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 ]