[council] BC input on outreach related to art28 NIS2

[Mark Datysgeld]

Council colleagues,

Please find below the Business Constituency's feedback on outreach 
related to art28 NIS2, as well as a relevant attachment.

*Input follows*:

The BC registers its objection to the direction the council is taking 
with regard to governmental outreach. It is clear that the management of 
these relationships is the remit of the GAC, not the GNSO. The council 
is not a governmental lobbying organization and should not behave as such.

Discussions with governments are the remit of the GAC – not the GNSO 
Council.  The GNSO’s role is to propose new polices, leaving government 
engagement to the GAC. Under ICANN bylaws, the GNSO’s role definition is 
to be “responsible for developing and recommending to the Board 
substantive policies relating to generic top-level domains.” That of the 
GAC is “activities of ICANN as they relate to concerns of governments, 
particularly matters where there may be an interaction between ICANN’s 
policies and various law and international agreements or where they may 
affect public policy issues.” Let’s be clear about that intentional 
separation. What is proposed for the Council to undertake has little to 
do with “recommending to the Board policies relating to generic 
top-level domains.”

The BC has been calling for WHOIS policy to be updated in response to 
NIS2 (see attached chart – so far, the Council has not acted). It is 
therefore premature to reply to Europe to assure EU authorities that 
“all is well” until that work has been completed.  Note further that the 
Council has not developed – or even begun to develop – updated standards 
related to NIS2’s verification and accuracy requirements. Indeed, the 
Council elected to delay any work in these areas until the conclusion of 
the accuracy scoping work (which left off with a yet-to-be-employed 
survey of registrars before work was suspended indefinitely).

Should council representatives disagree with ICANN bylaws and elect to 
forge ahead, and due to the focus here being multistakeholder processes 
and roles, we respectfully suggest that any outreach be done only with 
full feedback and approval from each constituency or stakeholder group 
represented through the GNSO. This would ensure that there is full 
buy-in and true reflection of constituency or stakeholder group 
positions with any representation of unanimity in a communication from 
the Council. The BC will strongly object to representations otherwise by 
a Council letter or outreach that doesn’t fully include such feedback 
from each constituency or stakeholder group represented within the GNSO.

This is an important matter, both procedurally and as represented by the 
potential content of a council communication. The BC's Councilors are 
happy to work with colleagues to arrive at a procedure that meets the 
needs of all groups making up the GNSO.

-- 
Mark W. Datysgeld [markwd.website <https://markwd.website>]
Director at Governance Primer [governanceprimer.com 
<https://governanceprimer.com>]
ICANN GNSO Councilor
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