[Gnso-newgtld-wg-wt2] recording, Attendance & AC Chat for New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues 16 February 2017

Thu Feb 16 22:28:04 UTC 2017

Dear All,

Please find the attendance and recording of the call attached to this email.
The AC recording and AC Chat are listed below for the New gTLD Subsequent
Procedures Sub Team - Track 2 - Legal/Regulatory Issues held on Thursday, 16
February 2017 at 21:00 UTC. 

Adobe Connect recording (audio and visual):
<https://participate.icann.org/p3tw0auf0j4/?OWASP_CSRFTOKEN=35164ca55b0b4325
1de3126b2595278b4418e8a455ee85906e150b73fd5ffb72>
https://participate.icann.org/p3tw0auf0j4/

The recordings of the calls are posted on the GNSO Master Calendar page:
<http://gnso.icann.org/en/group-activities/calendar>
http://gnso.icann.org/en/group-activities/calendar

** Please let me know if your name has been left off the list **

Mailing list archives:  <http://mm.icann.org/pipermail/gnso-newgtld-wg-wt2>
http://mm.icann.org/pipermail/gnso-newgtld-wg-wt2

Agenda Wiki page:  <https://community.icann.org/x/qbPDAw>
https://community.icann.org/x/qbPDAw

Thank you.

Kind regards,

Terri 

-------------------------------

Adobe Connect chat transcript for 16 February 2017

     Terri Agnew:Welcome to the New gTLD Subsequent Procedures Sub Team -
Track 2 - Legal/Regulatory Issues on Thursday, 16 February 2017 at 21:00 UTC

  Terri Agnew:agenda wiki page:
https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_q
bPDAw
<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_
qbPDAw&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpC
IgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=WM0d8ulWZC0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_0
0&s=CbEFokLhGUykcmR11WlYaAcuXXmYo203oOQPftznlqA&e>
&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh
FzL7ar9Qfqa0AIgn-H4xR2EBk&m=WM0d8ulWZC0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=Cb
EFokLhGUykcmR11WlYaAcuXXmYo203oOQPftznlqA&e= 

  Steve Chan:I'll work on that...

  Steve Chan:@Michael, all set to be able to display Module 6

  Steve Chan:Available here:
https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_en_a
pplicants_agb_terms-2D04jun12-2Den.pdf
<https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_en_
applicants_agb_terms-2D04jun12-2Den.pdf&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfk
bPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=WM0d8ulWZ
C0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=RgHTmU8ApAMiQEQnwHAvomYTRrlhRZOf8-vQEQ7
yDAs&e>
&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh
FzL7ar9Qfqa0AIgn-H4xR2EBk&m=WM0d8ulWZC0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=Rg
HTmU8ApAMiQEQnwHAvomYTRrlhRZOf8-vQEQ7yDAs&e= 

  Jeff Neuman:If I remember correctly, ICANN displayed this and required
express agreement with these when submitting an application

  Steve Chan:@Jeff, if I recall, it was built into TAS.

  Jeff Neuman:Right.  So before you ould hit "Submit", you had to agree to
the Ts and Cs.

  Rubens Kuhl:So an applicant can challenge a decision in court before it's
final ? ;-)

  Jon Nevett:on 14, should be material hardship to applicant

  Rubens Kuhl:"May not assign applicant rights" is an interesting reading
considering .web and .blog. 

  Mike Rodenbaugh:typo in 14 near end, should be "hardship to Applicant"?

  Rubens Kuhl:Mike, Michael mentioned it. You and Jon are on point. 

  Jon Nevett:Last sentence is ok

  Rubens Kuhl:"Any fees submitted" implies some sort of 100% refund. Did it
happen ? 

  Susan Payne:@rubens I don't think so

  Mike Rodenbaugh:First two sentences, if taken literally, makes the entire
contract illusory...  ICANN has no obligation unless it chooses.

  Jon Nevett:I don't often say this, but Alan +1!!

  Mike Rodenbaugh:+1 Alan.  More than unusual... illusory, unfair.

  Rubens Kuhl:But if we specify it, it might generate a situation where
something arises that justifies not approving, but was not foreseen. 

  Mike Rodenbaugh:ICANN has relied on this language (though from Module 3)
in IRP proceedings against my client

  Alan Greenberg:Ah com'on Jon, we have agreed on occasional things in the
past.

  Jon Nevett:absolutely -- just kidding!

  Jeff Neuman:How so Mike?

  Mike Rodenbaugh:"Unfettered discretion" destroys the whole point of the
Guidebook, which was to take that discretion away from the Board (after the
.XXX debacle)

  Alan Greenberg:Admittedly less often nowadays...

  Cheryl Langdon-Orr (CLO):different circumstances exist in future 'rounds'
Ifrom the one that this part of the module covers for the earlier one

  Jeff Neuman:this is not based on policy recommendations

  Mike Rodenbaugh:@Jeff they have relied on Sec. 5.1 (not Module 3) in
Islam/halal matter

  Mike Rodenbaugh:see their latest brief, p.20

  Susan Payne:Name collision?  home etc?

  Rubens Kuhl:There is also GAC Advice, which is also a different module. 

  Jim Prendergast:wonder where mail, corp and home fit in. 

  Jeff Neuman:Agree with Susan that if there were a challenge by .home and
.corp, this clause would be invoked

  Susan Payne:also what about any closed generics who have not agreed to
open up?

  Steve Chan:For context it might useful to review the T&Cs from the very
first Applicant Guidebook in 2008. The language is not dramatically
different:
https://urldefense.proofpoint.com/v2/url?u=http-3A__archive.icann.org_en_top
ics_new-2Dgtlds_terms-2D24oct08-2Den.pdf
<https://urldefense.proofpoint.com/v2/url?u=http-3A__archive.icann.org_en_to
pics_new-2Dgtlds_terms-2D24oct08-2Den.pdf&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzg
fkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=WM0d8ul
WZC0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=0_BXkKKozVxdQf8RUi1aNP1e7SFK3xeuISXcq
xEPWSk&e>
&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh
FzL7ar9Qfqa0AIgn-H4xR2EBk&m=WM0d8ulWZC0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=0_
BXkKKozVxdQf8RUi1aNP1e7SFK3xeuISXcqxEPWSk&e= 

  Jeff Neuman:@Susan, that is more clause 14

  Rubens Kuhl:Covenant not to sue should actually be strengthned instead of
removed. 

  Steve Chan:And there was a Board resolution from Trondheim in 2010 that
relates to this subject.

  Steve Chan:"The Board approves the inclusion of a broad waiver and
limitation of liability in the application terms and conditions." -
https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources
_board-2Dmaterial_minutes-2D2010-2D09-2D25-2Den
<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resource
s_board-2Dmaterial_minutes-2D2010-2D09-2D25-2Den&d=DwIFaQ&c=FmY1u3PJp6wrcrwl
l3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=
WM0d8ulWZC0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=i3clxGkQDeJfsUxKHvWAHLqNRp90GU
rRLmUAwo9AqgI&e>
&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh
FzL7ar9Qfqa0AIgn-H4xR2EBk&m=WM0d8ulWZC0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=i3
clxGkQDeJfsUxKHvWAHLqNRp90GUrRLmUAwo9AqgI&e= 

  Mike Rodenbaugh:@Jim I believe .home etc. are also in this netherworld of
'unfettered Board discretion'

  Mike Rodenbaugh:@Rubens I think I disagree strongly

  Susan Payne:@Jeff, sort of.  that accounts for the changed position, but
if the applicant has refused to open up they cannot proceed

  Jon Nevett:if ICANN had a fair dispute process, then I wouldn't disagree
with Rubens as much

  Rubens Kuhl:@Mike, I understand why an US lawyer would prefer, so I think
you might get why non-US applicants are not fond of it. 

  Mike Rodenbaugh:please explain

  Rubens Kuhl:Home court advantage, using another meaning of the world
"court".

  Mike Rodenbaugh:sorry but I don't understand.  the covenant applies in any
court.

  Rubens Kuhl:Jon, that's what WS2 is all about, I believe... and what WS2
fails to deliver, to possible activations of the Empowered Community. 

  Jon Nevett:more than that Rubens

  Mike Rodenbaugh:It makes ICANN entirely unaccountable

  Rubens Kuhl:Which created a problem because then current accountability
mechanisms only allowed procedural grounds. 

  Alexander Schubert 2:we might add that speculator can't sue for private
auction revenues either!

  Rubens Kuhl:And there might be substantive, not procedural issues, that
might need to be challenged. 

  Alexander Schubert 2:Rather applicant speculators can't sue ICANN for loss
of private auction proceeds......

  Trang Nguyen:@Mike: under the new Bylaws, IRP decisions are binding and
enforceable in any court with proper jurisdiction (4.3.a.viii)

  Mike Rodenbaugh:resources are not an issue for ICANN wrt defending its
actions in the New TLD Program.  1/3 of application fees setaside for that
purpose... at least a hundred million dollars

  Rubens Kuhl:Fraud, neglience and grossful misconduct are likely already
exclued by California law anyways... but mentioning it in writing is a good
thing. 

  Cheryl Langdon-Orr (CLO):exactly Jeff.., yes Trangie, thx for pointing
that out 

  Kevin Kreuser:I like Trangie - let's make that stick

  Mike Rodenbaugh:@Trang that refers to the procedure, not to the
permissible content of such a decision...

  Susan Payne:agree Jon

  Mike Rodenbaugh:ICANN still argues that an IRP panel can't recommend any
affirmative relief, but can only decide whether the Board violated Bylaws...

  Rubens Kuhl:Perhaps binding 3rd parties to ICANN Bylaws for those willing
to become contractors to the program ? 

  Rubens Kuhl:@Mike,  most IRP panels  disregarded that affirmative relief
can't be awarded. But I believe one or two bought into JD standard argument
to that. 

  Mike Rodenbaugh:@Susan I think it's about half and half...

  Trang Nguyen:Ultimately, that's why the community asked the Board removal
right, as the ultimate path of recourse.

  Mike Rodenbaugh:that is ridiculous

  Trang Nguyen:*for the Board....

  Rubens Kuhl:@Trang the board removal is too much of a nuclear option to be
considered in dealing with one single decision. The community might do that
for a consistent pattern of misconduct. 

  Trang Nguyen:The bylaws do provide for other paths...reconsideration,
community IRP, the EC can take ICANN to court...these are the actions
available to the EC under the new Bylaws.

  Jon Nevett:so they could double the application fee after receiving
applications and not provide a refund?

  Jeff Neuman:Policy Statement:  ICANN must strengthen its appeals
mechanisms to include the ability for applicants to challenge the decisions
of the ICANN staff, the ICANN Board, and/or any entities delegated decision
making authority over the assignment, contracting and delegation of new
gTLDs.  Such appeals meachnism must include the ability to review those
decisions on the merits and not only with respect to whether ICANN violated
the Bylaws . Only with such  an appeals process performed by an independent
entity could ICANN then include a covenant not to sue in the Applicant Terms
and Conditions.

  Rubens Kuhl:@Trang: is reconsideration still limited to procedural issues
? 

  Jon Nevett:i don't think that recon is limited to procedural issues

  Trang Nguyen:@Rubens, the scope of the reconsideration process under the
new bylaws has been expanded.

  Mike Rodenbaugh:yet remains untested

  Steve Chan:All, re: the drafting team Jeff is describing right now, there
is only one volunteer at the moment.

  Trang Nguyen:...to include actions/inactions that contradict ICANN's
Mission, Commitments, Core Values and/or established ICANN policy

  Rubens Kuhl:@Mike, all AGB changes will be definition be untested until
the next procedure. 

  Steve
Chan:https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_do
cument_d_1g-2DOoBec-5FQ6nnBofBvcTnfAotFh7yq07HUM7kxh62SYo_edit-23&d=DwIFaQ&c
=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa
0AIgn-H4xR2EBk&m=WM0d8ulWZC0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=kFy_jxgaIgS7o
YJ-XuKGAo_CoqsORcstDGWIqMU2sQY&e= 

  Rubens Kuhl:(by definition)

  Jeff Neuman:I will also review again as a proofreading exercise

  Rubens Kuhl:@Trang, so the only difference from what Jeff suggested is
Board Governance Commitee x Independent 3rd party making a call. 

  Jon Nevett:could we table that?

  Jeff Neuman:I think the rest of the Ts and Cs are mostly legal boilerplate

  Jon Nevett:i'd like to take a closer look

  Mike Rodenbaugh:me too

  Jim Prendergast:and give people not on call chance to respond

  Jeff Neuman:of course....we are not making final decisions here....just
trying to have a discussion and trying to elicit known issues now

  Trang Nguyen:@Jeff, could you please clarify the reference to "strengthen
its appeals mechanisms" in your proposed policy language?

  Mike Rodenbaugh:Indemnity deserves a closer look, at least should be
consistent with narrower release of claims and covenant not to sue

  Jeff Neuman:@Trang, I am talking about appeals of decisions under the
guidebook...NOT accountability mechanisms

  Rubens Kuhl:@Jeff, in the part where there is a covenant not to sue, we
could suggest reinforcing it so it really stands if/when someone actually
files a lawsuit. 

  Trang Nguyen:Got it....thanks, Jeff!

  Jeff Neuman:SO I can reword that part

  Mike Rodenbaugh:Sec. 10 obviously needs some clarification

  Jon Nevett:what if ICANN breaches the terms of the AGB?

Jon Nevett:what if ICANN deliberately reveals applicants proprietary
financial information?

  Jon Nevett:or negligently?

  Jeff Neuman:Revised Statement:  ICANN must build into the new gTLD Program
appeals mechanisms to include the ability for applicants to challenge the
decisions of the ICANN staff, the ICANN Board, and/or any entities delegated
decision making authority over the assignment, contracting and delegation of
new gTLDs.  Such appeals mechanism must include the ability to review those
decisions on the merits and not only with respect to whether ICANN violated
the Bylaws . Only with such  an appeals process performed by an independent
entity could ICANN then include a covenant not to sue in the Applicant Terms
and Conditions.  However, the covenant not to sue shall not apply to cases
alleging fraud, negligence or misconduct.

  Rubens Kuhl:"Applicant may not assign applicant rights" could even be read
as preventing applicants from getting some types of risk capital. 

  Mike Rodenbaugh:More thinking needs to happen about the CNTS

  Jon Nevett:Section 10 was a big part of the .web issue

  Mike Rodenbaugh:'negligence' and 'misconduct' are really vague

  Jeff Neuman:I had originally gross negligence and wilful misconduct but
Jon said that was too narrow

  Mike Rodenbaugh:I agree with Jon, but 'misconduct' can mean literally
anything

  Susan Payne:no

  Rubens Kuhl:Doesn't that limit ICANN's options on legal firms ? 

  Jeff Neuman:ok.....I will revise the statement again...stay tuned

  Jon Nevett:if ICANN is negligent in doing the evaluation, shouldn't there
be some recourse?

  Rubens Kuhl:(Sec. 13)

  Susan Payne:@Rubens I don't think it does, it just means you cannot
prevent them using JD by citing conflict

  Rubens Kuhl:Ok, then it's not a problem. 

  Steve Chan:As a reminder, the language on screen is in summary.

  Mike Rodenbaugh:@Jon, it is pretty easy to allege negligence as to just
about any action or inaction whatsoever

  Jeff Neuman:Further Revised:  Revised Statement:  ICANN must build into
the new gTLD Program appeals mechanisms to include the ability for
applicants to challenge the decisions of the ICANN staff, the ICANN Board,
and/or any entities delegated decision making authority over the assignment,
contracting and delegation of new gTLDs.  Such appeals mechanism must
include the ability to review those decisions on the merits and not only
with respect to whether ICANN violated the Bylaws . Only with such  an
appeals process performed by an independent entity could ICANN then include
a covenant not to sue in the Applicant Terms and Conditions.  However, the
covenant not to sue shall not apply to cases alleging fraud, negligence or
wilful misconduct.

  Steve Chan:Here again is the link to the complete language:
https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_en_a
pplicants_agb_terms-2D04jun12-2Den.pdf
<https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_en_
applicants_agb_terms-2D04jun12-2Den.pdf&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfk
bPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=WM0d8ulWZ
C0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=RgHTmU8ApAMiQEQnwHAvomYTRrlhRZOf8-vQEQ7
yDAs&e>
&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh
FzL7ar9Qfqa0AIgn-H4xR2EBk&m=WM0d8ulWZC0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=Rg
HTmU8ApAMiQEQnwHAvomYTRrlhRZOf8-vQEQ7yDAs&e= 

  Jeff Neuman:Everyone please go to the CC2 Questions ASAP

  Rubens Kuhl:Jeff, on fraud/negligence, perhaps California law could be the
basis for the phrase ? 

  Jeff Neuman:and look at them to ake sure we have asked everything you
wanted it to ask

  Jeff Neuman:@Rubens........Under California law, technically you can waive
those rights...that is why i included them herer

  Steve Chan:@Michael, I think I'd prefer to send a reminder to the full WG,
along with some explanation of timeline. Hope you don't mind?

  Terri Agnew:next call: New gTLD Subsequent Procedures Sub Team - Track 2 -
Legal/Regulatory Issues will take place on Thursday, 02 March 2017 at 21:00
UTC for 60 minutes.

  Jeff Neuman:Agree this is a good stopping point.  PLEASE Review the notes
and let us know any other issues!

  Jeff Neuman:This was a great call.  Lets not lose momentum

  Robert Burlingame:Thank you.  Good discussions today.

  Jon Nevett:thanks all!

  Cheryl Langdon-Orr (CLO):good progress today... thanks all, bye for now 

  Jeff Neuman:Thanks Michael.

  Susan Payne:thanks all

  Rubens Kuhl:Thanks all, bye!

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