[Gnso-newgtld-wg-wt2] Actions/Discussion Notes: Work Track 2 SubTeam Meeting 01 June

Thu Jun 1 22:25:13 UTC 2017

Dear Sub Team Members,

Please see below the action items and discussion notes captured by staff from the meeting on 01 June.  These high-level notes are designed to help Work Track Sub Team members navigate through the content of the call and are not a substitute for the chat room or the recording.   See the chat room and recording on the meetings pages at: https://community.icann.org/display/NGSPP/Work+Track+2+Meetings. 

Please also see the attached slides and the excerpts from the chat room below.

Best regards,

Julie

Julie Hedlund, Policy Director

Action Items/Discussion Notes 01 June

Discussion on Global Public Interest

See the slides at: https://community.icann.org/download/attachments/64950794/SubPro%20Track%202_GPI.pdf?version=1&modificationDate=1496351569155&api=v2

Slide 2: Explanation of the Subject

-- Definition of Global Public Interest "introducing and promoting competition in the registration of domain names where practicable and beneficial to the public interest as identified through the bottom-up, multi-stakeholder policy development process.

Slide 3: GAC Toronto Communique October 2012

-- AGB: Specific role for the GAC to provide early warnings and advice on new gTLD applications that raise public policy issues.

-- GAC requested a written briefing from the Board -- how to modify applications as a result of early warnings; how overseen and enforced by ICANN.

Slide 4: Introducing Public Interest Commitments

-- February 2013: PIC Spec -- PICs posted in March 2013 -- 499 PIC specs where received.  See: https://newgtlds.icann.org/en/announcements-and-media/announcement-06mar13-en.

Slide 5: Specification 11: Mandatory PICs

-- Registry Operator use only ICANN accredited registrars that are party to the Registrar Accreditation Agreement.

-- Registry Operator agrees to perform the following specific public interest commitments enforceable by ICANN and through the PICDRP.

[Reading through sections of the PICDRP.  See slides 5 and 6.]

Slide 7: Specification 11: Voluntary PICs

-- Section 4 of Spec 11.

-- Were "voluntary" in nature.

-- No guidance on what should be in or not.

Types:

-- Anti-abuse

-- Additional RPMs

-- Geographic Protections

-- Many reserved the right at sole discretion to modify or even eliminate PICs.

Slide 8: Questions and Concerns Related to the Subject

-- Global Public Interest wasn't explored that well.

-- Could be an area of policy development.

Slide 9: Relevant Guidance

-- Annex A to the ICANN Board resolution on Planning for Future gTLD Application Rounds (17 November 2014): https://www.icann.org/en/system/files/files/resolutions-annex-a-17nov14-en.pdf.

Slide 10: Rationale for Policy Development

-- Not a lot to work with respect to the definition of Global Public Interest.

Slide 11: Questions

-- PICs are not incorporated into policy.  Determine what is an adequate "application of 'public interest' analysis as a guideline for evaluation determinations on individual applications."

[Reading questions from Slide 11.]

-- Question: Can someone remind us how the PICs came about?  

-- After the GAC issued its early warning -- how to put these obligations in the contract.  Fadi suggested PICs as a way to address the GAC's Toronto Communique asking for a mechanism.  Beijing Communique had more detail.  499 TLDs submitted PICs so the majority did not. It was top down and that is one of the reasons we are addressing it, whether it should be incorporated into policy.

-- The concept was created by ICANN staff/Board to address the issue of how to address concerns raised by some TLDs.  The Beijing communique specific TLDs that had public interest issues.  That resulted in the mandatory PICs that were applicable to some TLDs.  The GAC asked for 8 specific constraints on some TLDs.  The Board implemented a subset of that.  GAC and ALAC are still taking the position that those were not complete and some TLDs deserved more protection than others.  One of the requirements for this PDP to look at.  The GAC and ALAC agreed to not take action on existing TLDs with the understanding that it would be considered for subsequent TLDs.

-- Initially when we heard about the PICs it appeared to be intended to be some time of response to the GAC.  That there should be a place to codify it as part of the contract.  It went way beyond the GAC.  The voluntary PICs had other elements -- apparently the voluntary PICs were open for a very short amount of time and anyone could put anything in there.

-- Put yourself in the applicant's mindset at the time.  Applications are just starting to get evaluated.  Some were scared that the GAC would have advice against their TLDs.  So they put things in their PICs so governments would view them more favorably.  Some of these might not be included in future TLDs.  It depends on how we do PICs.  Should address the issue of how to respond to GAC early warning and to amend your application as a binding commitment, or should we not?

-- Share examples of intellectual property rights being enhanced?

-- One could argue whether some of these things are "public interest commitments".  Don't see anything wrong to have a list and putting them into the contract.

-- If the PICs are voluntary how do you evaluate whether they are in the public interest?  Address both mandatory and voluntary.  Are the mandatory PICs sufficient in protecting the public interest and should they be included in policy?

-- GAC and ALAC have stated that there are certain classes of TLDs based on the category numbers the GAC assigned where the current PICs are no sufficient.

-- On the mandatory PICs there is work going on to talk about some of these in Spec 11 3b -- conversations between the Public Safety Working Group and the Registries.  Clarification on what is required on some of these PICs.  4th one on generic strings (slide 6) depends on where we come out on closed generics.  One PICDRP case filed to date.  Although they found fraudulent activity by the registry there wasn't much under the contract for ICANN to open a breech notice based on the contract.  How the PIC works is more for Work Track 3.

[Looking back at slides 5-6 -- mandatory PICs.]

-- Several sessions at ICANN meetings where Tony Harris has expressed concerns about the Spec 11 requirement about only using ICANN-accredited registrars.

-- The requirement in the PIC is not to use ICANN-accredited registrars but the ones on the 2013 RAA -- controls that were not in prior RAAs.  2013 RAA added some other requirements on registrars, some of which are relatively expensive.  

-- In terms of are these mandatory PICs necessary, I don't think we can get rid of #1 -- prohibiting Registered Name Holders from distributing malware, etc.

-- #1 of Mandatory PICs [reading from the slide]: This was done before the new ICANN Bylaws.  May need to evaluate them in light of the new Bylaws.  Is this legal or otherwise and consistent with the new ICANN mission.

-- Believe that the existing PICs were grandfathered into the Bylaws..  See: Section 1.1.d.ii of the Bylaws.  Doesn't apply to new contracts or in the process of being signed.  Also: 1.1.d.iv is the provision that says "ICANN shall have the ability to negotiate, enter into and enforce agreements, including public interest commitments, with any party in service of its Mission."  Action: Should still confirm with Legal.

>From the chat:

Rubens Kuhl: Actually, some registries considered including PICs that contradicted parts of the agreement they didn't like, like sunrise protection only for brands. 

Rubens Kuhl: Having such a list in a PIC allows people that dislike it to challenge it in a PDDRP. So for any stakeholders, it's better than being listed as a Registry Service. 

Jeff Neuman 2: Just TLD Commitments

Kathy Kleiman 2: And perhaps GAC Commitments

Rubens Kuhl: Some PICs tried to address ALAC or IO concerns... 

hil Marano: “The Panel notes that PIC (3)(a) of Specification 11 imposes no obligation on Respondent as the Registry Operator itself to avoid fraudulent and deceptive practices.”  See https://www.icann.org/uploads/compliance_notice/attachment/911/serad-to-westerdal-16mar17.pdf 

Kiran Malancharuvil: The PICDRP functionality may be for WT3, but there is a LOT to be learned about the PICs generally from the PICDRP result. 

Kiran Malancharuvil: And there have been multiple, filed, only one made it to the panel.  

Jeff Neuman 2: @Kiran - Right......when we talk about how the dispute process works, that is for WT3.  But the PICs themselves (which are the subject of the dispute) is for us in WT2.

Kurt Pritz: Now that new TLDs are in use: Can anyone point to a potential abusive behavior that was prevented by a PIC? (I.e., has there been an abuse in a TLD (that didn’t receive Type 1 GAC Advice) that might have been replicated by a GAC Advice Type 1 TLD?) - or -  Can anyone point to an abuse by a GAC Advice Type 1 TLD that could be avoided by enhanced PIC Specs? If the answer to both of these is no, we should question the benefit of having the PIC Specs.

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