I appreciate the efforts being made here, and I think this goes part of the way. But, if you look at the context of the SubPro recommendations, they arose not necessarily from the “Critical Functions” , but rather from the provision of Sunrise/Trademark Claims services (using the .feedback example where the registry made fraudulent statements about trademark protections as it circumvented those protections. Question 1: Which of the 5 Critical Functions (if any) would the .feedback issues fall under? The Critical Functions being (a) Operation of the Shared Registry System, (b) RDRS, (c) Data Escrow, (d) DNS and (e) DNSSEC. Question 2: Is the new termination right in addition to, or a replacement for, any of the termination rights that could be invoked by ICANN if there is a PICDRP and the Registry is found to have engaged in fraudulent or deceptive practices by the PICDRP panel. Again, look at the .feedback PICDRP example. The way I see it, the fact that the new 4.3 addition could be viewed to conflict with the existing provisions governing PICDRP findings of Fraud (currently in the base agreement in 4.3(e)). Question 3: Does a PICDRP in ICANN’s view as being the equivalent of an arbitration? Overall, as one of the Co-Chairs of SubPro (along with Cheryl), I believe we need to ask ourselves the question of whether the new provisions would clearly address the findings of the .feedback PICDRP and allow ICANN to have the ability to find a breach of contract based on the Registry Operators fraudulent conduct in that case. If the answer is a clear yes, we have addressed the SubPro Recommendations. If the answer is “maybe” or “no”, we have not. Its a fairly straight forward litmus test. Sincerely, Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC +1.202.549.5079 Jeff@jjnsolutions.com ________________________________ From: Susan Payne via SubPro-IRT <subpro-irt@icann.org> Sent: Wednesday, May 14, 2025 5:30 AM To: Lars Hoffmann <lars.hoffmann@icann.org>; Jamie Hedlund <jamie.hedlund@icann.org> Cc: Karla Hakansson <karla.hakansson@icann.org>; Jared Erwin via SubPro-IRT <subpro-irt@icann.org> Subject: [SubPro-IRT] Re: Recommendation 36.4 re: Fraudulent and Deceptive Practices Thanks Lars (and Jamie) In order that the IRT can properly review this, please would you provide the whole of what is now proposed as section 4.3(f). The language for (iii) needs to be seen in context with the rest of the clause. Based on the text Karla shared in her note as the then latest proposal on 4.3(f) (reproduced below) I’m struggling to see how (iii) is supposed to fit: ICANN may, upon notice to Registry Operator, terminate this Agreement if (i) ICANN receives a complaint, or ICANN otherwise becomes aware, that Registry Operator is engaging in fraudulent or deceptive business practices in provision of Registry Services under this Agreement for the TLD; and (ii) such fraudulent or deceptive business practices have resulted in an adverse action or decision and a failure to remediate finding against the Registry Operator by a relevant governmental consumer protection authority or authorities with jurisdiction over the matter, or Registry Operator is the subject of a determination that ICANN reasonably deems as the substantive equivalent of any of the foregoing; provided that, if ICANN receives a complaint related to the foregoing, all available relevant documentation from such adverse action or decision and a failure to remediate finding must be included as part of the complaint. Is the proposed text for 4.3(f)(iii) meant to replace some or all of this (and so is not in fact (iii)), or is it an additional subclause, following on from (ii), and in which case is this “and” or “or” (either of which seem to lack coherence). As you know, we have a Council meeting at 0500UTC Thursday, where Anne and I have referred this matter. Susan Payne Head of Legal Policy Com Laude T +44 (0) 20 7421 8250 Ext 255 [cid:image001.png@01DBC4B8.82FBACC0] <https://comlaude.com/> Follow us on LinkedIn<https://t-uk.xink.io/Tracking/Index/pRkAAGVfAADw_RQA0> and YouTube<https://t-uk.xink.io/Tracking/Index/bhkAAGVfAADw_RQA0> From: Lars Hoffmann via SubPro-IRT <subpro-irt@icann.org> Sent: 14 May 2025 09:20 To: Jared Erwin via SubPro-IRT <subpro-irt@icann.org> Cc: Jamie Hedlund <jamie.hedlund@icann.org>; Karla Hakansson <karla.hakansson@icann.org> Subject: [SubPro-IRT] Recommendation 36.4 re: Fraudulent and Deceptive Practices Dear all, Please, find below a message from Jamie Hedlund, SVP Contractual Compliance and U.S. Government Engagement Best wishes. Lars Dear IRT, Attached please find a revised org proposal for implementation of SubPro Recommendation 36.4. I am sharing this revised proposal as Karla is out this week. As you will see, the proposal would: * add a PIC to RA Spec. 11, Section 3 to prohibit a registry operator from engaging in fraudulent or deceptive business practices in performing any Critical Function under this Agreement. By narrowly defining the scope of registry conduct subject to a PIC, it limits the extent to which ICANN org would be placed in the role of enforcing substantive areas of law that are outside ICANN’s mission and bylaws. * amend RA Section 4.3(f) to allow ICANN to terminate an agreement if a registry operator is determined by a court of competent jurisdiction or by an arbitrator to have committed fraud or deceptive practices in the provision of Registry Services under this Agreement for the TLD, or is the subject of a judicial or arbitral determination that ICANN reasonably deems as the substantive equivalent. We look forward to discussing this proposal at the next IRT meeting following Karla’s return from vacation. Thank you. 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