Re: [ga] WLS Suggestion
In his preliminary report on WLS, our General Counsel identified a primary
concern -- the potential for various types of harm to the legitimate
interests of others. We are obligated to abide by the terms of the MoU
which state: "Neither Party, either in the DNS Project or in any act related
to the DNS Project, shall act unjustifiably or arbitrarily to injure
particular persons or entities or particular categories of persons or
Counsel recommended a preliminary "quick-look" evaluation to determine
whether it was plausible that the legitimate interests of others could be
harmed by the proposed amendment, and ultimately if such a determination was
made, that ICANN should invoke the formal consensus development mechanisms
that currently exist prior to any decision by the ICANN Board.
So, as a matter of policy, we need to determine first whether the proposal
will in fact will injure others, and secondly whether such injury is
justifiable and non-arbitrary. The DNSO report did not determine that the
WLS proposal would in fact injure others, nor did it examine whether such
injury might be justifiable or non-arbitrary. In short, it failed to examine
the relevant policy issue.
I don't believe that it would be "fair" to either party in this debate to
proceed without the benefit of such an examination (as our primary obligation
should be to respect the MoU).
The Board may reject a recommendation if it was not arrived at through fair
processes (Article VI, section 2, paragraph (e)(3)). Further, "If the Board
declines to accept any recommendation of a Supporting Organization, it shall
return the recommendation to the Supporting Organization for further
consideration, along with a statement of the reasons it declines to accept
To my mind the question is: Can we allow ourselves to potentially harm
others without having thoroughly examined the potential harm and whether it
might be justified? As a matter of policy, a certain amount of due diligence
is required... in this particular case, I don't think that our duty has been
performed (I see no evidence of a Task Force evaluation attending to this
concern). I would recommend tossing this back into the lap of the DNSO and
asking them to do a better job of it on the next go-around.
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