On Wed, March 27, 2013 2:06 pm, Alain Berranger wrote:
> Thanks Dan,
>
> ...very clear and for my own purpose quite educating...
>
> Can the current ICANN structure actually devolve into an international
> body
> while maintaining a judicial or regulatory body under US law only?
>
> Alain
>
> On Wed, Mar 27, 2013 at 4:56 PM, Dan Krimm <
[log in to unmask]> wrote:
>
>> Alain,
>>
>> Back for a while, in flight. I'm not sure exactly what you are saying
>> when you say:
>>
>> > The sharp line in the sand distinction in an organization between
>> policy
>> > and implementation is arbitrary if you have an independant judiciary
>> > function or an oversight/regulatory body above the organization.
>>
>> There is certainly a sharp line in the sand for example in USG
>> governance:
>> policy is made by Congress and implemented by the Administration. So,
>> statute defines the policy writ large, and regulations define the
>> execution of that policy in detail. And the independent courts
>> interpret
>> any fuzzy areas of statute, and oversee the regulation from the
>> standpoint
>> of the statute and case law, and with regard to procedural matters.
>>
>> In the case of ICANN, its authority comes from the USG executive branch,
>> but given the "internal" MS governance structure, the USG judiciary does
>> not currently get involved in policy/implementation issues "inside the
>> MS
>> bottle" and even the NTIA does not concern itself with "details" on any
>> sort of ongoing basis -- NTIA does not micromanage ICANN.
>>
>> So at present any such judicial or regulatory body outside ICANN is not
>> affecting ICANN's activities in any important manner. If there is going
>> to be such oversight, either it has to occur inside the bottle as a
>> feature of MS governance structure, or else the external oversight
>> functions would need to be activated somehow.
>>
>> I've argued recently that if this can't be fixed inside the bottle, we
>> should definitely explore activating that external authority. As you
>> say
>> (I think?), think outside the ICANN box (or bottle). One must of course
>> recognize that this would be a dramatic course of action, never having
>> occurred previously in the history of the organization. As Avri said
>> earlier, this would represent an admission that the MSM has in fact
>> failed, and the "parents" are being brought in to clean up the kids'
>> mess.
>>
>> ICANN was not supposed to operate as a normal (nonprofit) corporate
>> organization. That corporate framework was just supposed to set up an
>> operational infrastructure within which a completely new governance
>> structure could be set up. The corporate framework was not supposed to
>> get involved in the real meat of governance, just to execute those
>> policies after development by a bottom-up MSM and approved by the Board
>> (or sent back to MSM for further work).
>>
>> Staff was never supposed to have any significant policy-making power of
>> its own, AIUI. But, in the real world it is certainly true these
>> distinctions are fuzzy at best. In Congress for example, legislators'
>> policy-expert staff have a great deal of individual influence over the
>> writing of legislation. Of course, lobbyists also can have a great deal
>> of influence in writing legislation.
>>
>> Bottom line, don't think of ICANN governance as that of the NPOcorporate
>> framework itself. That's the bottle. What's in the bottle(MS policy
>> making) is supposed to be independent of the bottle as much as possible
>> --
>> the bottle is only meant to facilitate and implement policy, not to
>> direct
>> or constrain the formulation of policy.
>>
>> If this distinction has been lost, the MS governance process itself has
>> been lost, or at least co-opted. It's worth seeing if we kids can clean
>> up the mess on our own, but if not let's definitely consider if and when
>> to bring in the parents to do it for us. Alas.
>>
>> Dan
>>
>>
>> --
>> Any opinions expressed in this message are those of the author alone and
>> do not necessarily reflect any position of the author's employer.
>>
>>
>>
>> On Wed, March 27, 2013 11:48 am, Alain Berranger wrote:
>> > Dan,
>> >
>> > Thank you for that moment of opportunity!
>> >
>> > The sharp line in the sand distinction in an organization between
>> policy
>> > and implementation is arbitrary if you have an independant judiciary
>> > function or an oversight/regulatory body above the organization.This
>> > distinction has been "invented" at ICANN to protect GNSO's territory -
>> > policy - and leaving implementation to "staff"... It is a mine field,
>> from
>> > what I have seen since I joined ICANN in San José and the discussion
>> > between policy and implementation is flawed by design.... but makes
>> for
>> > passionate discussions...and will for a long time to be.
>> >
>> > I do not know who the ICANN ombudsman reports to (I have not done the
>> > research) but his office does not seem to have the authority or the
>> > resources to dictate to ICANN what to do. It should report to the
>> Board
>> in
>> > any case and maybe it does? But where is the bigger ICANN oversight?
>> How
>> > do
>> > you move from the current situation, as described by Dan, to a truly
>> > international organization (some of the very first words of our CEO
>> last
>> > summer)?
>> >
>> > Normally, a corporation or an NGO or a government dept has a policy
>> dept
>> > which makes evidence-based policy recommendations. These go to the
>> Board
>> > for decision, weighting in all the factors, internal and external,
>> that
>> > impact on the mission.
>> >
>> > We need to think outside the ICANN box on this one!
>> >
>> > Alain
>> >
>> > On Wed, Mar 27, 2013 at 2:13 PM, Dan Krimm <
[log in to unmask]>
>> wrote:
>> >
>> >> Alain,
>> >>
>> >> Thanks for the discussion.
>> >>
>> >> First, I think we should file all Ombudsman complaints (and
>> definitely
>> >> recruit allies), though I don't expect it would necessarily be a
>> silver
>> >> bullet solution -- holding it to that standard would make it appear
>> >> ineffective. But it builds a track record, a case that we are trying
>> >> everything pro forma, jumping through the hoops as expected, playing
>> the
>> >> procedural game, the bureaucracy, as specified. We climb the ladder
>> one
>> >> step at a time, appealing to ever greater authorities like in the
>> court
>> >> system. This is the step of establishing facts, formal basis of
>> >> objection, etc.
>> >>
>> >> Next, the difference between what you call closely vested interests
>> and
>> >> principled interests exhibits one well-known characteristic: the
>> >> "collective-action problem". Vested interests tend to be narrow
>> >> interests, whereas principled interests tend to be broad interests.
>> >> Narrow interests that are well-endowed are always at a relative
>> >> advantage
>> >> compared to broadly distributed interests, because while there may be
>> >> enough resources distributed broadly to counteract the concentrated
>> >> resources of narrow interests, there is a much higher cost to
>> >> motivating,
>> >> coordinating and marshaling distributed resources. The cliche that
>> >> comes
>> >> to mind is "herding cats". Especially, since all participation in MS
>> >> processes at ICANN is on a volunteer basis, narrow interests can much
>> >> more
>> >> easily allocate paid resources to this volunteer activity, whereas
>> >> distributed interests have a much harder time making this allocation.
>> >>
>> >> This dynamic has been present at ICANN as long as I've been involved,
>> >> which goes back to 2006. I suspect it has been this way from the
>> start
>> >> --
>> >> it's a structural dynamic that relates to the whole SO organizational
>> >> model.
>> >>
>> >> Soto your question, how does a MS organization balance this inherent
>> >> imbalance in the ability to participate effectively? The big-picture
>> >> answer is that the little guys at the bottom of the pyramid need to
>> be
>> >> given ways to neutralize the resource advantage. Not to be given any
>> >> special advantage above narrow interests, but to play on a level
>> playing
>> >> field.
>> >>
>> >> One obvious tactic is to create formal operational structures that
>> >> enable
>> >> bottom-up participation without doing anything to disadvantage those
>> >> with
>> >> the resources to participate in other ways. There has been some
>> effort
>> >> to
>> >> do so at ICANN, but this is constantly being undermined by the narrow
>> >> interests -- if policy is a "war" then opponents will seek to win the
>> >> war
>> >> any way they can, and that can involve tweaking the rules of the game
>> to
>> >> one's advantage, if they are being systematically set up to reduce
>> one's
>> >> advantage.
>> >>
>> >> So, if there is a structure to provide equitable participation,
>> finding
>> >> an
>> >> ad hoc alternative path to avoid that equity is again to one's
>> >> advantage,
>> >> to the extent that equity is a reduction in influence.
>> >>
>> >> Separation of power in a governance structure is imperative if equity
>> is
>> >> to be maintained. One big problem with ICANN is that there is little
>> >> evidence of the equivalent of an "independent judiciary" in the org
>> >> structure. If there is no distinction between the executive and
>> >> judicial
>> >> functions, then the executive hierarchy is unchecked.
>> >>
>> >> In short, ICANN used a conventional non-profit organizational
>> structure
>> >> with weak oversight from the USG (DoC/NTIA) to create a "bottle" in
>> >> which
>> >> the MSM was intended to operate. A sort of "virtual world" of
>> >> governance.
>> >>
>> >> But within that virtual world of governance, the staff has embedded
>> >> itself
>> >> in policy-making, rather than just being part of the bottle, which
>> was
>> >> presumably what it was intended to do. AIUI, staff was supposed to
>> >> provide infrastructure, not to get involved in the content of MS
>> >> activity.
>> >>
>> >> This Chinese Wall has been breached. So one prerequisite is that
>> staff
>> >> needs to be confined to acting as only the bottle, once again. In
>> order
>> >> for that to happen, there needs to be some independent oversight of
>> >> staff
>> >> to prevent policy-relevant activity.
>> >>
>> >> Several folks have mentioned the policy/implementation split. This
>> is
>> >> part of that problem: implementation can be considered part of the
>> >> bottle,
>> >> but policy must be seen as only "contents" of the bottle. Fudging
>> this
>> >> split is a major way to break through the Chinese Wall. So I think
>> this
>> >> point should be pressed firmly, front and center, not as some sort of
>> >> tangential point.
>> >>
>> >> Another conceptual problem is that ICANN in practice is not just an
>> >> "operational organization" -- the policies it makes can have profound
>> >> political ramifications, and thus politics gets into the picture in
>> >> practice, even if the terms of discourse center on operational
>> >> principles.
>> >>
>> >> There is frequent mention of keeping ICANN to just operational
>> matters
>> >> (I'm definitely a proponent of that mission), however it should be
>> >> acknowledged that such a position is inherently political: it's all
>> >> about
>> >> protecting the broadly-distributed interests against narrow
>> interests,
>> >> and
>> >> the broad-narrow contest is fundamentally political.
>> >>
>> >> I'm afraid I don't have the time to pound on ICANN's org structure
>> from
>> >> a
>> >> detailed theoretical basis (part of that difficulty of resource
>> >> allocation: I don't get paid to do this, and I need to get to do
>> >> *something*,so that competes for my time). I wish I could. The only
>> >> reason I can offer this contribution right now is that I'm traveling
>> and
>> >> currently waiting at the airport for a flight -- one fleeting moment
>> of
>> >> opportunity (more moments on the flight, a bit later).
>> >>
>> >> These are big questions, and deserve big answers. I don't have those
>> >> answers in any detailed form, because that takes a lot of work to
>> make
>> >> one's way through the forest at the individual-tree level.
>> >>
>> >> Suffice it to say that as the MSM at ICANN has "matured" the narrow
>> >> interests have found ways to twist both the bottle and the contents
>> to
>> >> their systematic advantage, which the MSM was intended to neutralize
>> >> (since they start with the advantage naturally, without special
>> efforts
>> >> to
>> >> privilege them).
>> >>
>> >>
>> >> At this point, we take the system as it stands and do everything
>> >> possible
>> >> to get it to work, but as I said earlier, I think we should be
>> prepared
>> >> to
>> >> address everything -- the bottle and not just the contents -- to push
>> >> for
>> >> the distributed-interest agenda.
>> >>
>> >> Dan
>> >>
>> >>
>> >> --
>> >> Any opinions expressed in this message are those of the author alone
>> and
>> >> do not necessarily reflect any position of the author's employer.
>> >>
>> >>
>> >>
>> >> On Wed, March 27, 2013 8:45 am, Alain Berranger wrote:
>> >> > Dear Robin, dear Colleagues:
>> >> >
>> >> > I agree that GNSO should file too... but will they (Maria's
>> question)?
>> >> Two
>> >> > complaints (GNSO + NCSG) are better than one (Avri's statement)...
>> >> >
>> >> > 3 questions:
>> >> >
>> >> > 1) From my little experience, I find the ICANN Ombudsman process
>> >> > ineffective - it is time consuming (we are volunteers/the other
>> side
>> >> is
>> >> > paid), a lot of pain for usually not much gain! Not saying we
>> should
>> >> not
>> >> > do
>> >> > it, just wondering out loud if we have a chance at all of being
>> >> > successful?
>> >> > or even partially successful? or if we should invest our time in
>> other
>> >> > ways?
>> >> >
>> >> > 2) Robin, I fully understand your TM arguments and they make sense
>> to
>> >> me
>> >> > as
>> >> > a non-specialist. Can you please elaborate a bit on who the
>> >> "*powerful
>> >> > political interests"* you refer to are? This may help me and others
>> at
>> >> the
>> >> > base of the NCSG pyramid understand the context and the issue
>> >> better...
>> >> >
>> >> > 3) Did Maria fill a complaint to the Ombudsman? and where is it at
>> >> now?
>> >> >
>> >> > 4) I also have a point of view or perhaps an hypothesis to share,
>> from
>> >> > many
>> >> > years of applied MS practice funding developmental and applied
>> policy
>> >> > research in developing countries - may not be relevant but here it
>> is
>> >> > anyway for feedback and reflexion...
>> >> >
>> >> > I see the MS process as one of fundamental inclusion and
>> >> participation...
>> >> > It is more relevant than ever because of the internet and the
>> networks
>> >> > that
>> >> > spring from it...
>> >> >
>> >> > ...the more you are at the bottom of the pyramid ($, knowledge,
>> assets
>> >> > like
>> >> > land ownership, cash, access to resources, etc...) the more you
>> seek
>> >> > participation as a way of climbing up the pyramid (getting yourself
>> >> out
>> >> of
>> >> > poverty). The higher you are in the pyramid, the less you welcome
>> >> > participation because it is disruptive at the very least.
>> >> >
>> >> > Inherent to this "MS model" is the power struggle between closely
>> >> vested
>> >> > interests (in our case the CHP and part of the NCHP) and higher
>> level
>> >> or
>> >> > principled interests (in our case the rest of NCHP). Not that
>> there
>> >> are
>> >> > not closely vested interests as well as principled interests
>> >> everywhere
>> >> in
>> >> > an MS organization, including ICANN.
>> >> >
>> >> > Closely vested interests are very time sensitive (profits, status
>> and
>> >> > privileges are lessened by indecision and ambiguity - the rules of
>> the
>> >> > game
>> >> > are not clear driving the the "powerful political interests"
>> crazy!)
>> >> while
>> >> > principled interests are less time sensitive (although short term
>> >> costs
>> >> > are
>> >> > usually huge too) because they are universal.
>> >> >
>> >> > So here comes a question: How does an *operational organization*
>> like
>> >> > ICANN
>> >> > wishing to become better at MS behavior (we can assume that anyway
>> for
>> >> the
>> >> > eternal optimist) resolves the issue of closely vested vs.
>> principled
>> >> > interests?
>> >> >
>> >> > They are by nature in tension and should be... What is essential is
>> to
>> >> > keep
>> >> > a balance... For instance, taking just one of the financial
>> >> dimensions,
>> >> it
>> >> > is the DNS supply side that keeps feeding extra cash into ICANN and
>> >> the
>> >> > DNS
>> >> > demand side does not have the means to bring this in balance,
>> although
>> >> it
>> >> > is the market.... it is a bit of a class struggle (or concentration
>> of
>> >> > power differentials on the supply and demand sides) in the sense
>> that
>> >> if
>> >> > you do not keep this delicate balance the system will eventually
>> fail.
>> >> It
>> >> > is a matter of time!
>> >> >
>> >> > I for one would like to see ICANN survive as an MS organization,
>> being
>> >> > able
>> >> > to keep the "rapport de forces" in equilibrium.
>> >> >
>> >> > I would love to hear a criticism of this model's assumption and
>> also
>> >> > perhaps if it can help in bringing back balance... or is it simply
>> a
>> >> > theoretical treatment?
>> >> >
>> >> > Best, Alain
>> >> >
>> >> > On Wed, Mar 27, 2013 at 5:51 AM, Horacio T. Cadiz <
[log in to unmask]>
>> >> wrote:
>> >> >
>> >> >> I support filing a case.
>> >> >>
>> >> >>
>> >> >> --
>> >> >> Bombim Cadiz
>> >> >> *******************************************
>> >> >> * Free/Open Source Software (FOSS) -- *
>> >> >> * No windows. No gates. It is open. *
>> >> >> * No Bill. It is Free. *
>> >> >> *******************************************
>> >> >>
>> >> >
>> >> >
>> >> >
>> >> > --
>> >> > Alain Berranger, B.Eng, MBA
>> >> > Member, Board of Directors, CECI,
>> >> >
http://www.ceci.ca<
>> >>
http://www.ceci.ca/en/about-ceci/team/board-of-directors/>
>> >> > Executive-in-residence, Schulich School of Business,
>> >>
www.schulich.yorku.ca
>> >> > Treasurer, Global Knowledge Partnership Foundation,
>> >>
www.gkpfoundation.org
>> >> > NA representative, Chasquinet Foundation,
www.chasquinet.org
>> >> > Chair, NPOC, NCSG, ICANN,
http://npoc.org/
>> >> > O:
+1 514 484 7824; M:
+1 514 704 7824
>> >> > Skype: alain.berranger
>> >> >
>> >> >
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>> >
>> > --
>> > Alain Berranger, B.Eng, MBA
>> > Member, Board of Directors, CECI,
>> >
http://www.ceci.ca<
>>
http://www.ceci.ca/en/about-ceci/team/board-of-directors/>
>> > Executive-in-residence, Schulich School of Business,
>>
www.schulich.yorku.ca
>> > Treasurer, Global Knowledge Partnership Foundation,
>>
www.gkpfoundation.org
>> > NA representative, Chasquinet Foundation,
www.chasquinet.org
>> > Chair, NPOC, NCSG, ICANN,
http://npoc.org/
>> > O:
+1 514 484 7824; M:
+1 514 704 7824
>> > Skype: alain.berranger
>> >
>> >
>> > AVIS DE CONFIDENTIALITÉ
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>>
>
>
> --
> Alain Berranger, B.Eng, MBA
> Member, Board of Directors, CECI,
>
http://www.ceci.ca<
http://www.ceci.ca/en/about-ceci/team/board-of-directors/>
> Executive-in-residence, Schulich School of Business,
www.schulich.yorku.ca
> Treasurer, Global Knowledge Partnership Foundation,
www.gkpfoundation.org
> NA representative, Chasquinet Foundation,
www.chasquinet.org
> Chair, NPOC, NCSG, ICANN,
http://npoc.org/
> O:
+1 514 484 7824; M:
+1 514 704 7824
> Skype: alain.berranger
>
>
> AVIS DE CONFIDENTIALITÉ
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