RE: [registrars] Terms of Reference for GNSO review

["Bruce Tonkin" <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>]

Hello Ross,

Before responding - I also wish to clarify that my comments are as a
member of the registrars constituency.  I am not commenting as GNSO
chair, or as a Council rep.

> I have some preliminary questions and concerns that I've 
> documented below. I'm presenting this list as a 
> representative of Tucows. As a council member, I would also 
> appreciate hearing more from the constituency prior to the call.
> 
> Comments:
> 
> page 3, "Representativeness"
> 
> - - regarding whether or not there are barriers to the 
> participation all who are willing to contribute to the work 
> of the GNSO. This should be clarified to specify 
> "inappropriate barriers". The registrar constituency, for 
> instance, has a set of bylaws that limits membership to 
> accredited registrars. It would be inappropriate if the GNSO 
> had this same limitation (although it would be much easier to 
> get problems solved ;)
> 

Note participation is not just via membership in constituencies.  The
GNSO does have public input processes, including public forums at
physical ICANN meetings, and web based public comment forums on policy
issues.

I think it is reasonable for a constituency to have membership rules,
the review should however look more generally and see if there are
barriers for someone that does not meet the requirements of any
constituencies.  Note that the bylaws do provide for a group to put a
proposal to form a new constituency.   This barrier has yet to be
tested.


> - - regarding whether the ICANN community is satisfied with 
> the policy advice it receives from the GNSO. This needs to be 
> amended to question whether the ICANN Board is satisfied with 
> the policy recommendations it receives from the GNSO. As you 
> know, the GNSO doesn't provide policy outside of the PDP, of 
> which the board is the sole recipient.
> 

Agreed.

> - - regarding whether other supporting organizations and 
> advisory committees have effective opportunities to 
> participate in the policy development process. This question 
> may be more useful if we seek to discover perceptions by 
> asking in a modified format if these other bodies "believe 
> they have an effective opportunity to participate...".
> While somewhat unquantifiable, it will likely uncover 
> additional ways that we can accomodate the unique 
> requirements of these groups in our processes.

The GNSO policy development process is via:
- constituency input
- public input

The GNSO has welcomed active participation from ALAC liaisons in task
forces, however formally another supporting organisation or advisory
committee would fall into the "public input category" above during the
GNSO policy development process.

The GNSO does seek to keep the GAC informed of its work so that the GAC
has prior notice of any policy issues.

After the GNSO makes a recommendation to the ICANN Board, the Board can
seek the advice directly of other supporting organisations and advisory
committees.   These organisations report to the ICANN board rather than
the GNSO.

> 
> page 3, "Authority"
> 
> - - regarding whether the GNSO Council Bylaws need amending 
> in any way.
> The answer to this question should come as one of the 
> possible results of this review. It is unclear what we seek 
> to discover by simply asking whether or not the bylaws need 
> to be amended and therefore, the question should either be 
> made more specific or probably more appropriately, just 
> removed entirely.


Agreed.  It would seem that we should be seekig recommendations for
improvement, and separately seeing if the implemetnation of these
recommendations would require a by-law change.

> 
> page 4, "Authority"
> 
> - - regarding whether there is fairness within the 
> constituencies. This is a very soft and subjective question. 
> It would be useful to define what is intended by the term 
> "fairness" or undertake a more detailed examination of the 
> constituencies and there processes to ensure that the 
> question is done justice.

This use of the term "fairness" is throughout the text fo the bylaws,
but is never defined.   I guess the core statement of this is below:

Ie
"ICANN and its constituent bodies shall operate to the maximum extent
feasible in an open and transparent manner and consistent with
procedures designed to ensure fairness."

For the review I think it is probably OK if people state whether they
think the processes were fair, and if not, explain why.

> 
> - - regarding whether weighted voting skews policy outcomes. 
> Of course it does. This is why it was implemented. This 
> question should be replaced with one that attempts to 
> discover if the objectives behind weighted voting are being 
> met and whether or not adjustments to the weighting should be made.

Good point.

The bylaws state:
"The number of votes that members of the GNSO Council may cast shall be
equalized so that the aggregate number of votes of representatives
selected by the Constituencies (currently the gTLD Registries and
Registrars) that are under contract with ICANN obligating them to
implement ICANN-adopted policies is equal to the number of votes of
representatives selected by other Constituencies."

There is nothing stopping members of an ISP constituency agreeing to
enter into a binding contract with ICANN with respect to issues such as
IP address WHOIS information :-)

> 
> - - regarding an examination of the appropriateness and 
> effectiveness of the relationships between ICANN staff and 
> the constituencies. This should be expanded to include the 
> relationships between ICANN staff and the council, ICANN 
> board and the council and ICANN board and the constituencies.
> 

Agreed.

> page 4, "Effectiveness"
> 
> - - regarding an examination of the benefit to all affected 
> parties of the use of ICANN time and resource in developing 
> policy positions. It is unclear what aspect of ICANN this 
> question is probing. ICANN Staff?
> Community? GNSO? Board? This should be clarified.
> 

I assume ICANN staff.

> - - regarding whether or not the PDP process should be 
> amended. Again, as with the bylaws amendments, these answers 
> should come as a result of this process.

Agreed.   I suspect that there is not a lot of understanding in the
community of the detailed process, and thus it would be hard to get
direct input on this.

The complaints that I hear raised are about the time taken to work on a
policy issue.  Now is this a function of the PDP process, or a function
of the difficulty of the issue?


> 
> - - regarding whether an analysis is required about whether 
> ICANN is satisfied with the advice it receives from the 
> constituencies. This question does not reflect GNSO 
> processes. It should be clarified to state whether or not the 
> ICANN Board is satisfied with the policy recommendations it 
> receives from the Council and possibly expanded to include a 
> question asking whether or not the Council is satisfied with 
> the participation that it sees from the constituencies.

Agreed. 

> 
> page 4, "Transparency"
> 
> - - regarding whether policy decisions are made in a way 
> which demonstrates that participants are accountable to the 
> Internet community. This question needs to be clarified to 
> adequately define the term "accountable". Policy decisions 
> are made by ICANN's board. To the extent that the GNSO 
> participants assist in developing recommedations for the 
> board, they typically represent specific interests or 
> entities within the process - not the internet community in 
> general. Generally speaking, this is done with the intent of 
> improving the policies by which we pursue ICANN's mandate, 
> but it is unclear that the GNSO has a specific accountability 
> to the general internet community.

Yes the GNSO Council is directly accountable to the constituencies, and
the majority of the Council is elected from the constituencies.   Some
Board members are also elected by the GNSO (2 in fact) so there is a
level of accountability here as well.


> 
> Further, this question seeks answers regarding the use of 
> "statements of interest". This is a new term to me. The 
> author should define what specific process or instrument they 
> are referring to.

I assume that this may be a reference to confilcts of interest with
respect to individual participatns in the Council or task forces.  I
note that registrar reps are required to maintain a conflict of interest
statement.

> 
> page 5, "Quantifying Representativeness, Authority, 
> Effectiveness & Transparency"
> 
> - - regarding measuring these concepts objectively and 
> subjectively. Small clarification - the comparisons described 
> should be made against other
> *similar* organizations.
> 
> - - regarding the examination of the PDP. Additional 
> measurement of actual process output should be contemplated, 
> specifically, impact and effectiveness of implemented 
> policies and so on.
> 

Agreed.


Regards,
Bruce