Special Summary Report of 18 Jul 2024 Meeting to ALAC

For brevity, I will just highlight a few things here. For some of the issues, you can glean a wider perspective from GNSO Council Jul 2024 Matters of Interest and/or from GNSO Council Jul 2024 Meeting Records.

1. Consent Agenda

• GNSO PR Officer - Roles & Responsibilities has been adopted by Council and will be added to GNSO Procedures page. BC's Lawrence Olawale-Roberts volunteered and was appointed to this role.
• Confirmation of GNSO nominees to the Pilot Holistic Review (PRH). 
  • Council confirms its Standing Selection Committee’s selection of 7 GNSO nominees out of 19 candidates for the PHR Team in order of rank:
    1. Anil Jain (AP)
    2. Sophie Hey (EU)
    3. Tony Holmes (EU)
    4. Akinmoyeje Benjamin (AF)
    5. Julf (Johan) Helsingius (EU)
    6. Caleb Ogundele (NA), and
    7. Marie Pattullo (EU); and
    8. With Hector Ariel Manoff to be considered an alternate nominee if any of the 7 nominees cannot serve in that role.

2. EPDP on Temporary Specification Phase 1 Urgent Requests

• The present concern is limited to the issue of urgent requests, stemming from Recommendation 18 of the Expedited Policy Development Process on Temporary Specifications' Phase 1 Final Report which has been adopted by the ICANN Board on 15 May 2019, and which had gone onwards for implementation by ICANN org through an Implementation Review Team (IRT).
  • Rec 18 reads, "A separate timeline of [less than X business days] will considered [sic] for the response to ‘Urgent’ Reasonable Disclosure Requests, those Requests for which evidence is supplied to show an immediate need for disclosure [time frame to be finalized and criteria set for Urgent requests during implementation].
• Following the public comment period and subsequent discussion by the IRT, the Governmental Advisory Committee (GAC) wrote to the Board about the topic of urgent requests on 23 August 2023. The Registrar Stakeholder Group wrote to the Board on 8 September 2023 in response to the GAC’s letter.  Following the receipt of these letters and further communication amongst Board members, the Board sent a letter to the GNSO Council on 3 June 2024, expressing its concerns with the text of Rec 18 related to urgent requests, citing the following concerns and issues, and concluding that Rec 18 was not fit for purpose and must be revisited.
  1. To the extent that law enforcement needs registration data to respond to situations that pose an imminent threat to life, serious bodily harm, infrastructure, or child exploitation, the proposed timeline - whether one, two, or three business days - does not appear to be fit for purpose. To respond to truly imminent threats, a much shorter response timeline, i.e., minutes or hours rather than days, would seem to be more appropriate.
  2. At the same time, applicable law, regulation, and reasonable registrar policies will often require registrars to authenticate self-identified emergency responders and confirm the purpose(s) for which registrant data is sought prior to disclosing personal data. Even where not required by law or regulation, authentication will often be appropriate under globally accepted principles of fair information processing to protect the rights and freedoms of data subjects.
  3. Absent some authoritative, legally sufficient cross-border system for validating law enforcement/emergency responders, registrars will require time - almost certainly measured in business days rather than hours or minutes - to authenticate the source of urgent requests.
  4. To the best of the Board's knowledge, such an authoritative, legally sufficient cross-border system for authenticating emergency responders/law enforcement globally is not available to ICANN.
  5. In addition to the fact that the creation, operation, and maintenance of a legally sufficient authentication system would consume significant human and financial resources, such a mechanism cannot be created, operated, and/or maintained without the material, ongoing assistance of law enforcement, first responders, and governments.
• Absent Bylaws provision and existing procedures account for "un-adopting" Board-adopted policy recommendations to address a situation where the Board concludes that a policy recommendation that it has previously approved should be revisited prior to implementation, the Board now refers the issue back to Council. 
• Council considered several options in determining whether there is Council agreement to the Board's concerns and if so, what should Council do:
  1. Allow GAC and its Public Safety Working Group (PSGW) to provide a potential solution for an appropriate authentication measure;
  2. Just consider that Rec 18 has been implemented and move on since the IRT has considered a timeline but was unable to reach consensus on it;
  3. Support a new policy effort, such as a PDP or EPDP;
  4. Somehow reconsider this Rec 18, noting there is not an established mechanism to "un-adopted" a recommendation that has been adopted by the Board.  
• Council leadership received a lot of input from Councilors and will consider next steps noting that more effort is required and that it should likely by the Board requesting for this.

3. Registration Data Accuracy

• This is another long standing issue which has resulted in the Registration Data Accuracy (RDA) Scoping Team that initiated by Council in July 2021, being suspended for a number of rolling six-month periods now.
• Background:
  • Per its formation instructions, the RDA Scoping Team was tasked with considering a number of accuracy-related factors such as the current enforcement, reporting, measurement, and overall effectiveness of accuracy-related efforts before making a recommendation to Council on whether any changes are recommended to improve accuracy levels, and, if so, how and by whom these changes would need to be developed (for example, if changes to existing contractual requirements are recommended, a PDP or contractual negotiations may be necessary to effect a change). 
  • The Scoping Team had completed Assignment #1 (enforcement and reporting) and Assignment #2 (measurement of accuracy) and submitted its write up to Council on 5 September 2022. In its write up, the Scoping Team suggested moving forward with two proposals that would not require access to registration data, namely a registrar survey (recommendation #1) and a possible registrar audit (recommendation #2) that may help further inform the team’s work on assignment #3 (effectiveness) and #4 (impact & improvements), while it awaits the outcome of the outreach to the European Data Protection Board (EDPB) by ICANN org in relation to proposals that would require access to registration data (recommendation #3). 
  • On 19 October 2023, ICANN org provided an update on Registration Data Accuracy efforts, and Council discussed the update during its 16 November 2023 meeting. During that meeting, some Councilors noted that, barring (i) completion of the Data Processing Agreement, (ii) implementation of the NIS2 directive, or (iii) publication of the Inferential Analysis of Maliciously Registered Domains (INFERMAL) Study, it may not be the appropriate time to reconvene the Accuracy Scoping Team.  Council voted to extend the deferral of the Accuracy Scoping Team’s recommendations by another six months during its meeting on 15 February 2024. During this meeting, Council agreed to check in on the progress of these items during its June 2024 meeting.
• In basic terms, the delay stems from a lack of available data (legally permissible data due to GDPR legal basis principle and contractual limitations) by which to assess accuracy and determine the issues that may be suited for policy development.
• Council leadership sought input on a couple of alternatives:
  1. As proposed by ICANN org staff, to look at historical audit data concerning the verification and validation processes currently in the RAA;
  2. To engage with Contracted Parties on ccTLD practices to see if their verification practices may inform the work of the RDA Scoping Team;
  3. Given there is an outstanding question on the definition of "accuracy" within the Scoping Team, would there be value in restarting the RDA Scoping Team at this time?
• RrSG Councilor Prudence Malinki spoke to RrSG approach to registration data accuracy, highlighting there is no conclusive evidence that there is wide inaccuracies in registration data or that it would lead to a difference in combating DNS abuse, and the RrSG practice in regards to accuracy of data registration also involves issue of what ID document should be relied upon to verify registrant data, training of registrar staff on verification processes/documents, definition of "accuracy" of registration data, all of which contribute to the complexity of this topic as well as an inability to understand what concrete steps would be needed by the RDA Scoping Team if it were to be restarted now.
• IPC Councilor Damon Ashcraft and RrSG Council Kurt Pritz also commented that more work, hopefully from all groups in GNSO, needs to be done prior to considering restarting the RDA Scoping Team. 
• Council concluded that this topic should stay on Council's agenda and be revisited in its next meeting to check on progress.

4. SubPro Small Team Plus: Policy development on Singulars/Plurals of the Same Word in the Same Language as TLDs

• This an ongoing discussion at the GNSO Subsequent Procedures Small Team Plus, which I have been reporting on and discussing extensively at CPWG (see CPWG 15 May 2024, 22 May 2024, 10 Jul 2024 and 17 Jul 2024)
• Background:
  • In March 2023, the ICANN Board approved the majority of the recommendations contained in the Final Report on the new gTLD Subsequent Procedures PDP, but also placed some recommendations into a pending status. Council convened a small team that worked collaboratively with the ICANN Board to resolve all pending recommendations. While the majority of the pending recommendations were able to be adopted by the ICANN Board, recommendations across six Topics were non adopted by the ICANN Board. 

  • Council tasked the Small Team Plus with developing Supplemental Recommendations on five of the six Topics, i.e., Registry Voluntary Commitments / Public Interest Commitments, Applicant Support, Terms and Conditions, String Similarity Evaluations, and Limited Challenge/Appeal Mechanisms. Based on the expected implementation as it relates to the Continued Operations Instrument (COI), the Small Team Plus determined it was unnecessary to develop a Supplemental Recommendation for Topic 22: Registrant Protections. The Small Team Plus developed Supplemental Recommendations for all five topics and shared them with the Council.

  • Because of information received just prior to Council consideration in April 2024, Council elected to defer consideration of the Supplemental Recommendation related to String Similarity Evaluations, or more specifically, singular/plurals. The new information received was a strawperson developed by ICANN org, which provided a potential path forward for singular/plurals. The Council asked to consider whether it felt that the strawperson was promising enough to task the Small Team Plus considering whether strawperson, or and amended version, could be agreed upon.

• NCA Councilor Paul McGrady, Small Team Plus lead, reported that there is some agreement on the ICANN org strawperson around the public crowdsourcing in reporting incidences singular/plurals of the same word in the same language being applied for (regardless of if there is an existing TLD which is impacted) but that the small team plus has not yet been able to agree on an exceptions process.
  • By "exceptions process", we mean could an applicant whose applied-for string that has been caught in such a singular/plural report be able to explain how its string would not lead to consumer/end user confusion - as against an existing TLD or another applied-for singular/plural string - if it were allowed to delegated, and if so, how (ie what criteria could be used, new process, vs existing process).
  • Noting that such an exceptions process must not rely on 'intent of use' (an approach which the Board has rejected) but could rely on other grounds, such as registrant restrictions, so long as if any Registry Voluntary Commitments (RVCs) were involved then these RVCs must be enforceable under the ICANN Bylaws and as a practicable matter.
  • And it being unclear as to how much time the small team plus would be given to resolve its differences. in order not to impact the launch of the Next Round of New gTLDs.
• Council concluded that the small team plus should continue its work and report back at Council's August 2024 meeting.

Action by ALAC Liaison 
Justine to continue to update ALAC/CPWG on the progress of the Singular/Plurals issue.

5. SubPro Small Team Supplemental Recommendations - Non-Adopted Recommendations

• Background:
  • As mentioned above, the ICANN Board had not adopted recommendations across six topics from the new gTLD Subsequent Procedures PDP (i.e., Registry Voluntary Commitments / Public Interest Commitments, Applicant Support, Terms and Conditions, String Similarity Evaluations, and Limited Challenge/Appeal Mechanisms. Based on the expected implementation as it relates to the Continued Operations Instrument (COI)).
  • At Council's direction, the Small Team Plus developed Supplemental Recommendations for five topics and shared them with Council and on 18 April 2024, Council voted to approve these Supplemental Recommendations for the non-adopted SubPro recommendations. The Small Team Plus determined it was unnecessary to develop a Supplemental Recommendation for Topic 22: Registrant Protections.  
  • On 8 June 2024, the ICANN Board adopted the following scorecard, wherein it approved the Supplemental Recommendations related to Topic 17: Applicant Support and Topic 32: Limited Challenge/Appeal Mechanism. The Board did not adopt the Supplemental Recommendations related to Topic 9: Registry Voluntary Commitments / Public Interest Commitments and Topic 18: Terms & Conditions. 
• Council has concluded that no further action is needed on the Board's decision on Supplemental Recommendations 9.2, 18.1 and 18.3 since the Board is clearly unmoved by Council's attempt to clarify those recommendations.

6. Intellectual Property Constituency Request for Reconsideration

• This item was deferred to Council's next meeting as some follow-up work is pending with Council leadership.

7. Recommendations Report & Public Comment Review

• There are 2 items arising from the last GNSO Council Strategic Planning Session (SPS) of Jan 2024.
• Regarding the Recommendations Report:
  • Per the ICANN Bylaws, Annex A, the Recommendations Report is a required step of the PDP. GNSO staff also shared that per Section 13 of the GNSO Operating Procedures, the format is essentially a shared responsibility between the GNSO Council and the ICANN Board and that if changes are needed, the two parties should work together collaboratively.
  • One of the concerns raised in recent discussions is speculation that the Board may consider the Recommendations Report as a substitute for the Final Report. After looking into this issue with ICANN staff, Council leadership has not identified an instance in which this has occurred.
  • Another concern raised is that the Recommendations Report, which is sent at least one month after recommendations from an PDP/EPDP are approved by the Council, creates unnecessary delays. Council leadership understands that the Recommendations Report is managed concurrently with the Bylaws-mandated public comment period; since the duration of the public comment period is longer than the Recommendations Report process, it’s not clear that the Recommendations Report alone is creating delays.
  • Given Council leadership input to the concerns above, Councilors have been asked if any serious concerns remain by 15 August, failing which, the intention is to consider these SPS action items as completed.
• Regarding the Public Comment Review:
  • GNSO staff did not identify significant process gaps or the need for additional mechanisms.  From the Council leadership perspective, the existing PDP public comment review process appears robust and fit for purpose.

8. Board Readiness to GNSO Policy Recommendations 

• This is another item arising from the last GNSO Council SPS.
• Background:
  • What does it mean for policy recommendations to be Board ready? 
    • The recommendation is likely to achieve board adoption, i.e. the recommendation has been approved by a GNSO Supermajority Vote and will most likely be considered by the Board to be in the best interests of ICANN Community and ICANN org.
  • GNSO staff collated points discussed by Council in June 2024. (document link pending)
  • RrSG Councilor Kurt Pritz presented some ideas on how to proceed, and factors to be considered.

Action by ALAC Liaison

Justine has joined the Council Small Team on Board Readiness; and will consider what and when to update ALAC/CPWG on the progress of this small team.