[Gnso-igo-ingo-crp] [Ext] RE: Re: George Kirikos comments on July 2, 2018 draft final report, Part 3 (was Re: FOR REVIEW: Updated Draft Final Report)

Mary Wong mary.wong at icann.org
Thu Jul 5 15:18:16 UTC 2018 

Thank you, Phil – as you’ll have seen, staff has suggested that it may be sufficient for Working Group members who wish to file minority statements to notify Petter and the group of their intention by 9 July (with the actual deadline for filing to be determined by the group in consultation with Petter and Susan).

On the filing of minority statements – staff would like to note for all members that, under the GNSO Working Group Guidelines, minority statements are filed in respect of policy recommendations for which a member disagrees with the final consensus designation (i.e. “In cases of Consensus, Strong support but significant opposition, and No Consensus, an effort should be made to document that variance in viewpoint and to present any Minority View recommendations that may have been made. Documentation of Minority View recommendations normally depends on text offered by the proponent(s). In all cases of Divergence, the WG Chair should encourage the submission of minority viewpoint(s).”) Minority statements should therefore be tailored to specifically address the final recommendations as well as proposals that were considered but not agreed on.

For the call occurring in less than an hour’s time, staff would like to suggest that the Working Group focus on the following issues:

  *   How to deal with George’s suggestions regarding jurisdictional immunity as a “quirk of process” in the context of the Swaine report and how the immunity plea will arise in a court proceeding filed by a losing registrant;
  *   How to deal with some suggestions that could be viewed as somewhat subjective, e.g.:
     *   George’s suggestions that the report reflect the following: (1) the view/possibility that the UDRP and URS “inadvertently interferes with or prejudices the rights of parties to have a case decided on the merits in the national court”; (2) the likelihood that a court filing following a URS loss is lower than for the UDRP; (3) concerns the Summary Report.
     *   Paul Tattersfield’s suggestion to include a statement to the effect that an “overwhelming majority” of registrars will be willing to assist IGO complainants in the first instance
  *   Deadlines and next steps

Although staff has not yet had the opportunity to incorporate the suggested textual changes made by George and Paul, we note that most of them concern tightening up the text for consistency of usage, factual corrections to reflect changes between the Initial and Final Reports, and other editorial updates. We will be happy to circulate a revised draft Final Report incorporating as much of these textual updates as possible following the call.

Thank you.

Best regards,
Mary

From: "Corwin, Philip" <pcorwin at verisign.com>
Date: Thursday, July 5, 2018 at 10:50
To: "petter.rindforth at fenixlegal.eu" <petter.rindforth at fenixlegal.eu>, Mary Wong <mary.wong at icann.org>
Cc: "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
Subject: [Ext] RE: Re: [Gnso-igo-ingo-crp] George Kirikos comments on July 2, 2018 draft final report, Part 3 (was Re: FOR REVIEW: Updated Draft Final Report)

Thank you Petter and Mary.

I am the last person around who wants to prolong this WG.

Let’s see how far we get on today’s call. However, I note that George has sent three separate emails proposing a multitude of edits, and each deserves airing and a decision on whether it should be accepted. Once that exercise is completed, I would suggest that a revised redline be posted to the entire WG list so that members who are not on the call have a decent opportunity to review and comment on them prior to final acceptance.

Again, I must state that 8 am ET on Monday the 9th is not an acceptable deadline for the filing of Minority Statements. The Final Report is still a moving target and may not be locked down for several more days at a minimum. It is not reasonable to set a MS deadline that may be in advance of agreement on Final Report. Further, once I finish writing my statement I must run it past my superior for review before it can be filed, and right now we are bot a day-and-a-half away from the end of the work week.

I therefore repeat my request that, in the event that a Final Report is filed on July 9th, WG members be provided with four additional days until Friday the 13th to file Minority Statements – after four years of work I don’t think that requesting four extra days is unreasonable. I would think that Council would be amenable to a placeholder section for Minority Reports given its decision to ask the WG to complete its task just ten days after the close of the Panama meeting. Receipt of Minority Statements on 7/13 will still give Councilors six days to review them prior to the 7/19 Council meeting.

In addition, given the Council’s intense focus on launching an EPDP relating to GDPR and WHOIS, as well as the fact that we are submitting a Final Report that is certain to generate GAC advice that is highly negative, it is a distinct possibility that Council will opt to defer any decision on a Motion regarding the Final Report until its August meeting.

Thank you and best regards,
Philip

Philip S. Corwin
Policy Counsel
VeriSign, Inc.
12061 Bluemont Way
Reston, VA 20190
703-948-4648/Direct
571-342-7489/Cell

"Luck is the residue of design" -- Branch Rickey

From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of Petter Rindforth
Sent: Wednesday, July 04, 2018 6:55 PM
To: Mary Wong <mary.wong at icann.org>
Cc: gnso-igo-ingo-crp at icann.org
Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] George Kirikos comments on July 2, 2018 draft final report, Part 3 (was Re: FOR REVIEW: Updated Draft Final Report)

Thanks Mary and All WG Members,

I definitely look forward with pleasure to a fruitful and effective final call tomorrow!

As to the time: Mary, I hope it is possible to extend it to 90 minutes, if necessary?

Then, at the end of our call, if there is still some question marks, I can of course formally ask for an extension, but as it seems not so likely that such request will be accepted, I recommend us all to focus on finalizing everything tomorrow.

As to Minority Statement:
Mary, please note already now that I will prepare and submit one in support for Option 3 of Rec 5.

All the best,
Petter


--
Petter Rindforth, LL M

[cid:49D61470-C55F-44F0-AA45-8F4196542C10]

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Thank you


5 juli 2018 00:12:30 +02:00, skrev Mary Wong <mary.wong at icann.org<mailto:mary.wong at icann.org>>:
Dear George and Phil,

Thank you for your comments and questions.

Regarding the date of the GNSO Council call and the expected deadline for delivery of our Final Report - in our experience, the Council has never changed a scheduled date for a Council meeting to accommodate the submission of a PDP report. That said, if the Working Group as a whole (including Petter as chair and Susan as Council liaison) wish to request for an extension to the 9 July deadline, our recommendation is that it be a formal request from Petter on the group's behalf, sent through Susan.

Regarding minority statements - staff had suggested a possible deadline of 1200 UTC on Monday 9 July to try to have as much of the Final Report completed as possible. As the consensus recommendations as well as the consensus levels had been settled on at the 21 June meeting, we had hoped that the time between then and 9 July might be sufficient for those wishing to file minority statements (especially since these are not edited or reviewed). However, should any member wish to have more time for this purpose, may we suggest that those wishing to file minority statements at least notify the group by Monday 9 July so that staff can add a tentative placeholder to the relevant Annex, noting that a certain number of minority statements are likely to be filed?

Regarding Word v PDF - typically, staff works on documents in Word format which are then converted into PDF for submission and distribution. That is why we had requested that minority statements be sent in Word format, but I should think we can also work with PDF formats if that is how a member wishes to send in his/her minority statement.

We note that George's comments include notes on consistency, typos and similar errors (for which we are grateful) as well as more substantive suggestions. We suggest that the Thursday call focus on the substantive suggestions, and will do our best to provide a list to work through on the call.

Thank you.

Best regards,
Mary & Steve

On 7/4/18, 16:09, "Gnso-igo-ingo-crp on behalf of George Kirikos" <gnso-igo-ingo-crp-bounces at icann.org<mailto:gnso-igo-ingo-crp-bounces at icann.org> on behalf of icann at leap.com<mailto:icann at leap.com>> wrote:

Hi folks,

This is the part 3 of my comments on the July 2, 2018 draft final
report. The earlier parts are at:

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001345.html (part 1)
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001349.html (part 2)

This was all based on a single pass through the entire document. I
don't plan to do any further passes through it before tomorrow's call.

Tomorrow's call was scheduled for only 1 hour. I think we should
expand it to at least 90 minutes (our normal call length), or even 2
hours, to try to get as much agreement as possible on all points
(including concerns from others about the current draft). i.e. we can
work faster over the phone in real-time than we can via email (which
is asynchronous).

(all page references relative to "Clean" PDF version of July 2, 2018
draft, unless otherwise stated)

25. page 33, first paragraph: for INGOs, it would be Recommendation
#1(a) (note just #1), since we added a 1(b) for IGOs since the earlier
draft of this report).

26. page 34: Cost: I don't think it's correct to say that it's
"outside the remit of the Working Group Charter." Also, it's not
correct to call it a "preliminary" conclusion, as this is a final
consensus recommendation, and no longer "preliminary.".

27. (no page in particular) I don't this had been pointed out before
by anyone in this PDP, but the probability of a court action by a
registrant after an adverse URS decision is actually lower than that
for an adverse UDRP, because the URS has a built-in review/appeal
mechanism that can be utilized, before a registrant need escalate to
the courts. Might be worth putting into a footnote somewhere (where we
talk about probabilities being 'rare', etc.).

28. page 44: middle column (at bottom) says .."and no change to the
URS". Of course Recommendation 5 will have a slight change (set aside
the URS decision if immunity asserted), so that language should change
slightly.

29. page 48-49: the new text at the bottom of page 48 ("more fully
described in Section 2.1 above") should be deleted, as those options
at the time were *different* (e.g. Option #4 from Zak came in December
2017). The third paragraph even notes this. If we want to retain those
words, they can be moved to the first line of the last paragraph of
page 49, i.e. immediately after "During the Working Group's discussion
of these six options".

30. page 51: 2nd paragraph: (a) first, "to confirm that there was
consensus on the other recommendations listed above" is entirely
false, given that the text of those recommendations has evolved, and
was never "confirmed" either. I would rewrite as:

"…, and to ATTEMPT TO confirm that there was consensus on the other
first four recommendations." (removing the words "listed above").

(b) continuing, the May 25, 2018 meeting description is complete
fiction, because at that point no designations had been made! THe very
first time designations were made was on June 9, 2018:

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001238.html

Essentially, that entire paragraph is not accurate. What really
happened, is that the Summary Report (referenced on page 50) was not
well received. Remember, I wrote a long rant about "Everything Wrong
with the IGO PDP Summary Report"

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-April/001139.html

Then, there was essentially a "Public Display of Possible Consensus",
where PDP members who were concerned about the accuracy and
inclusiveness (whether their input had even been captured) of the
Summary Report openly and transparently shared their views on the
mailing list, see:

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/date.html

Then, realizing that we were actually capable of reaching consensus
(unlike the Summary Report, which saw things more divided), the May
10th and May 25th meetings were focused on revising the text of the
recommendations. Then, on May 25, 2018, a two week process was started
whereby members were once again encouraged to share their views on the
public mailing list with regards to all 5 recommendations (including
the 6 options for the Recommendation #5).

Then, on June 9, 2018 set his initial designation levels after
reviewing all the emails, after which we engaged in an iterative
process of revising the text of the recommendations and revising the
designation levels to their final state (which was achieved on June
21, 2018).

You'll note I was careful to not call the May 25, 2018 a "Consensus
Call", since it never really was! (happy to refer to it as a "two week
process", as a compromise; if you want to call it a "Consensus Call",
be sure to add a footnote that that was one of the issues in dispute
in the 2nd Section 3.7 appeal made on June 10, 2018).

The third paragraph on page 51 is fine, but the 2nd needs to be
completely rewritten, to reflect the truth, and not the current
fiction.

Here's my attempt to write it, as diplomatically as possible:

---- start of new paragraph 2 on page 51 --------
Concerns were raised regarding the accuracy, transparency and
inclusiveness of the Summary Report. After discussions on the mailing
list, it became evident that more members of the PDP were willing to
engage further on the remaining issues than originally was recorded,
and that it might be feasible to reach consensus on all 5
recommendations. The Working Group held meetings on 10 & 25 May 2018
to further revise the language of the proposed recommendations. After
the 25 May 2018 meeting, a two week process was started whereby PDP
members were encouraged to share their views on the public mailing
list with regards to all 5 recommendations (including the 6 options
for Recommendation 5). On June 9, 2018, after reviewing the emails of
the prior 2 weeks, the remaining Working Group chair (can keep the
footnote referencing's Phil's resignation), set the initial
designations of consensus levels, consistent with the requirements of
Section 3.6 of Working Group Guidelines for a Consensus Call. The
Working Group held further meetings on 12 & 21 June 2018, and
discussions on the mailing list, engaging in the iterative process of
further revising the text of the recommendations and revising the
designation levels to their final state (which was achieved on June
21, 2018), while also agreeing on the appropriate designations levels
for the proposals that did not attain consensus.
---- end of new paragraph 2 on page 51 --------

That's about as diplomatic as I can make it, without bringing in the
2nd Section 3.7 appeal, arguing over what a "Consensus Call" is, etc.

31. page 56, 3rd paragraph "The Working Group scheduled community
sessions at each ICANN Public Meeting that took place after its
formation" --- not correct, as there were no calls during the Panama
meeting (and I don't think was a session at the prior meeting either).
Easiest fix is to remove the word "each" and make "Meeting" be plural
"Meetings", leaving it more correct than it is as present.
Alternatively, change "each" to "most" (and still make "Meetings"
plural)

32. page 58: Phil Corwin's affiliation is listed as "BC", whereas it
should be "RySG" since he's moved to Verisign. The Wiki page should
also be updated (his SOI has been updated, but the table listing the
members/affiliations hadn't been).

33. page 58: in the table listing all the constituencies, "CBUC"
should be changed to "BC" (to reflect the acronyms being used on pages
57-58). Or, alternatively, change "BC" to "CBUC" for all the relevant
members on pages 57-58.

34. page 62: might want to add a footnote/asterisk next to Phil's
name, given he resigned as co-chair, as was done earlier in the
document.

Sincerely,

George Kirikos
416-588-0269
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