Hello Pam and everyone, Staff and Pam have been discussing some of these issues separately, so we thank Pam for raising the more specific questions (below) to the Council. To assist with your further discussion of these matters, here are some staff comments and responses for your consideration: 1. What (considerations/reasons) prompted the staff-prepared PIA last August (the 2017 PIA), given that it was deemed non-mandatory by the WG and staff? Are those considerations/reasons still relevant? STAFF RESPONSE: * The Curative Rights PDP Working Group had been discussing various options for dealing with the IGO jurisdictional immunity question for some time. As the concept of a PIA had already been approved by the Council by then, staff mentioned the possibility of doing one to the WG co-chairs, as a possible means of assisting the WG with sorting through the options and making progress on a decision. * As to whether the same considerations/reasons are, or are not, still relevant - on the one hand, as policy recommendations are intended to address a current problem (viz. IGO issues with the existing dispute resolution processes) doing a fresh PIA may be useful if the Council believes that this will assist it with assessing the final recommendations from the WG. On the other hand, for a PIA to lead to effective and sound policy outcomes, the analysis of the PIA needs to be objective and performed with full consideration of all stakeholder views and interests. This can be a challenge in a PDP WG where there has not been active participation by or full representation of all stakeholder groups. * In that regard, the question also arises as to who will perform the analysis of the PIA – typically it is the WG, but in this case we assume it will be the Council, where the new PIA will be done to assist the Council with its decision-making. 1. Would the WG or staff agree the 2017 PIA is incomplete or out of date? STAFF RESPONSE: * As noted previously, some types of policy proposals lend themselves better to this sort of assessment than others. The usefulness of a PIA also depends on whether the proposal itself is based on verifiable data rather than (say) advocating a specific point of view. In addition, for this particular PDP, the PIA was done at a time when the WG was trying to decide which among several policy options it ought to select, so the focus was more on the pros and cons (i.e. benefits and risks) rather than on a detailed assessment of likely impacts – in any case, some of the impacts (e.g. effect on IGOs) were fairly obvious. * Along with our observations as noted under Q1 (above), staff does not believe it appropriate for us to opine one way or the other as to whether a new PIA will necessarily be more comprehensive or can assist with the decision as to whether the final consensus choice was the “best” solution. * Our recollection of the WG’s analysis of the PIA that was done is that the discussion did not involve active participation by more than a minority of WG members. * It may be useful to note that one difficulty with any PIA can be that, where policy proposals under consideration have been put forward by participants in a PDP, members may find it difficult to engage in an objective critique of a proposal they advocated for. 1. Would an updated PIA on all Recommendations or on Recommendation #5 assist the Council in its deliberation and consideration and answer the question raised by a councilor "Are the PDP recommendations viable and do they constitute "good policy" (vs. "bad policy")" in an informed and objective manner? STAFF RESPONSE: * Please see generally our comments on Q1 & Q2 above. Regarding Recommendation #5, as highlighted in the last Council meeting, none of the recommendations are interdependent (except insofar as the wording of Recommendation #1 recognizes the possibility that Recommendation #5, if adopted, will mean a need to modify the language of the UDRP and URS – however, that does not make Recommendations #1 and #5 interdependent). * It may therefore be relevant that the three Minority Statements focused on Recommendation #5. As such, a new PIA could arguably focus solely on this recommendation (staff notes that the initial PIA also concerned the question of jurisdictional immunity, albeit in the context of all the proposed options at the time, and led to the consensus outcome that is now Recommendation #5). 1. How long will it take for staff or the WG to prepare a PIA on all Recommendations? 2. How long will it take for staff or the WG to prepare a PIA on Recommendation #5 only? STAFF RESPONSE: * It will certainly not take us as long to prepare a PIA if it is just on Recommendation #5; however, as that was the most contentious issue involving a lot of discussion and documentation, we are not certain that we can do so in time to make the document deadline for the Council’s September meeting. Finally, and picking up on the “interdependency” question, we note that while the GNSO’s PDP Manual “strongly discourage[s the Council] from itemizing recommendations that the PDP Team has identified interdependent or modifying recommendations”, the Council has the authority to vote on some of the non/less contentious recommendations while either remanding the one(s) with which the Council has concerns back to the WG or otherwise deciding on an appropriate course of action with respect to these one(s). This can involve, for instance, a new PIA on Recommendation #5, engagement with the Board and/or GAC on the issue, and/or requesting IGO and WG input prior to taking a vote. We hope these notes are helpful. As Steve and Berry also supported the Curative Rights PDP, they may have additional thoughts or comments. For your information, we have attempted to address Pam’s concerns with the remit of the GNSO Review Working Group separately so we have not replicated those comments here where the questions relate solely to the Curative Rights PDP. Thanks and cheers Mary From: Pam Little <pam.little@alibaba-inc.com> Reply-To: Pam Little <pam.little@alibaba-inc.com> Date: Monday, September 10, 2018 at 00:39 To: Mary Wong <mary.wong@icann.org>, "Council@gnso.icann.org" <council@gnso.icann.org>, "Austin, Donna" <Donna.Austin@team.neustar> Cc: "gnso-secs@icann.org" <gnso-secs@icann.org> Subject: [Ext] Re: [council] FOR REVIEW/ACTION: Follow up on Action Item relating to IGO-INGO Curative Rights PDP Final Report (from the GNSO Council meeting of 16 August 2018) Dear colleagues, I have some follow-up comments/questions regarding the Policy Impact Assessment (PIA) that Mary kindly sent through after our last meeting, see https://mm.icann.org/pipermail/council/2018-August/021687.html. I would like to highlight Mary's comment that PIAs are "not mandatory and need not be formally incorporated into the Final Report". Those of you who have a regulatory or policy background would recognise PIA as a standard practice. Within the GNSO, inclusion of a PIA as a standard part of policy development process was recommended by two separate community efforts and the recommendation has purportedly been implemented: 1. The Data and Metric (DMPM) Non-PDP - The Final Report was adopted by the GNSO Council in October 2015 https://gnso.icann.org/en/council/resolutions#20151021-1: Implementation of the recommendation related to PIA was reflected in the current Working Group Charter [gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_counc...> template, which provides: "If the WG concludes with any recommendations, the WG must include a policy impact analysis and a set of metrics to measure the effectiveness of the policy change, including source(s) of baseline data for that purpose:...". 2. The GNSO2 Review - The Implementation Final Report was adopted by the GNSO Council at its 18 August 2018 meeting: Recommendation 16: That a policy impact assessment (PIA) be included as a standard part of any policy process. The Working Group agreed by full consensus on 29 May 2017 that the revised GNSO Operating Procedures v3.1, published on 16 February 2016, complete the implementation of recommendation 16. Oddly, since the charter template revision (early 2016), it seems none of the ongoing PDPs' Charters have been updated to include the PIA language. Upon inquiry, I was informed that "a recommendation was deemed implemented if a process, procedure, or requirement was in place to deal with that specific topic, even if that process or procedure had yet to be used." As a member of the DMPM WG and someone who followed the GNSO2 Review, I do not believe such approach is consistent with the spirit or the letter of the recommendation. In light of the above, here are my questions: 1. What (considerations/reasons) prompted the staff-prepared PIA last August (the 2017 PIA), given that it was deemed non-mandatory by the WG and staff? Are those considerations/reasons still relevant? 1. Would the WG or staff agree the 2017 PIA is incomplete or out of date? 1. Would an updated PIA on all Recommendations or on Recommendation #5 assist the Council in its deliberation and consideration and answer the question raised by a councilor "Are the PDP recommendations viable and do they constitute "good policy" (vs. "bad policy")" in an informed and objective manner? 1. How long will it take for staff or the WG to prepare a PIA on all Recommendations? 5. How long will it take for staff or the WG to prepare a PIA on Recommendation #5 only? Kind regards, Pam ------------------------------------------------------------------ Sender:PAMELA LITTLE <pam.little@alibaba-inc.com> Sent at:2018 Sep 5 (Wed) 17:08 To:Mary Wong <mary.wong@icann.org>; Council@gnso.icann.org <council@gnso.icann.org>; "Austin, Donna" <Donna.Austin@team.neustar> Cc:gnso-secs@icann.org <gnso-secs@icann.org> Subject:Re: [council] FOR REVIEW/ACTION: Follow up on Action Item relating to IGO-INGO Curative Rights PDP Final Report (from the GNSO Council meeting of 16 August 2018) Hi Donna & colleagues I apologize for not responding last week before the deadline. It's likely that I will have some more questions to add (after I have had a chance to have a chat with Mary, hopefully within this week). Kind regards, Pam ------------------------------------------------------------------ Sender:Austin, Donna via council <council@gnso.icann.org> Sent at:2018 Aug 25 (Sat) 05:49 To:Mary Wong <mary.wong@icann.org>; Council@gnso.icann.org <council@gnso.icann.org> Cc:gnso-secs@icann.org <gnso-secs@icann.org> Subject:[council] FOR REVIEW/ACTION: Follow up on Action Item relating to IGO-INGO Curative Rights PDP Final Report (from the GNSO Council meeting of 16 August 2018) Thank you Mary for preparing this information and just as a reminder to everyone, and as reflected in the Action Items from our meeting on 16 August 2018, we look forward to further input from Councilors on this issue and in particular we ask that you if you have any questions, in addition to those identified by Mary below please provide those to the list by UTC 23:59 on 31 August 2018: (New) Item 7: COUNCIL DISCUSSION – IGO-INGO Access to Curative Rights Protection Mechanisms Action Items: * Councilors to review Final Report and options flowchart, then prepare a list of questions by 31 August 2018 that they have, for response by the WG leadership, WG liaison, WG members, or staff as appropriate. * ICANN staff to work with the GNSO Chair and Council liaison to determine possible ways to address concerns regarding some of the PDP recommendations within the scope of the PDP Manual, in light of the fact that the WG has not identified any recommendations as being interdependent. Council leadership believes it could be helpful to have a Council discussion on this topic prior to our next Council meeting on 27 September 2018, to go over some of the concerns or issues that Councilors may have and potentially provide clarity on the path forward. If no Councilor objects to this suggestion, we will send out a doodle poll for a call the second week in September. While it would not be a formal Council meeting, it would be a discussion limited to Councilors with a recording made available. Donna obo of Council Leadership From: council [mailto:council-bounces@gnso.icann.org] On Behalf Of Mary Wong Sent: Wednesday, August 22, 2018 7:18 PM To: Council@gnso.icann.org Cc: 'gnso-secs@icann.org' <gnso-secs@icann.org> Subject: [council] FOR REVIEW/ACTION: Follow up on Action Item relating to IGO-INGO Curative Rights PDP Final Report (from the GNSO Council meeting of 16 August 2018) Dear Councilors, To assist with your review of the Final Report, including the Minority Statements, and for further Council discussion on the recommendations from the PDP Working Group on IGO-INGO Curative Rights (Agenda Item 7), Council leadership has requested that staff provide you with the following information: (1) the list of questions that several Councilors raised during the call, for further consideration and to facilitate your development of additional questions (if any); and (2) copies of three letters that were sent during the past month to the ICANN Board relating to the PDP and its outcomes. For (1) (note that some questions, including any that Councilors may propose as a result of your review of the PDP work, may be answered via Council discussion, or by the Working Group, or by ICANN staff. The following questions were taken from the 16 August Council call recording, transcript and chat transcript, available at https://gnso.icann.org/en/group-activities/calendar#aug<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group-2Dactivities_calendar-23aug&d=DwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=CwipU91YB6EkpFXK9ynnT_QUef4yC5p7jpsDm8cU97g&m=0VmTFkf5EP1D3NNJmNFdygOUk3VFvy7403xHV5jUkc8&s=D361ykZxUN0Gy-z0lhXCmsKQ2RvILmuUxI-n7KEEBUk&e=>): 1. Does the Council believe that the PDP has addressed the issues that it was chartered to address (i.e. What questions/topics was the Working Group chartered to consider, did it consider those charter topics/questions, and did it do so in a legitimate way); 2. Has the PDP followed due process; 3. Did the PDP Working Group address GAC advice on the topic; and 4. Are the PDP recommendations viable and do they constitute "good policy" (vs. "bad policy")? For (2) (in order of date; all three letters have now been published on ICANN’s Correspondence page, at https://www.icann.org/resources/pages/correspondence<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_correspondence&d=DwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=CwipU91YB6EkpFXK9ynnT_QUef4yC5p7jpsDm8cU97g&m=0VmTFkf5EP1D3NNJmNFdygOUk3VFvy7403xHV5jUkc8&s=ChN3QY28zdXWfq7FmyVjGdURtKIEjMADQeJwPdgWyxs&e=>): 1. Letter from the United Nations Office of Legal Affairs to the ICANN Board (27 July 2018): https://www.icann.org/en/system/files/correspondence/mathias-to-board-27jul18-en.pdf<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system_files_correspondence_mathias-2Dto-2Dboard-2D27jul18-2Den.pdf&d=DwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=CwipU91YB6EkpFXK9ynnT_QUef4yC5p7jpsDm8cU97g&m=0VmTFkf5EP1D3NNJmNFdygOUk3VFvy7403xHV5jUkc8&s=vOvFuxzmkHiynH-Tm1Q3HklfivyhdVCaAra01_MWURU&e=>; 2. Letter from 9 PDP Working Group members to the ICANN Board in response to the UN letter (16 August 2018): https://www.icann.org/en/system/files/correspondence/igo-ingo-wg-to-icann-board-16aug18-en.pdf<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system_files_correspondence_igo-2Dingo-2Dwg-2Dto-2Dicann-2Dboard-2D16aug18-2Den.pdf&d=DwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=CwipU91YB6EkpFXK9ynnT_QUef4yC5p7jpsDm8cU97g&m=0VmTFkf5EP1D3NNJmNFdygOUk3VFvy7403xHV5jUkc8&s=UCb8vYfRkYAq8D5lyuB4ajsQDlhAwkRqY1kgLZTb5Ms&e=>; and 3. Letter from a PDP Working Group member to the ICANN Board also responding to the UN letter (16 August 2018): https://www.icann.org/en/system/files/correspondence/igo-ingo-wg-to-icann-board-16aug18-en.pdf<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system_files_correspondence_igo-2Dingo-2Dwg-2Dto-2Dicann-2Dboard-2D16aug18-2Den.pdf&d=DwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=CwipU91YB6EkpFXK9ynnT_QUef4yC5p7jpsDm8cU97g&m=0VmTFkf5EP1D3NNJmNFdygOUk3VFvy7403xHV5jUkc8&s=UCb8vYfRkYAq8D5lyuB4ajsQDlhAwkRqY1kgLZTb5Ms&e=>. Copies of the three letters are also attached to this message for your reference. Please do not hesitate to let us know if you have questions or require additional information. Best regards, Mary & Steve From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> on behalf of Nathalie Peregrine <nathalie.peregrine@icann.org<mailto:nathalie.peregrine@icann.org>> Date: Tuesday, August 21, 2018 at 18:32 To: "Council@gnso.icann.org<mailto:Council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Cc: "'gnso-secs@icann.org'" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>> Subject: [council] Action Items: GNSO Council meeting 16 August 2018 Dear Councilors, Please find the action items, as stated during the meeting, below arising from the GNSO Council meeting held on Thursday 16 July 2018. Please take note of the action items coming out of the Council sessions and the proposed timing for delivering on these actions. Please ensure your wiki logins are up to date asall Action Items have been assigned to councilors and/or staff and posted on the Action Item wiki page here[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_R...>. If you are logged into the wiki when you go to that page, your name will be highlighted alongside the action item assigned to you. Please refer to this page for the recent status updates on the Action items. ACTION ITEMS FROM THE GNSO COUNCIL MEETING 16 AUGUST 2018 Item 2. Opening Remarks / Review of Projects & Action Items List Action Items: * Council to consider selection process by which a GNSO appointed member of the IANA Function Review (IFR) team will be selected to serve as the GNSO co-chair on the IFR as the ICANN Bylaws stipulate that “(d) The IFRT shall be led by two co-chairs: one appointed by the GNSO from one of the members appointed pursuant to clauses (c)-(f) of Section 18.7 and one appointed by the ccNSO from one of the members appointed pursuant to clauses (a)-(b) of Section 18.7”. * Heather Forrest to follow up on status of Board review of Geo Regions Review. Cheryl Langdon-Orr, as chair of the WG, may be asked to provide an update on the recommendations, as early as the September Council meeting, though the Council has no action to take at this time. Item 3: Consent Agenda Voting Results: * Motion passed unanimously by voice vote. Action items: * While the GNSO Council review of the GAC Communiqué has already been sent to the ICANN Board, and the GAC Chair informed of this action, ICANN staff to inform the ICANN Board and the GAC Chair of formal Council adoption. Item 4: COUNCIL VOTE – Adoption of the Final Report on the Protections for Certain Red Cross Names in All gTLDs Policy Amendment Process Voting Results: * Motion deferred at the request of the NCSG to the next Council meeting Action items: * ICANN staff, WG leadership to collaborate with NCSG members to help them better understand legal basis and rationale for protections. * ICANN staff to send recording of final WG call to NCSG Council members. Item 5: Item 5: COUNCIL VOTE – Adoption of the Final GNSO2 Review Implementation Report Voting Results: * Motion passed unanimously by voice vote. Action Items: * ICANN staff to submit the GNSO2 Review Implementation Final Report to the OEC of the ICANN Board of Directors for its consideration. * GNSO Council to disband the GNSO Review Working Group after the Implementation Final Report has been approved by the ICANN Board of Directors. * Council leadership to send sincere thanks to GNSO Review Working Group leadership and members. (New) Item 6: COUNCIL DISCUSSION – Council Liaison update on Expedited PDP (EPDP) on the Temporary Specification Action Items: * Council liaison to the EPDP to provide an updated work plan and weekly updates to the Council list. (New) Item 7: COUNCIL DISCUSSION – IGO-INGO Access to Curative Rights Protection Mechanisms Action Items: * Councilors to review Final Report and options flowchart, then prepare a list of questions by 31 August 2018 that they have, for response by the WG leadership, WG liaison, WG members, or staff as appropriate. * ICANN staff to work with the GNSO Chair and Council liaison to determine possible ways to address concerns regarding some of the PDP recommendations within the scope of the PDP Manual, in light of the fact that the WG has not identified any recommendations as being interdependent. (New) Item 8: COUNCIL DISCUSSION – Consideration of CCWG-Accountability WS2 Final Report Action Items: * None (New) Item 9: COUNCIL DISCUSSION – GNSO Policy Development Process 3.0 Action Items: * Council leadership to propose and plan for next steps, expected to be a webinar with a preliminary target as the first week of September. (New) Item 10: COUNCIL DISCUSSION – Next steps related to the ICANN Procedure of Handling WHOIS conflicts with Privacy Law Decision/Octome: * Call for volunteers to be delayed at least until the EPDP hits the milestone of publishing its Initial Report. Council to discuss this topic once that milestone is hit. (New) Item 11: COUNCIL DISCUSSION – Report from funded leaders under the PDP leadership travel support pilot Action Items: * None (New) Item 12: ANY OTHER BUSINESS 12.1 - ICANN63 planning - update from Production Call 1 Action Items: * None Thank you, Kind regards, Nathalie -- Nathalie Peregrine Manager, Operations Support (GNSO) Internet Corporation for Assigned Names and Numbers (ICANN) Email: nathalie.peregrine@icann.org <nathalie.peregrine@icann.org%20> Skype: nathalie.peregrine.icann Find out more about the GNSO by taking our interactive courses<applewebdata://EB3A6F47-9760-400D-A39B-A7EFFC56B467/learn.icann.org/courses/gnso> and visiting the GNSO Newcomer pages<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_sites_gns...>