Dear all, Please find below the resolutions from the GNSO Council meeting on Thursday 21 January 2021 which will be posted shortly on the GNSO resolutions<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_council_resolutions_2020&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=PDd_FX3f4MVgkEIi9GHvVoUhbecsvLhgsyXrxgtbL10DTBs0i1jYiBM_uTSDzgqG&m=ZSgASD1EuH-U7lIp4Tv5rZ7qbpaQd30Zx7zYM0-pUk0&s=fX9ASCG1j6_lmUZBaZPCSK8a5HGDv7G_X0ZM7ChsG_k&e=> page. CONSENT AGENDA Motion - Appointment of a GNSO Non-Registry Liaison to the Customer Standing Committee Submitted by: Carlton Samuels Seconded by: Tatiana Tropina Whereas, 1. The existing GNSO Non-Registry Liaison to the Customer Standing Committee James Gannon was nominated to serve a two-year term beginning 1 October 2019. 2. The Liaison stepped down from the role as of ICANN69 due to his appointment to the PTI Board. 3. On 9 November 2020, the GNSO launched an Expression of Interest (EOI) process via email to the GNSO Stakeholder Groups and Constituencies to solicit volunteers to serve in the Liaison role for the remainder of the current term. 4. The GNSO Council tasked the GNSO Standing Selection Committee (SSC) with reviewing applications and recommending one individual for the GNSO to appoint. 5. The SSC reviewed the one application received, taking into account the criteria outlined in the EOI announcement. 6. The SSC submitted its full consensus recommendation to the GNSO Council on 11 January 2021, by way of submission of the relevant motion. 7. The GNSO Council considered the recommendations of the SSC. Resolved, 1. The GNSO appoints Milton Mueller to serve as GNSO Non-Registry Liaison to the Customer Standing Committee. 2. The GNSO Council instructs the GNSO Secretariat to communicate resolved #1 to staff supporting the Customer Standing Committee. 3. The GNSO Council instructs the GNSO Secretariat to inform the appointed candidate that he has been selected. Vote results<https://urldefense.com/v3/__https:/gnso.icann.org/en/meetings/gnso-council-motion-recorder-21jan21-en.pdf__;!!PtGJab4!t19sxkZnw598R74Qokp77B_14CQ-Hr9Ly2hh_NM9BJzfb4otw19FaqrRQ0S8Gb99oWi2mMQ8wnpD$> Motion - Nomination of a Mentor for the ICANN Fellowship Program Submitted by: Carlton Samuels Seconded by: Tatiana Tropina Whereas, 1. On 16 November 2020, the ICANN Fellowship Program invited ICANN's Supporting Organizations and Advisory Committees to nominate one individual each (total of 7) to serve in the capacity of Fellowship Program mentor for three consecutive ICANN meetings, beginning with ICANN72 (see https://www.icann.org/news/announcement-2020-11-16-en) 2. On 3 December 2020, the GNSO launched an Expression of Interest (EOI) process to solicit volunteers for the GNSO-nominated mentor position (seehttps://gnso.icann.org/en/announcements/announcement-03dec20-en.htm). 3. The GNSO Council tasked the GNSO Standing Selection Committee (SSC) with reviewing applications and recommending one individual for the GNSO to nominate. 4. The SSC reviewed the applications received, taking into account the criteria outlined in the EOI announcement. 5. The SSC submitted its full consensus recommendation to the GNSO Council on 11 January 2021, by way of submission of the relevant motion. 6. The GNSO Council considered the recommendations of the SSC. Resolved, 1. The GNSO nominates Farell Folly to serve as a ICANN Fellowship Program mentor for three consecutive ICANN meetings, beginning with ICANN72. 2. The GNSO Council instructs the GNSO Secretariat to communicate resolved #1 to staff supporting the ICANN Fellowship Program. 3. The GNSO Council instructs the GNSO Secretariat to inform the nominated candidate that he or she has been selected. 4. The GNSO Council requests the GNSO Secretariat to send a response to those applicants who were not nominated, thanking them for their interest and encouraging them to apply for future opportunities as they arise. . Vote results<https://urldefense.com/v3/__https:/gnso.icann.org/en/meetings/gnso-council-motion-recorder-21jan21-en.pdf__;!!PtGJab4!t19sxkZnw598R74Qokp77B_14CQ-Hr9Ly2hh_NM9BJzfb4otw19FaqrRQ0S8Gb99oWi2mMQ8wnpD$> Motion - Appointment of a GNSO Representative to the Community Representatives Group that will nominate the Independent Review Process (IRP) Standing Panel. Submitted by: Carlton Samuels Seconded by: Tatiana Tropina Whereas, 1. The SO/AC Chairs have agreed to the formation of a Community Representatives Group to select nominees for the Bylaws-mandated Independent Review Process (IRP) Standing Panel. 2. On 18 November 2020, ICANN, in consultation with the SO/ACs, opened an Expression of Interest process to solicit volunteers for the Community Representatives Group (https://www.icann.org/news/announcement-2020-11-18-en) with the understanding that Expressions of Interest would be reviewed by the specific SO/ACwhose endorsement was requested by the applicant. 3. The GNSO SG/C Chairs and GNSO Council Leadership agreed that the SSC should be deployed to select the GNSO’s Representative(s) to the Community Representatives Group. 4. The SG/C Chairs provided written guidance for the SSC to support the selection process. 5. The SSC reviewed the application received, taking into account the guidance provided by the SG/C Chairs. 6. The SSC submitted its full consensus recommendation to the GNSO Council on 11 January 2021, by way of submission of the relevant motion. 7. The GNSO Council considered the recommendations of the SSC. Resolved, 1. The GNSO appoints Heather Forrest to serve as a GNSO Representative to the Community Representatives Group that will nominate the Independent Review Process (IRP) Standing Panel. 2. The GNSO Council instructs the GNSO Secretariat to communicate resolved #1 to the SO/AC Chairs and ICANN. 3. The GNSO Council instructs the GNSO Secretariat to inform the nominated candidate of the Council’s decision. Vote results<https://urldefense.com/v3/__https:/gnso.icann.org/en/meetings/gnso-council-motion-recorder-21jan21-en.pdf__;!!PtGJab4!t19sxkZnw598R74Qokp77B_14CQ-Hr9Ly2hh_NM9BJzfb4otw19FaqrRQ0S8Gb99oWi2mMQ8wnpD$> Motion - GNSO Council Input on Recommendation 7 of the Expedited Policy Development Process (EPDP) on the Temporary Specification for gTLD Registration Data Phase 1 Final Report and Thick Whois Transition Policy (Deferred from the 17 December 2020 Meeting) Submitted by: Pam Little Seconded by: John McElwaine WHEREAS 1. The Thick RDDS (Whois) Transition Policy for .COM, .NET and .JOBS<https://www.icann.org/resources/pages/thick-whois-transition-policy-2017-02-01-en> (Thick Whois Transition Policy) is an ICANN consensus policy resulting from the implementation of the policy recommendations in the Final Report on the Thick WHOIS Policy Development Process<https://gnso.icann.org/sites/default/files/filefield_29151/final-report-thick-whois-02feb12-en.pdf>(“Thick Whois PDP”). 2. Section 16 of ANNEX 2: Policy Development Process Manual<https://gnso.icann.org/en/council/annex-2-pdp-manual-24oct19-en.pdf> to the GNSO Operating Procedures v3.5<https://gnso.icann.org/en/council/op-procedures-24oct19-en.pdf> provides: “Approved GNSO Council policies that have been adopted by the ICANN Board and have been implemented by ICANN Staff may only be amended by the initiation of a new PDP on the issue.” 3. On 17 May 2018, the ICANN Board adopted the Temporary Specification for gTLD Registration Data (“Temporary Specification”). 4. On 19 July 2018, the GNSO Council initiated an Expedited Policy Development Process (“EPDP”) and chartered the EPDP on the Temporary Specification for gTLD Registration Data Team to determine if the Temporary Specification should become an ICANN consensus policy as is, or with modifications (emphasis added). 5. Recommendation #7 in the EPDP Phase 1 Final Report<https://gnso.icann.org/sites/default/files/file/field-file-attach/epdp-gtld-registration-data-specs-final-20feb19-en.pdf> (“Final Report”) makes transfer of registrant contact information optional, depending on whether the registry operator in question has an appropriate legal basis to require the data and a data processing agreement is in place. 6. To the extent the Thick Whois Transition Policy is modified by Recommendation #7, the EPDP Team recommends the Thick Whois Transition Policy and other impacted consensus policies be updated to ensure consistency (see Recommendation #27 of the Final Report). 7. Recommendation #7 was developed in response to the questions in Section C of the EPDP Charter, with a consensus designation of “Full Consensus / Consensus” (see Annex E of the Final Report). 8. On 4 March 2019, the GNSO Council adopted<https://gnso.icann.org/en/council/resolutions#20190304-1> all the policy recommendations in the Final Report, including Recommendation #7, with the required GNSO Supermajority. 9. On 15 May 2019, the ICANN Board passed a resolution<https://features.icann.org/consideration-gnso-epdp-recommendations-temporary-specification-gtld-registration-data> adopting most of the policy recommendations contained in the Final Report, including Recommendation #7 and noting Recommendation #7 does not repeal or overturn the Thick WHOIS Policy [sic] and directed “ICANN org to work with the Implementation Review Team to examine and transparently report on the extent to which these Recommendations require modification of existing Consensus Policies, including the Thick WHOIS Transition Policy”. 10. Section 7 of Annex A-1 to the ICANN Bylaws<https://www.icann.org/resources/pages/governance/bylaws-en> provides: “Upon a final decision of the Board adopting the EPDP recommendations, the Board shall, as appropriate, give authorization or direction to ICANN staff to implement the EPDP Recommendations. If deemed necessary, the Board shall direct ICANN staff to work with the GNSO Council to create a guidance implementation plan, based upon the guidance recommendations identified in the Final EPDP Recommendation(s) Report.” 11. Section III. A of the Consensus Policy Implementation Framework<https://www.icann.org/policy/implementation> provides: The GNSO Council may continue to provide input on the implementation of a policy, for example, if the GNSO Council believes that the implementation is inconsistent with the policy [recommendation]”. RESOLVED 1. The GNSO Council confirms that the EPDP had the mandate to modify the Thick Whois Transition Policy under the EPDP 2. The GNSO Council determines that in light of the EPDP being chartered by the GNSO Council, among other things, to address the questions in Part 2(c) under “Mission and Scope” to specifically address the transfer of data from registrar to registry, the resulting recommendation #7 appropriately fulfills this purpose. Furthermore, the requirement of Section 16 of the PDP Manual is deemed satisfied for the purpose of amending the Thick Whois Transition Policy. 3. The GNSO Council determines, notwithstanding the absence of a clear statement, the intent of EPDP Phase 1 Recommendation #7 to modify the Thick Whois Transition Policy is implied, taking into account the history, background, context and purpose of the EPDP, the specific language of Recommendation #7 and the EPDP Phase 1 Final Report in its entirety. 4. The GNSO Council determines that the Recommendation #7 language, “must be transferred from registrar to registry provided an appropriate legal basis exists and data processing agreement is in place” should be included in the Registration Data Policy in order to conform with the intent of the EPDP Phase 1 Team’s policy recommendation and the subsequent GNSO Council adoption (“GNSO Council Input”). 5. The GNSO Council instructs the Council’s Liaison to communicate the GNSO Council Input to the Registration Data Policy Implementation Review Team pursuant to Section III.A of the Consensus Policy Implementation Framework<https://www.icann.org/policy/implementation>. 6. The GNSO Council shall communicate the GNSO Council Input to the ICANN Board of Directors. RATIONALE The Thick Whois PDP Final Report anticipated that its recommendations might be affected by evolving privacy regulation. In particular, Recommendation 3 states, “As part of the implementation process a legal review of law applicable to the transition of data from a thin to thick model … due consideration is given to potential privacy issues that may arise from the discussions on the transition from thin to thick Whois … Should any privacy issues emerge from these transition discussions that were not anticipated by the WG and which would require additional policy consideration, the Implementation Review Team is expected to notify the GNSO Council of these so that appropriate action can be taken.” In addition, the implementation advice (“Other Observations”) mentions in part, “...the increasing number of data protection and privacy laws and regulations around the world, as well as specific Whois-related concerns raised by the public. While recognizing that this exceeds the scope of our remit, we suggest that, as part of the development of the registration data directory system model currently in process, ICANN ensure that the ramifications of data protection and privacy laws and regulations with respect to Whois requirements be examined thoroughly.” In effect, the Temporary Specification and the EPDP accomplished the legal review of the ramifications of data protection laws required by Recommendation 3 of the Thick Whois PDP Final Report . The requirements set out in the Temporary Specification supersede and replace the contractual requirements in the Registrar Accreditation Agreement and the Registry Agreements, which incorporate by reference all ICANN consensus policies. There is a conflict between the data processing principles under the Temporary Specification and the requirements under existing gTLD Registry Agreements as well as the Thick Whois Transition Policy. In other words, the Thick Whois Transition Policy was modified by the Temporary Specification and further modified by Recommendation #7 in the EPDP Phase 1 Final Report, as the EPDP Team was mandated to do. While there is no explicit reference to the Thick Whois Transition Policy, this consensus policy and others that are affected by the GDPR and other relevant data privacy laws fell squarely within the scope of the Temporary Specification and hence they are also within the scope of the EPDP. The EPDP Charter states: “Mission and Scope This EPDP Team is being chartered to determine if the Temporary Specification for gTLD Registration Data should become an ICANN Consensus Policy, as is or with modifications, while complying with the GDPR and other relevant privacy and data protection law. 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. The EPDP Team shall consider what subsidiary recommendations it might make for future work by the GNSO which might be necessary to ensure relevant Consensus Policies, including those related to registration data, are reassessed to become consistent with applicable law.” Specifically, Section C of the EPDP Charter contains a set of questions regarding “transfer of data from registrar to registry”: c1) What data should registrars be required to transfer to the registry? c2) What data is required to fulfill the purpose of a registry registering and resolving a domain name? c3) What data is transferred to the registry because it is necessary to deliver the service of fulfilling a domain registration versus other legitimate purposes as outlined in part (a) above? c4) Is there a legal reason why registrars should not be required to transfer data to the registries, in accordance with previous consensus policy on this point? c5) Should registries have the option to require contact data or not? c6) Is there a valid purpose for the registrant contact data to be transferred to the registry, or should it continue to reside at the registrar? While the Final Report does not contain express language that the policy recommendations are intended to supersede the requirements in the existing ICANN consensus policies, in this case, the Thick Whois Transition Policy, such intent is implied (i.e., it goes without saying in light of the history, background, context and purpose of the EPDP). The EPDP was conducted in an open and transparent manner with representatives from all GNSO Stakeholder Groups and Constituencies, as well as some ICANN Advisory Committees. As such, Recommendation #7 cannot be considered to be a “shadow repeal” of the Thick Whois Transition Policy. The recommendations contained in the Thick WHOIS PDP Final Report anticipated that the implementation of those recommendations might be affected by new privacy regulations and the GNSO should address such an occurrence. Therefore, while there is no “clear statement in new consensus policy recommendations that the new policy is intended to supersede (in whole or part) requirements in existing consensus policies,” claiming otherwise ignores the history, background, context, purpose of the EPDP as well as the Thick Whois PDP Final Report itself. The intent and meaning of Recommendation #7 is clear. It is the role of the Implementation Review Team (IRT) to ensure that the implementation of Recommendation #7 conforms to the intent of the policy recommendation. The IRT is not a forum for opening or revisiting policy discussions (see III.A and III.B, Implementation Review Team (IRT) Principles and Guidelines https://www.icann.org/resources/files/1201611-2016-08-23-en). The Policy Development Process Manual makes clear that “Approved GNSO Council policies that have been adopted by the ICANN Board and have been implemented by ICANN Staff may only be amended by the initiation of a new PDP on the issue.” It can therefore be concluded that where there is a conflict between an existing consensus policy and subsequent policy recommendation(s) on the same subject matter, the newer policy recommendation prevails. While the EPDP was scoped differently and under different circumstances than the Thick Whois PDP, it is undeniable that the two policy development processes overlapped in covering the same issue of transfer of Registration Data from registrar to registry, and therefore, the IRT should implement Recommendation #7 as written and intended. Vote results<https://urldefense.com/v3/__https:/gnso.icann.org/en/meetings/gnso-council-motion-recorder-21jan21-en.pdf__;!!PtGJab4!t19sxkZnw598R74Qokp77B_14CQ-Hr9Ly2hh_NM9BJzfb4otw19FaqrRQ0S8Gb99oWi2mMQ8wnpD$> Motion - Approve the Recommendations from the Phase 1 Final Report of the GNSO Policy Development Process (PDP) on the Review of All Rights Protection Mechanisms (RPMs) in All gTLDs, covering RPMs applicable to gTLDs launched under the 2012 New gTLD Program. Submitted by: John McElwaine Seconded by: Maxim Alzoba WHEREAS: 1. On 18 February 2016, the GNSO Council resolved<https://gnso.icann.org/en/council/resolutions#20160218-3> to initiate a two-phased Policy Development Process (PDP), to review all existing rights protection mechanisms (RPMs in all gTLDs. 2. On 9 March 2016, the GNSO Council approved<https://gnso.icann.org/en/council/resolutions#20160309-2> the PDP Charter, thereby initiating Phase One of the PDP that focused on the RPMs developed for the 2012 New gTLD Program. 3. The PDP Working Group has followed all the necessary steps and processes required by the ICANN Bylaws, the GNSO PDP Manual and the GNSO Working Group Guidelines, including the publication of an Initial Report for public comment (on 18 March 2020) and consideration of the public comments received thereto. 4. On 24 November 2020, the PDP Working Group submitted its Final Report to the GNSO Council for its review and action. 5. The PDP Working Group has reached Full Consensus for thirty-four (34) out of the thirty-five (35) final recommendations documented in the Final Report, and Consensus for the remaining one (1) final recommendation (concerning Final Recommendation #1 for the Trademark Clearinghouse). RESOLVED: 1. The GNSO Council approves, and recommends that the ICANN Board adopt, all thirty-five (35) final PDP recommendations as documented in the PDP Working Group’s Final Report. 2. Should the PDP recommendations be adopted by the ICANN Board, the GNSO Council requests that ICANN org convene an RPM Implementation Review Team, to assist ICANN org in developing the implementation details for the PDP recommendations and ensure that the resultant implementation conforms to the intent of the approved recommendations. The Implementation Review Team shall operate in accordance with the Implementation Review Team Principles and Guidance approved by the GNSO Council in June 2015. 3. The GNSO Council thanks all the various Co-Chairs and members of the PDP Working Group for their commitment and hard work in completing Phase One of this PDP. Vote results<https://urldefense.com/v3/__https:/gnso.icann.org/en/meetings/gnso-council-motion-recorder-21jan21-en.pdf__;!!PtGJab4!t19sxkZnw598R74Qokp77B_14CQ-Hr9Ly2hh_NM9BJzfb4otw19FaqrRQ0S8Gb99oWi2mMQ8wnpD$> Thank you. Kind regards, Nathalie