GAC advice and the IGO PDP
Hi folks, I hope everyone is enjoying the start of the weekend. Late last night, ICANN released a decision in the Independent Review of the .africa matter. See: https://www.icann.org/news/announcement-2-2015-07-10-en https://www.icann.org/en/system/files/files/final-declaration-09jul15-en.pdf http://domainincite.com/18944-new-gtld-program-thrown-into-chaos-as-icann-lo... Parts of the decision are redacted, which raises questions of its own regarding ICANN transparency. However, the panel had much to say about GAC advice. 1. It ruled that GAC is a constituent body of ICANN (paragraph 101, page 43). 2. ICANN's own witness, Heather Dryden (former GAC chair), according to the panel, testified that the "GAC did not act with transparency or in a manner designed to insure fairness" (paragraph 102, pages 43-44). Rather, Ms. Dryden testified that "we talk about creative ambiguity. We leave things unclear so we don't have conflict" (paragraph 102, page 44) 3. Most damningly, the panel said in paragraph 104 (pages 44-45) that "Ms. Dryden also stated that the GAC made its decision without providing any rationale and primarily based on politics and not on potential violations of national laws and sensitivities." This appears to be quite similar to the "advice" that the GAC has provided to ICANN and to this very PDP (via its "answers") 4. In paragraph 110 (pages 46-47), Ms. Dryden admitted that the GAC isn't using sound and reasoned technical or legal analysis to come up with its advice, but is instead influenced by politics "And that's the nature of -- of the political process." (with much redacted after that answer) 5. Ms. Dryden also testified (still in paragraph 110, page 52) that GAC advice is issued with no rationale: "THE WITNESS: Problematic, violate national law -- there are a lot of laws -- and sensitivities does strike me as being quite broad. [...] ARBITRATOR KESSEDJIAN: Okay. So we are left with what? No rules? THE WITNESS: No rationale with the consensus objections. That's the -- the effect." 6. This was not consistent with ICANN's bylaws, e.g. paragraph 113 (page 53), "In light of the clear “Transparency” obligation provisions found in ICANN’s Bylaws, the Panel would have expected the ICANN Board to, at a minimum, investigate the matter further before rejecting DCA Trust’s application." How does the IRP decision affect this PDP? I believe no deference should be given to any of the answers or positions provided by the GAC, unless accompanied by clear and convincing facts and rationale, along with evidence that there's been substantive deliberations to arrive at a position. The GAC has not been transparent with how it reaches its positions, nor has it elaborated on its reasoning to assist this PDP. In particular, its 2 page letter of April 29, 2015 does not come close to the standard that is demanded by ICANN bylaws, and thus should be given no deference. In my opinion, the IGOs have (to date) hesitated to participate in this PDP, perhaps in the misguided belief that they could rely instead on their ability to influence the GAC behind closed doors. This IRP decision should be considered a harsh rebuke to that approach. If the IGOs really want to affect the outcome of this PDP, they should actively engage with us by providing facts and analysis, rather than using a "political" approach. In conclusion, this PDP should not be influenced by politics (points #3 and #4 above), but should instead be built on a foundation of a careful analysis of facts and laws. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
Thanks George, I am in general agreement. Along these lines, is anyone aware, or can Staff please inform us, as to the who is in the "informal small group" referenced in the GAC Communique as having made "progress" on the topic of IGO names, what are they discussing exactly, where is the transparency around that effort, and when is it supposed to conclude? There are quite a few IGO names issues up in the air, where there is a difference of opinion between GAC and GNSO, and the Board is trying to reconcile. This WG covers just one aspect -- IGO names at the second level. The remaining issues (i.e. proposed protections at the top level) must also be dragged out into the light, and then a compromise reached to resolve all issues -- not just the one this WG is considering. This "informal small group" does not appear to have any official charter or public presence, yet the GAC is citing their progress and goal to develop a "concrete proposal" before Dublin. The community, and particularly this WG, ought to be informed and involved in the work of that group. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Sat, Jul 11, 2015 at 6:29 AM, George Kirikos <icann@leap.com> wrote:
Hi folks,
I hope everyone is enjoying the start of the weekend. Late last night, ICANN released a decision in the Independent Review of the .africa matter. See:
https://www.icann.org/news/announcement-2-2015-07-10-en
https://www.icann.org/en/system/files/files/final-declaration-09jul15-en.pdf
http://domainincite.com/18944-new-gtld-program-thrown-into-chaos-as-icann-lo...
Parts of the decision are redacted, which raises questions of its own regarding ICANN transparency.
However, the panel had much to say about GAC advice.
1. It ruled that GAC is a constituent body of ICANN (paragraph 101, page 43).
2. ICANN's own witness, Heather Dryden (former GAC chair), according to the panel, testified that the "GAC did not act with transparency or in a manner designed to insure fairness" (paragraph 102, pages 43-44). Rather, Ms. Dryden testified that "we talk about creative ambiguity. We leave things unclear so we don't have conflict" (paragraph 102, page 44)
3. Most damningly, the panel said in paragraph 104 (pages 44-45) that "Ms. Dryden also stated that the GAC made its decision without providing any rationale and primarily based on politics and not on potential violations of national laws and sensitivities." This appears to be quite similar to the "advice" that the GAC has provided to ICANN and to this very PDP (via its "answers")
4. In paragraph 110 (pages 46-47), Ms. Dryden admitted that the GAC isn't using sound and reasoned technical or legal analysis to come up with its advice, but is instead influenced by politics "And that's the nature of -- of the political process." (with much redacted after that answer)
5. Ms. Dryden also testified (still in paragraph 110, page 52) that GAC advice is issued with no rationale:
"THE WITNESS: Problematic, violate national law -- there are a lot of laws -- and sensitivities does strike me as being quite broad. [...] ARBITRATOR KESSEDJIAN: Okay. So we are left with what? No rules? THE WITNESS: No rationale with the consensus objections. That's the -- the effect."
6. This was not consistent with ICANN's bylaws, e.g. paragraph 113 (page 53), "In light of the clear “Transparency” obligation provisions found in ICANN’s Bylaws, the Panel would have expected the ICANN Board to, at a minimum, investigate the matter further before rejecting DCA Trust’s application."
How does the IRP decision affect this PDP? I believe no deference should be given to any of the answers or positions provided by the GAC, unless accompanied by clear and convincing facts and rationale, along with evidence that there's been substantive deliberations to arrive at a position. The GAC has not been transparent with how it reaches its positions, nor has it elaborated on its reasoning to assist this PDP.
In particular, its 2 page letter of April 29, 2015 does not come close to the standard that is demanded by ICANN bylaws, and thus should be given no deference.
In my opinion, the IGOs have (to date) hesitated to participate in this PDP, perhaps in the misguided belief that they could rely instead on their ability to influence the GAC behind closed doors. This IRP decision should be considered a harsh rebuke to that approach. If the IGOs really want to affect the outcome of this PDP, they should actively engage with us by providing facts and analysis, rather than using a "political" approach.
In conclusion, this PDP should not be influenced by politics (points #3 and #4 above), but should instead be built on a foundation of a careful analysis of facts and laws.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Hello Mike and everyone, Some of these questions had been raised in previous WG calls, but it may be helpful to consolidate what we can in a single note, so thank you for following up on this. The IGO ³small group² was formed as a result of discussions between the NGPC and the GAC (where the IGOs are observers) at the Los Angeles meeting, in October 2014. This grew out of NGPC-GAC discussions over the NGPC¹s proposal of March 2014, which in turn was produced in direct response to the full Board¹s resolution of February 2014 (in which the Board acknowledged the GNSO¹s original policy recommendations on IGO protections, which the GNSO Council had adopted in November 2013 being the set of consensus recommendations from the original IGO PDP that Thomas Rickert chaired). The NGPC¹s March 2014 proposal had been sent to the GNSO Council as well, and in September 2014 Chris Disspain (NGPC member and the Board ³shepherd² for the topic of IGO protections) participated in a GNSO Council meeting, to discuss the status of the NGPC-GAC discussions. This was viewed by the Council as particularly timely as the NGPC had asked the GNSO (in June) whether it would be amenable to amending those of its adopted policy recommendations that are inconsistent with GAC advice. As I understand it, the members of the IGO "small group² are basically a subset of the IGO Coalition that participated in the original GNSO IGO-INGO PDP in 2012-13, working with the GAC leadership and those GAC members that had internally been working on the topic of IGO protections. To the extent that there seems to be a ³primary² contact point for that group, I believe it is the OECD. Sorry if all these dates and details are a bit convoluted; maybe this set of chronological bullet points will help: * Feb 2014 Board acknowledgement of GNSO original PDP recommendations and request to NGPC to develop proposal: https://www.icann.org/resources/board-material/resolutions-2014-02-07-en#2.a * March 2014 NGPC proposal: https://gnso.icann.org/en/correspondence/chalaby-to-robinson-20mar14-en.pdf * Sept 2014 Discussion between GNSO Council and Chris Disspain: http://gnso.icann.org/en/meetings/minutes-council-04sep14-en.htm * Oct 2014 Letter from Jonathan Robinson to Cherine Chelaby and Chris Disspain confirming outcomes of Sept discussion: http://gnso.icann.org/en/correspondence/robinson-to-chalaby-disspain-07oct14 -en.pdf * Jan 2015 Letter from Cherine Chelaby to Jonathan Robinson updating the GNSO on status of the discussions with the GAC: http://gnso.icann.org/en/correspondence/chalaby-to-robinson-15jan15-en.pdf * Mar 2015 GAC Singapore Communique: https://gacweb.icann.org/download/attachments/27132037/GAC_SINGAPORE52_COMMU NIQUE_FINAL2.pdf?version=1&modificationDate=1423724031000&api=v2 * Jun 2015 GAC Buenos Aires Communique: https://gacweb.icann.org/download/attachments/27132037/GAC%20Buenos%20Aires% 2053%20Communique.pdf?version=1&modificationDate=1435188375963&api=v2 I hope this helps provide the background to the formation of the ³small group² and to the GAC¹s latest Communique. Cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong@icann.org From: <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Mike Rodenbaugh <mike@rodenbaugh.com> Date: Wednesday, July 15, 2015 at 03:47 To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP
Thanks George, I am in general agreement.
Along these lines, is anyone aware, or can Staff please inform us, as to the who is in the "informal small group" referenced in the GAC Communique as having made "progress" on the topic of IGO names, what are they discussing exactly, where is the transparency around that effort, and when is it supposed to conclude?
There are quite a few IGO names issues up in the air, where there is a difference of opinion between GAC and GNSO, and the Board is trying to reconcile. This WG covers just one aspect -- IGO names at the second level. The remaining issues (i.e. proposed protections at the top level) must also be dragged out into the light, and then a compromise reached to resolve all issues -- not just the one this WG is considering.
This "informal small group" does not appear to have any official charter or public presence, yet the GAC is citing their progress and goal to develop a "concrete proposal" before Dublin. The community, and particularly this WG, ought to be informed and involved in the work of that group.
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 <tel:%2B1.415.738.8087> http://rodenbaugh.com
On Sat, Jul 11, 2015 at 6:29 AM, George Kirikos <icann@leap.com> wrote:
Hi folks,
I hope everyone is enjoying the start of the weekend. Late last night, ICANN released a decision in the Independent Review of the .africa matter. See:
https://www.icann.org/news/announcement-2-2015-07-10-en https://www.icann.org/en/system/files/files/final-declaration-09jul15-en.pdf http://domainincite.com/18944-new-gtld-program-thrown-into-chaos-as-icann-lo... es-africa-case
Parts of the decision are redacted, which raises questions of its own regarding ICANN transparency.
However, the panel had much to say about GAC advice.
1. It ruled that GAC is a constituent body of ICANN (paragraph 101, page 43).
2. ICANN's own witness, Heather Dryden (former GAC chair), according to the panel, testified that the "GAC did not act with transparency or in a manner designed to insure fairness" (paragraph 102, pages 43-44). Rather, Ms. Dryden testified that "we talk about creative ambiguity. We leave things unclear so we don't have conflict" (paragraph 102, page 44)
3. Most damningly, the panel said in paragraph 104 (pages 44-45) that "Ms. Dryden also stated that the GAC made its decision without providing any rationale and primarily based on politics and not on potential violations of national laws and sensitivities." This appears to be quite similar to the "advice" that the GAC has provided to ICANN and to this very PDP (via its "answers")
4. In paragraph 110 (pages 46-47), Ms. Dryden admitted that the GAC isn't using sound and reasoned technical or legal analysis to come up with its advice, but is instead influenced by politics "And that's the nature of -- of the political process." (with much redacted after that answer)
5. Ms. Dryden also testified (still in paragraph 110, page 52) that GAC advice is issued with no rationale:
"THE WITNESS: Problematic, violate national law -- there are a lot of laws -- and sensitivities does strike me as being quite broad. [...] ARBITRATOR KESSEDJIAN: Okay. So we are left with what? No rules? THE WITNESS: No rationale with the consensus objections. That's the -- the effect."
6. This was not consistent with ICANN's bylaws, e.g. paragraph 113 (page 53), "In light of the clear ³Transparency² obligation provisions found in ICANN¹s Bylaws, the Panel would have expected the ICANN Board to, at a minimum, investigate the matter further before rejecting DCA Trust¹s application."
How does the IRP decision affect this PDP? I believe no deference should be given to any of the answers or positions provided by the GAC, unless accompanied by clear and convincing facts and rationale, along with evidence that there's been substantive deliberations to arrive at a position. The GAC has not been transparent with how it reaches its positions, nor has it elaborated on its reasoning to assist this PDP.
In particular, its 2 page letter of April 29, 2015 does not come close to the standard that is demanded by ICANN bylaws, and thus should be given no deference.
In my opinion, the IGOs have (to date) hesitated to participate in this PDP, perhaps in the misguided belief that they could rely instead on their ability to influence the GAC behind closed doors. This IRP decision should be considered a harsh rebuke to that approach. If the IGOs really want to affect the outcome of this PDP, they should actively engage with us by providing facts and analysis, rather than using a "political" approach.
In conclusion, this PDP should not be influenced by politics (points #3 and #4 above), but should instead be built on a foundation of a careful analysis of facts and laws.
Sincerely,
George Kirikos 416-588-0269 <tel:416-588-0269> http://www.leap.com/ _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Thank you Mary However we really need to know WHO exactly is in this "small group" and open a dialogue with them. Otherwise there will be a collision of proposals and it is unseemly that one group will remain unidentified with the ability to act politically. Sincerely, Paul Keating, Esq.
On Jul 15, 2015, at 6:14 PM, Mary Wong <mary.wong@icann.org> wrote:
Hello Mike and everyone,
Some of these questions had been raised in previous WG calls, but it may be helpful to consolidate what we can in a single note, so thank you for following up on this.
The IGO “small group” was formed as a result of discussions between the NGPC and the GAC (where the IGOs are observers) at the Los Angeles meeting, in October 2014. This grew out of NGPC-GAC discussions over the NGPC’s proposal of March 2014, which in turn was produced in direct response to the full Board’s resolution of February 2014 (in which the Board acknowledged the GNSO’s original policy recommendations on IGO protections, which the GNSO Council had adopted in November 2013 – being the set of consensus recommendations from the original IGO PDP that Thomas Rickert chaired).
The NGPC’s March 2014 proposal had been sent to the GNSO Council as well, and in September 2014 Chris Disspain (NGPC member and the Board “shepherd” for the topic of IGO protections) participated in a GNSO Council meeting, to discuss the status of the NGPC-GAC discussions. This was viewed by the Council as particularly timely as the NGPC had asked the GNSO (in June) whether it would be amenable to amending those of its adopted policy recommendations that are inconsistent with GAC advice.
As I understand it, the members of the IGO "small group” are basically a subset of the IGO Coalition that participated in the original GNSO IGO-INGO PDP in 2012-13, working with the GAC leadership and those GAC members that had internally been working on the topic of IGO protections. To the extent that there seems to be a “primary” contact point for that group, I believe it is the OECD.
Sorry if all these dates and details are a bit convoluted; maybe this set of chronological bullet points will help: Feb 2014 – Board acknowledgement of GNSO original PDP recommendations and request to NGPC to develop proposal: https://www.icann.org/resources/board-material/resolutions-2014-02-07-en#2.a March 2014 – NGPC proposal: https://gnso.icann.org/en/correspondence/chalaby-to-robinson-20mar14-en.pdf Sept 2014 – Discussion between GNSO Council and Chris Disspain: http://gnso.icann.org/en/meetings/minutes-council-04sep14-en.htm Oct 2014 – Letter from Jonathan Robinson to Cherine Chelaby and Chris Disspain confirming outcomes of Sept discussion: http://gnso.icann.org/en/correspondence/robinson-to-chalaby-disspain-07oct14... Jan 2015 – Letter from Cherine Chelaby to Jonathan Robinson updating the GNSO on status of the discussions with the GAC: http://gnso.icann.org/en/correspondence/chalaby-to-robinson-15jan15-en.pdf Mar 2015 – GAC Singapore Communique: https://gacweb.icann.org/download/attachments/27132037/GAC_SINGAPORE52_COMMU... Jun 2015 – GAC Buenos Aires Communique: https://gacweb.icann.org/download/attachments/27132037/GAC%20Buenos%20Aires%... I hope this helps provide the background to the formation of the “small group” and to the GAC’s latest Communique.
Cheers Mary
Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong@icann.org
From: <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Mike Rodenbaugh <mike@rodenbaugh.com> Date: Wednesday, July 15, 2015 at 03:47 To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP
Thanks George, I am in general agreement.
Along these lines, is anyone aware, or can Staff please inform us, as to the who is in the "informal small group" referenced in the GAC Communique as having made "progress" on the topic of IGO names, what are they discussing exactly, where is the transparency around that effort, and when is it supposed to conclude?
There are quite a few IGO names issues up in the air, where there is a difference of opinion between GAC and GNSO, and the Board is trying to reconcile. This WG covers just one aspect -- IGO names at the second level. The remaining issues (i.e. proposed protections at the top level) must also be dragged out into the light, and then a compromise reached to resolve all issues -- not just the one this WG is considering.
This "informal small group" does not appear to have any official charter or public presence, yet the GAC is citing their progress and goal to develop a "concrete proposal" before Dublin. The community, and particularly this WG, ought to be informed and involved in the work of that group.
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com
On Sat, Jul 11, 2015 at 6:29 AM, George Kirikos <icann@leap.com> wrote: Hi folks,
I hope everyone is enjoying the start of the weekend. Late last night, ICANN released a decision in the Independent Review of the .africa matter. See:
https://www.icann.org/news/announcement-2-2015-07-10-en https://www.icann.org/en/system/files/files/final-declaration-09jul15-en.pdf http://domainincite.com/18944-new-gtld-program-thrown-into-chaos-as-icann-lo...
Parts of the decision are redacted, which raises questions of its own regarding ICANN transparency.
However, the panel had much to say about GAC advice.
1. It ruled that GAC is a constituent body of ICANN (paragraph 101, page 43).
2. ICANN's own witness, Heather Dryden (former GAC chair), according to the panel, testified that the "GAC did not act with transparency or in a manner designed to insure fairness" (paragraph 102, pages 43-44). Rather, Ms. Dryden testified that "we talk about creative ambiguity. We leave things unclear so we don't have conflict" (paragraph 102, page 44)
3. Most damningly, the panel said in paragraph 104 (pages 44-45) that "Ms. Dryden also stated that the GAC made its decision without providing any rationale and primarily based on politics and not on potential violations of national laws and sensitivities." This appears to be quite similar to the "advice" that the GAC has provided to ICANN and to this very PDP (via its "answers")
4. In paragraph 110 (pages 46-47), Ms. Dryden admitted that the GAC isn't using sound and reasoned technical or legal analysis to come up with its advice, but is instead influenced by politics "And that's the nature of -- of the political process." (with much redacted after that answer)
5. Ms. Dryden also testified (still in paragraph 110, page 52) that GAC advice is issued with no rationale:
"THE WITNESS: Problematic, violate national law -- there are a lot of laws -- and sensitivities does strike me as being quite broad. [...] ARBITRATOR KESSEDJIAN: Okay. So we are left with what? No rules? THE WITNESS: No rationale with the consensus objections. That's the -- the effect."
6. This was not consistent with ICANN's bylaws, e.g. paragraph 113 (page 53), "In light of the clear “Transparency” obligation provisions found in ICANN’s Bylaws, the Panel would have expected the ICANN Board to, at a minimum, investigate the matter further before rejecting DCA Trust’s application."
How does the IRP decision affect this PDP? I believe no deference should be given to any of the answers or positions provided by the GAC, unless accompanied by clear and convincing facts and rationale, along with evidence that there's been substantive deliberations to arrive at a position. The GAC has not been transparent with how it reaches its positions, nor has it elaborated on its reasoning to assist this PDP.
In particular, its 2 page letter of April 29, 2015 does not come close to the standard that is demanded by ICANN bylaws, and thus should be given no deference.
In my opinion, the IGOs have (to date) hesitated to participate in this PDP, perhaps in the misguided belief that they could rely instead on their ability to influence the GAC behind closed doors. This IRP decision should be considered a harsh rebuke to that approach. If the IGOs really want to affect the outcome of this PDP, they should actively engage with us by providing facts and analysis, rather than using a "political" approach.
In conclusion, this PDP should not be influenced by politics (points #3 and #4 above), but should instead be built on a foundation of a careful analysis of facts and laws.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Hello Paul and everyone, As Phil noted in an email to the group recently, a promising dialogue between our co-chairs Petter and Phil, facilitated by Mason Cole (GNSO-GAC liaison), and the GAC leadership was opened in Buenos Aires. Thomas Schneider, the GAC chair, is of course part of the ³small group², which is the agreed forum for the continuing dialogue between the GAC and the NGPC on IGO protections overall. It was therefore helpful to have had Thomas and two of the GAC Vice Chairs meet with Petter, Phil and Mason in Buenos Aires, given that our Working Group is deliberating one aspect of the possible protections that can be afforded to IGO acronyms, i.e. certain curative rights mechanisms. The understanding from that meeting is that conversations would continue with Petter, Phil and Mason while the NGPC and ³small group² continue to discuss the broader topic. This gels with the GAC¹s acknowledgement, in at least one Communique, of the work of our Working Group. While I do not have the definitive list of members of the ³small group², it may be helpful to note that the IGO coalition that participated in the original IGO-INGO PDP consisted of over 40 IGOs and 15 UN Funds and Programs (see, e.g. the IGO coalition¹s Minority Statement to that PDP¹s Final Report: https://gnso.icann.org/en/issues/igo-ingo-final-minority-positions-10nov13-e n.pdf the statement was filed by the OECD, WIPO and the UPU on behalf of the coalition and to the best of my knowledge these three IGOs are thus also members of the ³small group²). As the GNSO Council is also aware of the discussions between the ³small group² and the NGPC, the additional dialogue channel opened in Buenos Aires will hopefully also be useful in assisting the GNSO, GAC and Board (NGPC) resolve the issue of IGO protections, as appropriate to the scope of this WG and each organization. Cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong@icann.org From: Paul Keating <paul@law.es> Date: Wednesday, July 15, 2015 at 22:38 To: Mary Wong <mary.wong@icann.org> Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP
Thank you Mary
However we really need to know WHO exactly is in this "small group" and open a dialogue with them. Otherwise there will be a collision of proposals and it is unseemly that one group will remain unidentified with the ability to act politically.
Sincerely, Paul Keating, Esq.
On Jul 15, 2015, at 6:14 PM, Mary Wong <mary.wong@icann.org> wrote:
Hello Mike and everyone,
Some of these questions had been raised in previous WG calls, but it may be helpful to consolidate what we can in a single note, so thank you for following up on this.
The IGO ³small group² was formed as a result of discussions between the NGPC and the GAC (where the IGOs are observers) at the Los Angeles meeting, in October 2014. This grew out of NGPC-GAC discussions over the NGPC¹s proposal of March 2014, which in turn was produced in direct response to the full Board¹s resolution of February 2014 (in which the Board acknowledged the GNSO¹s original policy recommendations on IGO protections, which the GNSO Council had adopted in November 2013 being the set of consensus recommendations from the original IGO PDP that Thomas Rickert chaired).
The NGPC¹s March 2014 proposal had been sent to the GNSO Council as well, and in September 2014 Chris Disspain (NGPC member and the Board ³shepherd² for the topic of IGO protections) participated in a GNSO Council meeting, to discuss the status of the NGPC-GAC discussions. This was viewed by the Council as particularly timely as the NGPC had asked the GNSO (in June) whether it would be amenable to amending those of its adopted policy recommendations that are inconsistent with GAC advice.
As I understand it, the members of the IGO "small group² are basically a subset of the IGO Coalition that participated in the original GNSO IGO-INGO PDP in 2012-13, working with the GAC leadership and those GAC members that had internally been working on the topic of IGO protections. To the extent that there seems to be a ³primary² contact point for that group, I believe it is the OECD.
Sorry if all these dates and details are a bit convoluted; maybe this set of chronological bullet points will help: * Feb 2014 Board acknowledgement of GNSO original PDP recommendations and request to NGPC to develop proposal: https://www.icann.org/resources/board-material/resolutions-2014-02-07-en#2.a * March 2014 NGPC proposal: https://gnso.icann.org/en/correspondence/chalaby-to-robinson-20mar14-en.pdf * Sept 2014 Discussion between GNSO Council and Chris Disspain: http://gnso.icann.org/en/meetings/minutes-council-04sep14-en.htm * Oct 2014 Letter from Jonathan Robinson to Cherine Chelaby and Chris Disspain confirming outcomes of Sept discussion: http://gnso.icann.org/en/correspondence/robinson-to-chalaby-disspain-07oct14... en.pdf * Jan 2015 Letter from Cherine Chelaby to Jonathan Robinson updating the GNSO on status of the discussions with the GAC: http://gnso.icann.org/en/correspondence/chalaby-to-robinson-15jan15-en.pdf * Mar 2015 GAC Singapore Communique: https://gacweb.icann.org/download/attachments/27132037/GAC_SINGAPORE52_COMMU... IQUE_FINAL2.pdf?version=1&modificationDate=1423724031000&api=v2 * Jun 2015 GAC Buenos Aires Communique: https://gacweb.icann.org/download/attachments/27132037/GAC%20Buenos%20Aires%... 053%20Communique.pdf?version=1&modificationDate=1435188375963&api=v2 I hope this helps provide the background to the formation of the ³small group² and to the GAC¹s latest Communique.
Cheers Mary
Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong@icann.org
From: <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Mike Rodenbaugh <mike@rodenbaugh.com> Date: Wednesday, July 15, 2015 at 03:47 To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP
Thanks George, I am in general agreement.
Along these lines, is anyone aware, or can Staff please inform us, as to the who is in the "informal small group" referenced in the GAC Communique as having made "progress" on the topic of IGO names, what are they discussing exactly, where is the transparency around that effort, and when is it supposed to conclude?
There are quite a few IGO names issues up in the air, where there is a difference of opinion between GAC and GNSO, and the Board is trying to reconcile. This WG covers just one aspect -- IGO names at the second level. The remaining issues (i.e. proposed protections at the top level) must also be dragged out into the light, and then a compromise reached to resolve all issues -- not just the one this WG is considering.
This "informal small group" does not appear to have any official charter or public presence, yet the GAC is citing their progress and goal to develop a "concrete proposal" before Dublin. The community, and particularly this WG, ought to be informed and involved in the work of that group.
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 <tel:%2B1.415.738.8087> http://rodenbaugh.com
On Sat, Jul 11, 2015 at 6:29 AM, George Kirikos <icann@leap.com> wrote:
Hi folks,
I hope everyone is enjoying the start of the weekend. Late last night, ICANN released a decision in the Independent Review of the .africa matter. See:
https://www.icann.org/en/system/files/files/final-declaration-09jul15-en.pd>>>> f
http://domainincite.com/18944-new-gtld-program-thrown-into-chaos-as-icann-l oses-africa-case
Parts of the decision are redacted, which raises questions of its own regarding ICANN transparency.
However, the panel had much to say about GAC advice.
1. It ruled that GAC is a constituent body of ICANN (paragraph 101, page 43).
2. ICANN's own witness, Heather Dryden (former GAC chair), according to the panel, testified that the "GAC did not act with transparency or in a manner designed to insure fairness" (paragraph 102, pages 43-44). Rather, Ms. Dryden testified that "we talk about creative ambiguity. We leave things unclear so we don't have conflict" (paragraph 102, page 44)
3. Most damningly, the panel said in paragraph 104 (pages 44-45) that "Ms. Dryden also stated that the GAC made its decision without providing any rationale and primarily based on politics and not on potential violations of national laws and sensitivities." This appears to be quite similar to the "advice" that the GAC has provided to ICANN and to this very PDP (via its "answers")
4. In paragraph 110 (pages 46-47), Ms. Dryden admitted that the GAC isn't using sound and reasoned technical or legal analysis to come up with its advice, but is instead influenced by politics "And that's the nature of -- of the political process." (with much redacted after that answer)
5. Ms. Dryden also testified (still in paragraph 110, page 52) that GAC advice is issued with no rationale:
"THE WITNESS: Problematic, violate national law -- there are a lot of laws -- and sensitivities does strike me as being quite broad. [...] ARBITRATOR KESSEDJIAN: Okay. So we are left with what? No rules? THE WITNESS: No rationale with the consensus objections. That's the -- the effect."
6. This was not consistent with ICANN's bylaws, e.g. paragraph 113 (page 53), "In light of the clear ³Transparency² obligation provisions found in ICANN¹s Bylaws, the Panel would have expected the ICANN Board to, at a minimum, investigate the matter further before rejecting DCA Trust¹s application."
How does the IRP decision affect this PDP? I believe no deference should be given to any of the answers or positions provided by the GAC, unless accompanied by clear and convincing facts and rationale, along with evidence that there's been substantive deliberations to arrive at a position. The GAC has not been transparent with how it reaches its positions, nor has it elaborated on its reasoning to assist this PDP.
In particular, its 2 page letter of April 29, 2015 does not come close to the standard that is demanded by ICANN bylaws, and thus should be given no deference.
In my opinion, the IGOs have (to date) hesitated to participate in this PDP, perhaps in the misguided belief that they could rely instead on their ability to influence the GAC behind closed doors. This IRP decision should be considered a harsh rebuke to that approach. If the IGOs really want to affect the outcome of this PDP, they should actively engage with us by providing facts and analysis, rather than using a "political" approach.
In conclusion, this PDP should not be influenced by politics (points #3 and #4 above), but should instead be built on a foundation of a careful analysis of facts and laws.
Sincerely,
George Kirikos 416-588-0269 <tel:416-588-0269> http://www.leap.com/ _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Mary, I am sorry to push but I did not see an answer to my simple question. Please list the members of the small group. Also, with reference to the "which is the agreed forum for the continuing dialogue between the GAC and the NGPC on IGO protections overall" exactly who has agreed to such. Concerning "The understanding from that meeting is that conversations would continue with Petter, Phil and Mason while the NGPC and “small group” continue to discuss the broader topic" please provide detail concerning the "broader,topic". What is it and what have they been requested to do? Paul Keating
On 16 Jul 2015, at 12:02 am, Mary Wong <mary.wong@icann.org> wrote:
Hello Paul and everyone,
As Phil noted in an email to the group recently, a promising dialogue between our co-chairs Petter and Phil, facilitated by Mason Cole (GNSO-GAC liaison), and the GAC leadership was opened in Buenos Aires. Thomas Schneider, the GAC chair, is of course part of the “small group”, which is the agreed forum for the continuing dialogue between the GAC and the NGPC on IGO protections overall. It was therefore helpful to have had Thomas and two of the GAC Vice Chairs meet with Petter, Phil and Mason in Buenos Aires, given that our Working Group is deliberating one aspect of the possible protections that can be afforded to IGO acronyms, i.e. certain curative rights mechanisms. The understanding from that meeting is that conversations would continue with Petter, Phil and Mason while the NGPC and “small group” continue to discuss the broader topic. This gels with the GAC’s acknowledgement, in at least one Communique, of the work of our Working Group.
While I do not have the definitive list of members of the “small group”, it may be helpful to note that the IGO coalition that participated in the original IGO-INGO PDP consisted of over 40 IGOs and 15 UN Funds and Programs (see, e.g. the IGO coalition’s Minority Statement to that PDP’s Final Report: https://gnso.icann.org/en/issues/igo-ingo-final-minority-positions-10nov13-e... – the statement was filed by the OECD, WIPO and the UPU on behalf of the coalition and to the best of my knowledge these three IGOs are thus also members of the “small group”).
As the GNSO Council is also aware of the discussions between the “small group” and the NGPC, the additional dialogue channel opened in Buenos Aires will hopefully also be useful in assisting the GNSO, GAC and Board (NGPC) resolve the issue of IGO protections, as appropriate to the scope of this WG and each organization.
Cheers Mary
Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong@icann.org
From: Paul Keating <paul@law.es> Date: Wednesday, July 15, 2015 at 22:38 To: Mary Wong <mary.wong@icann.org> Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP
Thank you Mary
However we really need to know WHO exactly is in this "small group" and open a dialogue with them. Otherwise there will be a collision of proposals and it is unseemly that one group will remain unidentified with the ability to act politically.
Sincerely, Paul Keating, Esq.
On Jul 15, 2015, at 6:14 PM, Mary Wong <mary.wong@icann.org> wrote:
Hello Mike and everyone,
Some of these questions had been raised in previous WG calls, but it may be helpful to consolidate what we can in a single note, so thank you for following up on this.
The IGO “small group” was formed as a result of discussions between the NGPC and the GAC (where the IGOs are observers) at the Los Angeles meeting, in October 2014. This grew out of NGPC-GAC discussions over the NGPC’s proposal of March 2014, which in turn was produced in direct response to the full Board’s resolution of February 2014 (in which the Board acknowledged the GNSO’s original policy recommendations on IGO protections, which the GNSO Council had adopted in November 2013 – being the set of consensus recommendations from the original IGO PDP that Thomas Rickert chaired).
The NGPC’s March 2014 proposal had been sent to the GNSO Council as well, and in September 2014 Chris Disspain (NGPC member and the Board “shepherd” for the topic of IGO protections) participated in a GNSO Council meeting, to discuss the status of the NGPC-GAC discussions. This was viewed by the Council as particularly timely as the NGPC had asked the GNSO (in June) whether it would be amenable to amending those of its adopted policy recommendations that are inconsistent with GAC advice.
As I understand it, the members of the IGO "small group” are basically a subset of the IGO Coalition that participated in the original GNSO IGO-INGO PDP in 2012-13, working with the GAC leadership and those GAC members that had internally been working on the topic of IGO protections. To the extent that there seems to be a “primary” contact point for that group, I believe it is the OECD.
Sorry if all these dates and details are a bit convoluted; maybe this set of chronological bullet points will help: Feb 2014 – Board acknowledgement of GNSO original PDP recommendations and request to NGPC to develop proposal: https://www.icann.org/resources/board-material/resolutions-2014-02-07-en#2.a March 2014 – NGPC proposal: https://gnso.icann.org/en/correspondence/chalaby-to-robinson-20mar14-en.pdf Sept 2014 – Discussion between GNSO Council and Chris Disspain: http://gnso.icann.org/en/meetings/minutes-council-04sep14-en.htm Oct 2014 – Letter from Jonathan Robinson to Cherine Chelaby and Chris Disspain confirming outcomes of Sept discussion: http://gnso.icann.org/en/correspondence/robinson-to-chalaby-disspain-07oct14... Jan 2015 – Letter from Cherine Chelaby to Jonathan Robinson updating the GNSO on status of the discussions with the GAC: http://gnso.icann.org/en/correspondence/chalaby-to-robinson-15jan15-en.pdf Mar 2015 – GAC Singapore Communique: https://gacweb.icann.org/download/attachments/27132037/GAC_SINGAPORE52_COMMU... Jun 2015 – GAC Buenos Aires Communique: https://gacweb.icann.org/download/attachments/27132037/GAC%20Buenos%20Aires%... I hope this helps provide the background to the formation of the “small group” and to the GAC’s latest Communique.
Cheers Mary
Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong@icann.org
From: <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Mike Rodenbaugh <mike@rodenbaugh.com> Date: Wednesday, July 15, 2015 at 03:47 To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP
Thanks George, I am in general agreement.
Along these lines, is anyone aware, or can Staff please inform us, as to the who is in the "informal small group" referenced in the GAC Communique as having made "progress" on the topic of IGO names, what are they discussing exactly, where is the transparency around that effort, and when is it supposed to conclude?
There are quite a few IGO names issues up in the air, where there is a difference of opinion between GAC and GNSO, and the Board is trying to reconcile. This WG covers just one aspect -- IGO names at the second level. The remaining issues (i.e. proposed protections at the top level) must also be dragged out into the light, and then a compromise reached to resolve all issues -- not just the one this WG is considering.
This "informal small group" does not appear to have any official charter or public presence, yet the GAC is citing their progress and goal to develop a "concrete proposal" before Dublin. The community, and particularly this WG, ought to be informed and involved in the work of that group.
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com
On Sat, Jul 11, 2015 at 6:29 AM, George Kirikos <icann@leap.com> wrote: Hi folks,
I hope everyone is enjoying the start of the weekend. Late last night, ICANN released a decision in the Independent Review of the .africa matter. See:
https://www.icann.org/news/announcement-2-2015-07-10-en https://www.icann.org/en/system/files/files/final-declaration-09jul15-en.pdf http://domainincite.com/18944-new-gtld-program-thrown-into-chaos-as-icann-lo...
Parts of the decision are redacted, which raises questions of its own regarding ICANN transparency.
However, the panel had much to say about GAC advice.
1. It ruled that GAC is a constituent body of ICANN (paragraph 101, page 43).
2. ICANN's own witness, Heather Dryden (former GAC chair), according to the panel, testified that the "GAC did not act with transparency or in a manner designed to insure fairness" (paragraph 102, pages 43-44). Rather, Ms. Dryden testified that "we talk about creative ambiguity. We leave things unclear so we don't have conflict" (paragraph 102, page 44)
3. Most damningly, the panel said in paragraph 104 (pages 44-45) that "Ms. Dryden also stated that the GAC made its decision without providing any rationale and primarily based on politics and not on potential violations of national laws and sensitivities." This appears to be quite similar to the "advice" that the GAC has provided to ICANN and to this very PDP (via its "answers")
4. In paragraph 110 (pages 46-47), Ms. Dryden admitted that the GAC isn't using sound and reasoned technical or legal analysis to come up with its advice, but is instead influenced by politics "And that's the nature of -- of the political process." (with much redacted after that answer)
5. Ms. Dryden also testified (still in paragraph 110, page 52) that GAC advice is issued with no rationale:
"THE WITNESS: Problematic, violate national law -- there are a lot of laws -- and sensitivities does strike me as being quite broad. [...] ARBITRATOR KESSEDJIAN: Okay. So we are left with what? No rules? THE WITNESS: No rationale with the consensus objections. That's the -- the effect."
6. This was not consistent with ICANN's bylaws, e.g. paragraph 113 (page 53), "In light of the clear “Transparency” obligation provisions found in ICANN’s Bylaws, the Panel would have expected the ICANN Board to, at a minimum, investigate the matter further before rejecting DCA Trust’s application."
How does the IRP decision affect this PDP? I believe no deference should be given to any of the answers or positions provided by the GAC, unless accompanied by clear and convincing facts and rationale, along with evidence that there's been substantive deliberations to arrive at a position. The GAC has not been transparent with how it reaches its positions, nor has it elaborated on its reasoning to assist this PDP.
In particular, its 2 page letter of April 29, 2015 does not come close to the standard that is demanded by ICANN bylaws, and thus should be given no deference.
In my opinion, the IGOs have (to date) hesitated to participate in this PDP, perhaps in the misguided belief that they could rely instead on their ability to influence the GAC behind closed doors. This IRP decision should be considered a harsh rebuke to that approach. If the IGOs really want to affect the outcome of this PDP, they should actively engage with us by providing facts and analysis, rather than using a "political" approach.
In conclusion, this PDP should not be influenced by politics (points #3 and #4 above), but should instead be built on a foundation of a careful analysis of facts and laws.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Paul— She did answer: I do not have the definitive list of members of the “small group” It may be frustrating, but I don’t know what you expect. + + + Reg Levy VP Compliance + Policy Minds + Machines m +1 310 963 7135 w +1 310 730 4104 Current UTC offset: -7 On 15 Jul 2015, at 16:47, Paul@law.es<mailto:Paul@law.es> ZIMBRA <paul@law.es<mailto:paul@law.es>> wrote: Mary, I am sorry to push but I did not see an answer to my simple question. Please list the members of the small group. Also, with reference to the "which is the agreed forum for the continuing dialogue between the GAC and the NGPC on IGO protections overall" exactly who has agreed to such. Concerning "The understanding from that meeting is that conversations would continue with Petter, Phil and Mason while the NGPC and “small group” continue to discuss the broader topic" please provide detail concerning the "broader,topic". What is it and what have they been requested to do? Paul Keating On 16 Jul 2015, at 12:02 am, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Hello Paul and everyone, As Phil noted in an email to the group recently, a promising dialogue between our co-chairs Petter and Phil, facilitated by Mason Cole (GNSO-GAC liaison), and the GAC leadership was opened in Buenos Aires. Thomas Schneider, the GAC chair, is of course part of the “small group”, which is the agreed forum for the continuing dialogue between the GAC and the NGPC on IGO protections overall. It was therefore helpful to have had Thomas and two of the GAC Vice Chairs meet with Petter, Phil and Mason in Buenos Aires, given that our Working Group is deliberating one aspect of the possible protections that can be afforded to IGO acronyms, i.e. certain curative rights mechanisms. The understanding from that meeting is that conversations would continue with Petter, Phil and Mason while the NGPC and “small group” continue to discuss the broader topic. This gels with the GAC’s acknowledgement, in at least one Communique, of the work of our Working Group. While I do not have the definitive list of members of the “small group”, it may be helpful to note that the IGO coalition that participated in the original IGO-INGO PDP consisted of over 40 IGOs and 15 UN Funds and Programs (see, e.g. the IGO coalition’s Minority Statement to that PDP’s Final Report: https://gnso.icann.org/en/issues/igo-ingo-final-minority-positions-10nov13-e... – the statement was filed by the OECD, WIPO and the UPU on behalf of the coalition and to the best of my knowledge these three IGOs are thus also members of the “small group”). As the GNSO Council is also aware of the discussions between the “small group” and the NGPC, the additional dialogue channel opened in Buenos Aires will hopefully also be useful in assisting the GNSO, GAC and Board (NGPC) resolve the issue of IGO protections, as appropriate to the scope of this WG and each organization. Cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong@icann.org<mailto:mary.wong@icann.org> From: Paul Keating <paul@law.es<mailto:paul@law.es>> Date: Wednesday, July 15, 2015 at 22:38 To: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Cc: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP Thank you Mary However we really need to know WHO exactly is in this "small group" and open a dialogue with them. Otherwise there will be a collision of proposals and it is unseemly that one group will remain unidentified with the ability to act politically. Sincerely, Paul Keating, Esq. On Jul 15, 2015, at 6:14 PM, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Hello Mike and everyone, Some of these questions had been raised in previous WG calls, but it may be helpful to consolidate what we can in a single note, so thank you for following up on this. The IGO “small group” was formed as a result of discussions between the NGPC and the GAC (where the IGOs are observers) at the Los Angeles meeting, in October 2014. This grew out of NGPC-GAC discussions over the NGPC’s proposal of March 2014, which in turn was produced in direct response to the full Board’s resolution of February 2014 (in which the Board acknowledged the GNSO’s original policy recommendations on IGO protections, which the GNSO Council had adopted in November 2013 – being the set of consensus recommendations from the original IGO PDP that Thomas Rickert chaired). The NGPC’s March 2014 proposal had been sent to the GNSO Council as well, and in September 2014 Chris Disspain (NGPC member and the Board “shepherd” for the topic of IGO protections) participated in a GNSO Council meeting, to discuss the status of the NGPC-GAC discussions. This was viewed by the Council as particularly timely as the NGPC had asked the GNSO (in June) whether it would be amenable to amending those of its adopted policy recommendations that are inconsistent with GAC advice. As I understand it, the members of the IGO "small group” are basically a subset of the IGO Coalition that participated in the original GNSO IGO-INGO PDP in 2012-13, working with the GAC leadership and those GAC members that had internally been working on the topic of IGO protections. To the extent that there seems to be a “primary” contact point for that group, I believe it is the OECD. Sorry if all these dates and details are a bit convoluted; maybe this set of chronological bullet points will help: * Feb 2014 – Board acknowledgement of GNSO original PDP recommendations and request to NGPC to develop proposal: https://www.icann.org/resources/board-material/resolutions-2014-02-07-en#2.a * March 2014 – NGPC proposal: https://gnso.icann.org/en/correspondence/chalaby-to-robinson-20mar14-en.pdf * Sept 2014 – Discussion between GNSO Council and Chris Disspain: http://gnso.icann.org/en/meetings/minutes-council-04sep14-en.htm * Oct 2014 – Letter from Jonathan Robinson to Cherine Chelaby and Chris Disspain confirming outcomes of Sept discussion: http://gnso.icann.org/en/correspondence/robinson-to-chalaby-disspain-07oct14... * Jan 2015 – Letter from Cherine Chelaby to Jonathan Robinson updating the GNSO on status of the discussions with the GAC: http://gnso.icann.org/en/correspondence/chalaby-to-robinson-15jan15-en.pdf * Mar 2015 – GAC Singapore Communique: https://gacweb.icann.org/download/attachments/27132037/GAC_SINGAPORE52_COMMU... * Jun 2015 – GAC Buenos Aires Communique: https://gacweb.icann.org/download/attachments/27132037/GAC%20Buenos%20Aires%... I hope this helps provide the background to the formation of the “small group” and to the GAC’s latest Communique. Cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong@icann.org<mailto:mary.wong@icann.org> From: <gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org>> on behalf of Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> Date: Wednesday, July 15, 2015 at 03:47 To: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP Thanks George, I am in general agreement. Along these lines, is anyone aware, or can Staff please inform us, as to the who is in the "informal small group" referenced in the GAC Communique as having made "progress" on the topic of IGO names, what are they discussing exactly, where is the transparency around that effort, and when is it supposed to conclude? There are quite a few IGO names issues up in the air, where there is a difference of opinion between GAC and GNSO, and the Board is trying to reconcile. This WG covers just one aspect -- IGO names at the second level. The remaining issues (i.e. proposed protections at the top level) must also be dragged out into the light, and then a compromise reached to resolve all issues -- not just the one this WG is considering. This "informal small group" does not appear to have any official charter or public presence, yet the GAC is citing their progress and goal to develop a "concrete proposal" before Dublin. The community, and particularly this WG, ought to be informed and involved in the work of that group. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087<tel:%2B1.415.738.8087> http://rodenbaugh.com<http://rodenbaugh.com/> On Sat, Jul 11, 2015 at 6:29 AM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote: Hi folks, I hope everyone is enjoying the start of the weekend. Late last night, ICANN released a decision in the Independent Review of the .africa matter. See: https://www.icann.org/news/announcement-2-2015-07-10-en https://www.icann.org/en/system/files/files/final-declaration-09jul15-en.pdf http://domainincite.com/18944-new-gtld-program-thrown-into-chaos-as-icann-lo... Parts of the decision are redacted, which raises questions of its own regarding ICANN transparency. However, the panel had much to say about GAC advice. 1. It ruled that GAC is a constituent body of ICANN (paragraph 101, page 43). 2. ICANN's own witness, Heather Dryden (former GAC chair), according to the panel, testified that the "GAC did not act with transparency or in a manner designed to insure fairness" (paragraph 102, pages 43-44). Rather, Ms. Dryden testified that "we talk about creative ambiguity. We leave things unclear so we don't have conflict" (paragraph 102, page 44) 3. Most damningly, the panel said in paragraph 104 (pages 44-45) that "Ms. Dryden also stated that the GAC made its decision without providing any rationale and primarily based on politics and not on potential violations of national laws and sensitivities." This appears to be quite similar to the "advice" that the GAC has provided to ICANN and to this very PDP (via its "answers") 4. In paragraph 110 (pages 46-47), Ms. Dryden admitted that the GAC isn't using sound and reasoned technical or legal analysis to come up with its advice, but is instead influenced by politics "And that's the nature of -- of the political process." (with much redacted after that answer) 5. Ms. Dryden also testified (still in paragraph 110, page 52) that GAC advice is issued with no rationale: "THE WITNESS: Problematic, violate national law -- there are a lot of laws -- and sensitivities does strike me as being quite broad. [...] ARBITRATOR KESSEDJIAN: Okay. So we are left with what? No rules? THE WITNESS: No rationale with the consensus objections. That's the -- the effect." 6. This was not consistent with ICANN's bylaws, e.g. paragraph 113 (page 53), "In light of the clear “Transparency” obligation provisions found in ICANN’s Bylaws, the Panel would have expected the ICANN Board to, at a minimum, investigate the matter further before rejecting DCA Trust’s application." How does the IRP decision affect this PDP? I believe no deference should be given to any of the answers or positions provided by the GAC, unless accompanied by clear and convincing facts and rationale, along with evidence that there's been substantive deliberations to arrive at a position. The GAC has not been transparent with how it reaches its positions, nor has it elaborated on its reasoning to assist this PDP. In particular, its 2 page letter of April 29, 2015 does not come close to the standard that is demanded by ICANN bylaws, and thus should be given no deference. In my opinion, the IGOs have (to date) hesitated to participate in this PDP, perhaps in the misguided belief that they could rely instead on their ability to influence the GAC behind closed doors. This IRP decision should be considered a harsh rebuke to that approach. If the IGOs really want to affect the outcome of this PDP, they should actively engage with us by providing facts and analysis, rather than using a "political" approach. In conclusion, this PDP should not be influenced by politics (points #3 and #4 above), but should instead be built on a foundation of a careful analysis of facts and laws. Sincerely, George Kirikos 416-588-0269<tel:416-588-0269> http://www.leap.com/ _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Hello again everyone, Regarding Paul¹s other two questions in his last email: * As mentioned previously, the "small group" was set up in October 2014 following discussions at the Los Angeles meeting, primarily between the NGPC and the GAC/IGOs (continuing the discussions from March 2014). This was highlighted during the joint GAC-GNSO meeting in Los Angeles as well, so there has been awareness within the GNSO and by the GNSO Council of the existence and role of the ³small group² for some time (see e.g. the transcript from the October 2014 GAC-GNSO meeting: https://la51.icann.org/en/schedule/sun-gac-gnso/transcript-gac-gnso-12oct14- en.pdf). * The ³broad topic² I mentioned refers to the overall topic of IGO protections again, this reflects the fact that the NGPC-GAC discussions are not just about curative rights dispute resolution processes but rather includes these as part of the more general, ongoing discussion of appropriate protections for IGOs in the gTLD space (for which the prior GNSO IGO-INGO PDP preceding our group¹s chartering had made recommendations adopted by the GNSO and, with respect only to those not inconsistent with GAC advice, by the ICANN Board such that the ³broad topic² of discussion now centers on those recommendations that ARE inconsistent with GAC advice). I hope this clarifies my earlier notes, and apologize for any ambiguity or poor phrasing in those. Cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong@icann.org From: Reg Levy <reg@mindsandmachines.com> Date: Thursday, July 16, 2015 at 01:54 To: "Paul@law.es ZIMBRA" <paul@law.es> Cc: Mary Wong <mary.wong@icann.org>, "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP
Paul
She did answer:
I do not have the definitive list of members of the ³small group²
It may be frustrating, but I don¹t know what you expect.
+ + + Reg Levy VP Compliance + Policy Minds + Machines
m +1 310 963 7135 w +1 310 730 4104
Current UTC offset: -7
On 15 Jul 2015, at 16:47, Paul@law.es ZIMBRA <paul@law.es> wrote:
Mary,
I am sorry to push but I did not see an answer to my simple question. Please list the members of the small group.
Also, with reference to the "which is the agreed forum for the continuing dialogue between the GAC and the NGPC on IGO protections overall" exactly who has agreed to such.
Concerning "The understanding from that meeting is that conversations would continue with Petter, Phil and Mason while the NGPC and ³small group² continue to discuss the broader topic" please provide detail concerning the "broader,topic". What is it and what have they been requested to do?
Paul Keating
On 16 Jul 2015, at 12:02 am, Mary Wong <mary.wong@icann.org> wrote:
Hello Paul and everyone,
As Phil noted in an email to the group recently, a promising dialogue between our co-chairs Petter and Phil, facilitated by Mason Cole (GNSO-GAC liaison), and the GAC leadership was opened in Buenos Aires. Thomas Schneider, the GAC chair, is of course part of the ³small group², which is the agreed forum for the continuing dialogue between the GAC and the NGPC on IGO protections overall. It was therefore helpful to have had Thomas and two of the GAC Vice Chairs meet with Petter, Phil and Mason in Buenos Aires, given that our Working Group is deliberating one aspect of the possible protections that can be afforded to IGO acronyms, i.e. certain curative rights mechanisms. The understanding from that meeting is that conversations would continue with Petter, Phil and Mason while the NGPC and ³small group² continue to discuss the broader topic. This gels with the GAC¹s acknowledgement, in at least one Communique, of the work of our Working Group.
While I do not have the definitive list of members of the ³small group², it may be helpful to note that the IGO coalition that participated in the original IGO-INGO PDP consisted of over 40 IGOs and 15 UN Funds and Programs (see, e.g. the IGO coalition¹s Minority Statement to that PDP¹s Final Report: https://gnso.icann.org/en/issues/igo-ingo-final-minority-positions-10nov13-e n.pdf the statement was filed by the OECD, WIPO and the UPU on behalf of the coalition and to the best of my knowledge these three IGOs are thus also members of the ³small group²).
As the GNSO Council is also aware of the discussions between the ³small group² and the NGPC, the additional dialogue channel opened in Buenos Aires will hopefully also be useful in assisting the GNSO, GAC and Board (NGPC) resolve the issue of IGO protections, as appropriate to the scope of this WG and each organization.
Cheers Mary
Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong@icann.org
From: Paul Keating <paul@law.es> Date: Wednesday, July 15, 2015 at 22:38 To: Mary Wong <mary.wong@icann.org> Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP
Thank you Mary
However we really need to know WHO exactly is in this "small group" and open a dialogue with them. Otherwise there will be a collision of proposals and it is unseemly that one group will remain unidentified with the ability to act politically.
Sincerely, Paul Keating, Esq.
On Jul 15, 2015, at 6:14 PM, Mary Wong <mary.wong@icann.org> wrote:
Hello Mike and everyone,
Some of these questions had been raised in previous WG calls, but it may be helpful to consolidate what we can in a single note, so thank you for following up on this.
The IGO ³small group² was formed as a result of discussions between the NGPC and the GAC (where the IGOs are observers) at the Los Angeles meeting, in October 2014. This grew out of NGPC-GAC discussions over the NGPC¹s proposal of March 2014, which in turn was produced in direct response to the full Board¹s resolution of February 2014 (in which the Board acknowledged the GNSO¹s original policy recommendations on IGO protections, which the GNSO Council had adopted in November 2013 being the set of consensus recommendations from the original IGO PDP that Thomas Rickert chaired).
The NGPC¹s March 2014 proposal had been sent to the GNSO Council as well, and in September 2014 Chris Disspain (NGPC member and the Board ³shepherd² for the topic of IGO protections) participated in a GNSO Council meeting, to discuss the status of the NGPC-GAC discussions. This was viewed by the Council as particularly timely as the NGPC had asked the GNSO (in June) whether it would be amenable to amending those of its adopted policy recommendations that are inconsistent with GAC advice.
As I understand it, the members of the IGO "small group² are basically a subset of the IGO Coalition that participated in the original GNSO IGO-INGO PDP in 2012-13, working with the GAC leadership and those GAC members that had internally been working on the topic of IGO protections. To the extent that there seems to be a ³primary² contact point for that group, I believe it is the OECD.
Sorry if all these dates and details are a bit convoluted; maybe this set of chronological bullet points will help: * Feb 2014 Board acknowledgement of GNSO original PDP recommendations and request to NGPC to develop proposal: https://www.icann.org/resources/board-material/resolutions-2014-02-07-en#2 .a * March 2014 NGPC proposal:
https://gnso.icann.org/en/correspondence/chalaby-to-robinson-20mar14-en.pd>>>>> f
* Sept 2014 Discussion between GNSO Council and Chris Disspain: http://gnso.icann.org/en/meetings/minutes-council-04sep14-en.htm * Oct 2014 Letter from Jonathan Robinson to Cherine Chelaby and Chris Disspain confirming outcomes of Sept discussion: http://gnso.icann.org/en/correspondence/robinson-to-chalaby-disspain-07oct 14-en.pdf * Jan 2015 Letter from Cherine Chelaby to Jonathan Robinson updating the GNSO on status of the discussions with the GAC: http://gnso.icann.org/en/correspondence/chalaby-to-robinson-15jan15-en.pdf * Mar 2015 GAC Singapore Communique: https://gacweb.icann.org/download/attachments/27132037/GAC_SINGAPORE52_COM MUNIQUE_FINAL2.pdf?version=1&modificationDate=1423724031000&api=v2 * Jun 2015 GAC Buenos Aires Communique: https://gacweb.icann.org/download/attachments/27132037/GAC%20Buenos%20Aire s%2053%20Communique.pdf?version=1&modificationDate=1435188375963&api=v2 I hope this helps provide the background to the formation of the ³small group² and to the GAC¹s latest Communique.
Cheers Mary
Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong@icann.org
From: <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Mike Rodenbaugh <mike@rodenbaugh.com> Date: Wednesday, July 15, 2015 at 03:47 To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP
Thanks George, I am in general agreement.
Along these lines, is anyone aware, or can Staff please inform us, as to the who is in the "informal small group" referenced in the GAC Communique as having made "progress" on the topic of IGO names, what are they discussing exactly, where is the transparency around that effort, and when is it supposed to conclude?
There are quite a few IGO names issues up in the air, where there is a difference of opinion between GAC and GNSO, and the Board is trying to reconcile. This WG covers just one aspect -- IGO names at the second level. The remaining issues (i.e. proposed protections at the top level) must also be dragged out into the light, and then a compromise reached to resolve all issues -- not just the one this WG is considering.
This "informal small group" does not appear to have any official charter or public presence, yet the GAC is citing their progress and goal to develop a "concrete proposal" before Dublin. The community, and particularly this WG, ought to be informed and involved in the work of that group.
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 <tel:%2B1.415.738.8087> http://rodenbaugh.com <http://rodenbaugh.com/>
On Sat, Jul 11, 2015 at 6:29 AM, George Kirikos <icann@leap.com> wrote: > Hi folks, > > I hope everyone is enjoying the start of the weekend. Late last night, > ICANN released a decision in the Independent Review of the .africa > matter. See: > > https://www.icann.org/news/announcement-2-2015-07-10-en > https://www.icann.org/en/system/files/files/final-declaration-09jul15-en > .pdf > http://domainincite.com/18944-new-gtld-program-thrown-into-chaos-as-ican > n-loses-africa-case > > Parts of the decision are redacted, which raises questions of its own > regarding ICANN transparency. > > However, the panel had much to say about GAC advice. > > 1. It ruled that GAC is a constituent body of ICANN (paragraph 101, page > 43). > > 2. ICANN's own witness, Heather Dryden (former GAC chair), according > to the panel, testified that the "GAC did not act with transparency or > in a manner designed to insure fairness" (paragraph 102, pages 43-44). > Rather, Ms. Dryden testified that "we talk about creative ambiguity. > We leave things unclear so we don't have conflict" (paragraph 102, > page 44) > > 3. Most damningly, the panel said in paragraph 104 (pages 44-45) that > "Ms. Dryden also stated that the GAC made its decision without > providing any rationale and primarily based on politics and not on > potential violations of national laws and sensitivities." This appears > to be quite similar to the "advice" that the GAC has provided to ICANN > and to this very PDP (via its "answers") > > 4. In paragraph 110 (pages 46-47), Ms. Dryden admitted that the GAC > isn't using sound and reasoned technical or legal analysis to come up > with its advice, but is instead influenced by politics "And that's the > nature of -- of the political process." (with much redacted after that > answer) > > 5. Ms. Dryden also testified (still in paragraph 110, page 52) that > GAC advice is issued with no rationale: > > "THE WITNESS: > Problematic, violate national law -- there are a lot of laws -- and > sensitivities does strike me as being quite broad. > [...] > ARBITRATOR KESSEDJIAN: > Okay. So we are left with what? No rules? > THE WITNESS: > No rationale with the consensus objections. That's the -- the effect." > > 6. This was not consistent with ICANN's bylaws, e.g. paragraph 113 > (page 53), "In light of the clear ³Transparency² obligation provisions > found in ICANN¹s Bylaws, the Panel would have expected the ICANN Board > to, at a minimum, investigate the matter further before rejecting DCA > Trust¹s application." > > How does the IRP decision affect this PDP? I believe no deference > should be given to any of the answers or positions provided by the > GAC, unless accompanied by clear and convincing facts and rationale, > along with evidence that there's been substantive deliberations to > arrive at a position. The GAC has not been transparent with how it > reaches its positions, nor has it elaborated on its reasoning to > assist this PDP. > > In particular, its 2 page letter of April 29, 2015 does not come close > to the standard that is demanded by ICANN bylaws, and thus should be > given no deference. > > In my opinion, the IGOs have (to date) hesitated to participate in > this PDP, perhaps in the misguided belief that they could rely instead > on their ability to influence the GAC behind closed doors. This IRP > decision should be considered a harsh rebuke to that approach. If the > IGOs really want to affect the outcome of this PDP, they should > actively engage with us by providing facts and analysis, rather than > using a "political" approach. > > In conclusion, this PDP should not be influenced by politics (points > #3 and #4 above), but should instead be built on a foundation of a > careful analysis of facts and laws. > > Sincerely, > > George Kirikos > 416-588-0269 <tel:416-588-0269> > http://www.leap.com/ > _______________________________________________ > Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp@icann.org > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Thank you Mary. However, again there has been no answer to my question. It should be a simple process to list the members of this "small group". The list is materially important. They are promoted as having importance and are making recommendations concerning the UDRP and otherwise impacting the rights of domain name registrants. Who they are and their affiliation is no less important for this "small group" as for our WG. I must say that I am growing concerned by a lack of clear information responsive to the question. There have been at least 3 requests for information. I have already asked twice for this information. Paul Keating
On 16 Jul 2015, at 3:11 am, Mary Wong <mary.wong@icann.org> wrote:
Hello again everyone,
Regarding Paul’s other two questions in his last email: As mentioned previously, the "small group" was set up in October 2014 following discussions at the Los Angeles meeting, primarily between the NGPC and the GAC/IGOs (continuing the discussions from March 2014). This was highlighted during the joint GAC-GNSO meeting in Los Angeles as well, so there has been awareness within the GNSO and by the GNSO Council of the existence and role of the “small group” for some time (see e.g. the transcript from the October 2014 GAC-GNSO meeting: https://la51.icann.org/en/schedule/sun-gac-gnso/transcript-gac-gnso-12oct14-...). The “broad topic” I mentioned refers to the overall topic of IGO protections – again, this reflects the fact that the NGPC-GAC discussions are not just about curative rights dispute resolution processes but rather includes these as part of the more general, ongoing discussion of appropriate protections for IGOs in the gTLD space (for which the prior GNSO IGO-INGO PDP preceding our group’s chartering had made recommendations adopted by the GNSO and, with respect only to those not inconsistent with GAC advice, by the ICANN Board – such that the “broad topic” of discussion now centers on those recommendations that ARE inconsistent with GAC advice). I hope this clarifies my earlier notes, and apologize for any ambiguity or poor phrasing in those.
Cheers Mary
Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong@icann.org
From: Reg Levy <reg@mindsandmachines.com> Date: Thursday, July 16, 2015 at 01:54 To: "Paul@law.es ZIMBRA" <paul@law.es> Cc: Mary Wong <mary.wong@icann.org>, "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP
Paul—
She did answer:
I do not have the definitive list of members of the “small group”
It may be frustrating, but I don’t know what you expect.
+ + + Reg Levy VP Compliance + Policy Minds + Machines
m +1 310 963 7135 w +1 310 730 4104
Current UTC offset: -7
On 15 Jul 2015, at 16:47, Paul@law.es ZIMBRA <paul@law.es> wrote:
Mary,
I am sorry to push but I did not see an answer to my simple question. Please list the members of the small group.
Also, with reference to the "which is the agreed forum for the continuing dialogue between the GAC and the NGPC on IGO protections overall" exactly who has agreed to such.
Concerning "The understanding from that meeting is that conversations would continue with Petter, Phil and Mason while the NGPC and “small group” continue to discuss the broader topic" please provide detail concerning the "broader,topic". What is it and what have they been requested to do?
Paul Keating
On 16 Jul 2015, at 12:02 am, Mary Wong <mary.wong@icann.org> wrote:
Hello Paul and everyone,
As Phil noted in an email to the group recently, a promising dialogue between our co-chairs Petter and Phil, facilitated by Mason Cole (GNSO-GAC liaison), and the GAC leadership was opened in Buenos Aires. Thomas Schneider, the GAC chair, is of course part of the “small group”, which is the agreed forum for the continuing dialogue between the GAC and the NGPC on IGO protections overall. It was therefore helpful to have had Thomas and two of the GAC Vice Chairs meet with Petter, Phil and Mason in Buenos Aires, given that our Working Group is deliberating one aspect of the possible protections that can be afforded to IGO acronyms, i.e. certain curative rights mechanisms. The understanding from that meeting is that conversations would continue with Petter, Phil and Mason while the NGPC and “small group” continue to discuss the broader topic. This gels with the GAC’s acknowledgement, in at least one Communique, of the work of our Working Group.
While I do not have the definitive list of members of the “small group”, it may be helpful to note that the IGO coalition that participated in the original IGO-INGO PDP consisted of over 40 IGOs and 15 UN Funds and Programs (see, e.g. the IGO coalition’s Minority Statement to that PDP’s Final Report: https://gnso.icann.org/en/issues/igo-ingo-final-minority-positions-10nov13-e... – the statement was filed by the OECD, WIPO and the UPU on behalf of the coalition and to the best of my knowledge these three IGOs are thus also members of the “small group”).
As the GNSO Council is also aware of the discussions between the “small group” and the NGPC, the additional dialogue channel opened in Buenos Aires will hopefully also be useful in assisting the GNSO, GAC and Board (NGPC) resolve the issue of IGO protections, as appropriate to the scope of this WG and each organization.
Cheers Mary
Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong@icann.org
From: Paul Keating <paul@law.es> Date: Wednesday, July 15, 2015 at 22:38 To: Mary Wong <mary.wong@icann.org> Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP
Thank you Mary
However we really need to know WHO exactly is in this "small group" and open a dialogue with them. Otherwise there will be a collision of proposals and it is unseemly that one group will remain unidentified with the ability to act politically.
Sincerely, Paul Keating, Esq.
On Jul 15, 2015, at 6:14 PM, Mary Wong <mary.wong@icann.org> wrote:
Hello Mike and everyone,
Some of these questions had been raised in previous WG calls, but it may be helpful to consolidate what we can in a single note, so thank you for following up on this.
The IGO “small group” was formed as a result of discussions between the NGPC and the GAC (where the IGOs are observers) at the Los Angeles meeting, in October 2014. This grew out of NGPC-GAC discussions over the NGPC’s proposal of March 2014, which in turn was produced in direct response to the full Board’s resolution of February 2014 (in which the Board acknowledged the GNSO’s original policy recommendations on IGO protections, which the GNSO Council had adopted in November 2013 – being the set of consensus recommendations from the original IGO PDP that Thomas Rickert chaired).
The NGPC’s March 2014 proposal had been sent to the GNSO Council as well, and in September 2014 Chris Disspain (NGPC member and the Board “shepherd” for the topic of IGO protections) participated in a GNSO Council meeting, to discuss the status of the NGPC-GAC discussions. This was viewed by the Council as particularly timely as the NGPC had asked the GNSO (in June) whether it would be amenable to amending those of its adopted policy recommendations that are inconsistent with GAC advice.
As I understand it, the members of the IGO "small group” are basically a subset of the IGO Coalition that participated in the original GNSO IGO-INGO PDP in 2012-13, working with the GAC leadership and those GAC members that had internally been working on the topic of IGO protections. To the extent that there seems to be a “primary” contact point for that group, I believe it is the OECD.
Sorry if all these dates and details are a bit convoluted; maybe this set of chronological bullet points will help: Feb 2014 – Board acknowledgement of GNSO original PDP recommendations and request to NGPC to develop proposal: https://www.icann.org/resources/board-material/resolutions-2014-02-07-en#2.a March 2014 – NGPC proposal: https://gnso.icann.org/en/correspondence/chalaby-to-robinson-20mar14-en.pdf Sept 2014 – Discussion between GNSO Council and Chris Disspain: http://gnso.icann.org/en/meetings/minutes-council-04sep14-en.htm Oct 2014 – Letter from Jonathan Robinson to Cherine Chelaby and Chris Disspain confirming outcomes of Sept discussion: http://gnso.icann.org/en/correspondence/robinson-to-chalaby-disspain-07oct14... Jan 2015 – Letter from Cherine Chelaby to Jonathan Robinson updating the GNSO on status of the discussions with the GAC: http://gnso.icann.org/en/correspondence/chalaby-to-robinson-15jan15-en.pdf Mar 2015 – GAC Singapore Communique: https://gacweb.icann.org/download/attachments/27132037/GAC_SINGAPORE52_COMMU... Jun 2015 – GAC Buenos Aires Communique: https://gacweb.icann.org/download/attachments/27132037/GAC%20Buenos%20Aires%... I hope this helps provide the background to the formation of the “small group” and to the GAC’s latest Communique.
Cheers Mary
Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong@icann.org
From: <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Mike Rodenbaugh <mike@rodenbaugh.com> Date: Wednesday, July 15, 2015 at 03:47 To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP
Thanks George, I am in general agreement.
Along these lines, is anyone aware, or can Staff please inform us, as to the who is in the "informal small group" referenced in the GAC Communique as having made "progress" on the topic of IGO names, what are they discussing exactly, where is the transparency around that effort, and when is it supposed to conclude?
There are quite a few IGO names issues up in the air, where there is a difference of opinion between GAC and GNSO, and the Board is trying to reconcile. This WG covers just one aspect -- IGO names at the second level. The remaining issues (i.e. proposed protections at the top level) must also be dragged out into the light, and then a compromise reached to resolve all issues -- not just the one this WG is considering.
This "informal small group" does not appear to have any official charter or public presence, yet the GAC is citing their progress and goal to develop a "concrete proposal" before Dublin. The community, and particularly this WG, ought to be informed and involved in the work of that group.
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com
On Sat, Jul 11, 2015 at 6:29 AM, George Kirikos <icann@leap.com> wrote: Hi folks,
I hope everyone is enjoying the start of the weekend. Late last night, ICANN released a decision in the Independent Review of the .africa matter. See:
https://www.icann.org/news/announcement-2-2015-07-10-en https://www.icann.org/en/system/files/files/final-declaration-09jul15-en.pdf http://domainincite.com/18944-new-gtld-program-thrown-into-chaos-as-icann-lo...
Parts of the decision are redacted, which raises questions of its own regarding ICANN transparency.
However, the panel had much to say about GAC advice.
1. It ruled that GAC is a constituent body of ICANN (paragraph 101, page 43).
2. ICANN's own witness, Heather Dryden (former GAC chair), according to the panel, testified that the "GAC did not act with transparency or in a manner designed to insure fairness" (paragraph 102, pages 43-44). Rather, Ms. Dryden testified that "we talk about creative ambiguity. We leave things unclear so we don't have conflict" (paragraph 102, page 44)
3. Most damningly, the panel said in paragraph 104 (pages 44-45) that "Ms. Dryden also stated that the GAC made its decision without providing any rationale and primarily based on politics and not on potential violations of national laws and sensitivities." This appears to be quite similar to the "advice" that the GAC has provided to ICANN and to this very PDP (via its "answers")
4. In paragraph 110 (pages 46-47), Ms. Dryden admitted that the GAC isn't using sound and reasoned technical or legal analysis to come up with its advice, but is instead influenced by politics "And that's the nature of -- of the political process." (with much redacted after that answer)
5. Ms. Dryden also testified (still in paragraph 110, page 52) that GAC advice is issued with no rationale:
"THE WITNESS: Problematic, violate national law -- there are a lot of laws -- and sensitivities does strike me as being quite broad. [...] ARBITRATOR KESSEDJIAN: Okay. So we are left with what? No rules? THE WITNESS: No rationale with the consensus objections. That's the -- the effect."
6. This was not consistent with ICANN's bylaws, e.g. paragraph 113 (page 53), "In light of the clear “Transparency” obligation provisions found in ICANN’s Bylaws, the Panel would have expected the ICANN Board to, at a minimum, investigate the matter further before rejecting DCA Trust’s application."
How does the IRP decision affect this PDP? I believe no deference should be given to any of the answers or positions provided by the GAC, unless accompanied by clear and convincing facts and rationale, along with evidence that there's been substantive deliberations to arrive at a position. The GAC has not been transparent with how it reaches its positions, nor has it elaborated on its reasoning to assist this PDP.
In particular, its 2 page letter of April 29, 2015 does not come close to the standard that is demanded by ICANN bylaws, and thus should be given no deference.
In my opinion, the IGOs have (to date) hesitated to participate in this PDP, perhaps in the misguided belief that they could rely instead on their ability to influence the GAC behind closed doors. This IRP decision should be considered a harsh rebuke to that approach. If the IGOs really want to affect the outcome of this PDP, they should actively engage with us by providing facts and analysis, rather than using a "political" approach.
In conclusion, this PDP should not be influenced by politics (points #3 and #4 above), but should instead be built on a foundation of a careful analysis of facts and laws.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
I am sorry but I do not see a list of members. If it is there please point it out to me. Paul Keating
On 16 Jul 2015, at 1:54 am, Reg Levy <reg@mindsandmachines.com> wrote:
Paul—
She did answer:
I do not have the definitive list of members of the “small group”
It may be frustrating, but I don’t know what you expect.
+ + + Reg Levy VP Compliance + Policy Minds + Machines
m +1 310 963 7135 w +1 310 730 4104
Current UTC offset: -7
On 15 Jul 2015, at 16:47, Paul@law.es ZIMBRA <paul@law.es> wrote:
Mary,
I am sorry to push but I did not see an answer to my simple question. Please list the members of the small group.
Also, with reference to the "which is the agreed forum for the continuing dialogue between the GAC and the NGPC on IGO protections overall" exactly who has agreed to such.
Concerning "The understanding from that meeting is that conversations would continue with Petter, Phil and Mason while the NGPC and “small group” continue to discuss the broader topic" please provide detail concerning the "broader,topic". What is it and what have they been requested to do?
Paul Keating
On 16 Jul 2015, at 12:02 am, Mary Wong <mary.wong@icann.org> wrote:
Hello Paul and everyone,
As Phil noted in an email to the group recently, a promising dialogue between our co-chairs Petter and Phil, facilitated by Mason Cole (GNSO-GAC liaison), and the GAC leadership was opened in Buenos Aires. Thomas Schneider, the GAC chair, is of course part of the “small group”, which is the agreed forum for the continuing dialogue between the GAC and the NGPC on IGO protections overall. It was therefore helpful to have had Thomas and two of the GAC Vice Chairs meet with Petter, Phil and Mason in Buenos Aires, given that our Working Group is deliberating one aspect of the possible protections that can be afforded to IGO acronyms, i.e. certain curative rights mechanisms. The understanding from that meeting is that conversations would continue with Petter, Phil and Mason while the NGPC and “small group” continue to discuss the broader topic. This gels with the GAC’s acknowledgement, in at least one Communique, of the work of our Working Group.
While I do not have the definitive list of members of the “small group”, it may be helpful to note that the IGO coalition that participated in the original IGO-INGO PDP consisted of over 40 IGOs and 15 UN Funds and Programs (see, e.g. the IGO coalition’s Minority Statement to that PDP’s Final Report: https://gnso.icann.org/en/issues/igo-ingo-final-minority-positions-10nov13-e... – the statement was filed by the OECD, WIPO and the UPU on behalf of the coalition and to the best of my knowledge these three IGOs are thus also members of the “small group”).
As the GNSO Council is also aware of the discussions between the “small group” and the NGPC, the additional dialogue channel opened in Buenos Aires will hopefully also be useful in assisting the GNSO, GAC and Board (NGPC) resolve the issue of IGO protections, as appropriate to the scope of this WG and each organization.
Cheers Mary
Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong@icann.org
From: Paul Keating <paul@law.es> Date: Wednesday, July 15, 2015 at 22:38 To: Mary Wong <mary.wong@icann.org> Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP
Thank you Mary
However we really need to know WHO exactly is in this "small group" and open a dialogue with them. Otherwise there will be a collision of proposals and it is unseemly that one group will remain unidentified with the ability to act politically.
Sincerely, Paul Keating, Esq.
On Jul 15, 2015, at 6:14 PM, Mary Wong <mary.wong@icann.org> wrote:
Hello Mike and everyone,
Some of these questions had been raised in previous WG calls, but it may be helpful to consolidate what we can in a single note, so thank you for following up on this.
The IGO “small group” was formed as a result of discussions between the NGPC and the GAC (where the IGOs are observers) at the Los Angeles meeting, in October 2014. This grew out of NGPC-GAC discussions over the NGPC’s proposal of March 2014, which in turn was produced in direct response to the full Board’s resolution of February 2014 (in which the Board acknowledged the GNSO’s original policy recommendations on IGO protections, which the GNSO Council had adopted in November 2013 – being the set of consensus recommendations from the original IGO PDP that Thomas Rickert chaired).
The NGPC’s March 2014 proposal had been sent to the GNSO Council as well, and in September 2014 Chris Disspain (NGPC member and the Board “shepherd” for the topic of IGO protections) participated in a GNSO Council meeting, to discuss the status of the NGPC-GAC discussions. This was viewed by the Council as particularly timely as the NGPC had asked the GNSO (in June) whether it would be amenable to amending those of its adopted policy recommendations that are inconsistent with GAC advice.
As I understand it, the members of the IGO "small group” are basically a subset of the IGO Coalition that participated in the original GNSO IGO-INGO PDP in 2012-13, working with the GAC leadership and those GAC members that had internally been working on the topic of IGO protections. To the extent that there seems to be a “primary” contact point for that group, I believe it is the OECD.
Sorry if all these dates and details are a bit convoluted; maybe this set of chronological bullet points will help: Feb 2014 – Board acknowledgement of GNSO original PDP recommendations and request to NGPC to develop proposal: https://www.icann.org/resources/board-material/resolutions-2014-02-07-en#2.a March 2014 – NGPC proposal: https://gnso.icann.org/en/correspondence/chalaby-to-robinson-20mar14-en.pdf Sept 2014 – Discussion between GNSO Council and Chris Disspain: http://gnso.icann.org/en/meetings/minutes-council-04sep14-en.htm Oct 2014 – Letter from Jonathan Robinson to Cherine Chelaby and Chris Disspain confirming outcomes of Sept discussion: http://gnso.icann.org/en/correspondence/robinson-to-chalaby-disspain-07oct14... Jan 2015 – Letter from Cherine Chelaby to Jonathan Robinson updating the GNSO on status of the discussions with the GAC: http://gnso.icann.org/en/correspondence/chalaby-to-robinson-15jan15-en.pdf Mar 2015 – GAC Singapore Communique: https://gacweb.icann.org/download/attachments/27132037/GAC_SINGAPORE52_COMMU... Jun 2015 – GAC Buenos Aires Communique: https://gacweb.icann.org/download/attachments/27132037/GAC%20Buenos%20Aires%... I hope this helps provide the background to the formation of the “small group” and to the GAC’s latest Communique.
Cheers Mary
Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong@icann.org
From: <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Mike Rodenbaugh <mike@rodenbaugh.com> Date: Wednesday, July 15, 2015 at 03:47 To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP
Thanks George, I am in general agreement.
Along these lines, is anyone aware, or can Staff please inform us, as to the who is in the "informal small group" referenced in the GAC Communique as having made "progress" on the topic of IGO names, what are they discussing exactly, where is the transparency around that effort, and when is it supposed to conclude?
There are quite a few IGO names issues up in the air, where there is a difference of opinion between GAC and GNSO, and the Board is trying to reconcile. This WG covers just one aspect -- IGO names at the second level. The remaining issues (i.e. proposed protections at the top level) must also be dragged out into the light, and then a compromise reached to resolve all issues -- not just the one this WG is considering.
This "informal small group" does not appear to have any official charter or public presence, yet the GAC is citing their progress and goal to develop a "concrete proposal" before Dublin. The community, and particularly this WG, ought to be informed and involved in the work of that group.
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com
On Sat, Jul 11, 2015 at 6:29 AM, George Kirikos <icann@leap.com> wrote: Hi folks,
I hope everyone is enjoying the start of the weekend. Late last night, ICANN released a decision in the Independent Review of the .africa matter. See:
https://www.icann.org/news/announcement-2-2015-07-10-en https://www.icann.org/en/system/files/files/final-declaration-09jul15-en.pdf http://domainincite.com/18944-new-gtld-program-thrown-into-chaos-as-icann-lo...
Parts of the decision are redacted, which raises questions of its own regarding ICANN transparency.
However, the panel had much to say about GAC advice.
1. It ruled that GAC is a constituent body of ICANN (paragraph 101, page 43).
2. ICANN's own witness, Heather Dryden (former GAC chair), according to the panel, testified that the "GAC did not act with transparency or in a manner designed to insure fairness" (paragraph 102, pages 43-44). Rather, Ms. Dryden testified that "we talk about creative ambiguity. We leave things unclear so we don't have conflict" (paragraph 102, page 44)
3. Most damningly, the panel said in paragraph 104 (pages 44-45) that "Ms. Dryden also stated that the GAC made its decision without providing any rationale and primarily based on politics and not on potential violations of national laws and sensitivities." This appears to be quite similar to the "advice" that the GAC has provided to ICANN and to this very PDP (via its "answers")
4. In paragraph 110 (pages 46-47), Ms. Dryden admitted that the GAC isn't using sound and reasoned technical or legal analysis to come up with its advice, but is instead influenced by politics "And that's the nature of -- of the political process." (with much redacted after that answer)
5. Ms. Dryden also testified (still in paragraph 110, page 52) that GAC advice is issued with no rationale:
"THE WITNESS: Problematic, violate national law -- there are a lot of laws -- and sensitivities does strike me as being quite broad. [...] ARBITRATOR KESSEDJIAN: Okay. So we are left with what? No rules? THE WITNESS: No rationale with the consensus objections. That's the -- the effect."
6. This was not consistent with ICANN's bylaws, e.g. paragraph 113 (page 53), "In light of the clear “Transparency” obligation provisions found in ICANN’s Bylaws, the Panel would have expected the ICANN Board to, at a minimum, investigate the matter further before rejecting DCA Trust’s application."
How does the IRP decision affect this PDP? I believe no deference should be given to any of the answers or positions provided by the GAC, unless accompanied by clear and convincing facts and rationale, along with evidence that there's been substantive deliberations to arrive at a position. The GAC has not been transparent with how it reaches its positions, nor has it elaborated on its reasoning to assist this PDP.
In particular, its 2 page letter of April 29, 2015 does not come close to the standard that is demanded by ICANN bylaws, and thus should be given no deference.
In my opinion, the IGOs have (to date) hesitated to participate in this PDP, perhaps in the misguided belief that they could rely instead on their ability to influence the GAC behind closed doors. This IRP decision should be considered a harsh rebuke to that approach. If the IGOs really want to affect the outcome of this PDP, they should actively engage with us by providing facts and analysis, rather than using a "political" approach.
In conclusion, this PDP should not be influenced by politics (points #3 and #4 above), but should instead be built on a foundation of a careful analysis of facts and laws.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Thanks Mary. So as far as I can tell, the "small group" consists of Chris Disspain and various unnamed representatives of IGOs and their unnamed benefactors within GAC (esp OECD)? That does not seem balanced in any sense of the word, or transparent. Given the group appears tasked with reconciling GNSO and GAC -- why is there no GNSO representation? Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Wed, Jul 15, 2015 at 9:13 AM, Mary Wong <mary.wong@icann.org> wrote:
Hello Mike and everyone,
Some of these questions had been raised in previous WG calls, but it may be helpful to consolidate what we can in a single note, so thank you for following up on this.
The IGO “small group” was formed as a result of discussions between the NGPC and the GAC (where the IGOs are observers) at the Los Angeles meeting, in October 2014. This grew out of NGPC-GAC discussions over the NGPC’s proposal of March 2014, which in turn was produced in direct response to the full Board’s resolution of February 2014 (in which the Board acknowledged the GNSO’s original policy recommendations on IGO protections, which the GNSO Council had adopted in November 2013 – being the set of consensus recommendations from the original IGO PDP that Thomas Rickert chaired).
The NGPC’s March 2014 proposal had been sent to the GNSO Council as well, and in September 2014 Chris Disspain (NGPC member and the Board “shepherd” for the topic of IGO protections) participated in a GNSO Council meeting, to discuss the status of the NGPC-GAC discussions. This was viewed by the Council as particularly timely as the NGPC had asked the GNSO (in June) whether it would be amenable to amending those of its adopted policy recommendations that are inconsistent with GAC advice.
As I understand it, the members of the IGO "small group” are basically a subset of the IGO Coalition that participated in the original GNSO IGO-INGO PDP in 2012-13, working with the GAC leadership and those GAC members that had internally been working on the topic of IGO protections. To the extent that there seems to be a “primary” contact point for that group, I believe it is the OECD.
Sorry if all these dates and details are a bit convoluted; maybe this set of chronological bullet points will help:
- Feb 2014 – Board acknowledgement of GNSO original PDP recommendations and request to NGPC to develop proposal: https://www.icann.org/resources/board-material/resolutions-2014-02-07-en#2.a - March 2014 – NGPC proposal: https://gnso.icann.org/en/correspondence/chalaby-to-robinson-20mar14-en.pdf - Sept 2014 – Discussion between GNSO Council and Chris Disspain: http://gnso.icann.org/en/meetings/minutes-council-04sep14-en.htm - Oct 2014 – Letter from Jonathan Robinson to Cherine Chelaby and Chris Disspain confirming outcomes of Sept discussion: http://gnso.icann.org/en/correspondence/robinson-to-chalaby-disspain-07oct14... - Jan 2015 – Letter from Cherine Chelaby to Jonathan Robinson updating the GNSO on status of the discussions with the GAC: http://gnso.icann.org/en/correspondence/chalaby-to-robinson-15jan15-en.pdf - Mar 2015 – GAC Singapore Communique: https://gacweb.icann.org/download/attachments/27132037/GAC_SINGAPORE52_COMMU... - Jun 2015 – GAC Buenos Aires Communique: https://gacweb.icann.org/download/attachments/27132037/GAC%20Buenos%20Aires%...
I hope this helps provide the background to the formation of the “small group” and to the GAC’s latest Communique.
Cheers Mary
Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong@icann.org
From: <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Mike Rodenbaugh < mike@rodenbaugh.com> Date: Wednesday, July 15, 2015 at 03:47 To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP
Thanks George, I am in general agreement.
Along these lines, is anyone aware, or can Staff please inform us, as to the who is in the "informal small group" referenced in the GAC Communique as having made "progress" on the topic of IGO names, what are they discussing exactly, where is the transparency around that effort, and when is it supposed to conclude?
There are quite a few IGO names issues up in the air, where there is a difference of opinion between GAC and GNSO, and the Board is trying to reconcile. This WG covers just one aspect -- IGO names at the second level. The remaining issues (i.e. proposed protections at the top level) must also be dragged out into the light, and then a compromise reached to resolve all issues -- not just the one this WG is considering.
This "informal small group" does not appear to have any official charter or public presence, yet the GAC is citing their progress and goal to develop a "concrete proposal" before Dublin. The community, and particularly this WG, ought to be informed and involved in the work of that group.
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com
On Sat, Jul 11, 2015 at 6:29 AM, George Kirikos <icann@leap.com> wrote:
Hi folks,
I hope everyone is enjoying the start of the weekend. Late last night, ICANN released a decision in the Independent Review of the .africa matter. See:
https://www.icann.org/news/announcement-2-2015-07-10-en
https://www.icann.org/en/system/files/files/final-declaration-09jul15-en.pdf
http://domainincite.com/18944-new-gtld-program-thrown-into-chaos-as-icann-lo...
Parts of the decision are redacted, which raises questions of its own regarding ICANN transparency.
However, the panel had much to say about GAC advice.
1. It ruled that GAC is a constituent body of ICANN (paragraph 101, page 43).
2. ICANN's own witness, Heather Dryden (former GAC chair), according to the panel, testified that the "GAC did not act with transparency or in a manner designed to insure fairness" (paragraph 102, pages 43-44). Rather, Ms. Dryden testified that "we talk about creative ambiguity. We leave things unclear so we don't have conflict" (paragraph 102, page 44)
3. Most damningly, the panel said in paragraph 104 (pages 44-45) that "Ms. Dryden also stated that the GAC made its decision without providing any rationale and primarily based on politics and not on potential violations of national laws and sensitivities." This appears to be quite similar to the "advice" that the GAC has provided to ICANN and to this very PDP (via its "answers")
4. In paragraph 110 (pages 46-47), Ms. Dryden admitted that the GAC isn't using sound and reasoned technical or legal analysis to come up with its advice, but is instead influenced by politics "And that's the nature of -- of the political process." (with much redacted after that answer)
5. Ms. Dryden also testified (still in paragraph 110, page 52) that GAC advice is issued with no rationale:
"THE WITNESS: Problematic, violate national law -- there are a lot of laws -- and sensitivities does strike me as being quite broad. [...] ARBITRATOR KESSEDJIAN: Okay. So we are left with what? No rules? THE WITNESS: No rationale with the consensus objections. That's the -- the effect."
6. This was not consistent with ICANN's bylaws, e.g. paragraph 113 (page 53), "In light of the clear “Transparency” obligation provisions found in ICANN’s Bylaws, the Panel would have expected the ICANN Board to, at a minimum, investigate the matter further before rejecting DCA Trust’s application."
How does the IRP decision affect this PDP? I believe no deference should be given to any of the answers or positions provided by the GAC, unless accompanied by clear and convincing facts and rationale, along with evidence that there's been substantive deliberations to arrive at a position. The GAC has not been transparent with how it reaches its positions, nor has it elaborated on its reasoning to assist this PDP.
In particular, its 2 page letter of April 29, 2015 does not come close to the standard that is demanded by ICANN bylaws, and thus should be given no deference.
In my opinion, the IGOs have (to date) hesitated to participate in this PDP, perhaps in the misguided belief that they could rely instead on their ability to influence the GAC behind closed doors. This IRP decision should be considered a harsh rebuke to that approach. If the IGOs really want to affect the outcome of this PDP, they should actively engage with us by providing facts and analysis, rather than using a "political" approach.
In conclusion, this PDP should not be influenced by politics (points #3 and #4 above), but should instead be built on a foundation of a careful analysis of facts and laws.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
participants (6)
-
George Kirikos -
Mary Wong -
Mike Rodenbaugh -
Paul Keating -
Paul＠law.es ZIMBRA
-
Reg Levy