[wg-d] model final working group report

["Johnson, David" <DJohnson@Wilmer.COM>]

Don Telage spoke at the Names Council meeting about the importance of
defining a clear goal for the working groups to shoot for, perhaps in the
form of a template for the kind of report that should accompany any
recommendation for forwarding a consensus proposal to the Board. 
 
Brett Faucett has reposted a prior short list of some of the elements of
such a report -- and requested additional suggestions and comments. 
 
The following is a somewhat expanded list/template, designed to reflect
lessons from our first experience with the Working Group A report and the
resulting ICANN staff report, as well as useful comments from David Post and
others regarding the nature of consensus.  The interspersed explanations are
designed to discuss reasons for particular elements and procedural
implications of certain requirements. 
 
I would suggest that Working Group D might submit such a template because it
could help to define and channel the work of other working groups and
provide a basis for careful review of any Working Group work product by the
Names Council and the Board.
 
Obviously, the early and intermediate work products would not need to aspire
to this level of completeness. I think working group chairs should explore
ways to form subgroups to tackle particular subsets of the work --
articulating alternative proposals, assessing likely impacts, summarizing
key points raised by various stakeholders, outreach, etc. The long list that
follows is an attempt to flesh out an ideal end product of that fragmented,
intermediate work, sort of a checklist for use by working group chairs as
they assess the prospects of coming to a recommendation and report that
really does have consensus support.
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Model Working Group Report
 
Clear and concise statement of a specific proposal as to which consensus is
believed to exist. 
 
    Discussions on the lists pose the risk that every comment might be
understood by the poster or others to represent an effort of formulate a
consensus proposition. We need to focus discussion on a finite number of
proposals. Obviously, the early stages of a working group process might
generate a number of competing proposals. A search for support and
endorsements will help to sort of those proposals (and combinations) most
likely to lead to consensus.
 
General discussion of goal sought to be achieved and issues raised by the
proposed policy. 
 
    A report claiming consensus should explain why the proposal should take
the form of a uniform policy. Those who have not been deeply involved in the
working group will be enabled to evaluate the proposal against the
background of a stated goal -- and this could lead to suggestions on better
ways to reach the stated goal(s).
 
Description of the process leading up to the proposal. 
 
    No one could evaluate the claim that consensus exists without knowing
what meetings have been held, with whom, and what steps have been taken to
contact potentially impacted parties. The more extensive the record of the
process, the more convincing the case will be that dissenters have had their
views adequately taken into account. The less extensive the process, the
more credible claims by those who still object that a consensus has not been
reached.
 
Description of any previous deliberations on the policy in other fora. 
 
    It is fair and relevant to point out that other non-ICANN processes have
extensively considered various issues. Prior deliberation doesn't
necessarily support an artificial declaration of consensus -- but it can
help to frame the issues and to put various statements of support and
opposition into better perspective.
 
List of participants in the working group, along with their qualifications
and affiliations. 
 
    Working groups are open, of course, so there is no requirement for
particular qualifications -- nor any disqualification based on affiliation
or prior statements of position. The Bylaws contemplate that experts may be
consulted and invited -- and a statement of their qualifications can help to
give their views weight. The most active participants in the process of
formulating any particular draft ought also to be fully described -- so any
reader can evaluate potential sources of bias.
 
Description of outreach conducted to contact those potentially impacted by
the proposal. 
 
    It is highly unrealistic to expect that any "working group" will include
all of the parties that might be impacted by a proposal or whose views need,
somehow, to be assessed. Accordingly, outreach is essential. We have many
channels for outreach -- and even failure of some impacted parties to
respond to email and calls would itself yield valuable evidence of the
extent of interest, support or opposition. While proposals should be placed
on the web for public comment, that step alone will likely only reach those
already engaged in the process. A thoughtful working group will go out of
its way to make an extensive record of affirmative outreach -- and will be
able more strongly to claim consensus if such a process does not turn up
strong dissent.
 
Description of means adopted to assure that the process for consideration
was open and transparent. 
 
    To make a complete record, the working group should document the fact
that its deliberations were fully disclosed and publicly announced. Every
drafting subgroup should not have to proceed in public, of course. It may be
that substantial advances towards consensus can be achieved in private
conversations or even in the efforts of a single individual sitting down to
write out a new proposal or explanation. But the overall flow of discussions
should be kept open for input -- and the report of a working group that
claims to have achieved consensus should be able to explain how this was
accomplished.
 
Analysis of all potential impacts of the proposed policy. 
 
    The greatest uncertainty about any proposal, from the perspective of
those not intimately involved in its development, will be the extent and
nature of its impacts. An effort to analyze the nature and extent of impacts
will show that the proponents have extended their thinking to cover all
points of view -- and it will help potential supporters and opponents to
decide when to speak and consider how to develop alternative proposals that
minimize negative impacts and maximize positive ones.
 
Description of reasons to believe the process has produced a reliable record
of the views of those impacted. 
 
    Once impacts have been surveyed, it will be easier to go down the
checklist of potentially impacted parties and demonstrate, concretely, that
their views have been heard or reliably assessed.
 
Summary of arguments for and against the proposal, attributed to particular
sources. 
 
    The actual text of discussions among a working group may be quite
extensive. To allow neutral assessment of the result, the substantive
content of the discussion must be summarized in a coherent way. This process
will require a relatively fair and neutral scribe -- the presence of whom
will itself help to generate a trustworthy report.
 
Explanation of specific answers to any opposing views. 
 
    The key question posed in any consensus-based process is whether
opposing views (of which there will always be some) are isolated, limited in
intensity, shared only by those with low stakes in the process, or
unreasoned. For this reason, it is critical that a report specifically
analyze the substance of opposing views and point out the best answers to
those views or otherwise analyze why the opposition should not be entitled
to enough weight to allow the conclusion that consensus has not been
reached.
 
Analysis of distribution of support and opposition among impacted groups. 
 
    It is not enough to focus on substantive analysis. Rather, a consensus
report should analyze the distribution of views among parties. Such an
analysis may have to look at the affiliations between parties, the
relationship between substantive views and stakeholder interests, and any
patterns in coalitions that might shed light on where further improvements
or compromises are most likely to be found.
 
Analysis of the views of any parties specially impacted or required to
implement the proposal. 
 
    If a proposal imposes a disproportionate burden or implementation duty
on particular types of parties, any opposition from such parties would be
entitled to greater weight in evaluating the presence of consensus. It is
all too easy for those who do not bear the costs of a proposal to support
the imposition of those costs on others. As an analogy, the "takings clause"
of the US Constitution recognizes that it is unfair for one or a small group
of parties to be singled out to bear the costs even of government actions
that all agree would serve the general interest. A thorough working group
report should pay special attention to the views of any groups on which the
costs of a proposal will disproportionately fall.
 
List of factual or background materials that would be useful to anyone
analyzing the proposal. 
 
    A working group report should be designed to reach a broader public. It
should educate the less informed.
 
Analysis of reasons to believe that the proposal enjoys very widespread
support. 
 
    A key section of the report should expressly address the claim to
consensus -- describing concrete reasons to believe that affirmative support
is widespread. This is in contrast to the mere claim that an internal
working group (or Names Council) vote has been taken and has produced a
majority or even supermajority. The legitimacy of ICANN will rest on
demonstration that its policies are actually supported in the real world,
not just that its active participants have agreed on some proposition.
 
Analysis of the reasons to believe opposition is limited, unreasoned, or
arises only from those not impacted or implementing. 
 
    The corrollary of the foregoing is that the report will show that
opposition should be disregarded, for specific reasons that go to the
relatively low intensity of the opposition, the source of the opposition,
and the unreasoned character of the opposition. In addition to analyzing the
opposition, the report should analyze the affirmative reasons to disregard
it.
 
 Analysis of reasons to believe the proposal is within ICANN's mandate and
would comply with its Articles and Bylaws. 
 
    For completeness, and to avoid later questions, the report should
document or cite to those organizational documents that show ICANN is
competent to address the subject matter of the proposal. In the early
stages, specific reference to sections of the White Paper and ICANN's MOU
would help to provide support to a proposal.
 
Analysis of the need for uniform adoption of the proposed policy, as
compared with decentralized decision-making. 
 
    Since the alternative to a consensus proposal is always decentralized
decision-making in the marketplace, a thorough report should analyze this
alternative and show the nature and extent of any need for a uniform policy.
 
Explanation of the relationship between the proposed policies and local
laws. 
 
    ICANN doesn't not exist in a vacuum. Where policies implicate legal
issues, the relationships should be explained.
 
Demonstration that the policy will be required by contracts to be
implemented in an appropriately uniform and effective manner. 
 
    The meaningfulness of consensus for a policy will differ depending on
whether and how extensively it is likely to be implemented.
ICANN will likely rely on contracts to require implementation. The
relationship of the proposal to such contractual obligations should be
analyzed. The report should also analyze the relationship between the
proposal and any existing contractual obligations of ICANN and any
previously adopted policies.
 
In addition, a final and thorough report should probably also include the
following:
 
Analysis of any potential harm to competition.
Analysis of viable alternative policies and reasons for preferring the
proposal over those alternatives.
Analysis of reasons to act promptly rather than awaiting development of
additional support or taking steps to reduce opposition.
Specific analysis of the benefits, costs and risks created by adoption of
the policy.
Description of any additional steps required to be taken to implement the
policy.
Analysis of any likelihood that the proposal would raise issues or concerns
for other Supporting Organizations.
Record of any voting conducted by the Working Group.
Certification that the Working Group contained members from all
constituencies with a desire for input.
Appendix including or pointing to the record of all comments and discussions
developed as part of the ICANN process.
 
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To reiterate, I'm not suggesting that any proposal must cover all these
bases or that all intermediate drafting should take this form. But the
productivity of working groups might be improved by a shared understanding
of the ideal outcome. At a minimum, this kind of checklist would help the
chairs assign specific tasks -- and allow the chairs to respond to discord
by challenging participants to come up with drafts for particular
subsections of a final report.
 
 
David Johnson