Re: [soac-mapo] Exchange of letters between GAC and ICANN re: morality issues

[Robin Gross <robin@xxxxxxxxxxxxx>]

At least now I know not to waste my time in the future participating in these 
working groups as their recommendations hold no weight with ICANN.

Thanks for the clarification.
Robin


On Nov 29, 2010, at 8:29 AM, Margie Milam wrote:

> 
> Hi-
> 
> Perhaps I can provide an explanation on this issue from the Staff perspective 
> that I shared with the drafting team last week.
> 
> The Bylaws do not include procedures for dealing with recommendations from a 
> cross-community group like the Rec6 CWG.  Output from a CWG should follow the 
> framework of the Bylaws as appropriate with respect to each participating 
> SO/AC.  In the case of the recommendations arising from the Rec6 CWG Report, 
> please note that the Report states on Page 23:
> 
>        "4.     Recommended Next Steps.
> Given the short duration of the Rec6 CWG's existence, the participating 
> supporting organizations and advisory organizations have not been provided 
> with the opportunity to review and comment on this Report.   The Rec6 CWG 
> recommends that each participating organization should follow its procedures 
> as described in the ICANN Bylaws as may be necessary or appropriate to 
> comment on and communicate to the ICANN Board the opinion of its members with 
> regard to the recommendations contained in this Report...."
> 
> Thus, the expectation was that after the Rec6 Report was published, each 
> supporting organization would review and comment on the Report.  Although the 
> ALAC has done so (see: 
> http://www.atlarge.icann.org/announcements/announcement-01nov10-en.htm ), the 
> GNSO Council or the GAC have not endorsed the Report.   As you may recall, 
> with regard to the recommendations from the Special Trademark Issues Working 
> Group,  the GNSO Council formerly endorsed the recommendations, and as a 
> result, the recommendations were given due consideration in the drafting of 
> the Applicant Guidebook.  Without further action by the GAC or the GNSO 
> Council with regard to the Rec6 Report, it is difficult to conclude that the 
> Rec6 CWG recommendations have broad support within these SO/ACs.
> 
> Best regards,
> 
> Margie
> 
> ___________
> 
> Margie Milam
> Senior Policy Counselor
> ICANN
> ____________
> 
> 
> 
> 
> 
> 
> -----Original Message-----
> From: owner-soac-mapo@xxxxxxxxx [mailto:owner-soac-mapo@xxxxxxxxx] On Behalf 
> Of Gomes, Chuck
> Sent: Monday, November 29, 2010 8:39 AM
> To: Avri Doria; soac-mapo
> Subject: RE: [soac-mapo] Exchange of letters between GAC and ICANN re: 
> morality issues
> 
> 
> Please see my response below Avri.
> 
> Chuck
> 
>> -----Original Message-----
>> From: owner-soac-mapo@xxxxxxxxx [mailto:owner-soac-mapo@xxxxxxxxx] On
>> Behalf Of Avri Doria
>> Sent: Monday, November 29, 2010 8:58 AM
>> To: soac-mapo
>> Subject: Re: [soac-mapo] Exchange of letters between GAC and ICANN re:
>> morality issues
>> 
>> 
>> Dear Chuck,
>> 
>> Can you explain why, if a WG charter is drawn up according to the
>> bylaws and Council procedures, it is invalidated because someone else
>> charters it as well?
> [Gomes, Chuck] I wasn't suggesting that anything be invalidated.  The 
> question in my mind is not so much whether a group is properly chartered but 
> whether that group should develop policy and, if so, under what procedures 
> should that policy be developed.  I think those questions involve some 
> complexities that I believe need to be carefully considered and dealt with 
> regarding policy work.  In my opinion, that does not in any way detract from 
> the Rec6 CWG because it was not policy development.
> 
>> 
>> Note: I realize this discussion may be slightly off topic, but it was
>> brought up in what I believe is an effort to explain the diminished
>> effect of the work of this WG.  If the GNSO Council wishes to say that
>> they did not charter this group properly, or that in reviewing its work
>> it did not meet the proper processes for GNSO policy statements, that
>> is fine and a reason for them to turn away from its results.  But to
>> declare that it is not policy because it is multiply chartered is a
>> problem in my view and puts the GNSO council back into the legislative
>> role that was supposed to be a thing of the past.
> [Gomes, Chuck] I didn't say that " it is not policy because it is multiply 
> chartered"; what I tried to say was that the Rec6 CWG was not a policy 
> development group and that we don't have procedures for community developed 
> policy across SO's and AC's.  Hence the topic in the joint meetings in 
> Cartagena.
> 
>> 
>> a.
>> 
>> On 29 Nov 2010, at 08:34, Gomes, Chuck wrote:
>> 
>>> Whether or not a CWG could ever develop policy is certainly an issue
>> that should be considered as we look to more clearly define the role of
>> CWGs. But personally, if we ever consider that (and I am not advocating
>> that), I think there would need to be a CWG PDP in the Bylaws before
>> that could happen.
>>> 
>>> Chuck
>>> 
>>>> -----Original Message-----
>>>> From: owner-soac-mapo@xxxxxxxxx [mailto:owner-soac-mapo@xxxxxxxxx]
>> On
>>>> Behalf Of Avri Doria
>>>> Sent: Monday, November 29, 2010 8:23 AM
>>>> To: soac-mapo
>>>> Subject: Re: [soac-mapo] Exchange of letters between GAC and ICANN
>> re:
>>>> morality issues
>>>> 
>>>> 
>>>> Hi,
>>>> 
>>>> I would like to add one consideration to this discussion.  To the
>>>> extent that a CWG has a duly approved charter by the GNSO Council
>> and
>>>> the council accepts the conclusions of the CWG in a well formed
>> motion,
>>>> its recommendations should be considered policy recommendations,
>> even
>>>> if not specifically contractual conditions policy.
>>>> 
>>>> Each of the groups chartering a CWG goes through its own processes
>> and
>>>> to the extent that the GNSO uses its policy process requirements to
>>>> charter, the fact that the CWG is also chartered by others, should
>> not
>>>> detract from its ability to make valid policy recommendations.
>>>> Likewise the extent o which ALAC uses it process should not detract
>>>> from its ability to call it an ALAC 'advice' or where the GAC to
>>>> develop processes for chartering working groups and approving their
>>>> outputs, from being GAC advice.   Additionally, The GNSO
>> reorganization
>>>> mandates the use of Working Groups.  While this methods of creating
>> a
>>>> CWG was not originally envisioned, it seems to me that its outputs
>>>> should be as valid as the various methods used to charter it.
>>>> 
>>>> In the case of MAPO, there might be issues with the chartering and
>> post
>>>> CSWG approval process, but as long as each of the organizations
>> using
>>>> the CWG method follow their own processes, there should not be a
>> reason
>>>> for them to walk away from recommendations made in a CWG.
>>>> 
>>>> 
>>>> a.
>>>> 
>>>> 
>>>> On 29 Nov 2010, at 07:05, Bertrand de La Chapelle wrote:
>>>> 
>>>>> Dear all,
>>>>> 
>>>>> The Cross-community Working Group format is relatively new and does
>>>> not have a formal recognition yet in the Bylaws. The discussion on
>> this
>>>> thread is a very valid one, but we need to distinguish between 1)
>> the
>>>> specific implementation for Rec 6 and how we deal with the results
>> of
>>>> the group, and 2) the more general issue of the nature and fuction
>> of
>>>> such Cross-community groups.
>>>>> 
>>>>> 1) On the Rec6 group itself, the discussion below reminds us that :
>>>>> 
>>>>> - as Jon says, the CWG should not be viewed as a formal policy-
>> making
>>>> group; it has no authority other than the potential quality of the
>>>> outcome and its capacity to help untangle a very difficult issue
>>>>> - as Milton says, the GAC has indeed encouraged and endorsed the
>>>> creation of the Group (and asked for it); but as Frank mentions, GAC
>>>> members have clearly participated individually, in a goodwill
>> effort,
>>>> and not as representatives of the whole GAC (like all other
>>>> participants, none of whom engaged their respective constituencies a
>>>> priori)
>>>>> - no consituency, SO or AC should be supposed to have endorsed the
>>>> outcome of the group unless they have done so explicitly (as ALAC
>> did);
>>>> this is valid for the GAC as well as the gNSO; however it is true
>> that
>>>> members of said groups should not voluntary abstain from
>> participating
>>>> for the sole benefit of being able afterwards to object to whatever
>>>> outcome is produced (this would not be a "good faith" participation
>> in
>>>> a multi-stakeholder process); this requires of course that
>> sufficient
>>>> information is circulated on the progress of discussions
>>>>> - if the purpose and procedures of such informal groups, as well as
>>>> the status of their outcomes are not clear enough, some (legitimate)
>>>> fears will arise regarding the existing policy-making processes (cf.
>>>> Jon, Stéphane and Avri)
>>>>> 
>>>>> The Rec6 group was formed very late in the process, to try to iron
>>>> out a solution to probably the most political problem pending, one
>> that
>>>> (in)directly involves national sovereignty and the existence (or
>> not)
>>>> of general principles of international law applicable to the DNS.
>>>>> 
>>>>> In view of this extremely loaded question and given the extremely
>>>> short time span, the group has clearly demonstrated the benefit of a
>>>> full cross-community interaction : I was personally very impressed
>> by
>>>> the quality of the exchanges and the outcomes. Cathagena should be
>> an
>>>> opportunity for the community as a whole to see what can be done
>> with
>>>> the results.
>>>>> 
>>>>> 2) As for the more general discussion of the nature and use of such
>>>> CC groups, I believe this format should in the future be used much
>>>> earlier in processes, almost as soon as a new topic arises, to
>> engage
>>>> all SOs and ACs in the early framing of the issue.  It has proven
>>>> useful even at the late stage of a very sensitive topic, and its use
>>>> early in the process will no doubt foster a much better involvement
>> of
>>>> all actors later in the policy discussion, including in the existing
>>>> PDPs, if it is used appropriately.
>>>>> 
>>>>> Using this interaction format also at various stages of progress in
>>>> policy drafting would certainly improve what Milton labels the
>>>> "disfunctionality of the current arrangements for multi-stakeholder
>>>> cooperation within ICANN" and facilitate the breaking up of silos.
>>>>> 
>>>>> A formal introduction of this new interaction format in the ICANN
>>>> toolset can be done without threatening the existing PDPs and this
>>>> discussion should continue on a separate track from the specific
>> case
>>>> of the Rec6 goup.
>>>>> 
>>>>> My two cents.
>>>>> 
>>>>> Best
>>>>> 
>>>>> Bertrand
>>>>> 
>>>>> 
>>>>> 
>>>>> 
>>>>> 
>>>>> On Mon, Nov 29, 2010 at 5:55 AM, Jon Nevett <jon@xxxxxxxxxx> wrote:
>>>>> I support the model of cross-community discussion groups, such as
>>>> this CWG.  In certain circumstances, they are a very good idea.  I
>>>> think that it worked very well in this case.
>>>>> 
>>>>> Unfortunately, some folks have been characterizing this group as
>>>> something that it is not.  It is not a policy-making group and our
>>>> report was not a pronouncement with some sort of imprimatur of the
>> will
>>>> of ICANN community.  It should be viewed for what it is/was -- a
>> group
>>>> of interested volunteers getting together to discuss potential
>>>> solutions to an issue based on the request of some of the leaders of
>>>> various ICANN supporting organizations/advisory committees.  We were
>>>> successful in offering up some good suggestions and proposals, but
>> the
>>>> work has never been ratified by the policy-making body and should
>> not
>>>> be viewed as bottom-up policy-making.  Therefore, if the ICANN Board
>>>> disagrees with a recommendation of this group with a clear
>> rationale, I
>>>> don't view it as an affront to the bottom-up policy making model as
>>>> others have been articulating.
>>>>> 
>>>>> My concern is that if folks oversell the nature of the group and
>> try
>>>> to deem this kind of a discussion group as one with a policy-making
>>>> function, then the those with the actual policy-making
>> responsibility
>>>> under ICANN's Bylaws might choose not to support groups like the CWG
>>>> for fear that the work will be viewed as policy-making without the
>> due
>>>> process protections built into the Bylaws.  In order to foster
>> future
>>>> discussion groups like the CWG, I suggest that we not suggest that
>> they
>>>> are something that they are not.
>>>>> 
>>>>> Thanks.
>>>>> 
>>>>> Jon
>>>>> 
>>>>> 
>>>>> On Nov 28, 2010, at 5:31 PM, Milton L Mueller wrote:
>>>>> 
>>>>>> Thanks, Frank.
>>>>>> I do understand the point you are making. Problem is, it's
>>>> incorrect. The CWG was officially co-convened by the Chair of GAC
>> along
>>>> with the chairs of ALAC and GNSO, and there was active
>> representation
>>>> of several GAC members in it. Moreover, the charter of this group
>> was
>>>> approved by the GAC chair and passed by the full GAC for its
>> approval.
>>>> Therefore while you may be right to say that it is still unclear
>>>> whether GAC as a body would fully endorse the results of the report
>> and
>>>> its recommendations, it is plainly not correct to say that "the GAC"
>>>> did not participate in it. It did.
>>>>>> 
>>>>>> Beyond that, on a more human level, I wonder whether you have
>>>> thought through the longer term implications of what you seem to be
>>>> saying/doing. Many people, not just myself, would take this kind of
>>>> distancing as further evidence of the dysfunctionality of current
>>>> arrangements for multistakeholder cooperation in ICANN. As long as
>>>> representatives of national governments hold themselves apart from
>> the
>>>> process and (through strategic behavior) seek a special, privileged
>>>> influence over policy outcomes, then there will be major challenges
>> to
>>>> the legitimacy of both the GAC and the policy outputs that come out
>> of
>>>> the board on any issue. That lack of good faith process can only
>> hold
>>>> back the internet.
>>>>>> 
>>>>>> Certainly, if governments want to make these decisions on their
>> own,
>>>> on their own terms, they can do it. But then they'd have to be big
>> boys
>>>> and girls and negotiate and pass a binding international treaty. And
>>>> that would require you to follow constitutional constraints, due
>>>> process requirements and ratification processes of the member
>> states.
>>>> If you're not willing to do that, then perhaps you need to take
>> these
>>>> processes a bit more seriously. You can't have it both ways.
>>>>>> 
>>>>>> Cheers,
>>>>>> --MM
>>>>>> 
>>>>>> (p.s., if you do want to go the treaty route, I look forward to
>>>> discussing the First Amendment implications with the U.S.
>>>> representatives.)
>>>>>> 
>>>>>> 
>>>>>> From: Frank March [mailto:Frank.March@xxxxxxxxxxx]
>>>>>> Sent: Sunday, November 28, 2010 3:51 PM
>>>>>> To: Milton L Mueller; Antony Van Couvering; soac-mapo
>>>>>> Cc: Heather.Dryden@xxxxxxxx
>>>>>> Subject: RE: [soac-mapo] Exchange of letters between GAC and ICANN
>>>> re: morality issues
>>>>>> 
>>>>>> Without wishing to seem pedantic, the GAC did not participate in
>> the
>>>> Rec6WG. As I was at pains to point out on a number of occasions,
>> some
>>>> GAC members including myself were part of the group but not able to
>>>> speak on behalf of the GAC.  I would like to think that the overall
>>>> direction of the report would have strong GAC support but this has
>> not
>>>> been tested.
>>>>>> 
>>>>>> Because of the timing issues of getting the report ready in time
>> for
>>>> the Council retreat, it was never proposed that the report be taken
>>>> formally to the GAC for discussion or endorsement.  My view is that
>> it
>>>> it is the Board's response to the report and the outcomes therefrom
>>>> that would engage the GAC, not the report itself.
>>>>>> 
>>>>>> Given that the issues raised are still 'live' and the work is
>>>> carrying on it would certainly be possible to have a discussion in
>>>> Cartagena.  I have a feeling however that endorsement of the report
>>>> from the GAC would be difficult to achieve.  It might well be
>>>> considered by some members not to be an appropriate action for the
>> GAC
>>>> to take.
>>>>>> 
>>>>>> Best wishes, Frank
>>>>>> 
>>>>>> ----
>>>>>> Frank March
>>>>>> Senior Specialist Advisor
>>>>>> Communications and IT Policy
>>>>>> Ministry of Economic Development
>>>>>> 33 Bowen Street, PO Box 1473
>>>>>> WELLINGTON, New Zealand
>>>>>> Mobile: (+64) 021 494165
>>>>>> 
>>>>>> 
>>>>>> From: owner-soac-mapo@xxxxxxxxx [mailto:owner-soac-mapo@xxxxxxxxx]
>>>> On Behalf Of Milton L Mueller
>>>>>> Sent: Monday, 29 November 2010 4:48 a.m.
>>>>>> To: Antony Van Couvering; soac-mapo
>>>>>> Subject: RE: [soac-mapo] Exchange of letters between GAC and ICANN
>>>> re: morality issues
>>>>>> 
>>>>>> The disturbing thing about this exchange of letters is that both
>>>> sides seem to treat this working group - which GAC participated in -
>> as
>>>> if it did not contribute "thoughtful proposals" to resolve the
>> stated
>>>> concerns.
>>>>>> 
>>>>> 
>>>>> 
>>>>> 
>>>>> 
>>>>> --
>>>>> ____________________
>>>>> Bertrand de La Chapelle
>>>>> Tel : +33 (0)6 11 88 33 32
>>>>> 
>>>>> "Le plus beau métier des hommes, c'est d'unir les hommes" Antoine
>> de
>>>> Saint Exupéry
>>>>> ("there is no greater mission for humans than uniting humans")
>>>> 
>>> 
>>> 
>> 
> 
> 
> 




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