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<font size="3" face="Lucida Grande">Alain and Dan, thanks for some very thoughtful comments on this topic that is near and dear to many of our hearts. We've got a number of folks on this list that, like yourselves, have been long-time advocates and activists in this arena, which makes for a great resource, especially for ICANN.</font> </p>
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<font size="3" face="Lucida Grande">Would this be a topic that would be worth an NCSG-wide (i.e. NPOC+NCUC) event/program/session, at future ICANN and IGF meetings? In the near term, should this also be on the list of topics to be covered at the ICANN Board-NCSG meeting in Beijing?</font> </p>
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<font size="3" face="Lucida Grande">Cheers</font> </p>
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<font size="3" face="Lucida Grande">Mary</font><br><br><font face="Lucida Grande" STYLE="font-size: 12pt"><br>Mary W S Wong
<BR>Professor of Law
<BR>Faculty Chair, Global IP Partnerships
<BR>Chair, Graduate IP Programs
<BR>UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW
<BR>Two White Street
<BR>Concord, NH 03301
<BR>USA
<BR>Email: mary.wong@law.unh.edu
<BR>Phone: 1-603-513-5143
<BR>Webpage: <a href="http://www.law.unh.edu/marywong/index.php
">http://www.law.unh.edu/marywong/index.php
</a><BR><br><br></font>>>> </p>
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Dan Krimm <dan@MUSICUNBOUND.COM> </p>
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<NCSG-DISCUSS@LISTSERV.SYR.EDU> </p>
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3/27/2013 2:15 PM </p>
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Re: [NCSG-Discuss] Should NCSG consider filing an ombudsman complaint against ICANN senior staff for violating the organization's policy development process? </p>
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Alain<br><br>Thanks for the discussion.<br><br>First, I think we should file all Ombudsman complaints (and definitely<br>recruit allies), though I don't expect it would necessarily be a silver<br>bullet solution -- holding it to that standard would make it appear<br>ineffective. But it builds a track record, a case that we are trying<br>everything pro forma, jumping through the hoops as expected, playing the<br>procedural game, the bureaucracy, as specified. We climb the ladder one<br>step at a time, appealing to ever greater authorities like in the court<br>system. This is the step of establishing facts, formal basis of<br>objection, etc.<br><br>Next, the difference between what you call closely vested interests and<br>principled interests exhibits one well-known characteristic: the<br>"collective-action problem". Vested interests tend to be narrow<br>interests, whereas principled interests tend to be broad interests.<br>Narrow interests that are well-endowed are always at a relative advantage<br>compared to broadly distributed interests, because while there may be<br>enough resources distributed broadly to counteract the concentrated<br>resources of narrow interests, there is a much higher cost to motivating,<br>coordinating and marshaling distributed resources. The cliche that comes<br>to mind is "herding cats". Especially, since all participation in MS<br>processes at ICANN is on a volunteer basis, narrow interests can much more<br>easily allocate paid resources to this volunteer activity, whereas<br>distributed interests have a much harder time making this allocation.<br><br>This dynamic has been present at ICANN as long as I've been involved,<br>which goes back to 2006. I suspect it has been this way from the start --<br>it's a structural dynamic that relates to the whole SO organizational<br>model.<br><br>Soto your question, how does a MS organization balance this inherent<br>imbalance in the ability to participate effectively? The big-picture<br>answer is that the little guys at the bottom of the pyramid need to be<br>given ways to neutralize the resource advantage. Not to be given any<br>special advantage above narrow interests, but to play on a level playing<br>field.<br><br>One obvious tactic is to create formal operational structures that enable<br>bottom-up participation without doing anything to disadvantage those with<br>the resources to participate in other ways. There has been some effort to<br>do so at ICANN, but this is constantly being undermined by the narrow<br>interests -- if policy is a "war" then opponents will seek to win the war<br>any way they can, and that can involve tweaking the rules of the game to<br>one's advantage, if they are being systematically set up to reduce one's<br>advantage.<br><br>So, if there is a structure to provide equitable participation, finding an<br>ad hoc alternative path to avoid that equity is again to one's advantage,<br>to the extent that equity is a reduction in influence.<br><br>Separation of power in a governance structure is imperative if equity is<br>to be maintained. One big problem with ICANN is that there is little<br>evidence of the equivalent of an "independent judiciary" in the org<br>structure. If there is no distinction between the executive and judicial<br>functions, then the executive hierarchy is unchecked.<br><br>In short, ICANN used a conventional non-profit organizational structure<br>with weak oversight from the USG (DoC/NTIA) to create a "bottle" in which<br>the MSM was intended to operate. A sort of "virtual world" of governance.<br><br>But within that virtual world of governance, the staff has embedded itself<br>in policy-making, rather than just being part of the bottle, which was<br>presumably what it was intended to do. AIUI, staff was supposed to<br>provide infrastructure, not to get involved in the content of MS activity.<br><br>This Chinese Wall has been breached. So one prerequisite is that staff<br>needs to be confined to acting as only the bottle, once again. In order<br>for that to happen, there needs to be some independent oversight of staff<br>to prevent policy-relevant activity.<br><br>Several folks have mentioned the policy/implementation split. This is<br>part of that problem: implementation can be considered part of the bottle,<br>but policy must be seen as only "contents" of the bottle. Fudging this<br>split is a major way to break through the Chinese Wall. So I think this<br>point should be pressed firmly, front and center, not as some sort of<br>tangential point.<br><br>Another conceptual problem is that ICANN in practice is not just an<br>"operational organization" -- the policies it makes can have profound<br>political ramifications, and thus politics gets into the picture in<br>practice, even if the terms of discourse center on operational principles.<br><br>There is frequent mention of keeping ICANN to just operational matters<br>(I'm definitely a proponent of that mission), however it should be<br>acknowledged that such a position is inherently political: it's all about<br>protecting the broadly-distributed interests against narrow interests, and<br>the broad-narrow contest is fundamentally political.<br><br>I'm afraid I don't have the time to pound on ICANN's org structure from a<br>detailed theoretical basis (part of that difficulty of resource<br>allocation: I don't get paid to do this, and I need to get to do<br>*something*,so that competes for my time). I wish I could. The only<br>reason I can offer this contribution right now is that I'm traveling and<br>currently waiting at the airport for a flight -- one fleeting moment of<br>opportunity (more moments on the flight, a bit later).<br><br>These are big questions, and deserve big answers. I don't have those<br>answers in any detailed form, because that takes a lot of work to make<br>one's way through the forest at the individual-tree level.<br><br>Suffice it to say that as the MSM at ICANN has "matured" the narrow<br>interests have found ways to twist both the bottle and the contents to<br>their systematic advantage, which the MSM was intended to neutralize<br>(since they start with the advantage naturally, without special efforts to<br>privilege them).<br><br><br>At this point, we take the system as it stands and do everything possible<br>to get it to work, but as I said earlier, I think we should be prepared to<br>address everything -- the bottle and not just the contents -- to push for<br>the distributed-interest agenda.<br><br>Dan<br><br><br>--<br>Any opinions expressed in this message are those of the author alone and<br>do not necessarily reflect any position of the author's employer.<br><br><br><br>On Wed, March 27, 2013 8:45 am, Alain Berranger wrote:<br>> Dear Robin, dear Colleagues:<br>><br>> I agree that GNSO should file too... but will they (Maria's question)? Two<br>> complaints (GNSO + NCSG) are better than one (Avri's statement)...<br>><br>> 3 questions:<br>><br>> 1) From my little experience, I find the ICANN Ombudsman process<br>> ineffective - it is time consuming (we are volunteers/the other side is<br>> paid), a lot of pain for usually not much gain! Not saying we should not<br>> do<br>> it, just wondering out loud if we have a chance at all of being<br>> successful?<br>> or even partially successful? or if we should invest our time in other<br>> ways?<br>><br>> 2) Robin, I fully understand your TM arguments and they make sense to me<br>> as<br>> a non-specialist. Can you please elaborate a bit on who the "*powerful<br>> political interests"* you refer to are? This may help me and others at the<br>> base of the NCSG pyramid understand the context and the issue better...<br>><br>> 3) Did Maria fill a complaint to the Ombudsman? and where is it at now?<br>><br>> 4) I also have a point of view or perhaps an hypothesis to share, from<br>> many<br>> years of applied MS practice funding developmental and applied policy<br>> research in developing countries - may not be relevant but here it is<br>> anyway for feedback and reflexion...<br>><br>> I see the MS process as one of fundamental inclusion and participation...<br>> It is more relevant than ever because of the internet and the networks<br>> that<br>> spring from it...<br>><br>> ...the more you are at the bottom of the pyramid ($, knowledge, assets<br>> like<br>> land ownership, cash, access to resources, etc...) the more you seek<br>> participation as a way of climbing up the pyramid (getting yourself out of<br>> poverty). The higher you are in the pyramid, the less you welcome<br>> participation because it is disruptive at the very least.<br>><br>> Inherent to this "MS model" is the power struggle between closely vested<br>> interests (in our case the CHP and part of the NCHP) and higher level or<br>> principled interests (in our case the rest of NCHP). Not that there are<br>> not closely vested interests as well as principled interests everywhere in<br>> an MS organization, including ICANN.<br>><br>> Closely vested interests are very time sensitive (profits, status and<br>> privileges are lessened by indecision and ambiguity - the rules of the<br>> game<br>> are not clear driving the the "powerful political interests" crazy!) while<br>> principled interests are less time sensitive (although short term costs<br>> are<br>> usually huge too) because they are universal.<br>><br>> So here comes a question: How does an *operational organization* like<br>> ICANN<br>> wishing to become better at MS behavior (we can assume that anyway for the<br>> eternal optimist) resolves the issue of closely vested vs. principled<br>> interests?<br>><br>> They are by nature in tension and should be... What is essential is to<br>> keep<br>> a balance... For instance, taking just one of the financial dimensions, it<br>> is the DNS supply side that keeps feeding extra cash into ICANN and the<br>> DNS<br>> demand side does not have the means to bring this in balance, although it<br>> is the market.... it is a bit of a class struggle (or concentration of<br>> power differentials on the supply and demand sides) in the sense that if<br>> you do not keep this delicate balance the system will eventually fail. It<br>> is a matter of time!<br>><br>> I for one would like to see ICANN survive as an MS organization, being<br>> able<br>> to keep the "rapport de forces" in equilibrium.<br>><br>> I would love to hear a criticism of this model's assumption and also<br>> perhaps if it can help in bringing back balance... or is it simply a<br>> theoretical treatment?<br>><br>> Best, Alain<br>><br>> On Wed, Mar 27, 2013 at 5:51 AM, Horacio T. Cadiz <hcadiz@ph.net> wrote:<br>><br>>> I support filing a case.<br>>><br>>><br>>> --<br>>> Bombim Cadiz<br>>> *******************************************<br>>> * Free/Open Source Software (FOSS) -- *<br>>> * No windows. No gates. It is open. *<br>>> * No Bill. It is Free. *<br>>> *******************************************<br>>><br>><br>><br>><br>> --<br>> Alain Berranger, B.Eng, MBA<br>> Member, Board of Directors, CECI,<br>> <a href="http://www.ceci.ca">http://www.ceci.ca</a><<a href="http://www.ceci.ca/en/about-ceci/team/board-of-directors/">http://www.ceci.ca/en/about-ceci/team/board-of-directors/</a>><br>> Executive-in-residence, Schulich School of Business, www.schulich.yorku.ca<br>> Treasurer, Global Knowledge Partnership Foundation, www.gkpfoundation.org<br>> NA representative, Chasquinet Foundation, www.chasquinet.org<br>> Chair, NPOC, NCSG, ICANN, <a href="http://npoc.org/">http://npoc.org/</a><br>> O:+1 514 484 7824; M:+1 514 704 7824<br>> Skype: alain.berranger<br>><br>><br>> AVIS DE CONFIDENTIALITÉ<br>> Ce courriel est confidentiel et est à l’usage exclusif du destinataire<br>> ci-dessus. Toute personne qui lit le présent message sans en être le<br>> destinataire, ou l’employé(e) ou la personne responsable de le remettre au<br>> destinataire, est par les présentes avisée qu’il lui est strictement<br>> interdit de le diffuser, de le distribuer, de le modifier ou de le<br>> reproduire, en tout ou en partie . Si le destinataire ne peut être joint<br>> ou<br>> si ce document vous a été communiqué par erreur, veuillez nous en informer<br>> sur le champ et détruire ce courriel et toute copie de celui-ci. Merci de<br>> votre coopération.<br>><br>> CONFIDENTIALITY MESSAGE<br>> This e-mail message is confidential and is intended for the exclusive use<br>> of the addressee. Please note that, should this message be read by anyone<br>> other than the addressee, his or her employee or the person responsible<br>> for<br>> forwarding it to the addressee, it is strictly prohibited to disclose,<br>> distribute, modify or reproduce the contents of this message, in whole or<br>> in part. 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