Input from ICANN Board

GNSO COUNCIL QUESTIONS FOR ICANN BOARD

EPDP Outcome

1. What is the intent of the EPDP? Is it simply to confirm the Temporary Specification, or something more? What room is there in scoping to anticipate that the EPDP may conclude that the Temporary Specification cannot be confirmed “as is”, and make changes in order to achieve consensus policy?

There is room for various outcomes: confirming temporary specification; developing a different approach from what is established in the temporary specification; addressing additional issues that are not specifically identified in the temporary specification but for example, the annex. The EPDP is for the GNSO Council to manage, but the Board stands ready to assist as needed. Any outcome will obviously need to comply with the law. 

2. What happens if the GNSO is not able to reach consensus at the end of the 1 year period?

The Board will explore other ways forward. Absent another way forward, there are things that automatically occur at the end of the 12 month period, the temp spec would no longer be in force. Review throughout the 12 month period how things are going, would allow Board to explore alternative ways forward which could potentially buy more time. The longer it takes, the greater the likelihood is that decisions are taken outside of ICANN. If community wants to be in control, it needs to work in a timely manner. 

Temporary Specification Effective Date/Expiration

1. Does the initial 90-day (and maximum one-year) period - and thus the maximum timeline for the GNSO’s policy work - commence on 17 May (date of Board resolution) or 25 May (effective date of the temporary specification)? We note that the operative language from the RAA/RA specifies that “In establishing any Temporary Policy, the Board shall state the period of time for which the Temporary Policy is adopted and shall immediately implement the Consensus Policy development process set forth in ICANN's Bylaws”, and the Board resolution is clear that the specification is effective beginning on 25 May. This could be interpreted to mean that the one-year clock starts from the effective date of the specification rather than Board action via resolution, which is a difference of 8 days.

25 May 2018 is the starting point, so 1 year period would end on 24 May 2019. Up to the Council to decide when to start, but regardless, process has to complete by 24 May 2019. 

2. How is the re-confirmation process expected to occur as the temporary policy is only valid for 90 day intervals?

The Board will hold meetings at 90 day intervals and review prior to each meeting whether there is any new guidance that may require changes, followed by renewal of temporary specification for another 90 days. Changes may need to happen outside of that cycle. 

Temporary Specification Amendments

1. What happens should the Board decide to either modify the Temporary Specification or completely replace the temporary specification by a new one at a later point in time? Does this change the scope of the ongoing EPDP (note: Council does not intend to run multiple EPDPs simultaneously), and if so, how is the EPDP expected to deal with such changes while it may be half way through its process?

If there is an amendment to the temporary spec, the circumstances need to be considered. An amendment in month 1 may be dealt with differently compared to an amendment in month 11. Similarly, the type of amendment - minor or substantial. It may also be possible that a new temporary spec is triggered on a certain issue that, in theory, would trigger a new PDP, although it might be possible to fold this into the existing PDP. Flexibility is key, need timely communication to ensure that the appropriate approach can be considered factoring in all circumstances. The Board does not want to use the temporary specification approach unless absolutely necessary, for example when guidance is received from DPAs that certain elements would need to be changed. 

Effect of Ongoing Court Cases

1. As evidenced by the recent legal action involving EPAG, there are parties who believe aspects of the Temporary Specification as written are not compliant with the GDPR. How does the Board think the GNSO Council should approach this matter when structuring and scoping the PDP?

Ongoing court cases may have an impact on issues, but the EPDP Team is not expected to deliberate on these issues unless these are reflected in the temporary specification.