FYI ________________________________ From: Phil Corwin Sent: Wednesday, August 9, 2017 10:09 AM To: Jeff Neuman; Rafik Dammak Cc: GNSO Council List; James Bladel (jbladel@godaddy.com); Heather Forrest; avri@apc.org; Steve Chan Subject: Re: [council] Fwd: Note on Work Track 5 Thanks for the very comprehensive and informative response, Jeff. I am generally fine with everything you have written; the one exception that gives me a bit of pause is this-- 1. The Working Group guidelines in the PDP Manual are silent on the methodology by which a Sub-team measures consensus. Again we will emphasize as best we can how we work in the GNSO without voting. But at the end of the day if the co-leaders would like to use voting, straw polls, etc., that would be their prerogative. I don't find the silence in the PDP Manual regarding the methodology by which a subteam measures consensus to mean that a subteam has free rein to utilize any method it wishes. Not to be flippant, but if a subteam decided it wanted to appoint one member to act as benevolent dictator and decide what its consensus position should be that wouldn't pass muster in my opinion. I believe that the Manual is likely silent on this issue because the underlying assumption is that the subteam is merely a subordinate unit of the full WG created for operational efficiency, derives all of its authority from the full WG, and is bound to utilize the same final decision making process as its parent. That doesn't mean that I would oppose voting, straw polls, etc. as means of testing the presence or absence of consensus with the subteam. What I would object to is determining its final recommendations for consideration in a manner that accorded the collective representatives of each SO and AC within the subteam with a single vote, thereby replicating the decision making process of a CCWG. It's this possibility of employing a CCWG methodology within the context of a GNSO PDP that has me concerned. As noted above, the foundation of my position is the view that a subteam derives all its authority from the full WG. Therefore, a subteam should not be permitted to determine consensus in a manner that would not be permissible for the full WG under GNSO rules. But there is another concern as well. While the intent of accommodating non-GNSO entities in this manner is to ameliorate conflict, I'm concerned about its potential to exacerbate conflict at the next stage. If the subteam makes utilizes a CCWG voting methodology to report policy recommendations that are subsequently overturned or substantially modified by the full WG, that could lead non-GNSO parties (the GAC in particular) to charge that the GNSO decision making process does not give sufficient weight to its views, and that a CCWG approach should always be used to address certain types of gTLD issues arising in the future. I want to avoid that potential confrontation and potential erosion of GNSO authority over gTLD policy matters. Of course, it may well be that the subteam never employs the CCWG voting methodology, in which event my concerns will prove irrelevant. Nonetheless, I wanted to get them on the record now. Enjoy your vacation, as I have been enjoying mine. Very best, Philip Philip S. Corwin Founding Principal Virtualaw LLC 1155 F Street, NW Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VLawDC "Luck is the residue of design" -- Branch Rickey ________________________________ From: Jeff Neuman <jeff.neuman@comlaude.com> Sent: Tuesday, August 8, 2017 11:23 PM To: Phil Corwin; Rafik Dammak Cc: GNSO Council List; James Bladel (jbladel@godaddy.com); Heather Forrest; avri@apc.org; Steve Chan Subject: RE: [council] Fwd: Note on Work Track 5 Thanks Phil. Sorry to interrupt your vacation. I leave on mine tomorrow đ Again I cant post this to the Council list, but I would answer your questions in the following way: 1. The leadership of the PDP WG (along with ICANN staff) is working on a draft terms of reference document that will set forth a very narrow scope of the work for Work Track 5 which will be limited to providing policy recommendations on the use of âgeographic termsâ at the top-level. I have put quotes around the term geographic names because I would guess that one of their first tasks would be to provide a concrete definition of what is meant by a geographic term. 1. As Avri and I have explained to GAC members previously, the GNSO does not measure consensus by the taking of votes, but rather by using the definitions set forth in the Working Group guidelines. That is what we will put into our draft terms of reference. 1. Our goal is to provide each of the nominated leaders with the draft terms of reference at our first meeting (hopefully by the end of August), for their review. It is our hope that the leaders will discuss amongst themselves any changes or edits to propose to the terms of reference such that this document could be provided both to the newly constituted Work Track 5 for its approval, then to the full PDP Working Group for their approval. (I know I am skipping all of the back and forth discussing the terms of reference, editing, etc. for brevity sake). 1. The Working Group guidelines in the PDP Manual are silent on the methodology by which a Sub-team measures consensus. Again we will emphasize as best we can how we work in the GNSO without voting. But at the end of the day if the co-leaders would like to use voting, straw polls, etc., that would be their prerogative. 1. As with all of the Work Tracks, the policy recommendations will then be provided to the full working group for its consideration. It is our hope that if the process was successful within Work Track 5, there should not be much additional work within the full WG to finalize those recommendations. 1. All recommendations of the Full WG will be put out for public comment. That will include all of the recommendations of each of the Work Teams as approved by the Full Working Group. 1. After review and consideration of the comments, the full working group may again utilize the work teams to incorporate the comments (and respond to any comments not incorporated). The Full Working Group Chairs will then assess the level of consensus reached by the Working Group on each of the recommendations and provide a final report with its recommendations to the Council. 1. The GNSO Council will then follow the Bylaws process and decide to forward the recommendations to the Board (or choose to send back to the WG). 1. Each of the other SOs and ACs will be able to use their own processes to provide advice or policy recommendations (in the case of the ccNSO) with respect to our work just as they could with anything else coming out of the GNSO. This is my view of the process moving forward. The goal is to try and be as inclusive as possible such that if recommendations come out of the GNSO on these issues, the Board will understand that we did everything in our power to get consensus within the community, such that it would be very difficult for the board to not accept the policy recommendations coming out of the GNSO. I hope this helps. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: Phil Corwin [mailto:psc@vlaw-dc.com] Sent: Tuesday, August 8, 2017 10:04 PM To: Rafik Dammak <rafik.dammak@gmail.com>; Jeff Neuman <jeff.neuman@comlaude.com> Cc: GNSO Council List <council@gnso.icann.org>; James Bladel (jbladel@godaddy.com) <jbladel@godaddy.com>; Heather Forrest <haforrestesq@gmail.com>; avri@apc.org; Steve Chan <steve.chan@icann.org> Subject: Re: [council] Fwd: Note on Work Track 5 I'm on vacation in Maine and just saw Jeff's response, which I appreciate. For the sake of efficiency, let me pose two questions, as it may not be necessary to go deeper depending on the answers: --Will WT 5 be providing an analytical and data framework for the full WG to decide on policy recommendations regarding Geo names in subsequent rounds, or will it be forwarding specific policy recommendations to the full WG? --If it will be forwarding specific policy recommendations to the WG, by what decision making process will it arrive at those recommendations? In this regard, how would one characterize the difference between the manner in which a GNSO PDP WG determines concensus and that in which a CCWG determines consensus. I am not trying to be difficult, but I believe there are some important precedents and potential pitfalls and want to make sure that I fully understand what is contemplated before commenting further. Thanks, Philip Philip S. Corwin Founding Principal Virtualaw LLC 1155 F Street, NW Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VLawDC "Luck is the residue of design" -- Branch Rickey ________________________________ From: Rafik Dammak <rafik.dammak@gmail.com<mailto:rafik.dammak@gmail.com>> Sent: Tuesday, August 8, 2017 7:27 PM To: Jeff Neuman Cc: Phil Corwin; GNSO Council List; James Bladel (jbladel@godaddy.com<mailto:jbladel@godaddy.com>); Heather Forrest; avri@apc.org<mailto:avri@apc.org>; Steve Chan Subject: Re: [council] Fwd: Note on Work Track 5 Hi Jeff, Thanks for the response. reading Phil clarification, I understand that the concerns are about replicating CCWG methods&framework in WT5 in particular when he describes decision-making process: having the notion of voting representatives from each SO/AC and all that means in term of changing the nature of usual consensus-building in GNSO working group. Best, Rafik 2017-08-09 0:39 GMT+09:00 Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>: Phil, I cannot post to the Council list, so if you or someone could repostâŚ. Where in the Working Group Guidelines does it state your position? See https://gnso.icann.org/en/improvements/gnso-working-group-guidelines-final-1..., Section 2.3. The only thing in Section 2.3 that comes close to addressing this isâŚâ the Chair should ensure that the sub-team is properly balanced with the appropriate skills and resources to ensure successful completion. It is recommended that the sub-team appoints a co-ordinator who heads up the sub-team and is responsible for providing regular progress updates to the Working Group.â Nothing in that section would prohibit the determination of consensus within that group to be like that in a CCWG. Again with the caveat that the it then goes to the SubPro PDP full working group to then measure consensus in accordance with the Working Group guidelines. Best regards, Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514<tel:+1%20703-635-7514> M: +1.202.549.5079<tel:+1%20202-549-5079> @Jintlaw From: council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org> [mailto:council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>] On Behalf Of Phil Corwin Sent: Tuesday, August 8, 2017 10:13 AM To: Rafik Dammak <rafik.dammak@gmail.com<mailto:rafik.dammak@gmail.com>> Cc: GNSO Council List <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Fwd: Note on Work Track 5 Thanks Rafik. To be as clear as possible, I have no concern with and actively support efforts to engage leadership and participation from groups outside of GNSO - and specifically ALAC and GAC -- in WT5 efforts focusing on Geo names in any subsequent round. I am merely trying to ascertain that the method by which WT5 adopts any recommendations that it reports up to the full WG will be one that is consistent with PDP procedures and not one that is modeled on CCWG decision making procedures, including voting representatives from each SO/AC. While I understand that the full WG's final recommendations will be determined in the usual PDP manner, I do not believe it is permissible or advisable to permit a different decision making process at the subteam level. I hope that clarifies my position. Best, Philip Philip S. Corwin Founding Principal Virtualaw LLC 1155 F Street, NW Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VLawDC "Luck is the residue of design" -- Branch Rickey ________________________________ From: Rafik Dammak <rafik.dammak@gmail.com<mailto:rafik.dammak@gmail.com>> Sent: Monday, August 7, 2017 7:29 PM To: Phil Corwin Cc: Heather Forrest; GNSO Council List Subject: Re: [council] Fwd: Note on Work Track 5 Hi Phil, if I understand correctly the work track outcome will go to the whole working group anyway. We are not following the CCWG framework here with voting representatives from each SO/AC etc. The working group is only asking ccNSO and GAC to nominate a co-leaders but that doesn't change the open membership of the group or how it will use consensus. Since ccNSO and GAC are not chartering organizations here, I don't see any change in the decision-making process and the GNSO retain the control, if it is right to say that, of the whole process. I understand there are concerns about CCWG be seen as the silver bullet for all issues but I believe we are crystal clear that gTLD policies are the remit of solely GNSO (like in our responses to GAC communique). Getting other stakeholders input and participation is consistent with the GNSO PDP manual. do you have some example of risk in mind? will a more explicit outline of the decision making, aligned with GNSO OP, within the WT5 and in relation to the WG alleviate your concerns? I think we can also request the council liaison to the WG to follow the WT5 more closely. Best, Rafik 2017-08-08 7:28 GMT+09:00 Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>: My primary concern relates to whether the decision making process to be used by the sub team would be permissible for the full WG and is consistent with relevant GNSO rules and guidelines. If it makes such decisions in the manner of a CCWG, and they are then subject to subsequent reversal or substantial modification using a different decisional approach, that could exacerbate rather than ameliorate the debate. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VLawDC "Luck is the residue of design" -- Branch Rickey Sent from my iPad On Aug 7, 2017, at 4:00 PM, Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> wrote: Dear colleagues, Jeff's email below deals with some of the questions raised here on the list about SubPro WT5. James, Donna and I can update further after we talk with the SubPro leadership tomorrow. Best wishes, Heather ---------- Forwarded message ---------- From: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Date: Tue, Aug 8, 2017 at 5:49 AM Subject: Note on Work Track 5 To: "James Bladel (jbladel@godaddy.com<mailto:jbladel@godaddy.com>)" <jbladel@godaddy.com<mailto:jbladel@godaddy.com>>, Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>, "Austin, Donna" <Donna.Austin@team.neustar<mailto:Donna.Austin@team.neustar>> Cc: avri doria <avri@apc.org<mailto:avri@apc.org>>, Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>, Emily Barabas <emily.barabas@icann.org<mailto:emily.barabas@icann.org>>, Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>>, Marika Konings <marika.konings@icann.org<mailto:marika.konings@icann.org>> All, It seems that there have been a number of questions on the operation and establishment of Work Track 5 on the GNSO Council Mailing list. I am not able to post on that list, but ask that this be forwarded. I have not run this response by Avri, but I would hope she agrees. According to the GNSO Working Group Guidelines, found at https://gnso.icann.org/en/improvements/gnso-working-group-guidelines-final-1..., Section 2.3 states: â2.3. Use of Sub-Teams The WG may decide to employ sub-teams as an efficient means of delegating topics or assignments to be completed. Sub-team members need to have a clear understanding of issues they work on as well as the results to be achieved. The members of sub-teams report their results to whole working group for review and approval. The WG should indicate whether or not it would like to have meetings of the sub-team recorded and/or transcribed. Any member of the WG may serve on any sub-team; however, depending upon the specific tasks to be accomplished, the Chair should ensure that the sub-team is properly balanced with the appropriate skills and resources to ensure successful completion. It is recommended that the sub-team appoints a co-ordinator who heads up the sub-team and is responsible for providing regular progress updates to the Working Group. There is no need for formal confirmation by the CO or WG of such a co-ordinator. The lifespan of a sub-team should not extend beyond that of the Working Group. Decisions made by sub-teams should always be shared with the larger working group and a call for consensus must be made by the entire WG. â This is what Avri and I are doing. We are setting up a âSub Teamâ which we are calling a âWork Track.â Other than the last sentence of ensuring that all decisions go to the larger working group, there are no other restrictions on the operation of a Sub Team. Therefore, we believe that the choice of leadership, how meetings are conducted, the name of the group, membership, etc. is at our (the co-chairâs) discretion. Yes, all of the recommendations from this Work Track will of course go to the full Working Group, just as they will for all of the other Work Tracks. On the question of whether this will set a precedent on how Sub Teams will be used in the future, I will leave that to the folks who look back at this time period in 15 years or so. But if it works and strengthens the multi-stakeholder process, while still having it operate under the rubric of the GNSO, would that not be a positive precedent? I appreciate the Council interest in this and encourage you all to bring that enthusiasm to Work Track 5. Please let me know if you have any other questions. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514<tel:(703)%20635-7514> M: +1.202.549.5079<tel:(202)%20549-5079> @Jintlaw _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council