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

Thu Jul 23 05:43:40 UTC 2015

Thanks Mary.  So as far as I can tell, the "small group" consists of Chris
Disspain and various unnamed representatives of IGOs and their unnamed
benefactors within GAC (esp OECD)?  That does not seem balanced in any
sense of the word, or transparent.  Given the group appears tasked with
reconciling GNSO and GAC -- why is there no GNSO representation?

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

On Wed, Jul 15, 2015 at 9:13 AM, 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 “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
>
> 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
> 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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>
>
>
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