All, Jim asked in the chat on the call last night about the note that we sent to Avri and Becky regarding the Board Comments to SubPro. I apologize that I had not sent this to the full list earlier. For some reason I thought I did send it, but it turns out that I had not. Apologies for that. Below you will find the note that we sent out. Please let me know if you have any questions about the note. Sincerely, Jeff [cid:image001.png@01D6A693.B8EA1440] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Jeff Neuman Sent: Wednesday, October 14, 2020 9:46 AM To: avri.doria@board.icann.org; Becky Burr <becky.burr@board.icann.org> Cc: Cheryl Langdon-Orr <langdonorr@gmail.com>; steve.chan@icann.org; Emily Barabas <emily.barabas@icann.org>; Julie Hedlund <julie.hedlund@icann.org> Subject: Questions on ICANN Board Comments to SubPro Draft Final Report Dear Avri and Becky, Cheryl and I are reaching out to you both as the ICANN Board Liaisons to the SubPro PDP. First, we want to thank you for the comprehensive comments from the ICANN Board on the Draft Final Report. It is clear from the letter that the Board spent great deal of time and resources in discussing and preparing the response. Last week, the SubPro Working Group had an initial discussion on some of the comments raised by the Board. Through that discussion, it became clear that the Working Group would like some additional information from the Board on either underlying assumptions or context for the recommendations. Registry Voluntary Commitments / PICs (also applies to String Similarity) On Topic 9, Registry Voluntary Commitments / PICs, the Board states: "The language of the Bylaws, however, could preclude ICANN from entering into future registry agreements (that materially differ in form from the 2012 round version currently in force) that include PICs that reach outside of ICANN's technical mission as stated in the Bylaws. The language of the Bylaws specifically limits ICANN's negotiating and contracting power to PICs that are "in service of its Mission." The Board is concerned, therefore, that the current Bylaws language would create issues for ICANN to enter and enforce any content-related issue regarding PICs or Registry Voluntary Commitments (RVCs). Has the PDP WG considered this specific language in ICANN Bylaws are part of its recommendations or implementation guidance on the continued use of PICs or the future use of RVCs." The Working Group has not considered the ICANN Bylaws specifically with respect to whether PICs or RVCs would run afoul of the ICANN Bylaws. In our discussions last week, we were a little puzzled by this question which we believe is more of a legal question as opposed to a policy-development one. Therefore, this question would not be one properly in front of the Working Group. However, from this comment, the Working Group is now keenly interested to discover from the Board: * Does the ICANN Board believe that any future PICs or RVCs would in fact be outside the scope what the Bylaws Permit? * The Working Group would like to understand why the Board may believe that the current Bylaws would create issues for ICANN to enter and enforce any content-related issue regarding RVCs in particular if the Registry voluntarily adopted the commitment on its own. Therefore, ICANN would not be regulating any form of content, but rather would just be ensuring that the Registry is doing the job it signed up to do. * In other words, does the Board believe that ICANN enforcing voluntary commitments made by registries if those commitments relate to the content on their TLDs, to be impermissible content regulation? * And if it does, but a consensus of the community desires ICANN to be in this role, could the Bylaws be changed to allow ICANN to perform this job. Applicant Support Can you clarify the comment made on topic 17, with respect to Applicant Support, where the Board states that it is not a grant-seeking organization....but that is could, through the Pro Bono Assistance Program, act as a facilitator in the introduction of industry players or potential funding partners to the prospective entrants. Does this mean ICANN would be comfortable in granting application discounts (or even application fee forgiveness), but it would not be comfortable in seeking funds from others to fund such services provided by other third parties? Community Applications On Community Applications (Topic 34), many groups have expressed support for prioritizing community based applications where there is string contention. However, the similar to Topic 9, the ICANN Board is asking whether evaluating community-based applications and enforcing those commitments could run afoul of ICANN's mission. * Is the ICANN Board taking a position that we should not be having any community-based applications? Or Is the Board stating that we can have Community-based applications, but it would have to rely solely on self enforcement even if these applications were given priority in contention sets? * If there is a consensus within the ICANN-community to continue allowing Community-Based applications and giving them priority, could we not amend or clarify the bylaws to make sure that ICANN were not running afoul of the mission? We may likely have additional questions on some of the other comments, but I wanted to pass these through as soon as we could. We would like to discuss these questions with you both on a future call as opposed to an exchange of e-mails if possible as there could likely be follow up questions. Thanks again for the Board's extensive comments and we look forward to discussing these issues with you. Sincerely, Cheryl and Jeff SubPro Chairs