Update on Closed Generics
Dear Councilors, As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic. The dialogue participants have discussed the Chairs' joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs' letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided. The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group's community wiki space and other relevant documentation, and the participants' feedback on the consensus building techniques and approaches that were used for the dialogue. The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that: (1) closed generic gTLDs should not be viewed as a dependency for the next round; (2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed; and (3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue. Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs' decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information. Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants' feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions. Best regards, John Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately either by phone (800-237-2000) or reply to this e-mail and delete all copies of this message.
Hi John: Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome. I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head. 1. I don’t understand how the SO/AC leaders have the authority to revise the PDP final report recommendation. The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round. The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.) We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them. 2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making. The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns. Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.) During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much. This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will “give up” and implement unsupported restrictions. 3. The decision to ban closed generics for an additional round contradicts the one step the Board took. The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision. Two additional points: 1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call. 2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy. If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board. Sincerely, Kurt On 10 Aug 2023, at 7:33 am, John McElwaine via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Dear Councilors, As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic. The dialogue participants have discussed the Chairs’ joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs’ letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided. The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group’s community wiki space and other relevant documentation, and the participants’ feedback on the consensus building techniques and approaches that were used for the dialogue. The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that: (1) closed generic gTLDs should not be viewed as a dependency for the next round; (2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed; and (3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue. Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs’ decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information. Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants’ feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions. Best regards, John Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately either by phone (800-237-2000) or reply to this e-mail and delete all copies of this message. <Message from ALAC GAC GNSO Chairs to Closed Generics Facilitated Dialogue Participants - FINAL - 5 August 2023 (002).pdf>_______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
Hi Kurt, Thanks for this. I'm not sure I am understanding your concern. One of the basic tenants that everyone in the SubPro PDP agreed to was that, absent any changes captured in the Recommendations, that the status quo would prevail. All the letter does is ask for that. I feel better about sticking with the WG's inability to change the status quo than I do asking the Board to write a policy when the community couldn't agree to anything, even after two valiant efforts. We tried in the WG, we couldn't get there, the status quo should prevail. We tried again at the request of the Board at the SO/AC level, we couldn't get there, the status quo should prevail. The letter leaves open the possibility of future community work on this but notes there is no bandwidth or appetite to do so and we don't want the next round held up. Help me understand you concern about asking the Board to maintain the status quo until/if the community comes up with a policy on these. Best, Paul From: council <council-bounces@gnso.icann.org> On Behalf Of kurt kjpritz.com via council Sent: Thursday, August 10, 2023 3:45 AM To: John McElwaine <john.mcelwaine@nelsonmullins.com> Cc: GNSO Council <council@gnso.icann.org> Subject: Re: [council] Update on Closed Generics Hi John: Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome. I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head. 1. I don't understand how the SO/AC leaders have the authority to revise the PDP final report recommendation. The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round. The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.) We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them. 2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making. The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns. Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.) During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much. This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will "give up" and implement unsupported restrictions. 3. The decision to ban closed generics for an additional round contradicts the one step the Board took. The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision. Two additional points: 1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call. 2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy. If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board. Sincerely, Kurt On 10 Aug 2023, at 7:33 am, John McElwaine via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Dear Councilors, As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic. The dialogue participants have discussed the Chairs' joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs' letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided. The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group's community wiki space and other relevant documentation, and the participants' feedback on the consensus building techniques and approaches that were used for the dialogue. The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that: (1) closed generic gTLDs should not be viewed as a dependency for the next round; (2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed; and (3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue. Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs' decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information. Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants' feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions. Best regards, John Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately either by phone (800-237-2000) or reply to this e-mail and delete all copies of this message. <Message from ALAC GAC GNSO Chairs to Closed Generics Facilitated Dialogue Participants - FINAL - 5 August 2023 (002).pdf>_______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. This email originated from outside the firm. Please use caution.
Hi Kurt and Paul, As I see it, the issue has come back to what constitutes the "status quo". This issue was hotly debated in the Sub Pro Working Group. Some maintained that there was no prohibition on the applications for Closed Generics because none was contained in the 2012 AGB. Others maintained that due to the GAC Advice and Board direction to "pause" pending policy development, the "status quo" is actually a "pause" which would be continued at the start of the next round. The risk I see for the ICANN Board in the latter situation is that those existing applications for Closed Generics (which are on hold) as well as any future applications to be taken in the next round (not prohibited by this recommendation) would build a case for Request for Reconsideration if the Board does not allow those applications to move forward. For example, the grounds might be Applicant Freedom of Expression under the Human Rights Core Value and the underlying principle of Applicant Freedom of Expression that has been affirmed by subsequent PDP work and is now being confirmed in the Sub Pro IRT process. Another factor is that the Board has consistently declined to make policy. And I'm not certain that the GNSO Council actually has the authority to direct the Board to make a Closed Generic policy. Are you gentlemen certain that this is kosher? Certainly I agree this issue should not hold up the next round but of course there is a year to go. If the Board is willing to take a decision on this, that is one scenario. If the Board is not willing to take a decision on this and/or is concerned about the risk of expensive litigation over a possible ban, then that is another scenario. Has anyone spoken with our Sub Pro Board reps about this approach? (They are copied here.) Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com On Thu, Aug 10, 2023 at 10:15 AM Paul McGrady via council < council@gnso.icann.org> wrote:
Hi Kurt,
Thanks for this. I’m not sure I am understanding your concern. One of the basic tenants that everyone in the SubPro PDP agreed to was that, absent any changes captured in the Recommendations, that the status quo would prevail. All the letter does is ask for that. I feel better about sticking with the WG’s inability to change the status quo than I do asking the Board to write a policy when the community couldn’t agree to anything, even after two valiant efforts. We tried in the WG, we couldn’t get there, the status quo should prevail. We tried again at the request of the Board at the SO/AC level, we couldn’t get there, the status quo should prevail. The letter leaves open the possibility of future community work on this but notes there is no bandwidth or appetite to do so and we don’t want the next round held up. Help me understand you concern about asking the Board to maintain the status quo until/if the community comes up with a policy on these.
Best,
Paul
*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *kurt kjpritz.com via council *Sent:* Thursday, August 10, 2023 3:45 AM *To:* John McElwaine <john.mcelwaine@nelsonmullins.com> *Cc:* GNSO Council <council@gnso.icann.org> *Subject:* Re: [council] Update on Closed Generics
Hi John:
Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome.
I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head.
1. I don’t understand how the SO/AC leaders have the authority to revise the PDP final report recommendation.
The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round.
The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.)
We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them.
2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making.
The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns.
Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.)
During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much.
This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will “give up” and implement unsupported restrictions.
3. The decision to ban closed generics for an additional round contradicts the one step the Board took.
The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision.
Two additional points:
1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call.
2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy.
If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board.
Sincerely,
Kurt
On 10 Aug 2023, at 7:33 am, John McElwaine via council < council@gnso.icann.org> wrote:
Dear Councilors,
As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic.
The dialogue participants have discussed the Chairs’ joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs’ letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided.
The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group’s community wiki space and other relevant documentation, and the participants’ feedback on the consensus building techniques and approaches that were used for the dialogue.
The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that:
(1) closed generic gTLDs should not be viewed as a dependency for the next round;
(2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed*;* and
(3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue.
Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs’ decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information.
Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants’ feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions.
Best regards,
John
*Confidentiality Notice* This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately either by phone (800-237-2000) or reply to this e-mail and delete all copies of this message.
<Message from ALAC GAC GNSO Chairs to Closed Generics Facilitated Dialogue Participants - FINAL - 5 August 2023 (002).pdf> _______________________________________________ council mailing list council@gnso.icann.org https://mm.icann.org/mailman/listinfo/council
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Replying to Paul (Hi Paul): As pointed out by Anne (and Rubens in a parallel email exchange), the question of status quo is not settled. That is the reason the SubPro working group specifically asked the Board to settle the question. The Board essentially created a new, temporary policy when it introduced an additional restriction into the criteria for delegating new TLDs. (I say temporary because the restriction was time-limited in a way.) The SubPro final report does not recommend an extension of that restriction by way of a “pause,” the report specifically recommends something else. By recommending a pause, the SO/AC leadership would be amending the final report recommendation. I wish I could be clearer. That somehow eludes me at the moment. Kurt On 11 Aug 2023, at 3:37 am, Anne ICANN <anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com>> wrote: Hi Kurt and Paul, As I see it, the issue has come back to what constitutes the "status quo". This issue was hotly debated in the Sub Pro Working Group. Some maintained that there was no prohibition on the applications for Closed Generics because none was contained in the 2012 AGB. Others maintained that due to the GAC Advice and Board direction to "pause" pending policy development, the "status quo" is actually a "pause" which would be continued at the start of the next round. The risk I see for the ICANN Board in the latter situation is that those existing applications for Closed Generics (which are on hold) as well as any future applications to be taken in the next round (not prohibited by this recommendation) would build a case for Request for Reconsideration if the Board does not allow those applications to move forward. For example, the grounds might be Applicant Freedom of Expression under the Human Rights Core Value and the underlying principle of Applicant Freedom of Expression that has been affirmed by subsequent PDP work and is now being confirmed in the Sub Pro IRT process. Another factor is that the Board has consistently declined to make policy. And I'm not certain that the GNSO Council actually has the authority to direct the Board to make a Closed Generic policy. Are you gentlemen certain that this is kosher? Certainly I agree this issue should not hold up the next round but of course there is a year to go. If the Board is willing to take a decision on this, that is one scenario. If the Board is not willing to take a decision on this and/or is concerned about the risk of expensive litigation over a possible ban, then that is another scenario. Has anyone spoken with our Sub Pro Board reps about this approach? (They are copied here.) Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Thu, Aug 10, 2023 at 10:15 AM Paul McGrady via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Hi Kurt, Thanks for this. I’m not sure I am understanding your concern. One of the basic tenants that everyone in the SubPro PDP agreed to was that, absent any changes captured in the Recommendations, that the status quo would prevail. All the letter does is ask for that. I feel better about sticking with the WG’s inability to change the status quo than I do asking the Board to write a policy when the community couldn’t agree to anything, even after two valiant efforts. We tried in the WG, we couldn’t get there, the status quo should prevail. We tried again at the request of the Board at the SO/AC level, we couldn’t get there, the status quo should prevail. The letter leaves open the possibility of future community work on this but notes there is no bandwidth or appetite to do so and we don’t want the next round held up. Help me understand you concern about asking the Board to maintain the status quo until/if the community comes up with a policy on these. Best, Paul From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of kurt kjpritz.com<http://kjpritz.com/> via council Sent: Thursday, August 10, 2023 3:45 AM To: John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> Cc: GNSO Council <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Update on Closed Generics Hi John: Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome. I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head. 1. I don’t understand how the SO/AC leaders have the authority to revise the PDP final report recommendation. The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round. The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.) We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them. 2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making. The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns. Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.) During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much. This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will “give up” and implement unsupported restrictions. 3. The decision to ban closed generics for an additional round contradicts the one step the Board took. The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision. Two additional points: 1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call. 2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy. If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board. Sincerely, Kurt On 10 Aug 2023, at 7:33 am, John McElwaine via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Dear Councilors, As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic. The dialogue participants have discussed the Chairs’ joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs’ letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided. The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group’s community wiki space and other relevant documentation, and the participants’ feedback on the consensus building techniques and approaches that were used for the dialogue. The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that: (1) closed generic gTLDs should not be viewed as a dependency for the next round; (2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed; and (3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue. Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs’ decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information. Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants’ feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions. Best regards, John Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately either by phone (800-237-2000) or reply to this e-mail and delete all copies of this message. <Message from ALAC GAC GNSO Chairs to Closed Generics Facilitated Dialogue Participants - FINAL - 5 August 2023 (002).pdf>_______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. This email originated from outside the firm. Please use caution. _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
Hi Kurt, A couple thoughts here: 1. We have not communicated a decision or feedback to Board yet, so we have time to discuss our messaging (so far, the SO/AC chairs have sent a letter to the dialogue participants and the dialogue participants have agreed with the letter’s sentiment). 2. I think council is in agreement that work on closed generics cannot be a dependency for the next round and the Facilitated Dialogue on Closed Generic gTLDs should not continue to be the vehicle advancing this work (please let me know if I’m oversimplifying). If this is correct, I think we can simplify this issue to: how or if we should frame the “status quo” to the Board. More specifically, we can take a closer look at this proposed language from the letter to the dialogue participants: * “until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed;” 3. Perhaps we should modify this part to say closer to: “given that there is no community-developed policy on closed generics (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement), we acknowledge that the Board may not allow closed generics to proceed (in line with their position from the 20201 round) until policy is developed.” In other words, we don’t need to instruct the Board on what the status quo is, rather, we are informing them that a policy on closed generics has not been finalized and we recommend not delaying the next round until this policy work is completed. I’m sure I have point 3 wrong as I am not as well-versed in subpro as others, but we can discuss further to make sure we are all aligned. Thanks, Greg From: council <council-bounces@gnso.icann.org> On Behalf Of kurt kjpritz.com via council Sent: Sunday, August 13, 2023 7:54 PM To: Paul McGrady <paul@elstermcgrady.com> Cc: Avri Doria <avri.doria@board.icann.org>; GNSO Council <council@gnso.icann.org> Subject: RE: [EXTERNAL] [council] Update on Closed Generics CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you can confirm the sender and know the content is safe. Replying to Paul (Hi Paul): As pointed out by Anne (and Rubens in a parallel email exchange), the question of status quo is not settled. That is the reason the SubPro working group specifically asked the Board to settle the question. The Board essentially created a new, temporary policy when it introduced an additional restriction into the criteria for delegating new TLDs. (I say temporary because the restriction was time-limited in a way.) The SubPro final report does not recommend an extension of that restriction by way of a “pause,” the report specifically recommends something else. By recommending a pause, the SO/AC leadership would be amending the final report recommendation. I wish I could be clearer. That somehow eludes me at the moment. Kurt On 11 Aug 2023, at 3:37 am, Anne ICANN <anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com>> wrote: Hi Kurt and Paul, As I see it, the issue has come back to what constitutes the "status quo". This issue was hotly debated in the Sub Pro Working Group. Some maintained that there was no prohibition on the applications for Closed Generics because none was contained in the 2012 AGB. Others maintained that due to the GAC Advice and Board direction to "pause" pending policy development, the "status quo" is actually a "pause" which would be continued at the start of the next round. The risk I see for the ICANN Board in the latter situation is that those existing applications for Closed Generics (which are on hold) as well as any future applications to be taken in the next round (not prohibited by this recommendation) would build a case for Request for Reconsideration if the Board does not allow those applications to move forward. For example, the grounds might be Applicant Freedom of Expression under the Human Rights Core Value and the underlying principle of Applicant Freedom of Expression that has been affirmed by subsequent PDP work and is now being confirmed in the Sub Pro IRT process. Another factor is that the Board has consistently declined to make policy. And I'm not certain that the GNSO Council actually has the authority to direct the Board to make a Closed Generic policy. Are you gentlemen certain that this is kosher? Certainly I agree this issue should not hold up the next round but of course there is a year to go. If the Board is willing to take a decision on this, that is one scenario. If the Board is not willing to take a decision on this and/or is concerned about the risk of expensive litigation over a possible ban, then that is another scenario. Has anyone spoken with our Sub Pro Board reps about this approach? (They are copied here.) Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Thu, Aug 10, 2023 at 10:15 AM Paul McGrady via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Hi Kurt, Thanks for this. I’m not sure I am understanding your concern. One of the basic tenants that everyone in the SubPro PDP agreed to was that, absent any changes captured in the Recommendations, that the status quo would prevail. All the letter does is ask for that. I feel better about sticking with the WG’s inability to change the status quo than I do asking the Board to write a policy when the community couldn’t agree to anything, even after two valiant efforts. We tried in the WG, we couldn’t get there, the status quo should prevail. We tried again at the request of the Board at the SO/AC level, we couldn’t get there, the status quo should prevail. The letter leaves open the possibility of future community work on this but notes there is no bandwidth or appetite to do so and we don’t want the next round held up. Help me understand you concern about asking the Board to maintain the status quo until/if the community comes up with a policy on these. Best, Paul From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of kurt kjpritz.com<http://kjpritz.com/> via council Sent: Thursday, August 10, 2023 3:45 AM To: John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> Cc: GNSO Council <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Update on Closed Generics Hi John: Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome. I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head. 1. I don’t understand how the SO/AC leaders have the authority to revise the PDP final report recommendation. The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round. The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.) We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them. 2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making. The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns. Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.) During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much. This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will “give up” and implement unsupported restrictions. 3. The decision to ban closed generics for an additional round contradicts the one step the Board took. The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision. Two additional points: 1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call. 2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy. If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board. Sincerely, Kurt On 10 Aug 2023, at 7:33 am, John McElwaine via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Dear Councilors, As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic. The dialogue participants have discussed the Chairs’ joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs’ letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided. The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group’s community wiki space and other relevant documentation, and the participants’ feedback on the consensus building techniques and approaches that were used for the dialogue. The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that: (1) closed generic gTLDs should not be viewed as a dependency for the next round; (2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed; and (3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue. Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs’ decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information. Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants’ feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions. Best regards, John Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately either by phone (800-237-2000) or reply to this e-mail and delete all copies of this message. <Message from ALAC GAC GNSO Chairs to Closed Generics Facilitated Dialogue Participants - FINAL - 5 August 2023 (002).pdf>_______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. This email originated from outside the firm. Please use caution. _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
Thanks Greg - The point you make that there is as yet no official statement from Council to the Board on this issue is an important one. I think there is rough consensus at the Council level that we don't want the next round to be delayed by this issue. I think two significant questions remain as to the following: Issue #1. Whether to accept applications for Closed Generics in the next round or to pause such applications pending future Board action or GNSO policy development efforts. The draft statements put forward so far would endorse accepting applications and that is also a policy statement which essentially defines the "status quo" as permitting such applications. (After all, closed generic applications could block open generic applications in that instance.) This is tricky because the GAC has reiterated that its previous Closed Generic advice is "standing advice". Would it be a solution for the Board to simply accept that advice in relation to a Closed Generic application and then accept applications in the next round but require the Applicant to prove that the application serves a public interest goal without specifying any standards that apply for that proof? Or could the Board say that it cannot accept the advice from the GAC because it would require ICANN to weigh the content of the Closed Generic application and to police the public interest goal issue during the term of the contract award, meaning the requirement of the GAC advice is out of scope for ICANN's mission as overly content -related? Maybe the Council should just say "don't delay the next round" and should not take a policy position on whether or not to accept Closed Generic applications when the next round opens, i.e. leave that to the Board to decide that policy issue as well? Issue #2. Whether the Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. (I think it's possible the Board has the authority to request a formal policy process - not sure whether Council has the right to refuse to do so.) Did the Council already decide it would not undertake an existing policy process when it authorized the Facilitated Dialogue process? Does the statement need to reflect a Council decision in this regard and if so, does that need a separate vote from Council? Are we risking delay of the next round over the Council's failure to act on this policy issue? The Board invoked the Facilitated Dialogue process outside normal policy development channels but it appears that process failed. Any thoughts re the above considerations ? Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com On Mon, Aug 14, 2023 at 6:51 AM DiBiase, Gregory via council < council@gnso.icann.org> wrote:
Hi Kurt,
A couple thoughts here:
1. We have not communicated a decision or feedback to Board yet, so we have time to discuss our messaging (so far, the SO/AC chairs have sent a letter to the dialogue participants and the dialogue participants have agreed with the letter’s sentiment). 2. I think council is in agreement that work on closed generics cannot be a dependency for the next round and the Facilitated Dialogue on Closed Generic gTLDs should not continue to be the vehicle advancing this work (please let me know if I’m oversimplifying). If this is correct, I think we can simplify this issue to: how or if we should frame the “status quo” to the Board. More specifically, we can take a closer look at this proposed language from the letter to the dialogue participants: 1. “until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed;” 3. Perhaps we should modify this part to say closer to: “given that there is no community-developed policy on closed generics (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement), we acknowledge that the Board may not allow closed generics to proceed (in line with their position from the 20201 round) until policy is developed.” In other words, we don’t need to instruct the Board on what the status quo is, rather, we are informing them that a policy on closed generics has not been finalized and we recommend not delaying the next round until this policy work is completed.
I’m sure I have point 3 wrong as I am not as well-versed in subpro as others, but we can discuss further to make sure we are all aligned.
Thanks,
Greg
*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *kurt kjpritz.com via council *Sent:* Sunday, August 13, 2023 7:54 PM *To:* Paul McGrady <paul@elstermcgrady.com> *Cc:* Avri Doria <avri.doria@board.icann.org>; GNSO Council < council@gnso.icann.org> *Subject:* RE: [EXTERNAL] [council] Update on Closed Generics
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Replying to Paul (Hi Paul):
As pointed out by Anne (and Rubens in a parallel email exchange), the question of status quo is not settled. That is the reason the SubPro working group specifically asked the Board to settle the question.
The Board essentially created a new, temporary policy when it introduced an additional restriction into the criteria for delegating new TLDs. (I say temporary because the restriction was time-limited in a way.)
The SubPro final report does not recommend an extension of that restriction by way of a “pause,” the report specifically recommends something else. By recommending a pause, the SO/AC leadership would be amending the final report recommendation.
I wish I could be clearer. That somehow eludes me at the moment.
Kurt
On 11 Aug 2023, at 3:37 am, Anne ICANN <anneicanngnso@gmail.com> wrote:
Hi Kurt and Paul,
As I see it, the issue has come back to what constitutes the "status quo". This issue was hotly debated in the Sub Pro Working Group. Some maintained that there was no prohibition on the applications for Closed Generics because none was contained in the 2012 AGB. Others maintained that due to the GAC Advice and Board direction to "pause" pending policy development, the "status quo" is actually a "pause" which would be continued at the start of the next round. The risk I see for the ICANN Board in the latter situation is that those existing applications for Closed Generics (which are on hold) as well as any future applications to be taken in the next round (not prohibited by this recommendation) would build a case for Request for Reconsideration if the Board does not allow those applications to move forward. For example, the grounds might be Applicant Freedom of Expression under the Human Rights Core Value and the underlying principle of Applicant Freedom of Expression that has been affirmed by subsequent PDP work and is now being confirmed in the Sub Pro IRT process.
Another factor is that the Board has consistently declined to make policy. And I'm not certain that the GNSO Council actually has the authority to direct the Board to make a Closed Generic policy. Are you gentlemen certain that this is kosher?
Certainly I agree this issue should not hold up the next round but of course there is a year to go. If the Board is willing to take a decision on this, that is one scenario. If the Board is not willing to take a decision on this and/or is concerned about the risk of expensive litigation over a possible ban, then that is another scenario. Has anyone spoken with our Sub Pro Board reps about this approach? (They are copied here.)
Thank you,
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso@gmail.com
On Thu, Aug 10, 2023 at 10:15 AM Paul McGrady via council < council@gnso.icann.org> wrote:
Hi Kurt,
Thanks for this. I’m not sure I am understanding your concern. One of the basic tenants that everyone in the SubPro PDP agreed to was that, absent any changes captured in the Recommendations, that the status quo would prevail. All the letter does is ask for that. I feel better about sticking with the WG’s inability to change the status quo than I do asking the Board to write a policy when the community couldn’t agree to anything, even after two valiant efforts. We tried in the WG, we couldn’t get there, the status quo should prevail. We tried again at the request of the Board at the SO/AC level, we couldn’t get there, the status quo should prevail. The letter leaves open the possibility of future community work on this but notes there is no bandwidth or appetite to do so and we don’t want the next round held up. Help me understand you concern about asking the Board to maintain the status quo until/if the community comes up with a policy on these.
Best,
Paul
*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *kurt kjpritz.com via council *Sent:* Thursday, August 10, 2023 3:45 AM *To:* John McElwaine <john.mcelwaine@nelsonmullins.com> *Cc:* GNSO Council <council@gnso.icann.org> *Subject:* Re: [council] Update on Closed Generics
Hi John:
Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome.
I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head.
1. I don’t understand how the SO/AC leaders have the authority to revise the PDP final report recommendation.
The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round.
The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.)
We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them.
2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making.
The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns.
Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.)
During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much.
This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will “give up” and implement unsupported restrictions.
3. The decision to ban closed generics for an additional round contradicts the one step the Board took.
The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision.
Two additional points:
1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call.
2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy.
If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board.
Sincerely,
Kurt
On 10 Aug 2023, at 7:33 am, John McElwaine via council < council@gnso.icann.org> wrote:
Dear Councilors,
As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic.
The dialogue participants have discussed the Chairs’ joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs’ letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided.
The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group’s community wiki space and other relevant documentation, and the participants’ feedback on the consensus building techniques and approaches that were used for the dialogue.
The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that:
(1) closed generic gTLDs should not be viewed as a dependency for the next round;
(2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed*;* and
(3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue.
Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs’ decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information.
Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants’ feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions.
Best regards,
John
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Hi Anne I wanted to share some thoughts on the two issues you raised. Issue #1 I read Greg’s email as merely addressing the concern Kurt raised that we should not be instructing the Board what to do, rather than expressing some underlying intent to endorse accepting closed generic applications. Is it the use of the wording “unless and until there is a community-developed consensus policy in place, any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed” in the original Chairs letter to the dialogue group that you feel implies this? My assumption would be that this isn’t the intent. “Should not proceed” in the last round was ICANN-speak for rejected or refused. Council certainly should discuss this, however, to be sure we are in agreement on what is the intent – and then the letter to the Board can be drafted accordingly. To my mind, it would make no sense for Council to encourage that applicants to be permitted to apply for a closed generic, with that application then being placed on indefinite hold (if that were how one interpreted “should not proceed”) unless and until some policy is developed which, the Chairs letter indicates, we may not even be working on. If the Board decision is that closed generics will not be permitted to proceed, therefore, it would be preferable if the AGB makes it clear to applicants that they should not apply for a string if that is their intent. If an applicant nevertheless does submit an application for what is intended to be a closed generic, they could be given the option either to withdraw or to amend their application to be non-closed, as was the case in 2012. For the avoidance of doubt there was a third option in the 2012 round, to have the application placed on hold pending development of policy by SubPro. No applicants selected this option in the last round. For the future, it might be reasonable for applicants to have this option if policy work were underway, but not if it isn’t. Issue #2 I don’t believe that Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. No doubt Council will discuss this next week. I also do not believe that Council is required to develop a policy. SubPro attempted to do so and could not agree on recommendations. The Board invited the GNSO Council and GAC to start the facilitated dialogue on a workable framework “in the interest of helping the community make progress”. The GAC and/or GNSO Council could have refused to try this approach at that point, and so it is surely also open to either or both to inform the Board that we have taken this as far as we can for now. If there were to be further policy work, I think many of us are of the view that you cannot keep putting the same people in a room and expecting them to somehow come out with a different outcome. The community has tried to develop a policy on this and has been unable to do so. As was noted at SubPro 23.1: The Working Group believes that if this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group [emphasis added]. Susan Susan Payne Head of Legal Policy Com Laude T +44 (0) 20 7421 8250 Ext 255 [cid:image001.png@01D9D052.53EC6FC0]<https://comlaude.com/> Follow us on Linkedin<https://t-uk.xink.io/Tracking/Index/pRkAAGVfAADw_RQA0> and YouTube<https://t-uk.xink.io/Tracking/Index/bhkAAGVfAADw_RQA0> From: council <council-bounces@gnso.icann.org> On Behalf Of Anne ICANN via council Sent: Monday, August 14, 2023 5:18 PM To: DiBiase, Gregory <dibiase@amazon.com> Cc: COUNCIL@GNSO.ICANN.ORG; Avri Doria <avri.doria@board.icann.org> Subject: Re: [council] Update on Closed Generics Thanks Greg - The point you make that there is as yet no official statement from Council to the Board on this issue is an important one. I think there is rough consensus at the Council level that we don't want the next round to be delayed by this issue. I think two significant questions remain as to the following: Issue #1. Whether to accept applications for Closed Generics in the next round or to pause such applications pending future Board action or GNSO policy development efforts. The draft statements put forward so far would endorse accepting applications and that is also a policy statement which essentially defines the "status quo" as permitting such applications. (After all, closed generic applications could block open generic applications in that instance.) This is tricky because the GAC has reiterated that its previous Closed Generic advice is "standing advice". Would it be a solution for the Board to simply accept that advice in relation to a Closed Generic application and then accept applications in the next round but require the Applicant to prove that the application serves a public interest goal without specifying any standards that apply for that proof? Or could the Board say that it cannot accept the advice from the GAC because it would require ICANN to weigh the content of the Closed Generic application and to police the public interest goal issue during the term of the contract award, meaning the requirement of the GAC advice is out of scope for ICANN's mission as overly content -related? Maybe the Council should just say "don't delay the next round" and should not take a policy position on whether or not to accept Closed Generic applications when the next round opens, i.e. leave that to the Board to decide that policy issue as well? Issue #2. Whether the Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. (I think it's possible the Board has the authority to request a formal policy process - not sure whether Council has the right to refuse to do so.) Did the Council already decide it would not undertake an existing policy process when it authorized the Facilitated Dialogue process? Does the statement need to reflect a Council decision in this regard and if so, does that need a separate vote from Council? Are we risking delay of the next round over the Council's failure to act on this policy issue? The Board invoked the Facilitated Dialogue process outside normal policy development channels but it appears that process failed. Any thoughts re the above considerations ? Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Mon, Aug 14, 2023 at 6:51 AM DiBiase, Gregory via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Hi Kurt, A couple thoughts here: 1. We have not communicated a decision or feedback to Board yet, so we have time to discuss our messaging (so far, the SO/AC chairs have sent a letter to the dialogue participants and the dialogue participants have agreed with the letter’s sentiment). 2. I think council is in agreement that work on closed generics cannot be a dependency for the next round and the Facilitated Dialogue on Closed Generic gTLDs should not continue to be the vehicle advancing this work (please let me know if I’m oversimplifying). If this is correct, I think we can simplify this issue to: how or if we should frame the “status quo” to the Board. More specifically, we can take a closer look at this proposed language from the letter to the dialogue participants: * “until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed;” 1. Perhaps we should modify this part to say closer to: “given that there is no community-developed policy on closed generics (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement), we acknowledge that the Board may not allow closed generics to proceed (in line with their position from the 20201 round) until policy is developed.” In other words, we don’t need to instruct the Board on what the status quo is, rather, we are informing them that a policy on closed generics has not been finalized and we recommend not delaying the next round until this policy work is completed. I’m sure I have point 3 wrong as I am not as well-versed in subpro as others, but we can discuss further to make sure we are all aligned. Thanks, Greg From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of kurt kjpritz.com<http://kjpritz.com/> via council Sent: Sunday, August 13, 2023 7:54 PM To: Paul McGrady <paul@elstermcgrady.com<mailto:paul@elstermcgrady.com>> Cc: Avri Doria <avri.doria@board.icann.org<mailto:avri.doria@board.icann.org>>; GNSO Council <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: RE: [EXTERNAL] [council] Update on Closed Generics CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you can confirm the sender and know the content is safe. Replying to Paul (Hi Paul): As pointed out by Anne (and Rubens in a parallel email exchange), the question of status quo is not settled. That is the reason the SubPro working group specifically asked the Board to settle the question. The Board essentially created a new, temporary policy when it introduced an additional restriction into the criteria for delegating new TLDs. (I say temporary because the restriction was time-limited in a way.) The SubPro final report does not recommend an extension of that restriction by way of a “pause,” the report specifically recommends something else. By recommending a pause, the SO/AC leadership would be amending the final report recommendation. I wish I could be clearer. That somehow eludes me at the moment. Kurt On 11 Aug 2023, at 3:37 am, Anne ICANN <anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com>> wrote: Hi Kurt and Paul, As I see it, the issue has come back to what constitutes the "status quo". This issue was hotly debated in the Sub Pro Working Group. Some maintained that there was no prohibition on the applications for Closed Generics because none was contained in the 2012 AGB. Others maintained that due to the GAC Advice and Board direction to "pause" pending policy development, the "status quo" is actually a "pause" which would be continued at the start of the next round. The risk I see for the ICANN Board in the latter situation is that those existing applications for Closed Generics (which are on hold) as well as any future applications to be taken in the next round (not prohibited by this recommendation) would build a case for Request for Reconsideration if the Board does not allow those applications to move forward. For example, the grounds might be Applicant Freedom of Expression under the Human Rights Core Value and the underlying principle of Applicant Freedom of Expression that has been affirmed by subsequent PDP work and is now being confirmed in the Sub Pro IRT process. Another factor is that the Board has consistently declined to make policy. And I'm not certain that the GNSO Council actually has the authority to direct the Board to make a Closed Generic policy. Are you gentlemen certain that this is kosher? Certainly I agree this issue should not hold up the next round but of course there is a year to go. If the Board is willing to take a decision on this, that is one scenario. If the Board is not willing to take a decision on this and/or is concerned about the risk of expensive litigation over a possible ban, then that is another scenario. Has anyone spoken with our Sub Pro Board reps about this approach? (They are copied here.) Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Thu, Aug 10, 2023 at 10:15 AM Paul McGrady via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Hi Kurt, Thanks for this. I’m not sure I am understanding your concern. One of the basic tenants that everyone in the SubPro PDP agreed to was that, absent any changes captured in the Recommendations, that the status quo would prevail. All the letter does is ask for that. I feel better about sticking with the WG’s inability to change the status quo than I do asking the Board to write a policy when the community couldn’t agree to anything, even after two valiant efforts. We tried in the WG, we couldn’t get there, the status quo should prevail. We tried again at the request of the Board at the SO/AC level, we couldn’t get there, the status quo should prevail. The letter leaves open the possibility of future community work on this but notes there is no bandwidth or appetite to do so and we don’t want the next round held up. Help me understand you concern about asking the Board to maintain the status quo until/if the community comes up with a policy on these. Best, Paul From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of kurt kjpritz.com<http://kjpritz.com/> via council Sent: Thursday, August 10, 2023 3:45 AM To: John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> Cc: GNSO Council <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Update on Closed Generics Hi John: Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome. I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head. 1. I don’t understand how the SO/AC leaders have the authority to revise the PDP final report recommendation. The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round. The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.) We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them. 2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making. The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns. Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.) During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much. This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will “give up” and implement unsupported restrictions. 3. The decision to ban closed generics for an additional round contradicts the one step the Board took. The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision. Two additional points: 1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call. 2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy. If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board. Sincerely, Kurt On 10 Aug 2023, at 7:33 am, John McElwaine via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Dear Councilors, As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic. The dialogue participants have discussed the Chairs’ joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs’ letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided. The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group’s community wiki space and other relevant documentation, and the participants’ feedback on the consensus building techniques and approaches that were used for the dialogue. The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that: (1) closed generic gTLDs should not be viewed as a dependency for the next round; (2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed; and (3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue. Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs’ decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information. Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants’ feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions. Best regards, John Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure. 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Something that I would like to stress from Greg's email that I believe reflects an important point: "council is in agreement that work on closed generics cannot be a dependency for the next round and the Facilitated Dialogue on Closed Generic gTLDs" Regardless of what path we end up taking, this needs to get communicated to Board and org. as our current minimal denominator. We don't need everything set in stone, but this much needs to be agreed upon. Regards, --- Mark W. Datysgeld Director at Governance Primer ICANN GNSO Councilor ________________________________ From: Susan Payne via council <council@gnso.icann.org> Sent: Wednesday, August 16, 2023 12:01 To: Anne ICANN; COUNCIL@GNSO.ICANN.ORG Subject: Re: [council] Update on Closed Generics
Hi Anne I wanted to share some thoughts on the two issues you raised. Issue #1 I read Greg’s email as merely addressing the concern Kurt raised that we should not be instructing the Board what to do, rather than expressing some underlying intent to endorse accepting closed generic applications. Is it the use of the wording “unless and until there is a community-developed consensus policy in place, any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed” in the original Chairs letter to the dialogue group that you feel implies this? My assumption would be that this isn’t the intent. “Should not proceed” in the last round was ICANN-speak for rejected or refused. Council certainly should discuss this, however, to be sure we are in agreement on what is the intent – and then the letter to the Board can be drafted accordingly. To my mind, it would make no sense for Council to encourage that applicants to be permitted to apply for a closed generic, with that application then being placed on indefinite hold (if that were how one interpreted “should not proceed”) unless and until some policy is developed which, the Chairs letter indicates, we may not even be working on. If the Board decision is that closed generics will not be permitted to proceed, therefore, it would be preferable if the AGB makes it clear to applicants that they should not apply for a string if that is their intent. If an applicant nevertheless does submit an application for what is intended to be a closed generic, they could be given the option either to withdraw or to amend their application to be non-closed, as was the case in 2012. For the avoidance of doubt there was a third option in the 2012 round, to have the application placed on hold pending development of policy by SubPro. No applicants selected this option in the last round. For the future, it might be reasonable for applicants to have this option if policy work were underway, but not if it isn’t. Issue #2 I don’t believe that Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. No doubt Council will discuss this next week. I also do not believe that Council is required to develop a policy. SubPro attempted to do so and could not agree on recommendations. The Board invited the GNSO Council and GAC to start the facilitated dialogue on a workable framework “in the interest of helping the community make progress”. The GAC and/or GNSO Council could have refused to try this approach at that point, and so it is surely also open to either or both to inform the Board that we have taken this as far as we can for now. If there were to be further policy work, I think many of us are of the view that you cannot keep putting the same people in a room and expecting them to somehow come out with a different outcome. The community has tried to develop a policy on this and has been unable to do so. As was noted at SubPro 23.1: The Working Group believes that if this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group [emphasis added]. Susan Susan Payne Head of Legal Policy Com Laude T +44 (0) 20 7421 8250 Ext 255
Follow us on Linkedin and YouTube From: council <council-bounces@gnso.icann.org> On Behalf Of Anne ICANN via council Sent: Monday, August 14, 2023 5:18 PM To: DiBiase, Gregory <dibiase@amazon.com> Cc: COUNCIL@GNSO.ICANN.ORG; Avri Doria <avri.doria@board.icann.org> Subject: Re: [council] Update on Closed Generics Thanks Greg - The point you make that there is as yet no official statement from Council to the Board on this issue is an important one. I think there is rough consensus at the Council level that we don't want the next round to be delayed by this issue. I think two significant questions remain as to the following: Issue #1. Whether to accept applications for Closed Generics in the next round or to pause such applications pending future Board action or GNSO policy development efforts. The draft statements put forward so far would endorse accepting applications and that is also a policy statement which essentially defines the "status quo" as permitting such applications. (After all, closed generic applications could block open generic applications in that instance.) This is tricky because the GAC has reiterated that its previous Closed Generic advice is "standing advice". Would it be a solution for the Board to simply accept that advice in relation to a Closed Generic application and then accept applications in the next round but require the Applicant to prove that the application serves a public interest goal without specifying any standards that apply for that proof? Or could the Board say that it cannot accept the advice from the GAC because it would require ICANN to weigh the content of the Closed Generic application and to police the public interest goal issue during the term of the contract award, meaning the requirement of the GAC advice is out of scope for ICANN's mission as overly content -related? Maybe the Council should just say "don't delay the next round" and should not take a policy position on whether or not to accept Closed Generic applications when the next round opens, i.e. leave that to the Board to decide that policy issue as well? Issue #2. Whether the Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. (I think it's possible the Board has the authority to request a formal policy process - not sure whether Council has the right to refuse to do so.) Did the Council already decide it would not undertake an existing policy process when it authorized the Facilitated Dialogue process? Does the statement need to reflect a Council decision in this regard and if so, does that need a separate vote from Council? Are we risking delay of the next round over the Council's failure to act on this policy issue? The Board invoked the Facilitated Dialogue process outside normal policy development channels but it appears that process failed. Any thoughts re the above considerations ? Anne
Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com On Mon, Aug 14, 2023 at 6:51 AM DiBiase, Gregory via council <council@gnso.icann.org> wrote:
Hi Kurt, A couple thoughts here: We have not communicated a decision or feedback to Board yet, so we have time to discuss our messaging (so far, the SO/AC chairs have sent a letter to the dialogue participants and the dialogue participants have agreed with the letter’s sentiment). I think council is in agreement that work on closed generics cannot be a dependency for the next round and the Facilitated Dialogue on Closed Generic gTLDs should not continue to be the vehicle advancing this work (please let me know if I’m oversimplifying). If this is correct, I think we can simplify this issue to: how or if we should frame the “status quo” to the Board. More specifically, we can take a closer look at this proposed language from the letter to the dialogue participants: “until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed;” Perhaps we should modify this part to say closer to: “given that there is no community-developed policy on closed generics (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement), we acknowledge that the Board may not allow closed generics to proceed (in line with their position from the 20201 round) until policy is developed.” In other words, we don’t need to instruct the Board on what the status quo is, rather, we are informing them that a policy on closed generics has not been finalized and we recommend not delaying the next round until this policy work is completed. I’m sure I have point 3 wrong as I am not as well-versed in subpro as others, but we can discuss further to make sure we are all aligned. Thanks, Greg
From: council <council-bounces@gnso.icann.org> On Behalf Of kurt kjpritz.com via council Sent: Sunday, August 13, 2023 7:54 PM To: Paul McGrady <paul@elstermcgrady.com> Cc: Avri Doria <avri.doria@board.icann.org>; GNSO Council <council@gnso.icann.org> Subject: RE: [EXTERNAL] [council] Update on Closed Generics
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Replying to Paul (Hi Paul): As pointed out by Anne (and Rubens in a parallel email exchange), the question of status quo is not settled. That is the reason the SubPro working group specifically asked the Board to settle the question. The Board essentially created a new, temporary policy when it introduced an additional restriction into the criteria for delegating new TLDs. (I say temporary because the restriction was time-limited in a way.) The SubPro final report does not recommend an extension of that restriction by way of a “pause,” the report specifically recommends something else. By recommending a pause, the SO/AC leadership would be amending the final report recommendation. I wish I could be clearer. That somehow eludes me at the moment. Kurt
On 11 Aug 2023, at 3:37 am, Anne ICANN <anneicanngnso@gmail.com> wrote: Hi Kurt and Paul, As I see it, the issue has come back to what constitutes the "status quo". This issue was hotly debated in the Sub Pro Working Group. Some maintained that there was no prohibition on the applications for Closed Generics because none was contained in the 2012 AGB. Others maintained that due to the GAC Advice and Board direction to "pause" pending policy development, the "status quo" is actually a "pause" which would be continued at the start of the next round. The risk I see for the ICANN Board in the latter situation is that those existing applications for Closed Generics (which are on hold) as well as any future applications to be taken in the next round (not prohibited by this recommendation) would build a case for Request for Reconsideration if the Board does not allow those applications to move forward. For example, the grounds might be Applicant Freedom of Expression under the Human Rights Core Value and the underlying principle of Applicant Freedom of Expression that has been affirmed by subsequent PDP work and is now being confirmed in the Sub Pro IRT process. Another factor is that the Board has consistently declined to make policy. And I'm not certain that the GNSO Council actually has the authority to direct the Board to make a Closed Generic policy. Are you gentlemen certain that this is kosher? Certainly I agree this issue should not hold up the next round but of course there is a year to go. If the Board is willing to take a decision on this, that is one scenario. If the Board is not willing to take a decision on this and/or is concerned about the risk of expensive litigation over a possible ban, then that is another scenario. Has anyone spoken with our Sub Pro Board reps about this approach? (They are copied here.) Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com On Thu, Aug 10, 2023 at 10:15 AM Paul McGrady via council <council@gnso.icann.org> wrote:
Hi Kurt, Thanks for this. I’m not sure I am understanding your concern. One of the basic tenants that everyone in the SubPro PDP agreed to was that, absent any changes captured in the Recommendations, that the status quo would prevail. All the letter does is ask for that. I feel better about sticking with the WG’s inability to change the status quo than I do asking the Board to write a policy when the community couldn’t agree to anything, even after two valiant efforts. We tried in the WG, we couldn’t get there, the status quo should prevail. We tried again at the request of the Board at the SO/AC level, we couldn’t get there, the status quo should prevail. The letter leaves open the possibility of future community work on this but notes there is no bandwidth or appetite to do so and we don’t want the next round held up. Help me understand you concern about asking the Board to maintain the status quo until/if the community comes up with a policy on these. Best, Paul From: council <council-bounces@gnso.icann.org> On Behalf Of kurt kjpritz.com via council Sent: Thursday, August 10, 2023 3:45 AM To: John McElwaine <john.mcelwaine@nelsonmullins.com> Cc: GNSO Council <council@gnso.icann.org> Subject: Re: [council] Update on Closed Generics Hi John:
Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome.
I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head.
1. I don’t understand how the SO/AC leaders have the authority to revise the PDP final report recommendation.
The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round.
The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.)
We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them.
2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making.
The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns.
Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.)
During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much.
This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will “give up” and implement unsupported restrictions.
3. The decision to ban closed generics for an additional round contradicts the one step the Board took.
The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision.
Two additional points:
1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call.
2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy.
If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board. Sincerely,
Kurt
On 10 Aug 2023, at 7:33 am, John McElwaine via council <council@gnso.icann.org> wrote: Dear Councilors, As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic. The dialogue participants have discussed the Chairs’ joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs’ letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided. The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group’s community wiki space and other relevant documentation, and the participants’ feedback on the consensus building techniques and approaches that were used for the dialogue. The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that: (1) closed generic gTLDs should not be viewed as a dependency for the next round; (2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed; and (3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue. Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs’ decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information. Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants’ feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions. Best regards, John Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately either by phone (800-237-2000) or reply to this e-mail and delete all copies of this message. <Message from ALAC GAC GNSO Chairs to Closed Generics Facilitated Dialogue Participants - FINAL - 5 August 2023 (002).pdf>_______________________________________________ council mailing list council@gnso.icann.org https://mm.icann.org/mailman/listinfo/council
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Thanks Susan. You interpreted my email correctly. I was merely saying we don’t have to instruct the Board on what they should do (addressing Kurt’s concern). I also agree that council is not required to develop policy. Thanks, Greg From: Susan Payne <susan.payne@comlaude.com> Sent: Wednesday, August 16, 2023 8:02 AM To: Anne ICANN <anneicanngnso@gmail.com>; COUNCIL@GNSO.ICANN.ORG Cc: DiBiase, Gregory <dibiase@amazon.com> Subject: RE: [EXTERNAL] [council] Update on Closed Generics CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you can confirm the sender and know the content is safe. Hi Anne I wanted to share some thoughts on the two issues you raised. Issue #1 I read Greg’s email as merely addressing the concern Kurt raised that we should not be instructing the Board what to do, rather than expressing some underlying intent to endorse accepting closed generic applications. Is it the use of the wording “unless and until there is a community-developed consensus policy in place, any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed” in the original Chairs letter to the dialogue group that you feel implies this? My assumption would be that this isn’t the intent. “Should not proceed” in the last round was ICANN-speak for rejected or refused. Council certainly should discuss this, however, to be sure we are in agreement on what is the intent – and then the letter to the Board can be drafted accordingly. To my mind, it would make no sense for Council to encourage that applicants to be permitted to apply for a closed generic, with that application then being placed on indefinite hold (if that were how one interpreted “should not proceed”) unless and until some policy is developed which, the Chairs letter indicates, we may not even be working on. If the Board decision is that closed generics will not be permitted to proceed, therefore, it would be preferable if the AGB makes it clear to applicants that they should not apply for a string if that is their intent. If an applicant nevertheless does submit an application for what is intended to be a closed generic, they could be given the option either to withdraw or to amend their application to be non-closed, as was the case in 2012. For the avoidance of doubt there was a third option in the 2012 round, to have the application placed on hold pending development of policy by SubPro. No applicants selected this option in the last round. For the future, it might be reasonable for applicants to have this option if policy work were underway, but not if it isn’t. Issue #2 I don’t believe that Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. No doubt Council will discuss this next week. I also do not believe that Council is required to develop a policy. SubPro attempted to do so and could not agree on recommendations. The Board invited the GNSO Council and GAC to start the facilitated dialogue on a workable framework “in the interest of helping the community make progress”. The GAC and/or GNSO Council could have refused to try this approach at that point, and so it is surely also open to either or both to inform the Board that we have taken this as far as we can for now. If there were to be further policy work, I think many of us are of the view that you cannot keep putting the same people in a room and expecting them to somehow come out with a different outcome. The community has tried to develop a policy on this and has been unable to do so. As was noted at SubPro 23.1: The Working Group believes that if this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group [emphasis added]. Susan Susan Payne Head of Legal Policy Com Laude T +44 (0) 20 7421 8250 Ext 255 [cid:image001.png@01D9D037.571C9550]<https://comlaude.com/> Follow us on Linkedin<https://t-uk.xink.io/Tracking/Index/pRkAAGVfAADw_RQA0> and YouTube<https://t-uk.xink.io/Tracking/Index/bhkAAGVfAADw_RQA0> From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Anne ICANN via council Sent: Monday, August 14, 2023 5:18 PM To: DiBiase, Gregory <dibiase@amazon.com<mailto:dibiase@amazon.com>> Cc: COUNCIL@GNSO.ICANN.ORG<mailto:COUNCIL@GNSO.ICANN.ORG>; Avri Doria <avri.doria@board.icann.org<mailto:avri.doria@board.icann.org>> Subject: Re: [council] Update on Closed Generics Thanks Greg - The point you make that there is as yet no official statement from Council to the Board on this issue is an important one. I think there is rough consensus at the Council level that we don't want the next round to be delayed by this issue. I think two significant questions remain as to the following: Issue #1. Whether to accept applications for Closed Generics in the next round or to pause such applications pending future Board action or GNSO policy development efforts. The draft statements put forward so far would endorse accepting applications and that is also a policy statement which essentially defines the "status quo" as permitting such applications. (After all, closed generic applications could block open generic applications in that instance.) This is tricky because the GAC has reiterated that its previous Closed Generic advice is "standing advice". Would it be a solution for the Board to simply accept that advice in relation to a Closed Generic application and then accept applications in the next round but require the Applicant to prove that the application serves a public interest goal without specifying any standards that apply for that proof? Or could the Board say that it cannot accept the advice from the GAC because it would require ICANN to weigh the content of the Closed Generic application and to police the public interest goal issue during the term of the contract award, meaning the requirement of the GAC advice is out of scope for ICANN's mission as overly content -related? Maybe the Council should just say "don't delay the next round" and should not take a policy position on whether or not to accept Closed Generic applications when the next round opens, i.e. leave that to the Board to decide that policy issue as well? Issue #2. Whether the Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. (I think it's possible the Board has the authority to request a formal policy process - not sure whether Council has the right to refuse to do so.) Did the Council already decide it would not undertake an existing policy process when it authorized the Facilitated Dialogue process? Does the statement need to reflect a Council decision in this regard and if so, does that need a separate vote from Council? Are we risking delay of the next round over the Council's failure to act on this policy issue? The Board invoked the Facilitated Dialogue process outside normal policy development channels but it appears that process failed. Any thoughts re the above considerations ? Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Mon, Aug 14, 2023 at 6:51 AM DiBiase, Gregory via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Hi Kurt, A couple thoughts here: 1. We have not communicated a decision or feedback to Board yet, so we have time to discuss our messaging (so far, the SO/AC chairs have sent a letter to the dialogue participants and the dialogue participants have agreed with the letter’s sentiment). 2. I think council is in agreement that work on closed generics cannot be a dependency for the next round and the Facilitated Dialogue on Closed Generic gTLDs should not continue to be the vehicle advancing this work (please let me know if I’m oversimplifying). If this is correct, I think we can simplify this issue to: how or if we should frame the “status quo” to the Board. More specifically, we can take a closer look at this proposed language from the letter to the dialogue participants: * “until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed;” 1. Perhaps we should modify this part to say closer to: “given that there is no community-developed policy on closed generics (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement), we acknowledge that the Board may not allow closed generics to proceed (in line with their position from the 20201 round) until policy is developed.” In other words, we don’t need to instruct the Board on what the status quo is, rather, we are informing them that a policy on closed generics has not been finalized and we recommend not delaying the next round until this policy work is completed. I’m sure I have point 3 wrong as I am not as well-versed in subpro as others, but we can discuss further to make sure we are all aligned. Thanks, Greg From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of kurt kjpritz.com<http://kjpritz.com/> via council Sent: Sunday, August 13, 2023 7:54 PM To: Paul McGrady <paul@elstermcgrady.com<mailto:paul@elstermcgrady.com>> Cc: Avri Doria <avri.doria@board.icann.org<mailto:avri.doria@board.icann.org>>; GNSO Council <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: RE: [EXTERNAL] [council] Update on Closed Generics CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you can confirm the sender and know the content is safe. Replying to Paul (Hi Paul): As pointed out by Anne (and Rubens in a parallel email exchange), the question of status quo is not settled. That is the reason the SubPro working group specifically asked the Board to settle the question. The Board essentially created a new, temporary policy when it introduced an additional restriction into the criteria for delegating new TLDs. (I say temporary because the restriction was time-limited in a way.) The SubPro final report does not recommend an extension of that restriction by way of a “pause,” the report specifically recommends something else. By recommending a pause, the SO/AC leadership would be amending the final report recommendation. I wish I could be clearer. That somehow eludes me at the moment. Kurt On 11 Aug 2023, at 3:37 am, Anne ICANN <anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com>> wrote: Hi Kurt and Paul, As I see it, the issue has come back to what constitutes the "status quo". This issue was hotly debated in the Sub Pro Working Group. Some maintained that there was no prohibition on the applications for Closed Generics because none was contained in the 2012 AGB. Others maintained that due to the GAC Advice and Board direction to "pause" pending policy development, the "status quo" is actually a "pause" which would be continued at the start of the next round. The risk I see for the ICANN Board in the latter situation is that those existing applications for Closed Generics (which are on hold) as well as any future applications to be taken in the next round (not prohibited by this recommendation) would build a case for Request for Reconsideration if the Board does not allow those applications to move forward. For example, the grounds might be Applicant Freedom of Expression under the Human Rights Core Value and the underlying principle of Applicant Freedom of Expression that has been affirmed by subsequent PDP work and is now being confirmed in the Sub Pro IRT process. Another factor is that the Board has consistently declined to make policy. And I'm not certain that the GNSO Council actually has the authority to direct the Board to make a Closed Generic policy. Are you gentlemen certain that this is kosher? Certainly I agree this issue should not hold up the next round but of course there is a year to go. If the Board is willing to take a decision on this, that is one scenario. If the Board is not willing to take a decision on this and/or is concerned about the risk of expensive litigation over a possible ban, then that is another scenario. Has anyone spoken with our Sub Pro Board reps about this approach? (They are copied here.) Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Thu, Aug 10, 2023 at 10:15 AM Paul McGrady via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Hi Kurt, Thanks for this. I’m not sure I am understanding your concern. One of the basic tenants that everyone in the SubPro PDP agreed to was that, absent any changes captured in the Recommendations, that the status quo would prevail. All the letter does is ask for that. I feel better about sticking with the WG’s inability to change the status quo than I do asking the Board to write a policy when the community couldn’t agree to anything, even after two valiant efforts. We tried in the WG, we couldn’t get there, the status quo should prevail. We tried again at the request of the Board at the SO/AC level, we couldn’t get there, the status quo should prevail. The letter leaves open the possibility of future community work on this but notes there is no bandwidth or appetite to do so and we don’t want the next round held up. Help me understand you concern about asking the Board to maintain the status quo until/if the community comes up with a policy on these. Best, Paul From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of kurt kjpritz.com<http://kjpritz.com/> via council Sent: Thursday, August 10, 2023 3:45 AM To: John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> Cc: GNSO Council <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Update on Closed Generics Hi John: Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome. I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head. 1. I don’t understand how the SO/AC leaders have the authority to revise the PDP final report recommendation. The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round. The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.) We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them. 2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making. The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns. Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.) During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much. This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will “give up” and implement unsupported restrictions. 3. The decision to ban closed generics for an additional round contradicts the one step the Board took. The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision. Two additional points: 1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call. 2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy. If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board. Sincerely, Kurt On 10 Aug 2023, at 7:33 am, John McElwaine via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Dear Councilors, As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic. The dialogue participants have discussed the Chairs’ joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs’ letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided. The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group’s community wiki space and other relevant documentation, and the participants’ feedback on the consensus building techniques and approaches that were used for the dialogue. The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that: (1) closed generic gTLDs should not be viewed as a dependency for the next round; (2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed; and (3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue. Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs’ decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information. Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants’ feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions. Best regards, John Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure. 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Many thanks, Susan. This is very helpful. I think the language stating that "any applications" for Closed Generics "should not proceed" is phrased in a manner which conveys a policy opinion that such applications should be accepted in the next round. (It essentially defines a status quo from 2012.) If GNSO is NOT deciding that policy issue, (and I don't think the Council can decide it without further policy work), then we should be clearer and that is why I suggested we simply say that (1) the next round should not be delayed based on this issue and that (2) the Council does not believe that the issue can be resolved by commencing a policy process such as EPDP. More importantly, I think your recitation to Final Report language provides a possible constructive way forward which might be pursued in the Council''s statement to the Board. Essentially it says a process should involve a "clean slate" approach with non-interested parties. I'm pasting this below again for further discussion and consideration at Council: *"The Working Group believes that if this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group *[emphasis added]." This may make more sense as a proposed way forward unless we just want to hear from the Board first if they will be willing to make policy or are declining to make policy. It would be a real time saver if we could get some Board Sub Pro Caucus feedback on this issue. Thanks for raising this third alternative that comes directly from the work of Sub Pro. Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com On Wed, Aug 16, 2023 at 8:01 AM Susan Payne <susan.payne@comlaude.com> wrote:
Hi Anne
I wanted to share some thoughts on the two issues you raised.
*Issue #1*
I read Greg’s email as merely addressing the concern Kurt raised that we should not be instructing the Board what to do, rather than expressing some underlying intent to endorse accepting closed generic applications.
Is it the use of the wording “*unless and until there is a community-developed consensus policy in place, any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed”* in the original Chairs letter to the dialogue group that you feel implies this? My assumption would be that this isn’t the intent. “Should not proceed” in the last round was ICANN-speak for rejected or refused. Council certainly should discuss this, however, to be sure we are in agreement on what is the intent – and then the letter to the Board can be drafted accordingly.
To my mind, it would make no sense for Council to encourage that applicants to be permitted to apply for a closed generic, with that application then being placed on indefinite hold (if that were how one interpreted “should not proceed”) unless and until some policy is developed which, the Chairs letter indicates, we may not even be working on. If the Board decision is that closed generics will not be permitted to proceed, therefore, it would be preferable if the AGB makes it clear to applicants that they should not apply for a string if that is their intent. If an applicant nevertheless does submit an application for what is intended to be a closed generic, they could be given the option either to withdraw or to amend their application to be non-closed, as was the case in 2012. For the avoidance of doubt there was a third option in the 2012 round, to have the application placed on hold pending development of policy by SubPro. No applicants selected this option in the last round. For the future, it might be reasonable for applicants to have this option if policy work were underway, but not if it isn’t.
*Issue #2*
I don’t believe that Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. No doubt Council will discuss this next week.
I also do not believe that Council is *required* to develop a policy. SubPro attempted to do so and could not agree on recommendations. The Board invited the GNSO Council and GAC to start the facilitated dialogue on a workable framework “in the interest of helping the community make progress”. The GAC and/or GNSO Council could have refused to try this approach at that point, and so it is surely also open to either or both to inform the Board that we have taken this as far as we can for now.
If there were to be further policy work, I think many of us are of the view that you cannot keep putting the same people in a room and expecting them to somehow come out with a different outcome. The community has tried to develop a policy on this and has been unable to do so. As was noted at SubPro 23.1:
The Working Group believes that * if *this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group [emphasis added].
Susan
Susan Payne Head of Legal Policy Com Laude *T* +44 (0) 20 7421 8250 *Ext* 255
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*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *Anne ICANN via council *Sent:* Monday, August 14, 2023 5:18 PM *To:* DiBiase, Gregory <dibiase@amazon.com> *Cc:* COUNCIL@GNSO.ICANN.ORG; Avri Doria <avri.doria@board.icann.org> *Subject:* Re: [council] Update on Closed Generics
Thanks Greg - The point you make that there is as yet no official statement from Council to the Board on this issue is an important one. I think there is rough consensus at the Council level that we don't want the next round to be delayed by this issue. I think two significant questions remain as to the following:
Issue #1. Whether to accept applications for Closed Generics in the next round or to pause such applications pending future Board action or GNSO policy development efforts. The draft statements put forward so far would endorse accepting applications and that is also a policy statement which essentially defines the "status quo" as permitting such applications. (After all, closed generic applications could block open generic applications in that instance.) This is tricky because the GAC has reiterated that its previous Closed Generic advice is "standing advice". Would it be a solution for the Board to simply accept that advice in relation to a Closed Generic application and then accept applications in the next round but require the Applicant to prove that the application serves a public interest goal without specifying any standards that apply for that proof? Or could the Board say that it cannot accept the advice from the GAC because it would require ICANN to weigh the content of the Closed Generic application and to police the public interest goal issue during the term of the contract award, meaning the requirement of the GAC advice is out of scope for ICANN's mission as overly content -related? Maybe the Council should just say "don't delay the next round" and should not take a policy position on whether or not to accept Closed Generic applications when the next round opens, i.e. leave that to the Board to decide that policy issue as well?
Issue #2. Whether the Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. (I think it's possible the Board has the authority to request a formal policy process - not sure whether Council has the right to refuse to do so.) Did the Council already decide it would not undertake an existing policy process when it authorized the Facilitated Dialogue process? Does the statement need to reflect a Council decision in this regard and if so, does that need a separate vote from Council? Are we risking delay of the next round over the Council's failure to act on this policy issue? The Board invoked the Facilitated Dialogue process outside normal policy development channels but it appears that process failed.
Any thoughts re the above considerations ?
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso@gmail.com
On Mon, Aug 14, 2023 at 6:51 AM DiBiase, Gregory via council < council@gnso.icann.org> wrote:
Hi Kurt,
A couple thoughts here:
1. We have not communicated a decision or feedback to Board yet, so we have time to discuss our messaging (so far, the SO/AC chairs have sent a letter to the dialogue participants and the dialogue participants have agreed with the letter’s sentiment). 2. I think council is in agreement that work on closed generics cannot be a dependency for the next round and the Facilitated Dialogue on Closed Generic gTLDs should not continue to be the vehicle advancing this work (please let me know if I’m oversimplifying). If this is correct, I think we can simplify this issue to: how or if we should frame the “status quo” to the Board. More specifically, we can take a closer look at this proposed language from the letter to the dialogue participants:
1. “until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed;”
1. Perhaps we should modify this part to say closer to: “given that there is no community-developed policy on closed generics (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement), we acknowledge that the Board may not allow closed generics to proceed (in line with their position from the 20201 round) until policy is developed.” In other words, we don’t need to instruct the Board on what the status quo is, rather, we are informing them that a policy on closed generics has not been finalized and we recommend not delaying the next round until this policy work is completed.
I’m sure I have point 3 wrong as I am not as well-versed in subpro as others, but we can discuss further to make sure we are all aligned.
Thanks,
Greg
*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *kurt kjpritz.com via council *Sent:* Sunday, August 13, 2023 7:54 PM *To:* Paul McGrady <paul@elstermcgrady.com> *Cc:* Avri Doria <avri.doria@board.icann.org>; GNSO Council < council@gnso.icann.org> *Subject:* RE: [EXTERNAL] [council] Update on Closed Generics
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Replying to Paul (Hi Paul):
As pointed out by Anne (and Rubens in a parallel email exchange), the question of status quo is not settled. That is the reason the SubPro working group specifically asked the Board to settle the question.
The Board essentially created a new, temporary policy when it introduced an additional restriction into the criteria for delegating new TLDs. (I say temporary because the restriction was time-limited in a way.)
The SubPro final report does not recommend an extension of that restriction by way of a “pause,” the report specifically recommends something else. By recommending a pause, the SO/AC leadership would be amending the final report recommendation.
I wish I could be clearer. That somehow eludes me at the moment.
Kurt
On 11 Aug 2023, at 3:37 am, Anne ICANN <anneicanngnso@gmail.com> wrote:
Hi Kurt and Paul,
As I see it, the issue has come back to what constitutes the "status quo". This issue was hotly debated in the Sub Pro Working Group. Some maintained that there was no prohibition on the applications for Closed Generics because none was contained in the 2012 AGB. Others maintained that due to the GAC Advice and Board direction to "pause" pending policy development, the "status quo" is actually a "pause" which would be continued at the start of the next round. The risk I see for the ICANN Board in the latter situation is that those existing applications for Closed Generics (which are on hold) as well as any future applications to be taken in the next round (not prohibited by this recommendation) would build a case for Request for Reconsideration if the Board does not allow those applications to move forward. For example, the grounds might be Applicant Freedom of Expression under the Human Rights Core Value and the underlying principle of Applicant Freedom of Expression that has been affirmed by subsequent PDP work and is now being confirmed in the Sub Pro IRT process.
Another factor is that the Board has consistently declined to make policy. And I'm not certain that the GNSO Council actually has the authority to direct the Board to make a Closed Generic policy. Are you gentlemen certain that this is kosher?
Certainly I agree this issue should not hold up the next round but of course there is a year to go. If the Board is willing to take a decision on this, that is one scenario. If the Board is not willing to take a decision on this and/or is concerned about the risk of expensive litigation over a possible ban, then that is another scenario. Has anyone spoken with our Sub Pro Board reps about this approach? (They are copied here.)
Thank you,
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso@gmail.com
On Thu, Aug 10, 2023 at 10:15 AM Paul McGrady via council < council@gnso.icann.org> wrote:
Hi Kurt,
Thanks for this. I’m not sure I am understanding your concern. One of the basic tenants that everyone in the SubPro PDP agreed to was that, absent any changes captured in the Recommendations, that the status quo would prevail. All the letter does is ask for that. I feel better about sticking with the WG’s inability to change the status quo than I do asking the Board to write a policy when the community couldn’t agree to anything, even after two valiant efforts. We tried in the WG, we couldn’t get there, the status quo should prevail. We tried again at the request of the Board at the SO/AC level, we couldn’t get there, the status quo should prevail. The letter leaves open the possibility of future community work on this but notes there is no bandwidth or appetite to do so and we don’t want the next round held up. Help me understand you concern about asking the Board to maintain the status quo until/if the community comes up with a policy on these.
Best,
Paul
*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *kurt kjpritz.com via council *Sent:* Thursday, August 10, 2023 3:45 AM *To:* John McElwaine <john.mcelwaine@nelsonmullins.com> *Cc:* GNSO Council <council@gnso.icann.org> *Subject:* Re: [council] Update on Closed Generics
Hi John:
Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome.
I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head.
1. I don’t understand how the SO/AC leaders have the authority to revise the PDP final report recommendation.
The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round.
The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.)
We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them.
2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making.
The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns.
Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.)
During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much.
This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will “give up” and implement unsupported restrictions.
3. The decision to ban closed generics for an additional round contradicts the one step the Board took.
The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision.
Two additional points:
1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call.
2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy.
If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board.
Sincerely,
Kurt
On 10 Aug 2023, at 7:33 am, John McElwaine via council < council@gnso.icann.org> wrote:
Dear Councilors,
As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic.
The dialogue participants have discussed the Chairs’ joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs’ letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided.
The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group’s community wiki space and other relevant documentation, and the participants’ feedback on the consensus building techniques and approaches that were used for the dialogue.
The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that:
(1) closed generic gTLDs should not be viewed as a dependency for the next round;
(2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed*;* and
(3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue.
Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs’ decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information.
Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants’ feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions.
Best regards,
John
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Dear all, Thanks Kurt and Anne for pointing out the concerns with the wording that we potentially could have used in the letter to the board regarding this issue. I am in agreement that the council must intentionally be clear in the letter to the board that (a) GNSO still doesn't have any policy recommendation on this issue and (b) the next round should not be delayed based on this issue. Regarding the 'third alternative' that has come up, would that mean we put a new team together *now*, with new composition rules and a new charter "based on the good work that has been done to date in the facilitated dialogue"? (We are yet to read the final report of the group but I think the group did a good job in exploring in-depth the problems and possibilities of closed generics). If the answer is yes to a new team, does it mean that the GNSO/GAC/ALAC leadership conclusion "that there is neither the need nor the community bandwidth to conduct additional work at this stage" false? (I thought the 3 community leadership were pretty accurate on that assertion). Warmly, Tomslin On Thu, 17 Aug 2023 at 05:56, Anne ICANN via council <council@gnso.icann.org> wrote:
Many thanks, Susan. This is very helpful. I think the language stating that "any applications" for Closed Generics "should not proceed" is phrased in a manner which conveys a policy opinion that such applications should be accepted in the next round. (It essentially defines a status quo from 2012.) If GNSO is NOT deciding that policy issue, (and I don't think the Council can decide it without further policy work), then we should be clearer and that is why I suggested we simply say that (1) the next round should not be delayed based on this issue and that (2) the Council does not believe that the issue can be resolved by commencing a policy process such as EPDP.
More importantly, I think your recitation to Final Report language provides a possible constructive way forward which might be pursued in the Council''s statement to the Board. Essentially it says a process should involve a "clean slate" approach with non-interested parties. I'm pasting this below again for further discussion and consideration at Council:
*"The Working Group believes that if this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group *[emphasis added]."
This may make more sense as a proposed way forward unless we just want to hear from the Board first if they will be willing to make policy or are declining to make policy. It would be a real time saver if we could get some Board Sub Pro Caucus feedback on this issue.
Thanks for raising this third alternative that comes directly from the work of Sub Pro. Anne
Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com
On Wed, Aug 16, 2023 at 8:01 AM Susan Payne <susan.payne@comlaude.com> wrote:
Hi Anne
I wanted to share some thoughts on the two issues you raised.
*Issue #1*
I read Greg’s email as merely addressing the concern Kurt raised that we should not be instructing the Board what to do, rather than expressing some underlying intent to endorse accepting closed generic applications.
Is it the use of the wording “*unless and until there is a community-developed consensus policy in place, any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed”* in the original Chairs letter to the dialogue group that you feel implies this? My assumption would be that this isn’t the intent. “Should not proceed” in the last round was ICANN-speak for rejected or refused. Council certainly should discuss this, however, to be sure we are in agreement on what is the intent – and then the letter to the Board can be drafted accordingly.
To my mind, it would make no sense for Council to encourage that applicants to be permitted to apply for a closed generic, with that application then being placed on indefinite hold (if that were how one interpreted “should not proceed”) unless and until some policy is developed which, the Chairs letter indicates, we may not even be working on. If the Board decision is that closed generics will not be permitted to proceed, therefore, it would be preferable if the AGB makes it clear to applicants that they should not apply for a string if that is their intent. If an applicant nevertheless does submit an application for what is intended to be a closed generic, they could be given the option either to withdraw or to amend their application to be non-closed, as was the case in 2012. For the avoidance of doubt there was a third option in the 2012 round, to have the application placed on hold pending development of policy by SubPro. No applicants selected this option in the last round. For the future, it might be reasonable for applicants to have this option if policy work were underway, but not if it isn’t.
*Issue #2*
I don’t believe that Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. No doubt Council will discuss this next week.
I also do not believe that Council is *required* to develop a policy. SubPro attempted to do so and could not agree on recommendations. The Board invited the GNSO Council and GAC to start the facilitated dialogue on a workable framework “in the interest of helping the community make progress”. The GAC and/or GNSO Council could have refused to try this approach at that point, and so it is surely also open to either or both to inform the Board that we have taken this as far as we can for now.
If there were to be further policy work, I think many of us are of the view that you cannot keep putting the same people in a room and expecting them to somehow come out with a different outcome. The community has tried to develop a policy on this and has been unable to do so. As was noted at SubPro 23.1:
The Working Group believes that * if *this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group [emphasis added].
Susan
Susan Payne Head of Legal Policy Com Laude *T* +44 (0) 20 7421 8250 *Ext* 255
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*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *Anne ICANN via council *Sent:* Monday, August 14, 2023 5:18 PM *To:* DiBiase, Gregory <dibiase@amazon.com> *Cc:* COUNCIL@GNSO.ICANN.ORG; Avri Doria <avri.doria@board.icann.org> *Subject:* Re: [council] Update on Closed Generics
Thanks Greg - The point you make that there is as yet no official statement from Council to the Board on this issue is an important one. I think there is rough consensus at the Council level that we don't want the next round to be delayed by this issue. I think two significant questions remain as to the following:
Issue #1. Whether to accept applications for Closed Generics in the next round or to pause such applications pending future Board action or GNSO policy development efforts. The draft statements put forward so far would endorse accepting applications and that is also a policy statement which essentially defines the "status quo" as permitting such applications. (After all, closed generic applications could block open generic applications in that instance.) This is tricky because the GAC has reiterated that its previous Closed Generic advice is "standing advice". Would it be a solution for the Board to simply accept that advice in relation to a Closed Generic application and then accept applications in the next round but require the Applicant to prove that the application serves a public interest goal without specifying any standards that apply for that proof? Or could the Board say that it cannot accept the advice from the GAC because it would require ICANN to weigh the content of the Closed Generic application and to police the public interest goal issue during the term of the contract award, meaning the requirement of the GAC advice is out of scope for ICANN's mission as overly content -related? Maybe the Council should just say "don't delay the next round" and should not take a policy position on whether or not to accept Closed Generic applications when the next round opens, i.e. leave that to the Board to decide that policy issue as well?
Issue #2. Whether the Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. (I think it's possible the Board has the authority to request a formal policy process - not sure whether Council has the right to refuse to do so.) Did the Council already decide it would not undertake an existing policy process when it authorized the Facilitated Dialogue process? Does the statement need to reflect a Council decision in this regard and if so, does that need a separate vote from Council? Are we risking delay of the next round over the Council's failure to act on this policy issue? The Board invoked the Facilitated Dialogue process outside normal policy development channels but it appears that process failed.
Any thoughts re the above considerations ?
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso@gmail.com
On Mon, Aug 14, 2023 at 6:51 AM DiBiase, Gregory via council < council@gnso.icann.org> wrote:
Hi Kurt,
A couple thoughts here:
1. We have not communicated a decision or feedback to Board yet, so we have time to discuss our messaging (so far, the SO/AC chairs have sent a letter to the dialogue participants and the dialogue participants have agreed with the letter’s sentiment). 2. I think council is in agreement that work on closed generics cannot be a dependency for the next round and the Facilitated Dialogue on Closed Generic gTLDs should not continue to be the vehicle advancing this work (please let me know if I’m oversimplifying). If this is correct, I think we can simplify this issue to: how or if we should frame the “status quo” to the Board. More specifically, we can take a closer look at this proposed language from the letter to the dialogue participants:
1. “until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed;”
1. Perhaps we should modify this part to say closer to: “given that there is no community-developed policy on closed generics (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement), we acknowledge that the Board may not allow closed generics to proceed (in line with their position from the 20201 round) until policy is developed.” In other words, we don’t need to instruct the Board on what the status quo is, rather, we are informing them that a policy on closed generics has not been finalized and we recommend not delaying the next round until this policy work is completed.
I’m sure I have point 3 wrong as I am not as well-versed in subpro as others, but we can discuss further to make sure we are all aligned.
Thanks,
Greg
*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *kurt kjpritz.com via council *Sent:* Sunday, August 13, 2023 7:54 PM *To:* Paul McGrady <paul@elstermcgrady.com> *Cc:* Avri Doria <avri.doria@board.icann.org>; GNSO Council < council@gnso.icann.org> *Subject:* RE: [EXTERNAL] [council] Update on Closed Generics
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Replying to Paul (Hi Paul):
As pointed out by Anne (and Rubens in a parallel email exchange), the question of status quo is not settled. That is the reason the SubPro working group specifically asked the Board to settle the question.
The Board essentially created a new, temporary policy when it introduced an additional restriction into the criteria for delegating new TLDs. (I say temporary because the restriction was time-limited in a way.)
The SubPro final report does not recommend an extension of that restriction by way of a “pause,” the report specifically recommends something else. By recommending a pause, the SO/AC leadership would be amending the final report recommendation.
I wish I could be clearer. That somehow eludes me at the moment.
Kurt
On 11 Aug 2023, at 3:37 am, Anne ICANN <anneicanngnso@gmail.com> wrote:
Hi Kurt and Paul,
As I see it, the issue has come back to what constitutes the "status quo". This issue was hotly debated in the Sub Pro Working Group. Some maintained that there was no prohibition on the applications for Closed Generics because none was contained in the 2012 AGB. Others maintained that due to the GAC Advice and Board direction to "pause" pending policy development, the "status quo" is actually a "pause" which would be continued at the start of the next round. The risk I see for the ICANN Board in the latter situation is that those existing applications for Closed Generics (which are on hold) as well as any future applications to be taken in the next round (not prohibited by this recommendation) would build a case for Request for Reconsideration if the Board does not allow those applications to move forward. For example, the grounds might be Applicant Freedom of Expression under the Human Rights Core Value and the underlying principle of Applicant Freedom of Expression that has been affirmed by subsequent PDP work and is now being confirmed in the Sub Pro IRT process.
Another factor is that the Board has consistently declined to make policy. And I'm not certain that the GNSO Council actually has the authority to direct the Board to make a Closed Generic policy. Are you gentlemen certain that this is kosher?
Certainly I agree this issue should not hold up the next round but of course there is a year to go. If the Board is willing to take a decision on this, that is one scenario. If the Board is not willing to take a decision on this and/or is concerned about the risk of expensive litigation over a possible ban, then that is another scenario. Has anyone spoken with our Sub Pro Board reps about this approach? (They are copied here.)
Thank you,
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso@gmail.com
On Thu, Aug 10, 2023 at 10:15 AM Paul McGrady via council < council@gnso.icann.org> wrote:
Hi Kurt,
Thanks for this. I’m not sure I am understanding your concern. One of the basic tenants that everyone in the SubPro PDP agreed to was that, absent any changes captured in the Recommendations, that the status quo would prevail. All the letter does is ask for that. I feel better about sticking with the WG’s inability to change the status quo than I do asking the Board to write a policy when the community couldn’t agree to anything, even after two valiant efforts. We tried in the WG, we couldn’t get there, the status quo should prevail. We tried again at the request of the Board at the SO/AC level, we couldn’t get there, the status quo should prevail. The letter leaves open the possibility of future community work on this but notes there is no bandwidth or appetite to do so and we don’t want the next round held up. Help me understand you concern about asking the Board to maintain the status quo until/if the community comes up with a policy on these.
Best,
Paul
*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *kurt kjpritz.com via council *Sent:* Thursday, August 10, 2023 3:45 AM *To:* John McElwaine <john.mcelwaine@nelsonmullins.com> *Cc:* GNSO Council <council@gnso.icann.org> *Subject:* Re: [council] Update on Closed Generics
Hi John:
Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome.
I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head.
1. I don’t understand how the SO/AC leaders have the authority to revise the PDP final report recommendation.
The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round.
The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.)
We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them.
2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making.
The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns.
Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.)
During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much.
This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will “give up” and implement unsupported restrictions.
3. The decision to ban closed generics for an additional round contradicts the one step the Board took.
The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision.
Two additional points:
1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call.
2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy.
If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board.
Sincerely,
Kurt
On 10 Aug 2023, at 7:33 am, John McElwaine via council < council@gnso.icann.org> wrote:
Dear Councilors,
As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic.
The dialogue participants have discussed the Chairs’ joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs’ letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided.
The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group’s community wiki space and other relevant documentation, and the participants’ feedback on the consensus building techniques and approaches that were used for the dialogue.
The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that:
(1) closed generic gTLDs should not be viewed as a dependency for the next round;
(2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed*;* and
(3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue.
Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs’ decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information.
Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants’ feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions.
Best regards,
John
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Hi Tomslin, Good question. My opinion is that forming a new team is an option, but not a necessity. I am not sure we have the bandwidth to do so (at least in the short term). Thanks, Greg From: council <council-bounces@gnso.icann.org> On Behalf Of Tomslin Samme-Nlar via council Sent: Sunday, August 20, 2023 2:26 PM To: Anne ICANN <anneicanngnso@gmail.com> Cc: Avri Doria <avri.doria@board.icann.org>; COUNCIL@GNSO.ICANN.ORG Subject: RE: [EXTERNAL] [council] Update on Closed Generics CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you can confirm the sender and know the content is safe. Dear all, Thanks Kurt and Anne for pointing out the concerns with the wording that we potentially could have used in the letter to the board regarding this issue. I am in agreement that the council must intentionally be clear in the letter to the board that (a) GNSO still doesn't have any policy recommendation on this issue and (b) the next round should not be delayed based on this issue. Regarding the 'third alternative' that has come up, would that mean we put a new team together now, with new composition rules and a new charter "based on the good work that has been done to date in the facilitated dialogue"? (We are yet to read the final report of the group but I think the group did a good job in exploring in-depth the problems and possibilities of closed generics). If the answer is yes to a new team, does it mean that the GNSO/GAC/ALAC leadership conclusion "that there is neither the need nor the community bandwidth to conduct additional work at this stage" false? (I thought the 3 community leadership were pretty accurate on that assertion). Warmly, Tomslin On Thu, 17 Aug 2023 at 05:56, Anne ICANN via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Many thanks, Susan. This is very helpful. I think the language stating that "any applications" for Closed Generics "should not proceed" is phrased in a manner which conveys a policy opinion that such applications should be accepted in the next round. (It essentially defines a status quo from 2012.) If GNSO is NOT deciding that policy issue, (and I don't think the Council can decide it without further policy work), then we should be clearer and that is why I suggested we simply say that (1) the next round should not be delayed based on this issue and that (2) the Council does not believe that the issue can be resolved by commencing a policy process such as EPDP. More importantly, I think your recitation to Final Report language provides a possible constructive way forward which might be pursued in the Council''s statement to the Board. Essentially it says a process should involve a "clean slate" approach with non-interested parties. I'm pasting this below again for further discussion and consideration at Council: "The Working Group believes that if this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group [emphasis added]." This may make more sense as a proposed way forward unless we just want to hear from the Board first if they will be willing to make policy or are declining to make policy. It would be a real time saver if we could get some Board Sub Pro Caucus feedback on this issue. Thanks for raising this third alternative that comes directly from the work of Sub Pro. Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Wed, Aug 16, 2023 at 8:01 AM Susan Payne <susan.payne@comlaude.com<mailto:susan.payne@comlaude.com>> wrote: Hi Anne I wanted to share some thoughts on the two issues you raised. Issue #1 I read Greg’s email as merely addressing the concern Kurt raised that we should not be instructing the Board what to do, rather than expressing some underlying intent to endorse accepting closed generic applications. Is it the use of the wording “unless and until there is a community-developed consensus policy in place, any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed” in the original Chairs letter to the dialogue group that you feel implies this? My assumption would be that this isn’t the intent. “Should not proceed” in the last round was ICANN-speak for rejected or refused. Council certainly should discuss this, however, to be sure we are in agreement on what is the intent – and then the letter to the Board can be drafted accordingly. To my mind, it would make no sense for Council to encourage that applicants to be permitted to apply for a closed generic, with that application then being placed on indefinite hold (if that were how one interpreted “should not proceed”) unless and until some policy is developed which, the Chairs letter indicates, we may not even be working on. If the Board decision is that closed generics will not be permitted to proceed, therefore, it would be preferable if the AGB makes it clear to applicants that they should not apply for a string if that is their intent. If an applicant nevertheless does submit an application for what is intended to be a closed generic, they could be given the option either to withdraw or to amend their application to be non-closed, as was the case in 2012. For the avoidance of doubt there was a third option in the 2012 round, to have the application placed on hold pending development of policy by SubPro. No applicants selected this option in the last round. For the future, it might be reasonable for applicants to have this option if policy work were underway, but not if it isn’t. Issue #2 I don’t believe that Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. No doubt Council will discuss this next week. I also do not believe that Council is required to develop a policy. SubPro attempted to do so and could not agree on recommendations. The Board invited the GNSO Council and GAC to start the facilitated dialogue on a workable framework “in the interest of helping the community make progress”. The GAC and/or GNSO Council could have refused to try this approach at that point, and so it is surely also open to either or both to inform the Board that we have taken this as far as we can for now. If there were to be further policy work, I think many of us are of the view that you cannot keep putting the same people in a room and expecting them to somehow come out with a different outcome. The community has tried to develop a policy on this and has been unable to do so. As was noted at SubPro 23.1: The Working Group believes that if this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group [emphasis added]. Susan Susan Payne Head of Legal Policy Com Laude T +44 (0) 20 7421 8250 Ext 255 [cid:image001.png@01D9D3FC.12742080]<https://comlaude.com/> Follow us on Linkedin<https://t-uk.xink.io/Tracking/Index/pRkAAGVfAADw_RQA0> and YouTube<https://t-uk.xink.io/Tracking/Index/bhkAAGVfAADw_RQA0> From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Anne ICANN via council Sent: Monday, August 14, 2023 5:18 PM To: DiBiase, Gregory <dibiase@amazon.com<mailto:dibiase@amazon.com>> Cc: COUNCIL@GNSO.ICANN.ORG<mailto:COUNCIL@GNSO.ICANN.ORG>; Avri Doria <avri.doria@board.icann.org<mailto:avri.doria@board.icann.org>> Subject: Re: [council] Update on Closed Generics Thanks Greg - The point you make that there is as yet no official statement from Council to the Board on this issue is an important one. I think there is rough consensus at the Council level that we don't want the next round to be delayed by this issue. I think two significant questions remain as to the following: Issue #1. Whether to accept applications for Closed Generics in the next round or to pause such applications pending future Board action or GNSO policy development efforts. The draft statements put forward so far would endorse accepting applications and that is also a policy statement which essentially defines the "status quo" as permitting such applications. (After all, closed generic applications could block open generic applications in that instance.) This is tricky because the GAC has reiterated that its previous Closed Generic advice is "standing advice". Would it be a solution for the Board to simply accept that advice in relation to a Closed Generic application and then accept applications in the next round but require the Applicant to prove that the application serves a public interest goal without specifying any standards that apply for that proof? Or could the Board say that it cannot accept the advice from the GAC because it would require ICANN to weigh the content of the Closed Generic application and to police the public interest goal issue during the term of the contract award, meaning the requirement of the GAC advice is out of scope for ICANN's mission as overly content -related? Maybe the Council should just say "don't delay the next round" and should not take a policy position on whether or not to accept Closed Generic applications when the next round opens, i.e. leave that to the Board to decide that policy issue as well? Issue #2. Whether the Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. (I think it's possible the Board has the authority to request a formal policy process - not sure whether Council has the right to refuse to do so.) Did the Council already decide it would not undertake an existing policy process when it authorized the Facilitated Dialogue process? Does the statement need to reflect a Council decision in this regard and if so, does that need a separate vote from Council? Are we risking delay of the next round over the Council's failure to act on this policy issue? The Board invoked the Facilitated Dialogue process outside normal policy development channels but it appears that process failed. Any thoughts re the above considerations ? Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Mon, Aug 14, 2023 at 6:51 AM DiBiase, Gregory via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Hi Kurt, A couple thoughts here: 1. We have not communicated a decision or feedback to Board yet, so we have time to discuss our messaging (so far, the SO/AC chairs have sent a letter to the dialogue participants and the dialogue participants have agreed with the letter’s sentiment). 2. I think council is in agreement that work on closed generics cannot be a dependency for the next round and the Facilitated Dialogue on Closed Generic gTLDs should not continue to be the vehicle advancing this work (please let me know if I’m oversimplifying). If this is correct, I think we can simplify this issue to: how or if we should frame the “status quo” to the Board. More specifically, we can take a closer look at this proposed language from the letter to the dialogue participants: * “until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed;” 1. Perhaps we should modify this part to say closer to: “given that there is no community-developed policy on closed generics (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement), we acknowledge that the Board may not allow closed generics to proceed (in line with their position from the 20201 round) until policy is developed.” In other words, we don’t need to instruct the Board on what the status quo is, rather, we are informing them that a policy on closed generics has not been finalized and we recommend not delaying the next round until this policy work is completed. I’m sure I have point 3 wrong as I am not as well-versed in subpro as others, but we can discuss further to make sure we are all aligned. Thanks, Greg From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of kurt kjpritz.com<http://kjpritz.com/> via council Sent: Sunday, August 13, 2023 7:54 PM To: Paul McGrady <paul@elstermcgrady.com<mailto:paul@elstermcgrady.com>> Cc: Avri Doria <avri.doria@board.icann.org<mailto:avri.doria@board.icann.org>>; GNSO Council <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: RE: [EXTERNAL] [council] Update on Closed Generics CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you can confirm the sender and know the content is safe. Replying to Paul (Hi Paul): As pointed out by Anne (and Rubens in a parallel email exchange), the question of status quo is not settled. That is the reason the SubPro working group specifically asked the Board to settle the question. The Board essentially created a new, temporary policy when it introduced an additional restriction into the criteria for delegating new TLDs. (I say temporary because the restriction was time-limited in a way.) The SubPro final report does not recommend an extension of that restriction by way of a “pause,” the report specifically recommends something else. By recommending a pause, the SO/AC leadership would be amending the final report recommendation. I wish I could be clearer. That somehow eludes me at the moment. Kurt On 11 Aug 2023, at 3:37 am, Anne ICANN <anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com>> wrote: Hi Kurt and Paul, As I see it, the issue has come back to what constitutes the "status quo". This issue was hotly debated in the Sub Pro Working Group. Some maintained that there was no prohibition on the applications for Closed Generics because none was contained in the 2012 AGB. Others maintained that due to the GAC Advice and Board direction to "pause" pending policy development, the "status quo" is actually a "pause" which would be continued at the start of the next round. The risk I see for the ICANN Board in the latter situation is that those existing applications for Closed Generics (which are on hold) as well as any future applications to be taken in the next round (not prohibited by this recommendation) would build a case for Request for Reconsideration if the Board does not allow those applications to move forward. For example, the grounds might be Applicant Freedom of Expression under the Human Rights Core Value and the underlying principle of Applicant Freedom of Expression that has been affirmed by subsequent PDP work and is now being confirmed in the Sub Pro IRT process. Another factor is that the Board has consistently declined to make policy. And I'm not certain that the GNSO Council actually has the authority to direct the Board to make a Closed Generic policy. Are you gentlemen certain that this is kosher? Certainly I agree this issue should not hold up the next round but of course there is a year to go. If the Board is willing to take a decision on this, that is one scenario. If the Board is not willing to take a decision on this and/or is concerned about the risk of expensive litigation over a possible ban, then that is another scenario. Has anyone spoken with our Sub Pro Board reps about this approach? (They are copied here.) Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Thu, Aug 10, 2023 at 10:15 AM Paul McGrady via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Hi Kurt, Thanks for this. I’m not sure I am understanding your concern. One of the basic tenants that everyone in the SubPro PDP agreed to was that, absent any changes captured in the Recommendations, that the status quo would prevail. All the letter does is ask for that. I feel better about sticking with the WG’s inability to change the status quo than I do asking the Board to write a policy when the community couldn’t agree to anything, even after two valiant efforts. We tried in the WG, we couldn’t get there, the status quo should prevail. We tried again at the request of the Board at the SO/AC level, we couldn’t get there, the status quo should prevail. The letter leaves open the possibility of future community work on this but notes there is no bandwidth or appetite to do so and we don’t want the next round held up. Help me understand you concern about asking the Board to maintain the status quo until/if the community comes up with a policy on these. Best, Paul From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of kurt kjpritz.com<http://kjpritz.com/> via council Sent: Thursday, August 10, 2023 3:45 AM To: John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> Cc: GNSO Council <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Update on Closed Generics Hi John: Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome. I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head. 1. I don’t understand how the SO/AC leaders have the authority to revise the PDP final report recommendation. The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round. The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.) We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them. 2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making. The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns. Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.) During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much. This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will “give up” and implement unsupported restrictions. 3. The decision to ban closed generics for an additional round contradicts the one step the Board took. The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision. Two additional points: 1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call. 2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy. If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board. Sincerely, Kurt On 10 Aug 2023, at 7:33 am, John McElwaine via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Dear Councilors, As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic. The dialogue participants have discussed the Chairs’ joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs’ letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided. The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group’s community wiki space and other relevant documentation, and the participants’ feedback on the consensus building techniques and approaches that were used for the dialogue. The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that: (1) closed generic gTLDs should not be viewed as a dependency for the next round; (2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed; and (3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue. Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs’ decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information. Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants’ feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions. Best regards, John Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure. 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Thanks Greg and Tomslin. Could someone please clarify the following for the discussion on Thursday? 1. Is it being proposed that Council will write to the Board saying Closed Generic applications should be accepted in the next round (subject to not moving forward in the evaluation process unless further policy is adopted by the Board?) 2. If Closed Generic applications are to be accepted, is Council, in its letter to the Board, going to clarify whether an open generic application can be put on hold as a result of a competing Closed Generic application for the same string? (What happened in the 2012 round in relation to this question?) Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com On Mon, Aug 21, 2023 at 6:52 AM DiBiase, Gregory <dibiase@amazon.com> wrote:
Hi Tomslin,
Good question. My opinion is that forming a new team is an option, but not a necessity. I am not sure we have the bandwidth to do so (at least in the short term).
Thanks,
Greg
*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *Tomslin Samme-Nlar via council *Sent:* Sunday, August 20, 2023 2:26 PM *To:* Anne ICANN <anneicanngnso@gmail.com> *Cc:* Avri Doria <avri.doria@board.icann.org>; COUNCIL@GNSO.ICANN.ORG *Subject:* RE: [EXTERNAL] [council] Update on Closed Generics
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Dear all,
Thanks Kurt and Anne for pointing out the concerns with the wording that we potentially could have used in the letter to the board regarding this issue.
I am in agreement that the council must intentionally be clear in the letter to the board that (a) GNSO still doesn't have any policy recommendation on this issue and (b) the next round should not be delayed based on this issue.
Regarding the 'third alternative' that has come up, would that mean we put a new team together *now*, with new composition rules and a new charter "based on the good work that has been done to date in the facilitated dialogue"? (We are yet to read the final report of the group but I think the group did a good job in exploring in-depth the problems and possibilities of closed generics). If the answer is yes to a new team, does it mean that the GNSO/GAC/ALAC leadership conclusion "that there is neither the need nor the community bandwidth to conduct additional work at this stage" false? (I thought the 3 community leadership were pretty accurate on that assertion).
Warmly,
Tomslin
On Thu, 17 Aug 2023 at 05:56, Anne ICANN via council < council@gnso.icann.org> wrote:
Many thanks, Susan. This is very helpful. I think the language stating that "any applications" for Closed Generics "should not proceed" is phrased in a manner which conveys a policy opinion that such applications should be accepted in the next round. (It essentially defines a status quo from 2012.) If GNSO is NOT deciding that policy issue, (and I don't think the Council can decide it without further policy work), then we should be clearer and that is why I suggested we simply say that (1) the next round should not be delayed based on this issue and that (2) the Council does not believe that the issue can be resolved by commencing a policy process such as EPDP.
More importantly, I think your recitation to Final Report language provides a possible constructive way forward which might be pursued in the Council''s statement to the Board. Essentially it says a process should involve a "clean slate" approach with non-interested parties. I'm pasting this below again for further discussion and consideration at Council:
*"The Working Group believes that if this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group *[emphasis added]."
This may make more sense as a proposed way forward unless we just want to hear from the Board first if they will be willing to make policy or are declining to make policy. It would be a real time saver if we could get some Board Sub Pro Caucus feedback on this issue.
Thanks for raising this third alternative that comes directly from the work of Sub Pro.
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso@gmail.com
On Wed, Aug 16, 2023 at 8:01 AM Susan Payne <susan.payne@comlaude.com> wrote:
Hi Anne
I wanted to share some thoughts on the two issues you raised.
*Issue #1*
I read Greg’s email as merely addressing the concern Kurt raised that we should not be instructing the Board what to do, rather than expressing some underlying intent to endorse accepting closed generic applications.
Is it the use of the wording “*unless and until there is a community-developed consensus policy in place, any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed”* in the original Chairs letter to the dialogue group that you feel implies this? My assumption would be that this isn’t the intent. “Should not proceed” in the last round was ICANN-speak for rejected or refused. Council certainly should discuss this, however, to be sure we are in agreement on what is the intent – and then the letter to the Board can be drafted accordingly.
To my mind, it would make no sense for Council to encourage that applicants to be permitted to apply for a closed generic, with that application then being placed on indefinite hold (if that were how one interpreted “should not proceed”) unless and until some policy is developed which, the Chairs letter indicates, we may not even be working on. If the Board decision is that closed generics will not be permitted to proceed, therefore, it would be preferable if the AGB makes it clear to applicants that they should not apply for a string if that is their intent. If an applicant nevertheless does submit an application for what is intended to be a closed generic, they could be given the option either to withdraw or to amend their application to be non-closed, as was the case in 2012. For the avoidance of doubt there was a third option in the 2012 round, to have the application placed on hold pending development of policy by SubPro. No applicants selected this option in the last round. For the future, it might be reasonable for applicants to have this option if policy work were underway, but not if it isn’t.
*Issue #2*
I don’t believe that Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. No doubt Council will discuss this next week.
I also do not believe that Council is *required* to develop a policy. SubPro attempted to do so and could not agree on recommendations. The Board invited the GNSO Council and GAC to start the facilitated dialogue on a workable framework “in the interest of helping the community make progress”. The GAC and/or GNSO Council could have refused to try this approach at that point, and so it is surely also open to either or both to inform the Board that we have taken this as far as we can for now.
If there were to be further policy work, I think many of us are of the view that you cannot keep putting the same people in a room and expecting them to somehow come out with a different outcome. The community has tried to develop a policy on this and has been unable to do so. As was noted at SubPro 23.1:
The Working Group believes that *if *this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group [emphasis added].
Susan
Susan Payne Head of Legal Policy Com Laude *T* +44 (0) 20 7421 8250 *Ext* 255
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*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *Anne ICANN via council *Sent:* Monday, August 14, 2023 5:18 PM *To:* DiBiase, Gregory <dibiase@amazon.com> *Cc:* COUNCIL@GNSO.ICANN.ORG; Avri Doria <avri.doria@board.icann.org> *Subject:* Re: [council] Update on Closed Generics
Thanks Greg - The point you make that there is as yet no official statement from Council to the Board on this issue is an important one. I think there is rough consensus at the Council level that we don't want the next round to be delayed by this issue. I think two significant questions remain as to the following:
Issue #1. Whether to accept applications for Closed Generics in the next round or to pause such applications pending future Board action or GNSO policy development efforts. The draft statements put forward so far would endorse accepting applications and that is also a policy statement which essentially defines the "status quo" as permitting such applications. (After all, closed generic applications could block open generic applications in that instance.) This is tricky because the GAC has reiterated that its previous Closed Generic advice is "standing advice". Would it be a solution for the Board to simply accept that advice in relation to a Closed Generic application and then accept applications in the next round but require the Applicant to prove that the application serves a public interest goal without specifying any standards that apply for that proof? Or could the Board say that it cannot accept the advice from the GAC because it would require ICANN to weigh the content of the Closed Generic application and to police the public interest goal issue during the term of the contract award, meaning the requirement of the GAC advice is out of scope for ICANN's mission as overly content -related? Maybe the Council should just say "don't delay the next round" and should not take a policy position on whether or not to accept Closed Generic applications when the next round opens, i.e. leave that to the Board to decide that policy issue as well?
Issue #2. Whether the Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. (I think it's possible the Board has the authority to request a formal policy process - not sure whether Council has the right to refuse to do so.) Did the Council already decide it would not undertake an existing policy process when it authorized the Facilitated Dialogue process? Does the statement need to reflect a Council decision in this regard and if so, does that need a separate vote from Council? Are we risking delay of the next round over the Council's failure to act on this policy issue? The Board invoked the Facilitated Dialogue process outside normal policy development channels but it appears that process failed.
Any thoughts re the above considerations ?
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso@gmail.com
On Mon, Aug 14, 2023 at 6:51 AM DiBiase, Gregory via council < council@gnso.icann.org> wrote:
Hi Kurt,
A couple thoughts here:
1. We have not communicated a decision or feedback to Board yet, so we have time to discuss our messaging (so far, the SO/AC chairs have sent a letter to the dialogue participants and the dialogue participants have agreed with the letter’s sentiment). 2. I think council is in agreement that work on closed generics cannot be a dependency for the next round and the Facilitated Dialogue on Closed Generic gTLDs should not continue to be the vehicle advancing this work (please let me know if I’m oversimplifying). If this is correct, I think we can simplify this issue to: how or if we should frame the “status quo” to the Board. More specifically, we can take a closer look at this proposed language from the letter to the dialogue participants:
1. “until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed;”
1. Perhaps we should modify this part to say closer to: “given that there is no community-developed policy on closed generics (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement), we acknowledge that the Board may not allow closed generics to proceed (in line with their position from the 20201 round) until policy is developed.” In other words, we don’t need to instruct the Board on what the status quo is, rather, we are informing them that a policy on closed generics has not been finalized and we recommend not delaying the next round until this policy work is completed.
I’m sure I have point 3 wrong as I am not as well-versed in subpro as others, but we can discuss further to make sure we are all aligned.
Thanks,
Greg
*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *kurt kjpritz.com via council *Sent:* Sunday, August 13, 2023 7:54 PM *To:* Paul McGrady <paul@elstermcgrady.com> *Cc:* Avri Doria <avri.doria@board.icann.org>; GNSO Council < council@gnso.icann.org> *Subject:* RE: [EXTERNAL] [council] Update on Closed Generics
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Replying to Paul (Hi Paul):
As pointed out by Anne (and Rubens in a parallel email exchange), the question of status quo is not settled. That is the reason the SubPro working group specifically asked the Board to settle the question.
The Board essentially created a new, temporary policy when it introduced an additional restriction into the criteria for delegating new TLDs. (I say temporary because the restriction was time-limited in a way.)
The SubPro final report does not recommend an extension of that restriction by way of a “pause,” the report specifically recommends something else. By recommending a pause, the SO/AC leadership would be amending the final report recommendation.
I wish I could be clearer. That somehow eludes me at the moment.
Kurt
On 11 Aug 2023, at 3:37 am, Anne ICANN <anneicanngnso@gmail.com> wrote:
Hi Kurt and Paul,
As I see it, the issue has come back to what constitutes the "status quo". This issue was hotly debated in the Sub Pro Working Group. Some maintained that there was no prohibition on the applications for Closed Generics because none was contained in the 2012 AGB. Others maintained that due to the GAC Advice and Board direction to "pause" pending policy development, the "status quo" is actually a "pause" which would be continued at the start of the next round. The risk I see for the ICANN Board in the latter situation is that those existing applications for Closed Generics (which are on hold) as well as any future applications to be taken in the next round (not prohibited by this recommendation) would build a case for Request for Reconsideration if the Board does not allow those applications to move forward. For example, the grounds might be Applicant Freedom of Expression under the Human Rights Core Value and the underlying principle of Applicant Freedom of Expression that has been affirmed by subsequent PDP work and is now being confirmed in the Sub Pro IRT process.
Another factor is that the Board has consistently declined to make policy. And I'm not certain that the GNSO Council actually has the authority to direct the Board to make a Closed Generic policy. Are you gentlemen certain that this is kosher?
Certainly I agree this issue should not hold up the next round but of course there is a year to go. If the Board is willing to take a decision on this, that is one scenario. If the Board is not willing to take a decision on this and/or is concerned about the risk of expensive litigation over a possible ban, then that is another scenario. Has anyone spoken with our Sub Pro Board reps about this approach? (They are copied here.)
Thank you,
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso@gmail.com
On Thu, Aug 10, 2023 at 10:15 AM Paul McGrady via council < council@gnso.icann.org> wrote:
Hi Kurt,
Thanks for this. I’m not sure I am understanding your concern. One of the basic tenants that everyone in the SubPro PDP agreed to was that, absent any changes captured in the Recommendations, that the status quo would prevail. All the letter does is ask for that. I feel better about sticking with the WG’s inability to change the status quo than I do asking the Board to write a policy when the community couldn’t agree to anything, even after two valiant efforts. We tried in the WG, we couldn’t get there, the status quo should prevail. We tried again at the request of the Board at the SO/AC level, we couldn’t get there, the status quo should prevail. The letter leaves open the possibility of future community work on this but notes there is no bandwidth or appetite to do so and we don’t want the next round held up. Help me understand you concern about asking the Board to maintain the status quo until/if the community comes up with a policy on these.
Best,
Paul
*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *kurt kjpritz.com via council *Sent:* Thursday, August 10, 2023 3:45 AM *To:* John McElwaine <john.mcelwaine@nelsonmullins.com> *Cc:* GNSO Council <council@gnso.icann.org> *Subject:* Re: [council] Update on Closed Generics
Hi John:
Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome.
I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head.
1. I don’t understand how the SO/AC leaders have the authority to revise the PDP final report recommendation.
The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round.
The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.)
We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them.
2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making.
The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns.
Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.)
During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much.
This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will “give up” and implement unsupported restrictions.
3. The decision to ban closed generics for an additional round contradicts the one step the Board took.
The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision.
Two additional points:
1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call.
2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy.
If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board.
Sincerely,
Kurt
On 10 Aug 2023, at 7:33 am, John McElwaine via council < council@gnso.icann.org> wrote:
Dear Councilors,
As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic.
The dialogue participants have discussed the Chairs’ joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs’ letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided.
The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group’s community wiki space and other relevant documentation, and the participants’ feedback on the consensus building techniques and approaches that were used for the dialogue.
The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that:
(1) closed generic gTLDs should not be viewed as a dependency for the next round;
(2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed*;* and
(3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue.
Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs’ decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information.
Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants’ feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions.
Best regards,
John
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Hi Anne, I think we’re discussing what, if any, instruction we should give to the Board in addition to the information that 1) finalization of policy on closed generics should not be a dependency for the next round; and 2) despite best efforts, the facilitated dialogue on closed generics did not reach a mutually agreed framework so this group is wrapping up and putting together a summary of their work. Thanks, Greg From: Anne ICANN <anneicanngnso@gmail.com> Sent: Monday, August 21, 2023 7:10 PM To: DiBiase, Gregory <dibiase@amazon.com> Cc: Tomslin Samme-Nlar <mesumbeslin@gmail.com>; Avri Doria <avri.doria@board.icann.org>; COUNCIL@GNSO.ICANN.ORG; becky.burr@board.icann.org Subject: RE: [EXTERNAL] [council] Update on Closed Generics CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you can confirm the sender and know the content is safe. Thanks Greg and Tomslin. Could someone please clarify the following for the discussion on Thursday? 1. Is it being proposed that Council will write to the Board saying Closed Generic applications should be accepted in the next round (subject to not moving forward in the evaluation process unless further policy is adopted by the Board?) 2. If Closed Generic applications are to be accepted, is Council, in its letter to the Board, going to clarify whether an open generic application can be put on hold as a result of a competing Closed Generic application for the same string? (What happened in the 2012 round in relation to this question?) Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Mon, Aug 21, 2023 at 6:52 AM DiBiase, Gregory <dibiase@amazon.com<mailto:dibiase@amazon.com>> wrote: Hi Tomslin, Good question. My opinion is that forming a new team is an option, but not a necessity. I am not sure we have the bandwidth to do so (at least in the short term). Thanks, Greg From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Tomslin Samme-Nlar via council Sent: Sunday, August 20, 2023 2:26 PM To: Anne ICANN <anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com>> Cc: Avri Doria <avri.doria@board.icann.org<mailto:avri.doria@board.icann.org>>; COUNCIL@GNSO.ICANN.ORG<mailto:COUNCIL@GNSO.ICANN.ORG> Subject: RE: [EXTERNAL] [council] Update on Closed Generics CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you can confirm the sender and know the content is safe. Dear all, Thanks Kurt and Anne for pointing out the concerns with the wording that we potentially could have used in the letter to the board regarding this issue. I am in agreement that the council must intentionally be clear in the letter to the board that (a) GNSO still doesn't have any policy recommendation on this issue and (b) the next round should not be delayed based on this issue. Regarding the 'third alternative' that has come up, would that mean we put a new team together now, with new composition rules and a new charter "based on the good work that has been done to date in the facilitated dialogue"? (We are yet to read the final report of the group but I think the group did a good job in exploring in-depth the problems and possibilities of closed generics). If the answer is yes to a new team, does it mean that the GNSO/GAC/ALAC leadership conclusion "that there is neither the need nor the community bandwidth to conduct additional work at this stage" false? (I thought the 3 community leadership were pretty accurate on that assertion). Warmly, Tomslin On Thu, 17 Aug 2023 at 05:56, Anne ICANN via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Many thanks, Susan. This is very helpful. I think the language stating that "any applications" for Closed Generics "should not proceed" is phrased in a manner which conveys a policy opinion that such applications should be accepted in the next round. (It essentially defines a status quo from 2012.) If GNSO is NOT deciding that policy issue, (and I don't think the Council can decide it without further policy work), then we should be clearer and that is why I suggested we simply say that (1) the next round should not be delayed based on this issue and that (2) the Council does not believe that the issue can be resolved by commencing a policy process such as EPDP. More importantly, I think your recitation to Final Report language provides a possible constructive way forward which might be pursued in the Council''s statement to the Board. Essentially it says a process should involve a "clean slate" approach with non-interested parties. I'm pasting this below again for further discussion and consideration at Council: "The Working Group believes that if this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group [emphasis added]." This may make more sense as a proposed way forward unless we just want to hear from the Board first if they will be willing to make policy or are declining to make policy. It would be a real time saver if we could get some Board Sub Pro Caucus feedback on this issue. Thanks for raising this third alternative that comes directly from the work of Sub Pro. Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Wed, Aug 16, 2023 at 8:01 AM Susan Payne <susan.payne@comlaude.com<mailto:susan.payne@comlaude.com>> wrote: Hi Anne I wanted to share some thoughts on the two issues you raised. Issue #1 I read Greg’s email as merely addressing the concern Kurt raised that we should not be instructing the Board what to do, rather than expressing some underlying intent to endorse accepting closed generic applications. Is it the use of the wording “unless and until there is a community-developed consensus policy in place, any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed” in the original Chairs letter to the dialogue group that you feel implies this? My assumption would be that this isn’t the intent. “Should not proceed” in the last round was ICANN-speak for rejected or refused. Council certainly should discuss this, however, to be sure we are in agreement on what is the intent – and then the letter to the Board can be drafted accordingly. To my mind, it would make no sense for Council to encourage that applicants to be permitted to apply for a closed generic, with that application then being placed on indefinite hold (if that were how one interpreted “should not proceed”) unless and until some policy is developed which, the Chairs letter indicates, we may not even be working on. If the Board decision is that closed generics will not be permitted to proceed, therefore, it would be preferable if the AGB makes it clear to applicants that they should not apply for a string if that is their intent. If an applicant nevertheless does submit an application for what is intended to be a closed generic, they could be given the option either to withdraw or to amend their application to be non-closed, as was the case in 2012. For the avoidance of doubt there was a third option in the 2012 round, to have the application placed on hold pending development of policy by SubPro. No applicants selected this option in the last round. For the future, it might be reasonable for applicants to have this option if policy work were underway, but not if it isn’t. Issue #2 I don’t believe that Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. No doubt Council will discuss this next week. I also do not believe that Council is required to develop a policy. SubPro attempted to do so and could not agree on recommendations. The Board invited the GNSO Council and GAC to start the facilitated dialogue on a workable framework “in the interest of helping the community make progress”. The GAC and/or GNSO Council could have refused to try this approach at that point, and so it is surely also open to either or both to inform the Board that we have taken this as far as we can for now. If there were to be further policy work, I think many of us are of the view that you cannot keep putting the same people in a room and expecting them to somehow come out with a different outcome. The community has tried to develop a policy on this and has been unable to do so. As was noted at SubPro 23.1: The Working Group believes that if this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group [emphasis added]. Susan Susan Payne Head of Legal Policy Com Laude T +44 (0) 20 7421 8250 Ext 255 [cid:image001.png@01D9D4DA.76883FA0]<https://comlaude.com/> Follow us on Linkedin<https://t-uk.xink.io/Tracking/Index/pRkAAGVfAADw_RQA0> and YouTube<https://t-uk.xink.io/Tracking/Index/bhkAAGVfAADw_RQA0> From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Anne ICANN via council Sent: Monday, August 14, 2023 5:18 PM To: DiBiase, Gregory <dibiase@amazon.com<mailto:dibiase@amazon.com>> Cc: COUNCIL@GNSO.ICANN.ORG<mailto:COUNCIL@GNSO.ICANN.ORG>; Avri Doria <avri.doria@board.icann.org<mailto:avri.doria@board.icann.org>> Subject: Re: [council] Update on Closed Generics Thanks Greg - The point you make that there is as yet no official statement from Council to the Board on this issue is an important one. I think there is rough consensus at the Council level that we don't want the next round to be delayed by this issue. I think two significant questions remain as to the following: Issue #1. Whether to accept applications for Closed Generics in the next round or to pause such applications pending future Board action or GNSO policy development efforts. The draft statements put forward so far would endorse accepting applications and that is also a policy statement which essentially defines the "status quo" as permitting such applications. (After all, closed generic applications could block open generic applications in that instance.) This is tricky because the GAC has reiterated that its previous Closed Generic advice is "standing advice". Would it be a solution for the Board to simply accept that advice in relation to a Closed Generic application and then accept applications in the next round but require the Applicant to prove that the application serves a public interest goal without specifying any standards that apply for that proof? Or could the Board say that it cannot accept the advice from the GAC because it would require ICANN to weigh the content of the Closed Generic application and to police the public interest goal issue during the term of the contract award, meaning the requirement of the GAC advice is out of scope for ICANN's mission as overly content -related? Maybe the Council should just say "don't delay the next round" and should not take a policy position on whether or not to accept Closed Generic applications when the next round opens, i.e. leave that to the Board to decide that policy issue as well? Issue #2. Whether the Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. (I think it's possible the Board has the authority to request a formal policy process - not sure whether Council has the right to refuse to do so.) Did the Council already decide it would not undertake an existing policy process when it authorized the Facilitated Dialogue process? Does the statement need to reflect a Council decision in this regard and if so, does that need a separate vote from Council? Are we risking delay of the next round over the Council's failure to act on this policy issue? The Board invoked the Facilitated Dialogue process outside normal policy development channels but it appears that process failed. Any thoughts re the above considerations ? Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Mon, Aug 14, 2023 at 6:51 AM DiBiase, Gregory via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Hi Kurt, A couple thoughts here: 1. We have not communicated a decision or feedback to Board yet, so we have time to discuss our messaging (so far, the SO/AC chairs have sent a letter to the dialogue participants and the dialogue participants have agreed with the letter’s sentiment). 2. I think council is in agreement that work on closed generics cannot be a dependency for the next round and the Facilitated Dialogue on Closed Generic gTLDs should not continue to be the vehicle advancing this work (please let me know if I’m oversimplifying). If this is correct, I think we can simplify this issue to: how or if we should frame the “status quo” to the Board. More specifically, we can take a closer look at this proposed language from the letter to the dialogue participants: * “until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed;” 1. Perhaps we should modify this part to say closer to: “given that there is no community-developed policy on closed generics (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement), we acknowledge that the Board may not allow closed generics to proceed (in line with their position from the 20201 round) until policy is developed.” In other words, we don’t need to instruct the Board on what the status quo is, rather, we are informing them that a policy on closed generics has not been finalized and we recommend not delaying the next round until this policy work is completed. I’m sure I have point 3 wrong as I am not as well-versed in subpro as others, but we can discuss further to make sure we are all aligned. Thanks, Greg From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of kurt kjpritz.com<http://kjpritz.com/> via council Sent: Sunday, August 13, 2023 7:54 PM To: Paul McGrady <paul@elstermcgrady.com<mailto:paul@elstermcgrady.com>> Cc: Avri Doria <avri.doria@board.icann.org<mailto:avri.doria@board.icann.org>>; GNSO Council <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: RE: [EXTERNAL] [council] Update on Closed Generics CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you can confirm the sender and know the content is safe. Replying to Paul (Hi Paul): As pointed out by Anne (and Rubens in a parallel email exchange), the question of status quo is not settled. That is the reason the SubPro working group specifically asked the Board to settle the question. The Board essentially created a new, temporary policy when it introduced an additional restriction into the criteria for delegating new TLDs. (I say temporary because the restriction was time-limited in a way.) The SubPro final report does not recommend an extension of that restriction by way of a “pause,” the report specifically recommends something else. By recommending a pause, the SO/AC leadership would be amending the final report recommendation. I wish I could be clearer. That somehow eludes me at the moment. Kurt On 11 Aug 2023, at 3:37 am, Anne ICANN <anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com>> wrote: Hi Kurt and Paul, As I see it, the issue has come back to what constitutes the "status quo". This issue was hotly debated in the Sub Pro Working Group. Some maintained that there was no prohibition on the applications for Closed Generics because none was contained in the 2012 AGB. Others maintained that due to the GAC Advice and Board direction to "pause" pending policy development, the "status quo" is actually a "pause" which would be continued at the start of the next round. The risk I see for the ICANN Board in the latter situation is that those existing applications for Closed Generics (which are on hold) as well as any future applications to be taken in the next round (not prohibited by this recommendation) would build a case for Request for Reconsideration if the Board does not allow those applications to move forward. For example, the grounds might be Applicant Freedom of Expression under the Human Rights Core Value and the underlying principle of Applicant Freedom of Expression that has been affirmed by subsequent PDP work and is now being confirmed in the Sub Pro IRT process. Another factor is that the Board has consistently declined to make policy. And I'm not certain that the GNSO Council actually has the authority to direct the Board to make a Closed Generic policy. Are you gentlemen certain that this is kosher? Certainly I agree this issue should not hold up the next round but of course there is a year to go. If the Board is willing to take a decision on this, that is one scenario. If the Board is not willing to take a decision on this and/or is concerned about the risk of expensive litigation over a possible ban, then that is another scenario. Has anyone spoken with our Sub Pro Board reps about this approach? (They are copied here.) Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Thu, Aug 10, 2023 at 10:15 AM Paul McGrady via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Hi Kurt, Thanks for this. I’m not sure I am understanding your concern. One of the basic tenants that everyone in the SubPro PDP agreed to was that, absent any changes captured in the Recommendations, that the status quo would prevail. All the letter does is ask for that. I feel better about sticking with the WG’s inability to change the status quo than I do asking the Board to write a policy when the community couldn’t agree to anything, even after two valiant efforts. We tried in the WG, we couldn’t get there, the status quo should prevail. We tried again at the request of the Board at the SO/AC level, we couldn’t get there, the status quo should prevail. The letter leaves open the possibility of future community work on this but notes there is no bandwidth or appetite to do so and we don’t want the next round held up. Help me understand you concern about asking the Board to maintain the status quo until/if the community comes up with a policy on these. Best, Paul From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of kurt kjpritz.com<http://kjpritz.com/> via council Sent: Thursday, August 10, 2023 3:45 AM To: John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> Cc: GNSO Council <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Update on Closed Generics Hi John: Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome. I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head. 1. I don’t understand how the SO/AC leaders have the authority to revise the PDP final report recommendation. The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round. The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.) We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them. 2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making. The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns. Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.) During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much. This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will “give up” and implement unsupported restrictions. 3. The decision to ban closed generics for an additional round contradicts the one step the Board took. The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision. Two additional points: 1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call. 2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy. If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board. Sincerely, Kurt On 10 Aug 2023, at 7:33 am, John McElwaine via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Dear Councilors, As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic. The dialogue participants have discussed the Chairs’ joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs’ letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided. The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group’s community wiki space and other relevant documentation, and the participants’ feedback on the consensus building techniques and approaches that were used for the dialogue. The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that: (1) closed generic gTLDs should not be viewed as a dependency for the next round; (2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed; and (3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue. Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs’ decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information. Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants’ feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions. Best regards, John Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure. 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Can we agree on the sentiment that we /should/ send some form of instruction? This directly relates to policy development and will ultimately come back to the GNSO Council, so we should adopt a position, even if it is a soft one. If I had to estimate, and this is personal conjecture, I would say that we lean towards this not being a dependency. Perhaps it is a question that should call for an expression of disagreement in case any representative feels strongly against this. Otherwise, we proceed with recommending it is not a dependency. Best, On 22 Aug 2023 13:24, DiBiase, Gregory via council wrote:
Hi Anne,
I think we’re discussing what, if any, instruction we should give to the Board in addition to the information that 1) finalization of policy on closed generics should not be a dependency for the next round; and 2) despite best efforts, the facilitated dialogue on closed generics did not reach a mutually agreed framework so this group is wrapping up and putting together a summary of their work.
Thanks,
Greg
*From:* Anne ICANN <anneicanngnso@gmail.com> *Sent:* Monday, August 21, 2023 7:10 PM *To:* DiBiase, Gregory <dibiase@amazon.com> *Cc:* Tomslin Samme-Nlar <mesumbeslin@gmail.com>; Avri Doria <avri.doria@board.icann.org>; COUNCIL@GNSO.ICANN.ORG; becky.burr@board.icann.org *Subject:* RE: [EXTERNAL] [council] Update on Closed Generics
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Thanks Greg and Tomslin.
Could someone please clarify the following for the discussion on Thursday?
1. Is it being proposed that Council will write to the Board saying Closed Generic applications should be accepted in the next round (subject to not moving forward in the evaluation process unless further policy is adopted by the Board?)
2. If Closed Generic applications are to be accepted, is Council, in its letter to the Board, going to clarify whether an open generic application can be put on hold as a result of a competing Closed Generic application for the same string? (What happened in the 2012 round in relation to this question?)
Thank you,
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso@gmail.com
On Mon, Aug 21, 2023 at 6:52 AM DiBiase, Gregory <dibiase@amazon.com> wrote:
Hi Tomslin,
Good question. My opinion is that forming a new team is an option, but not a necessity. I am not sure we have the bandwidth to do so (at least in the short term).
Thanks,
Greg
*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *Tomslin Samme-Nlar via council *Sent:* Sunday, August 20, 2023 2:26 PM *To:* Anne ICANN <anneicanngnso@gmail.com> *Cc:* Avri Doria <avri.doria@board.icann.org>; COUNCIL@GNSO.ICANN.ORG *Subject:* RE: [EXTERNAL] [council] Update on Closed Generics
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Dear all,
Thanks Kurt and Anne for pointing out the concerns with the wording that we potentially could have used in the letter to the board regarding this issue.
I am in agreement that the council must intentionally be clear in the letter to the board that (a) GNSO still doesn't have any policy recommendation on this issue and (b) the next round should not be delayed based on this issue.
Regarding the 'third alternative' that has come up, would that mean we put a new team together *now*, with new composition rules and a new charter "based on the good work that has been done to date in the facilitated dialogue"? (We are yet to read the final report of the group but I think the group did a good job in exploring in-depth the problems and possibilities of closed generics). If the answer is yes to a new team, does it mean that the GNSO/GAC/ALAC leadership conclusion "that there is neither the need nor the community bandwidth to conduct additional work at this stage" false? (I thought the 3 community leadership were pretty accurate on that assertion).
Warmly,
Tomslin
On Thu, 17 Aug 2023 at 05:56, Anne ICANN via council <council@gnso.icann.org> wrote:
Many thanks, Susan. This is very helpful. I think the language stating that "any applications" for Closed Generics "should not proceed" is phrased in a manner which conveys a policy opinion that such applications should be accepted in the next round. (It essentially defines a status quo from 2012.) If GNSO is NOT deciding that policy issue, (and I don't think the Council can decide it without further policy work), then we should be clearer and that is why I suggested we simply say that (1) the next round should not be delayed based on this issue and that (2) the Council does not believe that the issue can be resolved by commencing a policy process such as EPDP.
More importantly, I think your recitation to Final Report language provides a possible constructive way forward which might be pursued in the Council''s statement to the Board. Essentially it says a process should involve a "clean slate" approach with non-interested parties. I'm pasting this below again for further discussion and consideration at Council:
*"The Working Group believes that if this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group *[emphasis added]."
This may make more sense as a proposed way forward unless we just want to hear from the Board first if they will be willing to make policy or are declining to make policy. It would be a real time saver if we could get some Board Sub Pro Caucus feedback on this issue.
Thanks for raising this third alternative that comes directly from the work of Sub Pro.
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso@gmail.com
On Wed, Aug 16, 2023 at 8:01 AM Susan Payne <susan.payne@comlaude.com> wrote:
Hi Anne
I wanted to share some thoughts on the two issues you raised.
*Issue #1*
I read Greg’s email as merely addressing the concern Kurt raised that we should not be instructing the Board what to do, rather than expressing some underlying intent to endorse accepting closed generic applications.
Is it the use of the wording “*unless and until there is a community-developed consensus policy in place, any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed”* in the original Chairs letter to the dialogue group that you feel implies this? My assumption would be that this isn’t the intent. “Should not proceed” in the last round was ICANN-speak for rejected or refused. Council certainly should discuss this, however, to be sure we are in agreement on what is the intent – and then the letter to the Board can be drafted accordingly.
To my mind, it would make no sense for Council to encourage that applicants to be permitted to apply for a closed generic, with that application then being placed on indefinite hold (if that were how one interpreted “should not proceed”) unless and until some policy is developed which, the Chairs letter indicates, we may not even be working on. If the Board decision is that closed generics will not be permitted to proceed, therefore, it would be preferable if the AGB makes it clear to applicants that they should not apply for a string if that is their intent. If an applicant nevertheless does submit an application for what is intended to be a closed generic, they could be given the option either to withdraw or to amend their application to be non-closed, as was the case in 2012. For the avoidance of doubt there was a third option in the 2012 round, to have the application placed on hold pending development of policy by SubPro. No applicants selected this option in the last round. For the future, it might be reasonable for applicants to have this option if policy work were underway, but not if it isn’t.
*Issue #2*
I don’t believe that Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. No doubt Council will discuss this next week.
I also do not believe that Council is *required* to develop a policy. SubPro attempted to do so and could not agree on recommendations. The Board invited the GNSO Council and GAC to start the facilitated dialogue on a workable framework “in the interest of helping the community make progress”. The GAC and/or GNSO Council could have refused to try this approach at that point, and so it is surely also open to either or both to inform the Board that we have taken this as far as we can for now.
If there were to be further policy work, I think many of us are of the view that you cannot keep putting the same people in a room and expecting them to somehow come out with a different outcome. The community has tried to develop a policy on this and has been unable to do so. As was noted at SubPro 23.1:
The Working Group believes that *if *this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group [emphasis added].
Susan
Susan Payne Head of Legal Policy Com Laude *T*+44 (0) 20 7421 8250 *Ext* 255
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*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *Anne ICANN via council *Sent:* Monday, August 14, 2023 5:18 PM *To:* DiBiase, Gregory <dibiase@amazon.com> *Cc:* COUNCIL@GNSO.ICANN.ORG; Avri Doria <avri.doria@board.icann.org> *Subject:* Re: [council] Update on Closed Generics
Thanks Greg - The point you make that there is as yet no official statement from Council to the Board on this issue is an important one. I think there is rough consensus at the Council level that we don't want the next round to be delayed by this issue. I think two significant questions remain as to the following:
Issue #1. Whether to accept applications for Closed Generics in the next round or to pause such applications pending future Board action or GNSO policy development efforts. The draft statements put forward so far would endorse accepting applications and that is also a policy statement which essentially defines the "status quo" as permitting such applications. (After all, closed generic applications could block open generic applications in that instance.) This is tricky because the GAC has reiterated that its previous Closed Generic advice is "standing advice". Would it be a solution for the Board to simply accept that advice in relation to a Closed Generic application and then accept applications in the next round but require the Applicant to prove that the application serves a public interest goal without specifying any standards that apply for that proof? Or could the Board say that it cannot accept the advice from the GAC because it would require ICANN to weigh the content of the Closed Generic application and to police the public interest goal issue during the term of the contract award, meaning the requirement of the GAC advice is out of scope for ICANN's mission as overly content -related? Maybe the Council should just say "don't delay the next round" and should not take a policy position on whether or not to accept Closed Generic applications when the next round opens, i.e. leave that to the Board to decide that policy issue as well?
Issue #2. Whether the Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. (I think it's possible the Board has the authority to request a formal policy process - not sure whether Council has the right to refuse to do so.) Did the Council already decide it would not undertake an existing policy process when it authorized the Facilitated Dialogue process? Does the statement need to reflect a Council decision in this regard and if so, does that need a separate vote from Council? Are we risking delay of the next round over the Council's failure to act on this policy issue? The Board invoked the Facilitated Dialogue process outside normal policy development channels but it appears that process failed.
Any thoughts re the above considerations ?
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso@gmail.com
On Mon, Aug 14, 2023 at 6:51 AM DiBiase, Gregory via council <council@gnso.icann.org> wrote:
Hi Kurt,
A couple thoughts here:
1. We have not communicated a decision or feedback to Board yet, so we have time to discuss our messaging (so far, the SO/AC chairs have sent a letter to the dialogue participants and the dialogue participants have agreed with the letter’s sentiment). 2. I think council is in agreement that work on closed generics cannot be a dependency for the next round and the Facilitated Dialogue on Closed Generic gTLDs should not continue to be the vehicle advancing this work (please let me know if I’m oversimplifying). If this is correct, I think we can simplify this issue to: how or if we should frame the “status quo” to the Board. More specifically, we can take a closer look at this proposed language from the letter to the dialogue participants:
1. “until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed;”
3. Perhaps we should modify this part to say closer to: “given that there is no community-developed policy on closed generics (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement), we acknowledge that the Board may not allow closed generics to proceed (in line with their position from the 20201 round) until policy is developed.” In other words, we don’t need to instruct the Board on what the status quo is, rather, we are informing them that a policy on closed generics has not been finalized and we recommend not delaying the next round until this policy work is completed.
I’m sure I have point 3 wrong as I am not as well-versed in subpro as others, but we can discuss further to make sure we are all aligned.
Thanks,
Greg
*From:* council <council-bounces@gnso.icann.org <mailto:council-bounces@gnso.icann.org>> *On Behalf Of *kurt kjpritz.com <http://kjpritz.com/> via council *Sent:* Sunday, August 13, 2023 7:54 PM *To:* Paul McGrady <paul@elstermcgrady.com <mailto:paul@elstermcgrady.com>> *Cc:* Avri Doria <avri.doria@board.icann.org <mailto:avri.doria@board.icann.org>>; GNSO Council <council@gnso.icann.org <mailto:council@gnso.icann.org>> *Subject:* RE: [EXTERNAL] [council] Update on Closed Generics
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Replying to Paul (Hi Paul):
As pointed out by Anne (and Rubens in a parallel email exchange), the question of status quo is not settled. That is the reason the SubPro working group specifically asked the Board to settle the question.
The Board essentially created a new, temporary policy when it introduced an additional restriction into the criteria for delegating new TLDs. (I say temporary because the restriction was time-limited in a way.)
The SubPro final report does not recommend an extension of that restriction by way of a “pause,” the report specifically recommends something else. By recommending a pause, the SO/AC leadership would be amending the final report recommendation.
I wish I could be clearer. That somehow eludes me at the moment.
Kurt
On 11 Aug 2023, at 3:37 am, Anne ICANN <anneicanngnso@gmail.com <mailto:anneicanngnso@gmail.com>> wrote:
Hi Kurt and Paul,
As I see it, the issue has come back to what constitutes the "status quo". This issue was hotly debated in the Sub Pro Working Group. Some maintained that there was no prohibition on the applications for Closed Generics because none was contained in the 2012 AGB. Others maintained that due to the GAC Advice and Board direction to "pause" pending policy development, the "status quo" is actually a "pause" which would be continued at the start of the next round. The risk I see for the ICANN Board in the latter situation is that those existing applications for Closed Generics (which are on hold) as well as any future applications to be taken in the next round (not prohibited by this recommendation) would build a case for Request for Reconsideration if the Board does not allow those applications to move forward. For example, the grounds might be Applicant Freedom of Expression under the Human Rights Core Value and the underlying principle of Applicant Freedom of Expression that has been affirmed by subsequent PDP work and is now being confirmed in the Sub Pro IRT process.
Another factor is that the Board has consistently declined to make policy. And I'm not certain that the GNSO Council actually has the authority to direct the Board to make a Closed Generic policy. Are you gentlemen certain that this is kosher?
Certainly I agree this issue should not hold up the next round but of course there is a year to go. If the Board is willing to take a decision on this, that is one scenario. If the Board is not willing to take a decision on this and/or is concerned about the risk of expensive litigation over a possible ban, then that is another scenario. Has anyone spoken with our Sub Pro Board reps about this approach? (They are copied here.)
Thank you,
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso@gmail.com <mailto:anneicanngnso@gmail.com>
On Thu, Aug 10, 2023 at 10:15 AM Paul McGrady via council <council@gnso.icann.org <mailto:council@gnso.icann.org>> wrote:
Hi Kurt,
Thanks for this. I’m not sure I am understanding your concern. One of the basic tenants that everyone in the SubPro PDP agreed to was that, absent any changes captured in the Recommendations, that the status quo would prevail. All the letter does is ask for that. I feel better about sticking with the WG’s inability to change the status quo than I do asking the Board to write a policy when the community couldn’t agree to anything, even after two valiant efforts. We tried in the WG, we couldn’t get there, the status quo should prevail. We tried again at the request of the Board at the SO/AC level, we couldn’t get there, the status quo should prevail. The letter leaves open the possibility of future community work on this but notes there is no bandwidth or appetite to do so and we don’t want the next round held up. Help me understand you concern about asking the Board to maintain the status quo until/if the community comes up with a policy on these.
Best,
Paul
*From:* council <council-bounces@gnso.icann.org <mailto:council-bounces@gnso.icann.org>> *On Behalf Of *kurt kjpritz.com <http://kjpritz.com/> via council *Sent:* Thursday, August 10, 2023 3:45 AM *To:* John McElwaine <john.mcelwaine@nelsonmullins.com <mailto:john.mcelwaine@nelsonmullins.com>> *Cc:* GNSO Council <council@gnso.icann.org <mailto:council@gnso.icann.org>> *Subject:* Re: [council] Update on Closed Generics
Hi John:
Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome.
I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head.
1. I don’t understand how the SO/AC leaders have the authority to revise the PDP final report recommendation.
The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round.
The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.)
We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them.
2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making.
The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns.
Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.)
During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much.
This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will “give up” and implement unsupported restrictions.
3. The decision to ban closed generics for an additional round contradicts the one step the Board took.
The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision.
Two additional points:
1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call.
2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy.
If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board.
Sincerely,
Kurt
On 10 Aug 2023, at 7:33 am, John McElwaine via council <council@gnso.icann.org <mailto:council@gnso.icann.org>> wrote:
Dear Councilors,
As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic.
The dialogue participants have discussed the Chairs’ joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs’ letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided.
The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group’s community wiki space and other relevant documentation, and the participants’ feedback on the consensus building techniques and approaches that were used for the dialogue.
The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that:
(1) closed generic gTLDs should not be viewed as a dependency for the next round;
(2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed*;* and
(3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue.
Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs’ decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information.
Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants’ feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions.
Best regards,
John
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-- Mark W. Datysgeld [markwd.website <https://markwd.website>] Director at Governance Primer [governanceprimer.com <https://governanceprimer.com>] ICANN GNSO Councilor
Hi Greg (and others on this email list): Scrolling way up to Greg’s response to my initial email: thanks for taking time for the thoughtful response. It and the others contributing here have helped to clarify my thoughts. I (along with others on this list) agree with your two points that the Council should indicate that: the Closed Generics discussion should not delay the next gTLD round and that the Facilitated Discussion will not be a vehicle for resolving the issue. With regard to future direction, I believe the Council should rely on the Board-Facilitated Process for a GAC - GNSO Council Dialogue on Closed Generics: A Framing Paper prepared by ICANN<https://gnso.icann.org/sites/default/files/policy/2022/correspondence/gnso-council-et-al-to-fouqaurt-08mar22-en.pdf>: (p.6) "Should the dialogue not result in a mutually agreed framework, it may be presumed that the Board will need to decide on what the most appropriate action is, within the Bylaws-defined roles and respective remits of the Board, GAC and GNSO.” This direction indicates that the Board will be presumed to follow the recommendation in the SubPro Final report and make a determination on the approach to Closed Generics. I believe our language in reporting to the Board should refer to and mirror that of the framing paper: “..absent a mutually agreed framework and following the recommendations in the SubPro Final Report and the Board-Facilitated Process framing paper, it is for the Board to decide the appropriate action.” [Others can do better at the wording than I.] This would replace the language in bullet point (2), that includes the sentiment that Closed Generics “will not proceed,” of the draft letter. In support of this: * We should not: (1) imply or suggest that the Board might pause or go ahead with Closed generics for another round, or (2) suggest a form of “status quo.". Our response should be neutral in accordance with the Final Report recommendations. Any suggestions would contradict the Final Report without an appropriate basis of doing so. * As others have raised, we might point out the Final Report recommendation that subsequent policy work, “should also involve experts in the areas of competition law, public policy, and economics ... [, and] be performed by those ... that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications.” * The Board did not follow this advice in forming the Facilitated Process, but that is understandable as it was an attempt to develop a solution quickly. * The Board could initiate that work now … with the understanding that the work is not on the critical path to the next round. * I don’t think this direction improperly places the Board in a policy-making position. In effect, the Board created new policy (framed as “temporary”) when it banned Closed Generics in the last round. Board action here would be amending an action already taken. I hope this is helpful. Regards to all, Kurt PS: If the hyperlink above does not work, please see, https://gnso.icann.org/sites/default/files/policy/2022/correspondence/gnso-c... On 22 Aug 2023, at 12:10 pm, Anne ICANN via council <COUNCIL@gnso.icann.org<mailto:COUNCIL@gnso.icann.org>> wrote: Thanks Greg and Tomslin. Could someone please clarify the following for the discussion on Thursday? 1. Is it being proposed that Council will write to the Board saying Closed Generic applications should be accepted in the next round (subject to not moving forward in the evaluation process unless further policy is adopted by the Board?) 2. If Closed Generic applications are to be accepted, is Council, in its letter to the Board, going to clarify whether an open generic application can be put on hold as a result of a competing Closed Generic application for the same string? (What happened in the 2012 round in relation to this question?) Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Mon, Aug 21, 2023 at 6:52 AM DiBiase, Gregory <dibiase@amazon.com<mailto:dibiase@amazon.com>> wrote: Hi Tomslin, Good question. My opinion is that forming a new team is an option, but not a necessity. I am not sure we have the bandwidth to do so (at least in the short term). Thanks, Greg From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Tomslin Samme-Nlar via council Sent: Sunday, August 20, 2023 2:26 PM To: Anne ICANN <anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com>> Cc: Avri Doria <avri.doria@board.icann.org<mailto:avri.doria@board.icann.org>>; COUNCIL@GNSO.ICANN.ORG<mailto:COUNCIL@GNSO.ICANN.ORG> Subject: RE: [EXTERNAL] [council] Update on Closed Generics CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you can confirm the sender and know the content is safe. Dear all, Thanks Kurt and Anne for pointing out the concerns with the wording that we potentially could have used in the letter to the board regarding this issue. I am in agreement that the council must intentionally be clear in the letter to the board that (a) GNSO still doesn't have any policy recommendation on this issue and (b) the next round should not be delayed based on this issue. Regarding the 'third alternative' that has come up, would that mean we put a new team together now, with new composition rules and a new charter "based on the good work that has been done to date in the facilitated dialogue"? (We are yet to read the final report of the group but I think the group did a good job in exploring in-depth the problems and possibilities of closed generics). If the answer is yes to a new team, does it mean that the GNSO/GAC/ALAC leadership conclusion "that there is neither the need nor the community bandwidth to conduct additional work at this stage" false? (I thought the 3 community leadership were pretty accurate on that assertion). Warmly, Tomslin On Thu, 17 Aug 2023 at 05:56, Anne ICANN via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Many thanks, Susan. This is very helpful. I think the language stating that "any applications" for Closed Generics "should not proceed" is phrased in a manner which conveys a policy opinion that such applications should be accepted in the next round. (It essentially defines a status quo from 2012.) If GNSO is NOT deciding that policy issue, (and I don't think the Council can decide it without further policy work), then we should be clearer and that is why I suggested we simply say that (1) the next round should not be delayed based on this issue and that (2) the Council does not believe that the issue can be resolved by commencing a policy process such as EPDP. More importantly, I think your recitation to Final Report language provides a possible constructive way forward which might be pursued in the Council''s statement to the Board. Essentially it says a process should involve a "clean slate" approach with non-interested parties. I'm pasting this below again for further discussion and consideration at Council: "The Working Group believes that if this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group [emphasis added]." This may make more sense as a proposed way forward unless we just want to hear from the Board first if they will be willing to make policy or are declining to make policy. It would be a real time saver if we could get some Board Sub Pro Caucus feedback on this issue. Thanks for raising this third alternative that comes directly from the work of Sub Pro. Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Wed, Aug 16, 2023 at 8:01 AM Susan Payne <susan.payne@comlaude.com<mailto:susan.payne@comlaude.com>> wrote: Hi Anne I wanted to share some thoughts on the two issues you raised. Issue #1 I read Greg’s email as merely addressing the concern Kurt raised that we should not be instructing the Board what to do, rather than expressing some underlying intent to endorse accepting closed generic applications. Is it the use of the wording “unless and until there is a community-developed consensus policy in place, any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed” in the original Chairs letter to the dialogue group that you feel implies this? My assumption would be that this isn’t the intent. “Should not proceed” in the last round was ICANN-speak for rejected or refused. Council certainly should discuss this, however, to be sure we are in agreement on what is the intent – and then the letter to the Board can be drafted accordingly. To my mind, it would make no sense for Council to encourage that applicants to be permitted to apply for a closed generic, with that application then being placed on indefinite hold (if that were how one interpreted “should not proceed”) unless and until some policy is developed which, the Chairs letter indicates, we may not even be working on. If the Board decision is that closed generics will not be permitted to proceed, therefore, it would be preferable if the AGB makes it clear to applicants that they should not apply for a string if that is their intent. If an applicant nevertheless does submit an application for what is intended to be a closed generic, they could be given the option either to withdraw or to amend their application to be non-closed, as was the case in 2012. For the avoidance of doubt there was a third option in the 2012 round, to have the application placed on hold pending development of policy by SubPro. No applicants selected this option in the last round. For the future, it might be reasonable for applicants to have this option if policy work were underway, but not if it isn’t. Issue #2 I don’t believe that Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. No doubt Council will discuss this next week. I also do not believe that Council is required to develop a policy. SubPro attempted to do so and could not agree on recommendations. The Board invited the GNSO Council and GAC to start the facilitated dialogue on a workable framework “in the interest of helping the community make progress”. The GAC and/or GNSO Council could have refused to try this approach at that point, and so it is surely also open to either or both to inform the Board that we have taken this as far as we can for now. If there were to be further policy work, I think many of us are of the view that you cannot keep putting the same people in a room and expecting them to somehow come out with a different outcome. The community has tried to develop a policy on this and has been unable to do so. As was noted at SubPro 23.1: The Working Group believes that if this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group [emphasis added]. Susan Susan Payne Head of Legal Policy Com Laude T +44 (0) 20 7421 8250 Ext 255 <image001.png><https://comlaude.com/> Follow us on Linkedin<https://t-uk.xink.io/Tracking/Index/pRkAAGVfAADw_RQA0> and YouTube<https://t-uk.xink.io/Tracking/Index/bhkAAGVfAADw_RQA0> From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Anne ICANN via council Sent: Monday, August 14, 2023 5:18 PM To: DiBiase, Gregory <dibiase@amazon.com<mailto:dibiase@amazon.com>> Cc: COUNCIL@GNSO.ICANN.ORG<mailto:COUNCIL@GNSO.ICANN.ORG>; Avri Doria <avri.doria@board.icann.org<mailto:avri.doria@board.icann.org>> Subject: Re: [council] Update on Closed Generics Thanks Greg - The point you make that there is as yet no official statement from Council to the Board on this issue is an important one. I think there is rough consensus at the Council level that we don't want the next round to be delayed by this issue. I think two significant questions remain as to the following: Issue #1. Whether to accept applications for Closed Generics in the next round or to pause such applications pending future Board action or GNSO policy development efforts. The draft statements put forward so far would endorse accepting applications and that is also a policy statement which essentially defines the "status quo" as permitting such applications. (After all, closed generic applications could block open generic applications in that instance.) This is tricky because the GAC has reiterated that its previous Closed Generic advice is "standing advice". Would it be a solution for the Board to simply accept that advice in relation to a Closed Generic application and then accept applications in the next round but require the Applicant to prove that the application serves a public interest goal without specifying any standards that apply for that proof? Or could the Board say that it cannot accept the advice from the GAC because it would require ICANN to weigh the content of the Closed Generic application and to police the public interest goal issue during the term of the contract award, meaning the requirement of the GAC advice is out of scope for ICANN's mission as overly content -related? Maybe the Council should just say "don't delay the next round" and should not take a policy position on whether or not to accept Closed Generic applications when the next round opens, i.e. leave that to the Board to decide that policy issue as well? Issue #2. Whether the Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. (I think it's possible the Board has the authority to request a formal policy process - not sure whether Council has the right to refuse to do so.) Did the Council already decide it would not undertake an existing policy process when it authorized the Facilitated Dialogue process? Does the statement need to reflect a Council decision in this regard and if so, does that need a separate vote from Council? Are we risking delay of the next round over the Council's failure to act on this policy issue? The Board invoked the Facilitated Dialogue process outside normal policy development channels but it appears that process failed. Any thoughts re the above considerations ? Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Mon, Aug 14, 2023 at 6:51 AM DiBiase, Gregory via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Hi Kurt, A couple thoughts here: 1. We have not communicated a decision or feedback to Board yet, so we have time to discuss our messaging (so far, the SO/AC chairs have sent a letter to the dialogue participants and the dialogue participants have agreed with the letter’s sentiment). 2. I think council is in agreement that work on closed generics cannot be a dependency for the next round and the Facilitated Dialogue on Closed Generic gTLDs should not continue to be the vehicle advancing this work (please let me know if I’m oversimplifying). If this is correct, I think we can simplify this issue to: how or if we should frame the “status quo” to the Board. More specifically, we can take a closer look at this proposed language from the letter to the dialogue participants: * “until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed;” 1. Perhaps we should modify this part to say closer to: “given that there is no community-developed policy on closed generics (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement), we acknowledge that the Board may not allow closed generics to proceed (in line with their position from the 20201 round) until policy is developed.” In other words, we don’t need to instruct the Board on what the status quo is, rather, we are informing them that a policy on closed generics has not been finalized and we recommend not delaying the next round until this policy work is completed. I’m sure I have point 3 wrong as I am not as well-versed in subpro as others, but we can discuss further to make sure we are all aligned. Thanks, Greg From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of kurt kjpritz.com<http://kjpritz.com/> via council Sent: Sunday, August 13, 2023 7:54 PM To: Paul McGrady <paul@elstermcgrady.com<mailto:paul@elstermcgrady.com>> Cc: Avri Doria <avri.doria@board.icann.org<mailto:avri.doria@board.icann.org>>; GNSO Council <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: RE: [EXTERNAL] [council] Update on Closed Generics CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you can confirm the sender and know the content is safe. Replying to Paul (Hi Paul): As pointed out by Anne (and Rubens in a parallel email exchange), the question of status quo is not settled. That is the reason the SubPro working group specifically asked the Board to settle the question. The Board essentially created a new, temporary policy when it introduced an additional restriction into the criteria for delegating new TLDs. (I say temporary because the restriction was time-limited in a way.) The SubPro final report does not recommend an extension of that restriction by way of a “pause,” the report specifically recommends something else. By recommending a pause, the SO/AC leadership would be amending the final report recommendation. I wish I could be clearer. That somehow eludes me at the moment. Kurt On 11 Aug 2023, at 3:37 am, Anne ICANN <anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com>> wrote: Hi Kurt and Paul, As I see it, the issue has come back to what constitutes the "status quo". This issue was hotly debated in the Sub Pro Working Group. Some maintained that there was no prohibition on the applications for Closed Generics because none was contained in the 2012 AGB. Others maintained that due to the GAC Advice and Board direction to "pause" pending policy development, the "status quo" is actually a "pause" which would be continued at the start of the next round. The risk I see for the ICANN Board in the latter situation is that those existing applications for Closed Generics (which are on hold) as well as any future applications to be taken in the next round (not prohibited by this recommendation) would build a case for Request for Reconsideration if the Board does not allow those applications to move forward. For example, the grounds might be Applicant Freedom of Expression under the Human Rights Core Value and the underlying principle of Applicant Freedom of Expression that has been affirmed by subsequent PDP work and is now being confirmed in the Sub Pro IRT process. Another factor is that the Board has consistently declined to make policy. And I'm not certain that the GNSO Council actually has the authority to direct the Board to make a Closed Generic policy. Are you gentlemen certain that this is kosher? Certainly I agree this issue should not hold up the next round but of course there is a year to go. If the Board is willing to take a decision on this, that is one scenario. If the Board is not willing to take a decision on this and/or is concerned about the risk of expensive litigation over a possible ban, then that is another scenario. Has anyone spoken with our Sub Pro Board reps about this approach? (They are copied here.) Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Thu, Aug 10, 2023 at 10:15 AM Paul McGrady via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Hi Kurt, Thanks for this. I’m not sure I am understanding your concern. One of the basic tenants that everyone in the SubPro PDP agreed to was that, absent any changes captured in the Recommendations, that the status quo would prevail. All the letter does is ask for that. I feel better about sticking with the WG’s inability to change the status quo than I do asking the Board to write a policy when the community couldn’t agree to anything, even after two valiant efforts. We tried in the WG, we couldn’t get there, the status quo should prevail. We tried again at the request of the Board at the SO/AC level, we couldn’t get there, the status quo should prevail. The letter leaves open the possibility of future community work on this but notes there is no bandwidth or appetite to do so and we don’t want the next round held up. Help me understand you concern about asking the Board to maintain the status quo until/if the community comes up with a policy on these. Best, Paul From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of kurt kjpritz.com<http://kjpritz.com/> via council Sent: Thursday, August 10, 2023 3:45 AM To: John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> Cc: GNSO Council <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Update on Closed Generics Hi John: Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome. I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head. 1. I don’t understand how the SO/AC leaders have the authority to revise the PDP final report recommendation. The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round. The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.) We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them. 2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making. The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns. Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.) During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much. This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will “give up” and implement unsupported restrictions. 3. The decision to ban closed generics for an additional round contradicts the one step the Board took. The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision. Two additional points: 1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call. 2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy. If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board. Sincerely, Kurt On 10 Aug 2023, at 7:33 am, John McElwaine via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Dear Councilors, As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic. The dialogue participants have discussed the Chairs’ joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs’ letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided. The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group’s community wiki space and other relevant documentation, and the participants’ feedback on the consensus building techniques and approaches that were used for the dialogue. The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that: (1) closed generic gTLDs should not be viewed as a dependency for the next round; (2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed; and (3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue. Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs’ decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information. Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants’ feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions. Best regards, John Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure. 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Very interesting observations Kurt. This takes into account many different considerations that have been expressed on the list. I think it does a good job of avoiding taking an "on the fly" approach to expressing policy positions on the issue when, in fact, no policy process has actually been followed other than the Sub Pro PDP itself. I do still wonder if the Board will take action to "kick this back" to the GNSO but that is up to the Board. Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com On Tue, Aug 22, 2023 at 8:21 PM kurt kjpritz.com via council < council@gnso.icann.org> wrote:
Hi Greg (and others on this email list):
Scrolling way up to Greg’s response to my initial email: thanks for taking time for the thoughtful response. It and the others contributing here have helped to clarify my thoughts.
I (along with others on this list) agree with your two points that the Council should indicate that: the Closed Generics discussion should not delay the next gTLD round and that the Facilitated Discussion will not be a vehicle for resolving the issue.
With regard to future direction, I believe the Council should rely on the Board-Facilitated Process for a GAC - GNSO Council Dialogue on Closed Generics: A Framing Paper prepared by ICANN <https://gnso.icann.org/sites/default/files/policy/2022/correspondence/gnso-council-et-al-to-fouqaurt-08mar22-en.pdf>: (p.6)
"*Should the dialogue not result in a mutually agreed framework, it may be presumed that the Board will need to decide on what the most appropriate action is, within the Bylaws-defined roles and respective remits of the Board, GAC and GNSO.*”
This direction indicates that the Board will be presumed to follow the recommendation in the SubPro Final report and make a determination on the approach to Closed Generics. I believe our language in reporting to the Board should refer to and mirror that of the framing paper:
“..*absent a mutually agreed framework and following the recommendations in the SubPro Final Report and the Board-Facilitated Process framing paper, it is for the Board to decide the appropriate action.*” [Others can do better at the wording than I.]
This would replace the language in bullet point (2), that includes the sentiment that Closed Generics “will not proceed,” of the draft letter.
In support of this:
- We should not: (1) imply or suggest that the Board might pause or go ahead with Closed generics for another round, or (2) suggest a form of “status quo.". Our response should be neutral in accordance with the Final Report recommendations. Any suggestions would contradict the Final Report without an appropriate basis of doing so. - As others have raised, we might point out the Final Report recommendation that subsequent policy work, “should also involve experts in the areas of competition law, public policy, and economics ... [, and] be performed by those ... that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications.” - The Board did not follow this advice in forming the Facilitated Process, but that is understandable as it was an attempt to develop a solution quickly. - The Board could initiate that work now … with the understanding that the work is not on the critical path to the next round. - I don’t think this direction improperly places the Board in a policy-making position. In effect, the Board created new policy (framed as “temporary”) when it banned Closed Generics in the last round. Board action here would be amending an action already taken.
I hope this is helpful.
Regards to all,
Kurt
PS: If the hyperlink above does not work, please see, https://gnso.icann.org/sites/default/files/policy/2022/correspondence/gnso-c...
On 22 Aug 2023, at 12:10 pm, Anne ICANN via council < COUNCIL@gnso.icann.org> wrote:
Thanks Greg and Tomslin.
Could someone please clarify the following for the discussion on Thursday?
1. Is it being proposed that Council will write to the Board saying Closed Generic applications should be accepted in the next round (subject to not moving forward in the evaluation process unless further policy is adopted by the Board?)
2. If Closed Generic applications are to be accepted, is Council, in its letter to the Board, going to clarify whether an open generic application can be put on hold as a result of a competing Closed Generic application for the same string? (What happened in the 2012 round in relation to this question?)
Thank you, Anne
Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com
On Mon, Aug 21, 2023 at 6:52 AM DiBiase, Gregory <dibiase@amazon.com> wrote:
Hi Tomslin,
Good question. My opinion is that forming a new team is an option, but not a necessity. I am not sure we have the bandwidth to do so (at least in the short term).
Thanks,
Greg
*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *Tomslin Samme-Nlar via council *Sent:* Sunday, August 20, 2023 2:26 PM *To:* Anne ICANN <anneicanngnso@gmail.com> *Cc:* Avri Doria <avri.doria@board.icann.org>; COUNCIL@GNSO.ICANN.ORG *Subject:* RE: [EXTERNAL] [council] Update on Closed Generics
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Dear all,
Thanks Kurt and Anne for pointing out the concerns with the wording that we potentially could have used in the letter to the board regarding this issue.
I am in agreement that the council must intentionally be clear in the letter to the board that (a) GNSO still doesn't have any policy recommendation on this issue and (b) the next round should not be delayed based on this issue.
Regarding the 'third alternative' that has come up, would that mean we put a new team together *now*, with new composition rules and a new charter "based on the good work that has been done to date in the facilitated dialogue"? (We are yet to read the final report of the group but I think the group did a good job in exploring in-depth the problems and possibilities of closed generics). If the answer is yes to a new team, does it mean that the GNSO/GAC/ALAC leadership conclusion "that there is neither the need nor the community bandwidth to conduct additional work at this stage" false? (I thought the 3 community leadership were pretty accurate on that assertion).
Warmly,
Tomslin
On Thu, 17 Aug 2023 at 05:56, Anne ICANN via council < council@gnso.icann.org> wrote:
Many thanks, Susan. This is very helpful. I think the language stating that "any applications" for Closed Generics "should not proceed" is phrased in a manner which conveys a policy opinion that such applications should be accepted in the next round. (It essentially defines a status quo from 2012.) If GNSO is NOT deciding that policy issue, (and I don't think the Council can decide it without further policy work), then we should be clearer and that is why I suggested we simply say that (1) the next round should not be delayed based on this issue and that (2) the Council does not believe that the issue can be resolved by commencing a policy process such as EPDP.
More importantly, I think your recitation to Final Report language provides a possible constructive way forward which might be pursued in the Council''s statement to the Board. Essentially it says a process should involve a "clean slate" approach with non-interested parties. I'm pasting this below again for further discussion and consideration at Council:
*"The Working Group believes that if this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group *[emphasis added]."
This may make more sense as a proposed way forward unless we just want to hear from the Board first if they will be willing to make policy or are declining to make policy. It would be a real time saver if we could get some Board Sub Pro Caucus feedback on this issue.
Thanks for raising this third alternative that comes directly from the work of Sub Pro.
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso@gmail.com
On Wed, Aug 16, 2023 at 8:01 AM Susan Payne <susan.payne@comlaude.com> wrote:
Hi Anne
I wanted to share some thoughts on the two issues you raised.
*Issue #1*
I read Greg’s email as merely addressing the concern Kurt raised that we should not be instructing the Board what to do, rather than expressing some underlying intent to endorse accepting closed generic applications.
Is it the use of the wording “*unless and until there is a community-developed consensus policy in place, any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed”* in the original Chairs letter to the dialogue group that you feel implies this? My assumption would be that this isn’t the intent. “Should not proceed” in the last round was ICANN-speak for rejected or refused. Council certainly should discuss this, however, to be sure we are in agreement on what is the intent – and then the letter to the Board can be drafted accordingly.
To my mind, it would make no sense for Council to encourage that applicants to be permitted to apply for a closed generic, with that application then being placed on indefinite hold (if that were how one interpreted “should not proceed”) unless and until some policy is developed which, the Chairs letter indicates, we may not even be working on. If the Board decision is that closed generics will not be permitted to proceed, therefore, it would be preferable if the AGB makes it clear to applicants that they should not apply for a string if that is their intent. If an applicant nevertheless does submit an application for what is intended to be a closed generic, they could be given the option either to withdraw or to amend their application to be non-closed, as was the case in 2012. For the avoidance of doubt there was a third option in the 2012 round, to have the application placed on hold pending development of policy by SubPro. No applicants selected this option in the last round. For the future, it might be reasonable for applicants to have this option if policy work were underway, but not if it isn’t.
*Issue #2*
I don’t believe that Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. No doubt Council will discuss this next week.
I also do not believe that Council is *required* to develop a policy. SubPro attempted to do so and could not agree on recommendations. The Board invited the GNSO Council and GAC to start the facilitated dialogue on a workable framework “in the interest of helping the community make progress”. The GAC and/or GNSO Council could have refused to try this approach at that point, and so it is surely also open to either or both to inform the Board that we have taken this as far as we can for now.
If there were to be further policy work, I think many of us are of the view that you cannot keep putting the same people in a room and expecting them to somehow come out with a different outcome. The community has tried to develop a policy on this and has been unable to do so. As was noted at SubPro 23.1:
The Working Group believes that *if *this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group [emphasis added].
Susan
Susan Payne Head of Legal Policy Com Laude *T* +44 (0) 20 7421 8250 *Ext* 255
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*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *Anne ICANN via council *Sent:* Monday, August 14, 2023 5:18 PM *To:* DiBiase, Gregory <dibiase@amazon.com> *Cc:* COUNCIL@GNSO.ICANN.ORG; Avri Doria <avri.doria@board.icann.org> *Subject:* Re: [council] Update on Closed Generics
Thanks Greg - The point you make that there is as yet no official statement from Council to the Board on this issue is an important one. I think there is rough consensus at the Council level that we don't want the next round to be delayed by this issue. I think two significant questions remain as to the following:
Issue #1. Whether to accept applications for Closed Generics in the next round or to pause such applications pending future Board action or GNSO policy development efforts. The draft statements put forward so far would endorse accepting applications and that is also a policy statement which essentially defines the "status quo" as permitting such applications. (After all, closed generic applications could block open generic applications in that instance.) This is tricky because the GAC has reiterated that its previous Closed Generic advice is "standing advice". Would it be a solution for the Board to simply accept that advice in relation to a Closed Generic application and then accept applications in the next round but require the Applicant to prove that the application serves a public interest goal without specifying any standards that apply for that proof? Or could the Board say that it cannot accept the advice from the GAC because it would require ICANN to weigh the content of the Closed Generic application and to police the public interest goal issue during the term of the contract award, meaning the requirement of the GAC advice is out of scope for ICANN's mission as overly content -related? Maybe the Council should just say "don't delay the next round" and should not take a policy position on whether or not to accept Closed Generic applications when the next round opens, i.e. leave that to the Board to decide that policy issue as well?
Issue #2. Whether the Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. (I think it's possible the Board has the authority to request a formal policy process - not sure whether Council has the right to refuse to do so.) Did the Council already decide it would not undertake an existing policy process when it authorized the Facilitated Dialogue process? Does the statement need to reflect a Council decision in this regard and if so, does that need a separate vote from Council? Are we risking delay of the next round over the Council's failure to act on this policy issue? The Board invoked the Facilitated Dialogue process outside normal policy development channels but it appears that process failed.
Any thoughts re the above considerations ?
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso@gmail.com
On Mon, Aug 14, 2023 at 6:51 AM DiBiase, Gregory via council < council@gnso.icann.org> wrote:
Hi Kurt,
A couple thoughts here:
1. We have not communicated a decision or feedback to Board yet, so we have time to discuss our messaging (so far, the SO/AC chairs have sent a letter to the dialogue participants and the dialogue participants have agreed with the letter’s sentiment). 2. I think council is in agreement that work on closed generics cannot be a dependency for the next round and the Facilitated Dialogue on Closed Generic gTLDs should not continue to be the vehicle advancing this work (please let me know if I’m oversimplifying). If this is correct, I think we can simplify this issue to: how or if we should frame the “status quo” to the Board. More specifically, we can take a closer look at this proposed language from the letter to the dialogue participants:
1. “until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed;”
1. Perhaps we should modify this part to say closer to: “given that there is no community-developed policy on closed generics (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement), we acknowledge that the Board may not allow closed generics to proceed (in line with their position from the 20201 round) until policy is developed.” In other words, we don’t need to instruct the Board on what the status quo is, rather, we are informing them that a policy on closed generics has not been finalized and we recommend not delaying the next round until this policy work is completed.
I’m sure I have point 3 wrong as I am not as well-versed in subpro as others, but we can discuss further to make sure we are all aligned.
Thanks,
Greg
*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *kurt kjpritz.com via council *Sent:* Sunday, August 13, 2023 7:54 PM *To:* Paul McGrady <paul@elstermcgrady.com> *Cc:* Avri Doria <avri.doria@board.icann.org>; GNSO Council < council@gnso.icann.org> *Subject:* RE: [EXTERNAL] [council] Update on Closed Generics
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Replying to Paul (Hi Paul):
As pointed out by Anne (and Rubens in a parallel email exchange), the question of status quo is not settled. That is the reason the SubPro working group specifically asked the Board to settle the question.
The Board essentially created a new, temporary policy when it introduced an additional restriction into the criteria for delegating new TLDs. (I say temporary because the restriction was time-limited in a way.)
The SubPro final report does not recommend an extension of that restriction by way of a “pause,” the report specifically recommends something else. By recommending a pause, the SO/AC leadership would be amending the final report recommendation.
I wish I could be clearer. That somehow eludes me at the moment.
Kurt
On 11 Aug 2023, at 3:37 am, Anne ICANN <anneicanngnso@gmail.com> wrote:
Hi Kurt and Paul,
As I see it, the issue has come back to what constitutes the "status quo". This issue was hotly debated in the Sub Pro Working Group. Some maintained that there was no prohibition on the applications for Closed Generics because none was contained in the 2012 AGB. Others maintained that due to the GAC Advice and Board direction to "pause" pending policy development, the "status quo" is actually a "pause" which would be continued at the start of the next round. The risk I see for the ICANN Board in the latter situation is that those existing applications for Closed Generics (which are on hold) as well as any future applications to be taken in the next round (not prohibited by this recommendation) would build a case for Request for Reconsideration if the Board does not allow those applications to move forward. For example, the grounds might be Applicant Freedom of Expression under the Human Rights Core Value and the underlying principle of Applicant Freedom of Expression that has been affirmed by subsequent PDP work and is now being confirmed in the Sub Pro IRT process.
Another factor is that the Board has consistently declined to make policy. And I'm not certain that the GNSO Council actually has the authority to direct the Board to make a Closed Generic policy. Are you gentlemen certain that this is kosher?
Certainly I agree this issue should not hold up the next round but of course there is a year to go. If the Board is willing to take a decision on this, that is one scenario. If the Board is not willing to take a decision on this and/or is concerned about the risk of expensive litigation over a possible ban, then that is another scenario. Has anyone spoken with our Sub Pro Board reps about this approach? (They are copied here.)
Thank you,
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso@gmail.com
On Thu, Aug 10, 2023 at 10:15 AM Paul McGrady via council < council@gnso.icann.org> wrote:
Hi Kurt,
Thanks for this. I’m not sure I am understanding your concern. One of the basic tenants that everyone in the SubPro PDP agreed to was that, absent any changes captured in the Recommendations, that the status quo would prevail. All the letter does is ask for that. I feel better about sticking with the WG’s inability to change the status quo than I do asking the Board to write a policy when the community couldn’t agree to anything, even after two valiant efforts. We tried in the WG, we couldn’t get there, the status quo should prevail. We tried again at the request of the Board at the SO/AC level, we couldn’t get there, the status quo should prevail. The letter leaves open the possibility of future community work on this but notes there is no bandwidth or appetite to do so and we don’t want the next round held up. Help me understand you concern about asking the Board to maintain the status quo until/if the community comes up with a policy on these.
Best,
Paul
*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *kurt kjpritz.com via council *Sent:* Thursday, August 10, 2023 3:45 AM *To:* John McElwaine <john.mcelwaine@nelsonmullins.com> *Cc:* GNSO Council <council@gnso.icann.org> *Subject:* Re: [council] Update on Closed Generics
Hi John:
Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome.
I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head.
1. I don’t understand how the SO/AC leaders have the authority to revise the PDP final report recommendation.
The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round.
The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.)
We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them.
2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making.
The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns.
Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.)
During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much.
This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will “give up” and implement unsupported restrictions.
3. The decision to ban closed generics for an additional round contradicts the one step the Board took.
The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision.
Two additional points:
1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call.
2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy.
If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board.
Sincerely,
Kurt
On 10 Aug 2023, at 7:33 am, John McElwaine via council < council@gnso.icann.org> wrote:
Dear Councilors,
As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic.
The dialogue participants have discussed the Chairs’ joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs’ letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided.
The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group’s community wiki space and other relevant documentation, and the participants’ feedback on the consensus building techniques and approaches that were used for the dialogue.
The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that:
(1) closed generic gTLDs should not be viewed as a dependency for the next round;
(2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed*;* and
(3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue.
Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs’ decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information.
Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants’ feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions.
Best regards,
John
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Anne, I am fairly sure they will "kick this back" to us, at least based on their track record. On 23 Aug 2023 10:34, Anne ICANN via council wrote:
Very interesting observations Kurt. This takes into account many different considerations that have been expressed on the list. I think it does a good job of avoiding taking an "on the fly" approach to expressing policy positions on the issue when, in fact, no policy process has actually been followed other than the Sub Pro PDP itself.
I do still wonder if the Board will take action to "kick this back" to the GNSO but that is up to the Board.
Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com
On Tue, Aug 22, 2023 at 8:21 PM kurt kjpritz.com <http://kjpritz.com> via council <council@gnso.icann.org> wrote:
Hi Greg (and others on this email list):
Scrolling way up to Greg’s response to my initial email: thanks for taking time for the thoughtful response. It and the others contributing here have helped to clarify my thoughts.
I (along with others on this list) agree with your two points that the Council should indicate that: the Closed Generics discussion should not delay the next gTLD round and that the Facilitated Discussion will not be a vehicle for resolving the issue.
With regard to future direction, I believe the Council should rely on the Board-Facilitated Process for a GAC - GNSO Council Dialogue on Closed Generics: A Framing Paper prepared by ICANN <https://gnso.icann.org/sites/default/files/policy/2022/correspondence/gnso-council-et-al-to-fouqaurt-08mar22-en.pdf>: (p.6)
"/Should the dialogue not result in a mutually agreed framework, it may be presumed that the Board will need to decide on what the most appropriate action is, within the Bylaws-defined roles and respective remits of the Board, GAC and GNSO./”
This direction indicates that the Board will be presumed to follow the recommendation in the SubPro Final report and make a determination on the approach to Closed Generics. I believe our language in reporting to the Board should refer to and mirror that of the framing paper:
“../absent a mutually agreed framework and following the recommendations in the SubPro Final Report and the Board-Facilitated Process framing paper, it is for the Board to decide the appropriate action./” [Others can do better at the wording than I.]
This would replace the language in bullet point (2), that includes the sentiment that Closed Generics “will not proceed,” of the draft letter.
In support of this:
* We should not: (1) imply or suggest that the Board might pause or go ahead with Closed generics for another round, or (2) suggest a form of “status quo.". Our response should be neutral in accordance with the Final Report recommendations. Any suggestions would contradict the Final Report without an appropriate basis of doing so. * As others have raised, we might point out the Final Report recommendation that subsequent policy work, “should also involve experts in the areas of competition law, public policy, and economics ... [, and] be performed by those ... that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications.” o The Board did not follow this advice in forming the Facilitated Process, but that is understandable as it was an attempt to develop a solution quickly. o The Board could initiate that work now … with the understanding that the work is not on the critical path to the next round. * I don’t think this direction improperly places the Board in a policy-making position. In effect, the Board created new policy (framed as “temporary”) when it banned Closed Generics in the last round. Board action here would be amending an action already taken.
I hope this is helpful.
Regards to all,
Kurt
PS: If the hyperlink above does not work, please see, https://gnso.icann.org/sites/default/files/policy/2022/correspondence/gnso-c...
On 22 Aug 2023, at 12:10 pm, Anne ICANN via council <COUNCIL@gnso.icann.org> wrote:
Thanks Greg and Tomslin.
Could someone please clarify the following for the discussion on Thursday?
1. Is it being proposed that Council will write to the Board saying Closed Generic applications should be accepted in the next round (subject to not moving forward in the evaluation process unless further policy is adopted by the Board?)
2. If Closed Generic applications are to be accepted, is Council, in its letter to the Board, going to clarify whether an open generic application can be put on hold as a result of a competing Closed Generic application for the same string? (What happened in the 2012 round in relation to this question?)
Thank you, Anne
Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com
On Mon, Aug 21, 2023 at 6:52 AM DiBiase, Gregory <dibiase@amazon.com> wrote:
Hi Tomslin,
Good question. My opinion is that forming a new team is an option, but not a necessity. I am not sure we have the bandwidth to do so (at least in the short term).
Thanks,
Greg
*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *Tomslin Samme-Nlar via council *Sent:* Sunday, August 20, 2023 2:26 PM *To:* Anne ICANN <anneicanngnso@gmail.com> *Cc:* Avri Doria <avri.doria@board.icann.org>; COUNCIL@GNSO.ICANN.ORG *Subject:* RE: [EXTERNAL] [council] Update on Closed Generics
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Dear all,
Thanks Kurt and Anne for pointing out the concerns with the wording that we potentially could have used in the letter to the board regarding this issue.
I am in agreement that the council must intentionally be clear in the letter to the board that (a) GNSO still doesn't have any policy recommendation on this issue and (b) the next round should not be delayed based on this issue.
Regarding the 'third alternative' that has come up, would that mean we put a new team together *now*, with new composition rules and a new charter "based on the good work that has been done to date in the facilitated dialogue"? (We are yet to read the final report of the group but I think the group did a good job in exploring in-depth the problems and possibilities of closed generics). If the answer is yes to a new team, does it mean that the GNSO/GAC/ALAC leadership conclusion "that there is neither the need nor the community bandwidth to conduct additional work at this stage" false? (I thought the 3 community leadership were pretty accurate on that assertion).
Warmly,
Tomslin
On Thu, 17 Aug 2023 at 05:56, Anne ICANN via council <council@gnso.icann.org> wrote:
Many thanks, Susan. This is very helpful. I think the language stating that "any applications" for Closed Generics "should not proceed" is phrased in a manner which conveys a policy opinion that such applications should be accepted in the next round. (It essentially defines a status quo from 2012.) If GNSO is NOT deciding that policy issue, (and I don't think the Council can decide it without further policy work), then we should be clearer and that is why I suggested we simply say that (1) the next round should not be delayed based on this issue and that (2) the Council does not believe that the issue can be resolved by commencing a policy process such as EPDP.
More importantly, I think your recitation to Final Report language provides a possible constructive way forward which might be pursued in the Council''s statement to the Board. Essentially it says a process should involve a "clean slate" approach with non-interested parties. I'm pasting this below again for further discussion and consideration at Council:
*"The Working Group believes that if this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group *[emphasis added]."
This may make more sense as a proposed way forward unless we just want to hear from the Board first if they will be willing to make policy or are declining to make policy. It would be a real time saver if we could get some Board Sub Pro Caucus feedback on this issue.
Thanks for raising this third alternative that comes directly from the work of Sub Pro.
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso@gmail.com
On Wed, Aug 16, 2023 at 8:01 AM Susan Payne <susan.payne@comlaude.com> wrote:
Hi Anne
I wanted to share some thoughts on the two issues you raised.
*Issue #1*
I read Greg’s email as merely addressing the concern Kurt raised that we should not be instructing the Board what to do, rather than expressing some underlying intent to endorse accepting closed generic applications.
Is it the use of the wording “*unless and until there is a community-developed consensus policy in place, any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed”* in the original Chairs letter to the dialogue group that you feel implies this? My assumption would be that this isn’t the intent. “Should not proceed” in the last round was ICANN-speak for rejected or refused. Council certainly should discuss this, however, to be sure we are in agreement on what is the intent – and then the letter to the Board can be drafted accordingly.
To my mind, it would make no sense for Council to encourage that applicants to be permitted to apply for a closed generic, with that application then being placed on indefinite hold (if that were how one interpreted “should not proceed”) unless and until some policy is developed which, the Chairs letter indicates, we may not even be working on. If the Board decision is that closed generics will not be permitted to proceed, therefore, it would be preferable if the AGB makes it clear to applicants that they should not apply for a string if that is their intent. If an applicant nevertheless does submit an application for what is intended to be a closed generic, they could be given the option either to withdraw or to amend their application to be non-closed, as was the case in 2012. For the avoidance of doubt there was a third option in the 2012 round, to have the application placed on hold pending development of policy by SubPro. No applicants selected this option in the last round. For the future, it might be reasonable for applicants to have this option if policy work were underway, but not if it isn’t.
*Issue #2*
I don’t believe that Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. No doubt Council will discuss this next week.
I also do not believe that Council is *required* to develop a policy. SubPro attempted to do so and could not agree on recommendations. The Board invited the GNSO Council and GAC to start the facilitated dialogue on a workable framework “in the interest of helping the community make progress”. The GAC and/or GNSO Council could have refused to try this approach at that point, and so it is surely also open to either or both to inform the Board that we have taken this as far as we can for now.
If there were to be further policy work, I think many of us are of the view that you cannot keep putting the same people in a room and expecting them to somehow come out with a different outcome. The community has tried to develop a policy on this and has been unable to do so. As was noted at SubPro 23.1:
The Working Group believes that *if *this issue were to be considered in future policy work, it should also involve experts in the areas of competition law, public policy, and economics. In addition, it should be performed by those in the community that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications. Absent such independence, any future work is unlikely to result in an outcome any different than the one achieved in this Working Group [emphasis added].
Susan
Susan Payne Head of Legal Policy Com Laude *T*+44 (0) 20 7421 8250 *Ext* 255
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*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *Anne ICANN via council *Sent:* Monday, August 14, 2023 5:18 PM *To:* DiBiase, Gregory <dibiase@amazon.com> *Cc:* COUNCIL@GNSO.ICANN.ORG; Avri Doria <avri.doria@board.icann.org> *Subject:* Re: [council] Update on Closed Generics
Thanks Greg - The point you make that there is as yet no official statement from Council to the Board on this issue is an important one. I think there is rough consensus at the Council level that we don't want the next round to be delayed by this issue. I think two significant questions remain as to the following:
Issue #1. Whether to accept applications for Closed Generics in the next round or to pause such applications pending future Board action or GNSO policy development efforts. The draft statements put forward so far would endorse accepting applications and that is also a policy statement which essentially defines the "status quo" as permitting such applications. (After all, closed generic applications could block open generic applications in that instance.) This is tricky because the GAC has reiterated that its previous Closed Generic advice is "standing advice". Would it be a solution for the Board to simply accept that advice in relation to a Closed Generic application and then accept applications in the next round but require the Applicant to prove that the application serves a public interest goal without specifying any standards that apply for that proof? Or could the Board say that it cannot accept the advice from the GAC because it would require ICANN to weigh the content of the Closed Generic application and to police the public interest goal issue during the term of the contract award, meaning the requirement of the GAC advice is out of scope for ICANN's mission as overly content -related? Maybe the Council should just say "don't delay the next round" and should not take a policy position on whether or not to accept Closed Generic applications when the next round opens, i.e. leave that to the Board to decide that policy issue as well?
Issue #2. Whether the Council itself has taken a decision that it will not proceed to develop Closed Generic policy using an existing GNSO policy process. (I think it's possible the Board has the authority to request a formal policy process - not sure whether Council has the right to refuse to do so.) Did the Council already decide it would not undertake an existing policy process when it authorized the Facilitated Dialogue process? Does the statement need to reflect a Council decision in this regard and if so, does that need a separate vote from Council? Are we risking delay of the next round over the Council's failure to act on this policy issue? The Board invoked the Facilitated Dialogue process outside normal policy development channels but it appears that process failed.
Any thoughts re the above considerations ?
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso@gmail.com
On Mon, Aug 14, 2023 at 6:51 AM DiBiase, Gregory via council <council@gnso.icann.org> wrote:
Hi Kurt,
A couple thoughts here:
1. We have not communicated a decision or feedback to Board yet, so we have time to discuss our messaging (so far, the SO/AC chairs have sent a letter to the dialogue participants and the dialogue participants have agreed with the letter’s sentiment). 2. I think council is in agreement that work on closed generics cannot be a dependency for the next round and the Facilitated Dialogue on Closed Generic gTLDs should not continue to be the vehicle advancing this work (please let me know if I’m oversimplifying). If this is correct, I think we can simplify this issue to: how or if we should frame the “status quo” to the Board. More specifically, we can take a closer look at this proposed language from the letter to the dialogue participants:
1. “until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed;”
3. Perhaps we should modify this part to say closer to: “given that there is no community-developed policy on closed generics (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement), we acknowledge that the Board may not allow closed generics to proceed (in line with their position from the 20201 round) until policy is developed.” In other words, we don’t need to instruct the Board on what the status quo is, rather, we are informing them that a policy on closed generics has not been finalized and we recommend not delaying the next round until this policy work is completed.
I’m sure I have point 3 wrong as I am not as well-versed in subpro as others, but we can discuss further to make sure we are all aligned.
Thanks,
Greg
*From:* council <council-bounces@gnso.icann.org <mailto:council-bounces@gnso.icann.org>> *On Behalf Of *kurt kjpritz.com <http://kjpritz.com/> via council *Sent:* Sunday, August 13, 2023 7:54 PM *To:* Paul McGrady <paul@elstermcgrady.com <mailto:paul@elstermcgrady.com>> *Cc:* Avri Doria <avri.doria@board.icann.org <mailto:avri.doria@board.icann.org>>; GNSO Council <council@gnso.icann.org <mailto:council@gnso.icann.org>> *Subject:* RE: [EXTERNAL] [council] Update on Closed Generics
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Replying to Paul (Hi Paul):
As pointed out by Anne (and Rubens in a parallel email exchange), the question of status quo is not settled. That is the reason the SubPro working group specifically asked the Board to settle the question.
The Board essentially created a new, temporary policy when it introduced an additional restriction into the criteria for delegating new TLDs. (I say temporary because the restriction was time-limited in a way.)
The SubPro final report does not recommend an extension of that restriction by way of a “pause,” the report specifically recommends something else. By recommending a pause, the SO/AC leadership would be amending the final report recommendation.
I wish I could be clearer. That somehow eludes me at the moment.
Kurt
On 11 Aug 2023, at 3:37 am, Anne ICANN <anneicanngnso@gmail.com <mailto:anneicanngnso@gmail.com>> wrote:
Hi Kurt and Paul,
As I see it, the issue has come back to what constitutes the "status quo". This issue was hotly debated in the Sub Pro Working Group. Some maintained that there was no prohibition on the applications for Closed Generics because none was contained in the 2012 AGB. Others maintained that due to the GAC Advice and Board direction to "pause" pending policy development, the "status quo" is actually a "pause" which would be continued at the start of the next round. The risk I see for the ICANN Board in the latter situation is that those existing applications for Closed Generics (which are on hold) as well as any future applications to be taken in the next round (not prohibited by this recommendation) would build a case for Request for Reconsideration if the Board does not allow those applications to move forward. For example, the grounds might be Applicant Freedom of Expression under the Human Rights Core Value and the underlying principle of Applicant Freedom of Expression that has been affirmed by subsequent PDP work and is now being confirmed in the Sub Pro IRT process.
Another factor is that the Board has consistently declined to make policy. And I'm not certain that the GNSO Council actually has the authority to direct the Board to make a Closed Generic policy. Are you gentlemen certain that this is kosher?
Certainly I agree this issue should not hold up the next round but of course there is a year to go. If the Board is willing to take a decision on this, that is one scenario. If the Board is not willing to take a decision on this and/or is concerned about the risk of expensive litigation over a possible ban, then that is another scenario. Has anyone spoken with our Sub Pro Board reps about this approach? (They are copied here.)
Thank you,
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso@gmail.com <mailto:anneicanngnso@gmail.com>
On Thu, Aug 10, 2023 at 10:15 AM Paul McGrady via council <council@gnso.icann.org <mailto:council@gnso.icann.org>> wrote:
Hi Kurt,
Thanks for this. I’m not sure I am understanding your concern. One of the basic tenants that everyone in the SubPro PDP agreed to was that, absent any changes captured in the Recommendations, that the status quo would prevail. All the letter does is ask for that. I feel better about sticking with the WG’s inability to change the status quo than I do asking the Board to write a policy when the community couldn’t agree to anything, even after two valiant efforts. We tried in the WG, we couldn’t get there, the status quo should prevail. We tried again at the request of the Board at the SO/AC level, we couldn’t get there, the status quo should prevail. The letter leaves open the possibility of future community work on this but notes there is no bandwidth or appetite to do so and we don’t want the next round held up. Help me understand you concern about asking the Board to maintain the status quo until/if the community comes up with a policy on these.
Best,
Paul
*From:* council <council-bounces@gnso.icann.org <mailto:council-bounces@gnso.icann.org>> *On Behalf Of *kurt kjpritz.com <http://kjpritz.com/> via council *Sent:* Thursday, August 10, 2023 3:45 AM *To:* John McElwaine <john.mcelwaine@nelsonmullins.com <mailto:john.mcelwaine@nelsonmullins.com>> *Cc:* GNSO Council <council@gnso.icann.org <mailto:council@gnso.icann.org>> *Subject:* Re: [council] Update on Closed Generics
Hi John:
Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome.
I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head.
1. I don’t understand how the SO/AC leaders have the authority to revise the PDP final report recommendation.
The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round.
The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.)
We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them.
2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making.
The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns.
Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.)
During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much.
This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will “give up” and implement unsupported restrictions.
3. The decision to ban closed generics for an additional round contradicts the one step the Board took.
The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision.
Two additional points:
1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call.
2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy.
If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board.
Sincerely,
Kurt
On 10 Aug 2023, at 7:33 am, John McElwaine via council <council@gnso.icann.org <mailto:council@gnso.icann.org>> wrote:
Dear Councilors,
As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic.
The dialogue participants have discussed the Chairs’ joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs’ letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided.
The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group’s community wiki space and other relevant documentation, and the participants’ feedback on the consensus building techniques and approaches that were used for the dialogue.
The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that:
(1) closed generic gTLDs should not be viewed as a dependency for the next round;
(2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed*;* and
(3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue.
Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs’ decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information.
Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants’ feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions.
Best regards,
John
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Thanks Kurt. I also think the leadership draft contains a subtle underlying policy recommendation in favor of accepting new Closed Generic applications in the next round in the absence of developed policy on evaluating those applications. This is problematic in the face of standing GAC Consensus Advice not yet rejected by the Board. I don't think the Sub Pro WG discussed this particular policy issue presented by the current scenario. (Please see my note in response to Greg's email.) I'm a bit concerned that Council sending the letter to the Board will result in a request from the Board to Council to at least develop policy on that issue alone (accepting closed generic applications), if not a request to "go back to the drawing Board" to develop overall Closed Generics policy though an established GNSO policy-making mechanism such as EPDP. Perhaps Council should simply advise the Board that (1) Based on public comment, the Facilitated Dialogue process proved unsuccessful in this instance and (2) Council does not believe a further policy process would result in a consensus and therefore, the Board should decide the issues, including whether or not to accept Closed Generic applications in the next round. Not sure that approach would succeed but it would avoid deciding the policy issue on accepting applications when that topic was not specifically addressed (in the present scenario) by the Sub Pro WG. Anne Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com On Sun, Aug 13, 2023 at 7:54 PM kurt kjpritz.com <kurt@kjpritz.com> wrote:
Replying to Paul (Hi Paul):
As pointed out by Anne (and Rubens in a parallel email exchange), the question of status quo is not settled. That is the reason the SubPro working group specifically asked the Board to settle the question.
The Board essentially created a new, temporary policy when it introduced an additional restriction into the criteria for delegating new TLDs. (I say temporary because the restriction was time-limited in a way.)
The SubPro final report does not recommend an extension of that restriction by way of a “pause,” the report specifically recommends something else. By recommending a pause, the SO/AC leadership would be amending the final report recommendation.
I wish I could be clearer. That somehow eludes me at the moment.
Kurt
On 11 Aug 2023, at 3:37 am, Anne ICANN <anneicanngnso@gmail.com> wrote:
Hi Kurt and Paul,
As I see it, the issue has come back to what constitutes the "status quo". This issue was hotly debated in the Sub Pro Working Group. Some maintained that there was no prohibition on the applications for Closed Generics because none was contained in the 2012 AGB. Others maintained that due to the GAC Advice and Board direction to "pause" pending policy development, the "status quo" is actually a "pause" which would be continued at the start of the next round. The risk I see for the ICANN Board in the latter situation is that those existing applications for Closed Generics (which are on hold) as well as any future applications to be taken in the next round (not prohibited by this recommendation) would build a case for Request for Reconsideration if the Board does not allow those applications to move forward. For example, the grounds might be Applicant Freedom of Expression under the Human Rights Core Value and the underlying principle of Applicant Freedom of Expression that has been affirmed by subsequent PDP work and is now being confirmed in the Sub Pro IRT process.
Another factor is that the Board has consistently declined to make policy. And I'm not certain that the GNSO Council actually has the authority to direct the Board to make a Closed Generic policy. Are you gentlemen certain that this is kosher?
Certainly I agree this issue should not hold up the next round but of course there is a year to go. If the Board is willing to take a decision on this, that is one scenario. If the Board is not willing to take a decision on this and/or is concerned about the risk of expensive litigation over a possible ban, then that is another scenario. Has anyone spoken with our Sub Pro Board reps about this approach? (They are copied here.)
Thank you, Anne
Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2024 anneicanngnso@gmail.com
On Thu, Aug 10, 2023 at 10:15 AM Paul McGrady via council < council@gnso.icann.org> wrote:
Hi Kurt,
Thanks for this. I’m not sure I am understanding your concern. One of the basic tenants that everyone in the SubPro PDP agreed to was that, absent any changes captured in the Recommendations, that the status quo would prevail. All the letter does is ask for that. I feel better about sticking with the WG’s inability to change the status quo than I do asking the Board to write a policy when the community couldn’t agree to anything, even after two valiant efforts. We tried in the WG, we couldn’t get there, the status quo should prevail. We tried again at the request of the Board at the SO/AC level, we couldn’t get there, the status quo should prevail. The letter leaves open the possibility of future community work on this but notes there is no bandwidth or appetite to do so and we don’t want the next round held up. Help me understand you concern about asking the Board to maintain the status quo until/if the community comes up with a policy on these.
Best,
Paul
*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *kurt kjpritz.com via council *Sent:* Thursday, August 10, 2023 3:45 AM *To:* John McElwaine <john.mcelwaine@nelsonmullins.com> *Cc:* GNSO Council <council@gnso.icann.org> *Subject:* Re: [council] Update on Closed Generics
Hi John:
Thanks for taking time to make this detailed report, and also thanks to the well-intentioned people that participated in the effort, in particular, our GNSO representatives. I am not surprised by the outcome.
I am surprised by the recommendation to pause any release of closed generics to a future round. Such an action would turn the consensus-based policy development process on its head.
1. I don’t understand how the SO/AC leaders have the authority to revise the PDP final report recommendation.
The PDP final report (approved by each of the Councillors) stated that the closed generic decision should be left up to the ICANN Board. The final report did not recommend the conflicting direction that the closed generics ban be continued until a future round.
The Board made an attempt to (re)involve the community by inviting the GAC and GNSO to develop a solution. With that effort closed, we should revert back to the final report recommendations. We should not change the consensus position developed. Do we think the PDP team would have approved a recommendation to pause closed generics for an additional round? (No.)
We have thoroughly discussed the conditions under which a Council approved final report can be changed (e.g., GGP), and this is not one of them.
2. Continuing the ban on closed generics effectively abandons the consensus policy model of decision making.
The new gTLD policy developments, in 2007-8 and 2016-21 have asked the questions: (1) should there be a round of TLDs and, if yes, (2) what restrictions / conditions should be in place to address SSR, IP, and competition concerns.
Restrictions and conditions enjoying consensus support were implemented in the program. (An illustrative example is the RPM IRT, whose recommendations were ratified by the community STI.)
During discussions on closed generics, there were people for barring them, allowing them, and allowing them with restrictions. Pausing any introduction of closed generics essentially creates a policy advocated by a minority (and in any case not enjoying consensus support). The final report indicated as much.
This result provides an incentive to avoid compromise. Going forward, those wanting to implement an unsupported policy can refuse to compromise through a PDP and subsequent ad-hoc discussions with the hope that leadership will “give up” and implement unsupported restrictions.
3. The decision to ban closed generics for an additional round contradicts the one step the Board took.
The Board direction to the GAC-GNSO team established guardrails, prohibiting a model that would either ban or provide for the unrestricted release of closed generics. We cannot be sure this is where the Board will land absent input from the GAC-GNSO effort, but we should not erase the chance that the Board would develop a balanced decision.
Two additional points:
1. I do not believe that deferring the issue to the Board will delay the next round, despite the recent GAC-GNSO detour. The Board has more than a year to make a call.
2. I do not believe the Board is exceeding their authority in making the call. The GNSO specifically assigned the task to the Board as part of their policy management responsibility. In any event, the Board established that authority when it paused closed generics in 2012, contradicting the Council-approved policy.
If given the opportunity to participate in a discussion on this issue, I would oppose the recommendation that the issue should be paused, and closed generics banned for the reasons stated above. I would support the final report recommendation that the issue be decided by the Board.
Sincerely,
Kurt
On 10 Aug 2023, at 7:33 am, John McElwaine via council < council@gnso.icann.org> wrote:
Dear Councilors,
As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on Closed Generic gTLDs, I wanted to update you on the latest developments on this project. On 7 July 2023, after discussions amongst themselves that I also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter to the participants in the dialogue. For reasons set out in the letter, and in response to questions that the dialogue participants had referred to them (also noted in the letter), the three Chairs have collectively decided that it will be neither necessary to continue with the dialogue to develop a final framework nor initiate further policy development work on this topic.
The dialogue participants have discussed the Chairs’ joint letter and agreed to conclude their work as requested, including producing an outcomes report to ensure that the work to date is thoroughly documented. Participants also agreed to forward the Chairs’ letter to all the commenters that submitted input on the draft framework (viz., Tucows, RySG, BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to engage with the group to join their next call to clarify any significant concerns they raised in the feedback they provided.
The staff team that is supporting the dialogue is currently preparing a draft outcomes report for the group to review. The group intends for the outcomes report to serve as an introduction and summary of their work, including expressly clarifying that the draft framework the group published in June 2023 does not reflect agreed outcomes but, rather, was a product of compromise that was reached in the interests of soliciting community feedback on the various elements and points included in the draft framework. The outcomes report will also include all the community feedback that were submitted in full, links to the group’s community wiki space and other relevant documentation, and the participants’ feedback on the consensus building techniques and approaches that were used for the dialogue.
The group hopes to wrap up its work by September, in line with its previous plan to conclude the dialogue and final framework by end-Q3 2023. I understand that Sebastien, Nico and Jonathan will also be sending a separate communication to the ICANN Board that reflects the decision they took and, as stated in the letter, expressing the collective view that:
(1) closed generic gTLDs should not be viewed as a dependency for the next round;
(2) until there is community-developed policy, the Board should maintain the position from the 2012 round (i.e., any applications seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed*;* and
(3) should the community decide in the future to resume the policy discussions, this should be based on the good work that has been done to date in the facilitated dialogue.
Sebastien and I will be happy to answer any questions you may have on the letter, the Chairs’ decision and the proposed next steps. You may also wish to check in with the representatives that each of your Stakeholder Groups appointed to the dialogue for further information.
Finally, I am sure I speak for all of us when I say that we are very grateful to the dialogue participants and the staff support team for all the hard work and consensus building that resulted in a detailed and substantive, if preliminary, draft framework. I also hope that the participants’ feedback on the methods and techniques used in the dialogue, as well as other lessons learned from the experience, will provide the GNSO Council and community with useful information that we can put into practice in future policy discussions.
Best regards,
John
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participants (9)
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Anne ICANN -
DiBiase, Gregory -
John McElwaine -
kurt kjpritz.com -
Mark Datysgeld -
Mark W. Datysgeld
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Paul McGrady -
Susan Payne -
Tomslin Samme-Nlar