candidates for review teams.

[Mary Wong]

Dan, thanks for your comments - it struck me, as I was reading them, that your points about the informal influences, ad hoc decision-making and the ability of the Board to interpret public input broadly, would also make great comments to be sent to the Accountability and Transparency Review Team.
 
Cheers
Mary
 
Mary W S Wong
Professor of Law & Chair, Graduate IP Programs
Franklin Pierce Law Center
Two White Street
Concord, NH 03301
USA
Email: mwong at piercelaw.edu
Phone: 1-603-513-5143
Webpage: http://www.piercelaw.edu/marywong/index.php
Selected writings available on the Social Science Research Network (SSRN) at: http://ssrn.com/author=437584


>>> 


From: Dan Krimm <dan at MUSICUNBOUND.COM>
To:<NCSG-NCUC-DISCUSS at listserv.syr.edu>
Date: 7/11/2010 5:47 PM
Subject: Re: candidates for review teams.
Thanks Kim (and Milton),

So it boils down to the Board, as usual, except that the Board may have
some degree of informal dependence on the advisory bodies in making its
decisions (which, I expect, is where the real power of those advisory
bodies originates).

You suggest below: "the power of the RT comes from the public consultation
of the report and accompanying recommendations, and thus, there will be
some power in the hands of the stakeholders at large to shape the policy
development process"

This is true only to the extent that the Board accepts the public input
(thus, to the extent that the public input is viewed as genuinely
representative, and not systematically skewed).  Given the uncertainties of
public outreach, it seems possible (bureaucratically) for the Board to
declare that public input is not representative, and to estimate the "real"
mix of public sentiment, and replace the public record with this
alternative assessment.  Conversely, the public record may *not* be
representative, but if it serves the Board's purposes it may accept it as
such.  I think you can expect spin doctoring on both sides when the public
record accumulates, with those that are supported by it proclaiming how
accurate it is, and those undermined by it proclaiming how inaccurate it
is.  And again, one wonders what informal (and perhaps hidden) influence
staff has on the Board, as well.

In any case, it seems that this WHOIS RT is basically a permanent
instantiation of what used to be the WHOIS Working Group or Task Force, as
an ongoing and enduring/recurring body with a consistent mandate within
ICANN, rather than a series of ad-hoc groups.  Does this seem accurate?

FYI, I served on the WHOIS WG in 2007, on behalf of NCUC (in conjunction
with IP Justice), so I have some firsthand experience with what that
process was like, and am modestly curious as to how the RT will operate in
practical terms, in comparison.

But more important is some sort of formal definition of standards of
decision-making in the overall process.  When informal influences are left
open and importantly influence the final decision, the ultimate result is
effectively ad hoc decision-making, with formal processes acting as window
dressing rather than the impactful policy drivers.

This is the constant fear amount public-interest advocates at ICANN, and so
far as I can tell it hasn't changed a whole lot even during this recent
process of restructuring.

So I would encourage you to go beyond the explicit, formal structures and
also evaluate the implicit, informal dynamics that influence policy-making
at ICANN, which in my experience in the not-too-distant past has been
considerable, and from the comments I scan on this list over time they seem
to have remained comparable (or even perhaps increasing) over time.

Where "the law" leaves gray areas, individual powers fill the vacuum (the
"rule of law" gives way to the rule of humans).  And this is where
"accountability" can get hijacked by what the spin doctors commonly call
"special interests"...

Best,
Dan


--
Any opinions expressed in this message are those of the author alone and do
not necessarily reflect any position of the author's employer.



At 4:10 PM -0400 7/11/10, Kim G. von Arx wrote:
>Hi Dan:
>
>To be honest, I don't know.  The best I can do is recite what DoC and
>ICANN had agreed to in the "Affirmation of Commitment" back in late 2009.
>In particular subparagraph: 9.3.1:
>
>"9.3.1 ...One year from the effective date of this document and then no
>less frequently than every three years thereafter, ICANN will organize a
>review of WHOIS policy and its implementation to assess the extent to
>which WHOIS policy is effective and its implementation meets the
>legitimate needs of law enforcement and promotes consumer trust. The
>review will be performed by volunteer community members and the review
>team will be constituted and published for public comment...Resulting
>recommendations of the reviews will be provided to the Board and posted
>for public comment. The Board will take action within six months of
>receipt of the recommendations."
>
>Therefore, the effective institutional "policy-maker" is, of course, the
>Board and yes, I believe that the RT has no veto power or policy making
>power.  This is the case, based on my experience, with most reviews and
>recommendations whether in the public or private sector.  At the end of
>the day, we all know that the one organization which has ALL of the veto
>power in the ICANN structure and DNS in general is the US government.
>Indeed, subparagraph 9.3.1. in its first sentence mandates ICANN's WHOIS
>policy to adhere to and comply with:
>
>"...measures to maintain timely, unrestricted and public access to
>accurate and complete WHOIS information, including registrant, technical,
>billing, and administrative contact information."
>
>The pertinent words here are: "timely, unrestricted and public access".
>This provides a clear restriction to the scope of the review, but, I
>believe does not prevent the review team to recommend procedures and
>policy changes which provide a more balanced checks and balances than the
>ones that are currently in place.
>
>Further, based on the RT selection chart and the group or persons who are
>selecting the members for the WHOIS RT is another indicator of who holds
>the power over the process, i.e., the governments.
>
>Finally, the discussion paper on "Affirmative Reviews Requirements and
>Implementation Processes" sets out a draft Terms of Reference for the
>Accountability and Transparency RT and I believe it may give a general
>indication of what can be expected for the WHOIS Terms of Reference RT:
>
>"...Questions to Be Addressed
>
>The review will evaluate how well ICANN is:
>
>(a) continually assessing and improving ICANN Board of Directors (Board)
>governance which shall include an ongoing evaluation of Board performance,
>the Board selection process, the extent to which Board composition meets
>ICANN's present and future needs, and the consideration of an appeal
>mechanism for Board decisions;
>(b) assessing the role and effectiveness of the GAC and its interaction
>with the Board and making recommendations for improvement to ensure
>effective consideration by ICANN of GAC input on the public policy aspects
>of the technical coordination of the DNS;
>(c)continually assessing and improving the processes by which ICANN
>receives public input (including adequate explanation of decisions taken
>and the rationale thereof);
>(d) continually assessing the extent to which ICANN's decisions are
>embraced, supported and accepted by the public and the Internet community;
>and
>(e) assessing the policy development process to facilitate enhanced cross
>community deliberations, and effective and timely policy development.
>In addressing each of these five questions, the review will consider the
>extent to which the assessments and actions undertaken by ICANN have been
>successful in ensuring that ICANN is acting transparently, is accountable
>for its decision-making, and acts in the public interest.
>
>...
>
>5) Reporting
>The review shall be concluded with the delivery to the Board of ICANN of a
>final report. The report will be formed by two volumes:
>*Main text (approximate length: not longer than 20 pages). It shall
>contain conclusions of the review and recommendations for actions;
>recommendations shall be prioritized and formulated in clear,
>implementable, unambiguous, time-bound terms.
>*Annexes. This volume shall contain the evidence used to formulate
>the conclusions, and a description of the methodology used to gather data
>and to analyze qualitative and quantitative evidence. In observance of
>common evaluation practices, opinions expressed by individuals shall be
>made anonymous...."
>
>Therefore, as you correctly pointed out, the RT does not appear to have
>any "authority to actually do anything about policy", but simply put forth
>recommendations which may or may not be adopted at some later date.
>However, the power of the RT comes from the public consultation of the
>report and accompanying recommendations, and thus, there will be some
>power in the hands of the stakeholders at large to shape the policy
>development process and to, hopefully, ensure that some, if not all,
>recommendations will eventually lead to a coherent, balanced, and fair
>WHOIS policy.
>
>Anyway, those are my thoughts and I hope that answers your question.
>
>Kim
>
>
>On 11 Jul 2010, at 14:57, Dan Krimm wrote:
>
>> Quick question:
>>
>> If "recommendation" is something less than "policy-making" then does this
>> necessarily get returned to the "policy makers" for another round of
>> "policy-making" that led to the result being reviewed?  What is the context
>> of institutional flow here?
>>
>> So, it seems the practical dynamics of this review process would be to
>> block anything that doesn't adhere to some standard of consensus (and who
>> defines that standard?), and return it (with comments) for additional
>> action.  Or are you saying the RT wouldn't even have a real veto power
>> either?  Then, what is its *practical* purpose in the institutional flow?
>> Its recommendations could easily be ignored if it has no authority to
>> actually do anything about the policy.
>>
>> Does some other body have authority to act on the RT's recommendations?
>> (If so, then that other body is what holds the power, and to the extent
>> that the other body relies upon the RT's recommendations, it could give the
>> RT authority by proxy.  If the other body is *formally* required to accept
>> its recommendations, then the RT does have real policy-making authority in
>> the institutional structure.)
>>
>> It seems to me the frame in which to evaluate all of this is
>> "decision-making power."  Who has such power in this institutional
>> structure, and what exactly do they have power over?
>>
>> That's really the bottom line, amidst all of this hopeful focus on
>> consensus-building.  Consensus is fine and dandy when it can be genuinely
>> achieved in a way that all can accede to.  When genuine consensus remains
>> out of reach, however, then push comes to shove and decision-making power
>> rules the day (or else structural gridlock, which may favor some parties
>> over others, in an ongoing dispute).
>>
>> Dan
>>
>>
>> --
>> Any opinions expressed in this message are those of the author alone and do
>> not necessarily reflect any position of the author's employer.
>>
>>
>>
>> At 1:45 PM -0400 7/11/10, Kim G. von Arx wrote:
>>> Hi Milton:
>>>
>>> I forgot to respond to your last question in the email, i.e., with respect
>>> the setting of policy by the RT.  I believe a "review" should only be
>>> that, i.e, a review and nothing more and nothing less.  This should
>>> include a multi-discplinary and interest group approach and should include
>>> a comparative view with other approaches around the world.  It further
>>> should include recommendations for improvements which, again, should only
>>> be that - recommendations.
>>>
>>> Kim
>>>
>>>
>>>
>>>
>>> On 11 Jul 2010, at 13:09, Milton L Mueller wrote:
>>>
>>>> Kim,
>>>> Thanks for your detailed answer. Let me add some comments below.
>>>>
>>>>> -----Original Message-----
>>>>>
>>>>> I would be excited to take on the responsibilities to review, advise on,
>>>>> and assist in the implementation of a WHOIS policy that is mutually
>>>>> acceptable to all stakeholders of ICANN.  I am certainly aware that the
>>>>> views diverge widely, but I am confident that the review team, as a
>>>>> cohesive group, can reach a consensus that will appease all groups to a
>>>>> large extent.
>>>>
>>>> This is one of the interesting - and scary - things about the whole
>>>> "review team" concept. As I have said in my analysis of the AoC, it
>>>> reproduces the politics of ICANN and almost invites the review team to
>>>> re-make whatever policy it is they are reviewing. Can you give me a
>>>> better idea of what it is the RT actually is reviewing? And what effect
>>>> its reviews might have? It is always been a bit odd that the U.S.
>>>> government singled out Whois for a special review team.
>>>>
>>>>> Of course, no solution will be able to cater to
>>>>> everyone's needs and that, I would submit, is not the goal, but to find
>>>>> an equitable balance among the various views, needs, and desires.
>>>>
>>>> Here it sounds as if you think the RT will be making policy. I think we
>>>> need a better understanding of what the purpose of this RT is.
>>>>
>>>> --MM



Pierce Law | University of New Hampshire - An Innovative Partnership
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