*Dear Becky* *Dear co.chairs* *Dear All,* *On the conference call on 24 Feb Becky casts doubt about the GAC ADV9ICE PERSIAN Gulf string* *She said GAC ADVICE on Persian Gulf .She stated that GAC did not conclude on that SRING * *I wish to reproduce the paragraph 3 from GAC Durban Communique* *Quote * * 3. .date and .persiangulf (ref. Beijing Communiqué 1.c.) **a. The GAC has finalised its consideration of the following strings, and does not object to them proceeding: i. .date (application number 1-1247-30301) * *ii. .persiangulf (application number 1-2128-55439) * *Unquote* I therefore request my respectful Becjy to carefully read that advice with a vir ew to reconsider her position made at thart call conference This should be corrected when minute is appropoved$ I ask Grace and others to incluse the content of this message in the minutes as I did indicate at the meerting Sorry and regret that point was raised . Kavouss 2015-02-24 18:04 GMT+01:00 Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com>:
As I was not at ICANN52, I missed that in the back and forth. I am, of course, delighted that we get to write the standard!! More power to me! [That's a joke friends!]
More seriously, then, if we are to write the standard, we will want to very carefully define the scopoe of ICANN activity ..... should be interesting work P
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Tuesday, February 24, 2015 11:37 AM To: Malcolm Hutty; Paul Rosenzweig; wp2@icann.org Cc: 'Thomas Rickert' Subject: Re: [Party2] Doodle Poll and Docs for ACCT WP2
With respect to our task, Jordan and I have chatted and agreed that the standard falls into our work stream
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz
On 2/24/15, 11:34 AM, "Malcolm Hutty" <malcolm@linx.net> wrote:
On 24/02/2015 15:24, Paul Rosenzweig wrote:
Colleagues
Let me get this started with a very simple statement of four principles that I think must be incorporated in any redress/accountability proposal
Paul,
Thank you for kicking the discussion off with from such a thoughtful starting point.
It prompts some immediate reactions on my part.
First, a standard is essential. That is the limiting function that defines what it is that ICANN and/or the Board may do and what, in turn, they may not do.
I agree, and saw the presentation from Becky at ICANN52 as starting that discussion very helpfully. I was therefore rather surprised to see you write this:
I suspect that the actual content of that standard is not for WP2 to determine (for myself I want it as narrow as possible). That standard will come from elsewhere (WP1, CCWG, or CWG) as those processes move forward.
From Becky's presentation, I had understood that this WP2 would absolutely be considering the standard. If that's not the case, I think we need to flag up to the Co-Chairs the need for urgent clarification of where this discussion ought to take place - perhaps a WP3 specifically on that question?
I think we can rule out CWG-Stewardship; they have explicitly ruled most of this out of scope for their group.
Our task is to insure that a) such standards are formulated; and b) that they are formulated in a manner that is capable of that adjudication. Our input should be to make the terms of the standard as well-defined as drafters are capable of.
Agree.
Second, our biggest difficulty, in my judgment, will be in defining who is an ³affected party.² As we have seen in the broader debate over ³public interest² in some sense everyone in the world is an
affected
party. That, of course, is untenable. We need to give some definition as to who has ³standing² (that¹s an American legal phrase reflecting who may bring a suit) to initiate a complaint. My instinct is to allow it to be a) both directly affected parties that is people with contracts and/or commercial interests in the IANA function; and b) certain representative organizations can reflect the broader interests of certain constituencies. These may or may not be the existing SO/AC types. An area I think needs some real consideration
I disagree with your claim that it is untenable to grant standing to any party materially affected by an ICANN decision or action.
I also don't believe it is at all acceptable to limit standing to contracted parties: that is one of the major flaws in the existing IRP provisions that needs to be corrected. Non-contracted parties have legitimate interests too. For example, inasmuch as non-contracted parties are consulted by ICANN in its decision-making and policy formulation, they equally have an interest in ICANN following its own procedures and bylaws. For another, I believe you and I share the view that a major concern is the possibilibility of scope creep by ICANN resulting in a negative impact other parties' interests without any legitimate authority to do so: non-contracted parties (and especially, registrants) are absolutely as interested in that as contracted ones.
Let me give you a scenario. Suppose that ICANN deciding that fishing was bad: fish stocks are heavily depleted and fishing is harming the environment and leading to species extinction. In support of that view, ICANN consensus policy determines that no domains should be registered that promoted fishing or the consumption of fish. This policy would be enforced throughout all gTLDs via the RAA; any end-user domain found in violation of this policy was subject to immediate cancellation. In such a circumstance, I would expect that any individual fisherman ought to be able to challenge the policy on the grounds that (i) the policy seeks to extend ICANN's control of gTLD policy to regulate an unrelated activity, namely fishing, and so was outside ICANN's proper scope and void and (ii) as a fisherman, he was materially affected by the inability to register a domain in support of his business, and so had proper standing to bring such a complaint. Such a fisherman ought not to be told that ICANN accountability measures are unavailable to him, or that in order to access them he must first obtain the support of an ICANN constituency. He has a legitimate complaint, and should be heard in his own right.
I would suggest that the main requirements underlying the fear of "untenability" to which you refer are really the need to prevent ICANN being stymied by frivolous or vexatious objections, or be forced to perpetually re-litigate issues that have already been adequately reviewed. Limiting standing is at best an indirect way of addressing these issues, and one that risks leaving ICANN unaccountable to those materially impacted by its policies. Surely these concerns could be addressed directly?
That doesn't mean that I would remove any requirement for standing[*]. I wouldn't say that my fisherman is materially impacted by the outcome in .wine, say, or in domain tasting rules. But a competent tribunal ought to be able to determine on the facts and circumstances whether a party is materially affected by the outcome of a dispute; courts and arbitrators apply this and related standards in other fields all the time.
We can, of course, have a discussion about where to set the threshold for standing too: "materially affected by" is higher than "a legitimate interest in", but lower than "would suffer serious harm from", for example.
[ * or rather, I would keep some test of standing for individuals. I don't think I would for ICANN community components: the GAC, or the GNSO, or perhaps even any ICANN constituency should automatically have standing to trigger a review process in (many/most/all?) matters, without need to demonstrate harm or loss. But maybe that is a WP1 matter.]
Third, the binding and independent nature of the review is to my mind the non-negotiable bear minimum of accountability a man or a company shall not be a judge in its own case is a principal of the rule of law with a long provenance for good reason! I am less concerned with exactly how this independent review is created and whether it is juridical (e.g. through the California courts) or arbitral (through some international arbitration body). I think it should be funded by ICANN as a certain mandated level that may not be reduced and that its existence and funding need to be in the Bylaws/Contract/Charter in a way that cannot be amended.
I agree on the bare minimum you propose. I doubt that a court process is appropriate (as this community will want to create its own standards, that may impose more strict requirements on ICANN than the ordinary law would on a private company), and anticipate objections from members of the community already concerned about US influence; such concerns should be mitigated rather than exacerbated, as would be the case if we introduce a new role for the California courts.
Finally, the provision of non Amendment by ICANN is an unfortunate necessity.
Here I think you are overstating it slightly. Some possibility of amendment should exist, but it should be through a process that requires a high-level of community support, and not a unilateral action by the ICANN Board. I would think that establishing a suitable process for amendment would be a core issue for WP1.
Given the way the Board limited the IRP in April 2013 after it lost the .xxx case and given its failure thus far to fully implement the ATRT recommendations, we need to insiste that the redress process both be created and brought into existence before the IANA transition.
I would like to think that a firm commitment would be sufficient, but have heard enough about slow-, partial- or non- implementation in related areas to have certain misgiving myself. I suggest we leave this until last.
As I said, these are my initial thoughts, more as the way of jump-starting the conversation than as a final ending point.
Cheers
Paul
Paul Rosenzweig
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*From:*Burr, Becky [mailto:Becky.Burr@neustar.biz] *Sent:* Monday, February 23, 2015 8:20 PM *To:* wp2@icann.org *Cc:* Thomas Rickert *Subject:* [Party2] Doodle Poll and Docs for ACCT WP2
Hello WP2-
Apologies for the slow start, but I¹ve now cleared the decks to focus on this project.
You should have received a link to the Doodle Poll to schedule calls for this working party. If you did not, please use this: https://urldefense.proofpoint.com/v2/url?u=https-3A__doodle.com_htxbr2 inp curzi4k&d=AwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDm rxd YahOP8WDDkMr4k&m=Ig2519ehwmCW6CCqBz_qY84N3tgA2fLF2pwu7iEQulw&s=jVSWyY_ f67 Bqk_ozavS7_Ue4miAp9sJAW2OSkeFnYmM&e=
I¹ve attached a revised Scope document that reflects the work of WP1 to date to attempt to clarify the division of labor. I¹ve also attached a draft working plan, and the power point previously circulated on a ³standard² for ICANN. Jordan and I will chat, but the location for this work is not entirely clear to me.
Thanks,
Becky
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
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