Re: [ga] Report on the NC Transfers Task Force activities

["Bret A. Fausett" <baf@fausett.com>]

> Besides, don't you think its time we learn how to develop a "consensus
> policy?"

Absolutely. Here's my view of how it should be done.

While the DNSO generally operates by consensus (Bylaws, Article VI-B(2)(b)),
new policies that purport to place binding obligations on registries and
registrars, like the transfer policy now under consideration, have to meet a
more specific definition of a "consensus policy" as set out in the various
accreditation contracts:

  "Consensus Policies" are those adopted based on a consensus
  among Internet stakeholders represented in the ICANN process,
  as demonstrated by (1) the adoption of the policy by the
  ICANN Board of Directors, (2) a recommendation that the policy
  should be adopted, by at least a two-thirds vote of the council
  of the ICANN Supporting Organization to which the matter is
  delegated, and (3) a written report and supporting materials
  (which must include all substantive submissions to the Supporting
  Organization relating to the proposal) that (i) documents the
  extent of agreement and disagreement among impacted groups,
  (ii) documents the outreach process used to seek to achieve
  adequate representation of the views of groups that are likely
  to be impacted, and (iii) documents the nature and intensity of
  reasoned support and opposition to the proposed policy.

http://www.icann.org/registrars/ra-agreement-10nov99.htm (Section I.B.1)
http://www.icann.org/registrars/ra-agreement-17may01.htm (Section 4.3.1)

As I see it, you read that definition backwards to find the chronological
order in which a consensus policy is created. In other words, you first need
to create a report that meets the definition in subsection (3). That report
is then adopted by the Names Council as specified in subsection (2). And, in
turn, the report and the NC recommendation to adopt it are passed to the
Board for a final vote, as set out in subsection (1). Only then are
registries and registrars bound to follow it.

The job of a Working Group is to start the process by creating the report
described in Section 3.

The first requirement for the report is that it document "the extent of
agreement and disagreement among impacted groups." In the present case, the
"impacted groups" are pretty clearly the registrars and the registrants. If
the latter voice is not represented, or even inadequately represented, then
it's simply not possible to adequately complete this section of the report.

The next requirement of the report is that it document the "outreach process
used to seek to achieve adequate representation of the views of groups that
are likely to be impacted." This obviously assumes that there is an outreach
process and that it is adequate for the task. In an open working group, the
process is part of the outreach, as impacted parties given adequate notice
of the opportunity to join can readily participate themselves. In a closed
task force, affirmative outreach to impacted parties must be undertaken,
both through the constituencies and to any unrepresented impacted groups.

I'm also skeptical that a TF that began work on 29 October can create a
"consensus policy" -- with all the outreach and documentation that such a
policy requires -- in time for a vote by the NC and ICANN Board next week.
While it seems that the registrars have done an excellent job preparing
something that has broad support from their constituency, the process is
only half complete as long as the much larger and very diverse community of
registrants has not also expressed its opinion.

Commercial and non-commercial organizational registrants *might* be
adequately represented through the existing constituencies (B&C, NCDNHC),
but individual domain name owners are not. Is the GA an adequate forum for
representing them? I don't know. This is an instance though in which our
collective failure to create a constituency for individual domain name
holders may have an impact, as it's not clear how to solicit the views of
this impacted group.

Given the fact that Verisign voted against the transfer policy and,
according to Danny's message this morning, has now expressed doubt about the
adequacy of the representation of registrants in this process, the TF and NC
would be well advised to invest the time and effort in outreach and
consultation necessary to ensure that Verisign is bound by the outcome,
whatever it may be. Better to do it right the first time than find the
policy suspended by an indepedent review or AAA arbitration.

          -- Bret

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