[bc-gnso] for discussion on 9-Dec call: draft BC comment on registry proposal for Continuity Operations Instrument (COI)
Phil Corwin
psc at vlaw-dc.com
Fri Dec 9 14:56:13 UTC 2011
Reaching back to 2007 GNSO Principles seems to me of little relevance to the present discussion. That was a year before the Board approved going forward with new gTLDs, and also before three succeeding years of multiple drafts of the Applicant Guidebook were considered and amended before the Final version was approved in Singapore. The Principles have long been supplanted by the requirements of the Guidebook.
There will surely be other instances where deciding what is an implementation detail and what is substantive will be debatable. But in this case I think it's pretty clear - COI is in the Guidebook, and COF is not a proposal for how best to implement COI but an entirely new and substitute approach for registrant protection in the event of registry failure (that in turn raises a host of other new issues related to a pooled insurance fund rather than individual registry letters of credit).
I think it is clearly substantive, and that in turn raises the issue of whether and when we believe individual constituencies should be allowed to reopen substantive debate an Guidebook issues that appeared to be settled.
Philip S. Corwin, Founding Principal
Virtualaw LLC
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From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of icann at rodenbaugh.com
Sent: Friday, December 09, 2011 12:42 AM
To: 'Steve DelBianco'; 'Bc GNSO list '
Subject: RE: [bc-gnso] for discussion on 9-Dec call: draft BC comment on registry proposal for Continuity Operations Instrument (COI)
Yes. But as Phil says, the COI requirement was approved by the Board as part of the Guidebook, so presumably would take Board action to amend. Certainly would take Board action to adopt COF. I had thought there was going to be a Board meeting today with that on the agenda. Does anyone know if it happened and whether this was discussed?
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
http://rodenbaugh.com
From: owner-bc-gnso at icann.org<mailto:owner-bc-gnso at icann.org> [mailto:owner-bc-gnso at icann.org]<mailto:[mailto:owner-bc-gnso at icann.org]> On Behalf Of Steve DelBianco
Sent: Thursday, December 08, 2011 7:50 PM
To: 'Bc GNSO list '
Subject: Re: [bc-gnso] for discussion on 9-Dec call: draft BC comment on registry proposal for Continuity Operations Instrument (COI)
Good point, Mike. In the 2007 Principles<http://gnso.icann.org/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm> I found these two relevant items:
A set of capability criteria for a new gTLD registry applicant must be used to provide an assurance that an applicant has the capability to meets its obligations under the terms of ICANN's registry agreement.
Applicants must be able to demonstrate their financial and organisational operational capability.
If that's all GNSO said about it, wouldn't we conclude that the Continuity of Operations instrument is an implementation detail?
--Steve
From: Mike Rodenbaugh <icann at rodenbaugh.com<mailto:icann at rodenbaugh.com>>
Organization: Rodenbaugh Law
Reply-To: <mike at rodenbaugh.com<mailto:mike at rodenbaugh.com>>
Date: Thu, 8 Dec 2011 19:13:57 -0800
To: Steve DelBianco <sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>>, 'Bc GNSO list ' <bc-gnso at icann.org<mailto:bc-gnso at icann.org>>
Subject: RE: [bc-gnso] for discussion on 9-Dec call: draft BC comment on registry proposal for Continuity Operations Instrument (COI)
Thanks Steve. How does the COF tie back to the original principles that were agreed by the Council and the Board by supermajority? If not specifically required in those principles, then by definition it is an implementation detail... albeit a big one.
From: owner-bc-gnso at icann.org<mailto:owner-bc-gnso at icann.org> [mailto:owner-bc-gnso at icann.org] On Behalf Of Steve DelBianco
Sent: Thursday, December 08, 2011 6:35 PM
To: 'Bc GNSO list '
Subject: [bc-gnso] for discussion on 9-Dec call: draft BC comment on registry proposal for Continuity Operations Instrument (COI)
On 3-Dec I circulated Draft 2 of the BC comment on the registries' proposal for a Continuity of Operations Fund.
This week, Sarah Deutsch offered some clarifying edits. In his note (below) Phil Corwin argues against describing the COF as an implementation detail (see Phil's argument below). I believe Phil's requested change merits a brief discussion during tomorrow's BC member call. (see Draft 3 attached)
These comments were due one week ago so let's try to close this topic tomorrow.
--Steve
From: Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>>
Date: Mon, 5 Dec 2011 17:22:33 +0000
To: Steve DelBianco <sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>>, 'Bc GNSO list ' <bc-gnso at icann.org<mailto:bc-gnso at icann.org>>
Subject: RE: for expedited review: draft BC comment on registry proposal for Continuity Operations Instrument (COI)
Steve:
I believe that this document is much improved and have no objection to it.
In particular, I appreciate the fact that the document no longer states that the BC plans to file a letter advocating additional changes to the new gTLD program's trademark protection requirements - a subject that will first be discussed among BC members in the upcoming conference call scheduled for Friday, December 9.
However, I would like to propose that the comment be strengthened. In that regard, I would propose that the sentence in point #2 that presently reads "We are not supportive of the approach presented by the Registry Constituency. " should be altered to state "We oppose the approach presented by the Registry Constituency".
I am also concerned by the last sentence in the first paragraph of the background section - "The BC notes this new approach to considering potential improvements in implementation details for the new gTLD Program and provides comments on this topic." This seems to concede that the Registry Constituency's COF proposal is a mere implementation detail when, in fact, I believe it would be a significant substantive change in the new gTLD program that goes far beyond an implementation detail. The Registry Constituency was well aware of the COI requirement before the Board approved the new gTLD program in Singapore, and if registries had significant concerns with it they should gave raised them before the Board vote rather than urging a "yes" vote on the AG then before the Board. I would propose that the sentence be changed to reflect a BC position that COF is far more than an implementation detail and is not properly on the table at all.
As previously stated, I have significant doubts about ICANN's ability to effectively implement a COF approach because other industry-wide shared risk insurance pools -- such as, in the U.S., the FCIC, SIPC, and state insurance funds - require a supportive structure of pervasive regulation to ameliorate the moral hazard that inevitably arises when an industry participant can shift the consequences of its risk-taking to others. I do not believe it would be proper for ICANN to assume such a role - nor am I confident it could successfully undertake it, given continuing concerns regarding its ability to effectively enforce its bilateral contracts with registries. Also, as the BC statement notes, a COI offers substantially greater prospects for registrant protection in the event of a registry failure.
But the issue is much larger than whether the COF proposal has merit. The issue is whether it is properly on the table at all - the issue, in fact, is what should be the proper means going forward to consider significant substantive changes in the new gTLD program (as distinct from addressing implementation details of the current requirements reflected in the Applicant Guidebook and standard registry contract).
Here's my problem - we constantly refer to and support ICANN's multi-stakeholder policy-making process - but the word "process" implies a standard undertaking with a beginning, middle, and end, at the end of which things are settled for at least some reasonable amount of time. If ICANN had never been spun out of the Commerce Department it would be a government agency and its rulemaking process would be under the Administrative Procedures Act. The APA provides a well-understood process - there is an advance notice of proposed rulemaking which solicits initial comments, then there is promulgation of a proposed rule which solicits further comments, then there may even be one or two more publications of an altered rule reflecting the comments received (and along the way there may have been one or more public hearings to solicit oral input) - but in the end there is a Final Rule and it is really final, and the grounds for judicial challenge of that Rule are well understood and quite narrow. Now it may be proper for the ICANN process to be more flexible than that - but in the end it should produce a result with a reasonable degree of finality.
We all have concerns about various aspects of the final Applicant Guidebook, even though the process of developing it took three years and at various points had a make-it-up-as-you-go-along procedural quality . But if any constituency can propose major changes to the AG just months after its adoption by the Board - and COF, again, appears to be a major substantive departure from COI, not a mere implementation detail - then the ICANN process is never final at all, nothing is ever settled for even a brief interval. That is really no process at all because it provides no reliable finality. And that in turn, in my opinion, raises further questions about ICANN's overall credibility as an organization.
There's also a need to move on from the new gTLD program (aside from monitoring its launch and fleshing out details of its implementation) and engage on to the many other substantive issues challenging ICANN. If the Registries can advocate COF, and if any other Constituency can also propose major substantive changes in the program, then we are going to be back into the same disputes that were the focus of discussion of three years and that will be a major distraction from other pressing issues. Each of us has only so much personal bandwidth to devote to ICANN policy matters.
To make clear, I have no problem with further refining the COI, such as considering lower financial commitments based on registry type or experience, as these seem to be legitimate implementation details.
Summing up, I propose that:
* The BC change its position on COF from "Not supportive of" to "opposes".
* The BC take the position that COF is a significant AG substantive change and proposed replacement for COI, and therefore not an implementation detail of COI.
* The BC engage in a constituency discussion of when and under what procedures significant substantive changes in the new gTLD program - as opposed to mere implementation of the program as approved by the Board - can properly be put on the table for consideration, as well as what the process and standard should be for considering and incorporating them.
Regards to all,
Philip
From: owner-bc-gnso at icann.org<mailto:owner-bc-gnso at icann.org> [mailto:owner-bc-gnso at icann.org] On Behalf Of Steve DelBianco
Sent: Saturday, December 03, 2011 5:29 PM
To: 'Bc GNSO list '
Subject: [bc-gnso] Re: for expedited review: draft BC comment on registry proposal for Continuity Operations Instrument (COI)
Rapporteur Jon Nevett incorporated Marilyn's edits into the attached DRAFT 2. I also adjusted the opening section to address a concern expressed by Phil Corwin today:
The BC notes this new approach to considering potential improvements in implementation details for the new gTLD Program and provides comments on this topic.
Also attached is a redline comparing draft 1 and 2.
If any BC member objects to the BC filing this Draft 2 comment , please REPLY ALL and explain your objections. If any member objections are noted by midnight UTC on 7-Dec, we will ask the membership to vote on the comments.
If no objections are noted, we will post the attached draft to ICANN on 9-Dec.
Thanks to Marilyn and Jon for their work on these comments.
From: Steve DelBianco <sdelbianco at actonline.org<mailto:sdelbianco at actonline.org>>
Date: Fri, 2 Dec 2011 22:43:19 -0500
To: 'Bc GNSO list ' <bc-gnso at icann.org<mailto:bc-gnso at icann.org>>
Subject: FW: for expedited review: draft BC comment on registry proposal for Continuity Operations Instrument (COI)
Last night, Marilyn Cade submitted extensive edits to our draft comments on the Continuity of Operations Fund proposal from the Registries. See second attachment and Marilyn's summary of her comments below.
Per the plan I sent this week, we will now allow 7 additional days of review time, with a target date to submit by next Friday 9-Dec. That would make us just one week late for ICANN's comment deadline.
Rapporteur Jon Nevett will take first look at Marilyn's edits and will circulate a new version over the weekend.
From: marilynscade at hotmail.com<mailto:marilynscade at hotmail.com>
To: bcprivate at icann.org<mailto:bcprivate at icann.org>
Subject: IMPORTANT: SEE PROPOSED CHANGES/EDITS IN THE BC DRAFT: for expedited review: draft BC comment on registry proposal for Continuity Operations Instrument (COI)
Date: Thu, 1 Dec 2011 10:49:10 -0500
I propose several changes and an enhancement about why the BC cares about this topic, and also note that we would like similar opportunity to achieve changes in the new gTLD program -- regarding IPR protections. I will send a separate email about that topic, based on discussions with Steve, Sarah, and others about the existing call for improvements in that area. [Separate email]. My comments are as an individual member of the BC on this BC position statement.
The changes I propose to this draft are consistent with BC's positions regarding priority of protecting registrants and users.
See 2, where I added ICANN's responsibiilty to act in the public interest.
3. I explicitly stated that we do not support the Regy proposal. That was missing from our statement.
I also said that improvements could be made in the COI. See 4.
5. I also added in that the BC fears a high risk of failure of some of the new gTLDs.
6. I added that we expect there to be appropriate legal agreements in the contracts that would allow for the protection of registered names.
I deleted the old 7, which seemed to say on the one hand, and then on the other hand. The purpose of this statement is to either support the Registry proposal, or oppose it. I oppose it, for the reasons I noted in my edits. I do think that COI can be improved, especially as it regards 'brands' gTLDs.
I was also concerned in reading the transcript of the actual panel in Dakar -- I was not able to attend in person -- the panel looked heavily stacked toward supporters of the new gTLD program. However, the important news may be that if ICANN will accept suggested changes form a single constituency, we should be aggressively be addressing our call for changes in Trademark protection.
Marilyn Cade
From: Steve DelBianco <sdelbianco at actonline.org<mailto:sdelbianco at actonline.org>>
Date: Wed, 30 Nov 2011 18:29:48 -0500
To: 'Bc GNSO list ' <bc-gnso at icann.org<mailto:bc-gnso at icann.org>>
Subject: FW: for expedited review: draft BC comment on registry proposal for Continuity Operations Instrument (COI)
Thanks to all for engaging in the email discussion over these comments.
However, I don't think we've seen any specific edits on the draft circulated last Tuesday 22-Nov.
Ron and Phil proposed a more extensive critique of the Guidebook's COI plan, but the scope of this comment is reacting to the Registry proposal for an alternative mechanism (COF). I would strongly suggest that Ron and Phil individually submit their concerns to ICANN, of course.
Mike Palage advised us to be careful about conflicts of interest, so I propose a simple way to do this quickly and transparently:
If any BC member objects to the BC filing the attached draft comment , please REPLY ALL and indicate your objection and reason. If any member objections are noted by midnight UTC on 1-Dec, we will extend the process and ask the membership to vote on alternate versions of BC comments. This would mean our comments are submitted late, but might still be considered.
If no objections are noted we will post the attached draft to ICANN on the closing date of 2-Dec.
Thanks again for engaging in this discussion.
--Steve
(vice chair for policy coordination)
From: Steve DelBianco <sdelbianco at actonline.org<mailto:sdelbianco at actonline.org>>
Date: Tue, 22 Nov 2011 19:04:17 -0500
To: "'bc-GNSO at icann.org<mailto:'bc-GNSO at icann.org> GNSO list'" <bc-gnso at icann.org<mailto:bc-gnso at icann.org>>
Subject: for expedited review: draft BC comment on registry proposal for Continuity Operations Instrument (COI)
Per discussion in Dakar and on our 10-Nov member call, here is a draft of BC comments on the a proposed alternative to the for Continuity Operations Instrument in the new gTLD Program.
Jon Nevett prepared this draft.
This comment period and docs are described here<https://www.icann.org/en/public-comment/rysg-proposal-cof-17oct11-en.htm>.
These comments are due 2-Dec, giving us 10 days for review and approval. This is less than the 14-day period required in our charter, so I am requesting an expedited review period. If any member has substantive objections to the expedited review, we can go to 14 days and submit our comments after the ICANN due date.
All BC members are invited to suggest edits. Please use track changes and circulate to BC list.
Thanks again to Jon for taking the lead on this.
Steve DelBianco
vice chair for policy coordination, BC
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