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GNSO Council Meeting #11 of 2023 held on 16 Nov 2023

• Agenda
• Matters of Interest
• Meeting Record
• Special Summary Report

GNSO Council Meeting #11 of 2023 held on 16 Nov 2023 

Full Agenda  |  Documents  | Motions

• Item 1: Administrative Matters
• Item 2: Opening Remarks / Review of Projects List and Action Item List. 
• Item 3: Consent Agenda
• Item 4: COUNCIL VOTE - Approval Action Community Forum at ICANN78 - Fundamental Bylaws Amendments to Articles 18 and 19 of the ICANN Bylaws
• Item 5: COUNCIL UPDATE - EPDP on Internationalized Domain Names Phase 1 Final Report 
• Item 6: COUNCIL DISCUSSION - Updates on Status of Data Processing Agreement (DPA) negotiations and Registration Data Accuracy
  • (i) DPA Negotiations
  • (ii) Registration Data Accuracy
• Item 7: COUNCIL DISCUSSION - ICANN Board Action on the Final Report of the Cross-Community Working Group on New gTLD Auction Proceeds (CCWG-AP)
• Item 8: COUNCIL DISCUSSION - Consider whether further work is needed after ICANN org outreach to European Network Information Security Agency (ENISA) 
• Item 9: ANY OTHER BUSINESS 

  • 9.1 SPS Planning

  • 9.2 Confirmation of RDRS Chair

  • 9.3 Update on Public Comment on Pilot Holistic Review - Terms of Reference

  • 9.4 Update on GAC Communique Update

For notes on highlighted items click on MATTERS OF INTEREST tab above

Matters of interest to ALAC/At-Large

• Item 1: Administrative Matters
  • Minutes of the GNSO Council Meeting on 21 September 2023 were posted on 08 October 2023.
  • Minutes of the GNSO Council Meeting Part 1 and Part 2 on 25 October 2023 were posted on 10 November 2023.
• Item 3: Consent Agenda
  • Confirm Tomslin Samme-Nlar as GNSO Representative as Decisional Participant to the Empowered Community
• Item 4: COUNCIL VOTE - Approval Action Community Forum at ICANN78 - Fundamental Bylaws Amendments to Articles 18 and 19 of the ICANN Bylaws

  • The Board is convening the Second IANA Naming Function Review ("IFR") to satisfy the requirement under Section 18.2(b) of the ICANN Bylaws that "Periodic IFRs after the first Periodic IFR shall be convened no less frequently than every five years, measured from the date the previous IFRT for a Periodic IFR was convened." The Board convened the first IFR on 16 September 2018.

  • The Board's noted its resolution for the Approval of Amendments to IANA Naming Function Review Bylaws is “an essential step in furthering the implementation of the recommendations of the first IANA Naming Function Review (IFR) team, as Recommendation 3 of the IFR identified changes necessary to Article 18 of the ICANN Bylaws. As well as the additional proposed changes to Articles 18 and 19, which serve to: (1) addressing a 2019 request from the Registries Stakeholder Group on updating the geographic diversity selection requirements for future IFR teams; and (2) clarifying ambiguities on the IFR processes identified through the first running of an IFR after the IANA Stewardship Transition.” The Bylaws changes aim to clearly set out the expected process as designed during the IANA Stewardship Transition Process, and do not represent a change to any of these processes.

  • Council will vote on the fundamental Bylaws amendments, which requires a simple majority to pass.
• Item 5: COUNCIL UPDATE - EPDP on Internationalized Domain Names Phase 1 Final Report
  • On 24 April 2023, the EPDP Team published its Phase 1 Initial Report, which contains 68 recommendations for Public Comment. The Working Group reviewed the public comments, adjusted its report in light of the comments received, and the Final Report has received the full consensus of the Working Group.
  • Council will receive a briefing on the EPDP - IDN Phase 1 Final Report (Slides) with the expectation that the report can be voted on during the subsequent Council meeting.
• Item 6: COUNCIL DISCUSSION - Updates on Status of Data Processing Agreement (DPA) negotiations and Registration Data Accuracy

           (i) DPA Negotiations 

• • On 3 August 2023, the GNSO Council sent a letter to ICANN org and the chairs of the Registrar Stakeholder Group and Registries Stakeholder Group, notifying them of the Council’s decision to extend consideration of the Registration Data Accuracy Scoping Team recommendations until certain dependencies are met. The dependencies referenced include both (i) the outcome of the work by ICANN org on the scenario(s) in which the request and processing of registration data takes place and (ii) the finalization of the Data Processing Agreement (DPA).
  • ICANN org together with the chairs of the Registrar Stakeholder Group and Registries Stakeholder Group provided a response on 16 October 2023, notifying the Council that the “parties agreed that these agreements would take the form of a specification that may be added to the Registry Agreement (RA) and Registrar Accreditation Agreement (RAA), and as such we refer to them as the ‘Data Processing Specification’ or ‘DPS.’”
  • ICANN org noted that it has informed the Contracted Party House (CPH) Negotiating Team that its goal is to complete the negotiations, which include resolution of a few remaining items, by the end of the calendar year, with the eventual aim to have the DPS available for use by registrars and registries for the beginning of the Registration Data Policy implementation window.

          (ii) Registration Data Accuracy

• • The Registration Data Accuracy (RDA) Scoping Team was initiated by the GNSO Council in July 2021 per the formation instructions. The Scoping Team was tasked with considering a number of accuracy-related factors such as the current enforcement, reporting, measurement, and overall effectiveness of accuracy-related efforts. These considerations are to help inform the team’s deliberations and development of recommendations to the GNSO Council on whether any changes are recommended to improve accuracy levels, and, if so, how and by whom these changes would need to be developed (for example, if changes to existing contractual requirements are recommended, a PDP or contractual negotiations may be necessary to effect a change). 
  • The Scoping Team completed Assignment #1 (enforcement and reporting) and Assignment #2 (measurement of accuracy) and submitted its write up to the Council on 5 September 2022. In the write up, the group is suggesting moving forward with two proposals that would not require access to registration data, namely a registrar survey (recommendation #1) and a possible registrar audit (recommendation #2) that may help further inform the team’s work on assignment #3 (effectiveness) and #4 (impact & improvements), while it awaits the outcome of the outreach to the European Data Protection Board (EDPB) by ICANN org in relation to proposals that would require access to registration data (recommendation #3). 
  • As has been communicated previously, Michael Palage has confirmed his resignation as Chair of this group to the Council. The Council will need to consider the proper timing for identifying a new Chair for this effort.
  • ICANN org provided a verbal update to the Council during the 20 April meeting. During its meeting on 20 June 2023, the Council voted to extend the deferral of the consideration of recommendations #1 and #2, pending resolution of recommendation #3 (pausing the work on proposals that require access to registration data until there is clarity from ICANN org on if/how it anticipates the requesting and processing of registration data to be undertaken in the context of measuring accuracy). 
  • On 19 October 2023, ICANN org provided an update on Registration Data Accuracy efforts. 
  • Council will discuss these updates and determine if further outreach is needed for either of the items at this time.
• Item 7: COUNCIL DISCUSSION - ICANN Board Action on the Final Report of the Cross-Community Working Group on New gTLD Auction Proceeds (CCWG-AP)

  • On 12 June 2022, the ICANN Board accepted all recommendations in the Final Report of the Cross-Community Working Group on New gTLD Auction Proceeds (CCWG-AP).

  • The CCWG-AP's Recommendation 7 states in relevant part "Existing ICANN accountability mechanisms such as IRP or other appeal mechanisms cannot be used to challenge a decision from the Independent Project Applications Evaluation Panel to approve or not approve an application. Applicants not selected should receive further details about where information can be found about the next round of applications as well as any educational materials that may be available to assist applicants. The CCWG recognizes that there will need to be an amendment to the Fundamental Bylaws to eliminate the opportunity to use the Request for Reconsideration and Independent Review Panel to challenge grant decisions." The CCWG-AP also issued guidance to the Board that after reviewing how other entities dealt with appeals, that allowing appeals appeared to add too much complexity.

  • The Board's June 2022 decision reflected the Board's initial agreement with the CCWG-AP's conclusion that a Fundamental Bylaws change was necessary to implement Recommendation 7 and identified such a Bylaws change as a dependency on the launch of the ICANN Grant Program. Upon further consideration, the Board determined that the CCWG-AP's recommendation to preserve the auction proceeds from being used to defend against usages of ICANN's accountability mechanisms for decisions on individual grant decisions can be implemented in alternative ways, including ways that do not require modification to ICANN's core Bylaws on accountability. As a result, the Board proposed updating its action on Recommendation 7 to reflect that ICANN org should implement this Recommendation 7 directly through the use of applicant terms and conditions rather than through a change to ICANN's Fundamental Bylaws.
  • During its meeting on 26 October 2023,  the ICANN Board passed a resolution, revisiting its 12 June 2022 decision on Recommendation 7 of the Cross-Community Working Group on New gTLD Auction Proceeds (CCWG-AP) and issues the Revised Scorecard - CCWG on Auction Proceeds Final Report Recommendations – Board Action ("Revised Scorecard"), removing the requirement and dependency that a Fundamental Bylaws Amendment is required prior to the launch of the ICANN Grant Cycle, though the amendment would nevertheless be pursued. 
  • Council will discuss the Board action and determine if further action is needed.
• Item 8: COUNCIL DISCUSSION - Consider whether further work is needed after ICANN org outreach to European Network Information Security Agency (ENISA) 
  • During the Council’s extraordinary meeting on 5 June 2023, Thomas Rickert introduced an area for further Council discussion. Specifically, the European Union's Second Network and Information Systems Directive (“NIS2”) entered into force on 16 January 2023. Article 28, subsection 3 provides, "Member States shall require TLD name registries and the entities providing domain name registration services, those are registrars, resellers and privacy and proxy services, to have policies and procedures, including verification procedures in place to ensure that the databases referred to in paragraph 1 include accurate and complete information. Member States shall require such policies and procedures to be publicly available." Additionally, the corresponding recital number 111, provides, in part, “Those policies and procedures should take into account to the extent possible the standards developed by the multi-stakeholder governance structures at the international level." 
  • There was a suggestion by some Councilors to consider informal options of responding to the recital text to highlight the standards that are currently applicable. The Council formed a small team to further consider this effort; however, after hearing an update from ICANN org noting that ICANN org was already in the process of reaching out to the Network and Information Systems Cooperation Group Work Stream for art.28 NIS2, the Small Team agreed to await the draft from ICANN org instead of independently reaching out. The Small Team additionally noted that ICANN org was the appropriate entity to deliver this message, rather than the GNSO Council, but the Small Team requested ICANN org share the draft communication with the GNSO Council for an additional review prior to sending the communication. ICANN org shared its draft communication on 19 October 2023. 
  • Council will discuss any further work is needed.
• Item 9: ANY OTHER BUSINESS 

  • 9.1 SPS Planning

  • 9.2 Confirmation of RDRS Chair

  • 9.3 Update on Public Comment on Pilot Holistic Review - Terms of Reference

  • 9.4 Update on GAC Communique Update

Records of 16 Nov 2023 Meeting

• Audio Recording
• Zoom Recording (includes chat and visual and rough transcript. To access the rough transcript, select the Audio Transcript tab)
• Transcript
• Minutes

Special Summary Report of 16 Nov 2023 Meeting to ALAC

For brevity, I will just highlight a few things here. For some of the issues, you can glean a wider perspective from GNSO Council Nov 2023 Matters of Interest and/or from GNSO Council Nov 2023 Meeting Records.

1. Fundamental Bylaws Amendments to Articles 18 and 19 of the ICANN Bylaws

• Council unanimously passed the motion to adopt the said Fundamental Bylaws Amendments.

2. EPDP on Internationalized Domain Names (EPDP on IDNs)

• Council received a presentation on the Phase 1 Final Report of the EPDP on IDNs and after having a series of question answered, will move to vote on whether to adopt all the report's policy recommendations related to variant management at the top-level, at its next meeting.

3. Status of Data Processing Agreement (DPA) negotiations and Registration Data Accuracy

• Council was informed that in relation to that ICANN org and Contracted Parties' negotiations on a DPA has reached an agreement that would take the form of a specification that may be added to the Registry Agreement (RA) and Registrar Accreditation Agreement (RAA), and as such we refer to them as the ‘Data Processing Specification’ or ‘DPS'.
  • The DPA, or now the DPS, is meant to be the replacement for the Temporary Specification for gTLD Registration Data which established temporary requirements to allow ICANN and gTLD registry operators and registrars to continue to comply with existing ICANN contractual requirements and community-developed policies in light of the GDPR - General Data Protection Regulation requiring the redaction of certain registration data. 
• Based on this, Council opted to wait for the draft DPS to be put out for public comment before considering the need for further action.

4.  ICANN Board Action on the Final Report of the Cross-Community Working Group on New gTLD Auction Proceeds (CCWG-AP)

• Concerns remained among councilors over the ICANN Board's 26 Oct resolution, revisiting its 12 June 2022 decision on Recommendation 7 of the CCWG-AP and issuance of the Revised Scorecard - CCWG on Auction Proceeds Final Report Recommendations – Board Action ("Revised Scorecard"), which removes the requirement and dependency that a Fundamental Bylaws Amendment is required prior to the launch of the ICANN Grant Cycle. This is despite the Board indicating that the Bylaw amendment would nevertheless be pursued over time.
• Council discussed the possibility of filing a Request for Reconsideration (RfR) on this Board decision but acknowledged that the time limit for filing RfR would be too short for Council to act on. 
• Council was informed by IPC Councilor Damon Ashcraft that IPC is already working on filing such an RfR, to which Council indicated that it would consider supporting such an RfR after having reviewed the same.

Action by ALAC Liaison

• •  Relayed the ALAC's position on the Board approach to CCWG-AP Rec 7 per its 26 Oct resolution.

"Greg (DiBiase, GNSO Chair) had during ICANN78 asked me if the ALAC had a position on the Board's action on CCWG-AP Rec 7. The answer is the ALAC has no objections to the Board's approach for that Rec per their 26 Oct resolution. The key reason is that the ALAC would like to see the ICANN Grant Program proceed to launch without the Bylaw amendment being a dependency, noting that the intention to limit access to Accountability Mechanism is addressed alternatively and the Board is looking at a potentially more complete/permanent solution for post-Cycle 1 grants."

5. ICANN org outreach to European Network Information Security Agency (ENISA)

• There was general consensus among councilors that it was not necessary for GNSO Council to, independently, intervene or further act on the communication from ICANN org to the ENISA Network and Information Systems Cooperation Group Work Stream for art.28 NIS2.

6. Holistic Review Revised Terms of Reference

• Council is working on a comment to this Terms of Reference.