February 2017 - Gnso-newgtld-wg-wt2

Please Review CC2 Questions
by Michael Flemming Feb. 21, 2017

Feb. 21, 2017

Dear All, While it has been circulated to the overall group, I thought it wouldn't hurt to mention it here, as well. We have not had a lot of time to touch on CC2 questions per WT2 because we are having such fruitful discussion in regards to the current material. I actually am very happy to say that. Still, *PLEASE REVIEW *CC2 Questions per WT2 and make suggestions to the current questions. I know everyone is very busy, but the deadline for this is right around the corner (before ICANN58). The link is below. https://docs.google.com/document/d/1iZBCVEAJPBYEDg7jLsMHKkNczR_b6-jH2Wl5eVH… Thank you so much! Kind regards, Michael Flemming

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Take Away and Policy Statement for Terms and Conditions Discussion
by Michael Flemming Feb. 21, 2017

Feb. 21, 2017

Dear All, I want to once again thank those who were able to make last Thursday's meeting in regards to the Terms and Conditions. While staff have already done a great job summarizing the discussion notes of Thursday's call, I want to follow up in a separate email about possible policy statement/recommendations per the discussion. *Overall Meeting Flow* We covered briefly a summary of all of the Terms and Conditions. I am attaching the revised slides (there was a typo or two and I am leaving out the CC2 questions) that dealt with our discussion. The table provided is my own quick summary and does not capture the more specific legal wording of each section. *Section 3: *ICANN reserving the right to determine not to proceed with any and all applications discussion take away: >From our discussion, something like the following could be considered as an applicable policy statement to ICANN. *"ICANN needs to have discretion within the confines of policy, the applicant guidebook, and the security and stability of the Internet when determining whether or not an applicant should not proceed. The current Terms and Conditions allows ICANN to arbitrarily determine that no applications could proceed to delegation. ICANN's determination must be limited only within the rules outlined in the Applicant Guidebook. Furthermore, ICANN should not be allowed to determine that no additional gTLDs will be created; rather, ICANN should consider any application for delegation that is submitted within the requirements of the applicant guidebook and follows all applicable rules of the application process."* *Section 6:* Covenant not to sue ICANN: Jeff Neuman provided a policy statement that we could further wordsmith as necessary. *" ICANN must build into the new gTLD Program appeals mechanisms to include the ability for applicants to challenge the decisions of the ICANN staff, the ICANN Board, and/or any entities delegated decision making authority over the assignment, contracting and delegation of new gTLDs. Such appeals mechanism must include the ability to review those decisions on the merits and not only with respect to whether ICANN violated the Bylaws . Only with such an appeals process performed by an independent entity could ICANN then include a covenant not to sue in the Applicant Terms and Conditions. However, the covenant not to sue shall not apply to cases alleging fraud, negligence or wilful misconduct."* *Section 14:* This section looked at the right of ICANN to make changes to the AGB as long as it does not cause hardship to those who have already submitted an application while at the same time allowing ICANN to work with such applicants to mitigate those hardships. Our discussion points concluded that while ICANN did make changes to the AGB and those did in fact cause hardship to applicants, ICANN did little to mitigate such hardship. Also, as a part of the overall WG, one of the areas we are looking at is predictability in the process. If predictability allows us to foresee certain changes to an extent, then this section will likely make more sense. All the same, I wonder if we could have more input on this topic before coming up with any possible possible recommendation if it would be deemed necessary. *Other Sections:* We also concluded to focus further discussion on the following sections, which relate to one of the above or need further clarification. *Section 5* - Up for consideration (in relation to Section 6). *Section 10* - This warrants looking at. It was mentioned that there was an issue of applicant assigning rights hasn't been honored. Kind regards, Michael Flemming

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- GDD Response to EBERO questions
by Steve Chan Feb. 17, 2017

Feb. 17, 2017

Dear WT2 Members, On the 19 January 2017 meeting of this Work Track, WT2 discussed Registrant Protections and in particular, the EBERO. During the course of the meeting, several questions were identified that the WT wanted to put forth to the GDD: Ask ICANN 1) has the Emergency Threshold been breached 2) has EBERO been triggered? 3) If someone went above the threshold and EBERO wasn't used, then why? Below, please see the response from GDD: “Section 6 of Specification 10 of the Registry Agreement for new gTLDs provides emergency thresholds for the 5 critical registry functions. Per the Registry Agreement, reaching any one of these thresholds could trigger an EBERO event. ICANN monitors registries’ performance of these critical registry functions, and regularly engages with Registry Operators and Registry Service Providers when service outages occur. Not all services outages reach emergency thresholds. If emergency thresholds are reached, ICANN evaluates each individual case and make decisions regarding whether to trigger an EBERO event based on the unique circumstances. Since the launch of the New gTLD program, an SLA has reached or exceeded the emergency threshold 27 times. However, no EBERO events have been declared to date. In each of these 27 cases, ICANN technical teams were already working with the registry before the threshold was reached. In many of the cases, the TLD had no registrations. In the cases in which there were registrations, ICANN considered the EBERO option. However, ICANN determined that it would have less of a security and stability impact to assist the RSP through resolution rather than activating an EBERO event.” Hopefully this response adequately addresses your questions. If you have any additional questions or require clarifications, please do not hesitate to let the policy staff support know and we will be sure to liaise with our GDD colleagues. Best, Steve Steven Chan  Sr. Policy Manager   ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536  steve.chan(a)icann.org mobile: +1.310.339.4410 office tel: +1.310.301.5800 office fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses and visiting the GNSO Newcomer pages. Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/ http://gnso.icann.org/en/

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recording, Attendance & AC Chat for New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues 16 February 2017
by Terri Agnew Feb. 16, 2017

Feb. 16, 2017

Dear All, Please find the attendance and recording of the call attached to this email. The AC recording and AC Chat are listed below for the New gTLD Subsequent Procedures Sub Team - Track 2 - Legal/Regulatory Issues held on Thursday, 16 February 2017 at 21:00 UTC. Adobe Connect recording (audio and visual): <https://participate.icann.org/p3tw0auf0j4/?OWASP_CSRFTOKEN=35164ca55b0b4325 1de3126b2595278b4418e8a455ee85906e150b73fd5ffb72> https://participate.icann.org/p3tw0auf0j4/ The recordings of the calls are posted on the GNSO Master Calendar page: <http://gnso.icann.org/en/group-activities/calendar> http://gnso.icann.org/en/group-activities/calendar ** Please let me know if your name has been left off the list ** Mailing list archives: <http://mm.icann.org/pipermail/gnso-newgtld-wg-wt2> http://mm.icann.org/pipermail/gnso-newgtld-wg-wt2 Agenda Wiki page: <https://community.icann.org/x/qbPDAw> https://community.icann.org/x/qbPDAw Thank you. Kind regards, Terri ------------------------------- Adobe Connect chat transcript for 16 February 2017 Terri Agnew:Welcome to the New gTLD Subsequent Procedures Sub Team - Track 2 - Legal/Regulatory Issues on Thursday, 16 February 2017 at 21:00 UTC Terri Agnew:agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_q bPDAw <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_ qbPDAw&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpC IgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=WM0d8ulWZC0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_0 0&s=CbEFokLhGUykcmR11WlYaAcuXXmYo203oOQPftznlqA&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=WM0d8ulWZC0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=Cb EFokLhGUykcmR11WlYaAcuXXmYo203oOQPftznlqA&e= Steve Chan:I'll work on that... Steve Chan:@Michael, all set to be able to display Module 6 Steve Chan:Available here: https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_en_a pplicants_agb_terms-2D04jun12-2Den.pdf <https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_en_ applicants_agb_terms-2D04jun12-2Den.pdf&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfk bPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=WM0d8ulWZ C0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=RgHTmU8ApAMiQEQnwHAvomYTRrlhRZOf8-vQEQ7 yDAs&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=WM0d8ulWZC0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=Rg HTmU8ApAMiQEQnwHAvomYTRrlhRZOf8-vQEQ7yDAs&e= Jeff Neuman:If I remember correctly, ICANN displayed this and required express agreement with these when submitting an application Steve Chan:@Jeff, if I recall, it was built into TAS. Jeff Neuman:Right. So before you ould hit "Submit", you had to agree to the Ts and Cs. Rubens Kuhl:So an applicant can challenge a decision in court before it's final ? ;-) Jon Nevett:on 14, should be material hardship to applicant Rubens Kuhl:"May not assign applicant rights" is an interesting reading considering .web and .blog. Mike Rodenbaugh:typo in 14 near end, should be "hardship to Applicant"? Rubens Kuhl:Mike, Michael mentioned it. You and Jon are on point. Jon Nevett:Last sentence is ok Rubens Kuhl:"Any fees submitted" implies some sort of 100% refund. Did it happen ? Susan Payne:@rubens I don't think so Mike Rodenbaugh:First two sentences, if taken literally, makes the entire contract illusory... ICANN has no obligation unless it chooses. Jon Nevett:I don't often say this, but Alan +1!! Mike Rodenbaugh:+1 Alan. More than unusual... illusory, unfair. Rubens Kuhl:But if we specify it, it might generate a situation where something arises that justifies not approving, but was not foreseen. Mike Rodenbaugh:ICANN has relied on this language (though from Module 3) in IRP proceedings against my client Alan Greenberg:Ah com'on Jon, we have agreed on occasional things in the past. Jon Nevett:absolutely -- just kidding! Jeff Neuman:How so Mike? Mike Rodenbaugh:"Unfettered discretion" destroys the whole point of the Guidebook, which was to take that discretion away from the Board (after the .XXX debacle) Alan Greenberg:Admittedly less often nowadays... Cheryl Langdon-Orr (CLO):different circumstances exist in future 'rounds' Ifrom the one that this part of the module covers for the earlier one Jeff Neuman:this is not based on policy recommendations Mike Rodenbaugh:@Jeff they have relied on Sec. 5.1 (not Module 3) in Islam/halal matter Mike Rodenbaugh:see their latest brief, p.20 Susan Payne:Name collision? home etc? Rubens Kuhl:There is also GAC Advice, which is also a different module. Jim Prendergast:wonder where mail, corp and home fit in. Jeff Neuman:Agree with Susan that if there were a challenge by .home and .corp, this clause would be invoked Susan Payne:also what about any closed generics who have not agreed to open up? Steve Chan:For context it might useful to review the T&Cs from the very first Applicant Guidebook in 2008. The language is not dramatically different: https://urldefense.proofpoint.com/v2/url?u=http-3A__archive.icann.org_en_top ics_new-2Dgtlds_terms-2D24oct08-2Den.pdf <https://urldefense.proofpoint.com/v2/url?u=http-3A__archive.icann.org_en_to pics_new-2Dgtlds_terms-2D24oct08-2Den.pdf&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzg fkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=WM0d8ul WZC0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=0_BXkKKozVxdQf8RUi1aNP1e7SFK3xeuISXcq xEPWSk&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=WM0d8ulWZC0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=0_ BXkKKozVxdQf8RUi1aNP1e7SFK3xeuISXcqxEPWSk&e= Jeff Neuman:@Susan, that is more clause 14 Rubens Kuhl:Covenant not to sue should actually be strengthned instead of removed. Steve Chan:And there was a Board resolution from Trondheim in 2010 that relates to this subject. Steve Chan:"The Board approves the inclusion of a broad waiver and limitation of liability in the application terms and conditions." - https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources _board-2Dmaterial_minutes-2D2010-2D09-2D25-2Den <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resource s_board-2Dmaterial_minutes-2D2010-2D09-2D25-2Den&d=DwIFaQ&c=FmY1u3PJp6wrcrwl l3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m= WM0d8ulWZC0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=i3clxGkQDeJfsUxKHvWAHLqNRp90GU rRLmUAwo9AqgI&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=WM0d8ulWZC0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=i3 clxGkQDeJfsUxKHvWAHLqNRp90GUrRLmUAwo9AqgI&e= Mike Rodenbaugh:@Jim I believe .home etc. are also in this netherworld of 'unfettered Board discretion' Mike Rodenbaugh:@Rubens I think I disagree strongly Susan Payne:@Jeff, sort of. that accounts for the changed position, but if the applicant has refused to open up they cannot proceed Jon Nevett:if ICANN had a fair dispute process, then I wouldn't disagree with Rubens as much Rubens Kuhl:@Mike, I understand why an US lawyer would prefer, so I think you might get why non-US applicants are not fond of it. Mike Rodenbaugh:please explain Rubens Kuhl:Home court advantage, using another meaning of the world "court". Mike Rodenbaugh:sorry but I don't understand. the covenant applies in any court. Rubens Kuhl:Jon, that's what WS2 is all about, I believe... and what WS2 fails to deliver, to possible activations of the Empowered Community. Jon Nevett:more than that Rubens Mike Rodenbaugh:It makes ICANN entirely unaccountable Rubens Kuhl:Which created a problem because then current accountability mechanisms only allowed procedural grounds. Alexander Schubert 2:we might add that speculator can't sue for private auction revenues either! Rubens Kuhl:And there might be substantive, not procedural issues, that might need to be challenged. Alexander Schubert 2:Rather applicant speculators can't sue ICANN for loss of private auction proceeds...... Trang Nguyen:@Mike: under the new Bylaws, IRP decisions are binding and enforceable in any court with proper jurisdiction (4.3.a.viii) Mike Rodenbaugh:resources are not an issue for ICANN wrt defending its actions in the New TLD Program. 1/3 of application fees setaside for that purpose... at least a hundred million dollars Rubens Kuhl:Fraud, neglience and grossful misconduct are likely already exclued by California law anyways... but mentioning it in writing is a good thing. Cheryl Langdon-Orr (CLO):exactly Jeff.., yes Trangie, thx for pointing that out Kevin Kreuser:I like Trangie - let's make that stick Mike Rodenbaugh:@Trang that refers to the procedure, not to the permissible content of such a decision... Susan Payne:agree Jon Mike Rodenbaugh:ICANN still argues that an IRP panel can't recommend any affirmative relief, but can only decide whether the Board violated Bylaws... Rubens Kuhl:Perhaps binding 3rd parties to ICANN Bylaws for those willing to become contractors to the program ? Rubens Kuhl:@Mike, most IRP panels disregarded that affirmative relief can't be awarded. But I believe one or two bought into JD standard argument to that. Mike Rodenbaugh:@Susan I think it's about half and half... Trang Nguyen:Ultimately, that's why the community asked the Board removal right, as the ultimate path of recourse. Mike Rodenbaugh:that is ridiculous Trang Nguyen:*for the Board.... Rubens Kuhl:@Trang the board removal is too much of a nuclear option to be considered in dealing with one single decision. The community might do that for a consistent pattern of misconduct. Trang Nguyen:The bylaws do provide for other paths...reconsideration, community IRP, the EC can take ICANN to court...these are the actions available to the EC under the new Bylaws. Jon Nevett:so they could double the application fee after receiving applications and not provide a refund? Jeff Neuman:Policy Statement: ICANN must strengthen its appeals mechanisms to include the ability for applicants to challenge the decisions of the ICANN staff, the ICANN Board, and/or any entities delegated decision making authority over the assignment, contracting and delegation of new gTLDs. Such appeals meachnism must include the ability to review those decisions on the merits and not only with respect to whether ICANN violated the Bylaws . Only with such an appeals process performed by an independent entity could ICANN then include a covenant not to sue in the Applicant Terms and Conditions. Rubens Kuhl:@Trang: is reconsideration still limited to procedural issues ? Jon Nevett:i don't think that recon is limited to procedural issues Trang Nguyen:@Rubens, the scope of the reconsideration process under the new bylaws has been expanded. Mike Rodenbaugh:yet remains untested Steve Chan:All, re: the drafting team Jeff is describing right now, there is only one volunteer at the moment. Trang Nguyen:...to include actions/inactions that contradict ICANN's Mission, Commitments, Core Values and/or established ICANN policy Rubens Kuhl:@Mike, all AGB changes will be definition be untested until the next procedure. Steve Chan:https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_do cument_d_1g-2DOoBec-5FQ6nnBofBvcTnfAotFh7yq07HUM7kxh62SYo_edit-23&d=DwIFaQ&c =FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa 0AIgn-H4xR2EBk&m=WM0d8ulWZC0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=kFy_jxgaIgS7o YJ-XuKGAo_CoqsORcstDGWIqMU2sQY&e= Rubens Kuhl:(by definition) Jeff Neuman:I will also review again as a proofreading exercise Rubens Kuhl:@Trang, so the only difference from what Jeff suggested is Board Governance Commitee x Independent 3rd party making a call. Jon Nevett:could we table that? Jeff Neuman:I think the rest of the Ts and Cs are mostly legal boilerplate Jon Nevett:i'd like to take a closer look Mike Rodenbaugh:me too Jim Prendergast:and give people not on call chance to respond Jeff Neuman:of course....we are not making final decisions here....just trying to have a discussion and trying to elicit known issues now Trang Nguyen:@Jeff, could you please clarify the reference to "strengthen its appeals mechanisms" in your proposed policy language? Mike Rodenbaugh:Indemnity deserves a closer look, at least should be consistent with narrower release of claims and covenant not to sue Jeff Neuman:@Trang, I am talking about appeals of decisions under the guidebook...NOT accountability mechanisms Rubens Kuhl:@Jeff, in the part where there is a covenant not to sue, we could suggest reinforcing it so it really stands if/when someone actually files a lawsuit. Trang Nguyen:Got it....thanks, Jeff! Jeff Neuman:SO I can reword that part Mike Rodenbaugh:Sec. 10 obviously needs some clarification Jon Nevett:what if ICANN breaches the terms of the AGB? Jon Nevett:what if ICANN deliberately reveals applicants proprietary financial information? Jon Nevett:or negligently? Jeff Neuman:Revised Statement: ICANN must build into the new gTLD Program appeals mechanisms to include the ability for applicants to challenge the decisions of the ICANN staff, the ICANN Board, and/or any entities delegated decision making authority over the assignment, contracting and delegation of new gTLDs. Such appeals mechanism must include the ability to review those decisions on the merits and not only with respect to whether ICANN violated the Bylaws . Only with such an appeals process performed by an independent entity could ICANN then include a covenant not to sue in the Applicant Terms and Conditions. However, the covenant not to sue shall not apply to cases alleging fraud, negligence or misconduct. Rubens Kuhl:"Applicant may not assign applicant rights" could even be read as preventing applicants from getting some types of risk capital. Mike Rodenbaugh:More thinking needs to happen about the CNTS Jon Nevett:Section 10 was a big part of the .web issue Mike Rodenbaugh:'negligence' and 'misconduct' are really vague Jeff Neuman:I had originally gross negligence and wilful misconduct but Jon said that was too narrow Mike Rodenbaugh:I agree with Jon, but 'misconduct' can mean literally anything Susan Payne:no Rubens Kuhl:Doesn't that limit ICANN's options on legal firms ? Jeff Neuman:ok.....I will revise the statement again...stay tuned Jon Nevett:if ICANN is negligent in doing the evaluation, shouldn't there be some recourse? Rubens Kuhl:(Sec. 13) Susan Payne:@Rubens I don't think it does, it just means you cannot prevent them using JD by citing conflict Rubens Kuhl:Ok, then it's not a problem. Steve Chan:As a reminder, the language on screen is in summary. Mike Rodenbaugh:@Jon, it is pretty easy to allege negligence as to just about any action or inaction whatsoever Jeff Neuman:Further Revised: Revised Statement: ICANN must build into the new gTLD Program appeals mechanisms to include the ability for applicants to challenge the decisions of the ICANN staff, the ICANN Board, and/or any entities delegated decision making authority over the assignment, contracting and delegation of new gTLDs. Such appeals mechanism must include the ability to review those decisions on the merits and not only with respect to whether ICANN violated the Bylaws . Only with such an appeals process performed by an independent entity could ICANN then include a covenant not to sue in the Applicant Terms and Conditions. However, the covenant not to sue shall not apply to cases alleging fraud, negligence or wilful misconduct. Steve Chan:Here again is the link to the complete language: https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_en_a pplicants_agb_terms-2D04jun12-2Den.pdf <https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_en_ applicants_agb_terms-2D04jun12-2Den.pdf&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfk bPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=WM0d8ulWZ C0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=RgHTmU8ApAMiQEQnwHAvomYTRrlhRZOf8-vQEQ7 yDAs&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=WM0d8ulWZC0TuPqSgB7jchPcrOgKmMQ-EY5HEGe4_00&s=Rg HTmU8ApAMiQEQnwHAvomYTRrlhRZOf8-vQEQ7yDAs&e= Jeff Neuman:Everyone please go to the CC2 Questions ASAP Rubens Kuhl:Jeff, on fraud/negligence, perhaps California law could be the basis for the phrase ? Jeff Neuman:and look at them to ake sure we have asked everything you wanted it to ask Jeff Neuman:@Rubens........Under California law, technically you can waive those rights...that is why i included them herer Steve Chan:@Michael, I think I'd prefer to send a reminder to the full WG, along with some explanation of timeline. Hope you don't mind? Terri Agnew:next call: New gTLD Subsequent Procedures Sub Team - Track 2 - Legal/Regulatory Issues will take place on Thursday, 02 March 2017 at 21:00 UTC for 60 minutes. Jeff Neuman:Agree this is a good stopping point. PLEASE Review the notes and let us know any other issues! Jeff Neuman:This was a great call. Lets not lose momentum Robert Burlingame:Thank you. Good discussions today. Jon Nevett:thanks all! Cheryl Langdon-Orr (CLO):good progress today... thanks all, bye for now Jeff Neuman:Thanks Michael. Susan Payne:thanks all Rubens Kuhl:Thanks all, bye!

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Actions/Discussion Notes: Work Track 2 SubTeam Meeting 16 February
by Julie Hedlund Feb. 16, 2017

Feb. 16, 2017

Dear Sub Team Members, Please see below the action items and discussion notes captured by staff from the meeting on 16 February. These high-level notes are designed to help Work Track Sub Team members navigate through the content of the call and are not a substitute for the chat room or the recording. See the chat room and recording on the meetings pages at: https://community.icann.org/display/NGSPP/Work+Track+2+Meetings. Please also see the attached slides referenced below. Excerpts from the chat room are included below for ease of reference. Best regards, Julie Julie Hedlund, Policy Director Action Items/Discussion Notes 16 February Agenda: 1. Welcome 2. SOI 3. Terms and Conditions 4. CC2 Questions 5. AOB Notes: 1. Terms and Conditions (slide 4) -- Part of the ABG -- module 6: https://newgtlds.icann.org/en/applicants/agb/terms-04jun12-en.pdf. -- Binding document. Background Information (Slides 5 and 6) >From the chat: Jeff Neuman: If I remember correctly, ICANN displayed this and required express agreement with these when submitting an application Steve Chan: @Jeff, if I recall, it was built into TAS. Jeff Neuman: Right. So before you ould hit "Submit", you had to agree to the Ts and Cs. Rubens Kuhl: So an applicant can challenge a decision in court before it's final ? ;-) Jon Nevett: on 14, should be material hardship to applicant. Mike Rodenbaugh: typo in 14 near end, should be "hardship to Applicant"? Mike Rodenbaugh: First two sentences, if taken literally, makes the entire contract illusory... ICANN has no obligation unless it chooses. Jon Nevett: I don't often say this, but Alan +1!! Rubens Kuhl: "May not assign applicant rights" is an interesting reading considering .web and .blog. Jon Nevett: Last sentence is ok. Rubens Kuhl: "Any fees submitted" implies some sort of 100% refund. Did it happen ? Susan Payne: @rubens I don't think so. Discussion Point 1 (slide 7) -- In regards to section 3 on ICANN reserving the right to determining not to proceed with any and all applications for new gTLDs. (See Section 3 of Module 6) -- Can see a rationale for ICANN having a right to reject anything. What seems to be the right to unilaterally reject a single application without a mention of why they can do that does sound unusual. -- Recommend that ICANN has some disgression within the confines of the policy and applicant guidebook. Shouldn't be as unfettered as it is now. It there is predictability there is no need for this. -- Relates to Work Track 3 as well on objections. -- Question: Does any GNSO policy provide recommendations that came out in the T&Cs? Answer: No. -- How they used this language -- makes them unaccountable whether the applicant has succeeded or not. -- Need a recommendation to ICANN that it needs to be accountable to decisions that they make within the scope of the AGB. >From the chat: Mike Rodenbaugh: First two sentences, if taken literally, makes the entire contract illusory... ICANN has no obligation unless it chooses. Jon Nevett: I don't often say this, but Alan +1!! Mike Rodenbaugh: +1 Alan. More than unusual... illusory, unfair. Rubens Kuhl: But if we specify it, it might generate a situation where something arises that justifies not approving, but was not foreseen. Mike Rodenbaugh: ICANN has relied on this language (though from Module 3) in IRP proceedings against my client. "Unfettered discretion" destroys the whole point of the Guidebook, which was to take that discretion away from the Board (after the .XXX debacle) Alan Greenberg: Admittedly less often nowadays... Cheryl Langdon-Orr (CLO): different circumstances exist in future 'rounds' Ifrom the one that this part of the module covers for the earlier one. Jim Prendergast: wonder where mail, corp and home fit in. Jeff Neuman: Agree with Susan that if there were a challenge by .home and .corp, this clause would be invoked Susan Payne: also what about any closed generics who have not agreed to open up? Steve Chan: For context it might useful to review the T&Cs from the very first Applicant Guidebook in 2008. The language is not dramatically different: http://archive.icann.org/en/topics/new-gtlds/terms-24oct08-en.pdf. And there was a Board resolution from Trondheim in 2010 that relates to this subject: "The Board approves the inclusion of a broad waiver and limitation of liability in the application terms and conditions." - https://www.icann.org/resources/board-material/minutes-2010-09-25-en. Discussion Point 2 -- Section 6: "Covenant not to sue ICANN" (Slide 8) -- This makes ICANN entirely unaccountable. -- In general, there is a strong need for a convenant excluding fraud and gross negligance. Previous case practically bankrupted ICANN. Include the ability to enforce an IRP/appeals mechanism. Also need to include an appeals mechanism (Work Track 3). -- ICANN needs to be more accountable to the applicants, but with a strong appeals mechanism then a covenant may not be so bad. -- Being negligent is not a violation of ICANN Bylaws. -- Need to be borders of what ICANN is, and is not, responsible for. -- Discuss policy recommendation language over email. >From the chat: Rubens Kuhl: @Mike, I understand why an US lawyer would prefer, so I think you might get why non-US applicants are not fond of it. Mike Rodenbaugh: please explain Rubens Kuhl: Home court advantage, using another meaning of the world "court". Mike Rodenbaugh: sorry but I don't understand. the covenant applies in any court. Rubens Kuhl: Jon, that's what WS2 is all about, I believe... and what WS2 fails to deliver, to possible activations of the Empowered Community. Jon Nevett: more than that Rubens Mike Rodenbaugh: It makes ICANN entirely unaccountable Trang Nguyen: @Mike: under the new Bylaws, IRP decisions are binding and enforceable in any court with proper jurisdiction (4.3.a.viii). Mike Rodenbaugh: @Trang that refers to the procedure, not to the permissible content of such a decision...ICANN still argues that an IRP panel can't recommend any affirmative relief, but can only decide whether the Board violated Bylaws... Rubens Kuhl: Fraud, neglience and grossful misconduct are likely already exclued by California law anyways... but mentioning it in writing is a good thing. Rubens Kuhl: Perhaps binding 3rd parties to ICANN Bylaws for those willing to become contractors to the program ? @Mike, most IRP panels disregarded that affirmative relief can't be awarded. But I believe one or two bought into JD standard argument to that. Jeff Neuman: Further Revised: ICANN must build into the new gTLD Program appeals mechanisms to include the ability for applicants to challenge the decisions of the ICANN staff, the ICANN Board, and/or any entities delegated decision making authority over the assignment, contracting and delegation of new gTLDs. Such appeals mechanism must include the ability to review those decisions on the merits and not only with respect to whether ICANN violated the Bylaws. Only with such an appeals process performed by an independent entity could ICANN then include a covenant not to sue in the Applicant Terms and Conditions. However, the covenant not to sue shall not apply to cases alleging fraud, negligence or wilful misconduct. Discussion Point 3 -- Section 14: In regards to section 14 that ICANN reserves the right to make reasonable updates and changes to the applicant guidebook and the application process (slide 9) -- The problem with this one, which was hard to explain, you are expecting them (applicants) to put a lot of resources behind it and expecting them to be bound by provisions that you don't know what they are. If the rules changed and the applicant withdrew they are not recompensed. -- One of the things we are working on in the overall issues is a mechanism for better predictability and a better change process. Then this section would be subject to that change process. Other Sections to Review: -- Section 5 -- Up for consideration (slide 5) -- Section 10 -- (slide 6) -- warrants looking at. Issue of applicant assigning rights hasn't been honored. 2. CC2 Questions -- Staff will circulate the link to the full WG. -- Some of our most important work to get as much feedback as possible.

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Agenda for 16 February 2017, 21:00 UTC WT2 Meeting
by Michael Flemming Feb. 16, 2017

Feb. 16, 2017

Dear All, I hope February is going well for everyone. I am submitting the agenda for the 16 February WT2 meeting at 21:00 UTC. Just so everyone knows, from this week we will begin using the 21 UTC rather than the previous 20 UTC slot. We will try to make adjustments when this conflicts with other high interest meetings. >From this week we will begin looking at the Terms and Conditions (Module 6) of the Applicant Guidebook. The aim is to limit meeting time per this subject to this one meeting and continue any additional discussion through the mailing list. We will also be looking at CC2 questions, as well. Below is the agenda for the meeting. 1. Welcome 2. SOI 3. Terms and Conditions 4. CC2 Questions 5. AOB Please note the slides we will use in the meeting are attached. For further background material, please review Module 6 of the Applicant Guidebook. This can be found on the ICANN New gTLD microsite or in the link below. https://newgtlds.icann.org/en/applicants/agb/terms-04jun12-en.pdf I look forward to speaking with everyone during the meeting. Kind regards, Michael Flemming

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Relative article in regards to Terms and Conditions of Applicant Guidebook
by Michael Flemming Feb. 15, 2017

Feb. 15, 2017

Dear All, Prior to our call this Thursday to discuss the T&Cs (Module 6) of AGB, there was a suggestion to share this article in regards to the most recent episode of the .africa court case. The previous ruling that stated the "covenant not to sue" was unenforceable, has now been overturned in the latest ruling on the case. As such, by this ruling, the covenant is now enforceable. http://domainincite.com/21529-africa-to-finally-go-live-after-judge-denies-… My own understanding and interpretation of this is as it resonates in the article, the covenant not to sue ICANN is enforceable. However, I would very much like to hear back from our participants with a more legal background on this. I don't think this is case closed for us on the T&Cs, but perhaps will provide for better discussion material this Thursday. Any thoughts? Regards, Michael Flemming

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recording, Attendance & AC Chat for New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues 02 February 2017
by Terri Agnew Feb. 2, 2017

Feb. 2, 2017

Dear All, Please find the attendance and recording of the call attached to this email. The AC recording and AC Chat are listed below for the New gTLD Subsequent Procedures Sub Team - Track 2 - Legal/Regulatory Issues held on Thursday, 02 February 2017 at 20:00 UTC. Adobe Connect recording (audio and visual): <https://participate.icann.org/p8dnk5nag5m/?OWASP_CSRFTOKEN=3301ff0f1fff3dfc 78bdba634380b2dc21423ab6ed922f1b623118fc8ae11f01> https://participate.icann.org/p8dnk5nag5m/ The recordings of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/en/group-activities/calendar ** Please let me know if your name has been left off the list ** Mailing list archives: <http://mm.icann.org/pipermail/gnso-newgtld-wg-wt2> http://mm.icann.org/pipermail/gnso-newgtld-wg-wt2 Agenda Wiki page: https://community.icann.org/x/prPDAw Thank you. Kind regards, Terri ------------------------------- Adobe Connect chat transcript for 02 February 2017 Terri Agnew:Welcome to the New gTLD Subsequent Procedures Sub Team - Track 2 - Legal/Regulatory Issues call on Thursday, 02 February 2017 at 20:00 UTC. Terri Agnew:agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_p rPDAw <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_ prPDAw&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpC IgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=T6p4UvBXSCVwUHKVMQH4VeG2AKTS_nazmTXmhKIxnS o&s=hjDsSi7w-Zdrpb43IhiqlwJnuRG0L5nQtNJvuXuds2s&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=T6p4UvBXSCVwUHKVMQH4VeG2AKTS_nazmTXmhKIxnSo&s=hj DsSi7w-Zdrpb43IhiqlwJnuRG0L5nQtNJvuXuds2s&e= Phil Buckingham:can u call me again . I ve lost you . Terri Agnew:@Michael, I have been unable to dial out to you on the telephone number you provided alexander.gay:Looks like neither the CIA nor the Kurdish PKK could apply...... Gg Levine (NABP):Says nothing about how registry is to be run. Mary Wong:Hi! Mary Wong:Here's Paul Paul McGrady:Sorry to join late Jeff Neuman:Paul: Did you file a reconsideration request or any other type of appeal? Phil Buckingham:Good point , Heather .. I ll follow up with the GDD Steve Chan:Note, there is a section of the Program Implemenation Review Report (PIRR) that touches on Background Screening (section 2.2): https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system _files_files_program-2Dreview-2D29jan16-2Den.pdf <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_syste m_files_files_program-2Dreview-2D29jan16-2Den.pdf&d=DwIFaQ&c=FmY1u3PJp6wrcrw ll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m =T6p4UvBXSCVwUHKVMQH4VeG2AKTS_nazmTXmhKIxnSo&s=xerXvz68yRfQ2Jhnilcv181Ae5D7h s2ZZvP0Tr3tid4&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=T6p4UvBXSCVwUHKVMQH4VeG2AKTS_nazmTXmhKIxnSo&s=xe rXvz68yRfQ2Jhnilcv181Ae5D7hs2ZZvP0Tr3tid4&e= Susan Payne:can we have ability to scroll the slides? Susan Payne:thnx Terri Agnew:everyone can scroll slides themselves Steve Chan:@Michael, we will take the question back to GDD. Phil Buckingham:So it has only to be one "director " who is disqualified that means the whole application is thrown out ? Jeff Neuman:Have there been any cases where ICANN required a change request to cure any deficiencies in the background checks Christa Taylor:I think the business model around a TLD is completely seperate from background screening Steve Chan:The nature of the applying entity may play a role, however, Jeff Neuman:There were llots of ways to get around the cybersquatting background check. UDRPs are generally against entities, not the people who are principals in that entity. Thus, if an individual is a principal in a company that was subject to 10 cybersquatting cases, that individual would not faill the background check if he or she were part of a new gTLD application. Jeff Neuman:not just worked for it, but was an owner of it or other principal Phil Buckingham:when we are talking about criminal history - does that even include a driving ban . Needs to be defined more clearly.next time . Steve Coates:What is criminal in one place may not be in another. Cheryl Langdon-Orr (CLO):agree Jeff Cheryl Langdon-Orr (CLO):it's the eastern Australian whip bird Michael Robert Burlingame (Pillsbury):Agree Jeff re not just protection for registrants Steve Coates:Have to drop off. Apologies. Paul McGrady 2:I can't. sorry Cheryl Langdon-Orr (CLO):finish what we can Susan Payne:do we get to do a CC3 at some point for further topics? avri doria:hope not Susan Payne:ok, so we definitely need to ask about closed generics then Jeff Neuman:@susan - yes. And if you review the questions and have additional ones, please submit them :) Terri Agnew:The next two WT2 calls will take place on: New gTLD Subsequent Procedures Sub Team - Track 2 - Legal/Regulatory Issues will take place on Thursday, 16 February 2017 at 21:00 UTC AND Thursday, 02 March 2017 at 21:00 UTC for 60 minutes. Both email/ calendar invites will be sent today for place holder. We will also send reminder email day before each call. Susan Payne:when is CC2 due to go out? Paul McGrady 2:So sorry all. I have to drop. Christa Taylor:Sorry I'm out of time. Also need to drop. Have a great day everyone. Cheryl Langdon-Orr (CLO):bye Robert Burlingame (Pillsbury):Thank you everyone. Jeff Neuman:Thanks everyone :) Susan Payne:thanks all Cheryl Langdon-Orr (CLO):thanks all bye for now alexander.gay:Bye! avri doria:bye

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Actions/Discussion Notes: Work Track 2 SubTeam Meeting 02 February
by Julie Hedlund Feb. 2, 2017

Feb. 2, 2017

Dear Sub Team Members, Please see below the action items and discussion notes captured by staff from the meeting on 02 February. These high-level notes are designed to help Work Track Sub Team members navigate through the content of the call and are not a substitute for the chat room or the recording. See the chat room and recording on the meetings pages at: https://community.icann.org/display/NGSPP/Work+Track+2+Meetings. Please also see the attached slides referenced below. Excerpts from the chat room are included below for ease of reference. Best regards, Julie Julie Hedlund, Policy Director Action Items/Discussion Notes 02 February 1. Registrant Protections -- Background Screening Background Information: See slides 4-9. Question: Are the background checks a sufficient mechanism for protecting registrants? Yes/No/Other (slide 10) -- Paul McGrady had a specific issue he wanted to discuss relating to cybersquatting -- item (m) on slide 8. If you look at the public comments he had questions about the background screening that in his view was not applied. Not sure if there was a formal dispute, but we should look at the comments that there made and whether we would need some clarification in this language. Short answer is we don't know if the background checks were sufficient because ICANN didn't follow the AGB. If ICANN isn't going to follow the vetting process no amount of improvements will help. Did not file a reconsideration request. -- Interested to know if Paul's case is the only instance of this type of difficulty. Can we get those data? -- The amount of information that ICANN requested created a stressful process, but not aware of any specific examples. Could ask for as much data as possible. >From the chat: Phil Buckingham: Good point , Heather .. I ll follow up with the GDD Steve Chan: Note, there is a section of the Program Implementation Review Report (PIRR) that touches on Background Screening (section 2.2): https://www.icann.org/en/system/files/files/program-review-29jan16-en.pdf Question: Has ICANN ever come across an applicant with an individual found to be involved in any of the activities in a-m? If so, were any of those applicants disqualified from the application process because of the background screening? If so, out of how many found, how many were disqualified. (slide 11) Action Item: Ask ICANN for data on the results of the background checks. Staff will take the question back to GDD. -- Good question to ask ICANN staff in the aggregate without getting any identifying information. Might not get any responses from the question in the community. -- Believe the answer is zero because ICANN presented stats throughout the process on the status. Think that is public. -- Change the question? Ask how many applicants were required to provide additional information with regard to these background checks. -- Is what we are driving at here is how seriously ICANN took the answer of "no". Are we worried about the fact that everyone answered "no"? Not sure where we are going with this? More responsibility on ICANN? On the applicant? -- Another reason to ask the question is whether ICANN followed what was in the applicant guidebook. Are these sufficient mechanisms? -- If the number is zero that zero doesn't really tell us anything. We should be asking if ICANN can produce the process flow they went through. -- Change the first question to ask ICANN to provide us with numerical information, what areas ICANN looked at, and what checks were carried out. -- Steve Chan (Staff): Formulate what we are trying to understand. In terms of how to answer it would e good to get data to understand that question, but not make the data request prescriptive. >From the chat: Jeff Neuman: Have there been any cases where ICANN required a change request to cure any deficiencies in the background checks? Christa Taylor: I think the business model around a TLD is completely seperate from background screening Steve Chan: The nature of the applying entity may play a role, however. Question: Do the requirements for background screening in regards to 1) general business diligence and criminal history ; and 2) history of cybersquatting behavior prove sufficient? (slide 12) -- Question is: when ICANN carried out the process did anything come up? -- One of the issues: If I am a Sr. VP of a company (owner or other principle) ABC and ABC had 10 cybersquatting cases it loses if I go on to found a company that applies for a TLD I don't fail the background because I am not implicated as an individual. -- Also, does one person who was found responsible for cybersquatting cause a company with which he is associated to fail the background check? -- Potentially a missing question: Have you had a contract with ICANN terminated or are being terminated for compliance issues? Could expand on that question -- not sure where to put it. -- It does make another good criteria to add -- substitute for (o) and change current (o) to (p) -- "Have you or your company been part of an entity found in breach of contract with ICANN?" >From the chat: Jeff Neuman: There were lots of ways to get around the cybersquatting background check. UDRPs are generally against entities, not the people who are principals in that entity. Thus, if an individual is a principal in a company that was subject to 10 cybersquatting cases, that individual would not faill the background check if he or she were part of a new gTLD application. Phil Buckingham: when we are talking about criminal history - does that even include a driving ban . Needs to be defined more clearly.next time. Steve Coates: What is criminal in one place may not be in another. Question: Could it be considered that the background screening is unnecessary for TLDs where Registrant Protections may not be necessary, such as Brand TLDs or those operating with a Code of Conduct exemption? (slide 13) -- Such as where registrants are not applicable for those TLDs. -- In ALAC the answer would be "yes" that it is a concern and should be questioned further. -- It is not just registrants that are protected by the background screening, it is ICANN as an organization. Don't want to enter into a contract with someone who has a conviction. >From the chat: Robert Burlingame (Pillsbury): Agree Jeff re not just protection for registrants. 2. CC2 Questions (slide 16) -- Built on what we have already discussed. -- Need to use the opportunity to see detailed feedback in areas not covered. Topics to cover (slides 17-19) -- Will there be a CC3? The plan is not to do a CC3, but we will have a preliminary report that will go out for public comment. Keep up a calendar indicating what we hope to cover through Copenhagen. -- Steve Chan (staff): Can share the calendar with the full group. On CC2, we haven't covered all the topics. The questions will have to be agreed upon by the full group. -- When is CC2 due to go out? The drop dead date is before ICANN58, but we are targeting middle or late February (such 20 February). >From the chat: Susan Payne: do we get to do a CC3 at some point for further topics? avri doria: hope not Susan Payne: ok, so we definitely need to ask about closed generics then Jeff Neuman: @susan - yes. And if you review the questions and have additional ones, please submit them :)

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Agenda for 02 February 20:00 UTC WT2 Meeting
by Michael Flemming Feb. 2, 2017

Feb. 2, 2017

Dear All, Once again, I am late in sending this out. However, better late than never, please find our agenda and materials for the call at 20 UTC on 2 February 2017. 1. Welcome 2. SOI 3. Registrant Protections - Background Screening 4. CC2 Question Discussions: Where should we concentrate our questions and what type of questions should we have? 5. AOB I was hoping to get to the Terms and Conditions this week, but CC2 takes priority over that at the current time. While we have had little input over email for Registrant Protections, I felt it necessary to take today's meeting and focus on the Background Screening as well as CC2. We will only be introducing the CC2 topics on today's call, with the goal to solidify the questions over email. I know that there are many calls, but once again, I encourage everyone to participate today and to provide input over the mailing list. Kind regards, Michael Flemming

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