[SubPro-IRT] REMINDER | SubPro IRT Meeting #23 | 19 December 2023, 14:00-15:00 UTC

Thu Dec 21 17:39:42 UTC 2023

Hi Jason,

I believe the consensus of all stakeholders, in light of several IRP
decisions, is that the GAC needs to be specific and transparent in stating
its concerns about any application.  Moreover, I think everyone agrees that
the applicant needs a fair opportunity to address those concerns to the
extent feasible.  At minimum, that ought to require a designated point of
contact to discuss the concerns.  If it is clear that contact is the GAC
member (in absence of stating anyone else) then that is fine with me.

Unless they agree now to such commitment, we cannot rely on ICANN staff to
facilitate dialog, as they refused to do so in multiple instances in the
last round, other than for .Amazon due to Amazon's intense lobbying and
legal efforts.

It ought to be a very extreme case where an EW outright rejects the
possibility of any remedy.  Do we all agree on that?  If so, then we should
clearly state that principle here.  Otherwise I am concerned that we will
get a lot of EWs like in the last round, with no real specificity about
concerns, and a simple statement that the applicant can not possibly cure
the situation and must withdraw.  I believe the whole point of this SubPro
exercise, as to these provisions, is to avoid that in future rounds.

Thanks,
Mike

[image: Logo]

Mike Rodenbaugh

address:

548 Market Street, Box 55819

San Francisco, CA 94104

email:

mike at rodenbaugh.com

phone:

+1 (415) 738-8087
*WORLD TRADEMARK REVIEW "WTR 1000" Top Global TM Counsel*
*2012 to present
[Book a Meeting <https://www.cloudhq.net/meeting/oukefXXXv0sUobmxhP3g>]*

On Thu, Dec 21, 2023 at 8:54 AM Merritt, Jason (ISED/ISDE) <
Jason.Merritt at ised-isde.gc.ca> wrote:

> Hi Mike, thanks for the follow up.
>
>
>
> It could just be the way I’m reading it, or the way that it is listed
> numerically makes it seem like additional criteria for an EW. For example,
> 2) seems to be an additional criteria (there may also be reasons other than
> national laws for an EW… the “Overview” section of the draft AGB seems to
> cover this). The second half of the sentence in 3) adds an additional
> ‘rationale’ criteria. Simply indicating that the only solution to address
> the concern is for the applicant to withdraw the application is an option
> for the GAC member in their EW. Either way, the written explanation would
> include these details. On 4), I don’t think there is an obligation to
> provide a contact. In the absence of a contact, the GAC Representative
> would be default. ICANN (GAC Staff) could facilitate a connection if need
> be.
>
>
>
> I think the language should read something like:
>
>
>
> *GAC consensus is not required for GAC Member Early Warnings to be issued.
> Governments issuing Early Warnings must include a written explanation
> describing why the GAC Early Warning was submitted and how the applicant
> may potentially address the GAC member’s concerns, to the extent feasible.
> The GAC member issuing an Early Warning may indicate that its concern can
> only be addressed by the applicant withdrawing its application. *
>
>
>
>
>
> Jason
>
>
>
> *From:* Mike Rodenbaugh <mike at rodenbaugh.com>
> *Sent:* December 19, 2023 9:10 AM
> *To:* Merritt; Merritt, Jason (ISED/ISDE) <Jason.Merritt at ised-isde.gc.ca>
> *Cc:* Next Round Policy Implementation <
> NextRound_PolicyImplementation at icann.org>; subpro-irt@ <icann.org
> subpro-irt at icann.org>
> *Subject:* Re: [SubPro-IRT] REMINDER | SubPro IRT Meeting #23 | 19
> December 2023, 14:00-15:00 UTC
>
>
>
> Hi Jason, thank you for the helpful background.  "To the extent feasible"
> is better than "if applicable" as it eliminates the binary choice with the
> possibility of unexplained "not applicable".
>
> [image: Image removed by sender.]
>
>
>
> I note your last bullet containing Board advice:
>
>
>
>    - The Board believes that the intent of this recommendation can be met
>    if a GAC member provides a rationale why a remedy to their early warning is
>    not possible.
>
>
>
> Your suggested language does not seem to require a rationale if the GAC
> member believes a remedy is not possible.  I would therefore suggest the
> following:
>
>
>
> Governments issuing Early Warnings must include a written explanation
> describing *1) *why the GAC Early Warning was submitted, *2) how specific
> national laws and/or sensitivities are implicated,* *3) *how the
> applicant may address *remedy *the GAC member’s concerns *to the extent
> feasible, or if the GAC member believes a remedy is not possible then the
> GAC member must provide a rationale*, if applicable, as well as *and, 4) *identify
> the *all *objecting countries *and the nominated contact from each*.
>
> Would that work for the GAC?
>
>
>
> [image: Image removed by sender. Logo]
>
> *Mike Rodenbaugh*
>
> *address:*
>
> 548 Market Street, Box 55819
>
> San Francisco, CA 94104
>
> *email:*
>
> mike at rodenbaugh.com
>
> *phone:*
>
> +1 (415) 738-8087
>
> *WORLD TRADEMARK REVIEW "WTR 1000" Top Global TM Counsel*
>
> *2012 to present
>   [Book a Meeting <https://www.cloudhq.net/meeting/XC81iInExBDubRBjgCt>]*
>
>
>
>
>
> On Tue, Dec 19, 2023 at 2:54 AM Merritt, Jason (ISED/ISDE) <
> Jason.Merritt at ised-isde.gc.ca> wrote:
>
> Hi Mike, all,
>
>
>
> I just wanted to flag some language regarding the GAC EW’s.
>
>
>
> Your proposed edits / notes below remove some of the balanced language
> that was agreed with the Board following GAC input. I.e. “ how the
> applicant may address the GAC member’s concerns if applicable” – I believe
> the “if applicable” is what the Board added to address the GAC’s request to
> note this may not always be possible.
>
>
>
> The GAC noted this in the ICANN77 Communiqué: *Regarding Recommendation
> 30.6, the GAC agrees with the notion that a GAC Early Warning should be
> explained and that in order to ensure constructive dialogue at an early
> stage of the procedure and mitigate these concerns it is important for
> government(s) issuing Early Warning(s) or the GAC in its advice to provide
> a written explanation/rationale. However, the GAC wishes to recall the
> compromise language brought forward by the GAC, as applications may not
> always be able to be remedied in the opinion of the government(s) issuing a
> GAC Early Warning. Therefore, the GAC proposes the adoption of an updated
> language to Recommendation 30.6 as follows: “[...] how the applicant may
> potentially address the GAC member’s concerns to the extent feasible”.*
>
>
>
> The Board responded: Regarding Recommendation 30.6 (in the scorecard):
>
>
>
>    - The Board notes that the GAC had previously proposed to amend the
>    recommendation with the same language (“to the extent feasible”), see the
>    2020 GAC’s public comment
>    <https://gac.icann.org/file-asset/GAC%20Subpro%20Final%20Report%20Collective%20Comment%20-%20FINAL.pdf>
>    on the Draft Final Report, and also the 2021 GAC’s public comment on
>    the Final Report
>    <https://gac.icann.org/statement/public/gac-comment-(final)-subpro-final-outputs-for-icann-board-consideration.pdf>.
>
>    - The Board believes that the intent of this recommendation can be met
>    if a GAC member provides a rationale why a remedy to their early warning is
>    not possible.
>
>
>
> I think the wording has to be something like:
>
>
>
> *Governments issuing Early Warnings must include a written explanation
> describing why the GAC Early Warning was submitted and how the applicant
> may address the GAC member’s concerns, [ if applicable, OR to the extent
> feasible ] as well as identify the objecting countries.*
>
>
>
> I hope this helps.
>
>
>
> Regards,
>
>
>
>
>
> Jason Merritt
>
> Sr Policy Advisor, Telecommunications and Internet Policy Branch
> Innovation, Science and Economic Development Canada / Government of Canada
> Jason.Merritt at ised-isde.gc.ca / Tel: 343-571-9775 / TTY: 1-866-694-8389
>
> Conseiller(ère) princ. en politiques, Direction generale des politiques de
> telecommunications et d'Internet
> Innovation, Sciences et Développement économique Canada / Gouvernement du
> Canada
> Jason.Merritt at ised-isde.gc.ca / Tél. : 343-571-9775 / ATS : 1-866-694-8389
>
>
>
>
>
>
>
>
>
>
>
> *From:* SubPro-IRT <subpro-irt-bounces at icann.org> *On Behalf Of *Mike
> Rodenbaugh
> *Sent:* December 19, 2023 12:39 AM
> *To:* Next Round Policy Implementation <
> NextRound_PolicyImplementation at icann.org>
> *Cc:* subpro-irt at icann.org
> *Subject:* Re: [SubPro-IRT] REMINDER | SubPro IRT Meeting #23 | 19
> December 2023, 14:00-15:00 UTC
>
>
>
> Hi all,
>
>
>
> Here are my notes on the current Topic #30 draft paper:
>
>
>
> First paragraph should state that government 'sensitivities' or national
> laws must be specified in the Early Warning.
>
>
>
> Delete fn. 2.  Why should Org be allowed to unilaterally extend this time
> period on its own whim?
>
>
>
> Change this sentence:  The GAC Early Warning notice may *must *include a
> nominated point of contact for further information *consultation with the
> applicant.*
>
>
>
> Clarify this last sentence re EWs:  Governments issuing Early Warnings
> must include a written explanation describing *1) *why the GAC Early
> Warning was submitted, *2) how specific national laws and/or
> sensitivities are implicated,* *3) *how the applicant may address the GAC
> member’s concerns, if applicable, as well as *and, 4) *identify the *all *objecting
> countries *and the nominated contact from each*.
>
> [image: Image removed by sender.]
>
>
>
> The paragraph at fn 6 and 7 needs to be reworked - bad grammar.
>
>
>
> This is not right:  "The applicant will have a period of 21 calendar days
> from the time the Board acknowledges receipt of the advice in which to
> submit a response."  The time period should be longer than 21 days (as it
> would typically take much longer than that to meet with government reps),
> and should not be keyed from a time unknown to the applicant.  Also bad
> grammar.
>
>
>
> Best,
>
> Mike
>
> [image: Image removed by sender. Logo]
>
> *Mike Rodenbaugh*
>
> *address:*
>
> 548 Market Street, Box 55819
>
> San Francisco, CA 94104
>
> *email:*
>
> mike at rodenbaugh.com
>
> *phone:*
>
> +1 (415) 738-8087
>
> *WORLD TRADEMARK REVIEW "WTR 1000" Top Global TM Counsel*
>
> *2012 to present
>   [Book a Meeting <https://www.cloudhq.net/meeting/stTkgqqvVTxS40EySIJv>]*
>
>
>
>
>
> On Mon, Dec 18, 2023 at 6:00 AM Next Round Policy Implementation <
> NextRound_PolicyImplementation at icann.org> wrote:
>
> Dear All,
>
>
>
> Meeting #23 of the SubPro IRT will be held on *19 December 2023* at
> *14:00-**15:**00 UTC* [local time
> <https://www.timeanddate.com/worldclock/fixedtime.html?msg=SubPro+IRT+Meeting+%2323+%7C+19+December+2023%2C+14%3A00-15%3A00+UTC&iso=20231219T14&p1=1440&ah=1>].
> The agenda can be consulted here <https://community.icann.org/x/dZOZDg>.
> Before the meeting, please be sure you have read the ICANN Expected
> Standards of Behavior
> <https://www.icann.org/resources/pages/expected-standards-2016-06-28-en>. Please
> note that *the meeting was rescheduled*.
>
>
>
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