[council] PDP-Feb06 Terms of Reference and the "Picket Fence"

[Daniel Halloran]

Bruce,

This note is with respect to the resolution from the GNSO Council on  
28 September 2006:

"The GNSO Council resolves:

a) To instruct the PDPFeb06 task force to continue its work, to  
appoint an interim chair

b) To instruct staff to propose a work schedule in agreement with the  
interim chair and Task Force this week and carry it out

c) To ask the General Counsel within 14 days to list all ICANN  
agreements sections on consensus policy

d) To ask the General Counsel within 14 days to compare and contrast  
the PDP06 Terms of Reference with the so –called "picket fence"  
consensus policy areas and provide a without prejudice assessment of  
likelihood of in or out of scope indicating uncertainty as necessary.

[1] List all ICANN agreements sections on consensus policy

General Counsel's office has sent tables to the PDP-Feb06 Task Force  
on October 4 and October 9 providing an overview and a comprehensive  
listing of all the relevant agreement provisions.  The complete set  
of contractual provisions is included in a document currently posted  
on the GNSO Drafts and Working Documents" page at <http:// 
gnso.icann.org/drafts/>.  The General Counsel's office would  
appreciate any feedback Council members could offer to make those  
documents more useful for you.

[2] Compare and contrast the PDP06 Terms of Reference with the so- 
called "picket fence" consensus policy areas and provide a without  
prejudice assessment of likelihood of in or out of scope indicating  
uncertainty as necessary

The Council's second request turns out to be much more complex -- in  
effect the Council has asked for legal opinions on hundreds of  
complex questions: the terms of reference for PDP-Feb06 include  
eleven (11) separate questions (e.g. whether or not there should be a  
policy guiding renewal, whether or not there should be a policy  
guiding registry fees to ICANN, etc.), and some versions of the  
"picket fence" of policy topics for which a Registry Operator has an  
ongoing contractual obligation to comply with New or Revised ICANN  
Specifications and Policies include ten (10) or more different  
categories of topics.  The "compare and contrast" exercise the  
Council requested requires first speculating what sort of  
recommendation might come out of the PDP on each of the eleven  
questions, and then hypothesizing whether or not such a  
recommendation might fall under one or more of the ten or so  
categories of topics for consensus policies.  This task is further  
complicated by the fact that there is no one formulation of "the"  
picket fence, but instead the topics for consensus policies vary from  
contract to contract.  Some contracts (.AERO, .COOP, .MUSEUM, .NET,  
and the proposed new contracts for .BIZ, .COM, .INFO and .ORG) also  
include not just a list of subjects that are agreed to be within the  
"picket fence" set of topics for policies but also a list of topics  
that are expressly agreed to be outside the "picket fence" of topics  
for policies.

Recent agreements have identified five main policy areas where a  
Registry Operator has a contractual obligation to comply with new or  
revised policies:

(1) issues for which uniform or coordinated resolution is reasonably  
necessary to facilitate interoperability, Security and/or Stability  
of the Internet or DNS;

(2) functional and performance specifications for the provision of  
Registry Services;

(3) Security and Stability of the registry database for the TLD;

(4) registry policies reasonably necessary to implement Consensus  
Policies relating to registry operations or registrars; or

(5) resolution of disputes regarding the registration of domain names  
(as opposed to the use of such domain names).

This compares with the six main topics of PDP-Feb06:

1. Registry Agreement Renewal

2. Relationship between registry agreements and consensus policies

3. Policy for price controls for registry services

4. ICANN fees

5. Uses of registry data

6. Investments in development and infrastructure

The majority of the topics above seem to relate to the framework of  
the registry agreement itself, rather than to the set of five topics  
areas where a Registry Operator must comply with new or revised  
policies after the signing of the agreement.  The topics above would  
appear to be most relevant in the development of a new framework  
registry agreement for future negotiations.

The Council's resolution indicated that these requested legal  
opinions could be offered by the ICANN General Counsel's office  
"without prejudice," but in reality there is no such thing as a  
"policy-development privilege" ... any statements that ICANN's  
lawyers make on a public mailing list about the interpretation of  
ICANN's contracts or the applicability of ICANN's policies could be  
admissible if relevant in any current or future litigation involving  
ICANN.  The initial Issues Report for PDP-Feb06 <http:// 
gnso.icann.org/issues/gtld-policies/issues-report-02feb06.pdf>  
included the General Counsel's opinion that the focus of the PDP as  
initially framed by the Council was not "properly within the scope of  
the ICANN policy process and within the scope of the GNSO."  The  
Council subsequently restated its intended focus in its adopted terms  
of reference <http://gnso.icann.org/issues/gtld-policies/tor- 
pdp-28feb06.html>, but it remains difficult to speculate whether or  
not particular hypothetical recommendations that could be made by the  
task force would be within the scope of the ICANN policy process or  
the "picket fence" of topics for policies in ICANN's agreements. In  
light of the variations in the Registry Agreements and the lack of a  
specific policy recommendation to the ICANN Board, the General  
Counsel's office cannot provide any more specific information at this  
time.

I hope the above information is helpful.  Please let me know if you  
have any questions or if I can be of any other assistance.

Best regards,
Daniel Halloran
Deputy General Counsel
ICANN