[governance] vicious circles

[Jeanette Hofmann]

Hi Kieren,

it seems there is more than one vicious circle at work.
Some people think that an At Large membership needs to earn its right to 
have voting board members. Earning in the sense of developing well 
working regional At Large organizations, producing constructive inputs 
to or comments on policy processes, cooperating amicably with ICANN 
staff and above all, acknowledging the overall ICANN structure.

Other people think that participation in ICANN might well be a waste of 
time unless there is some form guaranty that comments made have indeed 
some political impact. (I remember an exchange between Annette Mühlberg, 
in her then role as ALAC chair, and Vint Cerf. Annette requested 
feedback from the board on some input from ALAC.  Vint looked at her as 
if it had never occured to him that it could be insufficient to merely 
allow ALAC to offer comments on issues.)
I would be good if we could overcome the polemic tone between both camps 
and find a solution that accomodates the concerns of both sides.

jeanette

Kieren McCarthy wrote:
> Bloody hell - why on earth didn't you boil this down and email it as a
> comment to either of the frameworks' public comment periods?
> 
> I'm not sure I agree with you that the federal wording you quote provides
> that much extra weight to public comment, but I have no problem discussing
> that and what the value of public comment should be in ICANN processes.
> 
> I'll tell you quite bluntly what the problem with public comments are the
> moment: it's a vicious circle. Poor quality comments (for whatever reason)
> means the input isn't valued, which leads to people not bothering, which
> leads to whatever comments are made not being taken seriously.
> 
> I am trying to break this circle by making sure summary/analyses of comments
> are produced and are then explicitly reviewed by the body in question. 
> 
> At the moment, and until public comments warrant greater respect, I think
> that's the most one can expect. If we manage to get to a position where
> well-considered, intelligent and thoughtful comments are regularly received
> and enable ICANN as an organisation to make better policy decisions, then I
> can see an easy case for beefing up their value within the system itself.
> 
> From ICANN's side there is a major issue - as you quite rightly point out -
> that thick reports are stuck out with almost no notice and people are
> expected to provide largely unstructured input on these reports in a very
> short timeframe.
> 
> This system cannot last and pretty much everyone agrees as much. If you look
> for example at what was done with the new gTLDs report - and how a long
> session at Los Angeles was structured to discuss the report point-by-point.
> I think you can expect to see more of that sort of approach.
> 
> There are two other useful factors here. The GAC, funnily enough, will
> ensure that documents are provided earlier and put out for review for longer
> because they cannot work in the bylaws' stated timeframe.
> 
> And the new translation policy that we should have in place and running
> properly by mid-2008 will mean documents have to be provided with some time
> in order to make them available in other languages.
> 
> Add to this a general feeling that ICANN has to move to a model where it
> supplies executive summaries of reports. Plus early efforts to introduce an
> organisation-wide numbering system for documents, plus great improvements in
> the pipeline for ICANN's websites, and most of these problems should start
> fading away.
> 
> I am also arguing that the best way for ICANN to progress adequately is to
> explicitly strip new policy documents into separate issues and encourage
> debate on each from whoever is interested i.e. you simply don't expect
> everyone to be interested in every aspect.
> 
> But that's just my perspective: I am not, and have never been, a policy
> wonk, so it may not be workable in practice. 
> 
> 
> As for me not getting personally upset. Honestly, I do not take these things
> personally. But I do find it infuriating when broad criticism is leveled at
> the organisation without any precise information, and without any
> constructive suggestions for improvement.
> 
> To change from one system to another, you have to know what precise changes
> you will make, review them in the wider context of their impact on other
> processes, and be certain that you will end up in a better position. 
> 
> Just saying "this doesn't work" or "there is a better way" is less than
> useful because it fosters defensiveness while achieving nothing. While I
> have been at ICANN I have seen a huge amount of positive change. I have also
> seen a few pieces of policy go through that I don't agree with - and in each
> case that is because people didn't bother to present the opposite case, or
> they refused to engage in constructive conversation. 
> 
> My job is to make sure that people are easily able to present their views
> and that those views are considered. I cannot and do not differentiate what
> those views are, although I do have a bias for views that consider others'
> perspectives and seek consensus - wherever they come from.
> 
> What I find frustrating is when people don't take those opportunities and
> then complain after the fact that their views weren't taken into account.
> 
> The system isn't perfect but it is getting better and if you can see obvious
> flaws or holes please point them out and I will do what I can to fix them.
> 
> 
> 
> Kieren
> 
> 
>  
> 
> 
> 
> 
> 
> -----Original Message-----
> From: Dan Krimm [mailto:dan at musicunbound.com] 
> Sent: Tuesday, November 20, 2007 7:56 PM
> To: governance at lists.cpsr.org
> Subject: RE: RE: [governance] Reinstate the Vote
> 
>> 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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