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

April 13, 2017

Dear Sub Team Members, Please see below the action items and discussion notes captured by staff from the meeting on 13 April. 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 PDF 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 13 April Closed Generics -- Looked at the pros and cons on our last call based on the public comments. There was an update to the RAA that restricted closed generics. -- On the last call we didn't have a lot of feedback on the cons, more on the pros. Intention today is to take another looking at the cons and see what kind of harms there are. -- Asked staff to put together the types of harms that are identified. Found different categories of harm. -- Are these harms asserted as potential harms, or identified harms? Rather than identify we will say "mentioned". From what we gathered from the public comments these are how commenters identified potential harms. -- Let's call these "alleged harms." -- Majority of the comments talked about a harm to competition. There also mention of harm to the public interest and legal principles referenced, mentions of ICANN Bylaws and GNSO advice. Also the RAA code of conduct. Threat to open internet, cultural harm, trademark-related harm. Harm to competition (page 1 of the document) -- Comments from last call we noted harm to competition was raised by competitors. -- Might want to look at a finding by the International Chamber of Commerce on .mobile. CTIA objected to at least one application on the grounds that it was a closed generic will all traffic going to one CTIA member. Language about harms to business communities: https://iccwbo.org/publication/exp_499_icann_116_expert-determination/. -- Think there were several community objections did relate to unfair competition. -- Something to bear in mind in relation to competition: there was to some extent some benefit that another brand owner might seek a closed generic might not be a bad thing for us (BBC). Some spaces could be safeguarded from greater abuse. -- When you are faced with a number of TLDs and defensively registering your brand. Say you are in the food industry and .food is a closed generic it saves you the money on registrations. -- Kathy's example is not fully helpful. I think that decision came in a pre-determined outcome. There is nothing prohibiting closed generics -- it wasn't until after applications came in. Then the GAC piled on citing competition harms without real hard data. Then the snowball effect. If we going to reopen this issue I do think we owe it to open it from the beginning. I think we have to go back and do a real review, but I'm not sure it's worth it. -- There was a request that we look into this. As for going back and doing a review, I am open to suggestions. NGPC resolution (since disbanded). Don't know if it would carry as a Board resolution. -- Do want to make sure we are looking at what has been said about alleged harms. -- Not in a postion for laying out the case for why this exploded the Internet community in 2012/2013. So the ICANN Board stepped in. Need to hear the arguments. -- The intention in this call is to address the cons on closed generics -- pros were covered on the last call. -- If there were no prospects and an application for a closed generics was on hold an applicant might have decided to withdraw it. -- Board told everyone that you would have to open up your string or sit in the penalty box until the next round. Don't think we need to stick to the .com model. There are newer models. >From the chat: Paul McGrady: GNSO Policy on new gTLDs actually didn't prohibit or even mention closed generics. Kathy Kleiman: Many drafters of the Applicant Guidebook felt very strongly that Closed Generics were barred by the rules. Paul McGrady: Why were non of the pro-closed generics comments from the last round included in this document? Seems either a big oversight or one-sided designed to lead us all to a particular conclusion. Paul McGrady: But we are only seeing what 1 side has said. Why aren't we looking at what the other side said? Michael Flemming: We have gone over the Pros in the last call. Could you be clear what the other side would be? Susan Payne: @Kathy, that might have been the intention of some, but I don't think that was what the wording of the AGB said Kathy Kleiman: @Susan, the response in 2012 and 2013 was considerable! https://iccwbo.org/publication/exp_499_icann_116_expert-determination/ I think the determination stands on its own - worth reading! Susan Payne: @Kathy, what do you mean the response in 2012/2013? Kathy Kleiman: The letters and articles written in 2012 and 2013 - some circulated earlier today. Many with group signatures. Susan Payne: yes but my point is that is not what the AGB says, that is what some people wrote after the event surely avri doria: Even if we don't reopen it, we need to be explicit. One of the deficits in the previous policy is that we were not specific about approving closed generics, we just assumed that of course they would be ok. note: we did not even have a name for them back then. Cheryl Langdon-Orr (CLO): indeed Avri Paul McGrady: +1 Avri Cheryl Langdon-Orr (CLO): not sure we have any consensus on that Kathy... I don't agree they are " by definition " Good Steve Chan: @Paul, the NGPC was empowered by the Board to pass resolutions. Therefore, NGPC resolutions are ICANN Board resolutions. Cheryl Langdon-Orr (CLO): rather that this needs discussion Paul McGrady: @Kathy - that was the pre-round 1 model ICANN Bylaws, Affirmations of Commitments, GNSO Advice, and Registry Agreement Code of Conduct (page 3) -- Two things here: Not sure what relevant GNSO Council advice there is on this. -- Why don't we read the Code of Conduct and see if there is anything about it? While we are looking for the exact text, that certainly was one of the items that was discussed. One of the comments people were making is it could be open to all registrars, but I don't think we ever dug deeply down that line of argument in terms of to what degree -- when you make a deal with a registrar you have to make the same deal with everyone. Don't think that one was resolved. (reading from the Code of Conduct, Specification 9, page 282-283) -- Doesn't seem to restrict closed generics. -- Not very specific comments relating to Bylaws, etc. Threat to Open Internet (page 4) (Reading from post from Michele Neylon: https://www.internetnews.me/2013/02/23/5-reasons-why-closed-generic-new-gtl….) >From the chat: Rubens Kuhl: Although not always mentioned, closed generics can bring inovation as well to the DNS. .frogans is one example of the usage type that can go in that direction. Paul McGrady: @Kathy - I love him, but Michele's business is selling second level domain names, so closed generics are contrary to his business model, but that doesn't make them against the public interest Susan Payne 2: the difficulty is that all of these arguments assume that all we want are a whole series of .com alternatives. where is the innovation in that Liz Brodzinski: +1 Susan Rubens Kuhl: So the question is how to close the door to misuse without forbidding possible good uses. Paul McGrady: @Kathy - no competitors were blocked out of closed generics - all were welcome to apply for them Rubens Kuhl: Also of notice is that most of the anger against closed generics came specifically regarding .book. Kathy Kleiman: @Paul - of course we are closing off competitors -- to basic generic words that no one would be able to trademark as generic to their goods, services and industries. Kiran malancharuvil: Agree with Paul and Susan Payne 2 (identity theft??)

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recording, Attendance, AC recording and AC Chat for New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues 30 March 2017
by Terri Agnew March 30, 2017

March 30, 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, 30 March 2017 at 21:00 UTC. Adobe Connect recording (audio and visual): <https://participate.icann.org/p7ewzny0u4m/?OWASP_CSRFTOKEN=40844f1d049ed36d 8b5428de305871e4377fc5dc11a1c7741645e01567ccb573> https://participate.icann.org/p7ewzny0u4m/ 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/BLHRAw> https://community.icann.org/x/BLHRAw Thank you. Kind regards, Terri ------------------------------- Adobe Connect chat transcript for 30 March 2017 Terri Agnew:Welcome to the New gTLD Subsequent Procedures Sub Team - Track 2 - Legal/Regulatory Issues on Thursday, 30 March 2017 at 21:00 UTC Terri Agnew:agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_B LHRAw <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_ BLHRAw&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpC IgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=F3OBX_sw3Shh2PhomHVXEzl7EpTVRzLIeSPylhD5B1 A&s=D2nMqTyVRu6G7NyMp6dieDECbwAYRmo2Wghfz9bp9Nk&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=F3OBX_sw3Shh2PhomHVXEzl7EpTVRzLIeSPylhD5B1A&s=D2 nMqTyVRu6G7NyMp6dieDECbwAYRmo2Wghfz9bp9Nk&e= Michael Flemming 2:Terri lets give it another 2 minutes Steve Coates:Loud and clear. Karen Day:sounds fine Jeff Neuman:were with you Steve Chan:Summary of public comments available here: https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system _files_files_report-2Dcomments-2Dclosed-2Dgeneric-2D08jul13-2Den.pdf <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_syste m_files_files_report-2Dcomments-2Dclosed-2Dgeneric-2D08jul13-2Den.pdf&d=DwIF aQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9 Qfqa0AIgn-H4xR2EBk&m=F3OBX_sw3Shh2PhomHVXEzl7EpTVRzLIeSPylhD5B1A&s=9cBLIAsRs OLljcnwailwNfXlwHLCVegLOi3IJ60H4nU&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=F3OBX_sw3Shh2PhomHVXEzl7EpTVRzLIeSPylhD5B1A&s=9c BLIAsRsOLljcnwailwNfXlwHLCVegLOi3IJ60H4nU&e= Emily Barabas:everyone can now scroll through the document Jeff Neuman:pros Steve Coates:Pros Kurt Pritz:I think we should assume people read them Jeff Neuman:I think we should go through them all and get thoughts as to which people view persuasive Phil Buckingham:Ag,ree Michael - that is what these new GTLDs are about , right Emily Barabas:Michael, there are a few more Pros on the next page as well Michael Flemming 2:I will make sure to get those. Michael Flemming 2:Thank you. Jeff Neuman:So in theory, although a closed generic may harm a registrant's ability to get a domain name in that TLD, but at the end of the day, the use of the TLD in a closed generic may actually be more beneficial for the end user (the closed TLD's customer) Steve Coates:I don't understand this one. Phil Buckingham:Jeff , I am confused ! These are CLOSED generics - so the end users are not customers - there is no arms length transaction. Steve Coates:Who the domain owner is, if it's a closed generic. Emily Barabas:Steve -- I will see if I can find the original comment that this came from Emily Barabas:If ICANN regulates the right of domain name registrants to operate closed generics, ICANNwould actually limit free expression by imposing collective obligations and top-down regulationson domain owners. NCSG Members (4 Mar. 2013); M. Rodenbaugh (6 Mar. 2013) Gg Levine (NABP):Wouldn't a closed generic be operated as a .brand? Steve Coates:If registrants are barred from a closed generic, then I don't see how the collective obligations/top down regulations come into play. Steve Coates:That seems much clearer to me, Jeff. Perhaps "domain owners" then should be "TLD applicants." Michael Flemming 2:Jeff, could I ask you to speak for another minute, please? I need to get a drink of water. Michael Flemming 2:I'm back Samantha Demetriou:It seems to me that if ICANN wades into making decisions on behalf of a "consumer" in this context it gets into content regulation, which is outside its remit Phil Buckingham:There fore there is a direct relationship between the top level ( the owner ) and the end user . Therefore the owner (can ) CONTROLS who their end users are. Surely this is anti competitive , limit consumer choice . Michael Flemming 2:Jeff, you are in the can again. Steve Coates:Cant hear you, Jeff. Terri Agnew:@Jeff, you have become muffled Terri Agnew:@Jeff, audio is better Phil Buckingham:lots better Jeff Karen Day:@Phil - how is it anti competitive? You aren't limiting who can offer similar services? Just like with a trademark, to companies can offer identical services, but can't use the same name. Why can't 1 compnay have a TLD and not another? Steve Coates:What does the CCT say about public interest? Anyone? Jeff Neuman:They have not addressed this topic Steve Coates:Barely. Jeff Neuman:yes Karen Day:barely Terri Agnew:@Samantha, much better Phil Buckingham:Agree , Samantha , but where do you draw the line Samantha Demetriou:Not at all, Jeff, just trying to keep the convo going :) Kurt Pritz:@ Jeff - The rules were set out in advance - "closed generics" were allowed Gg Levine (NABP):Don't the safeguards, which the board requires, address the interests of end users? Jeff Neuman:Gg - in the safeguard, the end users are those that go to websites, email, etc. IN this case, ICANN decided that "safeguards" were needed for registrants in the form of protecting their right to register domain names Samantha Demetriou:You could interpret that once icann made the decision to disallow CGs, they defined public interest as protecting the open marketplace for registrants Gg Levine (NABP):Jeff - right, but is that consistent with their other decisions? Emily Barabas:For those following along in the report, arguments for the case-by-case approach are on page 23 Jeff Neuman:I think case by case would be too difficult and put ICANN in a very tough if not impossible position Samantha Demetriou:+1 to Jeff Kurt Pritz:@ Jeff - no kidding. Can you imagine a public interest review panel? Jeff Neuman:I would like to serve on that panel ;) Cheryl Langdon-Orr (CLO) 2:shudder Karen Day:Totally agree jeff. Just look at the Spec 9 decisions - totally inconsistant. avri doria:i was trying to imagne a public nterest panel Steve Coates:I would rather watch a public interest panel. Steve Coates:I'd love to see some metrics on this for Round 1. How many traditional domain industry insiders filed for closed generics, versus new players to the industry. Jeff Neuman:nope Jeff Neuman:I would think industry insiders applied for open generic TLDs because that was the model they were used to and that is how they make money (selling registrations).s Jeff Neuman:I cant think of any industry insider that applied for a closed generic Steve Coates:Do we have a list of closed generics? Jeff Neuman:@Steve - you mean the list of those that initially applied as closed generics> Jeff Neuman:because there are no closed generics now Kurt Pritz:Two comments: (1) Isn't the world's largest book seller operating .book the wet dream of the new gTLD program? We would have already seen innovation, not to mention the attention it would have brought to the new gTLD program (which is sorely lacking in public recognition); why should that be stifled? (2) at the end of the day, these are just domain names. What is the difference between .book and book.com? Everything is temporary. One party might have control for a while but resources always flow to the parties that value them most highly. Cheryl Langdon-Orr (CLO) 2:thanks everyone... bye for now then... Karen Day:bye all! Jeff Neuman:thanks avri doria:guess everyone else needs to stay on line. Cecilia Smith:bye!!

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Actions/Discussion Notes: Work Track 2 SubTeam Meeting 30 March
by Julie Hedlund March 30, 2017

March 30, 2017

Dear Sub Team Members, Please see below the action items and discussion notes captured by staff from the meeting on 30 March. 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 PDF 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 30 March 1. Recap for ICANN58 -- Focused on polishing questions for CC2. -- Added new questions. -- CC2 published and out for public comment. -- No comments that would result in a new focus. 2. Closed Generics Recap of what was discussed: Closed Generics -- Background Information (slide 4) -- "Closed Generic" is referred to in the community as a "TLD string that is a generic term and is proposed to be operated by a participant exclusively for its own benefit. What's in writing? (slide 5) -- No reference in the AGB. -- Registry Agreement has Spec. 11.3.d. "defined as a string consisting of a word or term that denominates or describes a general class of goods, services, groups, organizations or things, as opposed to distinguishing a specific brand of goods, services groups, organizationor things from things of others." Exceptions to the RA that allow for "Exclusive Use" (slide 6) -- Granted to Code of Conduct. -- Registry qualifies as a "Brand TLD" as defined in Sepc 13 as a string where... Closed Generics --- Pros and Cons (slide 8) -- From the public comment forum on closed generics. -- Find if there is or not potential harm in allowing closed generics as well as any other notable findings from the public comments. Summary of public comments available here: https://www.icann.org/en/system/files/files/report-comments-closed-generic-… Pros: Allow Closed Generics (reading from the PDF) -- There definitely seems to be a different definition of a user depending if you are in favor or against. Those in favor of not having them define the user as the registrant -- the registrant's right to register those names. Those who favor having Closed Generics look at the user as the end user who goes to the web site, as opposed to the registrant. We need to be definitive on competition -- is it registrants or end users? -- When we look at the end user it could be described as the customer of the registry offering closed generics. End users are the individuals looking at the web site in a closed generic TLD. -- At the time the Closed Generics came into play the applications were already submitted for operating Closed Generics. Example was .search. There were a number of complaints saying the Google and other companies should not be able to take a generic name and use it for their own purposes internally as that would harm consumers. A lot of people who filed comments said that ICANN shouldn't change the requirements midway. -- On the consumer argument: If you look at one of the cons says [third on the PDF list] "closed generics favor large industry players..." You are talking about big registrars, but people will want to buy produces at the second level web site. -- Is ICANN supposed to protect registrants as users or the end users as users (those who use the web site)? Not sure that ICANN made that determination. -- Part of ICANN's mission is to act in the public interest and it is public interest to limit closed generics because it limits consumer choice. Is it ICANN's public interest to protect registrant's rights to register a name or to get new and innovative content supplied by the registry who is also the registrant. -- The term "public interest" can be confusing in a general context and especially the ICANN content. If we start to look at what types of content people can put online we have stepped out of bounds. But it seems that this is what ICANN did in this case. The public interest weighed in favor of registrants being able to register a generic string, rather than a registries innovative model operated for end users. -- Take a step back and not assume the ICANN got it right. If we believe ICANN shouldn't be involved in that kind of regulation wouldn't that overturn what ICANN did and allow Closed Generics. -- Also seems to apply to reguirements for monitoring abuse -- Spec 11.b. Applies in safeguards and the definition can change depending on the topic. -- Need kind of common definition -- registrant or consumers/end users. Cons: Restrict Closed Generics (reading from PDF): -- The rule was that if you are a generic ICANN covers its tracks -- it still has the right if it determines your string is generic (Spec 11.3.d.) Don't think it was meant to be on a case-by-case basis, but that ICANN wanted a rule. -- There is a problem in the implementation itself because it is not being implemented for certain strings -- registration policies for some strings. >From the chat: Jeff Neuman: So in theory, although a closed generic may harm a registrant's ability to get a domain name in that TLD, but at the end of the day, the use of the TLD in a closed generic may actually be more beneficial for the end user (the closed TLD's customer) Steve Coates: I don't understand this one. Phil Buckingham: Jeff , I am confused ! These are CLOSED generics - so the end users are not customers - there is no arms length transaction. Steve Coates: Who the domain owner is, if it's a closed generic. Emily Barabas: Steve -- I will see if I can find the original comment that this came from. If ICANN regulates the right of domain name registrants to operate closed generics, ICANNwould actually limit free expression by imposing collective obligations and top-down regulations on domain owners. NCSG Members (4 Mar. 2013); M. Rodenbaugh (6 Mar. 2013) Gg Levine (NABP): Wouldn't a closed generic be operated as a .brand? Steve Coates: If registrants are barred from a closed generic, then I don't see how the collective obligations/top down regulations come into play. That seems much clearer to me, Jeff. Perhaps "domain owners" then should be "TLD applicants." Samantha Demetriou: It seems to me that if ICANN wades into making decisions on behalf of a "consumer" in this context it gets into content regulation, which is outside its remit Phil Buckingham: There fore there is a direct relationship between the top level ( the owner ) and the end user . Therefore the owner (can ) CONTROLS who their end users are. Surely this is anti competitive , limit consumer choice. Karen Day: @Phil - how is it anti competitive? You aren't limiting who can offer similar services? Just like with a trademark, to companies can offer identical services, but can't use the same name. Why can't 1 compnay have a TLD and not another? Steve Coates: What does the CCT say about public interest? Anyone? Jeff Neuman: They have not addressed this topic. Kurt Pritz: @ Jeff - The rules were set out in advance - "closed generics" were allowed Gg Levine (NABP): Don't the safeguards, which the board requires, address the interests of end users? Steve Coates: I'd love to see some metrics on this for Round 1. How many traditional domain industry insiders filed for closed generics, versus new players to the industry. Jeff Neuman: I would think industry insiders applied for open generic TLDs because that was the model they were used to and that is how they make money (selling registrations). I cant think of any industry insider that applied for a closed generic. Steve Coates: Do we have a list of closed generics? Jeff Neuman: @Steve - you mean the list of those that initially applied as closed generics, because there are no closed generics now. Kurt Pritz: Two comments: (1) Isn’t the world’s largest book seller operating .book the wet dream of the new gTLD program? We would have already seen innovation, not to mention the attention it would have brought to the new gTLD program (which is sorely lacking in public recognition); why should that be stifled? (2) at the end of the day, these are just domain names. What is the difference between .book and book.com? Everything is temporary. One party might have control for a while but resources always flow to the parties that value them most highly.

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Agenda for WT2 Meeting 30 March 2017 at 21:00 UTC
by Michael Flemming March 30, 2017

March 30, 2017

Dear All, This week on 30 March 2017 at 21 UTC we will be continuing our discussion on Closed Generics. Below is the agenda. 1. *Welcome * 2. *SOI * 3. *Closed Generics* 4. *AOB* Also, I send to everyone the slides that I plan to use for the meeting. I look forward to speaking with everyone and having an exciting conversation! Kind regards, Michael Flemming

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

March 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 March 2017 at 21:00 UTC. Adobe Connect recording (audio and visual): <https://participate.icann.org/p6ksb5h5weq/?OWASP_CSRFTOKEN=d2bb332eb83bd37e 112e25e7751c52e54fb922234e519726f89516ceebbbd6db> https://participate.icann.org/p6ksb5h5weq/ 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/7ZLRAw> https://community.icann.org/x/7ZLRAw Thank you. Kind regards, Terri ------------------------------- Adobe Connect chat transcript for 02 March 2017 Terri Agnew:Welcome to the New gTLD Subsequent Procedures Sub Team Track 2 Legal/Regulatory Issues call on Thursday, 02 March 2017 at 21:00 UTC for 60 minutes. Terri Agnew:agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_7 ZLRAw <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_ 7ZLRAw&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpC IgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=G5NCNIjPh8JfDXAGjCT7WnPi6lqh2L4zFNA-8MoKX5 o&s=7bvJjK1XwWpPFO0UKjiSy10Kq25506GfXRVEqkyEqjo&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=G5NCNIjPh8JfDXAGjCT7WnPi6lqh2L4zFNA-8MoKX5o&s=7b vJjK1XwWpPFO0UKjiSy10Kq25506GfXRVEqkyEqjo&e= Emily Barabas:a little quiet Susan Payne:sounds fine Kristina Rosette (Amazon Registry):we can hear you. Karen Day:sounds fine Julie Hedlund:Your voice is quiet Michael Emily Barabas:but audible Julie Hedlund:Much better! Kristina Rosette (Amazon Registry):yes Karen Day:wow! Emily Barabas:yes Jeff Neuman:Hereis the report: https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system _files_files_report-2Dcomments-2Dclosed-2Dgeneric-2D08jul13-2Den.pdf <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_syste m_files_files_report-2Dcomments-2Dclosed-2Dgeneric-2D08jul13-2Den.pdf&d=DwIF aQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9 Qfqa0AIgn-H4xR2EBk&m=G5NCNIjPh8JfDXAGjCT7WnPi6lqh2L4zFNA-8MoKX5o&s=yn2GD2Jlq rqmAqbb6TOdU80R_pi9WebcFMf17o3pLi0&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=G5NCNIjPh8JfDXAGjCT7WnPi6lqh2L4zFNA-8MoKX5o&s=yn 2GD2JlqrqmAqbb6TOdU80R_pi9WebcFMf17o3pLi0&e= Jeff Neuman:(Public comments) Kristina Rosette (Amazon Registry):That's the link I sent around by email before the call. Jeff Neuman:you dont have to read it Kristina Rosette (Amazon Registry):You don't need to read it. Everyone can find it on ICANN's website. Emily Barabas:we see what you are doing Emily Barabas:(scrolling, zooming, etc) Steve Chan 2:We'll unsync now though... Alexander Schubert:The AG should exclude generic keyword strings! Alexander Schubert:.makeup - L'Oréal - totally unused Susan Payne:Alexander, do you have voice capability - would be good for you to expand on makeup Karen Day:@Alexander should exclude generic strings or just closed generic strings? Alexander Schubert:Some corporate platers buy these strings up to close them down.... Alexander Schubert:You will also see registries who will rather keep ownership of all domains and "lease" them out; instead of having regular registrations. Which kills all rights for domain registrants. Cheryl Langdon-Orr (CLO):of course they do and that as a model for them is Ok... but it does have a chilling effect on others and contributes nothing to diversity trust competition or choice Cheryl Langdon-Orr (CLO):that last comment was re buy and shut down name use Cheryl Langdon-Orr (CLO):yes Jeff that is a real risk IMO Karen Day:@CLO - I disagree as regards stiffling competition, it may well 'chill' competition amongst the buy/sell side but it infact encourages competition between business and those who can innovate in the domain space by offering a tangible reward for devloping a viable innovative buisness model. Susan Payne:correct :Paul - Board chose not to make really a decision on this which is why they tasked GNSO to form a policy for future. No-one in round one could proceed as a closed generic but they were given option eventually (after most had already agreed they would open up) to go on indefinite holdd pending this PDP. Karen Day:@Alexander the .makeup space isn't being used b/c L'Oreals model was not operate an open registry. Perhaps it would be a very cool space if they hadn't been forced to open?? Kristina Rosette (Amazon Registry):Here's the Amazon letter I mentioned: https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_c omments-2Dclosed-2Dgeneric-2D05feb13_pdfgIbbsgX7WQ.pdf <https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_ comments-2Dclosed-2Dgeneric-2D05feb13_pdfgIbbsgX7WQ.pdf&d=DwIFaQ&c=FmY1u3PJp 6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR 2EBk&m=G5NCNIjPh8JfDXAGjCT7WnPi6lqh2L4zFNA-8MoKX5o&s=FmZ3F6AhElQbth0lFxBUsqt um7qEbwWzgHXCWXpv7BY&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=G5NCNIjPh8JfDXAGjCT7WnPi6lqh2L4zFNA-8MoKX5o&s=Fm Z3F6AhElQbth0lFxBUsqtum7qEbwWzgHXCWXpv7BY&e= Paul McGrady:@Susan, except what the Board did was undo the decision that they had made to allow it when the AGB was published. Cheryl Langdon-Orr (CLO):possibly @Karen, Kristina Rosette (Amazon Registry):+1 Paul Susan Payne:@Paul - Yes, I agree the AGB did not prohibit Alexander Schubert:If it is not a generic keyword based string: operate it like you want. But category killer keyword strings should not serve to cut out your competition or have some fishy business models which deprive registrants of certainty. A Heather Forrest:Hi everyone - apologies for joining late! Alexander Schubert:Closed Generics WILL be abused - big time. Yes: There MIGHT be some benefitial cool new business models. I doubt it: There were zero new business models in 2012. Likely this simply opens the floodgates to abuse. Karen Day 2:+1 Kristina - there is too much inconsistancy as is. Kristina Rosette (Amazon Registry):@Alexander: I think it's too early to say that zero new business models came out of the 2012 round. Paul McGrady:@Alexander - maybe the cool new business models were shutdown when the Board shutdown new generics... Alexander Schubert:Say 99% run the .com model :-) Cheryl Langdon-Orr (CLO):that is a risk that parts of the ICANN community will be most concerned about @Alexander... yes Alexander Schubert:Then: If someone needs a closed gneric for a category killer keyword string - let them propose their model - give the Internet community opportunity to oppose it! Kevin Kreuser (GoDaddy):Dish Paul McGrady:An 8 year hold is a death sentence. Let's not pretend that what the Board did was anything other than killing off closed generics... Kristina Rosette (Amazon Registry):@Jeff: You can figure it out by reading the Spec. 13 application. That's public. Kristina Rosette (Amazon Registry):Well, you can see what they argued. Not what ICANN's rationale was. Paul McGrady:The difference between now and then is that the USG was part of the GAC that advised to kill off closed generics. The USG was, at the time, the final say in what got in and what did not. There would have been no point in allowing closed generics to proceed if the USG was not going to let them in the root in any event. However, the USG is no longer in that role. Karen Day 2:Guess we need to ask Apple too then @Jeff - it's a brand. Michael Flemming:I think Jeff is aware of that. He just wants us discuss about those brands that overlap with generic strings. Alexander Schubert:ICANN provides registrants with certain rights! If domains aren't anymore REGISTERED (via registrars) then all these rights are gone. The domain is then "leased" - maybe according to some Offshore legal entity that you can't even sue in the U.S.! Does the registrars constituency know that they are about to be thrown under the bus? Maybe someone should tell them.... Kristina Rosette (Amazon Registry):I don't think it's necessarily your role to have to come up with all the questions. We, as a group, do. Paul McGrady:@Jeff, its a competition law issue. Mary Wong:@Paul, what would be the specific legal question(s) to be asked? Susan Payne:OK - Question to get ball rolling: Is there a harm to allowing closed generics and if so what is that harm avri doria:what the harm is, or what the harrm is beleived to be. Karen Day 2:That wasthe percieved harm, but maybe Susan is asking do we have evidence of actual harm? Mary Wong:Going back to basics - does the group have a common understanding of what "closed generics" means as a term and category? Alexander Schubert:ONE SImple example: In the current registry-registrar-registrant model a domain is registered; and can be renewed infinitely. The registrant invests money and builds a brand around the domain. In the closed generics model a registry could simply retain the right to "sell" the domain at any time - and cancel the lease! So if you make books.com a big brand - the registry can kind of sell the besis of your brand! Just an example how registrants rights might be violated! Heather Forrest:In my mind this all feeds into a broader question, which is: what do we do with those areas of the Guidebook that progressed/changed after the GNSO PDP recommendations were agreed upon (ie, through GAC/Board change)? Paul McGrady:@Mary Wong, happy to help think through your question and get a more robust/specific response, but what immediately comes to mind is: Does the post-IANA transition ICANN (the corporation) have a legal basis to restrict the nature of the business models adopted by gTLD registries other than requiring registries to comply with applicable law? Kristina Rosette (Amazon Registry):Many of us have long flights coming up in which we could read the public comment report. ;-) Karen Day 2:@Mary, I think that is a debatable question as some will argue that "generic" only applies to those specific tlds that the GAC called out. avri doria:i have heard of no actual harm. Food is a good example. while it is a brand, it looks like a close generic and if being run as a closed generic, has there been any harm? Mary Wong:@Karen, that's why staff is asking the question - if there is no agreed understanding of what the term means, it's hard to see how conclusions can be reached via consensus. Mary Wong:@Paul, thanks Cheryl Langdon-Orr (CLO):good plan Jeff Karen Day 2:@Mary totally agree avri doria:and are there other cases of branded generic words that are being run closed? Paul McGrady:@Jeff, I think we need to answer the basement question first. Can the new ICANN actually do this (harm or not)? Jeff Neuman:Paul - I dont think that we can get into the overarching questions Jeff Neuman:@paul - that question would apply to everything ICANN does Paul McGrady:@Jeff, how so? Jeff Neuman:I guess their answer would be that they can do anything that anyone contractually agrees with Jeff Neuman:Does ICANN have the right to require PICS? Jeff Neuman:Does ICANN have the right to require a public whois? Jeff Neuman:What I am saying is that it cant be for our group to research whether icann has the right to regulate Kristina Rosette (Amazon Registry):Oh Jeff, I don't have the energy for an existencial crisis right now. :-) Jeff Neuman:@Kristina - exactly :) Cheryl Langdon-Orr (CLO):hell no Paul McGrady:@Jeff, its not the right to regulate that is the concern. It is the right to exclude that is the problem being discussed. Cheryl Langdon-Orr (CLO):the energy not the answer to the questions Jeff Neuman:By signing the Applicant Terms and conditions, every applicant gives ICANN the right to exclde for any reason Jeff Neuman:(which I do not agree with) Jeff Neuman:But that is what they would argue Paul McGrady:@Jeff, if I don't want to sign the Applicant Terms & Conditions, where else can I "buy" a TLD registry contract? Kristina Rosette (Amazon Registry):I think we have only a few minutes. Can we agree on an action plan for our next meeting? avri doria:For the moment can we accept there is as of yet no proof of harm? Alexander Schubert:This is how for example .de.com domains are sold in a way that completely "feels" like a "normal regisration" - but if someone buys "de.com" up - all registrantions are gone... https://urldefense.proofpoint.com/v2/url?u=https-3A__www.namecheap.com_domai ns_registration_cctld_de-2Dcom.aspx <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.namecheap.com_doma ins_registration_cctld_de-2Dcom.aspx&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPS S6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=G5NCNIjPh8Jf DXAGjCT7WnPi6lqh2L4zFNA-8MoKX5o&s=ZN1VkJqj2_DBTqG3FYb4iozjz7BZwhrmOaVGzA_zTB 0&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=G5NCNIjPh8JfDXAGjCT7WnPi6lqh2L4zFNA-8MoKX5o&s=ZN 1VkJqj2_DBTqG3FYb4iozjz7BZwhrmOaVGzA_zTB0&e= Michael Flemming:Yes, Avri. So we will ask for it. Cheryl Langdon-Orr (CLO):bye for now then... safe travels to those who are attending CPH meeting Kristina Rosette (Amazon Registry):bye. Safe travels. Jeff Neuman:my computer is not letting me lower the hand :) Alexander Schubert:TNX Alexander Schubert:Bye Robert Burlingame:Thank you. Karen Day 2:bye all

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

March 2, 2017

Dear Sub Team Members, Please see below the action items and discussion notes captured by staff from the meeting on 02 March. 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 March 1. CC2 Questions (slides 4-8) -- Any questions about the questions? [None] 2. Closed Generics Background (slide 10) -- What is a "closed generic"? -- is referred to in hte community as a "TLD string that is a generic term and is proposed to be operated by a participant exclusively for its own benefit". Also see definition of "generic string" in the Registry Agreement Specification 11.3.d. Background Information, Cont. (Slides 11, 12, 13, 14, & 15) -- No reference to closed generics in GNSO Policy -- No reference in the Applicant Guidebook -- Registry Agreement Specification 11.3.d -- Public Comment report: https://www.icann.org/en/system/files/files/report-comments-closed-generic-… (See summary on slide 13) -- Where are we now? NGPC requested in their 06 June 2015 meeting that the GNSO include the issue of closed generics in this PDP. -- Exceptions to the RA that allow for "Exclusive Use" (Slide 15) -- Registry qualifies as a "Brand TLD" as definined in Specification 13 as a string (Slide 15) Million Dollar Question: (Slide 16): Should there be restrictions around exclusive use of generic TLDs? -- Point out that whether we decide to allow or not allow we need to account for certain things that have happened -- such as .food granted under Specification 13. -- Should decide how to allow exceptions. Board has asked for a policy for the next round. -- One of the options is to say "no, we are fine with what the Board did with a tweak here or there." -- Amazon's view: restricting closed generics raises the issue of what is closed and what is generic. Could put ICANN in the position of deciding that some business models are better than others. Also could hinder innovation, such as using a TLD as an incubator for new business models. See: https://forum.icann.org/lists/comments-closed-generic-05feb13/pdfgIbbsgX7WQ…. -- Questions: 1) If we allow closed generics are we getting ICANN into regulation of certain business models? 2) What is the difference between closed generic TLD and a generic TLD that has a ton of restrictions? -- Comments: In the last round they were not allowed but there was never a good reason given. Governments maybe had competition concerns, but could not spell out what that could be. GAC advice that modified a huge portion of the AGB after the AGB was supposed to be fixed. Doesn't seem to be any reason to continue with the way the last round turned out. -- What if we keep what we have today -- keep Specification 3d as is? IIt would be a bad idea of ICANN being in the way of healthy competition. We need to look at the broader issue. -- The Board punted to the GNSO. There wasn't really a rationale. Important that the PDP examines this issue. -- Almost impossible not to regulate. -- Question #1: What is the basis upon which ICANN has the power to decide which business models make it and which don't? Answer: If they don't have any legal basis to restrict closed generic that answers the question. But if there is a legal basis what are the perceived harms? -- Don't know of any research that ICANN did. Could see if there was a Board memo that was public, but probably because it came in as GAC advice -- rather than disagreeing with the GAC tried to find a way to say yes. Did not say no, but put applications on hold until the model was changed. Somehow .food got through. -- The distinction with .food it was a Spec 13 application. It was a valid trademark registration by the US PTO. Be cautious about suggesting that we/ICANN should be imposing its judgment over that of national trademark offices. -- Strongly urge going back to Paul's suggestion to go back to questions we need to answer. -- We need to ask the questions, but be aware of who we will ask. Need to ask an outside law firm, not ICANN. -- On research: We may have to ask for research to be done, but not sure this question involves a legal issue. It is policy based. But could be a competition law issue. Need to narrowly tailor questions. Look at the pros and cons, what are the benefits and harms. -- Maybe we don't have an understanding of what is a closed generic. Action Item: Need to come back and look at what is a closed generic. There is a definition in Specification 13 and Specification 11. Categorize the harm and benefits. Prepare something for the next call. >From the chat: Alexander Schubert: The AG should exclude generic keyword strings! Example: makeup - L'Oréal - totally unused. Some corporate platers buy these strings up to close them down...You will also see registries who will rather keep ownership of all domains and "lease" them out; instead of having regular registrations. Which kills all rights for domain registrants. Cheryl Langdon-Orr (CLO): of course they do and that as a model for them is Ok... but it does have a chilling effect on others and contributes nothing to diversity trust competition or choice -- that last comment was re buy and shut down name use. Cheryl Langdon-Orr (CLO): yes Jeff that is a real risk IMO. Karen Day: @CLO - I disagree as regards stifling competition, it may well 'chill' competition amongst the buy/sell side but it infact encourages competition between business and those who can innovate in the domain space by offering a tangible reward for developing a viable innovative business model. Susan Payne: correct: Paul - Board chose not to make really a decision on this which is why they tasked GNSO to form a policy for future. No-one in round one could proceed as a closed generic but they were given option eventually (after most had already agreed they would open up) to go on indefinite hold pending this PDP. -- Need to look at where the law might apply and we need to have a basis for our policy. -- What is the harm? Answer could be in the public comments -- that closed generics will harm the open Internet -- could collect the pros and cons. Karen Day: @Alexander the .makeup space isn't being used b/c L'Oreals model was not operate an open registry. Perhaps it would be a very cool space if they hadn't been forced to open?? Kristina Rosette (Amazon Registry): Here's the Amazon letter I mentioned: https://forum.icann.org/lists/comments-closed-generic-05feb13/pdfgIbbsgX7WQ…. Paul McGrady: @Susan, except what the Board did was undo the decision that they had made to allow it when the AGB was published. Cheryl Langdon-Orr (CLO): possibly @Karen, Kristina Rosette (Amazon Registry): +1 Paul Susan Payne: @Paul - Yes, I agree the AGB did not prohibit Alexander Schubert: If it is not a generic keyword based string: operate it like you want. But category killer keyword strings should not serve to cut out your competition or have some fishy business models which deprive registrants of certainty. Closed Generics WILL be abused - big time. Yes: There MIGHT be some benefitial cool new business models. I doubt it: There were zero new business models in 2012. Likely this simply opens the floodgates to abuse. Karen Day 2: +1 Kristina - there is too much inconsistancy as is. Kristina Rosette (Amazon Registry): @Alexander: I think it's too early to say that zero new business models came out of the 2012 round. Alexander Schubert: Say 99% run the .com model :-) Cheryl Langdon-Orr (CLO): that is a risk that parts of the ICANN community will be most concerned about @Alexander... yes Alexander Schubert: Then: If someone needs a closed gneric for a category killer keyword string - let them propose their model - give the Internet community opportunity to oppose it! Kevin Kreuser (GoDaddy): Dish Paul McGrady: An 8 year hold is a death sentence. Let's not pretend that what the Board did was anything other than killing off closed generics... Kristina Rosette (Amazon Registry): @Jeff: You can figure it out by reading the Spec. 13 application. That's public. Well, you can see what they argued. Not what ICANN's rationale was. Paul McGrady: The difference between now and then is that the USG was part of the GAC that advised to kill off closed generics. The USG was, at the time, the final say in what got in and what did not. There would have been no point in allowing closed generics to proceed if the USG was not going to let them in the root in any event. However, the USG is no longer in that role. Karen Day 2: Guess we need to ask Apple too then @Jeff - it's a brand. Michael Flemming: I think Jeff is aware of that. He just wants us discuss about those brands that overlap with generic strings. Alexander Schubert: ICANN provides registrants with certain rights! If domains aren't anymore REGISTERED (via registrars) then all these rights are gone. The domain is then "leased" - maybe according to some Offshore legal entity that you can't even sue in the U.S.! Does the registrars constituency know that they are about to be thrown under the bus? Maybe someone should tell them.... Mary Wong: @Paul, what would be the specific legal question(s) to be asked? Susan Payne: OK - Question to get ball rolling: Is there a harm to allowing closed generics and if so what is that harm? avri doria: what the harm is, or what the harrm is beleived to be. Karen Day 2: That wasthe percieved harm, but maybe Susan is asking do we have evidence of actual harm? Mary Wong: Going back to basics - does the group have a common understanding of what "closed generics" means as a term and category? Alexander Schubert: ONE SImple example: In the current registry-registrar-registrant model a domain is registered; and can be renewed infinitely. The registrant invests money and builds a brand around the domain. In the closed generics model a registry could simply retain the right to "sell" the domain at any time - and cancel the lease! So if you make books.com a big brand - the registry can kind of sell the besis of your brand! Just an example how registrants rights might be violated! Heather Forrest: In my mind this all feeds into a broader question, which is: what do we do with those areas of the Guidebook that progressed/changed after the GNSO PDP recommendations were agreed upon (ie, through GAC/Board change)? Paul McGrady: @Mary Wong, happy to help think through your question and get a more robust/specific response, but what immediately comes to mind is: Does the post-IANA transition ICANN (the corporation) have a legal basis to restrict the nature of the business models adopted by gTLD registries other than requiring registries to comply with applicable law? Kristina Rosette (Amazon Registry): Many of us have long flights coming up in which we could read the public comment report. ;-) Karen Day 2: @Mary, I think that is a debatable question as some will argue that "generic" only applies to those specific tlds that the GAC called out. avri doria: i have heard of no actual harm. Food is a good example. while it is a brand, it looks like a close generic and if being run as a closed generic, has there been any harm? Mary Wong: @Karen, that's why staff is asking the question - if there is no agreed understanding of what the term means, it's hard to see how conclusions can be reached via consensus. avri doria: and are there other cases of branded generic words that are being run closed? Paul McGrady: @Jeff, I think we need to answer the basement question first. Can the new ICANN actually do this (harm or not)? Jeff Neuman: Paul - I dont think that we can get into the overarching questions. @paul - that question would apply to everything ICANN does. Paul McGrady: @Jeff, how so? Jeff Neuman: I guess their answer would be that they can do anything that anyone contractually agrees with. Does ICANN have the right to require PICS? Does ICANN have the right to require a public whois? What I am saying is that it cant be for our group to research whether icann has the right to regulate. Paul McGrady: @Jeff, its not the right to regulate that is the concern. It is the right to exclude that is the problem being discussed. Jeff Neuman: By signing the Applicant Terms and conditions, every applicant gives ICANN the right to exclde for any reason (which I do not agree with). But that is what they would argue. Paul McGrady: @Jeff, if I don't want to sign the Applicant Terms & Conditions, where else can I "buy" a TLD registry contract? avri doria: For the moment can we accept there is as of yet no proof of harm? Alexander Schubert: This is how for example .de.com domains are sold in a way that completely "feels" like a "normal regisration" - but if someone buys "de.com" up -- all registrantions are gone... https://www.namecheap.com/domains/registration/cctld/de-com.aspx Michael Flemming: Yes, Avri. So we will ask for it.

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Agenda for WT2 Meeting 2 March 2017 at 21:00 UTC
by Michael Flemming March 2, 2017

March 2, 2017

Dear All, My apologies in sending this out so late. I have run into some urgent family matters that have kept me from sending out emails in a timely fashion. This week on 2 March 2017 at 21 UTC we will be covering Closed Generics. I look forward to this being one of our more active discussions. As always, please note the agenda below. 1. *Welcome * 2. *SOI * 3. *CC2 Questions (Very brief follow up and time given for questions needing clarification) * 4. *Closed Generics * 5. *AOB (I don't think we will have much time for that this week, though).* Also, I send to everyone the slides that I plan to use for the meeting. I look forward to speaking with everyone and having an exciting conversation! Kind regards, Michael Flemming

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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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WT2 Meeting Time Rotation Consideration
by Michael Flemming Jan. 31, 2017

Jan. 31, 2017

Until now, the majority of our WT2 Meetings have taken place on Thursdays at 20 UTC. This meeting slot has proven useful as our attendance has not faltered too much up until now. However, for some of our members, including myself, 20 UTC can also be a rather difficult time to attend these meetings. For this reason, I would like to make the proposal to begin looking at a rotation for WT2 meetings. Other Working Tracks have been rotating meetings at a 3:00 UTC, 15:00 UTC, and 20:00 UTC schedule. I think it would be useful to begin using this rotation or one at a similar time slot. If others wouldn't have a problem with this rotation, then I would like to have a Doodle Poll sent out to begin adjusting the already scheduled meeting time on February 2nd at 20 UTC. Any thoughts? Kind regards, Michael Flemming

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Registrant Protections Discussion
by Michael Flemming Jan. 31, 2017

Jan. 31, 2017

At our last meeting on January 19th at 20 UTC we introduced the Registrant Protections (EBERO, COI, and When Registrants don't apply topics). While these topics are vast and much can be discussed, we are unable to spend all of our time discussing during our bi-weekly hour meetings. Therefore, I would like to continue this discussion over email. I attach here the same presentation material we used in the meeting in order to provide everyone with the necessary background information. However, I have pulled out the questions from the presentation and listed them below. These same questions will be copied to the Issues Area Working Document <https://docs.google.com/document/d/1YsbOmz06YbXBkUQpj1rljVo-bTH-Br5Ju6cVJvp…>. Perhaps it is easier, however, to have a discussion on a consistent email thread. Key feedback will also be moved to the document. I invite everyone to provide their opinion to the questions below. *Critical Registry Functions:* *Are the current Critical Registry Functions still sufficient or do changes need to be made? * *Has any registry gone above the Emergency Threshold before?* *Has the level of the Emergency Threshold ever been reached that would initiate an emergency escalation or EBERO?* *COI:* *Are the cost measurements for the COI still sufficient to cover the critical functions for EBERO?* *Is the time period for the COI sufficient (i.e. 6 years from the execution date of the RA)?* *Are the requirements for the Letter of Credit still sufficient?* *Can other models besides the Letter of Credit and the Cash Escrow Deposit be considered for the COI requirements?* *In regards to TLDs like Brand TLDs and Code of Conduct exempt TLDs where Registrants may not be necessary to protect:* *Should more relevant rules be established for certain specific cases or categories of TLDs?* Below are additional questions I would like to add on material we were not able to cover in the last meeting. These are kind of last minute additions and the questions could probably be refined. *In regards to Background Checks on applicants:* *Are the background checks a sufficient mechanism for protecting Registrants?Do the requirements for Background Checks in regards to (1) General business diligence and criminal history and (2) History of cybersquatting behavior prove sufficient and/or necessary for TLDs where Registrant Protections may not be necessary?* I have a few other additional questions I would like to ask, but need more time to formulate them. Please let me know your thoughts. Kind regards, Michael Flemming

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recording, Attendance & AC Chat for New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues 19 January 2017
by Terri Agnew Jan. 19, 2017

Jan. 19, 2017

Dear All, Please find the attendance and recording of the call attached to this email and the AC Chat below for the New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues held on Thursday, 19 January 2017 at 20:00 UTC. 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/oLbDAw Thank you. Kind regards, Terri ------------------------------- Adobe Connect chat transcript for 19 January 2017 Terri Agnew:Welcome to the New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues on Thursday, 19 January 2017 at 20:00 UTC. Terri Agnew:agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… Heather Forrest:Thanks, Terri - good morning to you Steve Chan:Sure, just say next slide, and I can move it forward for you. Jeff Neuman:Principle D is from the 2007 GNSO Policy Rubens Kuhl:While at NTAG, applicants concluded that ICANN COIs likely violated international guidelines against money laundring. I still think it is true. Trang Nguyen:@Rubens, I believe the issue was around the specific criteria in the AGB that states: The LOC ust name ICANN or its designee as the beneficiary." Many banks, U.S. and international viewed the "designee" as problematic because most if not all banks need to perform certain checks on the beneficiary, and they cannot do that for an un-named beneficiary. ICANN issued an advisory (https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_en_… ) stating that it would be acceptable to name only ICANN as the beneficiary provided that the LOC is fully transferable. Trang Nguyen:Nonetheless, COIs were an issue for most applicants. Q50 received the most number of clarifying questions, by far. 82% of apps received a CQ on Q50. Kurt Pritz:My understanding is that If a Donuts rgistry went into EBERO, the registery would no longer be registering names, therefore the DPML would no longer be critical Jeff Neuman:@Kurt - Is that an argument that the SRS is not a critical function? Rubens Kuhl:Jeff, the SRS is still required to update already registered domains. Rubens Kuhl:But any policy layer is not critical. Jeff Neuman:@Rubens - correct.....that is the critical part, but not the rest of the SRS Rubens Kuhl:DPML, registrant verification and all other systems, processes and human resources that are in the policy layer are not critical. Kurt Pritz:@Jeff - no. It was an argument that we need not augment the existing core set with DPML. There might be renewals in an EBERO environment, does that require SRS? Jeff Neuman:I want to make sure we capture Trang's statistics for the recprd Steve Chan:@Jeff, I believe Trang's statistics are from the Program Implementation Review Report, but it's also captured in the notes. Rubens Kuhl:Kurt, from a pratical standpoint I think it would be better for EBERO both not accept renewals and do not expire domains. Kurt Pritz:@ Rubens The hoped for ending is that someone else picks up the EBERO operated registry. If domains are not renewed or expired, would that complxity deter a successor from standing up Kristina Rosette (Amazon Registry):@Steve and Julie: Joined late because earlier call ran long. Can you include me among those who ran into issues with the COI during the application process? Thanks. Cheryl Langdon-Orr (CLO):that needs teasing out then Jeff Julie Hedlund:@Kristina: I've added you. Alexander Schubert:i heard nothing for 10 minutes. are the phone and audio bridged? Michael Flemming:Yes Alex Michael Flemming:Alexandre* Kurt Pritz:It is a complicated area but I don't know of and haven't heard any evidence that indicates augmenting the critical functions list Cheryl Langdon-Orr (CLO):I am Alexander Schubert:seems dialing in is required to hear everybody? Cheryl Langdon-Orr (CLO):hearing via phone Alexander Alexander Schubert:but hearing works fine. i hear most people - just a few not. Rubens Kuhl:Option D. Alexander Schubert:one would think both systems are bridged? Trang Nguyen:@Michael, I do not know if an EBERO has ever been officially triggered. We could check if that's a request from this WT. Trang Nguyen:Yes, will do. Jeff Neuman:@Trang, do you need that in a letter? Rubens Kuhl:@Trang, from IANA root zone journals I follow I believe it was never triggered... but that would only reveal actual transition, not possilble events where EBERO has been called to duty but RO went back online before a transition happened. Cheryl Langdon-Orr (CLO):I would go with Jeff's formulation with the ask ICANN Trang Nguyen:I think I understand the ask. Will have to take this back internally and see what information we can provide. Kristina Rosette (Amazon Registry):To be clear, the intention is to ask "yes/no" and "If yes, on how many occasions?" without seeking identity of the RO, the issue, or which EBERO transitioned, correct? Michael Flemming:Yes Jeff Neuman:@Kristina - yes....but also to find out if the threshold was reached, but ICANN did not bring up an EBERO (And why or why not) Jeff Neuman:But no attribution to any registry or EBERO Kristina Rosette (Amazon Registry):@Jeff: thanks. Christa Taylor:Rubens, we can't hear you. Can you speak up? Kurt Pritz:If the COI is eliminated, this question on cost measurements does not matter much Rubens Kuhl:There seems to be a disconnection between bridge audio and AC audio... if you are in the same side you end up hearing who talked. Weird. Michael Flemming:But th cost analysis would be the same, regardless, no? Even if we do get rid of the COI, the cost would still come up somewhere. Rubens Kuhl:What I said is that EBERO has a readiness cost and an activation cost. Those costs that are COI-funded seems to only cover activation cost, not readiness cost. ICANN pays EBERO providers so they are ready even without incidents. Michael Flemming:There would still be a cost* Rubens Kuhl:Full disclosure: we have a contract clause in our back-end contracts to not take down TLDs that have not paid. their dues We can "snitch" them to ICANN, but won't take them down. Kurt Pritz:The slide says ICANN "will initiate an Energency Escalation" - it doesn't say "will transfer to an EBERO" - so if the slide reflects the contract then transfer is not mandatory Kristina Rosette (Amazon Registry):I've always understood that Emergency Escalation is completely different from transfer to EBERO. Kristina Rosette (Amazon Registry):Section 7 of Spec. 10 sets out exactly what an Emergency Escalation is and how it differs if initiated by ICANN vs. by Registrars Jim Prendergast:the contracted party is the front end. not the back end. Jeff Neuman:@Jim - yes. Which is why we may want to come up with a different model Jeff Neuman:It would be good to create a small team try and explore alternate models Rubens Kuhl:I think ICANN said that if a registry survived 5 years, it looks solid enough. Trang Nguyen:I was not with ICANN during the AGB development process, so don't really know how the 6 years were arrived at in Spec 8. Christa Taylor:A pooled insurance type of structure based on data could be an straight forward solution. As long as the data and the algoriithm are conservative it could be a viable option Christa Taylor:If the business completely failed and went bankrupt without any notice, one would think that the back-end provider could take it over with the renewal revenues to help offset the costs. Christa Taylor:There is no 'cash cow' fund Jeff Neuman:@Christa - There may be some legalities of the creation of an insurance fund. Christa Taylor:@Jeff perhaps the wrong term but trying to convey the idea Kurt Pritz:The reaction of the backend to not being paid could be governed by a backend certification program (!!) Heather Forrest:Apologies, all - I have to drop off now for the Council meeting. Kristina Rosette (Amazon Registry):Yes, Paul McGrady gave a rather "spirited" presentation of the many ways heading down any kind of "insurance model" could create problems for ICANN Trang Nguyen:@Christa, in your suggested model, would there be different buy-in amounts based on number of DUMS, or would all TLDs be expected to contribute evenly to the insurance fund? Christa Taylor:+1 Kurt it could be part of it Jeff Neuman:But there are other ways including the appointment of "permanent EBEROs" and figuring out an amount that would compensate them for the expected amount of failures per year. Then using Registration fees to cover those costs Kristina Rosette (Amazon Registry):Can be considered or should be considered? Christa Taylor:@Trang needs more thought - could be DUM or another combination of DUM and minimals Terri Agnew 2:Phil, we are unable to hear you, please check your mute button Rubens Kuhl:Business failures can have a high correlation with selling domains for pennies, so the outlook of future registration fees may not be as good... Phil Buckingham 2:sorry iwas on mute . Cheryl Langdon-Orr (CLO):had to drop phone for my next ICANN call Jeff Neuman:I believe that snce we now have a number of years under our belt, we could could use that data to seek proposals from EBEROs (past or futuree) to see if there is a fixed annual fee that they could be paid for the year to cover any eventuality (given that an EBEROs obligations are very limited) Cheryl Langdon-Orr (CLO):will stay in AC Rubens Kuhl:EBERO without COI could be a best of both worlds option. Rubens Kuhl:Also have to drop the audio bridge... see ya. Cheryl Langdon-Orr (CLO):agree Rubens Cheryl Langdon-Orr (CLO):but happy to explore new funding options Kurt Pritz:I agree with Rubens also. Here is a trial balloon on COI: Eliminate the COI. ICANN to fund the EBERO and temporarily maintain an abandon registry out of its regular revenue stream. This is because: (1) no registries have required EBERO intervention to date so projected incidents (and costs) should be low; (2) COI was problematic to implement on many levels (clarifying questions, different laws, etc); (3) the fees from 1000+ new registries, which is a number greater than expected, should cover costs, ICANN did not have this money when writing the Guidebook;(4) the cost of maintaining the existing registry functions is relatively low; (5) the most likely failure is a single registry business failure and the development of the backend registry marketplace would tend to guarantee that data is preserved in the event of a failure and any transition is straightforward. Phil Marano (Mayer Brown):Protections vis-a-vis .Brand TLDs and their licensees can be dealt with through other contractual means, and might not need not be mandatory for registry operators who are not in the business of selling domain names. Kurt Pritz:sorry for all that Christa Taylor:+1 Jeff Cheryl Langdon-Orr (CLO):bye guys need to leave Kurt Pritz:I don't think as policy makers, we need to get into detailed costs. We just need to say that the COI was problematic and now it can be funded separately for a number reasons. The topic of use of auction funds or left-over funds is a differnet discussion Jeff Neuman:@kurt said it better than me .... but same concept :) Robert Burlingame:Thank you everyone. Christa Taylor:Agreed Kurt. The costs would be very useful Christa Taylor:Good day all! Trang Nguyen:Thanks, all!

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Actions/Discussion Notes: Work Track 2 SubTeam Meeting 19 January
by Julie Hedlund Jan. 19, 2017

Jan. 19, 2017

Dear Sub Team Members, Please see below the action items and discussion notes captured by staff from the meeting on 19 January. 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 19 January 1. Registrant Protections -- Introduction [reading from slide 2] Question: How many applied or were an applicant and had a problem -- show of hands: 4 hands: Michael Flemming, Jeff Neuman, Rubens Khul, Heather Forrest, Kristina Rosette Principle D, Risk assessment and contingencies, application scoring [from slide 2] 2. Critical Registry Functions [reading from slides 3 and 4] Question: Are the current critical registry functions still sufficient or do changes need to be made? Yes/No/Other -- On overall registrant protections -- one was the notion of being able cover if a registry failed. Is there any protection other than those 5 functions where a backup registry need to take over, or are the 5 functions enough? -- There was the discussion on whether critical registry functions would need the additional functions of RCEP. -- It may be different for different types -- may need to have core critical functions regardless of how your TLD is characterized, and a "if this, then that" set. -- We do consider whether or not the COI is necessary for different categories. Really like the idea of overarching functions. -- Bring up the notion operation of a shared registration system -- in the chat if an EBERO is ever called up -- not responsible for adding new names. The problem with renewals some registries validate renewals as the validate new registration. -- Operation of certain systems that are critical. If there is a policy that affects renewals then EBERO won't be able to do it. >From the Chat: Jeff Neuman: Principle D is from the 2007 GNSO Policy Rubens Kuhl: While at NTAG, applicants concluded that ICANN COIs likely violated international guidelines against money laundering. I still think it is true. Trang Nguyen: @Rubens, I believe the issue was around the specific criteria in the AGB that states: The LOC ust name ICANN or its designee as the beneficiary." Many banks, U.S. and international viewed the "designee" as problematic because most if not all banks need to perform certain checks on the beneficiary, and they cannot do that for an un-named beneficiary. ICANN issued an advisory (https://newgtlds.icann.org/en/applicants/advisories/loc-beneficiary-require…) stating that it would be acceptable to name only ICANN as the beneficiary provided that the LOC is fully transferable. Trang Nguyen: Nonetheless, COIs were an issue for most applicants. Q50 received the most number of clarifying questions, by far. 82% of apps received a CQ on Q50. Kurt Pritz: My understanding is that If a Donuts rgistry went into EBERO, the registery would no longer be registering names, therefore the DPML would no longer be critical. Jeff Neuman: @Kurt - Is that an argument that the SRS is not a critical function? Rubens Kuhl: Jeff, the SRS is still required to update already registered domains. Jeff Neuman: @Rubens - correct.....that is the critical part, but not the rest of the SRS. Rubens Kuhl: But any policy layer is not critical. Rubens Kuhl: DPML, registrant verification and all other systems, processes and human resources that are in the policy layer are not critical. Kurt Pritz: @Jeff - no. It was an argument that we need not augment the existing core set with DPML. There might be renewals in an EBERO environment, does that require SRS? Jeff Neuman: I want to make sure we capture Trang's statistics for the record. Steve Chan: @Jeff, I believe Trang's statistics are from the Program Implementation Review Report, but it's also captured in the notes. Rubens Kuhl: Kurt, from a pratical standpoint I think it would be better for EBERO both not accept renewals and do not expire domains. Kurt Pritz: @ Rubens The hoped for ending is that someone else picks up the EBERO operated registry. If domains are not renewed or expired, would that complxity deter a successor from standing up Kristina Rosette (Amazon Registry): @Steve and Julie: Joined late because earlier call ran long. Can you include me among those who ran into issues with the COI during the application process? Thanks. Cheryl Langdon-Orr (CLO): that needs teasing out then Jeff. Kurt Pritz: It is a complicated area but I don't know of and haven't heard any evidence that indicates augmenting the critical functions list. 3. Emergency Thresholds [reading from slide 5] Question: Has any registry gone above the Emergency Threshold? Yes/No/Other/Ask ICANN for data Three questions: reached the threshold before, or has EBERO been used? If someone went above the threshold and EBERO wasn't used, then why? -- Need the data from ICANN but without attribution. Action Item: 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? >From the Chat: Rubens Kuhl: Option D. Alexander Schubert: one would think both systems are bridged? Trang Nguyen: @Michael, I do not know if an EBERO has ever been officially triggered. We could check if that's a request from this WT. Trang Nguyen: Yes, will do. Jeff Neuman: @Trang, do you need that in a letter? Rubens Kuhl: @Trang, from IANA root zone journals I follow I believe it was never triggered... but that would only reveal actual transition, not possilble events where EBERO has been called to duty but RO went back online before a transition happened. Cheryl Langdon-Orr (CLO): I would go with Jeff's formulation with the ask ICANN. Trang Nguyen: I think I understand the ask. Will have to take this back internally and see what information we can provide. Kristina Rosette (Amazon Registry): To be clear, the intention is to ask "yes/no" and "If yes, on how many occasions?" without seeking identity of the RO, the issue, or which EBERO transitioned, correct? Michael Flemming: Yes Jeff Neuman: @Kristina - yes....but also to find out if the threshold was reached, but ICANN did not bring up an EBERO (And why or why not). Jeff Neuman: But no attribution to any registry or EBERO. Kristina Rosette (Amazon Registry): @Jeff: thanks. 4. Cost Coverage [reading from slide 8] Question: Are these cost measurements still sufficient to cover the critical functions for EBERO? Yes/No/Other -- There is the activation part and the readiness part. You have two parts not just one. The COI looks at the activation costs. -- This came from an RFI for entities that were interested in being an EBERO and from those responses ICANN asked for cost estimates on what they were charge ICANN to serve in that capacity. There were at least 10 responses. ICANN synthesized the responses. -- What true amounts would be to bring up an EBERO and how much ICANN would need to fund an EBERO provider. Rather than doing one COI per each registry, find a way to fund it so that you know the costs would be covered. -- The contract already states that once the threshold is breached the emergency Escalation will take place. Is this amount correct for the contract? -- We are contractually bound to agree that ICANN has the right at its discretion to move this to an EBERO, but ICANN decide to or not. If a technical backend -- a registry that said my EPP was down and I'll have it up in 30 hours there is no way ICANN is going to call up an EBERO. We should be discussing this in terms of a technical failure by a business that may or may not be the registry. -- The contract language is up for interpretation: "Emergency Escalation" may not mean EBERO. -- If you took the limited amount in a COI by itself it may not cover the costs of an actual transition. But if you look at what EBERO is paid and combined with the eventual release of COI funds to the registry that may be enough to fund the cost. How can we make sure that in the case of a technical failure that registrants are protected by having a provider in place to operate the critical functions of a registry until a decision can be made. We should explore other mechanisms to fund the program other than via a COI process, which is difficult to maintain and ensure that ICANN can receive the funds. The problem may be with the backend operator and not the registry. -- The COI was as much of a headache for ICANN as for the operators. Should also consider AGB as it relates to COI. -- Seems like we should be looking at setting up a fund made up of application fees and fixed fees. >From the chat: Kurt Pritz: If the COI is eliminated, this question on cost measurements does not matter much. Michael Flemming: But the cost analysis would be the same, regardless, no? Even if we do get rid of the COI, the cost would still come up somewhere. Rubens Kuhl: What I said is that EBERO has a readiness cost and an activation cost. Those costs that are COI-funded seems to only cover activation cost, not readiness cost. ICANN pays EBERO providers so they are ready even without incidents. Michael Flemming: There would still be a cost* Rubens Kuhl: Full disclosure: we have a contract clause in our back-end contracts to not take down TLDs that have not paid. their dues We can "snitch" them to ICANN, but won't take them down. Kurt Pritz: The slide says ICANN "will initiate an Energency Escalation" - it doesn't say "will transfer to an EBERO" - so if the slide reflects the contract then transfer is not mandatory. Kristina Rosette (Amazon Registry): I've always understood that Emergency Escalation is completely different from transfer to EBERO. Kristina Rosette (Amazon Registry): Section 7 of Spec. 10 sets out exactly what an Emergency Escalation is and how it differs if initiated by ICANN vs. by Registrars. Jim Prendergast: the contracted party is the front end. not the back end. Jeff Neuman: @Jim - yes. Which is why we may want to come up with a different model Jeff Neuman: It would be good to create a small team try and explore alternate models Rubens Kuhl: I think ICANN said that if a registry survived 5 years, it looks solid enough. Trang Nguyen: I was not with ICANN during the AGB development process, so don't really know how the 6 years were arrived at in Spec 8. Christa Taylor: A pooled insurance type of structure based on data could be an straight forward solution. As long as the data and the algoriithm are conservative it could be a viable option. Christa Taylor: If the business completely failed and went bankrupt without any notice, one would think that the back-end provider could take it over with the renewal revenues to help offset the costs. Christa Taylor: There is no 'cash cow' fund Jeff Neuman: @Christa - There may be some legalities of the creation of an insurance fund. Christa Taylor: @Jeff perhaps the wrong term but trying to convey the idea 5. Continued Operations Instrument -- Letter of Credit [reading from slide 12] Questions: 1. Are the requirements for the Letter of Credit still sufficient? Yes/No/Other 2. Can othe rmodels besides the Letter of Credit and the Cash Escrow Deposit be considered for the COI requirements? Yes/No/Other >From the chat: Kurt Pritz: The reaction of the backend to not being paid could be governed by a backend certification program (!!) Heather Forrest: Apologies, all - I have to drop off now for the Council meeting. Kristina Rosette (Amazon Registry): Yes, Paul McGrady gave a rather "spirited" presentation of the many ways heading down any kind of "insurance model" could create problems for ICANN Trang Nguyen: @Christa, in your suggested model, would there be different buy-in amounts based on number of DUMS, or would all TLDs be expected to contribute evenly to the insurance fund? Christa Taylor: +1 Kurt it could be part of it Jeff Neuman: But there are other ways including the appointment of "permanent EBEROs" and figuring out an amount that would compensate them for the expected amount of failures per year. Then using Registration fees to cover those costs Kristina Rosette (Amazon Registry): Can be considered or should be considered? Christa Taylor: @Trang needs more thought - could be DUM or another combination of DUM and minimals.' Rubens Kuhl: Business failures can have a high correlation with selling domains for pennies, so the outlook of future registration fees may not be as good... Jeff Neuman: I believe that snce we now have a number of years under our belt, we could could use that data to seek proposals from EBEROs (past or futuree) to see if there is a fixed annual fee that they could be paid for the year to cover any eventuality (given that an EBEROs obligations are very limited) 6. Considering When Registrant Protections don't apply [reading from slide 15] Question: Should more relevant rules be established for certain specific cases or categories of TLDs? -- There are some where registrants are brand licensees -- there are possibly some shades of gray where some need protection or not. -- If you went to existing EBERO or other providers that could provide those services ask what it would take to compensate you for an entire year with no questions asked you would get an amount that was high. >From the chat: Rubens Kuhl: EBERO without COI could be a best of both worlds option. Cheryl Langdon-Orr (CLO): agree Rubens Cheryl Langdon-Orr (CLO): but happy to explore new funding options Kurt Pritz: I agree with Rubens also. Here is a trial balloon on COI: Eliminate the COI. ICANN to fund the EBERO and temporarily maintain an abandon registry out of its regular revenue stream. This is because: (1) no registries have required EBERO intervention to date so projected incidents (and costs) should be low; (2) COI was problematic to implement on many levels (clarifying questions, different laws, etc); (3) the fees from 1000+ new registries, which is a number greater than expected, should cover costs, ICANN did not have this money when writing the Guidebook;(4) the cost of maintaining the existing registry functions is relatively low; (5) the most likely failure is a single registry business failure and the development of the backend registry marketplace would tend to guarantee that data is preserved in the event of a failure and any transition is straightforward. Phil Marano (Mayer Brown): Protections vis-a-vis .Brand TLDs and their licensees can be dealt with through other contractual means, and might not need not be mandatory for registry operators who are not in the business of selling domain names. Kurt Pritz: sorry for all that.

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Re: [Gnso-newgtld-wg-wt2] WT2 - Jan 19th, Thursday Meeting at 20:00 UTC Topic EBERO ( Emergency Back End Operator ) , COI ( Continuing Operations Instrument ) and LOC ( Letter of Credit) Data Escrow ( if time).
by Phil Buckingham Jan. 19, 2017

Jan. 19, 2017

Hi Everyone, Michael, thanks for circulating the agenda. If you could look at the agenda before the call that would be much appreciated, although I do appreciate time is of the essence in preparation for Namescon. We have put a question(s) at the end of each topic . Perhaps you would consider these questions ( and your answer ) beforehand , in preparation, so we could do a hands up / consensus vote on each .during the call. I would be particularly interested to establish if anybody, who encountered problems with Q50/ COI ./LOCs would be prepared to discuss on these on the call ( for their own application(s) and clients ) and what they feel would be an acceptable solution(s) to implement for R2. If you could let me know beforehand …… Many thanks. Kind Regards, Phil Phil Buckingham From: gnso-newgtld-wg-wt2-bounces(a)icann.org [mailto:gnso-newgtld-wg-wt2-bounces@icann.org] On Behalf Of Michael Flemming Sent: Thursday, January 19, 2017 2:10 AM To: gnso-newgtld-wg-wt2(a)icann.org Subject: Re: [Gnso-newgtld-wg-wt2] WT2 - Jan 19th, Thursday Meeting at 20:00 UTC Dear All, Once again I am circulating the agenda in time for tomorrow's meeting on 19 January, 2017 at 20:00 UTC. My apologies as I was unable to get the slides out earlier. In the attachment is the material we will be covering and the slides we will be using. Phil and I look forward to meeting with everyone tomorrow. Kind regards, Michael Flemming On Fri, Jan 13, 2017 at 9:04 AM, Michael Flemming <flemming(a)brightsconsulting.com> wrote: Dear All, Please note the agenda for the meeting 19 January 2017, Thursday at 20 UTC. 1. Welcome 2. Updated SOI 3. Registrant Protections 4. AOB We didn't get to the Registrant Protections before the end of the meeting yesterday. Therefore, it was felt very strongly that we should have a follow up meeting next week to cover Registrant Protections. The good news is that our slides are already prepared. After I make a few edits I will circulate them today. All background material should be included. On the other hand I hope to begin discussing CC2 questions over email. I look forward to the meeting next week and hope everyone will be ready for constructive discussion. Kind regards, Michael Flemming -- Sent from my mobile.

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WT2 - Jan 19th, Thursday Meeting at 20:00 UTC
by Michael Flemming Jan. 19, 2017

Jan. 19, 2017

Dear All, Please note the agenda for the meeting 19 January 2017, Thursday at 20 UTC. 1. Welcome 2. Updated SOI 3. Registrant Protections 4. AOB We didn't get to the Registrant Protections before the end of the meeting yesterday. Therefore, it was felt very strongly that we should have a follow up meeting next week to cover Registrant Protections. The good news is that our slides are already prepared. After I make a few edits I will circulate them today. All background material should be included. On the other hand I hope to begin discussing CC2 questions over email. I look forward to the meeting next week and hope everyone will be ready for constructive discussion. Kind regards, Michael Flemming -- Sent from my mobile.

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recording, Attendance & AC Chat for New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues 12 January 2017
by Terri Agnew Jan. 12, 2017

Jan. 12, 2017

Dear All, Please find the attendance and recording of the call attached to this email and the AC Chat below for the New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues held on Thursday, 12 January 2017 at 20:00 UTC. 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 Wiki page: https://community.icann.org/x/FwSbAw Thank you. Kind regards, Terri ------------------------------- Adobe Connect chat transcript for 12 January 2017 Terri Agnew:Welcome to the New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues call on Thursday, 12 January 2017 at 20:00 UTC. Terri Agnew:agneda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… Jim Prendergast:15 - the magic number Jeff Neuman:phil can you hit mute until you speak :) Terri Agnew:Please remember to mute when not speaking Terri Agnew:everyone can scroll themselves Jeff Neuman:It should be noted that there were MANY discussions between the GAC and the Board on Geographic and geopolitical names between the 2009 recommendation and what was eventually put into the Guidebook. But NO policy development process was ever commenced to discuss those protections during that time period Susan Payne - Valideus 2:we are dealing at 2nd level here though aren't we, or am I mistaken? whereas CWG-CTN is top level Michael Flemming:Second level Cheryl Langdon-Orr (CLO):yes understand it is 2nd level Cheryl Langdon-Orr (CLO):but the concerns I have heard raised reflect in Top andb2nd... Rubens Kuhl:Note that there are dissenting views regarding use of RSEP to release reserved names. ICANN is currently adopting such view, but some think it should be a different process, even in current policy guidance. Michael Flemming:I made a note on that Rubens, but you sum it up so sweetly. Cheryl Langdon-Orr (CLO):note in my time in suDA Board I fought to and succeeded to release Lower level names so I am not 'anti' Susan Payne - Valideus 2:OK, thanks Cheryl, understood. But in terms of what has been discussed in the CWG, we have only been talking about 2nd level Cheryl Langdon-Orr (CLO):understand that Susan Alan Greenberg:Sorry to be late. Cheryl Langdon-Orr (CLO):even in our Work in the most recent CWG whose name itself is specified separation of the levels N in community understanding and and concerns has always been a 'challenge' Cheryl Langdon-Orr (CLO):agree Jeff Rubens Kuhl:.com and .net are pretty old namespaces... new namespaces might require introductory measures, like sunrise. Legacy gTLDs are benchmarks, but a grain of salt in comparing is required. Kristina Rosette (Amazon Registry):Support creation of drafting team (which may not be smaller given interest), but agree on creating subteam avri doria:i still have not graduated beyond what was in the original GNSO policy of 2007. and that is a lost casue (personal opinion) Rubens Kuhl:One issue in allowing Brand TLDs is what happens if the TLD is repurposed to not be a Brand TLD, which is a registry operator option at anytime without consulting, just informing, ICANN. avri doria:i find having difrent such rules for different categories very problematic (again personal view) Mary Wong:For clarity (including for WT members not on the call), what is the specific focus and brief for the Drafting Team, and what will be its anticipated timeline to deliver its proposal? Susan Payne - Valideus 2:support drafting team too. I think it wouldmbe helpful for those who join to familiarise themselves with how we got from the policy to the AGB as not all of us are probably familiar with the full history Kristina Rosette (Amazon Registry):We should make clear that GAC representatives are welcome to participate.. Cheryl Langdon-Orr (CLO):one of many similar concerns Rubens... yes avri doria:Susan, that was easy, without going back to the GNSO the BoardStaff decided. Cheryl Langdon-Orr (CLO):indeed Kristina avri doria:I think they know they are welcome, but alwasy good to mention it again Jeff Neuman:Lets confirm the 2009 policy on this Kristina Rosette (Amazon Registry):Support confirming 2009 policy on gTLD Reserved Names (2nd & 3rd levels ASCII and IDN) Susan Payne - Valideus 2:sorry, audio issues Rubens Kuhl:Looking at collision lists, some popular legacy TLDs (both gTLDs and ccTLDs) deserve a bit of care. While I also support confirming the 2009 policy, this is a factor that new gTLD operators should assess and hopefully make informed decisions. Rubens Kuhl:I don't see possibility of human confusion, but some name collisions can occur. Rubens Kuhl:Due to suffix appending. Cheryl Langdon-Orr (CLO):and name collision needs to be avoided Cheryl Langdon-Orr (CLO):SAC90 Phil Buckingham 2:steve , emily - before i start , can one of you do the scrolling of the powerpoint . much appreciated. Christa Taylor:+1 Susan on the ship has sailed Steve Chan:@Phil, sure thing. Phil Buckingham 2:thanks Susan Payne - Valideus 2:yes, agree Phil Buckingham 2:+1 Alan - impossible Christa Taylor:Agree with Alan Michael Flemming:Can you hear me? Christa Taylor:no Julie Hedlund:Can't hear you Michael. avri doria:i go as far as to call it unreasonable (again personal view) avri doria:there are only 7 in the US? Christa Taylor:+1 Avri Rubens Kuhl:Jeff, just type s*** etc. ;-) avri doria:ah the s-word, the f-word ... modern Merican speak Jeff Neuman:s***, f***, p***. m************, c***, t****, and one other that escapes me for now Jeff Neuman::) avri doria:https://urldefense.proofpoint.com/v2/url?u=https-3A__en.wikipedia.org… Susan Payne - Valideus 2:p***?? Jeff Neuman:oh yes c********** Steve Chan:FYI, the language Michael is reading is from the base registry agreement. Mary Wong:There is ongoing implementation of Board-adopted GNSO PDP recommendations regarding a few names for the Red Cross movement and names of IGOs. Jeff Neuman:I agree on this category and the IGOs Mary Wong:Per Alan, other Red Cross names are still under discussion. Cheryl Langdon-Orr (CLO):agree Susan Rubens Kuhl:One organisation that I don't believe deserves any special treatment is IOC. Rubens Kuhl:"I don't want to be buried in a Pet Cemetery,I don't want to live my life again." Mary Wong:@Michael, to add - what I said (i.e. long list currently now reserved under Spec 5) also applies to IGOs. The only reserved protections approved so far for IGOs are their names. Their acronyms are now on the list only on an interim basis. Cheryl Langdon-Orr (CLO):good point Jeff Rubens Kuhl:Which would allow the International Sugar Organization to get ISO.<something> instead of the International Standards Organization... Cheryl Langdon-Orr (CLO):agree again Susan Mary Wong:All, note that in the current implementation for Red Cross, IOC and IGOs - there will be an Exception procedure for the protected organization. Jeff Neuman:@alan - you would not believe the pushback we get from GDD to release names where express consent via letters on letterhead are provided Cheryl Langdon-Orr (CLO):thx Mary Phil Buckingham 2:it seems unlikely we will start Reg Protections tonite / today . How many would be up for a call next Thursday 19 same time . Call s in namescon week are canx Alan Greenberg:@Rubens, there is nothing on the table that would prohibit thee Standards Organization from registering ISO, All that is being propossed is that the character strings go into the trademark clearinghose so that a flag would be raised when the name is registerd. Susan Payne - Valideus 2:fine by me phil Terri Agnew:At this time the next call is scheduled for: New gTLD Subsequent Procedures Sub Team – Track 2 – Legal/Regulatory Issues will take place on Thursday, 02 February 2017 at 20:00 UTC. Phil Buckingham 2:thanks terry Phil Buckingham 2:terri Emily Barabas 2:The leadership sync is on Wed. The slot at 20:00 UTC on Thursday is free. Alan Greenberg:All options ar eok with me. Jeff Neuman:ouch Michael Flemming:That is actual joy Cheryl Langdon-Orr (CLO):my calender needs updating then Steve Chan:2000UTC on 19 February does precede the GNSO Council meeting however. Jeff Neuman:Thanks all! Christa Taylor:Thank-you Susan Payne - Valideus 2:thanks all Phil Buckingham 2:well done Michael

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Actions/Discussion Notes: Work Track 2 SubTeam Meeting 12 January
by Julie Hedlund Jan. 12, 2017

Jan. 12, 2017

Dear Sub Team Members, Please see below the action items and discussion notes captured by staff from the meeting on 12 January. 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. In addition, the discussion follows the Google doc at: https://docs.google.com/spreadsheets/d/1WgsYlUpKI_QGuIOlOxtu4uBBj8ZWgD0bTw8…. Best regards, Julie Julie Hedlund, Policy Director Action Items/Discussion Notes 12 January Remaining Reserved Names and the Second Level [See slide 2] Geographic and geopolitical -- AGB did create reservations and currently the only authorization process that has been established is through the use of RCEP (Registry Service Evaluation Process). Probably not the most applicable process. -- GAC has taken the initiative of publishing a list of country and territory names -- around 16 or so names. -- Need to discuss whether we would suggest changes to policy. -- The ABG lists the reservations but the policy itself does not. Should we change policy to be consistent with the AGB? -- Any change to policy should be in line with the AGB and its lists of reservations. Also not the current GAC listing of names with country approval. Ensure that the list can be added to in a very easy way. Could recommend a PDP just on this aspect, but concern that this could become a significant roadblock. -- We are talking about the second level, not the top level. -- At a minimum we should agree whether we will stand by the 2009 policy recommendations or note that there is a gap between what happened with the AGB. Questions: 1) Need to confirm our agreement with the policy on geopolitical names (not geographic) -- the controversial names, and our understanding that going forward we will only deal with country and territory names and not say that any should be reserved. 2) If country and territory names are protected are we starting from the list in the AGB, which wasn't policy. If we stick to the list other negotiations between the governments and ICANN wouldn't apply. 3) Express whether the 2009 policy needs to be adjusted and make recommendations to the full PDP WG on what we should do with country and territory names. -- Suggestion: No need for restrictions for any TLD, but especially for BRAND TLDs -- harmonization with .com and .net. If we could make a clarification on that it would be beneficial. -- Probably a good issue for a smaller drafting team to consider. Need to handle it very carefully. -- Need to have participation from GAC on the Drafting Team. Can invite the GAC members on the list. Action Item: Send a call for volunteers for a Drafting Team on this topic. We can only issue a call to Sub Team members, but ensure that it is clear that GAC/ccNSO members on the Sub Team are encourage to join. >From the chat: Jeff Neuman: It should be noted that there were MANY discussions between the GAC and the Board on Geographic and geopolitical names between the 2009 recommendation and what was eventually put into the Guidebook. But NO policy development process was ever commenced to discuss those protections during that time period. Susan Payne - Valideus 2: we are dealing at 2nd level here though aren't we, or am I mistaken? whereas CWG-CTN is top level Michael Flemming: Second level Cheryl Langdon-Orr (CLO): yes understand it is 2nd level Cheryl Langdon-Orr (CLO): but the concerns I have heard raised reflect in Top andb2nd... Rubens Kuhl: Note that there are dissenting views regarding use of RSEP to release reserved names. ICANN is currently adopting such view, but some think it should be a different process, even in current policy guidance. Michael Flemming: I made a note on that Rubens, but you sum it up so sweetly. Cheryl Langdon-Orr (CLO): note in my time in suDA Board I fought to and succeeded to release Lower level names so I am not 'anti' Susan Payne - Valideus 2: OK, thanks Cheryl, understood. But in terms of what has been discussed in the CWG, we have only been talking about 2nd level Cheryl Langdon-Orr (CLO): understand that Susan. Even in our Work in the most recent CWG whose name itself is specified separation of the levels N in community understanding and and concerns has always been a 'challenge'. Cheryl Langdon-Orr (CLO): agree Jeff Rubens Kuhl: .com and .net are pretty old namespaces... new namespaces might require introductory measures, like sunrise. Legacy gTLDs are benchmarks, but a grain of salt in comparing is required. Kristina Rosette (Amazon Registry): Support creation of drafting team (which may not be smaller given interest), but agree on creating subteam Rubens Kuhl: One issue in allowing Brand TLDs is what happens if the TLD is repurposed to not be a Brand TLD, which is a registry operator option at anytime without consulting, just informing, ICANN. avri doria: i find having difrent such rules for different categories very problematic (again personal view) Mary Wong: For clarity (including for WT members not on the call), what is the specific focus and brief for the Drafting Team, and what will be its anticipated timeline to deliver its proposal? Susan Payne - Valideus 2: support drafting team too. I think it wouldmbe helpful for those who join to familiarise themselves with how we got from the policy to the AGB as not all of us are probably familiar with the full history. Kristina Rosette (Amazon Registry): We should make clear that GAC representatives are welcome to participate.. gTLD Reserved Names: -- Change policy or leave it as is? [reading policy from the chart] -- In 2001 when .biz, .info, etc. were signed we (Neustar others) were required to reserve .com.info, .biz.travel, etc. because of confusion, but agreed that there would be no confusion in the future so no reservations. -- Yes, we want to confirm the 2009 policy that says there should be no reservations. -- It's impossible to reserve because of the expanding list of TLDs. >From the chat: Rubens Kuhl: Looking at collision lists, some popular legacy TLDs (both gTLDs and ccTLDs) deserve a bit of care. While I also support confirming the 2009 policy, this is a factor that new gTLD operators should assess and hopefully make informed decisions. I don't see possibility of human confusion, but some name collisions can occur. Due to suffix appending. Cheryl Langdon-Orr (CLO): and name collision needs to be avoided Controversial Names: -- Current policy is that there should not be a category of Controversial Names that are reserved at 2nd and 3rd levels ASCII and IDN. -- There is no dispute policy mandated (and their isn't one). If we do want to confirm the 2009 policy we edit it and either remove the part about the dispute policy or stay that registries can determine the eligibility of their registrants in their own TLDs. -- Original thinking was that there could be a global dispute policy, but since the category was never created the dispute policy wasn't created. But a registry can make a rule to restrict controversial names in their registry. Registries already have that right. IOC and RCRC, and IGOs: -- No reservations originally, but later occurred and is included in the base registry agreement. -- Current active discussion between the Board and GAC on the reservation of country names (used within each country). -- Perhaps we shouldn't be looking at this while there are open discussions -- but could look at it if it hasn't been resolved elsewhere. -- For adopted policy it is just a few names. That list could change in the near future. There are other names that are on hold on a interim basis. -- Suggestion: Leave it be; don't revisit it. -- If reservations are in place we should state that there should be a mechanism for the release of those names to that specific organization. -- There is no mechanism for release of those names when the organization is consenting to their release. -- Allowing release to the right people is logical, but at the time they came out those people didn't care. >From the chat: Mary Wong: There is ongoing implementation of Board-adopted GNSO PDP recommendations regarding a few names for the Red Cross movement and names of IGOs. Jeff Neuman: I agree on this category and the IGOs. Mary Wong: Per Alan, other Red Cross names are still under discussion. Mary Wong: @Michael, to add - what I said (i.e. long list currently now reserved under Spec 5) also applies to IGOs. The only reserved protections approved so far for IGOs are their names. Their acronyms are now on the list only on an interim basis. Mary Wong: All, note that in the current implementation for Red Cross, IOC and IGOs - there will be an Exception procedure for the protected organization.

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