Dear Councilors, 

 

As per the action items from the Council meeting held at 19:00 UTC 23 September 2021, Council leadership has further reviewed and discussed the issue of scope pertaining to Recommendation 1 of the EPDP Phase 2A Final Report (“Rec #1”) that was raised by Kurt Pritz, Council member from the Registries Stakeholder Group (RySG): 

 

“So as sort of a point of order, the RySG as a prerequisite to the Council vote on this set of recommendations requests that the Council first examine the RySG request that’s in our minority statement that relates to Recommendation 1 which seeks GNSO council determination of whether the proposal contained in Recommendation 1, the creation of a mandatory data element, is out of scope with the GNSO instructions to the EPDP phase 2A team.” (See Council meeting Transcript)

 

The GNSO Operating Procedures state that “a point of order is raised when there is an infraction of the GNSO Operating Procedures or improper decorum in speaking. The point of order must be raised as soon as possible after the error occurs.” It is unclear to us whether the question of scope raised by the RySG in its minority statement is indeed a “point of order” to be dealt with under the GNSO Operating Procedures. Whilst we have no reason to consider that an infraction has been committed or improper characterization been made, we appreciate and understand the willingness to address the question in the first order of business, and the following is offered in this spirit.  

 

The Council leadership acknowledges the concern raised by the RySG. However, we believe it is within the purview of a PDP working group chair to determine/assess scope issues while a PDP WG is underway. We are also mindful that there are escalation procedures  available if members of any WG disagree with the chair’s determination (see ANNEX 1: GNSO Working Group Guidelines to the GNSO Operating Procedures).

 

After careful consideration of all relevant information and materials, the Council leadership agrees with the assessment by the EPDP Phase 2A Chair that Rec #1 is in scope:

 

“It’s my view that what we are discussing here as it relates to guidance is within the scope of the EPDP charter and guidance that was given to us, the questions that were given to us.” (See EPDP Phase 2A team meeting 5 August 2021 Transcript)

We would like to share with you the following observations: 

• In determining whether Rec #1 is in scope, we believe a holistic approach and a broad interpretation of the charter language are warranted. To this end, we looked into the letter and intent of the original EPPD charter, how the EPDP evolved from Phase 1 to Phase 2A, the letter and intent of the Council instructions to the EPDP Phase 2A team and the discussions on this scope question within the EPDP Phase 2A team.
• The original EPDP charter states: “As part of this determination, the EPDP Team is, at a minimum, expected to consider the following elements of the Temporary Specification and answer the following charter questions…” (Emphasis added). 
• Phase 2A work was a continuation of deliberations of the original charter questions related to the topic of differentiation between legal and natural person data: 

• h3) Should Contracted Parties be allowed or required to treat legal and natural persons differently, and what mechanism is needed to ensure reliable determination of status?  
• h4) Is there a legal basis for Contracted Parties to treat legal and natural persons differently? 
• h5) What are the risks associated with differentiation of registrant status as legal or natural persons across multiple jurisdictions? (See EDPB letter of 5 July 2018).
• Following the completion of the phase 2 deliberations, the Council provided further instructions on this topic, asking the EPDP Phase 2A to answer the following questions:
  • Whether any updates are required to the EPDP Phase 1 recommendation on this topic (“Registrars and Registry Operators are permitted to differentiate 

between registrations of legal and natural persons, but are not obligated 

to do so“) (Emphasis added); 

·         ii. What guidance, if any, can be provided to Registrars and/or Registries who differentiate between registrations of legal and natural persons.

• The Initial Report was shared with the GNSO Council on 9 June and discussed during the Council meeting on 16 June. The Initial Report included in the form of a preliminary recommendation regarding the concept of adding an additional data element to facilitate differentiation. No concerns were raised at that point by any Council members with regards to the direction to which the EPDP Phase 2A was heading.
• In its public comment submission, the RySG raised the question of scope, which was again raised and discussed at the EPDP Phase 2A meetings. We note during the 22 July 2021 meeting, the Chair specifically asked: “…if anybody has specific or concrete questions about scope, I’d ask that you write it up and send it to me, send it to the list, so it can help inform leadership and staff in terms of any possible conversations we might need to have with the council during our next update.” 
• Rec #1 states: “that a field or fields MUST be created to facilitate differentiation between legal and natural person registration data and/or if that registration data contains personal or non-personal data”. However, this part of the recommendation is directed to ICANN org to coordinate with the technical community to develop any necessary standards. It is understood that Rec #1 should be considered in conjunction with recommendation #2 which provides guidance for those Contracted Parties who want to differentiate for how to do this best. As part of this differentiation, a Contracted Party could then decide to use these additional fields to ‘flag’ the type of data it concerns (legal / natural and/or personal / non-personal data). We note and agree with the comments made by EPDP Phase 2A Chair that a distinction should be made between “something that would be a new consensus policy requirement through a formal PDP that would establish a new requirement on contracted parties versus something that is guidance where a contracted party, if they choose to differentiate, would do so in a certain way.” (See EPDP Phase 2A team 2 July 2021 meeting transcript)
• The Council learned during the Council call on 23 September, after delivery of the EPDP Phase 2A Final Report, that the Registry Stakeholder Group had raised concerns about scope with the EPDP Phase 2A Chair, Keith Drazek during the deliberations (EPDP Phase 2A meeting on Thursday 22 July). Keith noted in the chat during the Council meeting that “The scope issue was raised by RySG during the WG meetings, and I indicated that I thought it was sufficiently in scope and, if not, then the Council would make that determination.” 

 

Based on the above, we are of the view that Rec #1 seems to be well in scope of the original charter questions as well the instructions that the Council provided as the creation of an additional data field(s) seems intended to facilitate differentiation for those Contracted Parties that decide to differentiate. 

 

Furthermore, Council leadership also notes that the EPDP Phase 2A Final Report and its recommendations (including Rec #1) have the consensus support of the EPDP Phase 2A team which indicates that most agree with Rec #1. This also seems to suggest that if the issue of scope would have been raised with the Council at an earlier stage, most would have agreed that the EPDP Phase 2A team should be permitted to consider the approach further. But having said that, no concerns were brought to the Council at any point during the EPDP Phase 2A deliberations, not at the time of the Initial Report nor thereafter. As such, we would like to suggest putting the question of scope aside so that the Council can move forward with consideration of the Final Report and its recommendations during our October meeting. 

 

As also indicated during the meeting, all recommendations have received the same consensus designation; as a result we plan to vote on these as a package. As a reminder, the Council is the manager of the PDP process, and in this role, the Council is expected to oversee and manage the process by which policy recommendations are developed. It is not our role to second guess the substance of recommendations that were developed by the community. 

 

We look forward to your feedback on our assessment and the proposed path forward.

 

Philippe, on behalf of Council leadership 

 

 

 

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