comments from Marilyn Cade

["Marilyn Cade" <marilynscade@xxxxxxxxxxx>]

Comments from Marilyn Cade, President and CEO, ICT Strategic Consulting,
mCADE llc on the BGC Report on GNSO improvements

 

 

During 1995-1998, I played an interactive and supportive role to organizing
the involvement of business, internationally, in a process which led to the
creation of ICANN. When I became involved in this process, the outcome was
not clear. What, and who, might assume the mantle formerly held by the
highly esteemed Jon Postel was not yet determined. As I participated along
with many others, what was very clear was that there was a global consensus
that any organization suitable to take on the management and coordination of
the critical and unique indicators of the Internet and the DNS must be, and
must always remain, a bottom up and consensus based model. 

 

Fast forward to where we are today in considering GNSO improvements. The
DRAFT Report is regrettably much too slanted toward a top down imposition
not only of what changes should occur, but HOW these changes should take
place. There is much to be concerned about in this approach; and much to be
concerned about the Board considering imposing change that is strongly
opposed by key elements of the affected stakeholders.  

 

Yet, there are areas where there is agreement, and the Board needs to
separate the recommendations into categories and focus on those where there
is the strongest support, while calling on the affected parties to devise
improvements and more acceptable versions in the areas of restructuring,
both within constituencies and within the SO. 

 

Before addressing my recommendations, I want to discuss an area where there
is a very flawed baseline assumption inherent in the DRAFT Report. 

 

The proposed improvements are based on separate reviews of the Council and
the GNSO. these Reviews were organized as they were because there are
differences between the Council and the GNSO. Yet, throughout the Report, it
mistakes the GNSO Council as 'in charge' of the GNSO itself. 

It is critically important to remember that the GNSO Council is a sub part
of the GNSO, and the GNSO is actually a broader entity. 

 

In fact, the report is flawed in its understanding of the operation and
functioning of the SO. While some may long for a different 'order', the
present SO is largely self governing. From time to time, elected officers of
the Constituencies have met informally to discuss different topics, such as
the Strategic Plan, or the Budget.  If it is time to strengthen and improve
an administrative and management coordination of the SO itself, that needs
to be discussed by the Constituencies of the SO. 

 

The GNSO Council is responsible for policy development, management of the
policy process and Councilors are elected to engage in this process. Most
constituencies have their own management/administration officers, and these
are often, but not always, different individuals. In some cases, the
councilors are accountable to the larger ExeCom, such as in the Registry,
Registrars, ISPs, IPC constituencies. The BC has officers, who happen to be
the policy councilors, plus a secretariat, and their duties and functions in
this capacity are different from policy development, and approval. 

 

The BGC sub committee /working group ignores this distinction and creates a
new responsibility for the GNSO Council that is not in practice or
philosophy supportable. It elevates the Policy Council to manage and govern
the constituencies. This is simply not a suitable approach. 

 

First, and foremost, neither the councilors, nor the chair are elected in a
manner that qualifies them to assume governance over the SO itself. In
particular, the chair is not elected by the broad membership of the range of
constituencies, and is therefore not elected to represent the SO. 

 

The Chair of the Policy Council is simply and clearly only the Chair of the
Policy Council of the GNSO. This in itself is a full time and worthwhile job
assignment. It is not suitable, nor advisable to try to turn this position,
which is part time,  not funded, and not elected by the full stakeholder
community of the GNSO, into a 'chair' for the SO.  

 

Separately, I will note that the GNSO Council may wish to improve its own
self management, and consider the development of a management team, to
include the chair and vice chair, but perhaps a couple of other 'elected'
individuals, who can assist with the planning of the agenda, work
cooperatively and collaboratively with the staff [since it is clear that
there needs to be continued growth and addition to staff in numbers and
expertise]. 

 

In fact, if there is a move in this direction, then many other changes will
have to happen, and these have not been considered by the very
constituencies that are affected. For instance, the Chair would have to be
elected by all members of all constituencies. On the other hand, the elected
Councilors to the Policy Council are elected to elect their Chair, and vice
chair, and also to elect the Board Members. The Nominating Committee is
responsible for appointing three representatives to the Policy Council.
These individuals vote on the election of the Policy Chair and the Board
members. They have nothing to do with the SO, per se, and are not
accountable to it. BUT, if the changes that the BGC's Report seek to make in
so significantly changing the role of the Policy Council to govern the
constituencies and to represent the full SO, then many other changes will be
needed, including the development of written criteria, guidelines for when
the SO agrees to some action, etc. 

 

I personally believe it is time for the SO's constituencies to consider
creating an informal group from the elected officers - NOT the Policy
Councilors - from the constituencies to deal with the administrative issues,
including those areas where the input from the SO is really broader than
about policy, such as the Strategic Plan, the Budget, etc. But that is
really a question for the SO to consider as it considers how to improve its
self governance.   

 

Recommendation:  The GNSO Improvements process should be divided into three
segments. The first priority should be on improving the PDP and its
associated processes, and should be on a fast track of 4-8 months. The
second category of restructuring activities demands more work, and indeed
the BGC needs to invite proposals for restructuring from the affected
parties that achieve improvements in participation.  

 

Restructuring along the lines within the Council as proposed in the Report
simply has no legitimacy, and is strongly opposed by a major segment of
those participating in and supporting ICANN. Imposing dramatic changes that
are not supportable by those most affected runs the risk of harming the
participation of major stakeholders in ICANN, just at the time when ICANN
seeks to demonstrate its truly multistakeholder support, as it moves into
the last stages of the Joint Project Agreement, it now presents major
barriers to the continued participation from the broad business community of
stakeholders.  A different approach is needed for this part of the
restructuring. 

 

I provide a sub categorization of the changes, and suggested timelines. 

 

 

Part I: improvements in policy identification, research, analysis,
documentation, and development should be the first and priority area of
focus. This can and should consume a 4-8 month period, addressing such areas
as examining further how to develop further the working group model as one
of the approaches available to the Policy Council, even considering making
it the primary approach in the initial stages of policy development. There
should also be a critical focus on increasing the resources to the policy
development process. 

 

II. Restructuring of the Supporting Organization and Enhancing
Constituencies: these areas need a longer term time line, perhaps as long as
a full year, after ICANN devotes additional resources to support global
outreach programs aimed at increasing participation and interest in the GNSO
policy process, as well as in ICANN itself. 

 

The Report makes the mistake of suggesting that the Council should dictate,
in a top down manner, the rules for participation and operating procedures
for the constituencies. This is not the job of the Policy Council. The SO's
constituencies should be invited to create a sub committee among themselves
and develop a set of principles or guidelines that are objective and
transparent. Constituencies need not be uniform in their structure, but
should have well defined and transparent rules. The revisions to
Constituencies and approval of constituencies should remain a job of the
Board, not delegated to the GNSO Policy Council, elected, as I have stated,
for a different purpose. 

 

The development of guidelines for Constituencies can be a shorter term work
project, especially if supported by staff/consultant resources, this could
take place in a 3 month period, but must  have full review and participation
by the Constituencies. 

 

The development of participation activities is a longer term effort that
will undoubtedly need to stretch across 3-4 face to face meetings where
events and outreach activities are organized, and needs financial resources
of the kind that ICANN has chosen to make available to the ALAC, to the
"fellowship program" focused on encouraging governments and civil society to
participate through funding of materials, travel, special support, etc.
Constituencies will vary in their need for assistance, yet a common
denominator will undoubtedly be well written and neutral and factual
materials that are suitable to inform and educate. 

 

III. Improving Coordination with ICANN Structures:   Changes are undoubtedly
needed, and advisable, but the present approach recommended in the Report is
actually antithetical to the bottom up approach that the ICAAN bylaws
require. This report proposed a hierarchal approach, delegating all
responsibility to a Policy Chair, and centralizing interaction.  That does
not seem a useful approach, and could actually not only overburden the
chair, but diminish the interaction between SOs. Designating chairs of the
SOs to meet misses the point of the need to improve the interaction of the
broader communities.  Interaction between the policy groups of the SO, and
of the SOs they should be encouraged.  Instead of designating the Chair to
take on these functions, the Policy Council, and the SOs should be asked to
propose ways of improving and increasing interaction.  The example of the
Council and GAC interaction, open to all, is an excellent example of
interaction. 

 

Finally, I raise a caution about suggesting that the role of a Board member
elected by a SO is to represent the SO. The Board has a broader
accountability and that should be maintained. Board members should all be
encouraged to understand what is happening in the SOs, and Advisory
Committees. 

 

Discussion:  

 

Two separate approaches and time lines are needed: improve and strengthen
the policy development process and improve and strengthen the SO, including
enhancing constituencies, improving opportunities for interaction with other
SOs, and providing support for encouraging participation by an ever growing
pool of relevant stakeholder participants. It is also appropriate to invite
the SO to discuss within itself how it would like to address improved
management and administrative coordination process for the SO functions that
support the Constituencies. After the completion of the other Reviews,
consider what restructuring of Council is appropriate

 

The role of Council in approving Policy:  The Board should resist the
enticement some seem to propose of moving aspects of the proper role of the
GNSO to approve policy to itself. I recall that this was sought by some at
the time of the ERC, and soundly rejected by the community.   There is no
indication that the role of voting on consensus policy in fact is a
deterrent to making consensus policy.  The policy development process has
been maturing and developing, and until recently, without much support from
ICANN's resources. Thankfully, policy staff are being added, and ICANN has
stated its intent to deliver on the long awaited economic analysis support
that has been the subject of many requests from the Council, and even the
Board. 

 

Today, 80 % of the revenue to ICANN comes from the registrants of the
generic top level names, aggregated and passed along to ICANN by the GTLD
registries and registrars.  It appears that close to 80 % of the actual
policy issues seem to be inherent or to touch on the GNSO. This may change
in the future, but today, the obvious question to ask is whether ICANN is
devoting sufficient resources to the support of this SO, and the answer is
clearly: Not yet. Resources are needed for the Policy Development process,
and as noted, also for support for the constituencies in outreach and
participation events and resources. And, later in the document, I suggest
that ICANN needs to also address travel funding for the Policy Development
process/Councilors. 

 

I believe that we must insist that the priority be not on restructuring,
where there remain strong disagreements, but in the areas where there are
broad agreements - policy development. 

 

Revising the PDP and providing much needed, and long delayed support,
including economic analysis, neutrally researched and documented white
papers that serve to inform all parties, including the GAC, the SOs, and the
Board will be a major supportive step to improving the Policy Development
process. 

 

The need to revise the PDP process itself has been a consensus of the GNSO
Policy Council for some time, and has been supported by earlier reviews [see
Patrik Sharry Review of the GNSO Council].  However, to date, ICANN has not
prioritized support to this process.  There is broad consensus for examining
how to develop a flexible, accountable PDP process, and this should be
undertaken in the 4-8 month period, documented, posted for public comment,
and implemented in a documented approach. Training for all councilors, and
for staff, and for retained consultants should be mandatory, on the new and
revised PDP process. 

 

All indications are that changes and improvements in process and support in
the earlier stages of the policy analysis and development processes,
including implementing the proposed Working Groups as one of the key tools,
augmented by improved and strengthened staff resources to do analysis,
studies, develop white papers will significantly strengthen the policy
development process and Council's effectiveness.

 

These changes and improvements need to include a set or procedures for
guidance of new Councilors, and for ICANN staff. Each councilor and all
staff need to be expert on policy and procedures for the GNSO Policy
Council. Example:  I never attend a meeting at the ITU without the documents
that guide the policy development procedure, the Constitution and
Convention, and the guidelines for developing recommendations. As a
Rapporteur for a question, I have a guide to follow. I have an expert
councilor to turn to who has a depth of knowledge about the equivalent of
the bylaws, and can respond instantly to questions about what is allowed.  

 

As a former Councilor, it was clear to me that most councilors are not
expert in the process and procedures of the PDP that has been in existence
for some time, and even the staff who support the Policy council struggle to
find the correct reference, etc. A priority has to be to develop the 'quick
guides' for the Council, provide the needed conference call training in the
materials, and commission the development of policies and procedures that
every Councilor considers their 'mantra' and carries with them, is familiar
with, and are expert enough to know how to fully participate in planning
methodologies for work. There should be a quick guide for new participants
in Working Groups; one should have to read the materials before joining the
Working Group, and understand how the WG will be conducted, work documented,
procedures, etc. With a reliance on Working Groups, a new process of
incorporating and deepening the understanding of the Councilors in the
details of policy issues will have  to be developed, so that they are
provided with the kind of briefing that is needed when they are not well
versed in a policy issue. This means more staff time, and more and better
prepared materials that document and summarize. 

 

Instituting a working group model as even a preferred format for initiating
policy development will be a big step, and deserves support and
experimentation as it is instituted. The GNSO Council should have other
options as well, but if this is to be the preferred model, then many changes
in support methodologies are needed, and sufficient time and resources are
needed to make this approach a success. 

 

The present report simplistically suggests that the IETF, W3C, RIRs and
other organizations are 'models', but shows little sophistication in
understanding the differences between the Policy work of the GNSO and these
organizations, in particular between the IETF and W3C and the GNSO.  While I
agree that much can be learned from other organizations, the uniqueness of
the GNSO's policy process which needs to develop consensus [binding] policy
needs to be kept in mind.  Procedures that are suited to this unique
environment, and the nature of its responsibilities means that we need to
learn from others processes, but develop and maintain our own that meet the
needs of this organization, and evolve over time. 

 

One key concern I have about the report and its recommendations is the
significant 'top down' themes and recommendations that are pervasive
throughout the Draft Report.  There is strong disagreement about certain
aspects in the Report, and some agreement about other aspects. 

 

It is not appropriate or suitable for the Board to impose solutions that are
this strongly opposed in a top down manner, e.g. the Report dictates 'how'
changes should take place. Instead, the Board should seek to set the
objectives, and provide needed resources so that the SO can engage in self
improvement, and develop solutions that are broadly supportable by the
broadest possible group of stakeholders. 

 

We have seen that the Board has previously taken that approach with the ALAC
in earlier days, and it is certainly critical that the Board take seriously
its responsibility to provide resources to the Supporting Organization - NOT
just the Council, but the SO itself, to engage in self improvement
activities and structural changes that can be broadly supportable by the
parties who are affected by the proposed changes. 

 

Addressing the need for Travel support for the GNSO policy development
process: 

 

It is time for ICANN to provide a budget for travel reimbursement for Policy
Development Process. This seems most appropriately to be primarily targeted
to support for travel for Councilors to the face to face meetings, but
should also be able to be applied when a Councilor cannot attend, to a
substitute from the Constituency, if they are a primary participant in a
policy development process and are a substitute for the Councilor. Such
substitutions are not possible on the Council itself, but remote
participation provides the ability to participate in a Council meeting
remotely. Travel should be coach class and provided as a baseline of
funding.  In order to manage the budget impact, there will have to be a
reasonable approach, such as perhaps funding for coach travel and hotel
expenses for up to two councilors per face to face meeting, with a maximum
of two meetings per year, with an assumption that the individual or the
Constituency can assist with the third Councilor's expenses.   The impact of
this is not only on the Council, but on the constituencies who elect them,
and participation in the development of the travel guidelines should be
undertaken with participation from non Councilors, not just from Councilors
who benefit from the funding. In reality, ICANN needs to develop a standard
set of travel reimbursement guidelines, and have a fairly uniform approach,
clearly identifying when it funds business class and when it funds coach
class; establish a per day fee for expenses approach to expenses. It is
reasonable to expect that some part of the expenses to participate are born
by the individual or constituency, just as happens in all other policy
organizations, but it is also reasonable to expect that as ICANN funds the
Nominating Committee members, provides travel funding to the ALAC in some
circumstances, and how has a robust fellow ship program, that it also
provide reasonable and transparent funding for travel/expenses to ICANN
public meetings  to the GNSO Council's policy councilors. 

 

 

 

Conclusion: 

If we start with the areas where there is agreement, even consensus, even
unanimity, we will first focus on the improvements to the policy
development/analysis/approval process  as a priority. Then we come to the
areas where there is not agreement, and there is in fact strong concern and
objection. These have to be dealt with differently, including being open to
accepting other recommendations from the most affected parties.  But we can
fully separate all restructuring recommendations into two longer term
categories: One which focuses on inviting the affected
parties/constituencies who are proposed for dramatic change to present an
improvement plan that is self generated in a bottom up manner. Ask for those
proposals to be presented at the Delhi meeting, in detail. Also ask for
proposals for what is needed to support the objectives of outreach and
increased participation. The last, and contentious area is the restructuring
of the management and administration of the SO itself. All restructuring
needs to be postponed until the completion of the reviews of other groups,
including the ALAC, and the Nominating Committee's role. After those
reviews, then a more holistic restructuring can be developed, in a bottom up
manner, from within the SO, as is proper, and in keeping with the bottom up
and consensus based commitment of ICANN. 

 

Any ability to improve the GNSO and its Policy Council has to be based on a
bottom up approach, and based on a consensus model. It is simply
antithetical to ICANN's genesis, and to its survival to move from this basis
tenet. 

 

Last week, in a meeting between 25 different business entities, members of
the ICANN Board also heard that business rejects the categorization proposed
of suppliers and consumers. Business spoke strongly but positively that
there has to be a broader framework of participation acknowledged. in fact,
the term ICANN has used in the Report simply refers to the contracted
parties -- not to supplier in the way that the broader industry recognizes
that phrase. And nowhere in the world does business confuse itself with
consumers. Consumers are those parties to whom businesses broadly want to
deliver services, while other businesses serve businesses as users. The
Board members there were urged to understand that the categorization
proposed was too rigid and too simplistic. I ask that the Board give careful
consideration to this message, as well. It is am important one, and
reflective of a key business concern. 

 

Marilyn Cade

Individual 

Business community 

30 November 2007

 



Marilyn S. Cade

202 360 1196  or   202 251 6787
 <mailto:mscade@xxxxxxx> mscade@xxxxxxx or
<mailto:marilynscade@xxxxxxxxxxx> marilynscade@xxxxxxxxxxx