[NCSG-Discuss] Should NCSG consider filing an ombudsman complaint against ICANN senior staff for violating the organization's policy development process?

[Mary.Wong at LAW.UNH.EDU]

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. 

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? 

Cheers 
Mary


Mary W S Wong
Professor of Law
Faculty Chair, Global IP Partnerships
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW
Two White Street
Concord, NH 03301
USA
Email: mary.wong at law.unh.edu
Phone: 1-603-513-5143
Webpage: http://www.law.unh.edu/marywong/index.php


>>> 


From:  
Dan Krimm <dan at MUSICUNBOUND.COM> 

To: 
<NCSG-DISCUSS at LISTSERV.SYR.EDU> 

Date:  
3/27/2013 2:15 PM 

Subject:  
Re: [NCSG-Discuss] Should NCSG consider filing an ombudsman complaint
against ICANN senior staff for violating the organization's policy
development process? 

Alain

Thanks for the discussion.

First, I think we should file all Ombudsman complaints (and definitely
recruit allies), though I don't expect it would necessarily be a
silver
bullet solution -- holding it to that standard would make it appear
ineffective.  But it builds a track record, a case that we are trying
everything pro forma, jumping through the hoops as expected, playing
the
procedural game, the bureaucracy, as specified.  We climb the ladder
one
step at a time, appealing to ever greater authorities like in the
court
system.  This is the step of establishing facts, formal basis of
objection, etc.

Next, the difference between what you call closely vested interests
and
principled interests exhibits one well-known characteristic: the
"collective-action problem".  Vested interests tend to be narrow
interests, whereas principled interests tend to be broad interests.
Narrow interests that are well-endowed are always at a relative
advantage
compared to broadly distributed interests, because while there may be
enough resources distributed broadly to counteract the concentrated
resources of narrow interests, there is a much higher cost to
motivating,
coordinating and marshaling distributed resources.  The cliche that
comes
to mind is "herding cats".  Especially, since all participation in MS
processes at ICANN is on a volunteer basis, narrow interests can much
more
easily allocate paid resources to this volunteer activity, whereas
distributed interests have a much harder time making this allocation.

This dynamic has been present at ICANN as long as I've been involved,
which goes back to 2006.  I suspect it has been this way from the start
--
it's a structural dynamic that relates to the whole SO organizational
model.

Soto your question, how does a MS organization balance this inherent
imbalance in the ability to participate effectively?  The big-picture
answer is that the little guys at the bottom of the pyramid need to be
given ways to neutralize the resource advantage. Not to be given any
special advantage above narrow interests, but to play on a level
playing
field.

One obvious tactic is to create formal operational structures that
enable
bottom-up participation without doing anything to disadvantage those
with
the resources to participate in other ways.  There has been some effort
to
do so at ICANN, but this is constantly being undermined by the narrow
interests -- if policy is a "war" then opponents will seek to win the
war
any way they can, and that can involve tweaking the rules of the game
to
one's advantage, if they are being systematically set up to reduce
one's
advantage.

So, if there is a structure to provide equitable participation, finding
an
ad hoc alternative path to avoid that equity is again to one's
advantage,
to the extent that equity is a reduction in influence.

Separation of power in a governance structure is imperative if equity
is
to be maintained.  One big problem with ICANN is that there is little
evidence of the equivalent of an "independent judiciary" in the org
structure.  If there is no distinction between the executive and
judicial
functions, then the executive hierarchy is unchecked.

In short, ICANN used a conventional non-profit organizational
structure
with weak oversight from the USG (DoC/NTIA) to create a "bottle" in
which
the MSM was intended to operate.  A sort of "virtual world" of
governance.

But within that virtual world of governance, the staff has embedded
itself
in policy-making, rather than just being part of the bottle, which was
presumably what it was intended to do.  AIUI, staff was supposed to
provide infrastructure, not to get involved in the content of MS
activity.

This Chinese Wall has been breached.  So one prerequisite is that
staff
needs to be confined to acting as only the bottle, once again. In
order
for that to happen, there needs to be some independent oversight of
staff
to prevent policy-relevant activity.

Several folks have mentioned the policy/implementation split.  This is
part of that problem: implementation can be considered part of the
bottle,
but policy must be seen as only "contents" of the bottle.  Fudging
this
split is a major way to break through the Chinese Wall.  So I think
this
point should be pressed firmly, front and center, not as some sort of
tangential point.

Another conceptual problem is that ICANN in practice is not just an
"operational organization" -- the policies it makes can have profound
political ramifications, and thus politics gets into the picture in
practice, even if the terms of discourse center on operational
principles.

There is frequent mention of keeping ICANN to just operational matters
(I'm definitely a proponent of that mission), however it should be
acknowledged that such a position is inherently political: it's all
about
protecting the broadly-distributed interests against narrow interests,
and
the broad-narrow contest is fundamentally political.

I'm afraid I don't have the time to pound on ICANN's org structure from
a
detailed theoretical basis (part of that difficulty of resource
allocation: I don't get paid to do this, and I need to get to do
*something*,so that competes for my time).  I wish I could.  The only
reason I can offer this contribution right now is that I'm traveling
and
currently waiting at the airport for a flight -- one fleeting moment
of
opportunity (more moments on the flight, a bit later).

These are big questions, and deserve big answers.  I don't have those
answers in any detailed form, because that takes a lot of work to make
one's way through the forest at the individual-tree level.

Suffice it to say that as the MSM at ICANN has "matured" the narrow
interests have found ways to twist both the bottle and the contents to
their systematic advantage, which the MSM was intended to neutralize
(since they start with the advantage naturally, without special efforts
to
privilege them).


At this point, we take the system as it stands and do everything
possible
to get it to work, but as I said earlier, I think we should be prepared
to
address everything -- the bottle and not just the contents -- to push
for
the distributed-interest agenda.

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.



On Wed, March 27, 2013 8:45 am, Alain Berranger wrote:
> Dear Robin, dear Colleagues:
>
> I agree that GNSO should file too... but will they (Maria's
question)? Two
> complaints (GNSO + NCSG) are better than one (Avri's statement)...
>
> 3 questions:
>
> 1) From my little experience, I find the ICANN Ombudsman process
> ineffective - it is time consuming (we are volunteers/the other side
is
> paid), a lot of pain for usually not much gain! Not saying we should
not
> do
> it, just wondering out loud if we have a chance at all of being
> successful?
> or even partially successful? or if we should invest our time in
other
> ways?
>
> 2) Robin, I fully understand your TM arguments and they make sense to
me
> as
> a non-specialist. Can you please elaborate a bit on who the 
"*powerful
> political interests"* you refer to are? This may help me and others
at the
> base of the NCSG pyramid understand the context and the issue
better...
>
> 3) Did Maria fill a complaint to the Ombudsman? and where is it at
now?
>
> 4) I also have a point of view or perhaps an hypothesis to share,
from
> many
> years of applied MS practice funding developmental and applied
policy
> research in developing countries - may not be relevant but here it
is
> anyway for feedback and reflexion...
>
> I see the MS process as one of fundamental inclusion and
participation...
> It is more relevant than ever because of the internet and the
networks
> that
> spring from it...
>
> ...the more you are at the bottom of the pyramid ($, knowledge,
assets
> like
> land ownership, cash, access to resources, etc...) the more you seek
> participation as a way of climbing up the pyramid (getting yourself
out of
> poverty). The higher you are in the pyramid, the less you welcome
> participation because it is disruptive at the very least.
>
> Inherent to this "MS model" is the power struggle between closely
vested
> interests (in our case the CHP and part of the NCHP) and higher level
or
> principled interests (in our case  the rest of NCHP). Not that there
are
> not closely vested interests as well as principled interests
everywhere in
> an MS organization, including ICANN.
>
> Closely vested interests are very time sensitive (profits, status
and
> privileges are lessened by indecision and ambiguity - the rules of
the
> game
> are not clear driving the the "powerful political interests" crazy!)
while
> principled interests are less time sensitive (although short term
costs
> are
> usually huge too) because they are universal.
>
> So here comes a question: How does an *operational organization*
like
> ICANN
> wishing to become better at MS behavior (we can assume that anyway
for the
> eternal optimist) resolves the issue of closely vested vs.
principled
> interests?
>
> They are by nature in tension and should be... What is essential is
to
> keep
> a balance... For instance, taking just one of the financial
dimensions, it
> is the DNS supply side that keeps feeding extra cash into ICANN and
the
> DNS
> demand side does not have the means to bring this in balance,
although it
> is the market.... it is a bit of a class struggle (or concentration
of
> power differentials on the supply and demand sides) in the sense that
if
> you do not keep this delicate balance the system will eventually
fail. It
> is a matter of time!
>
> I for one would like to see ICANN survive as an MS organization,
being
> able
> to keep the "rapport de forces" in equilibrium.
>
> I would love to hear a criticism of this model's assumption and also
> perhaps if it can help in bringing back balance... or is it simply a
> theoretical treatment?
>
> Best, Alain
>
> On Wed, Mar 27, 2013 at 5:51 AM, Horacio T. Cadiz <hcadiz at ph.net>
wrote:
>
>> I support filing a case.
>>
>>
>> --
>> Bombim Cadiz
>> *******************************************
>> *  Free/Open Source Software (FOSS) --  *
>> * No windows. No gates. It is open.     *
>> * No Bill. It is Free.                  *
>> *******************************************
>>
>
>
>
> --
> Alain Berranger, B.Eng, MBA
> Member, Board of Directors, CECI,
>
http://www.ceci.ca<http://www.ceci.ca/en/about-ceci/team/board-of-directors/>
> Executive-in-residence, Schulich School of Business,
www.schulich.yorku.ca
> Treasurer, Global Knowledge Partnership Foundation,
www.gkpfoundation.org
> NA representative, Chasquinet Foundation, www.chasquinet.org
> Chair, NPOC, NCSG, ICANN, http://npoc.org/
> O:+1 514 484 7824; M:+1 514 704 7824
> Skype: alain.berranger
>
>
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