[Gnso-newgtld-wg-wt3] Actions/Discussion Notes: Work Track 3 Sub Team Meeting 12 September
Julie Hedlund
julie.hedlund at icann.org
Tue Sep 12 21:09:34 UTC 2017
Dear Work Track members,
Please find below the action items and discussion notes from the call on 12 September. These high-level notes are designed to help Work Track members navigate through the content of the call and are not a substitute for the chat transcript or the recording. The meeting recording and chat transcript are available at: https://community.icann.org/x/DBLfAw[community.icann.org].
The documents referenced on the call are attached and excerpts from the chat room are included below.
Kind regards,
Emily
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Action Items and Discussion Notes: 12 September 2017
Notes:
1. Plenary Update:
-- Met on 11 September. Went through the progress on the various work tracks. Talked about procedures going forward and work track 5 as well as interaction with RPM.
-- Started working toward some initial consensus on having categories and starting from the base of categories from the last round. Started talking about possible new categories.
-- Reviewed the status and noted that if there isn't consensus to change something we have the standing policy and AGB to fall back on if there is no consensus to change.
2. CC2 — GAC Objections — Q 3.1.10 – 3.1.11 (see attached):
The CC2 themes document being displayed can also be viewed on the Objections Wiki page here: https://community.icann.org/x/Vz2AAw
3.1.10 -- Do you feel that GAC Early Warnings were helpful in identifying potential concerns with applications? Do you have suggestions on how to mitigate concerns identified in GAC Early Warnings?
-- Nominet responded that GAC Early Warnings were helpful in identifying potential concerns with applications.
-- BC, RySG, BRG, Afilias provided suggestions for improving the Early Warning mechanism.
Discussion:
-- Requiring GAC members to identify the national law(s) on which the Early Warning is based seems to be a good suggestion.
-- Question: Is it clear in the AGB that Early Warnings must be based on national law?
-- Explaining the rationale should be required and if it is national law it should be cited. Also should be GAC member warnings.
-- If we articulate this carefully that there might be a point in time when the power of GAC advice might be mustered and we provide rationale that could be a good thing. Also, the potential for violation of national law or potential concern. Perhaps ask GAC colleagues for proposed text.
-- Could figure out where the GAC advice has a rebuttal presumption it won't be approved we may want limits on what type of GAC advice could give rise to that presumption. Shouldn't be able to provide an Early Warning based on anything. Be clear on the impact of the Early Warning and if the applicant responds.
-- We spent a whole lot of time in CCWG Accountability WS1 discussing how the Board deals with GAC advice. I don't think we need to repeat that. Should exercise the full power of this group to look at the Early Warning to look at what went right and what went wrong.
-- We discussed GAC advice at our Copenhagen meeting. The number of GAC Early Warnings that were issued were so small in comparison to the applications that got GAC advice later that that did not work as a predictability indicator for applicants. We need to look at some way to make it predictable for applicants. From the Chat: Donna Austin, Neustar: There were 187 applications that received early warnings and 2 applications were withdrawn as a result. In addition, the Board received advice on specific applications affecting 23 applications, and the Beijing communique contained advice on broad categories of strings affecting 491 applications.
-- It is important to note that community applications are not allowed to change their applications, so we should consider how community could be given the ability to adjust to GAC advice.
-- We should definitely make sure there is a period where applicants can respond to government concerns.
-- There is a difference on what the CCWG Accountability WS1 did on GAC advice and what the AGB has on GAC advice.
-- Several CC2 commenters agreed that GAC members giving advice or Early Warnings needed to give rationale.
-- There are a couple of areas that we should look at, such as differentiating between GAC consensus advice and advice from a member. Good idea to have them cite the regulation or national law, but don't want the Board or others to decide whether that advice is based in public policy.
-- Even if the GAC pushes back that is no reason not to go there. We need the predictability.
-- If the AGB sets forth the rules with specificity on a particular topic and the applicant follows those rules but then the GAC provides advice, even if it has agreed to those rules. The GAC reserved this right to provide advice on anything, which created a presumption that the TLD won't be accepted. Geonames for example, AGB said this is a list of names that weren't allowed and then the GAC gave advice on other names that were applied for but were not on the list of names not allowed in the AGB. For situations that were foreseen there should be limits on what we allow for objections or GAC advice.
-- If the above is done with no exceptions then it will be hard to get compromises. Could some level of exception allow us to get to a better rule. Jeff Neuman: I am not saying that there could be no exceptions, but there needs to be a predictable process to deal with those.
-- Stats: In the 2012 round only 38% of applications that were subject to GAC advice received an early warning. There were 25 applications that received only an early warning. There were 355 that recevied GAC advice without receiving an early warning.
-- There should be a strong disincentive to do through GAC advice what didn't get done elsewhere. We need to look at the interaction with the GAC in the application process.
-- The concept of what Early Warning would do shouldn't be lost. We do need to look very carefully at the equitable treatment in terms of opportunity. Make sure it is a fairer playing field. Make sure we don't spend too much time bemoaning some of the issues that happened in the 2012 round. Shoudl look for an opportunity where we can ask for specific, timely, and efficient input from the GAC to improve predictability.
-- Don't know that there is anyway the GAC could provide that type of information until such time they saw the applications and the strings themselves.
>From the chat:
Anne Aikman-Scalese (IPC): I would say no Alan because the GAC advises on Public Policy.
Cheryl Langdon-Orr (CLO): I didn't think it was... but also not an expert here
avri doria: i do beleive it was.
Cheryl Langdon-Orr (CLO): really Available?
Jim Prendergast: this might help - https://newgtlds.icann.org/en/applicants/gac-early-warning
Trang Nguyen: Section 1.1.2.4 of the AGB says "GAC EW typically results from a notice to the GAC by one or more governments that an application might be problematic, e.g., potentially violate national law or raise sensitivities.
Jeff Neuman: Concurrent with the 60-day comment period, ICANN’sGovernmental Advisory Committee (GAC) may issue aGAC Early Warning notice concerning an application. Thisprovides the applicant with an indication that theapplication is seen as potentially sensitive or problematicby one or more governments.The GAC Early Warning is a notice only. It is not a formalobjection, nor does it directly lead to a process that canresult in rejection of the application. However, a GAC EarlyWarning should be taken seriously as it raises the likelihoodthat the application could be the subject of GAC Adviceon New gTLDs (see subsection 1.1.2.7) or of a formalobjection (see subsection 1.1.2.6) at a later stage in theprocess.
Anne Aikman-Scalese (IPC): COMMENT: It would actually be great if we could get further definition from the GAC of the terms "sensitive" and "problematic". COMMENT
Jeff Neuman: The AG also states: ". A GAC Early Warning may be issued forany reason"
Steve Chan: From that same section (1.1.2.4) A GAC Early Warning typically results from a notice to theGAC by one or more governments that an applicationmight be problematic, e.g., potentially violate national lawor raise sensitivities. A GAC Early Warning may be issued forany reason.1 The GAC may then send that notice to theBoard – constituting the GAC Early Warning. ICANN willnotify applicants of GAC Early Warnings as soon aspracticable after receipt from the GAC. The GAC EarlyWarning notice may include a nominated point of contactfor further information.
Jeff Neuman: but has a footnote that states: "While definitive guidance has not been issued, the GAC has indicated that strings that could raise sensitivities include those that"purport to represent or that embody a particular group of people or interests based on historical, cultural, or social components ofidentity, such as nationality, race or ethnicity, religion, belief, culture or particular social origin or group, political opinion, membershipof a national minority, disability, age, and/or a language or linguistic group (non-exhaustive)" and "those strings that refer toparticular sectors, such as those subject to national regulation (such as .bank, .pharmacy) or those that describe or are targeted to apopulation or industry that is vulnerable to online fraud or abuse.”"
Anne Aikman-Scalese (IPC): Thanks Jeff. This is helpful. Maybe we should take the public comment to mean that if the objection is based on "those subject to national regulation", we ask the GAC to specify the "national regulation" they are citing.
Anne Aikman-Scalese (IPC): I think Greg will clarify that there is already a definition in the ByLaws as to what GAC Advice constitutes a presumption and what vote of the Board is required to overcome it - 60 % vote I think.
Kristina Rosette (Amazon Registry): I hate to state the obvious, but the Amazon v. ICANN IRP Final Declaration has some useful guidance on these topics.
Jeff Neuman: I am talking about something very different
Jeff Neuman: I am not talking about a presumption that the advice will be accepted. I am talking about the presumption that a TLD will not move forward.
Jeff Neuman: They are NOT the same thing
Jeff Neuman: In other words the Board could "accept the GAC advice", but if the advice were contrary to what the rules allowed to reject a TLD, it would not be bound to not delegate the TLD
Jeff Neuman: @Karen you are right. Some govts were hoping that applicants would withdraw knowing they would not be able to get GAC advice
Anne Aikman-Scalese (IPC): Jeff - the issue is actually your description of "contrary to what the rules allowed to reject a TLD". If it is GAC Consensus Advice on an Early Warning, then I think as of now it is "within the rule". Do you want to say that an Early Warning coming from only one country cannot delay a TLD from moving forward?
Donna Austin, Neustar: My data comes from page 95 of ICANN's Program Implementation Review
Steve Chan: The report Donna is referencing is available here: https://www.icann.org/en/system/files/files/program-review-29jan16-en.pdf
Greg Shatan: I don't see how the "board" could accept GAC Advice that the GAC can't give.
Trang Nguyen: page 96 of the Program Implementation Review Report says: "Indeed, there was some correlation between Early Warnings and Advice, but not all applications that received Advice had received an Early Warning. While only 187 applications received Early Warnings, 517 applications were subject to GAC Advice. Over 300 applications that were subject to GAC Advice did not receive any Early Warning. Based on this data, if the intent of the Early Warning process was to provide applicants with predictability, that intent was achieved in only 38% of cases."
Jeff Neuman: By the same taken i dont see the board having to have a 60% threshhold to overcome GAC Advice that should have never been issued or beyond their scope
Anne Aikman-Scalese (IPC): I think this is a tough nut to crack in relation to GAC Consensus Advice. Should Work Track 5 take the position that objections to Geo Names are not objections based on Public Policy? How would we frame issues as issues that are not based on public policy?
Jim Prendergast: just because the GAC would push back dosnt mean we shouldnt go there
Kristina Rosette (Amazon Registry): See paragraphs 100 and following: "We conclude that GAC consensus advice . .. must be based on a well-founded public interest concern and this public interest basis must be ascertained or ascertainable from the entirety of the record before the NGPC. In other words, the reason(s) supporting the GAC consensus advice, and hence the NGPC decision, must be tethered to valid and legitimate public policy considerations." (Para. 103)
Anne Aikman-Scalese (IPC): Great language but how do you prove that it's not based on public policy and who is the arbiter?
Donna Austin, Neustar: I think we should acknowledge that while GAC advice was problematic, the approach of the NGPC in dealing with the GAC advice was also problematic.
Jeff Neuman: I am not saying that there could be no exceptions, but there needs to be a predictable proccess to deal with those
Anne Aikman-Scalese (IPC): @Donna - that is a good angle as to GAC Advice that is not Consensus Advice at least.
Jeff Neuman: Is there any GAC Advice that is not Consensus Advice
Anne Aikman-Scalese (IPC): Yes. Greg, can you elaborate?
Alan Greenberg: Perhaps there needs to be a method for the gac to object to (for instance geographic names), but there needs to be defined process for resolving it and not depend on a somewhat arbitrary board decision.
Susan Payne: @Anne - not entirely GAC advice isn't a veto that must be blindly followed bvy the board. It is advice they must take on board.
Donna Austin, Neustar: Anne: I believe it was all consensus advice as it was provided in communiques
Anne Aikman-Scalese (IPC): @ Donna - but maybe that changes after the Accountability work? Couldn't we point out that an Early Warning from only one country is not Consensus Advice and NGPC equivalent should treat that differently? (Maybe that is not possible if the full GAC endorses that Early Warning and it is "tit for tat".
Greg Shatan: Early Warning is not advice at all, consensus or otherwise.
Donna Austin, Neustar: Anne: I don't believe GAC Early Warnings were considered by the NGPC.
Kristina Rosette (Amazon Registry): @Donna: They did for the .AMAZON TLDs. Can't speak to others.
Donna Austin, Neustar: @Kristina, after .amazon was subject to GAC advice or before?
Anne Aikman-Scalese (IPC): Agree with Cheryl that a diplomatic approach is preferable - especially in terms of new EC
Other issues raised in CC2: GAC Advice was provided against strings. This was problematic because it went against the AGB since objections were supposed to be against applicants, not strings. Another issue was that applicants should be able to participate in the GAC deliberation process. Could have prevent misunderstandings or inaccuracies.
Discussion:
-- It would be difficult for us to inject ourselves into the GAC process, but prior to the Board considering that GAC advice -- we provide an opportunity to the Board to allow a hearing or responsive documents. There should be a fair hearing before the Board adopts the advice.
-- Look at GAC consensus advice in the Bylaws Section 12.2 (a) (x).
-- Don't think we should make recommendation that we want the GAC to consider. If there had been a mechanism for an applicant could be heard then inaccuracies could have been addressed.
>From the Chat:
Anne Aikman-Scalese (IPC): ByLaws were revised. They do govern as far as I know. See 12.2 (a) (x)
Cheryl Langdon-Orr (CLO): especially if Gac has actively contributed now to the development of such guidelines @Donna, and I also doubt that there could be a 'waiving of any right to give Advice ' but a greater predictability and benefits from any ensuin post application processes
Anne Aikman-Scalese (IPC): New by-Law dfines Consensus Advice as "the practice of adopting decision by general agreement in tehe absence of any formal objection ("GAC Consensus Advice")
Cheryl Langdon-Orr (CLO): that is a good example of a good or potentially beneficial 'new' process @Jeff
Jim Prendergast: I like the idea of an applicant having a chance to respond directly to the board about advice issued agains them. adds an element of due process
Kristina Rosette (Amazon Registry): Para. 94: "Thus, under the facts of this IRP, the procedural fairness obligation applicable to the GAC, at a minimum, required that the GAC allow a written statement or comment from a potentially adversely affected party, before it decided whether to issue consensus advice objecting to an application. The Board’s obligation was to see that the GAC, as a constituent body of ICANN, had such a procedure and that it followed it."
Jeff Neuman: @Anne - would you support the right of an applicant to provide a response to the Board on GAC Advice?
Jim Prendergast: was the concept of EW as a prerequisite explicity addressed in previous round and if so, why wasnt it implemented?
Anne Aikman-Scalese (IPC): @Jeff - absolutely. Board has discretion to override GAC Advice by 60 % vote.
Cheryl Langdon-Orr (CLO): exactly @Susan
Anne Aikman-Scalese (IPC): @Jeff, right now I think there is no individual right of reply but why not?
Jeff Neuman: @Anne - Because the Board historically has not allowed anyone other than ICANN staff present to the Board
Anne Aikman-Scalese (IPC): Indeed - they would normaly just rely on GNSO policy advice. But you asked if it would be theoretically possible.
Jeff Neuman: @Anne - I am not even just talking about in cases with Policy Advice. Its also this case with contract amendments, approval of registry servivces, etc.
Jeff Neuman: The ICANN Board should always allow parties that may be adversely affect be able to present to the Board
Donna Austin, Neustar: @Jeff, not the case. reconsideration requests have been allowed to speak directly with the Board.
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