We have heard some proponents of the BMW application say and repeat that
their application automatically protects minority interests, and that the
Names Council as conceived by that document is not a powerful body at all
but instead one whose powers are greatly limited by the requirement to
consult with constituencies when it comes to making policy recommendations
to the ICANN Board.
Leaving aside the enormous power (and potential for abuse) vested in the
Names Council by virtue of its ability to appoint members to the ICANN
board, I have examined the BMW draft closely and have found that these
contentions of limited powers and minority protections are not to be found
in the language of the draft -- whether by inadvertancy or design, I can't
say.
Following is a line-by-line analysis of the procedure for developing
policies within the DNSO as defined by the BMW application, which I believe
shows that (a) given the very little attention given to the details of the
drafting/research committee procuedures, and (b) given the powerful
potential for abuse of the constituency system, the BMW application has the
following effects:
1. Vests tremendous power in the Names Council wrt developing policy (forget
the fact that they select DNSO members to the ICANN Board), because the
Names Council and the "constituencies" as defined in the application may be
in practice one and the same.
2. Does not provide for consultation with the DNSO membership, because the
constituencies are under no obligation (depending on their rules) to consult
their members, or even under any obligation to be fair
3. Effectively provides veto power for many interest groups, because of the
difficulty of pre-defining constituencies and because of the ability of any
member to join more than one constituency. As defined now, both
business/trademark interests and registrars/ISPs will have a veto.
4. Allows the consideration of any topic to be blocked by a majority of the
Names Council, giving the Names Council far more power to delay or prevent
the forwarding of a recommendation to ICANN than anything contained in the
Paris Draft.
5. Allows the drafting/research committees to proceed wholly in secret, with
no record-keeping, no minutes, and no requirement for broad-based
participation or indeed participation of any interested parties at all.
Let's examine what practical meanings and applications the BMW consultations
*could* have. I'll push the interpretations here a bit, because I want to
expose the ambiguities and weaknesses. Here's how the normal process would
work. (Note: the following paragraphs below come consecutively, in their
entirety, from Section II.A of the BMW draft.)
"Constituencies may provide initial input to the Names Council on a given
topic. If the Names Council undertakes consideration of a topic, or if a
constituency requests consideration of a topic, the Names Council shall
designate one or more research or drafting committees, as appropriate, and
shall set a time frame for the draft."
Problems:
1. No specification of who will be on the research/drafting committee.
2. No requirement that there will be any research at all. Under this
language, it is possible that the Names Council will round up some people
and say, "OK, we have this idea, put it in writing."
3. A more likely and dangerous possibility is that the members of these
committees could be drawn excusively from the ranks of the Names Council,
and no-one else will even know about the topic until is presented to them in
finished form -- in other words, there will be no input from anyone outside
the Names Council until the proposed recommendation is in a "first draft"
stage.
4. No parameters for time frames -- what is expected to be normal? A day, a
week, a month?
5. No requirements for record-keeping and public notification of the
Research/Drafting committees, so we'll never know *how* they reached their
decisions. Is this the International Olympic Committee or an organization
with "fair, open, and transparent" processes?
Continuing:
"The draft shall then be returned from the committee for review by Names
Council. The Names Council may either accept the draft for submission back
to constituencies for comment and consultation or return the draft to the
committee for further work. After the draft is submitted to the
constituencies and the comment period for the constituencies is over, the
Names Council shall evaluate the comments to determine whether there is the
basis for a consensus recommendation."
Problems:
1. If the Names Council doesn't like what it sees, it can send it back to
the committee. It can do this for ever and ever. There is no requirement
that the constituencies ever see any draft. There is no requirement that
they even know about the existence of a draft.
2. A very very large problem now crests, a ripple effect (tsunami effect?)
from the extreme vagueness of how constituencies are supposed to operate
internally. The only specification of this comes from Section I.A: "The
DNSO membership shall consist of constituencies, as described below. Each
constituency shall self-organize and determine its own criteria for
membership. Such criteria shall be publicly available." There is not even
a requirement that the constituencies follow the apple-pie ICANN mantra of
being "fair, open, and transparent." For the purposes of this discussion on
how policies are developed, the immediate objection is that it is possible
for the "constituency" to be "consulted" merely by running the draft past
the Names Council members from that constituency - depending on how the
constituency organized itself. As constituencies are to be organized
according to rules developed only by the initial members, it may well have
top-heavy seniority rules that prevent meaningful participation by later
entrants, or even weaker initial entrants. Thus there is no guarantee or
even expectation that minority or dissident members of a constituency will
have any voice at all. So the idea that the Names Council is necessarily
going to get any sense of what a constituency thinks (as opposed to what its
leaders think) is a chimera.
3. The comment period, and comments. How long is it? Is it long enough to
generate a meaningful discussion? How are comments to be forwarded? Does
anyone get to comment, or is it just "official" constituency comments that
are to be heard. What happens to the comments? Are they filed with any
eventual recommendation sent to ICANN, are they made part of the record? Is
the Names Council and/or the Drafting/Research Committee obliged to respond
to comments, or can they just put them in the circular file? This comment
process *ought* to be the meat and potatoes of the deliberative effort of
the DNSO, yet it is given one short sentence in the BMW draft.
4. Names Council evaluation of comments. How are they evaluated? Is there
any process to be followed? Do Names Council members have any obligation to
provide reasons for their votes? Is the evaluation the same as a meeting,
will there be publicly available minutes of the evaluation?
Moving on:
"A consensus recommendation is one that is supported by the affirmative vote
of two thirds of the members of the Names Council and is not opposed by the
votes of all of the representatives of any two constituencies. If a
consensus recommendation is developed, any constituency may file a
statement of its dissenting view to accompany the recommendation to the
Board of the Corporation. If a recommendation is supported by an
affirmative vote of more than one half but less than two-thirds of the
members of the Names Council, the Council shall submit the recommendation to
the Board of the Corporation with statements of majority and minority views.
If a recommendation is not supported by affirmative vote of at least one
half of the members of the Names Council, the Names Council will submit the
proposed recommendation back to the drafting committee for re-drafting
consistent with constituency comments.
Problems:
1. The first sentence means that the definition of the constituencies is
absolutely vital and critical for the DNSO, as described here in the BMW
draft, to have any chance of working fairly and effectively. If, as critics
of trademark interests have pointed out so often on these lists, the
"business" and "trademark" constituencies are essentially similar, and if
one is allowed to join one than more constituency (as indeed is allowed by
the BMW draft) then this is a business/trademark veto. It could also be a
ISP/Registrar veto, since the distinction between these groups is hardly
clear.
2. The "dissenting view" accompaniment brings up again the question of how
minorities in constituencies are handled. It is possible that even though
49% of a constituency dissents, their dissent won't be recognized because
they don't have a majority within the constituency.
3. Statements of majority and minority views - one view per side, or more
than one? Surely the idea should be to send to ICANN the full sense of the
DNSO, not just a one side, or two sides.
Hopefully this analysis will aid us in developing real procedures and
methods for assuring that all stakeholders have a voice, that openness and
accountability are central to the operation of the DNSO, and that capture
and blockage are not possible.
Antony
