Hi Roberto, May I just correct once again one whopping bit of bad info, please. On Oct 17, 2009, at 8:16 AM, Roberto Gaetano wrote:

Beau,

...

By the way, is it true what I heard that the three newly appointed GNSO people have now been hard-wired in to two-year terms? I don't really see a constituency model working under those circumstances. Who's going to join a constituency if they have to wait two years to be able to directly elect a representative? No consumer group I am aware of is going to want to do that.

I think that we will need to clarify many things in Seoul, one of which is the reason for certain decisions of the SIC.

For instance, the SIC has decided, after long discussion, not to have an automatic link between creation of a constituency and establishment of a seat in the Council. The reasons against this position include what you correctly point out, i.e. that it will be more difficult to get people's interest if there's no immediate representation in terms of voting rights. However, there are also reasons for taking this approach. One of these is that we have to avoid the "frivolous" creation of constituencies for the simple purpose of getting a vote. A bit like create empty shells as registrars to have a higher firing power for getting valuable names. Another observation is that in the "old" council it was exactly the fact that the creation of a new constituency would have altered the voting balance that de facto prevented the creation of any new constituency in 10 years.

But the main point for the SIC to maintain the concept of constituency, against the open opposition of NCUC, but to keep it without an automatic

NCUC is NOT and has NEVER been against the concept of constituencies, period. I do not understand what the purpose would be in telling ALAC people something about NCUC that is patently untrue, but it really does not facilitate trust building and the collegial resolution of the issue. The charter NCUC submitted, and which you set aside without comment, has an page of clear language about the formation and operation of constituencies in Section 2.3. http://gnso.icann.org/files/gnso/en/improvements/ncsg-petition-charter.pdf I would encourage you to read it if you have not. A few key bits of note include: ------------- *Constituencies are self-defined groupings of NCSG members organized around some shared policy goals (e.g. consumer protection, privacy); shared identity (e.g., region or country of origin, gender, language group); type of organization (e.g., research networks, philanthropic foundations) – or any other grouping principle that might affect members’ stance on domain names policy. *There is no requirement that NCSG members join a constituency. *When at least 3 organizational members or at least 10 individual NCSG members volunteer to join the Constituency on the public list within two months of the publication of the notification of intent the prospective Constituency becomes eligible to schedule a meeting (which can be either in person or online). *The eligible constituency holds a public meeting(s) to draft a charter and appoint an official representative of the constituency. The meeting(s) can be online but must be open to observation by the general public. *The proposed constituency charter is submitted to the NCSG Policy Committee for ratification. *Once accepted by the PC the constituency application will be sent to the ICANN Board for approval. The Board shall also serve as the vehicle for appeals to NCSG decisions on the recognition of a constituency. *Constituencies have a right to: 1. Place one voting representative on the Policy Committee; 2. Delegate members to GNSO working groups and task forces; 3. Issue statements on GNSO Policy Development Processes which are included in the official NCSG response, but marked as constituency positions, and not necessarily the position of NCSG as a whole. ------------- I do not know how this possibly can be characterized as opposition to the concept of a constituency. The principal difference with the charter you've imposed on us, as we've explained time and again, is that we do not think it wise to set up constituencies as purely self-regarding silos that compete against each other for council seats, recognition and influence, and thereby spend their time fighting and jockeying for position rather than working together to advance noncommercial public interest perspectives in ICANN. We think it is better for constituencies to collaborate in an integrated community. Hence, we did not think it sensible to hard wire council seats (which would get absurd if the number of constituencies exceeds six, as it hopefully will...we're glad you agreed on this), and instead suggested that GNSO Council Representatives be elected directly by all NCSG members in an annual SG-wide vote. To secure a council seat, a constituency on consumer protection, registrants, privacy, gender, freedom of speech or whatever else would simply have to be a vibrant group that puts forward a candidate and vision that others find persuasive. Given that noncommercial people tend to share certain broad values and priorities, I'm hard pressed to imagine that, for example, a solid consumer constituency that actually comprises noncommercial actors and advocates for the public interest would have a hard time getting support from people who care about privacy, speech, and so on. So it'd be a matter of persuading colleagues rather than having a birthright fiefdom within which one does one's own thing and ignores everyone else. We understand that questions have been raised about voting formula and whether it might make sense to put in place mechanisms to prevent the 'capture' of the council, and we've said we're open to viable suggestions on that score. Have yet to hear one. One might add that if NCUC's proposed charter had been approved and constituency formation were made as easy as we'd hoped, the NCUC itself would have ceased to exist, and those of our current 80 organizational and 87 individual members who wanted to off and form constituencies on privacy, gender, or whatever else would have done so. So there'd be no NCUC to be capturing anything in the first place. In contrast, under the SIC charter, NCUC would be nuts to disband, inter alia because it'd leave our members homeless, especially the individuals. Hard to see how that would be good for ICANN.

voting power, against the obvious concerns of who wants to build new constituencies, is the leit-motiv that has guided the whole process of the review: move the focus away from the vote, which is by its nature divisive, onto the consensus building process. New constituencies will not have the right to appoint their "own" councillors, but will have the right to participate in WGs and other policy making processes and bodies, will have support from ICANN staff and resources to self-organize, will be able to participate with their own representatives in the Executive Committee of the NCSG, etc. In simple words, what we have tried to do is to create a balance and hopefully a possible way to coexist and, in time, to collaborate, for all the different components of the wide and diverse non-commercial internet community. Somebody on this list has spoken about "reconsideration" of the Board's decision. This is surely possible. But what I would propose is to try to discuss and understand if what the SIC has proposed can work in practice, although it is not going to be perfect for anybody, before shooting it down and start all over again. This discussion is for me one of the main priorities, if not the first priority altogether, in Seoul, which as you all know will mark the end of my term as Director.

The ALAC and the NCUC are two big parts of this picture, the only organized bodies in ICANN so far (for non-commercial users), I personally think that the first step can be to have a joint discussion in Seoul. Bill's proposal of meeting in an event that is not only work, but also social, goes in this sense, methinks.

Here we agree. And I think finding common ground will be a lot easier if ALAC colleagues are not laboring under the false impression that NCUC somehow wants to prevent them or other from forming constituencies, hence the above. Our main concern has been that we first have an opportunity to work out a final, non-divisive charter with the board, after which constituency launches could begin in earnest. In contrast, launching constituencies under the SIC charter would likely lock us into that framework and engender the very fragmentation the meeting is intended to help overcome. Cheers, Bill

Bill, We might have a communication problem. What I meant, and please correct me if I am wrong, is that: - the NCUC was against the creation of constituencies as groups that had automatic voting seat(s) in the Council - groups did not see any interest in doing the work of creating constituencies if they were guaranteed no seats in the Council Is this a fair representation of the reality, yes or no? If no, I apologize, as I did really miss something important. If, on the other hand, the answer is yes, I stand behind my whole post. The question, as I understood it, was to find a balance that could have taken into account to the maximum extent possible these two different and apparently radically opposed positions. The fact that the solution is being shot from both sides confirms that it was not an easy problem, and that positions were really opposed. The point is now where we go from here. Can we discuss and see if this is a solution that can work or not? To make statements that imply that SIC has not read the NCUC charters is not helpful. We have two possibilities, one is to get together and to make it work, the other one is to insist that the bad and ugly SIC has imposed a top-down solution against the will of the masses. I see these as alternative positions, for the simple fact that accepting and propagating the latter means not to have understood (or to pretend not having understood) the amount of consultation, negotiation and compromise that went into the solution, which is the exact opposite of having imposed a top-down view. Cheers, Roberto

-----Original Message----- From: William Drake [mailto:william.drake@graduateinstitute.ch] Sent: Saturday, 17 October 2009 11:58 To: Roberto Gaetano Cc: At-Large Worldwide; ALAC Working List Subject: Re: [At-Large] "placeholder" reps not placeholders?

Hi Roberto,

May I just correct once again one whopping bit of bad info, please.

On Oct 17, 2009, at 8:16 AM, Roberto Gaetano wrote:

...

Beau,

...

By the way, is it true what I heard that the three newly appointed GNSO people have now been hard-wired in to two-year terms? I don't really see a constituency model working under those circumstances. Who's going to join a constituency if they have to wait

two years to

...

be able to directly elect a representative? No consumer group I am aware of is going to want to do that.

I think that we will need to clarify many things in Seoul, one of which is the reason for certain decisions of the SIC.

For instance, the SIC has decided, after long discussion, not to have an automatic link between creation of a constituency and establishment of a seat in the Council. The reasons against this position include what you correctly point out, i.e. that it will be more difficult to get people's interest if there's no immediate representation in terms of voting rights. However, there are also reasons for taking this approach. One of these is that we have to avoid the "frivolous" creation of constituencies for the simple purpose of getting a vote. A bit like create empty shells as registrars to have a higher firing power for getting valuable names. Another observation is that in the "old" council it was exactly the fact that the creation of a new constituency would have altered the voting balance that de facto prevented the creation of any new constituency in 10 years.

But the main point for the SIC to maintain the concept of constituency, against the open opposition of NCUC, but to keep it without an automatic

NCUC is NOT and has NEVER been against the concept of constituencies, period. I do not understand what the purpose would be in telling ALAC people something about NCUC that is patently untrue, but it really does not facilitate trust building and the collegial resolution of the issue. The charter NCUC submitted, and which you set aside without comment, has an page of clear language about the formation and operation of constituencies in Section 2.3. http://gnso.icann.org/files/gnso/en/improvements/ncsg-petition -charter.pdf I would encourage you to read it if you have not. A few key bits of note include:

-------------

*Constituencies are self-defined groupings of NCSG members organized around some shared policy goals (e.g. consumer protection, privacy); shared identity (e.g., region or country of origin, gender, language group); type of organization (e.g., research networks, philanthropic foundations) - or any other grouping principle that might affect members' stance on domain names policy.

*There is no requirement that NCSG members join a constituency.

*When at least 3 organizational members or at least 10 individual NCSG members volunteer to join the Constituency on the public list within two months of the publication of the notification of intent the prospective Constituency becomes eligible to schedule a meeting (which can be either in person or online).

*The eligible constituency holds a public meeting(s) to draft a charter and appoint an official representative of the constituency. The meeting(s) can be online but must be open to observation by the general public.

*The proposed constituency charter is submitted to the NCSG Policy Committee for ratification.

*Once accepted by the PC the constituency application will be sent to the ICANN Board for approval. The Board shall also serve as the vehicle for appeals to NCSG decisions on the recognition of a constituency.

*Constituencies have a right to: 1. Place one voting representative on the Policy Committee; 2. Delegate members to GNSO working groups and task forces; 3. Issue statements on GNSO Policy Development Processes which are included in the official NCSG response, but marked as constituency positions, and not necessarily the position of NCSG as a whole.

-------------

I do not know how this possibly can be characterized as opposition to the concept of a constituency.

The principal difference with the charter you've imposed on us, as we've explained time and again, is that we do not think it wise to set up constituencies as purely self-regarding silos that compete against each other for council seats, recognition and influence, and thereby spend their time fighting and jockeying for position rather than working together to advance noncommercial public interest perspectives in ICANN. We think it is better for constituencies to collaborate in an integrated community. Hence, we did not think it sensible to hard wire council seats (which would get absurd if the number of constituencies exceeds six, as it hopefully will...we're glad you agreed on this), and instead suggested that GNSO Council Representatives be elected directly by all NCSG members in an annual SG-wide vote. To secure a council seat, a constituency on consumer protection, registrants, privacy, gender, freedom of speech or whatever else would simply have to be a vibrant group that puts forward a candidate and vision that others find persuasive. Given that noncommercial people tend to share certain broad values and priorities, I'm hard pressed to imagine that, for example, a solid consumer constituency that actually comprises noncommercial actors and advocates for the public interest would have a hard time getting support from people who care about privacy, speech, and so on. So it'd be a matter of persuading colleagues rather than having a birthright fiefdom within which one does one's own thing and ignores everyone else.

We understand that questions have been raised about voting formula and whether it might make sense to put in place mechanisms to prevent the 'capture' of the council, and we've said we're open to viable suggestions on that score. Have yet to hear one. One might add that if NCUC's proposed charter had been approved and constituency formation were made as easy as we'd hoped, the NCUC itself would have ceased to exist, and those of our current 80 organizational and 87 individual members who wanted to off and form constituencies on privacy, gender, or whatever else would have done so. So there'd be no NCUC to be capturing anything in the first place. In contrast, under the SIC charter, NCUC would be nuts to disband, inter alia because it'd leave our members homeless, especially the individuals. Hard to see how that would be good for ICANN.

...

voting power, against the obvious concerns of who wants to build new constituencies, is the leit-motiv that has guided the whole process of the review: move the focus away from the vote, which is by its nature divisive, onto the consensus building process. New constituencies will not have the right to appoint their "own" councillors, but will have the right to participate in WGs and other policy making processes and bodies, will have support from ICANN staff and resources to self-organize, will be able to participate with their own representatives in the Executive Committee of the NCSG, etc. In simple words, what we have tried to do is to create a balance and hopefully a possible way to coexist and, in time, to collaborate, for all the different components of the wide and diverse non-commercial internet community. Somebody on this list has spoken about "reconsideration" of the Board's decision. This is surely possible. But what I would propose is to try to discuss and understand if what the SIC has proposed can work in practice, although it is not going to be perfect for anybody, before shooting it down and start all over again. This discussion is for me one of the main priorities, if not the first priority altogether, in Seoul, which as you all know will mark the end of my term as Director.

The ALAC and the NCUC are two big parts of this picture, the only organized bodies in ICANN so far (for non-commercial users), I personally think that the first step can be to have a joint discussion in Seoul. Bill's proposal of meeting in an event that is not only work, but also social, goes in this sense, methinks.

Here we agree. And I think finding common ground will be a lot easier if ALAC colleagues are not laboring under the false impression that NCUC somehow wants to prevent them or other from forming constituencies, hence the above. Our main concern has been that we first have an opportunity to work out a final, non-divisive charter with the board, after which constituency launches could begin in earnest. In contrast, launching constituencies under the SIC charter would likely lock us into that framework and engender the very fragmentation the meeting is intended to help overcome.

Cheers,

Bill

Bill, This is going to be my last message on the subject. Although interesting, I think that we should continue in Seoul, where in a F2F situation we will reduce the risk for further miscommunication and misunderstandings. A few clarifications:

"But the main point for the SIC to maintain the concept of constituency, against the open opposition of NCUC," which sounded to me like you were saying the main point for the SIC is to maintain the concept of constituency, against the open opposition of NCUC. Sorry for my confusion.

The confusion arises, IMHO, from the fact that we use the word "Constituency" to mean different things. I mean "the body that, as is right now, has ïnter alia the right to have councillors in the GNSO Council". And, unless mistaken, the concept of constituency as described is not what NCUC wants. And I do believe that the NCUC has stated this openly. When you say that NCUC is in favour of "constituencies", you mean "the bodies that are defined in the NCUC charter as being constituencies", which, unless I am mistaken, have many rights but not the right of voting councillors. So, one way to progress is to say that that everybody is in favour of "Constituencies", but that we need to come to an agreement to what will be the exact "powers" of the constituencies.

[...] (BTW, why did SIC ok RySG eliminating constituencies in their charter? I never understood the rationale for not having harmonized structures across SGs, and it makes the misimpression about NCUC's charter which explicitly provides for constituencies seem all the more odd.)

I think I have explained this a zillion times, but I can say this for the zillionth+1 time. One of the roles of the constituencies in the initial design of ICANN was to provide a mechanism to define and register membership. This was addressing a concern, which was to avoid capture by a group of people who were joining the process in a category where they were not really qualified to be. During the discussions related to the review, in the consultations with Ry and Rar we realized that this risk was non-existent for them, because in the way we had defined the SGs (i.e. as being the "Contracted Parties") we had an automatic mechanism to sort out the issue: if the organization has a contract with ICANN, it is in, otherwise it is out. And by virtue of this, we also had a complete list of the membership. This happened because during the process there was rough consensus by the community (although I was personally against, having preferred a "Suppliers" vs. "Consumers" approach) to have the "Contracted" vs. "Non-Contracted" separation. In the case of the non-contracted parties, we do not have such a mechanism. Check, for instance, the discussion about the potential individual registrants constituency, where one of the debates is how to sort out who is a commercial and who is a non-commercial registrant, and how can we monitor that the status at the moment of the registration is kept over time. Same issue if we think about a business entity that is also an IP holder, how we determine who is an internet service provider and who is not, etc. In simple words, we do not have an easy mechanism to determine who is qualified and who is not to join a SG. However, we have that for the constituencies, in the way that constituencies are currently defined and chartered. So, the proposal of the SIC (and the decision by the Board) has been that we could get rid of the constituencies in the contractual house, but not in the non-contractual house. You may agree or disagree with the decision, that has been already taken by the Board and is not on the table for further discussion, but this is the explanation of the rationale for it.

Entirely separate from the principal of constituencies are two issues:

[...]

You make good points here. I am looking forward to discuss these, among other things, in Seoul. I would like to keep this email short, addressing just clarifications and potential misunderstandings.

I didn't characterize the SIC as bad and ugly. It is unquestionably true though that the SIC imposed a solution that was opposed by NCUC's 80 organizational and 87 individual members and a wide array of non- member supporters and was supported by 3 people. If you don't like calling this top down, ok, give me another term for something done by the board over the strenuous opposition of the community in question. I'm not hung up on language, just facts.

Quite interestingly, I just read the email from Dominik Filipp, who agrees with you that the SIC did not follow a bottom-up process. However, what he objects on, is exactly the opposite: for him constituencies should be not only created and approved, but should have voting power in the council. The fact is that the bottom-up process is usually defined as "taking the decision that suits me" ;>) On a more serious vein, I invite everybody to take a step back and a deep breath. We started this process years ago, with a council where the voting ratio between non-commercial and commercial users was 1:3. The BGC before, and the SIC[K] after the changes in the Board committee structure, have analysed proposals, discussed with the community (all parts of the community), gathered feedback, proposed a solution, presented the solution to the different parts, rediscussed over and over again with all those who were opposing it from different sides, repeated these iterations several times, and arrived now at the final step where hopefully in a couple of weeks we will have this historic change, and a GNSO Council where the commercial and non-commercial communities are represented on a base of parity. In order to achieve this, it was necessary to go through an interim phase, during which we had transitional charters, giving ourselves time to think thoroughly the new composition and functioning of the SGs, but in a situation in which we were progressing from the past, and established as a matter of principle the parity between commercial and non-commercial. I was prepared to hear the grumbling of the commercial users, noting that they will be less represented than before, but I was incredibly astonished by the fact that all what I am hearing is the bitching of the different components of the non-commercial community, fighting bitterly for the control of the additional seats, yelling and screaming at the SIC from different sides, apparently forgetting completely that it was the BGC and SIC who recommended in first place to have this new balance. To be honest, if I had the chance to rewind the clock, over my dead body I would have ever accepted the task to deal with this matter, and would have much preferred to leave things as they were, raising my arms to show powerlessness, and suggesting to have everybody getting together and achieve consensus in a real "bottom-up way", and to come back to the Board when a consensus was found. Anybody has a guess on where we would be now? My bet is that we would still be with the old GNSO structure, as who likes the status quo would have prevented any move. The bottom-up process is not a process by which the decision is taken by the bottom, but a process in which the Board consults the community to the maximum extent possible, takes idea and proposals from the community to the maximum extent possible, but then makes a decision that does not necessarily please everybody.

Unfortunately, the consultation, negotiation and compromise didn't really involve NCUC.

What?!? In Sydney alone the SIC had two official meetings with NCUC, plus the discussions in the corridors, plus emails before and after. And even outside the SIC, other Board members were involved. I know that neither you nor Milton were there, but other NCUC folks, including the Chair, were there, you can check with them.

But we can still do that, and very much look forward to working with you in Seoul and beyond to arrive at a lasting solution that is supported by the actually existing NC community.

I hope so. Cheers, Roberto

Bill, I see some points be more clarified for those not sitting inside ICANN. If I understand well, the NCUC viewpoint presented by you is that the NCUC in the new charter supports democratic election of councilor seats in the GNSO council and those elected councilors will have obviously voting right exactly as they have it now (the NCUC has three seats). The difference between NCUC and some At-Large presented positions is only in a way how the councilors will be nominated or elected, democratically or hard wired. In other words, there is no doubt or discussion but a general consensus between the NCUC and At-Large on the basic fact that NCSG constituency should have voting councilor seats in the GNSO council in any way. Am I right? Dominik -----Original Message----- From: at-large-bounces@atlarge-lists.icann.org [mailto:at-large-bounces@atlarge-lists.icann.org] On Behalf Of William Drake Sent: Monday, October 19, 2009 8:09 PM To: Roberto Gaetano Cc: 'ALAC Working List'; 'At-Large Worldwide' Subject: Re: [At-Large] "placeholder" reps not placeholders? Hi Roberto, On Oct 19, 2009, at 6:40 PM, Roberto Gaetano wrote:

Bill,

This is going to be my last message on the subject. Although interesting, I think that we should continue in Seoul, where in a F2F situation we will reduce the risk for further miscommunication and misunderstandings.

Agreed

A few clarifications:

...

"But the main point for the SIC to maintain the concept of constituency, against the open opposition of NCUC," which sounded to me like you were saying the main point for the SIC is to maintain the concept of constituency, against the open opposition of NCUC. Sorry for my confusion.

The confusion arises, IMHO, from the fact that we use the word "Constituency" to mean different things. I mean "the body that, as is right now, has ïnter alia the right to have councillors in the GNSO Council". And, unless mistaken, the concept of constituency as described is not what NCUC wants. And I do believe that the NCUC has stated this openly.

Right, we suggest no hardwiring, but rather democratic elections (which in most plausible scenarios would yield the same results...unless you green lighted the CP80 censorship constituency, they might have trouble getting broad-based support). But so do you: you said "the SIC has decided, after long discussion, not to have an automatic link between creation of a constituency and establishment of a seat in the Council." So by your own definition above, this would mean you've decided constituencies will no longer exist. But this doesn't fit with you saying that the SIC was struggling to maintain the concept against the opposition of NCUC. How can you be agreeing with our position and at the same time working to overcome our position? I mean, I like a good oxymoron as much as anybody, but this makes my circuits fizz out. Anyway, let's chalk it up to miscommunication and move on.

When you say that NCUC is in favour of "constituencies", you mean "the bodies that are defined in the NCUC charter as being constituencies", which, unless I am mistaken, have many rights but not the right of voting councillors. So, one way to progress is to say that that everybody is in favour of "Constituencies", but that we need to come to an agreement to what will be the exact "powers" of the constituencies.

Agreed. As far as I can tell, everyone sees the 'powers' fairly similarly, except that NCUC thinks council seats should be filled by elections, SIC thinks the EC should just hash out the allocation of seats (which to us sounds like a recipe for trench warfare), and some in ALAC feel there should be hard wiring. Hopefully we can have a focused discussion on the relative merits of these approaches and the trajectories/scenarios they may point to in order to move this to another level.

...

[...] (BTW, why did SIC ok RySG eliminating constituencies in their charter? I never understood the rationale for not having harmonized structures across SGs, and it makes the misimpression about NCUC's charter which explicitly provides for constituencies seem all the more odd.)

I think I have explained this a zillion times, but I can say this for the zillionth+1 time.

Not to me, sorry

One of the roles of the constituencies in the initial design of ICANN was to provide a mechanism to define and register membership. This was addressing a concern, which was to avoid capture by a group of people who were joining the process in a category where they were not really qualified to be. During the discussions related to the review, in the consultations with Ry and Rar we realized that this risk was non-existent for them, because in the way we had defined the SGs (i.e. as being the "Contracted Parties") we had an automatic mechanism to sort out the issue: if the organization has a contract with ICANN, it is in, otherwise it is out. And by virtue of this, we also had a complete list of the membership. This happened because during the process there was rough consensus by the community (although I was personally against, having preferred a "Suppliers" vs. "Consumers" approach) to have the "Contracted" vs. "Non- Contracted" separation. In the case of the non-contracted parties, we do not have such a mechanism. Check, for instance, the discussion about the potential individual registrants constituency, where one of the debates is how to sort out who is a commercial and who is a non-commercial registrant, and how can we monitor that the status at the moment of the registration is kept over time. Same issue if we think about a business entity that is also an IP holder, how we determine who is an internet service provider and who is not, etc. In simple words, we do not have an easy mechanism to determine who is qualified and who is not to join a SG. However, we have that for the constituencies, in the way that constituencies are currently defined and chartered. So, the proposal of the SIC (and the decision by the Board) has been that we could get rid of the constituencies in the contractual house, but not in the non-contractual house. You may agree or disagree with the decision, that has been already taken by the Board and is not on the table for further discussion, but this is the explanation of the rationale for it.

Ok, well thanks

...

Entirely separate from the principal of constituencies are two issues:

[...]

You make good points here. I am looking forward to discuss these, among other things, in Seoul. I would like to keep this email short, addressing just clarifications and potential misunderstandings.

...

I didn't characterize the SIC as bad and ugly. It is unquestionably true though that the SIC imposed a solution that was opposed by NCUC's 80 organizational and 87 individual members and a wide array of non- member supporters and was supported by 3 people. If you don't like calling this top down, ok, give me another term for something done by the board over the strenuous opposition of the community in question. I'm not hung up on language, just facts.

Quite interestingly, I just read the email from Dominik Filipp, who agrees with you that the SIC did not follow a bottom-up process. However, what he objects on, is exactly the opposite: for him constituencies should be not only created and approved, but should have voting power in the council. The fact is that the bottom-up process is usually defined as "taking the decision that suits me" ;>)

On a more serious vein, I invite everybody to take a step back and a deep breath. We started this process years ago, with a council where the voting ratio between non-commercial and commercial users was 1:3. The BGC before, and the SIC[K] after the changes in the Board committee structure, have analysed proposals, discussed with the community (all parts of the community), gathered feedback, proposed a solution, presented the solution to the different parts, rediscussed over and over again with all those who were opposing it from different sides, repeated these iterations several times, and arrived now at the final step where hopefully in a couple of weeks we will have this historic change, and a GNSO Council where the commercial and non-commercial communities are represented on a base of parity. In order to achieve this, it was necessary to go through an interim phase, during which we had transitional charters, giving ourselves time to think thoroughly the new composition and functioning of the SGs, but in a situation in which we were progressing from the past, and established as a matter of principle the parity between commercial and non-commercial. I was prepared to hear the grumbling of the commercial users, noting that they will be less represented than before, but I was incredibly astonished by the fact that all what I am hearing is the bitching of the different components of the non-commercial community, fighting bitterly for the control of the additional seats, yelling and screaming at the SIC from different sides, apparently forgetting completely that it was the BGC and SIC who recommended in first place to have this new balance.

We all recognize and appreciate the rebalancing, admittedly more in principal than in practice. But 1) there's been a pretty fair bit of bitching from the CSG too, which inter alia you cited as a reason we ought to just suck it up and go along with the SIC charter, and 2) we're not fighting for control of seats, we're arguing the noncommercial space should be organized in a democratic manner that doesn't lock us in perpetuity into precisely the sort of dysfunctional competition you decry.

To be honest, if I had the chance to rewind the clock, over my dead body I would have ever accepted the task to deal with this matter, and would have much preferred to leave things as they were, raising my arms to show powerlessness, and suggesting to have everybody getting together and achieve consensus in a real "bottom-up way", and to come back to the Board when a consensus was found. Anybody has a guess on where we would be now? My bet is that we would still be with the old GNSO structure, as who likes the status quo would have prevented any move.

Plenty of angst and frustration to go around, alas.

The bottom-up process is not a process by which the decision is taken by the bottom, but a process in which the Board consults the community to the maximum extent possible, takes idea and proposals from the community to the maximum extent possible, but then makes a decision that does not necessarily please everybody.

...

Unfortunately, the consultation, negotiation and compromise didn't really involve NCUC.

What?!? In Sydney alone the SIC had two official meetings with NCUC, plus the discussions in the corridors, plus emails before and after. And even outside the SIC, other Board members were involved. I know that neither you nor Milton were there, but other NCUC folks, including the Chair, were there, you can check with them.

I have, but let's not rehash the past at this point. What matters now is we sit and talk through the question of institutional design in a reasoned and depersonalized manner while bracketing all the other stuff that is not integral to it.

...

But we can still do that, and very much look forward to working with you in Seoul and beyond to arrive at a lasting solution that is supported by the actually existing NC community.

I hope so.

Ditto. Cheers, Bill _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/at-large_atlarge-lists.icann... At-Large Official Site: http://atlarge.icann.org

Hello Bill, Re: "We think hard wiring will result in fragmentation within self-regarding silos, with people treating the NCSG as a mere shell within which they can pursue their stand alone agendas rather than feeling an incentive to work with the broader civil society community." There are several of us that regard the NCUC as a stand-alone silo focused solely on the privacy/freedom-of-expression agenda to the exclusion of all other topics. We have pointed to the oft-repeated failure of the NCUC to stand up for the registrant interest -- the failure to offer any recommendations whatsoever regarding the RAA amendments, and the failure to even join the working groups convened to deal with the matter. The NCUC clearly is not prepared to work with the broader civil society community on matters that concern the rest of us. I get the impression that you view the non-commercial world as some sort of homogeneous whole where people don't disagree on matters such as privacy -- on this point you are clearly mistaken. Many of us view your approach to privacy as a tool that further enables cybercriminality. While your group favors proxy registrations, some of us stand vehemently opposed to the concept... so why should our ability to secure our own representatives necessarily be tied into whether your contingent agrees with our views? The process that you have proposed is nothing short of a veiled attempt at capture. best regards, Danny

Hello Bill (and thanks for your earlier response to my concerns). The registrant rights document was proposed over two years ago, and the amendment regarding registrant rights was put forth by Staff about a year ago, so it's nice to know that the NCUC membership is keen to finally get involved after years of non-involvement. FWIW, I'm looking forward to see how your group deals with the fact that the no-third-party-beneficiaries-clause precludes any contractual legal rights accruing to the registrant. By the way, you may want to point all concerned NCUC members to the working group list at http://forum.icann.org/lists/gnso-rrc-a/ We haven't exactly seen a flood of NCUC folk knocking at the gate to get involved in this effort, but perhaps this will soon change. More important, of course, is the need for amendments to improve the RAA. Yes, we all know that the NCUC has been occupied with other matters during the last two years, but here's your chance to demonstrate that your 80 organizational and 89 individual members are more than just names on a list. Feel free to point the NCUC membership to the discussion archives at http://forum.icann.org/lists/raa-consultation/index.html The constituency may also wish to send a number of designees to the GNSO's Sub-Team B Working Group. Now let's get to heart of the matter concerning the NCUC proposal -- when an incumbent organization with a fair number of members says to a new constituency (with a necessarily limited number of members) let's decide everything by way of the democratic election process, all we see is "advantage incumbent" -- a stacked deck wherein numerical superiority is used as a tool to disenfranchise others; yes, it's a capture mechanism. Truth be told, there are six NCSG seats to go around, and it sure looks like the NCUC doesn't want to share and play nice. regards, Danny

I think that, in light of the discussions we said in Seoul, we can say that we agree that there is no hard wiring. I though that this was clear from my earlier messages (and in fact some folks reacted objecting to the lack of hard wiring). Besides, the council deating in Seoul with the new format, and the observation that sky has not fallen over, has helped in re-establishing a more collaborative climate. For the record, there has been a meeting of the SIC in Seoul with the proponent of the Consumer Constituency, and we have reaffirmed the concept that there will be no hard wiring. On the other hand, the SIC has remained (so far - because the composition has now changed and we will see if there is an evolution - but I doubt, because the position is shared by the full Board) of the opinion that the consituency has to be defined according to the guidelines given, that it has to be approved by the Board, that it will have staff support but also duties in terms of transparency of membership, etc. In summary, a positive step forward, but not yet the final solution. Cheers, Roberto

-----Original Message----- From: William Drake [mailto:william.drake@graduateinstitute.ch] Sent: Monday, 19 October 2009 20:09 To: Roberto Gaetano Cc: 'At-Large Worldwide'; 'ALAC Working List' Subject: Re: [At-Large] "placeholder" reps not placeholders?

Hi Roberto,

On Oct 19, 2009, at 6:40 PM, Roberto Gaetano wrote:

...

Bill,

This is going to be my last message on the subject. Although interesting, I think that we should continue in Seoul, where in a F2F situation we will reduce the risk for further miscommunication and misunderstandings.

Agreed

...

A few clarifications:

...

"But the main point for the SIC to maintain the concept of constituency, against the open opposition of NCUC," which

sounded to

...

...

me like you were saying the main point for the SIC is to maintain the concept of constituency, against the open opposition of NCUC. Sorry for my confusion.

The confusion arises, IMHO, from the fact that we use the word "Constituency" to mean different things. I mean "the body that, as is right now, has ïnter alia the right to have councillors in the GNSO Council". And, unless mistaken, the concept of constituency as described is not what NCUC wants. And I do believe that the NCUC has stated this openly.

Right, we suggest no hardwiring, but rather democratic elections (which in most plausible scenarios would yield the same results...unless you green lighted the CP80 censorship constituency, they might have trouble getting broad-based support). But so do you: you said "the SIC has decided, after long discussion, not to have an automatic link between creation of a constituency and establishment of a seat in the Council." So by your own definition above, this would mean you've decided constituencies will no longer exist. But this doesn't fit with you saying that the SIC was struggling to maintain the concept against the opposition of NCUC. How can you be agreeing with our position and at the same time working to overcome our position? I mean, I like a good oxymoron as much as anybody, but this makes my circuits fizz out.

Anyway, let's chalk it up to miscommunication and move on.

...

When you say that NCUC is in favour of "constituencies", you mean "the bodies that are defined in the NCUC charter as being constituencies", which, unless I am mistaken, have many rights but not the right of voting councillors. So, one way to progress is to say that that everybody is in favour of "Constituencies", but that we need to come to an agreement to what will be the exact "powers" of the constituencies.

Agreed. As far as I can tell, everyone sees the 'powers' fairly similarly, except that NCUC thinks council seats should be filled by elections, SIC thinks the EC should just hash out the allocation of seats (which to us sounds like a recipe for trench warfare), and some in ALAC feel there should be hard wiring. Hopefully we can have a focused discussion on the relative merits of these approaches and the trajectories/scenarios they may point to in order to move this to another level.

...

...

[...] (BTW, why did SIC ok RySG eliminating constituencies in their charter? I never

understood the

...

rationale for not having harmonized structures across SGs, and it makes the misimpression about NCUC's charter which explicitly provides for constituencies seem all the more odd.)

I think I have explained this a zillion times, but I can say this for the zillionth+1 time.

Not to me, sorry

...

One of the roles of the constituencies in the initial design of ICANN was to provide a mechanism to define and register membership. This was addressing a concern, which was to avoid capture by a group of people who were joining the process in a category where they were not really qualified to be. During the discussions related to the review, in the consultations with Ry and Rar we realized that this risk was non-existent for them, because in the way we had defined the SGs (i.e. as being the "Contracted Parties") we had an automatic mechanism to sort out the issue: if the organization has a contract with ICANN, it is in, otherwise it is out. And by virtue of this, we also had a complete list of the membership. This happened because during the process there was rough consensus by the community (although I was personally against, having preferred a "Suppliers" vs. "Consumers" approach) to have the "Contracted" vs. "Non- Contracted" separation. In the case of the non-contracted parties, we do not have such a mechanism. Check, for instance, the discussion about the potential individual registrants constituency, where one of the debates is how to sort out who is a commercial and who is a non-commercial registrant, and how can we monitor that the status at the moment of the registration is kept over time. Same issue if we think about a business entity that is also an IP holder, how we determine who is an internet service provider and who is not, etc. In simple words, we do not have an easy mechanism to determine who is qualified and who is not to join a SG. However, we have that for the constituencies, in the way that constituencies are currently defined and chartered. So, the proposal of the SIC (and the decision by the Board) has been that we could get rid of the constituencies in the contractual house, but not in the non-contractual house. You may agree or disagree with the decision, that has been already taken by the Board and is not on the table for further discussion, but this is the explanation of the rationale for it.

Ok, well thanks

...

...

Entirely separate from the principal of constituencies are two issues:

[...]

You make good points here. I am looking forward to discuss these, among other things, in Seoul. I would like to keep this email short, addressing just clarifications and potential misunderstandings.

...

I didn't characterize the SIC as bad and ugly. It is unquestionably true though that the SIC imposed a solution that was opposed by NCUC's 80 organizational and 87 individual members and a wide array of non- member supporters and was supported by 3 people. If you don't like calling this top down, ok, give me another term for something done by the board over the strenuous opposition of the community in question. I'm not hung up on language, just facts.

Quite interestingly, I just read the email from Dominik

Filipp, who

...

agrees with you that the SIC did not follow a bottom-up process. However, what he objects on, is exactly the opposite: for him constituencies should be not only created and approved, but should have voting power in the council. The fact is that the bottom-up process is usually defined as "taking the decision that suits me" ;>)

...

On a more serious vein, I invite everybody to take a step

back and a

...

deep breath. We started this process years ago, with a council where the voting ratio between non-commercial and commercial users was 1:3. The BGC before, and the SIC[K] after the changes in the Board committee structure, have analysed proposals, discussed with the community (all parts of the community), gathered feedback, proposed a solution, presented the solution to the different parts, rediscussed over and over again with all those who were opposing it from different sides, repeated these iterations several times, and arrived now at the final step where hopefully in a couple of weeks we will have this historic change, and a GNSO Council where the commercial and non-commercial communities are represented on a base of parity. In order to achieve this, it was necessary to go through an interim phase, during which we had transitional charters, giving ourselves time to think thoroughly the new composition and functioning of the SGs, but in a situation in which we were progressing from the past, and established as a matter of principle the parity between commercial and non-commercial. I was prepared to hear the grumbling of the commercial users, noting that they will be less represented than before, but I was incredibly astonished by the fact that all what I am hearing is the bitching of the different components of the non-commercial community, fighting bitterly for the control of the additional seats, yelling and screaming at the SIC from different sides, apparently forgetting completely that it was the BGC and SIC who recommended in first place to have this new balance.

We all recognize and appreciate the rebalancing, admittedly more in principal than in practice. But 1) there's been a pretty fair bit of bitching from the CSG too, which inter alia you cited as a reason we ought to just suck it up and go along with the SIC charter, and 2) we're not fighting for control of seats, we're arguing the noncommercial space should be organized in a democratic manner that doesn't lock us in perpetuity into precisely the sort of dysfunctional competition you decry.

...

To be honest, if I had the chance to rewind the clock, over my dead body I would have ever accepted the task to deal with this matter, and would have much preferred to leave things as they were, raising my arms to show powerlessness, and suggesting to have everybody getting together and achieve consensus in a real "bottom-up way", and to come back to the Board when a consensus was found. Anybody has a guess on where we would be now? My bet is that we would still be with the old GNSO structure, as who likes the status quo would have prevented any move.

Plenty of angst and frustration to go around, alas.

...

The bottom-up process is not a process by which the decision is taken by the bottom, but a process in which the Board consults the community to the maximum extent possible, takes idea and proposals from the community to the maximum extent possible, but then makes a decision that does not necessarily please everybody.

...

Unfortunately, the consultation, negotiation and compromise didn't really involve NCUC.

What?!? In Sydney alone the SIC had two official meetings with NCUC, plus the discussions in the corridors, plus emails before and after. And even outside the SIC, other Board members were involved. I know that neither you nor Milton were there, but other NCUC folks, including the Chair, were there, you can check with them.

I have, but let's not rehash the past at this point. What matters now is we sit and talk through the question of institutional design in a reasoned and depersonalized manner while bracketing all the other stuff that is not integral to it.

...

...

But we can still do that, and very much look forward to working with you in Seoul and beyond to arrive at a lasting solution that is supported by the actually existing NC community.

I hope so.

Ditto. Cheers,

Bill

Hi Bill, Could you please tell us not having attended the Seoul meeting what you see is the current status of the NCSG with regards to the proposed constituency model and the GNSO council? And, perhaps, also some impressions of discussion on Adam Peake's presentation slides you think it would be worth mentioning. Thank you Dominik -----Original Message----- From: at-large-bounces@atlarge-lists.icann.org [mailto:at-large-bounces@atlarge-lists.icann.org] On Behalf Of William Drake Sent: Sunday, November 01, 2009 10:43 AM To: Roberto Gaetano Cc: 'ALAC Working List'; 'At-Large Worldwide' Subject: Re: [At-Large] "placeholder" reps not placeholders? Hi Roberto, On Oct 31, 2009, at 8:35 PM, Roberto Gaetano wrote:

I think that, in light of the discussions we said in Seoul, we can say that we agree that there is no hard wiring. I though that this was clear from my earlier messages (and in fact some folks reacted objecting to the lack of hard wiring).

Agreed, the Oct. 19 message to which you are responding has been overtaken by events. I'm glad we were able to get dialogue going in various directions and increase the levels of mutual understanding in Seoul, hopefully things will stay on that trajectory going forward.

In summary, a positive step forward, but not yet the final solution.

We're getting there...As you said at the board meeting, let's get the NCSG fully operationalized and thriving and then build it out with new interest groupings etc. In the meanwhile, clear your head of this stuff and enjoy some 'retirement' downtime :-) Best, Bill

...

-----Original Message----- From: William Drake [mailto:william.drake@graduateinstitute.ch] Sent: Monday, 19 October 2009 20:09 To: Roberto Gaetano Cc: 'At-Large Worldwide'; 'ALAC Working List' Subject: Re: [At-Large] "placeholder" reps not placeholders?

Hi Roberto,

On Oct 19, 2009, at 6:40 PM, Roberto Gaetano wrote:

...

Bill,

This is going to be my last message on the subject. Although interesting, I think that we should continue in Seoul, where in a F2F situation we will reduce the risk for further miscommunication and misunderstandings.

Agreed

...

A few clarifications:

...

"But the main point for the SIC to maintain the concept of constituency, against the open opposition of NCUC," which

sounded to

...

...

me like you were saying the main point for the SIC is to maintain the concept of constituency, against the open opposition of NCUC. Sorry for my confusion.

The confusion arises, IMHO, from the fact that we use the word "Constituency" to mean different things. I mean "the body that, as is right now, has ïnter alia the right to have councillors in the GNSO Council". And, unless mistaken, the concept of constituency as described is not what NCUC wants. And I do believe that the NCUC has stated this openly.

Right, we suggest no hardwiring, but rather democratic elections (which in most plausible scenarios would yield the same results...unless you green lighted the CP80 censorship constituency, they might have trouble getting broad-based support). But so do you: you said "the SIC has decided, after long discussion, not to have an automatic link between creation of a constituency and establishment of a seat in the Council." So by your own definition above, this would mean you've decided constituencies will no longer exist. But this doesn't fit with you saying that the SIC was struggling to maintain the concept against the opposition of NCUC. How can you be agreeing with our position and at the same time working to overcome our position? I mean, I like a good oxymoron as much as anybody, but this makes my circuits fizz out.

Anyway, let's chalk it up to miscommunication and move on.

...

When you say that NCUC is in favour of "constituencies", you mean "the bodies that are defined in the NCUC charter as being constituencies", which, unless I am mistaken, have many rights but not the right of voting councillors. So, one way to progress is to say that that everybody is in favour of "Constituencies", but that we need to come to an agreement to what will be the exact "powers" of the constituencies.

Agreed. As far as I can tell, everyone sees the 'powers' fairly similarly, except that NCUC thinks council seats should be filled by elections, SIC thinks the EC should just hash out the allocation of seats (which to us sounds like a recipe for trench warfare), and some in ALAC feel there should be hard wiring. Hopefully we can have a focused discussion on the relative merits of these approaches and the trajectories/scenarios they may point to in order to move this to another level.

...

...

[...] (BTW, why did SIC ok RySG eliminating constituencies in their charter? I never

understood the

...

rationale for not having harmonized structures across SGs, and it makes the misimpression about NCUC's charter which explicitly provides for constituencies seem all the more odd.)

I think I have explained this a zillion times, but I can say this for the zillionth+1 time.

Not to me, sorry

...

One of the roles of the constituencies in the initial design of ICANN was to provide a mechanism to define and register membership. This was addressing a concern, which was to avoid capture by a group of people who were joining the process in a category where they were not really qualified to be. During the discussions related to the review, in the consultations with Ry and Rar we realized that this risk was non-existent for them, because in the way we had defined the SGs (i.e. as being the "Contracted Parties") we had an automatic mechanism to sort out the issue: if the organization has a contract with ICANN, it is in, otherwise it is out. And by virtue of this, we also had a complete list of the membership. This happened because during the process there was rough consensus by the community (although I was personally against, having preferred a "Suppliers" vs. "Consumers" approach) to have the "Contracted" vs. "Non- Contracted" separation. In the case of the non-contracted parties, we do not have such a mechanism. Check, for instance, the discussion about the potential individual registrants constituency, where one of the debates is how to sort out who is a commercial and who is a non-commercial registrant, and how can we monitor that the status at the moment of the registration is kept over time. Same issue if we think about a business entity that is also an IP holder, how we determine who is an internet service provider and who is not, etc. In simple words, we do not have an easy mechanism to determine who is qualified and who is not to join a SG. However, we have that for the constituencies, in the way that constituencies are currently defined and chartered. So, the proposal of the SIC (and the decision by the Board) has been that we could get rid of the constituencies in the contractual house, but not in the non-contractual house. You may agree or disagree with the decision, that has been already taken by the Board and is not on the table for further discussion, but this is the explanation of the rationale for it.

Ok, well thanks

...

...

Entirely separate from the principal of constituencies are two issues:

[...]

You make good points here. I am looking forward to discuss these, among other things, in Seoul. I would like to keep this email short, addressing just clarifications and potential misunderstandings.

...

I didn't characterize the SIC as bad and ugly. It is unquestionably true though that the SIC imposed a solution that was opposed by NCUC's 80 organizational and 87 individual members and a wide array of non- member supporters and was supported by 3 people. If you don't like calling this top down, ok, give me another term for something done by the board over the strenuous opposition of the community in question. I'm not hung up on language, just facts.

Quite interestingly, I just read the email from Dominik

Filipp, who

...

agrees with you that the SIC did not follow a bottom-up process. However, what he objects on, is exactly the opposite: for him constituencies should be not only created and approved, but should have voting power in the council. The fact is that the bottom-up process is usually defined as "taking the decision that suits me" ;>)

...

On a more serious vein, I invite everybody to take a step

back and a

...

deep breath. We started this process years ago, with a council where the voting ratio between non-commercial and commercial users was 1:3. The BGC before, and the SIC[K] after the changes in the Board committee structure, have analysed proposals, discussed with the community (all parts of the community), gathered feedback, proposed a solution, presented the solution to the different parts, rediscussed over and over again with all those who were opposing it from different sides, repeated these iterations several times, and arrived now at the final step where hopefully in a couple of weeks we will have this historic change, and a GNSO Council where the commercial and non-commercial communities are represented on a base of parity. In order to achieve this, it was necessary to go through an interim phase, during which we had transitional charters, giving ourselves time to think thoroughly the new composition and functioning of the SGs, but in a situation in which we were progressing from the past, and established as a matter of principle the parity between commercial and non-commercial. I was prepared to hear the grumbling of the commercial users, noting that they will be less represented than before, but I was incredibly astonished by the fact that all what I am hearing is the bitching of the different components of the non-commercial community, fighting bitterly for the control of the additional seats, yelling and screaming at the SIC from different sides, apparently forgetting completely that it was the BGC and SIC who recommended in first place to have this new balance.

We all recognize and appreciate the rebalancing, admittedly more in principal than in practice. But 1) there's been a pretty fair bit of bitching from the CSG too, which inter alia you cited as a reason we ought to just suck it up and go along with the SIC charter, and 2) we're not fighting for control of seats, we're arguing the noncommercial space should be organized in a democratic manner that doesn't lock us in perpetuity into precisely the sort of dysfunctional competition you decry.

...

To be honest, if I had the chance to rewind the clock, over my dead body I would have ever accepted the task to deal with this matter, and would have much preferred to leave things as they were, raising my arms to show powerlessness, and suggesting to have everybody getting together and achieve consensus in a real "bottom-up way", and to come back to the Board when a consensus was found. Anybody has a guess on where we would be now? My bet is that we would still be with the old GNSO structure, as who likes the status quo would have prevented any move.

Plenty of angst and frustration to go around, alas.

...

The bottom-up process is not a process by which the decision is taken by the bottom, but a process in which the Board consults the community to the maximum extent possible, takes idea and proposals from the community to the maximum extent possible, but then makes a decision that does not necessarily please everybody.

...

Unfortunately, the consultation, negotiation and compromise didn't really involve NCUC.

What?!? In Sydney alone the SIC had two official meetings with NCUC, plus the discussions in the corridors, plus emails before and after. And even outside the SIC, other Board members were involved. I know that neither you nor Milton were there, but other NCUC folks, including the Chair, were there, you can check with them.

I have, but let's not rehash the past at this point. What matters now is we sit and talk through the question of institutional design in a reasoned and depersonalized manner while bracketing all the other stuff that is not integral to it.

...

...

But we can still do that, and very much look forward to working with you in Seoul and beyond to arrive at a lasting solution that is supported by the actually existing NC community.

I hope so.

Ditto. Cheers,

Bill

*********************************************************** William J. Drake Senior Associate Centre for International Governance Graduate Institute of International and Development Studies Geneva, Switzerland william.drake@graduateinstitute.ch www.graduateinstitute.ch/cig/drake.html *********************************************************** _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/at-large_atlarge-lists.icann... At-Large Official Site: http://atlarge.icann.org

I meant "roughly", not "sensitively" in my last sentence... Dominik -----Original Message----- From: at-large-bounces@atlarge-lists.icann.org [mailto:at-large-bounces@atlarge-lists.icann.org] On Behalf Of Dominik Filipp Sent: Tuesday, October 20, 2009 5:37 PM To: At-Large Worldwide; William Drake Cc: ALAC Working List Subject: Re: [At-Large] "placeholder" reps not placeholders? Roberto,

Quite interestingly, I just read the email from Dominik Filipp, who agrees with you that the SIC did not follow a bottom-up process. However, what he objects on is exactly the opposite: for him constituencies should be not only created and approved, but should have voting power in the council. The fact is that the bottom-up process is usually defined as "taking the decision that suits me" ;>)

As far as I know, all currently existing GNSO constituencies do have voting power in the council. Therefore I do not think I have invented something new and I have never objected on this. As regards the contracted parties the situation is even more apparent; such constituencies naturally pursuit purposes derived from business, financial and other obligations defined in the contract and/or interests of the stakeholder group they represent. The constituency itself inherently supports interests of stakeholder group for which it exists. The idea that the business-commercial constituency will primarily defend non-commercial interests does not only belong to fairy tales but it even would be in contradiction with the primary purpose it was established for. From this point of view every constituency holds the same view defined as "taking the decision that suits me". That's reality that has been proven many times here. What is worse, as the contracted parties may have financial obligations to ICANN, it brings a danger that even impartial ICANN bodies will inappropriately support and prefer positions defended by contracted parties in order to keep the income. The proof that this really may exist and take place is e.g. in persisting hesitation in establishing a fully-fledged stakeholder group with real voting power to control and influence the decision process; contracted parties feel at ICANN like home, they are infiltrated throughout the ICANN structures and are trying to direct ICANN to where they want to direct it. And we, the rest, have been being persuaded of not-necessity to ask for and get the same voting power; the obstruction we have been facing for years. The bottom-up process (viewed from the GNSO constituency model perspective) only means a proportional balance among constituencies with respect to full range and diversity of the internet users. It's hardly acceptable that barely one percent of specific internet users are given almost full power (minus NomCom appointees) in the GNSO decision process. All internet users/groups/stakeholders have to be proportionally represented by respective constituencies with equal voting power. Otherwise the decision process will be inherently elitist. The view "taking the decision that suits me" does not mean fighting in sort of guerilla battle against other constituencies. I, as a registrant, want to cooperate with registries and registrars and listen to their arguments because functional registry/registrar services are important to me. Similarly, I am able to understand security issues or trademark infringement. However, I have to take a special care about domain owner legitimate claims and e.g. prevent speculative registrars from steeling or grabbing names, or to try avoiding various speculative domain games played by registrars misusing dominant position in the domain name world to the detriment of legitimate domain owners. That's why I react sensitively when I notice attempts to detract or belittle legitimate rights of other stakeholders, one of which the constituency model with voting power undoubtedly is. Dominik -----Original Message----- From: at-large-bounces@atlarge-lists.icann.org [mailto:at-large-bounces@atlarge-lists.icann.org] On Behalf Of Roberto Gaetano Sent: Monday, October 19, 2009 6:40 PM To: 'William Drake' Cc: 'ALAC Working List'; 'At-Large Worldwide' Subject: Re: [At-Large] "placeholder" reps not placeholders? Bill, This is going to be my last message on the subject. Although interesting, I think that we should continue in Seoul, where in a F2F situation we will reduce the risk for further miscommunication and misunderstandings. A few clarifications:

"But the main point for the SIC to maintain the concept of constituency, against the open opposition of NCUC," which sounded to me like you were saying the main point for the SIC is to maintain the concept of constituency, against the open opposition of NCUC. Sorry for my confusion.

The confusion arises, IMHO, from the fact that we use the word "Constituency" to mean different things. I mean "the body that, as is right now, has ïnter alia the right to have councillors in the GNSO Council". And, unless mistaken, the concept of constituency as described is not what NCUC wants. And I do believe that the NCUC has stated this openly. When you say that NCUC is in favour of "constituencies", you mean "the bodies that are defined in the NCUC charter as being constituencies", which, unless I am mistaken, have many rights but not the right of voting councillors. So, one way to progress is to say that that everybody is in favour of "Constituencies", but that we need to come to an agreement to what will be the exact "powers" of the constituencies.

[...] (BTW, why did SIC ok RySG eliminating constituencies in their charter? I never understood the rationale for not having harmonized structures across SGs, and it makes the misimpression about NCUC's charter which explicitly provides for constituencies seem all the more odd.)

I think I have explained this a zillion times, but I can say this for the zillionth+1 time. One of the roles of the constituencies in the initial design of ICANN was to provide a mechanism to define and register membership. This was addressing a concern, which was to avoid capture by a group of people who were joining the process in a category where they were not really qualified to be. During the discussions related to the review, in the consultations with Ry and Rar we realized that this risk was non-existent for them, because in the way we had defined the SGs (i.e. as being the "Contracted Parties") we had an automatic mechanism to sort out the issue: if the organization has a contract with ICANN, it is in, otherwise it is out. And by virtue of this, we also had a complete list of the membership. This happened because during the process there was rough consensus by the community (although I was personally against, having preferred a "Suppliers" vs. "Consumers" approach) to have the "Contracted" vs. "Non-Contracted" separation. In the case of the non-contracted parties, we do not have such a mechanism. Check, for instance, the discussion about the potential individual registrants constituency, where one of the debates is how to sort out who is a commercial and who is a non-commercial registrant, and how can we monitor that the status at the moment of the registration is kept over time. Same issue if we think about a business entity that is also an IP holder, how we determine who is an internet service provider and who is not, etc. In simple words, we do not have an easy mechanism to determine who is qualified and who is not to join a SG. However, we have that for the constituencies, in the way that constituencies are currently defined and chartered. So, the proposal of the SIC (and the decision by the Board) has been that we could get rid of the constituencies in the contractual house, but not in the non-contractual house. You may agree or disagree with the decision, that has been already taken by the Board and is not on the table for further discussion, but this is the explanation of the rationale for it.

Entirely separate from the principal of constituencies are two issues:

[...]

You make good points here. I am looking forward to discuss these, among other things, in Seoul. I would like to keep this email short, addressing just clarifications and potential misunderstandings.

I didn't characterize the SIC as bad and ugly. It is unquestionably true though that the SIC imposed a solution that was opposed by NCUC's 80 organizational and 87 individual members and a wide array of non- member supporters and was supported by 3 people. If you don't like calling this top down, ok, give me another term for something done by the board over the strenuous opposition of the community in question. I'm not hung up on language, just facts.

Quite interestingly, I just read the email from Dominik Filipp, who agrees with you that the SIC did not follow a bottom-up process. However, what he objects on, is exactly the opposite: for him constituencies should be not only created and approved, but should have voting power in the council. The fact is that the bottom-up process is usually defined as "taking the decision that suits me" ;>) On a more serious vein, I invite everybody to take a step back and a deep breath. We started this process years ago, with a council where the voting ratio between non-commercial and commercial users was 1:3. The BGC before, and the SIC[K] after the changes in the Board committee structure, have analysed proposals, discussed with the community (all parts of the community), gathered feedback, proposed a solution, presented the solution to the different parts, rediscussed over and over again with all those who were opposing it from different sides, repeated these iterations several times, and arrived now at the final step where hopefully in a couple of weeks we will have this historic change, and a GNSO Council where the commercial and non-commercial communities are represented on a base of parity. In order to achieve this, it was necessary to go through an interim phase, during which we had transitional charters, giving ourselves time to think thoroughly the new composition and functioning of the SGs, but in a situation in which we were progressing from the past, and established as a matter of principle the parity between commercial and non-commercial. I was prepared to hear the grumbling of the commercial users, noting that they will be less represented than before, but I was incredibly astonished by the fact that all what I am hearing is the bitching of the different components of the non-commercial community, fighting bitterly for the control of the additional seats, yelling and screaming at the SIC from different sides, apparently forgetting completely that it was the BGC and SIC who recommended in first place to have this new balance. To be honest, if I had the chance to rewind the clock, over my dead body I would have ever accepted the task to deal with this matter, and would have much preferred to leave things as they were, raising my arms to show powerlessness, and suggesting to have everybody getting together and achieve consensus in a real "bottom-up way", and to come back to the Board when a consensus was found. Anybody has a guess on where we would be now? My bet is that we would still be with the old GNSO structure, as who likes the status quo would have prevented any move. The bottom-up process is not a process by which the decision is taken by the bottom, but a process in which the Board consults the community to the maximum extent possible, takes idea and proposals from the community to the maximum extent possible, but then makes a decision that does not necessarily please everybody.

Unfortunately, the consultation, negotiation and compromise didn't really involve NCUC.

What?!? In Sydney alone the SIC had two official meetings with NCUC, plus the discussions in the corridors, plus emails before and after. And even outside the SIC, other Board members were involved. I know that neither you nor Milton were there, but other NCUC folks, including the Chair, were there, you can check with them.

But we can still do that, and very much look forward to working with you in Seoul and beyond to arrive at a lasting solution that is supported by the actually existing NC community.

I hope so. Cheers, Roberto _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/at-large_atlarge-lists.icann... At-Large Official Site: http://atlarge.icann.org _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/at-large_atlarge-lists.icann... At-Large Official Site: http://atlarge.icann.org

Roberto, I would really like to know out of whose money such and similar SIC and Westlake bullshit proposals, studies and reviews are being paid. But it's unbelievable with what sort of "material" we are constantly being fed. Dominik -----Original Message----- From: at-large-bounces@atlarge-lists.icann.org [mailto:at-large-bounces@atlarge-lists.icann.org] On Behalf Of Roberto Gaetano Sent: Saturday, October 17, 2009 8:16 AM To: 'At-Large Worldwide'; 'James Seng'; alac-bounces@atlarge-lists.icann.org; 'William Drake' Cc: 'ALAC Working List' Subject: Re: [At-Large] "placeholder" reps not placeholders? Beau,

By the way, is it true what I heard that the three newly appointed GNSO people have now been hard-wired in to two-year terms? I don't really see a constituency model working under those circumstances. Who's going to join a constituency if they have to wait two years to be able to directly elect a representative? No consumer group I am aware of is going to want to do that.

I think that we will need to clarify many things in Seoul, one of which is the reason for certain decisions of the SIC. For instance, the SIC has decided, after long discussion, not to have an automatic link between creation of a constituency and establishment of a seat in the Council. The reasons against this position include what you correctly point out, i.e. that it will be more difficult to get people's interest if there's no immediate representation in terms of voting rights. However, there are also reasons for taking this approach. One of these is that we have to avoid the "frivolous" creation of constituencies for the simple purpose of getting a vote. A bit like create empty shells as registrars to have a higher firing power for getting valuable names. Another observation is that in the "old" council it was exactly the fact that the creation of a new constituency would have altered the voting balance that de facto prevented the creation of any new constituency in 10 years. But the main point for the SIC to maintain the concept of constituency, against the open opposition of NCUC, but to keep it without an automatic voting power, against the obvious concerns of who wants to build new constituencies, is the leit-motiv that has guided the whole process of the review: move the focus away from the vote, which is by its nature divisive, onto the consensus building process. New constituencies will not have the right to appoint their "own" councillors, but will have the right to participate in WGs and other policy making processes and bodies, will have support from ICANN staff and resources to self-organize, will be able to participate with their own representatives in the Executive Committee of the NCSG, etc. In simple words, what we have tried to do is to create a balance and hopefully a possible way to coexist and, in time, to collaborate, for all the different components of the wide and diverse non-commercial internet community. Somebody on this list has spoken about "reconsideration" of the Board's decision. This is surely possible. But what I would propose is to try to discuss and understand if what the SIC has proposed can work in practice, although it is not going to be perfect for anybody, before shooting it down and start all over again. This discussion is for me one of the main priorities, if not the first priority altogether, in Seoul, which as you all know will mark the end of my term as Director. The ALAC and the NCUC are two big parts of this picture, the only organized bodies in ICANN so far (for non-commercial users), I personally think that the first step can be to have a joint discussion in Seoul. Bill's proposal of meeting in an event that is not only work, but also social, goes in this sense, methinks. Cheers, Roberto _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/at-large_atlarge-lists.i cann.org At-Large Official Site: http://atlarge.icann.org