[Ws2-transparency] WS2 Transparency Recommendations

[McAuley, David]

Hi Michael,

On a quick scan, I imagine I will have comments on this.

However, I have a completely booked-up schedule this week so write now to say that intervening silence should not be taken as agreement.

In the meantime, however, it would be nice to hear from ICANN Legal on this if they plan on commenting.

Best regards,
David

David McAuley
Sr International Policy & Business Development Manager
Verisign Inc.
703-948-4154

-----Original Message-----
From: Ws2-transparency [mailto:ws2-transparency-bounces at icann.org] On Behalf Of Michael Karanicolas
Sent: Monday, February 05, 2018 12:43 PM
To: ws2-transparency at icann.org
Subject: [EXTERNAL] [Ws2-transparency] WS2 Transparency Recommendations

Hi all,

Hope everyone is doing well. I am just writing to follow up on the NCPH Intersessional, which took place last week. Included in the program was a session on transparency at ICANN legal. If you'll recall, when the recommendations were presented in Abu Dhabi, there was a fairly strong reaction among the audience that we didn't chart a stronger avenue forward for improving transparency at ICANN legal, which resulted in the drafting of a minority statement by Robin Gross of the NCSG and Malcolm Hutty of the ISPCP. The minority statement is attached.

At last week's Intersessional, both the NCSG and the CSG leadership came out very strongly in support of the minority statement, and asked that we consider including these recommendations in the main report.
Having taken another look at the minority statement, which is attached, I also support this, since it seems to offer more clarity without crossing any of the areas that people objected to in previous drafts.

There are two main strands to the recommendations in the minority statement. The first is to initiate a public consultation on principles for how attorney-client privilege should be applied in ICANN's context. This basically just mirrors our existing language in Recommendation 15, but states in a clearer way, so that shouldn't be too controversial, I don't think.

The second strand has three parts. First, it says that the mere fact that attorney-client privilege is available will not be determinative in whether it should be applied. Again - I don't see this as being too controversial, since it doesn't do anything to narrow the privilege, and is even consistent with ICANN legal's own proposal for the recommendation (which focused on committing to review materials before privilege is invoked). The second strand says that the mere fact that disclosure might assist a claimant or potential claimant in a case pursuant to the Independent Review Process shall not, of itself, be considered sufficient reason to assert attorney-client privilege. This is broadly in line with our general approach of looking for specific harms before information is classified, but it also asserts that fostering participation in an IRP should not be considered a "harm".
We never discussed IRPs specifically, I don't think - but hopefully this is also not controversial. The third strand refers back to the “Purposes of the IRP”, as set out in Section 4.3 of the Bylaws, to further support the idea that IRP connected material may be disclosed.

I realize it is very late in the process, but I was hoping to find a way to address the dissatisfaction that was expressed when these recommendations were addressed publicly, and hopefully to bring the supporters of the minority statement on board. Please let me know if you have any thoughts on this, or objections.

Best,

Michael Karanicolas