FW: [gnso-dt-wg] RE: [council] Motions re Domain Tasting

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

Hopefully this will clarify this issue.

Chuck

-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt-wg@xxxxxxxxx] On
Behalf Of Neuman, Jeff
Sent: Tuesday, March 04, 2008 9:12 PM
To: Mike Rodenbaugh; Tim Ruiz; Adrian Kinderis
Cc: Registrars Constituency; owner-council@xxxxxxxxxxxxxx;
gnso-dt-wg@xxxxxxxxx; GNSO Council
Subject: RE: [gnso-dt-wg] RE: [council] Motions re Domain Tasting


Ok.  I think this has gotten a little out of hand, so let me set the
record straight here and I would appreciate this being posted on the
Council list (and Registrars list), since I do not have posting
privileges on those.

Here are the facts regarding the supposed "outlandish position" I have
taken so people can judge for themselves what actually took place.  The
following is from actual e-mails sent (which are public record) on 2/22
and 2/26.  It is also important to understand the context in which my
statements were made.  

A.  On Feb 22nd the following took place:

        a)  There was a debate as to whether a supermajority vote of the
council was needed to establish a consensus policy that was enforceable
against the registries (or registrars for that matter) and to force the
registries implement a policy (assuming that the proper PDP process was
followed).

        b)  In response to that debate, Avri posted the definition of
Consensus Policies from the ICANN Bylaws and used that definition to
make the point that a supermajority of Council members was not needed,
but only a majority was needed for the Board to react.  

        c)  I posted a response to Avri that stated even if that was
true under the ICANN Bylaws, you also needed to look at what is in the
registry agreements to see whether the Board can actually impose any
policies on the registries.  More specifically, I stated:

        
"Yes, the Board can act, but again, that Board decision, in my view (and
in the view of the other registries) would not be binding on the gTLD
Registry Operators because that would not be viewed as "consensus of
Internet stakeholders".  After all, if a majority is not even deemed to
reflect the view of the Council, then how can it represent a Consensus
of Internet stakeholder.

The reason I am using the phrase "consensus of Internet stakeholders" is
because that is the phrase that is used in the gTLD contracts.  See
below which is taken from Section 3.1(b)(iv) of the .com agreement (See
http://www.icann.org/tlds/agreements/verisign/registry-agmt-com-01mar06.
htm) which states:

"Consensus Policies and the procedures by which they are developed shall
be designed to produce, to the extent possible, a consensus of Internet
stakeholders, including the operators of gTLDs.  Consensus Policies
shall relate to one or more of the following: (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 (as defined in Section 3.1(d)(iii) below); (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).  Such categories of issues referred to in the
preceding sentence shall include, without limitation:

Particularly important is the phrase "including the operators of gTLDs".
Now before you try to argue that it is modified by the phrase "to the
extent possible", let me state that the following:

        1.  "To the extent possible" does not mean that if the
registries are on the losing side of the vote it is not "possible" to
achieve gTLD operator support for a proposal on domain tasting.

        2.  The gTLD Registries have indicated on a number of occassions
that we do believe a proposal to eliminate tasting (in TLDs where
tasting has
occurred) can garner the registry operators support.  We are committed
to working with you to achieve that.  We just need to find a solution
that takes into consideration the differences of each of the registries.

B.  Now, comment 1 above was to prevent someone from making the argument
that "Well, the registries voted against the proposal and therefore it
was not 'possible' to get a consensus."  In other words, that language
is in there to take the focus away from voting and to focus stakeholders
on attempting to find compromises that all stakeholders could live with.
Otherwise the impacted parties, whether they be registrars or
registries, can be ignored completely in policy development.

C.  After that was posted, a number of people took that to mean that I
was stating that the registries "had to agree on a policy" before it
became a consensus policy.  I never stated that theory.  That is how
others interpreted my comments. 

D.  Tim Ruiz followed up with a note on 2/25 stating "Jeff and Chuck, is
it either of your opinions that the quote above means that in order for
consensus to exist it must include the consensus agreement of the gTLD
operators? Or Jeff, were you intending to point out that a consensus of
Internet stakeholders was only valid if gTLD operators were included as
stakeholders but not that they necessarily have to agree with the
policy?"

D.  I followed up with a response that stated:

"I know this is going to sound like a non-answer to your question, but
the only thing I am going to say at this point is that there were a
number of tradeoffs made by the registries in the new agreements
(whether for .com, .biz, .info, etc.) that were made.  ICANN insisted on
this new definition of Consensus Policies (as opposed to the old
definition in the 2001 agreements - which by the way the 2001 agreements
mirror your registrar accreditation agreement).  In the new definition
for registries (but not registrars), there is no longer a voting
requirement for consensus policies and there are less protections for
the registries (unlike the 2001 agreements).  In addition, we lost the
indemnity protections we used to have.  In exchange, we wanted to make
sure that gTLD Registries were included as key players in determining
what consensus policies were, especially where we were the most impacted
by the policy changes.  We wanted to avoid situations (like this almost
became), where the Council disregarded the opinions of the registries
and came up with policies without adequate consultation or analysis of
the impacts of the new policies/solutions on the registries.

I hope that gives you some insight.  And I know if ICANN changed (or
wanted to change) the definition of "Consensus Policies" in the
registrar agreements like it did for the registry agreements, you would
be just as vigilant as we are being."

E.  In summary, I NEVER stated that we could not have a consensus policy
without the registries agreeing to the actual policy.  I merely pointed
out what was in the contracts that the registries had and the background
for that provision.  I am not going to provide the registries' legal
interpretation of that provision because even if I knew how all of the
registries interpreted that statement from a legal standpoint (which I
don't), it is not appropriate for me to give you anyone's legal position
on the matter.  You have every right to ask the ICANN GC on what his
interpretation is, but I will warn you that his interpretation may or
may not be the same interpretation that each registry has and just
because he believes the sentence means one thing does not necessarily
mean that that is what the other side believes and that his view is
enforceable on the contracted parties.  

F.  From NeuStar's perspective, and I have shared this with the RyC, the
current motion to put this topic on tasting out for public comment is
acceptable and we are in favor of the motion.  I cannot speak for any
other registry on this however.

Jeffrey J. Neuman, Esq. 
Sr. Director, Law, Advanced Services  & 

Business Development 

NeuStar, Inc. 
e-mail: Jeff.Neuman@xxxxxxxxxx 


-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt-wg@xxxxxxxxx] On
Behalf Of Mike Rodenbaugh
Sent: Tuesday, March 04, 2008 7:12 PM
To: 'Tim Ruiz'; 'Adrian Kinderis'
Cc: 'Registrars Constituency'; owner-council@xxxxxxxxxxxxxx;
gnso-dt-wg@xxxxxxxxx; 'GNSO Council'
Subject: [gnso-dt-wg] RE: [council] Motions re Domain Tasting


I do not like the idea that one Constituency can come up with any legal
theory and demand that be the subject of ICANN Counsel opinion, while
all policy development work goes on hold to wait for that opinion.
Though I maintain complete respect for ICANN Counsel, their opinion may
not be the final opinion that matters on issues of contract
interpretation or otherwise.  In order to avoid litigation, ICANN's much
safer position is to side with the parties they contract with, rather
than any other party who would have a much tougher time suing ICANN
successfully on a contract (or 'third party beneficiary') theory.  So I
see this as another ploy for contracting parties to delay or derail
policy development that they don't like, and we ought not let that
become a precedent.

While I also would like ICANN's counsel's view on the outlandish
position set out by Jeff Neuman (purportedly on behalf of the Registry
Constituency), I do not think that issue, or this one now raised by the
Registrars, should roadblock the policy development work of the GNSO
Council.  We should continue our work and let the legal proceedings take
their separate course.
Again, the ICANN Counsel has already found the domain tasting issue to
be within scope of GNSO policy work, nine months ago, after this sort of
'excess delete fee' proposal was already enacted by PIR through ICANN
process, discussed in the initial Staff report that included Counsel's
opinion, and so presumably it was understood to be a potential outcome
of the GNSO as well.

Thanks,
-Mike