Dear All,

Please see below the action items and brief notes from today’s SOI Task Force meeting on Wednesday, 07 December 2022 at 14:00 UTC.  These also are posted to the wiki at: https://community.icann.org/x/yYXOCg.

Kind regards,

Marika and Julie

SOI Task Force Meeting #14

Wednesday, 07 December 2022 at 14:00 UTC

HOMEWORK/ACTION ITEMS -- DUE BY 31 December 2022:

1. TF members from the IPC, BC, and RySG (and others as they wish) to consult with their members concerning how they deal with disclosures of clients/relationships in other contexts and suggest revisions if any to the following language: “If professional ethical obligations prevent you from disclosing this information, please provide details on which ethical obligations prevent you from disclosing and provide a high level description of the entity that you are representing without disclosing its name, for example ‘I represent a Registry client’ or ‘I am representing a non-GNSO related entity.’”
2. DUE BY INSERT: TF members to review the following language from the revised SOI to confirm that it provides sufficient flexibility: “The detailed questions will be made publicly available and may be reviewed and revised by the GNSO Council from time to time using its relevant processes.”
3. DUE BY INSERT: TF members to review the sample form to determine whether it provides sufficient guidance, or suggest any further materials or guidance that may be helpful
4. Staff to schedule a meeting the week of 09 January 2023 after considering whether there is a time of day that is more suitable for the various TF member time zones.

Notes:

1. Welcome and SOIs

• No updates to SOIs.
• Susan Kawaguchi is listed as a member on the wiki, but she is no longer a member so we’ll get that updated.

2. Public Comment Review

See the discussion table at: https://docs.google.com/document/d/13jhExwduE7qrRovZFDw5FwAjtUlSffwz/edit [docs.google.com]. See also the comments in full at: https://www.icann.org/en/public-comment/proceeding/updates-to-the-gnso-statement-of-interest-soi-procedures-and-requirements-09-09-2022/submissions.

Summary of Comments:

• Staff prepared a discussion table (see link above) to help facilitate review of the comments.
• Joint public comment periods on both changes to the SOI and to the WG Self-Assessment (by CCOICI).
• Comments on requirement to disclose relationships – against allowing the “loophole”.
• Suggestion that SOI questions should only be baseline questions.  As currently foreseen the Operation Procedures would allow for that flexibility.
• Sample SOI: Comments from Elizabeth Reed on the importance of guidance materials.  Group has not completed those materials but agreed they would be helpful.

a. Concerns to be addressed

The new definitions proposed by the Task Force require a person participating in the Policy Development Process (PDP) as a paid or unpaid representative of another party to disclose

who they are representing. This sounds great, however, while the proposed edits to the GNSO Operating Procedures reflect the amended definition for a “General Statement of Interest” and new “Activity Specific Statement of Interest” there remains an enormous loophole in the application of the recommendation in the Sample Statement of Interest that renders that recommendation close to meaningless. In the proposed Sample Statement of Interest form the loophole reads:

“If professional ethical obligations prevent you from disclosing this information, please provide details on which ethical obligations prevent you from disclosing and provide a high level description of the entity that you are representing without disclosing its name, for example ‘I represent a Registry client’ or ‘I am representing a non-GNSO related entity.’”

This exception would swallow the rule as a mere claim of attorney-client privilege or an ‘ethical’ obligation placed into a consulting contract would prevent this important disclosure and block the GNSO from achieving the transparency that should be fundamental to the multistakeholder policy development process and required in ICANN’s Bylaws. The loophole in Activity Specific SOI as applied in the Sample Statement of Interest form assumes, incorrectly, that there is some professional/ethical obligation that is somehow stronger than the normative OECD/EU/U.S. disclosure regimes. Common sense dictates that requiring disclosure in order to participate in an ICANN process wouldn’t violate a privilege any more than would similar requirements in the U.S. Congress or at the EU. For that matter, any arguments of attorney-client privilege are a red herring, as it ignores the fact that, at least under U.S. law, client identities are generally not even considered covered by the privilege. See also practices by OECD, European Parliament and US Federal Requirements which require disclosure, and if parties don’t disclose whom they represent, all the way to the source – up the chain, they should not participate. 

Discussion:

• Talked about getting legal guidance on whether we can require disclosure, but didn’t do that.  Think we should get some guidance on how we can align ourselves with international standards.  Do agree that we should set a minimum standard: “Perhaps we have a baseline set of questions but give the WG leadership a discretion to require additional information specific to work chartered to them” (Susan and agreed by Karen) – Operating Procedures allows for flexibility in the questions and requirements for each WG.
• Question: Is it sufficient to remove the language – no alternative path provided or “loophole” – “If professional ethical obligations prevent you from disclosing this information, please provide details on which ethical obligations prevent you from disclosing and provide a high level description of the entity that you are representing without disclosing its name, for example ‘I represent a Registry client’ or ‘I am representing a non-GNSO related entity.”   Staff concern would be what kind of enforcement is expected here?
• Hesitant to remove the language.  Acknowledge the concern that it is a large loophole, but we did have an exception in the current SOI. Instead we could massage the language to make it clearer. 
• Current exception in the SOI was considered a weakness compared to the revised provision.  How can we move forward – did people look at the other practices that were identified?  Also reach out to your constituencies – how do they do that in working with other entities.  Also, suggest revised language to suggest why these relationships cannot be disclosed.
• With regard to the original language: Example was SubPro with such a lack of consensus because of entrenched interests.  Is there some way to allow, when trying to find consensus, to require participants to disclose client to participate in a consensus call.
• Isn’t it more knowing what their positioning/interest is?  Does it matter who is the client? The question is what would be the harm in disclosing that?  It also is required to disclose in other activities (EU, USG).
• To address the comments should explain why this is different from disclosures in other contexts (EU/USG).  Could get feedback from IPC, BC, and RySG on what they do and what types of guidance/examples to provide. 
• How much time would you need to get feedback?  Maybe 2-3 weeks – bringing us to the end of the year.  Provide feedback on the list and reconvene early next year.

ACTION ITEM TF members from the IPC, BC, and RySG (and others as they wish) to consult with their members concerning how they deal with disclosures of clients/relationships in other contexts and suggest revisions if any to the following language: “If professional ethical obligations prevent you from disclosing this information, please provide details on which ethical obligations prevent you from disclosing and provide a high level description of the entity that you are representing without disclosing its name, for example ‘I represent a Registry client’ or ‘I am representing a non-GNSO related entity.’”

b. Suggestion

The SOI questions should only serve as a set of baseline questions, allowing the GNSO Council to add questions specific to the activities when it sees fit.

ACTION ITEM: TF members to review the following language from the revised SOI to confirm that it provides sufficient flexibility: “The detailed questions will be made publicly available and may be reviewed and revised by the GNSO Council from time to time using its relevant processes.”

c. Suggestion

As someone new to the ICANN space, it's sometimes not clear what information the question is asking for. I believe this can be resolved with guidance material/examples being available.

ACTION ITEM: TF members to review the sample form to determine whether it provides sufficient guidance, or suggest any further materials or guidance that may be helpful

3. Confirm next steps and next meeting (if necessary)

• Schedule a meeting for early January 2023 at 1400 UTC or other time that works for the various time zones.

ACTION ITEM: Staff to schedule a meeting the week of 09 January 2023 after considering whether there is a time of day that is more suitable for the various TF member time zones.

5. AOB: None