncommercial users constantly fighting over their differences, and ultimately ineffective at influencing policy decisions at ICANN.

Noncommercial Organizations Unanimous in Favor of Joint Civil Society Proposal

During ICANN's April 2009 Public Comment period, a total of 23 distinct comments from organizations and individuals were submitted on the topic of stakeholder group charters. Several of these comments were signed by dozens of noncommercial organizations and individuals, increasing public participation by much more than 23 comments would initially imply. However of these 23 comments, the only 2 to argue in favor of the CP80 proposal to hard-wire GNSO Council Seats to constituencies were the drafters of the proposal themselves. No one else.

As many commentators noted, CP80's proposed "constituency-based" structure would stranglehold noncommercial users and discourage consensus building and cooperation among competing constituencies. The "constituency-based" voting it proposes creates a constant zero-sum struggle between noncommercial constituencies, rendering the entire Non-Commercial Stakeholder Group ineffective in ICANN policy development.

In stark contrast to the lack of any support for the CP80 model, more than 63 organizations and 55 individuals submitted comments in favor of the joint civil society charter that provides for a democratic vote of all its membership to elect representatives to serve on the GNSO Council.   Every single noncommercial organization who submitted a public comment on the topic argued against the stranglehold charter model proposed by CP80 and in favor of the cooperation charter submitted by noncommercial users and created through a consensus process.

ICANN Defies Public Comment and Imposes Stranglehold Charter Model

What did ICANN do in response to the public comment it received and the global consensus against the stranglehold charter model proposed by CP80? ICANN adopted the stranglehold charter model for noncommercial users, defying the unanimous public support expressed for the charter drafted by noncommercial users that was created through a consensus process. The ICANN drafted charter forces noncommercial users into arbitrary and competing constituencies -- and it does not permit them to vote as an entire stakeholder group, the one thing noncommercial users were clear in the comment period about needing for noncommercial users to have any chance of influencing policy at ICANN.

Welcome to "bottom-up" policy making at ICANN: where participants are invited to build a "consensus" among a broad range of interests, only to have that consensus discarded by ICANN as a result of relentless insider back-channel lobbying from special interests.

Apparently we noncommercial users wasted our time building consensus among global civil society and participating in a public discussion forum, when we should have been lobbying ICANN board members and ICANN executive staffers -- since that seems to be the only channel of public input ICANN feels accountable to.

Obviously, noncommercial users will never be able to effectively participate in a policy development forum that is predicated on and dominated by insider lobbying from entrenched commercial interests.   ICANN's Board of Directors has a responsibility to the global public interest to ensure noncommercial interests can play a meaningful role in ICANN policy development despite its lack of economic backing. Unfortunately protection for noncommercial interests is systematically being squeezed-out of ICANN's policy development process by commercial interests.

ICANN's Sneaky Move to Keep Plans Hidden

On 23 June 2009, when ICANN finally released its proposed charter to noncommercial users, in addition to the charter being an entirely different structure than the one created by the consensus process, ICANN's charter also omitted to include the most important section 5 which deals with management of the NCSG and in particular, representation on the GNSO Policy Council.

Only after explicitly requesting to see the omitted section, was NCUC provided section 5 from ICANN with the understanding that it is staff's proposal for governing the NCSG. One will not find ICANN's proposed section 5 in its NCSG charter published on the ICANN website, but it can be read here -- and it must be read together with the ICANN-drafted NCSG charter for it be clear what sneakiness is at play.

Specifically, the ICANN-drafted section 5.1.1 envisions a situation in which "GNSO Council vacant seats shall be allocated between its Constituencies" -- exactly what noncommercial users said would render them ineffective and in constant battle among themselves for those council seats. Section 5.2 of the ICANN-drafted charter continues with an absurdly complex exercise of constituencies pitting their candidates against other constituencies and engaged in a continuous war to get their candidate on council.

Exactly the stranglehold governance structure that noncommercial users uniformly rejected in April, ICANN intends to march ahead with at full steam and impose on noncommercial users. But not transparently and not in a manner that conveys its clear intentions to the public so those affected may provide feedback.

ICANN-approved constituencies will replace bottom-up representation on the GNSO Council according to the ICANN-drafted charter for noncommercial users. [Contrast that treatment with section 4.2 of ICANN's proposed charter for the Commercial Stakeholder Group, which grants anyone of the existing 3 commercial constituencies an automatic right of veto to keep a new commercial constituency from representation on the GNSO Council -- even if the ICANN Board approves the constituency and places it in the Commercial Stakeholder Group.]

It is unclear what the status of the NCSG charter section 5 is, since it has been omitted from the official charter posted to ICANN's website. The hidden section 5 is not something ICANN can impose on users at this time, since it isn't included in the official version, but it does signal the direction in which ICANN is heading and why noncommercial users must stay engaged.

When asked at the 23 June 2009 ICANN meeting why didn't staff listen to non-commercial users in the public comment period about how they want to elect their GNSO Council Representatives, ICANN spokesman Ken Bour frankly said that ICANN staff adopted the constituency-based charter "because it is what staff wanted all along".

Tell ICANN to Listen to Noncommercial Users and Protect the Public Interest

The message is clear. ICANN has forgotten who it works for - us - Internet users - including noncommercial users. Now is the time to remind ICANN that it must be accountable to the global public interest or it has no business in Internet governance.

Tell ICANN to listen to noncommercial users and not to impose the stranglehold charter on noncommercial users against our will. Send an email to gnso-stakeholder-charters@icann.org (until 21 July 2009) and ask that noncommercial voices be heard in Internet policy decisions. Send a copy of your comment to your local Congressman or Member of Parliament to keep them informed about ICANN injustices to noncommercial users. You can also file a complaint over ICANN injustices with the ombudsman, who is supposed to keep the organization accountable to the public.

Thomas Jefferson noted that the exercise of political power without the consent of the governed is illegitimate.

ICANN's attempt to impose a governance structure on noncommercial users against our will calls into question ICANN's legitimacy to govern; it undermines confidence in ICANN's commitment to democratic values; and it appears ICANN is unable to protect the broader public interest against commercial pressures.

We must remind ICANN to protect the public interest and the rights of noncommercial users - all of us. Send a quick email to gnso-stakeholder-charters@icann.org today to remind ICANN who they work for.

All noncommercial organizations and individuals are invited to join NCUC.

More Background Information: