The DNSO recommends domain name policies to the ICANN Board; these policies purportedly
are based on what has been termed a bottoms-up consensus-based decision-making process.
At issue is whether these recommendations truly stem from “consensus”.
It is my observation that what is commonly held to be “consensus” by the vast majority
of participants in the General Assembly and by members of the Names Council of the
DNSO is not that which ICANN itself defines as “consensus”: A "Consensus
Policy" is one adopted by ICANN as follows:
1. "Consensus Policies" are those
adopted based on a consensus among Internet stakeholders represented in the ICANN
process, as demonstrated by (1) the adoption of the policy by the ICANN Board of
Directors, (2) a recommendation that the policy should be adopted, by at least a
two-thirds vote of the council of the ICANN Supporting Organization to which the
matter is delegated, and (3) a written report and supporting materials (which must
include all substantive submissions to the Supporting Organization relating to the
proposal) that (i) documents the extent of agreement and disagreement among impacted
groups, (ii) documents the outreach process used to seek to achieve adequate representation
of the views of groups that are likely to be impacted, and (iii) documents the nature
and intensity of reasoned support and opposition to the proposed policy.
To better
illustrate this above point, let us consider a recent effort to arrive at consensus,
an effort that began in response to the following Board resolution:
Whereas,
a proposal has been presented to the Board for various
revisions
in the agreements among ICANN, Network Solutions, Inc.,
and the
United States Department of Commerce that were approved on
4 November
1999 in resolutions 99.132 and 99.133 and were signed
on 10 November
1999;
Whereas, the Board intends to consider what action, if any,
to take
on this proposal in its meeting to be scheduled for 2 April
2001
at a time to be confirmed;
It is therefore
RESOLVED [01.22] that the Board requests all members of the Internet community, including
the Names Council and any of the constituencies and other participants in the Domain
Name Supporting Organization, to provide comments on the substantive merits of the
proposal no later than 31 March 2001;
The General Assembly of the DNSO initiated
the consensus process with debate on this topic and came to the following conclusions
(as reported to the Names Council):
After thorough discussion, the
GA has shown rough consensus in favour to option A, i.e. to keep the current contract.
A straw poll conducted between the 15 and 20 March has given the following
results:
-
24 in favour of the current contract (option A)
- 2 in favour of the new contract
(option B)
- 1 neither of the above
Subsequent to this conclusion being
posted, some members of the General Assembly expressed concern that the issue of
the .org charter had not been fully addressed in the GA statement, to which the Chair
replied:
I have spent some time in going again through the 587 messages
from
2001-03-08 to 2001-03-25, when I have sent the report. I might have
overlooked something for the second time, but my findings are
the following:
- In
favour of the change of the charter of .org: 0
- Against the change of the charter
of .org: 7
- Against the removal of names: 5
- No opinion on the subject of
the .org charter change: 34
If I misunderstood somebody, can the misunderstood
party point out to me the message that I have overlooked, or misinterpreted?
Of
particular note is the Chair’s observation on the overall process:
Nowhere
I said that there was consensus on changing the charter. I only stated that,
should the charter be changed, there's consensus that the current bona-fide registrations
be kept. In all fairness, this is what I understood. We have enough problems
with the people that estimate that 24 to 2 is not consensus enough, you can imagine
the reactions to a consensus call that was more dubious.
An analysis of the
extent of participation in the above-cited debate is critical to our understanding
of how members of ICANN view the concept of “consensus” or “rough consensus”.
Comments on the .org charter topic came from members of the GA voting registry, and
from nine participants not on that roster. There are currently 291 registered
GA voters, and with these additional nine participants the total contributory GA
pool therefore consists of a sum total of 300 voices.
Seven of these participants
(02.33%) argued against the change of the .org charter; another five such members
(01.66%) argued against removal of names.
Two hundred eighty eight members (96%)
chose not to participate in discussions on this topic.
Similarly, in the context
of the GA position on the proposed Verisign agreement it can be noted that:
Twenty-four
participants (12.5%) were in favor of the current contract arrangements;
Two of
the participants (00.66%) were against, and
Two hundred seventy-four (91.33%)
chose not to participate in the poll.
It is my view that the above numbers are
more reflective of the phenomenon known as “last man standing” than as any true measure
of consensus.
Based on the numbers alone, a casual observer might conceivably
conclude that over 90% of the General Assembly decided that these topics were not
in fact policy issues; that as such no comments were warranted, but this too is not
an accurate assessment.
What is clearly true is that flawed procedures within the
General Assembly have created a situation wherein the expectations of the Board consistently
fail to be met. Consider the comments of Director Auerbach:
·
As one who does have the job of examining and passing on the output of the DNSO -
I expect well formed policy decisions, including analysis of the competing views,
and backed by procedures that give me confidence that all parties have had the opportunity
to fair participate.
· I support the determination
of group opinion by the use of solid procedures that include the placement of clearly
articulated issues before a clearly formed electorate who make clear votes that are
counted. As it stands, as a member of the ICANN Board of Directors, I am very unlikely
to give credence to any matter that comes out of the DNSO unless I see objective
data indicating that the DNSO has reached its conclusion by something better than
the hand waving that has to date been called "consensus".
Having only 8.6%
of the participants in the GA determine that which has been termed “consensus” (no
matter what the decision) is comparable to having a vote of the Board of Directors
in which only two members (10.56%) show up to cast a vote. One would
seriously doubt that anyone would consider such a vote to be representative of “consensus”.
What is missing procedurally is an obligation to establish a necessary quorum
to legitimize the decision-making process in the General Assembly. Yet even
with a quorum, unless decisions are accompanied by a substantive “analysis” of the
kind to which Director Auerbach has referred (and which are stipulated within the
context of a uniform policy declaration), the pronouncement of “consensus” will never
be considered sufficiently justifiable, nor will it withstand judicial scrutiny.
An agreement on the requirements of “consensus” is clearly needed, as it is most
obvious that many participants in the DNSO confuse simple “majority” with “consensus”.
Even members of the Names Council obfuscate the meaning of “consensus” in their
resolutions… by way of example, note that the “Names Council resolution on the proposed
revision to the ICANN/Verisign (NSI) agreement” states:
Parts B and
C passing by majority and A and D by a 2/3 majority thus representing a consensus
policy within the definitions of the NC by-laws and referenced in the 1999 ICANN
NSI agreement.
“Consensus Policies are those adopted based on a consensus among
Internet stakeholders represented in the ICANN process, as demonstrated by (1) the
adoption of the policy by the ICANN Board of Directors, (2) a recommendation that
the policy should be adopted by at least a two-thirds vote of the council of the
ICANN Supporting Organization to which the matter is delegated..”
Significant by
its absence is the remainder of this quote:
"and (3) a written report and supporting
materials (which must include all substantive submissions to the Supporting Organization
relating to the proposal) that (i) documents the extent of agreement and disagreement
among impacted groups, (ii) documents the outreach process used to seek to achieve
adequate representation of the views of groups that are likely to be impacted, and
(iii) documents the nature and intensity of reasoned support and opposition to the
proposed policy."
Also significant is the absence of the required “analysis” in
an NC presentation that was not much more than a mere compilation of the views of
the constituencies. Most obviously, not “all” substantive submissions
were included in the supporting materials, there was no written “report”, only the
declaration of a resolution with accompanying position papers; the outreach process
was not documented, and an assessment of the relative weight or fervor of opinions
was never prepared.
There are no shortcuts to getting the job done right.
If we intend to contribute within the ICANN process, we have an implied responsibility
under the Bylaws to guard against the possibility of judicial challenge that may
contest “the presence of such a consensus”.
It is our obligation therefore
to provide for the requisite “document trail” to substantiate any claims of “consensus”.
This has not been done. Only one constituency actually reported on the degree
of its outreach and response to such outreach, the ccTLDs. Out of 245 current
ccTLDs, it was reported that:
1. Four (4) members are in favour of
"A" (01.63%)
2. Five (5) members are in favour of "B" (02.04%)
A
result based on replies by less than 4% of the constituency members can hardly be
called consensus.
Whereas the remaining constituencies (Business, Non-Commercial,
ISP, IP, and Registrars) didn’t even report on their outreach process, it is impossible
to properly assess their conclusions.
There are 180 registrars, but how
many actually participated in this process? There are 66 voting members in
the business constituency. Where are the records to indicate that any of them
were even contacted?
I, personally in Melbourne, re-submitted my application
to join the Business Constituency (after having faxed it in three weeks earlier)…
I can attest to the fact that I was not contacted by the Business Constituency, nor
by their NC members, nor notified in any manner regarding a need to comment on the
Verisign agreement.
I am not, however, disputing that outreach occurred; at issue
is the failure to document outreach and response. What is missing is a set
of publicly accessible constituency mailing list archives that may be used to quantify
results. The ICANN Bylaws stipulate that “The Corporation and its subordinate
entities shall operate to the maximum extent feasible in an open and transparent
manner and consistent with procedures designed to ensure fairness.” Without
such archives we do not have the transparency and the openness that is stipulated.
Solutions to our problems:
1. EDUCATION -- As the concept of “consensus”
appears to be thoroughly alien to most ICANN participants, the ICANN staff should
present a workshop on this topic on every occasion that ICANN convenes in session.
Guest speakers, such as David Johnson and Susan Crawford, should be invited as expert
commentators. Documents on the topic of the consensus process
should be provided as a link on the main DNSO website.
2. PROCESS – Those
on the voting roster of the General Assembly should be required to vote; failure
to vote will place voting privileges at risk. A quorum should be established.
3. OUTREACH – As decision-making will be based on both outreach and quantifiable
response to such outreach, each constituency must have its own publicly archived
mailing list.
4. WORK-PRODUCT – That which will ultimately take the form of a uniform
consensus policy must be rigorously documented.