WP2 Meeting #13 (5 October @ 20:00 UTC)

Attendees:

Sub-group Members: Alan Greenberg, Asha Hemrajani, Becky Burr, Chris Disspain, David McAuley, Gonzalo Navarro, Greg Shatan, Jorge Cancio, Kavouss Arasteh, Par Brumark, Steve DelBianco

Staff: Berry Cobb, Bernie Turcotte, Brenda Brewer

Apologies:

**Please let Brenda know if your name has been left off the list (attendees or apologies).**

Transcript

Recording

The Adobe Connect recording is available here: https://icann.adobeconnect.com/p36wjqh4574/
The audio recording is available here:

Notes

--These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript.

BBurr - Going over agenda slide. Funding costs, accessibility and independence and interlinked at some level.

Need to be certain that the dependence issue is on solid ground.

Is costing sustainable?

Is IRP really accessible.

The Board comment (MEM and IRP are essentailly the same for us) ICANN bare the cost the community requests and that traditional request from the commercial sector continued to be carried by both parties with the panel having discretion to allocate costs based on the merits of the case.

These issues should be summarized in a document for Dublin.

Re: Reconciling conflicting decisions of expert panels - ICANN suggesting that the policies should address this instead of IRP. This is good but should the IRP be the backstop in case some issues are not covered in the policy?

IRP could also covered fundamentally irrational decisions as per one commenter - this is a substantive comment which should be considered.

Other comments included IRP being applicable to the SMM for community accountability.

Some suggesting an abuse of discretions standard vs de novo which was supported by the ICANN Board.

A number of comments on Standing including a number of govts.

A few comments from IPC were interesting.

Also permissive filing vs abuse of the process.

Issues around preventing abuse.

Board suggesting rolling back to 2013 needs to be properly understood in our context.

This completes the overview of the big issues unless there are other issues?

SDB - RE C. Disspain requirement of restricting IRP - our text does not seem to address this? BB - was this about the global public interest? SDB CD believes it should only apply to the 5 powers.

BB - Global public interest as defined for ICANN.

DM - para 268.7 re community IRP has no limitations. CD may of been thinking of MEM which is limited to fundamental Bylaws

AG - SDB did CD think it was restricted? SDB yes

BB - there was no intent that the CCWG would have such limitations. We should ask Chris to detail his concern so WP2 can consider it.

KA - ICANN refers to MEM panel to review issues brought up by MEM group - this does not seem to be the same as IRP.

BB - correct - if we assume the MEM panel used the bylaws as a standard for review what would be the need for the IRP panel using the same standard? The response was that it may not be necessary. The group should discuss and make a decision. There seemed to be flexibility in the Board position on this point.

AG - Reconciliation issue was made by ALAC - if we leave this in we need to have appropriate output for doing this.

BB - ALAC points out a gap in IRP. Dowe think there is a purpose to be served by having a court of last resort if the policy is deficient.

DM - re divergent policy decisions should be handled in in the new gTLD policy directly.

AG - support DM but this time the Board said there was no provision for comparing decisions - in a future round it may be useful to have sanity checks but this is problematic vs TLDs already being delegated. Ultimately for panels - what is the resoort for someone identifying an issue - this would mean it would be good to have a last resort.

BB - Chris D has joined us. SDB explains the issue.

CD - Had understood that the community IRP was limited to a finding that the bylaws had not been followed - no finding of fact but rather be about process.

BB - Was more about the Board respecting the use of the community's powers vs ICANN not having respected its bylaws.

CD - understand - imagine there are 2 processes IRP and MEM. MEM was for the community IRP and therfore no need for a community IRP and the associated threshold - would the results be different in the areas of dispute discussed

BB - Yes there would be a difference in that ICANN would pay for it. Some in the community thought that the Trademark +50 violated the Bylaws but that IRP was too expensive to undertake. Howeever there are strongly held feelings in the community that they could gather support for a community based IRP without having to find funding.

CD - talking about 3 different things which is ok in principle - but the question is what is the practical threshold and across SOACs may be overly hard to acheive.

AG - Other example - go back to ICANN CERT, first big CCWG and supported by many members - could be against ICANN Bylaws but there can be no agreived parties therefore only the community could bring such and IRP.

KA - this is overly specific.

BB - we have reached the end of this subject having reached understanding. But appreciate it is difficult.

BB- Funding, costs, accessibility and independence issue re: comments. Some commercial interests thought it was important to give the panel the right to shift costs depending on the merits of the case. ICANN felt that its obligation to fund should be limited to community IRPs or MEMS. dOES ANYONE HAVE A VIEW ON THIS.

DM - Our proposal was reasonable where ICANN pays for the panel with some cost shifting. Re independence agree with BB's earlier comment that govts pay for courts. Accessibility - do not know what the solution would be.

BB - We seem to be converging and this should be included in the analysis,

BB - other topic = Participation in a PDP required before bringing and IRP? These were heard in the first round of comments and the group felt that this standard would be difficult to apply - people affected by ICANN policies may not know they will be affected - and settled on the current text in the second proposal. There were several comments that were concerned about this.

DM - Good summary. Make this an equitable defense? A subgroup could help create a valid solution.

BB - echoes a way forward for BB - May be useful to think of this in the context of abuse which could cover WAITING IN THE WEEDS.

BB - re the 2013 standard - the group really needs to explore what this implies.

AG- is it simply undoing the Bylaws that caused the change in 2013?

BB - There was a gap in understanding at the time....many detailed issues.

AG - re what is being proposed is simply to undo the Bylaw change regardless of anything else.

BB - possibly but there may be a possibility to close some gaps.

GS - On roll back to 2013 - we need to expalin it to participants so everyone understands the details to establish a common baseline.

BB - Prompt action to establish WS2 group for details. We will need an assignment on this issue.

BB - will send out a call for volounteers to address issues on the Major issues list. There is one additional issue which is a holdover from the discussion on AOC.

AG - can we get this done in time

DM - doubtful

BB - (Page 80 of proposal re AOC) concerning malicious issues etc. As part of the work in preparing the second report decided this was better suited to the reviews section. An issue that has surfaced with strong feelings is the no new gTLDs until....this is a new provision which is not in the AOC.

SDB - WP! while working on AOC as per comments on the first proposal. Only the Board disagreed stating it could be a barrier to entry. WP1 is considering keeping this. But this makes this cross over into this group

BB - Other comments on this.

AG - What if ICANN goes ahead with a new round of gTLDs knowing there are recommendations that have been made with out including them?

BB- current status on new gTLD review - SDB just beginning,

BB - Would a new PDP on this be held until the review is completed.

SDB - there are possibilities of a conflict. But we would expect that ICANN would wait for recommendations.

AG - remedial actions may take a long time - and we should not be bound on waiting for this. the last clause is too wide, recommendations for new rounds should only be applicable to new rounds.

BB - propose to expand the major issues list and make a call for volunteers to address these. On our next call we should discuss RFR and discuss the results of the last Friday meeting.

AG - can we get it done? The Board proposal may be reasonable

BB - good observation. Board and community are fairly close - as such it is important to the process for us to complete this to document the points of agreement of which there are many.

DM - Similar to AG comments - request we consider creating design teams a la CWG.

Alan Greenberg: So a commitment from the Board on what we agree on may be optimal. But that is a decision that perhaps we need to defer at the moment.

BB - take the point on. Other comments etc. There are hard issues from mission and core values. and will use the list to move this forward.

GS - some of the discussion on the list re Fiduciary Duties - which includes the Duty of Obedience. As such mission and core values have a very critical impact and as such we need to get it right.

BB- we will adjourn.

Documents Presented

Chat Transcript

Brenda Brewer 2: (10/5/2015 13:37) Welcome all to WP2 Meeting #13 on 5 October 2015 @ 20:00 UTC.

Pär Brumark (GAC Niue): (14:57) Hi Brenda and Kavouss!

Kavouss.arasteh: (14:59) Hi Par

jorge cancio (GAC Switzerland): (15:00) hi all

Bernard Turcotte Staff Support: (15:00) hello all

Pär Brumark (GAC Niue): (15:00) Hi all!

Becky Burr: (15:00) hello all

Gonzalo Navarro: (15:01) Hello

Gonzalo Navarro: (15:01) I´ll be with you during the first 30 minutes of the call

Brenda Brewer: (15:02) :)

Asha Hemrajani: (15:02) Good morning from Singapore

David McAuley: (15:02) Hello again

Bernard Turcotte Staff Support: (15:03) yescoming

David McAuley: (15:04) Thanks for sending it Becky, should help a lot

Bernard Turcotte Staff Support: (15:04) technical issues working on it

David McAuley: (15:07) Good point Becky

Kavouss.arasteh: (15:08) What do you mean by" Governmental Confusion "

Steve DelBianco [GNSO - CSG]: (15:11) Becky -- Chris Disspain said in LA that he thought the scope of a Community-based IRP was more limited than an IRP brought by an aggrieved party. We should discuss

Bernard Turcotte Staff Support: (15:16) Brazil and Spain I beleive

Gonzalo Navarro: (15:21) That´s one issue that deserves better clarification Steve in order to discuss it when necesssary

Steve DelBianco [GNSO - CSG]: (15:22) Gonzalo -- you were in LA, right? Can you shed light on Chris Disspain's concern?

Becky Burr: (15:23) Kavouss - I explained that I had misunderstood Spain's concern here and clarified that for the group

Asha Hemrajani: (15:23) Steve, Becky, Gonzalo - I suggest we take this back and check with Chris and we can revert.

Gonzalo Navarro: (15:24) That´s a good question Allan

Gonzalo Navarro: (15:24) I don´t remember exactly that section of the debate Stve,

Gonzalo Navarro: (15:24) to be fair

Gonzalo Navarro: (15:24) but again think is a point that needs better clarification

Asha Hemrajani: (15:25) Becky, I would be happy to check with Chris and revert

Alan Greenberg: (15:25) Chris is online on Skype now, perhaps someone can ask him.

Gonzalo Navarro: (15:25) if you want to raise it

Gonzalo Navarro: (15:26) and double check it before Dublin

Steve DelBianco [GNSO - CSG]: (15:26) I will ask Chris

Asha Hemrajani: (15:28) Steve, I have already asked Chris

David McAuley: (15:28) Agree with you Becky as to having one standing panel

Asha Hemrajani: (15:29) am waiting for his response

Gonzalo Navarro: (15:29) We will check Becky

David McAuley: (15:30) That's better

David McAuley: (15:34) That's right Alan - and I think a sanity check is on the list to develop in new rounds

Chris Disspain: (15:34) Becky I am here and happy to talk to the community irp ? at your call

David McAuley: (15:35) This was a fairly big gap in the just passed round

Becky Burr: (15:35) thanks Chris, we'll go to you next

David McAuley: (15:35) Good point Alan

David McAuley: (15:36) bad feedback

Brenda Brewer: (15:36) yes!

David McAuley: (15:36) welcome Chris

David McAuley: (15:37) yes

David McAuley: (15:38) Chris you also just mentioned binding arbitration - isn't that different than IRP

Brenda Brewer: (15:39) it is feedback from Chris D, microphone. Chris is now muted. Thank you!

Chris Disspain: (15:39) thanks Brenda...I will reposnd to becky

Brenda Brewer: (15:42) Chris is open

Brenda Brewer: (15:42) HIs line is open now

Steve DelBianco [GNSO - CSG]: (15:43) Because ICANN pays the lawyers if it's a Community-based IRP

Bernard Turcotte Staff Support: (15:47) Alan

Becky Burr: (15:50) so to clarify, when Chris refers to MEM, he is referring to the process through which the community seeks enforcement of its powers

David McAuley: (15:50) I am interested but not in converstaion Kavouss - this is importtant IMO

Gonzalo Navarro: (15:51) I´m sorry, but I have to leave now

David McAuley: (15:51) Thanks Gonzalo,

Gonzalo Navarro: (15:52) thanks for this interesting call. See you soon

David McAuley: (15:53) Becky, that was a call with the solution to all CCWG issues

Asha Hemrajani: (15:56) Speaking on my own behalf, agree with your point David, objectivity can be achieved...CCWG legal counsel is a good example

Steve DelBianco [GNSO - CSG]: (15:58) THat's a good explanation, Becky. If that was in the 2nd draft report, I think we would have had fewer 2nd requests

Becky Burr: (15:59) helpful Steve

Steve DelBianco [GNSO - CSG]: (16:00) plus what you are saying now --- there could be a way to penalize someone who abused the process

David McAuley: (16:02) That's what I thought too Alan

Asha Hemrajani: (16:06) @Becky yes will revert on the rollback to 2013 standard, what it is and what the rollback implies

David McAuley: (16:06) please mute if not speaking

Greg Shatan: (16:07) Please mute if you are turning pages.

Greg Shatan: (16:08) Dropping like flies?

Alan Greenberg: (16:08) It strikes me that we have a LOT of work to do to address all of what we have been discussing.

David McAuley: (16:08) +1 @Alan

Bernard Turcotte Staff Support: (16:09) Brenda will

Alan Greenberg: (16:09) Can we really complete this in the next week or so to be ready for a substantive (and QUICK) discussion in Dublin?

David McAuley: (16:10) I doubt it

David McAuley: (16:16) That does help Steve

Steve DelBianco [GNSO - CSG]: (16:16) +1 Alan

David McAuley: (16:16) That puts it well

Steve DelBianco [GNSO - CSG]: (16:17) figure a year for CCT review, then several months to implement changes to the application and Evaluation process.

Steve DelBianco [GNSO - CSG]: (16:17) It could take longer if new policy PDPs were generated thru the review

Steve DelBianco [GNSO - CSG]: (16:20) keep in mind, however, para 10 simply implements the commitment in para 1

Steve DelBianco [GNSO - CSG]: (16:20) Agree, Alan

Steve DelBianco [GNSO - CSG]: (16:21) Alan's hand is up to volunteer!

Steve DelBianco [GNSO - CSG]: (16:21) Just kidding, ALan

Greg Shatan: (16:22) Ain't no party like a work party!

Alan Greenberg: (16:24) @Becky, agree completely, but for that very reason, not sure our time is best used in doing the finishing work on this one

Becky Burr: (16:24) that's a point Alan

Alan Greenberg: (16:24) So a commitment from the Board on what we agree on may be optimal. But that is a decision that perhaps we need to defer at the moment.

David McAuley: (16:26) Agree with that assessment Becky

David McAuley: (16:27) Wonderful, thanks Becky

Pär Brumark (GAC Niue): (16:27) Thx, Bye all!

Bernard Turcotte Staff Support: (16:28) bye all

Asha Hemrajani: (16:28) Thank you Becky

Asha Hemrajani: (16:28) Bye

jorge cancio (GAC Switzerland): (16:28) bye

Greg Shatan: (16:28) Thank you Becky Sorry to have been late!