As we’ve noted in our recent blog posts, here, here, here and here, the ICANN GNSO Council intends to vote (on Thursday May 19, 2022, 2 days from now) on a controversial Final Report which would severely harm the rights of domain name registrants to judicial review of an adverse UDRP decision. This is in sharp contrast to the charter of that working group, which required that the rights to judicial review be preserved.
In a shocking new development, today the ICANN Registrars Stakeholder Group proposed a “friendly amendment” saying:
We believe it is important to have it on record (in the motion) that there are scope and principles stipulated by the Council at the outset and against which Council has evaluated and determined that the recommendations in the Final Report are consistent with such scope and principles.
The email from Greg DiBiase of Amazon, didn’t appear to have an attachment with that kind of friendly amendment (the DOCX attachment at the bottom seems to be the original motion, not an amended version).
[Note on May 18: after additional review (in ChromeOS it was invisible text in the browser’s viewer), by downloading the attachment and loading it in Google Docs, the text is similar to the above, in item 10. i.e.
10. The GNSO Council has determined that the five (5) final EPDP recommendations in the EPDP team’s Final Report are consistent with the scope and principles set out in the Addendum to the RPMs PDP Charter and the subsequent EPDP Charter.
Regardless, it appears that people now realize that in fact the final report is deficient, as we’ve argued all along, as its recommendations do not actually preserve judicial review. As such, its recommendations are out of scope.
This obscene “friendly amendment” appears to be some form of damage control, or perhaps something that can be used to gaslight opponents of the final report, or just the worst form of historical revisionism one can imagine.
They’re trying to move the goalposts, after the game has already been played. It’s clear that the Final Report’s recommendations are outside the scope of the actual standard set by the GNSO Council before the working group began. That means the report has to be rejected in its entirety.
This is particularly obscene given that the first IGO working group (the one that I participated on) was falsely accused of going beyond its scope (see my comments here, including pages 5-10) , and the GNSO Council took unprecedented action to undermine its consensus findings.
Elsa Saade made that point to the GNSO Council in 2019, when the first IGO working group’s final report was at GNSO Council for review, saying:
I was saying that I don’t think that we’re being completely honest with ourselves and the reasons why we are not taking on the full recommendations that the group had consensus on. And if we, I mean, I personally would vote to have all of them go through and then see how the Board would take it forward, but in terms of – because especially because if we do not do that we’re setting a precedence for the GNSO Council which had not been set before I’d say in terms of a back channel, I don’t – I’m going to dare say but a back channel sabotage in a way. I’m putting it out there on the record in my own personal capacity here. So that’s why I think we should take it on fully and take this – have this go through fully as a full recommendation set or list. [page 45 of transcript]
That truth still resonates. Back channel sabotage is what blocked the first working group’s thoughtful final report. Dishonest conduct, including this obscene “friendly amendment” which attempts to rewrite history, should not be rewarded.
The rules of the GNSO Council permit the vote on the IGO final report to be deferred by 1 meeting, as per page 8 of their operating procedures which state:
At the request of any Council member, for any reason, consideration of the Final Report may be postponed for no more than one (1) meeting, provided that such Council member details the rationale for such a postponement.
I suggest that Thursday’s vote be postponed until the June 2022 ICANN meeting, so that the full community can consider and thoroughly review the implications of this Final Report, one which would severely harm the rights of domain name registrants to judicial review (and which is thus out of scope of its charter).
Rather than attempt to win the hearts and minds of the community, through hard work and sound analysis, to form a true consensus, it’s clear that those who wish to take away domain name registrants’ rights are prepared to instead go down the path of dishonesty.
Any “friendly amendment” that tries to claim that this report is actually in scope would simply be a blatant lie, an attempt to say that “black is white” or “up is down”. It would further delegitimize ICANN and its leadership (including GNSO Council members) as fair-minded people can easily see the actual truth and history for themselves.