[governance] Reinstate the Vote

[Dan Krimm]

>http://www.icann.org/transparency/acct-trans-frameworks-principles-17oct07.pdf


Kieren, stop your bluster.  This is not about you.

I read this document when you posted it before, and it contains utterly
nothing in terms of formal requirements for incorporating comments from the
public into policy *decisions*.  I refer to the section "ICANN CONSULTATION
PRINCIPLES" on pp. 18-19.

The principles listed involve lots of ways that people can *look in* on
ICANN deliberations (though the transaction costs of such monitoring, not
to mention active participation, are high, and still work against broad
accountability in practice).  At the end is where it determines that there
will be a "public participation web site" and what is to be done with that
input.  My issue here is not whether the public has a place to voice its
opinions (let us assume for the moment that it is working fine in all
respects), the point is whether those public opinions will be *taken into
account* by those *actually deciding policy* at ICANN.

So, in particular, on p.19, there is the following bullet point, with
regard to public comments:

 * Request explicit discussion of that summary and analysis by the relevant
body while discussing the topic under consideration

This only requires that explicit *mention* be made in summary of public
comments, but does nothing to require the "relevant body" at ICANN to
*address and respond meaningfully to the substance* of those comments in an
explicit manner, so as to create a comprehensive rational justification for
policy that becomes part of ICANN's public and legal record.  The relevant
body can say "thank you very much, now let's move on" and is not formally
required to address the substance of the comments.

But, when such policy is finally delivered to the Board, does the Board
have the authority to address the detailed substance of those public
comments?  It remains unclear as a procedural matter, so far as I know.
Everyone seems to be passing the buck to someone else.

-----

As a comparison, let me refer you to a statement on Regulations.gov, the US
federal counterpart to your public participation web site:

"As part of the rulemaking process, the Department or Agency is required to
consider the public comments received on the proposed regulation. When the
Department or Agency publishes the text of the final regulation in the
Federal Register, it generally incorporates a response to the significant
issues raised by those who submitted comments and discusses any changes
made to the regulation as a result."

http://www.regulations.gov  -- see FAQ item "What is a Rulemaking?"

The point here is that the rulemaking bodies of US federal agencies are
generally required to consider public comments substantively (not merely
mention or summarize them or hear or listen to them), and respond
explicitly to those comments, including a coherent rationale for resulting
agency rules in light of the substance of those comments.  It suggests that
public comments can have an impact on changing the substance of the rules
before they are finalized.

In short, if a member of the public submits a substantive comment to the
agency (during a public comment period) suggesting a change in some
proposed rule, the agency must explain how and why the rule that is finally
promulgated has a rational justification in light of the issues raised in
that comment.  It may not ignore the substance of the comment, and the
rational basis for the rule is subject to explicit legal review -- it
becomes part of the legal record and is actionable in court.  If the agency
blows by the comment in a way that suggests that it did not take the issue
into account in a genuinely substantive manner, that rule may well be
vulnerable to legal challenge and reversal by the court system.

This kind of tangible impact and legal enforceability of public comments on
policy-making is what seems to be missing from ICANN's bylaws -- it
certainly is not contained in the document you referenced here.  It makes
ICANN's public transparency ineffectual in real political terms, because it
does not require ICANN's policy-making bodies to incorporate the substance
of public comments systematically and explicitly into its policy-making
decisions.  This is where the gears might actually get engaged between the
engine (of public comments to ICANN) and the drive-train (of ICANN
policy-making).

-----

One of the logistical challenges at ICANN at present is that public
comments are open only at the end of long drawn-out policy-making processes
where policy makers have already hardened their positions, there is little
time left to consider changes once the comment period closes, and thus
substantive issues are least likely to be addressed in a substantive manner
by a volunteer policy-making body under deadline.

One possible strategy to address this problem is to open public input much
earlier in the process, so that members of the public can offer input at a
time when it might have more potential to make an impact on the
policy-makers at ICANN.  And, to preclude the sorts of deadlines after the
end of public comment periods that undermine the feasibility of addressing
public comments substantively.  This could address the time crunch issue.

Another thing that could help is to formally require policy decisions at
ICANN to include explicit responses to all substantive issues raised by the
public, and to require coherent and rational justification for the
resulting policy in light of those issues -- and to determine some way of
legally enforcing claims against the policy if it appears the justification
was not fully legitimate, with the entity that has enforcement authority
being meaningfully separated from the power structure that creates the
policy in the first place (this is called an "independent judiciary" in
policy circles, and it is a fundamental prerequisite for genuinely
democratic forms of governance, in the nature of "checks and balances").

These sorts of things should be added to ICANN's bylaws so that they have
formal weight in the institutional structure overall.

-----

See, Kieren, I'm not blaming you personally.  So far as I know you are
doing your job just fine, at least well enough given your relatively short
time on the job.  I also don't blame the specific policy-makers, since they
are volunteering their time often under difficult time pressure and
contentious conditions of deliberation.  (Except for those who are paid to
do this work by their regular employers that make these duties part of
their official private job descriptions.)

The problem seems to be that you are tossing all of your hard work into a
black hole where it has no meaningful chance for actual impact on
policy-making inside ICANN.  And policy-makers are being placed in a
double-bind trying to simultaneously come up with a "consensus" process
under deadline, and to address public comments at the last moment.  The
problem is not with the individuals involved, it is with the structure of
the process, and responsibility rests with those who structure that process.

If this dysfunction is intentional, then it is nefarious (on the part of
those who structure ICANN's administrative procedures).  If it is
unintentional, then it points to room (and call) for *significant*
improvement in the structure of these administrative procedures.

I wish you wouldn't take this so personally.  I didn't accuse you of
writing the bylaws, or failing to elicit public comments, etc.  My problems
with ICANN's administrative procedures are not in your court, because I
assume you have no individual authority to change them.

I address these issues to those who *do* have the authority to decide how
things run at ICANN.

Of course, if you are put in the position of being a spokesperson for those
with that authority (like a presidential press secretary), then you are in
a really tough position, and I don't envy you because to do your job means
you have to push back at even admitting problems in this area, thus
obstructing even the consideration of potential solutions.

Dan
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