[CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016

Tue Jan 26 14:28:38 UTC 2016

Request for Proposal (for new IFO).

On Tue, Jan 26, 2016 at 9:27 AM, Gomes, Chuck <cgomes at verisign.com> wrote:

> Good feedback Greg.  What do you mean by RfP in the parenthetical after
> Special IFR?
>
>
>
> Chuck
>
>
>
> *From:* Greg Shatan [mailto:gregshatanipc at gmail.com]
> *Sent:* Monday, January 25, 2016 11:36 PM
> *To:* Gomes, Chuck
> *Cc:* Martin Boyle; Matthew Shears; jrobinson at afilias.info;
> cwg-stewardship at icann.org
>
> *Subject:* Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI -
> IRP - Please respond by 23h59 UTC Monday 25 January 2016
>
>
>
> Martin and Chuck,
>
>
>
> Please allow me to add my 2 cents below.
>
>
>
> Greg
>
>
>
> On Mon, Jan 25, 2016 at 8:03 PM, Gomes, Chuck <cgomes at verisign.com> wrote:
>
> Thanks for responding Martin.  Please see my responses below.
>
>
>
> Chuck
>
>
>
> *From:* Martin Boyle [mailto:Martin.Boyle at nominet.uk]
> *Sent:* Monday, January 25, 2016 7:41 PM
> *To:* Gomes, Chuck; Matthew Shears; jrobinson at afilias.info;
> cwg-stewardship at icann.org
> *Subject:* RE: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI -
> IRP - Please respond by 23h59 UTC Monday 25 January 2016
>
>
>
> For the gTLDs, I’m afraid I still do not properly understand where
> fundamental authority lies, so please bear with me chuck:  I’ll get there
> one day…
>
>
>
> On 1, the {putative] registry operator requests a delegation.  I assume
> that it would be for ICANN to agree to grant and to show this by signing a
> contract.  If it refused to for reasons that failed the “bylaw test,” an
> IRP against ICANN would seem to be appropriate.  But there might be other
> reasons – community objections, or GAC opposition or even failure to meet
> the criteria.  So wouldn’t “might be applicable” be correct here?
>
> *[Chuck Gomes] It depends.  Are the community objections or GAC opposition
> in line with approved policy?  For a registry appeal to be effective, it
> should be based on approved policy.  And community objections or GAC
> opposition should also be consistent with approved policy.*
>
>
>
> This does not seem like a "PTI" issue.  Rather this is an ICANN issue.
> So it is not really relevant to this question (although it's an interesting
> question).  Now if ICANN approved the application and entered into a
> registry agreement, but PTI refused to delegate, then it would be a PTI
> problem, and the applicant could try to resolve this through CSC or through
> ICANN's enforcement of its contract with PTI.  If CSC does not succeed,
> what is the end of the line for resolving a performance problem?  Is it an
> IRP, and is the other party in the IRP PTI or ICANN?
>
>
>
>
>
> On 2:  I guess this would be the same for a ccTLD as for a gTLD.  This
> would appear to fail PTI (or future IANA functions operator) obligations to
> ICANN under its contract.  I think I’m with Becky on this:  a bylaw
> requirement on ICANN to enforce its contract with PTI would seem to be the
> simplest approach and an IRP could then challenge ICANN for failure.  But
> is there a more direct approach here:  this would appear to be likely to
> fail one or more of the SLEs.  It should be reported to the CSC, which (if
> there is refusal to correct) would escalate to RySG and/or ccNSO which
> would then decide on further action (a special IFR which could then lead to
> a RfP).  I have a certain antipathy to parallel paths and would certainly
> prefer the more “resolution-based” CSC to the more legalistic IRP.
>
> *[Chuck Gomes] No argument here.*
>
>
>
> As with the above issue, if CSC cannot resolve the issue, the next step
> after that should be an IRP (but not based on ICANN violating a bylaw;
> rather it should be based on PTI's failure to do what is required of it).
> A special IFR (and possibly an RfP) based on a single failure to delegate
> seems like overkill to me.  I do agree that the IRP should not be invoked
> until the CSC route has run its course.
>
>
>
> And, in the case of ccTLDs, judging whether there is justification to
> reject (or simply delay) might be difficult.
>
>
>
> For 3:  this would seem to me to be a CSC issue – that’s what they are
> there for, complete with their own processes to resolve the problem.  I
> guess that an obligation to enforce the contract would make it easier for
> the CSC to guarantee access to ICANN should PTI remain obdurate (and that
> might be particularly relevant in a post PTI world, should ICANN have to
> rebid the contract).
>
> *[Chuck Gomes] What if CSC cannot resolve the problem?*
>
>
>
> For me the fundamental reason why we might want to invoke an IRP would be
> that PTI is ignoring agreed policy (or seeking to impose its own ideas, as
> ICANN did in the early days).
>
> *[Chuck Gomes] Agreed.*
>
>
>
> Imagine PTI decides it wants to impose a contract on all its “customers”
> (where few ccTLDs have contracts and where (if I understand right) gTLDs
> have their authority from the contract they sign with ICANN.  That TLDs
> denied service unless they accept a condition that is not in policy (and
> therefore should be in breach of its contract with ICANN) should have the
> right to appeal through the IRP would seem to me to be reasonable use of an
> IRP.  Hanging around waiting for the ccNSO & GNSO to initiate a special IFR
> and then trigger remedial action and/or separation for an attempt at
> extension of power by PTI would seem to me possible, but not optimum.
>
> *[Chuck Gomes] Agreed again.*
>
>
>
> Happy to hear thoughts.
>
>
>
> Martin
>
>
>
> *From:* cwg-stewardship-bounces at icann.org [
> mailto:cwg-stewardship-bounces at icann.org
> <cwg-stewardship-bounces at icann.org>] *On Behalf Of *Gomes, Chuck
> *Sent:* 25 January 2016 13:50
> *To:* Matthew Shears <mshears at cdt.org>; jrobinson at afilias.info;
> cwg-stewardship at icann.org
> *Subject:* Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI -
> IRP - Please respond by 23h59 UTC Monday 25 January 2016
>
>
>
> Let me give a few examples where I think that the IRP would be applicable:
>
> 1.       A gTLD is not delegated as requested by a registry operator
> without appropriate justification.
>
> 2.       Modification to a zone file record for a gTLD is not made
> without proper justification.
>
> 3.       SLEs are not met after applicable procedures are followed.
>
>
>
> I think that we have recommended processes that would hopefully solve
> problems like the above well before an IRP would be needed, but it those
> processes do not work in a timely manner, then an IRP would provide an
> objective and well-defined option for an appeal.  I think the affected
> registry operator, the RySG or the GNSO should all have standing to use the
> IRP in cases like the above if needed.  The RySG in its comments over the
> history of the CWG Stewardship has repeatedly emphasized the need for
> registry operators to be able to appeal IANA decisions that they believe
> are contrary to policy.
>
>
>
> I suspect that others could come up with other examples.
>
>
>
> Chuck
>
>
>
> *From:* cwg-stewardship-bounces at icann.org [
> mailto:cwg-stewardship-bounces at icann.org
> <cwg-stewardship-bounces at icann.org>] *On Behalf Of *Matthew Shears
> *Sent:* Monday, January 25, 2016 8:14 AM
> *To:* jrobinson at afilias.info; cwg-stewardship at icann.org
> *Subject:* Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI -
> IRP - Please respond by 23h59 UTC Monday 25 January 2016
>
>
>
> Would it be useful to try and list the possible situations where recourse
> to an appeals mechanism would be used?  This might give us a better sense
> of what type of mechanism would be suited and whether or not the IRP would
> be appropriate/adequate?
>
> Matthew
>
> On 22/01/2016 12:33, Jonathan Robinson wrote:
>
> All,
>
>
>
> We have received a direct request (see below) from the CCWG Accountability
> Co-Chairs for further guidance with respect to the application of the IRP
> to the actions (or inactions) of PTI.
>
>
>
> Moreover, we have had input from Sidley via the Client Committee as
> follows:
>
>
>
> *“Sidley spoke with Becky Burr from CCWG today regarding the CWG
> dependency for an IRP process.   Based on the call, it appears that the
> open question for CWG is whether the CWG dependency is adequately met with
> an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce
> the contract with PTI (for example, due to a material performance breach by
> PTI that is not cured)  – or whether in addition to such an ICANN bylaw, a
> separate process is also required that would give direct customers a right
> to mediation or arbitration to address SLAs or other service issues.   If
> the latter is required, then in order for CCWG to create such a process, it
> would need input from CWG on what the standard of review should be for
> those types of proceedings and what the type of process would be – for
> example, would non-binding mediation be sufficient to address a direct
> customer issue or would binding arbitration be required?   By clarifying
> this point, CCWG will be better positioned to ensure that the CWG
> dependency is being met in the CCWG proposal.”*
>
>
>
> So the essential question is:
>
>
>
> A.     Is an ICANN bylaw provision that allows for an IRP if ICANN fails
> to enforce the contract with PTI (for example, due to a material
> performance breach by PTI that is not cured) sufficient?
>
>
>
> OR
>
>
>
> B.     In addition to such an ICANN bylaw, is a separate process also
> required that would give direct customers a right to mediation or
> arbitration to address SLAs or other service issues?
>
>
>
> If B above, what type of process is necessary?
>
>
>
> As discussed in our CWG meeting yesterday, it will be particularly helpful
> if when responding to the above, you provide a rationale for your response.
>
> In addition, if possible, please make reference to (and be consistent
> with) the prior work of this CWG Stewardship (such as our proposal in
> response to the RFP from the ICG).
>
>
>
> Given that the request from the CCWG Co-Chairs indicates their need to
> close this item by 28 January, we need to discuss this soon. Accordingly,
> we request that you provide input ASAP and, in any event, *by 23h59 UTC
> Monday 25 January 2016*.
>
>
>
> Thank-you,
>
>
>
>
> Jonathan & Lise
>
> Co-chairs, CWG Stewardship
>
>
>
> *From:* Alice Jansen [mailto:alice.jansen at icann.org
> <alice.jansen at icann.org>]
> *Sent:* 21 January 2016 17:05
> *To:* Lise Fuhr <Fuhr at etno.eu> <Fuhr at etno.eu>; Jonathan Robinson
> <jrobinson at afilias.info> <jrobinson at afilias.info>
> *Cc:* Mathieu Weill <mathieu.weill at afnic.fr> <mathieu.weill at afnic.fr>;
> Thomas Rickert <thomas at rickert.net> <thomas at rickert.net>; León Felipe
> Sánchez Ambía <leonfelipe at sanchez.mx> <leonfelipe at sanchez.mx>; Grace
> Abuhamad <grace.abuhamad at icann.org> <grace.abuhamad at icann.org>;
> acct-staff at icann.org
> *Subject:* CCWG-ACCT Request for Guidance on PTI - IRP
>
>
>
> *Sent on behalf of CCWG-Accountability Co-Chairs*
>
>
>
> Dear Lise, Dear Jonathan,
>
> This is to inform you that further to our call #79, the CCWG-ACCT seeks
> the CWG-Stewardship’s guidance on the two proposed approaches that were
> suggested to address the dependency that relates to PTI compliance through
> the Independent Review Process (IRP) i.e.:
>
> 1.      Provide direct access to IRP for PTI action or inaction;
>
> 2.      Oblige ICANN in Bylaws to ensure PTI compliance, in which case
> failure to do is covered by IRP.
>
> We are currently in the final stages of discussion to issue our
> supplemental report and would need to close this item by 28 January. Any
> prompt feedback you could send us would be much appreciated.
>
> We look forward to your guidance.
>
> Thank you
>
> Best regards
>
> Mathieu, Thomas, León
>
>
>
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>
> --
>
>
>
> Matthew Shears | Director, Global Internet Policy & Human Rights Project
>
> Center for Democracy & Technology | cdt.org
>
> E: mshears at cdt.org | T: +44.771.247.2987
>
>
>
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