[Gnso-newgtld-wg-wt3] Actions/Discussion Notes: Work Track 3 Sub Team Meeting 17 October

Tue Oct 17 16:02:38 UTC 2017

Dear Work Track members,

Please find below the action items and discussion notes from the call on 17 October.  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 document referenced on the call is attached and excerpts from the chat room are included below.

Kind regards,

Emily

--------------------------------------------------------------------------

Action Items and Discussion Notes: 17 October 2017

1. SOIs: None

2. Pre-F2F Meeting Updates:

-- Two sessions in Abu Dhabi.  Saturday, 28 Oct 12:15-15:00.  Each Work Track will have 30 minutes to discuss issues.

-- Second session is 01 November from 08:30 to 12:00 devoted to Work Track 5 on Geographic Names.  All 4 co-leaders are selected.  Had first meeting of the co-chairs yesterday to begin discussion of a draft Terms of Reference.  Will be sending out a Call for Volunteers for the Work Track participants.

-- Topic for Work Track 3 on Saturday: Community Based Applications and Priority Evaluations.  See: https://community.icann.org/x/Wz2AAw

3. CC2 Responses:

a. Applicant Freedom of Expression:

3.2.1 - Noting that the 2007 Final Report on new gTLDs tried to balance the rights of applicants (e.g. Principle G) and rights holders (Recommendation 3), do you believe that the program was successful in doing so?  If not, do you have examples of where either an applicant's freedom of expression or a person or entity's legal rights were infringed?

-- Afilias & RySG: were not able to reach agreement on a response to this question.

-- NCSG: Goal of balancing the rights of applicants and rights holders settled by the Final Report on new gTLDs much continue with special attention to whether the GAC's Advice, Community processes or the reserved names have impacted this goal in any way... [see full quote].

-- No one cited specific examples as requested in the question.

Discussion:

-- The issue of balance is still a work in progress.  Not sure that one should focus on the GAC safeguards.  Could be concerns if there was an expansion of reserved names except for technical reasons.  The whole issue of freedom of expression is more complicated.  

-- Differ with the above interpretation.  See lots of examples of people from companies who want to be able to use words on the Internet in whatever context.  Companies do have freedom of expression rights to words.  Concerned about excluding freedom of expression from the top level.  

-- Would agree that not allowing a top-level name due to sensitivities or because a government doesn't like it are appropriate reasons to take a domain off the table.  These attempts to use power rather than legal rights are troubling.  Rights get balanced against other rights so there is some care.  We do need to distinguish between exercise of rights and exercise of power.

-- Maybe we should think about how to balance these legitimate interests that does incorporate freedom of expression rights.  Principle G was put in right at the end of the first round.  Didn't include implementation guidelines.

-- Closed generics and geographic names also are related to the issue.  May need to look in the plenary to incorporate applicant freedom of expression and protection throughout the whole of the gTLD program -- tracking the dependencies.

>From the chat:

Anne Aikman-Scalese (IPC): QUESTION:  What are equivalents to First Amendment rights in other jurisdictions?  Would be interested to study those statutes to see if there is any balancing language that is similar to U.S. case law.  

Robin Gross: Article 19 of the Universal Declaration of Human Rights is Free Expression (not a statute, but laws get implemented with that in mind)

Anne Aikman-Scalese (IPC): Thanks Robin. Have been aware of Article 19 for some time.  Was just interested in implementing laws that you described.    I

Phil Buckingham: Agreed Karen .  Do we have a clearly defination of "reserved names " that we need to use across all work tracks? 

Anne Aikman-Scalese (IPC): COMMENT:  It seems the "balancing" described by both Greg and Robin is a fruitful area for exploration as to Top Level Domains

b. Accountability Mechanisms:

3.5.1 – Do you believe that the existing accountability mechanisms (Request for Reconsideration, Independent Review Process, and the Ombudsman) are adequate avenues to address issues encountered in the New gTLD Program?

-- General Comments from GAC, John Poole, and NCSG.

-- Specific responses received from Jim Prendergast, BRG, RySG, Afilias and ALAC.

Discussion:

-- With regard to the BRG, RySG, and Afilias comments we have discussed the appeals process -- should we narrow our focus to just the application process and appeals related thereto?

-- More generally on concerns about what went wrong -- these were all big topics of conversation in the CCWG-Accountability.  Think we have made a lot of reforms to the accountability mechanism.  They are new so we don't know if they are working well or not.  

-- Concur with the suggestion that appeals mechanism should be put in place.  Consider how an appeal mechanism would work when there are third-party evaluations involved.  What is happening now is finally after many years there is a look back to the third-party evaluators to some of the things that were promised.  Maybe an appeals mechanism makes more sense at the front of hte process.  An appeals mechanism could have cut through many of the issues early on.

-- Tend to agree that it would be a good idea to have a more direct appeal process where there were evaluators or panelists involved.  Not something to a one-size-fits-all approach.  Need to focus on this for the next level.  Appeals process enables conflicts between decisions to be resolved.

-- You have to look at this in context of what Work Track 2 just looked at -- the waiving of the right to hold ICANN accountable if violates the terms of the AGB.  If we do not have an appeals process there will be no ability to have any of the decisions substantively reviewed, only for violation of the mission, commitment, Bylaws, etc.  Don't think we can NOT have an appeals process.  Doesn't have to be like a judicial proceeding.  Has to be some way to challenge ICANN's or a third-party action.

-- Seems unclear as to whether third-party action is a responsibility of the staff or Board.  Are the evaluators the responsibility of the Board or the staff because they hired them?  That loop needs to be closed.

-- Not sure that if we address inconsistencies in the processes that we won't need an appeals process, but the process does need to be swift.

>From the chat:

Anne Aikman-Scalese (IPC): COMMENT: Introducing an appeals process will significantly delay decisions and could be used as a tactic for delay even when decision is actually justified.  I actually hope the ICANN process is more efficient and more swift than judicial systems - can we keep it that way without sacrificing rights or not?  COMMENT

Greg Shatan: I think we need to focus on a relatively lightweight process.  Delay is not as big an issue as “getting it wrong.”

Greg Shatan: Appeals generally do not have further discovery. They can be relatively swift.

Anne Aikman-Scalese (IPC): COMMENT:  if we address inconsistencies in the processes, we likely won't need the appeals process.  Maybe if the appeals process is based on a standard like "abuse of discretion" or "clear error" as noted in the Google comment  - but this needs to be a swift process - not go on for years.  COMMENT

Robin Gross: Having an appeals mechanism tailored exclusively on tld decisions would make sense given it is so different from the other org management type of issues that go into the regular accountability mechanisms.

Phil Buckingham: I agree Jamie . Evaluators need to be evaluated themselves 

Anne Aikman-Scalese (IPC): I think Jeff's approach is reasonable if we want to adopt appeals process.  It should not be a "new trial" of all facts.

Jamie Baxter | dotgay: @Anne ... just like the other accountability mechanisms, i think there would need to be a focus to the request for appeal.

Anne Aikman-Scalese (IPC): @Jamie - could you elaborate on "focus to the request for appeal"

Jamie Baxter | dotgay: @Anne .. my thinking is that you would need to state your reason for appeal, just like you currently do with reconsideration requests, etc. For example it could be that key evidence/research supplied by applicant contradicts the research relied on by the evaluator (despite ever having to provide the research). this is in part the reason why the current CPE investigation is underway. 

Anne Aikman-Scalese (IPC): COMMENT: re addressing inconsistencies that would reduce need for appeal - Panelist training seems very appropriate.  Also, panelists have to be encouraged to request additional briefing on information they lack, rather than making assumptions about evidence they don't have.  COMMENT

Jamie Baxter | dotgay: +1 Anne

3.5.2 – Should there be appeal mechanisms, specific to the New gTLD Program, introduced into the program? If yes, for what areas of the program (e.g., evaluations, objections, CPE)? Do you have suggestions for high-level requirements (e.g., if the appeal should be limited to procedural and/or substantive issues, who conducts the review, who is the final arbiter, safeguards against abuse, etc.).

-- Comments from INTA, Google, BRG, Afilias, and RySG.

Discussion:

-- The delayed appeals was an interesting concept, but not sure how people would not be accused of gaming the system.  Some hybrid approach might make the most sense.

4. AOB:

-- Since Avri Doria has stepped down as a Co-Chair we want to thank her for her time and effort to help the Work Track Co-Chairs, Karen and Robin.  She has been invaluable to this Work Track.

>From the chat:

avri doria: thanks.  it was great working with you.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-newgtld-wg-wt3/attachments/20171017/966fd7f4/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: CC2_17Oct17.pdf
Type: application/pdf
Size: 278252 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/gnso-newgtld-wg-wt3/attachments/20171017/966fd7f4/CC2_17Oct17-0001.pdf>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: smime.p7s
Type: application/pkcs7-signature
Size: 4630 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/gnso-newgtld-wg-wt3/attachments/20171017/966fd7f4/smime-0001.p7s>