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Guest post: Pritz on policy vs implementation and the brother-in-law test

Kurt Pritz, July 11, 2013, Domain Policy

A current, important debate in internet governance and operation of the multi-stakeholder model asks: when do the bottom-up policy-making volunteers let go and when do the staff policy implementers take over?

Drawing that line to the satisfaction of everyone seems impossible. That is because there is no bright line — the development and implementation of policy is a task requiring the constant attention and cooperation of policy makers and implementation teams.

Is an ICANN action a policy position? Or is it a mere implementation detail? Labels almost never work, especially one-word labels. Since when are ICANN issues black or white?

We’ve stopped discussing the issues, it is easier to discuss the labels: is it “policy” or “implementation”?

The multi-stakeholder model depends on communication, consideration and collaboration

ICANN has a rich history of its stakeholders butting heads with the Board and both butting heads with the staff: long lines at microphones, speaking in hyperbole, and wringing of hands that the multi-stakeholder model has failed. ICANN also has a rich history of staff-stakeholder collaboration in the formulation of policy and in the implementation of policy.

The initial Inter-Registrar Transfer Policy was little more than a framework. Then a team of ICANN staff and TLD registry operators met over a period of months and developed the implementation model. It really didn’t matter where the policy making ended and the implementation started. There was a resolve that there should be an easy-to-follow way for registrants to transfer names and there was teamwork to get that accomplished.

There are parallels in the “real” world. In 1990, the United States enacted the American with Disabilities Act (ADA). The ADA itself was little more than a framework also: American employers should make “reasonable accommodation” for those with a “disability.” What was a reasonable accommodation? And what qualified as a disability?

Over a period of many years, those questions have been answered through a series of many court cases and regulations. But in 1990 employers were trying to figure that out.

At the time, we worked on developing clear criteria that would let our employees know what was covered by the ADA. After failing at that, we developed an approach to treat employees as you would your brother-in-law. You are deferential to your brother-in-law (because you have to face your sister) but not totally deferential (after all, he is making love to her). You just treat him better than the letter of the law requires.

So when your employee comes up to you and asks for better lighting at his workstation, you don’t try to parse whether you are required to accommodate near-sighted employees. You say, this is my brother-in-law, and I will listen to his request and carefully consider it.

This is how a public participation model works. The stakeholders are not strangers to one another and the model only works if there is mutual trust and respect.

If someone says, “I want to be heard,” she is generally listened to. (That doesn’t mean discussion is never ending. If that same person wants to be heard again, and says the same thing without change, she will be disregarded. If she continually repeats the same demand and content, she will be shunned.)

Policy versus Implementation should be Policy and Implementation

Take the example currently debated. There is a new gTLD policy element (approved in 2009) that states:

Strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law.

How does one implement that? The implementation of trademark rights protection mechanisms were developed after years of community/staff consultation, “implementability” studies, draft positions, memoranda describing potential solutions and the reasoning behind them, debate, and discussion.

When things were apparently settled, new parties joined the ICANN discussion — they were welcomed as were their opinions. ICANN was richer because there were new participants in the model. New implementation models were written. Finally, there was an indication the discussion was spent. The work was “said and done.”

Then, apparently, not all was said-and-done. After the gTLD program was launched, there were new suggestions and participants. ICANN decided to entertain those ideas. After a round of community feedback, a subset of the new suggestions was recommended by ICANN for inclusion into the implementation plan for new gTLDs.

ICANN’s policy makers, the GNSO, weighed in, agreeing with many of the conclusions but picking one of the recommendations and saying, “we’d like to talk a bit more about this one because we don’t fully understand its implications and effects.” (Unfortunately, the GNSO didn’t say exactly that, it sounded more to me like, “this item is policy and therefore it cannot be implemented without our consensus opinion.”)

Now, if my brother-in-law says he wants to talk about something some more, even if he doesn’t give a good reason, I am ready to indulge him. But ICANN did not indulge the GNSO. Now, we are in a policy versus implementation discussion: what work is the province of policy makers, and the province of implementers? The GNSO is considering ICANN Bylaw changes to ensure they are heeded.

Bylaw changes are not the lynchpin to multi-stakeholder model success. Putting rules in place for how and when to listen never work. There will always be exceptions. (Another whole piece can be written on how the rules governing communications between ICANN and its Governmental Advisory Committee have failed to facilitate the success of the multi-stakeholder model.)

Processes and procedures (as they are currently described in the Bylaws) are important. We must have clear rules for creation of consensus policy, with timelines and borders to ensure that issues are addressed and rights are respected.

But the operation of the multi-stakeholder model is more complicated than following those processes. The success of the model depends on the mutual trust and respect of the participants, and the ability to actively listen and to understand what is meant, even if that is not exactly what is said.

Rather than create new rules or discuss how one side can prevent the other from abusing its position, the volunteers, staff and Board should look inwardly to improve its own listening and communicating.

You’re my brother-in-law. I am ready (more than ready) to disagree with you, but first I am going to listen to what you have to say.

This is a guest post written by Kurt Pritz, ICANN’s former chief strategy officer. He is currently an independent consultant working with new gTLD applicants and others.

ICANN to adopt most of the new gTLD “strawman”

Kevin Murphy, March 20, 2013, Domain Policy

ICANN has given a boost to trademark owners by saying it will implement most of the controversial “strawman” solution to extend protections under the new gTLD program.

In a video just posted to ICANN’s web site, CEO Fadi Chehade said that Claims 2 and the Limited Preventative Registrations proposals have been thrown out for the moment as matters requiring policy work.

But many more aspects of the strawman have been classed as “implementation” and will go ahead.

This means:

  • A mandatory 30-day notice period before sunrises begin.
  • Trademark Claims extended from 60 to 90 days.
  • Tradermark owners will be able to add up to 50 confusingly similar strings to each of their Trademark Clearinghouse records, provided the string had been part of a successful UDRP complaint.

Chehade said:

We are going to implement a 30 day notice period before each sunrise. We’re also going to extend the Trademark Claims period from 60 to 90 days. The Claims 2 period which was discussed frankly did not receive a lot of support from many of you so we’re going to let that go for now.

And then finally there was a lot of discussion about extending the Trademark Claims protection to abuse names and after much debate on whether this is a new program or an extension of what we’re doing we came to the conclusion it is an implementation extension and we will move forward with that.

In the video, Chehade also says that ICANN is on track to start publishing the first results of new gTLD initial evaluations this Friday, as expected.

But he warned that if applicants and registrars do not agree on the proposed Registry Agreement and Registrar Accreditation Agreement, ICANN might miss its April 23 deadline for approving the first gTLDs.

He said:

Let me be clear: if we do not come together towards an agreement on these things we might experience a delay in the program, which I have committed to you that we will be ready for on April 23rd. So from an ICANN staff standpoint and operations standpoint we remain ready to request new gTLDs for delegation on April 23rd. But without these agreements we might experience a delay.

He directly referenced the massive sticking point in these discussions: the fact that ICANN wants to introduce a unilateral right of amendment into both contracts.

Here’s the full video:

Policy versus implementation… shouldn’t that be complexity versus simplification? [Guest Post]

Stéphane Van Gelder, January 11, 2013, Domain Policy

ICANN has just published a paper that attempts to frame what is policy and what is implementation. Now, if you’re a normal person, your natural response would be “who cares?”.

But if you’re an Icannite, chances are you’re already in a bit of a state. Because the question of what, within the ICANN decision-making process constitutes policy development, and what should be considered implementation of policies that have already been developed, is one that has grown contentious indeed in recent times.

The theory behind ICANN is that it works by bringing together groups of people from various backgrounds or with various interests and then waiting until they all take a decision. That can then become part of the sets of official guidelines that govern the way the Internet’s addressing and numbering system works.

In this obvious oversimplification of the ICANN model, the group of people are called stakeholders and the decisions they take are policies. The way they arrive at those decisions goes by the sweet name of “bottom-up, consensus-driven, policy development process”.

This is what makes ICANN such a unique governance body. One that (in theory) takes into account the opinions and inputs of all interested parties.

It is designed to prevent one view from dominating all others, be it the opinion of industry insiders, politicians or even free-speech advocates — all groups with legitimate interests, but all groups that, when they find themselves in the ICANN fish pond, have to listen to the other fish.

Except that they don’t always want to. And in recent years, as the pressure on the ICANN model has increased because of the new gTLD program, there have been several occasions when some thought it would be better to cut through (or go around) the policy development process to get things done.

This is where the policy versus implementation debate comes from. It’s a boring one to most balanced human beings, but a crucial one for those who rate ICANN and the work that goes on there as a major interest.

The new staff paper is a welcome initiative by ICANN to try and make real progress on a debate that has, up until now, simply exacerbated tensions within the ICANN community.

It’s a first step. A kind of “state of play” view of what can at present be considered policy within the ICANN system, and a first attempt at separating that from implementation.

It’s only eight pages long (and if that seems long to you, believe me, as far as ICANN papers go, this is the equivalent of a 140-character tweet), but if you can’t be bothered to read it, I’ll break it down for you in just one word: complexity.

A first step towards much needed simplification

The real issue behind this debate is the overly complex thing that ICANN has become. Don’t agree? Even though staff need to write an eight-page report just to help everyone, including themselves, understand what “policy” means?

Read the paper and marvel at the number of different processes that could be termed policy within ICANN, including something called “little p policies”, as opposed to “Capital P Policies”. Then there’s “formal policies”, “operational policies” and even “consensus policies”.

Just in setting that scene, the staff paper is useful!

Let’s hope it leads all ICANN stakeholders to the clear realization that this can’t go on any longer. ICANN must simplify its processes so that there is no longer a need to spend time and energy splitting hairs on deciding things like: when in the ICANN universe is policy making actually making policy, and when is it implementing policies that have already been made?

This is a guest post by domain name industry consultant Stephane Van Gelder of Stephane Van Gelder Consulting. He has served as chair of the GNSO Council and is currently a member of ICANN’s Nominating Committee.