Proposal in relation to the IGO Work Track

Sat Aug 7 16:34:37 EEST 2021

Let me agree with what Farzaneh said here.
This seems to be ICANN making procedures up again in order to satisfy a special interest (IGOs).

Tatiana, you asked for a reason why this group’s work should be paused: the answer I think is that they should never have started the work outside of RPM to begin with. Unless someone can convince me otherwise, this is just a special interest group bending the process to get a favored result that it could not get in the normal legitimate policy process.

I could be wrong, haven’t followed this closely.  There are so many procedural twists and turns it is difficult to keep track. An EPDP may indeed be the best way to resolve the issue but if the issue being considered is something that they have already been told belongs in RPM phase 2, why not wait for RPM? What is the argument against that?

From: NCSG-Discuss <NCSG-DISCUSS at LISTSERV.SYR.EDU> On Behalf Of farzaneh badii
Sent: Monday, August 2, 2021 8:31 AM
To: NCSG-DISCUSS at LISTSERV.SYR.EDU
Subject: Re: Proposal in relation to the IGO Work Track

Thanks Tomslin and Tatiana.

Arguing that this group was “orphaned” is like arguing that a child was orphaned because its mother hasn’t  been born and now we are looking to create a mother for it.

There is a reason that the PDP phase 2 didn’t start its work. Perhaps because it wasn’t even needed. I can guess that the IGOs issue just like Red Cross working group some years ago has always been dragged on to give International orgs whatever they can’t get throughout  the PDP. Even if substantive wise there is no problem with it, I think turning it into an epdp is not a good precedent and can become problematic in the future. It can reopen issues.

But I leave that to the leaders to decide.

On Monday, August 2, 2021, Tatiana Tropina <tatiana.tropina at gmail.com<mailto:tatiana.tropina at gmail.com>> wrote:
Hi all,
thanks, Tomslin, for the explanation. I want to add a couple of points:
- the suggestion to convert the WT into EPDP was made solely because the group is already doing its work and is scheduled to produce the first outcomes, but procedurally it has no vehicle anymore because RPM phase 1 is finished and Phase 2 hasn't started yet. There is no clarity as to when Phase 2 is going to start. For the WT to continue its work, one has to provide it with a vehicle. This is a purely procedural issue.
- as to the use of this WT for the purpose of governments and IGOs to take some advantage: I am not sure that this is the case so far, or at least I haven't heard any of those concerns from our members who participate there. If this is the case, I would expect them to raise those concerns. While I have heard none, I think the choice is to hang a work of an active group in the air or provide the WT with a proper vehicle to continue its work. We chartered the work via an Addendum, so as long as the EPDP charter strictly adheres to what is in the initial Addendum, I don't see much difference in terms of the content of the work.
Warm regards,
Tatiana

On Sun, 1 Aug 2021 at 00:55, Tomslin Samme-Nlar <mesumbeslin at gmail.com<mailto:mesumbeslin at gmail.com>> wrote:
Hi Farzaneh,

Thanks for responding to this.

Regarding your question of what other policies they want to come up with, my understanding is that the Work Track is in the middle of considering an arbitration mechanism in direct response to Recommendation #5 of the IGO-INGO Access to Curative Rights Protection Mechanisms PDP which the council did not approve<https://gnso.icann.org/en/council/resolutions#20190418-3> in 2019, directing a Work Track to be convened to develop an appropriate policy solution. Further, I understand that the proposed mechanisms under discussion in the Work Track as reported by staff are the following ( @Juan Manuel Rojas and @Ioana Stupariu<mailto:Stupariu_Ioana at phd.ceu.edu>, as our appointed members to the WT, please correct me here if I am wrong) :

  1.  Considering addressing the jurisdictional issue presented by Recommendation #5 by proposing that IGOs be exempt from the current requirement to agree to a Mutual Jurisdiction (as defined by the Uniform Domain Name Dispute Resolution Policy).
  2.  Establishing better defined and determinative eligibility requirements to demonstrate unregistered rights under the UDRP.
To the question of which bylaw criteria for convening an EPDP this WT meets, the argument is that the origin and history of the IGO Work Track can be said to satisfy the criterion:  "to create new or additional recommendations for a specific policy issue that had been substantially scoped previously such that extensive, pertinent background information already exists". Remember, the Work Track was convened as a subteam to develop an appropriate policy solution to Recommendation #5.

To the question regarding why the GNSO council convened the Work Track before RPM phase 2 was started, I do not have the complete institutional memory to say for sure (maybe former members of the council and folks who've followed this issue longer can help here), but from what I have read, I think the council thought RPM Phase 2 would start shortly and in parallel to the WT, so that RPM Phase 2 would be used as the procedural vehicle to adopt the policy solution coming out of the IGO WT.

I hope this helps with the discussion.

Cheers,
Tomslin
@Twitter: https://twitter.com/tomsleen
@LinkedIn: https://www.linkedin.com/in/tomslin/

On Sun, 1 Aug 2021 at 01:45, farzaneh badii <farzaneh.badii at gmail.com<mailto:farzaneh.badii at gmail.com>> wrote:
Hi Tomslin

Thanks for this.

The more I am reading this the more I get confused. Why do we need an EPDP for the IGOs issues? Why can't we just wait until the RPM phase 2 starts? Why didn't they wait? Their charter even says: "The IGO Work Track will work in parallel with ongoing work in the RPM PDP, in accordance with the timeline, work plan, deliverables and methodologies outlined in this Addendum."

I am unclear what other policies they want to come up with or that they need to come up with. According to the bylaws (Annex A-1), the EPDP has to convene based on the following criteria<https://www.icann.org/resources/pages/governance/bylaws-en/#annexA1>:

[(1) to address a narrowly defined policy issue that was identified and scoped after either the adoption of a GNSO policy recommendation by the Board or the implementation of such an adopted recommendation; or (2) to create new or additional recommendations for a specific policy issue that had been substantially scoped previously such that extensive, pertinent background information already exists, e.g. (a) in an Issue Report for a possible PDP that was not initiated; (b) as part of a previous PDP that was not completed; or (c) through other projects such as a GGP.]

I have read the document and I do not understand how this WT fulfills the criteria for an EPDP. RPM phase 2 has not even started so which of these criteria does it adhere to? My worry is, and this is a way international orgs and governments function at ICANN, that they convened this group to get what they couldn't otherwise get in the previous recommendations, convened this group even before RPM phase 2 started and now we are looking to accommodate them somehow. If what I am laying out is more or less accurate, then I don't think this is an epdp and should be treated as such.

On Saturday, July 31, 2021, Tomslin Samme-Nlar <mesumbeslin at gmail.com<mailto:mesumbeslin at gmail.com>> wrote:
Dear members,

I bring to your attention the proposal below, relating to the IGO Work Track which was established with the following charter [ https://gnso.icann.org/sites/default/files/file/field-file-attach/rpms-charter-addendum-09jan20-en.pdf ] and on the assumption that RPM Phase 2 work would have started shortly after completion of Phase 1 of the RPM PDP.

The IGO WT is on track to deliver its initial report in September 2021. However, there are concerns that any forthcoming policy recommendations from the IGO Work Track will not have a procedural standing as the Work Track is currently orphaned and it is not known when RPM Phase 2 will start.

With this in mind, the GNSO council leadership is proposing that to ensure that any forthcoming Consensus Policy recommendations from the IGO Work Track have proper procedural standing, an expedited PDP (EPDP) on IGOs be convened. Further, this EPDP should be convened with the same scope of work and structure as the IGO Work Track.

Therefore, the Council leadership would like to know by 6 August 2021 (in 5 days time) if there are any objections to this proposal from NCSG.

Please let us know what you think.

Cheers,
Tomslin
@Twitter: https://twitter.com/tomsleen
@LinkedIn: https://www.linkedin.com/in/tomslin/

---------- Forwarded message ---------
From: Mary Wong via council <council at gnso.icann.org<mailto:council at gnso.icann.org>>
Date: Sat, 31 Jul 2021 at 02:19
Subject: [council] PLEASE READ: Request from Council leadership in relation to the IGO Work Track
To: council at gnso.icann.org<mailto:council at gnso.icann.org> <council at gnso.icann.org<mailto:council at gnso.icann.org>>

SENT ON BEHALF OF THE GNSO COUNCIL LEADERSHIP TEAM

Dear Councilors,

Please review the request below from Philippe and the GNSO Council leadership team. Thank you.

After the 22 July Council meeting, leadership has given additional thought to the agenda item regarding the IGO Work Track. As we discussed during the call, there were three components that we wanted to bring to your attention:

  1.  The need for a Program Change Request as a result of public comment moratorium – there were no objections on the call.
  2.  The ability of the IGO Work Track to develop Consensus Policy recommendations – this is the area we will focus on for immediate next steps.
  3.  Whether the IGO Work Track’s draft recommendations are “generally consistent” with the original IGO PDP Working Group’s recommendations #1-4 – to be addressed in the future.

Council leadership considers #1 above as done and would like to consider #2 and #3 separately: #2 should be considered now and #3 can be considered at a later date.

For #2, Council leadership has consulted with staff and, as a result, we request that the Council consider what appears to be the most sensible path forward to ensure that any forthcoming Consensus Policy recommendations from the IGO Work Track have proper procedural standing; viz., convene an expedited PDP (EPDP) on IGOs. Further, this EPDP should be convened with the same scope of work and structure as is currently outlined in the Addendum [gnso.icann.org]<https://urldefense.com/v3/__https:/gnso.icann.org/sites/default/files/file/field-file-attach/rpms-charter-addendum-09jan20-en.pdf__;!!PtGJab4!qoFL48st4hQY6S6OUWdtwEIHG_wLhtwsiPZOB6JFhlUmAB4ZdQKI0PUXPG9ISxrgJGwmbio$>, to the greatest extent possible.

What this would entail is: (1) preparing an EPDP initiation request; and (2) migrating the content of the Addendum to an EPDP Charter. Please consult with your respective SG/Cs and note any objections to this proposed direction by 6 August 2021.

Best regards,
Philippe
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--
Farzaneh

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