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Re: [gnso-dt-wg] Rework of motion

  • To: "Gomes, Chuck" <cgomes@xxxxxxxxxxxx>
  • Subject: Re: [gnso-dt-wg] Rework of motion
  • From: Robin Gross <robin@xxxxxxxxxxxxx>
  • Date: Sun, 24 Feb 2008 14:15:12 -0800

Since we have begun a process to better understand this practice:

What is the rationale for keeping the grace period given its use for the unintended practice "tasting", which is not in the interest of the overwhelming majority of Internet users?

Or is it?

I haven't heard a convincing case for allowing the practice to continue.


On Feb 24, 2008, at 1:18 PM, Gomes, Chuck wrote:

It seems clear to me that my effectiveness in communicating my concerns
about process is falling way short, so let me try in a different way.

I strongly believe that the recommendations that the BGC WG for GNSO
Improvements with regard to policy development and in particular the
working group model are right on target. I fully understand that those
recommendations have not been approved yet, but the goals behind them
are reasonable goals for us now and are fully consistent with the
current PDP. In spite of all of its inadequacies, the PDP as described in the Bylaws was intended to provide a procedure for developing policy in a collaborative way that deals as best as possible with the concerns
of as many impacted parties as possible.  With or without
implementations of the GNSO Improvement Recommendations, our goal should
not be anything less.

The GNSO Improvement Recommendations specifically suggest that the GNSO Council should move away from being a legislative body. There seems to
be a lot of misunderstanding on this, so let me try to illustrate my
views by using the latest Whois work as an example. Would it have been
acceptable to implement the OPoC proposal just because there was simple
majority support on the Council?  I do not think so, but under a
legislative approach, that would have been okay. If we operate the
Council as a legislative body, then our goal will be to come up with
policies for which we can gain simple majority support. But that would
result in policy recommendations that I believe are far from consensus
and certainly do not come close to addressing the needs of many

The legislative approach is much faster; that is a fact.  But I do not
believe that it would result in the best policy recommendations. Again,
I cite the OPoC proposal.

Whois is a much tougher problem than domain tasting but we still need to make sure that we deal with all possible impacts in the best way we can.
Bottom up processes take more time but also have the potential of
yielding better long-term results that need less tweaking after


-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt- wg@xxxxxxxxx] On
Behalf Of Gomes, Chuck
Sent: Saturday, February 23, 2008 8:51 AM
To: Mike Rodenbaugh; gnso-dt-wg@xxxxxxxxx
Subject: RE: [gnso-dt-wg] Rework of motion

A few corrections and clarifications below Mike.


-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt- wg@xxxxxxxxx] On
Behalf Of Mike Rodenbaugh
Sent: Friday, February 22, 2008 3:34 PM
To: gnso-dt-wg@xxxxxxxxx
Subject: RE: [gnso-dt-wg] Rework of motion

I would prefer to vote on the proposal ASAP.  Council has already
decided not to have a Task Force, and had commissioned an open WG
already, and has taken Constituency Impact Statements.  This proposal
has been thoroughly vetted through open process.  I see no hope of
coming to a solution that RyC will accept, because their position
appears to be that ICANN can't make policy that binds them, unless they
agree.  And they haven't agreed to any policy development the last 3
years, except for newTLDs which will make them more money and
Inter-Registrar Transfer which will save them money via less disputes.
Seems to me that RyC is again trying to delay policy development for as long as they can, by throwing up bogus arguments about lack of process.

CG: The open WG was an information gathering WG. The impact statements
were not based on any policy recommendations developed by a PDP.  What
proposal was "thoroughly vetted"?  Certainly not the proposal in the

While we won't have a SuperMajority (if indeed we even have a majority), it will be clear why, and the Board can do as it likes. And we can move
onto other issues as we will have done our job.  I simply have no
confidence that
3 more months will produce anything different in the situation we have
today.  I have lost patience on this issue because the practice is so
facially wrong and has garnered almost unanimous antipathy from the
non-contracting community, yet Council have spun our wheels endlessly
for about a year now, fruitlessly trying to do anything about it.
Process like this gives ICANN a bad name.

CG: Whether or not you think additional time will produce what you want
is not the issue.  The issue is whether or not we have a legitimate
policy development process.

-Mike Rodenbaugh

-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt- wg@xxxxxxxxx] On
Behalf Of Neuman, Jeff
Sent: Friday, February 22, 2008 12:04 PM
To: Avri Doria; gnso-dt-wg@xxxxxxxxx
Subject: RE: [gnso-dt-wg] Rework of motion


Is your question to the ICANN GC on whether the ICANN Board can act? If
that is the question, the answer is yes.  If your question is whether
the ICANN's Board decision is binding on the registries, that is a
totally separate issue.

Irrespective of the answer, whether we call it a new PDP or jus opening
a new WG, I guess I am neutral.  I would just clarify that rather than
having the WG determine a solution, in order to narrow that down, and
speed up the times lines, I would propose that the WG just focus on the
solution presented by the Design Team which I believe is the
NeuStar/Afilias solution (unless people think that would be too narrow).

Design Team -- Does this sound like a way forward? If so, I could take
the substance of the motion that has been reworked (minus all of the
Whereas clauses) and try to come up with a draft charter and proposed
time-line to send to the group. (To that end, if someone has a form
charter to use as a template, that would help). If not, I am sure I can
wing it.

Jeffrey J. Neuman, Esq.
Sr. Director, Law, Advanced Services  &

Business Development

NeuStar, Inc.
e-mail: Jeff.Neuman@xxxxxxxxxx

-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt- wg@xxxxxxxxx] On
Behalf Of Avri Doria
Sent: Friday, February 22, 2008 2:50 PM
To: gnso-dt-wg@xxxxxxxxx
Subject: Re: [gnso-dt-wg] Rework of motion


Two quick comments:

- The issue of whether this would or would not be a consensus policy is
one for  legal counsel.  I can certainly check with legal counsel to
find out the status of a decision according to 13f.

- We are already in a PDP.  As opposed to trying to begin yet another
PDP, I would would think a suggestion for an open WG to come up with a
solution that could get a supermajority would be a more feasible route.
Assuming others in the DT and the council, agree with you.  If this is
the path the DT suggests, it would be good for the DT to propose the
charter and timings.


On 22 Feb 2008, at 13:45, Neuman, Jeff wrote:

A couple of notes:

1.  A majority of the Council as opposed to Supermajority is not
"deemed to reflect the view of the Council".  See Section 12.

2. Yes, the Board can act, but again, that Board decision, in my view

(and in the view of the other registries) would not be binding on the
gTLD Registry Operators because that would not be viewed as "consensus

of Internet stakeholders".  After all, if a majority is not even
deemed to reflect the view of the Council, then how can it represent a

Consensus of Internet stakeholder.

3.  The reason I am using the phrase "consensus of Internet
stakeholders" is because that is the phrase that is used in the gTLD
contracts.  See below which is taken from Section 3.1(b)(iv) of the
.com agreement (See

http://www.icann.org/tlds/agreements/verisign/registry-agmt- com-01mar06
htm) which states:

"Consensus Policies and the procedures by which they are developed
shall be designed to produce, to the extent possible, a consensus of
Internet stakeholders, including the operators of gTLDs.  Consensus
Policies shall relate to one or more of the following: (1) issues for
which uniform or coordinated resolution is reasonably necessary to
facilitate interoperability, Security and/or Stability of the Internet

or DNS;
functional and performance specifications for the provision of
Registry Services (as defined in Section 3.1(d)(iii) below); (3)
Security and Stability of the registry database for the TLD; (4)
registry policies reasonably necessary to implement Consensus Policies

relating to registry operations or registrars; or (5) resolution of
disputes regarding the registration of domain names (as opposed to the

use of such domain names).  Such categories of issues referred to in
the preceding sentence shall include, without limitation:

Particularly important is the phrase "including the operators of
Now before you try to argue that it is modified by the phrase "to the
extent possible", let me state that the following:

1.  "To the extent possible" does not mean that if the registries are
on the losing side of the vote it is not "possible" to achieve gTLD
operator support for a proposal on domain tasting.

2.  The gTLD Registries have indicated on a number of occassions that
we do believe a proposal to eliminate tasting (in TLDs where tasting
occurred) can garner the registry operators support. We are committed

to working with you to achieve that.  We just need to find a solution
that takes into consideration the differences of each of the

Now if we are done talking about process, lets get down to business:

1.  There is a proposed solution on the table; namely I believe the
NeuStar/Afilias proposal (which by the way should be officially posted

for public comment today).

2. My recommendation is to take those proposals, get the GNSO Council

to initiate a PDP, and launch a Task Force (or Working Group) open to
the community whose sole purpose and charter is to study the
implications of this proposal. I would gladly help ICANN staff in the

drafting of that charter.

3.  We follow the strict timing in the Bylaws on the formation of the
Task Force/Working Group, elect a chair, and get constituency
statements getting them to focus solely on the proposal.  This should
be very easy, quick and painless.

4. Have a Task Force report that analyzes the constituency statements

and public input and modifies the proposal (if necessary).  Put that
out for comment and draft the final report (all included in the

If we follow the strict timing in the Bylaws, which I believe we can,
we can have this done, wrapped up and to the Board within 90 days and
still before the Paris meeting.

This will require some diligent efforts, but let's show that this is

Jeffrey J. Neuman, Esq.
Sr. Director, Law, Advanced Services  &

Business Development

NeuStar, Inc.
e-mail: Jeff.Neuman@xxxxxxxxxx

-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt-wg@xxxxxxxxx]
Behalf Of Avri Doria
Sent: Friday, February 22, 2008 12:15 PM
To: gnso-dt-wg@xxxxxxxxx
Subject: Re: [gnso-dt-wg] Rework of motion

On 22 Feb 2008, at 11:41, Rosette, Kristina wrote:

eff, good question.  I'd appreciate clarification of that, too, to
make sure we're all on the same page.  The transcripts of the GNSO
Council meeting and Thursday wrap-up are far from crystal clear.  As
for your other point, I had understood that the bylaws do not require

supermajority support of Council before Board can vote.  If there's
language elsewhere that controls, I'd appreciate if you would point
me in the right direction so that I'm working from the same baseline.


As I read the by-laws, appended below, the Council does not need to
achieve a supermajority in order to forward on a decision (note 11b).
A non supermajority view, though, is treated differently by the board
(13b vs. 13f).

In terms of this DT, the purpose is still to present a way forward for

the council to discuss. That can be a motion, a motion plus update of

constituency statements, or a WG charter.  The motion can be based on
the reworked version Alan has presented, or another motion all
together, e.g. the elimination of a required AGP as was suggested by
many of the comments or some other motion.

I think it is best if the way forward leads to a supermajority
position.  If we can't get a motion that would be able to garner
supermajority support, then perhaps we need to do more work and a WG
charter might be the right way forward.


from the by-laws

11. Council Report to the Board

The Staff Manager will be present at the final meeting of the Council,

and will have five (5) calendar days after the meeting to incorporate
the views of the Council into a report to be submitted to the Board
(the "Board Report"). The Board Report must contain at least the

    a. A clear statement of any Supermajority Vote recommendation of
the Council;

    b. If a Supermajority Vote was not reached, a clear statement of
all positions held by Council members. Each statement should clearly
indicate (i) the reasons underlying each position and (ii) the
constituency(ies) that held the position;

    c. An analysis of how the issue would affect each constituency,
including any financial impact on the constituency;

    d. An analysis of the period of time that would likely be
necessary to implement the policy;

e. The advice of any outside advisors relied upon, which should be

accompanied by a detailed statement of the advisor's (i)
qualifications and relevant experience; and (ii) potential conflicts
of interest;

    f. The Final Report submitted to the Council; and

g. A copy of the minutes of the Council deliberation on the policy

issue, including the all opinions expressed during such deliberation,
accompanied by a description of who expressed such opinions.

12. Agreement of the Council

A Supermajority Vote of the Council members will be deemed to reflect
the view of the Council, and may be conveyed to the Board as the
Council's recommendation. Abstentions shall not be permitted; thus all

Council members must cast a vote unless they identify a financial
interest in the outcome of the policy issue. Notwithstanding the
foregoing, as set forth above, all viewpoints expressed by Council
members during the PDP must be included in the Board Report.

13. Board Vote

    a. The Board will meet to discuss the GNSO Council recommendation
as soon as feasible after receipt of the Board Report from the Staff

b. In the event that the Council reached a Supermajority Vote, the

Board shall adopt the policy according to the Council Supermajority
Vote recommendation unless by a vote of more than sixty- six (66%)
percent of the Board determines that such policy is not in the best
interests of the ICANN community or ICANN.

c. In the event that the Board determines not to act in accordance

with the Council Supermajority Vote recommendation, the Board shall
(i) articulate the reasons for its determination in a report to the
Council (the "Board Statement"); and (ii) submit the Board Statement
to the Council.

    d. The Council shall review the Board Statement for discussion
with the Board within twenty (20) calendar days after the Council's
receipt of the Board Statement. The Board shall determine the method
(e.g., by teleconference, e-mail, or otherwise) by which the Council
and Board will discuss the Board Statement.

    e. At the conclusion of the Council and Board discussions, the
Council shall meet to affirm or modify its recommendation, and
communicate that conclusion (the "Supplemental Recommendation") to the

Board, including an explanation for its current recommendation. In the

event that the Council is able to reach a Supermajority Vote on the
Supplemental Recommendation, the Board shall adopt the recommendation
unless more than sixty-six (66%) percent of the Board determines that
such policy is not in the interests of the ICANN community or ICANN.

    f. In any case in which the Council is not able to reach
Supermajority, a majority vote of the Board will be sufficient to act.

    g. When a final decision on a GNSO Council Recommendation or
Supplemental Recommendation is timely, the Board shall take a
preliminary vote and, where practicable, will publish a tentative
decision that allows for a ten (10) day period of public comment prior

to a final decision by the Board.

Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin@xxxxxxxxxxxxx

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