Even the best policies can encounter implementation challenges. Thus, policies should be viewed as “living documents.” They need leadership, resources, monitoring, and other inputs to thrive and achieve their goals 1.
The rules for formal policy development at ICANN are well-defined in the ICANN Bylaws, but the processes and procedures that surround policy implementation are not so clear. As a result, recent discussions at ICANN (particularly in the context of new gTLD efforts) have focused on a critical question – When is an action part of the implementation of a policy and when does implementation turn into developing policy?
Although many believe that it is not possible to a develop a bright-line rule as to what is policy or implementation, there seems to be plenty of room to clarify existing activities and to better define the roles of the different stakeholders involved in the implementation process at ICANN.
As a result of these concerns, the Staff recently initiated an effort to more fully discuss this conundrum in and among the community. A 42-day Public Comment Forum – “Policy vs Implementation” seeking the latest community thoughts on this matter closes in a few days and a special Public Workshop session is being planned to discuss this topic at the upcoming ICANN Public Meeting in Beijing. I hope many of you will participate in the conversation.
The Current Landscape:
There are currently several kinds of “policy” within the ICANN world. For example, there are formal policy development processes (PDPs) set forth in the Bylaws. There are also operational policies generally not subject to a PDP or considered implementation (such as the Conflicts of Interest Policy) for which public comment is sought and considered but not necessarily required. There are also general community practices that are sometimes referred to as “little p” policies or more accurately “procedures” (e.g., such as the 30-day public comment requirement for Bylaw changes).
With regard to formally developed policies, implementation guidance may be provided by the group responsible for developing the policy recommendations, but in most cases the ICANN Board gives ICANN Staff the responsibility to develop the implementation plan. Depending on the detail provided in the policy recommendations this may be a straightforward process, but in certain instances, additional consultation, clarification or input is desired or necessary.
Even though significant improvements have been made in certain areas, such as the use of community Implementation Review Teams in the context of GNSO policy recommendations, no overall organizational framework currently exists that outlines the required steps and opportunities for input on implementation related questions or how to deal with different opinions from affected stakeholders on how any implementation effort should be managed.
Depending on an individual’s position or perspective, the line between policy and implementation can often be blurred. Policy development is an imprecise science. General decisions reached during general policy negotiations can be hard to interpret when faced with the practicalities of implementation.
Questions have been raised recently (e.g., during the evolution of the applicant guidebook for the New gTLD Program, and also during the negotiation of key contracts such as the .com and .net registry agreements regarding the impact of potential incorporation of a “thick” Whois registry model) about when particular implementation issues need to be vetted using a new PDP and when it would suffice to use public comment to vet a proposed change.
Others have asked how to address “new” issues that may not have been fully considered during the policy development phase; when should resolution of a new issue be supported by a consensus of the ICANN community, and when should resolution of a new issue arising from the implementation of a policy be effectuated by the Board of Directors or staff upon taking a range of advice even if there is no consensus within the ICANN community.
Easy solutions to these questions do not exist, but demand further consideration as ICANN’s multi-stakeholder model matures.
Working Toward Better Clarity
So, in the spirit of best policies needing leadership and inputs to thrive and achieve their goals and to facilitate these discussions, under my direction the Policy Staff has developed a draft framework for community discussion that identifies a number of steps and criteria that might facilitate dealing with similar questions in the future. This paper (http://gnso.icann.org/en/correspondence/policy-implementation-framework-08jan13-en.pdf [PDF, 195 KB]) provides an overview of issues to be considered further in this context, as well as a couple of suggested short term improvements.
Constructive input has already been received from various parties in response to the public comment forum (see http://www.icann.org/en/news/public-comment/policy-implementation-31jan13-en.htm). To continue this discussion and identify possible next steps, a session on this topic has been scheduled at the ICANN meeting in Beijing (Wednesday, April 10 – 9:00- 10:30 am local time).
I look forward to your input as we continue to promote active community engagement in the bottom-up, consensus-driven multi-stakeholder model.
1 USAID health policy initiative ‘Taking the Pulse of Policy’ –See http://futuresgroup.com/files/publications/Taking_the_Pulse_of_Policy.pdf [PDF, 682 KB]