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

["Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>]

I have no problem citing any cases or allegations in court brought in
the ultimate report.  By the way, I don't think there are many disputing
the alleged harms on consumers (unless I have misinterpreted anything),
but rather there happen to be a number of people disputing the utility
of the AGP (judging from Avri and Robin's statements on this list).

Even if the registrar presentation is in the report already, given the
statement by Robin, "I haven't heard a convincing case for allowing the
practice to continue," I wanted to make sure she and others were aware.


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 Mike Rodenbaugh
Sent: Monday, February 25, 2008 11:40 AM
To: gnso-dt-wg@xxxxxxxxx
Subject: RE: [gnso-dt-wg] Rework of motion


I agree with Kristina's point.  But also this information from the
Registrars was contained in the Outcomes Report and in their
Constituency
Impact Statement, so it repeatedly has been reflected in the Council's
work
to date.

-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt-wg@xxxxxxxxx] On
Behalf Of Neuman, Jeff
Sent: Monday, February 25, 2008 8:17 AM
To: Liz Gasster; Robin Gross; Gomes, Chuck
Cc: Mike Rodenbaugh; gnso-dt-wg@xxxxxxxxx
Subject: RE: [gnso-dt-wg] Rework of motion

Thanks Liz.  We should keep this presentation in the record and make
sure it is reflected in the Council's work.

 

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

Business Development 

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

________________________________

From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt-wg@xxxxxxxxx] On
Behalf Of Liz Gasster
Sent: Monday, February 25, 2008 10:55 AM
To: Robin Gross; Gomes, Chuck
Cc: Mike Rodenbaugh; gnso-dt-wg@xxxxxxxxx
Subject: RE: [gnso-dt-wg] Rework of motion

 

Robin and all, 

 

The attached briefing on uses of the AGP was presented in New Delhi in
the registrars constituency meeting which I attended.  It may be
helpful, and its authors have approved my distribution.  Liz

 

________________________________

From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt-wg@xxxxxxxxx] On
Behalf Of Robin Gross
Sent: Sunday, February 24, 2008 2:15 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