First GNSO Organizational Review

The First GNSO Organizational Review (GNSO1) was initiated in 2007, with implementation of improvements continuing throughout 2012. It resulted in major changes in the structure and organization of the GNSO, including the division of the constituent groups in to contracted and non-contracted houses.

Background

Article 4.4 of the ICANN Bylaws requires periodic review of all supporting organizations and advisory committees, as well as the Nominating Committee. The bylaws state three objectives for the review:

1. to determine whether that organization, council or committee has a continuing purpose in the ICANN structure;
2. if so, whether any change in structure or operations is desirable to improve its effectiveness; and
3. whether that organization, council or committee is accountable to its constituencies, stakeholder groups, organizations and other stakeholders.

Organizational reviews are conducted by independent examiners, selected through a competitive bidding process. The independent examiner works in consultation with a working group assembled by the board, who will act as implementation shepherds once the final report of the independent examiner is submitted. The review parameters are set by the ICANN Board, and those parameters as well as other avenues of inquiry are typically included in the request for proposals (RFP) for independent examiners. Reviews can take anywhere from three to five years to complete. The full review process includes seven phases, including the implementation of recommendations from the review. Reviews must be conducted at least every five years, measuring from the date that the final report of the previous review was accepted by the ICANN Board. The Generic Names Supporting Organization (GNSO) is one of the supporting organizations subject to Article 4.4 review.

It is notable that the GNSO1 review began with a review of reviews: the GNSO had previously been reviewed by the London School of Economics Public Policy Group in 2006, and by Patrick Sharry in 2004. These prior reviews were incorporated into the work process of the GNSO1 Review working group.

Initiation

The board assembled a GNSO Review Working Group of the Board Governance Committee, and approved its charter, in March 2007 The working group was charged to answer the traditional Article 4.4 (as amended at the time) questions: does the GNSO have a continuing purpose within the ICANN structure; and if so, what can be done to improve its effectiveness? The charter document goes further, tasking the working group to develop a "comprehensive proposal" to improve the effectiveness of the GNSO.

Review of Prior Assessments

The working group focused on three previous reviews in its information-gathering process: the Patrick Sharry review of 2004; the GNSO Council's own self-assessment, performed as part of the preliminary work to commission Sharry's report; and the review prepared by the London School of Economics Public Policy Group in 2006.

GNSO Council Self-Assessment

The GNSO Council, in preparing the Terms of Reference for its 2004 review, conducted a self-review process. The self-review described a number of policy development successes, including updates to the transfer policy, WHOIS, and deletion policy. The GNSO made three categories of recommendations:

1. Recommendations re: the ICANN Bylaws: maintain GNSO Council compostion of 3 representatives from each constituency; amend the policy development process bylaws to state that PDP timelines are flexible, and may be set and revised by the GNSO Council to reflect the work being considered and status updates from the working group.
2. Recommendations re: staff support: multiple requests for staff support around the policy development process, task forces, and work of the GNSO Council; make legal staff available to the GNSO Council, task forces, and subcommittees, and in particular for review of policy recommendations and other policy statement for compliance with bylaws and contractual obligations; and create monitoring, compliance, and complaint policies related to gTLDs.
3. Actions required of the GNSO Council: Ensure that legal advice from ICANN staff is in writing and allow registrars or registries to submit the opinion of their counsel; ensure that policies are ready to be implemented upon approval; establish key metrics for measuring the success of a given party; encourage community-wide participation in the policy development process.

2004 Review by Patrick Sharry

Sharry, a strategic planning and change management consultant, reviewed the GNSO Council specifically, without reference to the self-assessment described above, using interviews with GNSO Council members and others, as well as a review of policy and process documentation prepared by the GNSO for that purpose. The report reached many of the same conclusions as the GNSO's self-assessment. Sharry found, in particular, that ICANN staff support of GNSO activities fell "well short of the standards outlined in the bylaws." The review also found substantial gaps between the adoption of policy proposals and the implementation of those policies, with minimal attention devoted to compliance or tracking of the success of the implementation. Sharry provided recommendations for improving the GNSO's core functions, but was also complementary of both the Council's commitment and dedication, as well as its leadership.

As part of its background documentation for the broader community, the improvements implementation team summarized the similarities between the GNSO's self assessment and Sharry's report:

These reviews shared a common approach in certain respects: (i) allowing for more flexibility in the PDP process; (ii) ensuring strong Staff support for policy development; and (iii) developing better mechanisms for public participation and discussion.

2006 Review by the London School of Economics

In 2006, ICANN commissioned the Public Policy Group of the London School of Economics (LSE) to review the GNSO and its operations. The questions were again drawn from Article 4 of the bylaws (as they existed at the time): did the GNSO still serve a purpose, and if so, what improvements could be made to its process and operations?

The LSE report shared some common findings with Sharry's review and the GNSO Council self-assessment. Once again, the established timelines for policy development processes were deemed to be unreasonable given the nature and complexity of the work involved. The LSE echoed Sharry's report regarding the lack of impact assessment or formal metrics for judging the success of implemented policies. Although the LSE found that ICANN staff support of the GNSO had grown in meaningful ways, further capacity-building and tool training could be accomplished to further strengthen trust, clarity, and efficiency in interactions between staff and GNSO teams.

In focusing on the entirety of the supporting organization, rather than the GNSO Council only, the LSE report diverged from the 2004 assessments in its attention to the overall structure, composition, and representativeness of the GNSO and its constituencies. In the executive summary of the report, the team described its concerns about the current constituency model:

The current pattern of Constituencies is relatively complex and no longer seems well-adapted to the needs of all stakeholders in the rapidly changing Internet community. Although the Constituency structure does provide a potential home for almost all types of interest, there are signs that the current structures tend to reflect a snapshot of interests that were present at the beginning of this decade and lack internal flexibility to incorporate new types of stakeholders from commercial and civil society. There is consequently much scope to grow and diversify membership of the GNSO, and to adapt structures in such a way that they are flexible and agile enough to respond to new policy development issues.

The team also noted "worrying signs of dominance of some constituencies" by a small group of people, and low participation rates in policy development work by members of constituencies.

The report offered a number of recommendations that focused on structural flexibility, representation, and growing the GNSO's ability to shift with the ever-shifting environment of the Internet. The report identified four key principles that should guide recommendations for change: increasing visibility and transparency of operations; increasing the representativeness of the GNSO Council and its Constituencies; increasing structural adaptability; and improving mechanisms for reaching "genuinely consensus opinions."

Through this lens, the LSE team found cause to recommend substantial reforms. Among the report's twenty-four recommendations, several significant changes were proposed:

• Reduce the number of constituencies to three: registration interests, business users, and civil society.
• Establish a "direct membership" in ICANN for firms, other organizations, and individuals. Guide newly-joined members into relevant constituencies, and provide staff support at the constituency level to sustain their activities and outreach work.
• Create "radically improved ICANN and GNSO websites" that can effectively represent the GNSO to the Internet community.
• Abolish weighted voting for registration interests. Give registration interests and business users an effective veto over non-consensus change. Raise the threshold for "consensus policy" from 66 to 75 per cent agreement.
• Reduce teleconference and remote meetings and shift to increased face-to-face meetings of the Council. Reimburse the travel expenses of councilors to enable this.
• Expand the use of task forces with independent outside expertise, to broaden the involvement of interests from outside ICANN and to speed up policy development.
• Leverage staff expertise to speed up policy development and help focus the Council's attention on key issues and decisions.
• Establish term limits for GNSO Councilors. Create stronger protections against the non-disclosure of interests.

The LSE Report was published for public comment in autumn 2006, and received a total of six comments. The comments were largely complementary of the LSE's efforts but varied widely in their support or non-support of particular recommendations.

Working Group Drafts and Public Comment

The Working Group summarized its work synthesizing the three reviews and listed an initial set of recommendations in a "Draft Working Document," released in advance of ICANN 29 in San Juan. The working document presented findings and (in the case of the LSE Review) summaries of public comments received, and produced a series of preliminary recommendations on the issues of constituency structure, the GNCO Council, the GNSO's policy development process, the adoption of a working group model, and staff/cross-community outreach and interaction. It also listed questions for discussion at ICANN 29 regarding each of those issues.

The working document was the subject of a public forum at ICANN 29, and also received written public comments. Participants at the public forum expressed support for "certain, but not all" of the recommendations contained in the working document. The working group's summary of forum comments identified three points of agreement:

1. Both constituency operations and restructuring can benefit from improvements, but changes in operations should precede changes in the structure.
2. Formalizing a working group model as the focal point for policy development could enhance the policy development process by making it more inclusive and representative and – ultimately – more effective and efficient.
3. The GNSO Council should move away from being a legislative body focused on voting and become a more strategic entity with strengthened management and oversight of the policy development process.

The working group issued a draft final report in October 2007, and held a workshop on the draft report at ICANN 30 in Los Angeles. The draft report refined recommendations related to the broad topics of adopting a working group model, reforming the policy development process, improvements in process for the GNSO Council, and altering the structure of constituencies and participation within constituencies. Staff and cross-community interaction and outreach were also adressed. The workshop was well-attended and drew a number of comments on the recommendations being proposed, as well as the overall process of the working group. There was also a public comment period for the draft report, with eight comments submitted.

Final Report

The working group's final report was submitted to the board in February 2008. The report concludes:

Our deliberations have achieved near consensus on a comprehensive set of recommendations that addresses five main areas:

• Formalizing a working group model to become the focal point for policy development and enhance the PDP by making it more inclusive and representative, and – ultimately – more effective and efficient.
• Revising the PDP to make it more effective and responsive to ICANN’s policy development needs, bringing it in-line with the time and effort actually required to develop policy, and making it consistent with ICANN’s existing contracts (including, but not limited to, clarifying the appropriate scope of GNSO “consensus policy” development).
• Moving the GNSO Council away from being a legislative body heavily focused on voting towards becoming a smaller, more focused strategic entity, composed of four broad stakeholder groups, with strengthened management and oversight of the policy development process, the elimination of weighted voting and the imposition of term limits.
• Enhancing constituency procedures and operations to become more transparent, accountable and accessible; and
• Improving GNSO coordination with other ICANN bodies.

The report contained a total of nineteen action items within these five categories. As the working group was a committee of the board, the action items were mainly board directives to the GNSO Council or delegations of tasks to ICANN staff. Some of the directives involved an eventual return to the board for action - for example, amendments to the ICANN Bylaws.

On February 15, 2008, the board accepted the report and approved its recommendations, subject to a final public comment period. During the passing of the public comment period, the board directed ICANN staff to "draft a detailed implementation plan in consultation with the GNSO, begin implementation of the non-contentious recommendations, and return to the Board and community for further consideration of the implementation plan."

The public comment period on the final report received thirty-one comments. The summary report of public comments characterized ten of those comments as not germane to the specific topics contained in the final report, and noted that four of them merely requested an extension of time for the public comment period. There were extensive comments on the recommendations. A collective of user constituencies (ALAC, the Commercial and Business Users Constituency, the Intellectual Property Constituency, the Internet Service and Connection Providers Constituency, and the Non-Commercial Users Constituency) presented a joint proposal for restructuring the council. From the summary report:

The finalized UC [joint proposal] contribution expresses support for the effort to create a better representational balance on the GNSO Council, but the UC says the BGC WG’s recommendations have three defects that 'contradict the goals of improving policy development and maximizing stakeholder participation.' The UC says the defects include (1) over-representation of contract parties; (2) insufficient stakeholder participation; and (3) external credibility issues.

The joint proposal offered this alternative to Council composition:

• create a "a parity triangle of equal representation to represent all stakeholders." - 6 seats each for contractual interests (registries and registrars), commercial interests, and non-commercial interests;
• consider using NomCom appointments to the GNSO Council to provide specific expertise to working groups; and
• regardless of decisions about the specific number of seats, the Council totals should create equal, unweighted votes for the three interest groups described above.

The joint proposal generated discussion among commenters as the public comment period progressed. In their comments, the ALAC, the Noncommercial User's Group, and the Internet Commerce Association expressed support for the joint proposal, as well as making other comments about the final report. Two individuals - Chuck Gomes and Jeff Neuman, specifically objected to the joint proposal. The majority of other comments expressed support for most of the recommendations, although some constituencies objected to specific action items, or warned against utilizing structural changes to "fix" human behaviors.

Implementation

Implementation Planning

GNSO activity regarding implementation was ongoing in parallel with the board review of the GNSO Improvements working group recommendations. The GNSO1 dashboard reports that the GNSO Improvement Planning Team (IPT) was formed on March 1, 2008, although the dashboard refers to a board resolution from ICANN 37 in Nairobi from March 12 that makes no reference to the GNSO review. The GNSO's community reference on GNSO1 states that the GNSO Council created the IPT. The IPT circulated a draft of a "Top Level Plan" in May 2008 to the GNSO Council and community for feedback. After review and feedback, a second draft was published in June. The revised plan proposed two standing committees for improvements work - a process committee and an operations committee - and proposed charters for each committee.

On October 16, 2008, the IPT presented its final Implementation Plan to the board. The plan followed several actions of the board regarding the approval of specific recommendations and referral of the structural reform of the GNSO Council to a separate working group (see below) and was addressed in the same timeframe as the conclusions to that separate process.

Board Action on Recommendations

On March 28, at ICANN 32 in Paris, the board acknowledged the work of the IPT, as well as receipt of the final GNSO Improvements report. It endorsed all the recommendations in the final report, with the exception of the recommendation regarding Council restructuing. On that topic, it instructed the GNSO Council to convene a working group, including at least one member from each constituency, one member from among the NomCom appointees to the Council, and one member from each of the Council liaison-appointing ACs who wished to appoint a member. The group was instructed to develop and present a Council restructuring recommendation "by no later than 25 July 2008 for consideration by the ICANN Board as soon as possible, but no later than the Board meeting in August 2008."

Working Group on Council Restructuring

The working group on GNSO Council restructuring presented its final report on July 25. The report was also distributed to the GNSO Council. The working group was able to achieve consensus on the following general principles:

• No single stakeholder group should have a veto for any policy vote.
• Council recommendations of policy requiring 2/3 board vote to reject should have at least one vote of support from at least 3 of the 4 stakeholder groups
• Equal number of votes between registries and registrars.
• Equal number of votes between commercial and non-commercial users.

The report recommended a "two houses" GNSO structure, with the Council divided into a contracted party house, and a non-contracted party house, and bicameral voting processes. Within this two-house system, multiple details were hammered out regarding composition of the houses, voting thresholds for various GNSO actions and processes, and NomCom appointees to the Council. There were some specifics that did not achieve consensus, largely because of a fundamental disagreement regarding a reduction of the number of NomCom appointees between the Business Constituency representative and the NomCom-appointed representative.

Separate Statements and Commentary

The working group's report included separate statements from many of the working group members. In those statements, there was a general expression of appreciation (and sometimes surprise) regarding the level of consensus and compromise that was achieved in a short time. However, specific group members called out the relative flexibility of the various parties. The IP Constituency appointee Steve Metalitz, writing in his own capacity, gave a frank assessment of the process of "consensus-building" within the working group:

It is obvious from the documents which interests moved the farthest and were most willing to compromise in search of consensus. The work product of the group far more closely resembles the Board Governance Committee proposal than it does the Joint Users Group proposal that was before the Board. The bicameral approach, which originated from the registrar constituency representative, was a useful and productive effort to reframe the discussion, but it did not fundamentally alter the recurring dynamic: We did not reach full consensus because a few participants drew red lines very close to their initial preferred position, or, in one case, very close to the status quo. Notably, throughout the six meetings of our group, and hundreds of e-mail exchanges, the recurrent pattern was that representatives of the GNSO constituencies were far more willing to make compromises than were the participants not representing constituencies. I believe that the constituency representatives, on their own, might well have achieved consensus.

At ICANN 70, Bertrand de la Chapelle participated in an ALAC session on "Reimagining ICANN’s Role; Responding to National Pressures." During a conversation about silos and their impact on the multistakeholder model, de la Chapelle recalled the introduction of the two houses approach and offered this critique of the mindset of the working group participants:

...I participated in one of the calls that led to the restructuring of the GNSO and the creation of the two houses. If I can give a very frank assessment from the outside, I immediately felt that the main objective of the different entities and the different soon-to-become houses was to make sure one thing: that the other halves could not impose anything on them, period. Nothing was about how can we make it better so that we can solve problems together? I’m caricaturing a little bit, but I can tell you this was the feeling that I had exactly at the moment the proposal was made on the call. And I feel that it has remained a little bit in this way.

Board Action

At a special meeting of the board on July 31, 2008, the board discussed the working group's report and the issues and proposals submitted by the working group. After discussion of the issues, the board resolved to accept the report, and instructed staff "to perform an analysis of the potential consequences and implementation issues presented by the proposals in the report, and to report one week before the August Board meeting with the recommended steps that can be adopted during the August Board Meeting."

On August 28, 2008, the board held another special meeting to discuss the staff recommendations and proposed resolutions for the board to adopt. Denise Michel presented a summary of staff recommendations:

Staff recommended that the Board approve a contracted party house with three reps from Registries and three from Registrars and a Nominating Committee appointee. Staff also recommended a non-contracted party house of six representatives from commercial and six reps from non-commercial plus one voting Nominating Committee representative. Also, Staff recommended additional work with the GNSO to create a transition program from 2009 bringing it in line with Council elections at the end of the calendar year. To assure that the ICANN Bylaw principles of openness, representativeness, transparency and fairness are honored, constituencies should be asked to re-certify themselves and show plans for future recruitment and expansion consistent with the recommendation of the BGC’s Working Group on the GNSO Review, to attract educational, research and individual registrants, and other issues. Staff recommended a goal to have a new council be seated by January 2009. Staff recommended adopting the proposed voting thresholds, and suggested that this should be discussed and considered during the ongoing work on the Nominating Committee Review.
Also, Staff recommended deferring proposal regarding ICANN Bylaws changes to the GNSO Council selection of ICANN Board Member Seats 13 and 14. Staff noted that this should be part of the Board Review process in light of concerns raised by General Counsel regarding approach by WG for selection of Board members.

After extensive discussion, the board approved the proposed resolutions of staff, which effectuated the recommendations described above.

Implementation Plan

At a special meeting of the board on October 1, 2008, the board returned to the outstanding issues and deferred recommendations from the final report of the WG-GCR, as well as some recommendations from the BGC working group on GNSO Improvements. After deliberation and discussion of each proposed resolution, the board approved the following actions:

• as recommended by the WG-GCR, the Board authorizes a third Council-level non-voting Nominating Committee Appointee to serve on the Council;
• the GNSO Council will elect a Chair consistent with the recommendation of the WG-GCR – by a vote of 60% of both voting houses. Each voting house has the flexibility to create a process for selecting its own Vice Chair;
• the Board and General Counsel have outstanding questions about the WG-GCR recommendations regarding Board seat elections and directs Staff to share these with the community and seek additional input;
• the Board adopts all voting thresholds proposed in the WG-GCR Report. The Board requests that the GNSO develop any additional voting thresholds or categories that may be needed as part of its proposed GNSO Improvements Implementation Plan;
• the Board amends its previous implementation timetable and directs that the transition to a new bicameral GNSO Council voting structure take place over a phased implementation schedule that begins immediately and ends in June 2009 with the seating of the new Council. The implementation phases will be as follows:
  • Phase 1 – GNSO Council restructuring implementation plan submitted in advance of the December 2008 Board Meeting;
  • Phase 2 – Existing Constituencies submit confirmation documents to the Board for review in advance of the February 2009 Board Meeting;
  • Phase 3 – Stakeholder Groups submit formal plans for Board approval for consideration at the ICANN Mexico City Board meeting; and
  • Phase 4 – Stakeholder Groups with plans approved by the Board select Council representatives, and the newly structured GNSO Council is seated by the June 2009 Asia-Pacific ICANN Meeting.
• the Board acknowledges Staff’s development of the “Notice of Intent” documentation for potential new constituencies and directs Staff to develop a formal petition and charter template that will assist applicants in satisfying the formative criteria (consistent with the ICANN Bylaws) to facilitate the Board’s evaluation of petitions to form new constituencies;
• the Board reinforces its support for the following principles pertaining to the formation of the new Stakeholder Groups, and requests that all constituency members and other relevant parties comply with the principles included in the BGC Working Group’s GNSO Improvements Report approved by the Board in establishing the newly formed structures, including:
  • The need to better represent the wide variety of groups and individuals that compose the global ICANN community, in a structure that can change more easily with the gTLD environment and stakeholders.
  • The inclusion of new actors/participants, where applicable, and the expansion of constituencies within Stakeholder Groups, where applicable.
• the Board further directs Staff to work with existing constituencies to develop a set of streamlined processes (along with appropriate templates, tools, or other mechanisms) that will assist in the formation of these new Stakeholder Groups and also facilitate the Board’s subsequent review and approval of those structures.
• the Board directs that plans for each of the four new Stakeholder Groups, that are consistent with the above principles, be submitted to the Board for consideration at the ICANN Mexico City Board meeting. The plans must be reviewed and approved by the Board before a newly structured GNSO Council is seated in June 2009. The Board will consider the need for interim action to fill Council seats in the event that it finds any Stakeholder Group plans to be deficient or delayed; and
• 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.

Final Board Actions and Creation of Work Teams

As described above, the Implementation Planning Team submitted its final report to the ICANN Board on October 16, 2008. At ICANN 33 in Cairo, the board held a workshop regarding the current state of the GNSO Improvements process, and formed steering committees for the implementation phase. On December 5, 2008, the GNSO Council presented its report to the board on Council restructuring and implementation planning. The report described the Council's intention to implement the structural changes (defined by the working group on GNSO Council Restructuring) and operational improvements (as recommended by the BGC GNSO Improvements working group) on two parallel tracks, and stated that the proposed timeframe for reformation of the Council by June 2009 appeared to be reasonable.

In January 2009, the board approved the GNSO's implementation plan. The report presented an overview of all board-approved recommendations and action items.

At ICANN 34 in Mexico City, ICANN Staff presented an update on implementation progress. During sessions at ICANN 34 work teams were established for implementation projects.

Review Complete

In June 2012, ICANN Staff presented a summary report of the accomplishments of the GNSO Improvements process. The board acknowledged receipt of the report in its regular meeting on June 23, 2012, and gave its heartfelt thanks to the "two Steering Committees, five Work Teams, and over a hundred participants" who worked together to implement the "specific and substantial" improvements that were discussed, agreed upon, and approved by the board over the course of the GNSO Improvements process.

The GNSO1 review was deemed complete as of the date of that resolution.