Formal and informal policy-making at ICANN

["Dan Krimm" <dan@xxxxxxxxxxxxxxxx>]

The following comments are adapted from a recent discussion thread on the
NCSG/NCUC discussion forum.
__________

To the Accountability and Transparency Review Team:

It seems important to address the distinction between formal policy-making
processes and informal policy-making dynamics at ICANN.

This came up in the context of evaluating the processes of the WHOIS
Review Team and how its final results feed into policy-making ultimately
by the Board.  The suggestion was made that the combination of RT
consensus building and general public comments may provide a meaningful
channel for stakeholders "at large" to shape the policy development
process.

This is true only to the extent that the Board accepts the public input as
given (and thus, only to the extent that the public input is viewed as
genuinely representative, and not systematically skewed).  Given the
ongoing 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 of disputed issues
when the public record accumulates, with those that are supported by it
proclaiming how accurate it is, and with those that are undermined by it
proclaiming how inaccurate it is.  In such cases where consensus is
difficult to reach, the validity of public input will regularly and
systematically be called into question.

And, one wonders what informal (and perhaps hidden) influence ICANN staff
has on the Board, as well.  ICANN staff may not be accountable formally to
any stakeholders, yet they may have informal preferences for some
stakeholders over others (even personal conflicts of interest), and those
preferences could influence policy-making without structural constraint or
oversight.

It is important to create some sort of formal definition of standards of
effective decision-making in the overall formal 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 mere window dressing rather than meaningful policy
drivers.  This can give the (inaccurate, and even disingenuous)
*impression* of "the rule of law" where in fact "the rule of humans" is
more importantly at play.  This does the public interest a grave
disservice.

So I would encourage those addressing these issues to go beyond the
explicit, formal structures and also seriously and honestly evaluate the
implicit, informal dynamics that influence policy-making at ICANN, as
deeply and thoroughly as possible.

Dan Krimm
Member, NCSG/NCUC
Past participant, WHOIS Working Group, 2007


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