[Gnso-newgtld-wg-wt3] Notes and Action Items Work Track 3 Sub Team Meeting 13 February 2018

Tue Feb 13 16:06:47 UTC 2018

Dear Work Track members,

Please find below the action items and discussion notes from the call on 13 February 2018.  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 slides referenced on the call are attached and excerpts from the chat room are included below.

Kind regards,

Julie

Julie Hedlund, Policy Director

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Action Items and Discussion Notes: 13 February 2018

Action Item: In preparation for the next call, Working Group members should read through the slides on String Similarity (attached, beginning page 7) and send any thoughts to the list.

Notes:

1. SOI Updates: No Updates.

2. Plenary Update:

-- Working Group meeting 12 February.

-- Discussed the issue of whether to do rounds, first come, first served, or a hybrid.

-- Realized for the Initial Report we will present the status of our discussions along with different options for public input, citing pros and cons for each option.

-- On track for doing an Initial Report in April; Work Track leaders are producing documents so it is important for Working Group members to comment on them as the links to the documents are shared.

3. Applicant Freedom of Expression – conclusion of last meeting’s discussion:

Slide 4:

-- General agreement that there we be no way to ensure a perfect implementation.

-- Evidence of Failure of Policy Implementation in 2012 Round is difficult to provide -- complex & mixed with other issues such as community and geo names.

-- As with Accountability Mechanisms, final outcome of CCWG-Accountability likely to impact this topic.

Discussion:

-- Second bullet point under prior discussions: the language about "other pressure to restrict the use of words" is partisan, not neutral.  Could say, "government and other concerns regarding words of interest to various constituencies within ICANN".

-- What we are doing is balancing interests.

-- Working Group members will have the opportunity to refine the writing.

-- On the last bullet at the bottom: What outcomes in the CCWG-Accountability would impact this topic?  It was a note that if anything came out of Work Stream 1 or 2 we might need to take note, but it wasn't anything specific.  Sounds like this shouldn't be here -- delete?

-- Here is the language from the Final Issue Report: It should also be noted that the Cross Community Working Group on Enhancing ICANN Accountability (CCWG) seeks to integrate human rights impact analyses within its mission, which should provide guidance to this PDP-WG in its deliberations.

-- Should recognize that there are different views on this.

-- Support the inclusion of "geo names" in the second bullet under "Take Away from Last Call."

-- Any use of human rights impact analyses as a mandatory part of a PDP needs to be decided by the GNSO Council; can't be imposed by the CCWG, which doesn't have the authority to change how PDP policy is done.  This is an ambiguous statement and if it wasn't discussed on the last call it should be deleted.

-- Chartering organizations of the CCWG-Accountability have the opportunity to adopt the CCWG recommendations or not.

-- We are still in the mid-point in this -- where we are going is the report from this Work Track will go to the plenary/PDP WG, and then incorporated into the Initial Report, which will be sent out for public comment.

>From the chat:

Tijani BEN JEMAA: I agree with Anne

Gg Levine: Agree with Anne; language is slanted.

Kristina Rosette (Amazon Registry): For the record (and to avoid any doubt), I support the inclusion of "geo names" in the second bullet under "Take Away from Last Call."

Anne Aikman-Scalese (IPC): @Alan - I am in favor of specifically referring to freedom of expression.  agree with you but i think others do as well.

Cheryl Langdon-Orr (CLO): this cross reference still needs to here in the section as a placeeholder 

4. Accountability Mechanisms – review/refine progress to date:

Slide 6: Open Issues from Prior Discussion & Input

-- Should the process make a distinction between Accountability Mechanisms relating to substantive and procedural issues?

-- Who is an appropriate final arbiter -- Subject Matter Experts? ICANN Board?

-- Do we have agreement that panelists/IO should be subject to conflict of interest policies handled prior to intitiaion of hte substantive matters.

-- Is there a need for a post decision appeal mechanism specific to New gTLD process?

Discussion:

-- Need a post decision appeal mechanism.  Don't believe the current accountability mechanism allow for a substantive review.

-- Need subject matter experts to do any appeals.

-- Can't rely on one level of decision making.

-- Idea 1: Starting panels of no less than 3 members. Idea 2: Substantive review is only available if a dissenting opinion existed in the original decision.   And the existence of a dissenting opinion would be the trigger to allow a substantive review (appeal), but that wouldn't be automatic, it would have to be invoked by a party. 

-- Need to be re-thought how community evaluations take place.

-- Anyone object to some kind of conflict of policy for the panelists/IO? [no objections recorded.]

-- Who should be the final arbiter?  Should be people who can address the problem, which may be Subject Matter Experts or the Board.  Should be empowered to look at the whole picture.

-- Does it always have to be the same arbiter?

-- There needs to be a mechanism that shortens the accountability process.

-- Is this in reference to the post decision appeal mechanism (final arbiter)?  Funnels into the need for a post decision appeal mechanism.  Another commonality is a common arbiter of these decisions.

-- We may need to have a visio-type diagram as to where appeals could come in.  

-- Do we agree that we need to make a distinction between mechanism for substantive issues and procedural issues?   It is clear that on substantive issues that you will need subject matter experts, but not clear for procedural issues.  Could have different rules for how you select the arbiters.

>From the chat:

Anne Aikman-Scalese (IPC): @ Greg - how does new IRP process affect this question?

Greg Shatan: I don’t think it affects it much, for the reasons Jeff is articulating.

Anne Aikman-Scalese (IPC): Okay thank you.

Rubens Kuhl: Idea 1: No panels of less than 3 members. Idea 2: Substantive review is only available if a dissenting opinion existed in the original decision. 

Cheryl Langdon-Orr (CLO): there seems to be no downside to a post decision appeal process... 

Alan Greenberg: @Cheryl, the downside is that it might be used very heavily, but if we design the original decision process better, we may be ableto control that.

Jeff Neuman: Even Reconsideration requires that an action (or inaction) contradicts ICANN's Mission, Commitments, Core Values and/or established ICANN policies.....

avri doria: It does seem the case, speaking personally, that the bylaws cover adherence to policies, but not necessarily to implementations.  Question: after this substnative review mechanism i am assume the bylaws mechansims would still be called on.  so this is an extra review in the process.

Jeff Neuman: So to me that leaves too much wiggle room for the BAMC to deny reconsideration requests even where an evaluator gets something wrong

Jeff Neuman: @Avri - True, but all reconsiderations were denied because nothing empowered the Board to review what an outside panel did

Jeff Neuman: When push comes to shove, I believe the same would happen even under these new bylaws

Rubens Kuhl: Not in a position to speak today. 

Rubens Kuhl: And the existence of a dissenting opinion would be the trigger to allow a substantive review (appeal), but that wouldn't be automatic, it would have to be invoked by a party. 

Anne Aikman-Scalese (IPC): @Rubens - very interest6ing ideas!  Well worth exploring.

avri doria: New IRP has not been tested yet, btw.

Anne Aikman-Scalese (IPC): What about sticking with one panelist but allowing appeal to panel of 3?

Rubens Kuhl: Standing panels would fit FCFS, so depending on the discussion in the full WG, we might have to tune objection processes a little. 

Anne Aikman-Scalese (IPC): Rubens - how do you conduct string confusion objection in FCFS?

Rubens Kuhl: @Anne, that would allow every decision to be appealed, generating a likely heavy load on Org and parties. 

avri doria: one problem i have seen with panels, is that most issue have at least 2 sides to the issue, so whatever the decsion it is will be further appealed.

Kristina Rosette (Amazon Registry): Wholeheartedly support

Jeff Neuman: The other reason for an Appeal is tied to the work that Work Track 2 is doing on the Applicant Terms and Conditions.  If ICANN intends to require applicants to sign Ts and Cs in which it agrees not to take ICANN to Court, then there must be a substantive review through an appeals mechanism

Rubens Kuhl: String confusion had both existing TLDs and applicants as parties. String confusion objection with existing TLDs would still be a possible objection. 

Anne Aikman-Scalese (IPC): Okay Rubens but would this not also be true any time there is a dissent opinion?  Which could be limtied to "I dissent"?

Rubens Kuhl: If there was a dissenting opinion, there is at least a possible cause. 

Rubens Kuhl: I think no decisions, whether in favor or dissenting, should lack reasoning. Every decision, in any direction, should provide reasoning.

Robin Gross: When the ICANN board believes its fiduciary duty is at issue in the case, they must have the last say.  But on issues that don't invoke that duty, it could be other decision makers.

Anne Aikman-Scalese (IPC): Rubens -yes of course as to pre-existing TLDs.  What about applications for .mediator and .mediators in new application process FCFS?  Does the first one filed win even if filed a couple of days before?

Kristina Rosette (Amazon Registry): Personally, I think it's challenging to make a meaningful decision about an appeal mechanism without getting into the details (threshold, standard of review, interplay with other accountability mechanisms, DRP, panelist qualifications, etc.).

avri doria: at the end of most days isn't it the IRP -> Board -> "EC" -> courts

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