[gnso-rds-pdp-wg] obtaining legal support

[Lisa Phifer]

Hi Greg,

The GNSO/Board group that developed the Process 
Framework for this PDP considered developing 
additional inputs on cost, legal, and risk impact 
analysis prior to WG launch but concluded that 
all of these must be developed after the WG 
agrees on possible requirements and policies to be analyzed.

In fact, members of the GNSO/Board group spent a 
couple of months looking into whether further 
legal and cost analysis could be usefully 
performed before the PDP WG started. They 
considered what questions could at this early 
stage be asked of and answered by outside experts 
to inform the PDP WG. Ultimately, they concluded that it was just too early.

You can see this GNSO/Board group conclusion 
reflected in the Process Framework (see "DP law 
compliance" in phase 2 and "detailed legal 
analysis" in phase 3) and also in the charter, 
where it is envisioned that "during phases 2 and 
3, the WG may engage outside experts as needed to 
inform its work, particularly when formulating 
coexistence and implementation guidance."

In short, the need is reflected in the charter, 
to be fulfilled when the time is right.

Best, Lisa


At 12:59 PM 4/26/2016, Greg Aaron wrote:
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>This note is especially directed to the WG 
>leaders.  I am wondering at what point the 
>Working Group secures legal support.
>
>Our current round of document review reminds me 
>of how complex the legal issues are -- including 
>privacy and data protection law, law 
>enforcement, contracts, and legal 
>jurisdictions.  There is the expectation that 
>our WG will make policies designed to address 
>various legal problems and requirements, and 
>that those policies will be in place for years 
>to come.  So it is imperative that we get things right.
>
>The WG has access to a number of documents, and 
>the WG has some fine legal experts on it, but 
>this may not be enough.  Our legal-eagle members 
>hail from certain jurisdictions, and there may 
>be gaps in their geographic expertise.  They 
>also have day jobs and as volunteers may not be 
>able to do all the lifting and research that may eventually be needed.
>
>I also see gaps in the ICANN processes to date, 
>and therefore in the resulting documents.  In 
>2012 the WHOIS Policy Review Team laid out some 
>of the legal issues, but it was not for that 
>group to analyze the issues and potential 
>solutions in any depth.  Then the EWG proposed a 
>specific solution, but provided fairly little in 
>the way of legal analysis and justification, and 
>it is unclear what legal advice the 
>EWG  received, beyond a memo prepared by the 
>ICANN legal staff.  For example, the EWG report 
>doesn’t even contain a reference to EU Article 29.
>
>The IANA transition was another complicated 
>issue, and the transition CWG received dedicated 
>assistance in the form of neutral outside legal counsel.
>
>I am curious about whether the RDS WG leadership 
>has given thought to this issue, and how to manage it over time.
>
>With best wishes,
>--Greg Aaron
>
>P.S.: Legal support also strikes me as an 
>excellent use of the nTLD application and 
>auction proceeds 
although I suppose that’s another matter!
>
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