[ga] Concerns & Petition

[DannyYounger@cs.com]

Philip,

I have a number of concerns regarding the UDRP Task Force that I would like 
to discuss with you:  

1.  The lack of a public comment period -- 

Our Bylaws state:  "Any reports or recommendations presented to the NC by 
such bodies shall be posted on a web site accessible by the public for public 
review and comment; absent clear justification, which shall be publicly 
stated at the time of any action, the NC shall not act on any report or 
recommendation until a reasonable time for public comment has passed and the 
NC has reviewed and evaluated all public comments received. The NC is 
responsible for ensuring that all responsible views have been heard and 
considered prior to a decision by the NC."

Public comment is more than a response to a questionnaire.  If the Task Force 
will be drafting recommendations, then a public comment period is needed to 
respond to those recommendations.  I see no indication of that in the current 
timeline posted at 
http://www.dnso.org/dnso/notes/2001.NC-tor-UDRP-Review-Evaluation.html 

2.  The lack of a constituency comment period --

Our Bylaws state:  "Following the receipt of a report or recommendation from 
such a body, the NC may accept the report or recommendation for submission to 
the Constituencies for comment and consultation, or return the report or 
recommendation to the body from which it originated for further work."

There does not appear to be a procedure that allows for the constituencies to 
formally comment on the recommendations cited in this timeline either (which 
would be required prior to a vote:  "After the report or recommendation is 
submitted to the Constituencies and the comment period for the Constituencies 
has expired, the NC shall evaluate the comments to determine whether there is 
a basis for a consensus recommendation to the Board."

3.  The lack of a GA "body" -- 

Our Bylaws state that the "substantive work of the DNSO" is to be carried out 
by "research or drafting committees, working groups and other bodies of the GA
".  A single GA representative is neither a committee, nor a group, nor a 
body of the GA.  Our Bylaws envisioned a structure whereby the "work" gets 
handled by the members of the GA, with "each recognized Constituency... 
invited to participate in each of such bodies."  Only the "management" of 
such groups is the responsibility of the NC.

Your particular approach is denying the General Assembly its full right to 
participate in the consensus-building process as envisioned by the Bylaws.   
There is a reason why we have had working groups drawn from the General 
Assembly membership to tackle each of the major issues that faced us in the 
past... a working group is the best possible bottoms-up mechanism to discover 
consensus, and yet the NC has decided to not establish a UDRP working group 
(although decisions reached by this Task Force may well impact many 
generations to come).  This decision must be revisited.   Many of us still 
recall the aberrant "conclusions" reached by the last Names Council Task 
Force (Review), and we do not seek to see that failure repeated again... a 
working group is essential on an issue of this importance to counterbalance 
the top-down Task Force approach.

4.  The lack of consensus mechanisms --

A Task Force alone cannot meet the requirements of consensus.  The Terms of 
Reference for this group indicate that "to the extent no consensus can be 
reasonably reached on an item, majority vote shall rule".  Since when is a 
simple majority considered to be consensus in the ICANN process?   Shall ten 
members of this Task Force decide for all the rest of us, especially when 
eleven of these participants may not even be members of the DNSO?   Consensus 
is more than a majority vote... it documents the extent of agreement and 
disagreement among impacted groups, documents the outreach process used to 
seek to achieve adequate representation of the views of groups that are 
likely to be impacted, and documents the nature and intensity of reasoned 
support and opposition to the proposed policy.  -- How do you expect a single 
questionnaire to accomplish all of the above?   

5.  The lack of open processes -- 

The General Assembly has a large number of members with expertise in the UDRP 
topic and qualified to participate in such discussions; we even have our own 
UDRP mailing list devoted to this subject.  It is not appropriate that these 
interested members be denied the opportunity to formally participate.  Such a 
decision would run counter to the principles of ICANN which call for fair and 
open processes.  A process is not open if it is closed to the bulk of our 
membership.   This issue requires nothing less than a full working group, and 
Working Group D has already established all the necessary policies and 
procedures to satisfy the requirements of the Council.

6.  Petition --

Further, whereas the Names Council has previously voted to accept the 
recommendations of Working Group D, and whereas such recommendations allow 
for any member of the GA to petition the NC for the formation of a working 
group, I am now formally presenting you and the Names Council with this 
petition to create a UDRP working group to act in conjunction with the UDRP 
Task Force.  

The General Assembly appreciates being asked to submit a candidate to the NC 
UDRP Task Force, but any action which contemplates revisions to the UDRP must 
involve a full General Assembly working group as well.


Best regards,
Danny Younger






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