Statement on IFRC and IOC - Legitimacy of GNSO action on IFRC/IOC Policy

[Avri Doria <avri@xxxxxxx>]

Re: http://www.icann.org/en/news/public-comment/ioc-rcrc-proposal-02mar12-en.htm

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 
further discussion.

Avri Doria