RE: [council] potential annex to Jeff's draft letter

["Winterfeldt, Brian" <bwinterfeldt@xxxxxxxxxxx>]

Dear Jeff:

Thank you for this feedback.

I think we might still be able to reconcile your letter with my redline-as my 
primary goal was merely to highlight these issues for the Council's 
consideration in the hope of avoiding friction with the GAC down the road.  
That is why the majority of the content in the redline is commentary, rather 
than actual revisions.

I am not sure a minority statement is necessary, but I do not think we can 
ignore staff's characterization of this matter as solicitation of "policy 
advice" on "implementation ideas," or go without recognizing that there is 
disagreement in the community on the definition of "policy."  Am I wrong about 
that?  Does everyone here agree with the definition of "policy" in the original 
letter?  To this end, a footnote to acknowledge the position of the IPC is just 
fine and I am happy to work on it with you quickly.

You have hit on the same issue as Thomas with respect to advancing the PDP, so 
I am happy to explain again that although I disagreed with the PDP for lumping 
in the Red Cross with international governmental and non-governmental 
organizations, I also reluctantly supported it as being likely the only method 
agreeable to other constituencies in the community.

You can understand my continued reticence to sign on to any legal opinion 
regarding intermediary liability in this context, particularly since none of 
those cases analyzed international humanitarian law, dealt with the Geneva 
Conventions or national laws enacted pursuant thereto.  I believe that is 
precisely the sort of situation we are all working together to avoid.

Best regards,

Brian

Brian J. Winterfeldt
Partner
bwinterfeldt@xxxxxxxxxxx<mailto:bwinterfeldt@xxxxxxxxxxx>
Steptoe

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From: Neuman, Jeff[SMTP:JEFF.NEUMAN@xxxxxxxxxx]
Sent: Wednesday, January 30, 2013 7:54:48 AM
To: Winterfeldt, Brian; council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>
Cc: Neuman, Jeff
Subject: RE: [council] potential annex to Jeff's draft letter



Thank you for this Brian.  I think we face a dilemma here because your 
revisions not only gut the letter that was written by us, but also in many 
respects represents a complete reversal of the positions taken by most of the 
members of council on the previous council calls.  We can of course make some 
updates based on the new paper ICANN staff just released, but remember that 
that was not out when I initially sent the letter.

So, we now have two versions of the letter which I do not believe cannot be 
reconciled.  If it just the IPC that supports this new version, then we should 
send the original version and allow the IPC to include comments as a minority 
report.  If, however, there is other support for this version, then we have an 
issue to work through.

With respect to the comments raised in the e-mail below:


o    We disagree with the notion that "the impact of the instant PDP is to 
challenge, or at least question, not only the GAC's proposed criteria for 
protection," or "the GAC's determination to advance protection for the specific 
two organizations that meet that criteria."  This was carefully considered by 
the Council when it chose to implement the PDP and rejected by those voting in 
favor of the PDP.

o    I don't believe we said that the sole remit of the PDP was to look at 
exceptions, but rather, that was listed as an example.

o    I have no objection of including a footnote that the IPC did not support 
the PDP, but to change the entire letter simply because one constituency didn't 
agree to not seem to be the right approach.

o    The policy framework put out by ICANN staff is still under discussion and 
should not be used for any other purpose until that document has been 
thoroughly vetted. We appreciate the fact that the IPC believes that the 
definition of policy is overbroad, but we have taken this definition from what 
has been used in the past by ICANN in actual situations to look at actual 
issues to determine whether it is in scope for the policy process.  It is the 
only community accepted definition that there is.

o    On the legal issue of intermediary liability, I could cite a number of 
legal cases in the US, including the Lockheed Martin case, Brookfield, etc. but 
we wanted to keep the letter short and to the point.  I also have a case we 
litigated in Belgium that states the same thing that could be cited involving 
the droit.biz domain name.

In short, we as a council need to decide what to do.   The registries are in 
favor of sending the letter as it was drafted (with the tweaks from Thomas on 
the Appendix).  The IPC comments would drastically change the letter in a way 
that defers to the GAC on everything policy-related, which we believe 
represents a contravention of the ICANN Bylaws (where the GNSO is charged with 
policy making for gTLDs) and a potential break down of the multi-stakeholder 
process.  Don't get me wrong, the governments are vital for the 
multi-stakeholder process to work and we believe their opinions/advice should 
be weighed heavily. But they cannot be the "be-all-end-all" of policy with 
respect to gTLDs.  This is not only an issue with respect to the IOC/RC and 
IGOs, but also Whois, law enforcement activities, etc.

We need to find a way to all work together.

Best regards,

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

From: owner-council@xxxxxxxxxxxxxx<mailto:owner-council@xxxxxxxxxxxxxx> 
[mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of Winterfeldt, Brian
Sent: Tuesday, January 29, 2013 8:16 PM
To: council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>
Subject: RE: [council] potential annex to Jeff's draft letter


Dear all:



As you may already be aware, I have a different point of view on the Council's 
response to the GAC with respect to the ongoing IGO-INGO PDP.



Having informally spoken to GAC representatives about this issue, here are some 
personal comments, that are shared by IPC leadership, as well as a proposed 
redline that I would like to have on record and I hope the Council will take 
into consideration.



o    The rather broad scope of the current IGO INGO PDP, which considers 
"whether there is a need for special protections at the top and second level" 
of all gTLDs, has the practical effect of second guessing GAC advice with 
respect to international legal norms and public policy.  In other words, 
whether intentional or unintentional, the impact of the instant PDP is to 
challenge, or at least question, not only the GAC's proposed criteria for 
protection, but also the GAC's determination to advance protection for the 
specific two organizations that meet that criteria.



o    Please bear in mind that the GAC was careful to propose protections for 
Red Cross designations, Olympic words and a finite list of IGO acronyms for new 
gTLDs only.  I cannot recall anyone ever recommending or requesting such 
protection in all existing gTLDs as well.  Thus, the Council's response to the 
GAC needs to fully explain any underlying rationale for the unilateral decision 
to broaden the scope of the instant PDP well beyond GAC advice to include 
existing gTLDs.



o    The Council's current draft response to the GAC seems to suggest that the 
GNSO's primary remit of policy development relating to the IOC/Red Cross is "to 
determine what, if any, exceptions (i.e. for pre-existing, non-commercial, 
and/or geographical use) should apply in the domain name context-particularly 
at the second level and in both new and existing TLDs."  If this is ultimately 
our position as a Council, then I believe it is best to gently back away from 
the current PDP, at least with respect to the Red Cross designations and 
Olympic words, in favor of something much more expeditious and narrow.



o    As you may recall, the original IPC position on this issue is that IOC/Red 
Cross protection should not be subject to a PDP.  That position is not 
reflected in the letter, and it should be reflected, even if it is reflected as 
a minority view.



o    The proposed definition of "policy" in the letter is overbroad, subjective 
and particularly inappropriate in light of the recent policy versus 
implementation discussion framework published by ICANN policy staff.  I believe 
it is better to simply admit that there is no bright line test and recognize 
that this issue is ripe for further discussion within the ICANN community.



o    To clarify, I do not believe that the GAC is asking for protection of the 
entire .INT list of names.  Rather, it is my understanding that the list of 
IGOs that qualify under the GAC's criteria (i.e. are treaty-based 
organizations) is a discrete list of around only 200 acronyms.



o    Finally, the Council should not support anything, regardless of its 
substance, that may be interpreted as a legal opinion on intermediary 
liability, such as the statement that, "(To our knowledge, however, these laws 
would not create intermediary liability or impose affirmative obligations on 
ICANN, registries, and/or registrars with respect to third party 
registrations.)"  Conclusions such as these should be fleshed out and 
substantiated with objective facts, research or citations.



Please contact me if you would like to discuss any of these comments or 
proposed amendments further.


Thank you,

Brian

Brian J. Winterfeldt
Partner
bwinterfeldt@xxxxxxxxxxx<mailto:bwinterfeldt@xxxxxxxxxxx>
Steptoe

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From: owner-council@xxxxxxxxxxxxxx<mailto:owner-council@xxxxxxxxxxxxxx> on 
behalf of Jonathan Robinson[SMTP:JONATHAN.ROBINSON@xxxxxxxxxxx]

Sent: Monday, January 28, 2013 1:32:24 AM

To: 'Thomas Rickert'; 'GNSO Council List'

Subject: RE: [council] potential annex to Jeff's draft letter Auto forwarded by 
a Rule





Many thanks Thomas,



I'll certainly plan to review today.



Jeff (as lead) and others, please note that this is due for completion this 
week since I told Heather we'd reply to her in January.



Thanks,





Jonathan



-----Original Message-----

From: owner-council@xxxxxxxxxxxxxx<mailto:owner-council@xxxxxxxxxxxxxx> 
[mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of Thomas Rickert

Sent: 27 January 2013 17:29

To: GNSO Council List

Subject: [council] potential annex to Jeff's draft letter



All,

as discussed, please find attached a text that could be used as an Annex to the 
draft letter prepared by Jeff in response to the GAC to illustrate the 
complexity of the matter. The intention was to keep it very brief (a bit over a 
page), but still show that there are some issues that need to be resolved.



Thanks,

Thomas