Re: POLICY vs. IMPLEMENTAION (was [council] FW: Letter from the GAC regarding IOC/RC Protections)

[Thomas Rickert <rickert@xxxxxxxxxxx>]

Jonathan, all,
it is great so see so many contributions on this most important subject. I am 
more than happy to work on a response with all of you.

As Chair of the IGO-INGO PDP WG I am particularly interested in this subject as 
you can imagine. 

I would like to highlight a few points:

1. Obviously, we have not managed to convey the message why a PDP is needed in 
this case. There seems to be the impression that we are doing a PDP 
- to be difficult or 
- to slow things down or 
- because we do not respect treaties or laws. 

Far from it. 
We work hard to come up with solutions that serve the community and that help 
ICANN manage a public good. Had we chosen to allow certain names to be added to 
the reserved names list (which might have been the easiest solution in terms of 
time and efforts), even the affected organizations would not be able to use 
them as no exemption process would have been in place. I guess we need examples 
such as this that may or may not be part of the outcome of PDP to show the 
level of diligence in the process. 

2. Also, I would like to highlight something that Jeff rightfully pointed out 
to make sure it is not forgotten in our response:

... other items as policy, thereby requiring extensive involvement from the 
GNSO community – note I did NOT say necessarily PDP)

In my view, the work of the GNSO is often linked to a PDP (or working on 
consensus policies), which is perceived as a cumbersome and lengthy process. We 
should emphasize that the Council has more options to chose from when doing its 
work. We should explain what these are and the Council might choose to 
demonstrate from time to time (and document that in meetings) that various 
options are being discussed so that the Council is not seen as operating with 
one tool only.

3. When discussing implementation reference is made to the GNSO Council 
recommendations regarding the new gTLD program. We should note that - due to 
the complexity of that subject - the GNSO policy is quite general at times. In 
an ideal world, the policy recommendations would have been more detailed. This 
example is now taken to show that implementation can take over part of the 
policy work. Certainly, there is no clear demarkation, but we should make that 
point. If possible, GNSO Council Recommendations should be more detailed than 
in this case. 

Also, Marika made a great point referring to IRTs that I would have brought up 
if she hadn't: The Council should explain that its work does not necessarily 
end with a resolution, but that policy and implementation go hand in hand and 
that they should be perceived as complementary parts. The Council should play a 
more visible role in overseeing implementation to make sure that the 
implementation reflects accurately the policy recommendations.

Thanks,
Thomas



Am 30.11.2012 um 13:58 schrieb Jonathan Robinson 
<jonathan.robinson@xxxxxxxxxxx>:

> 
> Thanks again to Jeff for setting out such a critical issue for discussion
> and to others for significant input so far.
> 
> My thought is that we do need to respond, and in a reasonably timely manner
> (before calendar year end), to the GAC.  
> The feelings / views are clearly strongly held.
> 
> Therefore, I suggest we move forward with two threads:
> 
> 1. The key points of a response to the GAC, which will then form the basis
> for our/my actual reply (I am happy to kick-off / lead this).
> 2. Continue with this thread (Policy vs. Implementation) in order to develop
> and refine our thinking and approach on this critical issue.
> 
> Feel free to support or comment on this approach.
> 
> 
> Jonathan
> 
> -----Original Message-----
> From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
> Behalf Of KnobenW@xxxxxxxxxx
> Sent: 30 November 2012 11:03
> To: council@xxxxxxxxxxxxxx
> Subject: AW: POLICY vs. IMPLEMENTAION (was [council] FW: Letter from the GAC
> regarding IOC/RC Protections)
> 
> 
> I also agree that the boarder between policy and implementation is fluent. I
> wonder whether a clear delimitation would be achievable and solve the
> problems. In additon it is a question of the roles of GAC and GNSO: "advice"
> vs "support".
> In Toronto I've been approached by GAC members asking to be better
> integrated into the policy development (process). I think we should take
> this into consideration. A liaison may be one solution to offer. There may
> be more ideas to discuss.
> 
> 
> Best regards
> Wolf-Ulrich
> 
> 
> 
> -----Ursprüngliche Nachricht-----
> Von: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] Im
> Auftrag von Volker Greimann
> Gesendet: Freitag, 30. November 2012 10:41
> An: joy@xxxxxxx
> Cc: Neuman, Jeff; Jonathan Robinson; council@xxxxxxxxxxxxxx
> Betreff: Re: POLICY vs. IMPLEMENTAION (was [council] FW: Letter from the GAC
> regarding IOC/RC Protections)
> 
> 
> All,
> 
> I am in full agreement that a better definition of these terms is necessary
> and I appreciate staffs efforts in this matter, even though I think this
> needs broader community involvement. Definitely a session to attend in
> Beijing, so I would urge staff not to schedule it concurrently with other
> important sessions. One further consideration is the question if policy
> "taints" (for lack of a better word; I mean it without the negative
> connotations here) implementation. I would argue that even if a decision is
> 90% implementation and 10% policy, it should be enveloped under the umbrella
> of policy and therefore subject to GNSO approval.
> 
> Best,
> 
> Volker
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>> 
>> Hi Jonathan and thanks for forwarding this.
>> Jeff, this is an interesting idea which I've asked for comments on 
>> from our constituency group.
>> I think it is a good idea to take a step back from the issues and look 
>> strategically at what is happening and why in the GNSO relationship 
>> with the GAC. The examples you cite are symptoms, I agree, of a wider 
>> problem and they will simply keep happening if not resolved. I'm not 
>> convinced getting agreed definitions of "policy" vs "implementation"
>> will resolve some of these issues. But if it is a measure to assist 
>> and has community support then the Council should consider it.
>> Thanks for raising this
>> Kind regards
>> Joy
>> 
>> On 30/11/2012 3:55 a.m., Neuman, Jeff wrote:
>>> All,
>>> 
>>> 
>>> 
>>> We have a very serious problem here that needs immediate attention.
>>> I am not referring to the merits of whether any of these 
>>> organizations deserve protection or not, or whether there should be 
>>> additional safeguards for IP owners in the new gTLD process or 
>>> whether certain Whois Review team recommendations could be put into 
>>> place .  Forget all of that.  Forget the merits and substance of 
>>> these important issues.
>>> 
>>> 
>>> 
>>> The real issue is that new reliance on the terms "policy" vs.
>>> "implementation."  This is the issue that should receive top 
>>> priority. To quote Alan Greenberg (or at least paraphrase), when one 
>>> group wants something in place without using the policy process, they 
>>> call it "implementation."  Those that oppose it, call it "policy."  
>>> While that statement was made several times by Alan partly in jest, 
>>> that statement does have merit.
>>> 
>>> 
>>> 
>>> Lets look at the following 3 examples:
>>> 
>>> 
>>> 
>>> 1.       _ IOC/RC_- As the letter sent around by Jonathan shows,
>>> the GAC is thoroughly annoyed with the GNSO for starting a policy 
>>> process on the protection of IOC and Red Cross marks.  They believe 
>>> (although unstated), that they have exclusive jurisdiction over these 
>>> types of public policy issues and do not want the GNSO to take 
>>> "years" to work out whether these organizations (which they believe 
>>> are protected by law) should receive protections in the new gTLD 
>>> process.  Without commenting on the merits of this argument, look at 
>>> what they have done. They have called the protections as nothing more 
>>> than "implementation" and therefore, the GNSO should explain itself 
>>> as to why we believe we have a right to start a policy process on it.  
>>> After all, implementation can just be enacted by the Board.  There is 
>>> no need for the GNSO to get involved, in their view...nor do they 
>>> want it.
>>> 
>>> 
>>> 
>>> 2.       _Whois Review Team_:  The ICANN Board sought guidance from
>>> the entire Internet community on whether the recommendations involved 
>>> "implementation" or "policy".  Why? Because if it is implementation, 
>>> there is no need to involve the GNSO community and it can just be 
>>> enacted.  Those that supported the recommendations wholeheartedly 
>>> called them "implementation."  Those that opposed the recommendations 
>>> called it "policy."  I believe that many who called it policy 
>>> actually truly believe there are policy issues involved, but some 
>>> called it policy, to have it go through the long drawn out process we 
>>> call a PDP (with the hopes that it dies a slow death).  Neither side 
>>> of this debate is blameless.
>>> 
>>> 
>>> 
>>> 3.       _The now infamous New gTLD "straw-man"_:  For the record,
>>> I was a part of the group that discussed the straw man in Brussels 
>>> and LA over the past few weeks.  I found those discussions very 
>>> useful and appreciate the efforts being made by the new ICANN CEO, 
>>> who I have a tremendous amount of respect for.  I believe he truly 
>>> will make a huge positive impact on ICANN for many years to come.
>>> But, now the debate has turned into what is policy and what is 
>>> implementation.  The IPC/BC and their representatives have called
>>> all of their proposals "implementation".   The NCSG, Registries,
>>> Registrars and Applicants have called much of it policy.  ICANN staff 
>>> has now weighed in on their thoughts and have classified certain 
>>> items as implementation (thereby negating the need for GNSO policy 
>>> development), and other items as policy, thereby requiring extensive 
>>> involvement from the GNSO community - note I did NOT say necessarily 
>>> PDP).
>>> 
>>> 
>>> 
>>> I believe we all need to take a step back from the issues 
>>> _immediately_ and decide once and for all an agreed upon bottom-up 
>>> multi-stakeholder definition of what is "policy" and what is 
>>> "implementation."  Or at the very least a framework for making that 
>>> assessment when issues arise.  I would advocate for a cross community 
>>> group made up of members from ICANN staff, the GNSO, the GAC and 
>>> others to come together to figure this issue out, so that we get out 
>>> of this rut we are now in.  At the same time, we need to fix the 
>>> image of the GNSO policy processes so that they are no longer feared, 
>>> but embraced.  They need to not be used as vehicles for delay, but 
>>> rather utilized for the common good.
>>> 
>>> 
>>> 
>>> If we are able to do this, I believe many of the issues we are now 
>>> having will become easier to resolve (and we can focus on the 
>>> merits). If not, I see these issues getting much worse over the 
>>> coming months/years.  I believe the future of the GNSO, and even the 
>>> multi-stakeholder model in general hinge on the definition of these 2 
>>> words.
>>> 
>>> 
>>> 
>>> I would be very happy to volunteer to serve on such a group.
>>> 
>>> 
>>> 
>>> Thanks.
>>> 
>>> 
>>> 
>>> 
>>> 
>>> *Jeffrey J. Neuman** **Neustar, Inc. / Vice President, Business
>>> Affairs*
>>> 
>>> 
>>> 
>>> *From:*owner-council@xxxxxxxxxxxxxx
>>> [mailto:owner-council@xxxxxxxxxxxxxx] *On Behalf Of *Jonathan 
>>> Robinson *Sent:* Thursday, November 29, 2012 5:00 AM *To:* 
>>> council@xxxxxxxxxxxxxx *Subject:* [council] FW: Letter from the GAC 
>>> regarding IOC/RC Protections
>>> 
>>> 
>>> 
>>> All,
>>> 
>>> 
>>> 
>>> FYI.  Please see the attached letter received from the GAC last night 
>>> my time.
>>> 
>>> 
>>> 
>>> Jonathan
>>> 
>>> 
>>> 
>>> *From:*GAC Secretariat [mailto:gacsec@xxxxxxxxxxxxx] *Sent:* 28 
>>> November 2012 21:38 *To:* jonathan.robinson@xxxxxxxxxxx 
>>> <mailto:jonathan.robinson@xxxxxxxxxxx> *Cc:* Steve Crocker; Fadi 
>>> Chehade; Heather Dryden; Maria Häll; alice@xxxxxxx 
>>> <mailto:alice@xxxxxxx>; Choon Sai LIM (IDA) *Subject:* Letter from 
>>> the GAC regarding IOC/RC Protections
>>> 
>>> 
>>> 
>>> Sent on behalf of Heather Dryden, GAC Chair
>>> 
>>> 
>>> 
>>> Dear Jonathan,
>>> 
>>> 
>>> 
>>> Attached please find a letter from the GAC regarding IOC and Red 
>>> Cross/Red Crescent protections.
>>> 
>>> 
>>> 
>>> Best regards,
>>> 
>>> 
>>> 
>>> Jeannie Ellers
>>> 
>>> 
>>> 
>>> Jeannie Ellers Manager, GAC Coordination Internet Corporation for 
>>> Assigned Names and Numbers 1101 New York Avenue NW, Suite 930
>>> 
>>> Washington, DC 20005 Ph. +1 202 570 7135 M. +1 310 302 7552
>>> 
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