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

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

Can I agree with everyone?  :)

This has been a great discussion and in my opinion it is excellent proof of the 
quality of the participation that occurs in this WG.  Thanks to all of you for 
your thoughtful comments.

Let me just share one personal thought.  I think it would be okay to do a test 
of the GIP process if there is a case where it might be useful even before it 
is formally approved as a process as long as it was clear that it is simply a 
test of a process that has not yet been officially approved.  I don't think 
that would be much different than using ad-hoc process as is currently done.  I 
would add though that I think that would probably be more problematic for the 
GGP and EPDP because those processes have some binding implications.

Chuck

From: owner-gnso-policyimpl-wg@xxxxxxxxx 
[mailto:owner-gnso-policyimpl-wg@xxxxxxxxx] On Behalf Of Amr Elsadr
Sent: Tuesday, April 07, 2015 1:25 PM
To: gnso-policyimpl-wg@xxxxxxxxx
Subject: Re: [gnso-policyimpl-wg] Latest version of the comment review document

Hi,

I agree with Marika and Michael, but may have read less into what Anne was 
suggesting. I don't think it was her intent to suggest that they processes be 
used before this WG's recommendations are endorsed by the G-Council and adopted 
by the ICANN Board. Seems to me that she only (rightly) pointed out an area 
where the processes that we are developing may be of particular usefulness. I 
certainly agree with that.

On the other hand, I don't share the concern that others may have regarding 
these processes never being put to good use. In my humble experience, I believe 
that there have been numerous occasions in the not too distant past where 
useful solutions like the ones we've come up with would have made things a lot 
easier for the GNSO Council to do its work. This isn't exclusive to GAC Advice 
either. Specification 13 of the RA is one issue that comes to mind - where the 
ICANN Board specifically asked for GNSO feedback on something impacting gTLD 
policy development.

I don't see why there should be a concern about this WG's recommendations not 
being effectively used, when there is a clear and practical need for them as 
tools at the GNSO's disposal.

Am I missing something?

Thanks.

Amr

On Apr 7, 2015, at 6:42 PM, Marika Konings 
<marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx>> wrote:


To add to Michael's message, I do believe the idea was to include a couple of 
use cases in the Final Report which would show how these processes could work 
in practice, but I had thought that for those use cases we would use some of 
the examples the WG reviewed for which the GNSO Council had used ad-hoc 
processes in the past, but I guess we could also point to initiatives that are 
currently under development.

Best regards,

Marika

From: "Michael Graham (ELCA)" 
<migraham@xxxxxxxxxxx<mailto:migraham@xxxxxxxxxxx>>
Date: Tuesday 7 April 2015 18:38
To: Marika Konings <marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx>>, 
"J. Scott Evans" <jscottevans@xxxxxxxxxxx<mailto:jscottevans@xxxxxxxxxxx>>, 
"Aikman-Scalese, Anne" <aaikman@xxxxxxxxxx<mailto:aaikman@xxxxxxxxxx>>, 'Amr 
Elsadr' <aelsadr@xxxxxxxxxxx<mailto:aelsadr@xxxxxxxxxxx>>, 
"gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>" 
<gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>>
Subject: RE: [gnso-policyimpl-wg] Latest version of the comment review document

>From a practical/procedural standpoint, I would agree with Marika that we 
>could utilize an annotation to the GAC Communique, pointing out possible New 
>Processes that could be utilized, to illustrate the usefulness and 
>applicability of the proposed processes.  And I agree with her reluctance to 
>press these forward as processes that SHOULD be used when they have not been 
>reviewed/approved by Counsel.  I am afraid this would make the Final Proposal 
>the subject of procedural objection before it could be considered and approved 
>as establishing new processes for GNSO consideration.

Cart and Horse question, I think.

Michael R. Graham
Senior Corporate Counsel, Intellectual Property
Expedia Legal & Corporate Affairs
T +1 425.679.4330 | F +1 425.679.7251
M +1 425.241.1459
Expedia, Inc.
333 108th Avenue NE | Bellevue | WA 98004
MiGraham@xxxxxxxxxxx<mailto:MiGraham@xxxxxxxxxxx>
CONFIDENTIALITY NOTICE: This electronic message may contain private, 
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From: 
owner-gnso-policyimpl-wg@xxxxxxxxx<mailto:owner-gnso-policyimpl-wg@xxxxxxxxx> 
[mailto:owner-gnso-policyimpl-wg@xxxxxxxxx] On Behalf Of Marika Konings
Sent: Tuesday, April 07, 2015 9:31 AM
To: J. Scott Evans; Aikman-Scalese, Anne; 'Amr Elsadr'; 
gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>
Subject: Re: [gnso-policyimpl-wg] Latest version of the comment review document

If the idea is to include the GAC communique as an example which could make use 
of these processes at a future stage, I don't have any issue with that. My 
concern is about recommending now to the GNSO Council the use of these 
processes (or by Dublin) as Anne references in her email before these are 
finalised and approved by the WG, GNSO Council and ICANN Board.

Best regards,

Marika

From: "J. Scott Evans" <jscottevans@xxxxxxxxxxx<mailto:jscottevans@xxxxxxxxxxx>>
Date: Tuesday 7 April 2015 18:26
To: Marika Konings <marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx>>, 
"Aikman-Scalese, Anne" <aaikman@xxxxxxxxxx<mailto:aaikman@xxxxxxxxxx>>, 'Amr 
Elsadr' <aelsadr@xxxxxxxxxxx<mailto:aelsadr@xxxxxxxxxxx>>, 
"gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>" 
<gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>>
Subject: RE: [gnso-policyimpl-wg] Latest version of the comment review document

I don't see why we could "recommend" that these processes be used, perhaps as 
an example.  Are we concerned that, by doing so, we might create a situation 
whereby the negative reaction would be such that the processes would never be 
put to such good use?  I am confused as to why we can't "recommend" something 
that we thing improves the GNSO procedures. Isn't that the whole point of the 
exercise in the first place?


j. scott evans - associate general counsel - adobe - 408.536.5336 - 
jscottevans@xxxxxxxxxxx<mailto:jscottevans@xxxxxxxxxxx>
________________________________
From: marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx>
To: jscottevans@xxxxxxxxxxx<mailto:jscottevans@xxxxxxxxxxx>; 
aaikman@xxxxxxxxxx<mailto:aaikman@xxxxxxxxxx>; 
aelsadr@xxxxxxxxxxx<mailto:aelsadr@xxxxxxxxxxx>; 
gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>
Subject: Re: [gnso-policyimpl-wg] Latest version of the comment review document
Date: Tue, 7 Apr 2015 16:22:44 +0000
Until the WG recommendations are finalised and approved both by the GNSO 
Council and ICANN Board, I don't think it would be appropriate for the WG to 
recommend that the response to the GAC communique should refer to these 
processes. I don't doubt that once the WG recommendations are adopted and 
implemented they may be very useful in guiding this work, but I don't think it 
would be prudent to make recommendations on the basis of processes that have 
not been finalised nor adopted yet.

Best regards,

Marika

From: "J. Scott Evans" <jscottevans@xxxxxxxxxxx<mailto:jscottevans@xxxxxxxxxxx>>
Date: Tuesday 7 April 2015 18:13
To: "Aikman-Scalese, Anne" <aaikman@xxxxxxxxxx<mailto:aaikman@xxxxxxxxxx>>, 
'Amr Elsadr' <aelsadr@xxxxxxxxxxx<mailto:aelsadr@xxxxxxxxxxx>>, 
"gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>" 
<gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>>
Subject: RE: [gnso-policyimpl-wg] Latest version of the comment review document

I think Anne is making some solid points here.



j. scott evans - associate general counsel - adobe - 408.536.5336 - 
jscottevans@xxxxxxxxxxx<mailto:jscottevans@xxxxxxxxxxx>
________________________________
From: AAikman@xxxxxxxxxx<mailto:AAikman@xxxxxxxxxx>
To: aelsadr@xxxxxxxxxxx<mailto:aelsadr@xxxxxxxxxxx>; 
gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>
Subject: RE: [gnso-policyimpl-wg] Latest version of the comment review document
Date: Tue, 7 Apr 2015 01:34:06 +0000
Amr et al,
Perhaps what I am saying is that the WG could recommend that in responding to 
GAC Communiques to the Board and using the tool that Amr showed us, the Council 
could identify one of the three processes as an appropriate method of 
addressing each of the issues e.g. a notation such as "GNSO Council to address 
via GIP, or "to address via GGP" or "to address via EPDP" or GNSO Council 
considers a full PDP is required to address this issue" or "GNSO Council 
believes this issue was already addressed via PDP - see Final Report of X 
Working Group Paragraph Y".

The point here is the same that Greg is making.    The GAC Communique is 
exactly the type of communication that should trigger consideration of these 
new processes by the GNSO and so it would indeed be handy for the Council to 
consider this possibility in relation to the form being developed for response 
to GAC Communiques.

The suggestion was definitely not that ONE of the new processes would be 
suitable for response to the GAC. The suggestion was rather that the GNSO 
Council could, in responding to the GAC Communique that is sent to the Board, 
state that intends to use one of the new tools to foster GNSO Input (GIP) or 
Guidance (GGP) or Policy Development (EPDP) to respond to the GAC's advice.  
These three options are of course NOT exclusive since Council is free to 
respond however it may want to respond to GAC communiques.  However, we are 
trying to standardize processes and build trust and as Greg notes, it would be 
a shame if the processes were recommended, adopted, and then never actually 
used.

I think it is clear that the timeline will not permit use of these processes to 
be listed in a response to the Singapore meeting, but it does seem that they 
could be incorporated down the line and hopefully no later than the Dublin 
communique  (as a goal in terms of time frames.)
Anne

<image001.gif>

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>
 [mailto:owner-gnso-policyimpl-wg@xxxxxxxxx] On Behalf Of Amr Elsadr
Sent: Wednesday, April 01, 2015 4:28 PM
To: gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>
Subject: Re: [gnso-policyimpl-wg] Latest version of the comment review document

Hi,

My personal impression is that the the Council's approach so far on providing 
feedback on GAC communiqués has been more about the GNSO Council simply 
communicating to the ICANN Board (and GAC) where the GNSO stands on any given 
Advice item - how it has been, or is being, dealt with. It is more of a 
discussion on a Council process to address GAC Advice on GNSO-related work, 
rather than a GNSO process. The processes this WG is recommending are initiated 
following a request to the GNSO to do so. The process being discussed by the 
Council is initiated following GAC Advice to the Board, not the GNSO. This 
template currently being envisioned as a tool to that end may be helpful in 
understanding this a little more: 
http://gnso.icann.org/en/drafts/review-gac-communique-24feb15-en.pdf

However, none of that is to say that a result of one of these templates from 
the GNSO Council to the ICANN Board (and cc'd to the GAC) could not result in 
either the Board or the GAC requesting that the GNSO initiate a process to 
explore the issue at hand. That could very likely be a possibility, and one of 
the processes being developed here could come in handy in a situation like 
this. I wouldn't go so far as to suggest that only one of the processes would 
be suitable. I guess it would depend on what questions the GNSO is trying to 
answer.

In any case, I would be happy, in my capacity as one of the Council liaisons to 
this WG, to relay any message the WG Chairs or members would like to have 
communicated to the Council on this matter.

Thanks.

Amr

On Apr 2, 2015, at 12:32 AM, Greg Shatan 
<gregshatanipc@xxxxxxxxx<mailto:gregshatanipc@xxxxxxxxx>> wrote:

It might be an interesting exercise to discuss these mechanisms specifically 
with the Council, given that these are being created for the Council to use, in 
a sense.  I think we also anticipate that the Council would use one of these 
mechanism for any sort of GNSO policy utterance, unless it was wholly unsuited 
to the purpose.  Our work would be a waste if we created these mechanisms and 
the Council went on its merry way making up ad hoc response processes, while 
neglecting our creations like a set of gift golf clubs in the closet.

Greg

On Wed, Apr 1, 2015 at 2:48 PM, Aikman-Scalese, Anne 
<AAikman@xxxxxxxxxx<mailto:AAikman@xxxxxxxxxx>> wrote:
Thanks Mary.  As far as I know, although Council is aware of our work, there 
has been no specific discussion of the possibility of reacting to GAC 
communiques within the suggested framework of using these tools.
Thank you,
Anne

<image001.gif>

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: Mary Wong [mailto:mary.wong@xxxxxxxxx<mailto:mary.wong@xxxxxxxxx>]
Sent: Wednesday, April 01, 2015 11:38 AM
To: Gomes, Chuck; Aikman-Scalese, Anne; 'Carlos Raúl Gutiérrez'
Cc: Marika Konings; 
gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>

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


Hello everyone - just to note that the GNSO Council has been discussing a 
possible approach for the provision of GNSO feedback pertaining to issues that 
may be raised or impacted by points made in GAC Communiques. Note that, since 
the GAC provides its advice via Communique directly to the Board, the Council's 
discussions have largely centered on developing a structured method of 
providing GNSO input to the Board as well.

It may be that the GIP could be an appropriate mechanism for some items in the 
future, but we thought this WG might like to know that the Council is also 
discussing this specific topic (while also aware of the recommendations our 
group is making).

Thanks and cheers
Mary

Mary Wong
Senior Policy Director
Internet Corporation for Assigned Names & Numbers (ICANN)
Telephone: +1 603 574 4892
Email: mary.wong@xxxxxxxxx<mailto:mary.wong@xxxxxxxxx>


From: <Gomes>, Chuck <cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx>>
Date: Wednesday, April 1, 2015 at 14:29
To: "Aikman-Scalese, Anne" <AAikman@xxxxxxxxxx<mailto:AAikman@xxxxxxxxxx>>, 
'Carlos Raúl Gutiérrez' <crg@xxxxxxxxxxx<mailto:crg@xxxxxxxxxxx>>
Cc: Marika Konings <marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx>>, 
"gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>" 
<gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>>
Subject: RE: [gnso-policyimpl-wg] Latest version of the comment review document

Thanks for the good feedback Anne.  The clarification on the GAC communiques 
makes sense.

Chuck

From: Aikman-Scalese, Anne [mailto:AAikman@xxxxxxxxxx]
Sent: Wednesday, April 01, 2015 2:08 PM
To: Gomes, Chuck; 'Carlos Raúl Gutiérrez'
Cc: Marika Konings; 
gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>
Subject: RE: [gnso-policyimpl-wg] Latest version of the comment review document

Hi Chuck,
I would defer to Amr on the question of the proposed change in language about 
GNSO challenges to implementation measures.  We should also see what Alan, 
Cheryl, Carlos, and others have to say, however.

Regarding reaction to GAC communiques, I was not suggesting that one of the new 
processes be deployed to respond.   I was suggesting that when the GAC 
identifies implementation issues in its communique, the GNSO should determine 
on an issue-by-issue basis ( and advise the Board in writing) whether it can 
treat the GAC concerns best by
1. Not responding or responding that the issue was already treated thoroughly 
in a PDP.
2. Responding that IRT and staff should deal with the issue
3. Initiating a GIP
4. Initiating a GGP or
5. Initiating an EPDP.

I just think it would be very helpful for GNSO to put each of the GAC issues in 
one of these "buckets" because very often it is a GAC communique that triggers 
the need for issue resolution - and very often there is time pressure on the 
issue for one reason or another.

Thank you,
Anne

<image001.gif>

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: Gomes, Chuck [mailto:cgomes@xxxxxxxxxxxx]
Sent: Tuesday, March 31, 2015 4:44 PM
To: Aikman-Scalese, Anne; 'Carlos Raúl Gutiérrez'
Cc: Marika Konings; 
gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>
Subject: RE: [gnso-policyimpl-wg] Latest version of the comment review document

Thanks very much for the very thoughtful comments.  Please see my responses 
below.

Chuck

From: Aikman-Scalese, Anne [mailto:AAikman@xxxxxxxxxx]
Sent: Tuesday, March 31, 2015 1:14 PM
To: 'Carlos Raúl Gutiérrez'; 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 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.
[Chuck Gomes] Makes sense to me but I would be surprised (and pleased) if the 
one of the three processes covered all changed circumstances.

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.)
[Chuck Gomes] Did you see the compromise language I proposed on the RySG 
recommendation?  I didn't test it with the RySG but I think it would accomplish 
what was intended in the suggested change.  The RySG did not intend the change 
from 'community' to 'GNSO' to mean that community members outside of the GNSO 
could not contribute but rather to reflect the fact that the GNSO is 
responsible for gTLD policy work and hence should be responsible for 
challenging any implementation steps that it believes is beyond what was 
intended in the policy.  That said, I am not prepared to fight hard for the 
change.

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.
[Chuck Gomes] If separation of powers means that policy development power is 
separated from policy implementation power, then I don't agree.  The GNSO is 
responsible for developing policy recommendations and for ensuring that those 
recommendations are implemented appropriately.  I don't think that that 
responsibility should be delegated to staff without GNSO oversight.  I do agree 
though that the three processes we have proposed are designed to provide ways 
of dealing with issues as they arise.


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.
[Chuck Gomes] In my opinion, the GIP could be a good tool for this.  It is less 
clear that the GGP would work very well and I definitely do not think that the 
EPDP would fit.  Both would probably take too long and the Council needs to 
respond to the GAC in a timely manner.  And I don't think the EPDP restrictions 
would be applicable in most cases of GAC communiques, but I would be happy to 
be proven wrong.

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

<image001.gif>

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>
 [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<mailto: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%29>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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