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Thx<br>
<br>
On 3/4/2011 9:49 AM, William Drake wrote:
<blockquote
cite="mid:D87DD0D9-8A66-45BF-A4EB-8D2E6D3E53D9@GRADUATEINSTITUTE.CH"
type="cite">Hi
<div><br>
<div>
<div>On Mar 1, 2011, at 1:28 AM, Milton L Mueller wrote:</div>
<br class="Apple-interchange-newline">
<blockquote type="cite"><span class="Apple-style-span"
style="border-collapse: separate; font-style: normal;
font-variant: normal; font-weight: normal; letter-spacing:
normal; line-height: normal; orphans: 2; text-indent: 0px;
text-transform: none; white-space: normal; widows: 2;
word-spacing: 0px;"><span class="Apple-style-span"
style="color: rgb(31, 73, 125);">Would appreciate a
report on your impressions.</span></span></blockquote>
</div>
<br>
<div>
<div style="margin: 0px; font: 24px Palatino;"><font
class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;">Wasn't
expecting to be writing one and haven't had time, but
ok.. </span></font><span class="Apple-style-span"
style="font-family: Arial; font-size: 18px;">I have a ton
of work to do before leaving town Monday for two weeks, so
this will be more a matter of sharing some impressions
than a full and systematic report. But hopefully it’s
useful nonetheless, and Avri and others who attended
physically or remotely can add their thoughts as well. In
addition, one imagines there will be some blogging on
Circle ID and related sites as soon as people are able to
digest the several hundred page transcript. In addition,
in a couple days ICANN should be providing a report with
the board’s assessment of the current state of play
regarding areas of (dis)agreement with the GAC.</span></div>
<div style="margin: 0px; font: 24px Palatino; min-height:
32px;"><font class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;"><br>
</span></font></div>
<div style="margin: 0px; font: 24px Palatino;"><font
class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;">Before
the meeting, the GAC provided a “scorecard” (a somewhat
revealing term) of its consensus positions on 12 new
gTLD topics on which it was at odds with ICANN <a
moz-do-not-send="true"
href="http://www.icann.org/en/topics/new-gtlds/gac-scorecard-23feb11-en.pdf">http://www.icann.org/en/topics/new-gtlds/gac-scorecard-23feb11-en.pdf</a>.
The scorecard built on the GAC’s Cartagena communiqué
and new member inputs, including the controversial US
doc discussed here previously. The purpose of the
meeting was to talk through the 12 and see on which the
differences could be narrowed or reconciled. The hope
was to take items off the table, leaving only the most
difficult ones to be addressed by a “bylaws
consultation” in SF. There the board could formally
tell the GAC that it does not accept its advice on any
irreconcilable items and would have to provide a
rationale for its decisions. </span></font></div>
<div style="margin: 0px; font: 24px Palatino; min-height:
32px;"><font class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;"><br>
</span></font></div>
<div style="margin: 0px; font: 24px Palatino;"><font
class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;">From
the outset, both sides worked to establish a cooperative
atmosphere and lots of nice words were exchanged etc.
But there were clearly tensions percolating below the
surface that would periodically bubble up in certain
exchanges, which occurred with increasing frequency as
we moved into the second day and spilled over into an
unplanned meeting on the third morning. Several
overarching problems became evident:</span></font></div>
<div style="margin: 0px; font: 24px Palatino; min-height:
32px;"><font class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;"><br>
</span></font></div>
<div style="margin: 0px; font: 24px Palatino;"><font
class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;">First,
there was a lot of mutual frustration about the process
leading up to the meeting. Many in “the community” were
miffed that the GAC had waited to formally put down its
markers until to the 11th hour, when the launch of new
gTLDs was thought to finally be imminent. Conversely,
the GAC maintained that it had in fact been providing
“advice” on its concerns since at least the March 2007
release of its new gTLD Principles, but that ICANN had
simply chosen not to take this seriously. Irrespective
of whether you think one or the other side is right
about that, clearly there hasn’t been enough good
communication and coordination and this disconnect
shouldn’t have been allowed to fester.</span></font></div>
<div style="margin: 0px; font: 24px Palatino; min-height:
32px;"><font class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;"><br>
</span></font></div>
<div style="margin: 0px; font: 24px Palatino;"><font
class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;">Second,
each side seemed to feel that the other didn’t
understand its constraints and procedures. On the one
hand, board members would note that many parties had
investors waiting impatiently and were facing financial
challenges, that the community had spent years working
on the Applicant Guidebook and forging difficult
consensuses, and that people would find it difficult to
accept this or that advice that ran counter to the AG or
introduced additional delays. On the other hand, GAC
members would argue that it’s just not possible for them
to work in a different and quicker manner since they
have various work responsibilities and participating in
GAC is just one of these; and that they have to
coordinate at each step of the way both internally with
their relevant ministries and other actors, and then
externally with each other. </span></font></div>
<div style="margin: 0px; font: 24px Palatino; min-height:
32px;"><font class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;"><br>
</span></font></div>
<div style="margin: 0px; font: 24px Palatino;"><font
class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;">Third
and relatedly, the two sides were differently enabled to
engage in bargaining. The ICANN model involves putting
the famous “good people” in board slots and giving them
the latitude to make judgments, engage in on-site
problem solving via break-out groups and other
techniques, adapt their positions to forge compromises,
etc. The government folks insisted they can’t work that
way, they come with fixed consensus positions and then
need to take each new bit from the other side back to
their capitals and into the GAC for re-coordination. As
such, they couldn’t give definitive statements of
agreement to board counterproposals, which left some
board members palpably frustrated. One might add that
it also seemed clear the board was better prepared and
more focused with respect to the substantive issues than
many of its counterparts, which is not too surprising
given their respective backgrounds, work
responsibilities, etc.</span></font></div>
<div style="margin: 0px; font: 24px Palatino; min-height:
32px;"><font class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;"><br>
</span></font></div>
<div style="margin: 0px; font: 24px Palatino;"><font
class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;">Fourth,
there were clearly very different expectations about
what happens next. The Board had announced in January
that it expected to hold an official “bylaws
consultation” in SF at which it presumably could
announce its final conclusions on what GAC advice it was
or wasn’t accepting with an eye to launching the round
thereafter. Indeed, some members argued that this
session meant that they were already in a bylaws
consultation. Key GAC members said they regarded all
this as premature and a bit offensive, i.e. as an effort
to push toward closure and a launch without fully
hearing the GAC out and taking its views on board.
Accordingly, they announced they didn’t want SF to be
labeled a formal bylaws consultation. This issue led to
a lot of heated exchanges on the last morning, so much
so that various speakers felt moved to say please let’s
pull back from the brink and not end in acrimony, etc. </span></font></div>
<div style="margin: 0px; font: 24px Palatino; min-height:
32px;"><font class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;"><br>
</span></font></div>
<div style="margin: 0px; font: 24px Palatino;"><font
class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;">Finally,
there were of course significant substantive differences
on the individual issues. Scanning the #ICANN twitter
feed would give NC members a good sense of how at least
some vocal observers viewed the GAC positions, which is
to say, not too positively. Not being inherently and
implacably anti-government, and recognizing that
“community positions” can bear a substantial imprint of
corporate power and self-interest, I guess my take on
these would be a bit kinder and more mixed than some
other folks’. Some of the GAC positions undoubtedly
ranged from ill-considered to terrible, or seemed like
state power grabbing or pure reflections of corporate
lobbying. Some were just a bit muddled, maybe not fully
thought through or of questionable ease of
implementation etc. But some were also reasonable
efforts to promote public or national interest
objectives that I’d be astonished and sometimes annoyed
for them not to advance. People can disagree about the
balance between these and other aspects in any given
instance…</span></font></div>
<div style="margin: 0px; font: 24px Palatino; min-height:
32px;"><font class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;"><br>
</span></font></div>
<div style="margin: 0px; font: 24px Palatino;"><font
class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;">In any
event, despite these tensions, it should be said that
the meeting managed to make some significant progress on
a number of specific points, and that overall the
participants were able to come away seeing this as a
constructive engagement on which to build. There was
unquestionably some convergence and increased mutual
understanding. The GAC communiqué, which I just
forwarded to the list, reflects that feeling, and
promisingly reiterates that GAC fully respects the
Board’s right under the bylaws not to accept its
advice. What it doesn’t say, but which must be weighing
on a lot of minds, is that pushing toward co-regulation
will entail a lot of risks for GAC members. I asked a
few whether they were really prepared to be vetting
hundreds of applications and for the heat they might
take not only for opposing some but, by implication,
accepting the others, and got rather downbeat
responses. Not sure I’d want to be in their shoes…</span></font></div>
<div style="margin: 0px; font: 24px Palatino; min-height:
32px;"><font class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;"><br>
</span></font></div>
<div style="margin: 0px; font: 24px Palatino;"><font
class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;">Turning
briefly from process and atmosphere to substance, the
methodology the board adopted was to assign each of the
GAC proposals (some of which contained multiple
issues/elements) one of three ratings: 1A), advice that
it can easily accept and adopt; 1B), advice it accepts
in principle but thinks more work is needed to elaborate
and implement it; and 2) advice on which it just doesn’t
agree with GAC. The 2’s would be the main challenge
whenever a bylaws consultation is consensually
undertaken. Per previous, ICANN’s supposed to provide
an overview of these ratings across the 12 issue areas
in the coming days, at which point it will be easier to
consider them in NCUC/SG. I really can’t dig through
the transcript right now to try to pull out and list
each rating, and anyway my recollection is that PDT’s
statements on at least some weren’t entirely clear and
definitive anyway. But I can mention a few key bits of
particular local concern:</span></font></div>
<div style="margin: 0px; font: 24px Palatino; min-height:
32px;"><font class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;"><br>
</span></font></div>
<div style="margin: 0px; font: 24px Palatino;"><font
class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;">On the
objection procedures, the Board seems inclined to relent
on the requirements for governments to pay fees, at
least under certain circumstances, 1B. Irrespective of
what you make of the claim that they can’t pay a company
for services because they’re sovereigns etc, I’d say if
this gets a big bone of contention out of the way, give
it to them and ICANN can figure out how to deal with the
financial consequences. On the GAC’s objection to being
bound by determinations of the ICC, to be honest I can’t
find what the Board said in my notes, hopefully Avri
remembers…</span></font></div>
<div style="margin: 0px; font: 24px Palatino; min-height:
32px;"><font class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;"><br>
</span></font></div>
<div style="margin: 0px; font: 24px Palatino;"><font
class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;"> On
the procedures for the review of sensitive strings: as
we know, the seemingly draconian approach suggested in
the US input doc was not taken on board in the scorecard
after some of the other governments balked. The
scorecard says that any GAC member may raise an
objection to a proposed string for any reason, and that
the GAC will consider any objection and agree on advice
to forward to the ICANN Board. While the former is too
expansive and should be bound by some principles, the
latter is consistent with the status quo.</span></font></div>
<div style="margin: 0px; font: 24px Palatino; min-height:
32px;"><font class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;"><br>
</span></font></div>
<div style="margin: 0px; font: 24px Palatino;"><font
class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;">Maybe
as a side note I should say that Avri and I had a long
lunch talk with the lead USG person and talked about
this in some detail. She insisted that the US doc was
being misread out of context, in that is was geared
toward internal GAC discussions and what their position
should be, rather than some sort of new
externally-oriented pronouncement that changes GAC’s
bylaws role from advise to command. That is, “If it is
the consensus position of the GAC not to oppose
objection raised by a GAC member or members, ICANN shall
reject the application,” meant that the GAC’s advise
would be to reject, not that the Board would be bound to
reject. At the same time, there was a bit of a waffle
here, since she also felt it’d be exceptionally
ill-advised to go forward over GAC objections, and Larry
Stickling’s much quoted Flatirons speech in February
stated that the Board “would have little choice but to
reject the application.” Not that it legally couldn’t
under the bylaws, but that it’d be stupid and
self-destructive to do so, and presumably political
pressure would be brought to bear to persuade it.</span></font></div>
<div style="margin: 0px; font: 24px Palatino; min-height:
32px;"><font class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;"><br>
</span></font></div>
<div style="margin: 0px; font: 24px Palatino;"><font
class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;">The
larger point she really emphasized was, as suspected,
about ICANN’s preservation in the face of calls in the
UN for intergovernmentalism. As we know, Brazil, India,
South Africa and China have called for a new
intergovernmental body with global Internet public
policy responsibilities, and there’s fear that this and
other proposals could morph into pressures for oversight
or control of ICANN. The USG appears to be getting
seriously worried that if more governments lock into a
view that they cannot get their way with ICANN on
matters they consider to be fundamental national
interests, and/or that ICANN’s is irredeemably
accountable to the broader international community,
they’ll become more receptive to considering
intergovernmental alternatives. One can debate whether
that concern justifies the kinds of language used in the
US input doc, and indeed we should at the NCUC event in
San Francisco. But I do think they’re getting worried,
as Stickling’s speech underscores. See also the
Washington Post article the other day about how the
Obama Administration is becoming a critic of ICANN, as
well as Stickling’s testy December letter to Beckstrom….</span></font></div>
<div style="margin: 0px; font: 24px Palatino; min-height:
32px;"><font class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;"><br>
</span></font></div>
<div style="margin: 0px; font: 24px Palatino;"><font
class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;">On
other points discussed previously here: Re:
registry/registrar separation, PDT characterized the
board as agreeing with GAC that when there is market
power, then there needs to be separation, but maintained
that the Board has developed a better model for
assessing and dealing with such circumstances. And as
for the trademark stuff, there seemed to be Board
movement toward the GAC concerns on many specific
issues, a lot of 1A’s and 1B’s as I recall, but a few
key 2’ as well. Again, the ICANN doc (another
“scorecard?”) should be out soon with that listing, and
in the meanwhile we have Konstantinos’ excellent blog
analysis.</span></font></div>
<div style="margin: 0px; font: 24px Palatino; min-height:
32px;"><font class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;"><br>
</span></font></div>
<div style="margin: 0px; font: 24px Palatino;"><font
class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;">I
really do have to work on my course lectures, so this
will have to suffice for now as a starting point, and
hopefully others can fill in the picture on the zillion
issues not mentioned.</span></font></div>
<div style="margin: 0px; font: 24px Palatino; min-height:
32px;"><font class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;"><br>
</span></font></div>
<div style="margin: 0px; font: 24px Palatino;"><font
class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;">Cheers,</span></font></div>
<div style="margin: 0px; font: 24px Palatino; min-height:
32px;"><font class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;"><br>
</span></font></div>
<div style="margin: 0px; font: 24px Palatino;"><font
class="Apple-style-span" size="5" face="Arial"><span
class="Apple-style-span" style="font-size: 18px;">Bill</span></font></div>
</div>
</div>
</blockquote>
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