[Gnso-igo-ingo-crp] GAC advice and the IGO PDP

[Mike Rodenbaugh]

Thanks George, I am in general agreement.

Along these lines, is anyone aware, or can Staff please inform us, as to
the who is in the "informal small group" referenced in the GAC Communique
as having made "progress" on the topic of IGO names, what are they
discussing exactly, where is the transparency around that effort, and when
is it supposed to conclude?

There are quite a few IGO names issues up in the air, where there is a
difference of opinion between GAC and GNSO, and the Board is trying to
reconcile.  This WG covers just one aspect -- IGO names at the second
level.  The remaining issues (i.e. proposed protections at the top level)
must also be dragged out into the light, and then a compromise reached to
resolve all issues -- not just the one this WG is considering.

This "informal small group" does not appear to have any official charter or
public presence, yet the GAC is citing their progress and goal to develop a
"concrete proposal" before Dublin.  The community, and particularly this
WG, ought to be informed and involved in the work of that group.

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1.415.738.8087
http://rodenbaugh.com

On Sat, Jul 11, 2015 at 6:29 AM, George Kirikos <icann at leap.com> wrote:

> Hi folks,
>
> I hope everyone is enjoying the start of the weekend. Late last night,
> ICANN released a decision in the Independent Review of the .africa
> matter. See:
>
> https://www.icann.org/news/announcement-2-2015-07-10-en
>
> https://www.icann.org/en/system/files/files/final-declaration-09jul15-en.pdf
>
> http://domainincite.com/18944-new-gtld-program-thrown-into-chaos-as-icann-loses-africa-case
>
> Parts of the decision are redacted, which raises questions of its own
> regarding ICANN transparency.
>
> However, the panel had much to say about GAC advice.
>
> 1. It ruled that GAC is a constituent body of ICANN (paragraph 101, page
> 43).
>
> 2. ICANN's own witness, Heather Dryden (former GAC chair), according
> to the panel, testified that the "GAC did not act with transparency or
> in a manner designed to insure fairness" (paragraph 102, pages 43-44).
> Rather, Ms. Dryden testified that "we talk about creative ambiguity.
> We leave things unclear so we don't have conflict" (paragraph 102,
> page 44)
>
> 3. Most damningly, the panel said in paragraph 104 (pages 44-45) that
> "Ms. Dryden also stated that the GAC made its decision without
> providing any rationale and primarily based on politics and not on
> potential violations of national laws and sensitivities." This appears
> to be quite similar to the "advice" that the GAC has provided to ICANN
> and to this very PDP (via its "answers")
>
> 4. In paragraph 110 (pages 46-47), Ms. Dryden admitted that the GAC
> isn't using sound and reasoned technical or legal analysis to come up
> with its advice, but is instead influenced by politics "And that's the
> nature of -- of the political process." (with much redacted after that
> answer)
>
> 5. Ms. Dryden also testified (still in paragraph 110, page 52) that
> GAC advice is issued with no rationale:
>
> "THE WITNESS:
> Problematic, violate national law -- there are a lot of laws -- and
> sensitivities does strike me as being quite broad.
> [...]
> ARBITRATOR KESSEDJIAN:
> Okay. So we are left with what? No rules?
> THE WITNESS:
> No rationale with the consensus objections. That's the -- the effect."
>
> 6. This was not consistent with ICANN's bylaws, e.g. paragraph 113
> (page 53), "In light of the clear “Transparency” obligation provisions
> found in ICANN’s Bylaws, the Panel would have expected the ICANN Board
> to, at a minimum, investigate the matter further before rejecting DCA
> Trust’s application."
>
> How does the IRP decision affect this PDP? I believe no deference
> should be given to any of the answers or positions provided by the
> GAC, unless accompanied by clear and convincing facts and rationale,
> along with evidence that there's been substantive deliberations to
> arrive at a position. The GAC has not been transparent with how it
> reaches its positions, nor has it elaborated on its reasoning to
> assist this PDP.
>
> In particular, its 2 page letter of April 29, 2015 does not come close
> to the standard that is demanded by ICANN bylaws, and thus should be
> given no deference.
>
> In my opinion, the IGOs have (to date) hesitated to participate in
> this PDP, perhaps in the misguided belief that they could rely instead
> on their ability to influence the GAC behind closed doors. This IRP
> decision should be considered a harsh rebuke to that approach. If the
> IGOs really want to affect the outcome of this PDP, they should
> actively engage with us by providing facts and analysis, rather than
> using a "political" approach.
>
> In conclusion, this PDP should not be influenced by politics (points
> #3 and #4 above), but should instead be built on a foundation of a
> careful analysis of facts and laws.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
> _______________________________________________
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> Gnso-igo-ingo-crp at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
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