[SubPro-IRT] REMINDER | SubPro IRT Meeting #23 | 19 December 2023, 14:00-15:00 UTC
Merritt, Jason (ISED/ISDE)
Jason.Merritt at ised-isde.gc.ca
Thu Dec 21 19:56:43 UTC 2023
I don’t think there is a dispute over whether or not an EW requires a written explanation, which would include outlining potential ways to address the concerns, to the extent feasible. But all this is already captured in the draft AGB language, so unless there are additional caveats, burdens, criteria being layered on top of this I don’t see the issue.
My suggestion regarding ICANN staff was not for them to be involved in facilitating any dialogue, rather it was to simply be a conduit for exchanging contact information. Perhaps this isn’t an option. If a contact isn’t provided the default should be the GAC Member.
Jason
From: trachtenbergm at gtlaw.com <trachtenbergm at gtlaw.com>
Sent: December 21, 2023 12:51 PM
To: mike at rodenbaugh.com; Merritt at mm.icann.org; Merritt, Jason (ISED/ISDE) <Jason.Merritt at ised-isde.gc.ca>
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Subject: RE: [SubPro-IRT] REMINDER | SubPro IRT Meeting #23 | 19 December 2023, 14:00-15:00 UTC
I agree and would go further to say that neither the GAC nor any individual GAC member should be able to nuke an application without the concern enumerated in the EW being reasonable, clear and specific, and including a reasonable opportunity for the applicant to address the concern absent the most extreme of circumstances. If the EW is not based on clear, specific, and/or reasonable grounds then the applicant should have some remedy other than withdrawing its application.
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From: SubPro-IRT <subpro-irt-bounces at icann.org<mailto:subpro-irt-bounces at icann.org>> On Behalf Of Mike Rodenbaugh
Sent: Thursday, December 21, 2023 11:40 AM
To: Merritt at mm.icann.org<mailto:Merritt at mm.icann.org>; Jason <Jason.Merritt at ised-isde.gc.ca<mailto:Jason.Merritt at ised-isde.gc.ca>>
Cc: icann.org <subpro-irt at icann.org<mailto:subpro-irt at icann.org>>
Subject: Re: [SubPro-IRT] REMINDER | SubPro IRT Meeting #23 | 19 December 2023, 14:00-15:00 UTC
*EXTERNAL TO GT*
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
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On Thu, Dec 21, 2023 at 8:54 AM Merritt, Jason (ISED/ISDE) <Jason.Merritt at ised-isde.gc.ca<mailto: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<mailto:mike at rodenbaugh.com>>
Sent: December 19, 2023 9:10 AM
To: Merritt; Merritt, Jason (ISED/ISDE) <Jason.Merritt at ised-isde.gc.ca<mailto:Jason.Merritt at ised-isde.gc.ca>>
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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".
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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?
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Mike Rodenbaugh
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email:
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phone:
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On Tue, Dec 19, 2023 at 2:54 AM Merritt, Jason (ISED/ISDE) <Jason.Merritt at ised-isde.gc.ca<mailto: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://urldefense.com/v3/__https:/gac.icann.org/file-asset/GAC*20Subpro*20Final*20Report*20Collective*20Comment*20-*20FINAL.pdf__;JSUlJSUlJQ!!DUT_TFPxUQ!ESSezKtEwJYLA_jYzCXcBrQtIS4n_8e0YgQql-S5dQ__JKvKvfHw8FUh_vw1KiGkQVis88pbtQfrpavb6g$> on the Draft Final Report, and also the 2021 GAC’s public comment on the Final Report<https://urldefense.com/v3/__https:/gac.icann.org/statement/public/gac-comment-(final)-subpro-final-outputs-for-icann-board-consideration.pdf__;!!DUT_TFPxUQ!ESSezKtEwJYLA_jYzCXcBrQtIS4n_8e0YgQql-S5dQ__JKvKvfHw8FUh_vw1KiGkQVis88pbtQfk3j-K6Q$>.
* 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<mailto: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<mailto: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<mailto: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<mailto:NextRound_PolicyImplementation at icann.org>>
Cc: subpro-irt at icann.org<mailto: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.
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
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Mike Rodenbaugh
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On Mon, Dec 18, 2023 at 6:00 AM Next Round Policy Implementation <NextRound_PolicyImplementation at icann.org<mailto: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://urldefense.com/v3/__https:/www.timeanddate.com/worldclock/fixedtime.html?msg=SubPro*IRT*Meeting**A2323**A7C*19*December*2023*2C*14*3A00-15*3A00*UTC&iso=20231219T14&p1=1440&ah=1__;KysrJSslKysrJSslJSs!!DUT_TFPxUQ!ESSezKtEwJYLA_jYzCXcBrQtIS4n_8e0YgQql-S5dQ__JKvKvfHw8FUh_vw1KiGkQVis88pbtQdMFstL8g$>]. The agenda can be consulted here<https://urldefense.com/v3/__https:/community.icann.org/x/dZOZDg__;!!DUT_TFPxUQ!ESSezKtEwJYLA_jYzCXcBrQtIS4n_8e0YgQql-S5dQ__JKvKvfHw8FUh_vw1KiGkQVis88pbtQexseQmXA$>. Before the meeting, please be sure you have read the ICANN Expected Standards of Behavior<https://urldefense.com/v3/__https:/www.icann.org/resources/pages/expected-standards-2016-06-28-en__;!!DUT_TFPxUQ!ESSezKtEwJYLA_jYzCXcBrQtIS4n_8e0YgQql-S5dQ__JKvKvfHw8FUh_vw1KiGkQVis88pbtQddCpTbZg$>. Please note that the meeting was rescheduled.
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