- Gnso-newgtld-wg-wt2 - lists.icann.org

Actions/Discussion Notes: Work Track 2 SubTeam Meeting 13 July
by Julie Hedlund July 13, 2017

July 13, 2017

Dear Sub Team Members, Please see below the action items and discussion notes captured by staff from the meeting on 13 July. 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, document, and the excerpts from the chat room below. Best regards, Julie Julie Hedlund, Policy Director Action Items/Discussion Notes 13 July Registry Agreement Introduction (Slide 3) -- Goal: To move towards deliberations and proposals for steps forward for the initial report. -- Schedule: 13 July -- review CC2 comments; 27 July -- work towards deliberations for Base Registry Agreement. -- Go over the comments and to see if we are moving towards certain positions. -- Develop preliminary recommendations and try to just consensus based on lack of objection. Trying to stay away from polls as results can be biased. Use the Working Group Guidelines concerning consensus. Discussion Recap: Where are we at now? (Slide 4) -- Only discussed one item with respect to the Base Registry Agreement: Single Registry Agreement vs. Multiple Registry Agreements. Looked at pros and cons. -- Possible Compromises: 1) scaled back "core" agreement with additional specifications per category; 2) single agreement with a more clear, structured, and efficient method for obtaining exemptions. CC2 Question (Slide 5) -- 2.1.1 -- Base Registry Agreement (also see attached summary document) -- Just wanted to reinforce that any staff summary/synthesis documents are intended to help promote discussion, but will inevitably be subjective and incomplete. It is important for WT members to read all comments and use this review to inform deliberations. Complete comments are available here: https://docs.google.com/spreadsheets/d/1tcWZt1bdoYH7vJl2Yi9G0jah7QzyhqU99tX… -- Jannik Skou, INTA, Nominet, BC, BRG, John Poole, Afilias, RySG, ALAC, and NCSG support a single base registry agreement with specific sections for different TLD types. -- Jim Prendergast and BRG support multiple registry agreements. Comments focused on high-level goals rather than mechanisms: -- RrSG: No new "on the fly" exemptions made or new TLD types classified once the application window is closed. (excerpt). -- RySG: Single registry agreement with clauses versus suite of registry agreements are the same concept -- neither model should be more or less effective in recognizing the different operational requirements of different TLDs. (excerpt) -- Valideus: Additional Brand-specific provisions or a Brand-specific contract would be beneficial. An entirely separate contract for Brand TLD requires careful consideration, however, as it has the potential to reducee the flexibility of registries. (excerpt). Discussion: -- BRG comments -- didn't think they were in favor of a single registry agreement. Preference is to have something more tailored, but if that wasn't the case then they would support some kind of a stripped down base agreement. Work out what the core is and then tailor based on addition, versus subtraction. Full BRG comment: In its current form, the base RA is skewed towards traditional models and does not adequately reflect the new models introduced in the 2012 round. This can be a barrier for new entrants that operate distinctly different models. Where there is a significant difference between registry models and where these different models are a sizeable proportion of registry operators, the BRG recommends customised RAs to better reflect those models and their distinct nature. In this respect, the BRG favours a customised Registry Agreement (RA) for dotBrands, to reflect the distinct differences against a traditional open and commercial registry. A significant proportion of New gTLDs were dotBrands and we anticipate continued interest in future application windows. In the absence of a customised RA for dotBrands or other distinct and sizeable models, the BRG recommends the base agreement is stripped down to provide core provisions that are applicable to all, with the relevant specifications that define the model and variant provisions applicable to that model. The contracting parties associated with each defined model would be the parties responsible for negotiating and voting any changes to the related specification, while all registry operating under the RA would be responsible to negotiate and vote for any changes to the core base agreement. -- The ideal of having potentially completely different registry agreements for each TLD -- would need separate approvals for each time, different negotiations, just the effort on the registry side would be huge. The systems and staff will be a huge resource allocation too. -- Would be an administrative nightmare to get registries to agree on multiple agreements and some might fall into more than one category. Introduces more complications than it settles. This seems to be a theme in the comments we've received. -- How ICANN prioritizes its spending and resources needs to be considered. -- Seems that the objections to completely separate registry agreements can be resolved by having a master agreement that is the common core and than have schedules based on type. Current agreement contains to many elements that are not common so we end up subtracting from the base registry agreement. Better than having registries opt out of what doesn't apply. -- Last round applicants were forced to accept what was essentially a franchise agreement. Having a single base registry agreement would stunt innovation. There are things, such as SLAs, that need to be negotiated. Variable pricing also and how you treat registrars. Also, GDPR. There needs to be flexibility and negotiation. -- The GDPR issue is a good one. How to accomplish that while making sure that general legal boilerplate items for fairness sake that everyone is on a level playing field while addressing required differences? Response: There does need to be a box around certain contractual/legal provisions, but avoid too many technical burdens that may not be necessary for some registry operations. -- You may have a closed brand registry you may have to weigh whether you want to open it up and if you were to do that it is easier if you have a specification or master schedule model. >From the chat: Trang Nguyen: To add to what Kristina just said, there is also added complexity for ICANN compliance to enforce multiple versions of the contract as well. Sarah L Verisign: I realize my comment bucks the trend, but I would support increasing the ICANN compliance team and supporting negotiated contracts - I realize that this would increase the administrative burden however I support the concept of "contract negotiation" vs "contract acceptance" and dont see why contracts cant be negotiated seprately. Susan Payne: Hi Greg - yes I think that is what the BRG was thinking if there isn't a separate agreement altogether for certain registry types Trang Nguyen: Another consideration is whether multiple individually negotiated RAs would create additional burden for the community who might be interested in tracking contractual provisions of various TLDs. Jon Nevett: GDPR can be handled by the documented waiver process, no? Sarah L Verisign: @jeff, you can have elements of a contracts, like LOLs, that are not negotiable and others that are. We could agree which were negotiable and which were not, but having us all the same doesnt help us be innovative Jeff Neuman: @Sarah - It would be interesting to see from ICANN legal which were the parts of the contract that were the most negotiated. Jeff Neuman: But from what I recall, it was more the legal boilerplate than the technical specs Susan Payne: sarah are you arguing that each individual registry should geta tailored agreement? I hadn't initially thought you were but now I'm not sure? Jeff Neuman: But, it would be great if we could draw a box around things needed for level playing field and those that have flexibility around technical solutions (while still having a minimum of requirements for stability/security, etc. Sarah L Verisign: @jeff - I am not sure there were any negotiable aspects, rather an expectation of acceptance - at least from what I am aware. @ susan, I am strying to suggestimechanism that could address Jeff's concern and still give us the ability to have differentiation. Greg Shatan: The Master/Schedule model would make this easier to manage. Typically, the Master is less negotiable than the Schedules or SOW. If the base agreement was truly the common core needed for virtually all registries, while the Schedules were more particular/negotiable that would make management much easier. Greg Shatan: The "Specification" model didn't really do this, since the Specs were a mixed bag of required and special elements. 2.1.2 Question (Slide 6) -- Restrictions pertaining to sunrise periods, landrush or other registry activities (also see attached summary document): -- INTA, John Poole, Valideus, and Jannik Skou support additional restrictions pertaining to sunrise periods, landrush or other registry activities. -- Nominet, BRG, Afilias, and RySG supporting maintaining the status quo with respect to restrictions. -- BC supports maintaining current restrictions but pursuing additional measures regarding "predatory pricing." Discussion: -- Re: INTA Comment "[ICANN] has refused to request and share such [reserved domain names] lists, which would allow brand-owners to police improper reservation of names -- not sure that ICANN has that authority. Could be a question back to INTA. -- Question: A lot of this section touches on pricing and what the registries can do. I think ICANN is explicit in that they do not regulate pricing in the new gTLD program. Does anyone know the genesis of that? Response: We should get more specificity, but there might be antitrust concerns at the root of this position. Whether they are well founded or correct is a different question. If this is the case that is open to review. -- Use a term other than "predatory pricing" in our final report.

1 0

Agenda for 13 July 2017 WT2 Call at 15 UTC
by Michael Flemming July 13, 2017

July 13, 2017

Dear All, Please note the agenda for the WT2 call that will be held at 15 UTC today. 1. Welcome 2. SOI Updates 3. CC2 Comments: Registry Agreement 4. AOB Our plan forward is to go over the CC2 comments for the Registry Agreement in order to move forward to initial discussions on consensus, initial draft proposals and/or any other questions we may have for the feedback we received in CC2. I know there may not be enough time between the call and now for some of you, but I would encourage you to go over the CC2 comments in regards to the Registry Agreement as much as possible. For this discussion, staff have kindly prepared a summary of points that were made in CC2 comments in relation to questions asked on the Registry Agreement. The document is text to help organize discussion and each WG member is encouraged to read all CC2 comments in full in order to capture the whole argument. I look forward to discussing with everyone on the call. Kind regards, Michael Flemming

3 2

- Topics for Discussion at ICANN59
by Steve Chan June 22, 2017

June 22, 2017

Dear WT2 Members, During the work track’s meeting on 15 June, members were asked which topics they felt would be most productive to discuss at ICANN59. The topics raised by participants, in order of preference, include: Closed Generics (2 requests) Vertical Integration (2 requests) Registrant Protections (1 request) Registry/Registrar Standardization (1 request) For those that were unable to participate, or those that did not provide a selection, please let the WT2 co-leads know if you have a preference for topics to discuss at ICANN59. As a reminder, you can find the topics that WT2 is considering here: https://community.icann.org/x/FwSbAw Please provide your selection by 23:59 UTC on 20 June 2017. 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/

2 1

Actions/Discussion Notes: Work Track 2 SubTeam Meeting 15 June
by Julie Hedlund June 16, 2017

June 16, 2017

Dear Sub Team Members, Please see below the action items and discussion notes captured by staff from the meeting on 15 June. 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, documents, and the excerpts from the chat room below. Best regards, Julie Julie Hedlund, Policy Director Action Items/Discussion Notes 15 June Action Items: 1. Topics for Johannesburg: Staff will pull out the top 4 topics from the chat room and send them to the list so others can comment. Topics that were suggested were: vertical integration (2), closed generics (2), registrant protections (1), registry/registrar standardization (1). 2. There seem to be clarifying question for Compliance but not sure if those have been formulated. We might need help on how to formulate those questions. Michael Flemming will help to formulate them. 1. Topics for ICANN59 Johannesburg -- We are tasked with having 2 topics at ICANN59. I think we have 45 minutes for discussion. Suggested topics from the chat room: Susan Payne: vertical integration Cheryl Langdon-Orr (CLO): Registrant Protections Gg Levine (NABP): Registry/registrar standardization Kristina Rosette (Amazon Registry): Vertical integration; and closed generics Paul McGrady 2: Closed generics Discussion: -- I don't think it is reasonable that we would have a helpful discussion in 45 minutes. -- The question that we've already discussed is whether there would be one registry agreement or multiple registry agreements. This would be a chance to enage further on the questions. -- I think applicant terms and conditions falls into the same category that we wouldn't have time to get into the topic. -- Suggest that you have us type our number 1 topic into the chat and ask staff to do a quick count. >From the chat: Susan Payne: can you remind me what registrant protections covers? Paul McGrady: +1 Kristina. We won't even get it introduced in that timeframe Steve Chan: @susan, in brief, things like EBERO, COI Phil Buckingham: kristina, what topic would u like to do one perhaps we could get concensus on at jo burg ? Kristina Rosette (Amazon Registry): I get it. But I don't think we can have a meaningful discussion of whether we should have different base agreements until everyone has read and understood the existing RA. And we'll use the entire 22 minutes just getting through the questions. Susan Payne: ah yes, thanks Steve, I was having a mental block 2. Vertical Integration Slide 2 -- Introduction -- Not starting from scratch. We are returning to this. Our goal is to work on modifications that allow the realization of the benefits of vertical integration. Slide 6 -- Recap of last call on vertical integration -- Origins of VI -- Status quo in 2007 -- Potential concerns and benefits of VI -- Journey to the current state -- Registry code of conduct and exceptions Slide 7 -- Continuing the VI discussion -- received some data back from compliance based on questions [see the slide] -- Responses from Compliance (see the attached document) [reading from the document] Discussion: -- If we are going to have any further discussion of the topic we need to go back to Compliance with follow-up questions. Such as 1b -- were there 1000 complaints against registry operators? Were there 100 complaints -- we need to know what percent were covered by those complaints. If we are going to act on it we need complete data. -- 1b -- said they processed less than ten complaints. The metrics page shows about 110 in regards to code of conduct. We are still waiting on data on how many registries are integrated. A more detailed response would very much help. -- A little trouble interpreting the results, perhaps lack of familiarity. Talked to Compliance staff. The number of code of conduct complaints is a relatively high number, but the issue for the complaint is less than 10. Complaints that are specific to vertical integration are less then 10 and all have been ameliorated. -- Can't get names of registry operators subject to the complaints, but can get numbers. -- The reason we are looking at 2017 data is that is the most recent audit but also when you had the most registries contracted with ICANN. Whether or not complaints are driven by just one registry I think there is room for us to develop possible concerns on vertical integration if there is evidence of those concerns. -- The data we are getting back from contractual compliance is how we need to move forward. >From the chat: Kristina Rosette (Amazon Registry): The Affiliate definition is in Section 2.9(c) of the Registry Agreement. Phil's summary of it was correct, but incomplete Susan Payne: is it just me or are the answers to 1a and b rather vague and open to interpretation? has anyone actually be found to be in breach Cheryl Langdon-Orr (CLO): indeed Kristina Susan Payne: yes agree Kristina Kristina Rosette (Amazon Registry): @Susan: Not that I'm aware of, but Compliance should be asked that. Steve Chan: @Susan, Kristina, no, breaches. Kristina Rosette (Amazon Registry): I think that there may be more data that we could ask for that Compliance can provide: how many registry operators are vertically integrated; of that number, how many are within the same corporate family; how many complaints were there against ROs (overall - regardless of whether due to vertical integration); of the complaints referenced in the 1.b answer, how many ROs were those complaints against Steve Chan: The less than 10 complaints I believe is for all time, not just a period of time. Kristina Rosette (Amazon Registry): @Steve: Really? That's 10 in 4 years. Steve Chan: Happy to confirm Kistina, but that's my understanding. Susan Payne: I think it would also be helpful to know how many registries if any have required to conduct remediation in some way. I think "no breaches" means no formal breach notice but there may have been action require Kristina Rosette (Amazon Registry): @Steve: And, to be clear, I'm not doubting the answer, I'm pleasantly surprised Steve Chan: @Susan, I believe the answer is less than 10 complaints where remediation was required. Steve Chan: Of course, if we have follow up questions for Contractual Compliance, staff is happy to ask on the WT's behalf. Susan Payne: @Steve, yes I assume so. but it could actually be zero, which would be quite informative 3. CC2 Comments for WT2 Topics -- see document at: https://docs.google.com/spreadsheets/d/1tcWZt1bdoYH7vJl2Yi9G0jah7QzyhqU99tX… and attached PDF. -- It is really important that we discuss these comments but we need to take the responsibility to read them. -- Shouldn't specifically be singling out one comment and having a detailed debate about it. We need to read all of the comments and then have a conversation about issues raised as a whole. >From the chat: Kristina Rosette (Amazon Registry): Can we agree that we'll each read the CC2 comments so we don't need to have Phil (or Michael) read them out? Jeff Neuman: Is the question you are asking whether all TLDs should be able to have 1 -3 registrars Jeff Neuman: As a PDP Working Group, we do have to respond to all the comments as to how we considered them. But we do not need to read all of the comments aloud. Susan Payne: you might also want to switch registrar, so for the period you switch you would have to have two. limiting just to one would be very restrictive Rubens Kuhl: It also comes down to bargaining power in the contract: having more than one gives a brand more negotiating power in the table. Kristina Rosette (Amazon Registry): I respectfully disagree with Phil. I'd like to see us use the 45 minutes in Joburg to work through the comments rather than hone in on one point made by one Commenter on one subpart Jeff Neuman: Lets see if we can group the issues into categories of types of comments Cheryl Langdon-Orr (CLO): agree Jeff Kiran Malancharuvil: Agree with grouping the issues into categories and represnting various groups of views for discussion. Much easier

1 0

Recordings, Attendance & AC Chat from New gTLD Subsequent Procedures Sub Team Track 2 Legal/Regulatory Issues on Thursday, 15 June 2017
by Julie Bisland June 16, 2017

June 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, 15 June 2017 at 21:00 UTC. Adobe Connect recording (audio and visual): https://participate.icann.org/p3o7u6zn6k2/<https://participate.icann.org/p3o7u6zn6k2/?OWASP_CSRFTOKEN=aef002f837ee5497…> 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 Agenda Wiki page: https://community.icann.org/x/ExLfAw Thank you. Kind regards, Julie ------------------------------- Adobe Connect chat transcript for 15 June 2017 Julie Bisland:Welcome to the New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues on Thursday, 15 June 2017 at 21:00 UTC. Julie Bisland:Agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… Paul McGrady:Here we are again... Michael Flemming:Great to have you Paul! Julie Hedlund:Slides are now unsynced. Susan Payne:can you remind me what registrant protections covers? Paul McGrady:+1 Kristina. We won't even get it introduced in that timeframe Steve Chan:@susan, in brief, things like EBERO, COI Phil Buckingham:kristina , what topic would u like to do one perhaps we could get concensus on at jo burg ? Kristina Rosette (Amazon Registry):I get it. But I don't think we can have a meaningful discussion of whether we should have different base agreements until everyone has read and understood the existing RA. And we'll use the entire 22 minutes just getting through the questions. Susan Payne:ah yes, thanks Steve, I was having a mental block Kristina Rosette (Amazon Registry):@Phil: I think vertical integration would be one. Michael's listing of the potential topics is a good idea. Steve Chan:Answered in brief, not in detail! Kristina Rosette (Amazon Registry):Can we take this to the email list? Phil Buckingham:thanks Kristina . i tend to agree . Kristina Rosette (Amazon Registry):Paul's idea is fine, too Cheryl Langdon-Orr (CLO):better idea Paul Phil Buckingham:Great idea , Paul - thanks . Steve Chan:If you take it to the list, those that are not on this call would also be able to participate. Susan Payne:vertical integration Cheryl Langdon-Orr (CLO):Registrant Protections Gg Levine (NABP):Registry/registrar standardization Kristina Rosette (Amazon Registry):Vertical integration; and closed generics Paul McGrady 2:Closed generics Kristina Rosette (Amazon Registry):Given Steve's point, perhaps Steve could identify the top 4 subjects identified here and take to the list so folks not on the call can "vote" Steve Chan:Unless there is objection to Kristina's suggestion, staff is happy to execute. Michael Flemming:Let us go with Kristina's suggestion. Michael Flemming:yes Paul McGrady 2:come through soft and a bit fuzzy Susan Payne:fine Paul McGrady 2:Oops. I turned up my volume, now he is fine... Kristina Rosette (Amazon Registry):The Affiliate definition is in Section 2.9(c) of the Registry Agreement. Phil's summary of it was correct, but incomplete Susan Payne:is it just me or are the answers to 1a and b rather vague and open to interpretation? has anyone actually be found to be in breach Cheryl Langdon-Orr (CLO):indeed Kristina Susan Payne:yes agree Kristina Kristina Rosette (Amazon Registry):@Susan: Not that I'm aware of, but Compliance should be asked that. Steve Chan:@Susan, Kristina, no, breaches. Kristina Rosette (Amazon Registry):I think that there may be more data that we could ask for that Compliance can provide: how many registry operators are vertically integrated; of that number, how many are within the same corporate family; how many complaints were there against ROs (overall - regardless of whether due to vertical integration); of the complaints referenced in the 1.b answer, how many ROs were those complaints against Steve Chan:The less than 10 complaints I believe is for all time, not just a period of time. Kristina Rosette (Amazon Registry):@Steve: Really? That's 10 in 4 years. Steve Chan:Happy to confirm Kistina, but that's my understanding. Susan Payne:I think it would also be helpful to know how many registries if any have required to conduct remediation in some way. I think "no breaches" means no formal breach notice but there may have been action require Kristina Rosette (Amazon Registry):@Steve: And, to be clear, I'm not doubting the answer, I'm pleasantly surprised Steve Chan:@Kristina, :) Steve Chan:@Susan, I believe the answer is less than 10 complaints where remediation was required. Steve Chan:Of course, if we have follow up questions for Contractual Compliance, staff is happy to ask on the WT's behalf. Susan Payne:@Steve, yes I assume so. but it could actually be zero, which would be quite informative Kristina Rosette (Amazon Registry):Can we agree that we'll each read the CC2 comments so we don't need to have Phil (or Michael) read them out? Jeff Neuman:Is the question you are asking whether all TLDs should be able to have 1 -3 registrars Jeff Neuman:As a PDP Working Group, we do have to respond to all the comments as to how we considered them. But we do not need to read all of the comments aloud. Susan Payne:you might also want to switch registrar, so for the period you switch you would have to have two. limiting just to one would be very restrictive Rubens Kuhl:It also comes down to bargaining power in the contract: having more than one gives a brand more negotiating power in the table. Kristina Rosette (Amazon Registry):I respectfully disagree with Phil. I'd like to see us use the 45 minutes in Joburg to work through the comments rather than hone in on one point made by one Commenter on one subpart Jeff Neuman:Lets see if we can group the issues into categories of types of comments Cheryl Langdon-Orr (CLO):agree Jeff Kiran Malancharuvil:Agree with grouping the issues into categories and represnting various groups of views for discussion. Much easier Steve Chan:Nope, that's it Paul McGrady 2:Next step: beer Steve Chan:you're more generous than i was thinking michael. Cheryl Langdon-Orr (CLO):bye for now safe travels to those who are attending JNB meeting Kiran Malancharuvil:Coffee for michael Kiran Malancharuvil::) Kiran Malancharuvil:Thanks all! Kristina Rosette (Amazon Registry):@Paul: Not fair to those of us who have several more hours to go . . . .Safe travels everyone. Jeff Neuman:Beer at 7 am.....breafast of champions Susan Payne:bed for me Heather Forrest:Bye all Phil Buckingham:bed for me

1 0

Agenda for WT2 Call on 6/15 at 21 UTC
by Michael Flemming June 14, 2017

June 14, 2017

Dear All, Please note our agenda for the upcoming meeting at 21 UTC on 6/15 for WT2. - Welcome - SOI Updates - Topics for ICANN59 Johannesburg - Vertical Integration: Continuing the Discussion - AOB Please note that for this upcoming meeting we will be going over the questions and answers we submitted to ICANN Contractual Compliance that provides input in regards to complaints submitting relating to Vertical Integration. Also, for those attending this call, who did not attend our May 18th call, I kindly ask you to please review the notes from the previous call on Vertical Integration at the following link. https://community.icann.org/display/NGSPP/2017-05-18+New+gTLD+Subsequent+Pr… I look forward to speaking with everyone. Kind regards, Michael Flemming

1 0

Agenda for WT2 Meeting June 1st at 21 UTC
by Michael Flemming June 2, 2017

June 2, 2017

Dear All, I hope you are doing well. This is the agenda for our call today at 21 UTC for WT2. This week we will be discussing the Global Public Interest and reflecting on how the Public Interest Commitments weigh in on this. We will also be considering other aspects about how we public interest should be baked into policy. 1. Welcome 2. SOI 3. Global Public Interest 4. AOB I look forward to discussing with everyone today. Kind regards, Michael Flemming

2 2

Recordings, Attendance & AC Chat from New gTLD Subsequent Procedures Sub Team Track 2 Legal/Regulatory Issues on Thursday, 01 June 2017 at 21:00 UTC
by Michelle DeSmyter June 2, 2017

June 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, 01 June 2017 at 21:00 UTC. Mp3: https://audio.icann.org/gnso/gnso-new-gtld-subsequent-track2-01jun17-en.mp3 <https://audio.icann.org/gnso/gnso-new-gtld-subsequent-track2-01jun17-en.mp3> Adobe Connect recording (audio and visual): https://participate.icann.org/p8kqs7yp2y8/ 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 Agenda Wiki page: https://community.icann.org/x/ChLfAw Thank you. Kind regards, Michelle ------------------------------- Adobe Connect chat transcript for 01 June 2017 Michelle DeSmyter:Welcome to the New gTLD Subsequent Procedures Sub Team – Track 2- Legal/Regulatory Issues call on Thursday, 01 June 2017 at 21:00 UTC. Michelle DeSmyter:Meeting agenda page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… Steve Chan:Slides are unsynced Phil Buckingham 2:unsynced Steve Chan:Everyone can control themselves Jeff Neuman:@Steve - that is debateable Cheryl Langdon-Orr (CLO):indeed Steve Chan:@Jeff, I have more faith in our WT members that you :) Michelle DeSmyter:yes Phil Buckingham 2:clear as a bell Jim Prendergast:Julie and Micele - I need to leave adobe but am dialed in as well thx Kathy Kleiman:Hi All . Kathy Kleiman:Is there a link to this document? Steve Chan:Doing it now... Kathy Kleiman:Great tx - a bit easier to read :-) Steve Chan:Slides available here: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_do… Jeff Neuman:ugh - my computer is going crazy. my hand is NOT raised. Steve Chan:You can find the "public interest" Wiki here: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_di… Jeff Neuman:I am going to log out then back in. Kristina Rosette (Amazon Registry):@Jim: GAC "requested" them Kiran Malancharuvil:Who is speaking right now? I didn't catch a name. Jeff Neuman 2:i can answer Michael Flemming:Jim Pendergast Kathy Kleiman 2:When people say PIC, could they say Mandatory and Voluntary? Kiran Malancharuvil:Thanks Michael. Phil Marano:GAC Beijing Communique Phil Buckingham 2: is there a list somewhere ? Jeff Neuman 2:list of what? Rubens Kuhl:Actually, some registries considered including PICs that contradicted parts of the agreement they didn't like, like sunrise protection only for brands. Rubens Kuhl:Fear of the GAC / Fear of the GAC / I have constant fear that something's always near Rubens Kuhl:Having such a list in a PIC allows people that dislike it to challenge it in a PDDRP. So for any stakeholders, it's better than being listed as a Registry Service. Jeff Neuman 2:Should we come up with a new name for these then? Rubens Kuhl:One of the PICs is the obligtion of only using ICANN-Accredited Registrars. So calling it public interest is pushing the term public interest very hard. Jeff Neuman 2:Just TLD Commitments Kathy Kleiman 2:And perhaps GAC Commitments Rubens Kuhl:Some PICs tried to address ALAC or IO concerns... Kathy Kleiman 2:@Alan: can you give some examples? Kristina Rosette (Amazon Registry):Has anyone reached out to Tony Harris to let him know that we're discussing Spec. 11? I've been in several meetings where he has expressed concern about the "must use ICANN-accredited registrars" requirement, and I think his input here on this issue would be valuable. Kristina Rosette (Amazon Registry):To clarify: It's been in open sessions at ICANN meetings. Kathy Kleiman 2:@Alan: I may have missed a term. Did you say the "Category 1" Comments -- meaning highly regulated strings such as banking? Michael Flemming:*PICDRP*, for the notes Phil Marano:“The Panel notes that PIC (3)(a) of Specification 11 imposes no obligation on Respondent as the Registry Operator itself to avoid fraudulent and deceptive practices.” See https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_uploads_… Jeff Neuman 2:Thanks Phil. Do you want to speak to that? Kiran Malancharuvil:The PICDRP functionality may be for WT3, but there is a LOT to be learned about the PICs generally from the PICDRP result. Kiran Malancharuvil:And there have been multiple, filed, only one made it to the panel. Jeff Neuman 2:@Kiran - Right......when we talk about how the dispute process works, that is for WT3. But the PICs themselves (which are the subject of the dispute) is for us in WT2 Rubens Kuhl:I think this is being discussed in the vertical integration topic, isn't it ? Jeff Neuman 2:correct Jeff Neuman 2:@alsn - correct Jeff Neuman 2:alan Jeff Neuman 2:by the time the next window opens, everyone should be on the 2013 RAA Jeff Neuman 2:not sure we need that going forward Kurt Pritz:Now that new TLDs are in use: Can anyone point to a potential abusive behavior that was prevented by a PIC? (I.e., has there been an abuse in a TLD (that didn’t receive Type 1 GAC Advice) that might have been replicated by a GAC Advice Type 1 TLD?) - or - Can anyone point to an abuse by a GAC Advice Type 1 TLD that could be avoided by enhanced PIC Specs? If the answer to both of these is no, we should question the benefit of having the PIC Specs. Jeff Neuman 2:@aLAN - tHEY DO NOT HAVE TO BE picS...THEY CAN JUST BE IN THE BASE AGREEMENT Jeff Neuman 2:Sorry for ALL CAPS Jeff Neuman 2:oops Rubens Kuhl:Or become resellers of Tucows... ;-) Alan Greenberg:Jeff, certainly. Don't much care where they are. Since this was inserted after the fact, someone thought it was convenient to put it in a pic. I don't much care. avri doria:but nothing we do is granfathers. or even gandmothered. Michael Flemming:grandrelated* Paul McGrady 2:Grandparented Michael Flemming:aagh avri doria:and we have to look at mandatory sperately from voluntary. and we need to discuss ICANN ability to enforce the voluntary. Rubens Kuhl:Those were grandfathered, but would a new procedure be grandfathered ? Michael Flemming:My English Trang Nguyen 2:Section 1.1.d.ii of the bylaws avri doria:yes, that is what i was saying. Kathy Kleiman 2:Going forward is a new world! Trang Nguyen 2:and 1.1.d.iv is the provision that says "ICANN shall have the ability to negotiate, enter into and enforce agreements, including public interest commitments, with any party in service of its Mission." Kathy Kleiman 2:"in service of its Mission" Kathy Kleiman 2:Good call, tx you! Steve Chan:@Michael, Jeff, sure, action item is captured in the notes. Kiran Malancharuvil:Thanks all Paul McGrady 2:Thanks all! avri doria:bye good discussion, good start on the issue. please continue the discussion on the list. Alexander Schubert:Tnx Phil Buckingham 2:thanks Michael - great discussion

1 0

Actions/Discussion Notes: Work Track 2 SubTeam Meeting 01 June
by Julie Hedlund June 1, 2017

June 1, 2017

Dear Sub Team Members, Please see below the action items and discussion notes captured by staff from the meeting on 01 June. 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 and the excerpts from the chat room below. Best regards, Julie Julie Hedlund, Policy Director Action Items/Discussion Notes 01 June Discussion on Global Public Interest See the slides at: https://community.icann.org/download/attachments/64950794/SubPro%20Track%20… Slide 2: Explanation of the Subject -- Definition of Global Public Interest "introducing and promoting competition in the registration of domain names where practicable and beneficial to the public interest as identified through the bottom-up, multi-stakeholder policy development process. Slide 3: GAC Toronto Communique October 2012 -- AGB: Specific role for the GAC to provide early warnings and advice on new gTLD applications that raise public policy issues. -- GAC requested a written briefing from the Board -- how to modify applications as a result of early warnings; how overseen and enforced by ICANN. Slide 4: Introducing Public Interest Commitments -- February 2013: PIC Spec -- PICs posted in March 2013 -- 499 PIC specs where received. See: https://newgtlds.icann.org/en/announcements-and-media/announcement-06mar13-…. Slide 5: Specification 11: Mandatory PICs -- Registry Operator use only ICANN accredited registrars that are party to the Registrar Accreditation Agreement. -- Registry Operator agrees to perform the following specific public interest commitments enforceable by ICANN and through the PICDRP. [Reading through sections of the PICDRP. See slides 5 and 6.] Slide 7: Specification 11: Voluntary PICs -- Section 4 of Spec 11. -- Were "voluntary" in nature. -- No guidance on what should be in or not. Types: -- Anti-abuse -- Additional RPMs -- Geographic Protections -- Many reserved the right at sole discretion to modify or even eliminate PICs. Slide 8: Questions and Concerns Related to the Subject -- Global Public Interest wasn't explored that well. -- Could be an area of policy development. Slide 9: Relevant Guidance -- Annex A to the ICANN Board resolution on Planning for Future gTLD Application Rounds (17 November 2014): https://www.icann.org/en/system/files/files/resolutions-annex-a-17nov14-en.…. Slide 10: Rationale for Policy Development -- Not a lot to work with respect to the definition of Global Public Interest. Slide 11: Questions -- PICs are not incorporated into policy. Determine what is an adequate "application of 'public interest' analysis as a guideline for evaluation determinations on individual applications." [Reading questions from Slide 11.] -- Question: Can someone remind us how the PICs came about? -- After the GAC issued its early warning -- how to put these obligations in the contract. Fadi suggested PICs as a way to address the GAC's Toronto Communique asking for a mechanism. Beijing Communique had more detail. 499 TLDs submitted PICs so the majority did not. It was top down and that is one of the reasons we are addressing it, whether it should be incorporated into policy. -- The concept was created by ICANN staff/Board to address the issue of how to address concerns raised by some TLDs. The Beijing communique specific TLDs that had public interest issues. That resulted in the mandatory PICs that were applicable to some TLDs. The GAC asked for 8 specific constraints on some TLDs. The Board implemented a subset of that. GAC and ALAC are still taking the position that those were not complete and some TLDs deserved more protection than others. One of the requirements for this PDP to look at. The GAC and ALAC agreed to not take action on existing TLDs with the understanding that it would be considered for subsequent TLDs. -- Initially when we heard about the PICs it appeared to be intended to be some time of response to the GAC. That there should be a place to codify it as part of the contract. It went way beyond the GAC. The voluntary PICs had other elements -- apparently the voluntary PICs were open for a very short amount of time and anyone could put anything in there. -- Put yourself in the applicant's mindset at the time. Applications are just starting to get evaluated. Some were scared that the GAC would have advice against their TLDs. So they put things in their PICs so governments would view them more favorably. Some of these might not be included in future TLDs. It depends on how we do PICs. Should address the issue of how to respond to GAC early warning and to amend your application as a binding commitment, or should we not? -- Share examples of intellectual property rights being enhanced? -- One could argue whether some of these things are "public interest commitments". Don't see anything wrong to have a list and putting them into the contract. -- If the PICs are voluntary how do you evaluate whether they are in the public interest? Address both mandatory and voluntary. Are the mandatory PICs sufficient in protecting the public interest and should they be included in policy? -- GAC and ALAC have stated that there are certain classes of TLDs based on the category numbers the GAC assigned where the current PICs are no sufficient. -- On the mandatory PICs there is work going on to talk about some of these in Spec 11 3b -- conversations between the Public Safety Working Group and the Registries. Clarification on what is required on some of these PICs. 4th one on generic strings (slide 6) depends on where we come out on closed generics. One PICDRP case filed to date. Although they found fraudulent activity by the registry there wasn't much under the contract for ICANN to open a breech notice based on the contract. How the PIC works is more for Work Track 3. [Looking back at slides 5-6 -- mandatory PICs.] -- Several sessions at ICANN meetings where Tony Harris has expressed concerns about the Spec 11 requirement about only using ICANN-accredited registrars. -- The requirement in the PIC is not to use ICANN-accredited registrars but the ones on the 2013 RAA -- controls that were not in prior RAAs. 2013 RAA added some other requirements on registrars, some of which are relatively expensive. -- In terms of are these mandatory PICs necessary, I don't think we can get rid of #1 -- prohibiting Registered Name Holders from distributing malware, etc. -- #1 of Mandatory PICs [reading from the slide]: This was done before the new ICANN Bylaws. May need to evaluate them in light of the new Bylaws. Is this legal or otherwise and consistent with the new ICANN mission. -- Believe that the existing PICs were grandfathered into the Bylaws.. See: Section 1.1.d.ii of the Bylaws. Doesn't apply to new contracts or in the process of being signed. Also: 1.1.d.iv is the provision that says "ICANN shall have the ability to negotiate, enter into and enforce agreements, including public interest commitments, with any party in service of its Mission." Action: Should still confirm with Legal. >From the chat: Rubens Kuhl: Actually, some registries considered including PICs that contradicted parts of the agreement they didn't like, like sunrise protection only for brands. Rubens Kuhl: Having such a list in a PIC allows people that dislike it to challenge it in a PDDRP. So for any stakeholders, it's better than being listed as a Registry Service. Jeff Neuman 2: Just TLD Commitments Kathy Kleiman 2: And perhaps GAC Commitments Rubens Kuhl: Some PICs tried to address ALAC or IO concerns... hil Marano: “The Panel notes that PIC (3)(a) of Specification 11 imposes no obligation on Respondent as the Registry Operator itself to avoid fraudulent and deceptive practices.” See https://www.icann.org/uploads/compliance_notice/attachment/911/serad-to-wes… Kiran Malancharuvil: The PICDRP functionality may be for WT3, but there is a LOT to be learned about the PICs generally from the PICDRP result. Kiran Malancharuvil: And there have been multiple, filed, only one made it to the panel. Jeff Neuman 2: @Kiran - Right......when we talk about how the dispute process works, that is for WT3. But the PICs themselves (which are the subject of the dispute) is for us in WT2. Kurt Pritz: Now that new TLDs are in use: Can anyone point to a potential abusive behavior that was prevented by a PIC? (I.e., has there been an abuse in a TLD (that didn’t receive Type 1 GAC Advice) that might have been replicated by a GAC Advice Type 1 TLD?) - or - Can anyone point to an abuse by a GAC Advice Type 1 TLD that could be avoided by enhanced PIC Specs? If the answer to both of these is no, we should question the benefit of having the PIC Specs.

1 0

Recordings, Attendance, AC Chat for New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues 25 May 2017
by Julie Bisland May 25, 2017

May 25, 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, 25 May 2017 at 21:00 UTC. Adobe Connect recording (audio and visual): https://participate.icann.org/p4zpsx6knty/<https://participate.icann.org/p4zpsx6knty/?OWASP_CSRFTOKEN=4020b23172121acd…> 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 Agenda Wiki page: https://community.icann.org/x/GNTRAw Thank you. Kind regards, Julie ------------------------------- Adobe Connect chat transcript for 25 May 2017 Julie Bisland:Welcome to the New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues call on Thursday, 25 May 2017 at 21:00 UTC. Julie Bisland:Agenda Wiki Page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… Michael Flemming:I received apologies from Jon Nevett and Susan Payne. Julie Bisland:noted, thank you Michael Flemming:Annebeth, it looks like you were able to join us. Jeff Neuman:@Michael - You received apologies, but were they really sorry? Michael Flemming:Welcome Michael Flemming:I think so Annebeth Lange:Hi Michael, yes, my other meeting was cancelled Phil Buckingham:I ve dropped . can I have another dialout please. Julie Bisland:yes, Phil, dialing now Phil Buckingham:thanks Julie Emily Barabas:we are now on slide 3 Phil Buckingham:julie - cant get a connection . will hang up . Try again please Julie Bisland:trying again now. Phil Buckingham:back in Emily Barabas:In CC2, the WG asked: 2.8.1 - Noting that the role of Contractual Compliance is to enforce the registry agreement and any changes to that role are beyond the scope of this PDP, the WG is not anticipating policy development related to this topic. The WG expects that any new contractual requirements would be made enforceable by inclusion in the base agreement. Do you agree with this approach? Emily Barabas:checking . . . Steve Chan:Maybe this one Michael? 2.1.3 - Should the entire application be incorporated into the signed Registry Agreement? Should portions of the application, explicitly identified, be incorporated into the signed Registry Agreement? If changes are made between applying and executing the Registry Agreement, how should this be handled? If changes are made after executing the Registry Agreement, how should this be handled? If changes like these are contemplated, how can the needs of the community to properly consider the contents of an application be weighed against an applicant’s need to make either minor adjustments or fundamental changes to their registry? Annebeth Lange:Is this also a question about entering into a contract between ICANN and a registry under certain conditions, and then after the delegation the registry changes the policy considerately? This was relevant in the first round in connection with for example community TLDs or certain geographical TLDs that needed support from a public authority. Annebeth Lange:Post-delegation was on the table in the first round. Annebeth Lange:+1, Avri Jeff Neuman:Really hard to hear Phil Jeff Neuman:uts just quiet Samantha Demetriou:I'm glad Steve brought that point up. I'm not sure we should be digging too deeply into pricing at all. In terms of certain predatory practices, such as trademarked terms being marked as premium names with premium pricing, we should probably also consider whether this is in the purview of our PDP or the RPM review PDP. Annebeth Lange:Impossible to hear Julie Hedlund:@All: Slides are unsynced so you can move them yourself. We are on slide 1. Christa Taylor:Impossible to hear Christa Taylor:yes! Annebeth Lange:Yes, Phil Buckingham:sorry everyone avri doria:y Emily Barabas:now on slide 3 Emily Barabas:Here is the question in CC2: Emily Barabas:2.7.1 The Applicant Guidebook specified timelines by which applicants had to complete the contracting (9 months) and delegation (12 months) steps of the process. However, this requirement only means that the contract needs to be executed and nic.TLD be delegated. Are these timeframes reasonable? Is there still a need for these requirements? Please explain. Rubens Kuhl:That extension was given due to Spec 13 taking time to be finalized. Jeff Neuman 2:This issue was not just about the timeline, but also whether there needs to be a delegation deadline and what purpose does it really serve Rubens Kuhl:So from the perspective of Spec 13 applicants, they had the same lenght of time to act. Jeff Neuman 2:After all, does delegation alone, without any use actually discourage squatting? There were MANY TLDs that were sold after delegation, but before what most of us would call actual use Trang Nguyen:I believe the RA also provides for applicants (beyond Spec 13 applicants) to request for extensions to sign the RA. Rubens Kuhl:Non-delegated TLDs could be cheapear to hold as inventory, since they could pay less or no fees to a registry service provider. Steve Chan:Section 4.3: §4.3 Termination by ICANN(b) ICANN may, upon notice to Registry Operator, terminate this Agreement if Registry Operator fails to complete all testing and procedures (identified by ICANN in writing to Registry Operator prior to the date hereof) for delegation of the TLD into the root zone within twelve (12) months of the Effective Date. Registry Operator may request an extension for up to additional twelve (12) months for delegation if it can demonstrate, to ICANN's reasonable satisfaction, that Registry Operator is working diligently and in good faith toward successfully completing the steps necessary for delegation of the TLD. Any fees paid by Registry Operator to ICANN prior to such termination date shall be retained by ICANN in full. Rubens Kuhl:@Trang, did any applicants or contracted registries requested such extension ? Rubens Kuhl:Possible purpose is to increase the hold cost in order to stimulate usage. Jeff Neuman 2:Delegation is when you pay fees Christa Taylor:When delegated Jeff Neuman 2:Except the YMCH fees were upon signing Jeff Neuman 2:TMCH Phil Buckingham:Michael , blog post by Christine Willetts - April 16 Rubens Kuhl:The TMCH fee was a single time USD 5,000 fee. So time doesn't factor into cost. Jeff Neuman 2:I am just saying that the TMCH fees were billed at signing Jeff Neuman 2:I guess my question is whether the community still has concerns about TLDs not being "used" Christa Taylor:If we move to continuous rounds, could it impact the concern of not being used? Phil Buckingham:Q should there be a requirement to launch after a set number on months / years after delegation ? Trang Nguyen:ICANN org tracks delegation dates so we can provide average amount of time that it took for TLDs to get delegated if that is helpful to this discussion. Jeff Neuman 2:"Warehousing" is very different than taking a long time to use Annebeth Lange:Jeff, +1. There is also the question of the definition of "use" avri doria:Agree we should ask for data. Greg Shatan:Jeff, agree but the length of time is part of the difference. I'm not suggesting the current timeframes were good or bad, too long or too short.... Trang Nguyen:ICANN org has received requests for extension for delegations and have granted them. Michael Flemming:Samantha we can hear you. Trang Nguyen:Same with contracting. We received requests for extensions (from Spec 13 applicants and non-Spec 13 applicants), and have granted extension Phil Buckingham:+1 Alan . I have "found " PDT Service Level Targets ( SLTs) Should have been 28 days target 2/10 were missed may 16- march 17 Trang Nguyen:We can provide average timeframe for contracting and delegation. Rubens Kuhl:http://newgtlds.icann.org/newgtlds.csv has some indications that could point to TLDs that went beyond expected delegation dates. Jeff Neuman 2:@Greg, for some brands the timeline was too short....for others too long. It also relates to how long ICANN took to evaluate the applications and get to the point of signing agreements. Many of the sponsors of the TLDs at brands were long gone from those companies by the time ICANN was ready to sign agreements. That severely impacted brands who originally did want to "use" the TLDs, but lost interest after the 3 or 4 years it took to get through the process Rubens Kuhl:There are a number of reasons to not being put into use... for instance, our TLDs are not being used due to lack of RAA2013 registrars in our target market. Annebeth Lange:I agree, Rubens. Jeff Neuman 2:And some brands got in because they actually wanted to use it :) Jim Prendergast:Should note that .brands are also the leading type of TLD resignations. Rubens Kuhl:Has CCT-RT looked into this angle ? Cheryl Langdon-Orr (CLO):I am not surprised at that Greg Jeff Neuman 2:@Jim....true....but that could just mean that they know when they should get out ..... as opposed to others that should be getting out :) Cheryl Langdon-Orr (CLO)::-) Phil Buckingham:+ 1 Jim , so why / what are the reasons why they "resigned " ? avri doria:it may be necessary to ammend a strict policy with a list of possible circumstances for getting an extension. Cheryl Langdon-Orr (CLO):makes sense to me Avri Rubens Kuhl:"nogotiation" Greg Shatan:Needs a tell-all book, Jeff! Cheryl Langdon-Orr (CLO):good discussion today... Thanks everyone... Bye for now then... Julie Bisland:The next New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues will take place on Thursday, 01 June 2017 at 21:00 UTC. avri doria:bye Annebeth Lange:Seeyou, goodnight from Norway Greg Shatan:Buh-bye! Phil Buckingham:thanks Michael

1 0