FYI, my further exchange with Margie. Regards, Keith From: Drazek, Keith Sent: Thursday, February 14, 2019 3:25 PM To: 'margiemilam@fb.com' <margiemilam@fb.com> Cc: 'Marksv@microsoft.com' <Marksv@microsoft.com>; 'sdelbianco@netchoice.org' <sdelbianco@netchoice.org>; 'kurt@kjpritz.com' <kurt@kjpritz.com>; 'marika.konings@icann.org' <marika.konings@icann.org>; rafik.dammak@gmail.com; 'marie.pattullo@aim.be' <marie.pattullo@aim.be>; 'smccormick@hackerone.com' <smccormick@hackerone.com> Subject: RE: [council] FW: [Gnso-epdp-team] FYI Motion For EPDP Final Report Approval Hi Margie, Thanks for your follow-up note, and for the opportunity to discuss your views during our phone call yesterday. I’ve provided some initial responses below. Please note I have not had a chance to discuss this with the GNSO Council Leadership Team, EPDP Leadership Team, or ICANN Staff supporting both groups, but I wanted to get this preliminary response back to you prior to this afternoon’s special GNSO Council meeting. 1. I agree the “gating questions” were at least partially “addressed” in the Initial Report, but my understanding is there was no consensus call on the substance or content of the Initial Report, and no consensus on the proposed answers to the gating questions. Rather, there was simply agreement to publish the Initial Report for public comment, and at that time the answers to the gating questions were far from complete or agreed-to by the EPDP WG. As such, the GNSO Council was not asked to consider them and to communicate non-objection to transitioning to Phase 2 as required by the Charter. 2. In relation to Phase 2, you noted below that the EPDP WG Charter says “Work on this topic shall begin once the gating questions above have been answered and finalized in preparation for the Temporary Specification initial report.“ But you omitted the following sentence that states “The threshold for establishing “answered” for the gating questions shall be consensus of the EPDP Team and non-objection by the GNSO Council.” As noted above, the gating questions still have not been agreed-to by the EPDP WG, but that should currently be taking place with the ongoing consensus assessment process. 3. Further, if you refer to the “Deliverables and Timeline” section on Page 10 of the Charter, there are three distinct deliverables, which clearly include two separate Final Reports of the PDP. The GNSO Council clearly recognized in the Charter that two Final Reports would be needed, one to address the Temp Spec, and a second to address the System for Standardized Access to Non-Public Registration Data. Here’s an excerpt of the relevant section that lists the deliverables: a. “The first deliverable of the EPDP Team shall be a triage document of the Temporary Specification” b. “The second deliverable shall be the Initial Report which will include the items that received Full Consensus support per the triage document as well as all other items of the Temporary Specification (not including the Annex) that were considered and deliberated upon, followed by a Final Report following review of public comments.” c. “The third deliverable of the EPDP Team shall be an Initial Report outlining a proposed model of a system for providing accredited access to non-public Registration Data, followed by a Final Report following review of public comments.” 4. It was always the intention of the Council that the Phase 1 Final Report would either confirm the Temp Spec as Consensus Policy or replace the Temp Spec with a new Consensus Policy. As such, we are not changing the interpretation of the Charter mid-stream. We had hoped that the Initial Report would have presented a consensus agreement on the gating questions, but it did not, and we are now attempting to do so with the Final Report. 5. On timing, the Consensus Policy must be approved by the Board prior to May 25, 2019. The Phase 1 Final Report needs to be finalized by the EPDP WG in the next two weeks so the Council can vote on 4 March (at the latest) in order to provide time for a traditional 40-day public comment period, Staff analysis of the comments received, and Board consideration and vote before May 25, 2019. There is no time left for a so-called “Phase 1 Part 2 Final Report” and consideration of such a construct was not included in the Charter. 6. In response to your points on the completeness of the Phase 1 Final Report, it is my understanding that the EPDP WG agreed to defer some questions and issues to Phase 2, which in my view is the prerogative of the EPDP WG in conducting its work. That said, here are my observations: a. Purposes – I defer comment on this until after I’ve had a chance to discuss with the EPDP WG leadership team. b. Data Accuracy – Data accuracy requirements were not included in the EPDP WG Charter. c. Geographic Requirements – The Final Report includes a recommendation, so this appears to be addressed. d. Natural/Legal Persons – The Final Report includes a recommendation and says that ICANN should study the issue further, so this appears addressed. e. Other Consensus Policies – The Final Report includes a recommendation acknowledging that other Consensus Policies be updated as part of the implementation of the new Consensus Policy. It appears more work can be done here, but these were not gating questions and therefore can be addressed in Phase 2 and/or the implementation of Phase 1. 7. Finally, to reiterate a point from my earlier email, the GNSO Council is looking forward to approving the Phase 1 Final Report AND signaling non-objection to the EPDP WG transitioning to Phase 2 during our GNSO Council meetings on 21 February or 4 March. I encourage everyone to continue providing input and feedback to the EPDP WG as the quiet period comes to a close so any remaining adjustments might be considered and incorporated. Please let me know if you have any follow up questions. Best, Keith Drazek GNSO Chair P.s. Please forward this to the EPDP WG list as I do not have posting privileges. From: Margie Milam <margiemilam@fb.com<mailto:margiemilam@fb.com>> Sent: Thursday, February 14, 2019 12:36 PM To: Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Cc: MarksvATmicrosoft.com <Marksv@microsoft.com<mailto:Marksv@microsoft.com>>; sdelbiancoATnetchoice.org <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>; 'kurt@kjpritz.com' <kurt@kjpritz.com<mailto:kurt@kjpritz.com>>; marika.konings@icann.org<mailto:marika.konings@icann.org>; rafik.dammak@gmail.com<mailto:rafik.dammak@gmail.com>; Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>>; Scott McCormick <smccormick@hackerone.com<mailto:smccormick@hackerone.com>> Subject: [EXTERNAL] Re: [council] FW: [Gnso-epdp-team] FYI Motion For EPDP Final Report Approval Importance: High Hi Keith- Thank you for talking to us about the GNSO Council’s upcoming vote on the EPDP “Final Report.” We owed you additional pieces of information that help explain our view on how the charter is interpreted. * Gating Questions It appears the gating questions were addressed in the Initial report. You’ll recall not all questions in the charter were termed “gating” – only Part 1(a) and Part 2(b), (c) and (f). · Part 1(a) (Purposes for Processing Registration Data) is addressed by Initial Report Recommendation 1 · Part 2(b) (Collection of registration data by registrar) is addressed by Initial Report Recommendation 4 · Part 2(c) (Transfer of data from registrar to registry) is addressed by Initial Report Recommendation 5 · Part 2(f) (Publication of data by registrar/registry) is addressed by Initial Report Recommendations 8 and 10 As I explained, nowhere in the Charter or elsewhere does it call for a consensus decision of the Final Report in order to move ahead with Phase 2. Instead the Charter states: “Work on this topic shall begin once the gating questions above have been answered and finalized in preparation for the Temporary Specification initial report. “ Since there was consensus to publish the Initial Report, the Council should have simply notified the EPDP Team in November that it had no objection to proceeding to Phase 2. Indeed, this reference to the Initial Report confirms that there was no intent to wait until consensus for the Final Report. In our view, it is problematic to change the interpretation of the Charter midstream during the EPDP’s deliberations for those stakeholder groups and constituencies that relied on this interpretation of the Charter. * Completeness of Phase 1 Report Per our discussion, Phase 1 was not fully completed; there are questions that should have been answered in Phase 1 but were recommended in the Phase 1 Final Report to be delayed into Phase 2 for consideration and work. This non-exhaustive list includes (referenced by charter section): · Charter section: None Recommendation 2: The EPDP team considers whether additional purposes should be considered to facilitate work by ICANN Org’s OCTO. · Charter section: P.7: System for Standardized Access to Non-Public Registration Data Recommendation 3: Questions about a standardized access model (e.g., whether such a system should be adopted, what are legitimate purposes for third parties to access registration data, etc.) · Charter section: Part 2(g), P.5: Data retention Recommendation 15: Undertake a review of all ICANN Org active processes to document instances when personal data is requested from a registrar beyond the period of the “life of the registration.” · Charter section: Part 2(h)(3-5), P.5: Legal vs. Natural Persons Recommendation 17: The EPDP Team will discuss the Legal vs. Natural issue in Phase 2. · Charter section: P.7: System for Standardized Access to Non-Public Reg. Data Recommendation 18: Replacement of Secs. 4.1 and 4.2 of Appendix A to the Temp Spec by criteria enumerated by the EPDP team. * Further examples of issues NOT yet addressed in Phase 1 · Charter section: Part 4 (n-q), P.7: Updates to other consensus polices o URS o UDRP o Transfer policy o Sunsetting Whois (following migration to RDAP) * Need for a Final Report Part II As previously discussed and highlighted above, the (actual) Final Report is incomplete and cannot form the basis of a consensus policy until the charter’s work is complete. One needs to look no further than the Board resolution in support of this, including elucidation of the appropriate timeline: As required when a temporary policy or specification is adopted, the Board also is taking action to implement the consensus policy development process. The Board will consult with the GNSO Council on potential paths forward (e.g. Expedited Policy Development Process) for considering the development of a consensus policy on the issues within the Temporary Specification, which must be concluded in a one-year time period. The initial Phase 1 report was published in November 2018, with the “gating questions” (Parts 2(b), 2(c) and 2(f)) sufficiently addressed (see EPDP initial report<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_de...>). Per the charter, work on an access model should have begun late last year. Instead this work has been deferred to Phase 2 of the team’s work. What is unclear is when the EPDP team will take up its remaining responsibilities under the charter and produce an actual “final” report - – which must occur prior to the expiration of the Temp Spec on May 25, 2019. We hope this helps clarify our thoughts as the Council considers these procedural issues in its call later today. We’d like to encourage the Council to ask the EDPD Leadership to create a timeline for producing the Final Report -Part II that brings the work to a close in an expedited manner. All the best, Margie From: "Drazek, Keith" <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: Tuesday, February 12, 2019 at 11:08 AM To: "marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>" <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Cc: "MarksvATmicrosoft.com" <Marksv@microsoft.com<mailto:Marksv@microsoft.com>>, "sdelbiancoATnetchoice.org" <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Margie Milam <margiemilam@fb.com<mailto:margiemilam@fb.com>>, "'kurt@kjpritz.com'" <kurt@kjpritz.com<mailto:kurt@kjpritz.com>>, "marika.konings@icann.org<mailto:marika.konings@icann.org>" <marika.konings@icann.org<mailto:marika.konings@icann.org>>, "rafik.dammak@gmail.com<mailto:rafik.dammak@gmail.com>" <rafik.dammak@gmail.com<mailto:rafik.dammak@gmail.com>> Subject: RE: [council] FW: [Gnso-epdp-team] FYI Motion For EPDP Final Report Approval Hi all, Thanks for forwarding this note from the BC’s EPDP WG reps. I’ll be happy to provide some additional context and guidance, both for Councilors and for the members of the EPDP WG. I’m copying Kurt, Rafik and Marika, so this can be forwarded to the EPDP WG list. 1. During the EPDP WG Chartering process, the GNSO Council drafting team made clear there would need to be two distinct phases of the work of the EPDP, each with its own Initial Report and Final Report. Phase One would focus on the Temporary Specification with an imposed 12-month deadline of May 25, 2019 due to the Board’s decision to invoke the Temp Spec. Phase Two would focus on the System for Standardized Access to Non-Public Registration Data after the gating questions from Phase One were addressed and the GNSO Council agreed. Here is the Charter language specifying the Objectives and timing: “To develop, at a minimum, an Initial Report and a Final Report regarding the EPDP Team’s recommendations on issues relating to the Temporary Specification for gTLD Registration Data as well as regarding the EPDP Team’s recommendations for a System for Accredited Access to Non-Public Registration Data, pursuant to the processes described in Annex A and A-1 of the ICANN Bylaws and the GNSO Expedited PDP Manual. Work on recommendations for a System for Accredited Access to Non-Public Registration Data should not commence until all gating questions have been answered. Similarly, delivery of the Final Report on the EPDP Team’s recommendations on issues relating to the Temporary Specification for gTLD Registration Data to the GNSO Council and subsequently the ICANN Board (before 25 May 2019) should not be held up by work that may still be ongoing in relation to the EPDP Team’s recommendations for a System for Accredited Access to Non-Public Registration Data.” 2. The Phase One Initial Report was delivered on 21 November and public comments were received, analyzed and incorporated. During the chartering process, the GNSO Council drafting team agreed, after much negotiation, to consider initiating the Phase Two work after the publication of the Phase One Initial Report, rather than after the Phase One Final Report, with the hope/expectation that the gating questions would have been sufficiently answered and the foundation for Phase Two would have been established. Unfortunately, as we all know, the Phase One Initial Report was not sufficiently complete, the gating questions were not yet addressed, and much more work was required before Phase Two could begin. Fortunately, with the current Phase One Final Report nearly complete, the EPDP will be able to begin work on Phase Two in short order. 3. As everyone should have seen in my email to the Council list last night (responding to Rafik’s note submitting the draft Final Report and Council Motion), our proposed motion will approve the Phase One Final Report and Consensus Policy recommendations AND signal the Council’s agreement (through non-objection) that the Phase Two work can begin. This is a significant moment where the EPDP WG is recommending a Consensus Policy replacement to the Temp Spec to be confirmed by Council and ICANN Board, it has substantially answered the gating questions, and it also agreed to defer certain issues to Phase Two. This is the definition of bottom-up consensus policy-making, and the GNSO Council looks forward to approving the Phase One Final Report, delivering it to the Board, and to supporting the EPDP WG in its Phase Two work on a System for Standardized Access to Non-Public Registration Data, or Uniform Access Model. To summarize: * The EPDP WG was chartered to have two distinct phases, one on the Temp Spec, the other on a System for Standardized Access to Non-Public Registration Data and the Annex to the Temporary Specification (Important Issues for Further Community Action). * The current report is the Final Report from Phase One. * The GNSO Council is expected to approve the Phase One Final Report replacing the Temp Spec AND authorize the EPDP WG to move to Phase Two. * Following GNSO PDP operating procedures and the ICANN bylaws, the EPDP WG recommendations to replace the Temp Spec will need to be approved by GNSO Council and the ICANN Board to ensure they are Consensus Policies and enforceable by ICANN Org. * The EPDP Charter is clear that the work on the System for Standardized Access is the next critical phase and it will receive the full support of the GNSO Council and ICANN Org. * Without Council approval of the Phase One Final Report, and without a new Consensus Policy to replace the Temp Spec before May 25, 2019, there will be no work on Phase Two. I hope this helps provide clarity around the views and intent of the GNSO Council as we initiated this important work and our expectations for the coming weeks. I appreciate the opportunity to review and reflect on the Charter and the work of the EPDP and I’m impressed by the group’s output in a very compressed timeframe. Please let me know if anyone has follow up questions. Otherwise, we’ll look forward to considering the EPDP WG Phase One Final Report during our 21 February and/or 4 March GNSO Council meetings. Regards, Keith Drazek, GNSO Chair From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Marie Pattullo Sent: Tuesday, February 12, 2019 12:36 PM To: council@gnso.icann.org<mailto:council@gnso.icann.org> Cc: Mark Svancarek (CELA) <marksv@microsoft.com<mailto:marksv@microsoft.com>>; Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>; Margie Milam <margiemilam@fb.com<mailto:margiemilam@fb.com>> Subject: [EXTERNAL] [council] FW: [Gnso-epdp-team] FYI Motion For EPDP Final Report Approval Importance: High Dear all, I’ve been asked to send the below message to you from Margie, on behalf of the BC’s EPDP participants. I’m copying them here for ease. We’d appreciate your thoughts. Thanks Marie Hi – Thank you for sharing this note. I am genuinely confused about the directions given to the GNSO Council since this report – although it is misnamed a “Final Report” is really only an “Phase 1 Interim Report” since the PDP has not concluded, and the charter questions have not been answered. As a result, is seems that the voting thresholds to create a consensus policy and the vote required under the Bylaws do not yet apply until the Phase 2 work is complete. I understand the desire to call this a Final Report, but there is a significant amount of work that has not been done yet, as outlined in the draft report being circulated, with key areas missing, such as: …the EPDP Team is, at a minimum, expected to consider the following elements of the Temporary Specification and answer the following charter questions. (p.3, Mission and Scope, emphasis added) This passage sets forth the minimum requirements necessary for successful completion of the EPDP. However, one set of questions (see p.7 of the charter) -- dealing with access to non-public registration data -- is entirely unaddressed by the EPDP team. Further, according to the charter: System for Standardized Access to Non-Public Registration Data Work on this topic shall begin once the gating questions above have been answered and finalized in preparation for the Temporary Specification initial report. (p.7, emphasis added) The initial Phase 1 report was published in November 2018, with the “gating questions” (Parts 2(b), 2(c) and 2(f)) sufficiently addressed (see EPDP initial report<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_de...>). Per the charter, work on an access model should have begun late last year. Instead this work has been deferred to Phase 2 of the team’s work. What is unclear is when the EPDP team will take up its remaining responsibilities under the charter and produce an actual “final” report (not merely a report on the conclusion of Phase 1), inclusive of Phases 1 and 2. Additionally, Section 2(j) of the charter addresses “Reasonable Access.” In what is labeled the draft final report<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_dis...>, the charter’s section 2(j) questions are only partially answered, and included is a recommendation that the rest of the details be worked out in the implementation phase. Again, the EPDP team’s work is not yet finished, and it is premature to consider the current “consensus calls” instructive since this is an incomplete report, and true consensus can only truly be determined when the entire package (Phase 1 and Phase 2) of recommendations is developed. As a result, the report should be renamed, and the Council’s instructions should be updated accordingly. All the best, Margie From: Gnso-epdp-team <gnso-epdp-team-bounces@icann.org<mailto:gnso-epdp-team-bounces@icann.org>> on behalf of Rafik Dammak <rafik.dammak@gmail.com<mailto:rafik.dammak@gmail.com>> Date: Tuesday, February 12, 2019 at 3:43 AM To: "gnso-epdp-team@icann.org<mailto:gnso-epdp-team@icann.org>" <gnso-epdp-team@icann.org<mailto:gnso-epdp-team@icann.org>> Subject: [Gnso-epdp-team] FYI Motion For EPDP Final Report Approval hi all, Please find below the email sent to GNSO council to submit the motion for council consideration to approve the final report. You can find the latest version of the report posted in word and redline version on the wiki space https://community.icann.org/display/EOTSFGRD/g.+Draft+Final+Report<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_display_EOTSFGRD_g.-2BDraft-2BFinal-2BReport&d=DwMFaQ&c=5VD0RTtNlTh3ycd41b3MUw&r=_4XWSt8rUHZPiRG6CoP4Fnk_CCk4p550lffeMi3E1z8&m=2bKdeEUYzoij8WxciKZVb5VVqVK3V3yRZ0UzXrF7ptk&s=O_3E1UObrwyVNxfNzSbSJ486aS60ILTVbUwdZSmPYPM&e=>. Best Regards, Rafik ---------- Forwarded message --------- From: Rafik Dammak <rafik.dammak@gmail.com<mailto:rafik.dammak@gmail.com>> Date: mar. 12 févr. 2019 à 08:10 Subject: Motion For EPDP Final Report Approval To: Council GNSO <council@gnso.icann.org<mailto:council@gnso.icann.org>> Hi all, I am glad to submit today the motion for the approval of EPDP Final Report Please find attached the motion and the draft final report. That version of the report is being currently reviewed by EPDP team members during this week - "quiet time". You will find below a cover letter from the EPDP leadership team giving more details in that regard. The motion may need to be amended in due time to be in line with the level of support for the recommendations in the Final Report. Best Regards, Rafik Dammak ------------------------------------------------------------------------------------------------- Dear Councillors: We are pleased to present this Draft Final EPDP Report Final Report of the Temporary Specification for gTLD Registration Data. The purpose in sending this draft Final Report is so that you can become acquainted with its layout and contents in advance of the release of the Final Report, expected on 20 February. It is hoped that this early release will facilitate your review of the final document. The EPDP Team is grateful to have two additional weeks for its deliberations.We are using the first week as a sort of “quiet period” to review the draft Final Report and have scheduled meetings for next week to reach conclusions on open issues. So we expect so substantive and non-substantive amendments to the report. With regard to the level of consensus, the report indicates those items where: • The Chair has indicated a consensus level and the EPDP Team has had the opportunity to review and comment on that designation • The Chair has indicated a level of Consensus and the EPDP Team has not yet had the opportunity to review and comment on that designation • The Chair has not made a designation yet because the issue is still open for some discussion. In many (nearly all) of the open recommendations, we are very close to final language but we have attempted to be conservative in the consensus designation and so have left some of these recommendations with no designation as of yet. The language you are reading in this report is close to final. Sections that still remain open are designated with brackets. The next steps for those sections are highlighted in yellow. We will also conduct a final Consensus call on the entire document when the report is final to identify any issues raised by the interplay between the Recommendations. Finally, and there will be more about this when the final report is delivered, this work product represents a significant sacrifice in time and effort by the working group members and, more significantly, a willingness by them to collaborate, cooperate, and compromise for our common goals. Best regards, EPDP Leadership Team