[Gnso-epdp-team] The final stretch

Tue Jun 30 01:30:38 UTC 2020

Hi Team,

In the final stretch this week, I would like to share some perspective on our primary need in the Mechanism for Evolution. Primarily, we need a way to ensure that we have as close to the centralized model as possible, as quickly as possible, but ONLY with legal clarity that such a model is possible without Contracted Party liability for disclosure decisions made centrally.

When we shifted to working on the decentralized model, we respected reasonable differences of opinion as to the likelihood that this legal clarity will ever come. We were more optimistic than some others, and I've been accused of wearing rose-colored glasses, but we respected that difference of opinion. Counting on that same respect in return, it seems there are some areas where we have reasonable differences of opinion, and on which future legal clarity could inform SSAD evolution. Besides centralization, the other primary opportunity for evolution based on hopefully-forthcoming legal advice is automation of more use cases, again only if legally possible without CP liability.

As to the “policy” question, it’s worth mentioning how uncommon it is for a party to a contract to agree that a counterparty may modify the contract unilaterally, and because this open-endedness is necessary for ICANN to enforce consensus policies, the assurance provided to CPs is that the only way CP obligations or liabilities can be added without renegotiating the contract is via the defined policy development process. Policy development is needed for matters that add or change CP contractual obligations or liabilities. By crafting our policy as essentially “CPs must automate requests that do not carry risk of liability to the CP,” we rather wisely address both the obligation and liability. The obligation is to respond to automated queries, and the liability matter is addressed by limiting the obligation to cases where there is shown to be no liability.

Framing the policy this way also wisely addresses CP obligations and liabilities in a way that respects our differences of opinions as to the likelihood that more (or fewer!) fact patterns may come to be understood not to result in liability to the CP. By “baking these into” the obligation, we can enable a swift move to automation and centralization of requests which relieves CPs of the manual processing burden, and selfishly ensures we don’t need to drag ourselves through this time and time again as the legal landscape changes. It will surely change in coming months and years.

That said, the IPC is sympathetic to CPs’ need to ensure that future cases to be automated or centralized do in fact carry meet the required threshold for legal clarity. We have built in an exemption for jurisdictional requirements where it might be needed, and we are open minded as to ways we can ensure that this legal clarity threshold is met: perhaps ICANN must publish its legal citations and its intent to automate more use cases and take public comment; perhaps the Mechanism for Evolution group must have GNSO-style consensus thresholds on future automation/centralization cases; perhaps both of the foregoing and only on the first full moon after the vernal equinox – let’s discuss what’s needed. However it works, we must give ourselves credit for the adroit policy work we’ve done here, and we must not drag ourselves through a PDP where it’s neither necessary nor appropriate to do so.

I look forward to working together to come to consensus ASAP.

Brian J. King
Director of Internet Policy and Industry Affairs, IP Group

T +1 443 761 3726
clarivate.com

-----Original Message-----
From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org> On Behalf Of Hadia Abdelsalam Mokhtar EL miniawi
Sent: Monday, June 29, 2020 3:23 PM
To: J <karklinsj at gmail.com>; Amr Elsadr <aelsadr at icannpolicy.ninja>
Cc: gnso-epdp-lead at icann.org; EPDP <gnso-epdp-team at icann.org>
Subject: Re: [Gnso-epdp-team] The final stretch

Thank you Janis for pushing this forward, yes indeed 30 June is not a surprise. Also looking at the pending items I see that reaching consensus is very much possible, we are almost there.

Kind regards

Hadia

________________________________
From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org> on behalf of J <karklinsj at gmail.com>
Sent: 29 June 2020 20:52
To: Amr Elsadr
Cc: gnso-epdp-lead at icann.org; EPDP
Subject: Re: [Gnso-epdp-team] The final stretch

Yes, Amr. All small group work result will be reviewed by the Team. Mechanism and automation including.
We have three meetings remaining to do so Hope we will manage.
Jk

Sent from my iPhone

On Jun 29, 2020, at 20:01, Amr Elsadr <aelsadr at icannpolicy.ninja> wrote:

Hi,

I second Matt’s questions/assumptions. Also, I thought that the recommendation(s) on automation was being reviewed by a small team, which met last week. I was under the impression that we should be expecting an updated recommendation to consider on this topic. Is there an action item for us to review something on this, which I might have missed?

Thanks.

Amr

On Jun 29, 2020, at 6:07 PM, Matt Serlin <matt at brandsight.com<mailto:matt at brandsight.com>> wrote:

Hi Janis (and team),

One positive of a virtual ICANN meeting is no jetlag so recovery seemed much easier this time 😊

Wanted to just ask a few questions on your note below to make sure I’m understanding everything correctly so if either Janis or staff could clarify, I’d greatly appreciate it…

  *   I thought we had been given an additional month (end of July) by the GNSO council to conclude our work? I understand Janis we will be losing you as our leader later this week, but I thought the plan was for Rafik to take over for the remainder of our time to get our work completed.
  *   Perhaps I’m reading your message incorrectly, but I believe it’s entirely possible we could complete our work without agreement on ALL topics, but still have a final report that included a number of recommendations that would have achieved consensus within the group. Obviously we are continuing to work on some of those stickier issues, but I believe it’s entirely possible for us to wrap up Phase 2 without agreement on everything so that whatever is included in the final report would be what’s presented to Council and ultimately the Board.
  *   Speaking on consensus, it’s not clear to me when we are going to proceed with doing a consensus call by all parties as we look to wrap up Phase 2. I think this is something we should plan to discuss in our meetings this week unless it’s clear to everyone else. And perhaps clarification on point one above will make this more clear.

And finally, I just wanted to thank you Janis for all of your leadership throughout this process as you wrap up your service this week regardless of the outcome. You’ve put in a tremendous amount of work to get us to this point and we all owe you our gratitude.

Best regards,
Matt

From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org<mailto:gnso-epdp-team-bounces at icann.org>> on behalf of Janis Karklins <karklinsj at gmail.com<mailto:karklinsj at gmail.com>>
Date: Monday, June 29, 2020 at 2:51 AM
To: EPDP <gnso-epdp-team at icann.org<mailto:gnso-epdp-team at icann.org>>, "gnso-epdp-lead at icann.org<mailto:gnso-epdp-lead at icann.org>" <gnso-epdp-lead at icann.org<mailto:gnso-epdp-lead at icann.org>>
Subject: [Gnso-epdp-team] The final stretch

Dear Team members,

I hope that you have recovered from the ICANN 68.

This message is to remind that we are at an important juncture - to finalize a compromise agreement or to acknowledge the failure to agree.
It is of utmost importance to provide comments on suggested recs - Automation and mechanism - by end of today. So far no reaction has been received. It would allow us to understand whether agreement is in the reach or not really.

As you know my availability ends on 30 June. I am prepared to add two additional meetings this week if the objective is attainable and everyone is committed to work towards a consensus proposal. Otherwise, I will propose to stop consideration of the Report and to acknowledge the lack of agreement and failure of the Team with all subsequent consequences.

I am in your hands, dear Team members.

Best regards
JK

_______________________________________________
Gnso-epdp-team mailing list
Gnso-epdp-team at icann.org
https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_gnso-2Depdp-2Dteam&d=DwIGaQ&c=OGmtg_3SI10Cogwk-ShFiw&r=qQNCXqU_XE2XIdXbawYmk-YDflYH6pd8ffXlzxU37OA&m=WMv4jpNTP1K7wgYgeHYZh39KWn21FaX2prQx7Dx1jWY&s=NLVXcVz_QbNZRLc2ezsOPRNqDCFPN7rvuPjVBaK1EAo&e=
_______________________________________________
By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_privacy_policy&d=DwIGaQ&c=OGmtg_3SI10Cogwk-ShFiw&r=qQNCXqU_XE2XIdXbawYmk-YDflYH6pd8ffXlzxU37OA&m=WMv4jpNTP1K7wgYgeHYZh39KWn21FaX2prQx7Dx1jWY&s=zKFVedmSUJiL9V25cH_wP_1La-81zQ9Ky7-IjAn9N1I&e= ) and the website Terms of Service (https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_privacy_tos&d=DwIGaQ&c=OGmtg_3SI10Cogwk-ShFiw&r=qQNCXqU_XE2XIdXbawYmk-YDflYH6pd8ffXlzxU37OA&m=WMv4jpNTP1K7wgYgeHYZh39KWn21FaX2prQx7Dx1jWY&s=fX64FSz0Ws7MWyf3d8X_qPbMH70rmltjDGN-ghWwUGU&e= ). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
Confidentiality note: This e-mail may contain confidential information from Clarivate. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this e-mail is strictly prohibited. If you have received this e-mail in error, please delete this e-mail and notify the sender immediately.