[council] Post Oct Council meeting - Motion vs Letter as ODA response to the Board

Tue Oct 25 17:09:14 UTC 2022

Many thanks Sebastien for your concise description of the options.  It strikes me that if the Council were modifying an approved PDP Recommendation (prior to Board approval), a Supermajority would be required under ByLaws Article 11 Section 3(i)xi - See page 41 of the Operating Procedures.

Unless I am mistaken, Council is not modifying the SSAD EPDP Recommendation, but is rather saying that there is "no objection" to the trial run of the lighter WhoIs Disclosure System.  As far as I know, there is no actual change to Council's Recommendation to the Board on the EPDP.  Is that correct?

Given the above scenario, it strikes me that the "no objection" letter is the more appropriate format for addressing the proposed WhoIs Disclosure System.  However, I would also think that counselors who want to vote on the "No Objection" letter (by simple majority) would want to know
(1) for how long the WDS will be in place and tested and
(2) when the results of the experiment will be reported back to the Council.

Separately, I believe you have correspondence with Brian Beckham of WIPO and Owen Smigelski from NameCheap as to the issues around access to the WDS for UDRP providers and the problems that could cause for registrars.

Obviously I am a non-voting member of Council and am only raising the above for consideration by Leadership and voting members.

Thank you,
Anne

Anne E. Aikman-Scalese

Of Counsel

AAikman at lewisroca.com<mailto:AAikman at lewisroca.com>

D. 520.629.4428

[cid:image003.png at 01D8E858.31AC2140]

From: council <council-bounces at gnso.icann.org> On Behalf Of Sebastien--- via council
Sent: Tuesday, October 25, 2022 3:31 AM
To: COUNCIL at GNSO.ICANN.ORG
Subject: [council] Post Oct Council meeting - Motion vs Letter as ODA response to the Board

[EXTERNAL]
________________________________
Dear All,

as mentioned during last week's Council meeting, the Council will need to consider how to communicate its views to the ICANN Board in relation to the Whois Disclosure System.

One option is to do this via a motion, which is the standard way in which the Council takes and confirms an action.
Another option could be to do this via a letter, similar to how the Council's perspective have been shared on other topics in relation to this conversation such as the ODA and the preliminary report of the EPDP Phase 2 team.

In order to determine the preferred path forward, the Council may want to consider the following:

  *   Motion - as this is not an action that is called out in the Bylaws, the threshold for the motion to pass would be a simple majority vote of each House. The voting results are recorded and publicly available. The results of the vote would be communicated immediately to the ICANN Board for its review and consideration.
  *   Letter - a Council letter is typically agreed to in the form of non-objection. Unless a letter is drafted, agreed and considered as part of the November Council meeting, there may be some additional time needed after the November Council meeting to draft this letter and obtain non-objection from the Council to send it.

You will have seen that a draft motion was already shared for review prior to the last Council meeting. The approach taken in that motion is that the Council would adopt the conclusions of the EPDP Phase 2 small team that are recorded in the addendum (which is in the process of being finalized).
My assumption is that a letter would follow a similar path by either calling out certain elements in the letter which would serve as the vehicle to transmit the addendum.

As at this stage, the EPDP Phase 2 small team is working on the assumption that, at a minimum, there will be support from all GNSO SG/Cs for the addendum recommending moving forward with the Whois Disclosure System.
Although there is no requirement to do so, a motion is the method by which the Council documents its actions and directions to the ICANN Board. As such, for accountability and transparency reasons, and recognizing that this is requesting the ICANN Board and ICANN org to commit resources to this effort, I would personally suggest following the motion path here.
If there is a strong view that a letter is preferred, I am happy to be convinced otherwise, but I hope we can spend our energy on considering the substance of the matter instead of getting distracted by procedural options.

Kindly,

Sebastien Ducos
GoDaddy Registry | Senior Client Services Manager
[signature_3031963986]
+33612284445
France & Australia

sebastien at registry.godaddy<mailto:sebastien at registry.godaddy>

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