[council] Jeff's Take on GAC-related issues for ICANN 78 (Long)

[jeff at jjnsolutions.com]

All,

Full credit here to Paul McGrady who asked me a question on what I 
personally thought the issues for the GAC would be at the upcoming ICANN 
meeting and what if anything I believed may be subject to GAC advice.   
I thought I would share this with the full Council list so that you all 
could have discussions on these issues and be prepared.

Please note that my thoughts are based on discussions with the GAC Point 
of Contact and working on the agenda for ICANN 78.  I am not speaking on 
behalf of the GAC PoC or the GAC as I cannot do that, nor do I have the 
ability to do so. This is being sent to you all with the huge caveat 
that everything is subject to change AND I have separated my personal 
take on the topics in blue.

I am going to send out a more comprehensive version of this to the 
Council shortly before ICANN 78 which has the final agenda for the 
GAC/GNSO bilateral as well as some potential talking points.  Some of 
these items below will likely be on the GAC/GNSO agenda, but likely not 
all of them due to time constraints.

1.    SubPro Topics:

      a.    Closed Generics - Status on the Facilitated Dialog and the 
future of Closed Generic discussions / implementation.

Jeff's note:  If you recall the original draft letter proposed by the 
GNSO/GAC/ALAC chairs recommended that the Board be instructed to 
maintain the moratorium on Closed Generics from the last round, but the 
GNSO discussed removing that from the letter.   The GAC has a very 
strong interest in the issue of Closed Generics and does not believe 
they should be allowed absent consensus policy on the topic (which of 
course is developed with GAC input).

     b.      IRT Progress on Next Round - Jeff's take:  No known concerns 
here from GAC, just an update.

     c.      Pending items still not addressed by the Board / Open Issues

             - PICs / RVCs:

Jeff's Take:  As most GAC Advice on new gTLDs is implemented as a PIC, 
or may be implemented as an RVC if Registries respond to Early Warnings 
or comments, it is important to the GAC that these be incorporated as 
contractual commitments into the agreements (See ICANN 77 Communique 
Advice 2(a). GAC agrees that such commitments must be enforceable by 
ICANN through clear contractual obligations, and that consequences for 
the failure to meet those obligations should be specified in the 
relevant agreements with the contracted parties. However, they are 
looking to understand (as we are) the changes being proposed by the 
ICANN Board to the language.

             - Private Auctions:

Jeff's take:  The GAC has previously expressed on several occasions, 
including as Advice in its ICANN 77 Communique that, ICANN "ban or 
strongly disincentivize private monetary means of resolution of 
contention sets, including private auctions." (ICANN 77 Communique 
4(a)(ii).  They also do not want to see ICANN auctions of last resort in 
contention sets involving non-commercial applicants.

                 - Opening up small team to GAC participation (especially 
for items not accepted by the Board)

Jeff's Take:  GAC members want to make sure that they are participating 
in the process to determine both the processes used, as well as the 
substance, of revisions to recommendations, new recommendations, not 
pursuing existing recommendations, etc.  This is especially true for all 
of the issues that the GAC has already issued advice on as well as items 
that they previously deemed were of importance to the GAC.

                 - Applicant Support (more than financial) -

Jeff's Take:  Not surprisingly and also quite aligned with the GNSO, the 
GAC issued advice on Applicant Support (ICANN Communique 77, Advice #3). 
  The Applicant Support program to be incredibly important to them and 
they want to make sure that applicants not only have access to financial 
assistance with the application, but also assistance in application 
preparation and ongoing registry management (including potentially a 
reduction in ICANN ongoing registry fees).  They also want to make sure 
that the program is highly publicized to those that are the intended 
beneficiaries of the program.

             - GGP Initial Report -

Jeff's Take:  I would propose this gets combined with the topic above 
and may just be an update.

         - .quebec:  Is this an issue for the GAC?

Jeff's Take:  This issue of course is of interest to the GAC Canadian 
Reps, but as of today this issue has not gotten on the GAC agenda as a 
whole.  That is not an indication of whether this issue is important or 
not, there just have not been any GAC-wide discussions on the topic.  
Because it was discussed within the GNSO Council this week, I raised it 
at the meeting today and the GAC Point of Contact is going to see if 
this is an issue for the GAC at this ICANN meeting.

2.    IGOs
     a.    Implementation of Curative Rights (what is the status of the 
IRT) -

Jeff's Take:  I believe The GAC is supposed to get a briefing at ICANN78 
from ICANN on the status of implementation of Curative Rights as well as 
the Watch Service (see below).  They believe that these are must haves 
before ICANN should consider lifting the reservation of IGO Acronyms.  
This was in their GAC Communique as advice a couple of meetings ago.  
They want to discuss this with the GNSO.  I do not expect further advice 
on this unless they affirm their previous advice or if it appears that 
ICANN is moving in a direction that is inconsistent with the previous 
GAC Advice.

     b.    Question of Moratorium on IGO acronyms / watch service (which 
ICANN is supposed to develop) - See Above.

3.    Future Policy Work on DNS Abuse?

Jeff's Take:  The GAC positions on this are well-known.  They are 
supportive of the proposed contract amendments for the Contracted 
Parties but of course want to see more done on the policy front before 
the opening up of the next round.  But I do not expect any advice here, 
just more of wanting an update on what is going on and making sure it is 
progressing.

4.    WHOIS / Data Protection
        a.   Access to non-public information / "urgent requests" - 
Jeff's Take LONG):

This relates to the pilot being lunched soon by ICANN with the 
Registrars.  On August 23, 2023, the GAC Chair sent a letter to the 
ICANN Board 
(https://www.icann.org/en/system/files/correspondence/caballero-to-sinha-23aug23-en.pdf), 
to express its concerns over the time line to respond to requests in 
select emergency situations ("Urgent Requests").  They do not like the 
proposed three (3) business days currently in the EPDP Phase 1 
implementation report and want the ICANN Board to reconsider this. On 
September 8, 2023, the Registrars sent a letter to the ICANN Board 
(https://www.icann.org/en/system/files/correspondence/heineman-to-sinha-08sep23-en.pdf) 
providing some context to the 3 business days stating that this language 
has been in the text since September 2021, but in August 2022 the 
language changed to requiring a response, "no longer than two (2) 
business days from receipt" which was put out for comment. This was a 
change from the Implementation Pilot Team without consultation of the 
full IRT.  Once that was published, there were several meetings of the 
full IRT to come up with a compromise solution.  The Compromise language 
published following the July 24, 2023 meeting, which the Registrars 
agree with, was:

"10.6. For Urgent Requests for Lawful Disclosure, Registrar and Registry 
Operator MUST respond, as defined in Section 10.7, without undue delay, 
generally within 24 hours of receipt.

10.6.1. If Registrar or Registry Operator cannot respond to an Urgent 
Request for Lawful Disclosure within 24 hours, it MUST notify the 
requestor within 24 hours of receipt of an Urgent Request for Lawful 
Disclosure of the need for an extension to respond. Registrar or 
Registry Operator’s extension notification to the requestor MUST include 
(a) confirmation that it has reviewed and considered the Urgent Request 
for Lawful Disclosure on its merits and determined additional time to 
respond is needed, (b) rationale for why additional time is needed, and 
(c) the time frame it will respond, as required by Section 10.7, which 
cannot exceed two (2) business days from the time of the initial receipt 
of the request.

10.6.2. In addition to the extension provided for in Section 10.6.1, if 
responding to an Urgent Request for Lawful Disclosure is complex, or a 
large number of requests are received by Registrar or Registry Operator, 
it MAY extend the time for response up to an additional one (1) business 
day provided it notifies the requestor within (2) business days from the 
time of the initial receipt of the request of the updated time frame to 
respond explaining the need for an additional extension of time. "

So according to the registrars, they are only requesting 3 business days 
if they have notified the requestor within 24 hours that it needs more 
time and if it needs 3 business days it needs to notify the requestor 
again within 2 business days from receipt of the original request.  
Registrars do not agree with the GAC's interpretation that this will 
always be 3 business days and believes that the GAC should have given 
the Board the full context.  It is my impression that the GAC may 
believe that because it allows 3 business days that this will become the 
default.

This will be discussed by the GAC at ICANN 78.

        b.   Accuracy Issue and status of DPAs between the Contracted 
Parties and ICANN (Since this has been the reason for delaying policy 
work on accuracy).

Jeff's Take:  Accuracy of Registration data is of utmost importance to 
the GAC and "remains committed to working within the Accuracy Scoping 
Team to assess the current state of accuracy under ICANN's contracts."  
The GAC welcomes the completion of a Data Protection Impact Assessment 
on a contractual compliance audit that could shed light on the current 
state of accuracy.  Although I believe they were ok with the initial 
6-month delay of the Scoping Team work waiting for the DPAs, they are 
looking for more meaningful updates on where ICANN is with the DPAs .  
They would like to see policy work ASAP.  I am not sure if there will be 
Advice on this, but it certainly is an issue of importance.

5.    SOI:  Status of discussions on the representation of undisclosed 
clients.

Jeff's Take:  The GAC Is following this one closely and I believe they 
are aligned more with requiring disclosure of clients that are directly 
being represented in policy processes.  Governments individually 
generally require full disclosure of clients when they engage in 
discussions with representatives of industry, the community, etc.  
Whether there will be advice on this at ICANN 78 or not, I don't think 
so.  But it is an item of importance to them.

Other GAC Activities / Issues (Jeff's Take)

1.  I discussed the proposed Charter for the Standing Committee on RDRS 
to help inform the next steps on the SSAD policy recommendations with 
the GAC PoC today.  Specifically I discussed the composition which 
currently is made up of Councilors and members of the ePDP Phase 2 small 
team members.  from the GAC, I believe Chris Lewis-Evans and Laureen 
Kapin had a "shared membership."  Chris is no longer working with the 
Public safety working group and is in the private sector.  So I am sure 
being able to appoint a replacement (not an alternate) will be important 
to them.

2.    GAC is having two days of outreach sessions at ICANN 78 during the 
first weekend.  The second day will focus on "emerging technologies" and 
getting briefings from ICANN Org on Blockchain in general and 
"alternative naming spaces" with an eye on trying to figure out what, if 
anything, is the GAC role.

3.  GAC is also focused on the IANA Review, especially with respect to 
Articles 18 and 19 of the Bylaws. 
(https://www.icann.org/en/announcements/details/icann-board-convenes-second-iana-naming-function-review-ifr2-11-09-2023-en). 
  This review is taking a broader look athat includes identifying whether 
the requirements identified in the IANA contract SOW are still relevant 
or whether they need changing.  This is defined in Section 18.3 of the 
Bylaws.

4.  GAC will be looking at the Proposed Updates to Existing Rights 
Protection Mechanisms documentation 
(https://www.icann.org/en/announcements/details/icanns-proposed-updates-to-existing-rights-protection-mechanisms-documentation-24-08-2023-en) 
posted on August 24, 2023.

5.  There are a couple of ccTLD items the GAC will discuss including 
input on ccNSO PDP4 (initial Report on (de-) selection of IDN ccTLDs 
(https://www.icann.org/en/announcements/details/icann-seeks-input-on-ccnso-pdp4-initial-report-on-de-selection-of-idncctlds-16-08-2023-en) 
and the proposed ccLD related Review mechanism Policy Proposal 
(https://www.icann.org/en/announcements/details/icann-seeks-input-on-a-specific-cctld-related-review-mechanism-policy-proposal-01-08-2023-en).



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