[At-Large] [ALAC] ICANN staff repudiates community call for change on Morality & Public Order

Evan Leibovitch evan at telly.org
Tue Nov 23 00:12:59 UTC 2010

Hi Thomas,

On 22 November 2010 17:20, Thomas Narten <narten at us.ibm.com> wrote:

> One very important clarification. I believe your issue is not with
> staff, but with the board.  Blaming (and venting at) staff, especially
> when they are not at fault does not help anyone and makes it that much
> harder for ICANN as a community to get work done.

Interesting timing; I'll repeat a message I just sent to someone else who
made the point privately.

I am quite familiar with the Board decisions made at the retreat in this

They bring to mind an old computer slogan, "GIGO" -- Garbage In, Garbage
Out" -- that in my opinion applies well here. The Board was given poor and
in at least some cases, completely inaccurate source information upon which
to make decisions. Therefore, it is hard to fault (or even properly analyze)
conclusions based on that input.

It has become apparent in subsequent conversations that what decisions the
Board *did* made were based on (IMO) shoddy misrepresentations of the
working group proposals. As we speak there is a whole subcommittee in place,
just to try to address the gulf in perception between the CWG's
recommendations and the way these recommendations were preseted to the
Board. In its first meeting today, even an identification of the issues in
which differences existed took too much time for one meeting and progress is
not going well.

As only the most outrageous example, Staff told the Board that the CWG
proposed forcing the Board to vote on the moral acceptablity of each and
every TLD string -- EXACTLY THE OPPOSITE of what the CWG had proposed.

One could not fault the Board for reacting the way it did whan presented
with "background" information such as this.

The board resolution at
> http://www.icann.org/en/minutes/resolutions-25sep10-en.htm#2.9 is
> where the board recorded its decision, but there isn't a lot of detail
> there. But I can assure you that the board discussed a number of
> individual points in detail.
> The details at
> http://www.icann.org/en/topics/new-gtlds/explanatory-memo-morality-public-order-12nov10-en.pdf
> ,
> give some of the rational, but are not written in a way that necessarily
> makes clear where the board weighed in and to what degree,

Is the explanatory document considered to staff briefing, an official Board
statement, neither or both?

I can point to specific detail in this document that demonstrates GIGO and a
fundamental misunderstanding of the community input.

> I would suggest that before folk spend too many cycles responding to this
> in a formal manner, they would request that ICANN (board/staff) provide
> clarification (if it is needed) as to why the WG
> recommendations were not made. And, actually, wouldn't it be more
> appropriate to raise those questions first within the WG and have them do
> the followup? Presumably they aren't happy either, and that seem the natural
> place from which to raise any objections...

That is already happening and (based on my personal assessment of the
"drarfting" call done earlier today) not going very well. But the two issues
are not the same. The ALAC comment on the DAG goes beyond just the CWG
issues. My draft comments about the DAG refer to some components, such as
the Independent Objector, which were not dealt with by the CWG. Changes have
been made and/or resisted that make this component far more opaque and open
to gaming than existed in previous versions of the AG. In that respect the
document reflexts the views of At-Large and not necessarily of all groups
that participated in the CWG.

But back to the CWG for a moment....

The authors and gatekeepers of the DAG -- ICANN staff -- have interpreted
GNSO Guideline "H" in a manner that operates completely against the public
interest (in the longtime view of At-Large and other ICANN constituencies).
The curent implementation subjects applicants and objectors to spend vast
amounts of money on a needlessly litigious process, opening wide
opportunities for gaming while forcing ICANN to make (or subcontract)
judgements of comparative morality. The CWG was explicit in charting a path
that was simpler, less expensive and still accomplished the necessary goals
of ensuring that objections were properly evaluated well in advance of any
necssary Board action. It fully implemented Guideline H while receiving full
community consensus. Yet the Board never heard the case for that path -- I
know this because that's what we were told in subsequent conference calls
with TLD staff.

In the Explanatory Notes, the CWG's core proposal -- issue one -- is brushed
off with "we disagree" because of different interpretation, which forces one
to ask:  When there is a policy disagreement between the community's
bottom-up policy making process and the staff charged with implementing such
policy-making, who should prevail? The answer to this is, indeed, a matter
on which the Board may be taken to task and most certainly an Accountablity
and Transparency issue.

I invite you to listen to the recording of the "drafting team" meeting from
earlier today, and witness for yourself the futility of staff and community
simply agreeing on frames of reference. It's not a rift or a gap, it's a
gulf. How can At-Large have any confidence that what the Board
accepted/rejected was what had been put forward? If Board or Staff didn't
understand what we meant, why didn't it ask for clarification in advance of
making a decision?

Of course, going forward it would be appreciated if those who present such
vital community issues to the Board could actually be the people who
developed them and are capable of explaining and defending them, without
requiring a third-party filter.

> Discussions would be most productive if they could be focused on the
> individual recommendations and why or why they were not accepted.

Agreed. But that cannot happen properly when the recommendations are
presented in a manner that encourages their rejection or misunderstanding.
What was not accepted was not what we proposed, according the the best
research I've been able to gather. The community had no ability to review
(let alone correct) staff's notes to the Board in advance of the retreat.
Indeed, I recall being explicitly told that the Board was not planning to
make fiormal decisions at the retreat, and this affected our level of

Also, a short introduction to the difference in approach would have assisted
greatly in the understanding of specific recommendations, some of which were
interdependent. (Of course, in order to do that they would have had to have
been presented by someone who understood the proposal at a high level as
well as at the detail level.) I'd be delighted to discuss details with you
(or anyone else interested), but that's beyond the scope of the ALAC
response to the DAG which has to be brief and to the point. If it's too long
it'll get summarized by an editing process over which we have no control.

(Of course, you realize that with the loss of an ALAC liaison and without a
replacement process, the ability to present At-Large policy to the Board
directly and without filter is further diminished...)

- Evan

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