FOR YOUR INFORMATION: Update from Chris Disspain on the IGO protections issue
Dear Councilors, Please find attached a note from ICANN Board member Chris Disspain that he has asked be forwarded to the Council, as a follow up to the discussions that took place in Helsinki on the issue of IGO acronym protections. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong@icann.org Telephone: +1-603-5744889
In the note from Chris Disspain, he on one hand states "As we noted in Helsinki, this would be the appropriate next step since the GNSO is responsible for gTLD policy development", so he acknowledges that the GNSO is indeed responsible for gTLD policy development, but then continues with "The outcome of the GNSO’s deliberations will then be considered by the Board in its determination of whether it will accept the GNSO’s recommendations as consistent with GAC advice or not." So what happens (procedurally) if the Board does not accept the GNSO recommendations as "consistent with GAC advice"? Julf
Hi Julf and everyone, I can’t speak for Chris, so please let us know if you have follow up questions for him. However, perhaps the following staff observation can be helpful. During the discussion between the Council and the Board in Helsinki, several Board members were quite clear that the Board is not the place where substantive policy decisions are made – rather, when different parts of the community come up with different advice, it’s for the Board to facilitate bringing the groups’ positions together rather than just deciding which position to adopt based on the Board’s own wishes. In other words, they see the Board as helping to frame the discussion going forward rather than coming up with its own policy. If, ultimately, there is no resolution of the conflict and the Board is faced with different and inconsistent advice, there are specific processes in the Bylaws for the Board to use in proceeding with next steps. For instance, the Bylaws provide for certain mechanisms if the Board rejects GAC advice on the one hand, and other mechanisms if on the other hand the Board rejects GNSO policy recommendations. I believe these alternatives were outlined by Chris in Helsinki as well. While the GAC has already issued its advice on the matter, there is still a possibility that the GNSO may modify its policy should it decide it is justified and appropriate to do so (for which the applicable GNSO process is documented in the PDP Manual). In addition, the GNSO’s IGO-INGO Curative Rights PDP has yet to be completed. Assuming the GNSO does not change its policy recommendations and the Curative Rights PDP recommendations are also different from GAC advice, the Board will then have to decide whether to adopt the GAC advice or the GNSO policy – which would not be the case if the inconsistencies between the GAC and the GNSO recommendations are reconciled. I hope this is helpful. The transcript of the GNSO-Board discussion in Helsinki can be found here: https://gnso.icann.org/en/meetings/transcript-gnso-board-27jun16-en.pdf. Cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong@icann.org Telephone: +1-603-5744889 On 8/22/16, 17:18, "owner-council@gnso.icann.org on behalf of Johan Helsingius" <owner-council@gnso.icann.org on behalf of julf@julf.com> wrote: In the note from Chris Disspain, he on one hand states "As we noted in Helsinki, this would be the appropriate next step since the GNSO is responsible for gTLD policy development", so he acknowledges that the GNSO is indeed responsible for gTLD policy development, but then continues with "The outcome of the GNSO’s deliberations will then be considered by the Board in its determination of whether it will accept the GNSO’s recommendations as consistent with GAC advice or not." So what happens (procedurally) if the Board does not accept the GNSO recommendations as "consistent with GAC advice"? Julf
Hi, Mary, Thanks for the useful information!
For instance, the Bylaws provide for certain mechanisms if the Board rejects GAC advice on the one hand, and other mechanisms if on the other hand the Board rejects GNSO policy recommendations.
I guess my question was really about those mechanisms in the case of the latter alternative. Julf
Hello again Julf and everyone, For your convenience here are the relevant excerpts from the ICANN Bylaws describing the applicable processes in the event that the Board decides not to follow either GAC advice or GNSO policy recommendations. For the GAC, the relevant process is detailed in Article XI, Section 2 as follows: - “The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. - If no such solution can be found, the ICANN Board will state in its final decision the reasons why the Governmental Advisory Committee advice was not followed, and such statement will be without prejudice to the rights or obligations of Governmental Advisory Committee members with regard to public policy issues falling within their responsibilities.” For the GNSO, the relevant process is detailed in Annex A, Section 9 as follows: - “Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN … - In the event that the Board determines … that the policy recommended … is not in the best interests of the ICANN community or ICANN (the Corporation), the Board shall (i) articulate the reasons for its determination in a report to the Council (the "Board Statement"); and (ii) submit the Board Statement to the Council. - The Council shall review the Board Statement for discussion with the Board as soon as feasible after the Council's receipt of the Board Statement. The Board shall determine the method (e.g., by teleconference, e-mail, or otherwise) by which the Council and Board will discuss the Board Statement. - At the conclusion of the Council and Board discussions, the Council shall meet to affirm or modify its recommendation, and communicate that conclusion (the "Supplemental Recommendation") to the Board, including an explanation for the then-current recommendation. In the event that the Council is able to reach a GNSO Supermajority Vote on the Supplemental Recommendation, the Board shall adopt the recommendation unless more than two-thirds (2/3) of the Board determines that such policy is not in the interests of the ICANN community or ICANN. For any Supplemental Recommendation approved by less than a GNSO Supermajority Vote, a majority vote of the Board shall be sufficient to determine that the policy in the Supplemental Recommendation is not in the best interest of the ICANN community or ICANN.” Cheers Mary On 8/22/16, 18:52, "owner-council@gnso.icann.org on behalf of Johan Helsingius" <owner-council@gnso.icann.org on behalf of julf@julf.com> wrote: Hi, Mary, Thanks for the useful information! > For instance, the Bylaws provide for certain mechanisms if > the Board rejects GAC advice on the one hand, and other > mechanisms if on the other hand the Board rejects GNSO > policy recommendations. I guess my question was really about those mechanisms in the case of the latter alternative. Julf
Thanks, Mary, for pulling this material together. It is good to have it at the ready as we prepare for the Board response that Chris mentioned in his letter. But it¹s worth noting that we shouldn¹t assume the GNSO Council will invoke this process. Depending upon how the Board responds, we may seek to modify our original recommendations, or let them stand, or pursue some other course of action. Thanks‹ J. On 8/22/16, 12:43 , "owner-council@gnso.icann.org on behalf of Mary Wong" <owner-council@gnso.icann.org on behalf of mary.wong@icann.org> wrote:
Hello again Julf and everyone,
For your convenience here are the relevant excerpts from the ICANN Bylaws describing the applicable processes in the event that the Board decides not to follow either GAC advice or GNSO policy recommendations.
For the GAC, the relevant process is detailed in Article XI, Section 2 as follows: - ³The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. - If no such solution can be found, the ICANN Board will state in its final decision the reasons why the Governmental Advisory Committee advice was not followed, and such statement will be without prejudice to the rights or obligations of Governmental Advisory Committee members with regard to public policy issues falling within their responsibilities.²
For the GNSO, the relevant process is detailed in Annex A, Section 9 as follows: - ³Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN Š - In the event that the Board determines Š that the policy recommended Š is not in the best interests of the ICANN community or ICANN (the Corporation), the Board shall (i) articulate the reasons for its determination in a report to the Council (the "Board Statement"); and (ii) submit the Board Statement to the Council. - The Council shall review the Board Statement for discussion with the Board as soon as feasible after the Council's receipt of the Board Statement. The Board shall determine the method (e.g., by teleconference, e-mail, or otherwise) by which the Council and Board will discuss the Board Statement. - At the conclusion of the Council and Board discussions, the Council shall meet to affirm or modify its recommendation, and communicate that conclusion (the "Supplemental Recommendation") to the Board, including an explanation for the then-current recommendation. In the event that the Council is able to reach a GNSO Supermajority Vote on the Supplemental Recommendation, the Board shall adopt the recommendation unless more than two-thirds (2/3) of the Board determines that such policy is not in the interests of the ICANN community or ICANN. For any Supplemental Recommendation approved by less than a GNSO Supermajority Vote, a majority vote of the Board shall be sufficient to determine that the policy in the Supplemental Recommendation is not in the best interest of the ICANN community or ICANN.²
Cheers Mary
On 8/22/16, 18:52, "owner-council@gnso.icann.org on behalf of Johan Helsingius" <owner-council@gnso.icann.org on behalf of julf@julf.com> wrote:
Hi, Mary,
Thanks for the useful information!
For instance, the Bylaws provide for certain mechanisms if the Board rejects GAC advice on the one hand, and other mechanisms if on the other hand the Board rejects GNSO policy recommendations.
I guess my question was really about those mechanisms in the case of the latter alternative.
Julf
Fellow Councilors: Here is my personal take on all this. As outlined in Chris’ letter: · For nearly two years, since October 2014, a Board subgroup has been meeting behind closed doors with selected GAC and IGO representatives (which have only an advisory role regarding gTLD policy) to discuss differing GNSO and GAC recommendations regarding certain protections for IGOs. During this entire period the same Board subgroup has engaged in no similar discussions with GNSO representatives, even though the GNSO is the policy-making body for gTLDs. · During this extended period of closed door discussions with GAC and IGO advisors “the Board has not yet been able to consider the substantive nature of the GNSO policy recommendations that remain outstanding”. Perhaps engaging in parallel discussions with GNSO representatives would have assisted such substantive consideration. It is very troubling that a Board subgroup has engaged in extended discussions with GAC and IGO representatives when, by its own admission, it and the full Board have not yet given substantive consideration to the GNSO’s policy recommendations on the same matters. · The Board subgroup still has no response to the Council’s letter of May 31, 2016, which was nearly a quarter of a year ago -- only a statement that “my sense is that we will be in a position to refer the substantive proposals to you shortly for your consideration”. · When the GNSO finally receives those substantive proposals, “suggestions relating to dispute resolution will most likely have to be referred to the ongoing IGO-INGO Curative Rights PDP”. Speaking now as Co-Chair of that referenced IGO CRP WG, while GAC and IGO participation in that WG has not constituted a full boycott, it has been minimal and sporadic despite outreach efforts by both Co-Chairs and ICANN policy staff, and certainly far less than GAC and IGO engagement with the Board subgroup. Our WG is currently engaged in developing an outline for a draft final report and recommendations, which we hope to issue for public comment just prior to the ICANN 57 meeting – so the window for considering any substantive suggestions from the Board subgroup is rapidly closing, and will likely be shut by the end of September (of course, GAC and IGO comments on the draft report will be considered). Again, speaking personally, I believe that the procedure followed by the Board in this matter constitutes a good example of how differing positions between the GNSO and GAC should not be handled. The Board’s procedure has not been even-handed, in that it has engaged in a largely non-transparent process with governmental policy advisors while having no equivalent engagement with those private sector/civil society representatives charged with setting policy. Its recommendations from those one-sided discussions have not been delivered in a timely manner, which has frustrated Council members and may soon make any such recommendations irrelevant to the drafting of the IGO CRP WG’s final report and recommendations. And, overall, its actions may encourage GAC members and IGOs to engage in closed policy discussions with the Board, and thereby undermine initiatives taken by the GNSO to encourage early GAC engagement in the policy-making process (noting further that even if the GAC does continue to better engage in the policy-making process, what has transpired on this matter may set a precedent for a “two bites at the apple” approach whereby any PDP recommendations that are not to the GAC’s satisfaction can be contested through extended closed door, one-sided discussions with the Board). Summing up, my major concern is not that the Board’s process “has taken a longer time than any of us had anticipated”, but that this is not “a procedurally sound way to approach resolution of the issue” notwithstanding the Board’s belief that it is. There must be a more efficient and even-handed way to both consider differing GAC advice while recognizing the lead role of the GNSO in setting gTLD policy than what has transpired in this instance. Thank you for considering my personal views in this matter. I will consult further with the BC Excomm prior to any discussion of this matter on our September 1st call. Best, Philip 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 From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mary Wong Sent: Monday, August 22, 2016 3:02 AM To: council@gnso.icann.org Subject: [council] FOR YOUR INFORMATION: Update from Chris Disspain on the IGO protections issue Dear Councilors, Please find attached a note from ICANN Board member Chris Disspain that he has asked be forwarded to the Council, as a follow up to the discussions that took place in Helsinki on the issue of IGO acronym protections. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong@icann.org<mailto:mary.wong@icann.org> Telephone: +1-603-5744889 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7752 / Virus Database: 4633/12811 - Release Date: 08/15/16 Internal Virus Database is out of date.
Phil, thanks for your explanation of what happened with this process over the last two years which I couldn’t follow the whole range. When I read Chris’ letter I thought I could agree with the board’s approach of refraining from a decision rather than facilitating the discussion between the differing poles GAC and GNSO. But this had to happen in a balanced way which obviously didn’t. I do not hope this is just tactics to put the GNSO in time pressure but there is an effect like this. I agree that ways should be found for improvement. This is stuff for discussion with the board in Hyderabad. Best regards Wolf-Ulrich From: Phil Corwin Sent: Monday, August 22, 2016 5:21 PM To: Mary Wong ; council@gnso.icann.org Subject: [council] RE: FOR YOUR INFORMATION: Update from Chris Disspain on the IGO protections issue Fellow Councilors: Here is my personal take on all this. As outlined in Chris’ letter: · For nearly two years, since October 2014, a Board subgroup has been meeting behind closed doors with selected GAC and IGO representatives (which have only an advisory role regarding gTLD policy) to discuss differing GNSO and GAC recommendations regarding certain protections for IGOs. During this entire period the same Board subgroup has engaged in no similar discussions with GNSO representatives, even though the GNSO is the policy-making body for gTLDs. · During this extended period of closed door discussions with GAC and IGO advisors “the Board has not yet been able to consider the substantive nature of the GNSO policy recommendations that remain outstanding”. Perhaps engaging in parallel discussions with GNSO representatives would have assisted such substantive consideration. It is very troubling that a Board subgroup has engaged in extended discussions with GAC and IGO representatives when, by its own admission, it and the full Board have not yet given substantive consideration to the GNSO’s policy recommendations on the same matters. · The Board subgroup still has no response to the Council’s letter of May 31, 2016, which was nearly a quarter of a year ago -- only a statement that “my sense is that we will be in a position to refer the substantive proposals to you shortly for your consideration”. · When the GNSO finally receives those substantive proposals, “suggestions relating to dispute resolution will most likely have to be referred to the ongoing IGO-INGO Curative Rights PDP”. Speaking now as Co-Chair of that referenced IGO CRP WG, while GAC and IGO participation in that WG has not constituted a full boycott, it has been minimal and sporadic despite outreach efforts by both Co-Chairs and ICANN policy staff, and certainly far less than GAC and IGO engagement with the Board subgroup. Our WG is currently engaged in developing an outline for a draft final report and recommendations, which we hope to issue for public comment just prior to the ICANN 57 meeting – so the window for considering any substantive suggestions from the Board subgroup is rapidly closing, and will likely be shut by the end of September (of course, GAC and IGO comments on the draft report will be considered). Again, speaking personally, I believe that the procedure followed by the Board in this matter constitutes a good example of how differing positions between the GNSO and GAC should not be handled. The Board’s procedure has not been even-handed, in that it has engaged in a largely non-transparent process with governmental policy advisors while having no equivalent engagement with those private sector/civil society representatives charged with setting policy. Its recommendations from those one-sided discussions have not been delivered in a timely manner, which has frustrated Council members and may soon make any such recommendations irrelevant to the drafting of the IGO CRP WG’s final report and recommendations. And, overall, its actions may encourage GAC members and IGOs to engage in closed policy discussions with the Board, and thereby undermine initiatives taken by the GNSO to encourage early GAC engagement in the policy-making process (noting further that even if the GAC does continue to better engage in the policy-making process, what has transpired on this matter may set a precedent for a “two bites at the apple” approach whereby any PDP recommendations that are not to the GAC’s satisfaction can be contested through extended closed door, one-sided discussions with the Board). Summing up, my major concern is not that the Board’s process “has taken a longer time than any of us had anticipated”, but that this is not “a procedurally sound way to approach resolution of the issue” notwithstanding the Board’s belief that it is. There must be a more efficient and even-handed way to both consider differing GAC advice while recognizing the lead role of the GNSO in setting gTLD policy than what has transpired in this instance. Thank you for considering my personal views in this matter. I will consult further with the BC Excomm prior to any discussion of this matter on our September 1st call. Best, Philip 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 From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mary Wong Sent: Monday, August 22, 2016 3:02 AM To: council@gnso.icann.org Subject: [council] FOR YOUR INFORMATION: Update from Chris Disspain on the IGO protections issue Dear Councilors, Please find attached a note from ICANN Board member Chris Disspain that he has asked be forwarded to the Council, as a follow up to the discussions that took place in Helsinki on the issue of IGO acronym protections. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong@icann.org Telephone: +1-603-5744889 -------------------------------------------------------------------------------- No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7752 / Virus Database: 4633/12811 - Release Date: 08/15/16 Internal Virus Database is out of date.
participants (5)
-
James M. Bladel -
Johan Helsingius -
Mary Wong -
Phil Corwin -
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