[Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus

Wed Jan 11 17:21:59 UTC 2017

Sent from my LG G4
Kindly excuse brevity and typos

On 11 Jan 2017 4:27 p.m., "Phil Corwin" <psc at vlaw-dc.com> wrote:

We flatter ourselves too much if we believe that the precise wording of any
question will constrain anyone responding to it from putting forth whatever
point of view they wish to convey in an answer regardless of that wording.
The precision required for the wording of a questionnaire is of a lesser
degree than that required for final  recommendations.

SO: With respect, I will say you probably didn't put the above to practice
then since you opposed a "minor" edit that asked for factually possible
problems; If you indeed recognise that the responses received will merely
be the beginning of a long process to final recommendation then you(we)
should not have reacted to mere questions the way you(we) did - The
questions could have been as flexible and clear as much as possible so long
as it's requesting for facts. - we have an opportunity to produce some
encompassing outcome on jurisdiction matter but we already blew it on fears
that I have no idea where it's coming from. It would have made sense if we
spent the energy in opposing responses that goes the direction of change in
jurisdiction than spending it on not even granting a listening ears in the
first place by rejecting certain questionnaire construct.

Finally, it is not the job of the chair to “make all happy”. Indeed, I have
yet to participate in any policy process anywhere that makes all
participants equally happy. Further, the general rule of thumb regarding a
policy process is that the final product is probably fair if participants
in its shaping are equally unhappy about what they had to concede to reach
consensus agreement.

SO: I wonder how you will do the analysis to conclude that all sides are
equally unhappy in this particular event(are you unhappy? If yes why?). I
also wonder what outcome of question 4 indicates that views were applied in
a balanced way. (Ah okay, for instance I got the 4a, 4b numbering
suggestion accepted :-) ).

It is the job of the chair to move us toward consensus, not unanimity of
happiness, and to fulfill our charge within the allotted timespan.

SO: It's the job of the chair to first observe the discussions (which
incudes listening to everyone "both on the list and on call",
considering/addressing issues raised, considering participation diversity
et all) and then check consensus.

Even though i may have a different "ultimate" goal from the 3 that voted
against, I definitely would have made a number 4 if I were on the call
because I did not observe a healthy discussion on this topic. - to gang-up
against just a question in the manner observed isn't IMO an healthy one for
MS improvement.

Overall we need to face the reality of lack of balance (which is
unavoidable) but we need to ensure its negative impact is reduced as much
as possible. I will again pray wisdom for the Co-Chairs.

Regards

Regards,

Philip

*Philip S. Corwin, Founding Principal*

*Virtualaw LLC*

*1155 F Street, NW*

*Suite 1050*

*Washington, DC 20004*

*202-559-8597/Direct*

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*202-255-6172/Cell*

*Twitter: @VlawDC*

*"Luck is the residue of design" -- Branch Rickey*

*From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
bounces at icann.org] *On Behalf Of *parminder
*Sent:* Tuesday, January 10, 2017 11:31 PM
*To:* Mueller, Milton L; ws2-jurisdiction at icann.org

*Subject:* Re: [Ws2-jurisdiction] Epistemological basis of sub-group's
working - and my objection to the so called consensus

On Wednesday 11 January 2017 04:48 AM, Mueller, Milton L wrote:

Actually you are misrepresenting the situation, Parminder.

At least two of the “no” votes to which you refer were not votes against
proceeding with the version of Q4 we ended up adopting, they were
expressing preferences for small alterations in wording.

You are wrong, or rather misrepresenting things, Milton. Not just two "no"
votes were expressing preference for what you call as small alterations in
wording,* in fact,  all three "no" votes (including mine) were calling for
just that small alteration. *

Which brings us to the key question: why did the chair rush calling
consensus on one text, rather than, as is his job, to try to persuade
acceptance of small changes that could make all happy? I was quite happy
with Seun's alternation to David's text, and voted for it. But suddenly,
majoratarianism, rather than a spirit of compromise, took control, and a
consensus was triumphantly called, and then celebrated. Is is not the
Chair's job to see if we could arrive at a text that all agreed, when, as
you say, the nay sayers only wanted small alterations of wording.

This, especially in a context that the wording of the question was a hotly
contested subject for more than a month here. And the chair could notice
the developed - developing country divide in the voting. Was it then proper
for the Chair to bludgeon the group into a quick "consensus" rather than -
at this last stages where the positions had come rather close, and we were
ready to work on David's text (which itself was unfairly forced on us, in
preference to earlier texts, and subsequent amendments to David's) -- seek
compromises and a text that everyone agreed.

Also please notice that Seun and I proposed amendments to David's text well
in advance over the elist. These were not put on the screen. I kept
insisting that we start with the 7 alternatives of the last call, and also
put Seun/ my alteration on the screen. I repeatedly got no response from
the chair. I then cut pasted the text thrice in the chat window - still no
response. Vidushi make strong appeals thrice to put these texts on the
screen, but to no avail. I had to practically call a point of order to get
the chair to then, very belatedly, put that text on the screen. But no
attempt was made - which is a chair's job to do - to see if compromise
could be got. We had much come down from our position to begin with last
call's 7 options - or in fact were forced to come down - and were ready to
work on David's text, suggesting small changes. But the chair, and
following him the group, made no effort to try compromises.

I think this was a miscarriage of an open participatory process.

parminder

*From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
bounces at icann.org <ws2-jurisdiction-bounces at icann.org>] *On Behalf Of *
parminder
*Sent:* Tuesday, January 10, 2017 1:52 PM
*To:* ws2-jurisdiction at icann.org
*Subject:* Re: [Ws2-jurisdiction] Epistemological basis of sub-group's
working - and my objection to the so called consensus

I would also like it to be on record that the so called consensus was
decided on basis of 11 to 3 votes, which were neatly divided along the
lines of developed countries based persons and developing country based
ones. All those who voted "yes" to the final formulation were from
developed countries, overwhelmingly US based (which has current
jurisdiction on ICANN), and all those from developing countries voted "no".
There were only three participants from developing countries, and all voted
"no". I must however state that many from developed countries did not vote
either way.

I am all for friendship and camaraderie, but there is a limit to playing
down such significant facts and differences, especially in relation to such
an important geopolitical issue as the jurisdictional oversight over ICANN.
This particular fact of how voting was split cannot be ignored.

parminder

On Tuesday 10 January 2017 11:59 PM, parminder wrote:

Dear Co-Chairs/ All

I understand that the Chairs will right now be busy drafting a report to
submit for the CCWG meeting tomorrow indicating consensus on the
questionnaire as seems to have been agreed in today's call. Since I made a
formal objection to the process, I will like to clarify the basis of my
objection, putting it on record.

My objection mainly arises from the fact that that the jurisdiction
sub-group seems to be deciding a new, innovative, and completely unjust,
rule for its working. It apparently has decided that in taking public/
community input into its work, *it will accept only such inputs that are
fully and exclusively based on actual occurrences/ instances **that can be
proven to have happened in the past*. I expect that, in the typical
creeping acquisition way, this new rule would then also be applied to the
discussions, and to making recommendations, by the group itself.

This is a unique and significant epistemological stance. Importantly, such
a stance was not applied to the work of work-stream I of CCWG, for coming
up with a new accountability mechanism. It was never insisted that only
such "facts" as arise from actual occurrences in the past can be the basis
of suggesting any institutional change.

Even in other groups of work-stream 2, like those dealing with
transparency, human rights framework, etc, it is not a condition that any
institutional change has to be based on facts arising from actual
"verifiable occurrences" in the past, and the implications arising thereof.
I have some passing acquaintance about the stage of outputs from the
subgroups on transparency and human rights, and I know for a fact that *there
has never been a condition that any institutional innovation can only arise
from "verifiable occurrences" in the past, absent which no change can be
suggested or made*.

In the circumstance, it is question of fairness and natural justice, to ask
why a jurisdiction related institutional change can only be based on facts
that directly arise from clearly verifiable past occurrences. What is so
special about jurisdiction related institutional changes - which is the
mandate of a separate sub group, and about which issue many actors were
insistent since the very start that it should be given full consideration?

I am happy to shown otherwise, but right now I can only think that this is
being done with the intention to fend off the discussion going in
directions that certain actors fear would not serve their interests. If one
fears losing a case on cannons of reason, justice and preponderance of
public opinion, the best thing to do - if one is powerful enough -  is to
simply change the rules of how a decision process will be conducted, and
what are the legitimate or illegitimate inputs into it. That is exactly
what has been done in this case. It strains the credibility of ICANN's so
called open process; whose first rule seems to be, throw so much resources
at any important issue as to overwhelm any discussion about it, and then,
if "problems" persist, simply change the rules and frame new ones, as has
been done in this case. I cannot accept that an ICANN WG cannot trust the
community/ public to give their free and unconstrained views on a key issue
central to its mandate. And that it should resort to making novel, and
absurd rules, about what can and what cannot be said by the public/
community as inputs into its work. This especially when in very similar
parallel processes there exists no such rule. This new rule changes the
very basis of the working of this sub group, and almost completely
hamstrings it.

parminder

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