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

[Dan Krimm]

Alain,

Back for a while, in flight.  I'm not sure exactly what you are saying
when you say:

> The sharp line in the sand distinction in an organization between policy
> and implementation is arbitrary if you have an independant judiciary
> function or an oversight/regulatory body above the organization.

There is certainly a sharp line in the sand for example in USG governance:
policy is made by Congress and implemented by the Administration.  So,
statute defines the policy writ large, and regulations define the
execution of that policy in detail.  And the independent courts interpret
any fuzzy areas of statute, and oversee the regulation from the standpoint
of the statute and case law, and with regard to procedural matters.

In the case of ICANN, its authority comes from the USG executive branch,
but given the "internal" MS governance structure, the USG judiciary does
not currently get involved in policy/implementation issues "inside the MS
bottle" and even the NTIA does not concern itself with "details" on any
sort of ongoing basis -- NTIA does not micromanage ICANN.

So at present any such judicial or regulatory body outside ICANN is not
affecting ICANN's activities in any important manner.  If there is going
to be such oversight, either it has to occur inside the bottle as a
feature of MS governance structure, or else the external oversight
functions would need to be activated somehow.

I've argued recently that if this can't be fixed inside the bottle, we
should definitely explore activating that external authority.  As you say
(I think?), think outside the ICANN box (or bottle). One must of course
recognize that this would be a dramatic course of action, never having
occurred previously in the history of the organization. As Avri said
earlier, this would represent an admission that the MSM has in fact
failed, and the "parents" are being brought in to clean up the kids' mess.

ICANN was not supposed to operate as a normal (nonprofit) corporate
organization.  That corporate framework was just supposed to set up an
operational infrastructure within which a completely new governance
structure could be set up.  The corporate framework was not supposed to
get involved in the real meat of governance, just to execute those
policies after development by a bottom-up MSM and approved by the Board
(or sent back to MSM for further work).

Staff was never supposed to have any significant policy-making power of
its own, AIUI.  But, in the real world it is certainly true these
distinctions are fuzzy at best.  In Congress for example, legislators'
policy-expert staff have a great deal of individual influence over the
writing of legislation.  Of course, lobbyists also can have a great deal
of influence in writing legislation.

Bottom line, don't think of ICANN governance as that of the NPOcorporate
framework itself.  That's the bottle.  What's in the bottle(MS policy
making) is supposed to be independent of the bottle as much as possible --
the bottle is only meant to facilitate and implement policy, not to direct
or constrain the formulation of policy.

If this distinction has been lost, the MS governance process itself has
been lost, or at least co-opted.  It's worth seeing if we kids can clean
up the mess on our own, but if not let's definitely consider if and when
to bring in the parents to do it for us.  Alas.

Dan


-- 
Any opinions expressed in this message are those of the author alone and
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On Wed, March 27, 2013 11:48 am, Alain Berranger wrote:
> Dan,
>
> Thank you for that moment of opportunity!
>
> The sharp line in the sand distinction in an organization between policy
> and implementation is arbitrary if you have an independant judiciary
> function or an oversight/regulatory body above the organization.This
> distinction has been "invented" at ICANN to protect GNSO's territory -
> policy - and leaving implementation to "staff"... It is a mine field, from
> what I have seen since I joined ICANN in San José and the discussion
> between policy and implementation is flawed by design.... but makes for
> passionate discussions...and will for a long time to be.
>
> I do not know who the ICANN ombudsman reports to (I have not done the
> research) but his office does not seem to have the authority or the
> resources to dictate to ICANN what to do. It should report to the Board in
> any case and maybe it does? But where is the bigger ICANN oversight? How
> do
> you move from the current situation, as described by Dan, to a truly
> international organization (some of the very first words of our CEO last
> summer)?
>
> Normally, a corporation or an NGO  or a government dept has a policy dept
> which makes evidence-based policy recommendations. These go to the Board
> for decision, weighting in all the factors, internal and external, that
> impact on the mission.
>
> We need to think outside the ICANN box on this one!
>
> Alain
>
> On Wed, Mar 27, 2013 at 2:13 PM, Dan Krimm <dan at musicunbound.com> wrote:
>
>> 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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>
> --
> 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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