Fwd: [bc-gnso] M O'Connor: Revised BC Charter - discussion and vote -- 2nd request

Mike O'Connor mike at haven2.com
Tue Sep 8 22:00:39 UTC 2009

hm.  i'm replying to my own emails.

but i haven't heard an answer to the question about "where are we at  
with the charter-revision process?" and it seems like the hour of  
decision approaches rapidly.  i liked M Cade's suggestion that we  
schedule a member-call to discuss this, with Rob Hoggarth on the call  
to help with the process.  but we're going to have to act quickly to  
get sufficient notice out for a call that's got to happen before the  
end of the week.  or is there more room in the schedule?

i'm happy to help with the process of moving this forward, but  
somebody in authority needs to state that process and get things  

Begin forwarded message:

> From: "Mike O'Connor" <mike at haven2.com>
> Date: September 5, 2009 9:41:53 AM CDT
> To: George Kirikos <icann at leap.com>, BC gnso <bc-gnso at icann.org>
> Subject: Re: [bc-gnso] M O'Connor: Revised BC Charter - discussion  
> and vote
> i like that  City Level TLD Constituency charter a lot, as a  
> starting point.
> 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?
> m
> 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/
> - - - - - - - - -
> phone 	651-647-6109
> fax  		866-280-2356
> web 	www.haven2.com
> handle	OConnorStP (ID for public places like Twitter, Facebook,  
> Google, etc.)

- - - - - - - - -
phone 	651-647-6109
fax  		866-280-2356
web 	www.haven2.com
handle	OConnorStP (ID for public places like Twitter, Facebook,  
Google, etc.)

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