[Ws2-transparency] WS2 Transparency Recommendations

Wed Feb 14 20:45:32 UTC 2018

Michael,

As I understand things based on your latest mail below, we will not reopen this issue but will maintain our report as-is, with a minority statement.

In my opinion, that is the correct course of action.

While I respect the opinions of others on this matter, my concern is that in the U.S. most courts could take any such waiver and broaden it to the entire subject matter.

This kind of waiver could place ICANN in jeopardy with respect to probably any litigation, exactly what we agreed not to do in Recommendation #15 where we said privilege-waiver would not be advised where disclosure would be harmful to an ongoing or contemplated lawsuit or negotiation.

This suggested change would be a reversal of that recommendation, indeed qualifying it as a significant change.

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: Sunday, February 11, 2018 12:51 PM
To: ws2-transparency at icann.org
Subject: [EXTERNAL] Re: [Ws2-transparency] WS2 Transparency Recommendations

Hi all,

Thanks to everyone for their thoughtful comments and inputs.
Unfortunately, I've heard back again from Bernard and from the WS2 Co-chairs, and it seems the guidance I received earlier in the week suggesting that amendments were possible before the March 2 deadline was mistaken. Bernard had previously misunderstood my query, and he and the co-chairs have since clarified that re-opening the recommendations is not possible at this juncture. The full email I received is pasted below, for your information.

After receiving the email, I requested clarification for the phrase that "significant formal support from key stakeholders" will be required for any important changes, and received a response that although the focus of the next (March-April) consultation will be on resolving inconsistencies between sub-groups, the plenary will want to understand where the chartering organizations stand on any issue including this potential one, for the reason that the final recommendations will go to them for approval.

In other words, if people feel that the minority position should be adopted (or that Mike Rodenbaugh's additional input should be), the avenue to express this would be during the next consultation, and through your constituency inputs and comments. The BC had a call on this last week, and expressed support for the Minority position, as well as for Mike Rodenbaugh's additional suggestion, and I believe that the NCSG feels the same way, but I guess we will see.

Anyway - sorry about the misunderstanding regarding the current process. Please do keep the conversation going, if you have additional thoughts on the recommendations for ICANN legal, and we can see where the conversation leads.

Best,

Michael Karanicolas

-----------

Michael,

The Co-Chairs have considered your request and do not believe that it is possible for the CCWG-Accountability-WS2 to accommodate it given our schedule and processes.

The Transparency report was accepted as final, with a minority statement, at the Face to Face at ICANN 60 in Abu Dhabi as were several others.

Reopening it at this point would require significant support in the plenary to do so, but even if this were to be obtained the proposed change would probably be considered significant and as such would require an additional public consultation - which from a timeline point of view is inconsistent with the WS2 approved 2 March deadline for submitting final recommendations to the plenary if they are to be included in the final WS2 recommendations.

I will note that the 2 March deadline is to allow us to prepare a complete set of WS2 recommendations for public consultation in March-April 2018 which should focus on our resolving inconsistencies between sub-groups. Obviously we will consider all comments that are presented but requests for any important changes at that point would probably require significant formal support from key stakeholders in our process to be considered.

Hope this is clear and makes sense.

On Wed, Feb 7, 2018 at 6:07 PM, Dr. Tatiana Tropina <t.tropina at mpicc.de> wrote:
> Hi all,
>
> as someone who attended the intersessional, I would like to express my
> support to Michael's suggestion. Yes, the schedule is tough, but I
> believe it is important to include these concerns into consideration.
>
> Michael, thanks for bringing in to the list.
>
> Warm regards,
>
> Tatiana
>
>
> On 05/02/18 18:43, Michael Karanicolas wrote:
>
> 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
>
>
>
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