Re: [ga] Concerns & Petition

["William S. Lovell" <wsl@cerebalaw.com>]

Way to go, Danny.  The blatant disregard of its own rules by ICANN,
although it never hesitates to cite those rules when they happen to fit
its latest move, has gone on long enough. The NC in particular needs
to be called to account.

I happen to disagree with your premise that a working group is the "best
way" to get something done, but that's neither here nor there.  When an
issue calls for a working group, as the UDRP issue clearly does, then there
seems to be no basis for not establishing one, unless this whole "bottom-
up" phraseology is pure hype and ICANN is an entirely autocratic body.

Bill Lovell

DannyYounger@cs.com wrote:

> Philip,
>
> I have a number of concerns regarding the UDRP Task Force that I would like
> to discuss with you:
>
> 1.  The lack of a public comment period --
>
> Our Bylaws state:  "Any reports or recommendations presented to the NC by
> such bodies shall be posted on a web site accessible by the public for public
> review and comment; absent clear justification, which shall be publicly
> stated at the time of any action, the NC shall not act on any report or
> recommendation until a reasonable time for public comment has passed and the
> NC has reviewed and evaluated all public comments received. The NC is
> responsible for ensuring that all responsible views have been heard and
> considered prior to a decision by the NC."
>
> Public comment is more than a response to a questionnaire.  If the Task Force
> will be drafting recommendations, then a public comment period is needed to
> respond to those recommendations.  I see no indication of that in the current
> timeline posted at
> http://www.dnso.org/dnso/notes/2001.NC-tor-UDRP-Review-Evaluation.html
>
> 2.  The lack of a constituency comment period --
>
> Our Bylaws state:  "Following the receipt of a report or recommendation from
> such a body, the NC may accept the report or recommendation for submission to
> the Constituencies for comment and consultation, or return the report or
> recommendation to the body from which it originated for further work."
>
> There does not appear to be a procedure that allows for the constituencies to
> formally comment on the recommendations cited in this timeline either (which
> would be required prior to a vote:  "After the report or recommendation is
> submitted to the Constituencies and the comment period for the Constituencies
> has expired, the NC shall evaluate the comments to determine whether there is
> a basis for a consensus recommendation to the Board."
>
> 3.  The lack of a GA "body" --
>
> Our Bylaws state that the "substantive work of the DNSO" is to be carried out
> by "research or drafting committees, working groups and other bodies of the GA
> ".  A single GA representative is neither a committee, nor a group, nor a
> body of the GA.  Our Bylaws envisioned a structure whereby the "work" gets
> handled by the members of the GA, with "each recognized Constituency...
> invited to participate in each of such bodies."  Only the "management" of
> such groups is the responsibility of the NC.
>
> Your particular approach is denying the General Assembly its full right to
> participate in the consensus-building process as envisioned by the Bylaws.
> There is a reason why we have had working groups drawn from the General
> Assembly membership to tackle each of the major issues that faced us in the
> past... a working group is the best possible bottoms-up mechanism to discover
> consensus, and yet the NC has decided to not establish a UDRP working group
> (although decisions reached by this Task Force may well impact many
> generations to come).  This decision must be revisited.   Many of us still
> recall the aberrant "conclusions" reached by the last Names Council Task
> Force (Review), and we do not seek to see that failure repeated again... a
> working group is essential on an issue of this importance to counterbalance
> the top-down Task Force approach.
>
> 4.  The lack of consensus mechanisms --
>
> A Task Force alone cannot meet the requirements of consensus.  The Terms of
> Reference for this group indicate that "to the extent no consensus can be
> reasonably reached on an item, majority vote shall rule".  Since when is a
> simple majority considered to be consensus in the ICANN process?   Shall ten
> members of this Task Force decide for all the rest of us, especially when
> eleven of these participants may not even be members of the DNSO?   Consensus
> is more than a majority vote... it documents the extent of agreement and
> disagreement among impacted groups, documents the outreach process used to
> seek to achieve adequate representation of the views of groups that are
> likely to be impacted, and documents the nature and intensity of reasoned
> support and opposition to the proposed policy.  -- How do you expect a single
> questionnaire to accomplish all of the above?
>
> 5.  The lack of open processes --
>
> The General Assembly has a large number of members with expertise in the UDRP
> topic and qualified to participate in such discussions; we even have our own
> UDRP mailing list devoted to this subject.  It is not appropriate that these
> interested members be denied the opportunity to formally participate.  Such a
> decision would run counter to the principles of ICANN which call for fair and
> open processes.  A process is not open if it is closed to the bulk of our
> membership.   This issue requires nothing less than a full working group, and
> Working Group D has already established all the necessary policies and
> procedures to satisfy the requirements of the Council.
>
> 6.  Petition --
>
> Further, whereas the Names Council has previously voted to accept the
> recommendations of Working Group D, and whereas such recommendations allow
> for any member of the GA to petition the NC for the formation of a working
> group, I am now formally presenting you and the Names Council with this
> petition to create a UDRP working group to act in conjunction with the UDRP
> Task Force.
>
> The General Assembly appreciates being asked to submit a candidate to the NC
> UDRP Task Force, but any action which contemplates revisions to the UDRP must
> involve a full General Assembly working group as well.
>
> Best regards,
> Danny Younger
>
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