Origins of NCUC
Milton Mueller

In the early days of ICANN’s formation, from late 1998 to mid-1999, a number of interest groups were battling over domain name policy. These included large corporate trademark holders furious about cybersquatting; a few major Internet and IT companies like MCI and IBM; wannabe registries looking for an opportunity to run new TLDs to compete with the .com monopoly; businesses that eventually became registrars; and country code registries. The budding debate over Internet governance had also attracted some freedom of expression advocates, who were beginning to notice that trademark claims were limiting legitimate uses of words and concepts in the domain name space.

The problem the ICANN community faced at that time was how to create a representational structure for policy development that would satisfy all these stakeholders? The representational structure would be known as the Domain Name Supporting Organization (DNSO). A decision was made that the DNSO would be composed of distinct organizations that represented different stakeholder groups, known as “constituencies”. The question was: who or what would those constituencies be?

The group of people involved in making those decisions were heavily weighted toward business interests. It was quickly agreed that the DNSO would have a constituency for trademark holders (the Intellectual Property Constituency), and a Business Constituency for commercial interests. Of course, the BC was composed almost entirely of trademark protection advocates. There would also be an Internet Service Provider Constituency composed of ISPs with a broad range of interests in Internet governance. The big ISPs who actually participated in ICANN, however, typically sent their trademark lawyers to represent them, further tipping the representational scales toward intellectual property. There would be a Registry constituency (a bit odd, given that at that time there was really only one gTLD registry, Network Solutions Inc., which operated .com, .net and .org, the only gTLDs at the time). There would also be a registrar constituency for the retail domain name services, and a ccTLD (country code top level domain) constituency for national registry operators. What was missing from this picture? Obviously, advocates for domain name registrants; advocates for the rights of consumers and individual domain name users. Those stakeholders just did not count in the scramble for power and representation in the early days of ICANN.

Fortunately at some point someone, reputed to be Christopher Wilkinson of the European Commission, said that there should also be a constituency for “NGOs,” i.e., for nonprofit, noncommercial organizations. This idea was welcomed by a variety of people. The Internet Society, a nonprofit which was a prominent player in these early negotiations, thought that was a good idea, so a space was created for a noncommercial constituency. The unwieldy name chosen for this group was the Non-Commercial Domain Name Holders Constituency (NCDNHC).

And so it came to pass that at the second ICANN meeting, held in the Hotel Adler in Berlin Germany in May 1999, constituency formation was the order of the day. Each designated constituency held meetings in the elegant hotel to agree on a charter and other organizational matters. For most constituencies, the stakeholder groups had homogeneous political interests and thus were quite united. All the deals had been worked out in advance, so the formation process went smoothly. It was quite another story for the NCDNHC.

The NCDNHC was actually the only open, unmanaged space in the DNSO, the only place where no one was clearly in control. Two different coalitions were positioning themselves to control it. One of these groups was the Internet Governance Project of the Association for Computing Machinery (ACM). ACM’s President, Barbara Simon, was a civil liberties and civil rights advocate who realized the importance of Internet governance. She was backing two free expression activists, Milton Mueller and Kathy Kleiman, to go to Berlin and ensure the creation of an independent noncommercial constituency devoted to free expression and individual rights in the ICANN regime. The second group contending for NCDNCH was the Internet Society (ISOC). Under the leadership of Don Heath at that time, ISOC considered itself to be the natural patron of the NCDNHC because of its mantle as corporate embodiment of the Internet technical community and education and research networks.

The problem was that ISOC’s status as a leader of noncommercial interests had been undermined by recent actions. Though formally a nonprofit, ISOC membership and funders included major commercial corporations, and most of its funding and governance came from those sources. Worse, instead of resisting or questioning trademark maximalism in domain name governance, ISOC had been working with the World Intellectual Property Organization and the International Trademark Association to impose stringent ex ante trademark reviews on all domain name registrations. ISOC had also proposed a trademark lawyer to be the NCDNHC’s representative on the DNSO Council. This was what precipitated the break with ACM. Furthermore, ISOC’s network encouraged ccTLDs and registrar groups to get involved in the NCDNHC, even though they already had constituencies of their own.

As a result, the Berlin formative meeting turned into a site of serious political conflict. In order to establish a distinct political entity, the founders of NCUC had to fight off efforts by other constituencies to subordinate the NCDNHC to other stakeholder groups.

Take, for example, the registrars. A group known as CORE, which was a nonprofit association of registrars, came to the meeting and demanded to be part of NCDNHC. They were, they claimed, organized as a nonprofit consortium and thus should be eligible for membership in the NCDNHC. Mueller, who was chairing the meeting, was having none of it.

“What are you doing here? Is there not a constituency for registrars?” he asked.
“Yes, there is,” the CORE representative replied, “but we are also a nonprofit, and surely it is unfair for you to exclude us from your constituency.”
“Does that mean that I and other civil liberties groups can join the registrar constituency?” Mueller replied.
“Oh, no,” he replied. “You are not eligible. You are not registrars.”

The same conflict emerged around ccTLDs. ccTLD operators from Asia made it known that they, too, wanted membership in NCDNHC, because they were organized as nonprofit entities in their country. And the APTLD, which was essentially a trade organization of CCTLDs in Asia, also noted that it was organized as a nonprofit.

“Wait a minute,” Mueller asked. “Is there not a constituency exclusively devoted to ccTLDs?”
“Yes, there is,” the ccTLD representative replied, “but we are nonprofits, too; surely it is unfair for you to exclude us from your constituency.”
“Can I and other civil liberties groups can join the ccTLD constituency?” Mueller asked.
“Oh, no,” he replied. “You are not eligible, because you are not ccTLD operators.”

By now the game was clear. NCDNHC was viewed by other constituencies as a territory they could colonize to gain additional votes for themselves on the DNSO Council and additional voice and power in the policy making process. If this was tolerated, there would never be a clear and consistent voice for noncommercial interests and individual rights in ICANN. Opening the doors to NCDNHC to other stakeholder groups that shut out noncommercial interests would ensure that our concerns would never be adequately represented in ICANN. This power grab made the ACM representatives angry, and they mounted a principled resistance to the incursions of other constituencies. At the Berlin meeting, those whose colonization plans had been thwarted complained to the ICANN board about the “exclusionary” attitude of NCDNHC.

In the short term, this principled stance alienated some of ICANN’s initial board members and delayed formal recognition of NCDNHC for a few months. In the long term, however, it succeeded in establishing an autonomous and critical noncommercial presence in ICANN policy formation. In 2003, NCDNHC was renamed the Noncommercial Users Constituency (NCUC) as part of a complex series of bylaw changes in ICANN. The Generic Names Supporting Organization (GNSO) was the new name for the DNSO after the formation of a separate Country Code Names Supporting Organization (CCNSO). As time has passed, NCUC has become increasingly accepted and influential in the ICANN environment. In 2003, ISOC and NCUC reconciled, as NCUC lent its support to the ISOC bid for the .org domain based on ISOC’s commitment to financially support NCUC-led participation and activities in ICANN. NCUC now attracts civil society organizations devoted to Internet freedoms and human rights; academic institutions involved in Internet governance policy research; developing country NGOs; religious organizations; cultural organizations. NCUC opened its doors to individual membership provided that the individuals take a noncommercial outlook on policy matters.

In 2009, based in part on NCUC pressure and advocacy, the GNSO was reorganized in a way that rectified the longstanding imbalance of commercial and noncommercial representation. The Noncommercial and Commercial stakeholder groups now have the same number of seats on the GNSO Council. During the creation of the new Stakeholder Groups, NCUC representatives fought hard for an integrated Stakeholder Group structure without multiple constituencies. They believed that separate constituencies confused new participants, created unproductive incentives to create separate and competing power centers and divided noncommercial voices in ICANN. They won only a partial victory. NCUC is now one of two constituencies in the Noncommercial Stakeholders Group (NCSG), but voting for Council members occurs in the NCSG as a whole, rather than by constituency silo.