Good afternoon : In the question of the Implementation Review Teams (IRT's) by any other name, I come to this rather unexpectedly. So, before joining the 'SMALL GROUP' established by the PDP Call on 6 May, I would wish to just summarize and explain what I said during that call. 1. Predictability : It is a primary röle for the PDP to establish rules and procedures which give rise to predictability for all parties concerned. At present the PDP and the work Tracks, (particularly WT5) are far from creating a predictability framewlork. This is primarily because some participants express a tangible reluctance to accept rules and procedures that would be predictable for third parties. Thus, the primary responsibility of the PDP is to fix the predictability issues including those that have not been resolved at the Work Track level. Meanwhile,. It is not appropriate to charge IRTs with 'interlpreting' the consequences of unresolved policy issues. 2. Implementation vs. Policy : This risques becoming a false distinction. What is a minor issue for some could be a major issue for others. Specifically the resolution of a minor issue for one application could become a precedent for other applications. Any eventual IRT would inevitably be 'looking over its shoulder' to see what would be the consequences elsewhere i.e. Policy. Third Parties : The expansion of the DNS inevitably impinges on the interests of parties that are neither contdracted pardtdies, nor applicatns. To ignore this would absolutely guarantee a lack of predictability both for the applicants and for third parties concerned. There is a discontinuity between the presuppositions in the PDP andl the GNSO as to how matters should proceed, and the natural assumptions of concerned third lparties which are « Write to the Board » or « Write to the GAC member ». Thus considerably reducing the scope for eventual IRTs to handle questions that will rapidly go beyond their control, particularly it becomes a matter of Policy. 4. The 'Standing IRT?' Should it become necessary to create an entity 'between' the AGB process and the Staff on the one hand, and the GNSO and the Board on the other hand, we would be creating an entity with significant power. If so, it must be enhanced with full transparency, independence and accountability to the Community, that is to all Stakeholders, By dealing with unforeseen issues affecting applicants and third parties, the entity will inevitably create policy by precedent, if not by its intended decisions. 5. In Conclusion: I come back to the first point that is that the PDP and WT5 need to do a lot more concrete work to create predictability. With regard to third party interests, a lack of predictability will undermine predictability for applicants; unresolved issues will simply escalate and create delays and uncertainties. As before. Let us bear in mind that in future 'rounds' most applicants may not benefit from experience from 2012, nor from inside knowledge of the PDP and Work Tracks. An 'IRT' would not be able to resolve lacunae arising from the PDP itself. Regards Christopher Wilkinson Xàbia, 8 May 2019Good evening :
On 7 May 2019, at 22:05, Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com>> wrote:
Dear WG members: Regarding the smaller group assembled to work on how staff and the proposed “post-launch Standing IRT” might determine whether an issue is policy or implementation, I would like to clarify again the history that led to the existing GNSO processes designed to address these issues whenever they arise –either Pre- or –Post launch:
The Policy & Implementation Working Group grappled with this question of policy versus implementation for many months and concluded it was impossible to make determinations about that in advance because “one person’s policy is another person’s implementation”. That is exactly why we have the result we have in the form of GNSO Input (which is essentially for implementation issues), GNSO Guidance, and GNSO EPDP. In fact, it was Marika Koenigs who first suggested to the Policy & Implementation WG that, based on our case studies of issues that arose in the 2012 round, it was impossible to “predict” issues that might arise and label them as clearly policy or clearly implementation. Jeff has pointed out that applicants want more “predictability” in the process so that time delays do not result. Thus, the proposed “Predictability Framework” anticipates that ICANN staff and/or or some newly created body will be able to decide issues that arise post-launch. The “problem” Jeff is trying to resolve as Co-Chair is that if an issue reaches the GNSO, it may take too long to resolve and thus is not practical for registry applicants. However, as far as I know, we have not yet tried out these new processes (except for the EPDP on the Temp Spec) so it seems to me a bit premature to be inventing new processes and acronyms on top of the ones that have not yet been tried. It strikes me that for various Implementation issues that actually rise to the level of an issue post-launch, the existing GNSO Input process (which has not yet been used) is adequate and is in fact designed to operate in that fashion since GNSO can raise such a concern “at any time it deems appropriate”.
Under existing GNSO processes established as a result of the work of the Policy & Implementation Working Group, the “gateway” is in fact a question of the interaction between and among Staff, an IRT (or Post-launch Standing IRT), and the GNSO Council. Staff can raise an issue, IRT can raise an issue, and ANY GNSO Council member can raise an issue and so these are the “gates”. (In other words, there are multiple gates and they all ultimately lead to oversight by GNSO Council.) My own view (having worked actively in the Policy & Implementation Working Group on several case studies of issues that arose Post-Launch in the 2012 round) is that if an issue is truly implementation, no one is going to raise the issue to the level of GNSO. Issues will only rise to that level if a stakeholder believes that GNSO Council should address it and that applies whether it’s merely implementation (“GNSO Input” Annex) or involves policy (“GNSO Guidance” Annex or “GNSO EPDP” Annex).
Before the Sub Pro Initial Report issued, the Co-Chairs and staff ultimately agreed to make reference to the GNSO Input, Guidance, and EPDP processes but those processes were only referenced and footnoted, not actually explained to the ICANN community or the public. Importantly, the draft Initial Report language was clarified to delete the reference to the Standing IRT “deciding” an issue based on the Predictability Framework. Instead, in the Initial Report, there is a reference to the Standing IRT being able to “recommend” a resolution of the issue. In terms of ICANN governance and the ByLaws as modified after the Policy & Implementation WG finished its work, that is the correct stance. Establishing some other “gate” or some method for determining in advance what is policy and what is implementation when the existing processes adopted after a full WG process have not been tried does not make sense to me.
By way of additional background, the whole Policy & Implementation Working Group evolved from the fact that then-CEO Fadi Chehade decided that the “Strawman Solution” in relation to trademarks was implementation, not policy. Fadi issued a public statement to this effect. GNSO Council members were upset about this and our Co-Chair Jeff Neuman wrote the letter to the ICANN Board stating that if the Board took action (such as the Strawman Solution) that amounted to a change in policy, they had to come back to GNSO for its views on the topic and more specifically, to make a determination as to whether the topic required more policy work or merely some GNSO input.
Clearly the timing as to when an issue arises (either pre- or post- launch) is NOT a determiner of whether it is Policy or Implementation. So Chuck Gomes led the P & I WG as a result of the GNSO Council’s dissatisfaction with the handling of that issue (and others) that arose Post-Launch and we spent more than year (probably about 2 years) reviewing numerous issues that arose after applications were filed in the 2012 round. That is why the GNSO processes called Input, Guidance and EPDP were adopted by the GNSO Council and that is why the ICANN ByLaws were amended.
Hopefully the above history helps to clarify why I was quoting existing GNSO Operating Procedures and Annexes. Again, I don’t think the public understood these processes when the Initial Report issued. The current Consensus Policy Implementation Framework (“CPIF”) of the GNSO makes specific reference to these processes and requires that IRT members be briefed on them. Anne
<> From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org>] On Behalf Of Jeff Neuman Sent: Tuesday, May 7, 2019 1:57 AM To: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] FW: Follow up from May 6th and CALL FOR SMALL GROUP
[EXTERNAL] All,
Following up on the call yesterday, we have revised the document on the Proposed New Predictability Model. You can find it here: https://docs.google.com/document/d/12_x8zYR9r6zXqfA7dmoosSPH12NmcyJ-2FEjecGr... <https://docs.google.com/document/d/12_x8zYR9r6zXqfA7dmoosSPH12NmcyJ-2FEjecGr...>. The comments made during the call should be incorporated either as revised language itself, or as “comments” for draft language to be created.
As we discussed, we would like to have a smaller group dedicated to working through the issues that remain on this topic so that a more comprehensive proposal can be presented to the full working group at a later date on the Predictability Framework. The group is open to any current Working Group members. However, if you join the small group, you are expected to put in some time to try and resolve whatever issues remain. The small group MAY have a call or two, but the hope is that all of the work can be done in e-mail and through the documents itself. We will create a mailing list to work on these issues. This is NOT a formal group.
So far, I think we captured the following people to be on this group (from the call last night):
Jeff Neuman Cheryl-Langdon Orr Kathy Kleiman Christopher Wilkinson Kristina Rosette
There may have been others that already volunteered, but may not have captured, so please indicate your interest to us if you want to be a part of the smaller team.
We will not be doing formal consensus calls as part of this smaller group, but rather just making the proposal better and filling in the holes to present to the full working group.
Please let me know if you have any questions.
Best regards,
Jeffrey J. Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive , Suite 600 Mclean , VA 22102 UNITED STATES T: +1.703.635.7514 M: +1.202.549.5079
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From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Julie Hedlund Sent: Monday, May 6, 2019 11:40 PM To: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 06 May 2019
Dear Working Group members,
Please see below the notes from the meeting today, 06 May 2019. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2019-05-06+New+gTLD+Subsequent+Pro... <https://community.icann.org/display/NGSPP/2019-05-06+New+gTLD+Subsequent+Pro...>.
Please also see the referenced documents at: https://docs.google.com/document/d/1R4zXTH3hIgfbqoxyqsSp19Bl6J96NNeV7oCgxsXK... <https://docs.google.com/document/d/1R4zXTH3hIgfbqoxyqsSp19Bl6J96NNeV7oCgxsXK...>.
Kind regards, Julie Julie Hedlund, Policy Director
Notes and Action Items:
Action Items:
ACTION ITEM 1: Staff to incorporate edits as discussed into the 2.2.2 Predictability document. ACTION ITEM 2: Gather a small group to further develop the 2.2.2 Predictability document at:https://docs.google.com/document/d/12_x8zYR9r6zXqfA7dmoosSPH12NmcyJ-2FEjecGr... <https://docs.google.com/document/d/12_x8zYR9r6zXqfA7dmoosSPH12NmcyJ-2FEjecGr...>. Jeff will send out a call for volunteers to the list. Volunteers thus far: Kristina Rosette, Kathy Kleiman and Christopher Wilkinson.
Notes:
1. Updates to Statements of Interest (SOIs): No updates provided.
2. Review of Summary Documents – (see: https://docs.google.com/document/d/1R4zXTH3hIgfbqoxyqsSp19Bl6J96NNeV7oCgxsXK... <https://docs.google.com/document/d/1R4zXTH3hIgfbqoxyqsSp19Bl6J96NNeV7oCgxsXK...>)
a. Continued: 2.2.2 Predictability / 2.2.2.2 Clarity of Application Process: See:https://docs.google.com/document/d/12_x8zYR9r6zXqfA7dmoosSPH12NmcyJ-2FEjecGr... <https://docs.google.com/document/d/12_x8zYR9r6zXqfA7dmoosSPH12NmcyJ-2FEjecGr...>
-- Note: If we don’t come to consensus on a topic then the status quo will be as it was implemented in 2012. On the record that some do not support that approach. -- There are some different things relating to IRTs that could be new.
2.2.2 Predictability: -- Added bullet: The Predictability Model complements the existing GNSO processes and procedures and shall not in any way operate to be a substitute or replacement for those. In fact, they are incorporated into the Predictability Framework explicitly.
Discussion: -- “they” references existing processes and procedures. -- To avoid any doubt in future we might want to add, “In the event of a conflict, existing GNSO processes and procedures take precedent.” -- Change from “shall not in any way operate to be” to “is not intended to be”.
What are we proposing:
B. Changes to ICANN Organization Internal Processes
Discussion: -- Comfortable that we have a distinction for minor changes. -- For the first bullet under (b) -- re: “anything visible” -- what does that encompass? Add “change the application or any of the other processes set forth in the applicant guidebook”. Or “those parts of the application that are scored”? -- Third bullet -- New processes: Some examples have direct relevance for the entire community. Such as a new public comment platform. -- Standing IRT decides what is implementation or policy -- but some WG members disagree. -- Change to “Material adverse impact”? -- Second bullet -- “all non-minor changes” -- in written policy? Answer: The output of this whole thing will eventually be the AGB and if there are changes to the AGB they would be written. -- So not a reasonable response that a process will just take longer -- just being a communication. Seems like there should be more accountability. Add a comment/note to see if that falls under a different category. -- Filter out those things that can be dealt with in a practical matter. -- Third bullet: Need a gateway process before we get to these items. Wherever something affects the underlying rules has huge implications. -- Might need to clarify: “New public comment platform” means changes to the tools being used to submit. The rules for commenting is the same, but the platform is different. -- Second bullet: Not meant to be a change in the timing, but a change in a portal. -- Add a line after bullet three, “These proposed changes are intended to be only those that involve mechanisms with no substantive impact.” Question: How is that different from this text, “but rather a New ICANN Organization Internal Process and it is likely to have a materially [adverse] impact on applicants or community members…” Seems similar in meaning. -- An example of a change that wouldn’t be substantive but could have a material adverse impact would be requiring that Legal Rights Objections be filed through a proprietary platform instead of email. Wouldn't affect the substantive LRO (elements, standing, etc), but there may be some potential objectors that, for one reason or another, can't use that platform. -- Are timelines on filing objections seen as a different type of timeline as a third-party timeline? -- What might be a minor change for one party could be a major change to others. Adverse outcomes -- for whom? Should there be a policy gateway to determine? We don’t have a framework that would be considered to be predictable. -- If there is a gateway then that could delay any changes. -- Overriding principle is predictability. Trying to improve predictability from the last round.
C. Fundamental Possible Policy Level Changes
Discussion: -- Some examples seem to be out of scope for an IRT. -- Deciding something that is policy: a standing IRT can raise that issue and the GNSO Liaison can take that back to the Council. Any Council member also can raise something for consideration at the Council level. -- So a standing IRT can raise something, but only the Council can decide what is policy or implementation, but it sounds like we are setting up a separate gateway. The standing IRT cannot be the final arbiter, and the Council also can raise it directly. -- Add to the bullet point that the standing IRT can make a recommendation to the GNSO Council as to whether something is policy or implementation, but the GNSO will make the final decision. -- Ensure that this document is cross-referenced to the current policies and processes for IRTs. -- What do we mean by “Staff will collaborate with the community”? Answer: That is meant to first go to the standing IRT, which makes a recommendation for additional consideration, and then the GNSO decides how to handle it -- GNSO Input Process, EPDP, etc. -- Delete this text, “Staff will collaborate with the community to consider the issue and agree upon the mechanism by which the solution will be developed. Options could include:” And emphasize the point that this is meant to be a community+staff decision, not just staff. Mark them as redlined and to be replaced. Come back to this in another WG meeting. -- Helpful to have a workflow diagram for the Predictability Framework once concepts are agreed and reconcile with existing ones from IRT Guidelines.
D. Fundamental Possible Policy Level New Proposals
Discussion: -- Carry over changes from bullets under C. -- Reaching out to the community means staff reaching out to the standing IRT. But don’t think the standing IRT has the authority to decide if something is a policy or implementation change. Could have a new group that includes members of the IRT, and also Council members, and then decide if it goes to the standing IRT. -- Want to change what we call this because of previous problems with IRTs. Want to get the composition right so it is representative of the community. Meant to ensure that it is a gateway. -- A number of groups supported the recommendations in the Initial Report but also some dissenting views: ACTION: Form a smaller group to further develop this document for the full WG. Volunteers thus far: Kristina Rosette, Kathy Kleiman and Christopher Wilkinson.
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