[atrt2] Board Reconsideration Process

Thu Jun 13 13:50:44 UTC 2013

There has been considerable discussion within the 
overall community and in particular the GNSO 
about the Board Governance Committee's recent 
decision to deny the reconsideration request from 
the Non-Commercial Stakeholders Group in the GNSO 
regarding the decision to implement addition 
TM-related right in the Trademark Clearinghouse. 
The BGC decision can be found at 
http://www.icann.org/en/groups/board/governance/reconsideration/recommendation-ncsg-16may13-en.pdf.

The discussion in the GNSO has largely focused 
not on the substance of the IP rights decision 
but on the tone and substance of the rationale 
provided for the decision, which, in the minds of 
some, threatens the entire multi-stakeholder 
model. (AG: I tend to agree that the implications 
of the rationale are onerous, and according to 
Bylaws, the decision and presumably the rationale 
behind it set precedent for future decisions and actions).

What follows is an e-mail exchange between Jeff 
Neuman and several Board members (in reverse time 
order - earliest messages at the end), and 
attached are Jeff's note from his introduction of 
an extensive GNSO discussion today.

I expect this issue to be formally brought to the 
attention of the ATRT2, and thus this head's up.

Alan

>From: "Neuman, Jeff" <Jeff.Neuman at neustar.us>
>To: 'Cherine Chalaby' <cherine.chalaby at icann.org>, Jonathan Robinson
>         <jonathan.robinson at ipracon.com>
>CC: Steve Crocker <steve at shinkuro.com>, 'Bruce Tonkin'
>         <Bruce.Tonkin at melbourneit.com.au>, "'council at gnso.icann.org'"
>         <council at gnso.icann.org>, Cyrus Namazi 
> <cyrus.namazi at icann.org>, Fadi Chehade
>         <fadi.chehade at icann.org>, Michelle 
> Bright <michelle.bright at icann.org>,
>         "Megan Bishop" 
> <megan.bishop at icann.org>, Amy Stathos <amy.stathos at icann.org>,
>         "John Jeffrey" <john.jeffrey at icann.org>
>Subject: [council] RE: Agenda - 11 June 2013 - New gTLD Program Committee
>Date: Thu, 13 Jun 2013 12:52:21 +0000
>
>Cherine,
>
>An extensive discuss was held today during the 
>GNSO Council meeting on the rationale used by 
>the BGC in its recommendation to deny the 
>reconsideration request.  Jonathan will be 
>reaching out to you with some more details, but 
>I would strongly encourage the BGC (and the 
>Board) to review the transcript of that 
>discussion.  I have also attached my notes that 
>I sent to the Council after my 
>presentation.  The document is written in 
>outline form as the basis for my presentation 
>(so please ignore the sentence fragments :)).
>
>In the document, you will see the three asks 
>that I have as a result of the discussion which 
>the GNSO (more detail in the document):
>
>1.      To the ICANN Board (or here the New gTLD 
>Program Committee): Even if you adopt the 
>ultimate outcome to reject the reconsideration 
>request, throw out the rationale.
>
>2.      To the GNSO Council:  Move forward with 
>making our views known to the Board and to 
>formally recommend changing the Bylaws to 
>respect the GNSO's role within the ICANN 
>structure and the Multi-Stakeholder model.
>
>3.      To the ATRT:  Review the accountability 
>measures, including the reconsideration process, 
>which to date has demonstrated that it is a 
>meaningless accountability mechanism.
>
>Thanks for your attention to this matter.  The 
>GNSO Council would certainly like to address 
>these topics with the Board in Durban (if not earlier)
>
>
>Jeffrey J. Neuman
>Neustar, Inc. / Vice President, Business Affairs
>
>
>-----Original Message-----
>From: Cherine Chalaby [mailto:cherine.chalaby at icann.org]
>Sent: Thursday, June 06, 2013 5:07 AM
>To: Neuman, Jeff; Jonathan Robinson
>Cc: Steve Crocker; 'Bruce Tonkin'; 
>'council at gnso.icann.org'; Cyrus Namazi; Fadi 
>Chehade; Michelle Bright; Megan Bishop; Amy Stathos; John Jeffrey
>Subject: Re: Agenda - 11 June 2013 - New gTLD Program Committee
>
>Jeff and Jonathan,
>
>Thank you for bringing this matter to our 
>attention and for clearly stating that the main 
>issue for the GNSO Council is not so much about 
>whether the New gTLD Program Committee (NGPC) 
>upholds the decision relating to the BGC's 
>recommendation on the reconsideration request 
>13-3, but there is a concern about the 
>documented rationale supporting the recommendation.
>
>Let me assure you that on the Board and the NGPC 
>we always thrive at improving the rationale 
>supporting our decisions.  We will therefore 
>remove the reconsideration request 13-3 from the 
>agenda of the NGPC meeting scheduled for 11th 
>June.  We are currently holding weekly NGPC
>meetings and the next two meetings are on 18th and 25th June.   We will
>put reconsideration request 13-3 on the agenda 
>for the 25th June meeting in order to give the 
>GNSO Council sufficient time to discuss with its 
>community and to write to the NGPC.
>
>All the best,
>Cherine
>
>
>On 05/06/2013 22:28, "Neuman, Jeff" <Jeff.Neuman at neustar.us> wrote:
>
> >Steve,
> >
> >Yes, thanks for the correction that it will be the new gTLD Program
> >Committee that will be considering the BGC recommendation on the 11th
> >(2 days before the GNSO Council Meeting).  I was planning on doing a
> >presentation to the council on the 13th about the recommendation.
> >
> >In short, the BGC's recommendation basically (1) Assumes that if an
> >issue involves "implementation", then there is no reason to look to the
> >bottom-up process to get advice on that issue (and if they do get
> >advice (even consensus advice), they can ignore it and go with whatever
> >ICANN staff recommends; (2)  the ICANN Staff/Board is the sole arbiter
> >in deciding whether something is Policy or Implementation regardless of
> >whether the group charged under the bylaws with developing policies
> >(here, the GNSO) believe that the issue does involve policy; and (3)
> >there is no meaningful review process or accountability if the
> >community believes that ICANN Staff's determination on whether
> >something is policy or not is plain wrong.  The fact that
> >Reconsideration never looks at the substance of the issue at hand, but
> >only looks to whether a process was followed is incredibly problematic.
> >
> >In this recommendation, although the GNSO strongly stated the Trademark
> >plus 50 decision was in fact policy (with one group issuing a minority
> >opinion) and the ICANN staff initially agreed it could be considered
> >policy, ICANN staff later decided on its own that it was implementation.
> >Because ICANN Staff is not bound to accept the finding of the GNSO that
> >it was policy, and ICANN staff labeled it implementation, ICANN staff was
> >free to make the changes as it saw fit (again with no review).    So
> >essentially the recommendation states: (1) ICANN staff determined that
> >it was implementation, (2) there is and can be no review of that
> >decision through the reconsideration process, and (3) there is no
> >requirement that ICANN staff get input from the community or even
> >listen to the community if the ICANN staff 
> determines that something is implementation.
> >
> >To add insult to injury, the outside law firm that wrote the
> >recommendation wrote it in the style of a litigation brief making such
> >ludicrous arguments (which cannot be reviewed), like [and I am
> >paraphrasing]:  "Yes, the ICANN CEO said previously that this issue CAN
> >be considered policy."  It goes on to state that the CEO  carefully
> >chose this word because in saying that it "CAN" be policy, that also
> >equally means that it might not be policy and therefore the written
> >statement by the CEO was not an admission that it was in fact policy. I
> >find this argument insulting. Is this really what we expect of ICANN as
> >an multi-stakeholder organization?  Namely, to consistently use weasel
> >words (reviewed by legal counsel) so that one day if ever questioned on
> >a statement he or she made, the legal team can find a loophole and get
> >out of a commitment that ICANN makes.  Shouldn't we expect more from an
> >organization that is supposed to look out for the public interest?
> >
> >Steve - In the end I could care less about the substantive decision to
> >allow the Trademark plus 50 (although a number of people do care about
> >this).  The decision was made and my registry will implement that
> >decision because we have to.  However, there were probably 50 other
> >ways that ICANN's BGC could have justified the decision it made.  I
> >would rather have ICANN apologize for the way it handled the situation,
> >promise that it won't happen again that way, and then move on to the
> >real work of implementing the new gTLDs.  Instead, we got an overly
> >legalistic brief which is an after-the-fact justification for what they
> >did using a rationale that destroys the multi-stakeholder model.
> >
> >I intend to provide more information during the Council meeting and
> >would encourage attendance from the BGC.  However, I would ask that the
> >New gTLD Program Committee not proceed on making a decision on this
> >recommendation until it could be adequately discussed by the community.
> >
> >Sorry for the long note and I would be happy to give more concrete
> >examples from the recommendation.  I just ask for more time.
> >
> >Thanks.
> >
> >-----Original Message-----
> >From: Steve Crocker [mailto:steve at shinkuro.com]
> >Sent: Wednesday, June 05, 2013 3:47 PM
> >To: Neuman, Jeff
> >Cc: Steve Crocker; Bruce Tonkin; council at gnso.icann.org; Cyrus Namazi;
> >Fadi Chehadé; Cherine Chalaby (cherine.chalaby at icann.org)
> >Subject: Re: Agenda - 11 June 2013 - New gTLD Program Committee
> >
> >Jeff,
> >
> >I think you're asking the New gTLD Program Committee to defer voting on
> >the BGC's recommendation.  This matter is not in front of the full
> >Board, and the full Board isn't meeting until June 27.
> >
> >That said, I'm curious as to the substance of your objection.  Have you
> >written anything about it?
> >
> >Thanks,
> >
> >Steve
> >
> >On Jun 5, 2013, at 10:16 PM, "Neuman, Jeff" <Jeff.Neuman at neustar.us>
> >wrote:
> >
> >> Bruce,
> >>
> >> Am I correct that the Board will be discussing and adopting the BGC's
> >>recommendation on the NCSG Reconsideration Request?
> >>
> >> As you know, the GNSO has scheduled this item to discuss on our next
> >>Council call on the 13th (2 days after the scheduled ICANN Board
> >>meeting).  A number of us on the GNSO completely disagree with the
> >>rationale that was used to justify the outcome (even if we do not
> >>dispute the outcome).  We believe that the BGC's rationale will
> >>undermine the entire bottom-up multi-stakeholder model (as in my
> >>previous e-mail to the council which I have attached).
> >>
> >> We therefore respectfully ask that the ICANN Board delay any decision
> >>on this reconsideration request until it has had time to listen to the
> >>GNSO Council and its members on our thoughts about this decision.  I
> >>personally believe if the Board adopts this recommendation (more
> >>particularly the rationale for the recommendation), the Board will
> >>have not officially put the nail in the coffin for the Reconsideration
> >>process as an accountability measure, but will have also the
> >>multi-stakeholder bottom up model as we know it.
> >>
> >> I have included Fadi and Steve (which I have rarely if ever done
> >>before) on this e-mail to stress the importance of this issue and plea
> >>for the Board to forgo any definitive action on this request until
> >>such time that we can be heard.  We also ask whether anyone from the
> >>BGC could be available to discuss this issue with us on the GNSO
> >>Council call.
> >>
> >> P.S.....I do want to stress that Neustar takes no position as to
> >>whether the Trademark Claims plus 50 should or should not be in place
> >>as an RPM.  Rather, we strongly disagree with the assumptions and
> >>fundamentally-flawed rationale in the BGC's recommendation.
> >>
> >> Best regards,
> >>
> >>
> >> Jeffrey J. Neuman
> >> Neustar, Inc. / Vice President, Business Affairs
> >> 46000 Center Oak Plaza, Sterling, VA 20166
> >> Office: +1.571.434.5772  Mobile: +1.202.549.5079  Fax:
> >>+1.703.738.7965 / jeff.neuman at neustar.biz  / www.neustar.biz
> >>
> >>
> >>
> >>
> >> -----Original Message-----
> >> From: owner-council at gnso.icann.org
> >>[mailto:owner-council at gnso.icann.org] On Behalf Of Bruce Tonkin
> >> Sent: Wednesday, June 05, 2013 4:14 AM
> >> To: council at gnso.icann.org
> >> Subject: [council] Agenda - 11 June 2013 - New gTLD Program Committee
> >>
> >>
> >> From:
> >>http://www.icann.org/en/groups/board/documents/agenda-new-gtld-11jun13
> >>-en
> >>.htm
> >>
> >>
> >> 11 June 2013
> >>
> >>
> >> Consent Agenda:
> >>
> >> * Approval of Minutes
> >>
> >> Main Agenda:
> >>
> >> *  BGC Recommendation on Reconsideration Request 13-3
> >>
> >> *  Info Discussion on ALAC Statement on IDN Variants
> >>
> >> *  Plural vs. Singular
> >>
> >> *  Any Other Business
> >>
> >> <Mail Attachment.eml>
> >
>
>
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