Re: [ga] Consensus... Definition?

["William S. Lovell" <wsl@cerebalaw.com>]

Sotiris Sotiropoulos wrote:

Roberto,

Forgive me for saying so, but your call for a definition of "consensus" is
IMHO some kind of diversionary tactic.  Why, and to what end...?

Must disagree with our stalwart contributor Sotiris.  We need a decent
definition of "consensus" because that is the basis upon which ICANN
is supposed to operate.  The original "run for an Individual's
Constituency"
(don't have a cite at the moment) foundered because the trademark lawyers
weighed in saying that no consensus had been shown. (More below.)

In its last
published consensus-based document the WG-Review suggested the definition of
"consensus" as a 2/3 majority of vote participants.  Did you not read it?
Must we have the same discussion all over again?  On the other hand, we have
the very interesting declaration of what "consensus" means in ICANN terms:

>From a July 8, 1999, ICANN correspondence to The Honorable Thomas J. Bliley,
Jr. Chairman of The House Committee on Commerce, from Esther Dyson on behalf
of ICANN:

"Because there were at the time of ICANN’s formation and remain today critics
of either its bylaws or particular actions taken since its creation, it is
useful to define what we mean when
we use the word “consensus.” It obviously does not mean “unanimous,” nor is it
intended to
reflect some precise counting of heads pro or con on a particular subject,
since in this
environment that is simply not possible. What it does mean is that, on any
particular issue,
proposed policies are generated from public input and published to the world
at large, comments
are received and publicly discussed, and an attempt is made, from the entirety
of that process, to articulate the consensus position as best it can be
perceived.

This is reality based.  The Best Practices process will provide exactly
this.
Indeed, there is really no other option but to adopt that practice
or, of
course, an amended version thereof -- what is in the course of being
posted is a "first shot" that will very likely be improved with a bit
of use.
> "Obviously, to the extent any individual or group
> undertakes to articulate a
> consensus of
> the overall community, its work is useful only to the extent it accurately
> reflects the consensus. ICANN is no exception to this rule. Unfortunately,
> there is no litmus test that can objectively render a judgment as to
> whether
> this standard has been met in any particular
> situation.
There is not, and will not be, any definitive litmus test that will prove
to all
that a consensus exists, since the matter is so nebulous.  However,
there
will shortly be a "test" that will at least establish a necessary,
but possibly
not sufficient, condition for claiming a consensus, and that is that
an ISSUE
was suggested, and then -- with or without the insertion of optional
POLLS
(but preferably with) -- that ISSUE became a PROPOSAL
that became
a MOTION which led to a VOTE
from which there was a REPORT.  Part I
of the Best Practices procedure was previously posted, and publication
of Part II -- Flow Chart, is imminent. A third part that sets out time
lines
will then follow, and, taken as a whole, the procedure will provide
as good
of a "paper trail" demonstrating (or not) the existence of a consensus
that
one can ever get from the Internet environment.  Opportunity is
provided
for everyone either to express their positions on various ISSUES
or remain
silent -- an occurrence that may at least be taken to mean that the
"silent
majority" has no violent objection to what is being proposed.

Once that course has been run, there remains the job of judging whether
or not a consensus (either negative or positive on the MOTION) has been
established.  This would not be a matter of raw numbers, but rather one
of analyzing the DISCUSSIONS and DEBATES, to seek out positions and
arguments on which, for example, no one has countered or objected.
The salutory process of "tweaking" a PROPOSAL, or setting out some
alternative, would aid in an "outreach" for consensus as has been suggested
elsewhere, whereby some final PROPOSAL on which essentially universal
agreement is shown might be developed that, through the final VOTE,
could demonstrate consensus as well as that nebulous notion could ever
be demonstrated.

> Perhaps the best test is whether the community at
> large is
> comfortable with the
> process and the results, and the best gauge of that is probably the
> level of
> continuing participation in the process, and voluntary compliance with
> the
> policies produced by that process. "This is, necessarily, a more ambiguous
> standard than counting votes or some other
> objectively measurable criteria, and it inevitably means less efficient,
> more
> messy, less linear
> movement, as the perceived community consensus shifts and adapts to
> change, or
> as perceptions
> of that consensus themselves are refined or change. Such a process
> is easily
> subject to criticism and attack by those not satisfied with the process
> or the
> results; after all,
> in the absence of some objective determination, it is impossible to
> definitively refute claims that the consensus has been misread, and
> loud noise
> can sometimes be mistaken for broad support for any proposition advanced.
All of this seems to be appropriate comment.  One thing that the Best
Practices
provides, however, is a reasonably linear procedure -- top to bottom.
A part
of that is the occurrence of "branching" -- two or more PROPOSALS
may
have been established on a single issue, but the "track" of each will
be easy
to follow: "Proposition 1 = yadda yadda; Proposition 2 = different
yadda
yadda."  The same as to MOTIONS. The mechanics
of the procedure, although
quite simple, will nevertheless impart a feeling of participating in
something
that is real, and not just this or that person or clique beating
an individual drum.

The procedure is also well adapted to the expression of disagreement. As we
all know, the General Assembly does not dictate any policy, although it has
the opportunity both to propose policies and to criticize those that ICANN
has adopted.  The "open, bottoms up" mode under which ICANN is supposed
to be operated provides a perfect window not for what has been the practice so
far: various ones of us post messages that complain about this or that -- all of
which ICANN has the habit of treating as just so much chaff -- but instead
for all sorts of MOTIONS, one type of which could well be a MOTION OF
OPPOSITION. (Or we could get more explicit and call it a MOTION OF
CONDEMNATION.) If the General Assembly had, through use of the Best
Practices procedure, demonstrated a vigorous opposition to some ICANN
practice, then that event would be much more likely to garner attention --
not only from ICANN (one would hope) but from the DofC and indeed
Congress.  How better to document that ICANN is running amok with its
own, self-conceived agenda? And how many MOTIONS OF OPPOSITION
that show real agreement within the GA would it take before someone
takes notice? Not too many, methinks.

>  
> "Certainly there are those who do not accept that particular ICANN
> policies or
> decisions to
> date accurately reflect the community consensus, and there are some
> who are
> not comfortable
> with the process that has been employed to determine the community
> consensus.
> No doubt
> reasonable people can differ on both policy and process, and certainly
> there
> are many opinions
> about practically everything on which ICANN has acted. Still, it appears
> that
> the process has
> actually worked remarkably well considering the difficulty of the task,
> as
> measured by the fact that most of the global Internet communities continue
> to
> participate in this consensus development process.’
Now this, of course, is arrant nonsense. The global Internet community
participates because for far too long ICANN (and NSI/Verisign) has
been
the only game in town. And this "consensus development process" has
been
a joke. The Best Practices procedure can now put ICANN into a survival
mode: it either follows the well established wishes of the Internet
Community
as exhibited by the Best Practices procedure or it goes out of business.

Bill Lovell