Re: [soac-mapo] Update- Rec6 Action Item URGENT input from CWG is required by January 7th 2011.

[Richard Tindal <richardtindal@xxxxxx>]

I think our current mission is to address the three items in the Board's 
Cartagena resolution (per Margie's 24 Dec note).  

IO wasn't one of them, so I propose we leave any revisiting of that issue to 
the end of our discussions.

Richard


On Dec 31, 2010, at 4:12 PM, Robin Gross wrote:

> Thanks, Cheryl.
> 
> The role of the Independent Objector (and scope) is also an issue that we 
> need to continue to work on for our response to the board.
> 
> Best,
> Robin
> 
> 
> On Dec 31, 2010, at 3:10 PM, Cheryl Langdon-Orr wrote:
> 
>> On Behalf of the CWG Co-Chairs  please find below  and on  this wiki page 
>> <https://community.icann.org/display/atlarge/Recommendation+6+Cross+Community+Work+Group+Cartagena+Board+Resolution+response+drafting+space
>>  > some text drafted  to begin our development of the CWG response to the 
>> Dec 10th Board Resolution from the Cartagena meeting, that we need to deal 
>> with as a matter of urgency....  A doodle will be forthcoming from staff to 
>> ascertain a time on 5,6 or 7 January when the CWG  can teleconference to 
>> complete final drafting of our response to the Board Resolution, so that it 
>> can be transmitted to the Board no later than 2359 UTC on January 7th...  We 
>> do realize that this time of year will mean many contributors  will have 
>> limited access and ability to contribute to both the drafting online and the 
>> teleconference ( we will use an Adobe Connect room for the drafting at that 
>> meeting, but we are restrained by the timing requirements outlined in the 
>> resolution, so must simply do our best;  We thank you all in advance  for 
>> whatever contribution(s) you are able to make to this important process...
>> 
>> 
>> Kindest regards,
>> 
>> Cheryl Langdon-Orr (CLO)
>> On Behalf of all the Rec6CWG Co-Chairs
>> 
>> 
>> Please contribute edits/ comments suggestions  to the current draft text 
>> (kindly provided by Jon Nevett on behalf of the CWG pre Cartagena response 
>> to staff questions drafting team)   either, here to this list and/or  as 
>> comments or direct edits to the wiki page (edits etc., from the list will be 
>> copied across to the wiki as well, {if you do this please  use a <name> next 
>> to  a proposed insertion or comment/note and DO NOT DELETE text convention!} 
>> 
>> Drafted text  to be developed by the CWG  by January 7th 2011  in response 
>> to Resolution (see for full resolution regarding outstanding issues with new 
>> gTLD's  See 2. in Dec 10th Board Resolutions 
>> http://icann.org/en/minutes/resolutions-10dec10-en.htm#2     which (in part) 
>> reads...
>> Whereas, the working group formed to address implementation of the 
>> GNSO-recommended policy concerning morality and public order objections made 
>> recommendations (the Recommendation 6 Community Working Group), several of 
>> which were incorporated into the guidebook, and the working group has 
>> clarified the remaining recommendations in a series of consultations with 
>> ICANN staff and Board members. Discussions will continue on (1) the roles of 
>> the Board, GAC, and ALAC in the objection process, (2) the incitement to 
>> discrimination criterion, and (3) fees for GAC and ALAC-instigated 
>> objections. ICANN will take into account public comment including the advice 
>> of the GAC, and looks forward to receiving further input from the working 
>> group in an attempt to close this issue*.*
>> 
>> Whereas, the public comment period on the English version of the Proposed 
>> Final Applicant Guidebook concluded just prior to this Board Meeting on 10 
>> December 2010, with the closure of other comments on translated versions to 
>> follow in the order posted, and ICANN will carefully consider all of the 
>> comments received.
>> 
>> Whereas, the Board participated in discussions and listened to comment from 
>> stakeholders during the meeting in Cartagena.
>> 
>> Whereas, the Governmental Advisory Committee communiqué from Cartagena 
>> indicates that the GAC will provide a list of issues that the GAC believes 
>> are still outstanding and require additional discussion between the Board 
>> and the GAC.
>> 
>> Resolved (2010.12.10.21), the Board:
>> 
>> Appreciates the GAC's acceptance of the Board's invitation for an 
>> inter-sessional meeting to address the GAC's outstanding concerns with the 
>> new gTLD process. The Board anticipates this meeting occurring in February 
>> 2011, and looks forward to planning for this meeting in consultation and 
>> cooperation with the GAC, and to hearing the GAC's specific views on each 
>> remaining issue.
>> Directs staff to make revisions to the guidebook as appropriate based on the 
>> comments received during the public comment period on the Proposed Final 
>> Applicant Guidebook and comments on the New gTLD Economic Study Phase II 
>> Report.
>> Invites the Recommendation 6 Community Working Group to provide final 
>> written proposals on the issues identified above by 7 January 2011, and 
>> directs staff to provide briefing materials to enable the Board to make a 
>> decision in relation to the working group's recommendations.
>> Notes the continuing work being done by the Joint Applicant Support Working 
>> Group, and reiterates the Board's 28 October 2010 resolutions of thanks and 
>> encouragement.
>> Directs staff to synthesize the results of these consultations and comments, 
>> and to prepare revisions to the guidebook to enable the Board to make a 
>> decision on the launch of the new gTLD program as soon as possible.
>> Commits to provide a thorough and reasoned explanation of ICANN decisions, 
>> the rationale thereof and the sources of data and information on which ICANN 
>> relied, including providing a rationale regarding the Board's decisions in 
>> relation to economic analysis.
>> Thanks the ICANN community for the tremendous patience, dedication, and 
>> commitment to resolving these difficult and complex issues.
>> In preparation for our CWG response to this resolution then; The Co-Chairs 
>> of the CWG asked staff for further clarification to assist in our understand 
>> of the Board resolution.  This resulted (amongst other things) in the 
>> following reply from Kurt => "...after the second meeting there were three 
>> issues and the working group position in these three issues were roughly: 
>> (1) the Board role (that in cases of an objection being upheld by the review 
>> panel, (I.e., rejecting the TLD application), the Board must sustain the 
>> objection by a majority vote). (2) Amending the discrimination standard: 
>> changing "incitement to" or promotion of, to "incitement to and instigation 
>> of"; and adding a number of terms that qualified as discrimination;  (3) 
>> that ALAC and GAC have standing to make Limited Public Interest Objections 
>> and should not have to pay the dispute resolution fee."
>>  
>> Therefore the Board is seeking by 7 January 2011 a proposal from the CWG for 
>> the Board’s consideration, with regard to the three specific issues 
>> discussed in the Cartagena resolution.  In preparing the proposal, it would 
>> be helpful if the CWG would suggest specific revisions to the Proposed Final 
>> Guidebook to address the CWG’s concerns with regard to each of these issues, 
>> instead of making general statements that could be interpreted by 
>> Staff/Board differently than the CWG interprets them.     
>> 
>> It would also be useful to note the level of support for each of the 
>> revisions, and also any background / rationale we have  for each so that the 
>> Board may better understand our perspective(s) 
>> 
>> With regard to the three specific issues described in the resolution, the 
>> Board intended that staff members not to contribute directly to this 
>> writing, however recognizing the extraordinary short time frame we have, 
>> staff as they clarified for us the intent /meaning/requests to us in the 
>> resolution, have categorized/organized the issues through a list of 
>> questions for our consideration in drafting a summary of the Working Group 
>> requests on each of the issues;  these are listed below and  some initial 
>> text has been inserted  for us to edit and develop our response from.
>>  
>> 
>> ********
>> 
>> With regard to the first issue (the roles of the Board, GAC, and ALAC in the 
>> objection process), we need to provide clarification regarding the 
>> circumstances under which the CWG suggests that the Board would vote 
>> regarding an application that is subject to a Rec6 Objection:-
>> 
>> 
>> ·      clarify the circumstances under which the Board would vote with 
>> regard to an Rec6 objection and/or with gTLD applications generally,  
>> 
>> (draft response) Based on the written responses to the pre-Cartagena 
>> questions from the ICANN staff, as well as the various discussions during 
>> the Cartagena meeting, the CWG has recommended that the Board would have to 
>> specifically approve any recommendations from third party experts to reject 
>> a TLD application based on a Recommendation 6 objection.  The CWG has not 
>> suggested, however, that the Board be required to take a vote on specific 
>> Recommendation 6 objections where the third party experts reject such an 
>> objection.  Nor did the CWG suggest that the Board be required to approve 
>> every new gTLD string.    <Jon>
>> 
>> and  
>> 
>> ·      if there is consensus on it, clarify the intended role of the expert 
>> panel (i.e., dispute resolution provider, mediator, advisor or other).  
>> 
>> (draft response)  A consensus of the CWG recommended that the ICANN Board 
>> may "contract appropriate expert resources capable of providing objective 
>> advice."  The CWG did not recommend that the Board should be a trier of fact 
>> or should hear in the first instance every Rec6 objection with a requirement 
>> that it make a determination on the merits in every case. 
>> 
>> The CWG did not reach consensus over the actual form or weight of the expert 
>> advice (e.g. whether the expert panel should be a dispute resolution 
>> provider, mediator or advisor).  Some members of the CWG take a broader 
>> definition of dispute resolution panel than others.  Some members think that 
>> the experts should not hear from the objector and the applicant at all – 
>> whether in a trial setting or written argumentation – others disagree and 
>> support an adversarial process.  There was Strong Support, but not 
>> consensus, that the experts should be able to look at the context of the 
>> application or applicant in evaluating a Recommendation 6 objection – others 
>> disagree and believe that the experts should conduct their analysis on the 
>> basis of only the string.   
>> 
>> While the CWG did not reach consensus on these issues, it did explicitly 
>> remove all reference to "dispute resolution" in its recommendations, and 
>> made no requirement that the experts engage in an adversarial process 
>> between applicant and objector.  Furthermore, the CWG did achieve Strong 
>> Support (though not full consensus) for not calling the evaluation process 
>> one of "dispute resolution," and requiring that the experts' skills be in 
>> legal interpretation of instruments of international law.<Jon>
>> 
>> 
>> 
>> ********
>>  
>> With regard to the incitement to discrimination criterion, we need to 
>> confirm the specific language revisions the CWG requests with regard to the 
>> “incitement to or promotion of” portion of the criterion.   After the 
>> discussion in Cartagena, does the CWG continue to request that the standard 
>> be “incitement and instigation” or is some other language preferable?   In 
>> addition, the CWG could also state whether it still believes that the 
>> standard should be expanded to include the list of additional discrimination 
>> grounds that were referenced in the CWG Report:-
>> 
>> 
>> ·     CWG to confirm the specific language requested with regard to the 
>> “incitement to or promotion of” term in the original standard.  After the 
>> discussion in Cartagena, does the CWG continue to request that the term be 
>> “incitement and instigation” or is some other language preferable?  
>> 
>> (draft response) In its report dated 21 September, 2010, the CWG recommended 
>> that "incitement and instigation" be used in the criteria for 
>> discrimination.  In ICANN's explanatory memorandum on this issue dated 12 
>> November 2010, it provided a rationale of why "incitement to or promotion 
>> of" is a more appropriate standard.  Based on the ICANN response, the 
>> discussions in Cartagena during which several CWG members stated that they 
>> no longer agree with the recommendation, and some admitted confusion over 
>> the legal impact of the word choice, the CWG may no longer have a consensus 
>> on this issue NOTE -- confirm -- do we want to do a straw poll?  Do we want 
>> to try to recommend substitute language?.  With that said, many members of 
>> the CWG still argue that a higher standard than "incitement to or promotion 
>> of" would be appropriate.   <Jon>
>> 
>> ·      the CWG needs to reiterate consensus on the standard including an 
>> expanded list of additional discrimination grounds that were referenced in 
>> the CWG Report.  
>> 
>> (draft response) Two consensus recommendations of the CWG were to extend the 
>> list of potential discriminations also to include discrimination based on 
>> age, disability, actual or perceived sexual orientation or gender identity, 
>> or political or other opinion.  The CWG also suggested by a full consensus 
>> that such discriminations must rise to the level of violating generally 
>> accepted legal norms recognized under "principles of international law."  As 
>> such, any additional discriminations listed in the second prong still must 
>> be found to be in violation of principles of international law.  
>> 
>> We do not believe that recognizing additional discriminations would 
>> significantly broaden the types of objections brought.  The CWG does not 
>> believe that any additional research needs to be conducted on whether such 
>> additional classes are protected under international law today.  It has been 
>> brought to the CWG's attention that these additional discriminations have 
>> some protection under international law.  If they are recognized today, then 
>> the Board and the experts would rely on them.  If they are not at that level 
>> yet, then they won't.  Importantly, such additional discriminations might be 
>> recognized at some future date and the process should be fluid enough to 
>> take them into account at such time.  The suggestion in Cartagena of a 
>> catch-all discrimination criteria – such as "any other discriminations that 
>> are generally recognized under international law" – seems to be acceptable 
>> to many of the CWG members (confirm). <Jon>
>> 
>> **********
>> 
>> With regard to the fees for GAC and ALAC-instigated objections, we need to 
>> identify what (if any) fees should be charged and where the funds should 
>> come from, and any other restrictions or additional steps that the CWG 
>> suggests for dealing with GAC and ALAC-instigated objection:-
>> 
>> 
>> ·      what fees should be paid by ALAC and GAC (if filing and dispute 
>> resolution fees are waived, are the number of free objections limited)
>> 
>> ·       by what process is an ALAC and GAC objection formed and approved? 
>> 
>> (draft response) There was considerable discussion of this in the meeting, 
>> and at this stage subject to ratification as a formal process of the ALAC it 
>> is envisaged that ALAC would take recommendations of any of it's At-Large 
>> organizations ALSes (who may either hold a Community based objection view 
>> themselves  or  be passing such a concern on from the local Internet 
>> Community that they are engages with or are representative for)  up through 
>> the RALOs and then for ALAC consideration an ALAC vote for formally  raise 
>> such an objection would require a super-majority vote to pass; and that the 
>> GAC would develop a consensus based process.
>> 
>> (draft response) Also note here that in addition to the above use of the 
>> "Community Objection" process by the ALAC and GAC; If the Independent 
>> Objector (IO) function is maintained in the processing of new gTLD 
>> Applications, then  an alternate pathway for  AC objections  to be 
>> considered would be for the IO to take up such formally prepared objection 
>> notices from the ALAC and/or GAC and subject to the same standards of  check 
>> and balance criteria,  assessment etc., as any other IO instigated objection 
>> process these as if self instigated. <CLO added text>  
>> 
>> From our clarification document:
>> 
>> A full consensus of the CWG recommended that fees be lowered or removed for 
>> objections from the GAC or ALAC.  It is outside the CWG’s scope to comment 
>> on the process for the GAC or ALAC to lodge objections.  The CWG assumes 
>> that any Rec 6 objections put forth by the GAC or ALAC will be approved 
>> according its own internal processes.  <Jon>
>> 
>> 
>> 
>> 
>> 
>> List here any other issues?
>> 
>> 
>> 
>> 
>> 
>> 
>> 
>> 
>> 
>> 
>> ***************************************************************************************************************************
>> Below is copy (FYI) of the earlier email interchanges over that last few 
>> days, used in preparation of the above draft statement  and process 
>> planning....
>> 
>> On 1 January 2011 09:10, Cheryl Langdon-Orr <langdonorr@xxxxxxxxx> wrote:
>> OK  thanks Jon,  I'll just do a small tidy up of the email text and forward 
>> this onto the Rec6CWG discussion list... poste haste...  And for those of 
>> you who are not yet into 2011 (like Frank and I are) I hope you have a very 
>> Happy New Year...
>> 
>> Cheryl Langdon-Orr
>> (CLO)
>> 
>> 
>> 
>> 
>> On 1 January 2011 08:22, Jon Nevett <jon@xxxxxxxxxx> wrote:
>> Cheryl:  As requested, I've inserted some draft text below based on the 
>> drafting team work and some of my own observations of the meetings in 
>> Cartagena.  The issue of the criteria (instigation and incitement vs. 
>> promotion) definitely will require the most work of the group next week.  
>> Hope that this helps.  Best, Jon
>> 
>> 
>> On Dec 30, 2010, at 8:11 PM, Cheryl Langdon-Orr wrote:
>> 
>>> Thanks  Chuck=> I was literally just snipping those threads together to 
>>> send through...  So you saved me that :-)  Now here is what I propose we 
>>> send  through to the list for *URGENT* action,  but clearly 'we' will have 
>>> to take the lead on this  in such a short time frame.
>>> 
>>> I suggest we get the list discussions on the responses to the clarification 
>>> questions posed  going ASAP =>  Jon if you could insert (on behalf of the 
>>> drafting team) the current "take on these issues" based on pre, peri and 
>>> post Cartagena meetings that would be great and will enable the list to 
>>> have something to get their teeth into... I have  also set  up a Wiki space 
>>> for edits and comments to be collected as an adjunct  to list activity  
>>> <https://community.icann.org/display/atlarge/Recommendation+6+Cross+Community+Work+Group+Cartagena+Board+Resolution+response+drafting+space>
>>>  ; Then we need to convene a meeting of the CWG  on 7th January  with the 
>>> intention of finalizing response text and transmitting the agreed  text to 
>>> the Board at the conclusion of that meeting  on that day no later than 2355 
>>> UTC.  Looking at times previously  popular for CWG Meetings  I would 
>>> suggest we look to a 90=> 120 min call  starting  between 1700 and 2000 UTC 
>>>  on 7th January  (the earlier  start would perhaps be better but we could 
>>> doodle I suppose)
>>> 
>>> 
>>> <Proposed message to list => Send to list after insertion of text by Jon 
>>> and drafting team plus additional edits/sign off after list input at 
>>> meeting on or before 7th January
>>> **************************************************************************************
>>> 
>>>  {Insert a preamble  / intro and state that a teleconference for final 
>>> drafting  on text of response will be held <insert date and time as UTC > 
>>> and note that all comments edits  questions  put to the list and the wiki 
>>> page will be considered at that time 
>>> <https://community.icann.org/display/atlarge/Recommendation+6+Cross+Community+Work+Group+Cartagena+Board+Resolution+response+drafting+space>
>>>  } 
>>> 
>>> The Co-Chairs of the CWG asked staff for further clarification to assist in 
>>> our understand of the Board resolution.  This resulted (amongst other 
>>> things) in the following reply from Kurt => "...after the second meeting 
>>> there were three issues and the working group position in these three 
>>> issues were roughly: (1) the Board role (that in cases of an objection 
>>> being upheld by the review panel, (I.e., rejecting the TLD application), 
>>> the Board must sustain the objection by a majority vote). (2) Amending the 
>>> discrimination standard: changing "incitement to" or promotion of, to 
>>> "incitement to and instigation of"; and adding a number of terms that 
>>> qualified as discrimination;  (3) that ALAC and GAC have standing to make 
>>> Limited Public Interest Objections and should not have to pay the dispute 
>>> resolution fee."
>>>  
>>> Therefore the Board is seeking by 7 January 2011 a proposal from the CWG 
>>> for the Board’s consideration, with regard to the three specific issues 
>>> discussed in the Cartagena resolution.  In preparing the proposal, it would 
>>> be helpful if the CWG would suggest specific revisions to the Proposed 
>>> Final Guidebook to address the CWG’s concerns with regard to each of these 
>>> issues, instead of making general statements that could be interpreted by 
>>> Staff/Board differently than the CWG interprets them.     
>>> 
>>> It would also be useful to note the level of support for each of the 
>>> revisions, and also any background / rationale we have  for each so that 
>>> the Board may better understand our perspective(s) 
>>> 
>>> With regard to the three specific issues described in the resolution, the 
>>> Board intended that staff members not to contribute directly to this 
>>> writing, however recognizing the extraordinary short time frame we have, 
>>> staff as they clarified for us the intent /meaning/requests to us in the 
>>> resolution, have categorized/organized the issues through a list of 
>>> questions for our consideration in drafting a summary of the Working Group 
>>> requests on each of the issues;  these are listed below and  some initial 
>>> text has been inserted  for us to edit and develop our response from.
>>>  
>>> With regard to the first issue (the roles of the Board, GAC, and ALAC in 
>>> the objection process), we need to provide clarification regarding the 
>>> circumstances under which the CWG suggests that the Board would vote 
>>> regarding an application that is subject to a Rec6 Objection:-
>>> ·      clarify the circumstances under which the Board would vote with 
>>> regard to an Rec6 objection and/or with gTLD applications generally,  <Jon 
>>> Insert DRAFT Text>
>> 
>> 
>> Based on the written responses to the pre-Cartagena questions from the ICANN 
>> staff, as well as the various discussions during the Cartagena meeting, the 
>> CWG has recommended that the Board would have to specifically approve any 
>> recommendations from third party experts to reject a TLD application based 
>> on a Recommendation 6 objection.  The CWG has not suggested, however, that 
>> the Board be required to take a vote on specific Recommendation 6 objections 
>> where the third party experts reject such an objection.  Nor did the CWG 
>> suggest that the Board be required to approve every new gTLD string.    
>> 
>> 
>>> 
>>> and  
>>> 
>>> ·      if there is consensus on it, clarify the intended role of the expert 
>>> panel (i.e., dispute resolution provider, mediator, advisor or other).   
>>> <Jon Insert DRAFT Text>
>> 
>> A consensus of the CWG recommended that the ICANN Board may "contract 
>> appropriate expert resources capable of providing objective advice."  The 
>> CWG did not recommend that the Board should be a trier of fact or should 
>> hear in the first instance every Rec6 objection with a requirement that it 
>> make a determination on the merits in every case. 
>> 
>> The CWG did not reach consensus over the actual form or weight of the expert 
>> advice (e.g. whether the expert panel should be a dispute resolution 
>> provider, mediator or advisor).  Some members of the CWG take a broader 
>> definition of dispute resolution panel than others.  Some members think that 
>> the experts should not hear from the objector and the applicant at all -- 
>> whether in a trial setting or written argumentation -- others disagree and 
>> support an adversarial process.  There was Strong Support, but not 
>> consensus, that the experts should be able to look at the context of the 
>> application or applicant in evaluating a Recommendation 6 objection -- 
>> others disagree and believe that the experts should conduct their analysis 
>> on the basis of only the string.   
>> 
>> While the CWG did not reach consensus on these issues, it did explicitly 
>> remove all reference to "dispute resolution" in its recommendations, and 
>> made no requirement that the experts engage in an adversarial process 
>> between applicant and objector.  Furthermore, the CWG did achieve Strong 
>> Support (though not full consensus) for not calling the evaluation process 
>> one of "dispute resolution," and requiring that the experts' skills be in 
>> legal interpretation of instruments of international law.
>> 
>> 
>>> 
>>>  
>>> With regard to the incitement to discrimination criterion, we need to 
>>> confirm the specific language revisions the CWG requests with regard to the 
>>> “incitement to or promotion of” portion of the criterion.   After the 
>>> discussion in Cartagena, does the CWG continue to request that the standard 
>>> be “incitement and instigation” or is some other language preferable?   In 
>>> addition, the CWG could also state whether it still believes that the 
>>> standard should be expanded to include the list of additional 
>>> discrimination grounds that were referenced in the CWG Report:-
>>> ·     CWG to confirm the specific language requested with regard to the 
>>> “incitement to or promotion of” term in the original standard.  After the 
>>> discussion in Cartagena, does the CWG continue to request that the term be 
>>> “incitement and instigation” or is some other language preferable?  <Jon 
>>> Insert DRAFT Text>
>> 
>> In its report dated 21 September, 2010, the CWG recommended that "incitement 
>> and instigation" be used in the criteria for discrimination.  In ICANN's 
>> explanatory memorandum on this issue dated 12 November 2010, it provided a 
>> rationale of why "incitement to or promotion of" is a more appropriate 
>> standard.  Based on the ICANN response, the discussions in Cartagena during 
>> which several CWG members stated that they no longer agree with the 
>> recommendation, and some admitted confusion over the legal impact of the 
>> word choice, the CWG may no longer have a consensus on this issue [NOTE -- 
>> confirm -- do we want to do a straw poll?  Do we want to try to recommend 
>> substitute language?].  With that said, many members of the CWG still argue 
>> that a higher standard than "incitement to or promotion of" would be 
>> appropriate.   
>> 
>>> 
>>> ·      the CWG needs to reiterate consensus on the standard including an 
>>> expanded list of additional discrimination grounds that were referenced in 
>>> the CWG Report.  <Jon Insert DRAFT Text>
>> 
>> Two consensus recommendations of the CWG were to extend the list of 
>> potential discriminations also to include discrimination based on age, 
>> disability, actual or perceived sexual orientation or gender identity, or 
>> political or other opinion.  The CWG also suggested by a full consensus that 
>> such discriminations must rise to the level of violating generally accepted 
>> legal norms recognized under "principles of international law."  As such, 
>> any additional discriminations listed in the second prong still must be 
>> found to be in violation of principles of international law.  
>> 
>> We do not believe that recognizing additional discriminations would 
>> significantly broaden the types of objections brought.  The CWG does not 
>> believe that any additional research needs to be conducted on whether such 
>> additional classes are protected under international law today.  It has been 
>> brought to the CWG's attention that these additional discriminations have 
>> some protection under international law.  If they are recognized today, then 
>> the Board and the experts would rely on them.  If they are not at that level 
>> yet, then they won't.  Importantly, such additional discriminations might be 
>> recognized at some future date and the process should be fluid enough to 
>> take them into account at such time.  The suggestion in Cartagena of a 
>> catch-all discrimination criteria -- such as "any other discriminations that 
>> are generally recognized under international law" -- seems to be acceptable 
>> to many of the CWG members (confirm).
>> 
>> 
>>> 
>>> 
>>> With regard to the fees for GAC and ALAC-instigated objections, we need to 
>>> identify what (if any) fees should be charged and where the funds should 
>>> come from, and any other restrictions or additional steps that the CWG 
>>> suggests for dealing with GAC and ALAC-instigated objection:-
>>> ·      what fees should be paid by ALAC and GAC (if filing and dispute 
>>> resolution fees are waived, are the number of free objections limited)
>>> 
>>> ·       by what process is an ALAC and GAC objection formed and approved? 
>>> There was considerable discussion of this in the meeting, and at this stage 
>>> subject to ratification as a formal process of the ALAC it is envisaged 
>>> that ALAC would take recommendations of any of it's At-Large organizations 
>>> ALSes (who may either hold a Community based objection view themselves  or  
>>> be passing such a concern on from the local Internet Community that they 
>>> are engages with or are representative for)  up through the RALOs and then 
>>> for ALAC consideration an ALAC vote for formally  raise such an objection 
>>> would require a super-majority vote to pass; and that the GAC would develop 
>>> a consensus based process.
>>> 
>>> <CLO added text>  Also note here that in addition to the above use of the 
>>> "Community Objection" process by the ALA and GAC; *If* the Independent 
>>> Objector (IO) function is maintained in the processing of new gTLD 
>>> Applications, then  an alternate pathway for  AC objections  to be 
>>> considered would be for the IO to take up such formally prepared objection 
>>> notices from the ALAC and/or GAC and subject to the same standards of  he k 
>>> and balance criteria  assessment etc., as any other IO instigated objection 
>>> process these as if self instigated.
>>> <Jon>
>>> From our clarification document:
>> 
>>> A full consensus of the CWG recommended that fees be lowered or removed for 
>>> objections from the GAC or ALAC.  It is outside the CWG’s scope to comment 
>>> on the process for the GAC or ALAC to lodge objections.  The CWG assumes 
>>> that any Rec 6 objections put forth by the GAC or ALAC will be approved 
>>> according its own internal processes.  
>>> 
>>> List here any other issues?
>>> 
>>> 
>>> 
>>> **************************************************************************************
>>> 
>>> 
>>> Cheryl Langdon-Orr
>>> (CLO)
>>> 
>>> 
>>> 
>>> On 31 December 2010 09:49, Gomes, Chuck <cgomes@xxxxxxxxxxxx> wrote:
>>> Here is some clarification that Cheryl, Heather & I received from Margie 
>>> that may be useful with regard to the part of the Board motion relating the 
>>> Rec6 CWG.
>>> 
>>>  
>>> Chuck
>>> 
>>>  
>>>  
>>> From: Margie Milam [mailto:Margie.Milam@xxxxxxxxx] 
>>> Sent: Friday, December 24, 2010 5:36 PM
>>> To: Gomes, Chuck
>>> Cc: langdonorr@xxxxxxxxx; heather.dryden@xxxxxxxx
>>> 
>>> 
>>> Subject: RE: Cartagena Update- Rec6
>>> 
>>>  
>>> Hi Chuck-
>>> 
>>>  
>>> I received additional information today regarding the Board Resolution, and 
>>> would like supplement the information I provided in my earlier email.
>>> 
>>> We would like to provide some more detail – and reiterate that the Board is 
>>> seeking a proposal directly from the CWG with regard to the three specific 
>>> issues described in the resolution. Since the Board intended that staff 
>>> members not to contribute directly to this writing, we thought it might be 
>>> helpful to categorize or organize the issues through a list of questions 
>>> for your consideration in drafting a summary of the Working Group requests 
>>> on each of the issues. The answers to these, we think, are the consensus 
>>> positions on the three issues developed by the Working Group attendees at 
>>> the two meetings in Cartagena.   
>>> 
>>> Once there is written clarity on the Working Group position on the three 
>>> issues, then the Board can consider whether the proposals can be added 
>>> those Rec6 proposals already in the Guidebook. We believe the Working Group 
>>> and Board went a long way to providing that clarity in the Cartagena 
>>> meetings and this writing restates the conclusions arrived  there. 
>>> 
>>> With regard to the first issue (the role of the Board in the objection 
>>> process), the writing should:
>>> 
>>> ·      clarify the circumstances under which the Board would vote with 
>>> regard to an Rec6 objection or with gTLD applications generally, and  
>>> 
>>> ·      if there is consensus on it, clarify the intended role of the expert 
>>> panel (i.e., dispute resolution provider, mediator, advisor or other).  
>>> 
>>> With regard to the incitement to discrimination criterion:  
>>> 
>>> ·      the CWG should confirm the specific language requested with regard 
>>> to the “incitement to or promotion of” term in the original standard.  
>>> After the discussion in Cartagena, does the CWG continue to request that 
>>> the term be “incitement and instigation” or is some other language 
>>> preferable?  
>>> 
>>> ·      the CWG should reiterate consensus on the standard including an 
>>> expanded list of additional discrimination grounds that were referenced in 
>>> the CWG Report.
>>> 
>>> With regard to the fees for GAC and ALAC-instigated objections, the CWG 
>>> should identify:
>>> 
>>> ·      what fees should be paid by ALAC and GAC (if filing and dispute 
>>> resolution fees are waived, are the number of free objections limited)
>>> 
>>> ·       by what process is an ALAC and GAC objection formed and approved? 
>>> There was considerable discussion of this in the meeting: that ALAC would 
>>> take recommendations of smaller At-Large organizations up through the RALOs 
>>> and then for ALAC consideration; and that the GAC would develop a consensus 
>>> based process.
>>> 
>>> In preparing the proposal, it would be helpful if the CWG would suggest 
>>> specific revisions to the Proposed Final Guidebook to address the CWG’s 
>>> concerns with regard to each of these issues that statements so that 
>>> positions are not misinterpreted. These are just suggestions based on our 
>>> interpretation of the resolution and the discussions from the Cartagena 
>>> meeting. 
>>> 
>>> I hope that this clarification is helpful.  We will be happy to provide 
>>> additional information at your request.
>>> 
>>> Thanks & Happy Holidays!
>>> 
>>> Margie
>>> 
>>>  
>>>  
>>> From: Margie Milam 
>>> Sent: Thursday, December 23, 2010 4:09 PM
>>> To: 'cgomes@xxxxxxxxxxxx'
>>> Cc: 'heather.dryden@xxxxxxxx'; 'langdonorr@xxxxxxxxx'
>>> Subject: FW: Cartagena Update- Rec6
>>> 
>>>  
>>>  
>>> Hi Chuck-
>>> 
>>>  
>>> After inquiring internally, here’s what I understand regarding the Board 
>>> resolution.
>>> 
>>>  
>>> The Board is seeking by 7 January 2011 a proposal from the CWG for the 
>>> Board’s consideration with regard to the three specific issues discussed in 
>>> the Cartagena resolution.  In preparing the proposal, it would be helpful 
>>> if the CWG would suggest specific revisions to the Proposed Final Guidebook 
>>> to address the CWG’s concerns with regard to each of these issues, instead 
>>> of making general statements that could be interpreted by Staff/Board 
>>> differently than the CWG interprets them.     It would also be useful to 
>>> note the level of support for each of the revisions.
>>> 
>>>  
>>> With regard to the first issue (the roles of the Board, GAC, and ALAC in 
>>> the objection process), the CWG could provide clarification regarding the 
>>> circumstances under which the CWG suggests that the Board would vote to 
>>> approve an application that is subject to a Rec6 Objection.   It also would 
>>> be helpful if the CWG clarifies its suggested intended role of the expert 
>>> panel (i.e, primary adjudicator, mediator, advisor or other).  
>>> 
>>>  
>>> With regard to the incitement to discrimination criterion, the CWG could 
>>> confirm the specific language revisions the CWG requests with regard to the 
>>> “incitement to or promotion of” portion of the criterion.   After the 
>>> discussion in Cartagena, does the CWG continue to request that the standard 
>>> be “incitement and instigation” or is some other language preferable?   In 
>>> addition, the CWG could also state whether it still believes that the 
>>> standard should be expanded to include the list of additional 
>>> discrimination grounds that were referenced in the CWG Report.
>>> 
>>>  
>>> With regard to the fees for GAC and ALAC-instigated objections, the CWG 
>>> could identify what fees should be charged and where the funds should come 
>>> from, and any other restrictions or additional steps that the CWG suggests 
>>> for dealing with GAC and ALAC-instigated objections.
>>> 
>>>  
>>> These are just suggestions based on our interpretation of the resolution 
>>> and the discussions from the Cartagena meeting.   Please let  me know if 
>>> you need any additional information in this regard. 
>>> 
>>>  
>>>  
>>> Best regards, and happy holidays!
>>> 
>>>  
>>> Margie
>>> 
>>>  
>>>  
>>> From: Gomes, Chuck [mailto:cgomes@xxxxxxxxxxxx] 
>>> Sent: Wednesday, December 22, 2010 2:06 PM
>>> To: Margie Milam; Cheryl Langdon-Orr; Heather.Dryden@xxxxxxxx
>>> Subject: RE: Cartagena Update- Rec6
>>> 
>>>  
>>> I have been trying to determine this Margie.  The Board resolution is 
>>> awfully vague.
>>> 
>>>  
>>> Chuck
>>> 
>>>  
>>> From: Margie Milam [mailto:Margie.Milam@xxxxxxxxx] 
>>> Sent: Tuesday, December 21, 2010 12:39 PM
>>> To: Gomes, Chuck; Cheryl Langdon-Orr; Heather.Dryden@xxxxxxxx
>>> Subject: Cartagena Update- Rec6
>>> 
>>>  
>>> Hi Chuck, Cheryl & Heather,
>>> 
>>>  
>>> I hope your travels back home were uneventful.
>>> 
>>>  
>>> I wanted to follow up with you regarding the developments related to the 
>>> Rec6 issue in Cartagena in order to determine whether the CWG will be 
>>> conducting any further work on this issue.
>>> 
>>>  
>>> ·        The ICANN Board resolution on Rec6:
>>> 
>>> Whereas, the working group formed to address implementation of the 
>>> GNSO-recommended policy concerning morality and public order objections 
>>> made recommendations (the Recommendation 6 Community Working Group), 
>>> several of which were incorporated into the guidebook, and the working 
>>> group has clarified the remaining recommendations in a series of 
>>> consultations with ICANN staff and Board members. Discussions will continue 
>>> on (1) the roles of the Board, GAC, and ALAC in the objection process, (2) 
>>> the incitement to discrimination criterion, and (3) fees for GAC and 
>>> ALAC-instigated objections. ICANN will take into account public comment 
>>> including the advice of the GAC, and looks forward to receiving further 
>>> input from the working group in an attempt to close this issue.
>>> 
>>> … Resolved (2010.12.10.21), the Board:
>>> 
>>> “Invites the Recommendation 6 Community Working Group to provide final 
>>> written proposals on the issues identified above by 7 January 2011, and 
>>> directs staff to provide briefing materials to enable the Board to make a 
>>> decision in relation to the working group's recommendations.”
>>> 
>>> ·        The GNSO Council Resolution on Rec6:
>>> 
>>> Proposed motion on recommendations made recently by the cross-community 
>>> working group (CWG) regarding implementation of the Council's 
>>> Recommendation 6 (which formed the basis for the "morality and public 
>>> order" section of the draft AGB.)
>>> 
>>> WHEREAS, on 8 September 2010 the GNSO Council endorsed GNSO participation 
>>> in a joint working group with other interested Supporting Organizations 
>>> (SO’s) and Advisory Committee (AC’s) to provide guidance to the ICANN new 
>>> gTLD Implementation Team and the ICANN Board in relation to the 
>>> implementation of the Council's Recommendation 6 regarding strings that 
>>> contravene generally-accepted legal norms relating to morality and public 
>>> order that are recognized under international principles of law;
>>> 
>>> WHEREAS, the Recommendation 6 cross-community working group (CWG) was 
>>> established in accordance with the Terms of Reference also approved by the 
>>> GNSO Council on 8 September 2010;
>>> 
>>> AND WHEREAS, the CWG has since delivered a set of recommendations regarding 
>>> implementation of the GNSO Council's Recommendation 6 for new gTLDs to the  
>>>  community;
>>> 
>>> RESOLVED, the Council thanks the CWG and its participants, from the GNSO 
>>> and other SOs and the ACs, for their hard work; and acknowledges that the 
>>> CWG recommendations do not constitute Consensus Policy or GNSO policy 
>>> development otherwise within the purview of the GNSO;
>>> 
>>> RESOLVED FURTHER, the Council recommends that each Stakeholder Group  and 
>>> constituency provide feedback as soon as possible to the Council,  on the 
>>> CWG recommendations.
>>> 
>>> In light of these two resolutions,  do you expect any additional work from 
>>> the CWG on this issue, or do you expect that each SO/AC (or in the case of 
>>> the GNSO Council, each stakeholder group/constituency) would follow up to 
>>> provide any clarification of their positions with regard to this  issue?
>>> 
>>> With the holiday’s quickly approaching and ICANN offices closed next week,  
>>> I just wanted to find out whether you envisage any additional work to be 
>>> conducted by the CWG prior to the 7 January deadline requested by the Board.
>>> 
>>> Thanks, and happy holidays to each of you!
>>> 
>>> Best Regards,
>>> 
>>> Margie
>>> 
>>> __________
>>> 
>>> Margie Milam
>>> 
>>> Senior Policy Counselor
>>> 
>>> ICANN
>>> 
>>> __________
>>> 
>>>  
>>>  
>>>  
>>>  
>>>  
>>> 
>> 
>> 
>> 
> 
> 
> 
> 
> IP JUSTICE
> Robin Gross, Executive Director
> 1192 Haight Street, San Francisco, CA  94117  USA
> p: +1-415-553-6261    f: +1-415-462-6451
> w: http://www.ipjustice.org     e: robin@xxxxxxxxxxxxx
> 
> 
>