Re: [gnso-dt-wg] Rework of motion
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. Thanks, Robin On Feb 24, 2008, at 1:18 PM, Gomes, Chuck wrote:
It seems clear to me that my effectiveness in communicating my concernsabout 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 theworking group model are right on target. I fully understand that thoserecommendations have not been approved yet, but the goals behind them are reasonable goals for us now and are fully consistent with thecurrent 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 concernsof as many impacted parties as possible. With or withoutimplementations of the GNSO Improvement Recommendations, our goal shouldnot be anything less.The GNSO Improvement Recommendations specifically suggest that the GNSO Council should move away from being a legislative body. There seems tobe 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 beenacceptable to implement the OPoC proposal just because there was simplemajority 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 withpolicies for which we can gain simple majority support. But that wouldresult in policy recommendations that I believe are far from consensus and certainly do not come close to addressing the needs of many stakeholders. The legislative approach is much faster; that is a fact. But I do notbelieve 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 implementation. Chuck -----Original Message-----From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt- wg@xxxxxxxxx] OnBehalf 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. Chuck -----Original Message-----From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt- wg@xxxxxxxxx] OnBehalf 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 positionappears to be that ICANN can't make policy that binds them, unless theyagree. 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 statementswere not based on any policy recommendations developed by a PDP. What proposal was "thoroughly vetted"? Certainly not the proposal in the motion.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 moveonto 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 wantis 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] OnBehalf 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 Avri,Is your question to the ICANN GC on whether the ICANN Board can act? Ifthat 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 openinga 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, andspeed up the times lines, I would propose that the WG just focus on thesolution presented by the Design Team which I believe is theNeuStar/Afilias solution (unless people think that would be too narrow).Design Team -- Does this sound like a way forward? If so, I could takethe 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 formcharter to use as a template, that would help). If not, I am sure I canwing 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] OnBehalf Of Avri Doria Sent: Friday, February 22, 2008 2:50 PM To: gnso-dt-wg@xxxxxxxxx Subject: Re: [gnso-dt-wg] Rework of motion Hi, Two quick comments:- The issue of whether this would or would not be a consensus policy isone 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 asolution 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. a. 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 thegTLD Registry Operators because that would not be viewed as "consensusof Internet stakeholders". After all, if a majority is not evendeemed to reflect the view of the Council, then how can it represent ahttp://www.icann.org/tlds/agreements/verisign/registry-agmt- com-01mar06Consensus 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. 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 tofacilitate interoperability, Security and/or Stability of the Internetor DNS; (2) 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 Policiesrelating to registry operations or registrars; or (5) resolution ofdisputes regarding the registration of domain names (as opposed to theuse 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 gTLDs". 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 hasoccurred) can garner the registry operators support. We are committedto working with you to achieve that. We just need to find a solution that takes into consideration the differences of each of the registries. 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 theNeuStar/Afilias proposal (which by the way should be officially postedfor public comment today).2. My recommendation is to take those proposals, get the GNSO Councilto initiate a PDP, and launch a Task Force (or Working Group) open to the community whose sole purpose and charter is to study theimplications of this proposal. I would gladly help ICANN staff in thedrafting 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 statementsand public input and modifies the proposal (if necessary). Put that out for comment and draft the final report (all included in the Bylaws). 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 possible. 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 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. Asfor your other point, I had understood that the bylaws do not requiresupermajority support of Council before Board can vote. If there's language elsewhere that controls, I'd appreciate if you would pointme in the right direction so that I'm working from the same baseline.Hi, 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 forthe council to discuss. That can be a motion, a motion plus update ofconstituency 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. a. from the by-laws ----------------------- 11. Council Report to the BoardThe 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 following: 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 beaccompanied 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; andg. A copy of the minutes of the Council deliberation on the policyissue, 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 theCouncil's recommendation. Abstentions shall not be permitted; thus allCouncil 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 Manager.b. In the event that the Council reached a Supermajority Vote, theBoard 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 accordancewith 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, andcommunicate that conclusion (the "Supplemental Recommendation") to theBoard, including an explanation for its current recommendation. In theevent 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 reachSupermajority, 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 tentativedecision that allows for a ten (10) day period of public comment priorto a final decision by the Board.
IP JUSTICE 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