[Ssr2-review] NDA discussion summary
jennifer.bryce at icann.org
Thu Aug 16 08:04:51 UTC 2018
Dear SSR2 Review Team,
Below please find a summary of the position arrived at regarding the Non-Disclosure Agreement (NDA) prior to the pause.
ICANN shared the NDA with the team because of Bylaw requirements
Article 4 Section 4.6 (vi) [icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_governance_bylaws-2Den_-23article4.6&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=VuRMFw6YascG5ysc1jEHBZgGTtD6QSLrFmqdvMx5FM8&m=njXB_JmEbr3stsKibzO8R0Mi0JCIfqKfQho5FOlkoSQ&s=NFlbwtbJHGUAmaakVm8FeciT-xwQQblkYSJDMdZNjY0&e=> of the ICANN Bylaws includes the statement that “ICANN may require review team members to sign a non-disclosure agreement before accessing documents.” For this reason, the NDA and Confidential Disclosure Framework (CDF) documents were first shared<https://mm.icann.org/pipermail/ssr2-review/2017-May/000231.html> with the Review Team on 2 May 2017. At this time, Review Team members were informed that they are not obligated to sign the NDA to continue to serve on the Review Team, but if they elect not to sign the NDA, there may be instances where they will be restricted from accessing, using or discussing any confidential information provided by ICANN org under the NDA. Prior to the pause, only some members had signed the NDA (see the list here<https://community.icann.org/display/SSR/Legal+Documents>).
Subgroup discussions in LA did not expose sensitive or business proprietary information which needed an NDA
During the face-to-face meeting that took place in October 2017<https://community.icann.org/x/KRghB> in Los Angeles, we had some struggles between the questions that the review team asked and ICANN org staff’s willingness to discuss items without the review team members signing an NDA.
There were some topics raised by the review team that ICANN org deemed to be business proprietary and to expose the data surrounding those topics without signed NDAs could potentially put the organization at risk. At that time, there were a number of review team members who did sign the NDA, but parallel to that, the ICANN org staff that supports the SSR2 review worked with the review team and ICANN org subject-matter experts to better understand the questions being asked, and to determine if there was a way to answer the questions without exposing data that could put the organization at risk.
The end result of those discussions was that the ICANN org staff that had functional ownership of these topics had a better understanding of what the review team was asking and was able to come back to the room and have meaningful conversations about the operations and strategy of the topic without needing to expose data that would have fallen within the parameters of the NDA. This experience helped the review team to better focus questions, and the organization to better understand the spirit of the questions being asked, so that resulting discussions did not need to expose sensitive or business proprietary information which would invoke the need for an NDA.
Prior to the pause, review team members worked with ICANN org to revise the NDA based on their concerns
Some review team members expressed concerns with language in the NDA that was shared in May 2017. On 18 August 2017, two members of the review team (James Gannon, Kerry-Ann Barrett) met with ICANN Legal on behalf of the team to share the team’s concerns and understand ICANN’s Bylaw requirements. ICANN org revised the NDA based on input from James and Kerry-Ann, and a revised version was circulated to the team via email<https://mm.icann.org/pipermail/ssr2-review/2017-August/000573.html> on 29 August 2017 for the team’s input (this is the current NDA posted to the wiki here<https://community.icann.org/x/LxLfAw>). Kerry-Ann gave a brief overview of the revisions during the 12 September 2017 plenary meeting<https://community.icann.org/x/pXXwAw>.
During several more team discussions in September 2017 some review team members expressed their continued concern with signing the NDA and some noted that, as a next step, they would need to have their respective Legal teams review the document. The IANA Transition subgroup had requested access to several documents and ICANN org was working to establish which documents would require a signed NDA before they could be shared. In October 2017, the ICANN SSR subgroup met face-to-face in LA and was able to have productive discussions without the NDA in place (see summary above).
We hope this is a helpful summary, please let us know if you have questions.
Senior Reviews Coordinator
Internet Corporation for Assigned Names and Numbers (ICANN)
Email: jennifer.bryce at icann.org
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