RE: [bc-gnso] for discussion on 9-Dec call: draft BC comment on registry proposal for Continuity Operations Instrument (COI)

[Phil Corwin <psc@xxxxxxxxxxx>]

Reaching back to 2007 GNSO  Principles seems to me of little relevance to the 
present discussion. That was a year before the Board approved going forward 
with new gTLDs, and also before three succeeding years of multiple drafts of 
the Applicant Guidebook were considered and amended before the Final version 
was approved in Singapore. The Principles have long been supplanted by the 
requirements of the Guidebook.

There will surely be other instances where deciding what is an implementation 
detail and what is substantive will be debatable. But in this case I think it's 
pretty clear - COI is in the Guidebook, and COF is not a proposal for how best 
to implement COI but an entirely new and substitute approach for registrant 
protection in the event of registry failure (that in turn raises a host of 
other new issues related to a pooled insurance fund rather than individual 
registry letters of credit).

I think it is clearly substantive, and that in turn raises the issue of whether 
and when we believe individual constituencies should be allowed to reopen 
substantive debate an Guidebook issues that appeared to be settled.

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/cell

"Luck is the residue of design" -- Branch Rickey

From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of 
icann@xxxxxxxxxxxxxx
Sent: Friday, December 09, 2011 12:42 AM
To: 'Steve DelBianco'; 'Bc GNSO list '
Subject: RE: [bc-gnso] for discussion on 9-Dec call: draft BC comment on 
registry proposal for Continuity Operations Instrument (COI)

Yes.  But as Phil says, the COI requirement was approved by the Board as part 
of the Guidebook, so presumably would take Board action to amend.  Certainly 
would take Board action to adopt COF.  I had thought there was going to be a 
Board meeting today with that on the agenda.  Does anyone know if it happened 
and whether this was discussed?

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
http://rodenbaugh.com

From: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx> 
[mailto:owner-bc-gnso@xxxxxxxxx]<mailto:[mailto:owner-bc-gnso@xxxxxxxxx]> On 
Behalf Of Steve DelBianco
Sent: Thursday, December 08, 2011 7:50 PM
To: 'Bc GNSO list '
Subject: Re: [bc-gnso] for discussion on 9-Dec call: draft BC comment on 
registry proposal for Continuity Operations Instrument (COI)

Good point, Mike.   In the 2007 
Principles<http://gnso.icann.org/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm>
 I found these two relevant items:

A set of capability criteria for a new gTLD registry applicant must be used to 
provide an assurance that an applicant has the capability to meets its 
obligations under the terms of ICANN's registry agreement.

Applicants must be able to demonstrate their financial and organisational 
operational capability.

If that's all GNSO said about it, wouldn't we conclude that the Continuity of 
Operations instrument is an implementation detail?

--Steve


From: Mike Rodenbaugh <icann@xxxxxxxxxxxxxx<mailto:icann@xxxxxxxxxxxxxx>>
Organization: Rodenbaugh Law
Reply-To: <mike@xxxxxxxxxxxxxx<mailto:mike@xxxxxxxxxxxxxx>>
Date: Thu, 8 Dec 2011 19:13:57 -0800
To: Steve DelBianco 
<sdelbianco@xxxxxxxxxxxxx<mailto:sdelbianco@xxxxxxxxxxxxx>>, 'Bc GNSO list ' 
<bc-gnso@xxxxxxxxx<mailto:bc-gnso@xxxxxxxxx>>
Subject: RE: [bc-gnso] for discussion on 9-Dec call: draft BC comment on 
registry proposal for Continuity Operations Instrument (COI)

Thanks Steve.  How does the COF tie back to the original principles that were 
agreed by the Council and the Board by supermajority?  If not specifically 
required in those principles, then by definition it is an implementation 
detail... albeit a big one.


From: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx> 
[mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Steve DelBianco
Sent: Thursday, December 08, 2011 6:35 PM
To: 'Bc GNSO list '
Subject: [bc-gnso] for discussion on 9-Dec call: draft BC comment on registry 
proposal for Continuity Operations Instrument (COI)

On 3-Dec I circulated Draft 2 of the BC comment on the registries' proposal for 
a Continuity of Operations Fund.

This week, Sarah Deutsch offered some clarifying edits.  In his note (below) 
Phil Corwin argues against describing the COF as an implementation detail (see 
Phil's argument below).   I believe Phil's requested change merits a brief 
discussion during tomorrow's BC member call.   (see Draft 3 attached)

These comments were due one week ago so let's try to close this topic tomorrow.

--Steve



From: Phil Corwin <psc@xxxxxxxxxxx<mailto:psc@xxxxxxxxxxx>>
Date: Mon, 5 Dec 2011 17:22:33 +0000
To: Steve DelBianco 
<sdelbianco@xxxxxxxxxxxxx<mailto:sdelbianco@xxxxxxxxxxxxx>>, 'Bc GNSO list ' 
<bc-gnso@xxxxxxxxx<mailto:bc-gnso@xxxxxxxxx>>
Subject: RE: for expedited review: draft BC comment on registry proposal for 
Continuity Operations Instrument (COI)

Steve:

I believe that this document is much improved and have no objection to it.

In particular, I appreciate the fact that the document no longer states that 
the BC plans to file a letter advocating additional changes to the new gTLD 
program's trademark protection requirements - a subject that will first be 
discussed among BC members in the upcoming conference call scheduled for 
Friday, December 9.

However, I would like to propose that the comment be strengthened. In that 
regard, I would propose that the sentence in point #2 that presently reads "We 
are not supportive of the approach presented by the Registry Constituency. " 
should be altered to state "We oppose the approach presented by the Registry 
Constituency".

I am also concerned by the last sentence in the first paragraph of the 
background section - "The BC notes this new approach to considering potential 
improvements in implementation details for the new gTLD Program and provides 
comments on this topic." This seems to concede that the Registry Constituency's 
COF proposal is a mere implementation detail when, in fact, I believe it would 
be a significant substantive change in the new gTLD program that goes far 
beyond an implementation detail. The Registry Constituency was well aware of 
the COI requirement before the Board approved the new gTLD program in 
Singapore, and if registries had significant concerns with it they should gave 
raised them before the Board vote rather than urging a "yes" vote on the AG 
then before the Board. I would propose that the sentence be changed to reflect 
a BC position that COF is far more than an implementation detail and is not 
properly on the table at all.

As previously stated, I have significant doubts about ICANN's ability to 
effectively implement a COF approach because other industry-wide shared risk 
insurance pools --  such as, in the U.S., the FCIC, SIPC, and state insurance 
funds - require a supportive structure of pervasive regulation to ameliorate 
the moral hazard that inevitably arises when an industry participant can shift 
the consequences of its risk-taking to others. I do not believe it would be 
proper for ICANN to assume such a role - nor am I confident it could 
successfully undertake it, given continuing concerns regarding its ability to 
effectively enforce its bilateral contracts with registries. Also, as the BC 
statement notes, a COI offers substantially greater prospects for registrant 
protection in the event of a registry failure.

But the issue is much larger than whether the COF proposal has merit. The issue 
is whether it is properly on the table at all - the issue, in fact, is what 
should be the proper means going forward to consider significant substantive 
changes in the new gTLD program (as distinct from addressing implementation 
details of the current requirements reflected in the Applicant Guidebook and 
standard registry contract).

Here's my problem - we constantly refer to and support ICANN's 
multi-stakeholder policy-making process - but the word "process" implies a 
standard undertaking with a beginning, middle, and end, at the end of which 
things are settled for at least some reasonable amount of time. If ICANN had 
never been spun out of the Commerce Department it would be a government agency 
and its rulemaking process would be under the Administrative Procedures Act. 
The APA provides a well-understood process - there is an advance notice of 
proposed rulemaking which solicits initial comments, then there is promulgation 
of a proposed rule which solicits further comments, then there may even be one 
or two more publications of an altered rule reflecting the comments received 
(and along the way there may have been one or more public hearings to solicit 
oral input) - but in the end there is a Final Rule and it is really final, and 
the grounds for judicial challenge of that Rule are well understood and quite 
narrow. Now it may be proper for the ICANN process to be more flexible than 
that - but in the end it should produce a result with a reasonable degree of 
finality.

We all have concerns about various aspects of the final Applicant Guidebook, 
even though the process of developing it took three years and at various points 
had a make-it-up-as-you-go-along procedural quality . But if any constituency 
can propose major changes to the AG just months after its adoption by the Board 
- and COF, again, appears to be a major substantive departure from COI, not a 
mere implementation detail - then the ICANN process is never final at all, 
nothing is ever settled for even a brief interval. That is really no process at 
all because it provides no reliable finality.  And that in turn, in my opinion, 
raises further questions about ICANN's overall credibility as an organization.

There's also a need to move on from the new gTLD program (aside from monitoring 
its launch and fleshing out details of its implementation) and engage on to the 
many other substantive issues challenging ICANN. If the Registries can advocate 
COF, and if any other Constituency can also propose major substantive changes 
in the program, then we are going to be back into the same disputes that were 
the focus of discussion of three years and that will be a major distraction 
from other pressing issues. Each of us has only so much personal bandwidth to 
devote to ICANN policy matters.

To make clear, I have no problem with further refining the COI, such as 
considering lower financial commitments based on registry type or experience, 
as these seem to be legitimate implementation details.

Summing up, I propose that:

*         The BC change its position on COF from "Not supportive of" to 
"opposes".

*         The BC take the position that COF is a significant AG substantive 
change and proposed replacement for COI, and therefore not an implementation 
detail of COI.

*         The BC engage in a constituency discussion of when and under what 
procedures significant substantive changes in the new gTLD program - as opposed 
to mere implementation of the program as approved by the Board - can properly 
be put on the table for consideration, as well as what the process and standard 
should be for considering and incorporating them.

Regards to all,
Philip



From: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx> 
[mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Steve DelBianco
Sent: Saturday, December 03, 2011 5:29 PM
To: 'Bc GNSO list '
Subject: [bc-gnso] Re: for expedited review: draft BC comment on registry 
proposal for Continuity Operations Instrument (COI)

Rapporteur Jon Nevett incorporated Marilyn's edits into the attached DRAFT 2.  
I also adjusted the opening section to address a concern expressed by Phil 
Corwin today:
The BC notes this new approach to considering potential improvements in 
implementation details for the new gTLD Program and provides comments on this 
topic.

Also attached is a redline comparing draft 1 and 2.

If any BC member objects to the BC filing this Draft 2 comment , please REPLY 
ALL and explain your objections.   If any member objections are noted by 
midnight UTC on 7-Dec, we will ask the membership to vote on the comments.

If no objections are noted, we will post the attached draft to ICANN on 9-Dec.

Thanks to Marilyn and Jon for their work on these comments.


From: Steve DelBianco 
<sdelbianco@xxxxxxxxxxxxx<mailto:sdelbianco@xxxxxxxxxxxxx>>
Date: Fri, 2 Dec 2011 22:43:19 -0500
To: 'Bc GNSO list ' <bc-gnso@xxxxxxxxx<mailto:bc-gnso@xxxxxxxxx>>
Subject: FW: for expedited review: draft BC comment on registry proposal for 
Continuity Operations Instrument (COI)

Last night, Marilyn Cade submitted extensive edits to our draft comments on the 
Continuity of Operations Fund proposal from the Registries.   See second 
attachment and Marilyn's summary of her comments below.

Per the plan I sent this week, we will now allow 7 additional days of review 
time, with a target date to submit by next Friday 9-Dec.   That would make us 
just one week late for ICANN's comment deadline.

Rapporteur Jon Nevett will take first look at Marilyn's edits and will 
circulate a new version over the weekend.

From: marilynscade@xxxxxxxxxxx<mailto:marilynscade@xxxxxxxxxxx>
To: bcprivate@xxxxxxxxx<mailto:bcprivate@xxxxxxxxx>
Subject: IMPORTANT: SEE PROPOSED CHANGES/EDITS IN THE BC DRAFT: for expedited 
review: draft BC comment on registry proposal for Continuity Operations 
Instrument (COI)
Date: Thu, 1 Dec 2011 10:49:10 -0500

I propose several changes  and an enhancement about why the BC cares about this 
topic, and also note that we would like similar opportunity to achieve changes 
in the new gTLD program -- regarding IPR protections. I will send a separate 
email about that topic, based on discussions with Steve, Sarah, and others 
about the existing call for improvements in that area. [Separate email]. My 
comments are as an individual member of the BC on this BC position statement.

The changes I propose to this draft are consistent with BC's positions 
regarding priority of protecting registrants and users.

See 2, where I added ICANN's responsibiilty to act in the public interest.
3. I explicitly stated that we do not support the Regy proposal. That was 
missing from our statement.
I also said that improvements could be made in the COI. See 4.
5. I also added in that the BC fears a high risk of failure of some of the new 
gTLDs.
6. I added that we expect there to be appropriate legal agreements in the 
contracts that would allow for the protection of registered names.

I deleted the old 7, which seemed to say on the one hand, and then on the other 
hand. The purpose of this statement is to either support the Registry proposal, 
or oppose it. I oppose it, for the reasons I noted in my edits. I do think that 
COI can be improved, especially as it regards 'brands' gTLDs.

I was also concerned in reading the transcript of the actual panel in Dakar -- 
I was not able to attend in person -- the panel looked heavily stacked toward 
supporters of the new gTLD program.  However, the important news may be that if 
ICANN will accept suggested changes form a single constituency, we should be 
aggressively be addressing our call for changes in Trademark protection.

Marilyn Cade




From: Steve DelBianco 
<sdelbianco@xxxxxxxxxxxxx<mailto:sdelbianco@xxxxxxxxxxxxx>>
Date: Wed, 30 Nov 2011 18:29:48 -0500
To: 'Bc GNSO list ' <bc-gnso@xxxxxxxxx<mailto:bc-gnso@xxxxxxxxx>>
Subject: FW: for expedited review: draft BC comment on registry proposal for 
Continuity Operations Instrument (COI)

Thanks to all for engaging in the email discussion over these comments.

However, I don't think we've seen any specific edits on the draft circulated 
last Tuesday 22-Nov.

Ron and Phil proposed a more extensive critique of the Guidebook's COI plan, 
but the scope of this comment is reacting to the Registry proposal for an 
alternative mechanism (COF).  I would strongly suggest that Ron and Phil 
individually submit their concerns to ICANN, of course.

Mike Palage advised us to be careful about conflicts of interest, so I propose 
a simple way to do this quickly and transparently:

If any BC member objects to the BC filing the attached draft comment , please 
REPLY ALL and indicate your objection and reason.   If any member objections 
are noted by midnight UTC on 1-Dec, we will extend the process and ask the 
membership to vote on alternate versions of BC comments.   This would mean our 
comments are submitted late, but might still be considered.

If no objections are noted we will post the attached draft to ICANN on the 
closing date of 2-Dec.

Thanks again for engaging in this discussion.

--Steve
(vice chair for policy coordination)


From: Steve DelBianco 
<sdelbianco@xxxxxxxxxxxxx<mailto:sdelbianco@xxxxxxxxxxxxx>>
Date: Tue, 22 Nov 2011 19:04:17 -0500
To: "'bc-GNSO@xxxxxxxxx<mailto:'bc-GNSO@xxxxxxxxx> GNSO list'" 
<bc-gnso@xxxxxxxxx<mailto:bc-gnso@xxxxxxxxx>>
Subject: for expedited review: draft BC comment on registry proposal for 
Continuity Operations Instrument (COI)

Per discussion in Dakar and on our 10-Nov member call, here is a draft of BC 
comments on the a proposed alternative to the for Continuity Operations 
Instrument in the new gTLD Program.

Jon Nevett prepared this draft.

This comment period and docs are described 
here<https://www.icann.org/en/public-comment/rysg-proposal-cof-17oct11-en.htm>.

These comments are due 2-Dec, giving us 10 days for review and approval.   This 
is less than the 14-day period required in our charter, so I am requesting an 
expedited review period.  If any member has substantive objections to the 
expedited review, we can go to 14 days and submit our comments after the ICANN 
due date.

All BC members are invited to suggest edits.     Please use track changes and 
circulate to BC list.

Thanks again to Jon for taking the lead on this.


Steve DelBianco
vice chair for policy coordination, BC
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