Statement on IFRC and IOC - Legitimacy of GNSO action on IFRC/IOC Policy

[Avri Doria]

Re: http://www.icann.org/en/news/public-comment/ioc-rcrc-proposal-02mar12-en.htm

In this statement I want to address the question of whether the current IFRC/IOC is a policy issue or an implementation issue and whether the GNSO is acting within its proper mandate and powers. The ICANN Board granted special protection to the International Federation of the Red Cross (IFRC) and to the International Olympic Committee (IOC). Was this policy or was this implementation?  What the Board's action legitimate?  The GNSO is planning to review a Drafting Teams recommendation on changes to the Boards decisions and the Staff's implementation. Is this action legitimate?

I will not discuss any of the specific details of the policy or the implementation issues involved in this decision, though I have discussed these issues in other comments.

In creating a new class of names, the modified reserved names, I think it is clear that the Board was making policy.  And  I beleive it is clear that it is made policy that is in disagreement with policy the GNSO already recommended and which the Board approved. While it is true that the Board may have circumvented the Multistakeholder process in doing so, I also beleive that the by-laws do not limit the Board in terms of making policy except for when the policy affect items within the picket fences of Registrar and Registry contractual conditions.  In fact in this case, if the Board approved this new modified reserve policy by a consensus greater that 2/3, it probably also met the conditions necessary to overrule a GNSO consensus policy recommendation, i.e. the new gTLD recommendations.  Though the fact that it did not explicitly state this in its decision, makes this pure speculation.

As a proponent of the Multistakeholder Process, and someone who believes that this is fundamental to ICANN and GNSO legitimacy I feel this was sub-optimal and something to be avoided.  I also beleive it was a legitimate action for the Board to take.  Unfortunate perhaps, but legitimate.

I do not know where the Board felt the line fell between the policy decision made by the Board and the Staff decision on how to implement the policy.  The Board notes don't seem to discriminate between the two.  In a sense, I take the creation of the new class of modified reserve names as policy and take the inclusion of only two organizations as perhaps a combination of policy and implementation.  Policy in the sense of the deffiniton of the class of entity that merits the extra protections, implementation in terms of creating a list of names to actually be protected.  Exactly where this line falls is probably worth further discussion, but I do not think it is material to this discussion.

In asking the GNSO to review this new Board originated policy, it is being asked to take a policy action, in that it is being asked to endorse or recommend modifications to the policy as approved by the Board.  If the list of names is implementation, then any GNSO consideration of the list of names would be an implementation guideline.

In terms of recommending policy, which is what an endorsement of the Board policy decision amounts to, I beleive that the GNSO must follow proper PDP guidelines.  It is improper and illegitimate for a Drafting Team to create a policy recommendation.  The mandate of an ad-hoc drafting team should not extend beyond the creation of the charter for a Working Group as there are no By-Laws or GNSO procedural bases for granting such powers to a Drafting Team. Drafting Teams have no authority for drafting policy recommendations themselves, only for proposing the charter by which a By-laws determined Working Group will fulfill such a task.  To not have immediately created a Working Group for this recommendation, when the task was first proposed, is a transgression of the GNSO policy process.  It is a return to the notion of the  GNSO as Legislature, something that is no longer allowed in the By-Laws.

It is my belief that because the GNSO Council did not follow proper process in developing the motion before the GNSO Council, the motion it proposes to vote on is an improper motion and one that must not be voted on.

As the Board decision was legitimate, there is no reason why the protections in the AGB should not stand as defined.  On the other hand, for the GNSO to properly fulfill its obligation to the Board and to the community in a review of this policy, a proper PDP process must be created and carried through to completion.  This requires an issues report and the full process that has been recently approved by the very council that now proposes circumventing all of its own rules.

I recommend that the GNSO replace its current motion with a call for an issues report on the possible creation of protections under discussion at the top and second level.

Avri Doria