[PC-NCSG] we need to challenge the daft BGC recommendation that ICANN staff can over-rule the community on policy decisions

[Robin Gross]

It would be great if we could get some feedback from our GNSO Councilors on the suggestion to challenge this BGC recommendation and request a discussion with BGC.

Thanks,
Robin


On Jun 5, 2013, at 2:48 PM, Robin Gross wrote:

> I post below some discussion on GNSO Council list on NCSG's request involving Jeff Neuman and Steve Crocker today:
> 
> http://gnso.icann.org/mailing-lists/archives/council/msg14632.html
> <<< Chronological Index >>>    <<< Thread Index    
> [council] RE: Agenda - 11 June 2013 - New gTLD Program Committee
> 
> To: "'Steve Crocker'" <steve at xxxxxxxxxxxx>
> Subject: [council] RE: Agenda - 11 June 2013 - New gTLD Program Committee
> From: "Neuman, Jeff" <Jeff.Neuman at xxxxxxxxxx>
> Date: Wed, 5 Jun 2013 21:28:34 +0000
> Accept-language: en-US
> Cc: "'Bruce Tonkin'" <Bruce.Tonkin at xxxxxxxxxxxxxxxxxx>, "'council at xxxxxxxxxxxxxx'" <council at xxxxxxxxxxxxxx>, "'Cyrus Namazi'" <cyrus.namazi at xxxxxxxxx>, 'Fadi Chehad?'	<fadi.chehade at xxxxxxxxx>, "'Cherine Chalaby (cherine.chalaby at xxxxxxxxx)'"	<cherine.chalaby at xxxxxxxxx>
> In-reply-to: <F0FC343E-3BED-4BC5-BD96-99141CFB27E0 at shinkuro.com>
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> References: <263EE96C7DADD44CB3D5A07DBD41D0E83E4D45F5 at bne3-0001mitmbx.corp.mit> <AA2CD321EE9B1F4D99ECFC1A2B03423208878E at stntexmb12.cis.neustar.com> <F0FC343E-3BED-4BC5-BD96-99141CFB27E0 at shinkuro.com>
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> Thread-topic: Agenda - 11 June 2013 - New gTLD Program Committee
> Steve,
> 
> Yes, thanks for the correction that it will be the new gTLD Program Committee 
> that will be considering the BGC recommendation on the 11th (2 days before the 
> GNSO Council Meeting).  I was planning on doing a presentation to the council 
> on the 13th about the recommendation.  
> 
> In short, the BGC's recommendation basically (1) Assumes that if an issue 
> involves "implementation", then there is no reason to look to the bottom-up 
> process to get advice on that issue (and if they do get advice (even consensus 
> advice), they can ignore it and go with whatever ICANN staff recommends; (2)  
> the ICANN Staff/Board is the sole arbiter in deciding whether something is 
> Policy or Implementation regardless of whether the group charged under the 
> bylaws with developing policies (here, the GNSO) believe that the issue does 
> involve policy; and (3) there is no meaningful review process or accountability 
> if the community believes that ICANN Staff's determination on whether something 
> is policy or not is plain wrong.  The fact that Reconsideration never looks at 
> the substance of the issue at hand, but only looks to whether a process was 
> followed is incredibly problematic.  
> 
> In this recommendation, although the GNSO strongly stated the Trademark plus 50 
> decision was in fact policy (with one group issuing a minority opinion) and the 
> ICANN staff initially agreed it could be considered policy, ICANN staff later 
> decided on its own that it was implementation.  Because ICANN Staff is not 
> bound to accept the finding of the GNSO that it was policy, and ICANN staff 
> labeled it implementation, ICANN staff was free to make the changes as it saw 
> fit (again with no review).    So essentially the recommendation states: (1) 
> ICANN staff determined that it was implementation, (2) there is and can be no 
> review of that decision through the reconsideration process, and (3) there is 
> no requirement that ICANN staff get input from the community or even listen to 
> the community if the ICANN staff determines that something is implementation.  
> 
> To add insult to injury, the outside law firm that wrote the recommendation 
> wrote it in the style of a litigation brief making such ludicrous arguments 
> (which cannot be reviewed), like [and I am paraphrasing]:  "Yes, the ICANN CEO 
> said previously that this issue CAN be considered policy."  It goes on to state 
> that the CEO  carefully chose this word because in saying that it "CAN" be 
> policy, that also equally means that it might not be policy and therefore the 
> written statement by the CEO was not an admission that it was in fact policy. I 
> find this argument insulting. Is this really what we expect of ICANN as an 
> multi-stakeholder organization?  Namely, to consistently use weasel words 
> (reviewed by legal counsel) so that one day if ever questioned on a statement 
> he or she made, the legal team can find a loophole and get out of a commitment 
> that ICANN makes.  Shouldn't we expect more from an organization that is 
> supposed to look out for the public interest?
> 
> Steve - In the end I could care less about the substantive decision to allow 
> the Trademark plus 50 (although a number of people do care about this).  The 
> decision was made and my registry will implement that decision because we have 
> to.  However, there were probably 50 other ways that ICANN's BGC could have 
> justified the decision it made.  I would rather have ICANN apologize for the 
> way it handled the situation, promise that it won't happen again that way, and 
> then move on to the real work of implementing the new gTLDs.  Instead, we got 
> an overly legalistic brief which is an after-the-fact justification for what 
> they did using a rationale that destroys the multi-stakeholder model.
> 
> I intend to provide more information during the Council meeting and would 
> encourage attendance from the BGC.  However, I would ask that the New gTLD 
> Program Committee not proceed on making a decision on this recommendation until 
> it could be adequately discussed by the community.  
> 
> Sorry for the long note and I would be happy to give more concrete examples 
> from the recommendation.  I just ask for more time.
> 
> Thanks.
> 
> -----Original Message-----
> From: Steve Crocker [mailto:steve at xxxxxxxxxxxx] 
> Sent: Wednesday, June 05, 2013 3:47 PM
> To: Neuman, Jeff
> Cc: Steve Crocker; Bruce Tonkin; council at xxxxxxxxxxxxxx; Cyrus Namazi; Fadi 
> Chehad?; Cherine Chalaby (cherine.chalaby at xxxxxxxxx)
> Subject: Re: Agenda - 11 June 2013 - New gTLD Program Committee
> 
> Jeff,
> 
> I think you're asking the New gTLD Program Committee to defer voting on the 
> BGC's recommendation.  This matter is not in front of the full Board, and the 
> full Board isn't meeting until June 27.
> 
> That said, I'm curious as to the substance of your objection.  Have you written 
> anything about it?
> 
> Thanks,
> 
> Steve
> 
> On Jun 5, 2013, at 10:16 PM, "Neuman, Jeff" <Jeff.Neuman at xxxxxxxxxx> wrote:
> 
> > Bruce,
> > 
> > Am I correct that the Board will be discussing and adopting the BGC's 
> > recommendation on the NCSG Reconsideration Request?
> > 
> > As you know, the GNSO has scheduled this item to discuss on our next Council 
> > call on the 13th (2 days after the scheduled ICANN Board meeting).  A number 
> > of us on the GNSO completely disagree with the rationale that was used to 
> > justify the outcome (even if we do not dispute the outcome).  We believe that 
> > the BGC's rationale will undermine the entire bottom-up multi-stakeholder 
> > model (as in my previous e-mail to the council which I have attached).  
> > 
> > We therefore respectfully ask that the ICANN Board delay any decision on this 
> > reconsideration request until it has had time to listen to the GNSO Council 
> > and its members on our thoughts about this decision.  I personally believe if 
> > the Board adopts this recommendation (more particularly the rationale for the 
> > recommendation), the Board will have not officially put the nail in the 
> > coffin for the Reconsideration process as an accountability measure, but will 
> > have also the multi-stakeholder bottom up model as we know it.
> > 
> > I have included Fadi and Steve (which I have rarely if ever done before) on 
> > this e-mail to stress the importance of this issue and plea for the Board to 
> > forgo any definitive action on this request until such time that we can be 
> > heard.  We also ask whether anyone from the BGC could be available to discuss 
> > this issue with us on the GNSO Council call. 
> > 
> > P.S.....I do want to stress that Neustar takes no position as to whether the 
> > Trademark Claims plus 50 should or should not be in place as an RPM.  Rather, 
> > we strongly disagree with the assumptions and fundamentally-flawed rationale 
> > in the BGC's recommendation.
> > 
> > Best regards,
> > 
> > 
> > Jeffrey J. Neuman 
> 
> 
> 
> 
> On Jun 5, 2013, at 10:54 AM, Avri Doria wrote:
> 
>> good idea.
>> 
>> avri
>> 
>> On 5 Jun 2013, at 13:30, Robin Gross wrote:
>> 
>>> ..... I should add that we need to make that request to BGC for a discussion very soon.  The recommendation is on the board's agenda to be rubber stamped on 11 June:
>>> http://gnso.icann.org/mailing-lists/archives/council/msg14630.html
>>> 
>>> (not sure why it is on the agenda of the new gtld program cmte and not the entire board though)
>>> 
>>> 
>>> 
>>> On Jun 5, 2013, at 10:21 AM, Robin Gross wrote:
>>> 
>>>> NCSG-PC Members:
>>>> 
>>>> I'd like to propose that we request a meeting with the Board Governance Committee to discuss its recommendation on our request for consideration and its underlying rationale which has major implications for the bottom-up policy development model.  The recommendation was obviously drafted by legal counsel (probably the same legal counsel who drafted the policy we are challenging).   And if it stands it does mean there is no bottom-up policy development at ICANN - it is a huge power grab by ICANN staff to take policy development entirely away from the community and put it in their unaccountable hands.  Even folks like Jeff Neuman who do not have an opinion on the underlying TM+50 issue are terribly concerned for what the recommendation means for the entire bottom-up policy model ICANN claims to champion.
>>>> 
>>>> I also think we should file for an Independent Review of the decision - since its daft logic will not be so easily swallowed by an independent arbiter.  So we need to develop a plan for challenging this BGC recommendation and put it into action quickly.  I know Ed has done some initial research on this for us.
>>>> 
>>>> Any thoughts, suggestions, comments on this?
>>>> 
>>>> Thanks,
>>>> Robin
>>>> 
>>>> 
>>>> http://domainincite.com/13136-the-true-historie-of-trademark50-and-the-deathe-of-the-gnso-parte-the-thirde
>>>> 
>>>> The True Historie of Trademark+50 and the Deathe of the GNSO (Parte the Thirde)
>>>> 
>>>> Kevin Murphy, May 28, 2013, 13:44:03 (UTC), Domain Policy
>>>> ICANN?s decision to press ahead with the ?Trademark+50? trademark protection mechanism over the objections of much of the community may not be the end of the controversy.
>>>> 
>>>> Some in the Generic Names Supporting Organization are even complaining that ICANN?s rejection of a recent challenge to the proposal may ?fundamentally alter the multi-stakeholder model?.
>>>> 
>>>> Trademark+50 is the recently devised adjunct to the suite of rights protection mechanisms created specially for the new gTLD program.
>>>> 
>>>> It will enable trademark owners to add up to 50 strings to each record they have in the Trademark Clearinghouse, where those strings have been previously ruled abusive under UDRP.
>>>> 
>>>> Once in the TMCH, they will generate Trademark Claims notices for both the trademark owner and the would-be registrant of the matching domain name during the first 60 days of general availability in each new gTLD.
>>>> 
>>>> Guinness, for example, will be able to add ?guinness-sucks? to its TMCH record for ?Guinness? because it has previously won guinness-sucks.com in a UDRP decision.
>>>> 
>>>> If somebody then tries to register guinness-sucks.beer, they?ll get a warning that they may be about to infringe Guinness? trademark rights. If they go ahead and register anyway, Guinness will also get an alert.
>>>> 
>>>> Trademark+50 was created jointly by ICANN?s Business Constituency and Intellectual Property Constituency late last year as one of a raft of measures designed to strengthen rights protection in new gTLDs.
>>>> 
>>>> They then managed to persuade CEO Fadi Chehade, who was at the time still pretty new and didn?t fully appreciate the history of conflict over these issues, to convene a series of invitation-only meetings in Brussels and Los Angeles to try to get other community members to agree to the proposals.
>>>> 
>>>> These meetings came up with the ?strawman solution?, a list of proposed changes to the program?s rights protection mechanisms.
>>>> 
>>>> Until two weeks ago, when DI managed to get ICANN to publish a transcript and audio recording of the LA meetings, what was said during these meetings was shrouded in a certain degree of secrecy.
>>>> 
>>>> I don?t know why. Having listened to the 20-hour recording, I can tell you there was very little said that you wouldn?t hear during a regular on-the-record public ICANN meeting.
>>>> 
>>>> Everyone appeared to act in good faith, bringing new ideas and suggestions to the table in an attempt to find a solution that was acceptable to all.
>>>> 
>>>> The strongest resistance to the strawman came, in my view, from the very small number (only one remained by the end) of non-commercial interests who had been invited, and from the registrars.
>>>> 
>>>> The non-coms were worried about the ?chilling effect? of expanding trademark rights, while registrars were worried that they would end up carrying the cost of supporting confused or frightened registrants.
>>>> 
>>>> What did emerge during the LA meeting was quite a heated discussion about whether the IPC/BC proposals should be considered merely ?implementation? details or the creation of new ?policy?.
>>>> 
>>>> That debate spilled over into 2013.
>>>> 
>>>> Under the very strictest definition of ?policy?, it could be argued that pretty much every aspect of every new rights protection mechanism in the Applicant Guidebook is ?implementation?.
>>>> 
>>>> The only hard policy the GNSO came up with on trademarks in new gTLDs was back in 2008. It reads:
>>>> 
>>>> Strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law.
>>>> 
>>>> Pretty much everything that has come since has been cobbled together from community discussions, ad hoc working groups, ICANN staff ?synthesis? of public comments, and board action.
>>>> 
>>>> But many in the ICANN community ? mainly registries, registrars and non-commercial interests ? say that anything that appears to create new rights and/or imposes significant new burdens on the industry should be considered ?policy?.
>>>> 
>>>> During the LA meetings, there was broad agreement that stuff like extending Trademark Claims from 60 to 90 days and instituting a mandatory 30-day notice period before each Sunrise period was ?implementation?.
>>>> 
>>>> Those changes won?t really incur any major new costs for the industry; they merely tweak systems that already have broad, if sometimes grudging, community support.
>>>> 
>>>> But the attendees were split (IPC/BC on the one side, most everyone else on the other) about whether Trademark+50, among other items, was new policy or just an implementation detail.
>>>> 
>>>> If something is ?policy? there are community processes to deal with it. If it?s implementation it can be turned over to ICANN staff and forgotten.
>>>> 
>>>> Because the registries and registrars have an effective veto on GNSO policy-making and tend to vote as a bloc, many others view a ?policy? label as a death sentence for something they want done.
>>>> 
>>>> A month after the strawman meetings, in early December, ICANN staff produced a briefing paper on the strawman solution (pdf) for public comment. Describing what we?re now calling Trademark+50, the paper stated quite unambiguously (it seemed at the time):
>>>> 
>>>> The inclusion of strings previously found to be abusively registered in the Clearinghouse for purposes of Trademark Claims can be considered a policy matter.
>>>> 
>>>> Chehade had previously ? before the strawman meetings ? strongly suggested in a letter to members of the US Congress that Trademark+50 was not doable:
>>>> 
>>>> It is important to note that the Trademark Clearinghouse is intended be a repository for existing legal rights, and not an adjudicator of such rights or creator of new rights. Extending the protections offered through the Trademark Clearinghouse to any form of name (such as the mark + generic term suggested in your letter) would potentially expand rights beyond those granted under trademark law and put the Clearinghouse in the role of making determinations as to the scope of particular rights.
>>>> 
>>>> Personally, I doubt then-new Chehade wrote the letter (at least, not without help). It mirrors Beckstrom-era arguments and language and contrasts with a lot of what he?s said since.
>>>> 
>>>> But it?s a pretty clear statement from ICANN?s CEO that the expansion of Trademark Claims to Trademark+50 night expand trademark rights and, implicitly, is not some throwaway implementation detail.
>>>> 
>>>> Nevertheless, a day after the staff briefing paper Chehade wrote to GNSO Council chair Jonathan Robinson in early December to ask for ?policy guidance? on the proposal.
>>>> 
>>>> Again, there was a strong suggestion that ICANN was viewing Trademark+50 as a policy issue that would probably require GNSO input.
>>>> 
>>>> Robinson replied at the end of February, after some very difficult GNSO Council discussions, saying ?the majority of the council feels that is proposal is best addressed as a policy concern?.
>>>> 
>>>> The IPC disagreed with this majority view, no doubt afraid that a ?policy? tag would lead to Trademark+50 being gutted by the other GNSO constituencies over the space of months or years.
>>>> 
>>>> But despite ICANN staff, most of the GNSO Council and apparently Chehade himself concluding that Trademark+50 was policy, staff did a U-turn in March and decided to go ahead with Trademark+50 after all.
>>>> 
>>>> An unsigned March 20 staff report states:
>>>> 
>>>> Having reviewed and balanced all feedback, this proposal appears to be a reasonable add-on to an existing service, rather than a proposed new service.
>>>> 
>>>> ?
>>>> 
>>>> It is difficult to justify omission of a readily available mechanism which would strengthen the trademark protection available through the Clearinghouse. Given that the proposal relies on determinations that have already been made independently through established processes, and that the scope of protection is bounded by this, concerns about undue expansion of rights do not seem necessary.
>>>> 
>>>> This caught the GNSO off-guard; Trademark+50 had looked like it was going down the policy track and all of a sudden it was a pressing reality of implementation.
>>>> 
>>>> Outraged, the Non-Commercial Stakeholders Group, which had been the strongest (if smallest through no fault of their own) voice against the proposal during the strawman meetings filed a formal Reconsideration Request (pdf) with ICANN.
>>>> 
>>>> Reconsideration Requests are one of the oversight mechanisms built into ICANN?s bylaws. They?re adjudicated by ICANN?s own Board Governance Committee and never succeed.
>>>> 
>>>> In its request, the NCSG told a pretty similar history to the one I?ve just finished relating and asked the BGC to overturn the staff decision to treat Trademark+50 as implementation.
>>>> 
>>>> The NCSG notes, rightly, that just because a domain has been lost at UDRP the string itself is not necessarily inherently abusive. To win a UDRP a complainant must also demonstrate the registrant?s bad faith and lack of rights to the string at issue.
>>>> 
>>>> To return to the earlier example, when notorious cybersquatter John Zuccarini ? an unambiguously bad guy ? registered guinness-sucks.com back in 2000 he told Guinness he?d done it just to piss them off.
>>>> 
>>>> That doesn?t mean guinness-sucks.beer is inherently bad, however. In many jurisdictions I would be well within my rights to register the domain to host a site criticizing the filthy brown muck.
>>>> 
>>>> But if I try to register the name, I?m going to get a Trademark Claims notice asking me to verify that I?m not going to infringe Guinness? legal rights and advising me to consult a lawyer.
>>>> 
>>>> Chilling effect? Maybe. My own view is that many people will just click through the notice as easily as they click through the Ts&Cs on any other web site or piece of software.
>>>> 
>>>> Either way, I won?t be able to claim in court that I?d never heard of GuinnessTM, should the company ever decide to sue me.
>>>> 
>>>> Anyway, the NCSG?s Reconsideration Request failed. On May 16 the BGC issued a 15-page determination (pdf) denying it.
>>>> 
>>>> It?s this document that?s causing consternation and death-of-the-GNSO mutterings right now.
>>>> 
>>>> Last week, Neustar?s lead ICANN wonk Jeff Neuman asked for the Reconsideration Request to be put on the agenda of the GNSO Council?s June 13 meeting. He wants BGC representatives to join the call too. He wrote:
>>>> 
>>>> This decision was clearly written by legal counsel (and probably from outside legal counsel). It was written as a legal brief in litigation would be written, and if upheld, can undermine the entire bottom-up multi-stakeholder model. If ICANN wanted to justify their decision to protect their proclamation for the 50 variations, they could have done it in a number of ways that would have been more palatable. Instead, they used this Reconsideration Process as a way to fundamentally alter the multi-stakeholder model. It not only demonstrates how meaningless the Reconsideration process is as an accountability measure, but also sends a signal of things to come if we do not step in.
>>>> 
>>>> He has support from other councilors.
>>>> 
>>>> I suspect the registries that Neuman represents on the Council are not so much concerned with Trademark+50 itself, more with the way ICANN has forced the issue through over their objections.
>>>> 
>>>> The registries, remember, are already nervous as hell about the possibility of ICANN taking unilateral action to amend their contracts in future, and bad decision-making practices now may set bad precedents.
>>>> 
>>>> But Neuman has a point about the legalistic way in which the Reconsideration Request was handled. I spotted a fair few examples in the decision of what can only be described as, frankly, lawyer bullshit.
>>>> 
>>>> For example, the NCSG used Chehade?s letter to Congress as an example of why Trademark+50 should be and was being considered ?policy?, but the BGC deliberately misses the point in its response, stating:
>>>> 
>>>> The NCSG fails to explain, however, is how ICANN policy can be created through a proclamation in a letter to Congress without following ICANN policy development procedures. To be clear, ICANN cannot create policy in this fashion.
>>>> 
>>>> Only a lawyer could come up with this kind of pedantic misinterpretation.
>>>> 
>>>> The NCSG wasn?t arguing that Chehade?s letter to Congress created a new policy, it was arguing that he was explaining an existing policy. It was attempting to say ?Hey, even Fadi thought this was policy.?
>>>> 
>>>> Strike two: the NCSG had also pointed to the aforementioned staff determination, since reversed, that Trademark+50 was a policy matter, but the BCG?s response was, again, legalistic.
>>>> 
>>>> It noted that staff only said Trademark+50 ?can? be considered a policy matter (rather than ?is?, one assumes), again ignoring the full context of the document.
>>>> 
>>>> In context, both the Chehade letter and the March staff document make specific reference to the fact that the Implementation Recommendation Team had decided back in 2009 that only strings that exactly match trademarks should be protected. But the BGC does not mention the IRT once in its decision.
>>>> 
>>>> Strike three: the BGC response discounted Chehade?s request for GNSO ?policy guidance? as an ?inartful phrase?. He wasn?t really saying it was a policy matter, apparently. No.
>>>> 
>>>> Taken as a whole, the BGC rejection of the Reconsideration Request comes across like it was written by somebody trying to justify a fait accompli, trying to make the rationale fit the decision.
>>>> 
>>>> In my view, Trademark+50 is quite a sensible compromise proposal with little serious downside.
>>>> 
>>>> I think it will help trademark owners lower their enforcement costs and the impact on registrars, registries and registrants? rights is likely to be minimal.
>>>> 
>>>> But the way it?s being levered through ICANN ? unnecessarily secretive discussions followed by badly explained U-turns ? looks dishonest.
>>>> 
>>>> It doesn?t come across like ICANN is playing fair, no matter how noble its intentions.
>>>> 
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