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

[J. Scott Evans <jscottevans@xxxxxxxxxxx>]

I agree with Anne.

Sent from myMail for iOS


Tuesday, March 31, 2015, 10:13 AM -0700 from 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  
> 
>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 |  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
>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 > 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
>>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 > 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
>>>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
>>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 > 
>>>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 >
>>>Date:   Saturday 28 March 2015 22:40
>>>To:   " gnso-policyimpl-wg@xxxxxxxxx " < 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   the degree   towhich   theyadhereto and 
>>>further   theprinciples   definedin   ICANN'sCore   Valuesasdocumentedin   
>>>article 2 of   theICANN   by-­-laws
 ( http://www.icann.org/en/about/governance/bylaws#I).P 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   guidance need to be 
>>>examined   bythe   GNSOCouncil   or
  anotherappropriate   entityasdesignatedby   theGNSO   Council on where   
theyfall   in the   spectrumofpolicyand   implementation.In   allcases,   the 
community GNSO maintainsthe   rightto   challengewhether   suchupdates   need 
furtherreviewfor   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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