October 2003 - council - lists.icann.org

Conduct on council list
by Bruce Tonkin Oct. 17, 2003

Oct. 17, 2003

Hello All, Just a reminder that the GNSO Council list is a public list, and should not be used for personal comments about members of the panel. Everyone is entitled to state their opinion on any matter on the list, but we should all respect that we may have different opinions and try to learn from those opinions. Attacking the credibility of a council member because you disagree with their opinion is not useful. Providing a persuasive argument as to why they are wrong is useful. Council members are entitled to form their own opinion based on the arguments presented for and against a particular issue. I hope that when we have motions before the council that we avoid sticking to a pre-formed position on a subject, and be prepared to adjust our view according to the arguments presented. I have noted in recent debates that often a motion is substantially changed in response to a request from a council member, and then that member abstains or votes against the motion. A diversity of opinion is often good for gaining a better understanding of any issue and deriving a better policy outcome than if we all agree on everything. One of the reasons for having multiple constituencies and multiple representatives per constituency is to take advantage of this diversity. Regards, Bruce

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GNSO Council request to continue with 3 reps per constituency until end of annual meeting 2004
by Bruce Tonkin Oct. 17, 2003

Oct. 17, 2003

To: Acting ICANN Secretary From: Chair, GNSO Council Hello Dan, Just a reminder that as advised on 23 August 2003, the GNSO Council passed a motion at its meeting on 14 August 2003, which requests the Board to make two changes in its review timetable: 1. To change the transition article to allow three representatives per constituency on the GNSO Council until the end of the ICANN annual meeting 2004; 2. To perform a review of the GNSO council in or around June 2004 which should include among other aspects of the review criteria, an analysis of the efficacy of having three representatives from each constituency on the GNSO Council. As requested earlier, please place this on the agenda for the ICANN Board meeting in Carthage, Tunisia. Full details are included below for reference. Regards, Bruce Tonkin The GNSO Council at its meeting on 14 August 2003, passed the following Motion with 21 votes in favour, 1 against, 4 abstentions, 1 absent: Whereas, the Names Council resolution of 1st August 2002 called for "three representatives per Constituency on the GNSO Council". Whereas, ICANN core value 2.4 is: - "Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making". Whereas, ICANN core value 2.7 is: - "Employing open and transparent policy development mechanisms that (i) promote well-informed decisions based on expert advice, and (ii) ensure that those entities most affected can assist in the policy development process." Whereas, by-law article XX.5.8 states: "In the absence of further action on the topic by the New Board, each of the GNSO constituencies shall select two representatives to the GNSO Council.." "..no later than 1 October 2003." The GNSO council resolves that: Three representatives per Constituency is consistent with ICANN core value 2.4 on geographic and cultural diversity within the constituency as the majority of ICANN regions are represented. . Three representatives per Constituency is consistent with ICANN core value 2.7 on well-informed decision making. Experience has shown that three representatives improves the constituencies ability to share the workload of a council member, to be able to participate in task forces of the council, and to more effectively communicate with multiple regions. And therefore the GNSO Council requests the Board to make two changes in its review timetable: 1. To change the transition article to allow three representatives per constituency on the GNSO Council until the end of the ICANN annual meeting 2004; 2. To perform a review of the GNSO council in or around June 2004 which should include among other aspects of the review criteria, an analysis of the efficacy of having three representatives from each constituency on the GNSO Council. The minutes associated with passing this motion are as follows: - The ICANN nominating committee appointed 3 members to the GNSO Council in June 2003 http://www.icann.org/announcements/announcement-16jun03.htm - the ICANN by-laws require each constituency to appoint 2 representatives to the GNSO to take up office at the conclusion of the ICANN annual meeting in 2003 http://www.icann.org/general/bylaws.htm#X - the ICANN by-laws require a review of the GNSO WITHIN 1 year following the adoption of the ICANN by-laws (15 Dec 2002) http://www.icann.org/general/bylaws.htm#IV * Bruce Tonkin summarized saying that the ICANN bylaws provide for the appointment of two, and no longer three, constituency representatives on the GNSO council after the ICANN general meeting in 2003. The bylaws further require a review of the GNSO to be initiated no later than 15 December 2003 and to be completed in time for Board consideration at ICANN's annual meeting in 2004. Members of the Council requested a change as stated in the motion below. Philip Sheppard, one of the originators of the motion, along with Ken Stubbs, Ellen Shankman and Antonio Harris, stated that the essence of the motion was a change in timetable, which called for the review first and then an examination whether the change from 3 to 2 representatives per constituency was necessary. Philip Sheppard accepted the motion as amended by Jeff Neuman to Council: Proposed language by Marilyn Cade 2. To perform a review of the GNSO council in or around June 2004, WHICH SHOULD INCLUDE AMONG OTHER ASPECTS OF THE REVIEW CRITERIA, A RECOMMENDATION REGARDING NUMBER OF REPRESENTATIVES PER CONSTITUENCY. was amended by Jeff Neuman to read: 2. To perform a review of the GNSO council in or around June 2004 which should include among other aspects of the review criteria, an analysis of the efficacy of having three representatives from each constituency on the GNSO Council. Amadeu Abril l Abril, stated that he would not vote on the resolution as he had been a Board member at the time of the Reform and had voted for 2 representatives. Milton Mueller supported two representatives and said that with possible new constituencies being added in the future, three representatives would make the structure unwieldy. Marilyn Cade supported maintaining 3 representatives and an assessment from within the Council rather than an outside review process. Antonio Harris supported 3 representatives to lessen the work load of representatives and to ensure geographical diversity Bruce Tonkin, from an engineering point of view, found advantages in assessing the impact after one year, of the first change made by the three representatives from the nominating committee. Philip Sheppard proposed the motion, as amended by Jeff Neuman: Whereas, the Names Council resolution of 1st August 2002 called for "three representatives per Constituency on the GNSO Council". Whereas, ICANN core value 2.4 is: - "Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making". Whereas, ICANN core value 2.7 is: - "Employing open and transparent policy development mechanisms that (i) promote well-informed decisions based on expert advice, and (ii) ensure that those entities most affected can assist in the policy development process." Whereas, by-law article XX.5.8 states: "In the absence of further action on the topic by the New Board, each of the GNSO constituencies shall select two representatives to the GNSO Council.." "..no later than 1 October 2003." The GNSO council resolves that: Three representatives per Constituency is consistent with ICANN core value 2.4 on geographic and cultural diversity within the constituency as the majority of ICANN regions are represented. . Three representatives per Constituency is consistent with ICANN core value 2.7 on well-informed decision making. Experience has shown that three representatives improves the constituencies ability to share the workload of a council member, to be able to participate in task forces of the council, and to more effectively communicate with multiple regions. And therefore the GNSO Council requests the Board to make two changes in its review timetable: 1. To change the transition article to allow three representatives per constituency on the GNSO Council until the end of the ICANN annual meeting 2004; 2. To perform a review of the GNSO council in or around June 2004 which should include among other aspects of the review criteria, an analysis of the efficacy of having three representatives from each constituency on the GNSO Council. The Council approved the motion by a vote: - 21 in favour( proxy votes for Tony Holmes, Lynda Roesch, Ellen Shankman) - 1 Against (Milton Mueller) - 4 Abstentions (Amadeu Abril I Abril, Alick Wilson, Demi Getschko, proxy vote carried by Milton Mueller for Chun Eung Hwi) During the teleconference the following message was received from Chun Eung Hwi: and only read after the teleconference. GNSO Secretariat "I clearly support a resolution which make sure to have three representatives per constituency. If I could not be on the call, I will give my proxy to Milton Mueller. "

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GNSO Council teleconference MP3 recording 16/17 October
by GNSO SECRETARIAT Oct. 16, 2003

Oct. 16, 2003

[To: ga(a)gnso.icann.org; announce(a)gnso.icann.org] [To: liaison6c(a)gnso.icann.org; council(a)gnso.icann.org] Please find the MP3 recording of the GNSO Council teleconference, held on October 16/17, 2003 at: http://gnso-audio.icann.org/20031015.GNSOteleconf.mp3 Happy listening! GNSO Secretariat gnso.secretariat(a)gnso.icann.org

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Fwd: [NCUC-DISCUSS] Mueller's second suggestion of issues
by Milton Mueller Oct. 16, 2003

Oct. 16, 2003

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Proposed amendment to resolution
by Milton Mueller Oct. 16, 2003

Oct. 16, 2003

"The GNSO Council requests that the Staff Manager produce an Issues Report, consistent with Article 1: Mission and Core Values of ICANN's bylaws, on the need for a predictable procedure for the introduction of new Registry Services (as defined in the gtld registry agreements)" ADD: The Issues Report should consider the advantages and disadvantages of reviewing new registry services ex post or ex ante; whether rules should be different for dominant and non-dominant players; and who would make the initial determination of whether a new service qualified as a registry service.

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RE: [council] FW: Statement of New Registry Services PDP
by Neuman, Jeff Oct. 16, 2003

Oct. 16, 2003

Amadeau, Within the Registries constituency, and I have heard within the registrars as well, we operate by a strict code of conduct and are extremely careful to avoid any issues that may be considered to fall afoul of antitrust regulations and laws (i.e., no discussion on pricing, no discussion on restraining the trade of another party, no discussions on forming coalitions, and certainly no discussion in any way that could operate to hamper the ability of another registry operator to operate its business and compete in the marketplace. Any time an industry gets together, these guidelines need to be strictly adhered to. Perhaps, it would be a good idea for an independent neutral subject matter expert advise the Council on such matters. Jeff -----Original Message----- From: Amadeu Abril i Abril [mailto:Amadeu@abril.info] Sent: Thursday, October 16, 2003 1:59 PM To: Milton Mueller Cc: council(a)gnso.icann.org Subject: Re: [council] FW: Statement of New Registry Services PDP En/na Milton Mueller ha escrit: > I am sure that Jeff does not need to be told this, but > perhaps Amadeu does. > > Even without this latest proposal to vet market entry, > ICANN raises severe antitrust issues Wrong, Milton. You certainly don't need to tell me, or anyone else, that all about ICANN raises concrens on you. We all give you credit on that. But outisde the fairly reduced circle of professional antiICANN fighters I still have to see a single serious intellectual argument on that direction. Antitrust concrns? Sure, Milton. Everytihing out there with an incidence on the market has. I spent two years working in the Eurpean Commission's Directorate General for Competition, and I remember perfectly that those bodies are paranoid-by-design. It¡s their job. But follow my argument: ICANN is as antiturst-risky as any other activity, but much less, say, than certain independnet behaviours of certain operators with the significant market poser within the rtegistry consituency, to give a simple and related example. I am saying that anyone here is violating anitrust laws? Nope, quite the contrary. I am saying that I don't think so. But ICANN-as-a-process, including aproving a process for introducing new registry system is further from the "critical risk" than other behaviors/instances/companies. Take it as you want. But my professional career does not depend on criticizing anything ICANN. Amadeu, amateur apologist ;-)

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Re: [council] FW: Statement of New Registry Services PDP
by Amadeu Abril i Abril Oct. 16, 2003

Oct. 16, 2003

En/na Milton Mueller ha escrit: > >>>>Amadeu Abril i Abril <Amadeu(a)abril.info> 10/16/03 01:58PM >>> >> >>But outisde the fairly reduced circle of professional >>antiICANN fighters > > > Try to be more, um, professional, Amadeu. No, Idon't make my living out of this, and I will not. > I thought we have left behind the days in ICANN when > policy debates could be short-circuited by claims > that anyone who disagreed with management was > a tool of NSI or out to destroy ICANN. You and I are still around to remember everybody else about those days, apparently. Breath deeply, and meet you in the call ;-)) Amadeu

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Re: [council] FW: Statement of New Registry Services PDP
by Milton Mueller Oct. 16, 2003

Oct. 16, 2003

>>> Amadeu Abril i Abril <Amadeu(a)abril.info> 10/16/03 01:58PM >>> >But outisde the fairly reduced circle of professional >antiICANN fighters Try to be more, um, professional, Amadeu. I thought we have left behind the days in ICANN when policy debates could be short-circuited by claims that anyone who disagreed with management was a tool of NSI or out to destroy ICANN. But, perhaps I am just jealous, you do seem to make a better living as a professional ICANN-o-crat (someone else pays to fly you to meetings) than I have making a profession of "ICANN fighting" (no travel expenses, one gets excluded from most committees and positions). Circulating from gTLD-MoU to DNSO to ICANN Board and back to self-appointed position to the GNSO, your profession truly does seem to be ICANN. But that does also raise questions about the objectivity of your legal advice to ICANN's contracting parties. >I still have to see a single serious >intellectual argument on that direction. Apparently you ignored the law review article I produced. Or have the University of Illinois and the Berkeley Law School been relegated to your ever-expanding circle of "professional ICANN fighters"?

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Re: [council] FW: Statement of New Registry Services PDP
by Milton Mueller Oct. 16, 2003

Oct. 16, 2003

I am sure that Jeff does not need to be told this, but perhaps Amadeu does. Even without this latest proposal to vet market entry, ICANN raises severe antitrust issues. It is now and always has been an arrangement by which entry into supply of a resource (gTLD names) is controlled largely by an organization composed of suppliers, which comes very close to the textbook definition of a cartel. And although there are switching costs, the idea that gTLDs are not in the same market and do not compete against each for the same customers is to me obviously wrong; I would have fun debating this formally with Amadeu (it's always fun to win) but this is not the time or place for that. Antitrust was a major consideration during the Green Paper and White Paper phases of ICANN's development, and a specific decision was made NOT to exempt it from antitrust concerns. There is literature in respected law reviews calling attention to ICANN-related antitrust issues, such as this recent University of Illinois Law Review paper: http://personal.law.miami.edu/~froomkin/articles/icann-antitrust.pdf In short, I agree that at this stage, Jeff and other registries can safely discuss what GNSO's role should be in developing a procedure. But I completely reject Amadeu's apologia, and the superficial assurances underlying it, and suggest that those who are serious about the permanence of these "self-regulatory" arrangements need to take the registries' concerns more seriously. --MM

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FW: GNSO REPRESENTATION
by Cade,Marilyn S - LGCRP Oct. 16, 2003

Oct. 16, 2003

Dear Bruce I recall that we had discussed the importance of ensuring that the topic of Council's resolution related to two versus three reps was on the agenda of the Board for Carthage. I believe that you were going to convey this request to the ICANN staff to ask that it be on the Board's agenda. Have they accepted this request? Timing wise, we need to ensure this is on the Carthage agenda.

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