Re: [gnso-policyimpl-dt] RE: The agenda

[Jordyn Buchanan <jordyn@xxxxxxxxxx>]

I'm not sure how we're disagreeing if you accept the notion that what
is implementation is essentially the universe that is "not policy" and
that the policy development process can set arbitrary levels of
granularity in its specification.  The only sensible conclusion is
that the policy makers are setting the scope of what's policy and
what's implementation simply by what they choose to include in the
policy itself.  I think you're trying to say that the GNSO Council
can't retrospectively declare something to be reserved to the policy
process after failing to grapple with it when initially setting the
policy.  I think I agree with this, although I'll note that it doesn't
follow that just because something is implementation that the need for
real multistakeholder input comes to an end.

I think it's painfully obvious that the reason that people have been
fighting about "policy versus implementation" lately is that various
interpretations favor the specific outcomes that different people
prefer.  This is largely because on one side of that line we presently
have a situation in which not much of significance happens and on the
other side staff and the board do whatever various interest groups are
capable of lobbying them to do.  Frankly, that's a terrible situation
and no amount of moving the dividing line around is going to make it
better.  We'd be way better off if we had processes that we trusted on
both sides of the dividing line and then future working groups and the
council would know what level of specificity to provide before handing
off to the next phase.

Jordyn

On Mon, Jun 17, 2013 at 1:12 AM, Shatan, Gregory S.
<GShatan@xxxxxxxxxxxxx> wrote:
> I'm not too concerned with the bounds of GNSO power generally.  I am 
> concerned with the idea that the GNSO Council should have the unilateral 
> power to determine whether an action is policy or implementation -- and more 
> particularly whether an action is a change to an existing policy or merely 
> implementation of that policy.  I do agree that the more detailed the outcome 
> of a PDP is, the less latitude there is in the choices to be made when 
> implementing that policy.  No WG can anticipate all the decisions that will 
> come in implementation, but a WG that provides only high level policy advice 
> and a GNSO that adopts only high level policy advice is leaving more of the 
> "blocking and tackling" to those implementing the policy.  A WG (and then the 
> Council) can always decide to be more granular and leave less latitude to the 
> implementers -- but greater levels of detail can be difficult to achieve in 
> the WG context.
>
> The recent "policy vs. implementation" issues that have arisen did not come 
> when the Council was specifying policy recommendations.  Rather, they came 
> later on, when actions that some would say were changes or extensions to the 
> implementation of a policy and others would say were changes to the policy 
> itself were controversial.  I think that one of the tasks of the WG has to be 
> providing guidance on how to distinguish "policy vs. implementation" in that 
> context.  Far from being a rat-hole, I thinking is the crux of what the WG 
> needs to deal with.
>
> Greg
>
> -----Original Message-----
> From: Jordyn Buchanan [mailto:jordyn@xxxxxxxxxx]
> Sent: Sunday, June 16, 2013 2:20 PM
> To: Shatan, Gregory S.
> Cc: h.raiche@xxxxxxxxxxxxxxxx; gnso-policyimpl-dt@xxxxxxxxx; 
> marika.konings@xxxxxxxxx
> Subject: Re: [gnso-policyimpl-dt] RE: The agenda
>
> Ugh, fixing a typo in the To: line (respond to this message instead of the 
> last one to avoid e-mailing a non-existent address).
>
> Jordyn
>
> On Sun, Jun 16, 2013 at 2:15 PM, Jordyn Buchanan <jordyn@xxxxxxxxxx> wrote:
>> Hi Greg:
>>
>> I'm a little concerned we're about to go down the rathole that I just
>> suggested I'd like to avoid, but let me be a bit clearer.  There's
>> obviously bounds on the powers of the GNSO--one obvious example is
>> that the "picket fence" limits the applicability of consensus policies
>> to existing registry and registrar contracts.  Similarly, the GNSO
>> can't create policies about ccTLDs or addresses.  But the bounds on
>> the power of the GNSO are almost entirely uninteresting to the policy
>> v. implementation debate, because implementation is simply the
>> application of the adopted policy.  Something that isn't within the
>> powers of GNSO to adopt as policy doesn't become acceptable once we
>> move on to actually implementing the thing.  So my point is that, when
>> correctly acting within the proper scope of its policy remit, the
>> Council itself draws much of the line between policy and
>> implementation by choosing how they specify a policy.
>>
>> Back to topics that are actually within our remit as a drafting team:
>> although I personally agree with you that a lighter weight process for
>> non-Consensus-Policy would be a useful I don't think we want to force
>> the WG to come up with something like that--the objective that Chuck
>> and I suggested was just to identify what the process for
>> non-Consensus-Policy should look like rather than expecting that it
>> ought to be different than the PDP.
>>
>> Jordyn
>>
>> On Sun, Jun 16, 2013 at 12:46 PM, Shatan, Gregory S.
>> <GShatan@xxxxxxxxxxxxx> wrote:
>>> I believe that "policy" absolutely cannot be whatever the GNSO says it is.  
>>> No entity should be allowed to decide the limits of its own powers.  The 
>>> natural tendency would then be to stretch the definition of policy to its 
>>> outer limits (and then some).  There needs to be an objective, transparent, 
>>> balanced definition of policy.
>>>
>>> I think the WG's work needs to be as rational and informed as possible.  
>>> One thing I think the WG needs to do is a survey of policy/implementation 
>>> definitions/debates in ICANN and beyond (we may have much to learn from 
>>> other organizations that have grappled with this issue).
>>>
>>> I do agree that the GNSO needs something more lightweight and nimble than 
>>> the PDP (or the oxymoronic PDP).  I alsothink it needs to be more 
>>> structured than GNSO Council letter-writing.   Wee should task the WG (if 
>>> within the DT's powers to do so) to make recommendations on such processes.
>>>
>>> Greg
>>> --------------------------
>>> Sent from my BlackBerry Wireless Device
>>>
>>>
>>> ----- Original Message -----
>>> From: Jordyn Buchanan [mailto:jordyn@xxxxxxxxxx]
>>> Sent: Sunday, June 16, 2013 10:33 AM Eastern Standard Time
>>> To: Holly Raiche <h.raiche@xxxxxxxxxxxxxxxx>
>>> Cc: gnso-policyimpl-dt@xxxxxxxxx <gnso-policyimpl-dt@xxxxxxxxx>;
>>> Marika Konings <marika.konings@xxxxxxxxx>
>>> Subject: Re: [gnso-policyimpl-dt] RE: The agenda
>>>
>>>
>>> Although I am more optimistic than most about being able to find
>>> useful dividing lines between policy and implementation*, I also
>>> worry that this discussion could be a real rathole for the working group.
>>> More importantly, I'm not sure it's as interesting a question as it
>>> may seem at first blush.  We need to try to allow more consistent
>>> implementation policies that allow for proper multistakeholder
>>> participation and also encourage more feedback between the
>>> policy-making and implementation processes where appropriate.  I
>>> think if we get this right, the distinction between policy and
>>> implementation starts to matter a lot less--we get in trouble today
>>> because the implementation phase is poorly defined and subject to
>>> pretty unpredictable outcomes/process.  Since on one side we have the
>>> heavyweight structure of the PDP and on the other side we have the
>>> chaos of undefined "implementation", you get people trying to contort
>>> the policy/implementation distinction around which side is more
>>> likely to result in their desired outcomes instead of any real
>>> considered distinction of what the words actually mean.
>>>
>>> I do think it is useful to think about what "policy making" means
>>> when the goal isn't a Consensus Policy, and this is directly
>>> referenced in the doc that Chuck sent around.  Today, it's unclear
>>> how the GNSO goes about creating policy other than in the form of
>>> Consensus Policy; I think it's worth thinking about whether there
>>> should be lighter-weight mechanisms where the intent isn't to affect
>>> contractual obligations, or at the very least how the GNSO goes about
>>> causing these other policies to be created through the PDP.
>>> Similarly, it's important that these policy outcomes be documented so
>>> that there's somewhere for the community as well as ICANN staff to take 
>>> note of them.
>>>
>>> To me, getting all of this right is much more important than figuring
>>> out exactly where the dividing line is between policy and
>>> implementation.  In fact, getting good process in place will probably
>>> make the policy v. implementation debate a lot more tractable.
>>>
>>> Jordyn
>>>
>>> * As Chuck notes, figuring out what is policy may be in scope for the
>>> working group itself, but probably not for us.  Having said that I'll
>>> briefly note that my view is that "policy" is basically whatever the
>>> GNSO Council says it is; there are some limitations on the power of
>>> the GNSO to set policy, but not many and they're more about
>>> "Consensus Policy" in particular and not "policy" in general.
>>>
>>> On Sat, Jun 15, 2013 at 7:18 AM, Holly Raiche <h.raiche@xxxxxxxxxxxxxxxx> 
>>> wrote:
>>>> First,  thanks to both Marika (and ICANN staff) and Chuck for
>>>> getting the WG conversations started.  From the WG template, it is
>>>> clear that our first task is to fill in section II - Mission,
>>>> purpose and Deliverables. And we should start with the Mission.
>>>>
>>>> At this early stage, I think we need to go beyond what Jordyn/Chuck
>>>> have suggested for mission.
>>>>
>>>> Reading the Draft Framework, and comments made during the Beijing
>>>> meeting, we haven't even agreed on what we mean by 'policy'.  As the
>>>> Draft Framework sets out, the term policy can mean anything from a
>>>> formal policy that requires a PDP process all the way to general
>>>> practices, with no attendant process.  Yet in some cases,
>>>> 'operational' policies may well impact on the larger community and should 
>>>> involve that consideration - however informal.
>>>> As the Framework document also points out, the line between what is
>>>> policy (however we define it) and implementation will not be easy to draw.
>>>>
>>>> And other issues have been raised by other commenting parties
>>>> including when comment is sought (too late in the process or not)
>>>> and in what time frame - versus another statement that the actual PDP 
>>>> process can take years.
>>>>
>>>> Yet I do not think we can come up with anything meaningful unless we
>>>> can get a better handle on what we are talking about.  Again, as the
>>>> Framework document notes, all the AC/SOs have a role in policy - so
>>>> we need to start there - what do we mean when we say policy, and how
>>>> do we ensure that all who are impacted by 'policy' are heard in a
>>>> meaningful and timely fashion both when it is developed and when a
>>>> change is considered.  And, of course, its implementation is part of
>>>> that conversation - one that was highlighted in new gTLD issues, but
>>>> as the IPC notes, what is finally produced should be forward looking.
>>>>
>>>> So I look forward to the meeting this coming week
>>>>
>>>> Kind Regards
>>>> Holly Raiche
>>>> h.raiche@xxxxxxxxxxxxxxxx
>>>>
>>>
>>>
>>>                                                                 * * *
>>>
>>> This E-mail, along with any attachments, is considered confidential
>>> and may well be legally privileged. If you have received it in error,
>>> you are on notice of its status. Please notify us immediately by
>>> reply e-mail and then delete this message from your system. Please do
>>> not copy it or use it for any purposes, or disclose its contents to
>>> any other person. Thank you for your cooperation.
>>>
>>>                                                                 * * *
>>>
>>> To ensure compliance with Treasury Department regulations, we inform
>>> you that, unless otherwise indicated in writing, any U.S. Federal tax
>>> advice contained in this communication  (including any attachments)
>>> is not intended or written to be used, and cannot be used, for the
>>> purpose of (1) avoiding penalties under the Internal Revenue Code or
>>> applicable state and local provisions or (2) promoting, marketing or
>>> recommending to another party any tax-related matters addressed herein.
>>>
>>> Disclaimer Version RS.US.20.10.00