[council] potential annex to Jeff's draft letter

Wed Jan 30 18:02:21 UTC 2013

All,

I believe we are heading to one of two options:

1.       Adopt the substance of Jeff's draft with agreed changes.  I believe
that we will need to reflect Brian's / the IPC input on this and so it may
need some changes in order to do so. 

2.       Write to Heather / the GAC indicating that we are working on this
but need a little more time.

Consider also that want to limit the extent to which we go into the Policy
vs Implementation issue here since this is the subject of a broader and
longer term initiative.

Thanks.

Jonathan

From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On
Behalf Of David Cake
Sent: 30 January 2013 17:49
To: Neuman, Jeff
Cc: Winterfeldt, Brian; council at gnso.icann.org
Subject: Re: [council] potential annex to Jeff's draft letter

I am supportive of Jeff's position - I'm in favour of sending the letter as
it was drafted (with the suggested changes from Thomas in the appendix). I
believe Brian's suggestions would change the letter in such a way that it
would no longer represent the views of the majority of council. 

Regards

            David

On 30/01/2013, at 6:54 AM, "Neuman, Jeff" <Jeff.Neuman at neustar.us> wrote:

Thank you for this Brian.  I think we face a dilemma here because your
revisions not only gut the letter that was written by us, but also in many
respects represents a complete reversal of the positions taken by most of
the members of council on the previous council calls.  We can of course make
some updates based on the new paper ICANN staff just released, but remember
that that was not out when I initially sent the letter.

So, we now have two versions of the letter which I do not believe cannot be
reconciled.  If it just the IPC that supports this new version, then we
should send the original version and allow the IPC to include comments as a
minority report.  If, however, there is other support for this version, then
we have an issue to work through.

With respect to the comments raised in the e-mail below:

o    We disagree with the notion that "the impact of the instant PDP is to
challenge, or at least question, not only the GAC's proposed criteria for
protection," or "the GAC's determination to advance protection for the
specific two organizations that meet that criteria."  This was carefully
considered by the Council when it chose to implement the PDP and rejected by
those voting in favor of the PDP.

o    I don't believe we said that the sole remit of the PDP was to look at
exceptions, but rather, that was listed as an example.

o    I have no objection of including a footnote that the IPC did not
support the PDP, but to change the entire letter simply because one
constituency didn't agree to not seem to be the right approach.

o    The policy framework put out by ICANN staff is still under discussion
and should not be used for any other purpose until that document has been
thoroughly vetted. We appreciate the fact that the IPC believes that the
definition of policy is overbroad, but we have taken this definition from
what has been used in the past by ICANN in actual situations to look at
actual issues to determine whether it is in scope for the policy process.
It is the only community accepted definition that there is.

o    On the legal issue of intermediary liability, I could cite a number of
legal cases in the US, including the Lockheed Martin case, Brookfield, etc.
but we wanted to keep the letter short and to the point.  I also have a case
we litigated in Belgium that states the same thing that could be cited
involving the droit.biz domain name.

In short, we as a council need to decide what to do.   The registries are in
favor of sending the letter as it was drafted (with the tweaks from Thomas
on the Appendix).  The IPC comments would drastically change the letter in a
way that defers to the GAC on everything policy-related, which we believe
represents a contravention of the ICANN Bylaws (where the GNSO is charged
with policy making for gTLDs) and a potential break down of the
multi-stakeholder process.  Don't get me wrong, the governments are vital
for the multi-stakeholder process to work and we believe their
opinions/advice should be weighed heavily. But they cannot be the
"be-all-end-all" of policy with respect to gTLDs.  This is not only an issue
with respect to the IOC/RC and IGOs, but also Whois, law enforcement
activities, etc.

We need to find a way to all work together.

Best regards,

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 OfWinterfeldt, Brian
Sent: Tuesday, January 29, 2013 8:16 PM
To: council at gnso.icann.org
Subject: RE: [council] potential annex to Jeff's draft letter

Dear all:

As you may already be aware, I have a different point of view on the
Council's response to the GAC with respect to the ongoing IGO-INGO PDP. 

Having informally spoken to GAC representatives about this issue, here are
some personal comments, that are shared by IPC leadership, as well as a
proposed redline that I would like to have on record and I hope the Council
will take into consideration.

o    The rather broad scope of the current IGO INGO PDP, which considers
"whether there is a need for special protections at the top and second
level" of all gTLDs, has the practical effect of second guessing GAC advice
with respect to international legal norms and public policy.  In other
words, whether intentional or unintentional, the impact of the instant PDP
is to challenge, or at least question, not only the GAC's proposed criteria
for protection, but also the GAC's determination to advance protection for
the specific two organizations that meet that criteria.

o    Please bear in mind that the GAC was careful to propose protections for
Red Cross designations, Olympic words and a finite list of IGO acronyms for
new gTLDs only.  I cannot recall anyone ever recommending or requesting such
protection in all existing gTLDs as well.  Thus, the Council's response to
the GAC needs to fully explain any underlying rationale for the unilateral
decision to broaden the scope of the instant PDP well beyond GAC advice to
include existing gTLDs.

o    The Council's current draft response to the GAC seems to suggest that
the GNSO's primary remit of policy development relating to the IOC/Red Cross
is "to determine what, if any, exceptions (i.e. for pre-existing,
non-commercial, and/or geographical use) should apply in the domain name
context-particularly at the second level and in both new and existing TLDs."
If this is ultimately our position as a Council, then I believe it is best
to gently back away from the current PDP, at least with respect to the Red
Cross designations and Olympic words, in favor of something much more
expeditious and narrow.

o    As you may recall, the original IPC position on this issue is that
IOC/Red Cross protection should not be subject to a PDP.  That position is
not reflected in the letter, and it should be reflected, even if it is
reflected as a minority view.

o    The proposed definition of "policy" in the letter is overbroad,
subjective and particularly inappropriate in light of the recent policy
versus implementation discussion framework published by ICANN policy staff.
I believe it is better to simply admit that there is no bright line test and
recognize that this issue is ripe for further discussion within the ICANN
community.

o    To clarify, I do not believe that the GAC is asking for protection of
the entire .INT list of names.  Rather, it is my understanding that the list
of IGOs that qualify under the GAC's criteria (i.e. are treaty-based
organizations) is a discrete list of around only 200 acronyms.

o    Finally, the Council should not support anything, regardless of its
substance, that may be interpreted as a legal opinion on intermediary
liability, such as the statement that, "(To our knowledge, however, these
laws would not create intermediary liability or impose affirmative
obligations on ICANN, registries, and/or registrars with respect to third
party registrations.)"  Conclusions such as these should be fleshed out and
substantiated with objective facts, research or citations.

Please contact me if you would like to discuss any of these comments or
proposed amendments further.

Thank you,

Brian

Brian J. Winterfeldt  

Partner

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From:  <mailto:owner-council at gnso.icann.org> owner-council at gnso.icann.org on
behalf of Jonathan Robinson[ <SMTP:JONATHAN.ROBINSON at IPRACON.COM>
SMTP:JONATHAN.ROBINSON at IPRACON.COM]

Sent: Monday, January 28, 2013 1:32:24 AM

To: 'Thomas Rickert'; 'GNSO Council List'

Subject: RE: [council] potential annex to Jeff's draft letter Auto forwarded
by a Rule

Many thanks Thomas,

I'll certainly plan to review today.

Jeff (as lead) and others, please note that this is due for completion this
week since I told Heather we'd reply to her in January.

Thanks,

Jonathan

-----Original Message-----

From:  <mailto:owner-council at gnso.icann.org> owner-council at gnso.icann.org [
<mailto:owner-council at gnso.icann.org> mailto:owner-council at gnso.icann.org]
On Behalf Of Thomas Rickert

Sent: 27 January 2013 17:29

To: GNSO Council List

Subject: [council] potential annex to Jeff's draft letter

All,

as discussed, please find attached a text that could be used as an Annex to
the draft letter prepared by Jeff in response to the GAC to illustrate the
complexity of the matter. The intention was to keep it very brief (a bit
over a page), but still show that there are some issues that need to be
resolved.

Thanks,

Thomas

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