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RE: [gnso-dt-wg] Rework of motion
- To: "Robin Gross" <robin@xxxxxxxxxxxxx>
- Subject: RE: [gnso-dt-wg] Rework of motion
- From: "Gomes, Chuck" <cgomes@xxxxxxxxxxxx>
- Date: Sun, 24 Feb 2008 18:00:37 -0500
Robin,
Please note that my comments were addressing the process, not the
outcome. Your questions deal with the outcomes, possible policy
recommendations, and that is what a PDP is supposed to consider. I have
not been advocating for or against the AGP but only fora valid process.
Chuck
________________________________
From: Robin Gross [mailto:robin@xxxxxxxxxxxxx]
Sent: Sunday, February 24, 2008 5:15 PM
To: Gomes, Chuck
Cc: Mike Rodenbaugh; gnso-dt-wg@xxxxxxxxx
Subject: 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
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
stakeholders.
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
implementation.
Chuck
-----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.
Chuck
-----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
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 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
Avri,
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
Hi,
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.
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 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;
(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 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
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
has
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
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 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
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. 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.
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 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.
a.
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
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 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
Manager.
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.
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
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