[Gnso-newgtld-wg-wt3] Actions/Discussion Notes: Work Track 3 Sub Team Meeting 01 August

[Julie Hedlund]

Dear Work Track members,

 

Please find below the action items and discussion notes from the call on 01 August.  These high-level notes are designed to help Work Track members navigate through the content of the call and are not a substitute for the chat transcript or the recording. The meeting recording and chat transcript are available at: https://community.icann.org/x/DBLfAw[community.icann.org].


The document referenced on the call is attached and excerpts from the chat room are included below.

 

Kind regards,

Emily

 

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Action Items and Discussion Notes: 01 August 2017

 

Action Items:

 

3.1.5: Leadership to reach out to RySG and Afilias to join the next call to discuss their comments.

3.1.6: 1) Research how the IO was paid; 2) Make a formal request to invite the Independent Objector to a meeting for discussion.

 

Notes:

 

1. Plenary Update

 

-- We have a call on Monday, 07 August at 20:00 UTC.  The second call will be on 29 August at 3:00 UTC.

 

-- On the last call we talked about rounds versus first come first served.

 

-- Next we will continue that discussion as well as predictability.

 

-- Soon we will send invites to the SOs and ACs asking them to appoint a leader for the new Work Track 5 on Geographic Names.  Then we will send a call for participants.

 

2. CC2 Response Reviews -- Objections Continued Questions 3.1.6-3.1.11

 

Excerpts are on display in the central pod. Full text of the comments are available here: https://docs.google.com/spreadsheets/d/1A5uaxBAgmg7QsFuqMdVvt1HxNZ4jKXnm3Hp0gZra7U0/edit

 

3.1.5 - Are you aware of any instances where any parties attempted to "game" the Objection procedures in the 2012 round? (page 7)

 

-- dotgay LLC provided evidence of gaming.  

 

-- dotgay LLC, RySG, and Afilias made suggestions to reduce the likelihood of gaming.  

 

-- RySG and Afilias: "No individual entity should be able to participate in both an objection and CPE for the same string."

 

Discussion:

 

-- (dotgay) Wanted to point out and via the example.  For some reason in the community objections the process of determining whether someone was able to file an objection was not done until the objection was moved to the panelists.  Very concerning glitch that allows for anyone, even without standing, to start a proceeding and force a community application to respond.  There is not process for those concerns to be highlighted and dealt with.  Standing should be determined before a community is pulled into an objection.

 

-- Are there examples where had there been processes in place someone would not have had to respond?  The objections are confidential.  It was very clear in the case of dotgay had standing been required it was have saved a lot of time and money.

 

-- Would there be any harm in requiring a standing check upfront?  Dotgay -- can't think of any harm as it relates to our situation.

 

-- It seems like requiring an evaluation of standing prior to a response seems like a good approach.

 

-- (dotgay) the objection referenced was one that never made it to the panelists.  The objection that did make it to the panelists didn't pass standing.  The community applicant has to pay a $5,000 fee just to respond to the objection.  If they don't get standing there is no way the community application can be successful.

 

-- Wondering whether there may be cases where the decision that the group does not have standing is at least partially based on the contents of the response.  Then you would want to evaluation to be preliminary.

 

-- (dotgay) That is a good point.  It is important to make it clear that standing has no connection to the complaint itself.  Standing can be determined without needing to know the complaint.

 

-- Worry that the review no matter how specific it is might miss something that the response catches.

 

-- It makes a lot of sense to make a screening based on standing but if you don't have the opportunity of both sides to plead on standing you don't have the full picture.

 

-- (dotgay) If we go back and look at the standing requirements they look at the time of the existence of the organization, the composition, etc.  Look at the criteria to determine standing.  We had been told by ICANN that if the standing isn't achieved then the impact of the complaint itself has no bearing on anything else down the road.  Example: Our panelist said he was not going to hold up dotlgbt from proceeding because the gay community was going to get .gay.  We were told that something from one determination was not useable in another.

 

-- Not sure agree that an entity should not be able to participate in both an objection and CPE for the same string.  Also raises more questions: if a community application decides to choose CPE does that mean no one can file an objection for the application?  Implication is one or the other, if applied for CPE forego right to object to another application.  This needs more discussion.  ACTION: Leadership to reach out to RySG and Afilias to join the next call.

 

>From the chat room:

avri doria: so yes dotgay was forced to respond to someone who was ultimately denied standing.

Anne Aikman-Scalese (IPC): COMMENT:  I support the idea of a screening based on standing but it should not take forever to do - should be done quickly in order to provide certainty for Applicants and  potential Objectors.

Cheryl Langdon-Orr (CLO): makes sense to me Anne 

Anne Aikman-Scalese (IPC): Agree with Alan it is difficult to detremine standing without both sides filing pleadings.

Alan Greenberg: I strongly support a preliminary determination (which will catch most who do not have standing).

Cheryl Langdon-Orr (CLO): indeed!  be very useful 

Alan Greenberg: To be clear, what I was sayingwas that there should be a preliminary determination on standing, and if it fails, the objection is dead. Only if preliminary standing is granted does the complain prodeed.

Jamie Baxter | dotgay: I could concur with that Alan. Basic investigation to confirm that the objector represents a legitimate organization that is capable of achieving standing is key.

Alan Greenberg: Better said by Anne.

Jamie Baxter | dotgay: but does it mean that no other entity can object to the community application if they select CPE?

avri doria: and for a community objector, is this just the applicant being barred or  any of the community who supprted the application?

 

3.1.6 - Do you believe that the use of an Independent Objector (IO) is warranted in future application processes?

 

-- Nominet and ALAC expressed that the use of an IO is warranted in future application processes

 

-- The BC stated that the use of an IO is not warranted in future application processes.

 

-- RySG, BRG, and Afilias raised concerns about the use of the IO in the 2012 round and suggested changes for future application processes.

 

Discussion:

 

-- Statistics quoted by the BC are interesting and should be considered.  The fact that this is an objection process it will implicitly prove not beneficial for some.

 

-- Standing with respect to the IO: Curious who would have standing to file for a limited public interest objection.  Who would determine who would have standing?  If there is not IO who file the limited public interest objection?

 

-- The IO was created to pass the requirements of standing on morality, public order, limited public interest.  If we get rid of the IO who would have standing -- this needs to be considered.

 

-- Perception was that the IO went beyond the morality, public order, limited public interest.  Considered things such as .health for example.  Was not created for that.  For the IO needs to be a better quick look process or some other check to make sure the scope is quite limited.

 

-- Do we know how many objections the IO was successful in and how many total dollars the applicants paid him?  BC filed comments that there were 19 objections and only two successful.  We can probably come up with that figure.  At some point we need to do an efficiency analysis.  ACTION: Research how the IO was paid.

 

-- The question of whether the IO made good decisions is a different question from whether there should be someone with standing to file a limited public interest objection.  Might be better to focus on how the IO or some other body should be required to document support for a valid limited public interest objection so that the community agrees that it is qualified.

 

-- There are separate but related questions around the IO.  Look at the 17 objections that did not prevail and why.  Look at whether the IO went beyond its remit.  Is there a relationship between where the IO went beyond its remit and the objections that were lost.

 

-- The IO was only supposed to file an objection if comments were raised in the initial public comment period.  It was designed to look at public comments received then to be a voice of those.

 

-- The IO had a fixed budget that included a salary.  Compensation structure needs to be looked at.

 

-- Re: who will do this if the IO doesn't do it: Should look at whether the IO served is essential purpose.  It is an odd construct that holds all the public interests.  Need to look at whether there is a different mechanism.

 

-- There is another thing to check.  People were able to come to the IO with issues to consider.  It is a place where those concerns can funnel in.  If we are going to have these kinds of concerns there does need to be a way to funnel it into the system.  

 

-- If we are going to start looking at function, expenditure, and value for money this is not the only one we need to subject to this analysis.  Not sure if it is in our scope to do this.  ACTION: Make a formal request to invite the IO to a meeting for discussion.

 

>From the chat:

Alan Greenberg: Note that 2/19 is 10%.

Alan Greenberg: I presume the IO was not paid on a per-objection basis. That would be a direct conflict of interest.

Trang Nguyen: The IO was not paid on a per-objection basis.

avri doria: the degree to which any of the money spent on application processing and objection resolution were good expenditures is a large subject of its own.

Trang Nguyen: @Jeff, the AGB says "The IO may consider public comment when making an independent assessment whether an objection is warranted. The IO will have access to application comments received during the comment period."

avri doria: i.e once we start the evaluation of function versus expenditure, this is not the only one that should be subject to such analysis.i.e once we start the evaluation of function versus expenditure, this is not the only one that should be subject to such analysis.

Jamie Baxter | dotgay: i think it would be hard to conduct a full 360 on the effectiveness of the IO. we will never have any idea how many gTLD ideas or applications were thwarted by the meer existance of an IO.

Anne Aikman-Scalese (IPC): Underlying philoshical basis was the Limited Public Interest Objection.  If poorly executed, it needs to be fixed.  Otherwise, we are getting rid of that Objection.

Greg Shatan: @Jamie, do you have any reason to believe that any applications were thwarted/unfiled due to the existence of the IO?

Trang Nguyen: The AGB also says "In light of the public interest goal noted above, the IO shall not object to an application unless at least one comment in opposition to the application is made in the public sphere." So, you are correct, Jeff.

avri doria: can we invite IO for a discussion?

Jamie Baxter | dotgay: @Greg, without the IO role to intervene on issues of morality or human rights with string applciations, what would stop people from applying from them and who would intervene to prevent some of the ideas mentioned on this call?

avri doria: the discussion of his understanding might help in revising the description of the function

Anne Aikman-Scalese (IPC): Agree wtih Jamie.  If the IO is the wrong tool or needs more support to determine Limited Public Interest, we should fix that.  What if the ICANN Board appointed a non-conflicted subcommittee?

Susan Payne: IO's final activity report may be of interest https://www.independent-objector-newgtlds.org/home/final-activity-report/

 

3.1.7 Do you believe that parties to disputes should be able to choose between 1- and 3- member panels and should the costs of objections reflect that choice?

 

-- RySG, BRG, and Afilias recommended that parties should be able jointly determine whether to use a 1- or 3-member panel.

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