I should apologize for having typed the email below on my blackberry. NO spell check. My apologies for the spelling errors. Hopefully, they did not obscure the concerned request. Marilyn _____ From: Marilyn Cade [mailto:marilynscade@hotmail.com] Sent: Sunday, October 22, 2006 4:07 PM To: daniel.halloran@icann.org; council@gnso.icann.org Subject: PDP-Feb06 Terms of Reference and the "Picket Fence"/suggestion to Council/ICANN Dear Dan I appreciate seeing this post, since COuncil and its TF have been waiting for a report/supporting materials that we know now are not being developed. Decisions of this nature happen in an organization. timeliness of hearing about such a possibilty is critical. However, I am both disappointed that you didn't give us this information on the GNSO Council call, so that we could have discussed options with you, and disappointed that it took so long to find out that the staff would not be able, for whatever reason, to fulfill the Council's request. While the nature of Council's request was initially broader, I raise to you, the Council Chair, and the Council, the potential to modify the request. I suggest taht we ask Dan for a simple documentation of whether and how the picket fence issues are applied. Without comparison, or contrast, and without any discussion of in or out of scope. As an elected Councilor, I am spending a lot of time, as an unpaid volunteer, on the TF adn on the Council reading contracts adn reveiwing materials. I am not paid by anyone to do this work and am not in any way repesenting any clients who have an interest in the outcome. I am an elected BC councilor and my responsibilties are to represent the interests of business users. this is really a plea to have more staff support to help the TF and the GNSO Council do their job. We can certainly continue to drill through this without such support and that may be necessary. The time demands become quickly unreasonably burdensome, however. Just having the sections identified, as you did earlier, in the rather robust even if not easy to print document, was a great help. It is still a great tool. I do think that it is possible to improve the useability of that resource [i have a couple of ideas of how you might do that so it can be printed, and one of them comes from my long years of dealing with side by sides in policy matters as routinely prepared by legal teams; and two: can you do the simpler form of the document requested? and by when could you do it? We really have to get to an improved interaction in the very near term. Ideally, having encountered the situation that you identified, we would have a conf. call with you adn the Council and problem solve. I respect that you are busy however, really, it woudl have been better to have told the Council on the call of this situation. taht way we could have problem solved. Getting an email after the Council has met, when we cannot discuss this with you and problem solve is disappointing and not an effective way to improve our own effectiveness. We can try to improve the willingness to "team work " on our side, perhaps by having the flexibiilty of calling a short urgent discussion by conf. call with more flexibiity. that way, you can more easily, and effectively discuss options with the Councilors. I do greatly appreciate your efforts; perhaps my suggestions offer a path forward. Marilyn Cade BC Councilor, and Rapporteur to Group A, PDP-Feb06 _____ From: Daniel Halloran <daniel.halloran@icann.org> To: council@gnso.icann.org Subject: [council] PDP-Feb06 Terms of Reference and the "Picket Fence" Date: Fri, 20 Oct 2006 16:43:24 -0700
Bruce,
This note is with respect to the resolution from the GNSO Council on 28 September 2006:
"The GNSO Council resolves:
a) To instruct the PDPFeb06 task force to continue its work, to appoint an interim chair
b) To instruct staff to propose a work schedule in agreement with the interim chair and Task Force this week and carry it out
c) To ask the General Counsel within 14 days to list all ICANN agreements sections on consensus policy
d) To ask the General Counsel within 14 days to compare and contrast the PDP06 Terms of Reference with the so -called "picket fence" consensus policy areas and provide a without prejudice assessment of likelihood of in or out of scope indicating uncertainty as necessary.
[1] List all ICANN agreements sections on consensus policy
General Counsel's office has sent tables to the PDP-Feb06 Task Force on October 4 and October 9 providing an overview and a comprehensive listing of all the relevant agreement provisions. The complete set of contractual provisions is included in a document currently posted on the GNSO Drafts and Working Documents" page at <http:// gnso.icann.org/drafts/>. The General Counsel's office would appreciate any feedback Council members could offer to make those documents more useful for you.
[2] Compare and contrast the PDP06 Terms of Reference with the so- called "picket fence" consensus policy areas and provide a without prejudice assessment of likelihood of in or out of scope indicating uncertainty as necessary
The Council's second request turns out to be much more complex -- in effect the Council has asked for legal opinions on hundreds of complex questions: the terms of reference for PDP-Feb06 include eleven (11) separate questions (e.g. whether or not there should be a policy guiding renewal, whether or not there should be a policy guiding registry fees to ICANN, etc.), and some versions of the "picket fence" of policy topics for which a Registry Operator has an ongoing contractual obligation to comply with New or Revised ICANN Specifications and Policies include ten (10) or more different categories of topics. The "compare and contrast" exercise the Council requested requires first speculating what sort of recommendation might come out of the PDP on each of the eleven questions, and then hypothesizing whether or not such a recommendation might fall under one or more of the ten or so categories of topics for consensus policies. This task is further complicated by the fact that there is no one formulation of "the" picket fence, but instead the topics for consensus policies vary from contract to contract. Some contracts (.AERO, .COOP, .MUSEUM, .NET, and the proposed new contracts for .BIZ, .COM, .INFO and .ORG) also include not just a list of subjects that are agreed to be within the "picket fence" set of topics for policies but also a list of topics that are expressly agreed to be outside the "picket fence" of topics for policies.
Recent agreements have identified five main policy areas where a Registry Operator has a contractual obligation to comply with new or revised policies:
(1) issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, Security and/or Stability of the Internet or DNS;
(2) functional and performance specifications for the provision of Registry Services;
(3) Security and Stability of the registry database for the TLD;
(4) registry policies reasonably necessary to implement Consensus Policies relating to registry operations or registrars; or
(5) resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names).
This compares with the six main topics of PDP-Feb06:
1. Registry Agreement Renewal
2. Relationship between registry agreements and consensus policies
3. Policy for price controls for registry services
4. ICANN fees
5. Uses of registry data
6. Investments in development and infrastructure
The majority of the topics above seem to relate to the framework of the registry agreement itself, rather than to the set of five topics areas where a Registry Operator must comply with new or revised policies after the signing of the agreement. The topics above would appear to be most relevant in the development of a new framework registry agreement for future negotiations.
The Council's resolution indicated that these requested legal opinions could be offered by the ICANN General Counsel's office "without prejudice," but in reality there is no such thing as a "policy-development privilege" ... any statements that ICANN's lawyers make on a public mailing list about the interpretation of ICANN's contracts or the applicability of ICANN's policies could be admissible if relevant in any current or future litigation involving ICANN. The initial Issues Report for PDP-Feb06 <http:// gnso.icann.org/issues/gtld-policies/issues-report-02feb06.pdf> included the General Counsel's opinion that the focus of the PDP as initially framed by the Council was not "properly within the scope of the ICANN policy process and within the scope of the GNSO." The Council subsequently restated its intended focus in its adopted terms of reference <http://gnso.icann.org/issues/gtld-policies/tor- pdp-28feb06.html>, but it remains difficult to speculate whether or not particular hypothetical recommendations that could be made by the task force would be within the scope of the ICANN policy process or the "picket fence" of topics for policies in ICANN's agreements. In light of the variations in the Registry Agreements and the lack of a specific policy recommendation to the ICANN Board, the General Counsel's office cannot provide any more specific information at this time.
I hope the above information is helpful. Please let me know if you have any questions or if I can be of any other assistance.
Best regards, Daniel Halloran Deputy General Counsel ICANN