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

Kurt Pritz, July 11, 2013, 21:23:48 (UTC), 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.

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Comments (1)

  1. Hi Kurt, good to see you back in action.
    This whole ICANN thing is upside down. One reason people have been complaining about the multi-stakeholder model going down the toilet is that we’ve spent ten years watching it circle in ever-tightening swirls.
    We, the community, are ICANN. Not the Board, not the GAC, not the staff. We the community, as big as it wants to expand itself to be. That community has agreed that when it comes to domain names, it’s the GNSO which speaks its will. Your picture paints ICANN as the employer, which may or may not wish to indulge the GNSO, the employee (whom you have decided is a relative by marriage, handicapped).
    In reality, it’s the other way around. The community is not a disabled person that the ICANN staff must from time to time indulge. The community and the staff and the board and the GAC are not co-equals. The staff is the servant of the community. The Board too is the servant of the community. If the community says, hang on, you got the implementation of our policy wrong, the proper reaction from the staff should be an inquiry into how they got it wrong, and what steps they should take to fix it, not a lawyerly defense of the indefensible. I’m not saying that ICANN has to mimic the stepin-fetchit cringe that it uses to greet the slightest lifting of a brow from the eye of Sauron GAC, but refusal to heed the community is a dangerous impudence.
    I do agree with you about mutual respect; we should respect our elected officials (if they do a good job), we may call them our leaders, but we do so because they are the expression of the people’s will. They are rented and they work at the service of the people who elect them.
    But the people who with great ceremony pull the levers at ICANN, I’m now convinced, don’t understand the Internet. They don’t understand its power, or the source of its power. The Internet is the most far-reaching thing we as a species have ever invented (and all of us who use it have invented it) — more powerful than bombs, more compelling than philosophies. The multi-stakeholder model is a reflection of reality, not an a fragile thought experiment to be used by the powerful so long as its useful, then discarded. The Internet is at its core democratic, it is an agreement among people, all the people who use it. Some were heard to say after the revelations about NSA spying, “now why exactly is this One Internet a Good Thing?” Their agreement to use this Internet, instead of one of their own making, is now shaky, thanks to government high-handedness. No agreement, no Internet. It’s very real.
    The GAC and the Board and the ICANN leadership may think they can use the outward forms of multi-stakeholder decision-making for their own purposes, while ignoring its substance, and pet the disabled employee on the head when they’re feeling indulgent, but this really is the tail wagging the dog.
    From the reaction to the revelations from Wikileaks (a.k.a. Arab Spring) and the NSA surveillance regime we have just a taste of the fury of people when they realize that their lives are being toyed with. There is no doubt that Mr. Chehade and the governments he fears can make ICANN anything they want it to be, and placate and ignore and hypocrisize to their heart’s content, but they would be very mistaken if they think this will give them control of the Internet. People will form their own Internets, and interoperability will be lost, because they will have decided that the cost of One Internet is too high. And it will be very hard to win back that trust or put the Internet back together again.
    Kurt, I applaud your defense of dialog and civility; these are my values too. But this is much bigger than that. The ill-conceived appeasement of powerful interests (IGOs, PRISM-friendly whois validation at the behest of law enforcement), and the blind eye turned to the sovereign power of the community, is going to turn this into a place where no-one wants to live. And when people decide they don’t like it any more, they will leave, and ICANN will have a firm grip on — nothing.
    Multi-stakeholder democracy is what people want and expect in Internet governance, it’s what they’ve been told they’re getting. If the powers at ICANN don’t start obeying the community, even in its nascent, attenuated form called the GNSO — they will have perpetrated a blunder of historic proportions, one they won’t see fixed in their lifetimes.
    So thanks for a provocative post. It got me, at least, thinking about what’s going on.

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