RE: [council] FW: Rec6 CWG Response to the Board Request

["Tim Ruiz" <tim@xxxxxxxxxxx>]

Agreed.


Tim

> -------- Original Message --------
> Subject: Re: [council] FW: Rec6 CWG Response to the Board Request
> From: "Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>
> Date: Tue, January 11, 2011 1:41 pm
> To: "'tim@xxxxxxxxxxx'" <tim@xxxxxxxxxxx>, "'Margie.Milam@xxxxxxxxx'"
> <Margie.Milam@xxxxxxxxx>
> Cc: "'council@xxxxxxxxxxxxxx'" <council@xxxxxxxxxxxxxx>
> 
> 
> I don't think so.  The response by the cWG may or may not be the response 
> from the GNSO community.  
> 
> Again, this is indicative of the larger issue we started to discuss as to the 
> operations and role of a cross working group.  I am a little puzzled as to 
> why there was direct communication from the working group to the board and 
> vice versa that did not involve the community.  I think a message should be 
> delivered that the work of the cwg, while valuable and certainly commendable 
> is just the work of individuals until such time it is approved by the 
> communities those individuals may be from.
> 
> I look forward to discussing this meta issue in the weeks to come.
> Jeffrey J. Neuman, Esq.
> Vice President, Law & Policy
> NeuStar, Inc.
> Jeff.Neuman@xxxxxxxxxxx
> 
> 
>  
> 
> 
> From: Tim Ruiz [mailto:tim@xxxxxxxxxxx]
> Sent: Tuesday, January 11, 2011 02:30 PM
> To: Margie.Milam@xxxxxxxxx 
> Cc: council@xxxxxxxxxxxxxx 
> Subject: RE: [council] FW: Rec6 CWG Response to the Board Request
>  
> 
> So is our upcoming discussion now moot?
> 
> 
> Tim
> 
> > -------- Original Message --------
> > Subject: [council] FW: Rec6 CWG Response to the Board Request
> > From: Margie Milam 
> > Date: Tue, January 11, 2011 12:36 pm
> > To: "council@xxxxxxxxxxxxxx" 
> > 
> > FW: Rec6 CWG Response to the Board RequestDear Councilors,
> > Â 
> > For your information and discussion at Thursday&#8217;s Council meeting, 
> > please find below the Rec6 CWG&#8217;s response to the Board related to the 
> > CWG Rec6 Report. Â Â Â Â Â 
> > Â 
> > Â 
> > Best Regards,
> > Â 
> > Margie
> > __________
> > Â 
> > Margie Milam
> > Senior Policy Counselor
> > ICANN
> > __________
> > _____________________________________________
> > From: Gomes, Chuck
> > Sent: Friday, January 07, 2011 6:16 PM
> > To: 'Peter Dengate Thrush'; John Jeffrey
> > Cc: Kurt Pritz; Cheryl Langdon-Orr; Frank March; Heather.Dryden Dryden
> > Subject: Rec6 CWG Response to the Board Request
> >  
> > Peter,
> > Please find attached and copied below the New gTLD Recommendation 6 
> > Community Working Group (Rec6 CWG) response to the request from the ICANN 
> > Board in its 10 December 2010 meeting in Cartagena.
> > Chuck Gomes, Co-Chair, Rec6 CWG
> > 3108 Ponte Morino Drive, Suite 117, Cameron Park , CA 95682
> > Office: +1 530 676-1100; Mobile: +1 703 362-8753
> > &#8220;This message is intended for the use of the individual or entity to 
> > which it is addressed, and may contain information that is privileged, 
> > confidential and exempt from disclosure under applicable law. Any 
> > unauthorized use, distribution, or disclosure is strictly prohibited. If 
> > you have received this message in error, please notify sender immediately 
> > and destroy/delete the original transmission.&#8221;
> > 7 January 2011
> > Mr. Peter Dengate-Thrush
> > Chairman
> > ICANN Board of Directors
> > cc:Â Â Â Â  John Jeffrey, ICANN Secretary
> > Re:Â Â Â Â  Rec6 CWG Revised Recommendations and Clarifications
> > Dear Peter:
> > This correspondence is a formal response to the ICANN Board&#8217;s 
> > Cartagena Resolution (2010.12.10.21) requesting that the Rec6 CWG provides 
> > its final written proposal with regard to three specific issues by 7 
> > January 2011.   
> > The Rec6 CWG hereby submits the following clarifications for the 
> > Board&#8217;s consideration.  Note that the three areas for which 
> > clarification was requested in the Board motion are shown in bold font 
> > followed by the CWG responses in normal font.  In addition, the CWG added 
> > a fourth area of comments at the end that also has a header in bold font 
> > and is submitted for possible Board consideration.
> > (1)Â Â Â Â  The Roles of the Board, GAC, and ALAC in the Objection Process
> > 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:
> > - Â Â Â Â Â  clarify the circumstances under which the Board would vote 
> > with regard to an Rec6 objection and/or with gTLD applications generally, Â 
> > 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. Â 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. Â Nor did the CWG suggest that the Board be required to approve 
> > every new gTLD string. Â  Â 
> > and  
> > -Â Â Â Â Â Â  Â if there is consensus on it, clarify the intended role of 
> > the expert panel (i.e., dispute resolution provider, mediator, advisor or 
> > other). Â 
> > A consensus of the CWG recommended that the ICANN Board may "contract 
> > appropriate expert resources capable of providing objective advice." Â 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 
> > should 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). Â Some members of the CWG take a 
> > broader definition of dispute resolution panel than others. Â Some members 
> > think that the experts should not hear from the objector and the applicant 
> > at all &#8211; whether in a trial setting or written advocacy &#8211; 
> > others disagree and support an adversarial process. Â 
> > 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 &#8211; others disagree and believe that the 
> > experts should conduct their analysis on the basis of only the string. Â Â 
> > While the CWG did not reach consensus on these issues, it did explicitly 
> > remove all reference to the specific term "dispute resolution" in its 
> > recommendations, and made no requirement that the experts engage in an 
> > adversarial process between applicant and objector. Â 
> > Furthermore, the CWG did achieve Strong Support (though not 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.
> > (2)Â Â Â Â  The Incitement to Discrimination Criterion
> > With regard to the incitement to discrimination criterion, we need to 
> > confirm the specific language revisions the CWG requests with regard to the 
> > &#8220;incitement to or promotion of&#8221; portion of the criterion.   
> > After the discussion in Cartagena, does the CWG continue to request that 
> > the standard be &#8220;incitement and instigation&#8221; 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 &#8220;incitement to or promotion of&#8221; term in the original 
> > standard.  After the discussion in Cartagena, does the CWG continue to 
> > request that the term be &#8220;incitement and instigation&#8221; or is 
> > some other language preferable? Â 
> > In its report dated 21 September, 2010, the CWG recommended that 
> > "incitement and instigation" be used in the criteria for discrimination. 
> > Â 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. Â 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; we recognize that these terms may have well-defined, 
> > but possibly varied meanings in different courts. Overall, however, these 
> > are terms that are widely used in the international law and international 
> > criminal law context. The substantive difference between &#8216;incitement 
> > to and promotion of&#8217; and &#8216;incitement and instigation&#8217; 
> > concerns the bar that we wish to set; in the first instance this bar is 
> > lower, whilst in the second the bar is substantially higher. The CWG may no 
> > longer have a consensus on this issue.  As such, expert clarification 
> > should be made to the Board on the varying interpretations of the different 
> > criteria. Â 
> > With that said, many members of the CWG still argue that a higher standard 
> > than "incitement to or promotion of" would be appropriate.
> > Â Â Â 
> > ·      the CWG needs to reiterate consensus on the standard 
> > including an expanded list of additional discrimination grounds that were 
> > referenced in the CWG Report. Â 
> > 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. Â 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." 
> > Â As such, any additional discriminations listed in the second prong still 
> > must be found to be in violation of principles of international law. Â 
> > We do not believe that recognizing additional discriminations would 
> > significantly broaden the types of objections brought. Â The CWG does not 
> > believe that any additional research needs to be conducted on whether such 
> > additional classes are protected under international law today. Â It has 
> > been brought to the CWG's attention that these additional discriminations 
> > have some protection under international law. Â If they are recognized 
> > today, then the Board and the experts would rely on them. Â If they are not 
> > at that level yet, then they won't. Â Importantly, such additional 
> > discriminations might become more recognized at some future date and the 
> > process should be fluid enough to take them into account at such time. 
> > Â The suggestion in Cartagena of a catch-all discrimination criteria 
> > &#8211; such as "any other discriminations that are generally recognized 
> > under international law" &#8211; seems to be acceptable to many of the CWG 
> > members.  Other CWG members prefer listing all of the discriminations 
> > suggested by the CWG, or only the catch-all criteria, thereby avoiding a 
> > sense of prioritization among discriminations.
> > (3)Â Â Â Â  The Fees for GAC and ALAC-instigated Objections
> > 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? 
> > A full consensus of the CWG recommended that fees be lowered or removed for 
> > objections from the GAC or ALAC. Â It is the CWG&#8217;s sentiment that 
> > ICANN should provide the ACs appropriate funding for such objections if 
> > there is a cost to object.  In the CWG clarifying document filed just 
> > prior to the Cartagena meeting, the CWG felt that it was outside its scope 
> > to comment on the process for the GAC or ALAC to lodge objections. Â The 
> > CWG assumed that any Rec6 objections put forth by the GAC or ALAC would be 
> > approved according to their own internal processes, taking into account 
> > accountability and transparency principles and consensus-based decision 
> > making. Â 
> > In addition to the above use of the "Community Objection" process by the 
> > ALAC and GAC and assuming that 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 objections from the ALAC and/or GAC and subject 
> > them to the same standards of check and balances, and transparency and 
> > accountability criteria, as any other IO instigated objection process as if 
> > they were self instigated by an AC. 
> > (4)Â Â Â Â  Other CWG Recommendations Not Specified by the Board
> > The CWG would like to make another recommendation related to the IO 
> > mentioned above, although the support of which has not been subject to a 
> > formal call of its members.  It is a key principle that the IO should 
> > operate in a transparent and accountable manner, and that appropriate 
> > safeguards are in place to ensure that it operates in the public 
> > interest.  For example, the IO should facilitate legitimate Recommendation 
> > 6 objections, and neither trigger nor create objections entirely on its own 
> > that cannot be traced back to any party.  At a minimum, there should be at 
> > least one party that has claimed publicly that it would be harmed by the 
> > creation of a TLD before the IO can object to it in an effort to reject 
> > such an application.  The IO is not meant to facilitate secret objections, 
> > but should operate with transparency.  The IO should be a tool for those 
> > who cannot maneuver the difficult objection procedures or for those who are 
> > not in a position to fund such objections, rather than an opaque means to 
> > kill a proposed-TLD that otherwise isn&#8217;t subject to public 
> > objection.  
> > Finally, CWG Recommendation 1.2 suggested that ICANN change the name of a 
> > Recommendation 6 objection from &#8220;Morality and Public Order.&#8221;Â  
> > While the CWG did not achieve a consensus on an alternative name, we do 
> > note that the name selected in the Proposed Final Applicant Guidebook 
> > &#8211; &#8220;Limited Public Interest Objection&#8221; was not polled by 
> > the CWG and &#8220;Public Interest Objections&#8221;Â  was ranked only 
> > third of five names polled.
> > Sincerely,
> > Rec6 Community Working Group
> > 
> > 
> 
>