[council] RE: Agenda - 11 June 2013 - New gTLD Program Committee

[Neuman, Jeff]

Steve,

Yes, thanks for the correction that it will be the new gTLD Program Committee that will be considering the BGC recommendation on the 11th (2 days before the GNSO Council Meeting).  I was planning on doing a presentation to the council on the 13th about the recommendation.  

In short, the BGC's recommendation basically (1) Assumes that if an issue involves "implementation", then there is no reason to look to the bottom-up process to get advice on that issue (and if they do get advice (even consensus advice), they can ignore it and go with whatever ICANN staff recommends; (2)  the ICANN Staff/Board is the sole arbiter in deciding whether something is Policy or Implementation regardless of whether the group charged under the bylaws with developing policies (here, the GNSO) believe that the issue does involve policy; and (3) there is no meaningful review process or accountability if the community believes that ICANN Staff's determination on whether something is policy or not is plain wrong.  The fact that Reconsideration never looks at the substance of the issue at hand, but only looks to whether a process was followed is incredibly problematic.  

In this recommendation, although the GNSO strongly stated the Trademark plus 50 decision was in fact policy (with one group issuing a minority opinion) and the ICANN staff initially agreed it could be considered policy, ICANN staff later decided on its own that it was implementation.  Because ICANN Staff is not bound to accept the finding of the GNSO that it was policy, and ICANN staff labeled it implementation, ICANN staff was free to make the changes as it saw fit (again with no review).    So essentially the recommendation states: (1) ICANN staff determined that it was implementation, (2) there is and can be no review of that decision through the reconsideration process, and (3) there is no requirement that ICANN staff get input from the community or even listen to the community if the ICANN staff determines that something is implementation.  

To add insult to injury, the outside law firm that wrote the recommendation wrote it in the style of a litigation brief making such ludicrous arguments (which cannot be reviewed), like [and I am paraphrasing]:  "Yes, the ICANN CEO said previously that this issue CAN be considered policy."  It goes on to state that the CEO  carefully chose this word because in saying that it "CAN" be policy, that also equally means that it might not be policy and therefore the written statement by the CEO was not an admission that it was in fact policy. I find this argument insulting. Is this really what we expect of ICANN as an multi-stakeholder organization?  Namely, to consistently use weasel words (reviewed by legal counsel) so that one day if ever questioned on a statement he or she made, the legal team can find a loophole and get out of a commitment that ICANN makes.  Shouldn't we expect more from an organization that is supposed to look out for the public interest?

Steve - In the end I could care less about the substantive decision to allow the Trademark plus 50 (although a number of people do care about this).  The decision was made and my registry will implement that decision because we have to.  However, there were probably 50 other ways that ICANN's BGC could have justified the decision it made.  I would rather have ICANN apologize for the way it handled the situation, promise that it won't happen again that way, and then move on to the real work of implementing the new gTLDs.  Instead, we got an overly legalistic brief which is an after-the-fact justification for what they did using a rationale that destroys the multi-stakeholder model.

I intend to provide more information during the Council meeting and would encourage attendance from the BGC.  However, I would ask that the New gTLD Program Committee not proceed on making a decision on this recommendation until it could be adequately discussed by the community.  

Sorry for the long note and I would be happy to give more concrete examples from the recommendation.  I just ask for more time.

Thanks.

-----Original Message-----
From: Steve Crocker [mailto:steve at shinkuro.com] 
Sent: Wednesday, June 05, 2013 3:47 PM
To: Neuman, Jeff
Cc: Steve Crocker; Bruce Tonkin; council at gnso.icann.org; Cyrus Namazi; Fadi Chehadé; Cherine Chalaby (cherine.chalaby at icann.org)
Subject: Re: Agenda - 11 June 2013 - New gTLD Program Committee

Jeff,

I think you're asking the New gTLD Program Committee to defer voting on the BGC's recommendation.  This matter is not in front of the full Board, and the full Board isn't meeting until June 27.

That said, I'm curious as to the substance of your objection.  Have you written anything about it?

Thanks,

Steve

On Jun 5, 2013, at 10:16 PM, "Neuman, Jeff" <Jeff.Neuman at neustar.us> wrote:

> Bruce,
> 
> Am I correct that the Board will be discussing and adopting the BGC's recommendation on the NCSG Reconsideration Request?
> 
> As you know, the GNSO has scheduled this item to discuss on our next Council call on the 13th (2 days after the scheduled ICANN Board meeting).  A number of us on the GNSO completely disagree with the rationale that was used to justify the outcome (even if we do not dispute the outcome).  We believe that the BGC's rationale will undermine the entire bottom-up multi-stakeholder model (as in my previous e-mail to the council which I have attached).  
> 
> We therefore respectfully ask that the ICANN Board delay any decision on this reconsideration request until it has had time to listen to the GNSO Council and its members on our thoughts about this decision.  I personally believe if the Board adopts this recommendation (more particularly the rationale for the recommendation), the Board will have not officially put the nail in the coffin for the Reconsideration process as an accountability measure, but will have also the multi-stakeholder bottom up model as we know it.
> 
> I have included Fadi and Steve (which I have rarely if ever done before) on this e-mail to stress the importance of this issue and plea for the Board to forgo any definitive action on this request until such time that we can be heard.  We also ask whether anyone from the BGC could be available to discuss this issue with us on the GNSO Council call. 
> 
> P.S.....I do want to stress that Neustar takes no position as to whether the Trademark Claims plus 50 should or should not be in place as an RPM.  Rather, we strongly disagree with the assumptions and fundamentally-flawed rationale in the BGC's recommendation.
> 
> Best regards,
> 
> 
> Jeffrey J. Neuman 
> Neustar, Inc. / Vice President, Business Affairs
> 46000 Center Oak Plaza, Sterling, VA 20166
> Office: +1.571.434.5772  Mobile: +1.202.549.5079  Fax: +1.703.738.7965 / jeff.neuman at neustar.biz  / www.neustar.biz 
> 
> 
> 
> 
> -----Original Message-----
> From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On Behalf Of Bruce Tonkin
> Sent: Wednesday, June 05, 2013 4:14 AM
> To: council at gnso.icann.org
> Subject: [council] Agenda - 11 June 2013 - New gTLD Program Committee
> 
> 
> From:  http://www.icann.org/en/groups/board/documents/agenda-new-gtld-11jun13-en.htm
> 
> 
> 11 June 2013
> 
> 
> Consent Agenda:
> 
> * Approval of Minutes
> 
> Main Agenda:
> 
> *  BGC Recommendation on Reconsideration Request 13-3
> 
> *  Info Discussion on ALAC Statement on IDN Variants
> 
> *  Plural vs. Singular
> 
> *  Any Other Business
> 
> <Mail Attachment.eml>