June 2017 - Gnso-newgtld-wg-wt3

Recording, AC Chat & Attendance from New gTLD Subsequent Procedures Sub Team Track 3 String Contention, Objections & Disputes on Tuesday, 20 June 2017 at 15:00 UTC
by Julie Bisland June 20, 2017

June 20, 2017

Dear All, Please find the attendance and audio recording of the call attached to this email and the Adobe Connect recording (visual and audio) and AC Chat below for the New gTLD Subsequent Procedures Sub Team – Track 3 – String Contention, Objections & Disputes held on Tuesday, 20 June 2017 at 15:00 UTC. Adobe Connect recording: https://participate.icann.org/p1wrmqg8r6h/<https://participate.icann.org/p1wrmqg8r6h/?OWASP_CSRFTOKEN=502b53d437b9cfc2…> 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-wt3 Agenda Wiki page: https://community.icann.org/x/FxLfAw Thank you. Kind regards, Julie ------------------------------- Adobe Connect chat transcript for 20 June 2017 Julie Bisland:Welcome to the New gTLD Subsequent Procedures Sub Team – Track 3 – String Contention, Objections & Disputes on Tuesday, 20 June 2017 at 15:00 UTC Julie Bisland:Agenda Wiki Page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… David McAuley (IRP IOT):I am no. 4154 Julie Bisland:thank you, David Jeff Neuman:New IRP is a "Substantive review of whether they violate the bylaws." But that is different than a substantive review of whether the Guidebook was breached, correct? Jeff Neuman:In other words, would a breach of something in the Guidebook be a violation of the bylaws? Jeff Neuman:This is what we need to consider.... Jim Prendergast:or an action by a contractor to ICANN - IRPs have discovered some actions there that didnt seem right - especially in the CPE space. Jeff Neuman:@Jim, but it is a strectch to argue that all breaches of the guidebook are violations of the bylaws....which is why many have argued that an appeals process is required Jim Prendergast:correct Jim Prendergast:which leads to the question of - are the 4 on the first slide enough? Anne Aikman-Scalese (IPC):@Jeff - It seems that a breach of ByLaws or Mission is not the same as a decision which 'breaches" the Guidebook. Directors are held to standard of Mission and ByLaws and can review decisions of panel. I am not seeing basis for "breach" of Guidebook per se unless the action or inaction breaches mission or bylaws. Anne Aikman-Scalese (IPC):I doubt we can change the scope of the revised IRP at this point in time. It's a function of the consensus and Chartering Org approval accomplished in WS1. John Laprise:I like the IRP structure Jeff Neuman:@Anne - correct ; which is again why many believe an appeals process is necessary for substantive decisions, or actions or inactions of icann staff or its contractors in violation of the guidebook Anne Aikman-Scalese (IPC):@Jeff - Does Request for Reconsideration apply in the circumstances you describe and is there an appeal from that? Jeff Neuman:Requests for Reconsideration is not a substantive review of whether provisions of the Guidebook were breached. Anne Aikman-Scalese (IPC):What is the standard of review in Request for Reconsideration? Paul McGrady 2:@Avir ot Jeff - I see the 2 geo sessions on the JoBurg calendar, but I didn't see the F2f Plenary for SubPro. Can you let me know when that is? Sorry. Karen Day:@Paul - it's Tues am 8:30 local time Emily Barabas 2:https://urldefense.proofpoint.com/v2/url?u=https-3A__schedule.icann.org_e… Anne Aikman-Scalese (IPC):@Paul - goes to noon I think on Tuesday Paul McGrady 2:Thanks Karen Thanks Emily! & Anne! Jeff Neuman:Standard of Review for Reconsideration: (c) A Requestor may submit a request for reconsideration or review of an ICANN action or inaction ("Reconsideration Request") to the extent that the Requestor has been adversely affected by:(i) One or more Board or Staff actions or inactions that contradict ICANN's Mission, Commitments, Core Values and/or established ICANN policy(ies);(ii) One or more actions or inactions of the Board or Staff that have been taken or refused to be taken without consideration of material information, except where the Requestor could have submitted, but did not submit, the information for the Board's or Staff's consideration at the time of action or refusal to act; or(iii) One or more actions or inactions of the Board or Staff that are taken as a result of the Board's or staff's reliance on false or inaccurate relevant information. Jeff Neuman:Again, does not necessarily cover violations of the Guidebook. And of course an applicant cannot go to court because of ICANN's disclaimers of all liability Alan Greenberg:Sorry, that screach was me switching to a new phone. Susan Payne:does the cost sanction work the other way - if ICANN does not meaningfully engage in CEP? Jeff Neuman:So, there is still NO mechanism to handle cases where the ICANN staff, contractor, or board just got a decision wrong substantively. Jeff Neuman:unless it is of such a degree to violate the mission, core values or bylaws Anne Aikman-Scalese (IPC):@Jeff - Issue of "breach" of Guidebook provision is very touchy. In the past, the Board has received policy advice - both from the GNSO and from the GAC, that arguably varied from the Guidebook provisions. When you consider that the Board is already bound to one degree or another in relation to voting majorities that apply to GNSO advice (2/3 to overcome) and GAC Advice (60% to overcome) and by IRP on Mission and ByLaws violations, I think you are putting the Board in a very difficult position where they won't be able to make decisions on issues that arise after the Guidebook is finalized if you say there can be IRP on Guidebook breaches. Paul McGrady 2:Sorry all, have to step away early. See many of you in JoBrug Karen Day:Thanks, Paul. Safe travels Susan Payne:I don'tthink that is what we would be seeking to do Anne. Susan Payne:I think the idea is more whether we consider that we should implement appeals to decisions based on the guidebook David McAuley (IRP IOT):I will hang on till end of call Anne Aikman-Scalese (IPC):Thanks Jeff. Agree IRP does not cover breach of guidebook so worth looking at in Sub Pro. Anne Aikman-Scalese (IPC): PICDRP was originally drafted as a complaint to be filed outside of ICANN and adjudicated by a neutral not selected by ICANN staff. Too bad that was not the structure was adopted because these problems would not have arisen in that procedural context. Jeff Neuman:[Co-Chair Hat off][Former Registry Hat on}: When we started this PIC Process the registries asked that it only be ICANN that enforces / does not enforce the PICs. ICANN did not want to exclusively take on that role since it did not feel like it had the knowledge or expertise to do so. It also did not want to take on the liability of making the decisions. Registries did not want to be left without an appeals process if the decision was made exclusively by an outside provider (especially if the panel made an overly harsh decision), so thus the compromise was that the Panel makes a recommendation, but ICANN determines the remedy such that a registry can challenge under the contractual provisions in their agreement. This is why it is so complex. Anne Aikman-Scalese (IPC):"Registires did not want to be left wihout an appeals process if the decision was made exclusively by an outside provider" - i.e. registries knew that they would be protected to some degree by ICANN itself due to relationship. This goes to the core of definition of "public interest" and who should be deciding what is in the public interest - the old "GPI" debate. Susan Payne:thaks Kiran Anne Aikman-Scalese (IPC):QUESTION: Should a PICDRP decision be appealable to IRP now that scope of IRP includes review of panel decisions? QUESTION Anne Aikman-Scalese (IPC):I think Alan also means that ICANN Compliance is supposed to be monitoring compliance with PICs - e.g. Are eligibility provisions be applied in Safeguarded strings? Anne Aikman-Scalese (IPC):Sorry must drop off for another call. Thank you. Alan Greenberg:A complaint to Compliance would not result in your being compensated, but it in theory should address any violation. Kiran Malancharuvil:Hi Alan, thanks. We aren't seeking compensation, just addressing the vilation David McAuley (IRP IOT):I will drop off now, many thanks Kiran Malancharuvil:violation Cheryl Langdon-Orr (CLO):thanks for this and obviously lots more to discuss.... Alan Greenberg:Sorry, not a targetted you but a gneral one! Steve Chan:FYI, WT2 submitted questions to contractual compliance on complaints related to PICs. We will make sure that the responses are made available to both WTs 2 and 3. Cheryl Langdon-Orr (CLO):bye for now everyone.... safe travels to those who are attending JNB avri doria:bye, thanks Kiran Malancharuvil:Thanks Karen, great call

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Actions/Discussion Notes: Work Track 3 Sub Team Meeting 20 June
by Julie Hedlund June 20, 2017

June 20, 2017

Dear Work Track members, Please find below the action items and discussion notes from the call on 20 June. These high-level notes are designed to help Work Track members navigate through the content of the call and are not a substitute for the chat transcript or the recording. The meeting recording and chat transcript are available at: https://community.icann.org/x/DBLfAw[community.icann.org]. Slides from the call are attached for reference and excerpts from the chat room are included below. Kind regards, Emily -------------------------------------------------------------------------- Action Items and Discussion Notes: 20 June 2017 1. Status Update from Plenary Chair -- In the last meeting we focused on the last of the three drafting teams on the community comment issues -- rounds/first come, first serve. -- Next meeting -- CC1 topic and then each Work Track will take one of their issues to get input from the community. -- Working on the cross-community meeting: GeoNames at the top level for two sessions. Put out a strawperson of the proposals and trying to develop a single story. We wanted to show that we could fabricate a possible solution. Encourage everyone to read the strawperson and the chart comparing the various proposals. 2. New gTLD Accountability Mechanisms -- Slide 3 Charter: Examine whether dispute resolution and challenge processes are adequate redress options or if additional redress options specific to the program are needed. -- Independent Review Process (IRP) -- Public Internet Dispute Resolution Procedure (PICDRP) -- Registry Restrictions Dispute Resolution Procedure (RRDRP) -- Trademark Post Delegation Dispute Resolution Procedure (TM-PDDRP) -- best dealt with in the RPM PDP, not in this PDP A. Independent Review Process (IRP) David McAuley, Lead, IRP Implementation Oversight Team, Verisign Policy Team Slide 5 -- IRP -- Bylaw Section 4.3 -- Came into effect 01 October 2016 Slide 6 -- IRP (Purpose) -- See Section 4.3 (a) of the Bylaws -- Ensure (a) against exceeding mission; (b) compliance with Articles/Bylaws -- Empower community/claimants to enforce compliance -- Ensures accountability -- Address claims ICANN failed to enforce IANA Naming Functions contract -- Provide vehicle for direct IANA customers to seek resolution of PTI service complaints -- Reduce disputes by creating precedent in connection with policy development and implementation... Slide 7 -- IRP (Purpose) Cont. -- Accessible, transparent, efficient, consistent, and just resolution of disputes -- Leads to binding, final resolutions -- Provide vehicle for resolving disputes/alternative to civil litigation Slide 8 -- IRP (Main Pillars) -- New Standard of Review -- substantive review of whether ICANNs actions or inaction are a failure to enforce the Bylaws -- Standing Panel -- Updated 'Supplementary' Rules of Procedure Side 9 -- IRP (Main Pillars) Cont. -- New standard of review (scope) of IRP -- Address claims that ICANN (Board, individual directors, officers, or staff) acted/failed to act in a manner that violated the Bylaws -- Exceeded scope of mission -- Resulted from response to advice or input from AC/SO -- Resulted from decisions of process-specific expert panels that are claimed to be inconsistent with Articles or Bylaws Slide 10 -- IRP (Main Pillars) Cont. -- Resulted from a response to a DIDP request -- Arose from claims involving rights of the EC -- Claims of non-enforcement of ICANN’s contractual rights with respect to the IANA Naming Function Contract -- Claims regarding PTI service complaints by direct customers of the IANA naming functions that are not resolved through mediation Slide 11 -- IRP (Main Pillars) Cont. Excluded from Scope of IRP: -- EC challenges to the result(s) of a PDP, unless the SO(s) that approved the PDP supports the EC challenge -- Claims relating to ccTLD delegations and re-delegations; -- Claims relating to Internet numbering resources, and -- Claims relating to protocol parameters. Slide 12 -- IRP (Main Pillars) Cont.: Nature of Review "objective, de novo" -- Section 4.3(i) Slide 13 -- IRP (Main Pillars) Cont. Standing Panel: -- At least 7 members -- Secretariat/admin support -- ICANN issuing Expressions of Interest -- Seeking/vetting applications -- Panel nominations by SOs/ACs and confirmation by the Board Slide 14 -- IRP (Main Pillars) Cont. -- 5-year term -- Panelists must be independent -- Individual cases to be heard by 3-member panel. -- Appeals to full standing panel possible (Section 4.3(w)); -- Resolution within six months is target (Section 4.3(s)); -- Enforcement in court envisioned if needed (Section 4.3(x)). Slide 15 -- IRP (Mail Pillar) Cont. Rules of Procedure: -- First draft of updated rules -- Review of public comments underway; making progress. -- Time within claim must be filed -- Retroactivity of 1) standard 2) rules -- Joinder of interested parties -- Challenges to consensus policies Slide 16 -- Miscellaneous -- Cooperative Engagement Process -- Conciliation efforts to narrow issues under review -- IRP IOT status -- Access consideration Questions/Discussion: -- Don't think the changes go far enough. The substantive review is whether an action or inaction caused a breach of the Bylaws, but there is nothing that would act of an appeals mechanism for a breach to the AGB unless it also breached the Bylaws. -- Not every violation of the AGB would be construed as a violation of the Bylaws -- Doesn't cover appeals where staff or contractors got the decision wrong. -- If someone doesn't like the decision of the string similarity panel, for example, there is nothing anyone can do to get that decision reviewed. -- Not dissimilar from PTI service complaints. Panel may have to wrestle with this, but there are some unclear areas. -- Question: The scope of the work in Workstream 2 re: the scope of an IRP -- what is a valid claim to be filed in an IRP? Seems that Workstream 2 is not going to be able to change the scope of Workstream 1. Is this in scope? Answer: Anything that would change the scope of an IRP would have to be suggested as an amendment to the Bylaws. See 4.3(b) is scope re: "covered actions" that violate articles or Bylaws. Gets to the further notion that this deals with someone being materially affected by the action to have standing -- has to be harm. -- Not arguing that we should be pushing for a change in the scope of the IRP; arguing that we could consider developing a new gTLD appeals process that would go into the AGB. >From the chat: Jeff Neuman: New IRP is a "Substantive review of whether they violate the bylaws." But that is different than a substantive review of whether the Guidebook was breached, correct? Jeff Neuman: In other words, would a breach of something in the Guidebook be a violation of the bylaws? Jeff Neuman: This is what we need to consider.... Jim Prendergast: or an action by a contractor to ICANN - IRPs have discovered some actions there that didnt seem right - especially in the CPE space. Jeff Neuman: @Jim, but it is a strectch to argue that all breaches of the guidebook are violations of the bylaws....which is why many have argued that an appeals process is required Jim Prendergast: correct Jim Prendergast: which leads to the question of - are the 4 on the first slide enough? Anne Aikman-Scalese (IPC): @Jeff - It seems that a breach of ByLaws or Mission is not the same as a decision which 'breaches" the Guidebook. Directors are held to standard of Mission and ByLaws and can review decisions of panel. I am not seeing basis for "breach" of Guidebook per se unless the action or inaction breaches mission or bylaws. Anne Aikman-Scalese (IPC): I doubt we can change the scope of the revised IRP at this point in time. It's a function of the consensus and Chartering Org approval accomplished in WS1. John Laprise: I like the IRP structure Jeff Neuman: @Anne - correct ; which is again why many believe an appeals process is necessary for substantive decisions, or actions or inactions of icann staff or its contractors in violation of the guidebook Anne Aikman-Scalese (IPC): @Jeff - Does Request for Reconsideration apply in the circumstances you describe and is there an appeal from that? Jeff Neuman: Requests for Reconsideration is not a substantive review of whether provisions of the Guidebook were breached. Anne Aikman-Scalese (IPC): What is the standard of review in Request for Reconsideration? Jeff Neuman: Standard of Review for Reconsideration: (c) A Requestor may submit a request for reconsideration or review of an ICANN action or inaction ("Reconsideration Request") to the extent that the Requestor has been adversely affected by:(i) One or more Board or Staff actions or inactions that contradict ICANN's Mission, Commitments, Core Values and/or established ICANN policy(ies);(ii) One or more actions or inactions of the Board or Staff that have been taken or refused to be taken without consideration of material information, except where the Requestor could have submitted, but did not submit, the information for the Board's or Staff's consideration at the time of action or refusal to act; or(iii) One or more actions or inactions of the Board or Staff that are taken as a result of the Board's or staff's reliance on false or inaccurate relevant information. Susan Payne: does the cost sanction work the other way - if ICANN does not meaningfully engage in CEP? Jeff Neuman: So, there is still NO mechanism to handle cases where the ICANN staff, contractor, or board just got a decision wrong substantively. Jeff Neuman: unless it is of such a degree to violate the mission, core values or bylaws Anne Aikman-Scalese (IPC): @Jeff - Issue of "breach" of Guidebook provision is very touchy. In the past, the Board has received policy advice - both from the GNSO and from the GAC, that arguably varied from the Guidebook provisions. When you consider that the Board is already bound to one degree or another in relation to voting majorities that apply to GNSO advice (2/3 to overcome) and GAC Advice (60% to overcome) and by IRP on Mission and ByLaws violations, I think you are putting the Board in a very difficult position where they won't be able to make decisions on issues that arise after the Guidebook is finalized if you say there can be IRP on Guidebook breaches. Anne Aikman-Scalese (IPC): Thanks Jeff. Agree IRP does not cover breach of guidebook so worth looking at in Sub Pro. B. PICDRP -- Lessons Learned Kiran Malancharuvil, Policy Counselor, MarkMonitor -- First PICDRP that made it to the Standing Panel stage -- Purpose: Ensure new gTLDs operated in the public interest. -- PICDRP was a way for parties to bring a complaint against registry operators re: fraud and malicious conduct. -- Process is arduous and complicated, uncertain and lack of transparency. -- The problems with PICDRP: (1) transparency violations -- ICANN regularly shared all of the coalition's filings with the respondent (TLS), but refused to share any of the respondent's filings. Approached ICANN but didn't get a satisfactory answer. (2) In the dark from when we filed and we got the decision. No notice of the composition of the Standing Panel to identify conflicts of interest. -- After PICDRP gave its findings -- TLS submitted to ICANN Compliance a mediation plan to address teh violations, but we did not receive any information. No way to understand what happened to know if the remedy was appropriate. -- During the Standing Panel's deliberations ICANN instructed the panel on the scope of the PICDRP -- process violation of ICANN's neutral role in the decision of the PICDRPs. -- Concerns expressed by Panelists. -- Registry operator TLS after the PICDRP was filed and decided and after remediation, engaged in retaliatory behavior by claiming we had a confidentiality breach by association/proxy. Requested termination of our accreditation with them. Complainants aren't protected from retaliation. Questions/Discussion: -- Question: Stages during which information you shared with ICANN and the procedural methods where you weren't kept informed, was that before you made it to the panel? Where did ICANN stop having a role? Answer: Vast majority happened before the panel. Once panel was convened it was sealed off, except for ICANN instructing them on the scope. Will note the question and respond on the list. -- General comment/question: To what extent are we aware of actions ICANN has taken on the other half of the PICDRP enforcement mechanism -- simple complaint to Compliance the results in some kind of action by ICANN that the PICs are being enforced. >From the chat: Anne Aikman-Scalese (IPC): PICDRP was originally drafted as a complaint to be filed outside of ICANN and adjudicated by a neutral not selected by ICANN staff. Too bad that was not the structure was adopted because these problems would not have arisen in that procedural context. Jeff Neuman: [Co-Chair Hat off][Former Registry Hat on}: When we started this PIC Process the registries asked that it only be ICANN that enforces / does not enforce the PICs. ICANN did not want to exclusively take on that role since it did not feel like it had the knowledge or expertise to do so. It also did not want to take on the liability of making the decisions. Registries did not want to be left without an appeals process if the decision was made exclusively by an outside provider (especially if the panel made an overly harsh decision), so thus the compromise was that the Panel makes a recommendation, but ICANN determines the remedy such that a registry can challenge under the contractual provisions in their agreement. This is why it is so complex. Anne Aikman-Scalese (IPC): "Registries did not want to be left without an appeals process if the decision was made exclusively by an outside provider" - i.e. registries knew that they would be protected to some degree by ICANN itself due to relationship. This goes to the core of definition of "public interest" and who should be deciding what is in the public interest - the old "GPI" debate. Anne Aikman-Scalese (IPC): QUESTION: Should a PICDRP decision be appealable to IRP now that scope of IRP includes review of panel decisions? QUESTION Anne Aikman-Scalese (IPC): I think Alan also means that ICANN Compliance is supposed to be monitoring compliance with PICs - e.g. Are eligibility provisions be applied in Safeguarded strings? Alan Greenberg: A complaint to Compliance would not result in your being compensated, but it in theory should address any violation. Kiran Malancharuvil: Hi Alan, thanks. We aren't seeking compensation, just addressing the violation Steve Chan: FYI, WT2 submitted questions to contractual compliance on complaints related to PICs. We will make sure that the responses are made available to both WTs 2 and 3. 3. ICANN59 Topics Slide 18: ICANN59 F2F Meeting Topics -- How GAC Advice & GAC Early Warnings impact the freedom of expression and the application process Slide 19: Meetings: Tuesday, 27 June, 0830-1200: GNSO New gTLD Subsequent Procedures PDP Working Group Face-to-Face Meeting Tuesday, 27 June, 1700-1830: https://schedule.icann.org/event/B3pX/cross-community-discussion-geographic… Thursday, 29 June, 1515-1830: https://schedule.icann.org/event/B3pD/cross-community-discussion-geographic…

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Discussion Agenda for WT3 - Tuesday 20 June at 15:00 UTC
by Karen Day June 16, 2017

June 16, 2017

Dear WT 3 members, We are scheduled to have our next call this coming Tuesday, June 20th at 15:00 UTC. Please review our agenda below and plan to join us on the call if you are able. 1. Welcome / Review Agenda 2. SOIs 3. Status Update from Plenary Chair 4. New gTLD Accountability Mechanisms A. Revised IRP B. PICDRP – lessons learned 5. Discussion topics for ICANN 59 F2F 6. AOB Hope to see you there, Karen _______________________________________________________________ Karen L. Day, ACP NCCP SAS Registry Operations Manager Tel: + 1 919-531-6016 ▪ gTLDinfo(a)sas.com 100 Matrix Drive ▪ Cary, NC 27513 USA www.nic.sas<http://www.nic.sas/>; www.nic.jmp<http://www.nic.jmp/>; www.nic.analytics<http://www.nic.analytics/>

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Notes and Action Items - New gTLD Subsequent Procedures PDP WG - Track 3 - 6 June 2017
by Emily Barabas June 7, 2017

June 7, 2017

Dear Work Track members, Please find below the action items and discussion notes from yesterday’s meeting. These high-level notes are designed to help Work Track members navigate through the content of the call and are not a substitute for the chat transcript or the recording. The meeting recording and chat transcript are available at: https://community.icann.org/x/DBLfAw. Slides from the call are attached for reference. Kind regards, Emily -------------------------------------------------------------------------- Notes: 1. Welcome / Update SOIs -- no updates 2. Review / Revise Agenda -- no revisions 3. WG Plenary Co-Chair Update - Primary focus - completing CC1 work and preparing draft recommendations. Last meeting focused on predictability and community engagement. - Discussion of comments coming from GDD on "gating" issues that will need to be settled before GDD can begin its work towards subsequent procedures. - Work looking ahead to geographic names sessions at ICANN59. 4. Accountability Mechanisms Applicable to New gTLD Program a. Review of ICANN-Org-Wide Mechanisms -- see slide 3 for overview i) Ombudsman Office ii) Complaints Office iii) Reconsideration Request Process iv) Independent Review Panel Process v) Accountability and Transparency Review Team (ATRT) Process vi) Documentary Disclosure Information Policy (DIDP) vii) Law suits? b. gTLD Specific Accountability Mechanisms -- see slide 4 for overview i) PIC Dispute Resolution Procedure -- this group will look at the actual process, WT1 will look at the PIC ii) Trademark Post-Dispute Resolution Procedure (being addressed by RPMs PDP) iii) Independent Objector Process -- also Registration Restrictions DRP 5. Questions to Consider: a. Standard of Review (procedural, substantive) appropriate for this instance (new gTLDs)? - substantive review is necessary to get to the root of some problems. In 2012 round, the mechanisms did not provide for this, or there was a lack of ability to "think outside the box" in getting to the root of the underlying problem. - the accountability mechanisms need to give better guidance to the people reviewing the cases about how to come to a resolution. There was so much restriction on what can be looked at. - more instruction to third-party dispute resolution providers may be necessary. - Staff: It may make sense to think about the phases of accountability separately. On the one hand, there is ICANN’s accountability to the evaluation procedures, and on the other hand applicants’ ability to seek redress to decisions and actions of ICANN and its providers through post delegation procedures. And then perhaps it might make sense to think of the accountability of registries and their commitments in the application and in the registry agreement. Chat excerpt: Rubens Kuhl: I also believe one degree of substantive review is needed. Local court system allows 1st and 2nd instances to look at substance, produce evidence and witnesses. Rubens Kuhl: After that, higher courts only look at already in-file evidence. - There have been enhancements to the accountability mechanisms, but they still don’t do a substantive review of decisions that are made. They mostly look at whether the Board and staff acted in a manner consistent with the Bylaws, mission, etc. - The Registries filed a statement today, includes comments indicating that they would like to see appeals of substantive decisions, as opposed to appeals through accountability mechanisms. We need to know if the panel adhered to the rules and process, but we also need to know did the panel making the decisions get it right? If they didn't, where can they turn? - Boards should be making high-level decisions, not making very granular decisions. There should be someone or some group of subject matter experts other than the Board to review decisions. It should also not go to the group/individuals who made the decision in the first place. In reconsiderations, the Board is sometimes reviewing decisions they made in the first place, which is not effective. Chat excerpt: Kurt Pritz: @Jeff: That is not my recollection. I remember a webinar where ICANN staff member said that an action by one of the review panel was the same as a staff action for the purposes of Reconsideration Requests and IRP avri doria: Kurt, that is the way it was treated. Jeff Neuman: But that does not change the fundamental point that no one reviewed the decisions by the evaluators. Kurt Pritz: Those Reconsdieration requests were generally lost because the Board Governance Committee found no policy violation (not judging as to whether there was one or not) - Problem to avoid going forward -- fix what exists, so those in charge of accountability have the tools they need to get the right result. - Instead of creating another organization at another level that is responsible for this, we can empower the Board to act on in the way they were meant to behalf of the community. b. Adequate transparency in new gTLD decision making process, including implementation? - With regard to conflicts of interest, there needs to be transparency on the front end. On the PICDRP, some questions came up about the panelists and their potential conflicts after the decision was received. There was no way to know who panelists were while going through the PICDRP until the decisions was rendered. Chat excerpt: Jamie Baxter | dotgay: Lack of transparency around evaluators used in CPE is also an issue. There is no way to assess any conflict of interest issues. Cheryl Langdon-Orr (CLO): makes dealing with potential COI. impossibly challenging it seems Karen and Jamie . Karen Bernstein: I have a problem with the qualifications of arbitrators overseing objections. Specifically, we had an admiralty lawyer preside over a String Confusion Objection. Rubens Kuhl: While we look at accountability mechanisms, we need to make sure they are not used, or we try to avoid that, them to be used to delay a contention set. Kiran Malancharuvil: Of course the problem with limiting areas of expertise is that those who have an expertise in this area are VERY likely to have conflicts of interest Kristina Rosette (Amazon Registry): There's a difference between requiring experts to have expertise in the DNS and the domain industry, on the one hand, and requiring tht experts have expertise in an area more closely related than admiralty. Karen Bernstein: Kristina, this particular arbitrator had no experience in trademark or DNS/dn industry c. Are there special concerns with respect to conflicts of interest and adequate safeguards for COI in new gTLD program? - In the context of the independent objector, there needs to be a mechanism through which assertions of conflict of interest can be dealt with in a preliminary matter and separate from a full hearing/consideration by the expert. If you look at the independent objections against the .amazon case, Amazon raised the conflict of interest issue early and often, but was told that there was not mechanism to address, and that it was up to the expert panel to decide whether it would want to address the potential conflict of interest. It shouldn’t be up to expert. Also, you shouldn't put a party in a position to litigate the full objection before you can reach the conflict of interest issue. Chat excerpt: Susan Payne: I don't have audio I'm afraid. I seem to recall the IO, in his own review of his role, raised the issue about having an alternative IO who could act in situations on conflict. Assuming the IO role is retained that seems a sensible suggestion - One of the DRPs has a first look process - review to see if they have some merit -- possible to use that on the objections side, limit to conflicts of interest. - One possibility we considered on an earlier call is to spread first look process across all mechanisms. Chat excerpt: Jeff Neuman: I am not sure we can improve the accountability mechanisms as they are pretty well baked right now Jeff Neuman: but we can focus on new things like a susbstantive appeals process. Rubens Kuhl: I believe PICDRP has such a first look mechanism. Cheryl Langdon-Orr (CLO): makes sense if first look s used across and to take in COI issues as consideration. Rubens Kuhl: Not fine, for sure. - Does this group agree that this is an area that should be left alone because it is "baked in." - Some things in the Bylaws are difficult to change, but some enhancements to existing mechanisms or new narrowly focused mechanisms are within reach. - The Accountability Mechanisms were developed through intensive work over a period of years, but we could recommend new grounds for appeal, intermediate steps in addressing issues. - Might be helpful to distinguish in deliberations between organization-wide accountability mechanisms and more narrowly tailored mechanisms specific to the New gTLD Program. d. Are there adequate penalties against abuse? e. Is there adequate enforcement? f. Are there specific needs with respect to new gTLDs which make ICANN's basic accountability mechanisms inadequate? g. Is there a need for an accountability mechanism specifically focused on new gTLD program? h. Who should be final adjudicator in such cases? 6. AOB / Next Meeting (20 June - 15:00 UTC) - Next week - focus on Dispute Resolution Processes

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RecordingS, AC Chat & Attendance from New gTLD Subsequent Procedures Sub Team Track 3 String Contention, Objections & Disputes on Tuesday,06 June 2017 at 20:00 UTC
by Julie Bisland June 6, 2017

June 6, 2017

Dear All, Please find the attendance and audio recording of the call attached to this email and the Adobe Connect recording (visual and audio) and AC Chat below for the New gTLD Subsequent Procedures Sub Team – Track 3 – String Contention, Objections & Disputes held on Tuesday, 06 June 2017 at 20:00 UTC. Adobe Connect recording: https://participate.icann.org/p2sbcr6wmf0/<https://participate.icann.org/p2sbcr6wmf0/?OWASP_CSRFTOKEN=155295b65430a30c…> 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-wt3 Agenda Wiki page: https://community.icann.org/x/DBLfAw Thank you. Kind regards, Julie ------------------------------- Adobe Connect chat transcript for 06 June 2017 Julie Bisland:Welcome to the New gTLD Subsequent Procedures Sub Team – Track 3 – String Contention, Objections & Disputes call on Tuesday, 06 June 2017 at 20:00 UTC. Emily Barabas:slides are unsynced Steve Coates:Super complaints. Steve Chan:There is also the Registration Restrictions DRP. And I would note, the RPMs PDP has agreed to take the TMDRP off our hands. Rubens Kuhl:COI as in "Conflict Of Interest", not "Continued Operations Instrument". Rubens Kuhl:I also believe one degree of substantive review is needed. Local court system allows 1st and 2nd instances to look at substance, produce evidence and witnesses. Rubens Kuhl:After that, higher courts only look at already in-file evidence. Jamie Baxter | dotgay:I agree Robin. Cheryl Langdon-Orr (CLO):I think we need mechanisms to do both, and YES clearer definitions and Guidelines is needed for s Karen Day (SAS):I'm not hearing Robin Cheryl Langdon-Orr (CLO):Robin is breaking up Rubens Kuhl:Exactly, Robin seems to be breaking up. Steve Chan:@Robin, I'll type it here for you to catch up on what I said. Julie Bisland:Robin, it seems intermittent. currently cannot hear you. Robin Gross:I'm speaking Steve Coates:Apologies, have to drop off. Robin Gross:I'll have to dial-in Robin Gross:I'll have to dial-in again Jeff Neuman:yes Steve Chan:All, here is the point I was trying to make, for those that may have missed it: It may make sense to think about the phases of accountability separately. On the one hand, there is ICANN’s accountability to the evaluation procedures, and applicants’ ability to seek redress to decisions and actions of ICANN and it’s providers. And then perhaps it might make sense to think of the accountability of registries and their commitments in the application and and in the registry agreement. Kurt Pritz:@Jeff: That is not my recollection. I remember a webinar where ICANN staff member said that an action by one of the review panel was the same as a staff action for the purposes of Reconsideration Requests and IRP avri doria:Kurt, that is the way it was treated. Jeff Neuman:But that does not change the fundamental point that no one reviewed the decisions by the evaluators. Kurt Pritz:Those Reconsdieration requests were generally lost because the Board Governance Committee found no policy violation (not judging as to whether there was one or not) Cheryl Langdon-Orr (CLO):agree Jamie Cheryl Langdon-Orr (CLO):good point Kristina... makes sense to me to address Jamie Baxter | dotgay:Lack of transparency around evaluators used in CPE is also an issue. There is no way to assess any conflict of interest issues. Cheryl Langdon-Orr (CLO):makes dealing with potential COI. impossibly challenging it seems Karen and Jamie Karen Bernstein:I have a problem with the qualifications of arbitrators overseing objections. Specifically, we had an admiralty lawyer preside over a String Confusion Objection. Rubens Kuhl:While we look at accountability mechanisms, we need to make sure they are not used, or we try to avoid that, them to be used to delay a contention set. Kiran Malancharuvil:Of course the problem with limiting areas of expertise is that those who have an expertise in this area are VERY likely to have conflicts of interest Susan Payne:I don't have audio I'm afraid. I seem to recall the IO, in his own review of his role, raised the issue about having an alternative IO who could act in situations on conflict. Assuming the IO role is retained that seems a sensible suggestion Kristina Rosette (Amazon Registry):There's a difference between requiring experts to have expertise in the DNS and the domain industry, on the one hand, and requiring tht experts have expertise in an area more closely related than admiralty. Jeff Neuman:I am not sure we can improve the accountability mechanisms as they are pretty well baked right now Jeff Neuman:but we can focus on new things like a susbstantive appeals process. Rubens Kuhl:I believe PICDRP has such a first look mechanism. Kristina Rosette (Amazon Registry):Thanks, @Karen (Day)! Karen Bernstein:Kristina, this particular arbitrator had no experience in trademark or DNS/dn industry Cheryl Langdon-Orr (CLO):makes sense if first look s used across and to take in COI issues as consideration Rubens Kuhl:Not fine, for sure. Jeff Neuman:Agree with Steve Julie Bisland:The next New gTLD Subsequent Procedures Sub Team – Track 3 – String Contention, Objections & Disputes will take place on Tuesday, 20 June 2017 at 15:00 UTC for 60 minutes. Cheryl Langdon-Orr (CLO):thanks everyone bye for now then avri doria:bye Karen Day (SAS):Thanks, Robin. Susan Payne:thanks Kiran Malancharuvil:Thanks Karen Day (SAS):Bye all Anne Aikman-Scalese (IPC):Thanks everyone

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Discussion Agenda - REMINDER: Meeting Invitation: New gTLD Subsequent Procedures Sub Team Track 3 String Contention, Objections & Disputes
by Robin Gross June 6, 2017

June 6, 2017

I hope you all will join our call on Tuesday to discuss accountability mechanisms applicable to the new gTLD program. Discussion agenda follows below. Thanks, Robin Discussion Agenda for WT3 - 6 June 2017 (20:00 UTC) 1. Welcome / Update SOIs 2. Review / Revise Agenda 3. WG Plenary Co-Chair Update 4. Accountability Mechanisms Applicable to New gTLD Program a. Review of ICANN-Org-Wide Mechanisms i. Ombudsman Office ii. Reconsideration Request Process iii. Independent Review Panel Process iv. What else? Law suits? ATRT? 5. Questions to consider: a. Standard of Review (procedural, substantive) appropriate? b. Adequate transparency in new gTLD decision making process (including implementation)? c. Are there special concerns with respect to conflicts of interest and adequate safeguards for COI in new gTLD program? d. Are there specific needs with respect to new gTLDs which make ICANN's basic accountability mechanisms inadequate? e. Is there a need for an accountability mechanism specifically focused on new gTLD program? 6. AOB / Next Meeting (20 June - 15:00 UTC) > On Jun 5, 2017, at 6:19 AM, Terri Agnew <terri.agnew(a)icann.org> wrote: > > Dear All, > > The call for the New gTLD Subsequent Procedures Sub Team – Track 3 – String Contention, Objections & Disputes will take place on Tuesday, 06 June 2017 at 20:00 UTC for 60 minutes. > 13:00 PDT, 16:00 EDT, 21:00 London, 22:00 CEST > For other times: http://tinyurl.com/lo5ddc7 <http://tinyurl.com/lo5ddc7> > > Adobe Connect room: https://participate.icann.org/newgtldsubteams/ <https://participate.icann.org/newgtldsubteams/> > You can connect your audio by following instructions in the pop up in the AC room, or use the Connect Me option below (also sent in the calendar invitation). > > Kind regards, > > Julie Bisland > > > You're Invited. > You've been invited to a GlobalMeet® phone only meeting. > Have the meeting call you. > Click the Connect Me link below. No need to dial-in. > Connect Me [toolbar.conferencinghub.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__toolbar.conferencinghu…> > Not at your computer? > You can join by dialing one of the access numbers below. > Mobile: > tel://16054755604,*,,8650457825# <tel://16054755604,*,,8650457825> > Access Number: > 1-605-475-5604 > Guest Passcode: > 8650457825 > Additional Access: > USA: > 1-605-475-5604 > USA: > 1-712-770-4203 > USA: > 1-719-457-6209 > Canada, Calgary: > +1 403 407 5793 > Canada, Montreal: > +1 514 669 5928 > Canada, Toronto: > +1 647 426 9172 > Canada, Vancouver: > +1 604 222 7836 > Argentina, Buenos Aires: > +54 (0) 11 5172 6003 > Argentina (toll free): > 0800 800 1223 > Australia, Sydney: > +61 (0) 2 8017 6064 > Australia, Melbourne: > +61 (0) 3 8687 0553 > Australia, Brisbane: > +61 (0) 7 3015 0535 > Australia (toll free): > 1 800 804 786 > Austria, Vienna: > +43 (0) 1 25302 1785 > Austria (toll free): > 0800 8866 3413 > Bahrain, Manama: > +973 1619 8739 > Bahrain (toll free): > 800 04212 > Belarus (toll free): > 8 820 0011 0341 > Belgium, Brussels: > +32 (0) 2 400 6928 > Belgium (toll free): > 0800 39279 > Brazil, Sao Paulo: > +55 11 4935 7169 > Brazil, Rio de Janeiro: > +55 21 4560 0072 > Brazil (toll free): > 0800 887 0233 > Bulgaria, Sofia: > +359 (0) 2 491 6045 > Bulgaria (toll free): > 00800 111 4950 > Cambodia, Phnom Penh: > +855 23 965 723 > Canada (toll free): > 1 855 950 3717 > Chile, Santiago: > +56 (0) 2 2666 0696 > Chile (toll free): > 171 800 835 783 > China (national): > +400 613 8103 > China, Beijing: > +86 10 5667 0003 > China, Shanghai: > +86 21 2039 7081 > Colombia, Bogota: > +57 1 508 8137 > Colombia (toll free): > 01 800 755 0102 > Costa Rica (toll free): > 800 542 5328 > Croatia (toll free): > 0800 805 940 > Cyprus (toll free): > 800 97424 > Czech Republic, Prague: > +420 225 986 554 > Czech Republic (toll free): > 800 701 532 > Denmark, Copenhagen: > +45 32 72 78 10 > Denmark (toll free): > 80 70 35 86 > Egypt (toll free): > 0800 000 0593 > Estonia, Tallinn: > +372 622 6551 > Estonia (toll free): > 800 011 1589 > Fiji (toll free): > 00800 3322 > Finland, Helsinki: > +358 (0) 9 2310 1677 > Finland (toll free): > 0800 772 236 > France, Paris: > +33 (0) 1 70 37 16 56 > France (toll free): > 0800 946 531 > France (national): > 0811 655 100 > France (national): > 0821 231 671 > Georgia, Tbilisi: > +995 32 2 050 778 > Germany, Frankfurt: > +49 (0) 69 2222 10612 > Germany, Munich: > +49 (0) 89 2030 31207 > Germany (national): > 01801 003 899 > Germany (toll free): > 0800 588 9170 > Greece, Athens: > +30 211 181 3824 > Greece (toll free): > 00800 128 913 > Hong Kong: > +852 3018 9111 > Hong Kong (toll free): > 800 901 787 > Hungary, Budapest: > +36 1408 8953 > Hungary (toll free): > 068 001 9673 > Iceland (toll free): > 800 9847 > India, Delhi: > +91 (0) 11 6641 1394 > India, Bangalore: > +91 (0) 80 6127 6710 > India, Mumbai: > +91 (0)22 6187 5028 > India, Chennai: > +91 (0)44 6688 6061 > India (toll free): > 1800 200 9415 > Indonesia, Jakarta: > +62 21 2188 9084 > Indonesia (toll free): > 007 803 321 8927 > Ireland, Dublin: > +353 (0) 1 526 9421 > Ireland (national): > 0818 270 271 > Ireland (toll free): > 1800 937 649 > Ireland (national): > 1890 907 630 > Israel, Tel Aviv: > +972 (0)3 721 7943 > Israel (toll free): > 1809 213 168 > Italy, Milan: > +39 02 3600 8006 > Italy, Rome: > +39 06 8750 0676 > Italy (toll free): > 800 146 094 > Japan, Tokyo: > +81 (0) 3 4560 1270 > Japan, Osaka: > +81 (0) 6 4560 2410 > Japan (toll free): > 0120 305 211 > Japan (mobile): > 0120 632 611 > Japan (national): > 0570 085 744 > Kazakhstan (toll free): > 8800 333 7554 > Kenya, Nairobi: > +254 (0)20 529 3581 > South Korea, Seoul: > +82 (0) 2 6007 0079 > South Korea (toll free): > 00798 6136 1454 > Latvia, Riga: > +371 6601 3627 > Latvia (toll free): > 8000 4418 > Lithuania, Vilnius: > +370 5205 5468 > Lithuania (toll free): > 8800 31449 > Luxembourg: > +352 2088 1749 > Luxembourg (toll free): > 800 28433 > Malaysia,Kuala Lumpur: > +60 (0) 3 7724 8010 > Malaysia (toll free): > 1 800 816 152 > Mexico, Guadalajara: > +52 33 4162 4504 > Mexico, Mexico City: > +52 55 8421 0326 > Mexico, Monterrey: > +52 81 4162 5648 > Mexico (toll free): > 01 800 733 4102 > Morocco, Casablanca: > +212 (0) 520 48 0022 > Morocco (toll free): > 0800 091 296 > Netherlands, Amsterdam: > +31 (0) 20 716 8345 > Netherlands (toll free): > 0800 020 2597 > New Zealand, Christchurch: > +64 (0) 3 974 2596 > New Zealand, Wellington: > +64 (0) 4 909 4674 > New Zealand, Auckland: > +64 (0) 9 929 1825 > New Zealand (toll free): > 0800 452 947 > Nigeria, Lagos: > +234 1 277 3944 > Norway, Oslo: > +47 21 00 48 15 > Norway (toll free): > 800 56081 > Oman (toll free): > 800 77265 > Panama, Panama City: > +507 8 335 913 > Panama (toll free): > 00800 223 1390 > Peru, Lima: > +51 (0) 1 700 9571 > Peru (toll free): > 0800 78102 > Philippines, Manila: > +63 (0)2 395 3426 > Philippines (toll free): > 1 800 111 013 99 > Poland, Warsaw: > +48 22 295 3570 > Poland (toll free): > 00 800 121 4356 > Portugal, Lisbon: > +351 21 316 4093 > Portugal (toll free): > 800 784 442 > Qatar (toll free): > 00 800 100 491 > Romania, Bucharest: > +40 (0) 21 529 3992 > Romania (toll free): > 0800 801 035 > Russia, Moscow: > +7 495 646 9181 > Russia (toll free): > 8 800 500 9241 > Saudi Arabia (toll free): > 800 844 6641 > Saudi Arabia (toll free): > 800 850 0219 > Serbia (toll free): > 0800 190 712 > Singapore: > +65 6622 1957 > Singapore (toll free): > 800 616 3192 > Slovakia, Bratislava: > +421 (0)2 3321 5498 > Slovakia (toll free): > 0800 002 002 > Slovenia, Ljubljana: > +386 1600 8695 > Slovenia (toll free): > 0800 81193 > South Africa, Johannesburg: > +27 (0)11 589 8321 > South Africa (toll free): > 0800 999 434 > Spain, Madrid: > +34 91 114 6653 > Spain, Barcelona: > +34 93 800 1946 > Spain (toll free): > 900 828 035 > Sri Lanka, Sri Lanka: > +94 720 910 333 > Sweden, Stockholm: > +46 (0) 8 5065 3956 > Sweden (toll free): > 0200 125 588 > Switzerland, Geneva: > +41 (0) 22 595 4795 > Switzerland, Zurich: > +41 (0) 44 580 7207 > Switzerland (toll free): > 0800 740 360 > Taiwan, Taipei: > +886 (0) 2 2650 7329 > Taiwan (toll free): > 0800 666 596 > Thailand, Bangkok: > +66 (0) 2104 0761 > Thailand (toll free): > 001 800 6136 1473 > Tunisia, Tunis: > +216 31 378 101 > Turkey, Istanbul: > +90 212 375 50 49 > Turkey (toll free): > 00800 4488 26642 > Ukraine (toll free): > 0800 500 896 > UAE (toll free): > 8000 3570 2662 > UK (03): > +44 (0)330 336 6002 > UK (toll free): > 0800 358 6385 > UK (national): > 0844 473 5010 > UK (national): > 0845 545 0015 > USA /Canada (toll free): > 1-866-398-2885 > Uruguay (toll free): > 0004 019 0152 > Venezuela, Caracas: > +58 212 720 2164 > Venezuela (toll free): > 0 800 162 7451 > Vietnam, Hanoi: > +84 4 4458 3312 > Vietnam (toll free): > 1800 9226 > > <New gTLD Subsequent Procedures Sub Team Track 3 - 06 June 2017.ics>_______________________________________________ > Ntfy-gnso-newgtld-wg-wt3 mailing list > Ntfy-gnso-newgtld-wg-wt3(a)icann.org <mailto:Ntfy-gnso-newgtld-wg-wt3@icann.org> > https://mm.icann.org/mailman/listinfo/ntfy-gnso-newgtld-wg-wt3 <https://mm.icann.org/mailman/listinfo/ntfy-gnso-newgtld-wg-wt3>

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WT3 - Definition of "community" Proposal
by Karen Day June 1, 2017

June 1, 2017

Hi everyone, After our last call on the basics of community, Avri very generously dove in and has pulled together a strawbunny proposal of the definition of community for us to discuss and refine. https://docs.google.com/document/d/1yKuFzTgIel53nxM9tOWgoH6evMTk4wdxVreVH2m… Let’s see if we can come to consensus on how we want to define community for subsequent procedures, for applications, for CPE & objection purposes. Or, alternatively, if we can not achieve consensus on what community is, then we will discuss what those implications are on subsequent procedures. Please feel free to use “suggest” mode to comment directly in the document, but for the benefit of all, please send a short note to the list when you make suggestions, highlighting what your suggestions, comments or questions are. Best, Karen _________________________ Karen L. Day, NCCP ACP Registry Operations Manager Tel: + 1 919-531-6016 ▪ Mobile: + 1 919-599-4356 ▪ karen.day(a)sas.com SAS Institute Inc.▪ SAS Campus Drive ▪ Cary, NC 27513 USA www.sas.com [S285-sas100K-TPTK40K-vert]

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