[Gnso-igo-ingo-crp] PLEASE COMPLETE SURVEY to detect consensus on Options A, B or C

Fri Oct 20 18:55:54 UTC 2017

Hi folks,

First, I'd like to wholeheartedly support the recent thoughtful
analysis and  posts by Paul Keating and Paul Tattersfield.

On to Phil's post:

On Thu, Oct 19, 2017 at 8:50 PM, Phil Corwin <psc at vlaw-dc.com> wrote:
> The survey that WG members are being asked to respond to is neutral and
> descriptive and never once mentions the co-chairs or their views. I
> mistakenly referred to it as the Options document in my prior email when I
> was thinking of the actual survey that members were asked to respond to.

Again, the actual survey text directly links to that "Options"
document, with all the one-sided commentary by the co-chairs in the
"Preliminary Notes" section:

https://www.surveymonkey.com/r/VCP8VKD

"The current working text for each option has been included in the
applicable question; however, note that the final text and certain
details have not yet been fully agreed. See the full Options Proposal
for details."

And it's even linked to again at the bottom of that page, as well as
in the "Background Materials" in Mary's email:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000869.html

Hardly a neutral presentation.

> In light of that honest error, I have just again reviewed the " REMAINING
> OPTIONS FOR WORKING GROUP DISCUSSION 12 October 2017" and believe that the
> majority of its language is likewise neutral and descriptive, with the
> exception of the language reproduced below. This language states the
> informed view of the co-chairs. I believe we would have been remiss not to
> share our concerns with WG members.

The post leverages your positions as co-chairs, speaking as co-chairs,
rather than speaking as individuals on a level playing field with
other participants. When you filled out your Statement of Interest,
you appeared to know the difference between speaking as a co-chair,
and speaking as an individual member, see:

https://community.icann.org/display/gnsosoi/Philip+S+Corwin+SOI

"I understand fully that if I retain a leadership (Chair) role on the
RPM Review WG I may express clearly identified personal views but
cannot act as an advocate for a particular policy outcome."

(link to your SOI in the list of IGO PDP is broken, but that's the
general SOI that would apply, as per the RPM PDP too)

Note the language "clearly identified personal views", and "cannot act
as an advocate for a particular policy outcome." In the Options
document, you don't identify those as personal views, but as
"Co-Chairs" views. And even if they were identified as personal views,
that wouldn't be the place for them -- they'd belong alongside all
other personal views, on an equal footing.

> Nonetheless, the co-chairs have permitted proponents of Option A and B and
> detractors of Option C – most especially you -- to vigorously and repeatedly
> state their own views, and have never attempted to suppress any such
> expression.  We have included all remaining options in the survey for
> members to choose among. Any WG member who has been paying even a modicum of
> attention to the discussions of the past few weeks should be completely
> familiar with the pro and con arguments for all three options and capable of
> making an informed decision.

Actually, you unilaterally removed Option #6 from consideration,
despite claiming (falsely) that "their essential elements have been
adapted and incorporated into Options A, B, and/or C (below),". Where
is Option #6 incorporated into Option C?? That's exactly why I had to
oppose it, as noted previously.

As for your last sentence, if that was the case, why was Imran seeking
additional detail? I'm assuming that Imran is a diligent person who
wants the presentation of the pros and cons laid out clearly, and it's
insulting to imply or suggest that they must "not be paying even a
modicum of attention". The same point was made by Paul Tattersfield
and Paul Keating before Imran's email, see:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000867.html
http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000868.html

i.e. "articulate better the reasoning behind each option"

Rather than listen to and respond to those concerns, they were ignored
by the co-chairs.

> Hence I reject any suggestion that we have operated this WG in a manner that
> has not accorded every member his or her full rights and allowed all points
> of view to be expressed. The co-chairs are responsible for administering
> this WG in an efficient and fair manner and I believe we have fulfilled that
> responsibility. But the co-chairs have not taken a vow of silence that
> precludes us from sharing our personal views with the members of the WG,
> especially when they concur that a particular outcome could jeopardize our
> entire work product.

Personal views were not expressed as "personal views", but instead
leveraged the authority and position of "co-chairs", as noted above.
Where does the name "Phil" or "Petter" appear in the "Preliminary"
notes? Nowhere.

> Finally, there is no secret survey. We will share the results of it with WG
> members as soon as it closes, just as we shall share them in Abu Dhabi.

We'll see exactly what gets shared, but it seems "summary" results
only might be shared, not the individual responses with names
attached, etc., which are the more meaningful ones.

> Now here is the language in the Options document expressing the joint views
> of the co-chairs. Again, if a majority of the members of this WG believe
> that its inclusion, in the context of all the other statements that have
> been made regarding the three options in the course of WG discussions and
> email traffic, violated our duties as co-chairs then I for one will be happy
> to step aside and let others complete this task.

Stop being so defensive. Most of us are here to do the hard work, and
yet you propose instead to distract things by creating "drama" over
who hold an administrative post. What I and others are asking for is
for people to do the hard work, and not rush to a bad decision due to
political pressures.

> However, the co-chairs
> wish to reiterate that in their view Option A is an inappropriate departure
> from our prior decision that
> ICANN should avoid taking any position that seeks to limit the legal rights
> or prejudge the outcome of
> any judicial proceeding, and is subject to strong criticism as it would
> vitiate a prior UDRP finding of
> cybersquatting by a domain registrant upon an IGO’s successful assertion of
> an immunity defense

This is an absurd argument. First, I 100% agree that ICANN should
avoid taking any position that seeks to limit legal rights. It's not a
place to "create new law". I think most (if not all) of the members of
the PDP support that principle.

However, Option A is the solution *most* consistent with preserving
the legal rights of all parties. All three options are addressing the
same "problem" with the UDRP, i.e. the uncontemplated scenario whereby
successful invocation of the immunity argument thwarts the "de novo"
review in the courts. Option A tells all parties "the UDRP decision is
meaningless and won't be enforced" (as it should, to be consistent
with the principle that ICANN (including its UDRP policy) should be
inferior to the courts. Option A tells all parties "handle this
dispute through the appropriate legal remedies", rather than having
the UDRP actively interfere with those legal remedies and rights.

> The Co-Chairs recognize that although there may be examples where UDRP panels
> have reached incorrect
> decisions, that the best means to address such error is through judicial
> appeal, or appeal via arbitration
> as proposed in Option C). The Co-chairs further observe that Option A would
> leave IGOs in a worse
> position than they would be under the status quo (successful assertion of
> judicial immunity would

This is misleading and false, as Option C *also* leaves IGOs in a
worse position than they would be under the status quo, because now
they would have to go to arbitration, instead of "winning on a
technicality" via the courts immunity decision and having the domain
transferred to them.

> remove the stay on enforcement of the prior UDRP decision), and as this
> would leave the IGO with no
> further available remedy, under these mechanisms, against the alleged
> cybersquatting, it is highly
> unlikely to be approved by the GNSO Council or the ICANN Board, especially
> as this PDP was chartered
> to evaluate whether and how access to the UDRP and URS could be improved for
> IGOs and INGOs.

Again, there is no *legal* or requirement to provide a mechanism for
the IGOs beyond those in the national courts, or to provide them with
better access to the UDRP/URS than they already get (at the expense of
registrants' rights). We've already established that they have
sufficient access, and have identified workarounds that they can
employ if they wish to minimize exposure to the immunity issue.

There isn't even an important "public interest" (a dubious term) in
providing such a mechanism. If there's any "pubic interest" of
importance, it's that ICANN not be interfering with rights under
national laws, and not be making up its own "laws" which conflict.
Expectations about rights and laws are important public interest
concerns, particularly for registrants.

To put things in "Hollywood terms" (since Options A and B are being
described as "Thelma and Louise"), Option A is better termed "Do The
Right Thing", as it is a principled and nuanced approach that solves
the problem with surgical precision. Option C is best described as the
"Titanic" approach, ignoring the engineering flaws inherent in its
design, which leads to a sinking ship. Option C seeks to abandon
logical analysis and instead cave to **political** pressures, rather
than fix issues correctly.

Last, let me point out just 2 examples of problems with Option C that
have not been identified in the self-serving documents provided by the
co-chairs:

(a) Panelists -- one of which must be a "retired judge". That sounds
dandy, until even minimal research shows that NAF's infamous Carolyn
Marks Johnson is a retired judge. See:

http://www.adrforum.com/SearchPanelists

and do a search, or note the description at:

http://www.legacy.com/obituaries/houstonchronicle/obituary.aspx?pid=172889874

"Hon. Carolyn Marks Johnson, former judge in the 189th District Court
in Harris County"

I'm sure her reputation speaks for itself, but for those not keeping
track, here's a link to some articles:

https://domainnamewire.com/2010/03/22/study-shows-million-dollar-domain-arbitrators-and-udrp-bias/
https://domainnamewire.com/2009/07/22/national-arbitration-forum-panelist-sued-for-judicial-misconduct/
https://domainnamewire.com/2016/07/21/mike-mann-overturns-udrp-decision-court/
https://www.thedomains.com/2015/03/17/worst-udrp-decision-of-the-year-panel-gives-away-domain-registered-before-tm-was-filed/

She's not alone as a "retired judge", see Nelson Diaz (also at NAF),
who I wrote about on CircleID for the sloppy copy and pasting of
nonsense:

http://www.circleid.com/posts/20100423_naf_copying_pasting_nonsense_into_udrp_decisions/
http://www.adrforum.com/domaindecisions/1312536.htm

Are these the kinds of retired judges who could be handling Option C
disputes, who are supposed to protect the integrity of that system?

(b) Costs -- it's naive to believe that costs would be lower in
arbitration than in a judicial case, while trying to emulate the due
process protections of a court. One need only look at a recent IRP
that ICANN lost:

http://domainincite.com/21481-icann-loses-another-irp-sport-gtld-fight-reopens-as-panel-finds-apparent-bias

where the costs of the IRP itself (*not* counting lawyers fees of each
party) amounted to $152,673. In real courts, the actual disbursement
costs and filing fees are relatively low (hundreds of dollars, maybe
thousands in a complex case), because the most substantial cost,
namely the labour cost for the judge (their salary) is paid for by
TAXPAYERS! Not so in an arbitration, where the parties themselves have
to pay for the costs of the panelists (3 panelists, multiplied by
hundreds of dollars per hour, multiplied by many hours adds up
quickly).

I'll leave it at that, for now. I do have other points, which, as the
two Pauls have suggested, should be in a substantial, neutral and
thorough "pros and cons" document prepared for the group (and for the
community) *before* making decisions or taking surveys. I endorse
their call for such a system, which the co-chairs have ignored.

By my count, that would make at least 3 people calling for that (maybe
4, if counting Imran), which exceeds the "2" votes by the co-chairs,
acting in their sole individual capacities.

Sincerely,

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