Re: [gnso-ppsc-pdp] FW: Open Letter to the GNSO Council: Accountability & Transparency starts at the Bottom

[Avri Doria <avri@xxxxxxx>]

Hi,

You comparison does not work:

for the staff to decide that only similarity would not be allowed to have 
extended review was purely an implementation details.

for the staff to insert protection measures that had been specifically reject 
in the PDP process would be another thing altogether.


as to your question:

>> But you are right, this is not necessarily on point for the PDP-WT, except 
>> possibly where the GNSO Council takes a recommendation of a Work Team and 
>> then changes it (because they cite a flaw).  Should that go back to a work 
>> team (and out for comment) before the Council votes on it?

yes, when there has been a policy decision in a bottom up process, anything 
that goes counter to that policy decision must go back through the process.

In fact in the first instance above, i believe that not allowing a extended 
review could be seen as going against the policy decision that everything be 
oopen to appeal, objection and review.  and thus the staff action of not 
allowing an extended review, as a policy infringement might need to be reviewed 
in bottom up manner in order to be accepted.  so i think that those who think 
the change should not be made should be insisting that we have a bottom up 
process to deal with the fact that the implementation as currently documented 
in the DAG violates the bottom requirements for full appeal, object, and 
review.  Not changing it requires community review.

a.

On 20 May 2010, at 08:53, Neuman, Jeff wrote:

> Thanks Avri.  I never said that every "utterance" by the council must go out 
> for comment.  But the council should not on its own ever be passing a 
> resolution that relates to a policy matter without having an open and 
> transparent process with the ability for public input.  Do I care if the 
> Council creates a drafting team without putting the notion of creating a 
> drafting team together for comment.  Of course not.  My words are being 
> twisted...not just by you, but by some current council members as well.
> 
> Avri - I know you were part of the drafting team, and please do not take this 
> as criticizing the work you have done.  But what you are calling a flaw, 
> could actually have been intentionally done by staff for a particular reason 
> that has not yet been told to us by staff.  So, in reality, you are making a 
> recommendation on a policy implementation.   What would have been the 
> difference if the IPC got together and said that the failure of the staff to 
> include IP protections early on was a flaw, and at that time, rather than 
> soliciting any public input, crafted a motion for council to be passed by 
> council recommending changes to the dag that incorporated a globally 
> protected marks list...because they called it a flaw in the DAG.
> 
> There are countless of examples where one person's flaw, is another's policy 
> determination.  
> 
> But you are right, this is not necessarily on point for the PDP-WT, except 
> possibly where the GNSO Council takes a recommendation of a Work Team and 
> then changes it (because they cite a flaw).  Should that go back to a work 
> team (and out for comment) before the Council votes on it?
> 
> 
> 
> Jeffrey J. Neuman 
> Neustar, Inc. / Vice President, Law & Policy
> 
> 
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> 
> 
> -----Original Message-----
> From: owner-gnso-ppsc-pdp@xxxxxxxxx [mailto:owner-gnso-ppsc-pdp@xxxxxxxxx] On 
> Behalf Of Avri Doria
> Sent: Thursday, May 20, 2010 8:41 AM
> To: Gnso-ppsc-pdp@xxxxxxxxx
> Subject: Re: [gnso-ppsc-pdp] FW: Open Letter to the GNSO Council: 
> Accountability & Transparency starts at the Bottom
> 
> 
> Hi,
> 
> I put myself as record as one who does disagree with you.
> 
> While I was part of the IDNG group and was one of the coauthors of the 
> letter, my reason goes beyond that.
> 
> If the Council is so hampered that its  members cannot make any decisions, 
> including simple ones like a letter pointing out an errors in a process, then 
> we might as well just set up a monthly plebiscite for the SGs and forget 
> about council members.  Have a vote, tally the results of members of each SG 
> and allocate the votes: how? - winner takes all?  proportionate to the vote?
> 
> I think that allowing the council to make decisions within the constraints of 
> their knowledge of their respective SGs give real representation.  Having 
> elected representatives allows for a SG to have nuance in its vote as they 
> can vote for thing in support of the membership and can represent minority 
> viewpoints as well as the dominant viewpoint that would control in situations 
> were every vote is SG driven.
> 
> It certainly makes sense for a council to do as they have often done and say 
> - wait, i can't vote on this yet because i have not had time to gauge the 
> views in my SG - lets vote next meeting..  But the idea of a formal comment 
> period for every utterance the council makes is frightening.
> 
> As for the weight of a statement that comes from the council or from a many 
> month process, the Staff and the Board can tell the difference.  And a  
> letter from council  is something they can take account of or not with no 
> pressure on them to give it the weight of a consensus decision.  That is why 
> consensus decisions are special - but it does not mean that all council  
> utterances must be consensus decisions.
> 
> 
> Anyway, I am not really sure that this is part of our PDP WT issue. 
> 
> a.
> 
> On 19 May 2010, at 14:41, Neuman, Jeff wrote:
> 
>> All,
>> 
>> I sent the following note to the GNSO Council which I hope they will post on 
>> their list.  I know some on this list may not agree with me on this view, 
>> but I believe the GNSO should never vote on a substantive motion without the 
>> ability for comment by the GNSO community.  This is what may happen tomorrow.
>> 
>> Jeffrey J. Neuman 
>> Neustar, Inc. / Vice President, Law & Policy
>> 
>> The information contained in this e-mail message is intended only for the 
>> use of the recipient(s) named above and may contain confidential and/or 
>> privileged information. If you are not the intended recipient you have 
>> received this e-mail message in error and any review, dissemination, 
>> distribution, or copying of this message is strictly prohibited. If you have 
>> received this communication in error, please notify us immediately and 
>> delete the original message.
>> 
>> 
>> From: Neuman, Jeff 
>> Sent: Wednesday, May 19, 2010 2:37 PM
>> To: cgomes@xxxxxxxxxxxx
>> Cc: Stéphane Van Gelder; Olga Cavalli; Caroline Greer; Edmon Chung; Glen de 
>> Saint Géry; Rosette, Kristina; Tim Ruiz; Adrian Kinderis; Neuman, Jeff
>> Subject: Open Letter to the GNSO Council: Accountability & Transparency 
>> starts at the Bottom
>> 
>> Dear members of the GNSO Council,
>> 
>> This is being written in my personal capacity, not on behalf of Neustar and 
>> not on behalf of the Policy Process Steering Committee or PDP Work Team of 
>> which I am the chair.  I ask that you send this to the entire council as I 
>> do not have posting privileges and there is no public comment period or 
>> forum for this issue (which as you will see is one of the issues I discuss 
>> below).    
>> 
>> I am writing to you today to express my concerns about a motion that you 
>> will be voting on tomorrow regarding the new gTLD process, particularly with 
>> respect to asking the staff to amend the Draft Applicant Guidebook.  First 
>> at the outset, let me state for the record that I support the substance of 
>> the proposals and believe the DAG should be changed.  However, despite the 
>> fact that I support the substance, I do not support this ad hoc process 
>> which I believe is extending the GNSO Council's role far beyond its role as 
>> an administrative coordinating body and into the realm of policy development 
>> or at best implementation.  I have expressed my concerns to my stakeholder 
>> group, but because they support the substance of the motion and are afraid 
>> that voting no will somehow detract from the substance, I believe I will be 
>> outvoted even though some of those voting in favor do oppose the process 
>> which was used.  I would have posted my concerns in the public forum for 
>> this motion, but none was created.  Perhaps this may be an idea for future 
>> motions?
>> 
>> The IDNG was formed last year to look specifically at the drafting a charter 
>> for a working group to look at the issue of whether there should be a 
>> fast-track IDN gTLD Process.  My understanding was that the drafting team 
>> was unable to come to consensus on creating such a working group or what 
>> should be in such a charter.  At that point, I believe the drafting team 
>> should have been disbanded, but that is not my issue for now.  The drafting 
>> team continued to discuss IDN gTLD issues and came across what the members 
>> of the drafting team believed was a flaw in the DAG, one in which they are 
>> trying to rectify with this motion.   I am glad someone found this flaw and 
>> I am glad that the members of the drafting team would like this addressed 
>> (as I do).   However, the  approach the Council is getting ready to take on 
>> this is one which sets a dangerous precedent for the future in setting 
>> policy at the Council level as opposed to bottom-up. 
>> 
>> The Council has before it a recommendation from the IDNG to send a note 
>> directly to the ICANN staff (and by cc: the ICANN Board) directing it to 
>> change the current version of the DAG to address this flaw.  Rather than 
>> taking that recommendation and putting it out for public comments or opening 
>> up a comment forum to address the issues, it is unilaterally proposing to 
>> take matters into its own hands and pass this resolution.  In doing so, the 
>> GNSO Council it will send a message to the ICANN Staff and to the Board, 
>> that it is a legislative policy making body as opposed to that of a policy 
>> manager/coordinator.  I understand that many on the Council believe time is 
>> of the essence because the next version of the DAG is supposed to be 
>> released in the next couple of weeks.  However, please take note that this 
>> is not the last opportunity to comment on the DAG.  In fact, there is no 
>> public comment period to submit this to the staff now anyway.  In looking at 
>> the Council mailing lists, it appears that changes are still being discussed 
>> to the motion and I am afraid it is being rushed through.  How can an issue 
>> get to the Council and a resolution passed, without ever putting that issue 
>> out for a public comment?
>> 
>> If Council members do support the substance of the motion (as I do), then 
>> the proper thing for the council to do is to encourage those members in 
>> support of the substance, including the IDNG Drafting Team, to send a letter 
>> on their own behalf to the ICANN staff either now or during a formal public 
>> comment period.  Or, if it really wants to have a letter come from the 
>> Council to the staff, it should put out this motion for public comment until 
>> at least the next meeting to get input from the community.  However, the 
>> Council should not be sending such a letter now to the staff or to the Board 
>> without getting such input from the community in which it is supposed to be 
>> serving.  Doing so creates the false impression that at this point in time 
>> the motion has broad community support.  It may have such support, but 
>> without putting it out for comment, you are not giving those that may oppose 
>> an opportunity to be heard.   We chastise the ICANN Board for taking such 
>> actions, and should lead by example.
>> 
>> As someone who is deeply involved in helping to reshape the PDP and WG 
>> processes of the future and one who has spent way too much time thinking 
>> about this kind of stuff, I believe that if the GNSO Council votes and 
>> approves this motion tomorrow, it will be not only going against the very 
>> fabric of what the Board Governance Committee stated was the role of the 
>> GNSO Council, but will be setting a very bad precedent for bypassing the 
>> policy process in the future. 
>> 
>> Thank you for considering my note.
>> 
>> Jeffrey J. Neuman
>> 
>> The information contained in this e-mail message is intended only for the 
>> use of the recipient(s) named above and may contain confidential and/or 
>> privileged information. If you are not the intended recipient you have 
>> received this e-mail message in error and any review, dissemination, 
>> distribution, or copying of this message is strictly prohibited. If you have 
>> received this communication in error, please notify us immediately and 
>> delete the original message.
>> 
> 
>