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

Thanks Thomas.  Appreciate the input and will welcome your assistance with
the reply.  Jonathan


From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Thomas Rickert
Sent: 04 December 2012 21:37
To: Jonathan Robinson
Cc: KnobenW@xxxxxxxxxx; council@xxxxxxxxxxxxxx
Subject: Re: POLICY vs. IMPLEMENTAION (was [council] FW: Letter from the GAC
regarding IOC/RC Protections)


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.







Am 30.11.2012 um 13:58 schrieb Jonathan Robinson

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.


-----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

-----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)


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.



Hash: SHA1

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

On 30/11/2012 3:55 a.m., Neuman, Jeff wrote:


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 

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 

I would be very happy to volunteer to serve on such a group.


*Jeffrey J. Neuman** **Neustar, Inc. / Vice President, Business

[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


FYI.  Please see the attached letter received from the GAC last night 
my time.


*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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