FW: [council] Re: Starting point: DNSO WG Organizing Principles

["Chicoine, Caroline" <chicoinc@PeperMartin.com>]

> I have the following comments on Bill's draft DNSO WG Organizing
> Principles, and Jonathan's and Eva's comments on same.  Bill, thanks
> for your efforts.
> 
> > 1. Open and transparent process and procedures, with publicly
> available
> > lists, discussions, etc. No closed meetings.
> 
> I agree.
> 
> Caroline - I would add the term "fair" to mirror the bylaws language.
> 
> > 2. Procedures should prevent capture.
> 
> I agree.
> 
> Caroline - I agree.
> 
> > 3. WGs should set their own agendas, timetables, and develop their
> charter
> > - based on but not driven by the original workgroup's source or
> point of
> > creation (be it a constituency or the GA). Certainly, we all agree
> it is
> > not the NC's job to create topics for the WGs - per the ICANN
> bylaws.
> 
> Generally, I agree.
> 
> Caroline - I agree, except to the extent a proposal comes from the
> Constituencies or GA participants, the bylaws state that the NC shall
> set a time frame for the report of such WG.
> 
> > 4. WGs pick their own chairs and subgroups from among the
> participants - no
> > assignments by NC of any sort.
> 
> I agree in part.  While I think it is probably generally a reasonable
> idea that
> WG's pick their own chairs and sub-groups from among their
> participants, I do not
> think there should be a prohibition for the NC doing so.  I think the
> circumstances should dictate what is appropriate, with the general
> assumption
> being that it will generally be as you suggest.
> 
> Caroline - I agree, but believe there should always be a NC liason to
> help manage the process.
> 
> 
> > 5. WGs are open to all, either to be members or to participate in
> discussions.
> 
> Again, I agree in principle, but it must be always subject to the WG
> deciding that
> either a particular individual, or the numbers in total wanting to
> work, or the
> time limit, or the nature of the work, or some other factor may from
> time to time
> require that this general rule be set aside, or at least not followed
> in full.
> 
> Caroline - I agree with Jonathan.  The bylaws (Article VI-B(2)(b)
> state that such bodies  (i.e., working groups) shall provide
> appropriate means as determined by the NC, for input and such
> participation as is practicable under the circmstances by other
> interested parties.
> 
> > 6. Full disclosure by "members" of WGs as to any real or perceived
> > conflicts of interest relating to the topic under consideration.
> 
> I cannot disagree with the principle, but I think that coming up with
> a method for
> accomplishing it may be tricky.
> 
> Caroline - I agree with Jonathan.  I believe there are enough checks
> and balances in the bylaws to avoid any problems if a WG comes up with
> a proposal that is truly one-sided.  First, any recommendation
> forwarded to the Board by an SO must be transmitted to other SOs for
> comment, the Board has the discretion to decline a recommendation, and
> any person affected by an action of ICANN can petition for review and
> reconsideration.
> 
> > 7. Simple process for participation (no phone conferences) - email
> driven,
> > with the provision for relatively long time periods for email
> discussion,
> > to facilitate participation by participants in developing nations
> with part
> > time Internet connections, minimal English language skills, etc.
> 
> Again, I agree in principle, but I do not think that we should say "no
> phone
> conferences", and while "relatively long time periods" may be
> desirable in some
> instances, they may not be practicable in others.  Perhaps  this
> should not be
> expressed as dicta or principles, but as a preferred approach in given
> situations
> in any particular WG.
> 
> Caroline - I agree with Jonathan.  Again, can we use the language from
> the bylaws "reasonable opportunity for comment, to review comments of
> others and to reply to those comments".  Remember, under the bylaws,
> any reports or recommendations presented to the NC by a working group
> must be posted on a website accessible by the public for public review
> and comment and absent clear justification, which shall be publicly
> stated at that time of any action, the NC shall not act on any report
> or recommendation until a reasonable time for public comment has
> passed and the NC has reviewed and evaluated all possible comments
> received.
> 
> > 8. WGs goals are to build consensus, not a "voting" process.
> Near-tie
> > "votes" are not consensus...etc.
> 
> I think I agree, but I am not sure how this can be expressed as a
> guideline.
> There may well have to be some occasions where an old-fashioned vote
> will have to
> be taken, although in principle, I agree that what we are charged with
> is building
> consensus, i.e. bottom up, not top down.  I think there needs to be at
> least some
> flexibility in a number of rules you are proposing, such as this one -
> i.e., I
> think that not everything you propose should be expressed as a
> principle, but as
> an approach to be taken in given circumstances - I apologize, but the
> lawyer in me
> can't help but take into account more than one side of an issue.
> 
> Caroline - I would simply say "WGs goals are to build consensous
> through a bottom-up process".
> 
> > 9. WGs need participation by each constituency. (per bylaws)
> 
> I agree.
> 
> Caroline - I agree.
> 
> > 10. WGs will take no action that will damage or disenfranchise
> minority
> > interests. (per bylaws)
> 
> I agree, but think it will be quite difficult to define a procedure
> whereby it can
> be accomplished.
> 
> Caroline - I agree with Jonathan and believe it is redundant of
> principal no. 1.
> 
> > 11. All meetings, discussion, etc. are open for public view of some
> sort.
> 
> I agree, as a principle, subject to at least the possibility of the
> occasional
> meeting that is not open.  I apologize, but my inclination and all my
> voting has
> been for open meetings, but that does not mean that there will never
> be a
> situation where a closed meeting could not be appropriate.
> 
> Caroline - I agree, but I believe this is redundant of principal no.
> 1.
> 
> > 12. PLEASE ADD MORE HERE.
> >
> > Eva said:
> >
> > A very good start. I would like to add some points
> >
> > 13. A new WG should be announced on the DNSO website where all the
> > information about how to subscribe to mailings lists, the charter
> agenda etc
> > is publicly available.
> 
> I agree.
> 
> Caroline - I agree.
> 
> > 14 A question that has to be addressed is the procedure on how to
> start a
> > new WG. Where is the decision to be taken and what kind of
> preparation in
> > beforehand is needed? To me the decision should be made by the DNSO
> GA,
> > all participants should have had a possibility to see the proposed
> charter
> > at least one week before the decision is to be taken and the
> proposal
> > should be publicly available.
> > There should also be a possibility to add issues to be studied by
> the WG at
> > the same time as the decision is made. The individuals writing the
> proposal
> > might have foreseen or forgotten a very important question.
> 
> I believe this needs discussion, although I have no firm opinion at
> this time.
> 
> Caroline - Under the bylaws, constituencies or GA participants may
> propose that the NC consider domain name policies or recommendations.
> If the NC undertakes consideration of a domain name topic, or if a
> Constituency so requests, the NC shall designate one or more research
> of drafting committees, or working groups of the GA, as appropriate to
> evaluate the topic, and shall set a time frame for the report of such
> committee or working group.  Therefore, it appears the NC has
> discretion whether to undertake consideration of a proposal, but if it
> does, I believe the NC should appoint a NC liason that is best suited
> for the issue at hand, and he or she should post the proposal and seek
> members from the WG.
> 
> > 15 Then there is the question on when a result from a WG is ready to
> be
> > taken as a proposal to ICANN. That has, in my mind, to be a
> consensus
> > process put in place for that. The result from a WG should be out on
> a
> > public hearing in all the constituencies and they should have a fair
> chance
> > to read through the proposal and give comments on it. And that can
> include
> > a referral of the job back to the WG in order for them to look at
> one or
> > more issues more properly.
> 
> Again, as a principle, it sounds good, but I think it needs to be much
> more
> clearly defined, otherwise it can be a significant hindrance to the WG
> completing
> its job in a timely and independent fashion.  It is a difficult
> balance.
> 
> Caroline - I believe the bylaws provide for such a procedure.
> 
> > 16 Another question is whether a result from a working group needs
> to go to
> > ICANN. Letīs say that there is a WG on ethics for ccTLD:s (donīt
> know if it
> > is relevant or not but, just as an example). There is a result which
> is
> > suitable for all constituencies, maybe it is only the ccTLD:s that
> are
> > interested. The ccTLD:s says amongst themselves - yes letīs go for
> this, we
> > implement it in our organizations. Does such a decision need to be
> put to
> > ICANN? I would prefer to say no.
> > Some results though there is a clear need to approach ICANN with.
> 
> A good point, but I agree it needs some thought and discussion.
> 
> Caroline - I believe the bylaws (Article VI-B(2)(c) and (d) addresses
> this.
> 
> > 17 Another question is when ICANN asks us to create a WG for a
> special
> > issue (like WG A). Shouldn't there be a mechanism to say when DNSO
> can give
> > a result back to ICANN instead of ICANN dictating? The result has to
> be a
> > consensus and that takes some time to get as all involved need to
> have a
> > fair chance to read and comment before consensus is reached.
> 
> Again, a good principle, and having just chaired WG-A, I certainly
> have a question
> in my mind whether there is consensus.  But then again, circumstances
> sometimes
> require action in a given time frame in a manner that does not conform
> to
> generally accepted and desired principles.  We are better off
> enunciating the
> general principles and the circumstances in which an exception can be
> invoked.
> 
> Caroline - I agree that the NC should set the time frame as it does
> for proposals received by constituencies or GA particpants under the
> bylaws.  Nevertheless, I believe the bylaws provide the checks and
> balances we need.  If ICANN provides too short of a time period, it
> will be impossible to present the proposal to the Board as a
> consensous recommendation.
> 
> > 18 We have to mention time frames for hearings, announcements before
> > creating, decision etc. And for the moment I donīt have a clue about
> them.
> > I just know that the proposed time scale in WG C is far to
> fast/short to be
> > able to create a consensus.
> 
> I think that it is very difficult to determine in advance what a
> reasonable time
> frame is for obtaining consensus on any given question.  There are
> simply too many
> hypotheticals and variables.  We have to count on the WG's and those
> considering
> their work to take into account and conform to the guidelines as much
> as possible.
> 
> Caroline - I think it will be necessary in any case where a time frame
> is established that a WG be able to petition NC for an extension if
> reasonable.
> 
> > 19 It would be very nice if we succeed in writing down the procedure
> and
> > then try to work this document through the process we are trying. It
> will
> > have the positive effect of being open and we can also see where the
> theory
> > doesnīt work in practise and have a opportunity to change it
> immediately.
> 
> I agree.
> 
> Caroline - I agree.
> 
> I look forward to the comments of other NC members.
> 
> 
> --
> Shapiro Cohen
> Group of Intellectual Property Practices
> Ottawa, Canada
> 
> Telephone: (613)232-5300
> Facsimile: (613) 563-9231
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