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

["Aikman-Scalese, Anne" <AAikman@xxxxxxxxxx>]

Carlos and Chuck,
I have been following this thread to some degree and wanted to make some 
comments before tomorrow’s call:


1.       I do not think that the WG proposals expand GNSO “discretionary 
powers” in any way.  As I understand it, we are simply providing more 
standardized mechanisms for providing GNSO input and policy-making/implantation 
 processes so that the processes that get followed are not so “ad hoc” (as were 
those that we studied at the beginning of our work).  In my view, increasing 
the standardization of the processes will lead to more trust in the community.  
In other words, these processes themselves create “checks and balances” in the 
system (per Carlos’ comment) because it is assumed that one of the three 
standard processes will in fact fit the changed circumstances or need to 
address issues during the implementation phase.  As we all know, some of these 
“changed circumstances” arise due to late-breaking facts (e.g. name collision) 
or to late-breaking advice (e.g. in the case of the GAC.)  Our assumption must 
be that these things will occur and we need to be prepared to address them in a 
systematic fashion as they arise.



2.       Per my comments on the last call, I still think the WG should not 
continue to pretend that only the GNSO makes policy.  One need only look at 
issues like GAC Safeguards, IGO/NGO, and two letter registrations at the second 
level to develop a full appreciation of how policy really works in ICANN.  GNSO 
is the primary policy-making body but the policy GNSO makes is a matter of 
recommendations.  If this were not so, there would not be a provision in the 
By-Laws which states that there is a Board voting threshold for acting against 
a GNSO policy recommendation.  We are not going to change this through the 
efforts of our WG because we cannot stop the special position of GAC advice 
under the By-Laws or stop the fact that governments legislate and SOs and 
Committees other than the GAC do not make binding laws.  Then there is the fact 
that certain groups, e.g. ALAC, do not have a vote on the GNSO, but certainly 
have the ability to influence policy and make policy recommendations directly 
to the Board (e.g. with respect to a letter to the Board recommending  
“freezing” certain gTLDs that carry higher consumer risk.)  Either the WG is 
recommending processes in which the entire community can participate or it is 
acting in a GNSO “vacuum”.  I had thought the intent of our WG was to supply 
work that would be helpful to the entire community.  (Thus, I do not like the 
suggested RySG proposed change in principles which states that the GNSO 
reserves the right to challenge implementation, rather than the principle that 
the community reserves the right to challenge implementation.  Based on the new 
standardized procedures we are recommending, any other body within ICANN should 
be able to bring an issue to the GNSO in order to initiate a challenge.  It 
would be a great result if the GAC ultimately decided to pursue one of its 
issues through a GNSO process.  (They may say I’m a dreamer.)



3.       I agree that “separation of powers” is one reason the WG was formed.  
The community reacted to the fact that it was unwilling to let the ICANN Board 
and staff determine implementation issues that might raise policy 
considerations.  Then the WG determined that if there are issues during 
implementation, what is most important is NOT how the issue is characterized, 
but rather, does ICANN itself have efficient means of dealing with issues as 
they arise?   This is the underlying logic for the three mechanisms that are 
being proposed.





4.       With respect to working out issues that arise during implementation 
with other bodies within ICANN that influence policy enacted by the ICANN 
Board, the need for greater coordination has certainly been recognized.  For 
example, Mason is now the GAC liaison and there is a trial program in place for 
involving the GAC early on in the PDP Issue Scoping phase (see notes from March 
19 GNSO Council meeting).  Our WG should also be looking at how best to involve 
the GAC (and other non-GNSO voting bodies) in the three new processes that are 
being recommended.  For example, right now the GNSO is developing a “template” 
for response to the Singapore GAC communique.  I am watching this and saying to 
myself – this is EXACTLY why we need the standardized processes we have been 
working on.  To my mind, in the future, the GNSO should be using the GIP or the 
GGP or the EPDP to respond to the GAC Communiques and advising the Board which 
of these processes should be used with respect to each issue raised by the GAC 
communique.

I look forward to our continuing discussions and like all of you, am hopeful 
that these recommendations can actually make the ICANN policy AND 
implementation process function more smoothly, thereby increasing trust in the 
DNS both inside and outside the community.

Anne

[cid:image001.gif@01D06B9B.5E1F5900]

Anne E. Aikman-Scalese, Of Counsel

Lewis Roca Rothgerber LLP |

One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611

(T) 520.629.4428 | (F) 520.879.4725

AAikman@xxxxxxxxxx<mailto:AAikman@xxxxxxxxxx> | 
www.LRRLaw.com<http://www.lrrlaw.com/>








From: owner-gnso-policyimpl-wg@xxxxxxxxx 
[mailto:owner-gnso-policyimpl-wg@xxxxxxxxx] On Behalf Of Carlos Raúl Gutiérrez
Sent: Monday, March 30, 2015 1:27 PM
To: Gomes, Chuck
Cc: Marika Konings; gnso-policyimpl-wg@xxxxxxxxx
Subject: Re: [gnso-policyimpl-wg] Latest version of the comment review document

Dear Chuck,

sorry but i was away from my PC this morning and could not go back to the 
GGP/GIP/EPDP definitions. My answer to your last question is basically yes:


  *   There should a clearer argument why this requests go back to the original 
source, and not to higher (appellate?) instance, and
  *   Why it differs from the review a redress path (is it for speed? cost? 
else?) that is being thoroughly reviewed somewhere else right now
  *   There should be a minimum threshold of the arguments for the request, 
explaining why is there need for the clarification, and not just another run at 
trying to change decisions in retrospect. And it should come from affected 
parties directly.
  *   The threshold should increase from GGP to GIP, and even more to EPDP. I’m 
afraid there will be more controversy with the last one.
  *   Are the groups proposed to deal with all this GGP/GIP/EPDP work be 
sustainable over time, representative of the community, or do they risk to be 
captured by other parts of the system, so the can delegate their responsibility?
  *   There should also be a recognition that the world became much more 
complex, with the jump form 30 to a 1’000 Domain Names, and that the GNSO is 
not going to be the solving all issues that will arise in the future, 
PARTICULARLY if the GDD or the Compliance functions have NOT done there work in 
a proper manner. And don’t get me wrong here, the separation of power i’m 
talking about is “horizontal” between the different steps in the policy to 
contract to business process
  *   If there is a (what I would call a ) “vertical" problem between GNSO and 
Board as you mention, then a pdp will not solve it

To put it in a nutshell, my impression is that we need a clearer and compelling 
argument ready to the question that will certainly pop up at some point: If the 
GNSO did his work right in the first place, why do we need this new stuff???

And here the length of the document does not cover lack of the background  you 
know so well,  but newbies like me with just 5 years in the backbench don’t 
fully understand. And you are right on another thing: I didn’t like the survey 
questionnaire. Just by agreeing to all individual elements, can we 
automatically can assume the whole effort is on solid ground. Economists get 
burned easily by marginal analysis that looks only at the cost of the last unit 
produced.

Thank you very much

Carlos Raúl Gutiérrez
_____________________

email: crg@xxxxxxxxxxx<mailto:crg@xxxxxxxxxxx>
Skype: carlos.raulg
+506 8335 2487 (cel)
+506 4000 2000 (home)
+506 2290 3678 (fax)
_____________________
Apartado 1571-1000
San Jose, COSTA RICA





On Mar 30, 2015, at 1:19 PM, Gomes, Chuck 
<cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx>> wrote:

Am I correct Carlos that in referring to the mechanisms you mean the GNSO 
Guidance Process (GGP), GNSO Input Process (GIP) and the Expedited PDP (EPDP)?  
If so, the descriptions of each of those processes explains who can initiate 
them.  Do you think that more information is needed?  If so, specific 
suggestions would be helpful.

If I understand correctly, I agree with you that requests for initiation of one 
the three processes should be accompanied with a strong case.  That would then 
allow the GNSO Council to make the best decision possible as to whether or not 
to initiate one of them.  Of course, several of the questions we asked in the 
request for comments survey relate to that.

Chuck

From: Carlos Raúl G. [mailto:crg@xxxxxxxxxxx]
Sent: Monday, March 30, 2015 12:12 PM
To: Gomes, Chuck
Cc: Marika Konings; 
gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>
Subject: Re: [gnso-policyimpl-wg] Latest version of the comment review document



Carlos Raúl Gutiérrez
+506 8837 7176 (New Number)
Enviado desde mi iPhone

El mar 30, 2015, a las 9:49, Gomes, Chuck 
<cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx>> escribió:
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.

Separation of powers is always good if there is an effective independent review 
and redress mechanism for the Board decision of approving the policy in the 
first place. Agree it does not seem to be the case today.




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.

For that reason I'm only asking for a very clear explanation of the triggers to 
the consultation




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.

Sorry I haven't learned by hearth the names of the 3 type s of consultations.



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?

If the policy is out and approved by the Board, the revision should be 
triggered outside of the GNSO with ver compelling arguments. I rest my case.



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

Cheers

Carlos Raúl Gutiérrez
_____________________

email: crg@xxxxxxxxxxx<mailto:crg@xxxxxxxxxxx>
Skype: carlos.raulg
+506 8335 2487 (cel)
+506 4000 2000 (home)
+506 2290 3678 (fax)
_____________________
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 mustbeconsideredin 
termsof thedegree towhich theyadheretoandfurther theprinciples definedin 
ICANN'sCore Valuesasdocumentedin 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: “Seekingandsupportingbroad, 
informedparticipation reflectingthefunctional,geographic, andcultural 
diversityof theInternet atalllevelsof 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 guidanceneedtobeexamined bythe 
GNSOCouncil or  anotherappropriate entityasdesignatedby theGNSO Councilonwhere 
theyfall inthe spectrumofpolicyand implementation.In allcases, 
thecommunityGNSOmaintainsthe rightto challengewhether suchupdates 
needfurtherreviewfor 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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