[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 07 October 2019
Jeff Neuman
jeff.neuman at comlaude.com
Tue Oct 8 19:15:39 UTC 2019
Thanks Anne. I can confirm that we will spend time in Montreal discussing what, if anything, needs to go out for public comment.
If you look at all the reconsideration requests, 99% of them were dismissed based on the assertions by the board that ICANN did not violate any existing policies or the Bylaws by relying on decisions made by the evaluators. If you go back and read them, they all point out that so long as evaluators and panelists followed the proper procedures, that ICANN could not violate the Bylaws or any of ICANN policies by relying on the results. This is true regardless of whether the decisions by the evaluators or panelists were substantively correct or in line with the Guidebook. The new Bylaws do not materially fix this. Sure as a lawyer, you can make an argument that it may….but is that what we want to rely on?
Anne, this was extensively discussed by WT3 and was supported by all of the comments. I appreciate the fact that you are grappling with these issues now, but we need to hear from the rest of the group as well.
Best regards,
Jeff Neuman
Senior Vice President
Com Laude | Valideus
D: +1.703.635.7514
E: jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>
From: Aikman-Scalese, Anne <AAikman at lrrc.com>
Sent: Tuesday, October 8, 2019 2:43 PM
To: Jeff Neuman <jeff.neuman at comlaude.com>; Julie Hedlund <julie.hedlund at icann.org>; gnso-newgtld-wg at icann.org
Subject: RE: Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 07 October 2019
Jeff – The chart is actually a way of defining rights and remedies and it has huge impact on how the appeal rights will be drafted in the implementation phase. That is why public comment is needed before including the information in a proposed “final report”.
Of particular concern in your response to my email is the suggestion pasted in red below that the ICANN Board won’t need to give serious thought to a Request for Reconsideration if the matter is not appealed or is turned down on appeal. (It’s not clear from your comment which condition you intend.) This sidesteps the Accountability work is very far from your logic that the two processes address two different types of concerns. Your statement pasted below emphasizes the problem in having two different rights and remedies based on the same fact scenario. You say:
[Jeff] I actually believe that we would be generating more efficiencies. ICANN could summarily dismiss reconsideration requests that allege the same things as what would have been heard in the appeals. It would be that much more justified in doing so.
Separately, a lot of your references seem to allude to no further public comment and that is also a matter of great concern as there are a number of issues where we have “loose ends” including each of the small groups. Will you and Cheryl please confirm that the Montreal agenda for the full WG will include time to discuss (1) status of small group work and (2) issues that may require further public comment before a Final Report can be generated?
Anne
From: Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>
Sent: Tuesday, October 8, 2019 9:20 AM
To: Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>; Julie Hedlund <julie.hedlund at icann.org<mailto:julie.hedlund at icann.org>>; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: RE: Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 07 October 2019
[EXTERNAL]
________________________________
Thanks Anne. Please see my responses below yours in red. These are my own personal opinions, but they have informed by the discussions of Work Track 3, the discussions on the Terms and Conditions (from Work Track 2), and the comments that have been received.
Jeff Neuman
Senior Vice President
Com Laude | Valideus
D: +1.703.635.7514
E: jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>
From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Aikman-Scalese, Anne
Sent: Monday, October 7, 2019 2:59 PM
To: Julie Hedlund <julie.hedlund at icann.org<mailto:julie.hedlund at icann.org>>; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 07 October 2019
My comments on this Monday call are as follows:
1. CONFUSION BETWEEN APPEALS AND REQUEST FOR RECONSIDERATION. Actions by ICANN staff (such as evaluations) should not be subject to appeal. This undercuts the Accountability work already done and creates more delay; Appeals should be limited to third party decisions. Otherwise, you will get double filings – appeal and Request for Reconsideration.
[Jeff} Although there has been a considerable amount of work on Accountability, I do not agree that those measures would apply in cases where staff acts as an evaluator or brings decisions in house.
Reconsideration: In order to request reconsideration, a requestor must demonstrate one of the following: (i) One or more Board or Staff actions or inactions that contradict ICANN's Mission, Commitments, Core Values and/or established ICANN policy(ies)....(ii) One or more actions or inactions of the Board or Staff that have been taken or refused to be taken without consideration of material information, except where the Requestor could have submitted, but did not submit, the information for the Board's or Staff's consideration at the time of action or refusal to act; or (iii) One or more actions or inactions of the Board or Staff that are taken as a result of the Board's or staff's reliance on false or inaccurate relevant information.
If ICANN does the evaluations in house and just gets things wrong. For example, lets say they believe that two strings are visually similar (eg., unicorn and Unicom) and put them in the same contention set. Lets say the applicants completely disagree with this decision arguing that no one would believe these would be confusing. If a Reconsideration request was brought, what would be the claim? How would ICANN staff’s decision contradict ICANN’s Mission, Commitments, Core Values and/or established ICANN policy(ies)?
Without a substantive appeals mechanism, ICANN would argue that even if its decision were wrong, that the decision itself did not violate ICANN’s Mission, Commitments, Core Values and/or established ICANN policy(ies). How do we know they would do that? Because this is what it always argued before (AND AFTER) the bylaws were changed. In addition, the Applicant Guidebook itself is not in the Mission, it is not a Core Value, or an established policy. Thus, acting inconsistently with the Guidebook may not be in violation of the Mission, Commitments, Core Values and/or established policy(ies).
Will lawyers file both an appeal and reconsideration? Perhaps, yes. But if there were an appeals process, it is quite probable that the reconsideration process would defer to the appeal first. And then if there were a reconsideration after that, the BAMC would likely do what it would have done from the beginning, namely, dismiss the reconsideration request because accepting either the original evaluation result or the appeal would not b a violation of the Bylaws.
.
1. The only remedy would be to make appeal a prerequisite to Request for Reconsideration. In this regard, I share the concern that we are creating a layer of delay. EXAMPLE: Would the award of .WEB be an appeal or a Request for Reconsideration or both? Would appeal be a prerequisite to a Request for Reconsideration? (Those opposed say (1) ICANN got it wrong and (2) ICANN violated missions and processes.) Alternatively, we can say that if Request for Reconsideration applies, then appeal does not. Or we simply decide it’s okay to file both an appeal and a Request for Reconsideration at the same time – but what about inconsistent decisions? Which of these alternatives for distinguishing the remedies is the WG recommending?
[Jeff] I actually believe that we would be generating more efficiencies. ICANN could summarily dismiss reconsideration requests that allege the same things as what would have been heard in the appeals. It would be that much more justified in doing so.
OVERALL COMMENT: The other thing we need to consider is that ICANN Board Members in many cases have full time jobs apart from their serving on the Board. They are volunteers that already have too much on their plate. They are not experts by any means in dispute resolution, adjudication, or even the intricacies of the domain name system. If there are thousands of applications, and ICANN does move some of its functions in house, how can we expect them to hear all of these cases and make decisions in a timely manner. The ICANN Board is meant to hear the large overarching cases involving violations of bylaws. Not disputes about whether .unicorn looks similar to .unicom.
The best way in my opinion is not to focus on who commits the action or inaction giving rise to the appeal. But rather, look at the substance behind the appeal. If it relates to a new gTLD evaluation, or objection, then regardless of who does the evaluation or objection, the appeal process should be the same.
1. FURTHER PUBLIC COMMENT NEEDED. When the Working Group finally agrees on a matrix showing the various appeal provisions (and corresponding flow charts), these should definitely be put out for public comment.
[jeff] The Matrix is a tool for this Working Group to think through the issues. It is not a deliverable or a report. If we as a group decide to include it in the final report or it forms part of our decision, then perhaps it gets sent out. But that discussion right now is premature.
1. FURTHER LIVE DISCUSSION OF CHARTS. I agree with those who noted that limiting further live discussion to the list is inadequate. There should be live discussion time devoted to the revisions being made by staff and the WG member comments that will be entered in the Google sheets do. Here should also be live discussion of the flow charts to be drafted. Further live discussion should occur at the top of the agenda on the October 10 call (or latter if materials are not ready for that call.)
We need to move on to the next subject. But I believe you will shortly see the revised chart. We should not have to always rely on live conversations, but should attempt to progress discussions as much as we can on the list.
Anne
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, October 7, 2019 9:38 AM
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 - 07 October 2019
[EXTERNAL]
________________________________
Dear Working Group members,
Please see below the notes from the meeting on 07 October 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/2019-10-07+New+gTLD+Subsequent+Procedures+PDP.
Kind regards,
Julie
Julie Hedlund, Policy Director
Notes and Action Items:
Actions:
Accountability Mechanisms -- Evaluation Procedures:
Background Screening:
ACTION ITEM 1: Add a row in the chart where the applicant can appeal and for contention sets and exact match, for WG comment.
CPE:
ACTION ITEM 2: Someone has to pay the brunt of the cost -- who paid last time for .gay? Was that the service provider? Ask ICANN Org.
ACTION ITEM 3: Add Applicant Support Program as new line 14.
Notes:
1. Updates to Statements of Interest: No updates provided
2. Review of summary documents:
a. Accountability Mechanisms -- See: https://docs.google.com/document/d/1BkRn9nYeBNjyx2mTw-3nIDn22jTumWd4w1PZR-KNrPs/edit?usp=sharing [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_document_d_1BkRn9nYeBNjyx2mTw-2D3nIDn22jTumWd4w1PZR-2DKNrPs_edit-3Fusp-3Dsharing&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=mBQzlSaM6eYCHFBU-v48zs-QSrjHB0aWmHuE4X4drzI&m=fzAGthS59M6Ja4eWRH-tXjhHXW0h74Ii50a2U7XH5Ow&s=jpXSa64TPR6HkgQjBvjd6X3sp9CKdveWxSSM1pMRqrk&e=>, page 19 -- Who will be the arbiter of such an appeal?
See also: concepts related to the Limited New gTLD Appeals Processes:https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8fIU0IOwu8/edit#gid=0
-- This is an aid to help everyone. It is not a final document. WG members can make comments during the call and afterwards.
Evaluation Procedures:
-- Add line 13 -- CPE
Background Screening:
-- Should there be a panel of experts? For string similarity they were farmed out to do the background screen.
-- In this case we don’t know if there could be some kind of standing panel.
-- Not sure how prescriptive the WG should be. But the Individual Evaluator who made the decision probably shouldn’t be the one that reviews the appeal.
-- For background screening, Applicant for identical string should also have a right to appeal. There was no mechanism for this in the last round and ICANN ignored objections when someone passed who should not have passed under the clear language of the AGB. If contention sets are done before screening then anyone in a contention set should have the right to appeal.
-- Doesn’t that open every single applicant up to an additional layer of delay by contestants?
-- Does it mean that an applicant has to pay for bad work of the screeners of the first wave?
--
Evaluators should be INDIVIDUALS with recognized personal expertise.
-- If it is loser pays that addresses concerns about frivolous appeals.
-- Real life example: CPE that had to be done a second time for .gay. In that case .gay didn’t pay, not sure who did.
-- How would a member of the public have access to the private portions of the application?
(How would a private party challenge that application?)
-- Not all background information is private
-- We’re talking about background screening. It seems like clear parameters (felony, x number of UDRP losses, etc) should be established so it is not subjective.
-- Appeal would be on one of the publicly known data points.
-- This is a concern for .brands, but not just .brands.
ACTION: Add a row in the chart where the applicant can appeal and for contention sets and exact match.
CPE:
-- Someone has to pay the brunt of the cost -- who paid last time for .gay? Was that the service provider? Ask ICANN Org.
ACTION: Add Applicant Support Program as new line 14.
Objections:
String Confusion Objection:
-- Question: What’s the difference between the appeals that are allowed for string similarity? Answer: The string similarity evaluation as the way it was in 2012 was a strictly visual evaluation. That was a pass/fail. If the application failed the evaluation then it was thrown out (if similar to another string). If similar to another application then it was thrown into a contention set. The string confusion is a broader analysis, looking at other factors other than just visual. It’s between the applicant and an existing TLD objector or another applicant objector. It’s an appellate process if the existing objector believes that the evaluator got it wrong. In 2012 if it was decided that a string was in a contention set there was not way for an applicant to appeal being put in a contention set as there were no grounds for objection.
-- When .unicorn and .unicom where put in the same contention set there was no appeal for that or objection.
-- In the case shown in the matrix, .unicorn or .unicom could appeal.
-- Doesn't this mean that contention sets need to be done very early so that any contention set folks can use the string similarity objectioner string non-similarity objection? Yes.
Legal Rights Objection:
-- Questions: 1) Weren’t we trying to come up with narrowly tailored appeals? 2) how much consideration has been given to the 15 days? Answer: For this charter whatever grounds we decide on for Legal Rights Objections are used, and we are just talking about appeals. We haven’t decided if there should a de novo review or where something is clearly erroneous where the panel made a mistake. Still need to decide the burden of proof/standard. Also need to decide what the timeline must be, 15 days is just an example/placeholder. Could a be notice of appeal in 10 days and a brief within 20 days.
Limited Public Interest Objection:
-- Included ALAC because their fees are covered by ICANN.
-- On the last call we talked about options for applicants. On the last call some people did not agree that the Independent Objector should have a right to an appeal due to costs. Did the Work Track discussing this issue provide any guidance? Did not think there was enough support to get rid of the IO and didn’t think there would be anyone else who would have the will to file an appeal. WT3 decided to keep the IO but there were no discussions on appeals.
-- Question: Do we want ICANN and Contracted Parties to pay for the IO to be able to appeal a decision?
-- Plus a remote possibility for extension of time under special circumstances.
-- If the IO fails is there another objection that can be used? Depends on whether there are mechanisms under the Bylaws, also the GAC could file advice, and any third party that filed the initial objection could appeal, but who pays the costs?
-- IO should have the same rights of appeal.
-- If appeals are designed to counter panelist mistakes then it does appear to discriminate against IO objections
.
-- Add back in that the IO can appeal under user pays (which would be ICANN).
-- ALAC has no funding ability beyond that supplied by ICANN.
-- Still there that whether it is a team of IOs -- we said that there should be multiple IOs. We use it in the singular, but it could be a team. If there is a team, then there would not have to be an appeal.
-- But what if the IO team made a mistake?
-- In the previous discussion there were no objections to ALAC making an appeal, but there were to ICANN funding it. That makes no sense because there is no ALAC as such without ICANN. ALAC will provide a statement.
-- Talked about budgets for IOs -- if they have the budget to go to appeal they IOs should be able to take that into account. Budget should be scaled to applications.
Community Objection:
-- Should increase the number of days to file -- 15-20 days for notice of appeal, and 45 days to file the appeal.
-- Plus a remote possibility for extension of time under special circumstances.
Conflict of Interest of Panelist:
-- Question: In the Chamber of Commerce you can challenge an arbitrator as soon as you know. If the issue has already been heard we don’t want to encourage anyone to wait? Answer: They should go through the normal conflict process, and then if they disagree with that decision then they could appeal it. It is appealing the decision of the entity who made the decision on conflicts.
-- What about 15 days from when the appealing party has knowledge of the conflict. Conflicts aren't always known up front.
-- Interlocatory means before a decision is made in the case.
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