[CCWG-ACCT] Public Comment Timeline Concerns -- RE: CCWG - Executive Summary

Tue Nov 10 16:33:33 UTC 2015

Agree

________________________________
Brett Schaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy
The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002
202-608-6097
heritage.org<http://heritage.org/>
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Phil Corwin
Sent: Tuesday, November 10, 2015 11:30 AM
To: Greg Shatan
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Public Comment Timeline Concerns -- RE: CCWG - Executive Summary

Right now it’s looking like fast and free (at least free for the work of CCWG members and participants).

But that doesn’t necessarily mean cheap. Rushing the vetting process could prove very expensive down the line if the proposal gets mired down in multiple controversies on inadequately vetted final text language.

·         Defined ICANN Mission and clear guards against mission creep

·         human rights

·         GAC “consensus” (ST 18) and GAC voting role within the community powers

·         voting and objection levels relevant to the exercise of community powers (including whether to allow split voting)

·         inspection rights and other transparency matters

·         binding commitment to a CCWG WS 2 process

Each of the above issues as well as others I have probably neglected to mention has the potential to cause inordinate delay, or even accountability mission failure, if final Proposal text language is not adequately developed and then vetted within a timeframe allowing for sufficient review.

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: Greg Shatan [mailto:gregshatanipc at gmail.com]
Sent: Tuesday, November 10, 2015 11:11 AM
To: Phil Corwin
Cc: Bernard Turcotte; Accountability Cross Community
Subject: Re: [CCWG-ACCT] Public Comment Timeline Concerns -- RE: CCWG - Executive Summary

I share Phil's concerns (and, this time, even Eberhard's concerns).

This timeline doesn't work.  I wish I'd picked up the issue earlier, but I'm already responding on so many different issues that I feel like an octopus.  You have to let some through and hope that another octopus (or starfish) picks it up.

There are carts before horses all over the place.  The timing of the public comment process and the SO/AC approval process doesn't work, and the interplay between the two is backwards.  I think the set-up we have essentially invalidates the public comment process, both as a direct input to our work, and as an input to SO/AC approval.  I've already heard people I respect say "don't worry about the public comment process, it's a waste of time; focus on the SO/AC approval process."  But how does the SO/AC approval process work if the SO/AC members and constituent parts haven't been able to officially digest the Report, confer among themselves and with others and come up with positions, and attempt to resolve those positions during the time allowed?

I also agree that this is based on a series of Herculean and unworkable assumptions.

There's an old joke about the sign in the lawyer's office: GOOD, FAST, CHEAP -- PICK ANY TWO.  We already know we're cheap (heck, we're free), so the choice boils down to two options: GOOD or FAST.

Greg

On Tue, Nov 10, 2015 at 9:22 AM, Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>> wrote:
While others address the substance of this first full draft of the executive summary I want to get on the record my personal concerns about the timeline for public comments – including statements from and consideration by the Chartering Organizations.

Yesterday I was asked by one participant in the BC whether there had been any community discussion to extend the comment period, and this is the reply I made, with special emphasis on my role as a member of the GNSO Council which is scheduled to begin consideration of draft GNSO comments regarding the 3rd draft CCWG Proposal on December 5th ---

“I don’t know of any discussion yet to extend the comment period, but wouldn’t be all that surprised if there is one, given that this designator model is a major revision and deviation from the prior member model.

Personally, I am not at all comfortable with the timeline, especially in my role as Councilor trying to responsibly represent the BC. While the summary report (first draft of which I just forwarded to all BC members) will be put out on November 15th, the full and detailed draft proposal won’t be out until two weeks later, on November 30th. I’ve been through enough legislative processes to know that staff-drafted summaries can never be relied upon to fully and accurately convey the language and potential ambiguities and inconsistencies in the underlying text, and that there is no substitute for its line-by-line dissection.

November 30th is only three weeks prior to the December 21st deadline for public comment, which IMHO is insufficient to form and submit a fully informed comment, especially for trade associations and other groups which must consider multiple inputs.  Even more worrisome, from my Councilor perspective, is that the Council is supposed to “Share draft GNSO comment on 3rd draft CCWG Proposal” on December 5th,  just five days after the full text is released. As I am supposed to represent your consensus views, it means the BC has only 2-3 days to consider and discuss the full text, and that Councilors must then attempt in the short remaining time to reconcile the separate views of those they represent into a single consensus draft GNSO comment. (I do note that the Council has almost two additional weeks to massage its comment, as the target for submission is December 18th.)

This timeline requires the Council to draft and submit its consensus views prior to any opportunity to review all the public comments. This is very different from the PDP process in which the Council makes final determinations only after it reviews all public comments. It also puts a large degree of pressure on those constituencies that Councilors represent to instruct us on their views long before the comment period has concluded.

My life experience is that the adage haste makes waste persists for a reason. I’m not for undue delay, but I am for adequate scrutiny, and I am concerned that this timeline does not provide sufficient time for that. “

Those thoughts were further reinforced by this morning’s CCWG call, just concluded.

Take for example the Mission Statement discussion, about how to limit ICANN’s ability to “regulate” use of the Internet. On page 30 of the Summary memo it says this:
                The CCWG-Accountability recommends clarifying ICANN’s Mission and Core Values to:
• Reinforce the scope of ICANN’s organizational activities related to the Domain Name
System (DNS)
o ICANN is not to regulate services that use the Internet's unique identifiers, or the
content that such services carry or provide.
o ICANN is to have the ability to enforce agreements with contracted parties
(entities that have signed agreements with ICANN in relation to top level domain
names) [Emphasis added]

But as we just saw on the call, after one hour of vigorous discussion there is still no agreement on what that language should be, or even the scope of the limitation it is trying to describe (in fact, there is some rather broad disagreement on that second point). So on that key subject no one can draft an intelligent and informed comment based upon the high level summary document to be released on 11/15, and must await the full text promised for 11/30 – yet Councilors are supposed to survey those they represent and begin consideration of a draft GNSO comment by December 5th.

Let’s be honest and admit that the actual period in which fully informed public comments can be developed and submitted is presently only three weeks, from November 30th to December 21st. For the Council it is even less time, as it is scheduled to consider the approval of the CCWG-Accountability 3rd CCWG Proposal Review and adoption of GNSO statement on 3rd draft CCWG Proposal on December 17th, with the Council Statement being submitted one day later on December 18th.  Then  Councillors are supposed to consider final documents and motions as early as two weeks after the close of the public comment period (January 4th), if the Proposal has changed in any way from the third draft put out for comment -- notwithstanding the fact that both the Christmas and New Year holidays occur within that period. And, BTW, is it realistic to think that the CCWG will be able to review all the comments and draft responsive consensus amendments in the middle of those two weeks?

So I strongly question whether sufficient time has been accorded under the current timeline to review a designator  proposal that differs quite substantially from the prior member model, prepare thoughtful and comprehensive comments, and make responsive adjustments and final changes based upon those public comments.

I realize that there is a strong desire to complete this phase of the Accountability process as soon as possible. But I also have strong concerns that we are not providing sufficient time for review of a proposed structure that the community will have to live within for years, and likely decades.

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597<tel:202-559-8597>/Direct
202-559-8750<tel:202-559-8750>/Fax
202-255-6172<tel:202-255-6172>/cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>] On Behalf Of Bernard Turcotte
Sent: Monday, November 09, 2015 4:42 PM
To: Accountability Cross Community
Subject: [CCWG-ACCT] CCWG - Executive Summary

All,

Please find attached the first full draft of the executive summary which will be discussed on the call tomorrow.

Apologies for the delay in getting this out but people have been working almost around the clock.

Bernard Turcotte
Staff Support

for the co-chairs.
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