[council] Working Group D Report

[Bret Fausett <baf@fausett.com>]

Dear Members of the Names Council:

On tomorrow's call, you will be considering the report of Working Group D,
which I was privileged to Chair, on the procedures and operations of DNSO
Working Groups. A copy is linked from here:

   http://www.dnso.org/wgroups/wg-d/Arc02/msg00001.html

As background for that report, I wanted to provide you with a brief
introduction about why, in my personal opinion, working groups are
important, and in some instances, even may be necessary.

First, let me state the obvious: Working Groups are not the most efficient
way to reach decisions. They can be noisy, cumbersome and slow. The rules
you will see set out in the document linked above, however, are designed to
minimize the problems associated with Working Groups, making them productive
places to develop policy initiatives.

Whatever problems may still exist after the adoption of these rules,
however, Working Groups are *extremely effective* at identifying the
universe of issues that need to be considered on a given problem and
developing tentative recommendations about how to address those issues. As
such, Working Groups are an excellent first step in the policy development
process. 

Second, in some instances, a Working Group process may be preferable to a
task force or some other small group. One of the primary goals of the ICANN
consensus policy-making process is to bind a recalcitrant participant to a
consensus policy on which it does not agree. For example, the
ICANN-accredited registries and registrars are only bound to consensus
policies that are supported by:

   a written report and supporting materials (which
   must include all substantive submissions to the
   Supporting Organization relating to the proposal)
   that (i) documents the extent of agreement and
   disagreement among impacted groups, (ii) documents
   the outreach process used to seek to achieve
   adequate representation of the views of groups
   that are likely to be impacted, and (iii)
   documents the nature and intensity of reasoned
   support and opposition to the proposed policy.

While open Working Groups are not the only means for the "outreach process"
described in the contracts, they are the most open, broad-based mechanism
available for bottom-up decision-making. The risk of implementing a policy
process that involves fewer participants or that lacks a meaningful
opportunity for participation is that it will not stand up to a legal
challenge by a party who wishes to contest the legitimacy of an ICANN
consensus policy. The Working Group process potentially provides one of the
best mechanisms for meeting the consensus requirements in many of the ICANN
contracts, and the reports specified in the Working Group D report are
designed to meet the rigors of the definition above.

The Working Group D recommendation should be revised from time to time as we
gain more experience about how these groups perform, but I hope that the NC
will not abandon the open Working Group format. Indeed, using the rules set
forth in the Working Group D proposal, it is my personal hope that the NC
will soon create working groups for the UDRP review, multilingual issues,
and a review of the new TLD process and testbed results, among other topics.

Thank you for your consideration, and if you have any questions about the
report, please feel free to post to the Working Group D mailing list at
wg-d@dnso.org.

     -- Bret Fausett