[nc-whois] Dialogue with NC Chair-revised version

["DNSO SECRETARIAT" <DNSO.SECRETARIAT@dnso.org>]

Please find the revised version of the teleconference November 18, -
Dialogue with the NC Chair.

DNSO Secretariat

ICANN/DNSO

Dialogue with Names Council Chair on 18 November 2002
Transfer and WHOIS Task Forces

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21 November 2002

Dialogue between Names Council Chair and transfers and WHOIS task Forces.

Introduction by Marilyn Cade:
The purpose is to have a chance to talk to the Chair regarding our efforts to achieve policy recommendations this year, and other "lessons" learned from our efforts within the two Task Forces.
I bring apologies from the co-chair of the WHOIS Task Force, Antonio Harris who can not be with us for the call

ATTENDEES
Bruce Tonkin - NC Chair
Marilyn Cade - Chair, Co-chair Transfer and WHOIS task forces
Thomas Roessler - GA Chair, member, WHOIS TF
Abel Wisman - GA member, WHOIS TF
Dan Steinberg - GA member, Transfer TF
Brett Fauset - BC member, WHOIS TF
Kristy McKee - GA member, WHOIS member, WHOIS Working Group Chair
Ross Rader - Registrar Constituency member, Team leader, Drafting Group, Transfer TF
Grant Forsyth - BC member, Transfer TF, member, Drafting Group
Steve Metalitz - IPC member, WHOIS TF, WHOIS Working Group Chair
Jeff Neuman - Registry Constituency, Drafting Group, Transfer TF
Ken Stubbs - Registrar Constituency, WHOIS TF

Glen de Saint Géry - DNSO Secretariat

Bruce Tonkin's opening comments were that it was important for existing task forces to be successful in following the existing policy development processes, so that their recommendations can be effective in developing policy conclusions.
Bruce provided an overview of the status of the situation: The general Counsel, Louis Touton produced a paper before Shanghai which provided guidance to the TF's. As a result, the Transfers and WHOIS task forces held further discussions regarding the General Counsel input and Bruce noted that he had invited the General Counsel to address the Names Council meeting on November 14.
As Names Council Chair, Bruce Tonkin welcomed questions, but noted that he was not legal counsel. His advice is based on the advice he has received from the General Counsel and his understanding of the same.

Steve Metalitz: WHOIS TF:

What is the difference between those recommendations in the interim report to be implemented without change to the agreement and those that need change to the agreement?
What steps should ICANN take to enforce existing recommendations?

What is the standard to use to put recommendations into the report if they do not require a change.

Bruce: A recommendation that ICANN strengthens compliance of contracts is not a change to the agreement.
It is a recommendation for action for ICANN Staff to a Registrar or Registry as distinct from a change that is contractually binding.
Steve: What are the specific steps for ICANN to take in recommendation for action?

Bruce: Enforcement if they were doing something wrong would need change in agreement and would be consensus policy.

Steve :Provide interpretation of existing agreement as done in the Registrars recommendation, for example, remind registrant to maintain accurate data, this is not requiring agreement, but action.

Bruce: Expressed a personal view : Historically, ICANN is reluctant to make contractual interpretations.
Where ICANN directs Registrars to tell Registrants something, this should be a consensus policy.

Ken Stubbs: Renewal of agreement is a new agreement.
Quoting paragraph 6 : ICANN should require Registrar to remind Registrant, he mentioned that Registrars are also responsible to remind resellers.
This needs consensus policy.

Bruce: made a clear distinction and said "requires" needs consensus policy while" ICANN needs to remind" is an action for ICANN. There are two areas:
- Where the task force analyses issues and existing contracts
- Where change is required and specific changes should be made, there should be a new consensus policy.

Marilyn Cade pointed to the Registrars responsibility to the reseller as a gray area.

Ken Stubbs: said it was necessary to get clarification of how ICANN views the reseller's relationship.

Bruce maintained that it depended on the structure of the agreement between Registrar and reseller. The structure of the agreement being that the reseller is acting as an agent.

Ken Stubbs said that an interpretation of the Registrars agreement would be helpful.

Marilyn cade commented that aqs it regards the substance of the existing contracts, broader awareness and enforcement was needed.

Bruce said that when talking about a recommendation versus new consensus policy one needs to look at who is responsible when enforcing a policy and the requirement may be put on ICANN or the Registrar.

Example:
-Transfers: If it is the registry that is required to enforce a policy, then the contract between ICANN and Registry must be examined.
- ICANN makes recommendation to the Board, but if it is a party to a contract, example the Registrars, it falls into the area of consensus policy and requires new obligations.

Steve Metalitz asked whether a recommendation and consensus policy would be handled differently?

Bruce said the the requirements or process are the same, but a recommendation on ICANN is different from a recommendation on the Registry or Registrar.

Jeff Neuman asked how it would be implemented.

Bruce stated that a "requirement" would be subject to negotiation between the parties, while a recommendation does not need to be negotiated or put in a conract, it would be "best practice".
Task forces could document what would be "best practice" but it would not be "required".

Ken Stubbs suggested that ICANN create guidelines to be adhered to in the accreditation process.

Marilyn Cade asked Bruce if he had given thought to a transitional process related to the "transition from the old model to the new policy model"?

Bruce Tonkin commented generally that the Reform process had set a rigid timetable for policy - 100 days. Already, it appears, that these time frames are a problem.
The issue arises whether the task forces or the new future Names Council can rely on timely input from the parties. Often no response occurs for a long time and after the comment period expires comments are received.
The constituencies need to develop a procedure to respond in a timely manner and need help from within the constituency, by individual members as to how they can respond quickly.
Another problem is that over a period, opinions may change and these must be accommodated.
How will the transition be made?
Continuity of expertise is important and consideration needs to be given how to maintain the continuity and history.

Marilyn Cade noted that the expertise and learning of a task force can be considerable and that a rapid turnover in task force membership could lose the benefits of that expertise.

Kristy McKee also expressed concern about the short timeframe for the transition. Kristy described in more detail the benefits for ensuing participation of task force members.

Bruce explained that progress should be seen but that all problems could not be solved at once.
In the Whois there are areas of conflicting requirements.
Identification of small steps on a 3 month cycle is needed. Features should be added progressively and changes should be well thought out.

David Safran noted that the very short time frame for policy development would be constraint for participation for individuals (with expertise)noting that short time windows would preclude meaningful participation..

Ken Stubbs mentioned the very realistic problem that ICANN would not have the necessary staff resources to move along with the policy and this would cause a delay in implementation.

Bruce mentioned that prioritization is important in the Policy council and Whois and Transfers have not been high priority issues within the Names Council or elsewhere.

Thomas Roessler expressed concern about how complex issues would be handled and the time needed based on his calculations of how long the Whois work has taken him.

Abel Wisman: What is the future of the task forces in general, and whether the changes in ICANN predicted a different structure.

Bruce summarized the steps saying that there would be an issue report to the policy council, a decision to deal with the matter in the policy council or refer it to a task force, thus the structure and representation, except for the representation of expertise, would be similar to what is now in place.
There is probably great similarity to the present process. It is possible to work an issue at the Names Council (exists today), but most complex issues will require a task force.

Marilyn Cade sees no difference between today's processes, putting forward policy recommendations in the short term and prepare issues for further work. To return to today's questions, the task force's want, in the short term, to get some meaningful recommendations out this year.

Thomas Roessler asked what the recommendations for further action should look like.

Bruce suggested that an Issues Report should describe what is needed next.
Marilyn suggested that it is important not to lose the the work of an existing task force, when the work comes to an end.

New Process:
Time limits were discussed and the conclusion reached was that they provide stability and continuity, commitments can more easily be made for a shorter time, the job gets done, date lines are needed but modifications should be possible. Marilyn expressed skepticism about the existing time frame and noted that she had objected to the time line in the policy Assistance Group. She noted that it is important to have realistic guidelines. there is some view that 6 months is a more realistic time for a policy process.

Both Marilyn and Bruce commented on the fact that some have over-reacted to the existing open ended policy timelines with a rigid time frame and noted that in the future there can be a more moderated time line.

Bruce reminded the group that issue reports need real data and arguments to work on.

Ross Rader asked if there were any obstacles in the consensus policy that should be paid attention to?

Bruce explained that when a document was produced consensus vote of 2/3 was required, 1/3 disagrees, the Board approves it, and at the point of implementation the Registrars and registries challenge the consensus. On more controversial issues, there may be a majority of reasoned responses for or against and then it would not be consensus. Thus make quite sure that consensus is claimed, because the whole process could be thrown out if something is added and does not have consensus.

 

Marilyn Cade thanked Bruce Tonkin for the fruitful discussion, giving his personal advice and the time he had spent with the group.

The call ended at 9:00 Tuesday Australian time, 17:00 EST, 22:00 UTC. Monday

 

 

 

 

 

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