[council] Comment on GAC letter drafted by Jonathan, amended by Brian

[john@xxxxxxxxxxxxxxxxxxx]

I am fine with Jonathan's draft but like better the way Brian has designed the 
IPC's position on the matter.  I would prefer that the Council be able to find 
a unanimous way to respond to the GAC, but that does not seem to be possible on 
this matter, so this seems to be the best approach.


Cheers,


Berard



--------- Original Message ---------Subject: RE: [council] potential annex to 
Jeff's draft letter
From: "Winterfeldt, Brian" <bwinterfeldt@xxxxxxxxxxx>
Date: 1/31/13 12:25 pm
To: "jonathan.robinson@xxxxxxxxxxx" <jonathan.robinson@xxxxxxxxxxx>
Cc: "council@xxxxxxxxxxxxxx" <council@xxxxxxxxxxxxxx>

Dear Jonathan:
 
Thank you for picking up the pen for this final iteration to seek the middle 
ground.  We have attached just a few very minor cleanup edits.
 
Our only substantive amendment was to change the last few sentences at the end 
of the fifth paragraph that noted the IPC position and the need for a minority 
statement—which were not likely intended to remain in the final letter—into a 
very brief footnote acknowledging that position.
 
Hopefully this slight adjustment is agreeable for everyone.
 
Thank you,
 
Brian
 
Brian J. Winterfeldt  
Partner 
bwinterfeldt@xxxxxxxxxxx
Steptoe
 
+1 202 429 6260 direct
+1 202 903 4422 mobile
+1 202 429 3902 fax
Steptoe & Johnson LLP - DC
1330 Connecticut Avenue, NW
Washington, DC 20036
www.steptoe.com
 
+1 212.506.3935 direct
+1 212.506.3950 fax
Steptoe & Johnson LLP – New York
1114 Avenue of the Americas
New York, NY 10036

This message and any attached documents contain information from the law firm 
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------------------------------------------- 
From: Jonathan Robinson[SMTP:JONATHAN.ROBINSON@xxxxxxxxxxx] 
Sent: Thursday, January 31, 2013 11:07:23 AM 
To: Winterfeldt, Brian; 'Thomas Rickert' 
Cc: 'Mason Cole'; john@xxxxxxxxxxxxxxxxxxx; 'David Cake'; 'Neuman, Jeff'; 
council@xxxxxxxxxxxxxx 
Subject: RE: [council] potential annex to Jeff's draft letter 
Auto forwarded by a Rule
 
All,
 
I have made an attempt to produce what I will refer to as a final draft.  
 
I have based it on Jeff’s original letter and made a good faith attempt to 
include a significant part of Brian’s / the IPC input.

Some key points:
 
1.       I have not provided it in redline and clean versions.  Apologies.
2.       I have added (and made minor edits to) the agreed appendices
3.       Please note carefully the last sentence in the second paragraph and 
provide any input on the accuracy of this.
4.       I have retained paragraph 3 which attempts to define “policy” from 
past experience.
5.       I have not made reference to the staff note on policy and 
implementation.
Rationale: This is an important piece of work in a critical area but it has 
been subject to very limited community feedback so far.
6.       I have not attempted to provide the rationale for why “… the Council 
thought it best to adopt a holistic approach to the issue of special protection 
…”
I think that’s it.  We have here a communication that we have worked hard on 
and the attempt to deliver a considered and reasonable response should be taken 
as that.
I understand that it may not go far enough to accommodating the IPC’s 
requirements and if so, we should consider a form of minority position.
My preference is to work with and perhaps make a final refinement of a letter 
we can all sign off on.
 
Please provide any final input as you see fit and I will use that to produce a 
final copy.  I think we can get away with sending it tomorrow if necessary (and 
still date it today) but that’s it as far as extending the deadline.
 
Thanks for all the contributions and effort so far.
 
 
Jonathan
 
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
Behalf Of Jonathan Robinson
Sent: 30 January 2013 22:01
To: 'Winterfeldt, Brian'; 'Thomas Rickert'
Cc: 'Mason Cole'; john@xxxxxxxxxxxxxxxxxxx; 'David Cake'; 'Neuman, Jeff'; 
council@xxxxxxxxxxxxxx
Subject: RE: [council] potential annex to Jeff's draft letter


 
Thanks.  I’ll take the risk then with this contentious and high-profile issue!  
Jonathan.
 
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
Behalf Of Winterfeldt, Brian
Sent: 30 January 2013 21:17
To: 'Thomas Rickert'; Jonathan Robinson
Cc: 'Mason Cole'; john@xxxxxxxxxxxxxxxxxxx; 'David Cake'; 'Neuman, Jeff'; 
council@xxxxxxxxxxxxxx
Subject: RE: [council] potential annex to Jeff's draft letter


 
Mine as well.

Best,

Brian
 
Brian J. Winterfeldt  
Partner 
bwinterfeldt@xxxxxxxxxxx
Steptoe

 
From: Thomas Rickert [mailto:rickert@xxxxxxxxxxx] 
Sent: Wednesday, January 30, 2013 4:10 PM
To: Jonathan Robinson
Cc: 'Mason Cole'; john@xxxxxxxxxxxxxxxxxxx; 'David Cake'; 'Neuman, Jeff'; 
Winterfeldt, Brian; council@xxxxxxxxxxxxxx
Subject: Re: [council] potential annex to Jeff's draft letter



Well stated, Jonathan!


You have my support for that.



Thomas




Am 30.01.2013 um 22:06 schrieb "Jonathan Robinson" 
<jonathan.robinson@xxxxxxxxxxx>:


I am wondering if I might have to pick up the pen for the final iteration and 
seek to find the middle ground?

 

After all, my name is likely to be on the bottom of the letter.

 

Jonathan

 

From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
Behalf Of Mason Cole
Sent: 30 January 2013 20:28
To: john@xxxxxxxxxxxxxxxxxxx
Cc: Jonathan Robinson; 'David Cake'; 'Neuman, Jeff'; 'Winterfeldt, Brian'; 
council@xxxxxxxxxxxxxx
Subject: Re: [council] potential annex to Jeff's draft letter



 

I too support #1.

 


I didn't necessarily find Jeff's letter to be over-aggressive.  That said if 
the council thinks it's a good idea to make the language relatively more 
diplomatic, I don't object, provided the content of the message isn't changed.


 


 

On Jan 30, 2013, at 10:22 AM, john@xxxxxxxxxxxxxxxxxxx wrote:


 

I am fully in support of #1.  We need to respond substantively, just is a less 
flammable way.


 


Berard


 


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

Subject: RE: [council] potential annex to Jeff's draft letter
From: "Jonathan Robinson" <jonathan.robinson@xxxxxxxxxxx>
Date: 1/30/13 10:02 am
To: "'David Cake'" <dave@xxxxxxxxxxxxxxxxx>, "'Neuman, Jeff'" 
<Jeff.Neuman@xxxxxxxxxx>
Cc: "'Winterfeldt, Brian'" <bwinterfeldt@xxxxxxxxxxx>,council@xxxxxxxxxxxxxx

All,

 


I believe we are heading to one of two options:

 


1.       Adopt the substance of Jeff’s draft with agreed changes.  I believe 
that we will need to reflect Brian’s / the IPC input on this and so it may need 
some changes in order to do so.
2.       Write to Heather / the GAC indicating that we are working on this but 
need a little more time.
 


Consider also that want to limit the extent to which we go into the Policy vs 
Implementation issue here since this is the subject of a broader and longer 
term initiative.

 


Thanks.

 


Jonathan

 


From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
Behalf Of David Cake
Sent: 30 January 2013 17:49
To: Neuman, Jeff
Cc: Winterfeldt, Brian; council@xxxxxxxxxxxxxx
Subject: Re: [council] potential annex to Jeff's draft letter



 


I am supportive of Jeff's position - I'm in favour of sending the letter as it 
was drafted (with the suggested changes from Thomas in the appendix). I believe 
Brian's suggestions would change the letter in such a way that it would no 
longer represent the views of the majority of council. 

 


Regards


 


            David

 


On 30/01/2013, at 6:54 AM, "Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx> wrote:


 
 


 


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] On 
Behalf OfWinterfeldt, Brian
Sent: Tuesday, January 29, 2013 8:16 PM
To: 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
Steptoe
 


+1 202 429 6260 direct


+1 202 903 4422 mobile


+1 202 429 3902 fax


Steptoe & Johnson LLP – DC


1330 Connecticut Avenue, NW


Washington, DC 20036


www.steptoe.com


 


+1 212.506.3935 direct


+1 212.506.3950 fax


Steptoe & Johnson LLP – New York


1114 Avenue of the Americas


New York, NY 10036



This message and any attached documents contain information from the law firm 
Steptoe & Johnson LLP that may be confidential and/or privileged. If you are 
not the intended recipient, please do not read, copy, distribute, or use this 
information. If you have received this transmission in error, please notify the 
sender immediately by reply e-mail and then delete this message.


 


-------------------------------------------


From: 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] 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