- New gTLD database
GAC Discussion on New gTLDs (Part 2)
CHAIR – HEATHER DRYDEN: Hello again, everyone. If we can begin to take our seats again, we'll continue with our work.
Let's restart our meeting. So what I propose to do this afternoon is continue the discussion about new gTLDs. And then, at the very end, we have some GAC business to take care of. And we can go back into a
short closed session just to deal with those items. Regarding new gTLDs, let's see whether, at this point, we are able to begin exchanging about some of the topics that we just heard about and had questions
about before the break and see whether it's possible for us to formulate thoughts or the beginnings of advice that we might want to give on those topics that would go into our communique this week. We did
have a fair number of questions around process and timing for current elements. But I would like to see whether we're in a position to begin formulating on some advice on those same topics at this point. So we
can see how that develops.
In this session, if there's time and interest, we can include a discussion about IOC and Red Cross and also the point we wanted to raise about text that we provided for the applicant guidebook being modified and us not being informed about that before it was published in the guidebook and not being given the opportunity to assess the extent to which that changes the meaning or the impact of that text.
So, with the IOC and Red Cross, we going to be discussing this with the GNSO tomorrow. And there is a document that they have provided that's part of your materials that is in preparation for that exchange and
that follows a preparatory phone call that was held a few days ago on that.
And, as I say, with the applicant guidebook, this is something that we have on our agenda with the board as well. So these issues will still be raised. And they will have an opportunity to discuss those as a GAC as
well, because we still have those items in the agenda.
So are there any comments on how we proceed? Otherwise, I suggest we run through the topics and I would like to test out the degree of readiness that we have to actually provide or begin to consider providing advice on those topics. Netherlands, please?
NETHERLANDS: Thank you, Heather. I wanted to propose something, which is basically idea from Hubert. But he's busy somewhere else. And, given the fact that we had a lot of questions now and we have not got back with, let's say, a kind of timeline and answer.
What Hubert suggested is that we could make this six or seven bullet points and just give them now to staff to give to at least expect an answer from the ICANN board in our Tuesday session. I'm a little bit --
to be honest, a little bit frustrated to be asking, let's say, two or three times -- other members have the same impression -- and not getting back in between why some deadline was not reached, for example. So
just, again, completely in the middle of confusion for the next steps.
So one thing would be, if we just proposed these questions to the board and say, okay, give us, please, an answer on Tuesday or else some later. Thanks.
CHAIR – HEATHER DRYDEN: Thank you. I think that's a good suggestion. In speaking to Karen and Amy, they were going to compile those questions and convey them back to the board. But I also think it's useful for us to formulate some points or questions and provide those today at the end of the session today to the board to help get those responses back before we conclude our GAC meeting. So EU Commission, please.
EUROPEAN COMMISSION: Thank you, madam chair. I think the idea coming from Germany, which has been raised by
Netherlands -- it was also your idea on this, too -- is excellent. Perhaps what we could do is understand the member of ICANN staff who were here before the coffee break. Well, the break, because there was no coffee. But, anyway, the break. Sorry. I'm Italian. So for me lack of coffee is an important matter.
But perhaps what we could ask is if ICANN staff could, as they're doing, they could write down the questions, then show them to us in the course two days, so we can double-check that there was a common understanding of what those questions were. Because this would allow
us to -- perhaps now is not a right moment to make a round to ourselves to check to see which were the questions and see if there are other points we may want to discuss. So that might be an approach that would allow us to proceed and send to the board a questions even by the end of the day, if the staff is in a position to write down six or seven questions and provide them to us quickly.
CHAIR – HEATHER DRYDEN: Okay. Thank you. Let's do that. Let's make a request to Karen and Amy to provide us with the list that they're going to prepare and ask whether we can have that in the next few moments or before the end of today.
In the meantime, then, perhaps we can have a discussion about the IOC and Red Cross and the applicant guidebook. And then, if there's opportunity, then we can refer to that list or begin creating our own. Okay?
All right. So I just want to confirm that that request will be made? Yes. Nodding. Okay.
All right. So, on the topic of the IOC and Red Cross, I will look to the leads on this, which I believe are the U.K. and the United States. But, perhaps, if there are introductory points you'd like to make regarding
the state of play, and then we can seek comments on that.
UNITED STATES: Thank you, madam chair. Just to remind colleagues, it came out probably just before we all got on planes. But I did send out an update notice with the report from the GNSO drafting team, so that we all have their report to prepare ourselves for the discussion tomorrow afternoon with the GNSO.
And what they have done, they did identify some loopholes, if you will, in the board's resolution for the protection of the IOC Red Cross, Red Crescent names at the top level, which, as you will recall, we had asked for protection both at the top and the second. And, with the board's resolution in Singapore, we felt we had covered the topic, if you'll recall.
And we then transmitted the proposal to the GNSO, as per the resolution, with a set of questions and answers we thought would help guide the GNSO's work.
But what they did identify for us on the call and in their drafting team report was, actually, they felt that there were some inadequacies that were kind of built in to the resolution. It wasn't as complete as it needed to be. So they have focused their initial effort on closing the loopholes, so that, if the goal is to have the GNSO council approve their proposed fixes, so that that can be communicated to the board by the GNSO, we, the GAC, would similarly say we support that. And that, hopefully, would be accepted by the board. And then it would be implemented in the guidebook before the applications get -- you know,
posted and start to get processed. So we have the protections at the top level.
My understanding now -- and we'll learn more from the GNSO tomorrow -- is they are now turning to the second level. Mark, you had something, please.
CHAIR – HEATHER DRYDEN: U.K.
UNITED KINGDOM: Yes, thanks very much. That is, essentially, the situation. There's less urgency with regard to the second level, because -- (dropped audio) -- is going to kick in really from deployment of the round, following the -- (dropped audio) -- so that work will -- and the options available with
regard to second level will -- this is starting now, so that's encouraging and we'll continue.
So, yeah. As Suzanne said, with regard to the top level, certain things need to be finalized. But, overall, I think the progress is really --
(dropped audio) -- working with the GNSO through this. Cooperation between the GAC and GNSO has been very -- (dropped audio) -- it's a model of -- (dropped audio) -- under the direction of the board. (Scribe
audio cutting in and out.) Thanks.
CHAIR – HEATHER DRYDEN: Thank you. Are there any questions or comments? EU Commission,
EUROPEAN COMMISSION: Just clarification, if the U.S. would confirm, Suzanne, the document that you're referring to right now is the IOC RC drafting status report 29 February, 2012? Okay. Thanks.
Just for confirmation, because I must admit this is not yet completely correct to me. The drafting team that is author of this report is composed of members of the GNSO. So the GAC does not formally participate in the drafting team. Is that correct? Just for my
information to have a complete picture.
CHAIR – HEATHER DRYDEN: Thank you for that question. United States.
UNITED STATES: Thank you. Technically, yes, it is correct. However, we had the -- the invitation was extended to us to participate. I think, in view of our
workloads, all of our respective workloads, we were not able to do so. But I personally felt very confident that the representatives from -- for
the IOC and the Red Cross, Red Crescent did participate. They are members of the drafting team. So they have helped answer questions. They've helped respond. And Mark and I have both reached out to both
organizations to confirm that they are very comfortable with the proposed language.
So that has sort of generated, at least for me, a certain level of comfort that, had they not been participants, I might not otherwise have.
But -- and I did want to concur with Mark. I do think it's important for us to convey -- this may be the last time we talk about this before we meet with the GNSO and before we meet with the board. But I do hope
that GAC colleagues share our view that this has been a very interesting experiment in collaborating with the GNSO. And I think we can applaud their -- and commend them for the time and energy they've actually
directed to our requests. And, to me, it sends a very good signal that there are other ways, other than sort of rigid structures, where we can be very flexible with other parts of the community in advancing a goal
that we have and that I think we should be quite grateful that they have come to also share that goal and are working out perhaps a different level of detail than we had. So I do think we want to probably signal that both to the GNSO and to the board that this has been a very positive experiment. Thanks.
CHAIR – HEATHER DRYDEN: Thank you very much, U.S. EU Commission, please.
EUROPEAN COMMISSION: Thank you madam chair. And thanks to the U.S. for the clarification. We were not involved in the drafting, so we trust the colleagues and the GAC that followed for what was the level of positiveness, how positive was the experience. If you believe the experience was positive, we have
absolutely nothing in contrary to signal.
I think this kind of experience needs to be multiplied. Quite frankly, we, as a commission and other colleagues, would sometimes like to be more
engaged in policy development processes. But, quite frankly, it's difficult to take positions in that context because we need to go back home and check if this particular experience at the cross constituency's
work is positive. It would be very good to signal it.
I do, however, have one question again for clarification. I read the report. And this is why I wanted to confirm the report I read was actually the correct one.
I understand that for what concerns protection at the second level, the drafting team is identifying a number of questions for further reflection.
And one of the questions -- the first one is, in fact, should Olympic and Red Cross names be reserved at the second level of new gTLDs? This strikes me as something that goes very much beyond what the drafting
team should do. This is a kind of political decision that is normally taken in other -- at other levels. So I was a bit confused to see this kind of question. Because I thought there was already some kind of consensus on this particular point. Whether positive or negative, I don't know, but there was a kind of consensus.
CHAIR – HEATHER DRYDEN: I have Portugal and then United States. I'm sorry. Italy, you were next.
ITALY: Okay. I have an observation concerning how we spend our energies and time. It is surprising to know this story that was decided in Singapore and then how long it took to arrive to a final decision. And I really hope that this can be solved as soon as possible. But we are almost arriving at the deadline when it will be published the list of the proposals.
And then us, the GAC representatives, have been receiving pressure. But all those organizations within U.N. and within other publicly known like OECD -- OECD are making pressures in every country. They say why
Red Cross and Olympic Committee? And why you do not protect us? Apart from arguing about the legal value of the protection that may be different from those and the others. But their point is that we should be prepared to discuss with ICANN cases in which someone once applied for OECD, just to make an example. We have no time now to start discussing and protecting the same level of OECD and of Red Cross and Olympic's Committee. So this is the real problem.
A criteria that the GAC, if consulted by these organizations, have to say something. They want we say something on this cases.
They want we say something on this case. I don't know if many of you received this input from the community. Thank you.
CHAIR – HEATHER DRYDEN: Thank you, Italy. Portugal, please.
PORTUGAL: By coincidence, my intervention is a little bit related to the concerns that Italy just expressed. But I want to voice them in a very different way. As a matter of fact, repeating what I have said in the past two GAC meetings.
We, as representative of governments, at least in the case of Portugal, are not supposed to act on these sort of situations on specific ad hoc basis but on abstract conceptual basis, on the terms of what is actually the grounds on which we should act towards one or another organization.
I see many organizations in the world that should deserve same treatment, that we are trying to achieve for the Olympic -- or the International Olympic Committee and for the Red Cross.
So I don't have anything to -- against, in terms of policy setting for a pragmatic point of view of trying to break ground with particular clear cases. But I certainly would not be happy to finish there.
So, if we find the solution to this case, it should, in our opinion, be generalized whether intergovernmental, international organizations that also deserve same treatment. Thank you.
CHAIR – HEATHER DRYDEN: Thank you, Portugal. United States.
UNITED STATES: Thank you, madam chair.
Actually, let me take some colleagues back a little bit in time when we first began to consider the proposal from the IOC and the Red Cross. We did quite a bit of due diligence around the table in determining that these two organizations -- unlike the IGOs, these two organizations appear to be the only two organizations in the world that benefit from
two levels of legal protection. The first is international treaty, and the second is protection under national law in multiple jurisdictions, multiple.
That's a two-level test. And we discussed this at some length. We did due diligence. And, in our assessment, we determined that no other entity, including the IGOs, actually could meet that standard of these
two levels of protection. So there has been history here. There has been discussion in and among the GAC. And that was the bar we set quite deliberately. Because, if you will all recall, there was a strong
concern expressed when we even first started to discuss this that, if we were seeking to open the door to these two, were we not opening the door, the slippery slope, the camel's nose under the tent -- all of those things -- to anybody seeking special protection at the top and the second levels?
And we all debated this at some length to say, no, we felt fairly confident that this was -- these were two quite unique entities that benefited from these two levels of legal protection. And that makes them unique and distinct from the IGOs.
I hope that answers your question. Because that theory is what guided the development of our position on the IOC and the Red Cross. We're all very mindful. Because, in fact, we're all -- as governments we're
members of these IGOs. And so we're mindful of their position.
It's been my understanding, informally, that the letters have, in fact -- from the IGOs have gone to the board directly. I believe we were copied. But many of these IGOs are, in fact, member observers to the
GAC. So it's quite interesting that, as observers, they've had full access to the e-mail list and full access to all of our deliberations as we were
developing our position on the IOC and Red Cross. So, just speaking personally, I would have expected to hear from them quite a long time ago. But that's their prerogative. Nonetheless, this is why we're here at
this particular point in time.
I understand the letter has gone. My informal understanding, Chair, is that ICANN may well come to the GAC and ask us to help them understand how to respond. I think we may well get questions tomorrow afternoon from the GNSO. Because they, apparently, are trying to understand what does this letter from the IGOs mean? Do we need to treat them the same way as the Red Cross and IOC? Both Mark and I answered that question on the call last week, but I anticipate as the council is here face-to-face, there will be more questions. Actually, we did cross that bridge some time ago. And I'm not sure there is sufficient time to revisit it or on what legal basis we would revisit it. Thank you.
CHAIR – HEATHER DRYDEN: Thank you, United States. Portugal, I can put you in the speaking order, but you're -- I have other requests to speak as well.
So, first of all, regarding the board asking the GAC to provide further advice or clarification on this, I am informed that we will receive that request momentarily. We just have not yet. So that will be coming. And then the issues now that are being put to the GAC are that, when we considered this earlier, we put forward protection for the IOC and Red Cross on an exceptional basis. So, if there are comments to those
particular aspects, then we can perhaps move forward in the discussion.
So next I have U.K., then Portugal, Mexico, and Switzerland.
UNITED KINGDOM: Yes. Thank you, chair. We do find ourselves, I readily grant, in a rather awkward situation. The negotiations with regard to - initially, it was, primarily, the IOC were very detailed, sometimes quite hard-fought negotiations. And there was obvious concern, as the U.S. has explained that there was a risk of the floodgates being opened, if you like. And we did explain that, so I'm not going to repeat what the U.S. has said.
We achieved progress with regard to the IOC and with regard to the Red Cross, Red Crescent as well. So we do risk this perhaps unraveling, if it's -- if we try to develop this as a much broader initiative. My thought was that we do note this concern as the GAC and we communicate this in the communique. But, if we are going to receive this request with the board, that does change the situation.
So I think it's appropriate for the GAC to acknowledge the aims and intentions of the letter from the legal advisors on behalf of the IGOs. And we should give this due consideration in light of what the board is
asking us to do. Thanks.
CHAIR – HEATHER DRYDEN: Thank you, U.K. Portugal, please?
PORTUGAL: Well, what I would like to say is that -- of course, I don't want to reopen the discussion as the amplitude of the criteria that was considered for
having this treatment. But I think, however, that is natural for an organization representing governments to define criteria to be applied on the basis of the names of persons or organizations, on the basis of
their characteristics. Because we may say we worked hard. We didn't find more than two that fulfill the criteria that should be written or open. Any other organization that fulfills that criteria is the criteria that singles out those organizations.
So, again, Portugal is in favor of continuing to pursue the kind of protection we are trying to achieve for IOC and for Red Cross. We were in favor of that movement from the very beginning. But we think the
criteria is to be defined abstractly, even if so narrowly that it applies to very few organizations. Thank you.
CHAIR – HEATHER DRYDEN: Thank you for that clarification, Portugal. Okay. Next we have Mexico.
MEXICO: Thank you, madam chair. If you allow me, I'll speak in Spanish considering that we have translation.
From the Mexican point of view, as Suzanne and Mark mentioned, these two organizations are protected both at an international and a local level and national level. Therefore, we understand that there are few
organizations that could enter in this aspect.
In this sense, we deem it important that we continue the work on protection of the second level. Likewise, as the comments from Europe were commenting, even if this is not a criterion that the GAC could take for all the applications that could come with this sense of protecting their name in being considered within an international treaty, it is necessary that the GAC defines the treatment to be given to these applications considering that they will continue receiving these type of applications to the GAC. Thank you.
CHAIR – HEATHER DRYDEN: Thank you very much, Mexico. Switzerland.
SWITZERLAND: Thank you. I would confer with Portugal that we should have more clear rules or criteria, whatever you call them. Because I guess we are --
we are not the only country. But we are -- also foreign ministries are approached when there are delegations to these organizations by institutions that want -- that ask for a similar protection like what has been granted to the IOC and the Red Cross.
And one point in the principles -- in the GAC principles of 2007 is that intergovernmental organizations should be protected. The question is
how, to what extent, with what means should they be protected? Are the things enough -- for whom -- for which organization do the provisions in the guidebook and the independent objector and all this means that there are, are these enough? For which ones are they not enough and their names should be included?
And we are also not fully clear about what we are supposed to answer to these organizations that ask us as member states to defend their interests in the GAC. So we would also be -- have an interest in having
more clarified criteria that we could then convey to these organizations, if they ask us.
And, just with regard to what my colleague from the U.S. has said, I mean, the U.N. institutions, they're also all based on an international treaty. So I -- so this is also not -- I don't know. But maybe you could
have some more additional information what the difference is between the international treaty on which the Red Cross and the Olympia Committee's founded, then the U.N. institutions and the same -- but the national -- what is so particular about the national status, the national law, because all these treaties of intergovernmental organizations, they
are also reflected. They have effects on national laws. The WTO and WIPO treaties are also reflected in national law.
So we would be interested in (dropped audio) more clear because, to be honest, we are not really able to give a, let's say, sustainable answer to these organizations that confront us. Thank you very much.
CHAIR – HEATHER DRYDEN: Thank you, Switzerland. Are there any further comments on this topic? EU Commission, please.
EUROPEAN COMMISSION: Thank you, Madam Chair. I must say that although I do understand and, up to a large extent, I do share the concerns that have been raised by Portugal and Switzerland. It must also be recognized, as has been said, this topic is not a new
topic. And that was discussed before. I do remember, personally, plenty of e-mails from U.K. from Mark on
this topic. The GAC was kept fully informed about the whole process of development of this particular policy.
Now, we may debate, and certainly people out there debating and in the future there will be debates whether this is a good or bad choice. But I think this point needs to be made that there was a debate, there
was a long process.
And to be absolutely honest, and I say this in the knowledge that there are many people who are not members of the GAC here, which is absolutely fine, I can say that the Commission did not follow this
particularly closely because we all need to prioritize and we entrusted, so to speak, implicitly entrusted other colleagues in the GAC to follow this.
So, again, sympathizing with the points that have been raised by Portugal and by Switzerland, it doesn't seem to be very honest, it doesn't seem to be entirely fair to me now to question a process that's been going on for many, many months.
Now, more on the substance. My understanding for what concerned the question by Switzerland, my understanding, but the U.S.A. can correct me, that one of the criteria was not whether a particular
organization was a treaty-based organization, as Thomas correctly points out, there are many. Almost all the IGOs are treaty based. But whether there is a treaty out there that protected the name of the
In the case of the Olympic Committee or the International Olympic Treaty, I am aware of the Nairobi treaty which protects all the symbols
related to the Olympics. Actually, a former university colleague of mine did his whole Ph.D. thesis on the Nairobi treaty, but don't ask me how you can do that and remain sane, but he did it. So I do know there is a treaty-based protection for that name and, I understand there is also for the international for the Red Cross and Red Crescent movement.
Having said all of this, yes, we may consider for a subsequent round perhaps whether we should find a more generic criteria, although I understand that the criteria that have been selected are generic, which
is protection international law, protection for the name under an international treaty and the protection at the international level.
We may refine those criteria but we also need to be pragmatic. I don't think we will be able to refine them before the close of the application period now. And I'm not sure we want to re-open the Applicant Guidebook, to be very honest. I'm not sure we want to re-open the Applicant Guidebook now.
One point that has been raised to us, to the commission, by a number of stakeholders, which is something where I believe the GAC may now help
is the issue of the confusing similarity, whether not only the names Red Cross may be (garbled audio) in the top level or second level but also those that may be confusingly similar should be protected somehow.
And there perhaps there is the possibility for the GAC to avoid to go a bit too far, let's say and make it clear that we want protection for one particular string, that is career associated with the Red Cross, or two or three or how many there are that are subsidiary of the Red Cross in the different languages. The protection of the languages may be there.
What we want to avoid is a situation in which we would be protecting, for example, a combination of Olympic with something else, which we may want to allow, because it's not -- clearly it's not confusable with the Olympic games.
So that is a compromise that we might strike. But I don't think -- I understand, this is not the intention of Switzerland and Portugal. Portugal was very clear on this. I don't think that we can re-open that topic right now. That would be difficult in practice. And as I said, quite unfair, a bit unfair towards the colleagues who have devoted a lot of time on this, fully informing the GAC, as well as, the U.S.correctly points out, fully informing all the international organizations which are observers of the GAC of the whole process. Thank you.
CHAIR – HEATHER DRYDEN: Thank you, EU Commission. So at this point, at a minimum it looks like we will need to restate or clarify the basis on which the previous advice that the GAC provided was given. And then to the point about considering whether the GAC would advise that protection should be offered to these additional organizations, I do not see agreement, and I do not see that we can come to agreement at this point.
However, when we receive the letter from the board, as I say, we can expect you to restate, at least, or clarify the advice and the rationale for why we have made a prior decision. And if there are further questions there related to this, then we can try to develop a response to that. I have Australia, then United States.
AUSTRALIA: Thank you, Chair. And thank you for that excellent summary, which makes my contribution much easier.
First, to concur with the views of European Commission colleague that I wouldn't see re-opening the guidebook. It's practical at this time. But that does not mean that there are no protections available for the -- for IGO names, nor that the GAC can't do anything about them.
As we've briefly touched on already, the GAC has the ability to issue early warnings and advice on contentious or sensitive strings. Part of the reason the GAC argued so hard for this ability is the difficulty of figuring out all potentially sensitive or contentious strings in advance. It's simply not practical.
So it would seem that IGO names, for at least some people around the table, and potentially all, would fall into that category. So it is certainly open to the GAC to issue early warnings or advice if IGO names are applied for.
CHAIR – HEATHER DRYDEN: Thank you, Australia.
I have United States, Norway, and Senegal.
UNITED STATES: Thank you, Madam Chair, and thank you -- both the EU Commission and Australia for your interventions. I think the EU Commission has helpfully pointed out, our criteria had nothing to do with whether the entities were a treaty-based organization or not. And that is a very, very key distinction.
But the document that fleshed out the rationale in a little bit more length than what we originally proposed to the board is in the September letter, September of 2011 letter that we sent to the GNSO
Council. So we can just resurface that.
There is a section that says, "Rationale and Basis for Joint GAC/GNSO Support." Though we clearly explained what the rationale was, it is the protection at these two distinct levels, and that's what makes the difference.
Thank you. And I do concur with Australia, sorry, that there do exist a number of means ask mechanisms that the IGOs can avail themselves of, not the least of which is the GAC, early warning system, and
objection process, as well as legal rights objections.
So to the extent any of their names are, in fact, trademarked and enjoy that protection, they have that opportunity to submit a legal rights objection.
CHAIR – HEATHER DRYDEN: Thank you, United States. Norway, please.
NORWAY: Yes, thank you, Chair. I just also want to comment on what the European Commission and
Switzerland touched upon. I think we just have to admit that the GAC were not able to prioritize everything that was in the GAC principles of 2007. And this was an issue that, of course, (indiscernible) sort of made concrete proposals about that kind of protection.
On the other hand, of course when we did these discussions on protecting IOC and the Red Cross, of course we discussed it could potentially make precedence. And of course we would not like that to
make precedence, but of course from the outside, then, of course they would sort of have the impression that these are making precedence, even if we decide for ourselves that this should not make precedence. So we might have a problem here.
But also, as Australia commented, and also as the colleague from the U.S. just said, the IGOs are not without protection, because they can, of course, claim the protection towards ICANN in that process and are not sort of limited to specific support from the GAC. They could then claim their rights towards the ICANN in these processes. Thank you.
CHAIR – HEATHER DRYDEN: Thank you for that, Norway. Senegal, please.
SENEGAL: Thank you, Chair. I will speak in French. I would also like to have clear criteria to avoid stating a precedent, and to provide maximum protection to these organizations, because they donated. And now talking about the observers in GAC, I would like to
underline the case, the case of Africa. When it was put forward, a letter to GAC, we were answered that anything related to the new gTLDs is on the new application date; that nothing had been considered in these guidelines to protect our continent.
So the presentation is open now. I believe that we cannot take two actions based on the fact that there is or there is not an international treaty. We have to be egalitarian in relation to that.
And if the ICANN is applying the guide, we should have a new version of the guide that will support the protection, not only of international organizations but also geographical domain names such as it happens
CHAIR – HEATHER DRYDEN: ...this topic for today. What I propose we do next is that we have a brief exchange about the change to the text that was added to the Applicant Guidebook that the GAC developed at the Dakar meeting.
We do not yet have the response or list of questions back from staff. So it looks like we will need to try to obtain that list this evening, send it to the GAC list. And if we can, find time tomorrow, earlier in the day, if possible, to confirm those questions, and then we can relay those back to the GAC.
So we will endeavor to handle that issue that way. And then we will have a short closed session at the end of today to finish up some GAC business that we did not conclude on this morning.
So regarding the changes to the text, to the draft Applicant Guidebook, a few of you did comment to the GAC e-mail list about this, and so have a particular interest in this.
Are there comments that some would like to make? I don't think there's a particular lead on this issue, but I think it's a really fundamental procedural issue, and also relates to communications between this committee and the board. United States, please.
UNITED STATES: Thank you, Madam Chair. I am trying to catch the attention of my colleague from Germany but he is busy doing something else. It was Hubert Schöttner who had so astutely pointed out the change to all of us, because I don't think we were mindful of it.
I do think it's within our -- well, let me say the word, rights, if you will. We developed consensus text that outlined what we consider to be the agreed approach toward GAC objections. We submitted it, and it wasn't for several weeks, I guess, that we find out inadvertently, back channel, we certainly didn't get a formal notice that the text was amended.
So I think it is worth our while to find out on what basis. I can only guess that it was amended by staff, since we have seen no instruction from the board to the staff. But it would be useful to surface that. And
I think to put a marker down that when and if, and especially on a subject as important as that subject was, that the staff assesses a need to amend it, then they have an obligation, I believe, to come back to the source of the text.
And I think we probably need to flag that for the Board and request that the staff amendment be deleted. And if the board would disagree, then it would be very helpful to have an understanding of why.
And I would like it make sort of a related suggestion. It may not be a good one, so feel free to shoot it down.
We also meet with the new GAC board working group on the ATRT recommendations, and I suggest that we add this sort of circumstance to that agenda, because I consider them our partners, and I think we indeed to keep flagging things like this that occur and urge them to work with us to avoid them. And not just minimize them. I mean avoid them.
I don't think it's appropriate for the staff to come back to the GAC and amend our text without alerting us, without explaining why they feel it necessary, so we could actually tell them whether we would agree or
It's just a suggestion that we take it up additionally with the ATRT, GAC, Board.
CHAIR – HEATHER DRYDEN: Thank you, United States. So we have a proposal that we inform the board that they have an obligation to come back to the GAC in such
instances, and that the GAC, in fact, requests deletion of that text from the guidebook, and that the Board/GAC working group related to the accountability and transparency recommendations take that up.
So next I have EU Commission, please.
EUROPEAN COMMISSION: Thank you, Madam Chair. Allow me, first of all, to thank Germany who spotted this problem, and I think quite frankly it would have gone
unnoticed if it hadn't have been for Hubert.
As the Commission said on the GAC mailing list, but allow me to repeat it for the benefit of everyone, on procedure, in terms of procedure, we find -- I will be even stronger than the U.S. has been, I find it quite unacceptable that the GAC is asked to provide text and this text is changed without our knowledge. That certainly doesn't help the good relationship between the GAC, between governments, public authorities, and the ICANN staff and the community.
So I will certainly support, we will certainly support a clear question to the Board and/or to the staff to clarify what has happened.
Now, as I also wrote in my e-mail to the GAC list, I must admit that we still have some problems understanding whether this is also (indiscernible) substance, which means whether the modifications in
the guidebook that unacceptably, I repeat, have been put without our knowledge, but whether those modifications actually put us, put the GAC in a worse position than would it have been with our original text. And that is something that I think is worth spending some time reflecting to moderate our reaction, without prejudice to the fact that in
terms of process we must make, in our opinion, at least, we must make it very clear that this is not the way to proceed. This is not good cooperation.
But on substance, perhaps somebody could clarify to me. I know Hubert from Germany tried to do it, but I must be a bit thick because I still didn't understand what is the real problem in the language that has
been added by whomever has added it in the Applicant Guidebook. Thanks.
CHAIR – HEATHER DRYDEN: Thank you, EU Commission. So a proposal that we first establish what is the impact of the changes and then consider the option of requesting
that it be deleted, that seems to be the logical way to approach that. Germany, you are next, please.
GERMANY: Yes. Thank you for U.S.A. and the Commission raising this question again.
From my point of view, first of all, yes, it's a procedure question. That's clear. We were asked to give advice. We gave advice, and this advice was changed. I think it's more than fair that we are contacted before having a changed text within the guide.
But the second one is a question of substance. And, yes, it's my position that this is also substantial implications.
Since -- If you followed the discussions we had during the last, at least, two years, what forms GAC advice. And we had different parts of the community, different understandings of what is GAC advice and whether we have to (garbled audio) the name GAC advice and what are the consequences of GAC advice. And I think we have to be really clear that we have only one form of advice. The wording we use and the advisory we give is clearly different, but we have only one form of advice, and the consequence, if the Board does not follow that advice, is written in our bylaws. And the bylaws consultations process is a real clear process if the board does not follow GAC advice.
And the amendment now in the text is mixing up these positions. Parts of the community may consider that this bylaws process is not necessary. And I think our common understanding, following the discussion we had in Dakar, is that this exactly does not I be you want to have (dropped audio) we want to have one legal consequence, let's see legal consequence of form or consequence of advice, and that we consider bylaws kind of situations after that.
And not as a forms of discussion and forms of solutions. And, therefore, I think it's also a substantial issue. Thank you.
CHAIR – HEATHER DRYDEN: Thank you, Germany. Norway, please.
NORWAY: Thank you. The clearance of GAC advice has been the main issue… (dropped audio) ... Twisting, turning, and trying to be clear and precise in our language. And we made this very clear. And we worked so hard on this. dropped audio) … worked so hard to make it clear, give them some clearance. Say we
didn't understand your advice. It's not clear.(dropped audio) what you mean by your advice.
So we work on this, and we try to make it firm and say that it is clear, if we give an advice to this and that, it is a clear presumption that (dropped audio).
And then to be met -- they meet us with these small changes. It looks small. In reality it goes to the substance. It says only what ICANN will say is -- is the whole process that if they don't want to follow the GAC advice, that it should give a rationale for the position. But, still, you see that it weakens, in a way, the presumption for the applicant that if they
have strong and clear advice from GAC, the application should not go through. And then you put the line on in the end saying but if we don't want to follow that one, we should just give a rationale.
It weakens the language that we have been working so hard on. So that's why we cannot force them to take this out, but at least we should have a discussion on this one, because it is important. Thank you.
CHAIR – HEATHER DRYDEN: Thank you for that, Norway. I see clear agreement among colleagues about the fundamental nature of this issue. It goes very much to the point about GAC advice. I have Australia, then EU Commission.
AUSTRALIA: Thank you, Chair, and thanks to colleagues who have gone before me. Building on the comments from Germany and Norway, I also believe that this is a substantive issue, in addition to being a procedural issue. As Norway said, there is a very strong language followed by (garbled audio). In addition, something more troubling, it is a selective quotation of the
bylaws in here. So I recall in regards to the second (garbled audio), a considerable amount of time trying to decide what the essence of the bylaws were to summarize for this. And we came down to two parts.
That is, if the Board does not agree with GAC advice, there are two things, really, it needs to do. It needs to enter into a dialogue with the GAC and put some effort into resolving it, and second is if it still doesn't agree after that, it will provide a rationale.
What they have -- staff, I assume, or what has been provided in the first and third example here is just the rationale. So what they have removed from here is the presumption that the Board will enter into a
dialogue with the GAC if it does not want to follow its advice.
So I find this, as Hubert said, very troubling in that it appears on the face of it that there appears to be different categories of advice with different responses. Sometimes they'll enter into a dialogue with us to understand the scope of our concerns; other times, they wouldn't and they will just give us a rationale.
So it's quite troubling to me from a substantive point of view as well.
CHAIR – HEATHER DRYDEN: Thank you for that, Australia. EU Commission, please.
EUROPEAN COMMISSION: Thank you, Madam Chair. Thanks, Norway, and to Australia, for taking the time to explain their concerns. I must say that I will not repeat the point on principle and proceed why are. I think we all agree fully on that.
On the substance, and noting we agree with Australia that it's bizarre and troubling that ICANN mentions, quote, "selectively" the bylaws, having said that, the addition that we can see are, first of all, what they
say is that the ICANN board is also expected to provide the rationale. I don't quite see the weakening that Norway sees in here. And on top of that, and this may be due to my national provenance. I have a big
ground in continental law, so I tend to think about norms in terms of hierarchy. And in the ICANN system, there is, in my view, clear hierarchy. There are the bylaws that take precedence over what the Applicant Guidebook can say.
Just for the record, the Commission does not see particular problem in the substance. However, it seems to may since there are colleagues who do find problems in the substance, we will be absolutely in favor of
asking the Board, or whomever has to (dropped audio) I believe, to remove the sentences that have been added on substantive and on (indiscernible) grounds, just to be clear.
Frankly, we don't agree that there is such a big problem, but if there are problems with other members of the GAC, and I understand there are, we support removal of these additional sentences. Thanks.
CHAIR – HEATHER DRYDEN: Thank you, EU Commission. Australia, please.
AUSTRALIA: Just very quickly. Look, to agree with the Commission, it would be my clear understanding as well that this would not in any way change the bylaws or trump the bylaws, so to speak. But what is concerning is that it is potentially confusing and misleading for applicants and people within the community. Applicants, that the guidebook is so specific because it is to lay out very clear procedures and so on.
So I agree that we should have confidence that the bylaws haven't been changed, but I think this is potentially confusing and misleading for the community.
CHAIR – HEATHER DRYDEN: Thank you, Australia. So what I would invite colleagues to do is to consider, at some point, for the communique, recognizing that we are going to be talking to the board about this, something like the GAC advides that the text be
removed. So I just want you to reflect on that. And (dropped audio) that some GAC members are asking for deletion while others may not be as concerned and making that same recommendation…
(dropped audio) … on that topic. Portugal, please.
PORTUGAL: Just a possible alternative to stating that in the communique. So we don't know what was the origin of this change of the GAC wording. Couldn't we consider this topic in the meeting we are going to have with the Board and to ask them to tell us what they think about it before we write in the communique what we should do about it?
CHAIR – HEATHER DRYDEN: Thank you, Portugal. Yes. And as we wouldn't conclude the communique until Wednesday and we meet with the board before that, we do have that opportunity. I just want to plant the seed among colleagues that I think that is the issue before us. I think regarding the procedural issue, we're in strong
agreement, this is a fundamental point about communicating our advice and the fact that it is bylaws advice and so on.
The other piece of it, I'd just like us to be reflecting on before we come to draft the communique.
All right. So at this point, let's move to the closed session. So I will ask all those in the room that are not GAC members or GAC member observers to leave the room, and we'll just take care of a few business items before we end for today.
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