[governance] Oversight

[John Curran]

On Jul 1, 2012, at 8:19 AM, parminder wrote:

> John,
> 
> You provide a good view of how some public policy issues that get encountered in various tech coordination activities get addressed. There indeed are some existing ways in which the concerned public policy considerations are soaked in from the environment, if in an ad hoc manner, which, I understand is also how you see it.

I believe they get incorporated in an ad-hoc manner only because there is 
a lack of consensus on how and where "social and public policy norms" 
are documented by society.    Having no clear expression of public policy 
requirements and having dozens of expressions of public policy requirements
are both equally bad, as what is needed for guidance in technical protocol
development and identifier coordination is the input of single statements
of which "social and public policy norms" are applicable.

For example, a clear requirement exists with respect to privacy of residential 
data within Canada (due to strong data privacy statutes) but it is not quite as
clear in the US nor in the 25 Caribbean economies in the ARIN region.   As we 
have to make regional policy which works for everyone, the resulting policy on
level of information in the public (IP) Whois directory basically must consider
the clear policy requirements from Canada and allow for the redaction of that 
information if and when service providers assign large IP address blocks for 
individual subscribers.  We have no conflicting guidance, so it was easy to 
accomodate as required.

Having clear guidance on the social and public policy norms lets those working
on Internet protocols and protocol identifier management actively avoid having
conflicts with such guidance.  It's still a difficult job, but it is doable, in that the
various implications of protocol or identifier management can be held up against
the received guidance to make sure that the final implemented processes for 
identifier management will indeed be compatible.

When no such guidance or (almost as bad) multiple conflicting guidance is received, 
then you are left with a predominantly technical community attempting to work on 
social and public matters to fill the gap in social and public policy norms.  The job 
will get done, but It's not pretty, and may not make anyone happy with the result.

> You do rightly stress 'ICANN's limited mandate of technical coordination.   Increasingly, it appears to me that the concerned public policy issues are becoming more important and at the same time more complex, and the manner in which they get incorporated in the technical coordination function may increasingly be inadequate. 

Parminder - It is inadequate, but that's because it is the wrong tool for the job.

If you're seeking consensus on important and complex public policy matters, it 
would be best to drive that to resolution down to basic principles of agreement
elsewhere before attempting to apply those principles to technical matters such
as protocol development and identifier management.

> The oversight issue is about developing an appropriate and adequate method for incorporating the relevant public policy concerns in technical coordination functions.

There are two uses of the term "oversight" with respect to ICANN:

1) Oversight of ICANN in the overall performance of its mission 

    This is how the term "oversight" is used by many in the Internet 
    community, and has been historically been a role held by the USG 
    via the JPA, and has transitioned to the reviews performed under 
    the Affirmation of Commitments.  

    This is about reviews of structure, process, mechanisms, etc.

2) "Oversight" of ICANN during the policy development process

    This is a colloquial use of the term "oversight", in that it would 
    probably be better phrased "Monitoring and guiding ICANN when
    it is performing policy development to produce politically useful
    outcomes"

    The problem with such "oversight" is that it actually presumes
    that ICANN is an appropriate and useful forum for working out 
    all of the world's previously unresolved public policy matters.  
    For example, if governments and civil society had a single
    clear norm for what constitutes "decent speech", then its
    application in a technical setting would be straightforward.
    Absent a clear social & public policy norm for such content
    determination, attempting to re-address the same question
    within ICANN is not likely to produce any better outcome.
    
Let's recall one key statement from ICANN's core values:

"11. While remaining rooted in the private sector, recognizing that governments and public authorities are responsible for public policy and duly taking into account governments' or public authorities' recommendations."

Taking such recommendations into account _requires_ that there 
is either a single consensus input received or indeed a high degree 
of commonality among all of the recommendations received.   I do
believe that ICANN must respect the guidance in these cases, but
from what I can determine it is not in ICANN's mission to bring about
consensus in social and public policy matters where none exists today.
(and If ICANN had such amazing abilities, then we should have it work
on world hunger and conflict before worrying about Internet matters...)

> But doing it in a manner that is not ad hoc, based on proper law and policy frameworks arrived at through a transparent and participatory process, and employing duly laid out procedures and methods.

Full agreement on the above statement - insuring this is a major part
of the current review processes.

> At present there is a kind of schizophrenia whereby ICANN is caught between its own and other actor's assessment of it being basically a technical coordination body with limited capacity of dealing with public policy considerations (which is inter alia also NCUC's stand) and the increasingly important and complex public policy considerations that are implicated in many technical coordination functions. How to solve this conundrum is the main issue that we are facing here. 

If the public policy considerations that you reference are areas where we
have commonly accepted and documented societal norms, then those 
documents should be formally submitted into the policy development 
processes and ICANN should be held accountable, per its core values,
for taking them into consideration in setting policies for technical identifier
coordination and management for the Internet.

If the public policy considerations that you reference are areas where we
lack commonly accepted and documented societal norms, I would think
that bringing governments, civil society, and businesses together on these 
matters first would be a high priority, and a task much larger in scope that
ICANN's mission.

FYI,
/John

p.s.  Disclaimer: My views alone. The thoughts expressed may not be suitable
        for any specific purpose, including world domination.  This forum may not 
        grant time to responsible parties with opposing viewpoints.  May cause
        mental staining; please try out on an unexposed section of mind first.
 
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