[council] NCtelecon Dec 15th, Comments on the GA Mailing lists

[Elisabeth Porteneuve <Elisabeth.Porteneuve@cetp.ipsl.fr>]

All,

On November 19th, Louis Touton and Andrew McLaughlin were visiting
AFNIC in Paris. I used that opportunity to discuss with them the
problems related to the GA Mailing lists and recent problems
(spoofing attacks between Nov 8th and Nov 10th, irrespect of civil
rules, indecent and offending posts, spamming, subscription of
fake characters).

Between Nov 19th and Dec 12th, I provided Louis with the full
record of information to related facts (archives of mail spool after
I stopped the sendmail program on Nov 8th, with tens of messages and its
full headers; copy of indecent and offending posts; explanation
on filtering - who is filtered and why, when the decision was
taken and by whom).
I also provided the same record to a French lawyer, AFNIC legal
adviser.

On December 10th, I meet Louis and Andrew in Pisa, in the margin
of the CENTR meeting, and requested Louis to write lawyer comments.
The ICANN General Counsel advise is attached.

On December 12th I wrote a short summary of the 6 month experience 
-- it is called "Year 1999 lessons from the DNSO Secretariat",
http://www.dnso.org/dnso/notes/1999.SEClessons.html.
I believe my text completes the subject of mailing lists.

Kind regards,
Elisabeth

> From touton@ni.net Mon Dec 13 10:41 MET 1999
> Date: Mon, 13 Dec 1999 01:40:43 -0800
> From: Louis Touton <touton@ni.net>
> To: Elisabeth Porteneuve <Elisabeth.Porteneuve@cetp.ipsl.fr>
> Subject: General Counsel's Comments on DNSO GA-Discussion List Issues
> 
> Elisabeth,
> 
> 	As you requested, I have prepared this memo to summarize my analysis
> and comments on current issues with the DNSO-ga list.  I understand that
> you have been asked by the Names Council to report on our recent
> discussion of these matters, and this memo is intended to assist you in
> making that report.
> 
> TABLE OF CONTENTS
> 
> 	I.  Current Problems with the GA List
> 	II.  Role and Importance of the GA List
> 	III.  Suggested Measures for Names Council Consideration
> 
> I.  CURRENT PROBLEMS WITH THE GA LIST
> 
> 	Based on our discussion, my review of the archives, and evidence you
> have sent me, it appears that in the past several weeks the DNSO-ga list
> has been the subject of extensive abuse by an individual or individuals
> determined to frustrate use of the list as a medium for constructive and
> civil discussion of issues within the DNSO's scope of policy
> development.  This abuse has included spoofed e-mail, an attempted
> denial-of-service attack, postings using various fictitious names, and
> postings containing unwarranted personal (and sometimes vulgar) attacks
> on members of the community.
> 
> 	In partial response to these problems, the List Administrator has
> disabled the subscriptions made under some of the apparently fictitious
> names; this remedy has been met with additional fictitious
> subscriptions, resulting in even more postings of uncertain origin and
> relatively little or no substance.
> 
> 	In the past two weeks, the traffic on the ga discussion list has become
> so frequent and predominantly non-substantive that several genuinely
> interested stakeholders, who have in the past made valuable
> contributions to the consensus-building process within the DNSO, have
> elected to unsubscribe.  Thus, it appears that the ga list as currently
> configured is no longer serving any positive role in the DNSO's mission
> of developing policies through a consensus process, but is instead
> hindering achievement of that mission by preventing meaningful and civil
> DNSO-wide discussions of DNSO-related issues.
> 
> II.  ROLE AND IMPORTANCE OF THE GA LIST
> 
> 	The ICANN bylaws do not directly require that there be a general
> assembly discussion list.  Instead, the DNSO-ga list was recognized by
> NC action at the meeting held 25 June 1999 in San Jose, California:
> 
> 	"It was then decided to take decisions on Amadeu's proposal first as it
> concerns the GA:
> 
> 	"1.  It should be announced that the GA exists and is recognised
> according to the bylaws (unanimously accepted)
> 
> 	"2.  the discuss@dnso.org list is regarded to be the GA of the DNSO
> (unanimously accepted)
> 
> 	"3.  the announce@dnso.org list is used to broadcast all information of
> the NC (12:1 - Bill Semich against)"
> 
> This action was apparently taken by the NC as one means to discharge its
> responsibility under Art. VI-B, Sec. 2(b) of the ICANN bylaws "for the
> management of the consensus building process of the DNSO."  Bylaws Art.
> VI-B, Sec. 2(b).  Section 2(b) goes on to invest the NC with authority
> to adopt "procedures and policies as it sees fit to carry out that
> responsibility," and sets forth as examples of those  procedures: 
> drafting committees, working groups, and other bodies of the GA. 
> (Significantly, neither a ga-wide list nor any other ga-wide structure
> is included in the list of example structures for carrying out the
> DNSO's substantive work; only more focused groups are cited.)
> 
> 	Although not directly required, a properly operating ga discussion list
> can serve some of the functions envisioned for the DNSO by the bylaws:
> 
> 	(a)  Art. VI-B, Sec. 2(c) of the bylaws states that "[c]onstituencies
> or GA participants may propose that the NC consider domain name policies
> or recommendations."  The ga discussion list provides one means for the
> NC to receive these proposals.
> 
> 	(b)  Art. VI-B, Sec. 2(b) provides that working groups and other GA
> bodies constituted by the NC shall provide appropriate means, as
> determined by the NC, for input and such participation as is practical
> by non-constituency members.  The ga discussion list might also serve
> this function, although, in view of the currently open membership of all
> working groups the individual working group discussion lists appear to
> provide a more direct avenue for input and participation.
> 
> 	(c)  Art. VI-B, Sec. 2(b) also provides that the NC will post for
> public comment reports and recommendations presented to the NC by
> working groups, etc.  (This is in addition to the opportunity for
> constituency comment as envisioned by Art. VI-B, Sec. 2(c).)  In this
> connection, the Section 2(b) also provides that "[t]he NC is responsible
> for ensuring that all responsible views have been heard and considered
> prior to a decision by the NC."  Arguably, this function is also served
> by a ga discussion list, although lists established especially to
> receive comment on specific actions being considered would appear to be
> a more efficient way to allow public comment on those actions.
> 
> 	(d) In various respects (notably including nomination of ICANN-Director
> or GA-chair candidates to be selected or elected by the NC), the bylaws
> call for action by participants in the GA.  In the past, the NC has
> adopted the practice of making participation in the ga discussion list
> one avenue to recognition of a person as a participant in the general
> assembly.  Thus, the ga discussion list currently plays a role in the
> nominations process.  The bylaws do not require, however, that a ga
> discussion list be used as a basis for determining whether a person is a
> participant in the general assembly.
> 
> 	In addition to these specific functions called out in the bylaws, a
> properly operating ga discussion list serves the function of being an
> additional mechanism for the DNSO to "operate to the maximum extent
> feasible in an open and transparent manner," according to the general
> goal prescribed for ICANN, including its supporting organizations, in
> Art. III, Sec. 1 of the bylaws.  Providing open procedures for actions
> in the DNSO not only helps meet this general goal for all of ICANN's
> activities, but also is specifically important to the names policy
> development and adoption process, inasmuch as Art. VI, Sec. 2(e)(3) of
> the bylaws gives the ICANN Board the responsibility, in deciding whether
> to adopt a DNSO-recommended policy, to assess whether the recommended
> policy "was arrived at through fair and open processes . . . ."  While
> the existence of a reasonably operating ga discussion list may not be an
> essential requirement to have fair and open processes, having such a
> list should be a positive factor in the Board's assessment of whether
> DNSO recommendations should be adopted.
> 
> III.  SUGGESTED MEASURES FOR NAMES COUNCIL CONSIDERATION
> 
> 	It appears that the ga discussion list as it is currently operating is
> not contributing positively to the efforts of the DNSO to develop
> consensus-based names policies using procedures that are open and
> transparent and that derive full benefit from the expertise that
> interested stakeholders are willing to offer.  Other mechanisms used in
> the DNSO (working groups, their discussion and public comment lists, and
> communications within and among constituencies) provide a very
> significant degree of openness and transparency in the DNSO's
> operations.  Nonetheless, having a better-operating ga discussion list
> might provide the DNSO valuable inputs on policy matters that it is not
> currently receiving, now that many interested stakeholders are no longer
> willing to remain subscribed to the list.
> 
> 	It therefore seems appropriate for the Names Council to consider either
> (1) reforming the list to improve its operation or (2) abandoning the
> list and ensuring that the various functions noted above are met by
> other lists or discussion mechanisms.  It would seem, if effective
> reform is believed feasible, that preserving and reforming the list
> (option 1) would be desirable, because it allows an additional channel
> for input to the DNSO's policy development process.
> 
> 	If the NC decides to reform the existing list, I suggest consideration
> be given to a dual-list (filtered/unfiltered) approach.  Under this
> approach:
> 
> 	1.  Two lists are established, one unfiltered and one filtered.
> 
> 	2.  Individuals may subscribe to either list, with each person
> receiving by e-mail items from the list to which he or she subscribes.
> 
> 	3.  All postings from subscribers to either list are made directly to
> the unfiltered list.  To the extent feasible, that list keeps a
> permanent record of all postings.
> 
> 	4.  Promptly after posting, items are conditionally copied from the
> unfiltered to the filtered list according to well-articulated filtering
> rules.  For example, the following types of postings might not be copied
> to the filtered list:  items from unauthenticated sources, commercial
> solicitations, items that are cross-posted, items containing personal
> attacks or otherwise violating civil discourse rules, items not relevant
> to the DNSO's business, or items from persons repeatedly abusing posting
> guidelines despite warnings.  These filtering activities can be done
> automatically or manually, depending on the filter rules that are
> chosen.
> 
> Under this approach, all postings submitted are recorded on the
> unfiltered list and sent to those subscribers who choose to receive
> postings from that list.  In this way, full transparency is maintained
> and there is no appearance of any censorship by the DNSO.  At the same
> time, users who subscribe to the filtered list avoid receiving
> substanceless or personally offensive postings, while still receiving
> postings that meet the previously announced criteria for being copied to
> the filtered list.  If this approach is properly executed, stakeholders
> who are currently unwilling to subject themselves to the ga discussion
> list should be willing to resume contributions to the process through
> the filtered list, and the DNSO will regain the value of their
> contributions.  The only kind of "censorship" that occurs is by choice
> of the reader.
> 
> 	If the Names Council decides instead to abandon the ga discussion list,
> it should consider whether to augment existing alternative mechanisms to
> ensure that the following two functions are being performed adequately:
> 
> 	1.  Consideration should be given to establishing a formal mechanism
> for receiving proposals from non-constituency members for new DNSO
> policy initiatives.
> 
> 	2.  If the Names Council believes it important to maintain a record of
> what persons are participating in the general assembly, it should
> consider an alternative mechanism to the ga list such as a web-based
> enrollment mechanism.
> 
> I hope these observations are helpful to the Names Council in its
> consideration of issues concerning the present ga discussion list.  On
> behalf of the ICANN staff, let me extend to the NC our offer to provide
> further assistance in this regard.
> 
> Louis Touton
> Vice President and General Counsel
> reply to:  touton@icann.org
>