RE: [gnso-review-dt] Personal comment on newest revision of the Westlake review

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

Thanks Avri.  As you can tell, I totally forgot that or maybe missed it in the 
first place.

Chuck

From: Avri Doria [mailto:avri@xxxxxxx]
Sent: Monday, May 04, 2015 11:44 PM
To: Gomes, Chuck; gnso-review-dt@xxxxxxxxx
Subject: Re: [gnso-review-dt] Personal comment on newest revision of the 
Westlake review

Hi,

http://gnso.icann.org/en/improvements/new-constituency-recog-process-24jun11en.pdf
II.
Scope
The processes, procedures, and criteria described in this document apply to 
Constituency applications
intended for the Non-Commercial Stakeholder Group (NCSG) and Commercial 
Stakeholder Group (CSG) within the Non-Contracted Parties House (ref. ICANN 
Bylaws, Article X, Section 5.4).

So while people can petition the Board to form constituencies in the RySG or 
RsSG, they are not subject to this process as far as i know.

There may be a newer reference but i can't find it.


avri

On 04-May-15 18:28, Gomes, Chuck wrote:
Avri,

I never thought that the constituency procedure was only created for the NCPH.  
As far as I understand, the procedures could be applied in the CPH as well.  It 
so happened that the RySG developed a process for including new groups without 
creating some of the complexities associated with constituencies.  But I don’t 
think that means that a group couldn’t apply to be a constituency.

Chuck

From: owner-gnso-review-dt@xxxxxxxxx<mailto:owner-gnso-review-dt@xxxxxxxxx> 
[mailto:owner-gnso-review-dt@xxxxxxxxx] On Behalf Of Avri Doria
Sent: Sunday, May 03, 2015 12:05 PM
To: gnso-review-dt@xxxxxxxxx<mailto:gnso-review-dt@xxxxxxxxx>
Subject: [gnso-review-dt] Personal comment on newest revision of the Westlake 
review


These comments are my own personal comments and do not reflect a negotiated set 
of comments from amongst the NCSG members of the Working party.


While I can personally support most of the recommendations made by Westlake in 
the report, I do have questions and concerns with some of the discussions in 
document.  First I will mention the specific recommendations for which I have 
questions, later I list comments based on their page number.


·         Rec 22 seems too limited.  Shouldn’t the GNSO council also concern 
itself with the subject having been adequately covered.  More discussion below.


·         Rec 26 seems to include the issue that the rules for new 
constituencies have not been followed.


While Westlake, and many others, do not like the rules as established by the 
Board’s SIC, I do not believe there is evidence of those rules having be 
flaunted or otherwise ignored.


It should also be noted that the methods for initiating new constituencies was 
only created for the NCPH and not for the CPH.  So perhaps a recommendation 
needs include some discussion of creating a set of rules applicable to both 
houses equally.


I agree that the default should include creating the new constituencies, though 
perhaps we need a lighter weight notion of constituency that is topical or 
based on interest, that is easier to create and sunset.  I also believe that 
constituency creation needs to be done according to a set of rules and that 
they need to be created in the proper stakeholder groups.  I think the evidence 
of the possible constituencies Westlake discussed is that they did not apply to 
the correct stakeholder group.  One could question whether the current setup of 
the GNSO allowed any proper place for these constituencies.


An issue that could be discussed is whether the division of the GNSO in 4 SG, 
leaves some organizations homeless as they may either fit into any of the 4 
SGs, or may be hybrid organizations that cannot find a home in a strictly 
segmented set of stakeholder groups.  Is there a SG for every possible 
constituency?


·         Page 13


Complexity deters newcomers.


Is the report assuming that complexity can be removed, or that it be mitigated 
by better explanations.


·         Page 14


In addition, the current structure of the GNSO has been in place for only about 
three years. From the Westlake Review Team’s professional experience of 
structural change in many organisations of differing types, this represents 
only a relatively short time for it to become firmly established and for people 
to be fully familiar with it.


The review could also have included an analysis of why such an oppositional 
organization arrangement was a good thing that should be allowed to become 
firmly established. I question the degree to which the deleterious effects have 
been adequately studied.  In most all of the organization dynamics literature I 
have ever read, there is a negative effect to creating a set of oppositional 
structures, as was done in the past GNSO reform.  Westlake could have done a 
great service by including an analysis of this situation and the many ways in 
which this oppositional setup has affected the GNSO.  Yes, we have learned to 
live with it, but largely we do that by avoiding the contentious issues as much 
as possible.  Even Section 9 of the Westlake report that has an extensive 
discussion of the structural issue does not recommend further study.


Since Westlake does not wish to recommend further work on this subject, I 
recommend that the GNSO Review Party make its own recommendation vis a vis 
further work on this topic.  Various members of the Board have been quite 
outspoken on the idea that in the ICANN bottom-up model, if we don’t like the 
structure, then we should recommend a way to fix it.  We do not need a review 
or a SIC to give us permission to fix what needs to be fixed.  We should just 
do it.  Perhaps this is an issue that needs to be taken to GNSO Council.


·         Page 40


The ATRT2 figures are from 2013.  Has there been any work done to check and see 
whether there has been any change since then or what the rate of change is?


·         Page 43,


The description of the Policy & Implementation team work seems incomplete and 
dated.  Might be worth giving a timestamp for when that description was made.


·         Page 50


The average length of a PDP is between 2 and 3 years


All the other figures in that section appear to be in days.  Would be 
interesting to know what the actual average was in days. 2-3 years is such a 
wide range.  Standard deviation would also be interesting.  This comments also 
relates to the charts on Section 9.  At the very least, there should be 
annotation that this data come from before outreach and does not show any 
effects that might have been achieved by the outreach program.


·         Page 71


Among the things I have assumed the council should ensure, in addition to those 
listed, is that all of the issues have had a full exploration and that the 
opinions of all stakeholders as is possible has been taken adequately into 
account.  As this does not figure on the Westlake list, I am wondering whether 
they consider this an inappropriate activity for the council.  Does Westlake 
consider it appropriate for the GNSO council to send a report back to a WG if 
they feel the work has not been complete in respect to diversity of view or 
full discussion of substance?  There are issues concerned with the substance of 
an issue, yet Westlake seems to indicate that the council should have no 
concern for the substance.


·         Page 72


We acknowledge that the Board is the peak governing body of ICANN, so it would 
be inappropriate to limit its authority


The current CWG Accountability has taken issue with a structure where the Board 
is supreme in all substantive issues.  Would Westlake see this as inappropriate?


·         Page 81


Following the BGC WG review, but before the new and final Constituency process 
was implemented (2011), staff developed a two-step process (Notice of Intent to 
form a New Constituency, New Constituency petition and Charter applications) 
for new constituency applications


The Westlake does not note that this procedure was created only for the NCPH.  
There is not such procedure for creating constituencies in the CPH.  It has 
never been clear why such a policy should only apply to half of the GNSO.  Does 
Westlake have any input on this situation?  Did it figure into the analysis?


·         Page 82


and took no action on the Consumer Constituency as it was still being worked on


It should be noted that while the candidate constituency still exists in the 
NCSG, and it still holds observer seats in all NCSG committees as defined in 
the NCSG Charter, it has not been active in years. Despite this, no attempt has 
been made to end its candidacy.  Several attempts have been made to resurrect 
it, and some NCSG members still hold out hope for it (I am a NCSG member of the 
candidate Consumer constituency as well as of NCUC and supported its creation) 
completing the ICANN policy and  NCSG charter’s required activities for full 
status.  Would seem appropriate to discuss the case completely as opposed to 
allowing it to appear that this was somehow a prejudicial act by the NCSG.


·         Page 83


In the discussion of the Cybercafe constituency applications Westlake avoids 
several salient facts:


·         The NCSG charter, as approved by the ICANN Board, as well as the 
defined process for creating new constituencies requires the constituencies not 
only be appropriate to the SG group to which they are applying, i.e be non 
commercial in the NCSG or be commercial in the CSG, but that there should not 
be an overlap with existing constituencies.

·         The statement related to the fact that if the applicants of the 
Cybecafe had paid attention to the requirements for the NCSG, they would have 
realized that as commercial entities they were not qualified for the Non 
Commercial SG.  This was backed up by the Board.


Again this makes the NCSG look like it did some inappropriate when it was 
following procedures and its own Board approved charter.


Does Westlake recommend that:

·         It is ok to put commercial constituencies in the NCSG and non 
commercial constituencies in the CSG?

·         It is ok to create constituencies with overlapping mandates on the 
same SG?


Does Westlake have a recommendation for how to handle groups that file an 
intent to form a constituency without being fit for any of the four existing 
SGs?


·         Page 85


What evidence is there to substantiate:


- Less ‘pure’ or altruistic motives, such as protecting one’s own position, 
status in the GNSO/ICANN community (or with an employer), or,

− In other instances, individual concerns that if someone new comes in, the 
replaced incumbent will lose their own travel funding, regardless of the GNSO’s 
greater interest of having the most appropriate people for the role – rather 
than just those who can defend their positions the most effectively.


What Westlake interprets as ‘protecting a patch’ may just be a strong feeling 
in support of adhering to the processes as negotiated and agreed to by 
constituencies, stakeholder groups and the Board.  To indicate otherwise based 
on hearsay and without adequate substantive  proof is somewhat disparaging of 
hard working sincere individuals.  While this may indeed occur, I am also not 
well placed to judge the intentions of others, it seems inappropriate to 
include such claims in a review.  Isn’t it enough to say that not enough has 
been done to create new constituencies without casting aspersions on a 
population of hard working volunteers?  Such evaluations, albeit very general 
and not about any individual or SG, seems like they should be avoided in a 
review.


·         Page 91


NPOC is used both as an example of the only new constituency chartered and as a 
bludgeon against the NCSG.   Yes, there have been, and occasionally still are 
rough times between the sister non commercial constituencies.  But we work 
together and produce substantive NCSG statements that include the support of 
both constituencies, our candidate constituency and individuals.  Not only did 
we successfully negotiate the creation of this new constituency according to 
rules that were being developed as part of the process itself, the NCSG charter 
was written with a full set of appeals for any occasion in which a 
constituency, or any group of participants, felt that the NCSG Committee 
decisions treated them unfairly or improperly.  Initiating these NCSG appeals 
takes a very low threshold (15 members out of hundreds), yet not a single 
appeal has been initiated since the charter was approved in 2011.


A claim is also made about the lack of new leadership in the NCUC and the NCSG. 
 If one were to look at the leadership of the NCSG, or NCUC  for that matter, 
more than half got involved with ICANN in the last few years.  Many are 
newcomers in their first 2-3 years of participation in the NCSG.  Yes some of 
us old timers still hold posts, but we are by no means the majority. Many of 
our senior members work in the background on WGs and CWGs and penning draft 
statements without holding a leadership post.  Many of the senior people long 
for a new younger generation to take of the SG and actively recruit 
replacements for the roles they hold.  Would have been good to see that 
accounted for in the analysis.


·         Page 113


I believe in the discussion of the GNSO as an artificial construct Westlake 
makes a category error.  But first, in a sense all of the SOAC are essentially 
artificial constructs that have evolved over the course of years to reflect the 
reality of participation.  The category error has to do with comparing the GNSO 
to the ALAC.  That is wrong.  The GNSO is to the GNSO Council as the At-Large 
is to the ALAC.  One cannot compare the GNSO with the ALAC, though they could 
compare the GNSO Council to the ALAC.  As someone who participates in both the 
At-large ,and the GNSO, I believe there is very little difference between the 
relationship among the RALOs of the At-large and the relationship among SGs of 
the GNSO.  I see them as similar structure, though along different 
discrimination lines, geography and interest.  This is not to say wee don’t 
need better communication across the silos, but merely to argue that the GNSO 
is not that different in this respect of other organizations that have a layers 
internal structure.


·         Page 116


I find the appropriation of Sir Winston’s adage a bit overstated in relation to 
the GNSO.  He was talking about Democracy.  While the quote can be 
appropriately applied to something as fundamental as the multistakeholder model 
of participatory democracy, I find its application to the GNSO a bit puzzling.  
Even if the quote did not trivialize the original utterance, I see little basis 
for a judgement that many other schemes have been tried and been shown to be 
wanting.


Despite my comments, I want to reiterate that I take little issue with the 
specific recommendations.  I thank the Westlake Review team for having produced 
a mostly balanced 2nd revision of their report and for giving us yet another 
chance to review their work before it is submitted.


Avri Doria


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