[Gnso-epdp-team] Regarding the CPH Proposal for a Hybrid Model

Mark Svancarek (CELA) marksv at microsoft.com
Fri Jan 10 02:19:33 UTC 2020

Hi, James.  Please look for my feedback on the CPH proposal on the list in a separate email.

For my response to this email, please see inline below.


From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org> On Behalf Of James M. Bladel
Sent: Thursday, January 9, 2020 12:32 PM
To: gnso-epdp-team at ICANN.org
Subject: [EXTERNAL] [Gnso-epdp-team] Regarding the CPH Proposal for a Hybrid Model

Hi Folks -

Maybe I’m suffering from some residual midwestern naïveté, but I’m disappointed that the CPH proposal wasn’t more thoughtfully considered.  It was put forward as a sincere effort at compromise, towards an outcome that was less than perfect but better than the status quo, and yet still achievable within our timeframe. Unfortunately, we retreated to our usual corners and dug in along party lines.

[Mark Svancarek] See my other mail

Among some of the criticisms I heard was that hybrid model still left too much control to contracted parties.  But let’s be 100% clear - there is no model (central or hybrid or otherwise) where a contracted party’s decision not to disclose registration data can be “over-ruled” by ICANN org or ICANN compliance.  Given the dilemma of breaking the law or breaking a contract, we will always choose the latter.

[Mark Svancarek] This feels like a misrepresentation.  For me, the issue is that a policy which can be simply disregarded by one party is no policy at all.  RAA defines an exemption process, and you should use it if you feel that you are being asked to break a law.  I don’t understand why you’d choose to break a contract when you have a defined escalation procedure within that contract.

I was also dismayed to see the Belgian DPA guidance subjected to further microscopic parsing. The CPH proposal wasn’t predicated on this one bit of advice, but on the body of guidance and legal research done to date. In other words, we shouldn’t ignore a growing body of evidence in the hope that an outside party will bring us an “aha!” insight, clearing away all doubts and uncertainty.

[Mark Svancarek]  (1) About 20% of the proposal document was an attempt to quote from Bird&Bird, Belgian DPA, and even WP29, to justify a specific course of action.  Surely it is reasonable to examine whether those justifications hold water.  It’s disingenuous call such an examination “microscopic parsing” after we’ve spent years debating whether some arcane detail in GDPR is going to result in unexpected, debilitating fines.  (2) Maybe I’m suffering from some residual midwestern naïveté 😊 but I thought that we should be interpreting our legal advice correctly as we set policy, and when I see us failing to do so you should expect me to call it out, even for policy recommendations which contain MAY or OPTIONAL language, as I have done in the Phase 1 IRT.

We, the EPDP, have to wrestle these questions on our own. And nobody is coming to rescue us.

[Mark Svancarek] Umm, I think we’re doing plenty of wrestling right now.

Finally, I want to reiterate that outside parties in industry, academia and governments are watching our work very closely. Some of them are rooting for us to fail.  We are on the clock, and the longer we spend circling the same issues, the more we jeopardize what we’ve done to date

[Mark Svancarek] We should probably drink beer and discuss these people who are rooting for us to fail, since I don’t know who that might be.  Certainly, governments are watching this closely to see if the multi-stakeholder model can develop policy for thorny issues, but that’s to determine if laws and regulations need to be changed or clarified, and that isn’t inherently a bad thing.

So I want to make this point unambiguously clear in the historical record of our work:  if we somehow find ourselves still discussing these issues 2 or 3 years from now, it will be because we let the Perfect overshadow the Good, and we missed this opportunity in early 2020 to roll up our sleeves and get to work developing a practical, if sub-optimal, solution.

[Mark Svancarek] Let’s not declare that we have only two choices, right now, today: (1) Hurry up and accept a solution that some parties might find unworkable, or (2) fail.  It’s a hard process but we are working through it.  We haven’t even finished the draft report for public comment, but it seems like you are giving up.

But this message isn’t meant as an ultimatum, I simply ask folks to consider our short timeframe, socialize the Hybrid idea with their SGs/Cs, sleep on it, and come back to the CPH Proposal with fresh eyes before rejecting it outright.

[Mark Svancarek] See my other mail



James Bladel
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