2023-02-15 SOI Taskforce - Meeting #18

Notes/ Action Items

ACTION ITEMS: TF members to consult with their groups and:

1. Review the question for ICANN Legal and provide comments/suggestions: "Is there a case where under international or local law where a lawyer or consultant is prohibited from obtaining an informed consent of their client to disclose their representation in a given GNSO effort?"
2. Consider whether it would be helpful to run a trial with the two current PDPs and see if there are any issues/concerns;
3. In response to requests from staff, provide feedback from their group on the exemption language if they have not already done so.

Notes: 

1. Welcome

2. Consider input provided on SOI exemption language and path forward

See the input in the google doc at: https://docs.google.com/document/d/1aFuwubJUiIbXjui9mT6M9n1iSd-N_puL/edit [docs.google.com].

Discussion:

• Staff made some updates following the last call.
• James Bladel made suggestions on behalf of the RrSG.
• Karen Day made suggestions on behalf of the RySG.
• Suggestions are to remove the exemption language.
• James: Surprised at the vigorous reaction from the registrars re: the necessity of naming the entity. Concerns about state actors or pseudo governments participating.  Strongly believe that the exemption contradicts the purpose of the SOI.
• Karen: The example from the last call – representing a large US-based entity in the entertainment industry: if you have four people who say that, how do you know they aren’t representing the same company.  Also with the GAC, need to know the country.  Finally, the example that we should be able to ask the client to disclose themselves since we aren’t asking them to disclose their whole client list.
• Susan Payne, IPC: Our position has not changed – oppose the suggested change and can’t see where there is a compromise, so what happens next?
• Next steps are to go back to the CCOICI to seek their guidance, then it could go to the Council.  The Council can vote on recommendations that don’t have full consensus, but we aren’t there yet.  But will also need to hear from the other groups represented on the TF – send out an email asking for positions to document them.  Include these in the annex of the report.
• James: Would it be possible to get guidance from ICANN legal to address the concerns around having this exemption – that is, how to address them without the exemption?  Feedback is that this exemption calls into question of why we have the SOI – why the SOI has value.
• Marika: Happy to take the question back to ICANN Legal but helpful if you (James) could frame the question.
• Susan: Think it would be a minority to which this exemption would apply – don’t think we should be scrapping the SOI because of it.
• Marika: Could we implement the SOI as a pilot and see if any are prevented from participating and why?
• Berry: No matter what happens a pilot is almost a necessity.  Going back to the basis for an SOI, if we go back to the history SOIs were provided under the DNSO and early GNSO because of transparency requirements in the Bylaws and GNSO Operating Procedures.  With PDP 3.0, we have been trending to a representative model – the SOI in its current form was designed around the open (not representative) model.  It is typically PDPs where the SOI has the biggest weight, but in a representative model wonder if it is as necessary, because in a representative model a participant is participating as a representative of the person’s group, not his or her company.
• What is driving this as we move away from the open model and to a representative model, that’s why it is worth highlighting the interest – but maybe the answer is that we sunset the SOI and the group states who their participant represents.  In this case it’s up to the individual to decide to take advantage of the exemption, and then we don’t know what we don’t know.
• Karen: Two questions: 1) does staff know if there are enough efforts in the queue that we can run a pilot without upsetting things; 2) under a represented model we could eliminate the SOI if we let the group vet the participant, but if we have groups aligned they could pick representatives who represent the same interests and we would have no way of knowing – how does this address transparency as required in the Bylaws.
• Marika: There are two ongoing PDPs (Transfers and IDNs) that could be used for a pilot; in a representative model it is the responsibility of the group to vet, but we don’t always use that model.
• Karen: I think the question to ICANN Legal would be something like "Is there a case where under international or local law where a lawyer or consultant is prohibited from obtaining an informed consent of their client to disclose their representation in a given GNSO effort?"
• Susan: There is a presumption that the model going forward will be representative, but that’s not what PDP 3.0 said – there were more than one model.  The Transfer Policy Review wouldn’t have had to have been representative; in any case the Council can make the determination of what model is best.  If we are moving to a representative model it’s even more important to have the SOI.  This is all based on trust, but there is a bit more than that required.  If it doesn’t hold up there is an escalation process that could result in exclusion from the process.
• Manju: Noted that the NCSG rep has not been active – is this group okay for me to remove my liaison hat and provide the NCSG’s position?
• Marika: Staff always welcomes more input.
• Susan: On the face of it, it would be great to have the input from the NCSG, but it would be giving you (Manju) more work – also complicates your chairing of the CCOICI.
• Karen: As long as the CCOICI is okay with you (Manju) switching hats it would be great to have the input.

ACTION ITEMS: TF members to consult with their groups and:

1. Review the question for ICANN Legal and provide comments/suggestions: "Is there a case where under international or local law where a lawyer or consultant is prohibited from obtaining an informed consent of their client to disclose their representation in a given GNSO effort?"
2. Consider whether it would be helpful to run a trial with the two current PDPs and see if there are any issues/concerns;
3. In response to requests from staff, provide feedback from their group on the exemption language if they have not already done so.

3. Outstanding items: SOI Samples

• Still awaiting examples.

4. Confirm next steps

1. Get feedback on the Legal and pilot questions;
2. Go back to the TF asking for positions to be documented, include them in the annex of the report;
3. Send the report to the CCOICI and seek guidance;
4. Put the recommendations to the Council for a vote – Council can vote on recommendations (simple majority) that don’t have full consensus.

5. Next Meeting: Schedule the next meeting in two weeks on 01 March at 1400 UTC.