[Gnso-newgtld-wg-wt2] Notes and Action Items: New gTLD Subsequent Procedures PDP WG - Track 2 - 7 September 2017

Fri Sep 8 00:19:47 UTC 2017

Dear Work Track members,

Please see below the action items and notes from the meeting today.  These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording or transcript. See the chat transcript and recording at: https://community.icann.org/x/LgEhB.

Slides are attached for reference.

Best,

Steve

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Notes:

2. SOI Updates

 - No updates

3. CC2 Comments: Registrant Protections (continued) - Background Checks

- Hoping to get feedback from ICANN Org on their experience with background checks and areas for future improvements.

CC2 Question 2.3.3 (beginning on slide 20)

-- RySG - maintain current criteria for background screening

-- John Poole - background requirements should be stricter.

-- Valideus - applicants that are publicly traded corporations listed and in good standing on any of the worlds largest 25 stock exchanges should not be required to provide detailed information on the entity, officers, directors, and major shareholders if it will not be subject to background screening. 

-- BRG - Background check requirements not appropriate for all different types of applicants, especially things like personal address, DOB, etc. Same level of info for company directors as appears on corporate web sites should be adequate.

-- Jannik Skou - geo TLDs and applicants listed on stock exchanges should not go through criminal background checks - already done by public authorities

-- Michael F. - difficult, at least in APAC, to negotiate changes to applicant information. Did not always seem to be consistent.

-- Paul - The standards of background checks don't mean anything if ICANN doesn't do anything with them (e.g., evidence of excessive cybersquatting activity). There should a formal response process when a complaint to the process is filed.

- The standards should be different for publicly traded companies and other types of companies that have  internal governance enforced by other third parties. Could apply to the financial review as well, especially as it relates to dot Brands.

- Streamlining this process could also lower costs.

-- Alan - Not all applicants are equal, do differentiating may be ok. Is there another way to achieve the goals without ICANN having to perform the background check itself. Challenges and ability to conduct reviews are different across the world.

-- Michael F. - Opinions and laws on privacy are vastly different in the world. Availability of relevant information is impacted by this.

-- Greg - Can waive background checks if there are existing mechanisms, that might be more rigourous, already in place (e.g., conducted internally or through a third party). There might be well recognized existing processes or practices that ICANN could rely on. Need to be flexible to other cultural norms rather than forcing applicants to confirm to ICANN's rules.

-- Jim - Will GDPR, or other privacy laws, impact the level of information that ICANN can ask for? Michael F. Could depend on purpose and usage.

-- CLO - Echoing Heather, relying on public information is most efficient and transparent. In certain locales and jurisdictions, there may be instability that will impact accessibility and and quality of information. The level of comfort is different in different locales as well. Might be helpful to again consider what purpose or goal is.

-- Paul - Geo TLDs, run by public authorities, presumably do their own due diligence. Lower level of review by ICANN might be warranted.

ACTION ITEM - Determine how GDPR might impact ICANN's ability to conduct background checks. See if that can or is already an element of the legal opinion it's seeking now.

-- RySG - Barring cybersquatters makes sense. However, breach of RA or RAA should not, de facto, lead to disqualification.

-- Valideus - Cybersuatting or registrants losing two or more UDRPs should not be officer of registry.

-- Jannik Skou - 

-- Nominet - An applicant who operates a failed gTLD should be scrutinized carefully, but each application should not necessarily be considered dependent.

-- Alan - How should the policy be adjusted based on the comments being reviewed?

-- Paul - Claim is different than abjudication of breach. Or cured breach. There are breaches related to paying bills. Need to determine what level of breach should warrant action.

ACTION ITEM - need to determine what types of breaches would warrant action. Maybe reach out to RySG

-- Afilias - advocated for ensuring ICANN is aware of changes in mgmt structure and integrating compliance in to application review process, since they are aware of past and current performance.

-- Alan - Compliance should be able to identify past bad actors but may be reluctant to play this role. More about enforcing contracts.

-- BRG - due diligence should performed an early stage during the application process. ICANN may have to repeat process prior to signing RA. 

- Michael - This did occur

-- John Poole- why screen twice 

-- RySG - At the time of application, changes, and post-contracting cchanges.

-- ALAC - at application and at time of contract signing

ACTION ITEM - were any applicants disqualified by background screening?

Michael - background info needed upon changes, throughout process, during the 2012 round. Also had to be performed twice in many cases (e.g., at application and prior to contracting).

>From the chat:

Julie Bisland: Welcome to the New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues on Thursday, 07 September 2017 at 21:00 UTC

Julie Bisland: Agenda wiki page: https://community.icann.org/x/LgEhB

Michael Flemming: Are we expecting a small turnout because of Irma and Harvey?

Michael Flemming: Could I get slide control please?

Michael Flemming: Thx

Steve Chan: @Michael, slides are unsynced so everyone has control of their own slides

Jeff Neuman: I wish i had a small violin emoji for Adobe Connect

Jon Nevett: For the record, i object to 2 meetings per week

Jon Nevett: there are 5 subgroups and many of us participate on most, if not all of them -- thanks!

Steve Chan: We'll be starting on slide 20

Steve Chan: Note, you can review the ICANN org feedback on the Background Screening topic in the Program Implementation Review Report here: https://www.icann.org/en/system/files/files/program-review-29jan16-en.pdf on page 57

Greg Shatan: Sound went crazy for a while.

Julie Bisland: yes, seems Michael's audio got suddenly loud

Greg Shatan: Good

Julie Bisland: excellent

Kiran Malancharuvil: It's fine now 

Julie Bisland: it does sound good now

Julie Bisland: thank you

Alan Greenberg: Sorry to be late.

Emily Barabas: Welcome Alan. We are on slide 24

Alan Greenberg: Where are we in the slide deck?

Alan Greenberg: Thanks!

Cheryl Langdon-Orr (CLO): a point well made in my view Michael 

Kiran Malancharuvil: Agree with Michael

Cheryl Langdon-Orr (CLO): then I am also from AP :-)

Cheryl Langdon-Orr (CLO): Very true Paul! 

Jeff Neuman: @Paul - was that an issue of non-enforcement or poor language on affiliates?

Kiran Malancharuvil: Good point Paul.  ICANN needs to be transparent about how they respond to these complaints and submissions. 

Jeff Neuman: or both

Michael Flemming: I agree with that. Transparency but at the same time flexibility for dotBrands. (personal opinion)

Alexander Schubert: How about the opposite approach: and impose EXTRA coast on Fortune 500 Corps?

Paul McGrady: I'm for finding ways to lowering application fees for anyone we can - too much wheel spinning in this program.

Heather Forrest: To the extent that we can rely on public information (stock exchanges, court decisions, etc) that is most efficient and transparent

Michael Flemming: +1 Greg (personal opinion)

Heather Forrest: Good question Jim - ICANN is getting  a legal opinion. We should see if that's going to be addressed

Kiran Malancharuvil: Re: GDPR, Consent with certainly play a role, as would public/legitimate interest. 

Greg Shatan: TMI, Cheryl.

Kiran Malancharuvil: Agree with Heather to make sure that ICANN includes that question in the GDPR readiness project

Kiran Malancharuvil: That was Heather's suggestion, not mine.  :) But I agree with her.  

Heather Forrest: No problem!

Alexander Schubert: OBJECTION: The applicant for .chicago might turn that around and claim that ICANN would check them out - so the city doesn't have to do it......

Jon Nevett: probably should add PDDRP loss or two

Greg Shatan: Yes, now that that's a thing.

Kiran Malancharuvil: PICDRP should probably be included in the evaluation.  Although I tend to agree that it shouldn't be defacto.  

Paul McGrady: The cybersquatting bar is useless if never enforced by ICANN.

Paul McGrady: Needs to be enforced in the next round.

Kiran Malancharuvil: +1 paul.  I'm really disturbed to hear that evidence of cyberquatting was ignored. 

Kiran Malancharuvil: I also think ICANN should be looking into that proactively and should not wait for submissions.  

Michael Flemming: No, we love the feedback. Anyone is welcome.

Jon Nevett: not if a good faith dispute

Greg Shatan: Paul, don't you mean the anti-cybersquatting bar? :-)

Kiran Malancharuvil: Paul is correct.  They should look at everything and evaluate whether it impacts their potential obligations as an RO.  And the community should set what that means so it's not a subjective evaluation. 

Paul McGrady: @Greg - yep.  Upside down...

Greg Shatan: @Michael -- randomly, like drug tests?

Julie Bisland: The next New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues will take place on Thursday, 14 September 2017 at 03:00 UTC for 60 minutes.

Kiran Malancharuvil: Thanks Michael.  

Cheryl Langdon-Orr (CLO): bye 👋 the now 

Alexander Schubert: Tnx

Greg Shatan: Thank you!

Steven Chan

Policy Director, GNSO Support

ICANN

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steve.chan at icann.org

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