[wg-review] Uniform Procedure to Establish Consensus
Dear
Members: for your consideration… Working Group Uniform Procedure to Establish Consensus: 1. Purpose: To honor the
provisions of Article III Section 1 (Transparency and Procedures: General) of the Bylaws for Internet
Corporation for Assigned Names and Numbers (“The Corporation and its subordinate
entities shall operate to the maximum extent feasible in an open and
transparent manner and consistent with procedures designed to ensure
fairness.”), this “Working Group Uniform Procedure to Establish Consensus” is
hereby created. 2. Time Frame:
As the Domain Names Supporting Organization has undertaken consideration
of a domain name topic, and has designated a Working Group of the General
Assembly to evaluate the topic, in accordance with ARTICLE VI-B Section 2(c) of
the above-cited Bylaws, a time frame for the report of such Working Group will
be set. a. Objections to declared time frame: As members of the Working Group will be
individuals who have a knowledge of and an interest in issues pertaining to the
areas for which the DNSO has primary responsibility, and who are willing to
contribute time, effort and expertise to the work of the DNSO, including work
item proposal and development, discussion of work items, draft document
preparation, and participation in research and drafting committees and working
groups, these members can be deemed competent to decide whether the declared
time frame is sufficient or inadequate to their needs.
i.
Resolution: In the event of a consensus declaration
by the Working Group that the declared time frame requires revision (in keeping
with ARTICLE VI Section 2e3 [Supporting Organizations Responsibilities and
Powers], of the above cited Bylaws, posing the requirement for fair and open
processes), the Working Group Chair will suspend the activities of the Working
Group until such time as an accommodation can be reached on the issue. 1. ''consensus'' means a general concurrence among the
interests represented on the Working Group, unless the Working Group agrees
upon another specified definition. 3. Working Group Chair: A Chair of the Working Group will be
designated. a. The Chair:
the chief executive of the Working Group who will impartially assist the
Working Group in conducting discussions and negotiations. In that capacity the Chair has the
power to:
i.
make inquiries into
matters considered important for
ii.
be the official
spokesman for the Working Group in relations with the several constituencies
of the DNSO and with interested organizations and individuals outside of the
ICANN organization, including responsibility for encouraging the ICANN Board to
carry out the recommendations of the Working Group.
iii.
request Registrars,
Registries, and the DNSO constituencies to provide information needed by the
Working Group.
iv.
recommend to the
Working Group appropriate topics for action.
v.
organize the
election of Co-Chairs, persons who impartially aid in the discussions and
negotiations among the members of a Sub-Topic committee to develop a proposed
policy. 1. Determination of conflicting interests – The Chair
shall determine, on the basis of credentials provided, whether a person under
consideration to serve as a Co-Chair of a committee has any financial or other
interest that would preclude such person from serving in an impartial and
independent manner. 2. Nominations:
Chair shall offer an explanation of how a person may apply or nominate
another person for such a position.
vi.
prepare, for
approval of the DNSO, estimates of the
vii.
organize and direct
studies ordered by the Working Group, to contract for the performance of such
studies with any public or private persons, firm, association, corporation, or
institution
viii.
designate a
polling/voting administrator who will maintain and make available for public
inspection a record of all polls and/or the final votes of each participating
member (to be cited as Working Group Procedures Appendix A).
ix.
issue, in its
sound discretion, a declaratory order to terminate a controversy or remove
uncertainty.
x.
manage the keeping
of minutes and records 4. Public Notice:
In keeping with the sentiment expressed in ARTICLE III Section 3(i) of
the above-cited Bylaws (Transparency and Procedures: Notice and Comment Provisions), to “provide public notice…
explaining what policies are being considered for adoption and why”: a press
release notice shall be promulgated which will include: a. an announcement that a Working Group has been
established to negotiate and develop a proposed policy b. a description of the subject and scope of the policy
to be c. a list of the interests which are likely to be significantly
affected by the policy d. the name and contact address of the Working Group
Chair e. a request for initial comments (to be submitted by all
parties within 30 days), which will additionally be promulgated and distributed
to representatives of:
i.
Public Policy Sites (listings
cited below for illustrative purposes) 1. Carnegie Mellon Institute for Electronic
Commerce
ii.
International
Organizations and Institutions 1. Asia-Pacific Economic Cooperation
iii.
International Associations and other Private Sector Organizations 1. Alliance for Telecommunications Industry
Solutions a. In unusual circumstances the time limit prescribed may be
extended (by written notice from the group making such request setting forth
the unusual circumstances for such extension and the date on which a position
paper is expected to be dispatched). No such notice shall specify a date that
would result in an extension for more than ten working days. f.
Forum: The ICANN website and/or DNSO website
will create a Forum Discussion Topic so that preliminary public comments may be
garnered to assist the Working Group in its initial formulations. 5. Press Release List
Maintenance: The Secretariat of the DNSO shall maintain an active website list of
those to be notified by Press Release upon the creation of a Working Group, and
will honor all requests for addition to such list; this list shall be referred
to as Working Group Procedures Appendix List B – Public Outreach. 6. Invitations: as per prior established procedures, invitations to participate in the
Working Group will be tendered a. Qualifications and
Affiliations:
i.
All applicants, in order to
promote the transparency and credibility of the Working Group process, will
cite their qualifications and affiliations; such information to be posted by
the DNSO Secretariat on a public website and designated as Working Group
Procedures Appendix List C – Members’ Qualifications and Affiliations 1. Usage of Information:
The Chair shall inform each individual whom it asks to supply
information, on the form which it uses to collect the information a. the authority which authorizes the solicitation of the
information and whether disclosure of such information is mandatory or
voluntary b. the principal purpose or purposes for which the c. the routine uses which may be made of the information d. the effects on him, if any, of not providing all or
any part of the requested information
ii.
Denial: No applicant is to be denied the
opportunity of participation 7. Relevant Documents: The Chair will prepare and
post on a public website a list of relevant documents to be cited as Working
Group Procedures Appendix D – Background Documents: a. Prior ICANN
deliberations on the topic b. Factual and background materials that would be useful to
anyone considering the topic c. Other citable
non-ICANN commentaries on the topic d. documents that show ICANN is competent to address the
subject matter of the proposal 8. Objectives: The Chair will re-state the Working Group’s mandate and deadline: a. Goals to be achieved; probable issues are outlined b. A timetable will be set for the first round of discussions c. The Chair will stipulate that the Working Group shall
substantially abide by this
Uniform Procedure for the Establishment of Consensus and all such related
procedural matters that may thereafter derive
i.
As the White Paper that gave rise to ICANN sets forth the goal of establishing rules by
bottom-up consensus, this Working Group Uniform Procedure to Establish
Consensus recognizes that circumstances may give rise to procedures and rules
not envisioned by this document; as such each Working Group is authorized to
amend by consensus any provision of this document as required to thereby better
accomplish its stated mission. 9. Guidelines: The purpose
of this section is to establish a framework for the conduct of the Working
Group, an advisory committee formed to consider and discuss issues for the
purpose of reaching a consensus in the development of a proposed policy. Nothing in this section should be
construed as an attempt to limit innovation and experimentation with the
Working Group’s self-directed bottoms-up consensus-building process or with
other innovative policy-exploring initiatives. a. Transparency and
Accountability: The Working Group shall refrain from
private ''ex parte communication'' (an oral or written communication
not on the public record).
i.
every portion of every Working Group
discussion shall be open to public
observation; teleconferences, as required, will have their minutes
subsequently posted on-line by the Secretariat b. Procedures. - A Working Group may by consensus
adopt any procedures it deems necessary for the completion of its assigned
task. Specifically, it has the power to:
i.
adopt such
recommendations as it considers appropriate for
improving administrative procedure. A member who disagrees with a
recommendation adopted by the Working Group is entitled to enter a dissenting
opinion and an alternate proposal in the record of the proceedings, and the
opinion and proposal so entered shall accompany the recommendation in a
publication or distribution thereof; and
ii.
adopt bylaws and
regulations for carrying out the functions of the Working Group, including the
creation of such committees as it considers necessary for the conduct of
studies and the development of recommendations for consideration by the DNSO
iii.
make recommendations to the
Chair on additional topics germane to the purpose of the Working Group
iv.
receive and consider
reports and recommendations of
v.
designate a member of
the Working Group to preside at meetings of the DNSO in the absence or
incapacity of the Chair
vi.
elect such
additional officers of the Working Group as it
vii.
approve or revise
the budgetary proposals of the Chair;
viii.
exercise such other
powers as may be delegated to it by the 10. First Round of
Discussions: As an
unfettered e-list discussion will result in a search for support and
endorsements and is likely to help to sort out those specific proposals (and
combinations) most and least likely to lead to consensus, the Chair will
entertain such discussions for 30 days.
At the end of this period, proposals for continued discussion of
sub-topics will be forwarded to the Chair. 11. Second Round of
Discussions: a. Chair will determine the list of definitive sub-topics and establish a
timetable for discussion of each
i.
Co-Chairs: The Working Group will select sub-topic
Co-Chairs who will assign specific tasks and challenge participants to come up
with drafts for particular subsections of a final report
ii.
Sub-Topic Committee
Membership – In order to promote the goals of task
management, the Chair shall limit membership on a Subtopic committee to a
number that equates with the total number of Working Group members divided by
the number of Sub-Topic committees, unless the Chair determines that a greater
number of members is necessary for the functioning of the committee or to
achieve balanced membership. Each committee shall ideally include at least one
person representing a potentially impacted party. b. Chair will forward Subtopic List
to all Registrars and Registries for comment and position papers (as these two
constituencies, voluntarily
having entered into contracts that commit them to abide by consensus policies
on appropriate topics will most
directly be affected by any change in ICANN policy); such comments and position
papers to be due within 30 days.
i.
In unusual
circumstances the time limit prescribed may be extended (by written
notice from the Registrar or Registry making such request setting forth the
unusual circumstances for such extension and the date on which a position paper
is expected to be dispatched). No such notice shall specify a date that would
result in an extension for more than ten working days. c. Outreach: Chair will formally present to the
Working Group for review and discussion the accumulated comments and position
papers submitted by policy groups, organizations, and associations (Appendix B
– Outreach) 12. Third Round of Discussions: to identify and contact potentially impacted parties. The Working Group shall give all
interested parties opportunity for the submission and consideration of facts,
arguments, or proposals when time, the nature of the proceeding, and the public
interest permit; a. The Chair will first summarize the Working
Group’s progress (as a review of such deliberation can help to frame the issues
and to put various statements of support and opposition into better
perspective). b. Chair will formally present to the Working
Group for review and discussion the accumulated position papers submitted by
Registrars and Registries (to be designated as Working Group Procedures
Appendix E -- Registrar/Registry
Positions) c. For each aforementioned Subtopic a determination will be made by the
Working Group as to who are the potentially impacted parties; this list will be submitted as Working Group Procedures Appendix F –
Potentially Impacted Parties
i.
The Working Group will add to this
Appendix a description of the extensive affirmative
outreach conducted to contact those potentially impacted by the
forthcoming proposal. 1. It will be shown what steps will be taken
to contact the potentially impacted parties – It is unrealistic to expect that
any Working Group will include all of the parties that might be impacted by a
proposal or whose views need, somehow, to be assessed. Thus, outreach -- and a
clear and exhaustive description of this outreach -- will be absolutely
essential.
ii.
The potentially
impacted parties will be advised of the intent of the Working Group to propose
a course of action which may run counter to the interests of those groups, and
as such will be given the opportunity (within 30
days) to present or reformulate their positions relative to the proposals which
may finally emerge from the Working Group. 1. In unusual circumstances the time limit
prescribed may be extended (by written notice from the group making such
request setting forth the unusual circumstances for such extension and the date
on which a position paper is expected to be dispatched). No such notice shall
specify a date that would result in an extension for more than ten working
days. a. Whenever any
group whose interests may be directly affected by a policy directive requests
Working Group consideration of private proprietary
matters, such request will be honored to the extent feasible by
temporarily closing discussion to the public, and the position of such group as
conveyed by teleconference to the Working Group Chair and Co-Chairs will be
heavily weighed in the final assessment.
i.
If a portion of a discussion is to be closed to the public, the Working Group
Chair shall, within one day, make publicly available a full written explanation
of such action together with a list of all persons having participated in the
private discussion and their affiliations.
ii.
For every meeting closed the chief legal
officer of the DNSO shall publicly certify
that, in his or her opinion, the meeting may be closed to the public and shall
state each relevant exemptive provision.
iii.
The DNSO shall maintain a complete transcript or electronic recording
adequate to record fully the proceedings of each such meeting, or portion of a
meeting, closed to the public.
iv.
Such minutes shall fully
and clearly describe all matters discussed and shall provide a full and
accurate summary of any actions taken, and the reasons therefor, including
views expressed on any item and the record of any rollcall vote (reflecting the
vote of each member on the question). 1. All documents considered in connection with any action
shall be identified in such minutes.
v.
The chief legal officer of the DNSO shall
maintain a complete verbatim copy
of the transcript, a complete copy of the minutes, or a complete electronic
recording of each meeting, or portion of a meeting, closed to the public, for a
period of at least two years after such meeting, or until one year after the
conclusion of any agency proceeding with respect to which the meeting or
portion was held, whichever occurs later. 2. The views of the potentially impacted parties will be noted and well-documented as
an addendum to Appendix F 3. Before a
recommended, initial, or tentative decision, the potentially impacted parties
are entitled to a reasonable opportunity to
submit for the consideration of the Working Group a. proposed findings and conclusions; or b. exceptions to the comments of Working Group members
or adopted positions of Working Group sub-committees c. supporting reasons for the exceptions or proposed findings
or conclusions. The record shall show the ruling on each finding, conclusion,
or exception presented. All decisions, including initial, recommended, and
tentative decisions, are a part of the record and shall include a statement of
i.
findings and conclusions, and the
reasons or basis therefor, on all the material issues of fact, law, or
discretion
ii.
the appropriate
policy, order, sanction, relief, or denial thereof. 4. If deemed
advisable by the Chair to further protect the interests of potentially impacted
parties, the Working Group will seek recourse to the U.S. Federal Mediation and Conciliation Service
which may provide services and facilities, with or without reimbursement, to
assist the Working Group, including furnishing conveners, facilitators, and
training in negotiated rulemaking. 13. Declaration of Public Support: Such a consensus proposal seeking to
effect a policy change will be supported at a minimum by way of a majority vote
on the part of the General Assembly.
The polling administrator will select and contract a reputable
organization (such as the Carter Center), under whose auspices the vote will be
tabulated. Results of the vote
will not be considered a consensus declaration, but rather, a single variable
in the overall gathering of a consensus position. 14. Final Report: a.
Introduction:
i.
The proposal
will be cited 1.
This proposal
will need precisely to state the formulation of what is
claimed to have consensus support -- so that, among other things, in the event
a registrar or registry disputes the presence of consensus that claim can be
tested by the Independent Review Panel and/or the courts a.
The proposal will address the claim to consensus by listing
and describing concrete reasons supporting a belief that affirmative support
for the proposal is widespread b.
The proposal,
if imposing a disproportionate burden or
implementation duty on particular types of parties, will show that any
opposition from such parties was entitled to and received greater weight in
evaluating the presence of consensus
i.
The consensus decision needs to stand in contrast to a mere claim that an
internal working group vote has been taken and has produced a majority or even
supermajority result in favor of the proposal
ii.
A description of the
process leading up to the proposal will
be submitted
iii.
The draft
report, in providing evidence of consensus, will explain why the proposal
should take the form of a uniform policy to be adopted
by ICANN's Board b.
Analysis: The persuasiveness and
credibility of the final report (with respect to the question of whether
consensus exists among impacted stakeholders), will depend upon the thoroughness of the Working Group’s analysis
i.
The final
proposal will be evaluated against the background of the stated goal.
ii.
Analysis of reasons to believe that the
proposal enjoys widespread support
among impacted parties
iii.
Analysis of all substantial impacts of the proposal 1.
attention to
analyzing the nature and extent of these
possible impacts
iv.
Analysis of distribution of support and opposition among impacted groups 1.
Do most of those impacted by a particular
proposal support a centralized decision
to adopt a policy; do some strongly and rationally oppose it; or does no one
care?
v.
Where warranted, a cost-benefit analysis of the proposed
policy demonstrating that the policy is likely to be cost effective
vi.
Critical that the report specifically
analyze the substance of opposing views,
point out the best answers to those views, or otherwise analyze why the
opposition should not be entitled to great weight. 1.
Analysis of the reasons to believe
opposition is limited, unreasoned,
or arises only from those not impacted or implementing 2.
The proposal
will need to definitively show that opposition to the
proposal should be disregarded c.
Summary: With due regard for the convenience and necessity of
the parties or their representatives and within a reasonable time, the Working
Group shall proceed to conclude a matter presented to it.
i.
Report - If a
Working Group reaches a consensus on a proposed policy, at the conclusion of
discussions the Working Group shall transmit to the DNSO a report containing
the proposed policy. If the Working Group does not reach a consensus on a
proposed policy, the Working Group Chair may transmit to the DNSO a report
specifying any areas in which the Working Group reached a consensus. The
Working Group may include in a report any other information, recommendations,
or materials that the Working Group considers appropriate. Any Working Group
member may include as an addendum to the report additional information,
recommendations, or materials
ii.
In formulating
its consensus-based policy determination, the Working Group shall consider
whether – 1.
there is a need for such a policy; 2.
there are a limited number of identifiable interests that will be
significantly affected by the policy; 3.
the convened Working Group can be viewed
as having had a balanced representation
of persons who a.
adequately represented the potentially impacted parties; and b.
were willing to contribute to discussions
in good faith to reach a consensus
on the proposed policy 4.
the Working Group reached a consensus on
the proposed policy within the time-frame
allotted, and that such time frame was sufficient to its needs. 5. any Working
Group procedures unreasonably
delayed the notice of proposed policy and the issuance of a policy position; 6. the DNSO
and/or ICANN had adequate resources
and were willing to commit such resources, including technical assistance, to
the Working Group
iii.
In that the ultimate legitimacy of ICANN will rest on demonstrations that
its policies are supported in the real world, and not just that its active,
insider participants have agreed on some proposition, a draft proposal summary
must first reference the positions of public policy groups. 1.
Summary of arguments, in a
coherent and balanced way, for and against the proposal, attributed to
particular sources a.
views of potential dissenters have been noted and marshaled
i.
opposing views (of which
there will always be some) are isolated, limited in intensity, shared only by
those with low stakes in the process, or are unreasoned 2.
It will be
shown that the enforceable policies that are adopted are supported by detailed
reports that show that such policies
reflect very broad agreement and that opposition is either very limited, of
relatively low intensity, unreasoned, or comes from those who are not in fact
adversely impacted 3.
The Working
Group proposal, in its entirety, will be published on the DNSO
website a.
To the extent required to prevent a
clearly unwarranted invasion of personal
privacy, the Working Group may delete identifying details (such as
email addresses) when it makes available or publishes an opinion, comment,
statement of position or policy. However, in each case the justification for
the deletion shall be explained fully in writing, and the extent of such
deletion shall be indicated on the portion of the record that is published; the
extent of the deletion shall be indicated at the place in the record where the
deletion was made. b. The Final
Report, in due deference to the requirements of transparency, accountability
and outreach, shall also make available for public examination all the chronological and threaded discussion posts
that led to the formulation of consensus. 15. Termination of Working Group:
A Working Group shall terminate upon the expiration of its
mandated time-frame or upon promulgation of the final policy Draft under
consideration, unless such Draft is thereafter remanded to the Working Group
subsequent to due consideration. Best regards to all, Danny Younger |