[NCSG-PC] Fwd: [council] Update on Closed Generics

[Tomslin Samme-Nlar]

Hi Kathy,

Thanks for the detailed update. We are certainly thankful to you and the
team for the hard work you put into this.

My only concern with the 'recommendation' that the council leadership is
planning on sending to the board is that it appears to make recommendations
contrary to the subpro report. This concern comes strictly from the point
of view of my role as a GNSO policy manager (councillor).

If the SubPro report didn't recommend neither to allow nor ban closed
generics, hence leaving it at the discretion of the board, then I believe
the Council should be careful not to make contradictory statements that
might appear to the community as making an "executive recommendation" to
the board outside the PDP process.

I see a thread has also been spun in the members' list. Perhaps we should
take the discussion there and see what other members think?

Warmly,
Tomslin

On Thu, 17 Aug 2023, 06:58 Kathy Kleiman, <Kathy at kathykleiman.com> wrote:

> Hi Tomslin,
>
> I'm sorry that the Facilitated Dialogue is being viewed by some as a
> failure.  In our Closed Generics Small Team meeting last week, it was made
> very clear to us that the Chairs of the GNSO, GAC and ALAC did not consider
> our work a failure, but a success that resulted in important issues being
> raised. I share the highlights of the "3 Chair Letter" and attach it to
> this email:
>
> - "As the Chairs of the three community groups that agreed to participate
> in this dialog[ue, we are extremely grateful to you as well as very proud
> of how your work is a testament to the robustness and viability of ICANN’s
> multistakeholder model. We would like to thank you all for all the hard
> work, collaborative effort, and time that you have put into this project,
> resulting in a detailed draft framework for potential policy work that
> reflects the many hours of good faith discussions that took place."
>
> - "We noted that there does not seem to be strong community demand for
> closed generic gTLDs in the next round, particularly if success in
> obtaining a gTLD in this category will entail engaging in a complex process
> with complicated requirements."
>
> - "As a result of all these considerations and our discussions, we believe
> that it is not necessary to resolve the question of closed generic gTLDs as
> a dependency for the next round of new gTLDs, and we plan to inform the
> ICANN Board accordingly. We agree with the ICANN Board (in its original
> invitation to the GAC and the GNSO to engage in a facilitated dialogue)
> that this topic is one for community policy work, rather than a decision
> for the Board.
>
> *- As such and based on our collective belief that there is neither the
> need nor the community bandwidth to conduct additional work at this stage,
> we also plan to ask that, for the next round, the Board maintain the
> position that, unless and until there is a community developed consensus
> policy in place, any applications seeking to impose exclusive registry
> access for "generic strings" to a single person or entity and/or that
> person's or entity's Affiliates (as defined in Section 2.9(c) of the
> Registry Agreement) should not proceed. [italics added]*
>
> - "Finally, we also plan to inform the Board that any future community
> policy work on this topic should be based on the good work that has been
> done to date in this facilitated dialogue."
>
> *----------------*
>
>
> *So overall, we were told we did a good job on a tough issue. I think the
> Small Group's Framework advanced the dialogue and our joint understanding
> of the competition problems associated with a single company controlling a
> "closed generic" gTLD significantly.  *
>
> Frankly, I would advise the Council to support the work and words of the
> GNSO Chair, and the recommendation not to proceed with Closed Generic
> applications in the next round under the circumstances as outlined in the
> letter.
>
> I urge you not to join in the criticism of some on the GNSO - excellent
> and hard work was done here - including our GNSO representatives John
> McElwaine, Phillippe Fouquart, Jeff, Sophie and me.  We worked very hard,
> and pushed the understanding of this issues, and ways to address it, to new
> levels.  Our work likely will become the basis of future discussion. But,
> as Chris Disspain said at our second Closed G meeting in ICANN77 (and he
> was on the Board in the first round), not all issues deserve the huge
> amount of time it would take to fully resolve them.
>
> Best regards, Kathy
>
> Attachment: 3 Chairs Letter Aug 5
> On 8/15/2023 4:55 PM, Tomslin Samme-Nlar wrote:
>
> Dear councillors,
>
> What is our stance on this?
>
> 1. Overall, I think the declaration that the Facilitated dialogue on
> Closed generics is a failure is a win to NCSG as we warned council and the
> board against taking this path.
>
> 2. I think the concern Kurt raises that the letter to be addressed to the
> board asking to "*pause any release of closed generics to a future round
> might inadvertently be revising subpro recommendation*"  and that of Anne
> that "*contains a subtle underlying policy recommendation in favor of
> accepting new Closed Generic applications in the next round in the absence
> of developed policy*" are both valid concerns we should pay close
> attention to.
>
> 3. However, I like Anne's proposal that avoids subtly modifying any
> consensus policy. She proposes that "*Perhaps Council should simply
> advise the Board that (1) Based on public comment, the Facilitated Dialogue
> process proved unsuccessful in this instance and (2) Council does not
> believe a further policy process would result in a consensus and therefore,
> the Board should decide the issues, including whether or not to accept
> Closed Generic applications in the next round.*"
>
> What are your thoughts?
>
>
> Warmly,
> Tomslin
>
>
>
> ---------- Forwarded message ---------
> From: Anne ICANN via council <council at gnso.icann.org>
> Date: Tue, 15 Aug 2023 at 02:17
> Subject: Re: [council] Update on Closed Generics
> To: DiBiase, Gregory <dibiase at amazon.com>
> Cc: COUNCIL at GNSO.ICANN.ORG <COUNCIL at gnso.icann.org>, Avri Doria <
> avri.doria at board.icann.org>
>
>
> Thanks Greg - The point you make that there is as yet no official
> statement from Council to the Board on this issue is an important one.    I
> think there is rough consensus at the Council level that we don't want the
> next round to be delayed by this issue.  I think two significant questions
> remain as to the following:
>
> Issue #1. Whether to accept applications for Closed Generics in the next
> round or to pause such applications pending future Board action or GNSO
> policy development efforts.  The draft  statements put forward so far would
> endorse accepting applications and that is also a policy statement which
> essentially defines the "status quo" as permitting such applications.
> (After all, closed generic applications could block open generic
> applications in that instance.)   This is tricky because the GAC has
> reiterated that its previous  Closed Generic advice is "standing advice".
> Would it be a solution for the Board to simply accept that advice in
> relation to a Closed Generic application and then accept applications in
> the next round but  require the Applicant to prove that the application
> serves a public interest goal without specifying any standards that apply
> for that proof? Or could the Board say that it cannot accept the advice
> from the GAC because it would require ICANN to weigh the content of the
> Closed Generic application and to police the public interest goal issue
> during the term of the contract award,  meaning the requirement of the GAC
> advice is out of scope for ICANN's mission as overly content -related?
> Maybe the Council should just say "don't delay the next round" and should
> not take a policy position on whether or not to accept Closed Generic
> applications when the next round opens, i.e. leave that to the Board to
> decide that policy issue as well?
>
> Issue #2. Whether the Council itself has taken a decision that it will not
> proceed to develop Closed Generic policy using an existing GNSO policy
> process.  (I think it's possible the Board has the authority to request a
> formal policy process - not sure whether Council has the right to refuse to
> do so.)  Did the Council already decide it would not undertake an existing
> policy process when it authorized the Facilitated Dialogue process? Does
> the statement need to reflect a Council decision in this regard and if so,
> does that need a separate vote from Council?  Are we risking delay of the
> next round over the Council's failure to act on this policy issue?  The
> Board invoked the Facilitated Dialogue process outside normal policy
> development channels but it appears that process failed.
>
> Any thoughts re the above considerations ?
> Anne
>
>
>
> Anne Aikman-Scalese
> GNSO Councilor
> NomCom Non-Voting 2022-2024
> anneicanngnso at gmail.com
>
>
> On Mon, Aug 14, 2023 at 6:51 AM DiBiase, Gregory via council <
> council at gnso.icann.org> wrote:
>
>> Hi Kurt,
>>
>>
>>
>> A couple thoughts here:
>>
>>
>>
>>    1. We have not communicated a decision or feedback to Board yet, so
>>    we have time to discuss our messaging (so far, the SO/AC chairs have sent a
>>    letter to the dialogue participants and the dialogue participants have
>>    agreed with the letter’s sentiment).
>>    2. I think council is in agreement that work on closed generics
>>    cannot be a dependency for the next round and the Facilitated Dialogue on
>>    Closed Generic gTLDs should not continue to be the vehicle advancing this
>>    work (please let me know if I’m oversimplifying).  If this is correct, I
>>    think we can simplify this issue to: how or if we should frame the “status
>>    quo” to the Board.  More specifically, we can take a closer look at this
>>    proposed language from the letter to the dialogue participants:
>>       1. “until there is community-developed policy, the Board should
>>       maintain the position from the 2012 round (i.e., any applications seeking
>>       to impose exclusive registry access for "generic strings" to a single
>>       person or entity and/or that person's or entity's Affiliates (as defined in
>>       Section 2.9(c) of the Registry Agreement) should not proceed;”
>>    3. Perhaps we should modify this part to say closer to: “given that
>>    there is no community-developed policy on closed generics (i.e., any
>>    applications seeking to impose exclusive registry access for "generic
>>    strings" to a single person or entity and/or that person's or entity's
>>    Affiliates (as defined in Section 2.9(c) of the Registry Agreement), we
>>    acknowledge that the Board may not allow closed generics to proceed (in
>>    line with their position from the 20201 round) until policy is developed.”
>>    In other words, we don’t need to instruct the Board on what the status quo
>>    is, rather, we are informing them that a policy on closed generics has not
>>    been finalized and we recommend not delaying the next round until this
>>    policy work is completed.
>>
>>
>>
>> I’m sure I have point 3 wrong as I am not as well-versed in subpro as
>> others, but we can discuss further to make sure we are all aligned.
>>
>>
>>
>> Thanks,
>>
>> Greg
>>
>>
>>
>>
>>
>>
>>
>> *From:* council <council-bounces at gnso.icann.org> *On Behalf Of *kurt
>> kjpritz.com via council
>> *Sent:* Sunday, August 13, 2023 7:54 PM
>> *To:* Paul McGrady <paul at elstermcgrady.com>
>> *Cc:* Avri Doria <avri.doria at board.icann.org>; GNSO Council <
>> council at gnso.icann.org>
>> *Subject:* RE: [EXTERNAL] [council] Update on Closed Generics
>>
>>
>>
>> *CAUTION*: This email originated from outside of the organization. Do
>> not click links or open attachments unless you can confirm the sender and
>> know the content is safe.
>>
>>
>>
>> Replying to Paul (Hi Paul):
>>
>>
>>
>> As pointed out by Anne (and Rubens in a parallel email exchange), the
>> question of status quo is not settled. That is the reason the SubPro
>> working group specifically asked the Board to settle the question.
>>
>>
>>
>> The Board essentially created a new, temporary policy when it introduced
>> an additional restriction into the criteria for delegating new TLDs. (I say
>> temporary because the restriction was time-limited in a way.)
>>
>>
>>
>> The SubPro final report does not recommend an extension of that
>> restriction by way of a “pause,” the report specifically recommends
>> something else. By recommending a pause, the SO/AC leadership would be
>> amending the final report recommendation.
>>
>>
>>
>> I wish I could be clearer. That somehow eludes me at the moment.
>>
>>
>>
>> Kurt
>>
>>
>>
>>
>>
>>
>>
>> On 11 Aug 2023, at 3:37 am, Anne ICANN <anneicanngnso at gmail.com> wrote:
>>
>>
>>
>> Hi Kurt and Paul,
>>
>>
>>
>> As I see it, the issue has come back to what constitutes the "status
>> quo".  This issue was hotly debated in the Sub Pro Working Group.  Some
>> maintained that there was no prohibition on the applications for Closed
>> Generics because none was contained in the 2012 AGB. Others maintained that
>> due to the GAC Advice and Board direction to "pause" pending policy
>> development, the "status quo" is actually a "pause" which would be
>> continued at the start of the next round.  The risk I see for the ICANN
>> Board in the latter situation is that those existing applications for
>> Closed Generics (which are on hold) as well as any future applications to
>> be taken in the next round (not prohibited by this recommendation) would
>> build a case for Request for Reconsideration if the Board does not allow
>> those applications to move forward.  For example, the grounds might be
>> Applicant Freedom of Expression under the Human Rights Core Value and the
>> underlying principle of Applicant Freedom of Expression that has been
>> affirmed by subsequent PDP work and is now being confirmed in the Sub Pro
>> IRT process.
>>
>>
>>
>> Another factor is that the Board has consistently declined to make
>> policy.  And I'm not certain that the GNSO Council actually has the
>> authority to direct the Board to make a Closed Generic policy.  Are you
>> gentlemen certain that this is kosher?
>>
>>
>>
>> Certainly I agree this issue should not hold up the next round but of
>> course there is a year to go.  If the Board is willing to take a decision
>> on this, that is one scenario.   If the Board is not willing to take a
>> decision on this and/or is concerned about the risk of expensive litigation
>> over a possible ban, then that is another scenario.  Has anyone spoken with
>> our Sub Pro Board reps about this approach?  (They are copied here.)
>>
>>
>>
>> Thank you,
>>
>> Anne
>>
>>
>>
>> Anne Aikman-Scalese
>>
>> GNSO Councilor
>>
>> NomCom Non-Voting 2022-2024
>>
>> anneicanngnso at gmail.com
>>
>>
>>
>>
>>
>> On Thu, Aug 10, 2023 at 10:15 AM Paul McGrady via council <
>> council at gnso.icann.org> wrote:
>>
>> Hi Kurt,
>>
>>
>>
>> Thanks for this.  I’m not sure I am understanding your concern.  One of
>> the basic tenants that everyone in the SubPro PDP agreed to was that,
>> absent any changes captured in the Recommendations, that the status quo
>> would prevail.  All the letter does is ask for that.  I feel better about
>> sticking with the WG’s inability to change the status quo than I do asking
>> the Board to write a policy when the community couldn’t agree to anything,
>> even after two valiant efforts.  We tried in the WG, we couldn’t get there,
>> the status quo should prevail.  We tried again at the request of the Board
>> at the SO/AC level, we couldn’t get there, the status quo should prevail.
>> The letter leaves open the possibility of future community work on this but
>> notes there is no bandwidth or appetite to do so and we don’t want the next
>> round held up.  Help me understand you concern about asking the Board to
>> maintain the status quo until/if the community comes up with a policy on
>> these.
>>
>>
>>
>> Best,
>>
>> Paul
>>
>>
>>
>>
>>
>> *From:* council <council-bounces at gnso.icann.org> *On Behalf Of *kurt
>> kjpritz.com via council
>> *Sent:* Thursday, August 10, 2023 3:45 AM
>> *To:* John McElwaine <john.mcelwaine at nelsonmullins.com>
>> *Cc:* GNSO Council <council at gnso.icann.org>
>> *Subject:* Re: [council] Update on Closed Generics
>>
>>
>>
>> Hi John:
>>
>> Thanks for taking time to make this detailed report, and also thanks to
>> the well-intentioned people that participated in the effort, in particular,
>> our GNSO representatives. I am not surprised by the outcome.
>>
>> I am surprised by the recommendation to pause any release of
>> closed generics to a future round. Such an action would turn the
>> consensus-based policy development process on its head.
>>
>> 1. I don’t understand how the SO/AC leaders have the authority to revise
>> the PDP final report recommendation.
>>
>> The PDP final report (approved by each of the Councillors) stated that
>> the closed generic decision should be left up to the ICANN Board. The
>> final report did not recommend the conflicting direction that the closed
>> generics ban be continued until a future round.
>>
>> The Board made an attempt to (re)involve the community by inviting the
>> GAC and GNSO to develop a solution. With that effort closed, we
>> should revert back to the final report recommendations. We should not
>> change the consensus position developed. Do we think the PDP team would
>> have approved a recommendation to pause closed generics for an additional
>> round? (No.)
>>
>> We have thoroughly discussed the conditions under which a
>> Council approved final report can be changed (e.g., GGP), and this is not
>> one of them.
>>
>>
>>
>> 2.     Continuing the ban on closed generics effectively abandons
>> the consensus policy model of decision making.
>>
>> The new gTLD policy developments, in 2007-8 and 2016-21 have asked the
>> questions: (1) should there be a round of TLDs and, if yes, (2)
>> what restrictions / conditions should be in place to address SSR, IP,
>> and competition concerns.
>>
>> Restrictions and conditions enjoying consensus support were implemented
>> in the program. (An illustrative example is the RPM IRT,
>> whose recommendations were ratified by the community STI.)
>>
>> During discussions on closed generics, there were people for barring
>> them, allowing them, and allowing them with restrictions. Pausing
>> any introduction of closed generics essentially creates a policy advocated
>> by a minority (and in any case not enjoying consensus support). The final
>> report indicated as much.
>>
>> This result provides an incentive to avoid compromise. Going forward,
>> those wanting to implement an unsupported policy can refuse to compromise
>> through a PDP and subsequent ad-hoc discussions with the hope
>> that leadership will “give up” and implement unsupported restrictions.
>>
>> 3.     The decision to ban closed generics for an additional
>> round contradicts the one step the Board took.
>>
>> The Board direction to the GAC-GNSO team established
>> guardrails, prohibiting a model that would either ban or provide for the
>> unrestricted release of closed generics. We cannot be sure this is where
>> the Board will land absent input from the GAC-GNSO effort, but we should
>> not erase the chance that the Board would develop a balanced decision.
>>
>>
>>
>> Two additional points:
>>
>>
>> 1.     I do not believe that deferring the issue to the Board will
>> delay the next round, despite the recent GAC-GNSO detour. The Board has
>> more than a year to make a call.
>>
>>
>> 2.     I do not believe the Board is exceeding their authority in
>> making the call. The GNSO specifically assigned the task to the Board as
>> part of their policy management responsibility. In any event, the Board
>> established that authority when it paused closed generics in 2012,
>> contradicting the Council-approved policy.
>>
>>
>> If given the opportunity to participate in a discussion on this issue, I
>> would oppose the recommendation that the issue should be paused, and
>> closed generics banned for the reasons stated above. I would support the
>> final report recommendation that the issue be decided by the Board.
>>
>>
>> Sincerely,
>>
>> Kurt
>>
>>
>>
>> On 10 Aug 2023, at 7:33 am, John McElwaine via council <
>> council at gnso.icann.org> wrote:
>>
>>
>>
>> Dear Councilors,
>>
>>
>>
>> As GNSO Council liaison to the ALAC-GAC-GNSO Facilitated Dialogue on
>> Closed Generic gTLDs, I wanted to update you on the latest developments on
>> this project. On 7 July 2023, after discussions amongst themselves that I
>> also participated in, Sebastien (in his capacity as GNSO Chair), Jonathan
>> Zuck (ALAC Chair) and Nico Caballero (GAC Chair) sent the attached letter
>> to the participants in the dialogue. For reasons set out in the letter, and
>> in response to questions that the dialogue participants had referred to
>> them (also noted in the letter), the three Chairs have collectively decided
>> that it will be neither necessary to continue with the dialogue to develop
>> a final framework nor initiate further policy development work on this
>> topic.
>>
>>
>>
>> The dialogue participants have discussed the Chairs’ joint letter and
>> agreed to conclude their work as requested, including producing an outcomes
>> report to ensure that the work to date is thoroughly documented.
>> Participants also agreed to forward the Chairs’ letter to all the
>> commenters that submitted input on the draft framework (viz., Tucows, RySG,
>> BC, ISPCPC, ALAC and GAC), and have invited those commenters that wish to
>> engage with the group to join their next call to clarify any significant
>> concerns they raised in the feedback they provided.
>>
>>
>>
>> The staff team that is supporting the dialogue is currently preparing a
>> draft outcomes report for the group to review. The group intends for the
>> outcomes report to serve as an introduction and summary of their work,
>> including expressly clarifying that the draft framework the group published
>> in June 2023 does not reflect agreed outcomes but, rather, was a product of
>> compromise that was reached in the interests of soliciting community
>> feedback on the various elements and points included in the draft
>> framework. The outcomes report will also include all the community feedback
>> that were submitted in full, links to the group’s community wiki space and
>> other relevant documentation, and the participants’ feedback on the
>> consensus building techniques and approaches that were used for the
>> dialogue.
>>
>>
>>
>> The group hopes to wrap up its work by September, in line with its
>> previous plan to conclude the dialogue and final framework by end-Q3 2023.
>> I understand that Sebastien, Nico and Jonathan will also be sending a
>> separate communication to the ICANN Board that reflects the decision they
>> took and, as stated in the letter, expressing the collective view that:
>>
>>
>>
>> (1) closed generic gTLDs should not be viewed as a dependency for the
>> next round;
>>
>> (2) until there is community-developed policy, the Board should maintain
>> the position from the 2012 round (i.e., any applications seeking to impose
>> exclusive registry access for "generic strings" to a single person or
>> entity and/or that person's or entity's Affiliates (as defined in Section
>> 2.9(c) of the Registry Agreement) should not proceed*;* and
>>
>> (3) should the community decide in the future to resume the policy
>> discussions, this should be based on the good work that has been done to
>> date in the facilitated dialogue.
>>
>>
>>
>> Sebastien and I will be happy to answer any questions you may have on the
>> letter, the Chairs’ decision and the proposed next steps. You may also wish
>> to check in with the representatives that each of your Stakeholder Groups
>> appointed to the dialogue for further information.
>>
>>
>>
>> Finally, I am sure I speak for all of us when I say that we are very
>> grateful to the dialogue participants and the staff support team for all
>> the hard work and consensus building that resulted in a detailed and
>> substantive, if preliminary, draft framework. I also hope that the
>> participants’ feedback on the methods and techniques used in the dialogue,
>> as well as other lessons learned from the experience, will provide the GNSO
>> Council and community with useful information that we can put into practice
>> in future policy discussions.
>>
>>
>>
>> Best regards,
>>
>> John
>>
>>
>>
>> *Confidentiality Notice*
>> This message is intended exclusively for the individual or entity to
>> which it is addressed. This communication may contain information that is
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>> <Message from ALAC GAC  GNSO Chairs to Closed Generics Facilitated
>> Dialogue Participants - FINAL - 5 August 2023 (002).pdf>
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