Dear All,

As per the action item of yesterday’s meeting, please find attached the presentation that was provided by Becky Burr to the GNSO Council during its Strategic Planning Session that took place in January of this year. Below you will also find the notes from this session that have been excerpted from GNSO Council Strategic Planning Meeting Report.

Best regards,

Caitlin, Berry and Marika

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From the GNSO Council Strategic Planning Meeting Report (see http://mm.icann.org/pipermail/council/attachments/20180307/1b480812/GNSOCouncilSPSMeetingReport29-31January2018-FINAL.pdf).

Objective: Explain the “picket fence” and ICANN SO/AC structure in the context of history of the organization and how this impacts on the GNSO’s role and function within ICANN

High level notes:

See presentation provided by Becky Burr (https://gnso.icann.org/en/picket-fence-concept-overview-29jan18-en.pdf).

• ICANN’s picket fence – what is it and where did it come from?
• In October 1998 agreement to transition from Verisign as sole registry and registrar for .com, .net and .org, followed by naming of competing registrars in April 1999.
• First registry agreement and registrar accreditation agreement signed on 10 November 1999.
• ICANN needed the ability to uniformly enforce obligations, including the ability to add additional obligations without contractual negotiations. As part of that discussion, there was a need to identify the areas in which such additional contractual obligations could be added, tied to ICANN’s mission as well as a process by which such additional contractual obligations could be developed.
• The “picket fence” characterized this area that would delineate the topics for which ICANN could enforce additional contractual obligations that would have gone through an agreed upon process; anything outside of that area would need to be the subject of contract negotiations.
• Registry and registrar agreements cover the picket fence in slightly divergent ways. A number of examples were included in the agreements to provide an illustration of what topics would be considered within the picket fence. 
• Picket fence incorporated into the post-transition Bylaws:
  • The mission of the Internet Corporation for Assigned Names and Numbers (“ICANN”) is to ensure the stable and secure operation of the Internet’s unique identifier systems … (the “Mission”). Specifically, ICANN:
    • Coordinates the allocation and assignment of names in the root zone of the Domain Name System (“DNS”) and coordinates the development and implementation of policies concerning the registration of second-level domain names in generic top-level domains (“gTLDs”). In this role, ICANN’s scope is to coordinate the development and implementation of policies:
      • For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS including, with respect to gTLD registrars and registries, policies in the areas described in Annex G-1 and Annex G-2; and
      • That are developed through a bottom-up consensus-based multistakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems.
• Annex G-2 (Registry specification):
  • The topics, issues, policies, procedures and principles referenced in Section 1.1(a)(i) with respect to gTLD registries are:
    • Issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet or DNS;
    •  functional and performance specifications for the provision of registry services;
    •  security and stability of the registry database for a TLD;
    •  registry policies reasonably necessary to implement Consensus Policies relating to registry operations or registrars;
    • resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names); or
    •  restrictions on cross-ownership of registry operators and registrars or registrar resellers and regulations and restrictions with respect to registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or registrar reseller are affiliated.
• Registrar specification (G-1) only differs with regards to domain name use.
• As a result of the transition-related work, namely the CCWG-Accountability recommendations, the picket fence was incorporated into the Bylaws as part of ICANN’s mission. The mission is now clarified to include the constraints that are in place with regards to ICANN’s authority and ability to enforce contractual obligations on the topics as outlined in the Bylaws.
• It was necessary from a contracted parties’ perspective to balance out ICANN’s need to develop policies and impose them on contracted parties, where those policies are necessary for security and stability reasons. Incorporating the picket fence into ICANN’s mission provides some measure of predictability and stability that businesses like contracted parties need. This sets up a unique situation whereby a contracting party is legally bound to terms which may not be consented to. 
• Picket fence circumscribes ICANN’s authority with regards to names.
• Effective policy-making requires that affected stakeholders be able to participate, hence the structure of the GNSO Council.
• In addition to examples of what is within the picket fence, the base registry and registrar agreements also contain certain examples of matters outside of the picket fence, such as pricing, fees paid to ICANN, etc.
• Picket fence concept is inherently based on consensus-driven process. There is more predictability in the sense that there is more discussion and understanding of the different positions, that you may not get in a voting model. Consensus provides balance against capture. It is also the tradition by which decisions are made in the technical community.
• ICANN Board has committed to tying decisions and actions explicitly to relevant Bylaws provisions that empower the Board to act or not act for any decisions going forward. SO/ACs will be encouraged to adopt this approach going forward.

Marika Konings

Vice President, Policy Development Support – GNSO, Internet Corporation for Assigned Names and Numbers (ICANN) 

Email: marika.konings@icann.org

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