On 1 Nov 2014, at 12:39 am, Winterfeldt, Brian J. <brian.winterfeldt@kattenlaw.com> wrote:

Thanks very much for your comments, David.

I would pose the exact same questions back with respect to the suggestion to add “data protection and privacy law.”

And it is a good question to ask, but mostly because the answer will illuminate what I was getting at. Which is do not confuse advocacy positions with deep expertise. I see the NCA role as largely enhancing the expertise to which the council has access, not somehow balancing our various policy priorities. Constituencies might choose representatives for their ability to advocate for specific positions, but I do not at all see that as the role of the NomCom, who should be appointing people based on their expertise, IMO. Because I regard myself as a privacy enthusiast, and to have of course some experience in advocacy related to privacy, but I do not regard myself as an expert on the related law. I regard myself as having true expert knowledge on some things relevant to council deliberations (particularly technical matters - I have a computer science degree and technical background, and can talk for hours about how content serving, and privacy and security enhancing technology, relates to the DNS), but not data privacy law. This distinction - between having some experience and interest, and true expert knowledge - is what I was getting at. I certainly regard Stephanie as having true expertise in data protection and privacy law, given she was employed for decades in the area, but it is unusual for council to have someone with that level of expertise, and given how common an issue it is in policy matters that concern the GNSO, I wish we had more councillors with expertise in the area. Similarly, I regard myself as a strong advocate for human rights, but I certainly don't regard myself as a human rights expert (though for example Joy Liddicoat, who was a Human Rights Commissioner for several years, I would regard as an expert).

Likewise, pardon my teasing, but are you suggesting that the six representatives the NCSG already generally provides to council are somehow inadequate in this regard?

Well, I certainly think most of the NCSG councillors are not experts in privacy and data protection law. Most of are advocates in this area, but the majority of us are advocates rather than true experts (though, like all of our councillors, we have expertise in other areas). Don't confuse advocacy positions with deep expertise. John Berrard, for example, as a Board Member at International Association of Privacy Professionals and working with TRUSTe and so on, definitely has much stronger expertise in privacy law than many NCSG councillors, and we have lost his expertise from the Council (though not from the GNSO policy process). And I think it is very clear that, as I've said several times, in relation to privacy and data protection law, the council, and the GNSO generally, and ICANN generally, do not currently have the capacity necessary to do a good job of negotiating our way through the many complex policy issues related to data protection and privacy law that we are engaged in. I don't think the NCSG should be the only group within ICANN to have that expertise, nor do I think we currently are. But I do think we could do with more. (by contrast, it has always been my impression than ICANN generally, or the GNSO in particular, never has any problems at all finding enough intellectual property expertise. I've never known an ICANN policy process to find itself worrying that it just can't find any trademark lawyers).

In the end, I think it would be great if more folks in leadership positions within ICANN exhibited a demonstrated comprehension (and better yet, a commitment toward the protection) of intellectual property law.

Again, you are not seeing the distinction I was getting at between a general comprehension and commitment to a position, and serious expertise. I think I have a *general comprehension* of intellectual property law, maybe even a bit more than that in some areas despite my lack of a law degree, but I would presume that you (as a qualified attorney whose practice concentrates on the area) have rather more than a 'general comprehension'. The NCSG actually historically has fairly often brought intellectual property law *expertise* to council, more often than it has brought data protection law expertise. Previous NCSG/NCUC councillors Robin Gross and Wendy Seltzer, for example, are both attorneys who have specific expertise in intellectual property law. You might disagree with their policy positions and advocacy goals, but again, my point was about expertise. So I will say one thing in favour of your position - it is good if expertise is spread around a little. Perhaps we do need more intellectual property law expertise in the council, just so it is not all concentrated in the one constituency. Cheers David

Best regards,

Brian

Brian J. Winterfeldt Head of Internet Practice Katten Muchin Rosenman LLP 2900 K Street NW, North Tower - Suite 200 / Washington, DC 20007-5118 p / (202) 625-3562 f / (202) 339-8244

575 Madison Avenue / New York, NY 10022-2585 p / (212) 940.6762 f / (212) 894.5585 brian.winterfeldt@kattenlaw.com / www.kattenlaw.com

From: David Cake Sent: Friday, October 31, 2014 5:09:36 AM (UTC-05:00) Eastern Time (US & Canada) To: Winterfeldt, Brian J. Cc: council@gnso.icann.org Subject: Re: [council] FW: NomCom appointee skill sets

I would have thought this was an odd request for the IPC to make, as it implies the two intellectual property lawyers that IPC already generally provides to council are somehow inadequate. Or perhaps you are suggesting that council needs more people who are able to provide an expert intellectual property law perspective from outside the IPC, in which case I agree :-)

But if you'll pardon my teasing above - more seriously, while I absolutely agree that intellectual property law expertise is valuable to council, I would have thought intellectual property law is also one area of expertise that council is pretty much guaranteed to possess, and the NomCom appointees are designed more to fill gaps, rather than bolster areas of relative strength?

David

On 30 Oct 2014, at 11:59 pm, Winterfeldt, Brian J. <brian.winterfeldt@kattenlaw.com> wrote:

Dear all:

Based on recommendations by others, and a shift from the ambiguous to the explicit, I note that intellectual property law is absent from the criteria. Accordingly I would ask for the following amendment.

§ International law § Competition law § Intellectual property law § Public interest issues § Consumer rights § Human rights § Economics, especially market analysis § Market mechanisms and dynamics § Business principles

Thank you,

Brian

Brian J. Winterfeldt Head of Internet Practice Katten Muchin Rosenman LLP 2900 K Street NW, North Tower - Suite 200 / Washington, DC 20007-5118 p / (202) 625-3562 f / (202) 339-8244

575 Madison Avenue / New York, NY 10022-2585 p / (212) 940.6762 f / (212) 894.5585 brian.winterfeldt@kattenlaw.com / www.kattenlaw.com

________________________________________ From: owner-council@gnso.icann.orgOn Behalf OfVolker Greimann Sent: Thursday, October 30, 2014 8:43:28 AM (UTC-05:00) Eastern Time (US & Canada) To: David Cake; jrobinson@afilias.info Cc: council@gnso.icann.org Subject: Re: [council] FW: NomCom appointee skill sets

I agree with David's suggested additions.

instead of financial services businesses, general business experience may be more appropriate.

Volker

Am 30.10.2014 07:15, schrieb David Cake:

...

I would consider adding to the list of variable criteria: - data protection and privacy law - broader internet governance activities

I'm also not sure why 'the special needs of financial services businesses' is on that list - not that I have a strong objection to anyone having this expertise, but I do not recall any item of council business having looked at this area in the last couple of years (though it is possible something is slipping my mind).

David

On 30 Oct 2014, at 10:02 am, Jonathan Robinson <jrobinson@afilias.info> wrote:

...

<NomCom - GNSO Candidate Criteria.docx>

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