Re: [gnso-policyimpl-wg] Updated public comment review tool and proposed "hierarchy" language

[Marika Konings <marika.konings@xxxxxxxxx>]

Hi Amr,

I have no objections to your proposed edit as I think it would helpfully 
introduce some flexibility without unnecessarily tying the hands of the 
Council. Your point probably also goes closely together with the conversation 
surrounding what happens if there is disagreement on what process would be most 
appropriate to use and the expectation that the Council would engage in 
constructive dialogue should there be any concerns with regard to the desired 
outcome and process to be used.

Best regards,

Marika

From: Amr Elsadr <aelsadr@xxxxxxxxxxx<mailto:aelsadr@xxxxxxxxxxx>>
Date: Wednesday 29 April 2015 10:28
To: Marika Konings <marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx>>
Cc: Chuck Gomes <cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx>>, Mary Wong 
<mary.wong@xxxxxxxxx<mailto:mary.wong@xxxxxxxxx>>, 
"gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>" 
<gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>>
Subject: Re: [gnso-policyimpl-wg] Updated public comment review tool and 
proposed "hierarchy" language

Hi Marika,

The way I see it, the example I provided and the one you did are two extremes 
of a spectrum. They both seem equally relevant to me, and need to somehow be 
addressed. I would prefer to not ignore one in order to avoid the risk of the 
other.

One thought (this is just a first impression) I have is adding some language to 
the description of the GGP to read:

A GGP may be initiated by the GNSO Council when a request for input relating to 
gTLDs (either a new issue or in relation to previous policy recommendations) 
has been received from the ICANN Board or a gTLD issue has been identified by 
the GNSO Council that would benefit from GNSO Guidance, and it has determined 
that the intended outcome is not expected to result in new “Consenus Policies” 
including, but not limited to, any new contractual obligations for contracted 
parties (in which case a PDP would need to be initiated).

This would exclude substantive changes to processes like the UDRP that may 
affect registrants, but would still allow the GNSO Council to use a GGP to 
answer questions the Council believes to be more relevant to implementation 
issues. The change would also be consistent with the working group’s charter 
that specifies that GNSO guidance should be used for developing policy other 
than “Consensus Policy”.

I would say that a combination of this and the low voting threshold required to 
initiate a GGP should allay any concerns about preventing a GGP from being used 
to address implementation issues. Personally, I would prefer language that 
clearly protects registrants from new (non-implementation) obligations, in the 
same manner it does for contracted parties.

Thoughts?

Thanks.

Amr

On Apr 29, 2015, at 3:20 PM, Marika Konings 
<marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx>> wrote:

I’m not sure how or who would determine whether new obligations on registrants 
are created. In the case of contracted parties, I guess it is fairly easy, if a 
change needs to be made to the agreements it creates a new obligation, but in 
the case of registrants it may be much less obvious or in the eye of the 
beholder. As a very hypothetical example, there could be a need to clarify in a 
certain procedure that is the result of a PDP that submissions need to be made 
by email instead of fax which the original rules demanded. If you would argue 
that this would create a new obligation on registrants, it would mean that for 
something that most would probably consider a minor (implementation) change, 
you would need to go through a full PDP.

Furthermore, as Chuck also pointed out, requirements on registrants flow down 
through registries and registrars, so I still fail to see how new enforceable 
requirements could be imposed on registrants without a consensus policy.

Best regards,

Marika

From: <Gomes>, Chuck Gomes <cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx>>
Date: Wednesday 29 April 2015 09:03
To: Amr Elsadr <aelsadr@xxxxxxxxxxx<mailto:aelsadr@xxxxxxxxxxx>>
Cc: Marika Konings <marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx>>, 
Mary Wong <mary.wong@xxxxxxxxx<mailto:mary.wong@xxxxxxxxx>>, 
"gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>" 
<gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>>
Subject: RE: [gnso-policyimpl-wg] Updated public comment review tool and 
proposed "hierarchy" language

Thanks for the helpful clarifications Amr.

I want to make clear that, in pointing out that requirements on registrants are 
flowed down through registries and registrars I was not implying that I am 
opposed to the NCSG suggestion.  Rather, I wanted to clarify that when a 
contracted party has to implement a consensus policy, they often have to make 
modifications to their agreements with registrars in the case of registries and 
with registrants in the case of registrars that modify the requirements on 
registrants.

I repeat the question I asked of all WG members in a previous message in this 
thread.  Is anyone opposed to adding something like the following for the GGP: 
“The GGP should not be used to add new obligations on registrants.”

Chuck

From: Amr Elsadr [mailto:aelsadr@xxxxxxxxxxx]
Sent: Wednesday, April 29, 2015 7:33 AM
To: Gomes, Chuck
Cc: Marika Konings; Mary Wong; 
gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>
Subject: Re: [gnso-policyimpl-wg] Updated public comment review tool and 
proposed "hierarchy" language

Hi Marika and Chuck,

This comment wasn’t mine, but raised by other NCSG members. However, I will do 
my best to answer your questions now, and maybe get back to some colleagues for 
more.

My understanding of how the UDRP and URS work is that a consensus policy could 
lead to changes in requirements on the part of the registrant, or maybe more 
accurately, the criteria that would trigger requirements for registrants to act 
or be held accountable. Example (according to my admittedly limited 
understanding) include changes to what constitutes applicable disputes or 
evidence of registration or use of domain names in bad faith, which in turn 
would require the submission of a mandatory administrative proceeding.

Although changes to these as a result of a consensus policy will create new 
responsibilities (or obligations) on registrants, they don’t actually change 
the obligations of the contracted party or registrars. The language in section 
3.8 of the 2013 RAA will not need to be amended to enforce the changes in the 
UDRP. The obligations on the registrars remain constant, while new ones may be 
created for registrants.

The language describing the GGP is very specific in excluding new obligations 
to registries and registrars as a criteria, but does not mention consensus 
policies or obligations of registrants. From my understanding, the GGP is not 
meant to create new rules in processes such as the UDRP or URS, so it makes 
sense to me to add registrants to the list of parties that the GGP cannot 
create new obligations for.

I hope that was helpful.

Thanks.

Amr

On Apr 28, 2015, at 9:05 PM, Gomes, Chuck 
<cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx>> wrote:


Unless I am missing something, the only way consensus policies can impact 
registrants is via registries and registrars.  ICANN doesn’t have agreements 
with registrants.

Chuck

From: Marika Konings [mailto:marika.konings@xxxxxxxxx]
Sent: Tuesday, April 28, 2015 12:27 PM
To: Amr Elsadr
Cc: Gomes, Chuck; Mary Wong; 
gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>
Subject: Re: [gnso-policyimpl-wg] Updated public comment review tool and 
proposed "hierarchy" language

Hi Amr,

Apologies, I misread your first comment. It would be helpful if you could be 
more specifics with regards to your examples and related concerns concerning 
the URS and UDRP. As far as I understand, these processes set out the rules for 
registrants, but I am not aware of any obligations that are created that are 
enforceable in a similar way as consensus policies are enforceable on 
contracted parties.

Best regards,

Marika

From: Amr Elsadr <aelsadr@xxxxxxxxxxx<mailto:aelsadr@xxxxxxxxxxx>>
Date: Tuesday 28 April 2015 11:10
To: Marika Konings <marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx>>
Cc: Chuck Gomes <cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx>>, Mary Wong 
<mary.wong@xxxxxxxxx<mailto:mary.wong@xxxxxxxxx>>, 
"gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>" 
<gnso-policyimpl-wg@xxxxxxxxx<mailto:gnso-policyimpl-wg@xxxxxxxxx>>
Subject: Re: [gnso-policyimpl-wg] Updated public comment review tool and 
proposed "hierarchy" language

Hi,

On Apr 28, 2015, at 4:21 PM, Marika Konings 
<marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx>> wrote:



Hi Amr,

In relation to your question concerning the GGP, Annex D specifically says 'and 
it has determined that the intended outcome is not expected to result in new 
contractual obligations for contracted parties (in which case a PDP would need 
to be initiated)’. Do you consider this not to be sufficient? If so, where 
would you like to see additional clarification?

This came up when the NCSG held a webinar to cover this WG’s initial report. 
The issue that was identified was that there are Consensus Policies that do not 
necessarily involve new contractual obligations for contracted parties, but may 
create new obligations on registrants. The examples provided were changes to 
the UDRP or URS.



With regards to your point on the EPDP, and apologies for having missed last 
week’s meeting, I’m not sure why you would want to specifically exclude an 
issue for which a previous policy recommendation was rejected as circumstances 
may have changed or new information may have become available (which would need 
to be noted in the scoping request) but for which all the other previous 
scoping information would still be relevant.

Hmm. That’s a good point. Thanks for making it. The intent of the NCSG comment 
here is to prevent abuse of this process as a tool to reopen a previously 
explored policy issue only because a stakeholder didn’t like the conclusion of 
a previously held process on the same policy. Let me think about this some more 
between now and tomorrow’s call.

Thanks again.

Amr