[council] REMINDER - Re: For your input - questions for the ICANN Board following the adoption of the temporary specification

Mon Jun 4 07:57:46 UTC 2018

Dear Heather -
I haven't seen any legal justification for the separation between the Temporary and the Consensus Period.
I would have to check but I believe the first GDPR review is in two years, insofar it would at least make sense to align the PDP with these 2 years.

Kind regards,
Erika 

Sent from my iPhone

> On Jun 4, 2018, at 2:47 AM, Heather Forrest <haforrestesq at gmail.com> wrote:
> 
> Colleagues,
> 
> Donna, Rafik and I met with Marika to review and structure the questions submitted to the Google doc for our upcoming call with the Board on next steps on the Temporary Specification. In doing so, we have merged our questions with overarching questions from the Board. 
> 
> Please review the below to make sure that they make sense and capture your Google doc contributions faithfully. We're short on time, and need to circulate these to the Board with as much advance time as possible, so may I please suggest a 24 hour turnaround for any requested edits?
> 
> Many thanks and best wishes,
> 
> Heather
> 
> 
> 
> Board-GNSO Council Discussion
> Next steps following Board adoption of Temporary Specification
>  
>  
> Purpose of call: Identify which of the below questions can be answered by the GNSO Council, which can be answered by ICANN Board, and which require advice of ICANN Legal.
> 
> SCOPE:
>  
> (1) how to evolve the Temp Spec, " as is” , into a consensus policy,
> (2) how to handle/incorporate possible changes to the Temp Spec that could result from resolving the outstanding items in the Annex to the Temp Spec, and
> (3) other changes required to achieve consensus.
>  
> Questions from GNSO Council:
> (4) What is the intent of the EPDP? Is it simply to confirm the Temporary Specification, or something more? What room is there in scoping to anticipate that the EPDP may conclude that the Temporary Specification cannot be confirmed “as is”, and make changes in order to achieve consensus policy?   
> (5) The Temporary Specification reasoning for including WHOIS as a security and stability issue is based on the new ICANN Bylaws; at time of contract signing, that wasn’t the case. Doesn’t that open a possible avenue to challenge it altogether? Wouldn’t phasing the EPDP allowing a quick Consensus Policy made of uncontroversial parts of the Temp Spec increase the assurances that this wouldn’t hamper ICANN Org’s compliance ability?
> (6) What happens should the Board decide to either modify the Temporary Specification or completely replace the temporary specification by a new one at a later point in time? Does this change the scope of the ongoing EPDP (note: Council does not intend to run multiple EPDPs simultaneously), and if so, how is the EPDP expected to deal with such changes while it may be half way through its process?
> (7) Section 8.2 of the Temporary Specification states that implementation details of the Temporary Specification may be modified by a 2/3 vote of the ICANN Board. If such a circumstance occurs, what is the Board’s opinion regarding how such changes would impact the EPDP?
> (8) The Temporary Specification covers a number of additional policies that go beyond the requirements of the RA and RAA as they relate to Registration Data Directory Services. How does the Board believe the GNSO Council should handle these areas of overlap?
> (9) Does ICANN have/will ICANN develop a list of policies and contractual clauses that are impacted by the temporary specification (beyond what is currently identified in the Annex)? This would help with scoping the work.
> (10) What happens if the GNSO is not able to reach consensus at the end of the 1 year period? (see also Timing)
> (11) How does the Board expect the EPDP to follow and/or to incorporate ICANN´s ongoing legal strategy and the decisions of EU country courts?
> (12) As evidenced by the recent legal action involving EPAG, there are parties who believe aspects of the Temporary Specification as written are not compliant with the GDPR. How does the Board think the GNSO Council should approach this matter when structuring and scoping the PDP?
> 
> TIMING:
>  
> (1) Under the Bylaws, which date is considered as the start of the EPDP: 17 May (when the resolution was adopted), 26 May (when the Temp Spec came into effect), or a date chosen by the GNSO Council,
> (2) Will every future change to the Temp Spec be considered as an additional Temp Spec that requires an additional EPDP, and
> (3) What happens if the Temp Spec expires and the Consensus Policy is not ready?
>  
> Questions from GNSO Council:
> (4) Does the initial 90-day (and maximum one-year) period - and thus the maximum timeline for the GNSO’s policy work - commence on 17 May (date of Board resolution) or 25 May (effective date of the temporary specification)? We note that the operative language from the RAA/RA specifies that “In establishing any Temporary Policy, the Board shall state the period of time for which the Temporary Policy is adopted and shall immediately implement the Consensus Policy development process set forth in ICANN's Bylaws”, and the Board resolution is clear that the specification is effective beginning on 25 May. This could be interpreted to mean that the one-year clock starts from the effective date of the specification rather than Board action via resolution, which is a difference of 8 days.
> (5) What happens should the Board decide to either modify the temporary specification or completely replace the temporary specification by a new one at a later point in time? Does the amended temporary specification become a new temporary specification, effectively re-starting the clock on the Temp Spec and the ongoing EPDP? If changes to the Temporary Specification as it is today are certain to occur, and the amended temporary specification becomes a new temporary specification, why not delay starting the ePDP (assuming clock re-starts)? Note Council’s intention is not running multiple EPDP, but rather revising scope of the one ongoing EPDP.
> (6) How is the re-confirmation process expected to occur as the temporary policy is only valid for 90 day intervals?
> (7) Has the Board considered what actions it may take in the event that, at the end of the one-year period, the Temporary Specification is not confirmed as a Consensus Policy and no other Consensus Policy has been developed to replace it?
>  
>  
> PARTICIPATION OF OTHER STAKEHOLDERS IN THE EPDP:
>  
> (1) Participation of the GAC: How will the EPDP take into account GAC advice? Should the Board facilitate a session between the GNSO and the GAC on this issue, and when?
> (2) Participation of other stakeholders in the EPDP? 
>  
> Questions from the GNSO Council:
> (3) What is the Board's expectation with regard to the Council's ongoing communication with Board/involvement of Board during the scoping process?
>  
>  
> 
> 
> 
>> On Fri, Jun 1, 2018 at 3:57 AM, Marika Konings <marika.konings at icann.org> wrote:
>> Reminder, please provide your input no later than tomorrow, Friday 1 June by 23.00 UTC so that these questions can be shared with the ICANN Board ahead of the meeting that is planned for next Tuesday.
>> 
>>  
>> 
>> Best regards,
>> 
>>  
>> 
>> Marika
>> 
>>  
>> 
>> From: council <council-bounces at gnso.icann.org> on behalf of Marika Konings <marika.konings at icann.org>
>> Date: Thursday, May 24, 2018 at 16:55
>> To: "council at gnso.icann.org" <council at gnso.icann.org>
>> Subject: [council] For your input - questions for the ICANN Board following the adoption of the temporary specification
>> 
>>  
>> 
>> Dear All,
>> 
>>  
>> 
>> As discussed during the Council meeting earlier today, please include your input as well as that of your respective SG/C with regards to which questions / issues that should be discussed with the ICANN Board following the adoption of the temporary policy specification in this google doc: https://docs.google.com/document/d/1I5fyQTqYmcKft-4yiOKP6WMcCST0a1sZGtAY1jofAb4/edit?usp=sharing [docs.google.com]. A number of initial questions that have come up in the various conversations have been included as a starting point.
>> 
>>  
>> 
>> Best regards,
>> 
>>  
>> 
>> Marika
>> 
>>  
>> 
>> Marika Konings
>> 
>> Vice President, Policy Development Support – GNSO, Internet Corporation for Assigned Names and Numbers (ICANN) 
>> 
>> Email: marika.konings at icann.org  
>> 
>>  
>> 
>> Follow the GNSO via Twitter @ICANN_GNSO
>> 
>> Find out more about the GNSO by taking our interactive courses [learn.icann.org] and visiting the GNSO Newcomer pages [gnso.icann.org]. 
>> 
>>  
>> 
>> 
>> _______________________________________________
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>> 
> 
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