SSAD SRT - Implementation Guidance and MUST
Dear SSAD SRT Members, During this week's meeting, a question was raised by Anne regarding the use of MUST within implementation guidance. The EPDP working group considered this and included the following in the EPDP Phase 2 Final Report<https://gnso.icann.org/sites/default/files/file/field-file-attach/epdp-phase...> (section 3.4 - page 16), "Where Implementation Guidance is referenced, the EPDP Team considers this supplemental context and/or clarifying information to help inform the implementation of the policy recommendations but the EPDP Team notes that implementation guidance does not have the same weight and standing as recommendation text to create policy." Generally speaking, when a Working Group or EPDP team provides Implementation Guidance, the group is recommending the stated action, and there is a presumption that it will be implemented. Because Implementation Guidance is not the same as a policy recommendation, however, ICANN org, in consultation with the IRT, has the flexibility to deviate from the implementation guidance so long as the alternative course is transparently described, has been carefully considered, and a rationale for any deviation is provided. With respect to SSAD supplemental recommendations specifically, if the SSAD SRT believes an instance of MUST should be changed to SHOULD or MAY, that is something the group can consider when modifying the SSAD recommendations. Thank you, Marc Anderson
Thanks Marc. In connection with the Sub Pro ODA, ICANN Org asked the GNSO Council for further instructions relative to the nature of Implementation Guidance. In that case, the Council advised ICANN Org that because there is a presumption that Implementation Guidance will be followed as you have noted, ICANN Org should come back to Council whenever it cannot do so and explain the reasons why and state the alternative approach. Obviously it would be good to prevent a situation where Org, in the course of the IRT proceedings, would need to come back to the Council. In addition, I'm concerned that the proposed solution for the Team members to examine the Implementation Guidance on a case-by-case basis, will be too time-consuming for the SSAD Supp Rec Team. Given these considerations, I would suggest that the Team issue a general Statement along the following lines: *"Where Implementation Guidance from the EPDP Team is referenced in this Supplemental Recommendations Report, the Supplemental Recommendations Team has not separately reviewed and analyzed the continuing relevance of the previous EPDP Implementation Guidance in light of the new Supplemental Recommendations. Accordingly, the SRT advises the Council and the Council advises the Board that no presumption should be created by such Implementation Guidance and that the IRT will need to determine appropriate steps to implementation in consultation with the GNSO Council where appropriate."* The above (or some similar statement from the Team to be agreed) may avoid the need for detailed discussions surrounding Implementation Guidance previously formulated, especially Guidance which contains the word "MUST". If not, then I understand that the Team will need to discuss Implementation Guidance on a Recommendation by Recommendation basis. I am personally ready to do that, but am wondering about the efficiency of that approach. It would be good to clarify and/or discuss this issue before our Day 0 meeting. Meanwhile, based on your advice, I guess we all need to carefully review the EPDP Implementation Guidance and be prepared to discuss it in connection with Recommendation 11, Recommendation 17, and the High Effort Recommendations noted for discussion in Seville. Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2026 anneicanngnso@gmail.com On Fri, May 29, 2026 at 7:47 AM Anderson, Marc via Gnso-ssad < gnso-ssad@icann.org> wrote:
Dear SSAD SRT Members,
During this week’s meeting, a question was raised by Anne regarding the use of MUST within implementation guidance.
The EPDP working group considered this and included the following in the EPDP Phase 2 Final Report <https://gnso.icann.org/sites/default/files/file/field-file-attach/epdp-phase...> (section 3.4 - page 16),
*“Where Implementation Guidance is referenced, the EPDP Team considers this supplemental context and/or clarifying information to help inform the implementation of the policy recommendations but the EPDP Team notes that implementation guidance does not have the same weight and standing as recommendation text to create policy.”*
Generally speaking, when a Working Group or EPDP team provides Implementation Guidance, the group is recommending the stated action, and there is a presumption that it will be implemented. Because Implementation Guidance is not the same as a policy recommendation, however, ICANN org, in consultation with the IRT, has the flexibility to deviate from the implementation guidance so long as the alternative course is transparently described, has been carefully considered, and a rationale for any deviation is provided.
With respect to SSAD supplemental recommendations specifically, if the SSAD SRT believes an instance of MUST should be changed to SHOULD or MAY, that is something the group can consider when modifying the SSAD recommendations.
Thank you,
Marc Anderson
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Well - please ignore the suggestion below for general language covering Implementation Guidance. Having gone more deeply into review of the Revised Recommendations in the Strawperson Document, I can see that Staff has made numerous Strawperson edits already to Implementation Guidance, though I'm unsure as to the reasons and sources for these changes. By way of example, I note that in Recommendation 8, it appears that virtually all references to "legitimate interest" have been deleted? Could staff please explain further its process for having modified Implementation Guidance? At present, I'm not seeing any source documents for some of those modifications. (I acknowledge that as to Urgent Requests, both the definition and applicable time frame are consistent with the work of the reconvened IRT..) Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2026 anneicanngnso@gmail.com On Sat, May 30, 2026 at 2:49 PM Anne ICANN <anneicanngnso@gmail.com> wrote:
Thanks Marc. In connection with the Sub Pro ODA, ICANN Org asked the GNSO Council for further instructions relative to the nature of Implementation Guidance. In that case, the Council advised ICANN Org that because there is a presumption that Implementation Guidance will be followed as you have noted, ICANN Org should come back to Council whenever it cannot do so and explain the reasons why and state the alternative approach.
Obviously it would be good to prevent a situation where Org, in the course of the IRT proceedings, would need to come back to the Council. In addition, I'm concerned that the proposed solution for the Team members to examine the Implementation Guidance on a case-by-case basis, will be too time-consuming for the SSAD Supp Rec Team. Given these considerations, I would suggest that the Team issue a general Statement along the following lines:
*"Where Implementation Guidance from the EPDP Team is referenced in this Supplemental Recommendations Report, the Supplemental Recommendations Team has not separately reviewed and analyzed the continuing relevance of the previous EPDP Implementation Guidance in light of the new Supplemental Recommendations. Accordingly, the SRT advises the Council and the Council advises the Board that no presumption should be created by such Implementation Guidance and that the IRT will need to determine appropriate steps to implementation in consultation with the GNSO Council where appropriate."*
The above (or some similar statement from the Team to be agreed) may avoid the need for detailed discussions surrounding Implementation Guidance previously formulated, especially Guidance which contains the word "MUST". If not, then I understand that the Team will need to discuss Implementation Guidance on a Recommendation by Recommendation basis. I am personally ready to do that, but am wondering about the efficiency of that approach.
It would be good to clarify and/or discuss this issue before our Day 0 meeting. Meanwhile, based on your advice, I guess we all need to carefully review the EPDP Implementation Guidance and be prepared to discuss it in connection with Recommendation 11, Recommendation 17, and the High Effort Recommendations noted for discussion in Seville.
Thank you, Anne
Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2026 anneicanngnso@gmail.com
On Fri, May 29, 2026 at 7:47 AM Anderson, Marc via Gnso-ssad < gnso-ssad@icann.org> wrote:
Dear SSAD SRT Members,
During this week’s meeting, a question was raised by Anne regarding the use of MUST within implementation guidance.
The EPDP working group considered this and included the following in the EPDP Phase 2 Final Report <https://gnso.icann.org/sites/default/files/file/field-file-attach/epdp-phase...> (section 3.4 - page 16),
*“Where Implementation Guidance is referenced, the EPDP Team considers this supplemental context and/or clarifying information to help inform the implementation of the policy recommendations but the EPDP Team notes that implementation guidance does not have the same weight and standing as recommendation text to create policy.”*
Generally speaking, when a Working Group or EPDP team provides Implementation Guidance, the group is recommending the stated action, and there is a presumption that it will be implemented. Because Implementation Guidance is not the same as a policy recommendation, however, ICANN org, in consultation with the IRT, has the flexibility to deviate from the implementation guidance so long as the alternative course is transparently described, has been carefully considered, and a rationale for any deviation is provided.
With respect to SSAD supplemental recommendations specifically, if the SSAD SRT believes an instance of MUST should be changed to SHOULD or MAY, that is something the group can consider when modifying the SSAD recommendations.
Thank you,
Marc Anderson
_______________________________________________ Gnso-ssad mailing list -- gnso-ssad@icann.org To unsubscribe send an email to gnso-ssad-leave@icann.org
Hi Anne, Thank you for the question. All edits proposed by Support Staff have been reviewed by SSAD SRT Leadership and are subject to the SSAD SRT’s review and discussion. While we have endeavored to incorporate feedback from relevant sources in the SSAD SRT’s Assignment Form, Support Staff may have misunderstood or gotten it wrong. Accordingly, it is the SSAD SRT’s responsibility to read all relevant background information and propose changes/edits to the Straw Person text along with a rationale if they think the Straw Person text needs adjustments. In the example given, if the SSAD SRT believes it should preserve this implementation guidance, this can be adjusted. Per your request and the request of others in the SSAD SRT, Support Staff will soon add some citations to the Straw Person document in an effort to show what the changes are based on. We also invite members to revisit the meeting recording from 27 May<https://icann.zoom.us/rec/play/hiZU03IR7YEYobymxwzzEypxTrUKXA6bXRKlIPs17Nyfi...>, where we provided a high-level explanation of the principles used in modifying the High LOE recommendations, including Recommendation 8. In some instances, members will see that because many of the recommendations are interconnected, a lesson learned on one recommendation may relate to another recommendation. In the example you quote specifically, we understood that the language included about how to evaluate a requestor’s legitimate interest is a GDPR-specific concept. In adjusting the language of recommendations, GNSO Support Staff, with the support of Leadership, endeavored to remove GDPR-specific language to avoid enshrining a specific law or analysis around a specific law into policy language or implementation guidance. The RDRS Standing Committee noted, on p. 20 that “the registrar must remain the ultimate arbiter of disclosure.” Additionally, on p. 19, the Standing Committee noted, “the current form requires specifying the purpose using GDPR-centric language, which some participants found confusing or misaligned with other legal frameworks.” Support Staff’s understanding was that the Standing Committee recommended: (i) ensuring the registrar still retains the ability to determine whether it can disclose the data (and any modified recommendation should not impede this); and (ii) removing GDPR-specific language from the SSAD recommendations, while still ensuring that the registrar, as the decision maker, may evaluate the disclosure request under any relevant legal framework. (This may or may not include GDPR.) Support Staff also provided the following rationale for this change in the Rationale under the Modified Recommendation: The original recommendation included many GDPR requirements, and while these requirements MAY apply, they also MAY NOT apply and should not be required in cases where they do not. Accordingly, the specific language has been removed to avoid confusion in implementation, as GDPR-specific language caused confusion during the RDRS pilot. For clarity, the removal of the language DOES NOT remove the registrar’s ability to conduct its own detailed review under any relevant legal landscape; instead, it is meant to avoid enshrining a specific law into policy. We hope this is helpful. Best regards, Caitlin on behalf of the GNSO Support Team From: Anne ICANN via Gnso-ssad <gnso-ssad@icann.org> Reply-To: Anne ICANN <anneicanngnso@gmail.com> Date: Monday, June 1, 2026 at 5:56 PM To: "Anderson, Marc" <mcanderson@verisign.com> Cc: "gnso-ssad@icann.org" <gnso-ssad@icann.org> Subject: [Gnso-ssad] Re: SSAD SRT - Implementation Guidance and MUST Well - please ignore the suggestion below for general language covering Implementation Guidance. Having gone more deeply into review of the Revised Recommendations in the Strawperson Document, I can see that Staff has made numerous Strawperson edits already to Implementation Guidance, though I'm unsure as to the reasons and sources for these changes. By way of example, I note that in Recommendation 8, it appears that virtually all references to "legitimate interest" have been deleted? Could staff please explain further its process for having modified Implementation Guidance? At present, I'm not seeing any source documents for some of those modifications. (I acknowledge that as to Urgent Requests, both the definition and applicable time frame are consistent with the work of the reconvened IRT..) Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2026 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Sat, May 30, 2026 at 2:49 PM Anne ICANN <anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com>> wrote: Thanks Marc. In connection with the Sub Pro ODA, ICANN Org asked the GNSO Council for further instructions relative to the nature of Implementation Guidance. In that case, the Council advised ICANN Org that because there is a presumption that Implementation Guidance will be followed as you have noted, ICANN Org should come back to Council whenever it cannot do so and explain the reasons why and state the alternative approach. Obviously it would be good to prevent a situation where Org, in the course of the IRT proceedings, would need to come back to the Council. In addition, I'm concerned that the proposed solution for the Team members to examine the Implementation Guidance on a case-by-case basis, will be too time-consuming for the SSAD Supp Rec Team. Given these considerations, I would suggest that the Team issue a general Statement along the following lines: "Where Implementation Guidance from the EPDP Team is referenced in this Supplemental Recommendations Report, the Supplemental Recommendations Team has not separately reviewed and analyzed the continuing relevance of the previous EPDP Implementation Guidance in light of the new Supplemental Recommendations. Accordingly, the SRT advises the Council and the Council advises the Board that no presumption should be created by such Implementation Guidance and that the IRT will need to determine appropriate steps to implementation in consultation with the GNSO Council where appropriate." The above (or some similar statement from the Team to be agreed) may avoid the need for detailed discussions surrounding Implementation Guidance previously formulated, especially Guidance which contains the word "MUST". If not, then I understand that the Team will need to discuss Implementation Guidance on a Recommendation by Recommendation basis. I am personally ready to do that, but am wondering about the efficiency of that approach. It would be good to clarify and/or discuss this issue before our Day 0 meeting. Meanwhile, based on your advice, I guess we all need to carefully review the EPDP Implementation Guidance and be prepared to discuss it in connection with Recommendation 11, Recommendation 17, and the High Effort Recommendations noted for discussion in Seville. Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2026 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Fri, May 29, 2026 at 7:47 AM Anderson, Marc via Gnso-ssad <gnso-ssad@icann.org<mailto:gnso-ssad@icann.org>> wrote: Dear SSAD SRT Members, During this week’s meeting, a question was raised by Anne regarding the use of MUST within implementation guidance. The EPDP working group considered this and included the following in the EPDP Phase 2 Final Report [gnso.icann.org]<https://urldefense.com/v3/__https:/gnso.icann.org/sites/default/files/file/f...> (section 3.4 - page 16), “Where Implementation Guidance is referenced, the EPDP Team considers this supplemental context and/or clarifying information to help inform the implementation of the policy recommendations but the EPDP Team notes that implementation guidance does not have the same weight and standing as recommendation text to create policy.” Generally speaking, when a Working Group or EPDP team provides Implementation Guidance, the group is recommending the stated action, and there is a presumption that it will be implemented. Because Implementation Guidance is not the same as a policy recommendation, however, ICANN org, in consultation with the IRT, has the flexibility to deviate from the implementation guidance so long as the alternative course is transparently described, has been carefully considered, and a rationale for any deviation is provided. With respect to SSAD supplemental recommendations specifically, if the SSAD SRT believes an instance of MUST should be changed to SHOULD or MAY, that is something the group can consider when modifying the SSAD recommendations. Thank you, Marc Anderson _______________________________________________ Gnso-ssad mailing list -- gnso-ssad@icann.org<mailto:gnso-ssad@icann.org> To unsubscribe send an email to gnso-ssad-leave@icann.org<mailto:gnso-ssad-leave@icann.org>
participants (3)
-
Anderson, Marc -
Anne ICANN -
Caitlin Tubergen