[CCWG-ACCT] ICANN's reliance on ICP-1

Fri Sep 25 06:06:33 UTC 2015

Hi Bruce -

To your note, some information that I hope addresses the issue raised about
ICP-1.  I reviewed with our legal team the question regarding the reference
to ICP1 in ICANN's Unopposed Motion for Leave to File a Supplement Appendix
on appeal in the matter relating to the .IR, .SY and .KP ccTLDs.  In short,
ICANN has no intention of referencing ICP1 in our appellate brief or
elsewhere in this matter.
As to some history on this matter - prior to the adoption of the ccNSO's
Framework of Interpretation, and the related ICANN Board resolution in June
2015 
(https://www.icann.org/resources/board-material/resolutions-2015-06-25-en#1.
d 
<https://www.icann.org/resources/board-material/resolutions-2015-06-25-en#1.
d> ), all of the papers in this matter at the District Court level had
already been completed, and ICANN had already prevailed.  In ICANN¹s
successful Motions to Quash the seven writs of attachment at the District
Court level, ICANN did reference ICP-1 (see
https://www.icann.org/en/system/files/files/ben-haim-motion-to-quash-writs-1
-29jul14-en.pdf 
<https://www.icann.org/en/system/files/files/ben-haim-motion-to-quash-writs-
1-29jul14-en.pdf> ).  Following that filing, however, members of the ccNSO
raised some concerns over ICANN¹s reference to ICP-1.
Upon hearing those concerns, in October 2014 during the ICANN Public meeting
in Los Angeles, members of ICANN¹s legal department met with Becky Burr and
Keith Davidson to discuss the issue and understand the specific concerns.
During that meeting, all agreed that ICANN will not rely on ICP-1 in the
future, but agreed that it would not be useful to remove the existing
reference to ICP-1 in the documents that had already been filed with the
Court.  By including it as part of Appendix on appeal, ICANN was merely
providing the Court of Appeals with a complete record of the District Court
proceedings (which appellants had failed to do) and included the documents
and exhibits that were before the District Court, regardless of whether
ICANN intended to cite to or rely on the documents in the Court of Appeals
proceedings.  Just to reiterate, we will not be referencing ICP-1 in our
appellate papers. 
I'd also like to update on the actions taken with regards to the references
to ICP-1 on the ICANN and IANA websites. First, we've removed the link to
ICP-1 under the ³Policy, Procedures and Guides² section on
www.iana.org/domains/root <http://www.iana.org/domains/root> .  Second,
we've archived the version of ICP-1 that the now deleted, above-referenced
link took users to on ICANN¹s website.  See
http://archive.icann.org/en/policies/icp-1-archived.htm
<http://mailer.samanage.com/wf/click?upn=X-2BoDL0DLC0vU1pzGK3Ew3MnoKvcm5UDRM
2ixYWg0jqzeUW-2BhuOm2BeKDG8ngCZzjG4euJawonuToQ4LEhgsG7A-3D-3D_H07ALFOi-2B9Dd
37-2FBDYnYURtXI0-2FxInFU8-2BRg8QGbkusrzxry73dUO-2FR8G1B3sIsOMEsKztf9oOb5TrKA
zpvuyUUQsxFhna0CKEgECVN82iriql4USDDs3TJx4OIPFm9qifqJKse5wZolQNHGEV2SU4S51eWe
3tc-2FJYjRMh9YfoOOWuXZAD8ejYk8IPs2kZfSHvdSzHpRRr-2BeSZ-2BjnqUfuTAYiR62pqOwBt
DXEsWdBSUGA3GD1kB8qWc8yQtmjdsyj6ZTBJuBOPwwE-2Bv7-2FwnuNS0wKisPG2nSp5uOoHKGSg
g2lttyMXDBbm3WOwy-2FZwkJZwlAIoo-2FxLp7-2F7WCETcbVMsbrlvxfG7yvo5C3-2FH1m0ueA9
XIsl9RRJO-2ByPpx-2Ftg0dgvzvqj8FpXs0pXwGJSRewGGHc76tVRf5-2BES18cTeaa7BFxHh-2B
zQ-2FJ8pZ8RCuQmu8xeE0p6Lc6ZzwtoKbtxZs6bOHGT1ifLI2F8bAyc5REUIu7kBv9V-2BH7sXbV
Slfpkw> .  Third, we are in the process of archiving any other versions of
ICP-1 that reside on either website, as well as the CCTLD News Memo #1 (23
October 1997), and expect that archiving work to be completed by Friday, 25
September 2015.  Fourth, we are also in the process of ensuring that the
links to ICP-1 mentioned in past redelegation reports are redirected to the
archived version of ICP-1, and we are endeavoring to have that also
completed by Friday, 25 September 2015.
Finally, I also wanted to share what I understand has transpired since the
25 June 2015 Board resolution regarding the recommendations to the Board
about the Framework of Interpretation.  Following the Board Resolution, in
July 2015 the ccNSO designated Becky Burr and Keith Davidson as an advisory
team to assist ICANN with the implementation process of the FOI
recommendations.  Keith contacted ICANN on that same day and suggested a
face-to-face meeting in Los Angeles in September 2015 to discuss the
planning for the implementation.  In anticipation of the meeting, in early
August 2015, ICANN sent to the ccNSO advisory team a request for
clarification of eight points related to the recommendations, which was
acknowledged by Keith in early September.  The meeting between the ccNSO
advisory team and members of ICANN¹s IANA Department took place 16 September
as planned.  At that meeting the teams reviewed the questions and the
advisory team helped ICANN better understand how to interpret certain
sections of the recommendations.  At this time, ICANN is working on drafting
a proposed implementation plan.
I hope this addresses any concerns.  Please let me know if you need anything
further on this.
Kind regards, 

Theresa

On 9/22/15 1:39 AM, "accountability-cross-community-bounces at icann.org on
behalf of Bruce Tonkin" <accountability-cross-community-bounces at icann.org on
behalf of Bruce.Tonkin at melbourneit.com.au> wrote:

> Hello Nigel,
> 
> Thanks for the background.
> 
>>>   The Framework of Interpretation (a guid to the construction of applicable
>>> ccTLD policy) was eventually formally adopted by the ICANN Board earlier
>>> this year.
> 
> Yes - I did vote for this resolution.   Here is the text:
> 
> " Whereas, the ccNSO Council established the Framework of Interpretation
> Working Group (FOIWG) in March 2011 with the Governmental Advisory Committee
> (GAC) to develop guidance to ICANN on how to implement existing policies and
> guidelines applicable to the delegation and re-delegation of ccTLDs.
> 
> Whereas, in accordance with the charter, and after a long and intense
> consultation process of the FOIWG, community and others, the Framework of
> Interpretation recommendations were finalized in June 2014 at the London ICANN
> Public Meeting and submitted to the ccNSO and GAC to seek their acceptance of
> the recommendations.
> 
> Whereas, the ccNSO Council approved the Framework of Interpretation at its
> meeting on 11 February 2015.
> 
> Whereas, while the GAC has not formally approved the document, it considered
> the FOIWG's efforts as demonstrated in its 11 February 2015 Communiqué, and
> has not identified any recommendations that it does not support.
> 
> Whereas, implementation of the recommendations will benefit from community
> input, including the ccNSO as well as consultation on an implementation plan.
> 
> Resolved (2015.06.25.07), the Board directs the President and CEO, or his
> designee(s), to develop an implementation plan for the recommendations for
> community consideration through a public comment, and to implement the plan
> when finalized.
> 
> Resolved (2015.06.25.08), the Board requests the ccNSO to appoint as soon as
> possible a small advisory team of subject matter experts to remain available
> to assist ICANN staff on implementation questions that arise during the
> development of the implementation plan, and inform ICANN of the appointments."
> 
> I also note in the rationale:
> 
> " In addition the ccNSO Council recommended the ICANN Board that certain
> documents including the GAC Principles 2000 (which the GAC superseded in
> 2005), ICANN's ICP1
> (https://www.icann.org/resources/pages/delegation-2012-02-25-en) and News Memo
> 1 (http://www.iana.org/reports/1997/cctld-news-oct1997.html) should be
> archived and considered no longer used by ICANN staff"
> 
> 
> 
>>>   Yet, only in the last couple of weeks, ICANN, the Corporation chooses to
>>> continue to put ICP-1 before the Appeal Court as having some status.
> 
> You raise a good point here.   I will try to get an answer back on by the end
> of the week.  
> 
> 
>>>   And THAT is the major question of accountability right there.
> 
> Got it.   If the Board passes a resolution and agrees with the work put
> forward by the ccNSO - we do indeed need to make sure that we follow through
> on that commitment.
> 
> I will follow this up now that I understand the issue that was initially
> raised by Eberhard.
> 
> Regards,
> Bruce Tonkin
> 
>  
> 
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> Accountability-Cross-Community at icann.org
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> 


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