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<P><FONT SIZE=2>I completely agree with you Tim. If Council does decide to issue comments, those comments should be focused on process issues. I am disappointed, but not surprised, that this focus is lacking in any of the public comments to date.<BR>
<BR>
The case raises questions around accountability, transparency and predictability and so I think it right that we at least consider it.<BR>
<BR>
----------------<BR>
Caroline Greer<BR>
Director of Policy<BR>
dotMobi<BR>
<BR>
<BR>
----- Original Message -----<BR>
From: owner-council@gnso.icann.org <owner-council@gnso.icann.org><BR>
To: GNSO Council <council@gnso.icann.org><BR>
Sent: Thu Apr 15 22:30:29 2010<BR>
Subject: RE: [council] ICM registry request for GNSO<BR>
<BR>
<BR>
The draft options document does raise serious questions. Should the<BR>
Board be able to pick and choose what it wants from the findings of the<BR>
IRP (majority findings, minority findings, or parts of either), or<BR>
should the decision be that it either accepts the findings of the Panel<BR>
or rejects them? If the Board agrees with the finding, should it be able<BR>
to decide to not act on those findings anyway (too much time has passed,<BR>
too much has changed, etc)?<BR>
<BR>
It gets to the accountability and institutional confidence issues that<BR>
the community has been hounding on for years (and hopefully the first<BR>
AoC review team will finally resolve). If the Council should choose to<BR>
comment, I would prefer that the comment be focused on these higher<BR>
level issues and not the specifics of this particular case.<BR>
<BR>
<BR>
Tim<BR>
<BR>
-------- Original Message --------<BR>
Subject: RE: [council] ICM registry request for GNSO<BR>
From: "Rosette, Kristina" <krosette@cov.com><BR>
Date: Thu, April 15, 2010 3:56 pm<BR>
To: "Mary Wong" <MWong@piercelaw.edu>, "GNSO Council"<BR>
<council@gnso.icann.org><BR>
<BR>
To be clear, my reluctance has nothing to do with the TLD itself. I<BR>
have nightmarish visions of the proverbial slippery slope where Council<BR>
becomes bombarded with requests for comment and/or intervention on a<BR>
multitude of issues. Even if such requests came only from owners of new<BR>
gTLD applications that fail, it's still a potentially big pool. <BR>
<BR>
Mary, if you're suggesting that this may be an opportunity for Council<BR>
to issue a statement on when it will (or will not) comment, I'm all for<BR>
it.<BR>
<BR>
K<BR>
<BR>
<BR>
<BR>
From: owner-council@gnso.icann.org [<A HREF="mailto:owner-council@gnso.icann.org">mailto:owner-council@gnso.icann.org</A>]<BR>
On Behalf Of Mary Wong<BR>
Sent: Thursday, April 15, 2010 4:50 PM<BR>
To: GNSO Council<BR>
Subject: Re: [council] ICM registry request for GNSO<BR>
<BR>
<BR>
<BR>
I agree and also for the reasons outlined by Stephane. Personally I<BR>
think it probably not something the Council as a whole should comment<BR>
on, but it'd be remiss of us not to at least discuss it, with a view<BR>
toward figuring out whether or not there ought to be just such a public<BR>
statement on our part.<BR>
<BR>
Thanks,<BR>
Mary<BR>
<BR>
Mary W S Wong<BR>
Professor of Law & Chair, Graduate IP Programs<BR>
Franklin Pierce Law Center<BR>
Two White Street<BR>
Concord, NH 03301<BR>
USA<BR>
Email: mwong@piercelaw.edu<BR>
Phone: 1-603-513-5143<BR>
Webpage: <A HREF="http://www.piercelaw.edu/marywong/index.php">http://www.piercelaw.edu/marywong/index.php</A><BR>
Selected writings available on the Social Science Research Network<BR>
(SSRN) at: <A HREF="http://ssrn.com/author=437584">http://ssrn.com/author=437584</A><BR>
<BR>
<BR>
>>><BR>
From: William Drake <william.drake@graduateinstitute.ch>To:GNSO Council<BR>
<council@gnso.icann.org>Date: 4/14/2010 11:16 AMSubject: Re: [council]<BR>
ICM registry request for GNSO<BR>
I think we have to talk about it for the reasons Stéphane states.<BR>
Which admittedly is probably easier for me to say since I didn't live<BR>
through it the last time around.<BR>
<BR>
Bill<BR>
<BR>
On Apr 14, 2010, at 4:13 PM, Stéphane Van Gelder wrote:<BR>
<BR>
LOL.<BR>
<BR>
I do think it's worth discussing if there is time during our next<BR>
meeting. If people echo's Kristina's desire not to go anywhere near<BR>
this, then that discussion will be short. But .XXX is a gTLD, it is<BR>
within the purview of the GNSO, and the case does raise several<BR>
procedural issues that I think lie at the core of ICANN's function (the<BR>
main one being, obviously, whether the independent review panel's<BR>
decisions actually mean anything).<BR>
<BR>
<BR>
Stéphane<BR>
<BR>
Le 14 avr. 2010 à 15:54, Rosette, Kristina a écrit :<BR>
<BR>
My only interest in discussing would be to say that I don't want to<BR>
touch this topic with a 10-foot-pole, but I suspect that's not what you<BR>
had in mind.<BR>
<BR>
From: owner-council@gnso.icann.org [<A HREF="mailto:owner-council@gnso.icann.org">mailto:owner-council@gnso.icann.org</A>]<BR>
On Behalf Of Gomes, Chuck<BR>
Sent: Wednesday, April 14, 2010 9:52 AM<BR>
To: Stéphane Van Gelder; GNSO Council<BR>
Subject: RE: [council] ICM registry request for GNSO<BR>
<BR>
<BR>
<BR>
If anyone would like to discuss this in our 21 April meeting, please say<BR>
so and I will add it under Any Other Business.<BR>
<BR>
Chuck<BR>
<BR>
From: owner-council@gnso.icann.org [<A HREF="mailto:owner-council@gnso.icann.org">mailto:owner-council@gnso.icann.org</A>]<BR>
On Behalf Of Stéphane Van Gelder<BR>
Sent: Wednesday, April 14, 2010 6:46 AM<BR>
To: GNSO Council<BR>
Subject: [council] ICM registry request for GNSO<BR>
<BR>
<BR>
<BR>
Councillors,<BR>
<BR>
Chuck and I were recently contacted by ICM Registry CEO Stuart Lawley.<BR>
Stuart asked us if the GNSO Council might be willing to make a comment<BR>
on the ICM process options (the comment period for that being currently<BR>
underway).<BR>
<BR>
<BR>
In response, I suggested that Stuart send us a draft of what kind of<BR>
comment he would like to ask the Council to make, so that we could all<BR>
at least consider it. Chuck explained to Stuart that the GNSO Council<BR>
does not frequently make comments on behalf of the GNSO in response to<BR>
ICANN comment periods, part of the reason for that being the difficulty<BR>
we sometimes have in reaching consensus on such comments within the<BR>
timeframe of an ICANN comment period.<BR>
<BR>
<BR>
Neither of us indicated to Stuart that there would be any GNSO Council<BR>
action following his request.<BR>
<BR>
<BR>
You will find below the exact transcript of the text that Stuart sent us<BR>
to forward to the Council in response to my suggestion. The idea being<BR>
that if Council is interested in discussing this, then the text may<BR>
serve as a starting point for that discussion.<BR>
<BR>
<BR>
Thanks,<BR>
<BR>
<BR>
Stéphane<BR>
<BR>
<BR>
<BR>
<BR>
<BR>
<BR>
We would ask the GNSo , or indeed and of its members, to consider<BR>
commenting to ICANN during the Public Comment Period that runs until May<BR>
10 on the Possible Process Options for ICM as outlined in the ICANN<BR>
announcement<BR>
<A HREF="http://www.icann.org/en/announcements/announcement-2-26mar10-en.htm">http://www.icann.org/en/announcements/announcement-2-26mar10-en.htm</A>.<BR>
<BR>
Regardless of the nature of the sTLD we feel this is a watershed moment<BR>
for ICANN in terms of its Transparency and Accountability and would like<BR>
the Council to consider submitting a comment/statement along the lines<BR>
of<BR>
<BR>
The GNSO urges ICANN to implement the findings of the Independent Review<BR>
Panel in ICM Registry v. ICANN without delay by finalizing a registry<BR>
agreement with ICM based on the rules established for the sTLD<BR>
applications submitted in March, 2004.<BR>
<BR>
The merits of the .xxx top level domain are no longer on the table:<BR>
rather, the only question now before the ICANN Board is whether or not<BR>
it is prepared to respect the findings of a panel of independent judges<BR>
in accordance with a procedure established by the ICANN bylaws. Those<BR>
findings are:<BR>
<BR>
1. That the ICANN Board determined on 1 June 2005 that the ICM Registry<BR>
application met the criteria established for the sTLD round opened on<BR>
December 15, 2003;<BR>
<BR>
2. The Boards reconsideration of that finding was not consistent with<BR>
the application of neutral, objective and fair documented policy.<BR>
<BR>
3. That ICANN should have proceeded to negotiate a contract with ICM<BR>
Registry; and<BR>
<BR>
Those findings are clear, and the path forward is plain: The ICM<BR>
Registrys application was submitted under the rules established by the<BR>
Board for the sTLD round based on extensive community input. Having<BR>
determined that the ICM application satisfied the eligibility criteria<BR>
established for that round, all that remains is for ICANN to negotiate a<BR>
contract with ICM Registry based on the contractual arrangements adopted<BR>
for that round.<BR>
<BR>
Most of the options provided by staff for responding to the IRP<BR>
declaration would apply new rules to ICM Registry. There is no<BR>
principled basis for this approach, which would only compound the<BR>
violations already identified in the IRP declaration. The Board should<BR>
reject those options, respect the judgment of the Independent Review<BR>
panel, and provide tangible proof of its willingness to be accountable<BR>
to the community it serves.<BR>
<BR>
<BR>
<BR>
<BR>
<BR>
<BR>
<BR>
***********************************************************<BR>
William J. Drake<BR>
Senior Associate<BR>
Centre for International Governance<BR>
Graduate Institute of International and<BR>
Development Studies<BR>
Geneva, Switzerland<BR>
william.drake@graduateinstitute.ch<BR>
www.graduateinstitute.ch/cig/drake.html<BR>
***********************************************************<BR>
<BR>
<BR>
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