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: [log in to unmask]