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

Wed Jul 15 16:13:27 UTC 2015

Hello Mike and everyone,

Some of these questions had been raised in previous WG calls, but it may be
helpful to consolidate what we can in a single note, so thank you for
following up on this.

The IGO ³small group² was formed as a result of discussions between the NGPC
and the GAC (where the IGOs are observers) at the Los Angeles meeting, in
October 2014. This grew out of NGPC-GAC discussions over the NGPC¹s proposal
of March 2014, which in turn was produced in direct response to the full
Board¹s resolution of February 2014 (in which the Board acknowledged the
GNSO¹s original policy recommendations on IGO protections, which the GNSO
Council had adopted in November 2013  being the set of consensus
recommendations from the original IGO PDP that Thomas Rickert chaired).

The NGPC¹s March 2014 proposal had been sent to the GNSO Council as well,
and in September 2014 Chris Disspain (NGPC member and the Board ³shepherd²
for the topic of IGO protections) participated in a GNSO Council meeting, to
discuss the status of the NGPC-GAC discussions. This was viewed by the
Council as particularly timely as the NGPC had asked the GNSO (in June)
whether it would be amenable to amending those of its adopted policy
recommendations that are inconsistent with GAC advice.

As I understand it, the members of the IGO "small group² are basically a
subset of the IGO Coalition that participated in the original GNSO IGO-INGO
PDP in 2012-13, working with the GAC leadership and those GAC members that
had internally been working on the topic of IGO protections. To the extent
that there seems to be a ³primary² contact point for that group, I believe
it is the OECD.

Sorry if all these dates and details are a bit convoluted; maybe this set of
chronological bullet points will help:
* Feb 2014  Board acknowledgement of GNSO original PDP recommendations and
request to NGPC to develop proposal:
https://www.icann.org/resources/board-material/resolutions-2014-02-07-en#2.a
* March 2014  NGPC proposal:
https://gnso.icann.org/en/correspondence/chalaby-to-robinson-20mar14-en.pdf
* Sept 2014  Discussion between GNSO Council and Chris Disspain:
http://gnso.icann.org/en/meetings/minutes-council-04sep14-en.htm
* Oct 2014  Letter from Jonathan Robinson to Cherine Chelaby and Chris
Disspain confirming outcomes of Sept discussion:
http://gnso.icann.org/en/correspondence/robinson-to-chalaby-disspain-07oct14
-en.pdf
* Jan 2015  Letter from Cherine Chelaby to Jonathan Robinson updating the
GNSO on status of the discussions with the GAC:
http://gnso.icann.org/en/correspondence/chalaby-to-robinson-15jan15-en.pdf
* Mar 2015  GAC Singapore Communique:
https://gacweb.icann.org/download/attachments/27132037/GAC_SINGAPORE52_COMMU
NIQUE_FINAL2.pdf?version=1&modificationDate=1423724031000&api=v2
* Jun 2015  GAC Buenos Aires Communique:
https://gacweb.icann.org/download/attachments/27132037/GAC%20Buenos%20Aires%
2053%20Communique.pdf?version=1&modificationDate=1435188375963&api=v2
I hope this helps provide the background to the formation of the ³small
group² and to the GAC¹s latest Communique.

Cheers
Mary

Mary Wong
Senior Policy Director
Internet Corporation for Assigned Names & Numbers (ICANN)
Telephone: +1 603 574 4889
Email: mary.wong at icann.org

From:  <gnso-igo-ingo-crp-bounces at icann.org> on behalf of Mike Rodenbaugh
<mike at rodenbaugh.com>
Date:  Wednesday, July 15, 2015 at 03:47
To:  "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
Subject:  Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP

> 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 <tel:%2B1.415.738.8087>
> 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-los
>> es-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 ³Transparency² obligation provisions
>> found in ICANN¹s Bylaws, the Panel would have expected the ICANN Board
>> to, at a minimum, investigate the matter further before rejecting DCA
>> Trust¹s 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 <tel:416-588-0269>
>> http://www.leap.com/
>> _______________________________________________
>> Gnso-igo-ingo-crp mailing list
>> Gnso-igo-ingo-crp at icann.org
>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
> 

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