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Now GNSO mulls emergency response to GDPR deadline

Kevin Murphy, April 16, 2018, Domain Policy

ICANN’s GNSO Council is thinking about deploying a never-before-used emergency mechanism to develop a Whois privacy policy in response to GDPR.

With the May 25 deadline for compliance with the EU’s General Data Protection Regulation fast approaching, the community is scrambling to figure out how it can bring ICANN’s policies and therefore its contracts into line with the Draconian privacy provisions of the new law.

Currently, ICANN contracts with registries and registrars demand the publication of full Whois records, something GDPR will not permit, so each company in the industry is busily figuring out how its own Whois database will comply.

Fearful of a “fragmented” Whois, ICANN’s board of directors is considering deploying its own top-down emergency measure — called a Temporary Policy in its contracts — to ensure uniformity across its contracts.

CEO Goran Marby revealed to DI earlier this month that a Temporary Policy was being considered, and he and other members of the board confirmed as much to GNSO leadership during a telephone briefing last week.

(It should be noted that the call took place prior to the receipt last week of guidance from the EU Article 29 Working Party, which prompted ICANN to start mulling legal options as one way to buy the industry some time to comply post-May.)

The call (recorded here with password Eur3wiEK and summarized in this letter (pdf)), focused almost exclusively on how the Council could respond to a board-mandated Temporary Policy, with the board suggesting a GNSO Expedited Policy Development Process might be the best way to proceed.

A Temporary Policy would expire within a year, so the GNSO would have to come up with a formal Consensus Policy within that time-frame if ICANN were to have any hope of having a uniform view of Whois across its contracts.

The Temporary Policy is a “strong option” for the board, and a “highly likely or likely” outcome, but nothing has been formally decided, the GNSO leaders heard from ICANN vice-chair Chris Disspain. He was briefly challenged by Marby, who appeared somewhat more committed to the move.

While the GNSO Council has not yet formally decided to deploy the EPDP, it appears to be the most-feasible option to meet the deadline a Temporary Policy would impose.

It is estimated that an EPDP could take as little as 360 days, compared to the estimated 849 days of a regular PDP.

The EPDP cuts out several of the initial steps of a regular PDP — mainly the need for an Initial Report and associated public comment period — which by my reading would shorten the process by at least 100 days.

It also seems to give the GNSO some wriggle room in how the actual policy creation takes place. It appears that the regular “working group” structure could be replaced, for example, with a “drafting team”.

If the EPDP has the Temporary Policy and WP29 guidance as its baseline for discussions, that could also help cut out some of the circular argument that usually characterizes Whois discussions.

Aware that the EPDP is a strong possibility, the Council is currently planning to give itself a crash course in the process, which has never been used before by any iteration of the Council.

It’s uncharted territory for both the GNSO and the ICANN board, and the only people who seem to have a firm grasp on how the two emergency mechanisms slot together are the ICANN staffers who are paid to know such things.

UPDATE: A couple of hours after this article was published, ICANN posted this three-page flow-chart (pdf) comparing EPDP to PDP. Lots of luck.

Community calls on ICANN to cut staff spending

Kevin Murphy, March 11, 2018, Domain Policy

ICANN should look internally to cut costs before swinging the scythe at the volunteer community.

That’s a key theme to emerge from many comments filed by the community last week on ICANN’s fiscal 2019 budget, which sees spending on staff increase even as revenue stagnates and cuts are made in other key areas.

ICANN said in January that it would have to cut $5 million from its budget for the year beginning July 1, 2018, largely due to a massive downwards revision in how many new gTLD domains it expects the industry to process.

At the same time, the organization said it will increase its payroll by $7.3 million, up to $76.8 million, with headcount swelling to 425 by the end of the fiscal year and staff receiving on average a 2% pay rise.

In comments filed on the budget, many community members questioned whether this growth can be justified.

Among the most diplomatic objections came from the GNSO Council, which said:

In principle, the GNSO Council believes that growth of staff numbers should only occur under explicit justification and replacements due to staff attrition should always occur with tight scrutiny; especially in times of stagnate funding levels.

The Council added that it is not convinced that the proposed budget funds the policy work it needs to do over the coming year.

The Registrars Stakeholder Group noted the increased headcount with concern and said:

Given the overall industry environment where organizations are being asked to do more with less, we are not convinced these additional positions are needed… The RrSG is not yet calling for cuts to ICANN Staff, we believe the organization should strive to maintain headcount at FY17 Actual year-end levels.

The RrSG shared the GNSO Council’s concern that policy work, ICANN’s raison d’etre, may suffer under the proposed budget.

The At-Large Advisory Committee said it “does not support the direction taken in this budget”, adding:

Specifically we see an increase in staff headcount and personnel costs while services to the community have been brutally cut. ICANN’s credibility rests upon the multistakeholder model, and cuts that jeopardize that model should not be made unless there are no alternatives and without due recognition of the impact.

Staff increases may well be justified, but we must do so we a real regard to costs and benefits, and these must be effectively communicated to the community

ALAC is concerned that the budget appears to cut funding to many projects that see ICANN reach out to, and fund participation by, non-industry potential community members.

Calling for “fiscal prudence”, the Intellectual Property Constituency said it “encourages ICANN to take a hard look at personnel costs and the use of outside professional services consultants.”

The IPC is also worried that ICANN may have underestimated the costs of its contractual compliance programs.

The Non-Commercial Stakeholders Group had some strong words:

The organisation’s headcount, and personnel costs, cannot continue to grow. We feel strongly that the proposal to grow headcount by 25 [Full-Time Employees] to 425 FTE in a year where revenue has stagnated cannot be justified.

With 73% of the overall budget now being spent on staff and professional services, there is an urgent need to see this spend decrease over time… there is a need to stop the growth in the size of the staff, and to review staff salaries, bonuses, and fringe benefits.

NCSG added that ICANN could perhaps reduce costs by relocating some positions from its high-cost Los Angeles headquarters to the “global south”, where the cost of living is more modest.

The ccNSO Strategic and Operational Planning Standing Committee was the only commentator, that I could find, to straight-up call for a freeze in staff pay rises. While also suggesting moving staff to less costly parts of the globe, it said:

The SOPC – as well as many other community stakeholders – seem to agree that ICANN staff are paid well enough, and sometimes even above market average. Considering the current DNS industry trends and forecasts, tougher action to further limit or even abolish the annual rise in compensation would send a strong positive signal to the community.

It’s been suggested that, when asked to find areas to cut, ICANN department heads prioritized retaining their own staff, which is why we’re seeing mainly cuts to community funding.

I’ve only summarized the comments filed by formal ICANN structures here. Other individuals and organizations filing comments in their own capacity expressed similar views.

I was unable to find a comment explicitly supporting increased staffing costs. Some groups, such as the Registries Stakeholder Group, did not address the issue directly.

While each commentator has their own reasons for wanting to protect the corner of the budget they tap into most often, it’s a rare moment when every segment of the community (commercial and non-commercial, domain industry and IP interests) seem to be on pretty much the same page on an issue.

Election season at ICANN

Kevin Murphy, October 4, 2017, Domain Policy

Two significant votes are coming up soon in the ICANN community, with the GNSO Council looking for a new chair and the ccNSO ready to select a new appointee for the ICANN board of directors.

The ccNSO election will see an actual contest for what is believed to be the first time, with at least two candidates fighting it out.

The GNSO vote is rather less exciting, with only one candidate running unopposed.

It seems Heather Forrest, an intellectual property lawyer, occasional new gTLD consultant, and professor at the University of Tasmania, will replace GoDaddy VP of policy James Bladel as Council chair a month from now.

Forrest, currently a vice-chair, was nominated by the Non-Contracted Parties House.

The Contracted Parties House (registries and registrars), evidently fine with Forrest taking over, decided not to field a candidate, so the November 1 vote will be a formality.

In the ccNSO world, the country-codes are electing somebody to take over from Mike Silber on the ICANN board, a rather more powerful position, when his term ends a year from now.

Nominations don’t close until a week from now, but so far there are two candidates: Nigel Roberts and Pierre Ouedraogo.

Roberts, nominated for the job by Puerto Rico, runs a collection of ccTLDs for the British Channel Islands.

Ouedraogo is from Burkina Faso but does not work for its ccTLD. He is a director of the Francophone Institute for Information and New Technologies. He was nominated by Kenya.

Both men are long-time participants in ICANN and the ccNSO.

Roberts, who currently sits on the ccNSO Council, tells me he believes it’s the first time there’s been a contested election for a ccNSO-appointed ICANN board seat since the current system of elections started in 2003.

Silber has been in the job for eight years and is term-limited so cannot stand again. The other ccNSO appointee, Chris Disspain, will occupy the other seat for another two years.

Crocker: no date on next new gTLD round

Kevin Murphy, July 27, 2017, Domain Policy

ICANN will NOT set a date for the next round of new gTLD applications, despite recent pleas from registry operators.

That’s according to a letter (pdf) from ICANN chair Steve Crocker to the Registries Stakeholder Group published today.

The RySG had asked (pdf) last month for ICANN’s leadership to set a fourth-quarter 2018 deadline for the next application window.

It said that that drawing a line in the sand would allow potential applicants to plan and would prevent current policy-development processes from being abused to delay the next round.

But Crocker says in his letter that it is up to the ICANN community, not its board of directors, to determine if and when a new round should commence. He wrote:

Once the community completes its work, the Board will consider the community’s recommendations to introduce additional new gTLDs. Without the final findings and recommendations from the review and PDP, the Board won’t be able to determine what needs to be done prior to the opening of another application process…

The Registry Stakeholder Group’s letter suggests that by setting a date for the opening of another application process, the Board will provide the community with a target date to work toward. Although the Board setting a date would achieve this, doing so might contravene the multi-stakeholder process that allows for the community to have the necessary discussions to arrive at consensus, and to determine the timing of their own work

It seems this is an instance in which the board does not like the idea of setting policy in a top-down manner.

Crocker said the two remaining gating factors for a next round are the consumer choice and competition review of the first round, which is ongoing, and the GNSO’s New gTLD Subsequent Procedures Policy Development Process (PDP).

The PDP has now been going on for 18 months and yet discussions remain at a very early stage, with hardly any preliminary recommendations being agreed upon.

There’s not even agreement on foundational issues such as whether to carry on dividing the program into discreet application rounds or to start a first-come, first-served process.

The RySG had suggested in its letter that the next window could open after certain threshold issues had been resolved but before all policy work was complete, and that at the very least ICANN staff should get to work on a new version of the Applicant Guidebook while the PDP is still ongoing.

But Crocker again responded that the staff cannot get to work on implementation until the board has considered the community’s final recommendations.

ICANN’s most recent estimates for the opening of the next round would see applications accepted in 2020, eight years after the last round.

Bladel quits as Council chair as GoDaddy ruled “ineligible” for election

Kevin Murphy, June 14, 2017, Domain Policy

GNSO Council Chair James Bladel has resigned, after it emerged that GoDaddy, his employer, is not eligible for office under registrar rules.

He will continue to occupy the post on an interim basis until a new election is held.

Bladel was elected to represent the Registrars Stakeholder Group on the Council back in 2013 and was elected by the Council as chair in late 2015.

However, the RrSG has just discovered that he’s actually ineligible for elected office under its charter because GoDaddy is also a dot-brand registry.

The RrSG charter states that in order to avoid conflicts of interest, a registrar that also has a Specification 9 exemption from the registry Code of Conduct in an ICANN registry conduct may not hold office.

GoDaddy signed its .godaddy registry agreement, which includes the Spec 9 exemption, in July 2015. The gTLD is not currently being used.

GoDaddy is of course the largest registrar in the industry, but it appears its ability to wield power in ICANN’s policy-making bodies now appears to be hamstrung by its foray into new gTLDs.

Bladel’s resignation is not expected to have any significant impact on GNSO Council work.

He’s been reappointed by the RrSG executive committee on an interim basis until elections can be held for a replacement. His term is due to expire in November anyway.