[EC-NCSG] draft letter to ICANN Board on request for dialogue on BGC decision that staff can over-rule community on policy

[Robin Gross]

Dear All,

In follow-up to our discussion last week, below is the draft of my letter to the ICANN Board regarding the BGC's decision on our recon request.  Please let me know if you have any suggestions for edits to the draft in the next day so I can send it out to the board asap to get a dialogue going on this.

Thanks,
Robin

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Dear ICANN Board of Directors:

I am writing to you on behalf of the Non-Commercial Stakeholder Group (NCSG) and other concerned members of the ICANN community regarding the harmful implications to the community-led multi-stakeholder policy development model if the ICANN Board decides to adopt the recommendation of the Board Governance Committee (BGC) in response to the NCSG's Request for Reconsideration (13-3).  The rationale provided in the BGC's recommendation, which appears to be drafted by over-reaching lawyers, attempts to set a precedent that ICANN staff can over-rule the GNSO Council on policy decisions at its own discretion.  This decision has alarmed community members beyond the NCSG and beyond those who were originally concerned with the underlying issue NCSG was initially probing of staff's adoption of the "TM+50" policy for the Trademark Clearinghouse.  

The GNSO Council expressed concern about the decision at length during its 11 June meeting; and I encourage all Board Members to listen to audio recording of the discussion or read the attached transcript to get a better understanding of some of the concerns of members of the community from several different GNSO stakeholder groups.  

The rationale provided in the BGC decision, if adopted by the entire board, would cement the change in ICANN's policy development model from the unique bottom-up community-led model to top-down staff-driven model with no checks on abuses or poor staff decisions.  If the rationale provided in this decision is adopted by the board, which goes well beyond the narrow issue presented to it, ICANN threatens to undermine its own legitimacy as a global governance institution, and it loses the ability label itself as a community-led bottom-up policy development model for Internet governance.

We understand the BGC's recommendation is on the agenda to be adopted on 25 June 2013 by the New gTLD Program Committee (NGPC).  Given the Board's record of adopting all 15 decisions of the BGC that came before it in the last ten years, there is concern in the community that this BGC recommendation will be similarly adopted by the Board with little understanding or discussion of the harm to ICANN's legitimacy and the multi-stakeholder model that this precedent threatens.  There is also concern about ICANN's "accountability" mechanism that allows the same legal team that created and adopted a policy to later decide on the legitimacy of that policy's adoption.

We therefore request that the Board meet with members of the community including NCSG who are concerned about the implications of the rationale provided by this decision to permit a more complete discussion and understanding of the community concerns and allow for appropriate adjustments before it is adopted.  We would gladly meet with the Members of the ICANN Board during the Durban Meeting or before at the Board's convenience to discuss this decision and welcome all members of the community who share NCSG's concerns to join in the discussion.   Please let us know if the Board is available to meet with NCSG and others in the community on this issue at your earliest convenience.   Thank you for your consideration.  We look forward to fruitful discussions going into the Durban ICANN meeting and stand ready to provide whatever assistance is needed.

Truly,
Robin Gross
NCSG Chair

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