For your information, attached is an updated version of the "Input Received on Outstanding Issues" relating to GNSO Council restructuring. An additional comment submitted by Danny Younger (but not received due to an email error) is included in the attached version, which was provided to ICANN's Board. Also, included below is a copy of the responses received to my follow-up request to the community for input on additional issues concerning Council restructuring. These also have been forwarded to all Board members. Below you will find 1) a copy of my email asking for input on four specific issues, 2) a response from Steve Metalitz for the Intellectual Property Constituency, 3) a response from Jonathon Nevett, Chair of the Registrar Constituency, and 4) a response from Alan Greenberg (informally) on behalf of the At-Large Advisory Committee. Regards, Denise -- Denise Michel ICANN VP, Policy policy-staff@icann.org <denise.michel@icann.org> ========================= *[1] Email from Denise Michel soliciting additional input* Dear Community Members, As previously noted, discussions continue on outstanding issues related to GNSO Council restructuring. I wanted to keep you apprised of issues and ideas under consideration that I am aware of, and give you (individually or as constituencies/advisory committees if time permits) an opportunity to provide input. Thank you to those who responded to my previous email (included below). Additional input received before 26 September on the issues noted below will be summarized for the Board prior to their 30 September meeting at which these issues will be discussed. 1) Registrants and/or Individual User Participation -- If the Non-commercial Stakeholder Group includes individual Internet user groups, should any distinctions be made with the membership of the ALAC and supporting At-Large structures (which represents individual Internet users' viewpoint across all of ICANN's structures and activities)? The GNSO Working Group (WG-GCR) recommended the inclusion of "all interested parties that use or provide services for the Internet..." in the non-contracted party house and stated that it "should not be restricted to domain registrants." The BGC GNSO Improvements Report adopted by the Board in June stated that a new Non-commercial Stakeholders Group "must go far beyond the membership of the current NCUC" (which is chartered to represent non-commercial entities). "We must consider educational, research, and philanthropic organizations, foundations, think tanks, members of academia, individual registrant groups and other noncommercial organizations, as well as individual registrants, as part of a non-commercial registrants Stakeholders Group." 2) Voting Thresholds for New Working Group Model -- An additional issue raised is whether voting thresholds were needed for electing the chair of a PDP WG and approving the charter for a PDP WG. If so, what should the thresholds be? (see previous email below for other thresholds recommended by the WG-GCR). 3) Electing Council Leadership -- There seems to be agreement with the WG-GCR proposal to elect the chair by 60% vote of both houses, and the discussion is focused on whether a back-up provision is needed. If you have not provided comments, input would be appreciated on whether an alternate provision is needed in case no candidate achieves such supermajority and, if so, what that provision should be. Ideas discussed include: the full Council voting with a simple majority with weighted voting in the contracted party house to make the total house votes equal, and the NCAs would each have a single vote; and elect a chair by more than 50% of the vote of both houses. 4) Implementation Plan -- The Board has directed that an implementation plan be submitted for Board approval that creates a transition to the new Council structure. Further input would be appreciated on this point, including on transition timing and whether additional guidance or requirements are needed on the implementation plan. Also, views would be appreciated on what provision should be made to fill seats on the new Council if a Stakeholder Plan is not approved by the Board. Thank you for your continued involvement and input. Regards, Denise -- Denise Michel ICANN VP, Policy policy-staff@icann.org ===================== *[2] Email from Steve Metalitz on behalf of the Intellectual Property Constituency * IPC responses to ICANN staff queries re GNSO restructuring 1) Registrants and/or Individual User Participation -- If the Non-commercial Stakeholder Group includes individual Internet user groups, should any distinctions be made with the membership of the ALAC and supporting At-Large structures (which represents individual Internet users' viewpoint across all of ICANN's structures and activities)? The GNSO Working Group (WG-GCR) recommended the inclusion of "all interested parties that use or provide services for the Internet..." in the non-contracted party house and stated that it "should not be restricted to domain registrants." The BGC GNSO Improvements Report adopted by the Board in June stated that a new Non-commercial Stakeholders Group "must go far beyond the membership of the current NCUC" (which is chartered to represent non-commercial entities). "We must consider educational, research, and philanthropic organizations, foundations, think tanks, members of academia, individual registrant groups and other noncommercial organizations, as well as individual registrants, as part of a non-commercial registrants Stakeholders Group." Response: IPC agrees that the Non-commercial Stakeholder Group should be open to entities representing non-commercial users (including individuals), not just domain name registrants. We also agree with the BGC GNSO Improvements Report that this stakeholder group must be far broader than the current NCUC, including for example representatives of the sectors referred to in the last sentence above. 2) Voting Thresholds for New Working Group Model -- An additional issue raised is whether voting thresholds were needed for electing the chair of a PDP WG and approving the charter for a PDP WG. If so, what should the thresholds be? (see previous email for other thresholds recommended by the WG-GCR). Response: Approving the charter of a PDP WG would seem to be comprehended within the concept of initiation of a PDP, and thus subject to the thresholds of >33% of both Houses or >66% of one House. Electing the chair of a WG would fall under any other business. (These thresholds could be subject to review as part of the process of revising the PDP.) 3) Electing Council Leadership -- There seems to be agreement with the WG-GCR proposal to elect the chair by 60% vote of both houses, and the discussion is focused on whether a back-up provision is needed. If you have not provided comments, input would be appreciated on whether an alternate provision is needed in case no candidate achieves such supermajority and, if so, what that provision should be. Ideas discussed include: the full Council voting with a simple majority with weighted voting in the contracted party house to make the total house votes equal, and the NCAs would each have a single vote; and elect a chair by more than 50% of the vote of both houses. Response: As previously stated, no back up mechanism is needed. 4) Implementation Plan -- The Board has directed that an implementation plan be submitted for Board approval that creates a transition to the new Council structure. Further input would be appreciated on this point, including on transition timing and whether additional guidance or requirements are needed on the implementation plan. Also, views would be appreciated on what provision should be made to fill seats on the new Council if a Stakeholder Plan is not approved by the Board. Response: A clear and realistic timeline will be very important. The new council structure should not take effect until all stakeholder groups have been demonstrated to have fulfilled pre-established objective criteria for diversity and representativeness. The timeline must accommodate both the development of these criteria and the efforts of stakeholder groups to fulfill them. A realistic timeline would minimize the likelihood that any back-up mechanism will be needed to populate the Council through some mechanism other than Stakeholder Group selection, in order to represent the denizens of one Stakeholder Group that has not fulfilled the diversity and representativeness criteria. Please let me know if any questions. Thanks for reaching out to us on this. Steve Metalitz, IPC president ===================== *[3] Email from Jonathon Nevett , Chair of the Registrars Constituency * (See in-line comments from "JN" below) 1) Registrants and/or Individual User Participation -- If the Non-commercial Stakeholder Group includes individual Internet user groups, should any distinctions be made with the membership of the ALAC and supporting At-Large structures (which represents individual Internet users' viewpoint across all of ICANN's structures and activities)? The GNSO Working Group (WG-GCR) recommended the inclusion of "all interested parties that use or provide services for the Internet..." in the non-contracted party house and stated that it "should not be restricted to domain registrants." The BGC GNSO Improvements Report adopted by the Board in June stated that a new Non-commercial Stakeholders Group "must go far beyond the membership of the current NCUC" (which is chartered to represent non-commercial entities). "We must consider educational, research, and philanthropic organizations, foundations, think tanks, members of academia, individual registrant groups and other noncommercial organizations, as well as individual registrants, as part of a non-commercial registrants Stakeholders Group." JN: No comment. 2) Voting Thresholds for New Working Group Model -- An additional issue raised is whether voting thresholds were needed for electing the chair of a PDP WG and approving the charter for a PDP WG. If so, what should the thresholds be? (see previous email below for other thresholds recommended by the WG-GCR). JN: Under the current voting system, the threshold for initiating a PDP is 33% and creating a Task Force is 50%. I would think that approving the charter of a PDP should require at least a 33% vote of BOTH houses. To permit one house to dictate the charter unilaterally – even by a supermajority vote – would cripple the WG and reduce the chances of reaching a consensus. The Chair of the WG should be elected by that WG. 3) Electing Council Leadership -- There seems to be agreement with the WG-GCR proposal to elect the chair by 60% vote of both houses, and the discussion is focused on whether a back-up provision is needed. If you have not provided comments, input would be appreciated on whether an alternate provision is needed in case no candidate achieves such supermajority and, if so, what that provision should be. Ideas discussed include: the full Council voting with a simple majority with weighted voting in the contracted party house to make the total house votes equal, and the NCAs would each have a single vote; and elect a chair by more than 50% of the vote of both houses. JN: An alternate provision is definitely needed. The GNSO shouldn't be without a chair because the houses couldn't agree on a candidate. I am fine with making the Council-level NomCom appointee the default Chair. I actually like the second suggestion even better -- a vote of the entire Council with weighted voting for the contracted party house (i.e. 6 votes for registries, 6 votes for registrars, 6 votes for commercial non-contracted parties, 6 votes for non-commercial non-contracted parties, 3 votes for the NomCom reps). 4) Implementation Plan -- The Board has directed that an implementation plan be submitted for Board approval that creates a transition to the new Council structure. Further input would be appreciated on this point, including on transition timing and whether additional guidance or requirements are needed on the implementation plan. Also, views would be appreciated on what provision should be made to fill seats on the new Council if a Stakeholder Plan is not approved by the Board. JN: I'm a bit confused by this question. Is the Stakeholder Plan distinct from the Implementation Plan? How does this relate to the work of the Planning Team? Sorry for my confusion here. ========================= *[4] Email from Alan Greenberg on behalf of the ALAC (note that no formal vote was taken on this statement due to time constraints) * 1) Registrants and/or Individual User Participation -- If the Non-commercial Stakeholder Group includes individual Internet user groups, should any distinctions be made with the membership of the ALAC and supporting At-Large structures (which represents individual Internet users' viewpoint across all of ICANN's structures and activities)? The GNSO Working Group (WG-GCR) recommended the inclusion of "all interested parties that use or provide services for the Internet..." in the non-contracted party house and stated that it "should not be restricted to domain registrants." The BGC GNSO Improvements Report adopted by the Board in June stated that a new Non-commercial Stakeholders Group "must go far beyond the membership of the current NCUC" (which is chartered to represent non-commercial entities). "We must consider educational, research, and philanthropic organizations, foundations, think tanks, members of academia, individual registrant groups and other noncommercial organizations, as well as individual registrants, as part of a non-commercial registrants Stakeholders Group." The question is confusing. Membership of ALAC is a group of people and it is unclear what this small group has to do with GNSO constituencies. The same goes for the RALO management. The issue of ALSs I have addressed in several venues when commenting on Recommendation 12 of the ALAC Review. Reproduced below are the comments by the APRALO and Alan Greenberg. In summary, the distinction is one of the interests of the ALS or other organization, and they should be free to participate where they want, in line with other ICANN participation rules. However since the Board is asking this question, it is clear that ALAC, NCUC and ICANN as a whole needs to develop clear statements about what the various organizations do, and guide newcomers through the maze. The issue of whether an organization with dual membership can vote in both is being discussed in regard to IIC consultations, although in this context, Capture does not seem to be a large threat. With regard to the other types of groups listed in the BGC report (educational, research, and philanthropic organizations, foundations, think tanks, members of academia, individual registrant groups and other noncommercial organizations), the ALAC encourages involvement at all of those levels. APRALO Comment on Review Rec. 12 Recommendation 12. APRALO is unsure why this is an issue, and indeed see no reason why an organisation that is a Not For Profit which it must be to join NCUC at this point in time, and which can demonstrate that it represents the interest of individual Internet Users (and therefore could become a certified ALS) could not be a member of both constituencies as each have different purpose within ICANN. ALSs feed into the ALAC and its capacity to both act as advisor to the ICANN Board on any matter dynamic as well as to exercise its ability to call for an Advisory Committee Initiation of the GNSO PDP Process when it is aware of a matter of serious concern to its constituency (as was done in the matter of Domain Tasting). Whereas the NCUC represents Non Commercial Users interests as a constituency (currently the only one but with the new proposals for GNSO Council Structure this should change) as a voting part of the GNSO Council and is limited to its activities of gTLD Policy development. Indeed as there is no rule that limits an individual or entity to only membership of one GNSO constituency an ALS may indeed be a member of several GNSO constituency groups including NCUC. Alan Greenberg's Comment to Review Rec 12: I believe that this question was not quite appropriate at the time it was asked, and even less so with the restructuring of the GNSO Council. Without going into the letter of the formal rules, an ALS must credibly represent user interests. And at least one RALO allows individuals to join the RALO directly in lieu of joining an ALS. Pretty much any not-for profit can join the NCUC, and they are now planning to let individuals join as well. There is clearly overlap and that is not likely to change. The differentiator is not necessarily the characteristic of the organization, but rather their interests. Ignoring for the moment the new GNSO structure: • NCUC is a part of the GNSO which has a mandate to develop ALL gTLD policies in ICANN. No more, no less. • ALAC and its At-Large organization have a mandate to advise the Board on ANY ICANN issue of relevance to users. But because of the wider scope, it will always need to pick and choose what it selects to address. It is not formally mandated to develop policy. Depending on where their interest and priorities lie, they may pick who they want to associate with. Or both. There is (as far as I know) nothing that prevents an organization (or individual for the areas where they are allowed) from playing in both sandboxes. The ICANN Bylaws EXPLICITLY state that an individual or entity can participate in more than one GNSO constituency. I can see no reason that the same cannot be true for GNSO Constituencies and At-Large ALSs. I note that most ALSs existed before they joined At-Large - they have lives and interests of their own which may or may not coincide with multiple ICANN outreach directions. Once can easily imagine a community-owned wireless network becoming an ALS and a member of the ISP or Registrar Constituencies. If the question being asked is should the ALAC help develop guidelines that would explain to outsiders why they might want to join ALAC, the answer is "Definitely". Just as presumably the NCUC will do for their prospective members. And in the presence of both documents, perhaps a "participation flowchart" could be developed. 2) Voting Thresholds for New Working Group Model -- An additional issue raised is whether voting thresholds were needed for electing the chair of a PDP WG and approving the charter for a PDP WG. If so, what should the thresholds be? (see previous email below for other thresholds recommended by the WG-GCR). There is no clear reason that the thresholds for these WG issues should be other than the "all other" category requiring 50% of both houses, but if there is some compelling reason for setting them at a different level, ALAC would not likely have a concern. 3) Electing Council Leadership -- There seems to be agreement with the WG-GCR proposal to elect the chair by 60% vote of both houses, and the discussion is focused on whether a back-up provision is needed. If you have not provided comments, input would be appreciated on whether an alternate provision is needed in case no candidate achieves such supermajority and, if so, what that provision should be. Ideas discussed include: the full Council voting with a simple majority with weighted voting in the contracted party house to make the total house votes equal, and the NCAs would each have a single vote; and elect a chair by more than 50% of the vote of both houses. A simple mechanism which does not have the potential for deadlock is preferable, and in the previous set of answers we supported the weighted voting mechanism. We can live with this as the fall-back method as well. If a deadlock-prone alternative is selected, such deadlock could also be addressed with a form of 2nd/3rd round voting with lowered threahholds. 4) Implementation Plan -- The Board has directed that an implementation plan be submitted for Board approval that creates a transition to the new Council structure. Further input would be appreciated on this point, including on transition timing and whether additional guidance or requirements are needed on the implementation plan. Also, views would be appreciated on what provision should be made to fill seats on the new Council if a Stakeholder Plan is not approved by the Board. Regarding timing, the recently announced revised timing of April 2009 or later makes a lot more sense than the previous deadline of Jan. 1, 2009. Regarding the allocation of Council seats, we see no easy solution in the cases where the N constituencies must divide 3 or 6 seats. Even in a "simple" case of 2 constituencies and 6 seats, it is not intuitively obvious that the division should be 3 and 3. The size and import of the two constituencies should play a factor, and both of those measures are going to be VERY subjective. If cases where there are sufficient seats, each Constituency should receive at least one seat. This is an implicit problem with the Constituency:Stakeholder Group model proposed by the BGC. Although not a full solution to the problem, allowing fractional votes per council member may be required (that is, a given member may vote .6 of a vote Yes, and .4 No. This is an ugly concept, but it is unclear what better way we will have of representing constituencies if we are indeed successful and have MANY in an SQ. -- Denise Michel ICANN VP, Policy denise.michel@icann.org +1.408.429.3072