[ga] Council debate on GNSO reform

[DannyYounger@cs.com]

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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