Allan, I have no problem with the CWG design team considering, in principle, whether there should or should not be a mechanism for assessing that a del/re-del decision has been made in accordance with policy (I wouldn’t call it an appeals mechanism but that is semantics). My concern was that the design team would itself be designing such a mechanism and putting it forward as part of its transition proposal. I understand that this is not the case and on that basis will be happy to work with you and others in the design team. I will also suggest some amendments to the template so that it clearly reflects the work that the team is intending to do. Does that put us both on the same page? Cheers, Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au | W: www.auda.org.au auDA – Australia’s Domain Name Administrator Important Notice - This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. Please consider the environment before printing this email. On 3 Mar 2015, at 09:06 , Allan MacGillivray <allan.macgillivray@cira.ca> wrote:

Chris – thank you for getting so quickly to the core of the issue. You said:

So, in summary, my problem is not with the principle of a delegation.re-delegation appeals mechanism. My problem is that the process for dealing with the discussion about it and then deciding to create it is a POLICY process and is in any event specifically excluded from the scope of the CWG by its charter.

I guess this turns on what is ‘policy’ and what should be the process for determining it. Notwithstanding how one interprets the scope of the CWG’s mandate, which the ccNSO Council approved in September, at the ICANN meeting in Los Angeles in October, the ccNSO community indicated it wanted ‘a binding appeal mechanism’ without reference to what that would be. The CWG’s December 1 proposal included a mechanism that specifically referenced ccTLD delegations. There were no objections at that time that such an IAP would be out of scope of the CWG. The limited subsequent discussions, primarily within the CWG’s survey, indicated that while there might be support for such a mechanism, there was no consensus on some aspects of it. The CWG itself is waiting for the ccTLD community to indicate its intentions.

So, many in the ccTLD community have implicitly agreed with having the CWG look at this issue but you feel that it is not within the CWG’s mandate. Having come this far, what would you suggest? That a decision be made to immediately cease any consideration of this issue. If so, how would you propose that such a decision be taken given? I am proposing to take a further step of seeking the views of the broader ccTLD community on this subject. I can’t see how that would be counterproductive.

Allan

From: Chris Disspain [mailto:ceo@auda.org.au] Sent: March-02-15 4:36 PM To: Allan MacGillivray Cc: cwg-stewardship@icann.org; ccNSO Members; ccNSO Council; cctldworld@icann.org; ccTLD Community List Subject: Re: [ccTLDcommunity] [CWG-Stewardship] IAP DT Template - FORMAL OBJECTION

Allan,

So, overall, the objective with the proposed DT is to determine whether there is any form of consensus in the ccTLD community for an appeal mechanism for ccTLD delegations and redelegations in the limited sense described above. This will most likely include undertaking another survey of the broad ccTLD community at some point. It goes without saying, that if there is no consensus then there would be no basis on which to make any recommendations to the CWG. I invite you to join the DT to help us bring some closure to this issue.

I can only try to be clearer.

Firstly an IAP to deal with escalated disputes about IANA agreed service levels or performance is absolutely necessary and if that is intended to be the work of this design team then I shall be delighted to assist in any way I can. However, the proposed name of this team and the detailed description indicate that it is to do work on an appeals mechanism for ccTLd delegations and re-delegations and not on the other matters.

There may well be consensus amongst ccTLDs that there needs to be some from of appeals process in respect to delegation and re-delegation. That is not the point. The point is that it is not within the remit of the CWG to deal with the issue. Nor is it ‘necessary’ for the issue to be dealt with prior to or as part of stewardship transition.

The creation of an oversight or appeals mechanism regarding delegation and re-delegation is contemplated in RFC 1591 and ‘recommended’ in the Framework of Interpretation. The discussion around creation of any such mechanism and an actual decision to create such a mechanism sits fairly and squarely under the banner of policy and therefore can only be dealt with pursuant to the ccNSOs policy development processes. Discussions on this matter would need to be held by a ccTLD group that involves the GAC. The scope of those discussions would need to be carefully crafted to avoid falling foul of RFC 1591, the Framework of Interpretation and the GAC principles. It is an extraordinarily delicate subject that will take many many months to navigate to the satisfaction of the ccTLD community and governments.

The ccNSO through its Council has accepted the report of the FoI WG and it will shortly be sending it to the ICANN Board. The next step is in the hands of the ccNSO.

So, in summary, my problem is not with the principle of a delegation.re-delegation appeals mechanism. My problem is that the process for dealing with the discussion about it and then deciding to create it is a POLICY process and is in any event specifically excluded from the scope of the CWG by its charter.

If I have misunderstood the intentions of this design team proposal or misinterpreted you in any way, I apologise in advance.

Cheers,

Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au | W: www.auda.org.au auDA – Australia’s Domain Name Administrator

Important Notice - This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. Please consider the environment before printing this email.

On 3 Mar 2015, at 05:31 , Allan MacGillivray <allan.macgillivray@cira.ca> wrote:

Chris – thanks for your comment on this proposed Design Team. Firstly, as the proposed leader of this DT, let me assure you that naming policy is not within the scope of our work and that I have no intention of letting our work veer into the area of policy for ccTLD delegations and redelegations. This is considered to be within the scope of the CWG. According to the charter, Accountability for the administration of the IANA functions (i.e., implementation and operational accountability), is properly within the scope of this working group.

The idea of a ccTLD specific appeal mechanism is not a new one. The possible need for an appeal mechanism was included in the CWG’s December proposal wherein it said “All decisions and actions (including deliberate inaction) of the IANA Functions Operator that affect the Root Zone or Root Zone WHOIS database”. That paper included as an example “Disputes over the consistency of ccTLD delegation or redelegation decisions with accepted policy”. Further, the CWG RFP 3 group concluded that it should be up to the ccTLD representatives on the CWG to come up with a proposal, if this is needed. So, the question is not whether we should be discussing this issue, but rather whether there is enough consensus in the ccTLD community to proceed, or, if not, to discard the ideas.

The CCWG has taken up the general issue of ‘appeals and redress’ but has decided to exclude ccTLD delegations and redlegations from their work. We had a discussion of this at the ccNSO meeting in Singapore on this issue but it was inconclusive. The survey that the CWG did of its own members and participants in January did provide some insight on this issue. Here are some pertinent excerpts from that survey:

▪ The grounds for an appeal should be limited to whether or not relevant policy was followed (Agree 95%, Disagree 5% - STRONG AGREEMENT). ▪ The appeals process should only challenge whether established policies have been properly applied or adhered to by the IANA Functions Operator. It should not evaluate the merits of such policies (Agree 84%, Disagree 16% - STRONG AGREEMENT). ▪ All decisions and actions of the IANA Functions Operator that affect third parties and impact the Root Zone or Root Zone WHOIS database should be subject to an independent appeals process (Agree 71%, Disagree 29%). ▪ ccTLD registry operators should have standing to appeal delegation and re-delegation decisions to which they are a party that they believe are contrary to applicable laws and/or applicable approved ccTLD policy (Agree 97%, Disagree 3% - STRONG AGREEMENT). ▪ ccTLD registry operators should have standing to appeal delegation and redelegation decisions to which they are a party that they believe are contrary to applicable laws and/or applicable approved ccTLD policy, even if the operator is not a party involved in the delegation or redelegation (Agree 54%, Disagree 46% - Split). ▪ Governments should have standing to appeal any ccTLD delegation or redelegation decisions that they believe are contrary to applicable laws (Agree 60%, Disagree 40%). ▪ Governments should have standing to appeal ccTLD delegation or re-delegation decisions that they believe are contrary to applicable laws only where that country`s ccTLD is involved (Agree 75%, Disagree 25%). Note: many “Is Acceptable” and “No Response” answers, so this is not classified as a “major agreement.”

You can see that the respondents to this survey strongly agreed with the need for an appeal mechanism but this level of consensus fell sharply when comment of the details of the mechanism were sought. However, the ccTLD participation in the survey was limited as it was restricted to the CWG itself. (There are 5 ccTLD ‘members’ and another 15 ‘participants’, on the CWG). I do not know what the breakout of the above answers was for representatives of the ccTLD community.

When the ccNSO first discussed this issue in Los Angeles there was virtual unanimity of the need for ‘an appeal mechanism’ (Eberhard, I have noted both your disagreement in Los Angeles and on this list). The survey of just ccTLDs that’s was taken last fall found that 94% of respondents agreed that: “If the IANA operator does not perform well or abuses its position the affected ccTLD should have the opportunity to (have access to) an independent and binding appeal process.”

So, overall, the objective with the proposed DT is to determine whether there is any form of consensus in the ccTLD community for an appeal mechanism for ccTLD delegations and redelegations in the limited sense described above. This will most likely include undertaking another survey of the broad ccTLD community at some point. It goes without saying, that if there is no consensus then there would be no basis on which to make any recommendations to the CWG. I invite you to join the DT to help us bring some closure to this issue.

Allan

-----Original Message----- From: cctldcommunity-bounces@cctld-managers.org [mailto:cctldcommunity-bounces@cctld-managers.org] On Behalf Of Chris Disspain Sent: March-02-15 7:26 AM To: cwg-stewardship@icann.org Cc: ccNSO Members; ccNSO Council; cctldworld@icann.org; ccTLD Community List Subject: Re: [ccTLDcommunity] [CWG-Stewardship] IAP DT Template - FORMAL OBJECTION Importance: High

All,

The below is extracted from the IAP Appeals mechanism document:

On January 30th CWG RFP3 reviewed a detailed document (available here) summarizing the status of the IAP proposal and information flowing from the survey. During the RFP3 discussion, it was noted that the IAP is in response to a request from ccTLDs. RFP3 concluded with the following ‘Request/Action:” “ccTLD members and participants in CWG to come up with a consistent proposal on IAP” (seehttps://community.icann.org/pages/viewpage.action?pageId=52232278

Later that day, January 30, the CCWG of Accountability sent a letter to the CWG indicating that it has begun to elaborate is own work and that it will include consideration of binding redress mechanisms. It has subsequently established an ‘Appeals and Redress’ work stream. In their January 30th letter, the CCWG also said that it has no intention to give an accountability mechanism decision-making powers relating to the (re)delegation of ccTLDs.

In light of this, it is proposed that a Design Team consider the question of the potential need for a ccTLD delegation and redelegation appeal mechanism and the potential parameters of this.

It is proposed that the Design team be made up of two to three ccTLD representatives and one or two GAC representatives. The DT will investigate the potential to include an expert that may have been identified to work with the CCWG on Accountability.

On behalf of auDA, the ccTLD manager for .au I formally object to the terms of this design team which are specifically excluded from the charter of the CWG. Under the heading ‘Scope’ the charter states 'Additionally, issues related to naming policy e.g. delegation, redelegation or revocation of ccTLDs, RAA related policy issues etc. are not within the scope of the CWG” (https://community.icann.org/display/gnsocwgdtstwrdshp/Charter).

Any work on matters relating to delegation and re-delegation of ccTLDs is a matter for the ccTLD community.

Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au | W: www.auda.org.au auDA – Australia’s Domain Name Administrator

Important Notice - This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. Please consider the environment before printing this email.

On 2 Mar 2015, at 07:17 , Marika Konings <marika.konings@icann.org> wrote:

Dear All,

On behalf of Allan MacGillivray, please find attached the completed template for the Independent Appeals Panel for ccTLD delegations / redelegations.

Best regards,

Marika <Design Team - IAP - 1 March 2015.docx>_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship

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