[Gnso-newgtld-wg] Resolving Objection Proceedings with Mandatory PICs

Wed Oct 2 11:24:13 UTC 2019

One definition of “public interest”:     "The well-being of the general public and society.”

And ALL ICANN constituencies should be engaged in it.

Thanks,

Alexander

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Tuesday, October 01, 2019 6:12 AM
To: Kathy Kleiman <kathy at kathykleiman.com>
Cc: gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Resolving Objection Proceedings with Mandatory PICs

I’m familiar with the entities known as the Noncommercial Stakeholder Group and the Electronic Frontier Foundation, and I’m reasonably confident Kathy can speak to their views, particularly since EFF is a member of the NCSG (but perhaps not of this WG, or if so, not particularly active).

I’m not familiar with any entity known as the Public Interest Community. Indeed I’m pretty sure there is no such monolithic entity. I’m not even quite sure what the phrase refers, but to the extent I understand it, it is a diverse group of entities that does not speak with one voice or a single perspective.

I doubt we can ascribe a single position to the “public interest community.”  To the extent we try, it makes no sense to lump it in with NCSG and EFF (and I look skeptically on any attempt to do so). Indeed, I would expect At Large to have a firmer grasp on this group of entities than NCSG — particularly since I believe the public interest community (as I try to understand it) looks primarily to the interests of individual internet users, as does At Large.

Greg

On Thu, Sep 26, 2019 at 6:41 PM Kathy Kleiman <kathy at kathykleiman.com <mailto:kathy at kathykleiman.com> > wrote:

All,

Mandatory PICS are unchanging. You can't resolve an Objection with a Mandatory PIC. It would require a Voluntary PIC -- which has become a misnomer, and a complete garbage can of everything applicants wanted to throw into the kitchen sink. There are longstanding objections to "voluntary PICs" from the Noncommercial Stakeholder Group, Electronic Frontier Foundation and the Public Interest Community (as we discussed many times). There is no high-level agreement on including them -- and they were not part of the Round 1 rules. 

We agreed in last week's call that you could *amend the application* to settle an Objection.  That puts the private Objection settlement out for fuller and fairer review -- which is fair.  Changes to public portion of applications would be subject to public comment -- and hopefully notification to all who have filed comments and therefore are likely interested in following changes to that application.  Publication and public notice on significant changes to applications (with public comment) to settle an Objection was done in Round 1. 

But there was no question that there is a high level Disagreement to settling disputes with changes to PICs --  because mandatory PICs are fixed and unchanging.   This high level Disagreement was raised in every Objections call until last night. Surely we are not saying that if you miss one discussion in the dead of night, you have waived all previous objections?  

I'm assuming GAC objections were the topic at issue here -- and can settled with changes to the application itself.  Many, many changes to public portions of applications were made in response to the GAC in Round 1.  

Best,  Kathy

Kathryn Kleiman, American University Washington College of Law

On 9/26/2019 6:13 PM, Aikman-Scalese, Anne wrote:

Regarding the last call and the possible high level agreement on resolving Objection proceedings with mandatory PICs, it’s important to note that there is no private right of action to enforce a PIC.  The current PIC Dispute Resolution procedure – PICDRP (see attached) provides for various steps to be taken in resolving the PIC complaint and if unresolved, ICANN  at its SOLE discrestion, can invoke a a Staning Panel or undertake a compliance investigation.

So the points I am raising here are:

(1) Proceeding on the report of a PIC violation rests in the sole discretion of ICANN

(2) The expense of the Compliance investigation and/or Standing Panel is an expense of ICANN.

Accordingly, it may be appropriate to consider adopting a private right of action (rather than forcing the expense on ICANN) in connection with the enforcement of mandatory PICs adopted for purposes of resolving an Objection proceeding.

In fact, the PICDRP originally contained a provision allowing the enforcement issue to be taken to a third party provider.  However, that draft did not survive.

Anne

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

 <mailto:AAikman at lrrc.com> AAikman at lrrc.com

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