[ALAC] New draft on Public Interest Commitment Dispute Resolution Procedure

[William Drake]

Hi MM

On Sep 1, 2013, at 1:16 PM, Milton L Mueller <mueller at SYR.EDU> wrote:

> It’s incredibly naïve of people to think that slapping the term “public interest” onto something automatically makes it beneficial to the public or something we should support.

As stated, no argument.  Which of course is not to say that some things that get raised under the rubric don't actually belong there.
>  
> You have to look at what is really going on. So what is going on with PICs?
> Is it or is it not correct that the main purpose of Specification 11 is to pressure registries to only use registrars who have agreed to sign the new RAA? Do we support the new RAA? (answer: I thought not. Remember why? Privacy, verification of registrants, etc.)

So that'd be something to push back on
>  
> The other idea behind PICs is to enforce compliance with “statements made by the registry operator in its application for the gTLD, as well as to specify additional public interest commitments, in either case transforming such commitments into binding contractual obligations that may be enforced by ICANN through a new dispute resolution mechanism…”
>  
> So this is partly a real if minor concern about the business plans filed by registries and whether they are perpetually locked into them. I cannot share ALAC’s enthusiasm for that sort of thing; they seem to have forgotten that no one needs to use these registries and they also seem to think that business methods should never change, which is unrealistic. The whole program is an exemplar of the incredible over-bureaucratization and over-regulation of the DNS that the ICANN system of over-politicized collective action generates.

A discussion worth having
>  
> But to respond to one of Evan’s questions, YEAH before you trigger an expensive dispute resolution process that the rest of us have to pay for directly or indirectly, I think you ought to be able to show actual harm to yourself, and not be just some free-floating busybody who thinks things are not going the way you think they should.

This too
>  
> There are also procedural issues here. ICANN badly needs to get its allegedly bottom up process institutionalized and accepted by all parties. It is not a good thing when governments, or trademark owners, or law enforcement, or the U.S. Congress or ALAC, or any one of a dozen little pressure groups can rewrite the policies at any moment based on last-second hijacks of the process.

Sure, but asynchronous, iterative, muddling/stumbling forward processes in which different parties become alive to perceived threats to their interests at different times as things evolve and grab for the most effective pressure points are pretty much standard in politics and policy, so arguing against this requires more than wailing that it just ain't right.

> That kind of thing fundamentally undermines both the public interest and the predictability and credibility of ICANN. The GNSO is supposed to represent all the main stakeholders, and the policies that come out of it are supposed to safeguard the public interest.

Whole lotta supposed to's, and time served on Council doesn't necessarily give full confidence in these.

> Sure, there is a role for GAC and ALAC advice on the outcome of a GNSO policy, which could lead to its revision – by the GNSO - but if we are ever to have a real bottom up policy we cannot embrace a GAC imposition of new contractual obligations. And the idea that we should be sympathetic to them because someone arbitrarily papered them over with the label “public interest” just makes me shake my head in wonder.  

Your position is clear and coherent, but there may be a slight disjuncture with the realities of politics and power..

Best,

BD
>  
> From: William Drake [mailto:william.drake at uzh.ch] 
> Sent: Sunday, September 1, 2013 4:17 AM
> To: Milton L Mueller
> Cc: NCSG-DISCUSS at LISTSERV.SYR.EDU
> Subject: Re: [NCSG-Discuss] [ALAC] New draft on Public Interest Commitment Dispute Resolution Procedure
>  
> Hi Milton
>  
> Isn't "no discernible benefits" a rather sweeping and strong ex ante assertion?  Does the fact that you personally don't like the GAC's involvement in any of this necessarily mean that there can be no instances of useful public interest concerns being raised via this vehicle, even if it wasn't specified in the hallowed AGB?
>  
> I would agree with Evan that it'd be useful to engage and seek improvements.  NC is after all supposed to be into global public interest concerns, at least that's what it says on our publicity material.  Whether there's sufficient bandwidth at this particular juncture is a different matter...
>  
> Bill
>  
> On Aug 31, 2013, at 10:04 PM, Milton L Mueller <mueller at syr.edu> wrote:
> 
> 
> I’ve had trouble following all the thrashing about on PICs and the PICDRP, but on the whole I view it as a disaster that should be resisted as much as possible. My understanding is that PICs were not part of the AGB, they were imposed on the process by GAC. As such, they introduce yet another more or less arbitrary form of interference in the freedom of registry operators to do things and have no discernable benefits for registrants.
>  
> From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of Evan Leibovitch
> Sent: Wednesday, August 28, 2013 10:40 AM
> To: NCSG-DISCUSS at LISTSERV.SYR.EDU
> Subject: [NCSG-Discuss] Fwd: [ALAC] New draft on Public Interest Commitment Dispute Resolution Procedure
>  
> Greetings from ALAC-land.
>  
> I am interested to know if anyone in NCSG is following -- and may have an interest in -- the proposed ICANN mechanisms for evaluating and enforcing Public Interest Commitments in new gTLD applications.
>  
> I attach a draft of the latest "Public Interest Commitment Dispute Resolution Procedure", that was recently brought to our attention by ALAC member Rinalia Abdul Rahim. In her message to ALAC, regarding this draft (which has been presented to registries), she notes that in the procedures:
> Third parties cannot report/file PIC violation (the entity that files/reports  has to demonstrate that it has been harmed).
> No mention of fees for filing violation.  Also, unclear who will bear the cost burden when panel is constituted to render judgement.  ICANN tends to pass on this type of cost burden to the parties.
> Burden is on the violation filer/"reporter" to make a thorough and complete filing of objection and to make itself available for a "conference" or consultation.  If filings are incomplete or the reporter doesn't show for the conference, case is dropped.
> Reporter can be designated as "Repeat Offender" based on track record, which can be counted against it in future case filings and consideration.
> These issues suggest a process that is (IMO) biased against those who report violations.
>  
> If there are to be such obstacles to challenging breaches of the PICs, why have them in the first place?
>  
> What are the points of view on this in NCSG? Is this issue on the radar here? Might there be interest in joint NCSG/ALAC pushback on this anti-whistleblower bias?
>  
> Cheers,
>  
> --
> Evan Leibovitch
> Toronto Canada
> Em: evan at telly dot org
> Sk: evanleibovitch
> Tw: el56

**********************************************************
William J. Drake
International Fellow & Lecturer
  Media Change & Innovation Division, IPMZ
  University of Zurich, Switzerland
Chair, Noncommercial Users Constituency, 
  ICANN, www.ncuc.org
william.drake at uzh.ch (w), wjdrake at gmail.com (h),
  www.williamdrake.org
***********************************************************

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