[bc-gnso] Policy calendar for 29-Aug-2013 BC member call

Smith, Bill bill.smith at paypal-inc.com
Fri Aug 30 15:56:18 UTC 2013


There has been considerable “discussion” in the BC regarding conflict of interest, particularly related to the new gTLD program. In particular, “applicants” have been singled out as being conflicted and consequently their views/comments are somehow less valid or inappropriate in our discussions. To give an example, yesterday you responded to what I considered a well-reasoned and -presented set of comments from Google as follows:

I am interested in all BC members comments that are as 'users' , not applicants. The BC membership is quite clear that it cannot address applicant views, and of course, applicants are actively engaged in the contracted party "house".

Given the context, I took this to mean that you objected to the comments or alternatively the source of the comments. In the first instance, I believe Google’s comments are consistent with a “user perspective” and thus are relevant within the BC and deserve our full attention. In the second instance, all BC members, regardless of their applicant status, are entitled to participate in discussions.

Moving to my comment, if the BC has members that are UDRP “providers” (and I took your comment to indicate that we have three such members), they would have an interest in any “enforcement mechanism” that might be developed by ICANN as it relates to their service provision. They would be conflicted.

While I believe their views are relevant, perhaps essential for us to hear, I also believe it imperative that we treat all members equally. If we persist with assertions related to conflicts, we will find ourselves unable to discuss much of anything. We *all* have interests here and we all know how to appropriately engage at ICANN.

I have asked before, and I will ask again, that we please refrain from raising the conflict tot interest issue, even indirectly. It is pejorative and does enhance our interaction but rather makes it difficult to discuss substance.

I hope that clarifies my intent.


On Aug 30, 2013, at 7:40 AM, Marilyn Cade <marilynscade at hotmail.com<mailto:marilynscade at hotmail.com>> wrote:

Bill, I didn't understand this, so just seek clarity. The concept that "supplier" is a broader category was part of this, I think, as ICANN steps up to overseeing agreements for URS, UDRP, etc.

Isn't that what we want?
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-----Original Message-----
From: Smith  Bill <bill.smith at paypal-inc.com<mailto:bill.smith at paypal-inc.com>>
Date: Thu, 29 Aug 2013 23:50:27
To: <marilynscade at hotmail.com<mailto:marilynscade at hotmail.com>>
Cc: <john at crediblecontext.com<mailto:john at crediblecontext.com>>; <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>>; <sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>>; <bc-gnso at icann.org<mailto:bc-gnso at icann.org>>
Subject: Re: [bc-gnso] Policy calendar for 29-Aug-2013 BC member call

Wouldn't these current providers have "an interest"? If so, we would need to question their comments just as much as we have questioned others with "interests".

Let's be consistent here and stop the talk of conflicts.

On Aug 29, 2013, at 6:44 AM, Marilyn Cade <marilynscade at hotmail.com<mailto:marilynscade at hotmail.com> <mailto:marilynscade at hotmail.com> > wrote:

Comments from mCADE llc:
In general, I think this is important to address on this call.

I would again want to hear from the three current providers who are members of  the BC but I am of the view that two of those: Mahmoud and Gabi/Celia supported this. I don't think we ever heard back from Zahid. That is unfortunate, but perhaps as he will be on today's call, we can either ask about DNDRC's views, or ask for follow up, quickly, after today's call.

In general, if we can get to concurrence on this, I would support a letter that asks for clarity and enforceable agreements.  However, we do need to fully recognize and support that there are concerns from governments that providers be based in the region.  And that a US and European approach to suppliers simply does not scale.

Supplier is  perhaps now a broader term at ICANN than in the past.  In adding in criteria and accountability, we also ask ICANN [or demand] that ICANN manage such agreements, standards, etc.

ICANN has to accept the responsibility of engagement, and enforcement.

Date: Thu, 29 Aug 2013 09:26:01 -0400
Subject: Re: [bc-gnso] RE: Policy calendar for 29-Aug-2013 BC member call
From: john at crediblecontext.com<mailto:john at crediblecontext.com> <mailto:john at crediblecontext.com>
To: psc at vlaw-dc.com<mailto:psc at vlaw-dc.com> <mailto:psc at vlaw-dc.com>
CC: sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org> <mailto:sdelbianco at netchoice.org> ;
bc-gnso at icann.org<mailto:bc-gnso at icann.org> <mailto:bc-gnso at icann.org>


My view and recollection is as Phil describes. An underlying principle of any business is clarity and contracts for these vendors would help do that.

I am in favor of sending this letter.

John Berard
Credible Context

Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com> <mailto:psc at vlaw-dc.com> > wrote:

Fellow BC members:

On July 21st I sent an e-mail to the BC list expressing concerns about ICANN's July 19th document "UDRP Providers and Uniformity of Process - Status Report". In particular, the Report appears to conflict with the BC's longstanding position that UDRP providers should be subject to "a standard mechanism for establishing uniform rules and procedures and flexible means of delineating and enforcing arbitration provider responsibilities" .

The closing paragraph of that e-mail stated:

In conclusion, I hereby request that BC leadership and members consider preparing and sending a communication to the CEO and the Board raising concerns about the timing of the release of this document, the lack of public comment or Board review prior to its release, and its potentially prejudicial impact on future community discussion of the UDRP. I leave whether that communication should also take issue with any of its substantive conclusions up to the BC membership.

Attached is a proposed draft letter for the BC to send to ICANN in regard to this matter; this item is on the agenda provided by Steve DelBianco. The draft letter does not take any substantive positions on the statements in the report - it just states the BC's long-held position on the need for a standard and enforceable mechanism between ICANN and UDRP providers, and asks a series of questions about some of the statements in the Report.

I realize that the limited time may prevent a decision on this matter during the Thursday call and that we may need to follow up by e-mail, but I would be happy to answer any questions during the call.

Thanks, and best regards,

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004

Twitter: @VlawDC

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

From: owner-bc-gnso at icann.org<mailto: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: Monday, August 26, 2013 11:03 PM
To: bc-gnso at icann.org<mailto:bc-gnso at icann.org> <mailto:bc-gnso at icann.org>  list
Subject: [bc-gnso] Policy calendar for 29-Aug-2013 BC member call

Here's a Policy Calendar for Thursday's BC call.   Those of you volunteering to collaborate on draft comments should feel free to circulate ideas and edits before Thursday.  I found it helpful to consult Benedetta's meeting minutes from 8-Aug (here <https://community.icann.org/download/attachments/31162833/Minutes&#43;BC&#43;August&#43;8&#43;2013.pdf?version=1&amp;modificationDate=1377162255000> ).

Channel 1. BC participation in ICANN Public Comment process:

ICANN Public Comment page is here <https://www.icann.org/en/news/public-comment> .   Selected comment opportunities below:

1. Draft report of expert working group (EWG) on next generation directory services (new WHOIS)    (comments close 6-Sep).
Initial drafting was done by Laura Covington, Susan, Elisa, Stephane, J Scott, and Bill Smith (thru 5-Aug)

Then some compromise paragraphs from Marie Pattullo on 6-Aug.

I added draft language on commercial use of privacy/proxy services.

Then Marilyn, J. Scott, and David Fares added edits to the 9-Aug version (1st attachment)

While the deadline is 6-Sep, we should finalize our comments ASAP since the EWG may begin reviewing comments later this week.

Note to Bill Smith: please share PayPal comments as soon as you are able.

2. Postponement of GNSO review  (reply comments close 6-Sep)

3. Locking of domain name subject to UDRP proceeding (PDP), board recommendation (reply comments by 13-Sep).

No comments have yet been filed on this.

Elisa Cooper drafted a brief comment for member consideration.  (2nd attachment).

Marilyn Cade expressed interest in this subject on 8-Aug call.

4. Proposal to mitigate name collision risks from new gTLD delegations (initial comments by 27-Aug, reply closes 17-Sep)
Elisa volunteered for first draft (3rd attachment).

Other volunteers included J Scott, Marilyn, and Steve D.

5. Rights Protection Mechanism (RPM) requirements     (initial comments by 27-Aug, reply closes 18-Sep)
Elisa volunteered for first draft (4th attachment).

Other volunteers included J Scott, Marilyn, and Steve D.

6. Charter amendment process for GNSO Structures  (initial comments by 28-Aug, reply closes 18-Sep)

7. DNS Risk Management Framework Report (initial comments by 13-Sep)
Board received a report from Westlake (link <http://www.icann.org/en/groups/other/dns-risk-mgmt/draft-final-19aug13-en.pdf%20> ).  Lots of process discussion, but at least they acknowledge that DNS is all about Availability, Consistency, and Integrity. (page 8)

Note: BC members are encouraged to submit individual / company comments.  The BC selects topics on which to submit official positions based on member interest.

Geographic Indicator Debate

On 1-Aug a discussion thread was begun by J Scott Evans regarding the "Geographic Indicator Debate at Durban", including broader issue of GAC's role.

There is no firm deadline for this issue and ICANN has not posted GAC Advice for public comment.

We have offers to draft from J Scott Evans, Stephane, and Sarah Deutsch

Standardized Contract for URS Providers
Phil Corwin volunteered to draft a BC letter reiterating our position that URS and UDRP providers have standardized contracts.  Phil contacted Mahmoud Lattouf and they should have a draft letter for member review this week.


Channel 2. Support for discussion and votes of our representatives on GNSO Council

John Berard and Zahid Jamil, BC Councilors

Next Council telecon meeting is 5-Sep-2013, 15:00 UTC

Agenda / motions not posted as of 26-Aug.
GNSO Project list is here <http://gnso.icann.org/en/meetings/projects-list.pdf%20> .


Channel 3. Supporting discussion/voting on matters before the Commercial Stakeholders Group (CSG)

Marilyn Cade, CSG Liaison


Channel 4. BC statements and responses during public meetings (outreach events, public forum, etc.)

What shall we do to stop the madness of allowing both singular and plural forms of the same TLD?

This is an issue on which the BC has been vocal since Beijing, along with advice from the GAC to "reconsider" the singular/plural decisions.

ICANN's New gTLD Program Committee "reconsidered" in its 25-Jun Resolution:  "NGPC has determined that no changes are needed to the existing mechanisms in the Applicant Guidebook to address potential consumer confusion resulting from allowing singular and plural versions of the same string."

As many BC members have discussed on list, the Dispute Resolution panels are generally upholding the originally flawed findings of the experts.   In one case, Dispute Resolution providers disagreed on the exact same string. (link <http://unitedtld.com/icann-must-now-decide-string-similarity-question/> )

There's been an impressive discussion on BC list. Question is, What can the BC do now?

This element of GAC Beijing advice was never posted for public comment, so we could insist upon that as a matter of process.  Moreover, events indicate that experts and dispute resolution panels are not uniformly interpreting the Guidebook standard ("so nearly resembles another that it is likely to deceive or cause confusion.")  So it's time to clarify the guidebook and re-do the string similarity evaluations.  There's a limited class of strings at issue, and the same panels could act quickly once they receive clearer instructions.

Also, we could enlist ALAC support to ask GAC to reiterate its concern over user confusion among singular and plural forms of the same TLD.   It was disappointing that GAC didn't mention singular/plural in its Durban Advice, but events now vindicate the GAC's original concern about consumer confusion.


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