[Ws2-transparency] Follow up from yesterday's call

Fri Jan 13 20:53:37 UTC 2017

Thanks for your comments, which we are always happy to receive.

Regarding the specific matters that were raised - on open contracting and
the duty to document, we're happy to reopen the discussion on those, which
is what I intended to do with my email. Please note though - we need to
keep the focus on these two issues, and not expand out to a broader
discussion of resource allocation in general. This broader question has
been discussed several times at the working group level already, and we
eventually added in several caveats to the recommendations to make them
more flexible in this regard (ex. changing "as soon as possible" to "as
soon as reasonably possible"). It was also noted, if you'll recall, that
this will be an area where ICANN staff will likely want to weigh in, a
process that can go forward during the public comment phase.

Regarding questions around resource demands for open contracting and the
duty to document that you raised, I'll first note that I don't really see
open contracting as creating much additional work at all - it costs
virtually nothing to upload and host that kind of material, and is
relatively quick and painless to do.

On the duty to document, I think, the question of resources is more
germane, but it's important to note that the Recommendation phrases this
very carefully. We don't request full records of every conversation, but
only the "organization, functions, policies, decisions, decision-making
processes, procedures, and essential transactions". Mostly, I suspect that
this material is already being generated. This just formalizes that, and is
meant to ensure that there's always a paper trail - which is just good
administrative practice in terms of ensuring accountability. I see, though,
that there's a bit of ambiguity on this in the main document, which refers
to " noting the substance of in-person conversations and phone calls",
which could be interpreted more expansively, so I would suggest changing
that sentence to read "noting the substance of in-person conversations and
phone calls *where these conversations are a significant component of a
decision-making process"*. Again, I'm happy to take these conversations
further, if further wordsmithing is needed, in order to ensure that we have
reasonable and practical expectations here.

On the question of the other subgroups, I was, quite frankly, a bit
surprised to hear you bring that up in the meeting after you were centrally
involved in the recent working group discussion of that very issue. If
you'll recall, the working group discussion led to the addition of
language, which you approved (and I believe, even suggested!) to clarify
that our work was not intruding on that of the human rights subgroup. When
we discuss an issue at the working group level, and end up agreeing to a
solution to that issue which you approved, it's a bit strange to then hear
you reopen that exact issue at the plenary as if it were something new.

However, because it was raised, Chris and I reached out to Niels to ask
whether he felt there was any cause for concern. He came back and said he
felt there was no issue. I personally don't see the need to push things
further, especially since nobody from the human rights subgroup has piped
up on this, but if you want we can ask him to further poll the subgroup
members. What I don't think would be appropriate would be for us to start
bringing our own issues over there, since that would, in a quite literal
sense, be intruding on their work. These matters, will of course, be
discussed and approved at the plenary as well, in due course.

Regarding the Ombudsman subgroup, we reached out to Sebastien, who
initially raised the issue, and he in turn suggested that we engage with
the Ombudsman directly to discuss this, who then emailed me. I am just
responding to his email now, and am happy to copy in the subgroup to that
conversation, of course.

Best,

Michael

On Fri, Jan 13, 2017 at 10:13 AM, McAuley, David <dmcauley at verisign.com>
wrote:

> I appreciate your efforts Michael. I have a couple of questions/comments.
>
> First, on open contracting I am uncertain what is meant by this sentence,
> “However, I think these examples should be enough to dispel the notion that
> these suggestions are in any way impractical or unworkable. If governments
> in the US, New Zealand and Australia can function perfectly well with
> parallel rules in place, there's no reason why ICANN couldn't do so.”
>
> If that is one participant/rapporteur comment to the full CCWG or even
> just to our subgroup then it is a perfectly made comment. If by that,
> however, you mean that the issue is now resolved then I would disagree.
>
> If you sent this just to our subgroup because the issue is back in our
> hands then I would simply note that the notion has not been dispelled for
> me. ICANN doesn’t have the budget or army of bureaucrats that these
> governments do. Moreover, I am not an expert on open contracting and would
> like to go back and read the comments made in the plenary meeting this past
> Wednesday on this issue.
>
> I would suggest we have another call to discuss any issues that have been
> sent back to us for further work - or, if we wish to handle on list then in
> my opinion we should tee it/them up for a list discussion. I don’t think
> all of our participants were on the call yesterday and some who were on
> call may have been involved in chat and possibly missed part of the open
> contracting discussion.
>
> Second, on human rights overlap, in my view discussions among the
> respective subgroup rapporteurs are good and helpful, but not
> determinative. Whether one report intrudes on the work of another
> subgroup’s work is for the groups to discuss and reach consensus, not just
> the rapporteurs – and eventually for the CCCWG plenary to decide. I think
> that is what you mean but think it best to check.
>
> Best regards,
> David
>
> David McAuley
> International Policy Manager
> Verisign Inc.
> 703-948-4154
>
> -----Original Message-----
> From: ws2-transparency-bounces at icann.org [mailto:ws2-transparency-bounc
> es at icann.org] On Behalf Of Michael Karanicolas
> Sent: Thursday, January 12, 2017 2:09 PM
> To: ws2-transparency at icann.org
> Subject: [EXTERNAL] [Ws2-transparency] Follow up from yesterday's call
>
> Hi all,
>
> A couple of things, to follow up on from yesterday's call. First, in line
> with our discussions on harmonization between subgroups, I've reached out
> to Sebastien and to Niels, to advance discussions on ensuring that our
> subgroups are not working at cross purposes, intruding onto one another's
> work themes or forwarding contradictory recommendations.
>
> Second, with regard to open contracting and the duty to document, it's
> been raised that these recommendations are impractical, or impossible to
> properly implement, so I thought it would be good to provide a bit of
> supplemental information on how these exact policies have been successfully
> applied elsewhere.
>
> Regarding open contracting and publishing unsuccessful bids, one good
> example is from Eugene OR, which has a mandatory policy of publishing
> information on all bids received for every call for proposals or tender
> that they put out. You can find an example here -
> http://www.eugene-or.gov/bids.aspx?bidID=138 - see the "Bid Tabulation
> down at the bottom". Richmond VA does the same, as I have mentioned
> previously (attaching their tabulation as a pdf, since I can't directly
> link it, for some reason).
>
> Regarding the duty to document - again, the language reflects common
> governmental standards. In the US, federal law has enshrined a duty to
> document since 1968 (see 44 USC § 3101). New Zealand’s Public Records Act
> imposes similar standards, and multiple Australian jurisdictions have had a
> duty to document in place for nearly twenty years. For example, the State
> of New South Wales legislated on the matter 18 years ago, when it enacted
> records management obligations that required each public office to make and
> keep full and accurate records of the activities of the office.
>
> This is, of course, not an exhaustive list of where these policies have
> been successfully implemented - just what I was able to dig up quickly.
> However, I think these examples should be enough to dispel the notion that
> these suggestions are in any way impractical or unworkable. If governments
> in the US, New Zealand and Australia can function perfectly well with
> parallel rules in place, there's no reason why ICANN couldn't do so.
>
> Regarding the discussion on transparency of interactions with governments,
> and the discussion of the word "formalized", I think Chris should send
> something along shortly.
>
> Best,
>
> Michael
> _______________________________________________
> Ws2-transparency mailing list
> Ws2-transparency at icann.org
> https://mm.icann.org/mailman/listinfo/ws2-transparency
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-transparency/attachments/20170113/b2b5bf2f/attachment-0001.html>