POLICY vs. IMPLEMENTAION (was [council] FW: Letter from the GAC regarding IOC/RC Protections)

Marika Konings marika.konings at icann.org
Thu Nov 29 16:49:14 UTC 2012

Thanks, Jeff. As you may recall, we organised a session in Toronto to
discuss the issue of community input and advice, and are taken the input
received as a result of that session as well as the public comment forum
into account. As we are already quite far along in our thinking (you may
recall that a draft flow chart was shared as part of the TMCH), we would
like to be able to at least 'finalise' that work and share it with you. Of
course, this would only be one piece of input, but may help in moving the
discussion forward instead of starting from scratch.

With best regards,


From:  <Neuman>, Jeff <Jeff.Neuman at neustar.us>
Date:  Thursday 29 November 2012 08:37
To:  Marika Konings <marika.konings at icann.org>, Jonathan Robinson
<jonathan.robinson at ipracon.com>, "council at gnso.icann.org"
<council at gnso.icann.org>
Subject:  RE: POLICY vs. IMPLEMENTAION (was  [council] FW: Letter from the
GAC regarding IOC/RC Protections)

Thanks Marika and we appreciate the effort.  Perhaps rather than coming out
with a document from ³staff², you solicit a few volunteers from the
community to help staff in the preparation of this initial cut of the paper.
For too long the community is forced into a reactive mode once staff in
isolation comes up with its position (which may or may not be reflective of
the community¹s thoughts).  Then staff traditionally is in a position to
³defend² its position and the community feels like it is too late to have an
impact.  I do not believe that is the right way to proceed.  If you get a
small group together that works on this initial paper with you, staff does
not have to take on this burden alone and the community can feel like it has
made a contribution.
As part of your commitment to the multi-stakeholder bottom-up process, would
that be a possibility.  As I said earlier, I would be happy to volunteer if
others would be comfortable with that.  I am also happy to let others take
my place.

Jeffrey J. Neuman
Neustar, Inc. / Vice President, Business Affairs


From: Marika Konings [mailto:marika.konings at icann.org]
Sent: Thursday, November 29, 2012 11:17 AM
To: Neuman, Jeff; Jonathan Robinson; council at gnso.icann.org
Subject: Re: POLICY vs. IMPLEMENTAION (was [council] FW: Letter from the GAC
regarding IOC/RC Protections)

Jeff and All,


Regarding the issue of policy vs. implementation, this is an issue that
staff is currently working on also in light of the paper that was published
for comment a short while ago on community input and advice (see
4sep12-en.pdf). We hope to be able to share something with you in time for
the next GNSO Council meeting.


With best regards,




From: <Neuman>, Jeff <Jeff.Neuman at neustar.us>
Date: Thursday 29 November 2012 06:55
To: Jonathan Robinson <jonathan.robinson at ipracon.com>,
"council at gnso.icann.org" <council at gnso.icann.org>
Subject: POLICY vs. IMPLEMENTAION (was [council] FW: Letter from the GAC
regarding IOC/RC Protections)


We have a very serious problem here that needs immediate attention.  I am
not referring to the merits of whether any of these organizations deserve
protection or not, or whether there should be additional safeguards for IP
owners in the new gTLD process or whether certain Whois Review team
recommendations could be put into place .  Forget all of that.  Forget the
merits and substance of these important issues.
The real issue is that new reliance on the terms ³policy² vs.
³implementation.²  This is the issue that should receive top priority.  To
quote Alan Greenberg (or at least paraphrase), when one group wants
something in place without using the policy process, they call it
³implementation.²  Those that oppose it, call it ³policy.²  While that
statement was made several times by Alan partly in jest, that statement does
have merit.
Lets look at the following 3 examples:
1.      IOC/RC ­ As the letter sent around by Jonathan shows, the GAC is
thoroughly annoyed with the GNSO for starting a policy process on the
protection of IOC and Red Cross marks.  They believe (although unstated),
that they have exclusive jurisdiction over these types of public policy
issues and do not want the GNSO to take ³years² to work out whether these
organizations (which they believe are protected by law) should receive
protections in the new gTLD process.  Without commenting on the merits of
this argument, look at what they have done.  They have called the
protections as nothing more than ³implementation² and therefore, the GNSO
should explain itself as to why we believe we have a right to start a policy
process on it.  After all, implementation can just be enacted by the Board.
There is no need for the GNSO to get involved, in their viewŠnor do they
want it.


2.     Whois Review Team:  The ICANN Board sought guidance from the entire
Internet community on whether the recommendations involved ³implementation²
or ³policy².  Why? Because if it is implementation, there is no need to
involve the GNSO community and it can just be enacted.  Those that supported
the recommendations wholeheartedly called them ³implementation.²  Those that
opposed the recommendations called it ³policy.²  I believe that many who
called it policy actually truly believe there are policy issues involved,
but some called it policy, to have it go through the long drawn out process
we call a PDP (with the hopes that it dies a slow death).  Neither side of
this debate is blameless.


3.     The now infamous New gTLD ³straw-man²:  For the record, I was a part
of the group that discussed the straw man in Brussels and LA over the past
few weeks.  I found those discussions very useful and appreciate the efforts
being made by the new ICANN CEO, who I have a tremendous amount of respect
for.  I believe he truly will make a huge positive impact on ICANN for many
years to come.  But, now the debate has turned into what is policy and what
is implementation.  The IPC/BC and their representatives have called all of
their proposals ³implementation².   The NCSG, Registries, Registrars and
Applicants have called much of it policy.  ICANN staff has now weighed in on
their thoughts and have classified certain items as implementation (thereby
negating the need for GNSO policy development), and other items as policy,
thereby requiring extensive involvement from the GNSO community ­ note I did
NOT say necessarily PDP).


I believe we all need to take a step back from the issues immediately and
decide once and for all an agreed upon bottom-up multi-stakeholder
definition of what is ³policy² and what is ³implementation.²  Or at the very
least a framework for making that assessment when issues arise.  I would
advocate for a cross community group made up of members from ICANN staff,
the GNSO, the GAC and others to come together to figure this issue out, so
that we get out of this rut we are now in.  At the same time, we need to fix
the image of the GNSO policy processes so that they are no longer feared,
but embraced.  They need to not be used as vehicles for delay, but rather
utilized for the common good.
If we are able to do this, I believe many of the issues we are now having
will become easier to resolve (and we can focus on the merits).  If not, I
see these issues getting much worse over the coming months/years.  I believe
the future of the GNSO, and even the multi-stakeholder model in general
hinge on the definition of these 2 words.
I would be very happy to volunteer to serve on such a group.


Jeffrey J. Neuman
Neustar, Inc. / Vice President, Business Affairs


From:owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On
Behalf Of Jonathan Robinson
Sent: Thursday, November 29, 2012 5:00 AM
To: council at gnso.icann.org
Subject: [council] FW: Letter from the GAC regarding IOC/RC Protections
FYI.  Please see the attached letter received from the GAC last night my

From: GAC Secretariat [mailto:gacsec at gac.icann.org]
Sent: 28 November 2012 21:38
To: jonathan.robinson at ipracon.com
Cc: Steve Crocker; Fadi Chehade; Heather Dryden; Maria Häll; alice at apc.org;
Choon Sai LIM (IDA)
Subject: Letter from the GAC regarding IOC/RC Protections

Sent on behalf of Heather Dryden, GAC Chair


Dear Jonathan, 


Attached please find a letter from the GAC regarding IOC and Red Cross/Red
Crescent protections.


Best regards, 


Jeannie Ellers 


Jeannie Ellers
Manager, GAC Coordination
Internet Corporation for Assigned Names and Numbers
1101 New York Avenue NW, Suite 930

Washington, DC 20005
Ph. +1 202 570 7135
M. +1 310 302 7552

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