Transcript of NCSG session with ICANN Board of Directors in Toronto

[Robin Gross]

Transcript of NCSG session with ICANN Board of Directors in Toronto
below.

>
> Board Session with NCSG
>
> 16 October 2012
>
>
>
>
>
>  >>BRUCE TONKIN:  If I could just get everybody to take their
> seats, so that we can start this session between the board and the
> noncommercial stakeholder group.
>
>
>
>  Up on the screen are the list of topics that we've received from
> the noncommercial stakeholders group, which you see is concerns
> over the RAA negotiations, safeguarding the integrity of the policy
> development process, and human rights concerns in the ICANN policy
> development process.
>
>
>
>  So over to whoever from the noncommercial stakeholder group wants
> to pick up, perhaps, the first topic.
>
>
>
>  >>WENDY SELTZER:  Thank you, Bruce.  I'll kick that off as we, at
> the noncommercial stakeholders, reached out to data protection
> authorities and privacy interest groups to share thoughts about the
> law enforcement demands in the RAA negotiations, and we're very
> pleased to hear back from the Article 29 working party that --
> confirming concerns that we had raised that the proposals that law
> enforce- -- that we were being told were sort of global law
> enforcement concerns, in fact, hadn't been vetted through the
> privacy officials who are also law enforcement in various
> jurisdictions, and that they had live concerns with data retention
> periods, with WHOIS validation and publication requirements.
>
>
>
>  We also heard from a Chilean human rights group, Derechos
> Digitales, telling us that it's not just Europe.  In Latin America,
> there are similar privacy concerns.
>
>
>
>  So we think that reinforces what we've been saying, that this
> needs to be a broader conversation, or perhaps a narrower
> conversation.  Perhaps the agreements signed into contracts should
> be minimal requirements that can adapt to the different
> jurisdictional demands in the various places that ICANN is entering
> contracts with registrars.
>
>
>
>  We don't need all of this, and need to go back to those law
> enforcement agencies making demands to say, "Bring back a
> consensus, not just a statement that" -- or "Bring back the actual
> -- the full position in your countries, not just one side of that."
>
>
>
>  >>BRUCE TONKIN:  Thank you, Wendy.  Well, certainly I think that
> -- do we have any board members that want to comment on this topic?
>
>
>
>  Erika.
>
>
>
>  >>ERIKA MANN:  I think Wendy pointed out to an interesting topic,
> and I think she is -- she's right.  In an ideal scenario, it would
> have been good to have a complete understanding from a country
> perspective, including the understanding of data privacy authorities.
>
>
>
>  It -- I just would urge us to evaluate the Article 29 working
> party position in the light -- the way it was drafted.  I mean, it
> was done very late and the complete understanding of our
> environment, it's not always easy to grasp.
>
>
>
>  So I wonder, Wendy, how you -- what kind of recommendation you
> would love to make, because I mean, it's a position which is now on
> the table and the European Commission certainly will have to
> comment on it.
>
>
>
>  The question is:  Is there something from your side you would want
> to recommend to do?
>
>
>
>  >>WENDY SELTZER:  Thanks, Erika.  I would recommend pulling back
> from some of the -- the demands that staff has been negotiating
> against the registrars for this data collection and validation, and
> to something that is more easily vetted against the privacy laws in
> all of the jurisdictions where registrars operate and where
> registrants are located.
>
>
>
>  A narrower set of collections and demands is easier to vet against
> all of the privacy regimes where people will operate.
>
>
>
>  We've heard in the update about proposals to adapt the WHOIS
> conflicts with national laws policy, and I'll just note that that
> policy has had a sort of bug in its op- -- a serious bug in its
> operation that in order to get an opinion from a privacy
> commissioner or a data protection authority, you need to be in an
> actual case or controversy, similar to the requirement in the
> United States.  They don't give advisory opinions.  And
> unsurprisingly, perhaps, no registrar has wanted to put itself in
> jeopardy of its national law in order to raise that live controversy.
>
>
>
>  So we need to find a better way of getting opinions before we
> force parties to put themselves into legal jeopardy.
>
>
>
>  >>BRUCE TONKIN:  Thank you, Wendy.  And I do note that the --
> ICANN does have a policy, which is if a registrar particularly
> finds itself in conflict with national law, if they bring that --
> the details of that to ICANN, then there's a process for dealing
> with that.
>
>
>
>  So there's -- there is something that already is ICANN policy.
>
>
>
>  One thing I'll just note, I had a question from Milton saying,
> "Where are the board members?"  They're actually mostly, for some
> reason, over on this half of the room, but we have about 13 board
> members, I think, from my rough count.
>
>
>
>  There are also something like 11 parallel sessions, so some of the
> board members -- in particular, Steve Crocker has been called away
> for a session, I think, relating to the security and stability
> area.  So he sends his apologies for this particular meeting.
>
>
>
>  I think we had a bit of a queue of board members.  I think
> Gonzalo, then Bertrand.
>
>
>
>  >>GONZALO NAVARRO:  Thank you, Bruce.
>
>
>
>  It's not just a question, it's a statement.  I have -- I repeat it
> many, many times that law enforcement issues are not precisely --
> or does not only relate with the developed world in Europe or the
> States or Canada, but in the rest of the world.  In so many cases
> -- for example, the case of Latin America -- you cannot find a
> central agency in charge of this, but some diverse piece of
> legislation here and there.  And it's really problematic,
> especially if we are not under the cover of international treaty on
> this.
>
>
>
>  So if we rely basically on contracts conducted in a different
> jurisdiction or legislation, it's going to be problematic for those
> countries.
>
>
>
>  So from my point of view, which is personal, your concerns are
> really well received and we need to work on it.  Thank you.
>
>
>
>  >>BRUCE TONKIN:  Thanks, Gonzalo.
>
>
>
>  Bertrand?
>
>
>
>  >>BERTRAND DE LA CHAPELLE:  As I've had the opportunity to say in
> the other bilateral meetings in this strange format where we
> basically address the same issue with every single stakeholder
> group --
>
>
>
>  [ Laughter ]
>
>
>
>  >>BERTRAND DE LA CHAPELLE:  -- on that topic, a few points.
>
>
>
>  The first one is that if I understand correctly, the NCSG and a
> portion of it didn't play a minor role in triggering what became
> the letter of the Article 29.
>
>
>
>  This question of the participation of the privacy commissioner and
> privacy authorities has been in the discussion in at least three or
> four or five ICANN meetings before, and it is an illustration that
> basically the claim by some GAC members that the coordination had
> been perfectly done between law enforcement and privacy
> commissioners was probably not as accurate as we thought.
>
>
>
>  And I think everybody is shooting himself in the foot here,
> because it is the interest of all the communities, it's the
> interest of ICANN, it's the interest of governments, that all the
> different dimensions are being taken into account.
>
>
>
>  And let's be frank:  It raises a very important question, which is
> how to make sure that all the different parts of government are
> involved in the issues that ICANN is dealing with.
>
>
>
>  And government is not always only the Executive Branch, it can be
> agencies, it can be competition authorities, as we did for other
> topics, it can be the privacy commissioners, it can be the law
> enforcement of some kind.
>
>
>
>  ICANN will have to discuss in the future how to engage those
> different actors, and I don't want to open the topic right now.
>
>
>
>  Second point quickly, this revolves a lot around the data that is
> available on registrants.  I.e., WHOIS.
>
>
>
>  And again, my personal belief is that as long as we will ask the
> question in terms of how can we use a single globally public
> database to handle law enforcement issues, we will never solve this
> problem.
>
>
>
>  And it's as simple as that.
>
>
>
>  If you ask the wrong question, you don't get the right answer.
>
>
>
>  And so it is time, I believe, in addition to all the improvements
> that can be done to the existing WHOIS -- and there are additional
> improvements -- to seriously ask the question of what are the
> informational requirements for what kind of purposes, and under
> what conditions of access, and how can they be collated in one or
> not -- or several databases.
>
>
>
>  And the last point is, during the session this morning that took
> place with the business constituency, I noted a very interesting
> evolution in the wording of some very large trademark owners.  It
> was Coca-Cola, General Electric, and others.
>
>
>
>  And they were insisting -- talking about the trademark
> clearinghouse and others -- on the fact that it was not only for
> the protection of their trademark, but also so -- mostly for the
> protection of the consumers in challenges of fraudulent Web sites
> and abusive use.  And this is an extremely important shift because
> a lot of the trademark discussion must actually migrate now to how
> do we collectively, not as an ICANN process but facilitated by
> ICANN, trigger discussions on how to help handle misuse of the
> domain name system.
>
>
>
>  And if we want to sit down and trigger the capacity for actors to
> discuss seriously how do you report correctly phishing situations,
> it's not an ICANN policy, but ICANN has all the actors in the
> community.
>
>
>
>  How do you prevent or report infringing Web sites that sell
> counterfeit goods -- and I'm not talking IP music here -- this is a
> matter of credibility, and we stop focusing exclusively on the
> technical tools of a trademark protection system or a WHOIS
> collection of personal data and see how -- what kind of
> collaborations can be built between all the different actors to
> handle the problems that concern the users.
>
>
>
>  >>BRUCE TONKIN:  Thanks, Bertrand.  I've called a queue.  I've got
> Maria Farrell, then Milton, then Robin, then Erika.  Just remind
> people to keep their responses brief so that we can ensure multiple
> people get a chance to speak.
>
>
>
>  Maria.
>
>
>
>  >>MARIA FARRELL:  Thanks, Bruce.  I just wanted to respond a
> little bit to Erika's question, which is a very reasonable one,
> what would we like to see our -- if I may speak personally, what
> potentially could be done to address WHOIS.
>
>
>
>  And the SSAC gave a fantastic presentation to the GNSO on
> Saturday.  I'm sure they're shopping it around at the meeting, and
> I would encourage everybody to take a look at some of their
> recommendations.
>
>
>
>  What they're proposing is really a more technocratic solution
> where they're saying "We can solve 80% of the problems, the issues
> we have within the ICANN system on WHOIS by determining a valid and
> somewhat limited purpose for collection of the data, and purpose
> for collection and then separating collection from the access regime."
>
>
>
>  And I think if we were all to put our heads together and develop
> proper purpose definitions, I think we'll find that, you know, not
> only are we taking some of the heat out of the issues, bringing
> people around the table in terms of what can constructively be
> done, and we'll also find -- we will also find ourselves, then, in
> compliance with not simply the European various data protection
> directives but also the OECD guidelines, and indeed, the APAC
> privacy guidelines and -- you know, to which practically all the
> countries that are in the GAC and that are a part around the table
> are signed up to, and in all of those purposes absolutely crucial
> -- it's the bedrock upon which you can then build a reasonable
> policy both for collection and then separately for access to the data.
>
>
>
>  >>BRUCE TONKIN:  Thanks, Maria.
>
>
>
>  We have Milton, then Robin, then Erika.
>
>
>
>  Milton?
>
>
>
>  >>MILTON MUELLER:  Yeah, Bruce.  You're right, we shouldn't spend
> too much time on this but something you said made it clear to me
> that the message is not really getting through here.
>
>
>
>  You said, number one, that there's already a policy in place that
> allows for national exceptions, and the point that was made just
> prior to that was that that policy requires registrars to be in
> legal jeopardy before it can be invoked.
>
>
>
>  The other point was that we should not have these carve-outs.  If
> anything, the Article 29 letter tells us, it is that we should have
> carve-ins, rather than carve-outs; that the ICANN contract should
> be as global as possible; and there are certain things it's being
> asked to do that simply go beyond what it ought to be doing if it
> wants to have a global system.
>
>
>
>  And national legislatures and national governments are fully
> capable of legislating to create additional obligations on their
> own registrars, and there's no reason for ICANN to be doing that.
>
>
>
>  So I think that is the message that has to come out here.
>
>
>
>  >>BRUCE TONKIN:  Robin?
>
>
>
>  >>ROBIN GROSS:  Thank you.
>
>
>
>  Yeah, I just wanted to suggest that I think maybe we're framing
> this issue the wrong way when we talk about it with law enforcement
> agencies on one side and privacy officials on the other.
>
>
>
>  Because actually, privacy officials are law enforcement agencies.
> They are enforcing privacy laws.
>
>
>
>  So what we need to do is not just talk to certain law enforcement
> agencies -- meaning police and military organizations -- but
> broaden our understanding of the kinds of laws we're interested in
> protecting to also include privacy officials.  Thank you.
>
>
>
>  >>BRUCE TONKIN:  Thanks, Robin.
>
>
>
>  Erika?
>
>
>
>  >>ERIKA MANN:  I'm aware that you might be running out of time, so
> I don't want to prolong the discussion.  I think it's right, what
> Maria and Milton said.
>
>
>
>  Robin, I think it's too late to invoke data privacy officials, and
> there are very many.  I mean, but that's just a cautious, you know,
> approach, I would say.  And I think we know we understand the
> problem, so maybe just re-evaluating it, the basic -- the basic
> principles, and checking like a checklist, you know, where all the
> international agreements are already made like the OECD and all the
> other ones which were named, where we have an international
> agreement more or less.
>
>
>
>  And then I think Milton is right, on the basis of this all
> lawmakers can, of course, differentiate and can put on additional
> burden, if they want to, based on their national framework and laws.
>
>
>
>  I don't know how -- Bruce, how this still can be done at this late
> stage, so I leave this up to you, maybe, to make it to be more
> concrete about this.
>
>
>
>  Or Bill.
>
>
>
>  >>BRUCE TONKIN:  Thanks, Erika.
>
>
>
>  Wendy?
>
>
>
>  >>WENDY SELTZER:  Thanks.  I'd just be -- and before we leave the
> RAA topic, I just wanted to note a couple additional points beyond
> the WHOIS and privacy issues, which is the representation that the
> community has been demanding this -- pieces of both the law
> enforcement and an expansion of the picket fence provision.
>
>
>
>  The community, at least as far as noncommercial stakeholders are a
> part of the broader ICANN community, is not unanimous.
> Noncommercials have not been demanding these changes and so we
> would not -- when this comes back before council, as it will have
> to, as you know, then there's further review of the agreement, and
> if it's been represented as community interest against the
> registrars, we may find that, in fact, there's not community
> support for what comes out.
>
>
>
>  >>BRUCE TONKIN:  Thanks, Wendy.
>
>
>
>  We perhaps will close on this topic.  I'll just make one remark,
> just in response to Maria's comments about SSAC's report.
>
>
>
>  Certainly the board has considered that and is fully aware of the
> contents of that report.
>
>
>
>  And with respect to a lot of national laws that relate to privacy,
> the starting point is actually defining the purpose for collecting
> the data and the various things that were suggested in that SSAC
> report.
>
>
>
>  So it's actually very hard even to ask a lawyer whether you're
> complying the law or not, because the first thing they'll ask for
> is the purpose and we don't have that very well documented.  So
> it's one of the things we're looking at as a board to say, you
> know, we need to do more work on just getting some of those
> fundamental questions answered before designing the solution for
> how to implement them.
>
>
>
>  So I think this is another topic, Robin, perhaps across to you, to
> articulate the next topic, which is safeguarding the integrity of
> the policy development process.
>
>
>
>  >>ROBIN GROSS:  Yes.  Thank you.  Actually, I was going to ask
> Bill Drake and Wolfgang Kleinwachter if they would sort of kick off
> the discussion on this.
>
>
>
>  So Wolf, if you could kick this off.
>
>
>
>  >>WOLFGANG KLEINWACHTER:  Thank you, Robin.
>
>
>
>  I think our stakeholder group in both constituencies are very
> pleased by the commitment of the new CEO towards the
> multistakeholder model, and that this would constitute the basis
> for future PDPs within ICANN.  And we are, in particular, pleased
> by the addition he made in the speech on Friday and also in the
> opening ceremony by adding the word "equal" to the multistakeholder
> description.
>
>
>
>  And just, you know, as sort of a reminder, Bill, Avri, and I were
> a member of the United Nations working group, and the definition
> which was adopted by the World Summit on the Information Society is
> more or less the basis for the multistakeholder model, and has said
> so far that governments, private sector, and civil society should
> participate in Internet governance policymaking in their respective
> roles.
>
>
>
>  The original proposal was to add "on equal footing," but this was
> rejected by the World Summit because, you know, we got only "in
> their respective roles" and not "on equal footing."  And so we are
> very pleased that, you know, this introduction of the concept of
> equality now leads to a better understanding of the
> multistakeholder model, and it's, in our eyes, an enhancement which
> certainly has some consequences also for ICANN itself, how it's
> pioneering this equal treatment, and Bill will say something to
> what is our -- our idea about how this equal treatment within the
> multistakeholder model of ICANN can be further enhanced.  Thanks.
>
>
>
>  (audio problem).
>
>
>
>  >>BILL DRAKE:  No,this is just to continue the conversation about
> what you were saying about multi-equal stakeholder.
>
>
>
>  Like Wolfgang, I participated throughout the WSIS process and the
> IGF and all that in the sort of development of the multistakeholder
> dialogue in the U.N. setting around these issues and done a lot of
> work on exactly what does this mean and have lived through this in
> a lot of ways.
>
>
>
>  And we find ourselves in the U.N. setting defending ICANN's
> multistakeholder process all the time as superior to
> intergovernmental and other alternatives.  But then we come back
> here and sometimes we find that it doesn't quite live up to
> reality.  And so when you say "multi-equal participation," that's a
> good aspiration.  We are very hopeful that taking that forward, you
> will really build that out.  But for us, still sometimes it feels
> more like multi-unequal silos.
>
>
>
>  And I think it's just worth calling your attention because I don't
> know if what you hear in other contexts to the fact that, you know,
> from the perspective of some of us, there have always been, I
> think, some substantial asymmetries across constituencies in other
> groups with regard to certain dimensions:  Access to senior staff,
> access to resources at times.  You could even say attitudinal
> inequalities.
>
>
>
>  I had a senior leadership person the other day make a reference to
> my constituency that was, I think, based on some long-held
> beliefs.  There is a lot of people who have had feelings about
> other -- each other that have evolved over time in ICANN.  I have
> only been here for four years, but I know all that kind of stuff is
> there.
>
>
>
>  The point is, I think we could go through a listing of different
> dimensions that are really impactful on the ability of groups to do
> their work.  But I think the bottom line is what's needed is some
> sort of a coherent, consistent policy approach, one that the
> community can actually participate in evolving with you to evaluate
> the extent to which we really do have equality across groups.
>
>
>
>  And I don't know that that's ever really been tried very much, but
> I think it's really important.  And it's particularly relevant, I
> think, in the context of even some simple things like, for example,
> if you try to get information within the GNSO environment, if you
> try to get information across constituencies about who participates
> in each of the constituencies, who are the members, see the
> documents, ability to read the discussions on the listservs, you
> will find that there is a lot of variation.
>
>
>
>  You will find there is variation when people go out and senior
> leadership people go out and talk about ICANN and say, Well, we
> have these different interests represented and some of those
> interests kind of drop out of the narrative of what is the panoply
> of players there.  It is just a matter of being sensitive to that
> and having in place a framework so that we can ensure that
> everybody is feeling like they are on the same page and treated in
> the same way.
>
>
>
>  I hope we can work on that with you.  I think it would be a really
> good opportunity.
>
>
>
>  >>BRUCE TONKIN:  Thanks, Bill.  I think Ray wanted to respond.
>
>
>
>  >>RAY PLZAK:  Not so much as respond as comment.  Bill, you
> touched on it a little bit.  But what do we mean by
> "multistakeholder"?  I mean the context I hear -- most of the
> conversations about multistakeholders we were actually talking
> about the GNSO and all the different parts of it.
>
>
>
>  But in an ICANN context, "multistakeholder" is quite larger.  It
> includes a couple of other supporting organizations that have
> thousands of people in them as well.
>
>
>
>  And so I think it is incumbent upon us to really pay attention to
> what we mean by that.  If we are talking about problems that exist
> where the multistakeholders that are having difficulty
> communicating with each other is inside the GNSO, then that's maybe
> more or less a GNSO type of a problem as opposed to a broader ICANN
> problem, which would say that we need to look at things in a
> different light.
>
>
>
>  I think that too often the other SOs as well as those specialized
> stakeholders that are represented by the GAC and the SSAC and the
> RSSAC are kind of set aside in the discussion that occurs too often
> that just deals with a certain set of the multistakeholders.
>
>
>
>  >>WILLIAM DRAKE:  Sure, I didn't mean to imply that there aren't
> different levels to ICANN.  I'm speaking from the standpoint of
> you're meeting with a stakeholder group that's a part of the GNSO
> right now in our meeting environment.  I was saying in particular
> across the constituencies equality.  That's all I was saying.  Not
> about communication between us.
>
>
>
>  >>RAY PLZAK:  I understood that.  I understood that completely.  I
> just wanted to lay that out on the table because it actually
> becomes more important particularly when we talk about some of
> these broader issues, much broader issues.  Like, for example, the
> impact of the new gTLDs, yes, it's going to impact a great deal on
> the GNSO, but it will have some impact on the other SOs.
>
>
>
>  And so I just think we need to be sometimes a little bit careful
> about how we use our terms, that's all.
>
>
>
>  It was not directed against you.  I was just making an additional
> comment, if you will.
>
>
>
>  >>FADI CHEHADE:  May I ask a question?  How many people here who
> are members of the Noncommercial Stakeholders Group believe that
> the staff has paid less attention, unequal attention to you than
> the rest of the stakeholders?  Please raise your hand.  Give me a
> poll.
>
>
>
>  >>WILLIAM DRAKE:  It is kind of an awkward question.
>
>
>
>  [ Laughter ]
>
>
>
>  >>FADI CHEHADE:  That perception is reality.  And I have to deal
> with this.  So if most of you here believe that, then that's that.
> So we need to fix that.  It is that simple.  And it starts -- as
> you said, you used the word "attitudinal."  It starts with that,
> not just me, all my staff, because I need to make sure that they're
> not for any reason, one or the other, just putting too much
> attention on one group or the other.  This is a commitment I made
> to you and I made publicly and I will start with myself.  Let's
> start there.  Start then with my leadership team, then with the
> executives, then permeate that through our organization.
>
>
>
>  And that's not just window dressing.  That's not just about
> calling you once a month to say, "What's going on?"  That's
> actually engaging with you, listening, responding, participating
> when important things that require your input -- because I don't
> view this as a nuisance that we have to listen to you equally.  I
> actually view it as a missed opportunity on our part because you
> have a very specific view without which ICANN is not complete.  So
> I will do my best.  We'll start with the spirit of it.  But then
> after that, let's graduate this into some practicalities because as
> you said very well, let's start with the basics.  Let's change --
> if that's the perception, let's start changing it.  But then let's
> move to some practicalities that make you feel that across the
> board we are, indeed -- and, by the way, you mentioned the ITU and
> IGF and all these things.  I mean, my goodness, if this is not what
> makes us stand tall and differentiate ourselves from the rest of
> the world, what is?  What is?
>
>
>
>  We have to be able to defend this is a multi-equal stakeholder
> environment.  Everyone it at the table and we make it happen
> together.  If we can't defend that, then I think we lose -- as I
> said in your meeting, we lose a lot of our legitimacy.  I will do
> my part and help me out along the way.
>
>
>
>  >>BRUCE TONKIN:  Next I have Robin in the queue.
>
>
>
>  >>ROBIN GROSS:  Yes, thank you.  One of the things that I think we
> can do to really safeguard and improve the integrity of the policy
> development process is to actually stand by the community consensus
> commitments that are made.  I think one of our frustrations is so
> often we go into working groups and we hammer out consensus and
> everybody makes compromises, and we come out with a piece of policy
> recommendation that then gets approved by the GNSO because
> everybody had to compromise a little bit.  And then we find out a
> little bit later that that agreed-to recommendation is maybe just a
> next step or a foothold for other interests to then go and lobby
> the board and lobby the GAC and get more and get more.
>
>
>
>  And I think that really calls into question the integrity of the
> policy development process.  So to the extent we can actually stand
> by the commitments that are made and say, you know, this is what
> the community agreed to, this is what we're going to do, please
> stop lobbying for more changes to this policy, I think that would
> go a long way to show that ICANN is a serious global legislative body.
>
>
>
>  And I also think this is an opportunity -- going back to this
> equality issue, to really show that ICANN is showing tremendous
> leadership on this issue, to recognize the equality amongst
> stakeholders is, quite frankly, somewhat of a revolutionary
> concept.  And I think that I applaud ICANN for recognizing the
> importance of this and showing other places, perhaps ITU or other
> places where there isn't this kind of equal foothold.  And so this
> is the future, and this is the way forward.
>
>
>
>  And I want to congratulate ICANN and the CEO in particular for
> recognizing that equality between stakeholders will be an important
> component here.  Thank you.
>
>
>
>  >>BRUCE TONKIN:  Carlos then Ray.
>
>
>
>  >> Thank you.  Taking up on Wolfgang's speech and Bill's, I also
> was in the WSIS process and remember that the discussion of equal
> footing versus our respective roles.  And I think actually what
> Fadi Chehade is proposing is a combination of both.  Otherwise, we
> would have to change the name of the GAC to GSO, Government
> Supporting Organization.
>
>
>
>  So we have both, and I hope that Fadi will be able to, with his
> tremendous skill, balance both.
>
>
>
>  [ Laughter ]
>
>
>
>  Thank you.
>
>
>
>  >>BRUCE TONKIN:  Thanks, Carlos.  Ray, then Chris, then Alain.
>
>
>
>  Ray?  Again, try to keep the responses brief.
>
>
>
>  >>RAY PLZAK:  I will.  I'm not Bertrand.
>
>
>
>  So, anyway, to what Robin was saying -- if I understood you
> correctly, you were talking about outside voices like the GAC.  Is
> that correct?
>
>
>
>  >>ROBIN GROSS:  You mean with respect to the lobbying for changes
> to commitments?  I don't think it is only the GAC.
>
>
>
>  >>RAY PLZAK:  No, no, no, I'm not saying -- but one of the voices
> you said was the GAC.
>
>
>
>  >>ROBIN GROSS:  Yes.
>
>
>
>  >>RAY PLZAK:  The GAC is also aware of that problem that they
> invariably cause when they come in towards the end.  One of the
> things that's been very heavily discussed, and they are trying to
> find the solution to the problem, is how they do early engagement
> with in particular the GNSO.
>
>
>
>  The Board/GAC Recommendations Implementation working group, which
> met on Sunday, that was a -- consumed a large part of the time of
> that discussion.  So the GAC is trying to do what they can do to
> make sure it works properly.  I just wanted to put that out to
> you.  Otherwise, I completely agree with everything else you said.
>
>
>
>  >>BRUCE TONKIN:  Thanks, Ray.  Chris and then Alain.
>
>
>
>  >>ALAIN BERRANGER:  Thank you, Bruce.  I wanted to reflect a
> little bit on the multistakeholder process and, in fact, make a
> suggestion.  We do have hundreds and hundreds of other
> organizations in the world that use the multistakeholder process.
> And the reality of it is that each one is very, very specific.  And
> a lot of people around this room have lived different
> multistakeholder process, and that includes me.
>
>
>
>  What I am very, very curious is if we -- we have a good
> multistakeholder model.  But that doesn't mean -- and it may be
> better than many others, but that doesn't mean it can't be
> improved.  So one of the defining dimensions of a multistakeholder
> organization is equality.  So when you have to insist on saying
> "equal multistakeholder process," you are identifying a problem.
> It is an oxymoron for good purposes.  Same way as we have a really
> nice unequal multistakeholder process is also an oxymoron.
>
>
>
>  I would really be curious if we could do an exercise of
> stakeholders mapping.  In other words, do we really understand the
> position of each stakeholder in a map of some kind.  And I mean map
> in an intellectual conceptual position.
>
>
>
>  And one dimension that has striked me as coming in from the
> outside, I guess, two years -- less than two years in ICANN, you
> are still a little bit with a foot inside and a foot outside, is
> the dimension of arm's length.
>
>
>
>  How do you put into the same multistakeholders population
> stakeholders that have a contract and are very close to the center
> of decision which get impacted seriously if something goes wrong
> for them?  And, you know, the users completely at the other end,
> the people that will become dot kids may be users.
>
>
>
>  So I recommend that we get some professional -- consider the
> benefits of having a stakeholders mapping exercise so that we
> better know what we have before we move on to improve it.
>
>
>
>  >>BRUCE TONKIN:  Thank you.  We have 15 minutes left.  Is there --
> I think the board might have had some topics as well.  I know I
> have Bertrand as well.  Just be conscious of time.  What we might
> do, I think the human rights one, is that a fairly similar issue?
> Sounds like we are talking about a similar topic?  Like, how do we
> get more engagement in these processes?
>
>
>
>  >> (Speaker off microphone).
>
>
>
>  >>BRUCE TONKIN:  We'll go Bertrand and get your thoughts on that.
>
>
>
>  >>ROBIN GROSS:  On this human rights concern and policy
> development process, we are going to do that one?  Avri, did you
> want to say a few words about that issue?
>
>
>
>  >>AVRI DORIA:  Sure, thank you.  For several years basically the
> NCUC and then the NCSG -- this started before there was a NCSG.
> I'm back here, voice in the wilderness -- has basically been
> arguing and trying to convince people that we needed to do a human
> rights impact analysis on our policies.  It's not that we're
> arguing that ICANN needs to become a human rights organization but
> that everything we do has some impact on rights.
>
>
>
>  At a certain point, we've seen now that we are starting to look at
> privacy rights -- and it is with great gratitude that I feel that
> we are starting to look at that and I actually hope that becomes a
> mainstream concern.  But freedoms such as freedoms of expression,
> freedoms of association, even freedoms like access rights are
> affected by policy decisions made at ICANN.
>
>
>
>  We even had -- the new PDP policy, policy development process,
> that just came out of the GNSO, we tried to get "human rights
> impact" included in that.  After many years of discussion, we got
> "rights impact" included in that.  "Human rights" was a little too
> frightening a concept to actual include in the PDP, but we did get
> a rights analysis.
>
>
>
>  So what we're basically looking at is that in most organizations,
> for there really to be a serious attention paid to the human rights
> impact of what that organization is doing, it takes a certain
> amount of board leadership to sort of say, We care about the human
> rights impact of what you're doing.  And since the PDP process now
> has a hook in it that says, "A rights impact analysis must be done
> on all policy recommendations," I'm really suggesting, we're really
> suggesting and hoping that that's something that the board takes
> seriously about the policy development process.
>
>
>
>  When as GNSO and hopefully others present the board with new
> policy proposals, look for that impact.  Does it affect freedoms,
> freedom of association, freedom of expression or does it not?  And
> if it does, have you actually looked at it and such?
>
>
>
>  And this is really something that across the NCSG we have a lot of
> things that we agree to disagree on.  But this is one that across
> the NCSG we don't quibble at all except for how can we help make
> this happen.  Thanks.
>
>
>
>  >>BRUCE TONKIN:  Thanks, Avri.  Any comments?  Yeah, Fadi.
>
>
>
>  >>FADI CHEHADE:  Just so we can translate both the last two
> comments into action, Alain, could you drop me a note with your
> thoughts on this mapping?  Just so I understand.  Or grab me in the
> hallway.  I just need to understand it a little bit better because
> I'm very intrigued by the idea.
>
>
>
>  And then just like there is Human Rights Watch, can we have kind
> of an ICANN Human Rights Watch?  Can we -- can you guys -- when
> things are important, send us a note and say, Look, from a human
> rights standpoint, given how sensitive your community is and
> remarkably alert to these things, give us a heads-up.  Send us
> something that says, Look, these things affect human rights.  I
> appreciate your trust in the board looking at it, and we will -- I
> think I can speak for my fellow board members.  We can disagree
> that this is the top of the mind for us.  But help would be also
> good, just as Human Rights Watch does it for the rest of the world.
>
>
>
>  >>BRUCE TONKIN:  Chris and then I think Rafik.
>
>
>
>  >>CHRIS DISSPAIN:  Thank you.  This is very complicated because
> the structure of ICANN is that policy is made in the SOs, so
> subjecting the policy itself once it's reached to that sort of a
> test is not going to work.  If you want to get it done, you have to
> get it done in the GNSO as part of the policy development process.
> And what it sounds like to me is that you don't get any traction
> with the rest of the GNSO.  That's really where your problem lies.
> And I'm not clear that we can actually do anything about that
> really.  I mean, it is a matter that needs to be handled in the
> GNSO, I think.
>
>
>
>  >>BRUCE TONKIN:  Rafik, then Avri.
>
>
>
>  >>RAFIK DAMMAK:  To respond, Fadi, maybe -- we suggest this
> before, but maybe we can reiterate our request that ICANN join the
> Global Network Initiative framework.  It is existing to help us
> assess and evaluate the human rights impact.  So that's the
> framework -- existing framework.  So we can explore that to see
> what's -- I'm not sure what you mean by your "Human Rights Watch"
> idea, but we can explore already.  We have existing framework.
> There is others that we can explore, too.  So that's a start.
>
>
>
>  You are expressing many times that we need to do action.  You have
> something to do.  You can do to it quickly.
>
>
>
>  >>BRUCE TONKIN:  Avri?
>
>
>
>  >>AVRI DORIA:  Thank you.  I actually beg to disagree with Chris,
> which I know is a precarious thing for me to do, not that I have
> ever tried doing it before.
>
>
>
>  I think, first of all, the GNSO -- first of all, I think the topic
> is broader than just the GNSO.  We happen to just be NCSG, part of
> the GNSO, so that's only part of it.
>
>
>
>  Within the GNSO, the PDP that the GNSO -- the PDP process that the
> GNSO passed and that the board approved said there needs to be a
> rights impact analysis on all policies.
>
>
>
>  The board has every right to look at anything that comes out of
> the GNSO and say, did you take care of this?  And to send it back
> to the GNSO saying you have a mandate to look at rights impact
> analysis, it doesn't look like you did it.
>
>
>
>  So it isn't just us getting traction.  It's the board looking at
> the policy development process that you all approved and making
> sure that we actually did it.
>
>
>
>  In terms of being a Human Rights Watch, as is probably obvious,
> I'm willing to scream about anything just about any time.  So I'll
> certainly volunteer for that type of service.
>
>
>
>  >>BRUCE TONKIN:  Thank you for a generous offer Avri.
>
>
>
>  Olga?
>
>
>
>  >>OLGA MADRUGA-FORTI:  Thank you, Bruce.  If I can just add a few
> thoughts from the perspective of a board member-elect, even though
> my term has not yet begun, I just simply wanted to give certain
> assurance or let you know that thoughts on the human rights
> concerns relative to any ICANN policy would certainly be something
> that I would personally be very interested in.  And, of course, in
> this particular context of our discourse today, there is a basic
> human right to information.  And, yet, there is a basic human right
> to security as well.  So I would agree with the comments that the
> definition of what is the human right in question in any particular
> policy is something to be explored at great depth and with great
> care.  But certainly it is a topic of dialogue of concern and I
> would welcome perspectives in this regard.
>
>
>
>  >>BRUCE TONKIN: Chris.  You want to respond?
>
>
>
>  >>CHRIS DISSPAIN: I'm just reminded -- and Bill will remember this
> -- I'm just reminded that the IGF, the internet governance forum,
> multi-stakeholder advisory group basically ran a mile from -- human
> rights is mentioned in the main title but almost any discussion of
> human rights was blocked simply because it is such a minefield and
> so difficult to deal with.  And that's governments doing that.  So
> not that I'm necessarily suggesting that that means that it's the
> right thing to do, but we need to be very, very careful.
>
>
>
>  >>BRUCE TONKIN: Erika.
>
>
>
>  >>ERIKA MANN:  Yeah, Chris said it.  I think we have to be really
> careful because, I mean, it's not helping us if we expand our
> agenda into territories which are really even hard for -- you know,
> we already discussed hard to manage, so maybe -- I don't like the
> idea to postpone discussions or to ask constantly for papers, but
> maybe it would be a good step, you know, if you want to go down
> this road just to have a short, you know, an outline of a paper,
> just understanding actually where we -- you know, where our work,
> you know, affects or may affect on certain human right or rights-
> related topics before we jump to the conclusion that, you know, we
> should actually in concrete terms investigate in this area.
>
>
>
>  >>BRUCE TONKIN: Yes, go ahead.
>
>
>
>  >>CARLOS AFONSO:  Hi, it's Carlos Afonso from Getulio Vargas
> Foundation.  Just on a more like practical level and just to
> continue this debate as we have like just this short time here to
> engage in the discussion, we proposed a workshop in IGF called
> human rights Internet policy and the public policy role of ICANN.
> So we would like very much to -- to stress our invitation to the
> boards - if some of you that have the ability to be in the -- in
> the session, as a panelist would be perfect, but if not, if you can
> just attend the workshop, engage in the discussions, it will be a
> good way for us to have, I would say, an extra one hour and a half
> time for us to engage in this discussion.
>
>
>
>  >>BRUCE TONKIN: Thank you.  Any other speakers on human rights?  I
> think -- because the rest of us obviously -- so I guess one other
> final thing, just to -- in the remaining minutes, is there any
> other comments you would like to give to the Board on WHOIS,
> because that's certainly a topic that we're considering.  I think
> we -- the RAA and WHOIS to me seem to have many of the same
> problems.  But same kinds of comments, but is there a different
> comment you'd like to give on WHOIS?
>
>
>
>  >>MILTON MUELLER:  Actually I'd like to change the subject because
> we did prepare a bit of a statement.  You asked us a question and
> we did try to answer it.  So do you want us to do that?  Okay.
> Should I do it, Robin?
>
>
>
>  >> [ Speaker off microphone. ]
>
>
>
>  >>MILTON MUELLER:  Impact of new TLD program on the GNSO, right?
>
>
>
>  >>BRUCE TONKIN: Just to confirm, nothing else on WHOIS so we're
> done on that one?
>
>
>
>  >> [ Speaker off microphone. ]
>
>
>
>  >> SSAC report.
>
>
>
>  >>BRUCE TONKIN: I have statements on all those issues?  If you
> could just go through the statements on each of those issues that
> would be helpful.
>
>
>
>  >>MILTON MUELLER:  So what am I supposed to do here?  Go ahead.
> All right.  So we think it's a very good question.  We're glad you
> asked it.  We think one of the issues we want to impress upon you
> are there are many fears that new large, sometimes large, sometimes
> new and innovative companies coming into the domain name space
> could have disruptive business models.  For example, Google might
> give them away for free.  This could have a very serious impact
> both on ICANN's business model and on the business model of
> existing registrars.  We do not think that the GNSO or its policies
> should be structured to preserve the traditional model.  We think
> that innovation should be allowed to occur and that the traditional
> model as an artifact of a particular moment in history, has its
> good points but could be superseded by a lot of different
> alternatives.  That's point one.
>
>
>
>  And point two, we have a lot of concern about the impact of brand
> TLDs and overlapping representation.  Many of us, not all, think
> that brand TLDs are a good thing and that they might deal with a
> lot of the trademark problems.  But the point is, the brand TLDs
> are a very strange thing from the point of view of the GNSO
> segmented representation process.  So a brand TLD owner could be in
> a trademark constituency, they could be a registry, and they could
> be a registrar, and we want to make sure that the voting and
> representational process does not triple count these people and
> become somewhat distorted in the process.
>
>
>
>  We also want to say for the record that we think the non-
> contracted party house is dysfunctional, and we have concern about
> gridlock on the council.  But this is something that's probably not
> very controversial so we don't really need to discuss it much.
>
>
>
>  >>BRUCE TONKIN: Thanks, Milton.  Are there other ones that you
> want to pick up on this?
>
>
>
>  >>ROB HOGGARTH: This issue?
>
>
>
>  >>BRUCE TONKIN: I think just if there's any -- it sounded like,
> Robin, you had a statement on each one of these topics.
>
>
>
>  >>ROBIN GROSS: Yeah.  Wendy did you want to say something on the
> WHOIS issue?
>
>
>
>  >>BRUCE TONKIN:  Yeah, that would be helpful, just to get the
> feedback from each topic.
>
>
>
>  >>WENDY SELTZER: Sure, Wendy Seltzer.  Just to put on the record
> our strong endorsement of the recommendations in the SSAC report on
> the WHOIS review team.  It's critical that we consider the purpose
> before moving forward in other directions or even in work that's
> already underway on WHOIS.
>
>
>
>  >>BRUCE TONKIN: Thanks, Wendy.  And on the security and stability
> report.
>
>
>
>  >>DAVID CAKE:  I'll take that one.
>
>
>
>  >>BRUCE TONKIN: Go for it.
>
>
>
>  >>DAVID CAKE:  Yep.  I'm just going to -- David Cake.  I'm just --
> besides being the chair of the of the NCUC, also the representative
> of the NCUC on the securities, stability, and resiliency review
> team, so perhaps I'm a little biased but generally we really like
> the review, we're pretty positive about it.  We particularly --
> about the recommendations about sort of -- everything -- the NCUC
> point of view, we're particularly positive about the
> recommendations about opening up the transparency of that process.
> We're very pleased to see that Fadi in particular is taking
> compliance very seriously.  The resilience and so on parts of that
> should never be forgotten, and compliance is a key part of
> stability and resiliency as well as security.  I think we do have
> -- we do have sort of some concerns about the general climate, not
> inside ICANN but outside ICANN generally in which security is
> talked about and in sort of increasingly militarized terms and that
> sort of thing.  And I'm very pleased to see that in general the
> ICANN security discussion does not talk about that.  We discuss
> security very openly and as a general sort of attitude -- the idea
> that it's part of the health of the whole system and we'd like --
> we like that, we'd like that to continue.  We see no signs that --
> and we think this report will help with continued on that thing.
> And that's pretty much all we have to say about the SSR.  We're for
> it.
>
>
>
>  >>BRUCE TONKIN: Great.  That's very good to hear.  And then
> finally on patents.  Wendy.  Of course.
>
>
>
>  [ Laughter ]
>
>
>
>  >>WENDY SELTZER: Thanks.  This one, since I've recently joined the
> World Wide Web Consortium I've gained lots of experience in patent
> policies and would be happy to help review and suggest patent
> policy for ICANN.  I think as they are -- we've seen that a royalty-
> free patent policy is -- is a good thing for the open web platform,
> I think, requiring those who disclose patents to commit -- or those
> who have patents and participate in the process to commit to
> license them royalty-free would also be a good thing for the open
> Internet.
>
>
>
>  >>BRUCE TONKIN: Thanks, Wendy.  I think we've heard, just to give
> you feedback from other groups, certainly we haven't heard lots of
> screams about the security and stability report, so I think we feel
> that's got reasonable support.  Certainly most groups are
> considering the impact of new gTLDs on the structure, and I think
> the registry constituency, for example, has a special observers
> group.  I know there are different other activities possibly, new
> constituencies forming, so we know that's an active area and that's
> not going to be solved in a short term.
>
>
>
>  Patents, most groups seem to say that we should have some form of
> patent policy for how we participate at ICANN and then people get
> into different views.  Certainly I think you're probably the --
> well, royalty-free is one -- one of -- one suggestion we've heard
> from perhaps one other group.  Usually the group that has to
> actually use a patent wants it to be royalty-free but the other
> side of the patent might have a different view.  But at the very
> least, having a clearly defined policy I think is something we need
> to start to work on.  So yeah, we really value that input on all of
> these topics, and I think Fadi has a final word.  Go ahead.
>
>
>
>  >>FADI CHEHADE: Yeah, just to thank you again, all of you, for the
> welcome you've given me since I started.  During the summer I had a
> chance to have one-on-ones with some of you here.  Certainly with
> David and Robin and Anelle (phonetic) and others.  It was
> fantastic.  I learned a lot, just from the half hour or hour we
> spent together.  I'm just a Skype ping away.  Please do connect
> with me.  I just want to keep listening and hearing from you.  I'm
> now going to go get some work done.  So my focus is, hopefully
> between now and Beijing, to spend a lot less time talking and a lot
> more time doing your work at ICANN.  And if during that period,
> during that process, there are things you are concerned I'm not
> hearing, do reach out.  Again, I'm very quick to get hold of now.
>
>
>
>  My immediate priorities, just so you know them, coming out of
> these days, is to wrap up the trademark clearinghouse issue.  So we
> did the draw as a solution to the prioritization.  Next we're going
> to frankly put the same level of intensity to solve that.  I
> committed my team today that before -- before we go to Baku we have
> to have this thing wrapped up and done.  And we must.  If we don't,
> we miss big deadlines.
>
>
>
>  Right after that my whole focus will be on the RAA.  And again,
> I'd like that wrapped up, presented to the community no later than
> the end of this year.  Otherwise, we're going to have some
> difficulties next year.
>
>
>
>  And then immediately on the heels of that it's the WHOIS.  Now,
> that doesn't mean these things will be dealt with sequentially.  I
> have enough leadership now to get all of these things going, but my
> focus, my personal focus will be on these.  And if you disagree
> with that, give me a shout.  If there's something else I should
> focus on, let me know.  But I'm going to be problem-solving.  I'm
> going to be -- my hands will be on these pedals to solve these
> issues now.
>
>
>
>  >>BRUCE TONKIN: Thank you, Fadi.  And I'd also just like to thank
> you all from the Non-Commercial Stakeholder Group.  We actually
> gave all groups equal time today, and so we very much value the
> input and the effort you've put into your statements on each of the
> topics that we had raised.  So thank you, Robin.
>
>
>
>  >>ROBIN GROSS: Thank you, Bruce, and thank you to the Board for
> having us here and for taking a few minutes extra to listen to us.
> Thank you.
>
>
>
>  [ Applause ]
>
>
>
>
>
>



IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin at ipjustice.org



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