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[ga] Council debate on GNSO reform
Dear Joe,
I appreciate the effort that you have made to engage the members of the
Council in a true debate regarding the course of the proposed GNSO reform
initiative. For the first time in quite a long while, the Council is
actually using their discussion list for the purpose of sustained discourse
(a few posts) on a topic that affects them all. This is a very positive
development, and it points to what might be attainable should the Board or
Staff choose to regularly involve themselves to some degree in the policy
assessment process.
You have essentially put forth the position that the status quo arrangement
wasn't working, and that in view of this deficiency a change in structure was
warranted. Most all would share this view. However, it should be noted that
it is generally not prudent to devise a replacement structure without first
examining the root cause of the deficiencies in the present structure -- one
would not want to merely export the same set of problems into a new construct.
Let's take a look at some real examples of what occurs in the current process
(we can even take yesterday's teleconference as a typical example):
1. An issue arises in the course of a Council session (even though everyone
knew in advance that discussion of the issue was on the agenda and what the
expected positions of each individual constituency would most likely be,
there are no prior efforts made to either discuss the issue in a
cross-constituency forum (such as the General Assembly) or to arrive at any
compromise through any other means. Further, the scheduled agenda topic is
never raised on any constituency discussion list.
2. Everyone states what they purport their constituency position to be even
though it was never formally discussed within the constituency, and an
attempt is made to arrive at high-level language to deal with the situation
because only some type of fairly useless high-level language has the prospect
of bringing together those that are still fundamentally at odds with one
another. The operative goal seems to be to forge the perception of consensus
even when none truly exists and, of course, in the absence of any true
compromise hammered out by the respective parties. It should be noted that a
two-hour Council session with no other prior dialogue between the parties
does not readily allow for the development of any such compromises.
3. If push comes to shove, and one party does offer to make a concession in
order to garner the vote of another constituency, the recipient of the offer
is not prepared to immediately accept and indicates that his/her
constituency's ratification will be required. The vote on a resolution is
postponed pending the requisite feedback.
4. The representative then requests input from their own constituency. I
have seen Ken Stubbs, Paul Kane, Harold Feld and others take such action and
on almost each such occasion the response is identical - none. No one at the
constituency level ever has anything to say on the topic.
5. At the next Council session, the representative then claims to have
received constituency input and proceeds to cast a vote.
The basic problem is this - we have a constituency system in which nothing is
happening at the constituency level. There is no discussion, there is no
analysis, and there are no longer any vehicles by which the average
constituency member can involve themselves in the process.
We used to have open Working Groups in which anyone could choose to
participate. When we had such groups, the discussion both within the WG list
and on the constituency lists was lively and led to a thorough review of the
issue at hand. What we have now allows for no such broad participation, and
the consequences of having adopted this closed TF approach are indeed
self-evident.
I can well understand, however, the objections of the constituencies to an
open working group process. Invariably the working group arrives at
conclusions that these stakeholders don't necessarily endorse. There is
sufficient history to demonstrate that time after time this has been the
case. Accordingly, the Council collectively no longer desires to pursue such
an approach (with the exception of the NCDNHC whose opinions are generally in
line with working group recommendations).
So, the first question the Board needs to answer is this: does the Board
seek only to continue obtaining the personal views of a very small subset of
ICANN participants (the current constituency representatives), or do they
seek to gain the views of all those others that choose to actually involve
themselves in a thorough discussion of issues within the DNSO?
The current ERC recommendations seem to favor the former approach instead of
the latter. Adding a few Non-Com reps into the process and changing the
voting structure however will alone accomplish nothing to either help craft
compromises or to forge consensus - it just changes the final tally of votes,
and the Board will still be faced with arriving at a determination without
the benefit of anything more than the meager input that a high-level Council
recommendation provides. This type of a reform accomplishes nothing of
value. You might as well just send a note to each constituency chair and ask
them what their view is on a particular topic - it would certainly be more
efficient.
If, on the other hand, you actually want to receive well-considered advice
that has been vetted by a discussion in great depth involving a large number
of interested parties (with the reasonable prospect that over the course of
time some type of true consensus will emerge), then you need to consider the
type of reform that truly embraces potential participants.
In my view, I have only heard lip service being paid to participation.
Although participation is now the watchword of the day (replacing
representation), I am not convinced that the Board really desires anyone
other than current stakeholder representatives to participate. Of course,
due diligence will be performed and reasonable notice-and-comment provisions
will allow for a limited amount of public input, and this might well be what
the Board currently wants (leaving it in the sole position to decree policy
in the absence of either significant input or definitive consensus), but does
the Board really want to continue a status quo that offers it little by way
of thorough issue/policy analysis? In the long-term, is this truly in the
best interest of the Corporation?
From my vantage point, the Board could benefit from a proper issue analysis
process that leads to substantive policy recommendations. What we have at
the moment, however, makes it clear that Louis Touton alone, in one day,
could do a better job of drafting an issue analysis than the entirety of the
Council even if they were given an entire year to accomplish the same task.
The Board is not getting from these folks what I presume the Board seeks to
obtain. This leaves everyone frustrated and fishing for a quick fix. In the
meantime, we continue to hear the refrain from constituency reps that they
are mere "volunteers". This seems to be the code for "we no longer have a
commitment to devoting the time necessary to getting any job done that
doesn't immediately impact our own special interests". And frankly, this is
part of the bigger problem.
When a constituency representative decides that a particular topic is not
overly germane to the special interest group that they represent, they choose
not to participate in the task force that examines the issue (often showing
up only for a final vote after the other few participants finally finish
their work), and the Board winds up receiving a document that hasn't profited
from the benefit of a wide range of views or from an in-depth evaluation.
This is a lousy way of getting the job done. As I see it, you have three
choices. Either you can request additional funding for dedicated staff to do
the lion's share of the work in preparing a proper issue/policy analysis (so
that Louis isn't always tasked with the job), or you can open up the process
to all those others that are currently excluded from participating in any
meaningful fashion, or you can recognize that the current constituency
process itself requires a major overhaul and that structural changes at the
Council level alone are insufficient to accomplish your goals -- a functional
change is also warranted.
Personally, I don't think that these constituencies will ever reform
themselves, or that you will have any luck cajoling them into making
appropriate changes in the way that they conduct their affairs. Neither do I
believe that the current stakeholders will ever be receptive to opening up
their processes for anything more than sham public participation. In view of
these realities, I would argue that it's probably time to pump a lot of money
into Staff positions so that the Board at least can benefit from somebody
doing a reasonably proper job of laying out the issues and the policy
implications.
Do I like this choice? Not really, but the intransigence on the part of
these entrenched stakeholders to allow others to participate, and their
inability to generate participation within their own constituencies, seems to
make this choice the only remaining tenable option. Eventually, the
constituencies might conclude that they don't appreciate the Staff doing the
bulk of this work (as it makes them largely irrelevant) and might then act to
finally reform the input process accordingly.
What I would prefer, of course, is a very different approach to the problem.
The constituency model hasn't worked, and won't work because quite frankly
there is no incentive in this environment to achieve a consensus position,
and neither are there any functional mechanics that will allow for
compromises to be achieved. Instead, I prefer to recognize that this is in
fact the operative reality of the moment, and that rather than trying to
force an artificial consensus, it is eminently more prudent to simply allow
all participants in the process to articulate their unfiltered and unmangled
views directly to the Board where the presence or lack of consensus will be
determined.
With this methodology, the workload returns to the constituencies that must
then independently formulate their own assessment of the issues and their own
recommendations to solve the problems under consideration. In turn, this
means that the constituencies, in order to do a responsible and proper job,
will turn to their membership for guidance and counsel to a far greater
degree than has heretofore been possible. Such an approach would also allow
the members of the General Assembly to formally tender their views, and would
also afford the At-large structures a similar opportunity.
In this scenario, the sole function of the Council would be to function as a
coordinator that would determine the issues to be evaluated and the timetable
within which these constituency and non-constituency views would be tendered.
I do not view the Council as a policy-recommending institution (it has
already proven its incapacity for performing that function), but rather as a
coordinator that allows others in a decentralized fashion to formulate
recommendations that will independently make their own way to the Board in a
scheduled and orderly fashion.
Supposedly ICANN is a coordinator. Why not also have the Council function as
a coordinator? Let the work get done at the local level. Bottom-up by the
constituencies and others. The way it should be done.
--
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