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Terri Agnew's Personal Meeting Room
Heather Forrest
53:19
Am I an honorary registry today?
Heather Forrest
53:42
Hooray contracted parties!
Michael Flemming
54:43
Nice
Emily Barabas
55:34
https://docs.google.com/document/d/11mtncTwPLPx6vpbunACToRZy1vWyls-MxVAb3wqEYsk/edit#
Emily Barabas
55:50
This is the document we are currently referencing
Emily Barabas
57:34
We are on page 25
Michael Flemming
58:36
agree on that point
Rubens Kuhl
59:35
"provisions" works for me
Maxim Alzoba
01:00:29
due to anti-laundering laws we needed a real short contract to pay the application fee
Maxim Alzoba
01:00:35
are we going to discuss it?
Emily Barabas
01:01:20
no problem
Emily Barabas
01:01:23
sure
Maxim Alzoba
01:01:35
terms and conditions should be part of it (or referenced there)
Maxim Alzoba
01:02:32
it is also recommendation of FATF (large payment)
Rubens Kuhl
01:02:37
"acted inconsistently" doesn't mention about substance or procedure appeals. If this is covered in 2.8.2 that's fine.
Maxim Alzoba
01:03:30
Financial Action Task ForceIntergovernmental organization
Michael Flemming
01:03:51
So if the covenant not to sue is removed, then we would not recommend an appeals mechanism?
Michael Flemming
01:04:33
seems to me that we should an appeals mechanism should be prepared regardless of whether the covenant is there or not
Michael Flemming
01:04:55
sorry rewrote that midsentence
Michael Flemming
01:05:36
ok
Rubens Kuhl
01:06:45
It looks to me that if the covenant not to sue is removed, it might have a cascading effect in the policies that might require revisiting a number of topics.
Maxim Alzoba
01:07:18
then appeal process should be in place
Michael Flemming
01:08:35
I think the aspect of the recourse for applicants ties in with what currently exists. If you withdraw at certain point you get certain amount back.. I am curious to know if what is being sought here is additional recourse (full refund regardless of the point of evaluation due to applicant guidebook changes, etc.)
Jim Prendergast
01:08:50
even if this group recommends removal of the covenant to not sue, does anyone really think ICANN Legal is going to go along wiht that? Im having a tough time seeing that happening.
Heather Forrest
01:09:30
I find it hard to support a universe in which the AGB specifically says: "Do not apply for X", and we refund fees when someone applies for X.
Michael Flemming
01:10:07
@Jim, I honestly don't see that happening, either, but its still a question that needs to be asked. We are building this policy on thoroughly deliberated principles rather than asssumptions.
Rubens Kuhl
01:10:23
Jim, the 2012 program parted ways with the GNSO policy in many aspects, but that shouldn't prevent us from saying what we believe it should be done.
Michael Flemming
01:10:36
I don't think they will, but just in case
Maxim Alzoba
01:11:03
as I remember it was a hearing in the court that the part of not sueing Icann was bad, what happened after that ?
Jim Prendergast
01:11:19
@Rubens - I agree.
Rubens Kuhl
01:12:20
On name collision risk, do we believe the respondents considered the timing and the possibility of a previous knowledge ? They might not have considered that, so we could say it's unclear if they made such reasoning.
Maxim Alzoba
01:13:43
the best thing is to have TLD deployment and then SSAC letter of the same being the high risk Name Collision string :)
Jim Prendergast
01:14:34
im good
Heather Forrest
01:15:25
If we're going to do this, and allow ICANN to deny applications ex post, it needs to be explicitly limited to name collision risk situations (and even then, I'm not 100% comfortable, but at least it's workable).
Justine Chew
01:15:50
My apologies for being late.
Maxim Alzoba
01:16:33
if the Registry Agreement changed severely - it would be another reason
Michael Flemming
01:16:35
ICANN still reserves the right to deny an application
Michael Flemming
01:16:42
Lets not forget that part of the Terms and Conditions
Maxim Alzoba
01:17:26
to prevent the whole thing being bait and switch tactics prohibited in California
Maxim Alzoba
01:18:35
but what prevents ICANN from changing AGB first, and then deny on a new basis ?
Michael Flemming
01:18:55
Maxim, there are points about changing the applicant guidebook as well
Rubens Kuhl
01:19:06
Or denying citing public interest clauses of the bylaws.
Maxim Alzoba
01:19:21
@Jeff please read my comments about AGB and changing of the RA
Maxim Alzoba
01:20:02
it was about severe change of RA
Maxim Alzoba
01:20:14
but what prevents ICANN from changing AGB first, and then deny on a new basis ?
Rubens Kuhl
01:21:46
Am I correct in saying that the RySG new idea would exclude arbitrary refusal of applications by ICANN ? Because it seems to be the point...
Heather Forrest
01:21:55
Poor Jeff.... there goes .neuman
Maxim Alzoba
01:22:00
or , the new rule- in RA instead of 25k USD fee you pay 300k USD per year
Michael Flemming
01:22:03
I think we need to look at those sections specifically but want to know effectively what this changes
Emily Barabas
01:23:58
1.2 Information for All Applicants2.1 Background Screening3.2.1 Grounds for Objection
Justine Chew
01:25:32
@Jeff, so would we need to revisit this section after we consider the section on Applicant Change Requests?
Rubens Kuhl
01:27:45
I believe this is relevant and should be added. I prefer the 2nd version making it confidential only if it would trigger disclosure of confidential information, but I don't have a problem with the 1st version.
Maxim Alzoba
01:30:02
but it is not a reason to disclose items not relevant to that third party
Rubens Kuhl
01:30:52
This refers to applicant confidential information, if the opposition comes from a 3rd party, it's not applicant confidential.
Justine Chew
01:30:55
Do we have a working definition of "confidential information"?
Michael Flemming
01:30:55
I don't feel that is completely relavent to this aspect. This is talking about one on one applications
Rubens Kuhl
01:31:43
Justine, this usually translates to application questions whose responses are not published (financials, for instance).
Maxim Alzoba
01:31:54
there is a definition in RA, but RA does not work before the execution of it
Michael Flemming
01:32:11
Categories and thereof is normally addressed in an open transparent process because somee part of the community voiced an issue towards a group.
Justine Chew
01:32:19
@Maxim, exactly.
Justine Chew
01:32:50
@Rubens, then we should add a reference to what we mean by "confidential information".
Justine Chew
01:35:12
@jeff, yes I know, I'm just suggesting adding a footnote.
Rubens Kuhl
01:35:42
@Justine, this is likely something to be found in a thesaurus and be used consistently across the policy recommendations.
Justine Chew
01:36:37
@Rubens, in the course of my legal practice "confidential information" can mean many things. :)
Cheryl Langdon-Orr
01:38:02
sorry to be delayed by Family commitments
Rubens Kuhl
01:38:41
How was the discussion of this theme in the sub-group that worked on it ?
Cheryl Langdon-Orr
01:38:43
I will stay in listen only and chat
Rubens Kuhl
01:42:06
The covenant not to sue has been upheld in some legal proceedings, so it looks valid.
Jim Prendergast
01:42:15
hasnt that been challenedg in court already?
Maxim Alzoba
01:42:56
exclusion of the covenant not to sue should be backed up by ' IRP first'
Rubens Kuhl
01:43:42
How was the discussion of the covenant not to sue in the sub-group that worked on it ?
Maxim Alzoba
01:45:59
it is cheaper
Michael Flemming
01:46:06
I am half listening right now. Sorry.Yes, I was actually looking at the past discussion we had and you are on the dot. We assummed that ICANN would keep this covenant not to sue. Jeff, I think that you made the comment that ICANN needed to maintain to the covenaant not to sue to protect themselves from frivalent lawsuits.
Rubens Kuhl
01:47:42
Looking at the comments, it seems that there is some support for retaining the covenant not to sue, although also happens that there is support to remove it.
Rubens Kuhl
01:48:02
So it's not only ICANN Org that seems to favor the existence of the covenant not to sue.
Michael Flemming
01:50:51
Sounds like having resolution flowcharts
Michael Flemming
01:51:09
If such that would be an implementation clarification
Justine Chew
01:51:12
@jeff, noted. I think the answer is "AGB in general" but I will check.
Michael Flemming
01:52:04
I think they are referring to post RA, no?
Michael Flemming
01:52:21
That is Michael
Michael Flemming
01:52:29
Not Maxim
Rubens Kuhl
01:52:31
AGB Ts/Cs only cover pre-RA activities.
Maxim Alzoba
01:52:34
yes
Michael Flemming
01:53:05
Perhaps they want to look at requirements for an RO?
Michael Flemming
01:53:32
Running the TLD for certain number of years or such? But that looks into financial check/operability evaluation
Rubens Kuhl
01:54:35
Some commenters were willing to have the covenant only if the appeals mechanism was there, while some did not put that requirement.
Rubens Kuhl
01:55:21
So a possible composite recommendation would have to include such appeals mechanism to achieve consensus, in my personal non-leadership view of such consensus.
Jamie Baxter | dotgay
01:55:37
@Jeff .. that helps. thanks for clarifying
Justine Chew
01:59:09
@Jeff, before you start Application Queuing, could you reply to my earlier question about whether we need to revisit Terms & Conditions after we get through Applicant Change Requests? Thanks!
Maxim Alzoba
01:59:10
the question is, how many appeals the current mechanism can handle ?
Maxim Alzoba
01:59:44
a hundred of disgruntled applicants the same time ?
Rubens Kuhl
02:00:41
If people believe that new IRP already achieves the "new appeal process" definition, then both conditions can be true. They are not competitive.
Rubens Kuhl
02:01:18
The 2012 IRP certainly doesn't qualify, that's all people said.
Justine Chew
02:01:20
@Jeff, sure, so long as Applicant Change Request does not then result from any changes ICANN makes to the Terms & Conditions.
Rubens Kuhl
02:02:26
Make Digital Archery Great Again
Rubens Kuhl
02:05:05
Have we defined "should" as not as binding as "must" ?
Heather Forrest
02:05:42
@Rubens - standard contract construction would not interpret 'should' as a mandatory condition.
Justine Chew
02:06:40
Did we lose Jeff?
Maxim Alzoba
02:06:46
I don't hear Jeff
Rubens Kuhl
02:06:51
Me neither
Heather Forrest
02:07:00
It seems to me that our options in discussion here are limited by California lottery law.
Justine Chew
02:07:27
I think so too @Heather.
Rubens Kuhl
02:08:29
You asked people if someone agreed with Mark Monitor.
Rubens Kuhl
02:08:39
It seems no one agreed.
Jim Prendergast
02:08:53
i assume ICANN has all the legal work they did from the last round - that would help speed things up.
Heather Forrest
02:09:28
+1 Jim - I just don't know how to respond as to whether I agree with Mark Monitor because I don't think we know the full extent of what is legally permissible.
Justine Chew
02:11:10
+1 Jim. I think we should get an understanding from ICANN Legal as to what might be allowable now as opposed to in 2012 (ie if any change has occurred since 2012).
Heather Forrest
02:11:13
@Emly - should I read out my comment?
Rubens Kuhl
02:11:33
Just to make Jeff's life easier, another new idea not listed is for applicants to choose from:
Rubens Kuhl
02:11:45
( ) I want to participate and want to go as early as possible
Rubens Kuhl
02:11:58
( ) I want to participate and want to go as late as possible
Rubens Kuhl
02:12:05
( ) I do not want to participate
Justine Chew
02:13:39
@Jeff, good to know. Could we get that confirmation from ICANN Legal please?
Rubens Kuhl
02:16:16
The priority transfer is sure to be controversial.
Justine Chew
02:16:27
So, any recommendations that this groups make on new ideas will be subject to it being permissible under California lottery law.
Maxim Alzoba
02:18:11
bye all
Emily Barabas
02:18:22
Next meeting is on 8 August at 20:00 UTC