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

Reg Levy reg at mindsandmachines.com
Wed Jul 15 23:54:57 UTC 2015 

Paul—

She did answer:

I do not have the definitive list of members of the “small group”

It may be frustrating, but I don’t know what you expect.

+ + +
Reg Levy
VP Compliance + Policy
Minds + Machines

m +1 310 963 7135
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On 15 Jul 2015, at 16:47, Paul at law.es<mailto:Paul at law.es> ZIMBRA <paul at law.es<mailto:paul at law.es>> wrote:

Mary,

I am sorry to push but I did not see an answer to my simple question.  Please list the members of the small group.

Also, with reference to the "which is the agreed forum for the continuing dialogue between the GAC and the NGPC on IGO protections overall" exactly who has agreed to such.

Concerning "The understanding from that meeting is that conversations would continue with Petter, Phil and Mason while the NGPC and “small group” continue to discuss the broader topic" please provide detail concerning the "broader,topic". What is it and what have they been requested to do?

Paul Keating

On 16 Jul 2015, at 12:02 am, Mary Wong <mary.wong at icann.org<mailto:mary.wong at icann.org>> wrote:

Hello Paul and everyone,

As Phil noted in an email to the group recently, a promising dialogue between our co-chairs Petter and Phil, facilitated by Mason Cole (GNSO-GAC liaison), and the GAC leadership was opened in Buenos Aires. Thomas Schneider, the GAC chair, is of course part of the “small group”, which is the agreed forum for the continuing dialogue between the GAC and the NGPC on IGO protections overall. It was therefore helpful to have had Thomas and two of the GAC Vice Chairs meet with Petter, Phil and Mason in Buenos Aires, given that our Working Group is deliberating one aspect of the possible protections that can be afforded to IGO acronyms, i.e. certain curative rights mechanisms. The understanding from that meeting is that conversations would continue with Petter, Phil and Mason while the NGPC and “small group” continue to discuss the broader topic. This gels with the GAC’s acknowledgement, in at least one Communique, of the work of our Working Group.

While I do not have the definitive list of members of the “small group”, it may be helpful to note that the IGO coalition that participated in the original IGO-INGO PDP consisted of over 40 IGOs and 15 UN Funds and Programs (see, e.g. the IGO coalition’s Minority Statement to that PDP’s Final Report: https://gnso.icann.org/en/issues/igo-ingo-final-minority-positions-10nov13-en.pdf – the statement was filed by the OECD, WIPO and the UPU on behalf of the coalition and to the best of my knowledge these three IGOs are thus also members of the “small group”).

As the GNSO Council is also aware of the discussions between the “small group” and the NGPC,  the additional dialogue channel opened in Buenos Aires will hopefully also be useful in assisting the GNSO, GAC and Board (NGPC) resolve the issue of IGO protections, as appropriate to the scope of this WG and each organization.

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<mailto:mary.wong at icann.org>


From: Paul Keating <paul at law.es<mailto:paul at law.es>>
Date: Wednesday, July 15, 2015 at 22:38
To: Mary Wong <mary.wong at icann.org<mailto:mary.wong at icann.org>>
Cc: "gnso-igo-ingo-crp at icann.org<mailto:gnso-igo-ingo-crp at icann.org>" <gnso-igo-ingo-crp at icann.org<mailto:gnso-igo-ingo-crp at icann.org>>
Subject: Re: [Gnso-igo-ingo-crp] GAC advice and the IGO PDP

Thank you Mary

However we really need to know WHO exactly is in this "small group" and open a dialogue with them. Otherwise there will be a collision of proposals and it is unseemly that one group will remain unidentified with the ability to act politically.


Sincerely,
Paul Keating, Esq.

On Jul 15, 2015, at 6:14 PM, Mary Wong <mary.wong at icann.org<mailto:mary.wong at icann.org>> wrote:

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 “small group” 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 NGPC’s proposal of March 2014, which in turn was produced in direct response to the full Board’s resolution of February 2014 (in which the Board acknowledged the GNSO’s 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 NGPC’s March 2014 proposal had been sent to the GNSO Council as well, and in September 2014 Chris Disspain (NGPC member and the Board “shepherd” 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 group” 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 “primary” 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_COMMUNIQUE_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 “small group” and to the GAC’s 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<mailto:mary.wong at icann.org>

From: <gnso-igo-ingo-crp-bounces at icann.org<mailto:gnso-igo-ingo-crp-bounces at icann.org>> on behalf of Mike Rodenbaugh <mike at rodenbaugh.com<mailto:mike at rodenbaugh.com>>
Date: Wednesday, July 15, 2015 at 03:47
To: "gnso-igo-ingo-crp at icann.org<mailto:gnso-igo-ingo-crp at icann.org>" <gnso-igo-ingo-crp at icann.org<mailto: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<http://rodenbaugh.com/>

On Sat, Jul 11, 2015 at 6:29 AM, George Kirikos <icann at leap.com<mailto: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<tel:416-588-0269>
http://www.leap.com/
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