November 2018 - council - lists.icann.org

Re: [council] The Information Transparency Initiative (ITI) Feedback Site is Now Live - ICANN - Blog by David Conrad
by Mary Wong 03 Jul '19

03 Jul '19

Dear Ayden and all, We apologize if there were difficulties with accessing the feedback tool – there ought not to be any, so please do try it again if you wish to provide feedback. Please be assured that ICANN organization is committed to and interested in gathering the community’s feedback on each of the features that we will be rolling out with the objective of improving the findability, transparency, and accessibility of ICANN public content. The deadlines are, unfortunately, what they are in order to ensure that we are able to deliver on this major project on budget and on time. There will certainly be multiple and additional opportunities and forums for continuing community feedback, as noted in David’s blog that is referenced in the announcement below. Thank you. Best regards, Mary From: council <council-bounces(a)gnso.icann.org> on behalf of Ayden Férdeline <icann(a)ferdeline.com> Reply-To: Ayden Férdeline <icann(a)ferdeline.com> Date: Wednesday, April 25, 2018 at 09:17 To: Heather Forrest <haforrestesq(a)gmail.com> Cc: GNSO Council List <council(a)gnso.icann.org> Subject: Re: [council] Fwd: [So-ac-sg-cleaders] The Information Transparency Initiative (ITI) Feedback Site is Now Live - ICANN - Blog by David Conrad Given comments are being sought for less than a week, this does not strike me as a genuine consultative activity but appears to be a token form of participation intended to manipulate public opinion. This new website implies a shift towards greater consultation and community participation in ICANN's content strategy, but we cannot actually wield any influence by commenting here. (And not just because if you press the 'provide feedback' button, you see "The feedback survey is temporarily unavailable.") From what I understand we are not even being asked to comment on anything important. The list of 250 definitions, which I would like to review for neutrality and accuracy, are not online and it sounds like they have already been approved internally and are not open to community review. Are we really being asked to comment on just the glossary tool itself, and did ICANN really produce a video mockup and slide deck of something so incredibly mundane when it is up for public comment for just a week? Please forgive the negative sentiment to my message here, but it really seems a poor allocation of resources to me. Ayden Férdeline ‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐ On 25 April 2018 3:03 PM, Heather Forrest <haforrestesq(a)gmail.com> wrote: Dear Council colleagues, I am pleased to pass on David Olive's update, below, on the Information Transparency Initiative. Best wishes, Heather ---------- Forwarded message ---------- From: "David Olive" <david.olive(a)icann.org<mailto:david.olive@icann.org>> Date: 24/04/2018 10:37 AM Subject: [So-ac-sg-cleaders] The Information Transparency Initiative (ITI) Feedback Site is Now Live - ICANN - Blog by David Conrad To: "so-ac-sg-cleaders(a)icann.org<mailto:so-ac-sg-cleaders@icann.org>" <so-ac-sg-cleaders(a)icann.org<mailto:so-ac-sg-cleaders@icann.org>> Cc: "David Conrad" <david.conrad(a)icann.org<mailto:david.conrad@icann.org>>, "Jana Juginovic" <jana.juginovic(a)icann.org<mailto:jana.juginovic@icann.org>> https://www.icann.org/news/blog/the-information-transparency-initiative-iti…<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_news_blo…> The Information Transparency Initiative (ITI) Feedback Site is Now Live I'm pleased to announce that today, we launched the ITI feedback site[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_itifeedb…> (feedback.icann.org[feedback.icann.org]<https://urldefense.proofpoint.com/v2/url?u=http-3A__feedback.icann.org&d=Dw…>). As I have written about in previous blogs and discussed at ICANN60 and ICANN61 sessions, this site[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_itifeedb…> is intended to provide you, the ICANN community, with the ability to share your input on the content and features the ITI team is working on to improve the findability, transparency, and accessibility of ICANN public content. The first item we are looking for your comments on is an updated Acronyms and Terms feature[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_itifeedb…> to replace the existing feature[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resource…>. Our update doubles the number of terms available, provides up-to-date definitions for the terms, and improves search. Unlike most of the ITI project, we will launch this updated feature on the current https://icann.org[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_&d=DwMGa…> before 31 May 2018. The deadline to provide your input on the proposed updates to Acronyms and Terms is 30 April 2018, 23:59 UTC. Please visit feedback.icann.org[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_itifeedb…> to experience the proposed changes and complete a short survey. How the ITI Feedback Site Works The ITI Team will regularly post documents, mockups, or video walkthroughs of new content and features. The proposed content or feature items are listed on the homepage under the heading "Feedback Needed." Each item lists a deadline by which you need to provide input. Simply click on the item you're interested in. This will take you to another page, which provides you with the option to either download a mockup or watch a video walkthrough. Once you have completed that task, click on the "Feedback" button to complete a short survey or email your feedback to informationtransparency(a)icann.org<mailto:informationtransparency@icann.org>. Once the deadline has passed, the ITI Team will collect and publish all comments to feedback.icann.org[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_itifeedb…>. All published results of the survey will be anonymous, unless otherwise requested by the submitter. We will review all submissions and make our best efforts to implement the feedback, prioritizing input that serves the goals of improving search and accessibility, and increasing the transparency of our content. Feedback Deadlines We do have a tight deadline for community comments – one week for each new item. The reason for this timeline is we need to maintain a rigorous development schedule to ensure we are delivering the project on time and within budget. However, feedback.icann.org[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_itifeedb…> is not your only avenue to share input. ITI has many other opportunities to learn about ITI and provide comments including: * Regular sessions at ICANN Public Meetings. * Special sessions or webinars for Supporting Organizations and Advisory Committees (SO/ACs) on request or for special features and content like Public Comment. * Monthly blogs and newsletters. * Via email at informationtransparency(a)icann.org<mailto:informationtransparency@icann.org> Feedback Translations As I outlined above, we are working at a brisk development pace. This does limit our ability to fully translate feedback.icann.org[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_itifeedb…> and its survey. But, if you want to share feedback in another language, email us at informationtransparency(a)icann.org<mailto:informationtransparency@icann.org>. It is important to emphasize that one of the primary goals of ITI is a multilingual https://icann.org[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_&d=DwMGa…>, and the sooner we complete this project, the sooner we can deliver on that goal. ITI Goals ITI's goal is not a revamp of https://icann.org[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_&d=DwMGa…>. While the ITI team is working on making improvements to your User Experience (UX) on https://icann.org[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_&d=DwMGa…>, the vast majority of our efforts are focused on: * Creating content governance through new, enforced workflows and the creation of a consistent, multilingual taxonomy. * Building new technical infrastructures including a first-ever for ICANN document management system (DMS) and a new content management system (CMS). This new infrastructure will enforce this governance and enable improved content findability. Much of this foundational work won't be available on the feedback site for your input, but we will show the intended benefits of this work through the content and features we will share. ITI Update The ITI team has been hard at work completing that foundational work I mentioned above. We have completed the following tasks since the January 2018 launch of ITI: * The foundational build of the DMS and CMS, and the integration between the two platforms. * Sixty percent of the content audit and the taxonomy creation. * Interviews with SO/AC leaders, registrants, registrars, Fellows, and other ICANN stakeholders. We have also begun work on the following items: * Content modelling, workflow creation, and content governance enforcement in the DMS. * Accessibility guidelines and multilingual site implementation planning. ITI will launch in December 2019. ITI Backgrounders For those of you unfamiliar with ITI, you can read about what it is and how it will benefit the ICANN community in my kickoff blog[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_news_blo…>. You can learn more about how the content audit and taxonomy will help your search experience in my January blog[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_news_blo…>. We also outlined the differences between ITI and the Open Data Initiative (ODI) in our pre-ICANN61 blog[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_news_blo…>. We Need Your Feedback Remember, we need your input to help us make the specific improvements to search, transparency, and accessibility that you need and want. Please visit the ITI feedback site[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_itifeedb…> and email us anytime at informationtransparency(a)icann.org<mailto:informationtransparency@icann.org>. Comments Log in to Comment[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_users_si…> or Sign Up[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_users_si…> Details * ICANN Blog * Author: David Conrad, Chief Technology Officer (CTO) and Senior Vice-President * 23 Apr 2018 David A. Olive Senior Vice President Policy Development Support Internet Corporation for Assigned Names and Numbers (ICANN) _______________________________________________ So-ac-sg-cleaders mailing list So-ac-sg-cleaders(a)icann.org<mailto:So-ac-sg-cleaders@icann.org> https://mm.icann.org/mailman/listinfo/so-ac-sg-cleaders

4 7

GNSO Council Liaisons to GNSO WGs - Replacement Needs
by Steve Chan 19 Dec '18

19 Dec '18

Dear Councilors, As an action item from the Council wrap-up session, staff was to circulate a list of projects where a Council liaison is needed. From our understanding, it appears that just one effort is in imminent need of a replacement: New gTLD Subsequent Procedures: Keith Drazek (serving in interim basis) Of note, there was some discussion of Paul McGrady stepping down from his role with the Rights Protection Mechanisms PDP and rejoining SubPro, with Maxim Alzoba stepping into the RPMs role in his stead. However, there are several other projects that need a replacement, but are of a less urgent nature: WHOIS Procedure Implementation Advisory Group (WPIAG): Keith Drazek (with effort on hold, no urgent need, but Keith intends to step down if this effort does initiate) Curative Rights Protections for IGO/INGOs: Susan Kawaguchi (Final Report delivered, but next steps still being determined) Thick WHOIS: Susan Kawaguchi For any Councilors considering volunteering, you will likely want to review the GNSO Council Liaison to GNSO WGs role description (here: https://gnso.icann.org/en/council/gnso-liaison-wg-22feb18-en.pdf) to ensure you understand your responsibilities. Best, Steve Steven Chan  Policy Director, GNSO Support ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536  Mobile: +1.310.339.4410 Office Telephone: +1.310.301.5800 Office Fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses and visiting the GNSO Newcomer pages. Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/ http://gnso.icann.org/en/

5 5

Re: [council] Fwd: [Ext] Re: GNSO Council comment - CCWG Auction Proceeds
by Emily Barabas 03 Dec '18

03 Dec '18

Dear all, Please note that the public comment period for Initial Report of the new gTLD Auction Proceeds CCWG (https://www.icann.org/public-comments/new-gtld-auction-proceeds-initial-201…) has been extended to 11 December. The announcement about this extension is available here: https://www.icann.org/news/announcement-2018-11-27-en. Can everyone kindly assist in sharing information about this two-week extension to your respective groups? Kind regards, Emily From: council <council-bounces(a)gnso.icann.org> on behalf of Erika Mann <erika(a)erikamann.com> Date: Tuesday, November 20, 2018 at 6:17 AM To: "GNSO Council List (council(a)gnso.icann.org)" <council(a)gnso.icann.org> Subject: [council] Fwd: [Ext] Re: GNSO Council comment - CCWG Auction Proceeds Dear Colleagues, During our wrap up session at ICANN63, I had committed to share with you some further thoughts in relation to whether the Council should consider submitting input to the public comment forum on the Initial Report of the new gTLD Auction Proceeds CCWG. Unless there are any specific concerns or issues in the Initial Report that the Council believe should be flagged from a Council perspective, I would like to suggest that the Council submit a short note thanking the CCWG for its efforts, welcoming the Initial Report and noting that GNSO SG/Cs have been encouraged to provide input on the Initial Report. I would be happy to draft something if you would support this course of action. Do note that the public comment forum closes on 27 November so any statement would need to be agreed on via the mailing list as soon as possible. Similarly, the Council discussed the recent Board decision to allocate part of the auction proceeds to the reserve fund. Staff kindly followed up with further information in relation to this decision (https://mm.icann.org/pipermail/council/2018-October/021987.html) as requested. I am not sure whether there is a further desire to discuss this issue and/or consider undertaking potential action, but I would suggest that this is considered separately from the new gTLD Auction Proceeds CCWG as it is not within its remit to reconsider or change the Board action. I look forward to receiving your feedback, Erika Erika Mann GNSO Council erika(a)erikamann.com<mailto:erika@erikamann.com> +32 498 121354

2 1

GNSO Council motions 29 November 2018
by Nathalie Peregrine 30 Nov '18

30 Nov '18

Dear all, Please find below the resolution and the deferred motion from the GNSO Council at its meeting on Thursday, 29 November 2018 to be posted on the GNSO resolutions<https://gnso.icann.org/en/council/resolutions> page shortly. Approved - Consent Agenda: Motion for the confirmation of GNSO representative to the Empowered Community Administration Made by Pam Little Seconded by Rafik Dammak Whereas, 1. The GNSO Council confirmed in October 2018 that the GNSO Chair (currently Keith Drazek) will represent the GNSO as the Decisional Participant on the Empowered Community (EC) Administration on an interim basis. 2. The GNSO Council leadership team subsequently met to agree who from the Council leadership should perform the role of GNSO representative to the Empowered Community Administration and communicated this decision to the Council mailing list on 19 November 2018. Resolved, 1. The GNSO Council hereby confirms that Keith Drazek, GNSO Chair will represent the GNSO as the Decisional Participant on the Empowered Community Administration until the end of his term at ICANN66. 2. The GNSO representative shall act solely as directed by the GNSO Council in accordance with the ICANN Bylaws and other related GNSO Operating Procedures. 3. The GNSO Council requests the GNSO Secretariat to communicate this decision to the ICANN Secretary which will serve as the required written certification from the GNSO Chair designating the individual who shall represent the Decisional Participant on the EC Administration. Vote results [gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_d…> Motion - Adoption of the GNSO Review of GAC Communiqué for submission to the ICANN Board – DEFERRED to December 2019 Council meeting Submitted by Pam Little, seconded by Whereas, 1. 1. The Governmental Advisory Committee advises the ICANN Board on issues of public policy, and especially where there may be an interaction between ICANN's activities or policies and national laws or international agreements. It usually does so as part of a Communiqué, which is published towards the end of every ICANN meeting. 2. 2. The GNSO is responsible for developing and recommending to the ICANN Board substantive policies relating to generic top-level domains. 3. 3. The GNSO has expressed a desire to provide feedback to the ICANN Board on issues in the GAC Communiqué as these relate to generic top-level domains to inform the ICANN Board as well as the broader community of past, present or future gTLD policy activities that may directly or indirectly relate to advice provided by the GAC. 4. 4. The GNSO hopes that the input provided through its review of the GAC Communiqué will further enhance the co-ordination and promote the sharing of information on gTLD related policy activities between the GAC, Board and the GNSO. Resolved, 1. 1. The GNSO Council adopts the GNSO Review of the Barcelona GAC Communiqué (see https://gnso.icann.org/en/drafts/review-gac-communique-19nov18-en.pdf [gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_draf…>) and requests that the GNSO Council Chair communicate the GNSO Review of the Barcelona GAC Communiqué to the ICANN Board. 2. 2. The GNSO Council requests that the GNSO Chair also informs the GAC Chair of the communication between the GNSO Council and the ICANN Board. Vote results [gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_d…>

1 0

FW: [Gnso-igo-ingo-crp] Response to "Procedural options for IGO-INGO Curative Rights PDP" email sent to GNSO Council mailing list
by Drazek, Keith 29 Nov '18

29 Nov '18

Hi all, This is an additional communication from Paul Keating, another member of the IGO-INGO CRP WG. Regards, Keith -----Original Message----- From: Paul Keating <Paul(a)law.es> Sent: Thursday, November 29, 2018 11:26 AM To: Drazek, Keith <kdrazek(a)verisign.com>; icann(a)leap.com; rafik.dammak(a)gmail.com; pam.little(a)alibaba-inc.com; nathalie.peregrine(a)icann.org; mary.wong(a)icann.org; steve.chan(a)icann.org; darcy.southwell(a)endurance.com; mpsilvavalent(a)gmail.com Cc: gnso-igo-ingo-crp(a)icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Response to "Procedural options for IGO-INGO Curative Rights PDP" email sent to GNSO Council mailing list Dear Mr. Drazek, I just wanted to second the comments made by Mr. Kirkos in his email below. I was indeed the person who came up with the "vitiation" idea and proposed it to the group. I also support the position that there was no capture and that Mr. Kirkos' referencs to the factual development of the various proposals was correct. The idea that there was "capture" came up only after it became clear tha the WG did not support by concensus any form of creating an independent ADR/arbitration right for these limited number of potential claimants. I was told many times that the concensus decision would not "fly" because they were not politically acceptable by the IGO/NGOs and by their supporters on the GAC. I disagreed with those statements then and I trust we are not witnessing them yet again. I can also confirm that notwithstanding repeated invitations, the IGO/NGOs simply refused to participate in the WG. The were indeed asked repeatedly. A review of the number of real and potential claims held by the IGO/NGO groups is telling based upon the number of UDRP/formal litigation matters actually having been filed over the past 20+ years - close to 0 statistically. Indeed there are a limited number of IGO/NGOs who have in fact brought claims in their own names - a point which notwithstanding the limited number - shows that it is not a huge issue. Personally speaking I see here a clear attempt at "capture" wherein the IGO/NGO crowd is - not liking what was developed - trying to achieve an end-run. Sincerely, Paul Raynor Keating, Esq. Law.es <http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul(a)law.es THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE On 11/29/18, 3:01 PM, "Gnso-igo-ingo-crp on behalf of Drazek, Keith via Gnso-igo-ingo-crp" <gnso-igo-ingo-crp-bounces(a)icann.org on behalf of gnso-igo-ingo-crp(a)icann.org> wrote: Hello Mr. Kirikos, I have received your email and forwarded it to the full GNSO Council list. No decisions were made by the Council during our meeting today. Regards, Keith Drazek GNSO Chair -----Original Message----- From: George Kirikos <icann(a)leap.com> Sent: Thursday, November 29, 2018 2:01 AM To: Drazek, Keith <kdrazek(a)verisign.com>; rafik.dammak(a)gmail.com; pam.little(a)alibaba-inc.com; Nathalie Peregrine <nathalie.peregrine(a)icann.org>; Mary Wong <mary.wong(a)icann.org>; Steve Chan <steve.chan(a)icann.org>; darcy.southwell(a)endurance.com; mpsilvavalent(a)gmail.com Cc: gnso-igo-ingo-. <gnso-igo-ingo-crp(a)icann.org> Subject: [EXTERNAL] Response to "Procedural options for IGO-INGO Curative Rights PDP" email sent to GNSO Council mailing list Hello, [please forward this email to the rest of GNSO Council] On the eve of the November 29, 2018 12:00 UTC GSNO Council meeting (not observing the usual 10 day advanced notice rule for documents), ICANN staff sent various documents related to the IGO-INGO Curative Rights PDP to the GNSO Council mailing list: https://mm.icann.org/pipermail/council/2018-November/022091.html Given the limited time to review it, I can't comment on all of it at this time. However, it once again appears to present a false and one-sided view of the work of the PDP working group, in an attempt to undermine its recommendations. Furthermore, it excludes important information. 1. In the 11 page document titled "SUMMARY PAPER: STATUS, ISSUES & NEXT STEPS FOR THE IGO-INGO CURATIVE RIGHTS POLICY DEVELOPMENT PROCESS (PDP) FINAL REPORT", the first option (on page 2), namely engaging in a facilitated discussion with the GAC, ignores the fact that the the working group already fully considered the input that was provided by the IGOs (i.e. "GAC" is really just a handful of IGOs within the GAC, i.e. OECD & WIPO). Furthermore, page 2 ignores the fact that registrants subject to a UDRP or URS would also be parties who are "most affected" by recommendations. In addition, there **already*** was a "small group" convened with IGO participation, see: https://mm.icann.org/mailman/listinfo/discussion-igo-rc https://mm.icann.org/pipermail/discussion-igo-rc/ which had the participation of WIPO, OECD, and both co-chairs (at the time, before Phil Corwin resigned in 2018) of the IGO PDP, among others. Indeed, the author of the 11 page document (ICANN Staff member Mary Wong, as per the metadata of the PDF) was the first person who posted on that mailing list: https://mm.icann.org/pipermail/discussion-igo-rc/2017-January/000000.html "This list has been created as a result of the conference call of 20 December 2016 among representatives of the ICANN Board, GAC and GNSO. As a participant on that call, you have been automatically subscribed to this list, which is intended for group discussion of the proposal for a facilitated dialogue between the GAC and the GNSO, to resolve the outstanding issues on protections for IGO acronyms, the names of the Red Cross National Societies, and certain names and acronyms of the international Red Cross movement." IGOs have had their say, numerous times. All that another "facilitated dialogue" would do is attempt to mislead and misinform folks who are not subject matter experts, attempt to re-argue their past failed arguments, and furthermore exclude those who actually fully understand all the issues (i.e. the current members of the PDP working group who invested 4 years of research and analysis on the topic to come up with their consensus recommendations). IGOs have nothing new to say that hasn't already been said. 2. For option 5 (page 4) the document mentions concerns about "lack of representation", "differences between leadership and members", and "dominance by a specific group". Frankly, those are frivolous arguments that have been raised at a late date by those who failed to convince the rest of the working group as to the merits of their positions. One should immediately notice that those arguments are being made only with regards to Recommendation #5 -- if there truly was "capture", then certainly Recommendations #1 through #4 would similarly be impacted by the asserted "lack of representation", etc. Furthermore, the current co-chair and the former co-chair had every opportunity, by Section 3.2 of the working group guidelines, to determine whether "capture" had occurred, but not once did they claim it during the PDP: "The Chair, in cooperation with the Secretariat and ICANN Staff, is continually expected to assess whether the WG has sufficiently broad representation, and if not, which groups should be approached to encourage participation. Similarly, if the Chair is of the opinion that there is over-representation to the point of capture, he/she should inform the Chartering Organization." The assertions of "capture" began only *after* the co-chairs found themselves to be in a small minority and opposed to the consensus that the rest of the working group successfully achieved. After the first anonymous and non-transparent poll had been conducted in October 2017 which was consistent with the option favoured by the co-chairs, the co-chairs expressed no concerns whatsoever about "capture". It was only long afterwards, after the fully transparent procedures (as a result of my first Section 3.7 appeal) established and documented that the co-chairs were in fact in a small minority, and the consensus was for an option other than that supported by the then co-chairs, that the "capture" argument was put forth (as an attempt to undermine the Final Report's conclusions). Lastly, take a look at the documented positions and constituencies of each working group member who actually participated in the Consensus Call (as of June 12, 2018): https://docs.google.com/spreadsheets/d/e/2PACX-1vQgB2sY5AgaBZUHsHJJPLIsAwTF… (which wasn't put into the final report; later deliberations solidified the actual consensus levels as reported in the final report, as text was tweaked to satisfy various concerns that had been expressed) As was properly noted in the letter to the ICANN Board of August 16, 2018: https://www.icann.org/en/system/files/correspondence/igo-ingo-wg-to-icann-b… the working group had a broad cross-section of members from various constituencies. It's preposterous to suggest, for example, that David Maher and Crystal Ondo (both of the Registries Stakeholder Group, same as Phil Corwin) or Reg Levy (of the Registrars Stakeholders Group) were involved in a "capture" somehow, in supporting Recommendation #5 (Option #1). I can't speak for them, but presumably they made their best assessment of the facts and analysis, and supported the recommendations that were found to be best, just like every other member of the PDP. Those claiming "capture" should explain how 2 members of the Registries Stakeholders Group (same constituency as Phil Corwin) and 1 member of the Registrars Stakeholders Group were part of the consensus that is being attacked by some. It's obvious that they can't do this, completely destroying the credibility of those claiming "capture". Instead, they try to smear the group as a while with unsupportable claims. If there really was voting in "blocs", explain why both Reg Levy and myself happened to be *opposed* to Recommendation #4 (being in a minority on that one, against the consensus) -- this too is not consistent with "capture" (i.e. it's clear people made their own decisions). 3. It's no secret that I've been highly critical of ICANN staff in this PDP. The bottom of page 6 is yet another example of misinformation coming from ICANN Staff. The "Notes on #1" asserts that I (without naming me) "proposed what became Recommendation #5" -- that is a complete falsehood. In fact, it was Paul Keating who was the one who had first proposed Option #1 (which became the consensus Recommendation #5), back when the matter initially arose, as fully documented on July 21, 2016, starting on page 14: https://community.icann.org/download/attachments/60491579/transcript%20IGO%… Paul Keating: "But to state emphatically in a part of the UDRP policy that if there is subsequent litigation following a UDRP, in which the IGO requests and is granted or the court on its own grants immunity, then ****the UDRP decision itself should become a nullity.***** And the reason is, is because otherwise you're leaving a respondent with no ability to challenge a contractually appointed panel. The quality of which is not always very good. I mean, if you look at the statistics for post-UDRP litigation, the vast majority of them are overturned. And I think that to leave a respondent solely with the UDRP as their only means of addressing the issue and nothing else, I think that that’s patently unfair to the respondent. So I think that the proper choice is to place the decision at the level of the IGO. If they wish to proceed with the UDRP they're running the risk of waiver of their immunity claim. If they win and they subsequently argue immunity, and are granted immunity, ****then the UDRP decision becomes a nullity.*****" (emphasis added) Phil Corwin (now on page 15): "Yes, thanks for that input, Paul. Let me just ask - and I think what you put forward should be discussed by the group as we move toward report and recommendations. If that - let’ say there’s a decision, it goes against the registrant in the UDRP. Transfer is ordered. Registrant files in a court of mutual jurisdiction. IGO goes into that court and says they - we shouldn’t be here, we’re immune. Court agrees with them, would the IGO then - then the - ****under your scenario, the UDRP decision is also vitiated.****" (emphasis added) So, initially it was being called "nullification", and I believe Phil Corwin was the first one to use the term "vitiate." Regardless, it was Paul Keating's proposal, not mine. This history is further documented by the Adobe Connect Chat Room Transcript for the following week's call PDP call (July 28, 2016): http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-July/000552.html where we're chatting back and forth and we're using the term "nullification", I pointed out expressly that it was Paul Keating's idea: "George Kirikos:For suggestion #1 (which I don't favour; I'm in the "status quo + greater education + assignment camp), nullification should take place regardless when the court case is brough (since a court case can be brought at any time, even before the UDRP decision is rendered). George Kirikos:*brough = brought Mary Wong:Options A through D are more fully detailed in Prof Swaine's legal memo. Mary Wong:Option E brings us back to the standing issue - Phil provided a clarification last week that this, too, is an option to consider. Mary Wong:@George, but this would be a case filed by the losing respondent, right? Mary Wong:Against a UDRP decision in favor of the IGO. George Kirikos:Mary: it would be filed during the UDRP, before the panel has deemed the respondent a "loser" George Kirikos:A court case can be initiated at any time, even before the panel has made a decision. Mary Wong:Understood, but I had thought that the "nullification" point referred to vitiating the UDRP decision. George Kirikos:(that's how my company did it for the PUPA.com domain name dispute; Tucows has done the same several times, as have others) Mary Wong:Because, if there hasn't yet been a panel decision, there would not be a result to nullify. George Kirikos:Right, it would be nullified, even if the respondent didn't wait for the panel to reach a decision (i.e. they might make an adverse decision later, after the court case is brought). George Kirikos:Some panels will terminate, to defer to the courts. Some panels will still render a decision, though. George Kirikos:I didn't propose it -- Paul Keating did." The correct attribution (to Paul Keating) is certainly known by ICANN staff, as it was pointed out before, including on November 22, 2017 on the mailing list, see: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000943.html I think ICANN Staff intentionally tried to associate Option #1 as being my idea in an attempt to undermine it, trying to link its origins to someone who is personally disliked by some members of the GNSO Council, and who would vote against it on that basis alone. [Indeed, Option #1 (what is currently Recommendation #5's consensus) wasn't even my personal favourite option! (Option #7 was, which was unfortunately arrived at too late to be considered)] 4. The "Note on #6" (page 10) concerning things like "dynamics" and "process challenges" is highly one-sided. In fact, the Section 3.7 appeals were meritorious, which folks would quickly realize if they actually read the background documents. The questions raised about transparency of process were 100% valid, as the anonymous voting violated the Working Group Guidelines, justifying the first section 3.7 appeal. The 2nd Section 3.7 appeal was put forth to ensure we had adequate time to prepare our final report and to reach consensus, see: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001254.html It too was meritorious, since we finally did reach consensus on all 5 recommendations (overcoming the efforts of those who tried to manipulate the process). And, the fact that GNSO Council now wants to gain "specific insights into deliberations" (Option 6, page 4 of the document) is strong evidence that the Final Report was inadequate, a point I made repeatedly in arguing for more time to add more info documenting our rationale (ICANN staff did a horrible job summarizing our debates and arguments). In fact, I personally disavowed the Final Report in July, because it wasn't up to snuff (even after I had been apparently the only one to have proofread what was submitted, as Staff delivered a draft report at a very late date with little time to review and respond): https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001379.html "Furthermore, I do not intend to read or amend the draft Final Report any longer, while this Section 3.7 appeal is in effec. I appear to be the only person who has even attempted to read it and improve it, yet today is 1 day before it's due! We have to stop pretending that the Final Report is in good shape and ready for submission, and I won't be part of that pretending any longer. [I'll rely on my own words in my own minority statement] Specifically, I *disavow* the current draft Final Report. While I believe the Recommendations themselves have been accurately recorded, the supporting rationales and other text in that document are not in good shape yet for submission to GNSO Council." Any "process challenges" that GNSO Council should be concerned with should be instead be directed to the continued attempts by those opposed to the recommendations to manipulate the outcome of this PDP's work which is now in Council's hands. This manipulation has been going on for a long time, including the rushed final report (it was rushed supposedly because we were told it needed to be voted upon in July 2018; I think it was rushed instead in order to make it more easily attacked by those opposed to its conclusions). I pointed this out repeatedly, including in early July: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001385.html when the report's recommendations weren't put to a vote like it was supposed to be, as evidenced by the motion that was presented in advance of the GNSO Council meeting that didn't include a vote. 5. It's crucial to have studied the origins of the UDRP, to understand Consensus Recommendation #5, yet none of what follows is in the Final Report or in subsequent documents provided to Council. The history of the UDRP is documented at: https://www.icann.org/resources/pages/schedule-2012-02-25-en https://www.icann.org/resources/unthemed-pages/white-paper-2012-02-25-en "The proposals were designed to provide trademark holders with the ****same rights**** they have in the physical world, to ensure transparency, and to guarantee a dispute resolution mechanism *****with resort to a court system.***** " (emphasis added) Notice the "same rights" and "with resort to a court system." It can't get much clearer than that. Recommendation #5 provides exactly that, the same rights and resort to the court system. The White Paper goes on to say: "Further, it should be clear that whatever dispute resolution mechanism is put in place by the new corporation, that mechanism should be directed toward disputes about cybersquatting and cyberpiracy and not to settling the disputes between two parties with legitimate competing interests in a particular mark. ****Where legitimate competing rights are concerned, disputes are rightly settled in an appropriate court.**** (emphasis added) Again, Recommendation #5 accomplishes that, by ensuring that it is up to the appropriate courts to decide on the merits. IGOs ignore these facts, and are happy to instead push for binding arbitration in unaccountable kangaroo arbitration panels as being "good enough" for registrants. The issues surrounding access to the courts for a decision on the merits was well understood at the time the UDRP was created nearly 20 years. Section 4(k) of the UDRP and the corresponding URS rules were an attempt to accomplish that, but they are not entirely effective (Recommendation #5 fixes this). Indeed, if one goes to the Staff report at the time: http://archive.icann.org/en/meetings/santiago/udrp-staff-report.htm "DNSO Recommendation 4(b): The need to address the situation wherein a domain name registrant who has been unsuccessful in the ADR process is effectively prevented from "appealing" the result in a court due to the absence of a cause of action in contract, tort, regulation, statute or constitutional right. It was noted that there is an imbalance in the WIPO process in that an unsuccessful complainant will always be able to judicially challenge an ADR result by virtue of the jurisdiction of the registry being imposed over the dispute by the WIPO Report; Staff Suggestion on DNSO Recommendation 4(b): The staff agrees that both registrants and challengers should have ****equal opportunities**** to "appeal" an outcome of the administrative dispute-resolution procedure. Some commentators have suggested that the DNSO-recommended proposal would afford challengers significantly superior "appeal" rights. The staff notes that this result would be a clearly unintended consequence of the DNSO proposal. The staff believes that this concern can and should be fully addressed in the implementation of the dispute-resolution policy, which should explicitly negate this possibility." (emphasis added) The possible inability to have the access to the courts for a decision on the underlying merits due to immunity issues for IGOs was another "unintended consequence", which would be fully corrected by the Consensus Recommendation #5. Furthermore, to understand the development of UDRP's Section 4(k), see: http://www.dnso.org/dnso/notes/19990729.NCwga-report.html " The need to address the situation wherein a domain name registrant who has been unsuccessful in the ADR process is effectively prevented from appealing the result in a court due to the absence of a cause of action in contract, tort, regulation, statute or constitutional right. It was noted that there is an imbalance in the WIPO process in that an unsuccessful complainant will always be able to judicially challenge an ADR result by virtue of the jurisdiction of the registry being imposed over the dispute by the WIPO Report. One suggested solution to this problem which WG-A agrees merits further consideration, is the requirement that a complainant enter into a contract with the registrant (or the arbitral institution in a jurisdiction that recognizes third party beneficiary agreements) as a condition of initiating ADR, that provides for consent to be sued in the jurisdiction where the registrant is ordinarily resident, and in the jurisdiction where the subject registrar is located (assuming both parties do not agree to voluntarily contract out of the right to subsequent litigation). " [This history was pointed out in the RPM PDP recently, see: https://mm.icann.org/pipermail/gnso-rpm-wg/2018-October/003444.html https://mm.icann.org/pipermail/gnso-rpm-wg/2018-October/003449.html ] So, in other words, Consensus Recommendation #5 is entirely consistent with the history and purpose of the UDRP, and fixes issues that were not anticipated correctly by the current existing policy. Recommendation #5 puts both parties back in the same legal position they'd be had the UDRP/URS not taken place (which interfered with the access to the courts to render a final decision on the matter), to ensure that it's the courts that have the final say on the merits of a dispute, without interference by ICANN or its policies. It makes sure that ICANN is not granting either side any better outcome or rights from the UDRP/URS than exists in the real courts. In other words, Recommendation #5 ensures that both the IGO and the domain name registrant have the outcome determined by the courts, as was expressly desired in the development of the UDRP (which the URS is modeled on). Everything put forward by the IGOs, in trying to discredit the PDP's final report, is an attempt for IGOs to create a process that would give them better outcomes and better rights than exist in real national courts and under national laws. They want an uneven playing field, one that advantages themselves to the detriment of others. Those attempts should be vehemently opposed (which the Consensus accomplished), as otherwise it would mean ICANN would be creating its own "new law", rather than creating policies that are consistent with ***existing*** laws of nations. In conclusion, GNSO Council should adopt all the recommendations in the final report. If it requires a better explanation for the recommendations, that too can certainly be done (that's why I filed the 2nd Section 3.7 appeal!). But, that better explanation should not be done by those who've actively tried to undermine the work. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp(a)icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

1 0

MP3, Adobe Connect recording and chat transcript/ GNSO Council meeting on Thursday, 29 November 2018 at 12:00 UTC.
by Nathalie Peregrine 29 Nov '18

29 Nov '18

Dear GNSO Council, Please find below the MP3, Adobe Connect recording and chat of the GNSO Council meeting held on Thursday, 29 November 2018 at 12:00 UTC. MP3: https://participate.icann.org/p6ftoosnk6c/<https://participate.icann.org/p6ftoosnk6c/?OWASP_CSRFTOKEN=b53cd1dec1e5ee76…> Adobe Connect Recording URL: https://audio.icann.org/gnso/gnso-council-29nov18-en.mp3 <https://urldefense.proofpoint.com/v2/url?u=https-3A__audio.icann.org_gnso_g…> Adobe Connect chat at: https://gnso.icann.org/en/meetings/transcript-chat-council-29nov18-en.pdf <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_meet…> All on page: https://gnso.icann.org/en/group-activities/calendar <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_grou…> Thank you. Happy listening and reading! With kind regards, Nathalie ---

1 0

EPDP Letter to the EDPB - comments by NCSG rep on 27 November 2018
by Ayden Férdeline 29 Nov '18

29 Nov '18

Dear all, As mentioned on today's Council call in response to Darcy's question, please find below an extract from pages 19 to 21 of the [transcript of Tuesday’s EPDP](https://gnso.icann.org/sites/default/files/file/field-file-attach/tra… call by NCSG representative Stephanie Perrin (emphasis added). I share these comments as I do not think we have a consensus view as an EPDP team that the best path forward necessarily involves writing to the European Data Protection Board. Best, Ayden Férdeline --------------------------- Thanks very much. Stephanie Perrin for the record. I’m actually shocked that we’re having this discussion about this because it just seems to me such a - I’m not going to be very diplomatic, possibly I need more coffee - such a silly idea at this point that I’m mystified as to how we think we’re going to get somewhere with it. Now, the Non Commercial Stakeholder Group wrote to the Board saying, can you tell us what you have been finding out on the European Data Protection Board and all the other data commissioners you’ve been visiting for the past, well two or three years because Nigel Hickson, that was his job to go out and lobby the Berlin data commissioner a few years ago, a couple years ago, and then a huge boarding party went to the Hong Kong Data Commissioners Conference and had a side meeting with the data commissioners. Frankly, all we go back in the way of feedback is a blog, and a blog that doesn't actually say anything. So how these conversations went? Heaven only knows. The email - the letters that we've been getting back from the data commissioners are not, in my view, very comforting. And I’ve written those kinds of letters so I think I have an informed view. I cannot believe that we would actually consider writing to them, pestering them yet again with ill-formed comment before we finalized the report. Yes, our timetable says we only have one comment period but that’s not their fault. And the fact that the report as I said and have been saying for the last several weeks isn't ready to go out yet because there are too many open questions, I can't imagine that we would send that to them. I agree with what Kristina and Marc have said far more politely, but I think you have to look at it from the other side and quite frankly, they're going to do what they did when the RDS sent questions to them, a lawyer advising the Article 29 Group actually contacted me and said, can't you get these guys to hire a lawyer? So sadly, we’re another couple of years down the road, year and a half, I don't know what it is, nearly two, and the answer to that question is apparently not; we don't have independent counsel advising this group. So the questions are not really - they're improved but they - they're not the kind of thing you take to the overseers. I just can't believe we’re having this discussion. Please, explain. And if you really insist on sending a letter then have everybody that has accompanied this (crew) to all of these visits, the Hong Kong Data Commissioner’s Conference, come in and brief us so that we know exactly what's been said. Thank you.

1 0

CPH to EPDP
by Michele Neylon - Blacknight 29 Nov '18

29 Nov '18

As noted https://mm.icann.org/pipermail/gnso-epdp-team/2018-November/000994.html -- Mr Michele Neylon Blacknight Solutions Hosting, Colocation & Domains https://www.blacknight.com/ https://blacknight.blog/ Intl. +353 (0) 59 9183072 Direct Dial: +353 (0)59 9183090 Personal blog: https://michele.blog/ Some thoughts: https://ceo.hosting/ ------------------------------- Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty Road,Graiguecullen,Carlow,R93 X265,Ireland Company No.: 370845

2 1

FW: Response to "Procedural options for IGO-INGO Curative Rights PDP" email sent to GNSO Council mailing list
by Drazek, Keith 29 Nov '18

29 Nov '18

Hi all, Per our conversation today on the IGO-INGO CRP topic, please note the following email from George Kirikos, a member of the PDP WG. Regards, Keith -----Original Message----- From: George Kirikos <icann(a)leap.com> Sent: Thursday, November 29, 2018 2:01 AM To: Drazek, Keith <kdrazek(a)verisign.com>; rafik.dammak(a)gmail.com; pam.little(a)alibaba-inc.com; Nathalie Peregrine <nathalie.peregrine(a)icann.org>; Mary Wong <mary.wong(a)icann.org>; Steve Chan <steve.chan(a)icann.org>; darcy.southwell(a)endurance.com; mpsilvavalent(a)gmail.com Cc: gnso-igo-ingo-. <gnso-igo-ingo-crp(a)icann.org> Subject: [EXTERNAL] Response to "Procedural options for IGO-INGO Curative Rights PDP" email sent to GNSO Council mailing list Hello, [please forward this email to the rest of GNSO Council] On the eve of the November 29, 2018 12:00 UTC GSNO Council meeting (not observing the usual 10 day advanced notice rule for documents), ICANN staff sent various documents related to the IGO-INGO Curative Rights PDP to the GNSO Council mailing list: https://mm.icann.org/pipermail/council/2018-November/022091.html Given the limited time to review it, I can't comment on all of it at this time. However, it once again appears to present a false and one-sided view of the work of the PDP working group, in an attempt to undermine its recommendations. Furthermore, it excludes important information. 1. In the 11 page document titled "SUMMARY PAPER: STATUS, ISSUES & NEXT STEPS FOR THE IGO-INGO CURATIVE RIGHTS POLICY DEVELOPMENT PROCESS (PDP) FINAL REPORT", the first option (on page 2), namely engaging in a facilitated discussion with the GAC, ignores the fact that the the working group already fully considered the input that was provided by the IGOs (i.e. "GAC" is really just a handful of IGOs within the GAC, i.e. OECD & WIPO). Furthermore, page 2 ignores the fact that registrants subject to a UDRP or URS would also be parties who are "most affected" by recommendations. In addition, there **already*** was a "small group" convened with IGO participation, see: https://mm.icann.org/mailman/listinfo/discussion-igo-rc https://mm.icann.org/pipermail/discussion-igo-rc/ which had the participation of WIPO, OECD, and both co-chairs (at the time, before Phil Corwin resigned in 2018) of the IGO PDP, among others. Indeed, the author of the 11 page document (ICANN Staff member Mary Wong, as per the metadata of the PDF) was the first person who posted on that mailing list: https://mm.icann.org/pipermail/discussion-igo-rc/2017-January/000000.html "This list has been created as a result of the conference call of 20 December 2016 among representatives of the ICANN Board, GAC and GNSO. As a participant on that call, you have been automatically subscribed to this list, which is intended for group discussion of the proposal for a facilitated dialogue between the GAC and the GNSO, to resolve the outstanding issues on protections for IGO acronyms, the names of the Red Cross National Societies, and certain names and acronyms of the international Red Cross movement." IGOs have had their say, numerous times. All that another "facilitated dialogue" would do is attempt to mislead and misinform folks who are not subject matter experts, attempt to re-argue their past failed arguments, and furthermore exclude those who actually fully understand all the issues (i.e. the current members of the PDP working group who invested 4 years of research and analysis on the topic to come up with their consensus recommendations). IGOs have nothing new to say that hasn't already been said. 2. For option 5 (page 4) the document mentions concerns about "lack of representation", "differences between leadership and members", and "dominance by a specific group". Frankly, those are frivolous arguments that have been raised at a late date by those who failed to convince the rest of the working group as to the merits of their positions. One should immediately notice that those arguments are being made only with regards to Recommendation #5 -- if there truly was "capture", then certainly Recommendations #1 through #4 would similarly be impacted by the asserted "lack of representation", etc. Furthermore, the current co-chair and the former co-chair had every opportunity, by Section 3.2 of the working group guidelines, to determine whether "capture" had occurred, but not once did they claim it during the PDP: "The Chair, in cooperation with the Secretariat and ICANN Staff, is continually expected to assess whether the WG has sufficiently broad representation, and if not, which groups should be approached to encourage participation. Similarly, if the Chair is of the opinion that there is over-representation to the point of capture, he/she should inform the Chartering Organization." The assertions of "capture" began only *after* the co-chairs found themselves to be in a small minority and opposed to the consensus that the rest of the working group successfully achieved. After the first anonymous and non-transparent poll had been conducted in October 2017 which was consistent with the option favoured by the co-chairs, the co-chairs expressed no concerns whatsoever about "capture". It was only long afterwards, after the fully transparent procedures (as a result of my first Section 3.7 appeal) established and documented that the co-chairs were in fact in a small minority, and the consensus was for an option other than that supported by the then co-chairs, that the "capture" argument was put forth (as an attempt to undermine the Final Report's conclusions). Lastly, take a look at the documented positions and constituencies of each working group member who actually participated in the Consensus Call (as of June 12, 2018): https://docs.google.com/spreadsheets/d/e/2PACX-1vQgB2sY5AgaBZUHsHJJPLIsAwTF… (which wasn't put into the final report; later deliberations solidified the actual consensus levels as reported in the final report, as text was tweaked to satisfy various concerns that had been expressed) As was properly noted in the letter to the ICANN Board of August 16, 2018: https://www.icann.org/en/system/files/correspondence/igo-ingo-wg-to-icann-b… the working group had a broad cross-section of members from various constituencies. It's preposterous to suggest, for example, that David Maher and Crystal Ondo (both of the Registries Stakeholder Group, same as Phil Corwin) or Reg Levy (of the Registrars Stakeholders Group) were involved in a "capture" somehow, in supporting Recommendation #5 (Option #1). I can't speak for them, but presumably they made their best assessment of the facts and analysis, and supported the recommendations that were found to be best, just like every other member of the PDP. Those claiming "capture" should explain how 2 members of the Registries Stakeholders Group (same constituency as Phil Corwin) and 1 member of the Registrars Stakeholders Group were part of the consensus that is being attacked by some. It's obvious that they can't do this, completely destroying the credibility of those claiming "capture". Instead, they try to smear the group as a while with unsupportable claims. If there really was voting in "blocs", explain why both Reg Levy and myself happened to be *opposed* to Recommendation #4 (being in a minority on that one, against the consensus) -- this too is not consistent with "capture" (i.e. it's clear people made their own decisions). 3. It's no secret that I've been highly critical of ICANN staff in this PDP. The bottom of page 6 is yet another example of misinformation coming from ICANN Staff. The "Notes on #1" asserts that I (without naming me) "proposed what became Recommendation #5" -- that is a complete falsehood. In fact, it was Paul Keating who was the one who had first proposed Option #1 (which became the consensus Recommendation #5), back when the matter initially arose, as fully documented on July 21, 2016, starting on page 14: https://community.icann.org/download/attachments/60491579/transcript%20IGO%… Paul Keating: "But to state emphatically in a part of the UDRP policy that if there is subsequent litigation following a UDRP, in which the IGO requests and is granted or the court on its own grants immunity, then ****the UDRP decision itself should become a nullity.***** And the reason is, is because otherwise you're leaving a respondent with no ability to challenge a contractually appointed panel. The quality of which is not always very good. I mean, if you look at the statistics for post-UDRP litigation, the vast majority of them are overturned. And I think that to leave a respondent solely with the UDRP as their only means of addressing the issue and nothing else, I think that that’s patently unfair to the respondent. So I think that the proper choice is to place the decision at the level of the IGO. If they wish to proceed with the UDRP they're running the risk of waiver of their immunity claim. If they win and they subsequently argue immunity, and are granted immunity, ****then the UDRP decision becomes a nullity.*****" (emphasis added) Phil Corwin (now on page 15): "Yes, thanks for that input, Paul. Let me just ask - and I think what you put forward should be discussed by the group as we move toward report and recommendations. If that - let’ say there’s a decision, it goes against the registrant in the UDRP. Transfer is ordered. Registrant files in a court of mutual jurisdiction. IGO goes into that court and says they - we shouldn’t be here, we’re immune. Court agrees with them, would the IGO then - then the - ****under your scenario, the UDRP decision is also vitiated.****" (emphasis added) So, initially it was being called "nullification", and I believe Phil Corwin was the first one to use the term "vitiate." Regardless, it was Paul Keating's proposal, not mine. This history is further documented by the Adobe Connect Chat Room Transcript for the following week's call PDP call (July 28, 2016): http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-July/000552.html where we're chatting back and forth and we're using the term "nullification", I pointed out expressly that it was Paul Keating's idea: "George Kirikos:For suggestion #1 (which I don't favour; I'm in the "status quo + greater education + assignment camp), nullification should take place regardless when the court case is brough (since a court case can be brought at any time, even before the UDRP decision is rendered). George Kirikos:*brough = brought Mary Wong:Options A through D are more fully detailed in Prof Swaine's legal memo. Mary Wong:Option E brings us back to the standing issue - Phil provided a clarification last week that this, too, is an option to consider. Mary Wong:@George, but this would be a case filed by the losing respondent, right? Mary Wong:Against a UDRP decision in favor of the IGO. George Kirikos:Mary: it would be filed during the UDRP, before the panel has deemed the respondent a "loser" George Kirikos:A court case can be initiated at any time, even before the panel has made a decision. Mary Wong:Understood, but I had thought that the "nullification" point referred to vitiating the UDRP decision. George Kirikos:(that's how my company did it for the PUPA.com domain name dispute; Tucows has done the same several times, as have others) Mary Wong:Because, if there hasn't yet been a panel decision, there would not be a result to nullify. George Kirikos:Right, it would be nullified, even if the respondent didn't wait for the panel to reach a decision (i.e. they might make an adverse decision later, after the court case is brought). George Kirikos:Some panels will terminate, to defer to the courts. Some panels will still render a decision, though. George Kirikos:I didn't propose it -- Paul Keating did." The correct attribution (to Paul Keating) is certainly known by ICANN staff, as it was pointed out before, including on November 22, 2017 on the mailing list, see: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000943.html I think ICANN Staff intentionally tried to associate Option #1 as being my idea in an attempt to undermine it, trying to link its origins to someone who is personally disliked by some members of the GNSO Council, and who would vote against it on that basis alone. [Indeed, Option #1 (what is currently Recommendation #5's consensus) wasn't even my personal favourite option! (Option #7 was, which was unfortunately arrived at too late to be considered)] 4. The "Note on #6" (page 10) concerning things like "dynamics" and "process challenges" is highly one-sided. In fact, the Section 3.7 appeals were meritorious, which folks would quickly realize if they actually read the background documents. The questions raised about transparency of process were 100% valid, as the anonymous voting violated the Working Group Guidelines, justifying the first section 3.7 appeal. The 2nd Section 3.7 appeal was put forth to ensure we had adequate time to prepare our final report and to reach consensus, see: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001254.html It too was meritorious, since we finally did reach consensus on all 5 recommendations (overcoming the efforts of those who tried to manipulate the process). And, the fact that GNSO Council now wants to gain "specific insights into deliberations" (Option 6, page 4 of the document) is strong evidence that the Final Report was inadequate, a point I made repeatedly in arguing for more time to add more info documenting our rationale (ICANN staff did a horrible job summarizing our debates and arguments). In fact, I personally disavowed the Final Report in July, because it wasn't up to snuff (even after I had been apparently the only one to have proofread what was submitted, as Staff delivered a draft report at a very late date with little time to review and respond): https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001379.html "Furthermore, I do not intend to read or amend the draft Final Report any longer, while this Section 3.7 appeal is in effec. I appear to be the only person who has even attempted to read it and improve it, yet today is 1 day before it's due! We have to stop pretending that the Final Report is in good shape and ready for submission, and I won't be part of that pretending any longer. [I'll rely on my own words in my own minority statement] Specifically, I *disavow* the current draft Final Report. While I believe the Recommendations themselves have been accurately recorded, the supporting rationales and other text in that document are not in good shape yet for submission to GNSO Council." Any "process challenges" that GNSO Council should be concerned with should be instead be directed to the continued attempts by those opposed to the recommendations to manipulate the outcome of this PDP's work which is now in Council's hands. This manipulation has been going on for a long time, including the rushed final report (it was rushed supposedly because we were told it needed to be voted upon in July 2018; I think it was rushed instead in order to make it more easily attacked by those opposed to its conclusions). I pointed this out repeatedly, including in early July: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001385.html when the report's recommendations weren't put to a vote like it was supposed to be, as evidenced by the motion that was presented in advance of the GNSO Council meeting that didn't include a vote. 5. It's crucial to have studied the origins of the UDRP, to understand Consensus Recommendation #5, yet none of what follows is in the Final Report or in subsequent documents provided to Council. The history of the UDRP is documented at: https://www.icann.org/resources/pages/schedule-2012-02-25-en https://www.icann.org/resources/unthemed-pages/white-paper-2012-02-25-en "The proposals were designed to provide trademark holders with the ****same rights**** they have in the physical world, to ensure transparency, and to guarantee a dispute resolution mechanism *****with resort to a court system.***** " (emphasis added) Notice the "same rights" and "with resort to a court system." It can't get much clearer than that. Recommendation #5 provides exactly that, the same rights and resort to the court system. The White Paper goes on to say: "Further, it should be clear that whatever dispute resolution mechanism is put in place by the new corporation, that mechanism should be directed toward disputes about cybersquatting and cyberpiracy and not to settling the disputes between two parties with legitimate competing interests in a particular mark. ****Where legitimate competing rights are concerned, disputes are rightly settled in an appropriate court.**** (emphasis added) Again, Recommendation #5 accomplishes that, by ensuring that it is up to the appropriate courts to decide on the merits. IGOs ignore these facts, and are happy to instead push for binding arbitration in unaccountable kangaroo arbitration panels as being "good enough" for registrants. The issues surrounding access to the courts for a decision on the merits was well understood at the time the UDRP was created nearly 20 years. Section 4(k) of the UDRP and the corresponding URS rules were an attempt to accomplish that, but they are not entirely effective (Recommendation #5 fixes this). Indeed, if one goes to the Staff report at the time: http://archive.icann.org/en/meetings/santiago/udrp-staff-report.htm "DNSO Recommendation 4(b): The need to address the situation wherein a domain name registrant who has been unsuccessful in the ADR process is effectively prevented from "appealing" the result in a court due to the absence of a cause of action in contract, tort, regulation, statute or constitutional right. It was noted that there is an imbalance in the WIPO process in that an unsuccessful complainant will always be able to judicially challenge an ADR result by virtue of the jurisdiction of the registry being imposed over the dispute by the WIPO Report; Staff Suggestion on DNSO Recommendation 4(b): The staff agrees that both registrants and challengers should have ****equal opportunities**** to "appeal" an outcome of the administrative dispute-resolution procedure. Some commentators have suggested that the DNSO-recommended proposal would afford challengers significantly superior "appeal" rights. The staff notes that this result would be a clearly unintended consequence of the DNSO proposal. The staff believes that this concern can and should be fully addressed in the implementation of the dispute-resolution policy, which should explicitly negate this possibility." (emphasis added) The possible inability to have the access to the courts for a decision on the underlying merits due to immunity issues for IGOs was another "unintended consequence", which would be fully corrected by the Consensus Recommendation #5. Furthermore, to understand the development of UDRP's Section 4(k), see: http://www.dnso.org/dnso/notes/19990729.NCwga-report.html " The need to address the situation wherein a domain name registrant who has been unsuccessful in the ADR process is effectively prevented from appealing the result in a court due to the absence of a cause of action in contract, tort, regulation, statute or constitutional right. It was noted that there is an imbalance in the WIPO process in that an unsuccessful complainant will always be able to judicially challenge an ADR result by virtue of the jurisdiction of the registry being imposed over the dispute by the WIPO Report. One suggested solution to this problem which WG-A agrees merits further consideration, is the requirement that a complainant enter into a contract with the registrant (or the arbitral institution in a jurisdiction that recognizes third party beneficiary agreements) as a condition of initiating ADR, that provides for consent to be sued in the jurisdiction where the registrant is ordinarily resident, and in the jurisdiction where the subject registrar is located (assuming both parties do not agree to voluntarily contract out of the right to subsequent litigation). " [This history was pointed out in the RPM PDP recently, see: https://mm.icann.org/pipermail/gnso-rpm-wg/2018-October/003444.html https://mm.icann.org/pipermail/gnso-rpm-wg/2018-October/003449.html ] So, in other words, Consensus Recommendation #5 is entirely consistent with the history and purpose of the UDRP, and fixes issues that were not anticipated correctly by the current existing policy. Recommendation #5 puts both parties back in the same legal position they'd be had the UDRP/URS not taken place (which interfered with the access to the courts to render a final decision on the matter), to ensure that it's the courts that have the final say on the merits of a dispute, without interference by ICANN or its policies. It makes sure that ICANN is not granting either side any better outcome or rights from the UDRP/URS than exists in the real courts. In other words, Recommendation #5 ensures that both the IGO and the domain name registrant have the outcome determined by the courts, as was expressly desired in the development of the UDRP (which the URS is modeled on). Everything put forward by the IGOs, in trying to discredit the PDP's final report, is an attempt for IGOs to create a process that would give them better outcomes and better rights than exist in real national courts and under national laws. They want an uneven playing field, one that advantages themselves to the detriment of others. Those attempts should be vehemently opposed (which the Consensus accomplished), as otherwise it would mean ICANN would be creating its own "new law", rather than creating policies that are consistent with ***existing*** laws of nations. In conclusion, GNSO Council should adopt all the recommendations in the final report. If it requires a better explanation for the recommendations, that too can certainly be done (that's why I filed the 2nd Section 3.7 appeal!). But, that better explanation should not be done by those who've actively tried to undermine the work. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

1 0

GNSO Council Abstention Notification Form [#291]
by ICANN 29 Nov '18

29 Nov '18

1 0