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

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

Please note a few observations below in response to Marika's message.

Chuck

-----Original Message-----
From: owner-gnso-policyimpl-dt@xxxxxxxxx 
[mailto:owner-gnso-policyimpl-dt@xxxxxxxxx] On Behalf Of Marika Konings
Sent: Monday, June 17, 2013 11:46 AM
To: Shatan, Gregory S.; 'Jordyn Buchanan'
Cc: h.raiche@xxxxxxxxxxxxxxxx; gnso-policyimpl-dt@xxxxxxxxx
Subject: Re: [gnso-policyimpl-dt] RE: The agenda

One thing I would like to point out is that the new gTLD PDP was run under
the old PDP rules.
[Chuck Gomes] This is definitely true but even though the new gTLD PDP happened 
under the old procedures, it was lead in a totally open manner in a way that 
set the stage for the WG model that we have today. Bruce Tonkin, the chair of 
the Council at the time and the head of the PDP work for the majority of its 
approximately 1.5 year effort, was largely responsible for this.

 The revised PDP which came into effect in December
2011, following extensive community discussions, introduced a number of
significant improvements to the process, including increased focus in
implementation related considerations such as the introduction of the
concept of Implementation Review Teams.
[Chuck Gomes] One of the earliest uses of Implementation Review Teams was for 
the Registrar Transfer Policy, which was also before the current PDP was put in 
place.

 However, as no PDP has been fully
run under these new rules, it may not be possible to assess what impact
those improvements have on the overall PDP, including whether the current
rules encourage the right level of granularity or not. I would like to
note that another group is actually tasked to review the revised PDP in
due time, which is the GNSO Standing Committee on Improvements
Implementation, so the DT may want to steer away from those questions that
are likely to be addressed as part of the overall review of the GNSO PDP
and focus on those questions identified in the call for volunteers.
[Chuck Gomes] I don't think it is possible for  the Policy & Implementation WG 
to adequately do its work without addressing how the current PDP focuses on 
implementation issues.  And I think one of the deliverables of the WG should be 
to recommend possible improvements to the PDP to the GNSO SCI and the Council.  
This should not be interpreted to mean that it is the Policy & Implementation 
WG responsibility to review the PDP as a whole, but I think it does mean that 
the WG will have to do that as it relates specifically to implementation.

Best regards,

Marika


On 17/06/13 17:35, "Shatan, Gregory S." <GShatan@xxxxxxxxxxxxx> wrote:

>I don't think the PDP process can set "arbitrary" levels of granularity.
>There can be varying levels of granularity, I think, but they should not
>be arbitrary.  However, I think that what you end up suggesting -- that
>the council should know (or at least have some guidance on) the level of
>specificity before handing off for implementation -- makes sense.
>However, I don't think that it is a foregone conclusion that everything
>in a recommendation is policy and should be dealt with as such, or
>whether the more "nuts and bolts" aspects of a PDP recommendation should
>be considered implementation and be dealt with as such (i.e.,
>differently).  In other words, I don't agree that you can stuff a PDP
>recommendation full of implementation and make it become "policy."  I
>don't think these are things that should be decided by this Drafting
>Team; rather  it is one of the questions to be posited to the WG.
>
>I do agree that that the retrospective GNSO Council declarations of
>"policy" are one of the areas where practical problems have arisen lately
>and provided the impetus for this PDP.  A resolution for this problem has
>to be within the assignment for the WG.  I don't think that creating
>agreed-upon definitions of policy and implementation are merely "moving
>the dividing line."  They may not be the only solutions -- I agree that
>other trusted processes may be very helpful as well as more clarity on
>levels of specificity.  Nonetheless, without a better sense of what
>policy is (and isn't), everything else is just dancing on quicksand.
>
>Greg
>
>
>
>-----Original Message-----
>From: Jordyn Buchanan [mailto:jordyn@xxxxxxxxxx]
>Sent: Monday, June 17, 2013 1:31 AM
>To: Shatan, Gregory S.
>Cc: h.raiche@xxxxxxxxxxxxxxxx; gnso-policyimpl-dt@xxxxxxxxx;
>marika.konings@xxxxxxxxx
>Subject: Re: [gnso-policyimpl-dt] RE: The agenda
>
>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
>>>>>
>>>>
>>>>
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