Hi Lili, The Review Team can make any recommendations it likes, but the issue is really that we have an obligation (in my mind) to make recommendations that can be implemented and have a reasonable chance of addressing an issue. I agree we can make recommendations in respect to policy. We certainly can recommend to the Board that it initiate a GNSO Policy Process (which it in fact already has). We also can recommend that the Board suggest certain directions to the GNSO, but it is then completely up to the GNSO on how it treats these suggestions, and in fact, the GNSO will normally simply incorporate these issues into the PDP WG Charter for consideration of the WG. Any resultant policy is wholly developed by the PDP WG. I was a member of the ATRT2 RT, and we struggled with whether we can make recommendations to parts of ICANN other than the Board. We ultimately decided we could using several constructs. 1. We used wording such as "ATRT2 recommends that the Board work jointly with the GAC, through the Board-GAC Recommendation Implementation Working Group (BGRI working group), to consider....". These recommendation were effective aimed at the GAC, but the GBRI was the mechanism by which the Board could introduce them. Butall we could ask is that the ideas be considered, as the Board was not empowered to guarantee implementation. 2. Wording "The Board should work with the GNSO and the wider ICANN community to develop methodologies and tools to allow the GNSO policy development processes to utilize volunteer time more effectively...." and other similar intents. Here there was no existing mechanism, so we simply said that the Board should "work with the GNSO". Results were rather spotty. 3. In one case, we made a direct recommendation "The GAC, in conjunction with the GNSO, must develop methodologies to ensure that GAC and government input is provided to ICANN policy development processes and that the GAC has effective opportunities to provide input and guidance on draft policy development outcomes." Clearly all the Board could do was forward this to the applicable bodies. So in short, we can recommend what we wish. But the Board can only take effective action if it has the mandate to do so, and that is severely limited in the case of gTLD Policy. In relation to WHOIS, the Board has already initiated a GNSO PDP to review all aspects of WHOIS with the aim of fixing it or replacing it. In my mind, that puts it in a weak position to request further policy action at this point. To directly answer your question on how the RT could make recommendations without respect to policy, many of the WHOIS1-RT recommendations were not in regard to gTLD policy but rather how the ICANN Board and the ICANN Organization (to use the current term) should implement the existing policy. As well, ICANN was at that point in a position to bilaterally negotiate with registrars on developing a new Registrar Accreditation Agreement and that effectively implemented what might otherwise have been construed as policy. Alan At 13/08/2017 10:14 AM, SUN Lili wrote:

Dear Chris and Team Members,

I remembered that during last plenary call, Chris had two comments: 1. The ICANN Board cannot intervene in the GNSO PDP. 2. The Review Team cannot make recommendations in respect to policy.

For the first point, it’s easy to understand, the PDP should be independent as much as possible in the process. However, for the second one, I still have doubts on this. To my understanding, WHOIS is policy, how could the Review Team make recommendations without respect to policy? I believe this is of high relevant to the scope of the review, and looking forward to your kind clarification.

Thanks and regards, Lili

Hello Lili, All, Apologies for the delay in responding. I think Alan has succinctly and accurately set out the position. Happy to provide any further clarification if necessary. Cheers, Chris

On 13 Aug 2017, at 16:48, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:

Hi Lili,

The Review Team can make any recommendations it likes, but the issue is really that we have an obligation (in my mind) to make recommendations that can be implemented and have a reasonable chance of addressing an issue.

I agree we can make recommendations in respect to policy. We certainly can recommend to the Board that it initiate a GNSO Policy Process (which it in fact already has). We also can recommend that the Board suggest certain directions to the GNSO, but it is then completely up to the GNSO on how it treats these suggestions, and in fact, the GNSO will normally simply incorporate these issues into the PDP WG Charter for consideration of the WG. Any resultant policy is wholly developed by the PDP WG.

I was a member of the ATRT2 RT, and we struggled with whether we can make recommendations to parts of ICANN other than the Board. We ultimately decided we could using several constructs.

1. We used wording such as "ATRT2 recommends that the Board work jointly with the GAC, through the Board-GAC Recommendation Implementation Working Group (BGRI working group), to consider....". These recommendation were effective aimed at the GAC, but the GBRI was the mechanism by which the Board could introduce them. Butall we could ask is that the ideas be considered, as the Board was not empowered to guarantee implementation.

2. Wording "The Board should work with the GNSO and the wider ICANN community to develop methodologies and tools to allow the GNSO policy development processes to utilize volunteer time more effectively...." and other similar intents. Here there was no existing mechanism, so we simply said that the Board should "work with the GNSO". Results were rather spotty.

3. In one case, we made a direct recommendation "The GAC, in conjunction with the GNSO, must develop methodologies to ensure that GAC and government input is provided to ICANN policy development processes and that the GAC has effective opportunities to provide input and guidance on draft policy development outcomes." Clearly all the Board could do was forward this to the applicable bodies.

So in short, we can recommend what we wish. But the Board can only take effective action if it has the mandate to do so, and that is severely limited in the case of gTLD Policy. In relation to WHOIS, the Board has already initiated a GNSO PDP to review all aspects of WHOIS with the aim of fixing it or replacing it. In my mind, that puts it in a weak position to request further policy action at this point.

To directly answer your question on how the RT could make recommendations without respect to policy, many of the WHOIS1-RT recommendations were not in regard to gTLD policy but rather how the ICANN Board and the ICANN Organization (to use the current term) should implement the existing policy. As well, ICANN was at that point in a position to bilaterally negotiate with registrars on developing a new Registrar Accreditation Agreement and that effectively implemented what might otherwise have been construed as policy.

Alan

At 13/08/2017 10:14 AM, SUN Lili wrote:

...

Dear Chris and Team Members,

I remembered that during last plenary call, Chris had two comments: 1. The ICANN Board cannot intervene in the GNSO PDP. 2. The Review Team cannot make recommendations in respect to policy.

For the first point, it’s easy to understand, the PDP should be independent as much as possible in the process. However, for the second one, I still have doubts on this. To my understanding, WHOIS is policy, how could the Review Team make recommendations without respect to policy? I believe this is of high relevant to the scope of the review, and looking forward to your kind clarification.

Thanks and regards, Lili