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

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

Thanks Mike for the thoughtful comments.  I just have one observation:  what I 
heard in the joint GAC/GNSO meeting in Sao Paulo was very different than what I 
saw in the draft GAC Principles that Bruce Tonkin distributed so I am not sure 
if they have gone a totally different direction since then or not; if they 
have, the relevance of what they said their may have changed.

Chuck Gomes
 
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> -----Original Message-----
> From: Michael D. Palage [mailto:Michael@xxxxxxxxxx] 
> Sent: Monday, March 12, 2007 1:29 PM
> To: Gomes, Chuck; 'Avri Doria'; 'Marilyn Cade'
> Cc: 'GNSO RN WG'
> Subject: RE: [gnso-rn-wg] RN-WG Questions: Report detail: 
> DISPUTES AND OBJECTIONS
> 
> 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-gnsopublicfo
> rumpt1-04d
> 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
>  
> "This message is intended for the use of the individual or 
> entity to which it is addressed, and may contain information 
> that is privileged, confidential and exempt from disclosure 
> under applicable law. Any unauthorized use, distribution, or 
> disclosure is strictly prohibited. If you have received this 
> message in error, please notify sender immediately and 
> destroy/delete the original transmission." 
>  
> 
> > -----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.
> > 
> > 
> 
> 
> 
>