[council] Fwd: [So-ac-sg-cleaders] Approved Board Resolutions | Special Meeting of the ICANN Board - ICANN

Mon May 7 01:01:30 UTC 2018

Dear colleagues,

Please see below the motion re GAC Advice on GDPR, for our consideration as
we further develop next steps.

Best wishes,

Heather

---------- Forwarded message ----------
From: David Olive <david.olive at icann.org>
Date: Sun, May 6, 2018 at 11:56 PM
Subject: [So-ac-sg-cleaders] Approved Board Resolutions | Special Meeting
of the ICANN Board - ICANN
To: "so-ac-sg-cleaders at icann.org" <so-ac-sg-cleaders at icann.org>

https://www.icann.org/resources/board-material/resolutions-2018-05-03-en

Approved Board Resolutions | Special Meeting of the ICANN Board

03 May 2018

   1. *Main Agenda:
   <https://www.icann.org/resources/board-material/resolutions-2018-05-03-en#1>*
      1. *GAC Advice regarding European Union General Data Protection
      Regulation (GDPR): San Juan Communiqué (March 2018)
      <https://www.icann.org/resources/board-material/resolutions-2018-05-03-en#1.a>*
         - *Rationale for Resolution 2018.05.03.01
         <https://www.icann.org/resources/board-material/resolutions-2018-05-03-en#1.a.rationale>*

   1. Main Agenda:
      1. GAC Advice regarding European Union General Data Protection
      Regulation (GDPR): San Juan Communiqué (March 2018)

      Whereas, the Governmental Advisory Committee (GAC) met during the
      ICANN61 meeting in San Juan, Puerto Rico and issued advice to the
      ICANNBoard in a Communiqué
      <https://www.icann.org/en/system/files/correspondence/gac-to-icann-15mar18-en.pdf>
on
      15 March 2018 ("San Juan Communiqué").

      Whereas, the San Juan Communiqué was the subject of an exchange
      <https://gac.icann.org/sessions/gac-and-icann-board-conference-call-regarding-icann61-communique>
between
      the Board and the GAC on 11 April 2018.

      Whereas, the San Juan Communiqué includes advice concerning ICANN's
      proposed Interim Model for Compliance with ICANN Agreements and
      Policies in Relation to the European Union's General Data Protection
      Regulation
      <https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08mar18-en.pdf>
(the
      "Interim GDPR Compliance Model").

      Whereas, the Board has identified items of GAC advice in the San Juan
      Communiqué that are or potentially could be inconsistent with proposed
      actions the Board is considering taking to adopt the Interim GDPR
      Compliance Model.

      Whereas, the Bylaws require that "[i]n the event that the Board
      determines to take an action that is not consistent with
Governmental Advisory
      Committee advice, it shall so inform the Governmental Advisory
      Committee and state the reasons why it decided not to follow that
      advice" and the Board and GAC are required to enter into a Bylaws
      Consultation process.

      Resolved (2018.05.03.01), the Board has determined that it may take
      an action that is not consistent or may not be consistent with the GAC's
      advice in the San Juan Communiqué concerning the GDPR and ICANN's
      proposed Interim GDPR Compliance Model, and hereby initiates the required
      Board-GAC Bylaws Consultation Process
      <https://gacweb.icann.org/download/attachments/27132063/2013-04-07-Process%20forConsultations%20between%20ICANN%20and%20GAC.doc?version=1&modificationDate=1376102118000&api=v2>
required
      in such an event. The Board will provide written notice to the GAC to
      initiate the process as required by the Bylaws Consultation Process.
      *Rationale for Resolution 2018.05.03.01*

      Article 12, Section 12.2(a)(ix) of the ICANN Bylaws permits the GAC to
      "put issues to the Board directly, either by way of comment or prior
      advice, or by way of specifically recommending action or new policy
      development or revision to existing policies." In its San Juan Communiqué
      (15 March 2018), the GAC issued advice to the Board on various
      matters including ICANN's proposed approach to address compliance
      with ICANN's agreements with registries and registrars in relation to
      the European Union's General Data Protection Regulation (GDPR).

      The ICANN Bylaws require the Board to take into account the GAC's
      advice on public policy matters in the formulation and adoption of the
      polices. If the Board decides to take an action that is not
consistent with
      the GAC advice, it must inform the GAC and state the reasons why it
      decided not to follow the advice. Any GAC advice approved by a full
      consensus of the GAC (as defined in the Bylaws) may only be rejected
      by a vote of no less than 60% of the Board, and the GAC and the Board
      will then try, in good faith and in a timely and efficient
manner, to find
      a mutually acceptable solution.

      At this time, the Board's current thinking and approach to addressing
      the GDPR in relation to ICANN's agreements with registries and
      registrars is inconsistent or could be viewed as inconsistent
with certain
      items of the GAC's advice in the San Juan Communiqué. Given this, the
      Board is taking action at this time to initiate the process that is
      required prior to the Board taking an action that is not consistent with
      the GAC's advice. As part of the process, the Board is required to,
      and will provide a written response to the GAC indicating: (1)
      whether it has any questions or concerns regarding such advice;
(2) whether
      it would benefit from additional information regarding the basis for the
      GAC's advice; (3) and a preliminary indication of whether the Board
      intends to take such advice into account. The Board's response will
      be the subject of an exchange between the Board and the GAC.

      In taking this action, the Board reviewed various materials,
      including, but not limited to, the following materials and documents:
      - San Juan Communiqué (https://gac.icann.org/
         contentMigrated/icann61-gac-communique
         <https://gac.icann.org/contentMigrated/icann61-gac-communique>)
         - Process for Consultations between the ICANN Board of Directors
         and the Governmental Advisory Committee(https://gacweb.
         icann.org/download/attachments/27132063/2013-04-07-Process
         forConsultations between ICANN and GAC.doc?
         version=1&modificationDate=1376102118000&api=v2
         <https://gacweb.icann.org/download/attachments/27132063/2013-04-07-Process%20forConsultations%20between%20ICANN%20and%20GAC.doc?version=1&modificationDate=1376102118000&api=v2>
         )

      Taking this action will have a positive impact on the community
      because it will assist with resolving the advice from the GAC
       concerning ICANN's proposed approach for enforcing compliance with
      agreements with registries and registrars in relation to the GDPR. There
      are no foreseen fiscal impacts associated with the adoption of this
      resolution as the first step of the process, which requires an exchange
      between the Bord and the GAC, is anticipated to be conducted
      telephonically. Approval of the resolution will not impact security,
      stability or resiliency issues relating to the DNS. This is an
      Organizational Administrative function that does not require public
      comment. This action is in support of the public interest and ICANN's
      mission as it will assist in ensuring that public policy
considerations are
      appropriately taken into account in proposed actions by the ICANN Board
      concerning GDPR compliance.

Sent from my iPhone

David A. Olive
Senior Vice President
Policy Development Support
Internet Corporation for Assigned Names and Numbers (ICANN)

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