Request for Community Input on the Appropriate Role and Representation of Individual Internet Users, Including Individual Commercial and Non-Commercial Internet Users, in the GNSO
Independent reviews of the GNSO, the ICANN Nominating Committee (NomCom), the At-Large Advisory Committee (ALAC), and the ICANN Board of Directors (Board) have revealed a number of fundamental organizational issues for the Board to clarify and resolve in setting the strategic direction of the corporation. Additionally, the GNSO Improvements Recommendations approved by the Board, and recommendations provided by the Working Group on GNSO Council Restructuring and the "User Community for GNSO Council Structural Change," also touch on important organizational issues. These various "meta-issues" require Board resolution in order to reconcile overlaps, conflicts, and differences of perspective.
One of the most immediate of those issues, and the explicit subject of this public announcement, is the need to clarify the proper strategic approach to representation of individual Internet user interests within ICANN and, specifically, the GNSO.
The GNSO Improvements process, currently in the implementation phase and under active Board consideration, is driving the urgency of this issue. Failure to resolve this matter could adversely affect implementation of the GNSO Council restructuring effort and could have wider implications regarding other GNSO improvements and the review of other ICANN structures.
In recognition of these implications, the ICANN Board resolved at its 1 October 2008 meeting to continue community dialogue on this subject. The Board resolution states:
It is, Resolved (2008.10.01.14), The Board requests additional community dialogue and input on the appropriate role and representation of individual Internet users, including individual commercial and non-commercial Internet users, in the GNSO. Input from the GNSO, the ALAC and At-Large community, and any relevant applicants for new constituencies, would be particularly helpful and should address the inclusion of registrants and individual users in the GNSO in a manner that compliments the ALAC and its supporting structures, and ensures that registrants' and individual Internet users' gTLD interests are effectively represented within the GNSO.
In response to the Board's request, the ICANN Staff is opening a 30-day public consultation forum and invites community comments. This document attempts to put the issue in context and outline a number of potential courses of action that the Board could take to resolve the matter. All ideas and relevant comments are welcome. The forum is scheduled to be open from 28 October 2008 until 28 November 2008.
The bylaws call for periodic independent review of ICANN's structures. The review process established by the Board involves a separate independent reviewer, a Board Governance Committee (BGC) working group, and public comment forums for each review.
Although this approach facilitates an in-depth focus on a single structure, none of ICANN's structures actually operates in isolation. The independent review process does not fully address key interrelationships and dependencies that are visible only when several (or all) structures are examined as an integrated system rather than as a disconnected collection of parts. This limitation has been acknowledged and, during the current cycle, the chairs of the BGC and several of its working groups have explicitly noted the importance of considering the results and recommendations of closely related reviews together.
As a result of the most recent reviews, one particularly critical interdependent issue requiring careful consideration is the treatment of individual Internet users within the ICANN structure. The appropriate mechanism for representation of individual Internet user interests in the ALAC/At-Large structure and in the GNSO must be clarified. This background section summarizes the status of the GNSO, NomCom and ALAC independent reviews and subsequent improvement efforts, and highlights significant recommendations from each process as they apply to the participation of individual Internet users.1
GNSO Review (Status – Final Board Decision Phase and Implementation)
On 26 June 2008 the Board endorsed the recommendations set forth in the BGC GNSO Review Working Group's GNSO Improvements Report (the BGC WG Report) with the exception of the GNSO Council structure, including the establishment of "stakeholder groups" and representation on the Council. Among the BGC recommendations approved by the Board was that the new GNSO include a "Non-Commercial Stakeholders Group" that "…must go far beyond the membership of the current Non-Commercial Users Constituency (NCUC). We must consider educational, research, and philanthropic organizations, foundations, think tanks, members of academia, individual registrant groups and other non-commercial organizations, as well as individual registrants."2
In reaching its June decision, the Board directed the GNSO to convene a working group (WG-GCR) to develop a consensus recommendation on restructuring the GNSO Council. The WG-GCR Report, accepted by the Board at its 28 July meeting, proposed creating a new non-contracted party voting house comprised of both commercial and non-commercial stakeholder groups. The WG-GCR recommended that the Board extend membership in the non-contracted party house beyond the scope of individual registrants (reinforcing the BGC Report) to include "all interested parties ... that use or provide services for the Internet." The WG-GCR Report went on to assert that house membership "…should explicitly not be restricted to domain registrants as recommended by the BGC" and further contended that "…this is in line with the current ICANN By-Laws."3
At its 28 August and 1 October meetings, the Board adopted most of the WG-GCR recommendations. One issue left unresolved was the role of users in the GNSO structure and the Board asked specifically for further community input on this matter.4
NomCom Review (Status – BGC Considering WG Recommendations)
The NomCom independent evaluator's report was posted on 23 October 2007. The BGC's NomCom Review Working Group considered the report, including public comment, and submitted recommendations to the BGC on 23 June 2008.
The NomCom evaluator's report included recommendations that the ALAC directly appoint two members of the Board and select its own additional members without NomCom involvement (effectively transforming the ALAC from an advisory to a supporting role akin to that of an official ICANN Supporting Organization). The evaluator also recommended that the GNSO and ccNSO take responsibility for selecting their own additional members, rather than the NomCom. The NomCom Review WG considered and solicited public comment on the evaluation, and submitted a set of recommended changes that is under consideration by the full BGC.
ALAC Review (Status – BGC WG Developing Recommendations)
The ALAC reviewer's report [PDF, 560K] was posted on 25 July 2008 for a public comment period that ended on 12 September 2008. The key recommendation of the ALAC review, relevant to this paper, was that individual users should continue to be involved in ICANN through the ALAC and its supporting structures rather than through one or more constituencies of the GNSO. The reviewer stated that the ALAC should explore ways to differentiate between organizations that genuinely represent individual Internet users (who are therefore ALS candidates) and organizations that may be a better fit with the GNSO's Non-Commercial Users Constituency (NCUC). The BGC ALAC Review WG is considering and soliciting public comment on the evaluation, and will submit a set of recommended changes to the full BGC for consideration.
3. SUMMARY AND DISCUSSION:
The proper representation of, and participation by, individual Internet user interests in ICANN's governance has been the subject of divergent viewpoints since the corporation was founded. At one extreme, some have argued in favor of populating ICANN's governing bodies (particularly the Board) by direct popular vote (involving variously defined franchises). On the other hand, there are those who advocate limiting participation in ICANN's governance to those parties directly affected by its explicit regulatory authority. None of the recommendations from the GNSO, NomCom or ALAC reviews or the GNSO Improvement/Restructuring proposals takes a position at either extreme, but they vary significantly within the middle ground.
In the context of ICANN governance, individual user interests are currently represented by the ALAC and its supporting infrastructure of regional and local At-Large user groups. The ALAC is an advisory committee to the Board and has a broad mandate to offer individual user community input on any matter within ICANN's purview. In other contexts, individual user interests are also represented through the opportunity to participate in ICANN's activities, including its regular meetings, and to submit both formal and informal comments about ICANN's documents and actions.
Currently within the GNSO, the Non-Commercial Users Constituency is chartered by the Board to represent non-commercial organizations ("representing non-commercial entity users") as a GNSO constituency. The Commercial and Business Users Constituency (CBUC) is chartered by the Board to represent "both large and small commercial entity users of the Internet."
Conventionally, a distinction has been made between the broad mandate of the ALAC to represent the individual "At-Large" user viewpoint across all of ICANN's structures and the narrower mandate of the NCUC and CBUC to operate as a defined constituency within the gTLD policy-development environment of the GNSO representing non-profit groups and commercial entities respectively.
The BGC WG Report introduced a variation by envisioning the development of a comprehensive "Non-Commercial Stakeholders Group" (NCSG) to represent the interests in gTLD policy development of a wide range of non-commercial entities including educational/academic, research, philanthropic organizations, foundations, think tanks, individual registrant groups, other non-commercial organizations, and individual registrants. In effect, the NCSG's "representativeness" would extend and expand beyond the reach of the current NCUC although the NCUC would likely remain a part of the new stakeholder group in some form.
This view has been supported by members of the GNSO community, most recently by Philip Sheppard, CBUC representative on the WG-GCR, who stated, "The [new non-commercial stakeholders group] is the area of greatest uncertainty. We are moving from an NCUC of 3 seats to a new stakeholders group of 6. The working assumption of everyone involved is that some mechanism involving the at-large organization would enable this expansion in such a way that the new group is a step change in representativeness and credibility. From the commercial side we believe the ALAC is best placed to be the lead in bringing this about. He also stated that "the commercial stakeholders group and the Business Constituency will continue to welcome sole traders, that is individuals who have incorporated a commercial entity and who are registrants."5
The treatment of individual Internet user interests in the ICANN structure is currently the subject of at least four varying perspectives arising from the ALAC, NomCom, and GNSO review/improvement efforts. The four views are described and enumerated for reference as follows:
- The ALAC independent evaluator's report asks whether or not the real-world interest of individual users in ICANN's activities is significant enough to sustain meaningful At-Large participation and recommends that they continue to be involved through the ALAC and its supporting structures rather than through one or more GNSO constituencies. In essence, the review advocates building up the current structure by increasing the ALAC/At-Large membership and strengthening the ALAC/At-Large role.
- The BGC GNSO Review WG Report recommends that a new GNSO non-commercial stakeholders group include " individual registrant groups and other non-commercial organizations, as well as individual registrants." This view is not inconsistent with the ALAC independent evaluator's recommendation because it tacitly acknowledges that the ALAC can continue to serve the interests of individual Internet users while the GNSO can narrow its focus to individual registrants who by definition are active participants in the DNS.
- The WG-GCR Report asked the Board to approve a non-contracted party house that "…would be open to membership of all interested parties … that use or provide services for the Internet … and should explicitly not be restricted to domain registrants as recommended by the BGC." This approach conflicts with the BGC recommendation by opening up the commercial and non-commercial stakeholder groups to individual Internet users.6
- The NomCom independent evaluator's report recommended that the ALAC directly appoint two voting Board members (similar to the SO's Board appointments), in contrast to the ALAC independent evaluator's report, which recommended no change to the ALAC's appointment of one non-voting Board liaison.
The strategic challenge arising from these competing observations is how to devise a structure that incorporates and represents the legitimate interests of individual Internet users in constructive yet complimentary ways. The WG-GCR's distinction between contracted and non-contracted parties attempts to address this difficulty, but was designed primarily as a voting apparatus. In another way, the WG-GCR's proposal for an expanded non-commercial stakeholders group (populated with individual Internet user representatives) could be viewed as duplicating at least some of the responsibilities currently vested in the ALAC although it would not eliminate its liaison to the GNSO Council. To that extent it conflicts with the recommendation of the ALAC independent evaluator that the ALAC membership be expanded and its role strengthened, while maintaining its liaison relationship with the GNSO. The NomCom independent evaluator similarly implies a shift of individual user influence toward the ALAC versus the GNSO.
4. Board Options:
In order to advise the community on how to proceed with GNSO Council restructuring, the Board is seeking to clarify and decide which of the various approaches should govern the GNSO Improvements implementation effort. The Board has a number of available options including (but not limited to):
- adopting the approach contained in the WG-GCR proposal;
- rejecting the WG-GCR approach and reinforcing the BGC recommendation limiting GNSO membership to registrants – not a more expanded definition of individual Internet users; or
- requesting that the GNSO work with the ALAC, the broader At-Large community, and any new "non-commercial" constituencies the Board may approve to jointly develop an implementation plan for the initial composition of a Non-Commercial Stakeholder Group that does not duplicate the ALAC and its supporting structures, yet ensures that the individual Internet user's gTLD interests are effectively represented within the GNSO. This plan would be submitted for Board approval.
5. Submitting Comments
Comments on these potential options and any other options or contributions from the ICANN community are welcomed until 28 November 2008. All comments received during the consultation period will be summarized for Board consideration.
Deadline and How to Submit Comments:
The Staff is opening a 30-day public consultation forum, from 28 October 2008 until 28 November 2008, and invites community comments on this topic.
Staff Member responsible: Robert Hoggarth.
To submit comments: firstname.lastname@example.org
To view comments: http://forum.icann.org/lists/gnso-users/
The formal Public Comment Forum Box is located here: http://www.icann.org/en/public-comment/public-comment-200811.html#gnso-users
- See BGC WG GNSO Improvements Report (3 February 2008) http://www.icann.org/topics/gnso-improvements/gnso-improvements-report-03feb08.pdf
- See Report To ICANN Board From Working Group on GNSO Council Restructuring (WG-GCR Report), 25 July 2008 http://www.icann.org/en/topics/gnso-improvements/gnso-council-restructuring-report-25jul08.pdf
- Minutes of the Special Meeting of the ICANN Board of Directors, 28 August 2008 http://www.icann.org/en/minutes/minutes-28aug08.htm
- Preliminary Report, Resolutions of Special Board Meeting, 1 October 2008 http://www.icann.org/en/minutes/prelim-report-01oct08.htm
- See http://www.icann.org/en/reviews/ for updates and material on all Independent Reviews
1 Although the Board review is also under way, there are no direct implications for the present issue in that review process.2 See GNSO Improvements Report at page 32, http://www.icann.org/topics/gnso-improvements/gnso-improvements-report-03feb08.pdf
3 Article X, Section 5 of the ICANN Bylaws is not clear on that subject.
4 The Board is also invited further GNSO community input regarding the methodology for election of Board Seats #13 and #14 and that inquiry will be pursued directly with the GNSO Council.
5 5 September 2008 email from Philip Sheppard to Board Chair, Peter Dengate Thrush
6 The WG-GCR Report makes no distinction between the commercial and non-commercial stakeholder groups in seeking the Board's approval to expand eligibility beyond individual registrants to all individual Internet users.