From: Daniel Halloran <daniel.halloran@xxxxxxxxx>
Date: 21 oktober 2006 01.43.24 GMT+02:00
To: council@xxxxxxxxxxxxxx
Subject: [council] PDP-Feb06 Terms of Reference and the "Picket Fence"
Bruce,
This note is with respect to the resolution from the GNSO Council
on 28 September 2006:
"The GNSO Council resolves:
a) To instruct the PDPFeb06 task force to continue its work, to
appoint an interim chair
b) To instruct staff to propose a work schedule in agreement with
the interim chair and Task Force this week and carry it out
c) To ask the General Counsel within 14 days to list all ICANN
agreements sections on consensus policy
d) To ask the General Counsel within 14 days to compare and
contrast the PDP06 Terms of Reference with the so –called "picket
fence" consensus policy areas and provide a without prejudice
assessment of likelihood of in or out of scope indicating
uncertainty as necessary.
[1] List all ICANN agreements sections on consensus policy
General Counsel's office has sent tables to the PDP-Feb06 Task
Force on October 4 and October 9 providing an overview and a
comprehensive listing of all the relevant agreement provisions.
The complete set of contractual provisions is included in a
document currently posted on the GNSO Drafts and Working Documents"
page at <http://gnso.icann.org/drafts/>. The General Counsel's
office would appreciate any feedback Council members could offer to
make those documents more useful for you.
[2] Compare and contrast the PDP06 Terms of Reference with the so-
called "picket fence" consensus policy areas and provide a without
prejudice assessment of likelihood of in or out of scope indicating
uncertainty as necessary
The Council's second request turns out to be much more complex --
in effect the Council has asked for legal opinions on hundreds of
complex questions: the terms of reference for PDP-Feb06 include
eleven (11) separate questions (e.g. whether or not there should be
a policy guiding renewal, whether or not there should be a policy
guiding registry fees to ICANN, etc.), and some versions of the
"picket fence" of policy topics for which a Registry Operator has
an ongoing contractual obligation to comply with New or Revised
ICANN Specifications and Policies include ten (10) or more
different categories of topics. The "compare and contrast"
exercise the Council requested requires first speculating what sort
of recommendation might come out of the PDP on each of the eleven
questions, and then hypothesizing whether or not such a
recommendation might fall under one or more of the ten or so
categories of topics for consensus policies. This task is further
complicated by the fact that there is no one formulation of "the"
picket fence, but instead the topics for consensus policies vary
from contract to contract. Some contracts
(.AERO, .COOP, .MUSEUM, .NET, and the proposed new contracts
for .BIZ, .COM, .INFO and .ORG) also include not just a list of
subjects that are agreed to be within the "picket fence" set of
topics for policies but also a list of topics that are expressly
agreed to be outside the "picket fence" of topics for policies.
Recent agreements have identified five main policy areas where a
Registry Operator has a contractual obligation to comply with new
or revised policies:
(1) issues for which uniform or coordinated resolution is
reasonably necessary to facilitate interoperability, Security and/
or Stability of the Internet or DNS;
(2) functional and performance specifications for the provision of
Registry Services;
(3) Security and Stability of the registry database for the TLD;
(4) registry policies reasonably necessary to implement Consensus
Policies relating to registry operations or registrars; or
(5) resolution of disputes regarding the registration of domain
names (as opposed to the use of such domain names).
This compares with the six main topics of PDP-Feb06:
1. Registry Agreement Renewal
2. Relationship between registry agreements and consensus policies
3. Policy for price controls for registry services
4. ICANN fees
5. Uses of registry data
6. Investments in development and infrastructure
The majority of the topics above seem to relate to the framework of
the registry agreement itself, rather than to the set of five
topics areas where a Registry Operator must comply with new or
revised policies after the signing of the agreement. The topics
above would appear to be most relevant in the development of a new
framework registry agreement for future negotiations.
The Council's resolution indicated that these requested legal
opinions could be offered by the ICANN General Counsel's office
"without prejudice," but in reality there is no such thing as a
"policy-development privilege" ... any statements that ICANN's
lawyers make on a public mailing list about the interpretation of
ICANN's contracts or the applicability of ICANN's policies could be
admissible if relevant in any current or future litigation
involving ICANN. The initial Issues Report for PDP-Feb06 <http://
gnso.icann.org/issues/gtld-policies/issues-report-02feb06.pdf>
included the General Counsel's opinion that the focus of the PDP as
initially framed by the Council was not "properly within the scope
of the ICANN policy process and within the scope of the GNSO." The
Council subsequently restated its intended focus in its adopted
terms of reference <http://gnso.icann.org/issues/gtld-policies/tor-
pdp-28feb06.html>, but it remains difficult to speculate whether or
not particular hypothetical recommendations that could be made by
the task force would be within the scope of the ICANN policy
process or the "picket fence" of topics for policies in ICANN's
agreements. In light of the variations in the Registry Agreements
and the lack of a specific policy recommendation to the ICANN
Board, the General Counsel's office cannot provide any more
specific information at this time.
I hope the above information is helpful. Please let me know if you
have any questions or if I can be of any other assistance.
Best regards,
Daniel Halloran
Deputy General Counsel
ICANN