[bc-gnso] M O'Connor: Revised BC Charter - discussion and vote

Mike O'Connor mike at haven2.com
Sat Sep 5 14:41:53 UTC 2009

i like that  City Level TLD Constituency charter a lot, as a starting  

where are we at on the "approve a new charter" process?  are we still  
shooting for the end of next week?  what process are we going to follow?


On Sep 3, 2009, at 2:10 PM, George Kirikos wrote:

> Hello,
> On Tue, Sep 1, 2009 at 8:41 PM, Mike O'Connor<mike at haven2.com> wrote:
>> i have taken a run at a red-line that purely reflects my personal  
>> views,
>> although i'm drawing on a number of experiences as a member of the
>> Credentials Committee.  you'll see that my main interest tends to  
>> run toward
>> due-process although i've included a few other changes that i  
>> absorbed over
>> time.
>> feel free to comment/revise/improve.
> I agree with many of the concerns raised by Mike O'Connor in his
> annotated and edited version of the draft charter.
> It might be best to start from scratch from a more solid foundation,
> for example the City Top-Level Domain Constituency application had a
> good start, using the template provided by ICANN staff.
> http://gnso.icann.org/files/gnso/en/improvements/ctldc-petition-charter-redacted-01jun09.pdf
> I think if we started from that (with tweaks), we would end up in a
> better place than starting from the current draft presented earlier
> this week.
> I was planning the series of "bite-sized" posts on all that's wrong
> with the current draft charter, but in light of Mike O'Connors massive
> number of changes (and instead of creating a revised version of a
> revised version), I'll simply list the 32 areas of concern I had
> below.
> Warning, long list ahead:
> 1. Change in the membership criteria so that domain parking is
> considered illegitimate, see line 3.1 and compare to section 3 of the
> existing charter:
> "active development of content, communications and commerce on their  
> web sites"
> Notice the words "active development of content", vs. the existing
> words "conduct business". Existing members like NameAdministration,
> Parked.com, Mike O'Connor, the entire ICA, etc might be affected. Even
> folks with live websites might be ensnared by this language, as who
> decides how much development constitutes "active" vs.
> "static/passive"?
> You'll note there are no prohibitions against groups whose
> primary mission is IP-related, for example, and who properly belong in
> the IP constituency, from joining the BC.
> 2. Credentials committee (section 3.4.1) is now "up to three members"
> whereas before it was "at least three paid-up members". And they're
> all still appointed.
> 3. Credentials committee (3.4.2) "A review may be done upon request by
> any member at the discretion of the Executive Committee. A review is
> not limited to but may be indicated when:" Before, it took at least
> two paid up members to complain, with much higher standards (3.6 of
> old charter). Now' it's discretionary, and allows a review on
> any basis (i.e. "not limited to").
> 4. 3.4.2 says you're subject to discipline/review if "a member takes
> action, beyond mere internal communication, that contravenes an
> adopted position of the Constituency and thus would seem to be
> pursuing interests that may not be aligned with the Constituency;"
> Obviously that's ridiculous, that means every member (not just
> officers) has to agree with the constituency positions!
> 5. 3.4.2 "a member by their action leads directly or indirectly to
> another member resigning from the Constituency;" This is suggesting
> that members who resign suddenly have "standing" to make a dispute, a
> dispute they should have brought when they were a member. Obviously a
> no-go.
> 6. "a member acts as a spokesperson for another organisation whose
> interests may not be aligned with the Constituency;" That would seem
> to target a lot of people in this constituency, hmmm. It would also
> give rise to the Officers being able to point to one as not being
> aligned with the Constituency, when one really simply differs on
> policy matters. Or, the Officers might think *they* are the
> constituency, i.e. if your interests are not aligned with the
> officers, then you are obviously someone who should be rooted out.
> 7. 4.2: Still no elected Treasurer or elected Secretary.
> 8. 4.2: "when present in whole or in part at a physical ICANN meeting
> issue statements on behalf of the Constituency, so long as they are
> not in contradiction to existing BC Positions;"
> This means the officers can now issue statements without votes, e.g.
> just like the IRT, as long as it doesn't contradict existing
> statements. That gives them much greater latitude to say anything they
> personally want, without the support of the entire membership and
> without votes.
> 9. 4.2. "select, and oversee the work of, a Secretariat;" Once  
> again, this
> keeps the appointed secretariat, without competition or attempts to
> manage affairs efficiently and economically, instead of having an
> accountable and elected Secretary
> 10. 4.6. "To be eligible to stand as Chair or a Vice Chair the
> candidate must have been a member of the Constituency for at least the
> immediately preceding 12 months."  This helps maintain dominance of
> incumbents, discouraging able and qualified newcomers.
> 11. 4.7. Finance committee is appointed, unelected, and unaccountable
> (no vote on a budget, members can't ask to see the general ledger,
> etc.).
> a) "up to 3 members" (and all appointed)
> b) "adopting the annual budget including the level of fees, as drafted
> by the Secretariat " Why should the Secretariat be drafting the
> budget, instead of putting out the duties for tender?
> c) "establishing a reserve equivalent to one year’s operating costs"
> This ensures that there's a perpetual balance held by the Secretariat,
> that is never returned to the constituency members. It's like free
> money, that is never going to be used or repaid. It should be held at
> least
> in an account held by ICANN, not by the Secretariat himself.
> d) "delegating to the Secretariat the day to day management of
> expenditure items within the budget" Basically no oversight, letting
> the secretariat manage all the spending.
> 12. 4.8 spells out the "duties" of the Secretariat, lol. The expanded
> list went from the 4 items listed on 4.3 of the current charter, to  
> now
> list 12 tasks. Of course, this is basically trying to expand the list
> to counter my posting at:
> http://forum.icann.org/lists/bc-gnso/msg00314.html
> which documented that the role of Secretariat is clerical in nature,
> and doesn't take tens of thousands of Euros to do, on a "part-time"
> basis. It
> could be done for minimal cost, or even zero.
> 13. 5.2: elections (and votes) still handled by the Secretariat,
> rather than using a neutral platform like BigPulse.com, or open voting
> as in workgroups
> 14. 6.1. " From time to time the Executive Committee on the advice of
> the Vice Chair for policy coordination shall appoint members as issue
> managers, hereafter referred to as Rapporteurs, to develop positions
> on relevant issues. " In other words, the EC controls who is  
> rapporteur
> for an issue, via appointment, so we'll likely never see the ICA be
> rapporteur on the IRT, for example!
> 15. It's now more difficult to compel a vote on issues. Section 7.3
> now reads as "If there are at least 15% of members who oppose a
> position".....this compares to 3 in the current charter 7.3 which
> REQUIRES a vote.
> 16. Related to #15, section 7.4 boosts the standard to require a vote
> from the current 10% of paid up members (which was achieved in the IRT
> debate), to "a split in the Constituency of more than 25% of the
> number of members". Thus, we'll almost never get votes on issues when
> there are divisions.
> 17. Section 7.5 is obviously ridiculous "When a member declares
> themselves as a Constituency member, they shall remain faithful to
> approved positions. " The new language removed the words "speaking in
> the capacity of". One can be a constituency member, but openly
> disagree with the positions, as long as one isn't speaking on behalf
> of the entire
> constituency.
> 18. 8.2.4 is against transparency and pro-censorship "content which is
> internal but sent to the publically-archived open list intended for
> policy discussion" This ensures that the budget is always kept secret,
> or that debates about other matters deemed "sensititve" are kept off
> the public mailing list.
> 19. 8.2.4 "content which makes personal allegations, or speculates on
> personal motives" Notice that truth itself is not a defence against
> breaking this rule of false "civility." If a person does have a
> conflict of interest, you can't allege it, as it's "personal".
> Contrast this to how Mike Rodenbaugh questioned Dirk's "context" or
> how Philip Sheppard questioned mine. More speech leads to the truth,
> not less. This charter shouldn't be drafted to discourage speech,
> especially true and honest speech.
> 20. 8.2.4 "content about BC employees or contractors" All hail the
> Supremo Secretariat! Thou shalt not question their authority or
> discuss them in any way! Even if it's fair comment.
> 21. "content which infringes the intellectual property or privacy of
> third parties including members or past members or their
> representatives"  This is very subjective, and "truth" should be an
> absolute defence to anything related to free speech.
> 22. "content which is repetitive or goes beyond relevant information
> or is overly lengthy" Subjective, no word limit. One could use:
> http://www.wordcounttool.com/
> to impose a hard limit. Contrast that with long posts the officers
> make on other lists, e.g.
> http://gnso.icann.org/mailing-lists/archives/council/msg07217.html
> http://gnso.icann.org/mailing-lists/archives/council/msg07229.html
> Notice those are personal opinions, not voted upon by the
> Constituency. Create a word limit, that everyone is obliged to follow.
> Or, better, yet, enforce a standard format of posts, where each post
> has an "Executive Summary" at the top, so that the gist of the message
> can be obtained in a few lines, and people can delve into the
> micro-level details at their own discretion.
> 23. "posting of more messages than is proportionate to the issue or
> the responses from other members thus overburdening others with one
> particular point of view: typically this may be more than one posting
> a day from a member or ten a month. This limit does not apply to the
> forwarding of ICANN informational e-mails or communications from the
> Executive Committee on BC business."
> In other words, Officers can post as much as they want, but members  
> are
> limited to 10 posts a months! And 1 per day. Basically, the BC list
> will be a deadzone, no real debates. Contrast that with healthy lists
> like the NCUC, which had 217 messages just in August alone.
> http://listserv.syr.edu/scripts/wa.exe?A1=ind0908&L=ncuc-discuss&F=&S=&O=D&H=0&D=0&T=0
> Just for the record, my posting at present is 4 per week, on average,
> since the list has gone public. People that can't manage their
> incoming email at such a low level should remove themselves from the
> constituency. Alternatively, one could create a "digest list" which is
> weekly, low traffic, and only contains summaries of the week's events,
> instead of compelling inactive members from reading the main list.
> 24. 8.2.6 -- return of the secret "internal mailing list" in order to
> engage in censorship of the BC budget, discipline, and other sensitive
> debates. We obviously voted against that, and for transparency
> instead.
> 25. The actual link to the "Respectful Online Communications" document
> of ICANN (which prefers "civility" instead of honest speech) is at
> http://www.icann.org/ombudsman/respectful-communication.pdf (not at
> the link at Section 9. See prior discussion on ALAC at:
> http://atlarge-lists.icann.org/pipermail/at-large_atlarge-lists.icann.org/2009q2/005518.html
> http://atlarge-lists.icann.org/pipermail/at-large_atlarge-lists.icann.org/2009q2/005526.html
> http://atlarge-lists.icann.org/pipermail/at-large_atlarge-lists.icann.org/2009q2/005528.html
> http://atlarge-lists.icann.org/pipermail/at-large_atlarge-lists.icann.org/2009q2/005522.html
> 26. 9.8 "Refrain from filing any legal actions against the
> Constituency." Unenforceable, people should act responsibly and they
> won't get sued.
> 27. "11. Any disputes under this Charter will be decided upon by the
> Executive Committee whose decision will be final. " No appeal
> mechanism, all hail our illustrious leaders!
> 28. Section 12: "Category 3" members are still decided based on
> revenues, instead of the more proper metric of number of employees.
> Most real definitions of small businesses are 300 or less employees,
> or 100 or less employees.
> Alternatively, membership levels, votes, and fees could be set by the
> number of domains registered by the organization, e.g.:
> 1 vote: 0 to 10 domains
> 2 votes: 11 to 100 domains
> 3 votes: 101 to 1000 domains
> 4 votes: 1,001 to 10,000 domains
> 5 votes: 10,001 to 100,000 domains
> 6 votes: 100,001 to 1 million domains
> 7 votes: 1 million+ domains (no private companies own this many, yet)
> (and for proper disclosure, my company would end up with 3 votes with
> just over 500 domains, so this would put me in the middle under the
> above logarithmic scale; many others would end up at 5, or even 6
> votes)
> Trade associations could be tossed somewhere in the middle, perhaps
> based on number of companies they represent or another metric (one
> couldn't just add up the domains of their members, as their members
> don't really often have direct input in debates, and often companies
> are in multiple trade associations, or in a trade association AND a BC
> member, etc.).
> 29. "No refund of membership fees will be given to a member resigning
> of their own volition. A pro-rata refund will be provided to a member
> removed by disciplinary action subject to the member supplying the
> Secretariat with banking information within 30 days of their
> removal."This document spent a lot of time thinking about disciplining
> people. It spent little time on due process, i.e. protecting ordinary
> members from the capricious actions of the officers. Power and rights
> belong to the ordinary members, to protect them from abuse of power by
> "kings." History has taught us that's who needs protection the most,
> ordinary citizens.
> 30. Section 14. "This Charter may be amended from time to time.
> Proposals for amendment that are not supported by the Executive
> Committee require a proposer and expressions of support from 25% of
> paid-up members." This means that the Executive have lower standards
> for pushing through changes than anyone else.
> 31. Section 15: "All articles of this revised Charter shall take
> effect immediately following an affirmative vote of the Constituency."
> In other words, even if the Charter hasn't been approved by ICANN's
> Board, which does need to approve the charter, they'll act on it
> anyhow.
> 32. Section 4.2 doesn't prevent the "council members" from being
> selected from the "Chair" or "Vice-chairs", thus instead of having 5
> or 6 members in the executive committee, it might only be 3, like
> today. Better to spread the power and workload around a bit more, and
> deepen the "bench" of talent serving the constituency.
> As I said above, it's probably best to start from scratch with another
> constituency's charter as the template, rather than try to keep
> modifying this one.
> Sincerely,
> George Kirikos
> 416-588-0269
> http://www.leap.com/

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