[Gnso-newgtld-wg-wt3] Actions/Discussion Notes: Work Track 3 Sub Team Meeting 15 August

Tue Aug 15 21:13:17 UTC 2017

Dear Work Track members,

Please find below the action items and discussion notes from the call on 15 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: 15 August 2017

Actions:

Independent Objector: 

1. Staff will try to get a better understanding of the IO budget and how it was utilized.

2. Decide whether to invite the IO to a meeting.

 Notes:

1. Plenary Update:

-- Full WG met on 07 August and discussed application submission method and predictability framework -- intersection with the framework this WG is working and the interplay with the implementation policy framework.  These are topics relating to the drafting team on overarching topics.

-- Work Track 5 Geographic Names at the Top Level: outreach to solicit leaders from the GAC, ALAC, ccNSO, and GNSO.  Still in the process of gathering volunteers.  Question: Is there a deadline by which names should be suggested? Response: Suggested nominees by 18 August, but no nominees received yet.

-- Next meeting is 29 August.

2. Follow-up from last time:

a.  RySG comment on gaming and “two bites at the apple” -  CPE & objections?

-- Uncertainty concerning the RySG comment.  Asked for someone from the RySG could join this call.

-- The genesis of the comment was looking at the CPE and objection process.  Some instances in the past round varied from the process.  Two ways to knock out applicants.  Didn't think that the same party would use both CPE and objection.  Some examples where some used both processes, which provided inconsistent results.  Comments suggests that if you are applicant go through CPE and if not an applicant go through the objection process -- don't use both processes.

-- Question: It is unclear as to who has the right to do what if the applicant would have to choose one or the other.  Are applicants required to respond to any objections that come in?  Response: The thinking is that if you are a community applicant you go through the CPE track and you don't objection.  If you aren't a community applicant then you are free to object.

-- One thing that is important to go back to is the purpose of these processes.  The purpose of the objection phase is to eliminate harm.  It is important to note that that didn't always work out.  Selecting CPE doesn't mean the community is going to achieve community status.  Don't see how you can force the applicant to choose between the two.

-- Also had comment that one of the problems with community is that it was an all or nothing endeavor.  

-- Question: Are the two elements/criteria the same?  Response: No, they aren't.

-- Question: Do you think going forward there should be some forewarning that an applicant will apply for CPE? Response: Yes, if after the deadline.

b.  Review of IO’s Final Activity Report of the Independent Objector:

The full report is available here: https://www.independent-objector-newgtlds.org/home/final-activity-report/.  The Summary Document is attached. 

-- On Limited Public Interest -- only the 4th ground should be retained.

The fourth ground is “A determination that an applied-for gTLD string would be contrary to specific principles of international law as reflected in relevant international instruments of law.”

-- Question: One of the specific LPIO was a human rights objection to an application.  It may have been a subset of the 4th ground.

Other 3 Grounds:

1) Incitement to or promotion of violent lawless action; 2) Incitement to or promotion of discrimination based upon race, color, gender, ethnicity, religion or national origin, or other similar types of discrimination that violate generally accepted legal norms recognized under principles of international law; 3) Incitement to or promotion of child pornography or other sexual abuse of children; or...

>From the IO report: "I believe that the first three grounds should be removed from this list since I have noted that it can mislead people who tend to think that these three grounds are the only reasons which could trigger a Limited Public Interest Objection. The fourth ground is very general and includes in any case the three other grounds. Thus, for the sake of clarity, I am of the position that only the fourth ground should be retained in a future version of the AGB."

-- See IO cases and outcomes on pages 27-29 (loss rate).

-- Can we determine how much money was spent on the IO?  Might need to be a gate keeper.  

-- Might want to look at .hospital.

IO Recommendations (pages 54-56):

#4: Giving IO discretionary power in deciding if an application is "highly objectionable"...

-- Strongly object to the recommendation, but there should be clearer guidelines as to what does and doesn't constitute a highly objectionable application.

#5: IO be explicitly granted access to other objections in "extraordinary circumstances" within a reasonable time.

-- The IO took the position that it could be an extraordinary circumstance if another objection was filed against the same string on the same ground -- but object that the IO would have access to other objections or get additional time.

#6: Include an Initial Notice Procedure:

-- Regular applicants would seem to be left out of the process.

-- If there is such a procedure there must be clearly designated criteria for the IO's determination.  Don't leave it up to the IO's discretion.

-- Example of how much discretion this IO thought he had.

#7: How to handle conflicts of interest:

-- Applicant would have to go through the whole process before the conflict of interest is delineated.  Who decides there is a conflict of interest is very murky.   Propose that in the event that an applicant thinks there is a conflict of interest if they could meet criteria that would be showing on its face.  For the applicant raising a conflict of interest there should be some reimbursement of application fees up until that point.

-- Seems like it is another gate keeping issue.  It should be determined very early on.  Not sure who determines whether there is a conflict of interest.  Need a mechanism for that.

-- Wouldn't there also be a possibility that the dispute resolution panel could weigh in on conflicts of interest?

-- This is an area that is significantly broken.

-- There could be an alternative that would work more like mediators or arbitrators with a group of individuals.

#8: Appeals following a determination upon an IO's objection -- reconsideration process is not suitable.

-- This is something we should spend time thinking about the possible appeals mechanism and who could appeal.

-- The notion of appeals is not limited to the objection by the IO.

-- Distinction: A lot of these recommendations from the IO are more broad/general than just related to the IO.

-- Elements to the discussion: 1) principle of an IO; 2) rules, framework, implementation are correct; 3) execution of this IO (results for the money).  Have the Work Track decide where they want to draw their attention.

>From the chat:

Emily Barabas: see IO cases and outcomes on pages 27-29 

Steve Chan: @Paul, we'll try to get a better understanding of the IO budget and how it was utilized

Kristina Rosette (Amazon Registry): I thought I crunched all these numbers in Copenhagen  . . .

Kristina Rosette (Amazon Registry): Do we have any independent verification that the IO's claim that LPIO grounds 1-3 are, in fact, covered by #4?  

Paul McGrady: @Steve - thanks.  PP. 27-29 only sets forth his very high loss rate, not how many dollars were spent on his many losses

Paul McGrady: +1 Jon - with such a high loss rate, we need to (at a minimum) change the elements. 

Jon Nevett: +1 Kristina on last two points

Anne AIkman-Scalese (IPC): @Paul and Jon - we need to have a gatekeeper on LPIO other than just the IO him or herself.

Paul McGrady: +1 Kristina.   

Susan Payne: completely agree Kristina, it shoud be a preliminary determination

Cheryl Langdon-Orr (CLO): yes early identification of any COI. is essential 

Kristina Rosette (Amazon Registry): In case you're looking for some light reading, here's my May 2013 letter to ICANN on behalf of  Patagonia regarding the IO's conflict of interest.  https://www.icann.org/resources/correspondence/rosette-to-jeffrey-2013-05-17-en

Jon Nevett: and who could appeal?

Paul McGrady: Would the appeal be limited to the final decision (merits) or also include initial decisions (e.g. standing, IO conflicts)?

Phil Buckingham: and the time limits 

Kristina Rosette (Amazon Registry): After all the hours spent on Accountability, I can't even imagine that we'd consider depriving applicants of the opportunity to use those mechanisms for IO objections.  (Specifically not addressing appeals.) 

Anne AIkman-Scalese (IPC): @Kristina - great letter  - we need to learn from history on this issue of conflict of interest.  This has got tobe FIXED!

Paul McGrady: Can we put this issue back at the top of our list for the next call.  Worthy of more than 4 minutes.

Kristina Rosette (Amazon Registry): Has the Board taken any action on the IO's report?  Specifically referred it to GNSO? Something else?

Kristina Rosette (Amazon Registry): +1 Paul

Jamie Baxter | dotgay: without an appeals mechanism it seems that the expectation was that every panel or hired evaluators would get every detail correct on first attempt.

Anne AIkman-Scalese (IPC): The issues arose due to too much discretion in the hands of the IO.  Structure revisions in decision-making can address these issues so that they don't become issues no matter who has the assignment as IO.

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