[gnso-raa-b] Tasks 2 and 3 -- for our discussion April 15

["Metalitz, Steven" <met@xxxxxxx>]

Thanks to Tim and Statton for their observations on tasks 2 and 3 of our
subteam. Of course we will discuss these on our call tomorrow, along
with the memo circulated by Margie, which I think takes a different
view.  I hope that a member of the Legal Staff, or someone authorized to
speak on their behalf, will attend tomorrow.   In the meantime, let me
offer a few reactions.  
 
 First, let's review what these tasks are:  
 
(1) Identify topics on which further action in the form of amendments to
the RAA may be desirable.
(2) From list (1), flag any topics that may require further analysis as
to impact on consensus policy.
(3) Propose next steps for considering such topics.
 
Source:  
http://gnso.icann.org/drafts/raa-drafting-team-charter-03sep09-en.pdf
<http://gnso.icann.org/drafts/raa-drafting-team-charter-03sep09-en.pdf> 
as cited in GNSO resolution 20090903-3
<http://gnso.icann.org/meetings/minutes-03sep09.htm> 
 
See also
https://st.icann.org/raa-related/index.cgi?draft_raa_drafting_team_chart
er. 
 
Let's also recall that over the past several months, we have been
attempting to proceed on tasks 1 and 2 in tandem. Subteam members were
consistently asked to flag items for task 2 as we reviewed them for task
1 as we walked through our compilation document.  
 
I read what Tim and Statton are suggesting as saying, every topic that
we have identified in task (1) is a topic "that may require further
analysis as to impact on consensus policy."  That seems to me to be the
same thing as asking the legal staff to "identify the items from our
list that require a consensus policy process."  
 
Today we have also received a document from staff that includes the
following:  
 
"The form of the RAA that may be approved by the GNSO Council may
include topics that are within the scope of "Consensus Policies" as
specified under Section 4.2 of the RAA as well as other possible topics.
Notwithstanding the broad nature of amendments that can be included in
the new form of the RAA, Staff recommends that the RAA Drafting Team
evaluate whether a proposed amendment topic is more appropriately
addressed through a formal PDP on the specific topic rather than through
the existing RAA amendment process."
 
The staff seems to be saying the opposite of what Statton and Tim are
recommending.  Statton and Tim seem to be saying, let the legal staff
decide which "proposed amendment topic is more appropriately addressed
through a formal PDP on the specific topic rather than through the
existing RAA amendment process."  The ICANN staff are saying that the
"Drafting Team" should evaluate this.  That also, in my view, is more
consistent with what our charter says (task (2)).  
 
Statton notes that "during the last round of amendments, Kurt P. gave
ICANN's opinion on which proposals required consensus policy."  Of
course, during the last round, the process we are going through did not
exist in the same form.  Instead, proposed topics for RAA amendments
were solicited through a public comment period.  The staff then reviewed
these topics, and concluded that 14 proposed topics for RAA amendments
as "considered by staff either to be under discussion in the context of
a Consensus Policy already or, otherwise because of their nature,
could/should be handled through the Consensus Policy process."  See
http://www.icann.org/en/topics/raa/comment-summary.html.   At a quick
glance, there is only a little overlap between this list of 14 and the
items in our compilation.  
 
My sense is that the Council wanted to have some input, this time
around, into the decision of whether a particular topic should not be
considered as an RAA amendment because it "could/should be handled
through the Consensus Policy process."  In the last cycle, they did not
have a chance to provide that input.  That, it seems to me, is why they
asked us to "flag" such topics in our report.  I would be reluctant to
shirk that assignment. But I look forward to hearing all the points of
view tomorrow.  
 
Let me turn briefly to task 3.  I appreciate Tim coming forward with a
counter-proposal to my original "straw man" on this topic, and I agree
that if affected parties other than the registrars and ICANN are to be
excluded from the negotiations, then there needs to be a "reiterative
process" by which those excluded are kept closely informed of the
negotiations. But I for one am not yet ready to accept the premise that
such an exclusion is required.  I accept that the final agreement on
amendments will be made between the registrars and the staff, but I do
not believe that other affected parties should be limited to the post
hoc role to which they were relegated last time.  That is why we exist,
because the process used last time was not deemed acceptable by many on
the Council.  
 
Rather than a closed room,  from which the contracting parties emerge
from time to time to tell us what they think we need to know about the
negotiation, I suggest we consider a more open room, from which the
contracting parties can excuse themselves from time to time when there
is demonstrated need to do so in order to bring confidential information
to the negotiating table.   
 
Another approach might be to accept representatives of the affected
parties as "observers" to the negotiation, in the same sense that
"observers" function in the GNSO processes generally.  
 
I look forward to discussing these options with subteam members
tomorrow.  
 
Steve Metalitz
 

________________________________

From: owner-gnso-raa-b@xxxxxxxxx [mailto:owner-gnso-raa-b@xxxxxxxxx] On
Behalf Of Hammock, Statton
Sent: Wednesday, April 14, 2010 3:02 PM
To: Tim Ruiz; gnso-raa-b@xxxxxxxxx
Subject: RE: [gnso-raa-b] Update on next steps and apologies



I'd like to support Tim's proposal to ask John Jeffrey or others on
ICANN's Legal Staff to identify the items from our list that require a
consensus policy process.  I believe someone acknowledged in the early
days of the WG, that the members wouldn't be able to agree on which
items were inside or outside of the "picket fence" so I think it's a
good idea to ask Staff to do this.  Also, I understand that during the
last round of amendments, Kurt P. gave ICANN's opinion on which
proposals required consensus policy so I think there is precedent for
this. 

 

Statton

 

 Statton Hammock 

 Sr. Director, Law, Policy & Business Affairs 

P 703-668-5515  M 703-624-5031 www.networksolutions.com

 

 

-----Original Message-----
From: owner-gnso-raa-b@xxxxxxxxx [mailto:owner-gnso-raa-b@xxxxxxxxx] On
Behalf Of Tim Ruiz
Sent: Wednesday, April 14, 2010 12:16 PM
To: gnso-raa-b@xxxxxxxxx
Subject: [gnso-raa-b] Update on next steps and apologies

 

 

I apologize, but it looks like I may not be able to make the call

tomorrow, although I still intend to try. So I'd like to offer some

thoughts on what we discussed last call, and another idea.

 

There were a few ideas put forward regarding the next steps I proposed

on the last call. As I noted, the RrSG feels strongly that only the two

parties to the agreement should be involved in the actual negotiations.

However, as discussed if there is a reiterative process that would keep

the community more informed and involed we would be open to that. If

there is anything specific we can define in that regard it would be

helpful in keeping things moving forward on this.

 

I would also like to make a proposal on another open issue, identifying

those items that would require the consensus policy process. Instead of

us trying to hash that out, we should ask John Jeffrey to do that for

the group. I know some work may have been done on that, but it should be

reviewed by John for his opinion.

 

 

Best,

 

Tim