IP Justice Statement on “GNSO Improvements” at ICANN

IP Justice Statement on ICANN Board Governance Committee Report
on
GNSO Improvements

5 November 2007

Laudably, the BGC report recommends replacing the current GNSO constituencies with four more-broadly conceived constituencies, each of which would receive and equal vote. The new constituencies would be Registries, Registrars, Noncommercial Users, and Commercial Users. This would consolidate the Commercial & Business, Intellectual Property, and Internet Services & Connection Providers constituencies into a single Commercial Users constituency. Since the interests of these groups already are virtually identical and they already act as a cohesive voting block, consolidating them will serve to avoid double representation of certain stakeholders and will serve to more fairly balance the voting in the GNSO. This re-balancing of the interests within the GNSO is critical to ensuring that ICANN not be unduly dominated by any single interest and that the rights of the billions of non-commercial users of the Internet is adequately taken into account in ICANN policy. Duplicative constituencies and weighted voting are perhaps the clearest ways in which unrepresentation of non-commercial users can occur. Consequently, it is imperative that these practices be ended and that GNSO Council representation reflect a fair balance of interests in ICANN decisions.

The proposed restructuring of the GNSO constituencies also has the advantage of creating greater accessibility to the GNSO by new stakeholders while keeping the GNSO Council at a manageable size. The broad constituencies proposed in the BGC report would provide a balanced representation for all users of the Internet. Any new stakeholder wishing to become involved with the GNSO would find a group through which they could become involved and represented without going through the onerous process of creating a new constituency.

The new constituencies also serve to reduce the size of the GNSO council, and thus will serve to increase efficiency and streamline discussion. The BGC report proposes a council size of nineteen. This may, however, still prove unwieldy. If each constituency elects three council members, rather than four, the size will drop to a more manageable fifteen. Given the breadth of the new constituencies, this figure will be unlikely to expand because newly interested parties will have the existing constituencies available to them.

In establishing the new constituencies, it is important that they be structured in a way that adequately reflects their intended breadth. Since individuals will be represented not as a distinct class but rather according to their interest, the new constituencies must ensure that their practices and fees do not erect unreasonable barriers to individuals. If, for example, the new Commercial Users constituency were to charge fees equal to those currently charged by the Business Constituency, it would prove an excessive obstacle to the majority of Internet start-ups, sole proprietors, or small businesses.

Policy Development Process (PDP)

The BGC report indicates that the ICANN contracts stipulate that the procedure for creating consensus policies will be contained in the ICANN bylaws. While this may prevent the optimal level of flexibility, the bylaws can and should be crafted with an eye towards flexibility. The Board should not be allowed, however, to reject GNSO policy recommendations that the Board considers to be “non consensus” policy issues. The GNSO Policy Council is and should remain the primary organ responsible for developing policy at ICANN. The GNSO Policy Council serves an important check on the power of the ICANN Board of Directors, who may be less in touch with the concerns of the constituencies. IP Justice disagrees with the BGC report and its attempt to transform the GNSO Policy Council away from a policy decision-making body and more towards an “manager” of the policy development process at ICANN. That repurposing of the GNSO Council would be a tragic mistake since it would remove another check on a policy development system that is necessary to ensure fair and adequate representation.

Rather than disempower the GNSO Council, the Board should take immediate steps to facilitate the participation of all GNSO Councilors at ICANN policy meetings by funding their reasonable travel costs. The Board should also amend the bylaws so as to permit proxy voting by GNSO Councilors who are unable to be physically present at a GNSO meeting.

Working Groups

The BGC report recommends that task forces be abandoned in favor of working groups. The BGC stresses that the current task force model duplicates the same policy discussion at the task force as at the Council, and that the prospect of a vote inherently polarizes the discussion at the earliest stages, inhibiting a more thorough discussion. To this end BGC recommends that these groups be made up of any interested stakeholders, operate on consensus, and not have their decisions subject to review by the GNSO Council. This proposal goes too far and ignores the inherent value of the review and vote by the GNSO Council. It also ignores the reality that consensus cannot always be reached (whois).

The selection of the constituencies who are represented on the GNSO Council is a deliberate choice to balance the interests of the wide body of individuals interested in ICANN policies. Great attention has been given to the restructuring of the GNSO constituencies precisely because this balance is so important. A supermajority vote by the GNSO Council assures that support is broad enough to justify action by ICANN. This gate-keeping function ensures that no working group is unduly dominated by one interest and allows GNSO Councilors to protect the interests of stakeholders who may be unable to be intimately involved in every working group.

This function is especially important considering that a direct stakeholder system with no fixed proportion of representation may be vulnerable to stacking by the wealthy stakeholders who can afford to participate to a greater extent. This tactic was recently used by Microsoft in attempting to gain rapid approval of its OOXML format. In that case, standards setting organizations such as the Swedish Standards Institute and the International Organization for Standardization saw their membership swell just before the vote. Though a consensus system would prevent workgroup stacking from realizing absolute control over a vote, stacking may still unduly dominate discussion or influence the chair. Since true consensus is not required, only “rough consensus,” a dominant faction could still stack a WG and claim that it had achieved agreement from “almost everyone.”

ICANN has already experienced precisely this problem with the recent unsuccessful WHOIS working group. In that case, a disproportionately large number of trademark attorneys attended each conference. Because of the contentious nature of the issues involved, the process dragged on, and the chair ultimately allowed the trademark interest to control the result. In instances such as this, where one interest finds it cost effective to be overrepresented in the Work Group, the vote by the GNSO council is not redundant but instead a necessary step to prevent misuse. While the BGC is correct that replacing the current task force model can improve inclusiveness, increase efficiency, and may potentially decrease polarization, it is a mistake to remove review by the GNSO Council merely because it involves a vote. So long as the Working Group possesses the proper structure and culture to encourage compromise and craft a balanced proposal, then a vote by the Council will merely serve to ensure sufficiently broad support and need not inhibit compromise.

Consensus

The BGC report focuses strongly on eliminating or minimizing voting and replacing it with a consensus system of decision-making. The report espouses the belief that a focus on voting results in less compromise, distracts the GNSO with politicking, and ultimately results in deadlock or empty decisions. It asserts that a consensus system will be more inclusive, and leads to results more palatable to each party. While these goals are laudable, the BGC report does not adequately recognize the problems inherent in using a consensus system in this context, and does not adequately deal with the reality that consensus between competing parties is not always possible; sometimes a vote is both necessary and desirable.

The same feature which makes consensus so effective at eliciting compromise is also its greatest danger. In consensus every decision is threatened with deadlock. While this assures that all concerns will be addressed thoroughly, it can result in complete stagnation where two fundamentally irreconcilable positions are represented. In standard setting organizations, such as IETF, this danger is less significant because it is a more homogeneous community, and since standards must be voluntarily adopted by the industry, the working group’s decisions will require near unanimous support in order to be effective anyway.

In a regulatory organization such as ICANN, however, the risk of irreconcilable deadlock is far greater. Under the BGC proposals, the GNSO constituencies would represent every user of the Internet. Such a diverse group of stakeholders will inevitably include two parties with irreconcilable disagreement over an ICANN policy. Since certain stakeholders may be contractually bound by ICANN decisions, these disagreements may stem from countervailing economic interests, and hence it may be impossible to sway a blocking party through discussion or compromise.

These conflicts of interest lead to a special problem where one party is best benefited by no action. Whereas some organizations may have some assurance that all parties will be interested in any action, no such guarantee exists in ICANN. Consequently, any stakeholder interested in the status quo will have an incentive to block any action. Offers to compromise by the majority will necessarily be ineffective because the party interested in the status quo already has the best possible result. In such a scenario, the only recourse that may be left to the majority is for groups represented on multiple working groups to offer concessions to the holdout on unrelated issues in other working groups. Such gamesmanship could ultimately prove more polarizing than voting and would create a perverse incentive to block certain working groups in order to maintain bargaining chip.

It is further important to note that, even where working as intended, a consensus system may not arrive at the most desirable or best result. Specifically, it may give undue influence to a small, radical, and vocal minority. This problem is best understood in the working group context by assuming that each member of the working group represents a class of stakeholders. In compromising to appease a radical minority, each member may lose the support of some of the stakeholders he represents. In aggregate, these stakeholders may outnumber the stakeholders who the minority member represents. Consequently, the final compromise can enjoy less overall approval than what would have been agreed to by a supermajority. While this phenomenon is only a potential problem where the number of holdouts is particularly small, it is especially relevant here because proposes alternate system include supermajority of two-thirds or three-fourths. The essential structural difference between consensus and a supermajority vote is the treatment of small vigorous dissent.

Conclusion

The GNSO is structured to attempt to resolve the interests of a wide variety of stakeholders. The BGC proposal to restructure the GNSO constituencies into 4 main constituencies is a critical step towards a fair balancing of these interests and improves the ability of new stakeholders to obtain representation at ICANN and the GNSO. This restructured Council, however, will only be able to adequately balance these interests if it continues to serve a gate-keeping function and review the proposals created by the workgroups. Moreover, since some of these interests may ultimately prove irreconcilable, it is important that a single interest not be allowed to veto policy decisions.

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Note: ICANN is accepting comments on the BGC Report via email to gnso-improvements@icann.org,which can be viewed at http://forum.icann.org/lists/gnso-improvements.