October 2019 - GNSO-PDP3Dot0-DT

Draft Response to Public Comment on Multistakeholder Model
by Ariel Liang Oct. 5, 2019

Oct. 5, 2019

Hello All, Per action item, please review the draft response to the public comment<https://www.icann.org/public-comments/multistakeholder-model-next-steps-201…> on the “Next Steps to Improve the Effectiveness of ICANN’s Multistakeholder Model”. You are welcome to comment and suggest edits directly on the Google Doc: https://docs.google.com/document/d/1iOmvilYyM59P1nPkomANgTcDrHgWCK7Blcm1283… Though the comment is slightly long, you should be able to quickly skim through the parts that include the improvement language and the graphics. As our aim is to share the draft comment with the Council by the end of this week, please provide your input by COB Thursday, 3 October, if possible. Thank you very much for your time and review! Best Regards, Ariel Ariel Xinyue Liang GNSO Policy Support Specialist Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: +1 310 804 2761 Skype: ariel.liang.icann www.icann.org

2 1

GNSO Council Liaisons to PDPs - Request for Input and Feedback
by Steve Chan Oct. 3, 2019

Oct. 3, 2019

Sent on behalf of the GNSO Council PDP 3.0 Small Team. If you have any questions about the specific request below or the PDP 3.0 effort more broadly, do not hesitate to ask. Dear Past and Current Council Liaisons, The GNSO Council PDP 3.0 Small Team has developed the set of attached questions designed to collect feedback about what went well, what was a challenge, and identify possible improvements from past or current GNSO Council liaisons to GNSO PDPs. Recognizing that each PDP operates differently based upon the PDP leadership, the PDP scope, the controversial nature (or lack thereof) of the PDP issue(s), and the timelines, we are not seeking to normalize every PDP; we also recognize that because each PDP is different, some of the questions may be more or less relevant to your respective situation. These questions are designed to help inform the Council's PDP 3.0 Small Team on how to improve the Council liaison role, which could result in the development of new tools, new processes, training, etc. Rather than providing a response in writing to the questions, the expectation is that these questions will form the basis for a discussion amongst you all and the PDP 3.0 small team. To that end, please complete the Doodle poll here: https://doodle.com/poll/kuuidbpcpwhk3dea. However, it may be the case that you in fact prefer to provide your feedback in writing, prefer to share your experiences in a more intimate setting, or the times just absolutely do not work for you. We are flexible and will find a way to work with you. Given the wide geographical spread, it may be impractical to do a single call anyway. We appreciate you taking the time to consider your experience as a GNSO Council PDP Liaison and providing your insights to help improve the guidance and tools for this important role. If you have any questions, please let us know. Best regards, GNSO Council PDP 3.0 Small Team Steven Chan  Policy Director, GNSO Support Internet Corporation for Assigned Names and Numbers (ICANN) 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536  Email: steve.chan(a)icann.org Skype: steve.chan55 Mobile: +1.310.339.4410 Find out more about the GNSO by visiting: https://learn.icann.org/ Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Transcripts and recordings of GNSO Working Group and Council events are located on the GNSO Master Calendar See All SO and AC events on the ICANN Global calendar [features.icann.org]

1 5

Re: [GNSO-PDP3Dot0-DT] Proposed Agenda GNSO PDP 3.0 - 8 October at 13:00 UTC
by Ariel Liang Oct. 3, 2019

Oct. 3, 2019

Correction: next meeting time is Tuesday, 8 October From: GNSO-PDP3Dot0-DT <gnso-pdp3dot0-dt-bounces(a)icann.org> on behalf of Ariel Liang <ariel.liang(a)icann.org> Date: Thursday, October 3, 2019 at 12:24 PM To: "gnso-pdp3dot0-dt(a)icann.org" <gnso-pdp3dot0-dt(a)icann.org> Subject: [GNSO-PDP3Dot0-DT] Proposed Agenda GNSO PDP 3.0 - 8 October at 13:00 UTC Dear All, Below, please find the proposed agenda for the PDP 3.0 Small Team Meeting on Tuesday, 8 October at 13:00 UTC. 1. Welcome and roll call 2. Package 3 Improvements (~staff lead discussion in Darcy’s absence) 1. #13 Review of working group leadership (~Emily) 2. #5 Active role for and clear description of Council liaison to PDP working groups (~Steve) 1. AOB Best, Ariel Ariel Xinyue Liang GNSO Policy Support Specialist Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: +1 310 804 2761<tel:+1%20310%20804%202761> Skype: ariel.liang.icann www.icann.org [icann.org]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.icann.org_&d=DwMGaQ…>

1 0

Proposed Agenda GNSO PDP 3.0 - 7 October at 13:00 UTC
by Ariel Liang Oct. 3, 2019

Oct. 3, 2019

Dear All, Below, please find the proposed agenda for the PDP 3.0 Small Team Meeting on Tuesday, 7 October at 13:00 UTC. 1. Welcome and roll call 2. Package 3 Improvements (~staff lead discussion in Darcy’s absence) 1. #13 Review of working group leadership (~Emily) 2. #5 Active role for and clear description of Council liaison to PDP working groups (~Steve) 1. AOB Best, Ariel Ariel Xinyue Liang GNSO Policy Support Specialist Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: +1 310 804 2761<tel:+1%20310%20804%202761> Skype: ariel.liang.icann www.icann.org<http://www.icann.org/>

1 0

Fwd: Draft Section 3.7 "lessons learned" paper (Re: Fwd: Following up: "lessons learned" document from the Curative Rights procedural appeals)
by Rafik Dammak Oct. 3, 2019

Oct. 3, 2019

Hi all, with regard to discussion on improvement for 3.7, please find attached the draft of lesson learned paper ( I highlight the word draft) to help us for our discussion and which complements Heather's comments. Best Regards, Rafik ---------- Forwarded message --------- De : Mary Wong <mary.wong(a)icann.org> Date: mar. 1 oct. 2019 à 14:04 Subject: Draft Section 3.7 "lessons learned" paper (Re: [GNSO-PDP3Dot0-DT] Fwd: Following up: "lessons learned" document from the Curative Rights procedural appeals) To: Rafik Dammak <rafik.dammak(a)gmail.com>, Heather Forrest < haforrestesq(a)gmail.com> Cc: Steve Chan <steve.chan(a)icann.org>, Ariel Liang <ariel.liang(a)icann.org> Dear Heather and Rafik, Given where the PDP3.0 discussions seem to be and the Drafting Team’s receipt of Heather’s notes (below), I thought it made sense for me to send you the current draft of the “lessons learned” paper that I have been hoping to complete in order to send it to Heather and Susan for their review and comments. Please see the attached draft, which, if Heather is amenable, you may wish to share with the Drafting Team on the understanding that it is still a draft document and that Susan has not yet seen it. You’ll see that I’ve gotten as far as addressing up to 4 or 5 of Heather’s questions; I had hoped to review the current PDP3.0 proposals in order to complete it but unfortunately have not had the bandwidth recently. I hope what I have prepared to date is helpful. Cheers Mary *From: *GNSO-PDP3Dot0-DT <gnso-pdp3dot0-dt-bounces(a)icann.org> on behalf of Rafik Dammak <rafik.dammak(a)gmail.com> *Date: *Tuesday, October 1, 2019 at 05:40 *To: *gnso-pdp3dot0-dt <gnso-pdp3dot0-dt(a)icann.org> *Cc: *Heather Forrest <haforrestesq(a)gmail.com> *Subject: *[GNSO-PDP3Dot0-DT] Fwd: Following up: "lessons learned" document from the Curative Rights procedural appeals Hi all, Heather kindly shared some bullet points about 3.7 I think useful for our call today to review Flip memo and give us some feedback based on real experience with that process. Best, Rafik ---------- Forwarded message --------- Hi Rafik, Pam, Sending you both my long laundry list of notes on 3.7, as I believe Mary's report hasn't been completed yet. Please feel free to share with the PDP 3.0 team and in particular Flip as leading the effort on 3.7. If I can be of any help to the team, just shout. H ---------- Forwarded message --------- Hi Mary, As always, without you, we'd be lost! Here are a few points that I would like to raise in terms of 'lessons learned': 1. Section 3.7 provides essentially three grounds for appeal: (i) a WG member "believes that his/her contributions are being systematically ignored or discounted" and (ii) a WG member wishes to appeal a decision of the WG or CO". In the second paragraph of 3.7, a third ground is raised, where the WG member "is of the opinion that someone is not performing their role according to the criteria outlined in s 2.2". The first step in the 3.7 process is a dialogue with the WG Chair. I believe that we are missing a key step here, which is that the aggrieved WG member who initiates section 3.7 should be asked to succinctly identify the factual circumstances giving rise to the ground in (i) or (ii) or paragraph 2. *Succinctly *is key here - long, convoluted narratives, appendices and other lengthy documentation/evidence are not appropriate or needed. Rather, we simply need to determine as a matter of first priority whether the matter raised is validly raised under 3.7, ie, whether it falls squarely in either (i) or (ii) or para 2. 2. A necessary and logical flow-on from #1 above, there is no clarity in the current 3.7 as to what type of documentation is required, what level of detail or documentation is required. A particularly litigious-minded WG member can treat this process as a sort of mini-litigation, with highly formal documentation. Another WG member may be far less formal in raising such a concern. Indeed, I am sure that we have had situations where 3.7 *could have been *invoked, and where informal discussions have occurred between a WG member and a WG Chair, but 3.7 was not mentioned. I was hopeful going into the IGO/INGO Curative Rights 3.7 (the first one, raised in December 2017) that the spirit and collegiality of the community would prevail and the proceeding could be conducted with a minimum of formality or litigation-style communication, but this assumption/hope was quickly dashed. I am not quick to suggest that we engage in more procedure or process drafting (ie, death by procedure) to anticipate in writing every possible situation, but I do think that some guidance here from the outset of a 3.7 (a sort of 'playbook', even if not expressly documented in the WG manual) would be helpful to set the expectations right from the outset. I personally do not believe that litigation-style correspondence or documentation leads to a multistakeholder consensus-based attitude or result. 3. Further to #2, some clarity as to whether the parties involved can/should be represented by legal counsel, and what to do when the 3.7 appellant asks for all communication to go through their counsel, is needed. 4. Our experience with 3.7 to date has demonstrated that the current first step, the discussion of circumstances with the WG Chair, is not fruitful. Further, there is no clear understanding here as to what to do when there is more than one WG Chair. If the WG Chairs have differing views, this suggests that the WG Chairs should confer between themselves to arrive at an agreed position prior to engaging with the s 3.7 appellant. 5. No real mention was made in the Curative Rights 3.7 of footnote 5, which requires that 'a formal appeal will require that a single member demonstrates a sufficient amount of support for initiating an appeal before the formal process outlined in Section 3.7 can be invoked'. Some further thought is needed as to what constitutes 'a sufficient amount of support', how is this impacted by a WG with low membership numbers, do we adopt the spirit here of consensus-building that this isn't so much a quantitative as a qualitative judgment call, etc. What to do if the WG member raising the appeal disagrees with the assessment that a 'sufficient amount of support' has not been demonstrated? 6. What role does the Council liaison play in the 3.7 process? Note the Liaison is not named anywhere in the body of 3.7, but our role description of liaisons does give certain responsibility in the event of disputes. The Liaison is explicitly mentioned in footnote 5 regarding the determination of whether 'a sufficient amount of support' exists. 7. What role does/can the Ombudsman or ICANN Complaints Officer play in the 3.7 process? 8. At what point, if any, should the GNSO raise the matter with ICANN Legal? What support, if any, can ICANN Legal provide to the WG Chairs and the GNSO Chair? 9. What is the next avenue of recourse if the discussion with the Chair of the GNSO does not resolve the matter such that the appealing WG member remains dissatisfied? (Further, why does that paragraph in 3.7 refer to the "Chair of the Chartering Organization", when presumably the only Chair of a CO that this document binds is the Chair of the GNSO?) 10. At what point should the matter be raised with Council? In my view, either the WG Chair/s or the liaison should notify Council as soon as possible following the initiation of a 3.7. This raises questions - does the initiation of a 3.7 get raised with the whole Council, and thus become public knowledge immediately, or should it be raised with Council leadership first, to provide a record but give a modicum of privacy in the hope of resolving the issue at the first step of dialogue with WG Chair? 11. What tools can we give WG Chairs to help them make difficult decisions like this? What to do if a WG Chair is unwilling to make a decision about a 3.7 complaint for fear of legal action or other reasons? If all 3.7s are ultimately given to the GNSO Chair because the WG Chairs simply find them too difficult to decide, does this suggest that WG Chairs are unable to perform their Chair duty, or does it suggest that we are lacking some support to WG Chairs to enable them to carry out their duty? These are my top burning concerns (which I have had running in a draft document for MONTHS now and have just added/tinkered as time went on. Mary, Susan, please add, chop, change as you see fit. Best wishes, Heather

1 0

Actions & Notes: GNSO PDP 3.0 Small Team Meeting 1 October 13:00 UTC
by Ariel Liang Oct. 1, 2019

Oct. 1, 2019

Dear All, Please find below the action items and notes captured during the small team call on Tuesday, 1 October at 13:00 UTC. Staff has posted to the wiki space the action items and notes. Please note that these are high-level notes and are not meant as a substitute for the recording and chat room records, which are posted on the wiki at: https://community.icann.org/x/pJMCBw Best Regards, Ariel Ariel Xinyue Liang GNSO Policy Support Specialist Internet Corporation for Assigned Names and Numbers (ICANN) == ACTION ITEMS - Staff to organize a super small team (including Flip, Rafik, Pam, Heather, Staff) and create a first draft proposal for #9. - Staff to circulate the draft response to the MSM public comment, and Small Team to provide input/feedback. Aim to share the draft response with the Council by this Friday, 4 October. NOTES 1. Welcome & Roll Call 2. Package 4 Improvements #9 - The latest memo focuses on the changes in the Operating Procedure and further fine tuning of the changes. - Need to take into account the comments from Heather and see how we can put her comments into concrete text. - We have three memos to describe the issues and challenges, and we have comments from Heather and input from others. We can start with what we are aiming to deliver first and what we expect to do with the Operating Procedure. Start with a single document, add comments from Heather and others, and create 2-3 versions. - Set up a super small team to develop a first draft proposal. - Focus on what the improvements is about. The deliverable should be a proposed amendment to Section 3.6/3.7. - The problem is that discussion about the previous memo was a while ago, it would be good to go through the memos and refresh the memory. - Staff and some community members have concrete experience with 3.6/3.7. These experiences should be incorporated into the proposal. - Comment 1 from Heather: being succinct – an appeal should have a 500-word limit? 1,000 words will span over two pages. If PDFs with e-mails are allowed, then it is ok. - Second comment: avoid over engineering of the process. A complainant represented by a legal counsel raised several issues. - Comment 4: If the WG Chair(s) have different views about the appeals, what does that mean? Should they refer the issue to the appeals committee? Do we want this kind of issue being handled expeditiously based on certain timeframe? Perhaps the liaison has an initial role to play if the co-chairs are in conflict? Would the liaison be a facilitator, or communicator between the Co-Chairs and the Appeals Committee? - Comment 5: how to demonstrate that a single member gets sufficient amount of support? If no one actually supports the complaint, does that mean the process gets suspended? - Comment 7: what does the Ombudsman do in this situation? Not sure whether having the Ombudsman handle the complaint is the way to go. The Ombudsman has jurisdiction over very limited issues. Complainant about the expected standards and behaviors can be handled by the Ombudsman. 3.6/3.7 complaints are more about the conduct of the WG chair. It may be more appropriate to confine this within the GNSO. Try to understand why the point of Ombudsman is raised, so we can figure out who is the best to handle the situation. If the Co-Chairs disagree about the appeal, the liaison should report it to the Council. Maybe ask ICANN Legal to get involved here? - Maybe also include Heather in the super small team in the drafting exercise? - Appreciate the iterative approach of Flip. In the staff draft, the first part can be the “problem statement”, and the second part can be a high-level proposal for solution to the problem, integrating both Flip and Heather’s input. - The problem may have stemmed from the wording of the improvement. 3.7 does not interfere the work in a WG, but the second part of the improvement requires the rewriting the Operating Procedure, including the detailed appeal process. The task seems daunting. Improvement #9 seems like one of the hardest improvements. - ACTION ITEM: Staff to organize a super small team (including Flip, Rafik, Pam, Heather, Staff) and create a first draft proposal for #9. - ACTION ITEM: Staff to circulate the draft response to the MSM public comment, and Small Team to provide input/feedback. Aim to share the draft response with the Council by this Friday, 4 October. #15 - Not discussed 3. AOB

1 0

Post Call | PDP 3.0 Call | Tuesday, 1 October 2019 at 13:00 UTC
by Nathalie Peregrine Oct. 1, 2019

Oct. 1, 2019

Dear all, All recordings for the PDP 3.0 call held on Tuesday, 1 October 2019 at 13:00 UTC can be found on the agenda wiki page <https://community.icann.org/display/GCP/2019-10-01+PDP3.0> (attendance included). These include: * Attendance (please let me know if your name has been left off the attendance list) * Audio recording * Zoom chat archive * Zoom recording (including audio, visual, rough transcript) For additional information, you may consult the mailing list archives <https://mm.icann.org/pipermail/gnso-pdp3dot0-dt/> and the main wiki page<https://community.icann.org/x/3hhIBg>. Thank you. Kind regards, Nathalie

1 0

Fwd: Following up: "lessons learned" document from the Curative Rights procedural appeals
by Rafik Dammak Oct. 1, 2019

Oct. 1, 2019

Hi all, Heather kindly shared some bullet points about 3.7 I think useful for our call today to review Flip memo and give us some feedback based on real experience with that process. Best, Rafik ---------- Forwarded message --------- Hi Rafik, Pam, Sending you both my long laundry list of notes on 3.7, as I believe Mary's report hasn't been completed yet. Please feel free to share with the PDP 3.0 team and in particular Flip as leading the effort on 3.7. If I can be of any help to the team, just shout. H ---------- Forwarded message --------- Hi Mary, As always, without you, we'd be lost! Here are a few points that I would like to raise in terms of 'lessons learned': 1. Section 3.7 provides essentially three grounds for appeal: (i) a WG member "believes that his/her contributions are being systematically ignored or discounted" and (ii) a WG member wishes to appeal a decision of the WG or CO". In the second paragraph of 3.7, a third ground is raised, where the WG member "is of the opinion that someone is not performing their role according to the criteria outlined in s 2.2". The first step in the 3.7 process is a dialogue with the WG Chair. I believe that we are missing a key step here, which is that the aggrieved WG member who initiates section 3.7 should be asked to succinctly identify the factual circumstances giving rise to the ground in (i) or (ii) or paragraph 2. *Succinctly *is key here - long, convoluted narratives, appendices and other lengthy documentation/evidence are not appropriate or needed. Rather, we simply need to determine as a matter of first priority whether the matter raised is validly raised under 3.7, ie, whether it falls squarely in either (i) or (ii) or para 2. 2. A necessary and logical flow-on from #1 above, there is no clarity in the current 3.7 as to what type of documentation is required, what level of detail or documentation is required. A particularly litigious-minded WG member can treat this process as a sort of mini-litigation, with highly formal documentation. Another WG member may be far less formal in raising such a concern. Indeed, I am sure that we have had situations where 3.7 *could have been *invoked, and where informal discussions have occurred between a WG member and a WG Chair, but 3.7 was not mentioned. I was hopeful going into the IGO/INGO Curative Rights 3.7 (the first one, raised in December 2017) that the spirit and collegiality of the community would prevail and the proceeding could be conducted with a minimum of formality or litigation-style communication, but this assumption/hope was quickly dashed. I am not quick to suggest that we engage in more procedure or process drafting (ie, death by procedure) to anticipate in writing every possible situation, but I do think that some guidance here from the outset of a 3.7 (a sort of 'playbook', even if not expressly documented in the WG manual) would be helpful to set the expectations right from the outset. I personally do not believe that litigation-style correspondence or documentation leads to a multistakeholder consensus-based attitude or result. 3. Further to #2, some clarity as to whether the parties involved can/should be represented by legal counsel, and what to do when the 3.7 appellant asks for all communication to go through their counsel, is needed. 4. Our experience with 3.7 to date has demonstrated that the current first step, the discussion of circumstances with the WG Chair, is not fruitful. Further, there is no clear understanding here as to what to do when there is more than one WG Chair. If the WG Chairs have differing views, this suggests that the WG Chairs should confer between themselves to arrive at an agreed position prior to engaging with the s 3.7 appellant. 5. No real mention was made in the Curative Rights 3.7 of footnote 5, which requires that 'a formal appeal will require that a single member demonstrates a sufficient amount of support for initiating an appeal before the formal process outlined in Section 3.7 can be invoked'. Some further thought is needed as to what constitutes 'a sufficient amount of support', how is this impacted by a WG with low membership numbers, do we adopt the spirit here of consensus-building that this isn't so much a quantitative as a qualitative judgment call, etc. What to do if the WG member raising the appeal disagrees with the assessment that a 'sufficient amount of support' has not been demonstrated? 6. What role does the Council liaison play in the 3.7 process? Note the Liaison is not named anywhere in the body of 3.7, but our role description of liaisons does give certain responsibility in the event of disputes. The Liaison is explicitly mentioned in footnote 5 regarding the determination of whether 'a sufficient amount of support' exists. 7. What role does/can the Ombudsman or ICANN Complaints Officer play in the 3.7 process? 8. At what point, if any, should the GNSO raise the matter with ICANN Legal? What support, if any, can ICANN Legal provide to the WG Chairs and the GNSO Chair? 9. What is the next avenue of recourse if the discussion with the Chair of the GNSO does not resolve the matter such that the appealing WG member remains dissatisfied? (Further, why does that paragraph in 3.7 refer to the "Chair of the Chartering Organization", when presumably the only Chair of a CO that this document binds is the Chair of the GNSO?) 10. At what point should the matter be raised with Council? In my view, either the WG Chair/s or the liaison should notify Council as soon as possible following the initiation of a 3.7. This raises questions - does the initiation of a 3.7 get raised with the whole Council, and thus become public knowledge immediately, or should it be raised with Council leadership first, to provide a record but give a modicum of privacy in the hope of resolving the issue at the first step of dialogue with WG Chair? 11. What tools can we give WG Chairs to help them make difficult decisions like this? What to do if a WG Chair is unwilling to make a decision about a 3.7 complaint for fear of legal action or other reasons? If all 3.7s are ultimately given to the GNSO Chair because the WG Chairs simply find them too difficult to decide, does this suggest that WG Chairs are unable to perform their Chair duty, or does it suggest that we are lacking some support to WG Chairs to enable them to carry out their duty? These are my top burning concerns (which I have had running in a draft document for MONTHS now and have just added/tinkered as time went on. Mary, Susan, please add, chop, change as you see fit. Best wishes, Heather

1 0