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
Users Constituency (NCUC) is
the home to
noncommercial users in ICANN's GNSO policy development process.
NCUC represents 112
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
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).
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
Noncommercial users have been fighting for years to obtain parity with
commercial users in the GNSO policy development process at ICANN.
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
ICANN's GNSO by deciding noncommercial users should finally be given
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
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
150% since 2008 when parity between commercial and noncommercial
interests was established by the Board Governance Committee. Yet
the significant increase in participation from noncommercial users, the
"parity principle" has lost support from the board, who now may deny
noncommercial membership elected representation on the GNSO Council.
Development of Consensus for Charter for Noncommercial Stakeholder
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
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
response to public feedback, including more than half a dozen distinct
public drafts, before reaching a consensus on the final
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
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
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
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
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
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
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
to noncommercial users, in addition to the charter being an entirely
different structure than the
one created by the consensus
charter also omitted to include the most important
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
5 from ICANN with the understanding
that it is staff's proposal for governing the NCSG. One
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
in a manner that conveys its clear intentions to the public so those
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
Board approves the constituency and places it in the Commercial
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
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
Tell ICANN to Listen to Noncommercial Users and Protect the Public
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
to listen to noncommercial users and not to impose the stranglehold
charter on noncommercial users against our will. Send an email
(until 21 July 2009) and ask that noncommercial voices be heard in
Internet policy decisions. Send a copy of your comment to your
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
We must remind ICANN to protect the public interest and the rights of
noncommercial users - all of us. Send a quick email
today to remind ICANN who they work for.
All noncommercial organizations and individuals are invited to join NCUC.
More Background Information:
Internet Governance Project's "Field Guide to ICANN Reforms"
Compare what ICANN did to the Noncommercial Users Charter to what it
did to the other Stakeholder Group Charters:
* Ms. Robin D. Gross is the Chair of ICANN's
Non-Commercial Users Constituency and Executive Director of IP Justice