[Gnso-newgtld-wg] FW: Follow up from May 6th and CALL FOR SMALL GROUP
Kathy Kleiman
kathy at kathykleiman.com
Mon May 13 02:53:43 UTC 2019
Hi All,
I have read the discussion taking place and I still don't think the key
issues or concerns have been addressed. I'm glad that the Board, the
Community, GNSO Council members, Staff and Post-Launch Standing IRT
members /*can *//*raise *//*Policy issues, Implementation issues and
Policy/Implementation borderline issues. *//*But my question is who
decides what category these questions (from all these Sources) fall
into? */Someone has to look at a question and decide whether is it
policy, implementation or borderline (implementation, with substantial
policy implications).
To a long-standing Post-Launch Standing IRT, at work for several years,
most questions will appear to be implementation. Why? Because to a
hammer, almost everything is a nail. The Post-Launch Standing IRT will
be geared up to solve everything as efficiently as possible -- to make
everything as /"predictable for applicants" /as possible. */Good, but
what about the GAC, Non-Contracted Parties and the Community? /*We (this
latter group) will have returned to our other Multistakeholder Policy
duties, to our other ICANN deadlines and priorities, and frankly, to our
day jobs. We won't be watching when Staff flags a question to the
long-standing Post-Launch Standing IRT and they flag it as
"implementation" due to their focus on application processing (when it
is actually policy or implementation with a heavy policy impact, e.g.,
systems involving the processing of public comments or Objections). I'm
not saying the lack of understanding of policy implications of an issue
will be intentional -- it is likely inadvertent when seen through the
prism of incumbents and applicants.
How do I know this -- because virtually numerous IRTs in the last decade
have -- or been strongly urged -- to rewrite policies (to rewrite
consensus policies, agreed and accepted by the Multistakeholder
Community & Board).
A Gateway Group will review all new questions coming through --
hopefully in conjunction with a standing group of the GNSO Council, the
Community and Non-Contracted Parties, the GAC and likely, a few members
of the Post-Launch Standing IRT. Especially as Staff arives with
questions arising from the application & comment process
(policy/implementation questions), this Gateway Group can quickly sort
these questions -- pointing them in the right direction: Council or IRT.
The Gateway Group should be diverse, fast and light weight. The heavier
implementation work, technical detail, etc, belongs to the IRT.
Overall, IRTs are IRTs. They will be tempted (and urged) to rewrite
policy; they will want to control as much as possible; for these
applications, they will be dominated by contracted parties and
applicants. That's the nature of the system; that's the way virtually
all recent IRTs have worked; and their structure will incentivized to
treat as much as "implementation" as possible. If we are going to have
a Post-Launch Standing IRT, then we need one more step.
Best, Kathy
On 5/7/2019 4:05 PM, Aikman-Scalese, Anne wrote:
>
> Dear WG members:
>
> Regarding the smaller group assembled to work on how staff and the
> proposed “post-launch Standing IRT” might determine whether an issue
> is policy or implementation, I would like to clarify again the history
> that led to the existing GNSO processes designed to address these
> issues whenever they arise –either Pre- or –Post launch:
>
> The Policy & Implementation Working Group grappled with this question
> of policy versus implementation for many months and concluded it was
> impossible to make determinations about that in advance because “one
> person’s policy is another person’s implementation”. That is exactly
> why we have the result we have in the form of GNSO Input (which is
> essentially for implementation issues), GNSO Guidance, and GNSO
> EPDP. In fact, it was Marika Koenigs who first suggested to the
> Policy & Implementation WG that, based on our case studies of issues
> that arose in the 2012 round, it was impossible to “predict” issues
> that might arise and label them as clearly policy or clearly
> implementation. Jeff has pointed out that applicants want more
> “predictability” in the process so that time delays do not result.
> Thus, the proposed “Predictability Framework” anticipates that ICANN
> staff and/or or some newly created body will be able to decide issues
> that arise post-launch. The “problem” Jeff is trying to resolve as
> Co-Chair is that if an issue reaches the GNSO, it may take too long to
> resolve and thus is not practical for registry applicants. However, as
> far as I know, we have not yet tried out these new processes (except
> for the EPDP on the Temp Spec) so it seems to me a bit premature to be
> inventing new processes and acronyms on top of the ones that have not
> yet been tried. *It strikes me that for various Implementation issues
> that actually rise to the level of an issue post-launch, the existing
> GNSO Input process (which has not yet been used) is adequate and is in
> fact designed to operate in that fashion since GNSO can raise such a
> concern “at any time it deems appropriate”.*
>
> _Under existing GNSO processes established as a result of the work of
> the Policy & Implementation Working Group_, the “gateway” is in fact a
> question of the interaction between and among Staff, an IRT (or
> Post-launch Standing IRT), and the GNSO Council. Staff can raise an
> issue, IRT can raise an issue, and ANY GNSO Council member can raise
> an issue and so these are the “gates”. (In other words, there are
> multiple gates and they all ultimately lead to oversight by GNSO
> Council.) My own view (having worked actively in the Policy &
> Implementation Working Group on several case studies of issues that
> arose Post-Launch in the 2012 round) is that if an issue is truly
> implementation, no one is going to raise the issue to the level of
> GNSO. Issues will only rise to that level if a stakeholder believes
> that GNSO Council should address it and that applies whether it’s
> merely implementation (“GNSO Input” Annex) or involves policy (“GNSO
> Guidance” Annex or “GNSO EPDP” Annex).
>
> Before the Sub Pro Initial Report issued, the Co-Chairs and staff
> ultimately agreed to make reference to the GNSO Input, Guidance, and
> EPDP processes but those processes were only referenced and footnoted,
> not actually explained to the ICANN community or the public.
> Importantly, the draft Initial Report language was clarified to delete
> the reference to the Standing IRT “deciding” an issue based on the
> Predictability Framework. Instead, in the Initial Report, there is a
> reference to the Standing IRT being able to “recommend” a resolution
> of the issue. In terms of ICANN governance and the ByLaws as
> modified after the Policy & Implementation WG finished its work, that
> is the correct stance. Establishing some other “gate” or some method
> for determining in advance what is policy and what is implementation
> when the existing processes adopted after a full WG process have not
> been tried does not make sense to me.
>
> By way of additional background, the whole Policy & Implementation
> Working Group evolved from the fact that then-CEO Fadi Chehade decided
> that the “Strawman Solution” in relation to trademarks was
> implementation, not policy. Fadi issued a public statement to this
> effect. GNSO Council members were upset about this and our Co-Chair
> Jeff Neuman wrote the letter to the ICANN Board stating that if the
> Board took action (such as the Strawman Solution) that amounted to a
> change in policy, they had to come back to GNSO for its views on the
> topic and more specifically, to make a determination as to whether the
> topic required more policy work or merely some GNSO input.
>
> Clearly the timing as to when an issue arises (either pre- or post-
> launch) is NOT a determiner of whether it is Policy or
> Implementation. So Chuck Gomes led the P & I WG as a result of the
> GNSO Council’s dissatisfaction with the handling of that issue (and
> others) that arose Post-Launch and we spent more than year (probably
> about 2 years) reviewing numerous issues that arose after applications
> were filed in the 2012 round. That is why the GNSO processes called
> Input, Guidance and EPDP were adopted by the GNSO Council and that is
> why the ICANN ByLaws were amended.
>
> Hopefully the above history helps to clarify why I was quoting
> existing GNSO Operating Procedures and Annexes. Again, I don’t think
> the public understood these processes when the Initial Report issued.
> The current Consensus Policy Implementation Framework (“CPIF”) of the
> GNSO makes specific reference to these processes and requires that IRT
> members be briefed on them.
>
> Anne
>
> *From:* Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] *On
> Behalf Of *Jeff Neuman
> *Sent:* Tuesday, May 7, 2019 1:57 AM
> *To:* gnso-newgtld-wg at icann.org
> *Subject:* [Gnso-newgtld-wg] FW: Follow up from May 6th and CALL FOR
> SMALL GROUP
>
> *[EXTERNAL]*
>
> ------------------------------------------------------------------------
>
> All,
>
> Following up on the call yesterday, we have revised the document on
> the Proposed New Predictability Model. You can find it here:
> https://docs.google.com/document/d/12_x8zYR9r6zXqfA7dmoosSPH12NmcyJ-2FEjecGrBh4/edit?usp=sharing.
> The comments made during the call should be incorporated either as
> revised language itself, or as “comments” for draft language to be
> created.
>
> As we discussed, we would like to have a smaller group dedicated to
> working through the issues that remain on this topic so that a more
> comprehensive proposal can be presented to the full working group at a
> later date on the Predictability Framework. The group is open to any
> current Working Group members. However, if you join the small group,
> you are expected to put in some time to try and resolve whatever
> issues remain. The small group MAY have a call or two, but the hope
> is that all of the work can be done in e-mail and through the
> documents itself. We will create a mailing list to work on these
> issues. This is NOT a formal group.
>
> So far, I think we captured the following people to be on this group
> (from the call last night):
>
> Jeff Neuman
>
> Cheryl-Langdon Orr
>
> Kathy Kleiman
>
> Christopher Wilkinson
>
> Kristina Rosette
>
> There may have been others that already volunteered, but may not have
> captured, so please indicate your interest to us if you want to be a
> part of the smaller team.
>
> We will not be doing formal consensus calls as part of this smaller
> group, but rather just making the proposal better and filling in the
> holes to present to the full working group.
>
> Please let me know if you have any questions.
>
> Best regards,
>
> *Jeffrey J. Neuman*
> Senior Vice President
>
> *Com Laude | Valideus
> *1751 Pinnacle Drive , Suite 600
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> *From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org
> <mailto:gnso-newgtld-wg-bounces at icann.org>> *On Behalf Of *Julie Hedlund
> *Sent:* Monday, May 6, 2019 11:40 PM
> *To:* gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org>
> *Subject:* [Gnso-newgtld-wg] Notes and Action Items - New gTLD
> Subsequent Procedures PDP WG - 06 May 2019
>
> Dear Working Group members,
>
> Please see below the notes from the meeting today, 06 May 2019. These
> high-level notes are designed to help WG members navigate through the
> content of the call and are not a substitute for the recording,
> transcript, or the chat, which will be posted at:
> https://community.icann.org/display/NGSPP/2019-05-06+New+gTLD+Subsequent+Procedures+PDP.
>
>
> Please also see the referenced documents at:
> https://docs.google.com/document/d/1R4zXTH3hIgfbqoxyqsSp19Bl6J96NNeV7oCgxsXKD-w/edit?usp=sharing.
>
> Kind regards,
>
> Julie
>
> Julie Hedlund, Policy Director
>
> *Notes and Action Items:*
>
> *Action Items:*
>
> ACTION ITEM 1: Staff to incorporate edits as discussed into the 2.2.2
> Predictability document.
>
> ACTION ITEM 2: Gather a small group to further develop the 2.2.2
> Predictability document at:
> https://docs.google.com/document/d/12_x8zYR9r6zXqfA7dmoosSPH12NmcyJ-2FEjecGrBh4/edit#heading=h.8vi2q2obcb8w.
> Jeff will send out a call for volunteers to the list. Volunteers
> thus far: Kristina Rosette, Kathy Kleiman and Christopher Wilkinson.
>
> *Notes:*
>
> 1. Updates to Statements of Interest (SOIs): No updates provided.
>
> 2. Review of Summary Documents – (see:
> https://docs.google.com/document/d/1R4zXTH3hIgfbqoxyqsSp19Bl6J96NNeV7oCgxsXKD-w/edit?usp=sharing)
>
> a. Continued: 2.2.2 Predictability / 2.2.2.2 Clarity of Application
> Process: See:
> https://docs.google.com/document/d/12_x8zYR9r6zXqfA7dmoosSPH12NmcyJ-2FEjecGrBh4/edit#heading=h.8vi2q2obcb8w
>
> -- Note: If we don’t come to consensus on a topic then the status quo
> will be as it was implemented in 2012. On the record that some do not
> support that approach.
>
> -- There are some different things relating to IRTs that could be new.
>
> 2.2.2 Predictability:
>
> -- Added bullet: /The Predictability Model _complements_ the existing
> GNSO processes and procedures and shall not in any way operate to be a
> substitute or replacement for those. In fact, they are incorporated
> into the Predictability Framework explicitly./
>
> _Discussion_:
>
> -- “they” references existing processes and procedures.
>
> -- To avoid any doubt in future we might want to add, “In the event of
> a conflict, existing GNSO processes and procedures take precedent.”
>
> -- Change from “shall not in any way operate to be” to “is not
> intended to be”.
>
> What are we proposing:
>
> _B. Changes to ICANN Organization Internal Processes_
>
> _Discussion:_
>
> -- Comfortable that we have a distinction for minor changes.
>
> -- For the first bullet under (b) -- re: “anything visible” -- what
> does that encompass? Add “change the application or any of the other
> processes set forth in the applicant guidebook”. Or “those parts of
> the application that are scored”?
>
> -- Third bullet -- New processes: Some examples have direct relevance
> for the entire community. Such as a new public comment platform.
>
> -- Standing IRT decides what is implementation or policy -- but some
> WG members disagree.
>
> -- Change to “Material adverse impact”?
>
> -- Second bullet -- “all non-minor changes” -- in written policy?
> Answer: The output of this whole thing will eventually be the AGB and
> if there are changes to the AGB they would be written.
>
> -- So not a reasonable response that a process will just take longer
> -- just being a communication. Seems like there should be more
> accountability. Add a comment/note to see if that falls under a
> different category.
>
> -- Filter out those things that can be dealt with in a practical matter.
>
> -- Third bullet: Need a gateway process before we get to these items.
> Wherever something affects the underlying rules has huge implications.
>
> -- Might need to clarify: “New public comment platform” means changes
> to the tools being used to submit. The rules for commenting is the
> same, but the platform is different.
>
> -- Second bullet: Not meant to be a change in the timing, but a change
> in a portal.
>
> -- Add a line after bullet three, “These proposed changes are intended
> to be only those that involve mechanisms with no substantive impact.”
> Question: How is that different from this text, “but rather a New
> ICANN Organization Internal Process and it is likely to have a
> materially [adverse] impact on applicants or community members…”
> Seems similar in meaning.
>
> -- An example of a change that wouldn’t be substantive but could have
> a material adverse impact would be requiring that Legal Rights
> Objections be filed through a proprietary platform instead of email.
> Wouldn't affect the substantive LRO (elements, standing, etc), but
> there may be some potential objectors that, for one reason or another,
> can't use that platform.
>
> -- Are timelines on filing objections seen as a different type of
> timeline as a third-party timeline?
>
> -- What might be a minor change for one party could be a major change
> to others. Adverse outcomes -- for whom? Should there be a policy
> gateway to determine? We don’t have a framework that would be
> considered to be predictable.
>
> -- If there is a gateway then that could delay any changes.
>
> -- Overriding principle is predictability. Trying to improve
> predictability from the last round.
>
> C. _Fundamental Possible Policy Level Changes_
>
> _Discussion:_
>
> -- Some examples seem to be out of scope for an IRT.
>
> -- Deciding something that is policy: a standing IRT can raise that
> issue and the GNSO Liaison can take that back to the Council. Any
> Council member also can raise something for consideration at the
> Council level.
>
> -- So a standing IRT can raise something, but only the Council can
> decide what is policy or implementation, but it sounds like we are
> setting up a separate gateway. The standing IRT cannot be the final
> arbiter, and the Council also can raise it directly.
>
> -- Add to the bullet point that the standing IRT can make a
> recommendation to the GNSO Council as to whether something is policy
> or implementation, but the GNSO will make the final decision.
>
> -- Ensure that this document is cross-referenced to the current
> policies and processes for IRTs.
>
> -- What do we mean by “Staff will collaborate with the community”?
> Answer: That is meant to first go to the standing IRT, which makes a
> recommendation for additional consideration, and then the GNSO decides
> how to handle it -- GNSO Input Process, EPDP, etc.
>
> -- Delete this text, “Staff will collaborate with the community to
> consider the issue and agree upon the mechanism by which the solution
> will be developed. Options could include:” And emphasize the point
> that this is meant to be a community+staff decision, not just staff.
> Mark them as redlined and to be replaced. Come back to this in
> another WG meeting.
>
> -- Helpful to have a workflow diagram for the Predictability Framework
> once concepts are agreed and reconcile with existing ones from IRT
> Guidelines.
>
> D. _Fundamental Possible Policy Level New Proposals_
>
> _Discussion_:
>
> -- Carry over changes from bullets under C.
>
> -- Reaching out to the community means staff reaching out to the
> standing IRT. But don’t think the standing IRT has the authority to
> decide if something is a policy or implementation change. Could have
> a new group that includes members of the IRT, and also Council
> members, and then decide if it goes to the standing IRT.
>
> -- Want to change what we call this because of previous problems with
> IRTs. Want to get the composition right so it is representative of
> the community. Meant to ensure that it is a gateway.
>
> -- A number of groups supported the recommendations in the Initial
> Report but also some dissenting views: ACTION: Form a smaller group to
> further develop this document for the full WG. Volunteers thus far:
> Kristina Rosette, Kathy Kleiman and Christopher Wilkinson.
>
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