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

[Avri Doria <avri@xxxxxxx>]

Hi,

I will not go into the complete argument here because it is not pertinent to 
this group.  I have done so before and can do so again in the right forum.

>From my perspective: the council did discuss the recommendation of the PRO WG 
>and did make an explicit decision that there would be no required rights 
>protections mechanisms.  It also made the recommendation that there be 
>information accompanying every Application guidebook on the range of possible 
>rights protection mechanisms that could/should be considered - but the 
>decision of whether to include any specific rights protection mechanism  was 
>left to the applicant in a very free market manner.

What is of consequence, perhaps, in this disagreement to the PDP group is the 
recording of negative decisions by a PDP group.  In this case the council made 
a specific decision to not include something in the requirements.  But there 
was no recording of this in the final documentation and has been a bone of 
contention ever since.  In every PDP there are decisions to not do something, 
but normally only the positive decision to do something are recorded and voted 
on.


a.


On 20 May 2010, at 09:52, Rosette, Kristina wrote:

> "for the staff to insert protection measures that had been specifically 
> reject in the PDP process would be another thing altogether."
> 
> Avri, I've got to take issue with your characterization about specific 
> rejection in the PDP.  The only definitive recommendation that came out of 
> the Protecting the Rights of Others Working Group was that there was no one 
> single universal RPM. We made that statement in the context of the Sunrise v. 
> IP Claims debate. The WG did not have sufficient time to discuss a number of 
> suggestions, which included the precursors of what became the Clearinghouse 
> (which is not an RPM) and the URS (which is not a RPM, but a rights 
> enforcement mechanism). Accordingly, even if it was appropriate to 
> characterize either the Clearinghouse or the URS as an RPM (and I do not 
> believe it is), the WG did not discuss them so it's hard to see how you can 
> characterize them as being rejected.
> 
> K 
> 
> -----Original Message-----
> From: owner-gnso-ppsc-pdp@xxxxxxxxx [mailto:owner-gnso-ppsc-pdp@xxxxxxxxx] On 
> Behalf Of Avri Doria
> Sent: Thursday, May 20, 2010 9:08 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,
> 
> 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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>> delete the original message.
>> 
>> 
>> 
>> -----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, b!
> ut 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 lis!
> ts, 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 sho!
> uld 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.
>>> 
>> 
>> 
> 
>