RE: [gnso-policyimpl-wg] Latest version of the comment review document

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

Carlos,

I just finished listening to the recording and found it very helpful.  Thank 
you for your comments in the meeting and below.  Please see my responses 
inserted below.

Chuck

From: Carlos Raúl Gutiérrez [mailto:crg@xxxxxxxxxxx]
Sent: Monday, March 30, 2015 11:02 AM
To: Marika Konings
Cc: Gomes, Chuck; 
gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>
Subject: Re: [gnso-policyimpl-wg] Latest version of the comment review document
Importance: High

Dear Chuck

let me summarize my worries in a few sentences, based on the comments you will 
hear in the recording. While the new mechanisms look very useful and elegant in 
print, I worry about the checks and balances in so far as "who triggers them 
and why". Particularly the third one worries me a lot.

I come from a very old school of "separation of powers", where one entity 
develops policy, another separate one executes it, and if there is trouble they 
both can go to a third entity to solve their differences. The recent letter of 
Senators Thune and Rubio seems to come from this very same school of thought, 
as they ask for clear organisational and or structural separations of functions.
[Chuck Gomes] In the new TLD program implementation, the position of extreme 
separation of powers that the Board and staff took cause some serious problems. 
Staff and the Board took the position that if an issue was implementation, then 
they could essentially take care of it on their own and didn’t need to involve 
the GNSO.  That was a primary reason for the creation of the P&I WG.

Since the gTLD came into full swing, I could positively see that some kind of 
similar division of powers evolving within ICANN> a separate Division *GDD* was 
created to deal with (and hopefully be responsible) of the new contracts and 
collecting monies, as well as an enforced separate group looking at the 
compliance of those contracts, just to avoid any conflict of interest in the 
GDD with their clients.

For that reason I believe we should be very careful that the mechanisms 
proposed are used only when there are proven problems downstream, i.e. mainly 
with the GDD and or compliance functions and not to everybody for every 
possible argument.
[Chuck Gomes] I don’t think I understand your point here. What mechanisms are 
you talking about?  The GDD is the body that will be tasked with implementation 
so I understand the reference to the GDD but compliance wouldn’t come into play 
directly until after a policy is implemented although we might consult with 
them in policy and implementation work to obtain their input as needed.  What 
do you mean “that the mechanisms proposed are used only when there are proven 
problems downstream”?  The purpose of our principles and recommendations are to 
avoid problems in the future not to react to problems.


If the mechanism  are used within the GNSO at their discretion, without a well 
grounded reason from their execution and compliance point of view, they risk to 
become a closed feedback loop, that may put into question the policy 
development process that initiated the whole issue.
[Chuck Gomes] Again, I do not understand what you are saying.  What mechanisms 
are you talking about? What closed feedback loop? One of the main purposes of 
the principles and recommendations we are proposing is to ensure that the 
policy development process is not compromised.

For that reason, my general comments should be seen under my question of "who 
or what, and on what ground triggers those elegant mechanisms", so as to avoid 
the feeling that the GNSO get additional discretionary powers trough them. I 
think this is important in these time of increased awareness of Accountability 
and Transparency.
[Chuck Gomes] This also is hard to understand because I don’t know what 
mechanisms you are talking about.  Also, what do you mean by “get additional 
discretionary powers” of the GNSO?

Happy to continue in the next WG session if I can make it.

Cheers

Carlos Raúl Gutiérrez
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email: crg@xxxxxxxxxxx<mailto:crg@xxxxxxxxxxx>
Skype: carlos.raulg
+506 8335 2487 (cel)
+506 4000 2000 (home)
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Apartado 1571-1000
San Jose, COSTA RICA





On Mar 30, 2015, at 1:21 AM, Marika Konings 
<marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx>> wrote:

Hi Chuck,

Please note that Carlos is a member of the Working Group and participated in 
the last meeting (including providing further feedback on his comments). 
Hopefully he’ll be able to join our next meetings as well to be able to answer 
any follow up questions the WG may have.

We’ll fix the template ahead of the next meeting in relation to item 4.18.

Best regards,

Marika

From: <Gomes>, Chuck Gomes <cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx>>
Date: Saturday 28 March 2015 22:40
To: "gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>" 
<gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>>
Subject: [gnso-policyimpl-wg] Latest version of the comment review document

On my flight home from Istanbul, I went through the latest version of the 
comment review document.  Here are some comments and questions I have.

Who is responsible for performing any action items we identify? Note the 
following action items identified to date:

·         3.7  and multiple other items– we need further input from Carlos; 
Carlos made a lot of lengthy comments throughout the survey that I think would 
best be resolved via a conversation with him and the WG.  Let’s talk about 
this.  Here are the items: 3.7, 4.14, 5.2, 5.11, 5.20, 7.4, 8.4, 13.4, 14.3, 
G.1.

·         4.1 & other items – This wasn’t identified in the action column but 
rather in the response column.  Several of John Poole’s comments related to the 
initial error we made in referencing a section of the survey.  Did anyone 
communicate with him on the fact that the error was corrected?

·         4.4 - This wasn’t identified in the action column but rather in the 
response column.  We discussed asking the RySG to propose alternative language.

My comments on the items discussed in my absence on 25 March:

·         4.7 – The RySG comment was noted.  What do others think about adding 
the sentence redlined below?

Principle C.2.c):“Each ofthe principlesin thisdocument mustbe consideredin 
termsof thedegree towhich theyadhere toandfurther theprinciples definedin 
ICANN'sCore Valuesas documentedin article2of theICANN by-­-laws 
(http://www.icann.org/en/about/governance/bylaws#I).P<http://www.icann.org/en/about/governance/bylaws#I)>articular
 note should be made tocore value4: “Seekingand supportingbroad, 
informedparticipation reflectingthe functional,geographic, andcultural 
diversityof theInternet atall levelsof policydevelopment anddecision-­-making.” 
 (The WG notes that informed communication depends on effective communication 
throughout the community.)


·         4.8 – The WG decided to reject the change suggested by the RySG from 
‘community’ to ‘GNSO’ because it was felt that it would narrow the scope to 
exclude affected parties outside of the GNSO from participating.  I actually 
think the RySG change is correct because the GNSO is the policy management 
body, not the full community, but I also believe it would be good to deal with 
the issue the WG identified.  What about the following?

PrincipleD.1.b: “Changesto GNSOimplementation guidanceneedto beexamined bythe 
GNSOCouncil or  anotherappropriate entityas designatedby theGNSO Councilonwhere 
theyfall inthe spectrumof policyand implementation.In allcases, 
thecommunityGNSO maintainsthe rightto challengewhether suchupdates needfurther 
reviewfor policyimplications while at the same time recognizing that all 
impacted parties in the community should be given the opportunity to contribute 
to the GNSO challenge process.”


·         4.14 and later substantial comments by Carlos – As I suggested toward 
the beginning of my response, I personally think it might be useful and the 
most time effective to schedule a call with Carlos and the WG or some subset of 
the WG to have a live discussion of his concerns and possible solutions.

The NCSG makes some substantial suggestions on at least 11 items. Fortunately, 
we have some NCSG members in our WG so I think it would be good for us to 
discuss those when the NCSG members can be present.  Here are the items: 5.4, 
5.22, 5.24, 5.31, 7.6, 8.6, 9.6, 11.6, 13.6, 14.5, G.4.

Likewise, the ALAC makes some substantial suggestions on at least 4 items. 
Fortunately, we have some ALAC members in our WG so I think it would be good 
for us to discuss those when the ALAC members can be present.  Here are the 
items:  5.5/5.6, 5.15, 5.33, G6.

And the IPC also makes some substantial suggestions on at least 6items. 
Fortunately, we have some IPC members in our WG so I think it would be good for 
us to discuss those when the IPC members can be present.  Here are the items:  
7.5, 9.5, 10.5, 12.5, 14.4, G.3.

Marika & I talked briefly in Istanbul.  We have not made as much progress on 
going through the public comments as we had hoped and may be in jeopardy of 
missing our target dates.  She suggested that we could get some volunteers (or 
small groups of volunteers) to draft possible responses for subsets of the 
items and then present those to the full WG.  Of course we would need 
volunteers for that to work.  How many of you would be willing to do this?  In 
the cases of the comments from the ALAC, IPC and NCSG, we would need to pair WG 
members from those respective groups with some who are not from those groups. 
Please respond to this email if you are willing to contribute in this way.  
Another option could be to lengthen our calls from 60 minutes to 90 minutes; 
please respond if you could or could not do that.

Marika/Mary – Note that we ended up with a sea pair of duplicate items: all of 
4.18 appears to be included in 4.19.  I suggest that we delete 4.18 and leave 
4.19.  The fact that this only happened once is pretty remarkable considering 
how much manual entry had to be done.

Chuck






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