RE: [ga] Council debate on GNSO reform

["Gomes, Chuck" <cgomes@verisign.com>]

Danny,

I strongly disagree with your claim that "nothing is happening at the
constituency level."  I cannot speak for other constituencies and won't try,
but I can say emphatically that this is not true for the gTLD Registries
Constituency.  The full constituency is actively involved and our NC
representatives put forth the constituency's positions, not their own.

Don't get me wrong though.  I do not think the current process is working
anywhere close to well.

Chuck

> -----Original Message-----
> From: DannyYounger@cs.com [mailto:DannyYounger@cs.com]
> Sent: Friday, September 27, 2002 2:43 PM
> To: jsims@jonesday.com
> Cc: ga@dnso.org
> Subject: [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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