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

Mary Wong mary.wong at icann.org
Thu Jul 16 01:11:03 UTC 2015 

Hello again everyone,

Regarding Paul¹s other two questions in his last email:
* As mentioned previously, the "small group" was set up in October 2014
following discussions at the Los Angeles meeting, primarily between the NGPC
and the GAC/IGOs (continuing the discussions from March 2014). This was
highlighted during the joint GAC-GNSO meeting in Los Angeles as well, so
there has been awareness within the GNSO and by the GNSO Council of the
existence and role of the ³small group² for some time (see e.g. the
transcript from the October 2014 GAC-GNSO meeting:
https://la51.icann.org/en/schedule/sun-gac-gnso/transcript-gac-gnso-12oct14-
en.pdf).
* The ³broad topic² I mentioned refers to the overall topic of IGO
protections ­ again, this reflects the fact that the NGPC-GAC discussions
are not just about curative rights dispute resolution processes but rather
includes these as part of the more general, ongoing discussion of
appropriate protections for IGOs in the gTLD space (for which the prior GNSO
IGO-INGO PDP preceding our group¹s chartering had made recommendations
adopted by the GNSO and, with respect only to those not inconsistent with
GAC advice, by the ICANN Board ­ such that the ³broad topic² of discussion
now centers on those recommendations that ARE inconsistent with GAC advice).
I hope this clarifies my earlier notes, and apologize for any ambiguity or
poor phrasing in those.

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:  Reg Levy <reg at mindsandmachines.com>
Date:  Thursday, July 16, 2015 at 01:54
To:  "Paul at law.es ZIMBRA" <paul at law.es>
Cc:  Mary Wong <mary.wong at icann.org>, "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

> Paul‹ 
> 
> She did answer:
> 
>> I do not have the definitive list of members of the ³small group²
> 
> It may be frustrating, but I don¹t know what you expect.
> 
> + + +
> Reg Levy
> VP Compliance + Policy
> Minds + Machines
> 
> m +1 310 963 7135
> w +1 310 730 4104
> 
> Current UTC offset: -7
> 
>> On 15 Jul 2015, at 16:47, Paul at law.es ZIMBRA <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 ³small group²
>> 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> 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 ³small group², 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 ³small group²
>>> continue to discuss the broader topic. This gels with the GAC¹s
>>> 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 ³small group², 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 coalition¹s Minority Statement to that PDP¹s Final
>>> Report: 
>>> https://gnso.icann.org/en/issues/igo-ingo-final-minority-positions-10nov13-e
>>> n.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 ³small group²).
>>> 
>>> As the GNSO Council is also aware of the discussions between the ³small
>>> group² 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
>>> 
>>> 
>>> From: Paul Keating <paul at law.es>
>>> Date: Wednesday, July 15, 2015 at 22:38
>>> To: Mary Wong <mary.wong at icann.org>
>>> Cc: "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
>>> 
>>>> 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> 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 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.pd>>>>>
f
>>>>> * 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-07oct
>>>>> 14-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_COM
>>>>> MUNIQUE_FINAL2.pdf?version=1&modificationDate=1423724031000&api=v2
>>>>> * Jun 2015 ­ GAC Buenos Aires Communique:
>>>>> https://gacweb.icann.org/download/attachments/27132037/GAC%20Buenos%20Aire
>>>>> s%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 <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-ican
>>>>>>> n-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 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
>>>>>> 
>>>>> _______________________________________________
>>>>> Gnso-igo-ingo-crp mailing list
>>>>> Gnso-igo-ingo-crp at icann.org
>>>>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>> _______________________________________________
>> 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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