Statement on IFRC and IOC - Legitimacy of GNSO action on IFRC/IOC Policy
- To: ioc-rcrc-proposal@xxxxxxxxx
- Subject: Statement on IFRC and IOC - Legitimacy of GNSO action on IFRC/IOC Policy
- From: Avri Doria <avri@xxxxxxx>
- Date: Wed, 21 Mar 2012 13:28:14 -0500
In this statement I want to address the question of whether the current
IFRC/IOC is a policy issue or an implementation issue and whether the GNSO is
acting within its proper mandate and powers. The ICANN Board granted special
protection to the International Federation of the Red Cross (IFRC) and to the
International Olympic Committee (IOC). Was this policy or was this
implementation? Was the Board's action legitimate? The GNSO is planning to
vote on a Drafting Team's recommendation on changes to the Boards decisions and
the Staff's implementation. Is this action legitimate?
I will not discuss any of the specific details of the policy or the
implementation issues involved in this decision, though I have discussed these
issues in other comments.
In creating a new class of names, the modified reserved names, I think it is
clear that the Board was making policy. And I beleive it is clear that it is
made policy that is in disagreement with policy the GNSO already recommended
and which the Board approved. While it is true that the Board may have
circumvented the Multistakeholder process in doing so, I also beleive that the
by-laws do not limit the Board in terms of making policy except for when the
policy affect items within the picket fences of Registrar and Registry
contractual conditions. In fact in this case, if the Board approved this new
modified reserve names policy by a consensus greater that 2/3, it probably also
met the conditions necessary to overrule a GNSO consensus policy
recommendation, i.e. the new gTLD recommendations. Though the fact that it did
not explicitly state this in its decision, makes this pure speculation.
As a proponent of the Multistakeholder Process, and someone who believes that
this is fundamental to ICANN and GNSO legitimacy, I feel this was sub-optimal
and something to be avoided. I also beleive it was a legitimate action for the
Board to take. Unfortunate perhaps, but legitimate.
I do not know where the Board felt the line fell between the policy decision
made by the Board and the Staff decision on how to implement the policy. The
Board notes don't seem to discriminate between the two. In a sense, I take the
creation of the new class of modified reserve names as policy and take the
inclusion of only two organizations as perhaps a combination of policy and
implementation. Policy in the sense of the deffiniton of the class of entity
that merits the extra protections, implementation in terms of creating a list
of names to actually be protected. Exactly where this line falls is probably
worth further discussion, but I do not think it is material to this discussion.
In asking the GNSO to review this new Board originated policy, it is being
asked to take a policy action, in that it is being asked to endorse or
recommend modifications to the policy as approved by the Board. If the list of
names is implementation, then any GNSO consideration of the list of names
itself would be an implementation guideline.
In terms of recommending policy, which is what an endorsement of the Board
policy decision amounts to, I beleive that the GNSO must follow proper PDP
guidelines. It is improper and illegitimate for a Drafting Team to create a
policy recommendation. The mandate of an ad-hoc drafting team should not
extend beyond the creation of the charter for a Working Group as there are no
By-Laws or GNSO procedural bases for granting such powers to a Drafting Team.
Drafting Teams have no authority for drafting policy recommendations
themselves, only for proposing the charter by which a By-laws determined
Working Group will fulfill such a task. To not have immediately created a
Working Group for this recommendation, when the task was first proposed, is a
transgression of the GNSO policy process. It is a return to the notion of the
GNSO as Legislature, something that is no longer allowed in the By-Laws.
It is my belief that because the GNSO Council did not follow proper process in
developing the motion before the GNSO Council, the motion it proposes to vote
on is an improper motion and one that must not be voted on.
As the Board decision was legitimate, there is no reason why the protections in
the AGB should not stand as defined. On the other hand, for the GNSO to
properly fulfill its obligation to the Board and to the community in a review
of this policy, a proper PDP process must be created and carried through to
completion. This requires an issues report and the full process that has been
recently approved by the very council that now proposes circumventing all of
its own rules.
I recommend that the GNSO replace its current motion with a call for an issues
report on the possible creation of protections under discussion at the top and
second level. I also recommend that the issue of the powers of a Design Team
be sent to the GNSO Standing Committee on Improvements Implementation (SCI) for