RE: [gnso-rn-wg] RN-WG Questions: Report detail: DISPUTES AND OBJECTIONS

["Michael D. Palage" <Michael@xxxxxxxxxx>]

Chuck/Marilyn,

Sorry for sounding like an American Lawyer, but here goes.

Point #1

Although I respect the ability of any body within the ICANN process to
claim confidentiality in a document, confidentiality is generally waived
when it is publicly disclosed through a third source. In this case the
draft GAC principles on new TLDs has been publicly disclosed on multiple
occasions. See for example the following post to the GNSO Council by its
Chair that provides a link to the draft GAC document (version 2) on 4
December 2006, see
http://forum.icann.org/lists/gtld-council/msg00307.html 

Following this public disclosure by the GNSO Chair, ICANN staff
specifically providing this working group a copy of the draft GAC
principles as a reference document, see Liz Williams post dated 8
February 2007 http://forum.icann.org/lists/gnso-rn-wg/msg00056.html. Not
only did Liz in this email provide a separate PDF version of this
document, but she also provided the group some additional insight
regarding conversations with GAC member Bill Dee. I as a member of this
working group have specifically relied upon this publicly posted
document in formulating a number of the positions that I have taken
throughout our discussions.

Point #2

You claim that this document is located on a secure server that requires
a user ID and password. However, it is interesting to note that as of
this morning (12 March 2007) I was still able to access this document
without a user id or password via the link previously provided by the
GNSO Chair Bruce Tonkin. 

Point #3

I am unaware of any prior objection by the GAC to the public discussion
of this draft document. In fact I believe the following excerpt made
during the public forum on new gTLDs in Brazil from Philip Sheppard, a
Business Constituency Names Council representative, is very insightful
and to the point on how we should make reference to the draft GAC
Principles:

>> PHILIP SHEPPARD: ROBIN, THANK YOU. JUST ONE LAST COMMENT ON THAT, AND
PICKING UP ON WHAT BRET SAID, IT WAS INTERESTING THAT IN LOOKING AT THE
DRAFT GAC PRINCIPLES -- NOW, THESE ARE, INDEED -- I STRESS THE WORD
"DRAFT" -- ONE CONCEPT THAT THE GAC HAS PICKED UP THERE IS, INDEED, THIS
IDEA OF INCITEMENTS TO HATRED, WHICH IS ALSO A COMMON CONCEPT IN LAW OR
ELSEWHERE. BUT CERTAINLY I THINK THE GENERAL VIEW OF THE COMMITTEE,
GOING BACK TO YOUR BROAD POINT THAT YOU ASKED EARLIER, NIGEL, WOULD BE
THAT IT IS INTENDED TO BE THE NARROWER DEFINITION, RATHER THAN THE
WIDER. CERTAINLY THAT IS OUR HOPE. AND IF WE NEED TO CLARIFY THE WORDING
IN OUR FINAL REPORT, WE WILL DO SO., see
http://www.icann.org/meetings/saopaulo/captioning-gnsopublicforumpt1-04d
ec06.htm

It is also interesting to note that following this statement by Philip,
the next speaker at the microphone was a GAC representative that made no
formal objections to the characterizations of Mr. Sheppard. Therefore,
given the wide public discussion of this document within the broader
Internet and ICANN stakeholder community, any claim of confidentiality
would likely be deemed waived.

Point #4

Based upon the following excerpt from preliminary minutes from the 12
February 2007 ICANN Board meeting, it appears that the GAC may wish to
examine its internal procedures about how certain
correspondence/communications are made public:

Paul Twomey requested that issues regarding the GAC letter and GAC
advice be discussed further at the next Board meeting. Sharil Tarmizi
said that the letter from the Chair and Chair-Elect of the GAC, had been
provided to the Board after its meeting on 16 January 2007 and was a
response that had been signed off by Janis Karklins and himself rather
than the whole GAC. Janis clarified that an unfortunate miscommunication
led to a rescheduling of the GAC conference call on 17 January 2007 and
that had prevented broader participation. Those GAC members who
participated in the call felt that the GAC had to respond ICANN's call
for comments. The first draft response was sent to the GAC mailing list
and subsequent comments received led to further redrafting. A final
version of the letter was sent to the GAC mailing list and GAC members
had a final opportunity to comment, in the absence of which, the final
draft would be adopted as the version to be sent out to ICANN. No
comments were received and the letter was sent to the Chairman of ICANN.
Janis stressed that the letter should not be considered as formal advice
since no formal request has been received from the Board. He reiterated
that the Wellington Communique remains a valid and important expression
of the GAC's views on the proposed .XXX domain. Susan Crawford asked
what particular concerns governments had and Janis Karklins referred to
the GAC Wellington Communiqué is the only formal expression of the GAC
on this matter. 

See http://www.icann.org/minutes/prelim-report-12feb07.htm

If the bottom up consensus process as enshrined in the ICANN bylaws is
to work, volunteers such as myself and others within this group must
have some predictability regarding the ability to cite documents
provided to us during our work.


Point #5

Given that ICANN has been a target of numerous lawsuits over the years,
it is highly conceivable that any future TLD applicant whose application
is denied acceptance in the proposed new gTLD process may seek recourse
through the courts. As a California not-for-profit corporation, ICANN
has been a party to numerous litigation proceeding within the United
States. Under both federal and state discovery rules, the proposed draft
GAC principles are likely to be discoverable. If the ICANN's general
council office believes that this document could be withheld under some
privilege not clearly evident to myself, I would welcome any
clarification. 

Therefore, in conclusion, I submit that this Working Group which has
relied upon the draft GAC principles throughout its work has a duty to
include a specific reference to it with a proper disclaimer along the
lines as noted by Council Member Philip Sheppard. Simply stated I do not
think we can unring this bell which has been a focal point of this
group's discussion over the past several weeks. 

Best regards,

Michael D. Palage

-----Original Message-----
From: owner-gnso-rn-wg@xxxxxxxxx [mailto:owner-gnso-rn-wg@xxxxxxxxx] On
Behalf Of Gomes, Chuck
Sent: Monday, March 12, 2007 11:58 AM
To: Avri Doria; Marilyn Cade
Cc: GNSO RN WG
Subject: RE: [gnso-rn-wg] RN-WG Questions: Report detail: DISPUTES AND
OBJECTIONS


The documents portion of the site is password protected, which tells me
that the guidelines are not public.

Chuck Gomes
 
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> -----Original Message-----
> From: owner-gnso-rn-wg@xxxxxxxxx
> [mailto:owner-gnso-rn-wg@xxxxxxxxx] On Behalf Of Avri Doria
> Sent: Monday, March 12, 2007 11:50 AM
> To: Marilyn Cade
> Cc: GNSO RN WG
> Subject: Re: [gnso-rn-wg] RN-WG Questions: Report detail: 
> DISPUTES AND OBJECTIONS
> 
> 
> On 12 mar 2007, at 09.42, Marilyn Cade wrote:
> 
> > I think that this group in particular can point to the
> forthcoming GAC
> > principles and suggest that further discussion should occur
> related to
> > the principles.
> >
> 
> 
> I think we can also point, as we have, to the draft that they
> have made public in:
> 
> http://gac.icann.org/web/meetings/mtg26/
> gTLDs_principles_on_public_policy_draft_17_oct_2006.doc
> 
> and that it is appropriate to respond to the proposed
> recommendation they make in detail.
> 
> a.
> 
>