Re: [soac-mapo] Exchange of letters between GAC and ICANN re: morality issues

[Avri Doria <avri@xxxxxxx>]

Hi,

I would like to add one consideration to this discussion.  To the extent that a 
CWG has a duly approved charter by the GNSO Council and the council accepts the 
conclusions of the CWG in a well formed motion, its recommendations should be 
considered policy recommendations, even if not specifically contractual 
conditions policy.

Each of the groups chartering a CWG goes through its own processes and to the 
extent that the GNSO uses its policy process requirements to charter, the fact 
that the CWG is also chartered by others, should not detract from its ability 
to make valid policy recommendations.   Likewise the extent o which ALAC uses 
it process should not detract from its ability to call it an ALAC 'advice' or 
where the GAC to develop processes for chartering working groups and approving 
their outputs, from being GAC advice.   Additionally, The GNSO reorganization 
mandates the use of Working Groups.  While this methods of creating a CWG was 
not originally envisioned, it seems to me that its outputs should be as valid 
as the various methods used to charter it.

In the case of MAPO, there might be issues with the chartering and post CSWG 
approval process, but as long as each of the organizations using the CWG method 
follow their own processes, there should not be a reason for them to walk away 
from recommendations made in a CWG.


a.


On 29 Nov 2010, at 07:05, Bertrand de La Chapelle wrote:

> Dear all,
> 
> The Cross-community Working Group format is relatively new and does not have 
> a formal recognition yet in the Bylaws. The discussion on this thread is a 
> very valid one, but we need to distinguish between 1) the specific 
> implementation for Rec 6 and how we deal with the results of the group, and 
> 2) the more general issue of the nature and fuction of such Cross-community 
> groups. 
> 
> 1) On the Rec6 group itself, the discussion below reminds us that :
> 
> - as Jon says, the CWG should not be viewed as a formal policy-making group; 
> it has no authority other than the potential quality of the outcome and its 
> capacity to help untangle a very difficult issue
> - as Milton says, the GAC has indeed encouraged and endorsed the creation of 
> the Group (and asked for it); but as Frank mentions, GAC members have clearly 
> participated individually, in a goodwill effort, and not as representatives 
> of the whole GAC (like all other participants, none of whom engaged their 
> respective constituencies a priori)
> - no consituency, SO or AC should be supposed to have endorsed the outcome of 
> the group unless they have done so explicitly (as ALAC did); this is valid 
> for the GAC as well as the gNSO; however it is true that members of said 
> groups should not voluntary abstain from participating for the sole benefit 
> of being able afterwards to object to whatever outcome is produced (this 
> would not be a "good faith" participation in a multi-stakeholder process); 
> this requires of course that sufficient information is circulated on the 
> progress of discussions
> - if the purpose and procedures of such informal groups, as well as the 
> status of their outcomes are not clear enough, some (legitimate) fears will 
> arise regarding the existing policy-making processes (cf. Jon, Stéphane and 
> Avri)
> 
> The Rec6 group was formed very late in the process, to try to iron out a 
> solution to probably the most political problem pending, one that 
> (in)directly involves national sovereignty and the existence (or not) of 
> general principles of international law applicable to the DNS.
> 
> In view of this extremely loaded question and given the extremely short time 
> span, the group has clearly demonstrated the benefit of a full 
> cross-community interaction : I was personally very impressed by the quality 
> of the exchanges and the outcomes. Cathagena should be an opportunity for the 
> community as a whole to see what can be done with the results. 
> 
> 2) As for the more general discussion of the nature and use of such CC 
> groups, I believe this format should in the future be used much earlier in 
> processes, almost as soon as a new topic arises, to engage all SOs and ACs in 
> the early framing of the issue.  It has proven useful even at the late stage 
> of a very sensitive topic, and its use early in the process will no doubt 
> foster a much better involvement of all actors later in the policy 
> discussion, including in the existing PDPs, if it is used appropriately.
> 
> Using this interaction format also at various stages of progress in policy 
> drafting would certainly improve what Milton labels the "disfunctionality of 
> the current arrangements for multi-stakeholder cooperation within ICANN" and 
> facilitate the breaking up of silos. 
> 
> A formal introduction of this new interaction format in the ICANN toolset can 
> be done without threatening the existing PDPs and this discussion should 
> continue on a separate track from the specific case of the Rec6 goup. 
> 
> My two cents.
> 
> Best
> 
> Bertrand
> 
> 
> 
> 
> 
> On Mon, Nov 29, 2010 at 5:55 AM, Jon Nevett <jon@xxxxxxxxxx> wrote:
> I support the model of cross-community discussion groups, such as this CWG.  
> In certain circumstances, they are a very good idea.  I think that it worked 
> very well in this case.  
> 
> Unfortunately, some folks have been characterizing this group as something 
> that it is not.  It is not a policy-making group and our report was not a 
> pronouncement with some sort of imprimatur of the will of ICANN community.  
> It should be viewed for what it is/was -- a group of interested volunteers 
> getting together to discuss potential solutions to an issue based on the 
> request of some of the leaders of various ICANN supporting 
> organizations/advisory committees.  We were successful in offering up some 
> good suggestions and proposals, but the work has never been ratified by the 
> policy-making body and should not be viewed as bottom-up policy-making.  
> Therefore, if the ICANN Board disagrees with a recommendation of this group 
> with a clear rationale, I don't view it as an affront to the bottom-up policy 
> making model as others have been articulating.  
> 
> My concern is that if folks oversell the nature of the group and try to deem 
> this kind of a discussion group as one with a policy-making function, then 
> the those with the actual policy-making responsibility under ICANN's Bylaws 
> might choose not to support groups like the CWG for fear that the work will 
> be viewed as policy-making without the due process protections built into the 
> Bylaws.  In order to foster future discussion groups like the CWG, I suggest 
> that we not suggest that they are something that they are not.  
> 
> Thanks.
> 
> Jon
> 
> 
> On Nov 28, 2010, at 5:31 PM, Milton L Mueller wrote:
> 
>> Thanks, Frank.
>> I do understand the point you are making. Problem is, it’s incorrect. The 
>> CWG was officially co-convened by the Chair of GAC along with the chairs of 
>> ALAC and GNSO, and there was active representation of several GAC members in 
>> it. Moreover, the charter of this group was approved by the GAC chair and 
>> passed by the full GAC for its approval. Therefore while you may be right to 
>> say that it is still unclear whether GAC as a body would fully endorse the 
>> results of the report and its recommendations, it is plainly not correct to 
>> say that “the GAC” did not participate in it. It did.
>>  
>> Beyond that, on a more human level, I wonder whether you have thought 
>> through the longer term implications of what you seem to be saying/doing. 
>> Many people, not just myself, would take this kind of distancing as further 
>> evidence of the dysfunctionality of current arrangements for 
>> multistakeholder cooperation in ICANN. As long as representatives of 
>> national governments hold themselves apart from the process and (through 
>> strategic behavior) seek a special, privileged influence over policy 
>> outcomes, then there will be major challenges to the legitimacy of both the 
>> GAC and the policy outputs that come out of the board on any issue. That 
>> lack of good faith process can only hold back the internet.
>>  
>> Certainly, if governments want to make these decisions on their own, on 
>> their own terms, they can do it. But then they’d have to be big boys and 
>> girls and negotiate and pass a binding international treaty. And that would 
>> require you to follow constitutional constraints, due process requirements 
>> and ratification processes of the member states. If you’re not willing to do 
>> that, then perhaps you need to take these processes a bit more seriously. 
>> You can’t have it both ways.
>>  
>> Cheers,
>> --MM
>>  
>> (p.s., if you do want to go the treaty route, I look forward to discussing 
>> the First Amendment implications with the U.S. representatives.)
>>  
>>  
>> From: Frank March [mailto:Frank.March@xxxxxxxxxxx] 
>> Sent: Sunday, November 28, 2010 3:51 PM
>> To: Milton L Mueller; Antony Van Couvering; soac-mapo
>> Cc: Heather.Dryden@xxxxxxxx
>> Subject: RE: [soac-mapo] Exchange of letters between GAC and ICANN re: 
>> morality issues
>>  
>> Without wishing to seem pedantic, the GAC did not participate in the Rec6WG. 
>> As I was at pains to point out on a number of occasions, some GAC members 
>> including myself were part of the group but not able to speak on behalf of 
>> the GAC.  I would like to think that the overall direction of the report 
>> would have strong GAC support but this has not been tested.
>>  
>> Because of the timing issues of getting the report ready in time for the 
>> Council retreat, it was never proposed that the report be taken formally to 
>> the GAC for discussion or endorsement.  My view is that it it is the Board's 
>> response to the report and the outcomes therefrom that would engage the GAC, 
>> not the report itself.
>>  
>> Given that the issues raised are still 'live' and the work is carrying on it 
>> would certainly be possible to have a discussion in Cartagena.  I have a 
>> feeling however that endorsement of the report from the GAC would be 
>> difficult to achieve.  It might well be considered by some members not to be 
>> an appropriate action for the GAC to take.
>>  
>> Best wishes, Frank
>>  
>> ----
>> Frank March
>> Senior Specialist Advisor
>> Communications and IT Policy
>> Ministry of Economic Development
>> 33 Bowen Street, PO Box 1473
>> WELLINGTON, New Zealand
>> Mobile: (+64) 021 494165
>>  
>>  
>> From: owner-soac-mapo@xxxxxxxxx [mailto:owner-soac-mapo@xxxxxxxxx] On Behalf 
>> Of Milton L Mueller
>> Sent: Monday, 29 November 2010 4:48 a.m.
>> To: Antony Van Couvering; soac-mapo
>> Subject: RE: [soac-mapo] Exchange of letters between GAC and ICANN re: 
>> morality issues
>> 
>> The disturbing thing about this exchange of letters is that both sides seem 
>> to treat this working group – which GAC participated in – as if it did not 
>> contribute “thoughtful proposals” to resolve the stated concerns.
>>  
> 
> 
> 
> 
> -- 
> ____________________
> Bertrand de La Chapelle
> Tel : +33 (0)6 11 88 33 32
> 
> "Le plus beau métier des hommes, c'est d'unir les hommes" Antoine de Saint 
> Exupéry
> ("there is no greater mission for humans than uniting humans")