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[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
Working Group consideration, including matters proposed by
individuals or organizations inside or outside the Domain Names Supporting Organization.

                                                            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
budgetary requirements of the Working Group

                                                        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
developed, and the issues to be considered

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
Center for Democracy & Technology
Center for Strategic and International Studies, International Communications Studies
Computer Systems Policy Project (CSPP)
Corporation for National Research Initiatives
Cross Industry Working Team
Electronic Frontier Foundation
Electronic Privacy Information Center
George Washington University Cyberspace Policy Institute
Global Information Infrastructure Commission
Internet Law & Policy Forum
Internet Policy Institute
London Business School Regulation Initiative
MIT Internet & Telecom Convergence Consortium
Social and Economic Implications of Information Technologies
UCLA Online Institute for Cyberspace Law & Policy
University of Texas Center for Research in Electronic Commerce
WIPO Arbitration and Mediation Center
WIPO Electronic Commerce & Intellectual Property

                                                            ii.      International Organizations and Institutions

1.      Asia-Pacific Economic Cooperation
European Commission
European Commission/Information Society
International Telecommunications Organization
International Telecommunications Union
Organization for Economic Cooperation & Development/Information Society
Pacific Telecommunications Council
World Bank Info/Dev Program
World Intellectual Property Organization
World Trade Organization

                                                          iii.      International Associations and other Private Sector Organizations

1.      Alliance for Telecommunications Industry Solutions
Computer Emergency Response Team
European Competitive Telecommunications Association
Global Business Dialogue on Electronic Commerce
IBM's Next Generation Internet site
Information Technology Association of America
International Chamber of Commerce
Internet Alliance
Pacific Telecommunications Council
PECC Telecommunications and Information Industry Forum
The Communications Group
The Institution of British Telecommunications Engineers
VON Coalition
World Information Technology and Services Alliance
World Wide Web Consortium

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
information is intended to be used

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
committees of the Working Group and send them to Chair with the views and recommendations of the Working Group

                                                            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
considers desirable

                                                        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
or to tentative Working Group decisions; and

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
presented on the record; and

                                                                                                                                    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


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