In other words this is the ascwrtainment of more information from our Board Liaison time bit for general debate (that can follow ;-)

ergh typos sorry

From the new ByLaws Section 1.1.: (iv) ICANN shall have the ability to negotiate, enter into and enforceagreements, including public interest commitments, with any party inservice of its Mission.

Reminder-Please review ICANN Expected Standards of Behavior here: https://www.icann.org/resources/pages/expected-standards-2016-06-28-en.

hello al

all

It's actually 1.1 (d) B. (iv) - authority to enter into and enforce public interest commitments "in service of its mission".

it looks more like contract performance monitoring rather than content regulation

I would have also thought (personal opinion!!) that where a RVC or PIC was based on some specific 'measure' such as a third party accreditation, business function, activity limitation to Membership of some group or community etc., *non exhaustive list here* then the compliance aspects should be clearer as the future post delegation activity either will or will not meet such measure or criteria...

and then specifically NIT a content issue

NOT

Tx Becky, appreciate the reading. Avri, tx. But isn't the Board the official "reader" of the Bylaws, not the Community.

Can we really tell you to do something you (Board collectively) believes is not within its mission?

Indeed you were @Greg :-)

so we need the policy to state that VPICs that are within ICANN's mission can only be enforced by compliance, but to Cheryl's point, for a community TLD that is answerable to a separate board, shouldn't that be captured in Spec 12 and not in a VPIC.

But ICANN is then forced to involuntarily enforce them - outside the scope of their mission.

That makes no sense.

Perhaps Kathy, but we will address that a little later

@Jeff, it seems like a good time now :-)

seems like that is what needs sorting out to get some sort of consensus on @Donna (again personal opinion)

I meant that a little later in the call...

The Mandatory PICs are the community agreement of the intersection of what we (GNSO), ACs and Board agreed to.

enforcing contract compliance, not content

No Jeff

(indeed @Maxim (again personal view)

Yes - and the GAC was pretty good about staying in clear limits in the last round.

:-)

From Mission 1.1 in the current ByLaws (recently sent to the list in a pdf) In this role, ICANN’s scope is to coordinate thedevelopment and implementation of policies:• For which uniform or coordinated resolution is reasonablynecessary to facilitate the openness, interoperability, resilience,security and/or stability of the DNS including, with respect togTLD registrars and registries, policies in the areas described inAnnex G-1 and Annex G-2; and• That are developed through a bottom-up consensus-basedmultistakeholder process and designed to ensure the stable andsecure operation of the Internet’s unique names systems.

I am trying to separate out enforcement for the ability to make commitments.

ICANN is not “involuntarily” enforcing any provision of the agreement; it can exercise a certain amount of judgment, but not complete discretion.

You can't, Jeff

That agreement can be made privately too.

.Whitesupremecy bans Black Lives Matter content - arbitrator agrees

But what would be the likely enforcement action required?

- can ICANN enforce it?

Sorry, had another meeting called on short notice. Back now.

Q - In your scenario Jeff, if the agreement the TM owner and the Ry reaches is that the Ry will reserve certain names/categories of names (related to the field of activity protected by the TM) so that these cannot be registered and used by third parties that is NOT content regulation, right? That is a naming issue

I'm not trying to cut short the conversation because its important but we are nearly half way done with the allotted time and we are still on topic 1. We have 3 more to go. If we can get through them all today, I suggest we consider a second call to ensure each of the topics is discussed in as thorough a manner.

hand up

Noted @Jim

@Jim - We are getting to a bunch of the topics in this part of the discussion, so I think we are doing ok

Might I suggest we might consider this particular request for advice back on the questions raised to a short term effort by a Small Team, seems like most of the diversity of views could be found in the talent from the WG here today ;-) and then once proposed the WG can come back to discuss and agree (or not) on any responses...

Compromises are so rarely thrilling....

@Beck

THanks Becky

@Becky, but the existing PICs were gra

grandfathered for future RAs too, right?

@Susan I think you are right because those contracts that were grandfathered can be renewed with those same PICs in them. I think that is what the 2016 ByLaws say.

+1 Anne & Susan, my understanding as well.

@Susan, I think it is quite hard to predict GAC (on whose demands obligatory voluntary PICs were formed)

The language talks about "including public interest commitments" which would not necessarily exclude things we called by a different name.

if the organization changes it's bylaws too often, it would be a sign that something is wromg

ByLaws Scope: ICANN’s scope is to coordinate thedevelopment and implementation of policies:• For which uniform or coordinated resolution is reasonablynecessary to facilitate the openness, interoperability, resilience,security and/or stability of the DNS

Jeff, I think we do need a change from "anything goes"

GEOs and community TLDs have enforcement that sit outside ICANN by virtue of the arrangements they have with their supporting community or government. Other TLDs have acceptable use policies that may cover content related issues and provide discretionary enforcement that is also outside of ICANN compliance.

@Kathy - I don't think this is an anything goes

ByLaws amendment - that's an extremely lengthy Empowered Community exercise.

I do think one takeaway is the Board is expecting answers to the questions they have asked so we need to plan for that.

@Jeff, it is right now.

+1 Donna

To be clear, while I think it is practical to make any contract provision more clearly understood and readily complied with (and thus more readily enforced when not complied with), all provisions of the contract are enforceable (unless proven otherwise).

@Jeff, It is anything goes and that we can fix :-)!

@Greg, nothing should go into the Registry Agreements between ICANN and registries which violate ICANN's 2016 bylaws, including the sections Becky read.

And if the community cannot agree on a new policy, does there temporary policy stand until we can agree?

QUESTION: Does this mean the Board would send the matter back to GNSO for EPDP if Sub Pro fails to develop policy? QUESTION

@Jim see my suggestion earlier in chat I was trying to address that exact point

@Kathy, violating Bylaws according to who?

@Justine - according to the Board, the General Counsel and the Attorney General of California, I would think.

good questin!

I don't think it can stand, because it's not a community developed policy--it was just a circuit breaker used by the Board eight years ago.

@Jeff - very quick question

GAC has said the GAC Advice on Closed Generics does stand - so since the Board does not make policy, it appears the Board would have to refer the issue back to the GNSO Council.

@Alan - not on this item. This item we specifically did not take that position

@Anne, which the Board has done and that's why we're discussing it.

@Alan - this group's view - or the view of a portion of this group - cannot change history

Not accurate Alan. Closed Generic applications were allowed to be suspended until the next round. They were not prohibited.

I expect that ICANN does not enter into agreements that it believes contain violations of the Bylaws. I assume the other party agrees, understanding that if that is not the case, they essentially have a void rather than a contractual provision.

Correct Paul

@Donna - yes, but we have not actually reached a consensus. This is all a bit circular since the GAC Consensus Advice is standing advice.

Correct, they were not prohibited, but they also could not

@Jeff - not a ban. Doesn't matter how many times it is said, it doesn't change the actual text of the Board resolution.

+1 to Paul

… could not proceed

We adopted a mandatory PIC on this - consistent with both the Board resolution and the GAC Advice

@Anne, i think the question is what's the status of the GAC Advice to the Board if we cannot agree one way or the other?

@Jeff - understood the Board is a wildcard. But, us not reaching agreement doesn't change the 2012 default position that has reigned in this entire PDP

@Paul - All I am saying is that what Avri and Becky are saying may or may not match your view as to what the "default" is.

And for which there were dozens of GAC objections and GAC Advice. We're going to repeat those objections all over again...

@Avri - thank you for this clarification

The WG disagrees as to what is the "fallback" with respect to Closed Generics. Some believe that means those applications "will not proceed". Others believe it means it's open season on Closed Generic applications as it was in 2012. The issue for the Board may be the standing GAC Advice on Closed Generics.

So the status quo is that there is no prohibition of closed generics

The SQ is that there is a prohibition on closed generics.

But the policy prior to GAC advice was that there was no issue on closed generics as there was no such thing.

@Jeff - the default is very clear. It is in text (or not) in the 2012 AGB. I understand that doesn't preclude that the Board could take some other action, but that is not a "default" - that is a Board action.

@Marc - Perhaps, but that doesn't mean the Board will accept that. That is my point.

but there is, or may be, advice and the Board would be catapulted into the same situation.

@Jeff - That appears to be the Board's view

@Avri - understood. Thanks for answering this head on. It will be helpful to the WG.

@Marc - We only have 2 of the Board members here and they have said that on this item they are not speaking on behalf of the Board on this issue.

but the GAC will just come back with the same advice. What would we do then? I feel like we'd be in the twilight.zone.

I don't think the Board is going to override GAC Advice by 2/3 in order to permit Closed Generics to proceed. (Speculation by me.) So I see no alternative if Sub Pro does not come up with policy but having the Board refer the policy matter back to GNSO Council.

we are not speaking for the Board.

@Avri, I think that's an important issue to resolve. Has the GAC advice been dealt with through this process, and if it is the case that closed generics are to be allowed in this next round that the Board will need to reject the GAC advice and have discussions?

@Jeff - we had the plain text of the Board previously in their resolution and now we have more support of the view that the block on proceeding in the first round was not even policy but was a stopgap measure

Donna said it way better than I did

Agree with Anne above

I am also not speaking on behalf of the Board. :-)

I recognize that Becky and Avri are not speaking on behalf of the Board. But they are on the Board and their views are relevant. Its more than we had before

Other than to say the Board has not take a position except to ask the question.

Very interesting - tx Avri.

And what if the group still cannot come up with a recommendation when it comes back a second time?

I think GAC advice should have some kind of expiry date. 8 years is a long time.

If there is no approved policy, many large applicants will apply for Closed Generics and then not withdraw those applications until they get a policy. This also means that new applications for the same string for open TLDs will be Blocked by our new policy preventing applications where a prior pending one has not been withdrawn.

Isn't the definition of insanity doing the same thing over again and expecting a different answer?

Alan, Isn’t the proposed slogan for ICANN 70?

@Donna - the GAC's view is their advice is not time limited. I think this is a ByLaw interpretation and the fact that they often say "The GAC refers to and repeats its advice in Communique #X from X meeting."

Isn’t *that* the proposed slogan for ICANN 70.

on the 'rationale' that the Board has requested.

@Donna - the GAC reiterated their advice in their comments to us.

For example, I can come up with a rationale that Jim won't agree with.

If we make a recommendation there must be a reason for it… what’s the reason we recommend or don’t recommend.

In the absence of a CLEAR consensus, the default is NO delegation.

Christopher, unfortunately that is not the status quo ante.

If there is no recommendation from us then wouldn't we just have the status quo from the first round? At least it's clearer here than the closed generic issue

Clearer what the status quo is I mean

NCSG, BC and ALAC all commented (in this last round of comments) that private auctions should be banned and the monies should go to ICANN.

The persistent reference to the status quo is one of the most damaging restrictions on this PDP. There is no consensus on that.

There won't be a consensus explanation on the issue of private auctions

I believe

@Christopher - without the status quo there is nothing if there is no agreement. We could take your approach that without clear consensus nothing gets delegated but I don't see any support for that position much less consensus on that

+1 Donna. There was no harm. No one is forced into a private auction

This WG did not discuss the outcome of Auction Proceeds.

@Paul, @Donna, I don't believe there was consensus on "no harm" either.

what half-way measure?

@Anne - we can look at the relevant recommendations, but the Auction Proceeds work did not go through a PDP Process. So I think we just provide our own rationale

you mean contention resolution?

@Justine - if someone was harmed, they can seek relief from the courts. Are you aware of anyone who has sought relief?

@ Donna - I think she means ICANN administered auctions of last resport - but private auctions are held outside the purview of ICANN.

@Donna - half-way means ICANN restrictions on private auctions instead of letting them operate freely

Transparency requirements?

@Avri -that one is easy to solve. I don't think private auctions would require any ICANN oversight in order to work just fine.

In other words, if it is a "private" resolution why should ICANN be involved?

@Paul, right. It worked fine last time around

@Susan - not everyone felt that way though as evidenced by our comments

Agree Paul and Susan

@ Avri and Jeff. those measures were discussed in response to the Board's expression of concern re gaming.

sorry, not our comments...the comments we received.

@Anne - And that can be part of our response to the Board.

We have 4 minutes left....

The Board comments said is was concerned about a possible lack of good faith in the application process. In other words, an entity or person that applies for the purpose of being paid to relinquish the TLD.

so we need to answer the questions posed to us

or try to

@Becky. @Avri. Thanks! Very helpful. Sounds like we should not be reading in disfavor just because the Board asked about it.

What if we say that Closed Generics must be subject to PICs and will only be delegated after a public auction?

@MT I think that you understands that I disagree fundamentally with your expressed position

Greg, you are too funny.

Just thought i could solve it all...

@Alan, there will be a wide variety of opinions about whether the consolidation is good or bad, whether new gTLDs have resulted in competition, what success factors are. I agree its a good conversation to have, but I don't think it should have any implication on this PDP WG.

@ Alan: ICANN was constituted, inter alia, to counter the monopoly of NSI/Verisign. Now, is ICANN facilitating the creation of new dominant positions? Specially, does the GD/AF deal require ICANN approval?

Or the other way Jeff. :-)

NEXT CALL: Tuesday, 01 December 2020 at 03:00 UTC, 90 minutes.

Lots of useful interactions today THANK you to all involved

And let's keep it simple and not overly complicated or subjective!

bye all

Bye all

Thank you @Avri & @Becky super helpful!

Understood Avri!

Noted @Avri

Agree Marc, simple is best.

Thank you Becky and Avri. Much appreciated.

NEXT CALL: Tuesday, 01 December 2020 at 03:00 UTC

@Christopherr, my understanding is that for the TLDs owned by Af. Yes. For those whewre they are the backend : no

thanks Avri & Becky

Thank you Avri and Becky!!

Tx very much, Avri and Becky!

Homework for 1 Dec!