[council] ISPCP's comments o the NC Review 2.0

[Michael Schneider <sastre@anwalt.de>]

To be on the safe side, I'm resending this to the NC list.

Michael

Message-Id: <4.2.0.58.20001018220208.04359850@193.155.84.129>
Date: Wed, 18 Oct 2000 22:07:28 +0200
To: Theresa.Swinehart@wcom.com
From: Michael Schneider <sastre@anwalt.de>
Subject: [ispcp] Re: [council] Update on NC Review 2.0 Circulation for 
Comment.
Cc: ispcp@dnso.org

Theresa,

as indicated yesterday I'm attaching our constituency's response.

Michael Schneider
(ISPCP)

================================ CUT HERE ================================

DNSO Responsibilities

- To what extent has the DNSO fulfilled the responsibilities in A, B and C ?

Although we believe that the DNSO has fulfilled the responsibilities which 
it has taken on, we have some concern that it ­ and specifically the Names 
Council ­ may be taking too narrow a view of its responsibilities and be 
focusing too much on due process instead of substance. With respect to B in 
particular, the NC should have made concrete proposals regarding the 
general conditions under which new gTLDs are introduced, and should not 
have left this entirely to the Board. It would at least have been necessary 
­ as required by the bylaws ­ for the Board to announce and implement the 
strategy it developed only after further consultation with the NC.

- Have the policies recommended by the DNSO represented an adequate 
consensus of the affected stakeholders? Have the viewpoints of all 
stakeholders been considered?

In our view the General Assembly and Names Council have made great efforts 
to solicit adequate consensus. Realistically, however, it must be accepted 
that a consensus (even a rough one) cannot be reached on every point, or 
that on many issues only an "artificial consensus" is possible, which 
exists only in name. Here, the Names Council should supplement its 
recommendatons to the Board with its own proposals whenever possible, 
having first produced an initial draft and forwarding it to each 
constituency for comment. With NC members representing their constituency 
views it should then be possible for the NC to make a value judgement on 
issues that are supported overall and issues where there is majority 
support and reflect this to the ICANN Board.

- Have the recommendations been well defined, useful in terms of being 
timely and being structured with a degree of specificity/flexibility 
appropriate to allow practical implementation?

The recommendations deserve the highest recognition for their efforts in 
combining concrete recommendations with a diplomatic tone and the 
flexibility needed for implementation by ICANN board and staff. However, 
particularly with respect to new gTLDs, it would have been necessary for 
the Board to make not a recommendation on only whether but how the 
implementation was to be handled.

- To the extent the recommendations have been adopted as policies, have 
they received the support of those being asked to implement them?

This is a difficult question as any answer can only be subjective if 
related to a specific issue. As an example, whilst it can be argued that 
the introduction of policies related to the introduction of new gTLDs does 
not require ISPs to implement them in the formal sense, their introduction 
does impact substantially on ISP business. Therefore it remains difficult 
to assess at this stage as we have yet to see the manner (and how many) new 
gTLDs will be introduced. Providing it is in line with the ISP request for 
a 'limited and measured introduction' the ISPC would be supportive.

- Has the DNSO failed to address problems that have been called to its 
attention through the Names Council?

ISPCP knows of none.

- Does the DNSO performance require improvement, and if so, how?

As already noted above, ISPCP feels that the DNSO is focusing so strongly 
on achieving consensus on all issues that its performance suffers in two 
respects.

First, the process leading to concrete recommendations is far too 
time-consuming, which in turn has substantial adverse impact on the quality 
of the result. If in discussions on consensus the only people who can make 
their positions heard are those who are ready to defend them in the most 
diverse way (on mailing lists, in meetings and at the GA), ultimately the 
views of those with the loudest voices and the professional lobbyists will 
prevail ­ and not of those who use the Internet as a platform for their 
business or simply as a medium.

Second, the substantial effort that the DNSO makes to appear open and 
present the results of its work as a consensus limits its ability to focus 
on essentials does impose some limitations. The DNSO was never planned as a 
mere "consensus collector", and if this is differently reflected in the 
bylaws in the view of some ­ and in opposition to the ideas which were 
largely unanimously expressed in the pre-DNSO meetings ­ some adjustment is 
needed. To make it clear, ISPCP believes that the bylaws explicitly do not 
limit the DNSO to the function of consensus building although it is 
recognised that openess and transparancy is also a key requirement here.

- Are the responsibilities of the components (NC, Constituencies, GA) and 
the relationship among them well defined?

The meeting in Monterey in November 1998 dealt very intensively with the 
question which components should shape the DNSO, which responsibilities it 
has to assume, and how they should interact. The consensus achieved with 
considerable effort at that time has been subsequently and repeatedly 
diluted, mostly in deference to the interests of individual groups, or 
because of the desire to appear as inclusive as possible. A system has now 
been created which is so complex that the individual components can hardly 
meet their responsibilities and can only interact with difficulty.

- How can the DNSO minimize the amount of subjectivity and increase the 
amount of objective consensus building, with its current structure? With a 
different structure?

This is a very important question, but it may lead in the wrong direction. 
We are firmly convinced that without a certain measure of subjectivity 
(which is in any case inherently constrained by the heterogeneous structure 
of the GA and NC) it is impossible to achieve in an acceptable time results 
which are capable of implementation. We accordingly recommend that the 
responsibilities be reviewed between the GA and NC so that the GA focuses 
on the solicitation of consensus and the NC focuses more on results than it 
has done to date.

- Has the DNSO process brought expertise to the issues it has addressed? If 
not, how can the degree of expertise be enhanced?

The DNSO has made great contributions by identifying the (in part complex) 
problems and detailed aspects inherent in the issues it has addressed. It 
would, however, be desirable to find ways to include additional expertise 
for the purpose of solving the problems. We particularly believe it would 
be useful to obtain expert opinions from time to time on certain problems.

Structure

Names Council

- Is the Names Council fulfilling its responsibility to steer and manage 
the DNSO consensus process, or can this be improved?

It needs to be improved. In particular, the visibility from the outside of 
what the NC does and what it has achieved is very poor.

- What are the proper expectations for the Names Council, and what is its 
proper role in relation to the DNSO and the ICANN Board?

One of the problems of the NC is that there is clearly no agreement on the 
expectations it has for itself. Its proper role should be to prepare 
comprehensively all the decisions of the Board which relate to the "core 
business" of the DNSO. One part of this (and no more or no less) is 
evolving consensus on the premises and basic direction of policy. Another 
is to develop concrete and detailed proposals for decisions on this basis. 
The Board in its turn should first consult the DNSO on all issues relating 
to the DNS, unless the urgency of a specific issue prevents it (which 
should only happen in exceptional instances).

- Should the NC take a more active role in managing the 
consensus-development process, for example by giving working groups more 
defined charters and more frequently reviewing the state of their work?

The working groups should be given more defined charters in any case and 
they should interact more intensively with the NC than they have done in 
the past. However, it is also important to include the constituencies more 
intensively in the preparation for working groups (and not only in their 
work following the formation of a working group).

- How can the NC enhance the level of technical or other expertise employed 
in the consensus-development process?

See above under "expertise".

- How much or little should the NC be involved in the detailed management 
of ICANN?

This is the job of the Board and staff, not of the NC.

- Does the NC manage the policy-development process so that recommendations 
are reached in a timely manner?

The process used to develop policy is still unclear and paying some 
attention to this so that its clearly understood by all parties involved 
would be beneficial. Documenting the process that the NC should follow to 
enable it to reflect the views of its members to the ICANN Board would be a 
good first step. Now that the difficult question of introducing new gTLDs 
has been answered, the future work of the NC should be less burdened by 
timing constraints but concentrate on content. A recommendation which is 
quickly formulated but gives the Board too little to work with is just as 
unhelpful as a recommendation which is made too late.

- Does the existing structure work to generate consensus recommendations on 
domain name matters?

We've basically dealt with this questions at different points.

- Does the Names Council give appropriate level of consideration to the 
views of all affected stakeholders?

Consideration of constituency interests within the NC needs to be improved.

- The NC recommendations have been criticized as often being 'weak', or 
merely reflecting the outcome of the respective working groups. How can the 
NC interpret the outcome of the working groups, and formulate a better 
defined and stronger recommendations consistent with the consensus process?

This is beyond doubt the most important question which can be posed in the 
entire review process, and we have tried in our answers above to make 
suggestions for improvement. However, it is difficult to offer the NC in 
just a few sentences a concept which is easy to understand for developing 
detailed recommendations without coming into conflict with the consensus 
process or pre-empting issues which could be the subject of this process 
through its own decisions. Probably the only option will be to develop a 
healthy self-confidence while retaining a sense of the wishes and needs 
of  the DNS users.

The NC should also remember that the Board faces the same problem but still 
tackles its responsibilities with remarkable rigour - even if there is 
occasionally room for criticism of the very opposite of what the NC is 
accused of, namely excessive self-confidence and a gradualloss of contact 
with those it serves.

- Do the NC representatives adequately communicate with their respective 
constituencies? Do the constituencies communicate with their NC 
representatives?

Communication between constituencies and the NC is subject to similar 
problems to those affecting the relationship between the NC and the Board. 
The NC representatives - and particularly those who are only part-time 
lobbyists - are limited in their ability to communicate by the sheer volume 
of information which they have to absorb. Conversely, it is not easy for 
constituency members to maintain their involvement, as they are also under 
a considerable load, either through their work on other bodies or 
(particularly in the case of commercial constituencies) simply from the 
pressure of their daily business.

All this inevitably leads to a lack of communication throughout the 
process, which can only be improved if there is more stringent 
communication generally. Whilst recognising the issues above this is one of 
the biggest problems the NC face if it is to achieve any credibility. It 
requires urgent attention, just explaining the difficulties is not acceptable.

- Does the NC adequately communicate with the ICANN staff and Board?

To the extent that there is any lack of communication between the ICANN 
board and staff on the one hand and the NC on the other, this is presumably 
due to the fact that the Board does not regard the NC as an adviser as 
strongly as would be desirable. This in turn is the fault of the NC, as it 
is not currently performing its function as adviser, and possibly does not 
even wish to perform this in every respect conceivable.

- Does the NC adequately communicate with other SO Councils?

The NC communicates only to a minimal extent with other SO Councils, 
although the question does arise how far an exchange of views is necessary, 
particularly given the role of "consensus collector" which the NC is 
currently filling.

- After consulting ICANN staff to address details which require legal and 
technical expertise, does the NC review whether or not such input is 
sufficient?

This is a question for the NC itself. The answer to the question whether 
the NC adequately reviews whether or not such input is sufficient is "no".

- How can the NC improve the role of the DNSO under ICANN, and improve its 
ability to provide advice and input to the ICANN Board on domain name 
policy issues?

As noted above, the NC must insist that the DNSO is consulted on an ongoing 
basis on all major issues relating to the DNS. Conversely, the NC must 
refer detailed recommendations back to the Board.

Constituencies

- Are the constituencies a correct division? Are all DNSO interests 
adequately represented in the existing constituency groups? Do the current 
divisions aggregate individuals or entities with closely aligned interests 
and permit the development of focused positions?

- Should the constituencies be reformulated by combining user 
constituencies? By combining provider constituencies? In some other way?

We do have some concerns but our position on the questions above is still 
being developed.

- Is it up to each constituency to define its relationship with NC 
representatives or should the DNSO/ICANN have some minimal mandatory 
requirements for all?

This should be up to each constituency.

- What happens if an elected NC rep does not attend NC meetings, ignores 
constituency members? Is this up to the constituency to address, or should 
it be brought to the attention of the NC?

A multistage process is conceivable. Initially it is certainly up to the 
constituency to work out with its NC representatives how they do their job. 
However, if an NC representative continuously underperforms and a 
constituency is unable to resolve the problem, it should have the right to 
forward the case to the NC for further action. If an NC representative is 
untolerable from the point of view of the NC, the latter should be able to 
take action itself, after consultation with the respective constituency.

- Are the constituencies fulfilling their role as open and transparent 
channels of dialogue and discussion toward the development of community 
consensus? Do they allow effective development of collective positions of 
those with similar interests? Does this process promote the development of 
overall community consensus?

The constituencies can only fulfil this role by incurring substantial 
administrative expenditure, which ISPCP has tried to avoid so far. If, 
however, the constituencies take on their own structures ­ as ISPCP will 
also be doing shortly ­ care must be taken to ensure that the collective 
positions which have been developed are also reflected adequately in 
policies. For the present this is only ensured to a limited extent, because 
the NC is only taking a position on general questions, while the Board 
makes decisions on the basis of the general NC recommendations, but in 
other respects as it sees fit.

- Does the current constituency division minimize the effectiveness of the 
DNSO and NC?

In any case the division does not exactly maximise their effectiveness ­ 
and this is an issue which the DNSO should look at.

- Are the constituencies adequately representing the intended members? Or 
are there important parts of the Internet Community that may need better 
representation?

For ISPCP we can say that we represent companies and associations on a 
broad basis in terms of content and geography, make intensive outreach 
efforts, and have shown that we are open to all potential members. If we 
are still not as representative as we ourselves would like to be, this is 
not due to the fact that our target groups would be better represented in 
other ways, but to the fact that many companies are basically reluctant to 
cooperate with ICANN on the basis of its present structure.

- Should there be a constituency for individuals, and if so, how should its 
membership be constituted?

It was and is our view that an additional constituency for individuals is 
not helpful. In the pre-DNSO phase when its structures were discussed there 
was agreement that just one entity should represent the interests of 
individuals. Many of those involved in this process were sceptical that 
representation was justified in both, an At-Large membership and a General 
Assembly, but there was at that time a (rough) consensus that this was 
needed because of the different approaches of the ICANN at large and the 
DNSO. To establish another constituency now which serves the same purpose 
would run counter to the whole concept of the DNSO as we see it.

- How do you ensure that individuals who choose to form an individual 
constituency represent the vast interests of individuals ?

This question does not arise for us.

- No constituencies have been added since the original seven constituencies 
were recognized (provisionally) in May 1999. What should be the ongoing 
process for assessing whether the constituencies serving the goal of 
providing appropriate forums for affected stakeholder groups?

A transparent process is needed for establishing new constituencies 
(including requirements for form and content of the application and rules 
for a decision). The need to eliminate or merge existing constituencie 
should be considered if it is apparent (i.e. if NC members or the GA chair 
call for it).

General Assembly (GA):

- What should the future role of the GA be?

As described above: the GA should fill a major role in the consensus 
building process (as the constituencies do for their respective 
memberships), while the NC develops concrete and detailed proposals on this 
basis.

- Is the function of the GA properly defined?

No.

- How can the level of participation by constituency members in the GA be 
improved?

If the relationship between individuals and institutional members of the 
DNSO is defined as described above, involvement of constituency members in 
the GA is desirable but not essential.

- How can the level of participation by GA members in the GA be improved?

This can only succeed if the importance of involvement in the ICANN is 
adequately communicated on an ongoing basis.

- If changes are made in the constituency structures, and possibly an 
individual constituency added, should the GA continue to exist?

It is very doubtful under these circumstances that the GA would have any 
justification for its existence. In fact, one of the proposals made in 
Monterey was to form a DNSO consisting solely of constituencies and to give 
individuals more direct rights of involvement through their own 
constituency than are currently provided in the GA.

 From the present point of view ISPCP believes that the GA should be left 
alone, and that no individual constituency should be instituted.

Working Groups:

- Are the working groups an appropriate mechanisms to foster consensus in 
the DNSO?

Yes, they are.

- If the NC can't find consensus in a working group report, what should be 
the next step?

The constituencies affected by the decision must be consulted. After this, 
the NC should formulate various options for action and refer them to the Board.

- Are there mechanisms other than working groups that the NC should employ 
in managing the consensus-development process? For example, assigned task 
forces?

Task forces should be considered with due weighting given to the makeup of 
the task forces according to the focus.

Secretariat:

- What is the relationship between the ICANN Secretariat, the DNSO 
secretariat, and the Constituency secretariats?

It would be desirable to make use of potential synergies between the NC and 
constituency secretariats. However, this should not in any circumstances 
lead to any merging of the secretariats or other organisational structures 
of ICANN itself and the DNSO ­ the responsibilities, roles and objectives 
are too different.

Other Review Questions:

- Have the DNSO recommendations furthered the ICANN work consistent with 
the provision in Article VI, Section 2(e), of the ICANN Bylaws, that the 
ICANN Board shall accept recommendations of the DNSO if the Board finds 
that the recommended policy (1) furthers the purposes of, and is in the 
best interest of, the Corporation; (2) is consistent with the Articles and 
Bylaws; (3) was arrived at through fair and open processes (including 
participation by representatives of other Supporting Organizations if 
requested); and (4) isn't reasonably opposed by any other Supporting 
Organization.