[Gnso-epdp-team] Notes and action items - EPDP Phase 2 Meeting #74 - 23 July 2020

Caitlin Tubergen caitlin.tubergen at icann.org
Thu Jul 23 17:36:00 UTC 2020

Dear EPDP Team,

Please find below the notes and action items from today’s EPDP Team meeting.

Best regards,

Marika, Berry, and Caitlin


  1.  Friday, 24 July: Chair to transmit redline of Final Report along with consensus designation. (Note: the redlines will indicate (1) Category 1 (cannot live with) agreements reached during plenary calls<https://docs.google.com/document/d/16BICriVfOPiEeve4A-x6TYKPbgRKqvhX/edit> and (2) non-objection to Category 2 and Category 3 items<https://docs.google.com/document/d/1E7NQQpXob_2Rmsq5UbNyxtySsJVUUzH4/edit>. Please refer to the respective Google Docs, where agreements have been noted.
  2.  By COB Monday, 27 July: EPDP Team to continue working on Category 2 items, for which the noted changes are critically important to the requesting group. Groups are encouraged to coordinate within the Google Doc<https://docs.google.com/document/d/1E7NQQpXob_2Rmsq5UbNyxtySsJVUUzH4/edit>.
  3.  Tuesday, 28 July: Support Staff to review the Google Doc and flag the Category 2 agreements to the plenary team.
  4.  By COB Tuesday, 28 July: EPDP Team to review Support Staff’s noted list of agreements and flag if any agreed changes result in “cannot live with” items. (Cannot live items will not be applied to the Final Report.)
  5.  By Wednesday, 29 July at the latest: EPDP Team Members to respond to Chair’s consensus designation if members believe designation is inaccurate.
  6.  By Wednesday, 29 July at the latest: EPDP Team Members to provide minority statements.
  7.  By Friday, 31 July: Deadline to submit Final Report to GNSO Council.

EPDP Phase 2 - Meeting #74
Proposed Agenda
Thursday 23 July 2020 at 14.00 UTC

1.                            Roll Call & SOI Updates (5 minutes)

2.                            Confirmation of agenda (Chair)

3.                            Welcome and housekeeping issues (Chair) (5 minutes)

  1.  Expected approach for consensus designation and timeline:

From the GNSO Working Group Guidelines:
The recommended method for discovering the consensus level designation on recommendations should work as follows:
i. After the group has discussed an issue long enough for all issues to have been raised, understood and discussed, the Chair, or Co-Chairs, make an evaluation of the designation and publish it for the group to review.
ii. After the group has discussed the Chair's estimation of designation, the Chair, or Co-Chairs, should reevaluate and publish an updated evaluation.
iii. Steps (i) and (ii) should continue until the Chair/Co-Chairs make an evaluation that is accepted by the group.
iv. In rare case, a Chair may decide that the use of polls is reasonable. Some of the reasons for this might be:
o A decision needs to be made within a time frame that does not allow for the natural process of iteration and settling on a designation to occur.
o It becomes obvious after several iterations that it is impossible to arrive at a designation. This will happen most often when trying to discriminate between Consensus and Strong support but Significant Opposition or between Strong support but Significant Opposition and Divergence.

                Modified timeline:

     *   22 – 26 July – continuation of online dialogue on category 2 items
     *   27 July – confirmation in google doc of proposed agreements on category 2 items by staff support team – by 28 July groups to confirm if they cannot live with the proposed agreements (if cannot live, proposed agreements will NOT be applied)
     *   23 24 July: distribution of Final Report and consensus designations. As a reminder, the Chair will make an evaluation of the support achieved for the recommendations and publish its designation for the group to review.
     *   243 - 27 29 July: opportunity for EPDP Team to respond to consensus designations, review by Chair of input received, if any, confirmation by Chair of designation.
     *   27 29 July: deadline for minority statements.
     *   31 July: No later than date for submission of Final Report to the GNSO Council

  *   We have made some modifications to the proposed timeline to allow some additional breathing room, while sticking with our delivery data of 31 July.
  *   Groups will have until 26 July to continue working in the google doc to resolve category 2 items. As also noted, it will be up to the proponents of category 2 items that have been objected to, to engage with those that have expressed concern to see if a compromise is possible, and if so, this compromise should be clearly marked in the google doc by 26 July at the latest so that other groups can review this before the staff support team applies these to the report. For those category 2 items for which there was no objection, the staff support team has already started applying these to the report and has indicated as such in the google doc. In some cases, Support Staff has reached out to commenters to better understand whether comments were in support or in opposition to what was proposed, so please review the Google doc and respond in a timely manner.
  *   On 27 July, the staff support team will flag items for which compromise language has been found. Should this have created any cannot live with items for groups that may have not been involved in the online dialogue, this needs to be flagged and the edits will not be applied.
  *   Tomorrow, Friday 24 July, I will distribute the updated Final Report in which the minor edits, category 2 items that were not objected to and the resolved category 1 agreements have been applied. If anyone believes changes are in error or that the staff support team may have missed, please indicate as such.
  *   Together with the updated Final Report, I will distribute the proposed consensus designations. As outlined in the GNSO Working Group Guidelines provision that was included in the agenda, this is expected to be an iterative process. Similar to how this was done in phase 1, I am planning to use a table in which I will identify for each recommendation the consensus designation I believe has been achieved, indicating also which groups do not appear to support a recommendation or a part thereof, if any. My designations will be inspired by the outcome of discussions today as well as any cannot live with items that we were not able to resolve yesterday. This is expected to be an iterative process, so if you believe the consensus designation is not the correct one or your group has been incorrectly identified or not identified as not supporting certain recommendations, you are expected to flag this as soon as possible. I will review this input and make any updates deemed appropriate and through this iterative process we will hopefully come to a general understanding on the consensus designations.
  *   Groups have also been given a couple more days to prepare any minority statements you want to see included in the report. Similar to phase 1, these are expected to be included in an Annex to the Final Report.
  *   And then after 29 July, the staff support team will wrap this all up into the Final Report for submission to the GNSO Council.
  *   EPDP Team Feedback:

        *   ALAC will likely be objecting to some recommendations with a conditional acceptance of actions of the GNSO. Chair needs to try to assess consensus on the items that were not addressed. Even though there is no recommendation associated with it, the lack of action should also have a consensus designation.
        *   For consensus designation, each group submitted their consensus designation in writing in Phase 1. It appears there is a different process here. If that is correct, can you provide more details?
        *   For Phase 1, the designation from Kurt was shared. Based on the “cannot live with” items and the subsequent discussion, I will make a designation. The consensus designation message will provide more details.
        *   Consensus designations are reserved for policy recommendations only.
        *   Is it correct that there is an action item for each group to designate their level of consensus on each recommendation? That way, this can be confirmed that the designations in the table are correct.
        *   The consensus table will include what groups support and do not support
        *   With respect to the reference to conditional support for a recommendation – that could be very complicated if conditions are attached to support. If everyone did that, it would be very convoluted – would advise groups not to do this.
        *   Conditional support does raise complications, but some recommendations were rushed through yesterday. 2 options: no consensus or conditional consensus.
        *   Conditional consensus does not exist as a designation – groups are welcome to submit minority statements to express their concerns

4.                            Finalization of review of cannot live with items:

  1.  Priority 2 related items
     *   Item #1
     *   Item #37-41

·         See proposed compromise language circulated to the mailing list: Legal/Natural: Although the issue did get some consideration in Phase 2, this did not result in agreement on new policy recommendations. The requested study on this topic was received too late in the process to receive due consideration.  As a result, per the EPDP Phase 1 recommendations, Registrars and Registry Operators are permitted to differentiate between registrations of legal and natural persons, but are not obligated to do so. Further work on this issue (including consideration of ICANN org’s Differentiation between Legal and Natural Persons in Domain Name Registration Data Directory Services (RDDS) Study) is under consideration by the GNSO Council.”
Feasibility of Unique Contacts: “The EPDP Team received legal guidance that indicated that the publication of uniform masked email addresses results in the publication of personal data; which indicates that wide publication of masked email addresses may not be currently feasible under the GDPR. Further work on this issue is under consideration by the GNSO Council.
·         This language would also be reflected in the executive summary.
·         Is there support for including this language or are there concerns that need to be discussed?
·         Laureen proposed edits to this text, so the text on the screen has been redlined with these proposed edits.
·         Do not support the GAC edits. On legal v. natural, the staff version was neutral and the edits seem include opinions and feelings. With feasibility of unique contacts, support the staff version, do not agree with redline – this is creative editing of the language that came out of the legal subteam. Do not agree with the added sentence.
·         Could live with either of these formulations, but is it really accurate to say that the group didn’t agree b/c it didn’t have the report? It would be more accurate to not say that.
·         Original version is fine; updates are too opinionated. The word “some” before the discussion, should be changed to “substantial”
·         Support the changes that were made. In the second paragraph should be “advisable” instead of “feasible”. The real issue in question is that it’s not forbidden to publish personal data. It is - are the merits of publication worth the potential impact on the data subject? To say it is not feasible implies it not technically possible, which is incorrect.
·         The red lines are factual and not based on feelings. Regarding creative interpretations, the language added to the text is direct quotes from the Bird & Bird memo. This issue is nuanced, and this is an important addition that would give further context.
·         Can those that support the edits live with the original staff version?
·         Accuracy is not listed here – will there be a separate discussion of that?
·         For all issues with conclusions, there is an explanation of the status of this item. Aware there are strong views on this, but from a staff perspective – is the Final Report the place to have this conversation? How likely is it the group will agree to how to characterize the issue? It is not included here b/c there is already language in the report re: status of the topic. Groups can write directly to the Council.
·         Can accept the Legal v. Natural language from staff, but modified version of feasibility (to include text from B&B memo)
·         Chair’s ruling: use version provided by staff, but acknowledge the disagreement from the group re: the current language
·         In the staff version, object to second sentence (as a result…) – that implies that we revisited it and confirmed that we support that approach. That is not correct – we need to delete this sentence.

  1.  Any further items flagged after review of proposed approach for cannot live with items documented in google doc<https://docs.google.com/document/d/16BICriVfOPiEeve4A-x6TYKPbgRKqvhX/edit> following 21/22 calls or following review of updated rec #8 language<https://docs.google.com/document/d/10xb5eE3CxTvx5tFNmhsO_F7OdOIRMJFH/edit>

  *   There are not enough hours in the day, given the artificial deadline imposed on us.

  *   Updated rec #8 – note concern expressed by the RrSG
  *   Do not share the concerns the registrars here – missing the reason for the concerns.
  *   Question regarding 8.5 “absent any legal requirements to the contrary” – what purpose is this supposed to serve? Is there a legal requirement to disclose data? Is this suggesting that legal proceedings may be taken to process disclosure requests within the SSAD? This is, at best, confusing. At worst, it is problematic to data subjects. Suggest removing this unless there is a reason that it is there.
  *   No problem with that removal.
  *   Need more time to consider this removal.
  *   If we can all agree that the law will override the policy where there is a conflict, no problem with removing this.
  *   Disagree with this removal
  *   In the course of the team’s work, it is a bad habit to keep repeating that legal obligation of contracted parties needs to trump consensus policy. This should not have to be baked into policy recommendations. Do not understand this provision.
  *   Leave language as is.
  *   GAC flagged item #27
  *   This text raises concerns with respect to public safety. How will this system get paid for? If fees become high, then it becomes an obstacle for people access RDS information. Echo SSAC input – SSAC 111 – before restrictions on charges of RDS access, there should be a formal assessment on how that will affect users and security.
  *   Item #34 –
  *   Intent of comment on 34 was not to limit the Council’s ability to decide what is policy and what is not. It is only adding new cases for automation.
  *   Proposal from Milton: “The standing committee CAN propose changes that are not policy, and that MAY include disclosure automation”

  *   This is not supposed to be a modification of language, but rather a statement about what the policy already said. There is nothing in the current policy that says any change would be a possible policy change, but it might be. Do not agree with a categorical statement that any change to disclosure decisions is implementation.
  *   Understand the concern that the group can preordain what is policy and what is implementation. Important that added categories of disclosure are implementation and not policy
  *   Text which was rejected yesterday did not say any recommendation is implementation; it was more specific. Milton’s statement is correct, but irrelevant to this context. Members can choose not to support the recommendation.
  *   Do not disagree with Milton’s language, but do like the “MAY” include. Perhaps consider saying “For clarity, the standing committee CAN propose changes that are not policy, which includes disclosure automation.”
  *   Chair’s ruling: keep language as is

  1.  Category 2 items (groups to prioritize which items they would like to flag / discuss)

5.                            Wrap and confirm next steps (5 minutes):

  *   Encourage groups to engage with one another on Cat. 2 items and see if they can come to an agreement.
  *   Action item: engage with those that objected to category 2 items you care deeply about. By Monday at the latest, we will have a clear idea of what Cat. 2 items where an agreement has been reached and indicate clearly which numbers resulted in a change.
  *   The Google doc will indicate clearly which changes were applied.
  *   Staff Support will send out the timeline as well as the link to the Google doc. Encourage groups to prioritize the issues they care about.

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