[Gnso-newgtld-wg-wt3] Actions/Discussion Notes: Work Track 3 Sub Team Meeting 29 August

Tue Aug 29 17:47:59 UTC 2017

Dear Work Track members,

Please find below the action items and discussion notes from the call on 29 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 documents referenced on the call are attached and excerpts from the chat room are included below.

Kind regards,

Emily

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Action Items and Discussion Notes: 29 August 2017

1. Plenary Update:

-- Last night the meeting went through the work tracks and reviewed where they were, meetings coming up, and topics covered.

-- Status of work track 5.

-- Flexibility and predictability framework -- several scenarios were discussed.  Asked to continue the discussions online.

-- Continue to go through the overarching themes in following meetings.

2. Independent Objector – Unanswered Questions:

-- Discussed previously the idea of an appeals mechanism.

-- Remind everyone -- we will be reviewing the subject of accountability mechanisms.  Will circle back to the independent objector issue.  Make sure we have covered an accountability mechanism.  Will not take more time on that right now.

-- Question: Have we made the decision to keep the IO?  Answer: The ask at the last call was to discuss an appeals mechanism for the IO.  Will come back to the question of whether there will be an IO.

-- Looking for volunteers to help drive this discussion offline.  First, with regard to whether there should be an IO: If we look at our notes there was a sense that perhaps the community is mature enough now that we might not need an IO.  The community may be able to look out for itself.

-- Now in discussions we have been talking about having an IO and how.  Graphic from staff on IO and how it might work.

-- Proposal: Rather than a single IO there could be an IO standing panel.  

-- Budget: Staff has done some work to extract the information.

-- Get a sense of where we want to go and how we want to tackle this.  Do we want to try to reach consensus first on yes/no on IO?  Or are we going to talk about issues of fixing it?

Discussion:

-- The 20-million-dollar figure is an enormous amount of money.  Per staff the actual spend was around $2.5 million.  Even that amount for two wins is high.

-- It is inappropriate to look at it just as bang for the buck.  Need to go back to what was the original purpose.  Not just for people aware of possible objections.  Changes in IRP may make it easier now.  In terms of making an objection it was also to cover the concerns of people who may not have been paying attention.  While there is a need to do it better -- having one person may not be the best idea, but finding a way to do it is important.  Need to find a new way to solve the problem of what about those things that are objectionable to some groups who may not be paying attention.  We can make things more predictable by not having objections at all, but not sure we are going for that level of predictability -- need is still there to try not to cause harm.

-- Problem with the concept of the IO, not just the cost.  The concept there can be this body that stands apart from everyone else and can decide what is in the best interest for the world.  IO is not responsible for what happens at ICANN, which is a design flaw.  Need to make sure that we build into our processes mechanisms to make sure that those who are included can be included.

-- Favor a mechanism for objections based on the global public interest.  Sensitive to the fact that money shouldn't be wasted.  Shouldn't be just one IO that just files objections to justifies the salary.  It is not a good structure.  Also not good that the Board should decide if a particular application is in the public interest.  That gets into content regulation by the Board.  Concern about access and ability to file an objection.  It is extremely expensive to file an objection.  Suggest a different structure of a standing IO panel, similar to IRT panel.  Then if there is a conflict of interest you have to be able to disqualify that person right away.

-- We may need to make adjustments -- maybe a panel would fix a few of the problems, maybe not.  Need to put substance to the "global public interest".  It is an expensive process and there is no way to do it unless we have a process similar to this. Strongly support keeping the process even if we have to fix it.

-- It is a false dichotomy that either we have an IO on one hand and the only other choice is to foist this off to the Board.  There are other objection mechanisms, some of which could be tweeked to work well. 

-- We can do it other ways, but money seems to be an issue.  For example, we could set up a fund for those who don't have the resources -- but that could be gamed and could cost more money.  Need to funnel the funds into a source that we can guide and not make it too open ended.

-- Winning 2 out of 17 is not a good record and need to look at why that was the case.

-- Why is a panel better?  The reason would be that if one person makes that determination and there are no gates on that process then that is problematic.  The word "independent" is important.  If there is a panel of 7 and 4 vote that there is a global public interest and an objection should be filed then there is a gate.  Agree that there is a financial barrier.

-- Question: Has there been a review of the IO's performance and how it went?  How we got 2 for 17?  If there was a system to get 2 for 4 instead of 2 for 17.  That would be interesting to explore.

-- Some support for a panel; could be an arbitral panel of 3. Or a panel that controls a fund.

-- Shouldn't lose sight of how the global public interest is represented.  Either look at the flaws with the previous process or take a different tack.

-- The problem may also have been with the objection evaluation panels and the criteria they used and not in the IO.

>From the chat:

Paul McGrady: How much was spent on the I.O. for his two victories in the last round?

Mike Rodenbaugh: I recall his budget was more than $20m

Steve Chan: Budget was a @24.8 million but actual spend was around $2.5 million

Robin Gross: It makes less sense to talk about fixing details if we are going to nix the concept.

Steve Chan: Budget was a @24.8 million but actual spend was around $2.5 million

Karen Day: my bad all!  Only 2. 8 was spent

Mike Rodenbaugh: ah, thanks Steve, big difference....

Jim Prendergast: $2.5 million for IO budgte and untold milliosn spent by other applicants who prevailed

Anne Aikman-Scalese (IPC): it cannot be 20 MM

Jim Prendergast: and the money spent by applicants denefing themselves against IO objections.  I dont think we have that figure and probably impossible to get

Greg Shatan: Why was this a good idea in the first place?

Jim Prendergast: To Annes point on Board objecting - several of them were conflicted in 2012 and may be in next process so it would only be a subset of the board.  I dont think that is desirable

Jamie Baxter | dotgay: +1 Anne .. it seems apparent that the Board neither wants to make those decisions, or has the tools to make them when when it comes to having a clear understanding/definition of "public interest"

avri doria: Robin, empowering the Board with the Global Public Interet objections is another mechinism for hadling them.  But are we sure we want to hand that task to them, and to have the Board judging each application for its GPI?

Greg Shatan: I'm trying to recall who thought it was a good idea and why....

Robin Gross: Last time I checked, the board is already there.

avri doria: Policy set the goal of handling these issues, AGB decided on how.

avri doria: only in exception processing at the end. not in terms of being th first address for such appeals.

Mike Rodenbaugh: I don't see how a panel of IOs solves any of the problems we had with just one IO

Robin Gross: I tend to agree, Mike, as I see the concept flawed.

avri doria: and rember all the IO could so was file an objection.  not make the determination.

Jamie Baxter | dotgay: +1 Alan

Jim Prendergast: agree with Alan on his points about kicking this to the Board

Anne Aikman-Scalese (IPC): Because it's not one person determining Global Public Interest - for example, it is a panel of 7 experts and they vote - 4 out of 7 means the Limited Public Interest Objection is filed.

Mike Rodenbaugh: my biggest problem with IO was that, even if he decided not to object (after lengthy deliberations with one of my clients), or if he later lost his objection, that did not stop anyone else from objecting on the same basis (incl. governments).  So it greatly increased costs to applicants, with no benefit to anyone

Robin Gross: The IO process seems to be expanding the types of objections we initalially created by this "in the global public interest" test.  That is dangerous.

Greg Shatan: In 15 out of 17 cases, the IO's judgment about when a GPI filing was warranted were found to be wrong.  If the IO was a baseball pitcher, he'd be cut from the team....

avri doria: (personal) Greg, that is a reason to find a better mechanism, not to eliminate pitchers.

Jim Prendergast: what would be the soure of those funds?

Jim Prendergast: would it be an application tax like we had for the ICANN legal defense fund?

avri doria: (personal) Jim, it is part of the expense of processing applications  justly.

Robin Gross: Wouldn't a better solution be to build this concern into our own processes, rather than outsource "globlal public interest" to an outside body?  "Independent" also means no responsibility or accountability on some level.

Paul McGrady: @Anne - but those "real money" events happened to the 15 winners, brought on by a defective I.O. mechanism.

Jim Prendergast: @avri - I dont disagree  but in other WTs we have people arguing to cut the application feees as low as possible to spur demand but this seems like somehting that would add to the cost.

Anne Aikman-Scalese (IPC): @Paul - I agree.  That is why we have to have "gates" that put a check on unlimited "Limited Public Interest" Objections

Anne Aikman-Scalese (IPC): Unfortunately I think the qualification for the fund would  take forever.

avri doria: (personal) the problem may also have been with the objection evaluation panels and the criteria they used and not in the IO

Meeting with/questions for the IO:

-- Staff is looking into whether the IO can join one of our meetings, but we should formulate questions ahead of time.  There are questions that need to be explored before we can come to a consensus.  What is the best way to get those questions together?

Discussion:

-- This review doesn't have to be that hard.  Everything was documented on the IO's web site. Start on our own to develop the right questions.  See: IO website:  https://www.independent-objector-newgtlds.org/home/home/

-- Make sure the questions are not already answered on the web site or in his final activity report.  Helpful to identify the questions and then we can look through the material to see if the questions are answered.  Staff will continue to see if we can make him available.

Action: Start pulling together a list of basic questions that have been raised during the meetings.  Get that to the list so people can add questions they have.

>From the chat:

Paul McGrady: What could possibly be confidential about the activities of a person who is paid to represent the public interest?  

avri doria: I agree with Paul on that, there should not be much secrecy needed.

avri doria: i think it would be valuable

Greg Shatan: Good idea.

avri doria: but that is why i suggested it a few meetings back.

Paul McGrady: Valusable so long as we all stay really nice.

Anne Aikman-Scalese (IPC): Yes - always best to understand the challenges

Greg Shatan: The site is still up.

Mike Rodenbaugh: IO website:  https://www.independent-objector-newgtlds.org/home/home/

Anne Aikman-Scalese (IPC): There may be a difference as to need for Limited Public Interest Objection as opposed to Community Objection.

3. CC2 – Objections – Q 3.1.7 – 3.1.11 (see attached):

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

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

>From the chat:

Mike Rodenbaugh: if both parties agree to 3, then fine; but otherwise 1 must be the default else cost would be at least double for 3

Jamie Baxter | dotgay: +1 Mike

Karen Bernstein: +1 Mike

Anne Aikman-Scalese (IPC): Agree with Mike

Robin Gross: me too

avri doria: i am personally undeccided

Karen Day: Also undecided.  3 people might give a greater outcome but cost could be a factor.

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