[Gnso-epdp-team] Fwd: Initial Report - final version + redline

Thu Jun 3 18:00:37 UTC 2021

Hi all,

Thanks for all the input.

The Leadership team and staff were very clear about our focus resolving the "can't live with" items over the last two weeks, including during the extended time this week. In doing so, we worked to bring the document to a state that would have maximum possible support reflecting our deliberations over the last five months, while clearly acknowledging various differences and teeing up the open questions.

Specifically, on Rec #1, the preceding section of the report is very clear on the state of various views and group positions, and the actual Initial Report language includes "at this stage" to reflect that, at the time of the Initial Report, there was not consensus to change Phase 1 recommendations. Could that situation change following public comment and further work on a Final Report? Perhaps. Is it unfair or inaccurate at this stage to say that such consensus does not exist today? No, it is not.

We have consistently been using the term "guidance" for weeks/months, and we even discussed the possibility of referring to "best practices" vs. "guidance." There is not consensus today on changes to Phase 1 consensus policy requirements at this stage and it would be misleading to suggest otherwise. We did not conduct a formal consensus call in preparation for the Initial Report and public comment feedback (as is sometimes the case), and that's what the Initial Report says, quite clearly I believe.

As you assess your last-minute input as submitted, would it have helped bridge any gaps? Did it have even general support of other groups, or would it have resulted in further disagreement and division? Was it focused on addressing the "can't live with" items, or did it introduce/re-introduce items that would have required further discussion beyond our well-documented and communicated timelines? Would the suggested changes have had a positive impact toward consensus on the positions of our groups as we seek community input?

In order to meet our timelines, we needed to finalize the document and that's what we did. Every delay has a domino effect and we're working toward finalizing a Final Report in August. Any delay would require a Project Change Request (PCR) to the GNSO Council, and there is zero guarantee that we'd receive the support of Council for such an extension. We're already likely to need to submit a PCR following our missing the May 31/June 1 date AND the extra five days of a public comment period (45 instead of 40) requested by EPDP Team members. These will both impact the timelines for public comment review/analysis and the next phase of our work. No one should assume that a PCR from the EPDP 2A team would be granted, so we're trying to keep the trains on time to give the community a chance to conclude this important work.

With that, it's time to shift our focus to the public comment period, while concurrently looking for areas of substantive work the EPDP Team might address during the comment period in preparation for the Final Report drafting. The Initial Report has been submitted to ICANN Org for publication later today. If anyone has clarifying input from your respective groups, feel free to submit it early during the public comment period.

Thanks and best regards,

Keith

From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org> On Behalf Of Mark Svancarek (CELA) via Gnso-epdp-team
Sent: Thursday, June 3, 2021 11:18 AM
To: Jan Janssen <jjanssen at petillion.law>; STROUNGI Melina <Melina.STROUNGI at ec.europa.eu>; Kapin, Laureen <LKAPIN at ftc.gov>; Caitlin Tubergen <caitlin.tubergen at icann.org>; Marika Konings <marika.konings at icann.org>; Berry Cobb <Berry.Cobb at icann.org>
Cc: gnso-epdp-team at icann.org
Subject: [EXTERNAL] Re: [Gnso-epdp-team] Fwd: Initial Report - final version + redline

Caution: This email originated from outside the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Re-sending, this time including the cc line.

From: Mark Svancarek (CELA)
Sent: Thursday, June 3, 2021 6:23 AM
To: Jan Janssen <jjanssen at petillion.law>; STROUNGI Melina <Melina.STROUNGI at ec.europa.eu>; Kapin, Laureen <LKAPIN at ftc.gov>; Caitlin Tubergen <caitlin.tubergen at icann.org>; Marika Konings <marika.konings at icann.org>; Berry Cobb <Berry.Cobb at icann.org>
Subject: RE: [Gnso-epdp-team] Fwd: Initial Report - final version + redline

The BC supports and encourages Melina's proposed edit and the previous proposed addition mentioned by Jan.

/marksv

From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org> On Behalf Of Jan Janssen via Gnso-epdp-team
Sent: Thursday, June 3, 2021 5:35 AM
To: STROUNGI Melina <Melina.STROUNGI at ec.europa.eu>; Kapin, Laureen <LKAPIN at ftc.gov>; Caitlin Tubergen <caitlin.tubergen at icann.org>; Marika Konings <marika.konings at icann.org>; Berry Cobb <Berry.Cobb at icann.org>
Cc: EPDP <gnso-epdp-team at icann.org>
Subject: [EXTERNAL] Re: [Gnso-epdp-team] Fwd: Initial Report - final version + redline

Also, the draft Initial Report does not reflect the proposed addition with respect to the EDPB letter of July 2018, which provides:

"The GDPR does not apply to the processing of personal data which concerns legal persons and in particular undertakings established as legal persons, including the name and the form of the legal person and the contact details of the legal person."

This should be added to the quote. As currently written, the quote from the EDPB letter is out of context.

This comment was made within the "deadline" on 1 June 2021, but might have missed your attention.

Best regards,

Jan Janssen*

jjanssen at petillion.law

+32 486 48 39 94

www.petillion.law

  Attorneys - Advocaten - Avocats

 *Standing representative of Anlirosu bv, a private company with limited liability performing the legal services

From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org> on behalf of Jan Janssen via Gnso-epdp-team <gnso-epdp-team at icann.org> Reply to: Jan Janssen <jjanssen at petillion.law>
Date: Thursday, 3 June 2021 at 14:16
To: STROUNGI Melina <Melina.STROUNGI at ec.europa.eu>, "Kapin, Laureen" <LKAPIN at ftc.gov>, Caitlin Tubergen <caitlin.tubergen at icann.org>, Marika Konings <marika.konings at icann.org>, Berry Cobb <Berry.Cobb at icann.org>
Cc: EPDP <gnso-epdp-team at icann.org>
Subject: Re: [Gnso-epdp-team] Fwd: Initial Report - final version + redline

All,

I can only second that. I very much appreciate the time and efforts you put into this and the wish to speed up the process as much as possible. However, that should not be a reason to rush into the public comment period with an initial report that contains parts that are unacceptable to working group members. If we proceed on this basis, it would only complicate the dynamic within the working group and make the public comments less orderly and more difficult to manage.

What are the consequences of a small delay compared to the impact of publishing a report that we know is unacceptable to WG members? Why has today's meeting been cancelled, while it could have been used to discuss these edits?

With respect to the way in which Preliminary Rec #1 is written, the draft Initial Report does not accurately reflect the 'level of consensus for the recommendations presented in the Initial Report', as required by Section 11 of the PDP Manual. This (and the other issues) must be sorted out before the Initial Report is published for public comments.

Best regards,

Jan Janssen*

jjanssen at petillion.law

+32 486 48 39 94

www.petillion.law

  Attorneys - Advocaten - Avocats

 *Standing representative of Anlirosu bv, a private company with limited liability performing the legal services

From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org> on behalf of STROUNGI Melina via Gnso-epdp-team <gnso-epdp-team at icann.org> Reply to: STROUNGI Melina <Melina.STROUNGI at ec.europa.eu>
Date: Thursday, 3 June 2021 at 10:45
To: "Kapin, Laureen" <LKAPIN at ftc.gov>, Caitlin Tubergen <caitlin.tubergen at icann.org>, Marika Konings <marika.konings at icann.org>, Berry Cobb <Berry.Cobb at icann.org>
Cc: EPDP <gnso-epdp-team at icann.org>
Subject: Re: [Gnso-epdp-team] Fwd: Initial Report - final version + redline

Many thanks also from my side. I appreciate it was a difficult and time consuming task and thank you for the patience and efforts to find a middle ground.

Without wanting to delay the process, I have to agree with Brian's remark that the way Preliminary Rec #1 is phrased is misleading. As it is at a prominent place at the beginning of the document and it states conclusively that no changes are recommended it may give the wrong impression to the reader.

I believe most of us would feel more comfortable if it was slightly rephrased to capture that "despite some groups believing that such changes are needed, no consensus was received on this point and thus no changes have been made, but we welcome public comments on this point".

I'm sorry; I know it must be frustrating as we want to publish this as soon as possible, but it is important to do it right. We have all devoted valuable time in the process and it is important that the text reflects this effort and the different voices heard.

Best regards,

Melina

From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org> On Behalf Of Kapin, Laureen via Gnso-epdp-team
Sent: Thursday, June 3, 2021 5:35 AM
To: Caitlin Tubergen <caitlin.tubergen at icann.org>; Marika Konings <marika.konings at icann.org>; Berry Cobb <Berry.Cobb at icann.org>
Cc: gnso-epdp-team <gnso-epdp-team at icann.org>
Subject: [Gnso-epdp-team] Fwd: Initial Report - final version + redline

Many thanks and appreciation to our excellent staff. I know that it was quite challenging to synthesize and organize our input for this closing lap of the initial report. I also realize that this work must have gobbled up weekend and holiday time.  I'm sure I speak for the entire team when I acknowledge how fortunate we are to have the support of such dedicated and skilled colleagues.

Hoping you all get some well deserved time off!

  Sent via phone.

  Please excuse typos and/or

  unintended auto-correct

  outcomes.

Laureen Kapin

Federal Trade Commission

Begin forwarded message:

From: Caitlin Tubergen via Gnso-epdp-team <gnso-epdp-team at icann.org>
Date: June 2, 2021 at 6:03:00 PM PDT
To: gnso-epdp-team at icann.org
Subject: [Gnso-epdp-team] Initial Report - final version + redline

Dear EPDP Team,

As Keith noted earlier, Leadership and the Staff Support Team have considered the input from our last meeting as well as suggested edits received via the feedback form and via the list and updated the Initial Report accordingly. The Support Staff Team has submitted the Initial Report to the ICANN org internal team for publication.

Attached, you will find the final Initial Report as well as the redline version where you can see all of the changes.

Best regards,

Berry, Marika, and Caitlin

<EPDP Phase 2A - Initial Report FINAL - 2 June 2021.pdf>

<EPDP Phase 2A - Initial Report FINAL - Redline - updated 2 June 2021.pdf>

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