[bc-gnso] ICANN staff misuse the word "implementation" in order to avoid going through the GNSO for new policies

[Phil Corwin]

I agree with George that at least some pieces of the IRT recommendations are clearly policy recommendations, and major ones at that -- and not mere technical implementation.

The URS is certainly one of these. It might better be called the Uniform Rapid Suspension Policy, since it both overlaps with and supplements the Uniform Dispute Resolution POLICY. If the URS is adopted and ICANN is even half right about the number of new gTLDs to be applied for and created it would be a powerful policy in place at the majority of gTLDs. 

Regardless of one's position on the IRT recommendations, and on new gTLDs generally, it is very important that whatever is done proceed through proper procedures. The precedents set by this process will have repercussions for years. For example, the BC often has disputes with the Registry or Registrar Constituencies -- would we want ICANN to appoint one of them to form a "team" to propose "solutions" on some other matter and then have those adopted without GNSO consideration because they were characterized as Implementation rather than Policy work? Despite complaints that GNSO reform gives the contract parties too much power, at least that power is tempered by referral to the GNSO that gives other constituencies a chance to shape their proposals and the final result. 

Likewise, some take the view that certain IRT recommendations go beyond protecting existing trademark rights and establish new ones -- the Global Protected Marks List being the prime example. We can debate that matter, but does anyone really want ICANN acting as a legislature and creating rights in the DNS that are not firmly rooted in national law and international treaty? 

Overriding proper procedure to expedite certain results can set precedents that may be sorely regretted down the road.  


Philip S. Corwin
Partner
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________________________________________
From: owner-bc-gnso at icann.org [owner-bc-gnso at icann.org] On Behalf Of George Kirikos [icann at leap.com]
Sent: Tuesday, June 02, 2009 8:51 PM
To: BC gnso
Subject: [bc-gnso] ICANN staff misuse the word "implementation" in order to avoid going         through the GNSO for new policies

Hi folks,

During yesterday's Registration Abuse Policies working group, the
issue of “policy” creation and how it should be done properly came up.

http://forum.icann.org/lists/gnso-rap-dt/msg00206.html
http://audio.icann.org/gnso/gnso-rap-20090601.mp3

Fast forward to 27:10 (27 minutes and 10 seconds) of the MP3 recording
and listen to the next 2 minutes where I ask Margie Milam of ICANN a
question about policy vs. implementation. At 27:24 or so she says the
ICANN Bylaws *require* policy work to go through the GNSO. But, at
28:05 or so she says “The IRT work is *implementation work.*” !!! She
dances around the issue for the next 40 seconds.

Policies *need* to go through the GNSO. However, ICANN Staff are
describing *all* the new gTLD stuff as *implementation*, even though
they are definitely creating new policy. Furthermore, take a look at
the IRT’s full name “Implementation Recommendation Team.” Once again,
this is doublespeak by ICANN, a way to circumvent proper procedures.
These recommendations *are policy* and should be going through the
GNSO. That would have resulted in balanced work, instead of the
abomination and extreme report we received.

So, be watchful, as ICANN staff are mischaracterizing and deliberately
calling things “implementation” in order to be able to do as much as
possible in terms of policy creation in an unaccountable manner.

Whether you're a supporter or an opponent of new gTLDs, whether you're
a supporter or opponent of the IRT, this unaccountable behaviour of
staff should be of concern, as it undermines the the role of the GNSO,
and thus the role of the BC. I would hope this would be raised in the
GNSO Council, as it is being neutered by staff and made more
irrelevant day after day.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/