March 2008 - council - lists.icann.org

GNSO Council teleconference MP3 recording March 6, 2008
by GNSO.SECRETARIAT＠GNSO.ICANN.ORG March 6, 2008

March 6, 2008

[To: ga[at]gnso.icann.org; announce[at]gnso.icann.org [To: liaison6c[at]gnso.icann.org; council[at]gnso.icann.org] Please find the MP3 recording of the GNSO Council teleconference, held on March 6, 2008 at: http://audio.icann.org/gnso/gnso-council-20080306.mp3 http://gnso.icann.org/calendar/# Happy listening! -- Glen de Saint Géry GNSO Secretariat - ICANN gnso.secretariat[at]gnso.icann.org http://gnso.icann.org

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FW: [gnso-dt-wg] RE: [council] Motions re Domain Tasting
by Rosette, Kristina March 6, 2008

March 6, 2008

-----Original Message----- From: Rosette, Kristina Sent: Wednesday, March 05, 2008 12:21 PM To: 'Mike Rodenbaugh' Cc: gnso-dt-wg(a)icann.org Subject: RE: [gnso-dt-wg] RE: [council] Motions re Domain Tasting I think the substantive motion is missing some key words. More specifically, shouldn't "to a registrar" and "that registrar's" be inserted to specify applicability? I've inserted them below in CAPS. a. During any given month, an Applicable gTLD Operator may not offer any refund TO A REGISTRAR for any domain names deleted during the AGP that exceed (i) 10% of THAT REGISTRAR'S net new registrations in that month (defined as total new registrations less domains deleted during AGP), or (ii) fifty (50) domain names, whichever is greater. -----Original Message----- From: owner-gnso-dt-wg(a)icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Mike Rodenbaugh Sent: Wednesday, March 05, 2008 11:14 AM To: 'Avri Doria'; 'Council GNSO' Cc: gnso-dt-wg(a)icann.org Subject: RE: [gnso-dt-wg] RE: [council] Motions re Domain Tasting You have it right now Avri, thanks. -Mike -----Original Message----- From: owner-council(a)gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Avri Doria Sent: Wednesday, March 05, 2008 7:53 AM To: Council GNSO Cc: gnso-dt-wg(a)icann.org Subject: Re: [gnso-dt-wg] RE: [council] Motions re Domain Tasting Hi, I see no reason why, if the recommendation from the DT for a constituency and public review of the motion before proceeding is approved, to not also send a request to legal counsel asking for an opinion on whether the motion is within scope. I think it can all be done in parallel and will undertake to make this request if the motion passes. BTW, speaking of this, I believe the motion as listed in the Agenda is not incorrect. In this case it looks like we are being asked to vote on the motion regarding AGP itself as opposed to actually voting on a Motion to send the proposed motion out for a 21 day period during which constituency statements could be updated and public comments could be collected. If I understand correctly, I suggest the following motion is what we are voting on (I have updated the wiki): Whereas, the GNSO Council has discussed the Issues Report on Domain Tasting and the Final Outcomes Report of the ad hoc group on Domain Tasting; Whereas, the GNSO Council resolved on 31 October 2007 to launch a PDP on Domain Tasting and to request Constituency Impact Statements with respect to issues set forth in the Issues Report and in the Final Outcomes Report; Whereas, the GNSO Council authorized on 17 January 2008 the formation of a small design team to develop a plan for the deliberations on the Domain Tasting PDP (the "Design Team"), the principal volunteers to which had been members of the Ad Hoc Group on Domain Tasting and were well-informed of both the Final Outcomes Report of the Ad Hoc Group on Domain Tasting and the GNSO Initial Report on Domain Tasting (collectively with the Issues Report, the "Reports on Domain Tasting"); Whereas, the Design Team has met and agreed on a Draft Motion attached to be set out for public comment and for Constituency Impact review; The GNSO Council RESOLVES: 1. The Draft Motion shall be posted for 21-day public comment on March 7, 2008. Each Constituency shall have 21 days from March 7, 2008 to update its Constituency Impact Statement with respect to this motion, if it so chooses. The deadline for amended Statements shall be March 28, 2008. 2. ICANN Staff please shall provide a summary of any public comments and/or amended Constituency Impact Statements to the Council, via submission of a Final Report with respect to this PDP, by April 4, 2008. 3. The Design Team shall then meet and confer with respect to the Final Report, in order to consider any public comments and/or amended Constituency Impact Statements and to consider any suggested amendments to the Draft Motion, and shall recommend a Final Motion to be considered by Council for vote in its scheduled meeting April 17, 2008. 4. It is the intention of the GNSO for the Staff to produce a Board Report on this PDP for consideration by the ICANN Board, in the hope that the Board may vote on any recommendations of the GNSO with respect to this PDP, at the scheduled ICANN meeting in Paris in June, 2008 <insert text of DNT DT motion> a. On 5 Mar 2008, at 10:14, Tim Ruiz wrote: > The Staff and Counsel may have stated the opinion that tasting was > within scope, but that doesn't mean that every element of any policy > proposal we come up is viable under current contracts. That's all > we're saying. If the Council does send something to the Board it just > seems reasonable that if there is a question about it actually being > implementable that we first try to resolve that.

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New gTLD Policy Report Consideration
by Denise Michel March 6, 2008

March 6, 2008

The attached slides list issues on which ICANN staff would like to update the GNSO regarding new gTLD policy report implementation. Kurt will be prepared to give a brief overview and we can discuss the best way to provide the Council with a more in-depth briefing in the near future. Regards, Denise -- Denise Michel ICANN VP, Policy denise.michel(a)icann.org +1.408.429.3072

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Reminder: GNSO Council call 6 March at 19:00 UTC
by GNSO.SECRETARIAT＠GNSO.ICANN.ORG March 6, 2008

March 6, 2008

Dear All, Please find the agenda with relevant links for the Council call tomorrow, Thursday, 6 March at 19:00 UTC and Friday 7 March for Cambodia, Hong Kong, Singapore and Melbourne. Let me know if you need the dial-in numbers resent. Thanks Glen Item 0: Roll call of Council members (5 mins) Item 1: Update any statements of interest (5 mins) Item 2: Review/amend agenda (5 mins) http://www.gnso.icann.org/meetings/agenda-06mar08.shtml Item 3: Update from Denise Michel on Board activities (15 mins) Item 4: IDNC update - Edmon Chung (10 mins) http://www.gnso.icann.org/drafts/gnso-idnc-initial-report-feb08.pdf Item 5: Report from Domain Name Tasting Design Team (20 mins) Domain Tasting Design Team Motion Revised - 26 February 2008 Whereas, the GNSO Council has discussed the Issues Report on Domain Tasting and the Final Outcomes Report of the ad hoc group on Domain Tasting; Whereas, the GNSO Council resolved on 31 October 2007 to launch a PDP on Domain Tasting; Whereas, the GNSO Council authorized on 17 January 2008 the formation of a small design team to develop a plan for the deliberations on the Domain Tasting PDP (the “Design Team”), the principal volunteers to which had been members of the Ad Hoc Group on Domain Tasting and were well-informed of both the Final Outcomes Report of the Ad Hoc Group on Domain Tasting and the GNSO Initial Report on Domain Tasting (collectively with the Issues Report, the “Reports on Domain Tasting”); Whereas, the GNSO Council has received the Draft Final Report on Domain Tasting; Whereas, PIR, the .org registry operator, has amended its Registry Agreement to charge an Excess Deletion Fee; and both NeuStar, the .biz registry operator, and Afilias, the .info registry operator, are seeking amendments to their respective Registry Agreements to modify the existing AGP; The GNSO Council recommends to the ICANN Board of Directors that: 1. The applicability of the Add Grace Period shall be restricted for any gTLD which has implemented an AGP (“Applicable gTLD Operator”). Specifically, for each Applicable gTLD Operator: a. During any given month, an Applicable gTLD Operator may not offer any refund for any domain names deleted during the AGP that exceed (i) 10% of its net new registrations in that month (defined as total new registrations less domains deleted during AGP), or (ii) fifty (50) domain names, whichever is greater. b. A Registrar may seek an exemption from the application of such restriction in a specific month, upon the documented showing of extraordinary circumstances. For any Registrar requesting such an exemption, the Registrar must confirm in writing to the Registry Operator how, at the time the names were deleted, these extraordinary circumstances were not known, reasonably could not have been known, and were outside of the Registrar’s control. Acceptance of any exemption will be at the sole reasonable discretion of the Registry Operator, however "extraordinary circumstances" which reoccur regularly will not be deemed extraordinary. c. In addition to all other reporting requirements to ICANN, each Applicable gTLD Operator shall identify each Registrar that has sought an exemption, along with a brief descriptive identification of the type of extraordinary circumstance and the action (if any) that was taken by the Applicable gTLD Operator. 2. The above restriction on use of the Add Grace Period shall be considered an “ICANN adopted specification or polic[y] prohibiting or restricting warehousing of or speculation in domain names by registrars” in accordance with Section 3.7.9 of the Registrar Accreditation Agreement. As such, a Registrar that engages in domain tasting, defined as using the AGP to register domain names in order to test their profitability, shall be deemed in material breach of the Registrar Accreditation Agreement. 3. Implementation and execution of these recommendations shall be monitored by the GNSO. Specifically; a. ICANN Staff shall analyze and report to the GNSO at six month intervals for two years after implementation, until such time as the GNSO resolves otherwise, with the goal of determining; i. How effectively and to what extent the policies have been implemented and followed by Registries and Registrars, and ii. Whether or not modifications to these policies should be considered by the GNSO as a result of the experiences gained during the implementation and monitoring stages, b. The purpose of these monitoring and reporting requirements are to allow the GNSO to determine when, if ever, these recommendations and any ensuing policy require additional clarification or attention based on the results of the reports prepared by ICANN Staff. Item 6: Discuss Report on Public Suggestions on Further Studies of WHOIS (20 mins) http://www.gnso.icann.org/issues/whois-privacy/whois-study-suggestion-repor… Item 7: Proposed motion requesting an Issues Report on "fast flux DNS" changes - Mike Rodenbaugh (10 mins) Whereas, "fast flux" DNS changes are increasingly being used to commit crime and frustrate law enforcement efforts to combat crime, with criminals rapidly modifying IP addresses and/or nameservers in effort to evade detection and shutdown of their criminal website; Whereas, the Security and Stability Advisory Committee has reported on this trend in its Advisory SAC 025, dated January 2008: http://www.icann.org/committees/security/sac025.pdf/ Whereas, the SSAC Advisory describes the technical aspects of fast flux hosting, explains how DNS is being exploited to abet criminal activities, discusses current and possible methods of mitigating this activity, and recommends that appropriate bodies consider policies that would make practical mitigation methods universally available to all registrants, ISPs, registrars and registries, Whereas, the GNSO is likely an appropriate party to consider such policies The GNSO Council RESOLVES: ICANN Staff shall prepare an Issues Report with respect to "fast flux" DNS changes, for deliberation by the GNSO Council. Specifically the Staff shall consider the SAC Advisory, and shall outline potential next steps for GNSO policy development designed to mitigate the current ability for criminals to exploit the DNS via "fast flux" IP or nameserver changes. Item 8: Update on Inter-Registrar Transfer Policy PDP (5 mins) Item 9: Update on Inter-Registrar Transfer Policy future PDPs (5 mins) Item 10: Discuss status of draft Bylaws amendment on absentee voting (5 mins) http://gnso.icann.org/drafts/absentee-voting-bylaw-amendment-15feb08.pdf Item 11: Action Item Review (5 mins) http://gnso.icann.org/meetings/pending-action-list.pdf Item 12: AOB Glen de Saint Géry GNSO Secretariat - ICANN gnso.secretariat[at]gnso.icann.org http://gnso.icann.org

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Heads-up regarding an RyC suggestion re. DT Motion
by Gomes, Chuck March 5, 2008

March 5, 2008

So as not to blindside everyone on the Council call, to allow discussion by the DT-WG team prior to the Council meeting and to avoid additional delays, I want to alert you to a position agreed to by a strong majority of RyC members in our regular meeting earlier today. Regarding the consensus policy motion to be put out for public comment, most of us in the RyC believe that it would be much better if clause 2 of the motion was deleted before putting the motion out for public comment. My attempt to describe our thinking in that regard follows. First let me cut and paste clause 2 here: " The above restriction on use of the Add Grace Period shall be considered an "ICANN adopted specification or polic[y] prohibiting or restricting warehousing of or speculation in domain names by registrars" in accordance with Section 3.7.9 of the Registrar Accreditation Agreement. As such, a Registrar that engages in domain tasting, defined as using the AGP to register domain names in order to test their profitability, shall be deemed in material breach of the Registrar Accreditation Agreement." Our concerns include the following: * The wording of this clause appears to set a policy prohibiting domain name warehousing and domain name speculation, which was not the topic of this PDP, nor were warehousing or speculation specified as issues to be covered in the Domain Tasting PDP that the Council initiated. * Even if we accept the fact that domain tasting is a subset of domain warehousing or domain speculation, we believe that warehousing and speculation involve more than domain tasting. * If a policy is to be developed regarding the broader issues of domain name warehousing and domain name speculation, then a PDP should be considered in that regard, but it would not be appropriate to set such a policy without a thorough review of all of the issues associated with warehousing and speculation including those unrelated to domain tasting. * Clause 2 does not seem to add anything to the motion with regard to domain tasting; it is our belief that no amendment would be necessary in either registry agreements or the RAA in order to implement the policy because both registries and registrars already have terms in their agreements with ICANN that require us to implement consensus policies. Therefore, if the Council sends the policy recommendation to the Board and the Board approves it as a consensus policy, then registries and registrars will be required to implement it. Deleting clause 2 would not seem to change that scenario at all. * Leaving clause 2 in the motion for public comment will likely distract from the main thrust of the motion by causing people to focus on the broader issues of warehousing and speculation as well as on definitions of terms like 'profitability'; moreover, GNSO processes could be challenged because of the point made in bullet one above. * Leaving clause 2 in the motion could complicate the goal of completing the PDP in a timely manner. The RyC has never taken a position regarding the broader issues of domain name warehousing or domain name speculation nor are we advocating one way or another regarding such a policy, but we do believe that any such policy should be developed following existing PDP procedures, making sure that an in-depth examination of all the related issues happens, not just those related to a subset of those topics related to domain name tasting. In conclusion, the RyC suggests that clause 2 of the consensus policy motion be deleted. The RyC instructed its Council reps to support the motion to put the consensus policy motion out for public comment and to request updated constituency impact statements to address the consensus policy motion, but we strongly recommend that clause 2 be deleted before the motion is acted on. Chuck Gomes "This message is intended for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. Any unauthorized use, distribution, or disclosure is strictly prohibited. If you have received this message in error, please notify sender immediately and destroy/delete the original transmission."

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RE: [gnso-dt-wg] RE: [council] Motions re Domain Tasting
by Gomes, Chuck March 5, 2008

March 5, 2008

I am not VeriSign either but I do represent VeriSign in the RyC. Whereas I cannot speak for our legal team, I am not aware of anyone in VeriSign ever suggesting that "a policy dictating how much VeriSign could refund registrars during the AGP (would) be considered a prescription or limitation on the price of Registry Services". Chuck > -----Original Message----- > From: owner-gnso-dt-wg(a)icann.org > [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Neuman, Jeff > Sent: Wednesday, March 05, 2008 10:49 AM > To: Tim Ruiz; Mike Rodenbaugh > Cc: Registrars Constituency; owner-council(a)gnso.icann.org; > gnso-dt-wg(a)icann.org; GNSO Council; Adrian Kinderis > Subject: RE: [gnso-dt-wg] RE: [council] Motions re Domain Tasting > > > For what it is worth, with respect to the following: > > > "Would a policy dictating how much VeriSign could refund > registrars during the AGP be considered a prescription or > limitation on the price of Registry Services?" > > The registries as a group have never expressed the view that > this proposal would fall within the exception to the > Consensus Policies provision above. > > I am not sure where that issue has come from and I do not > believe that the answer to that question should delay public > comment on the present proposal. Also for what it is worth, > NeuStar (and yes I know we are not VeriSign which controls > 90% of the market) does not believe that this proposal would > be considered a prescription or limitation on the price of > Registry Services since the price being charged is not > affected, it is only whether we can offer a refund or not. > > > > Jeffrey J. Neuman, Esq. > Sr. Director, Law, Advanced Services & > > Business Development > > NeuStar, Inc. > e-mail: Jeff.Neuman(a)Neustar.us > > > -----Original Message----- > From: owner-gnso-dt-wg(a)icann.org > [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Tim Ruiz > Sent: Wednesday, March 05, 2008 10:14 AM > To: Mike Rodenbaugh > Cc: 'Registrars Constituency'; owner-council(a)gnso.icann.org; > gnso-dt-wg(a)icann.org; 'GNSO Council'; 'Adrian Kinderis' > Subject: [gnso-dt-wg] RE: [council] Motions re Domain Tasting > > > Mike, > > Let's stay rational here. The Staff and Counsel may have > stated the opinion that tasting was within scope, but that > doesn't mean that every element of any policy proposal we > come up is viable under current contracts. That's all we're > saying. If the Council does send something to the Board it > just seems reasonable that if there is a question about it > actually being implementable that we first try to resolve that. > > I apologize that it didn't dawn on me during our team > meeings, but then I'm not a lawyer. Regarding the concern > most on the team had regarding Jeff's initial comments on 3.1 > of the registry agreements, I think Jeff's last post helps > clear that up, at least for me. > > So we just need John's opinion on the refund issue and > whether or not that constitutes prescribing or limiting the > price of a registry service. Pretty simple question that he > should be able to answer within a couple of weeks (probably > less). Noting however, that it may not necessarily be the > opinion of the registries but at least we'll have done our > due dilligence if the Council decides to send the > recommendation to the Board. > > > Tim > > > -------- Original Message -------- > Subject: RE: [council] Motions re Domain Tasting > From: "Mike Rodenbaugh" <mxrodenbaugh(a)yahoo.com> > Date: Tue, March 04, 2008 6:11 pm > To: "'Tim Ruiz'" <tim(a)godaddy.com>, "'Adrian Kinderis'" > <adrian(a)ausregistry.com.au> > Cc: "'Registrars Constituency'" <registrars(a)gnso.icann.org>, > <owner-council(a)gnso.icann.org>, <gnso-dt-wg(a)icann.org>, > "'GNSO Council'" > <council(a)gnso.icann.org> > > > I do not like the idea that one Constituency can come up with > any legal theory and demand that be the subject of ICANN > Counsel opinion, while all policy development work goes on > hold to wait for that opinion. Though I maintain complete > respect for ICANN Counsel, their opinion may not be the final > opinion that matters on issues of contract interpretation or > otherwise. In order to avoid litigation, ICANN's much safer > position is to side with the parties they contract with, > rather than any other party who would have a much tougher > time suing ICANN successfully on a contract (or 'third party > beneficiary') theory. So I see this as another ploy for > contracting parties to delay or derail policy development > that they don't like, and we ought not let that become a precedent. > > While I also would like ICANN's counsel's view on the > outlandish position set out by Jeff Neuman (purportedly on > behalf of the Registry Constituency), I do not think that > issue, or this one now raised by the Registrars, should > roadblock the policy development work of the GNSO Council. We > should continue our work and let the legal proceedings take > their separate course. > Again, the ICANN Counsel has already found the domain tasting > issue to be within scope of GNSO policy work, nine months > ago, after this sort of 'excess delete fee' proposal was > already enacted by PIR through ICANN process, discussed in > the initial Staff report that included Counsel's opinion, and > so presumably it was understood to be a potential outcome of > the GNSO as well. > > Thanks, > -Mike > > -----Original Message----- > From: Tim Ruiz [mailto:tim@godaddy.com] > Sent: Tuesday, March 04, 2008 2:32 PM > To: Adrian Kinderis > Cc: Registrars Constituency; Mike Rodenbaugh; > owner-council(a)gnso.icann.org; gnso-dt-wg(a)icann.org; GNSO Council > Subject: RE: [council] Motions re Domain Tasting > > Mike, > > In fact, I believe we need an answer from Counsel to the > other question as well (raised as a result of Jeff's > reference to 3.1(b)(iv) of the registry agreements) before we > proceed any further with any policy work at all. The role > registries are playing here in the definition of consensus > needs to be fully and clearly understood, as much as and even > more than the picket fence. > > > Tim > > -------- Original Message -------- > Subject: RE: [council] Motions re Domain Tasting > From: "Adrian Kinderis" <adrian(a)ausregistry.com.au> > Date: Tue, March 04, 2008 3:48 pm > To: "Mike Rodenbaugh" <mxrodenbaugh(a)yahoo.com>, > <owner-council(a)gnso.icann.org>, <gnso-dt-wg(a)icann.org>, "GNSO Council" > <council(a)gnso.icann.org> > Cc: "Registrars Constituency" <registrars(a)gnso.icann.org> > > > Thanks Mike. > > Unfortunately, myself and other members of the RC disagree. > > We would prefer to get specific advice from ICANN General > Counsel before proceeding. > > Can you please forward your motion for review? > > Thanks. > > Adrian Kinderis > Managing Director > AusRegistry Group Pty Ltd > Level 8, 10 Queens Road > Melbourne. Victoria Australia. 3004 > Ph: +61 3 9866 3710 > Fax: +61 3 9866 1970 > Email: adrian(a)ausregistry.com > Web: www.ausregistrygroup.com > > The information contained in this communication is intended > for the named recipients only. It is subject to copyright and > may contain legally privileged and confidential information > and if you are not an intended recipient you must not use, > copy, distribute or take any action in reliance on it. If you > have received this communication in error, please delete all > copies from your system and notify us immediately. > > > > -----Original Message----- > From: Mike Rodenbaugh [mailto:mxrodenbaugh@yahoo.com] > Sent: Wednesday, 5 March 2008 3:47 AM > To: Adrian Kinderis; owner-council(a)gnso.icann.org; > gnso-dt-wg(a)icann.org; 'GNSO Council' > Cc: 'Registrars Constituency' > Subject: RE: [council] Motions re Domain Tasting > > I do not see how this would prescribe or limit the price of a > Registry Service. It simply says that whatever price is > charged cannot be refunded under certain circumstances, in > order to mitigate a practice that the ICANN Counsel has > already found to be within GNSO policy-making purview. > > I think there is no harm in continuing with the 21-day public > comment period, and hopefully we can get any additional > guidance from Counsel during that timeframe as well. > > -Mike Rodenbaugh > > > > -----Original Message----- > From: Adrian Kinderis [mailto:adrian@ausregistry.com.au] > Sent: Monday, March 03, 2008 2:30 PM > To: mxrodenbaugh(a)yahoo.com; owner-council(a)gnso.icann.org; > gnso-dt-wg(a)icann.org; GNSO Council > Cc: Registrars Constituency > Subject: RE: [council] Motions re Domain Tasting > > Thanks for your response Mike. > > One question from the Registrar Constituency to the Council; > > Is it possible to get ICANN General Counsel's Office to > review this proposal and advise whether it is viable under > the existing registry agreements? > > The .com agreement states that Consensus Policies may not > "prescribe or limit the price of Registry Services" (see > Section 3.1(b)(v)(A) > http://www.icann.org/tlds/agreements/verisign/registry-agmt-co > m-01mar06. > htm) > .. > > Would a policy dictating how much VeriSign could refund > registrars during the AGP be considered a prescription or > limitation on the price of Registry Services? > > This is fundamental to the progressing of this issue and was > discussed briefly at the meeting in India. > > We, the Registrar Constituency, would certainly like to have > this answered prior to utilising resources in reviewing a > proposal that may, indeed, be unenforceable. > > Thanks. > > > Adrian Kinderis > Managing Director > AusRegistry Group Pty Ltd > Level 8, 10 Queens Road > Melbourne. Victoria Australia. 3004 > Ph: +61 3 9866 3710 > Fax: +61 3 9866 1970 > Email: adrian(a)ausregistry.com > Web: www.ausregistrygroup.com > > The information contained in this communication is intended > for the named recipients only. It is subject to copyright and > may contain legally privileged and confidential information > and if you are not an intended recipient you must not use, > copy, distribute or take any action in reliance on it. If you > have received this communication in error, please delete all > copies from your system and notify us immediately. > > > > -----Original Message----- > From: Mike Rodenbaugh [mailto:mxrodenbaugh@yahoo.com] > Sent: Tuesday, 4 March 2008 12:19 AM > To: Adrian Kinderis; owner-council(a)gnso.icann.org; > gnso-dt-wg(a)icann.org; GNSO Council > Cc: Registrars Constituency > Subject: Re: [council] Motions re Domain Tasting > > Hi Adrian. > > The team was me, Kristina, Tim, Alan and recently Jeff > Neuman. Text was unanimously agreed although i made some > minor edits at last turn that some may not have seen. > > There is precedent for Council to monitor implementation of > its policies, and seemed like a good idea for this. > > Thanks, > Mike > > -----Original Message----- > From: "Adrian Kinderis" <adrian(a)ausregistry.com.au> > > Date: Mon, 3 Mar 2008 14:57:11 > To:"Mike Rodenbaugh" <mxrodenbaugh(a)yahoo.com>, > <gnso-dt-wg(a)icann.org>, "Council GNSO" > <council(a)gnso.icann.org> Cc:"Registrars Constituency" > <registrars(a)gnso.icann.org> > Subject: RE: [council] Motions re Domain Tasting > > > > Mike, > > I have a few issues with what you have suggested but will wait for the > Registrar Constituency's response prior to proposing them. > > That said, I am not sure I understand Part 3 of your motion and would > like some clarification. > > I am of the opinion that once the Board decides on supporting > a request > or a policy, that it becomes a "Board policy". Why are we instructing > staff to report back to the GNSO council? Surely the Board > would want to > grapple with the effectiveness and implications arising out of the > policy "they" implemented. It is up to them, I would think, to set the > parameters of measurement. > > I could be wrong, but I thought that we, as the GNSO Council were to > suggest policy and provide background to enable the ICANN > Board to make > informed decisions. It is the ICANN Board that makes policy > and reviews > the effectiveness of those decisions. > > Is it our job to get ICANN staff to report to us on matters of the > Board? > > Also, can you please provide some clarity around "the Design Team" > (perhaps just to remind me again). Who were the members > exactly and how > did you arrive at the motion? How was consensus for the actual wording > reached? > > Thanks for this and sorry if I am backtracking unnecessarily. > > Regards, > > Adrian Kinderis > Chief Executive Officer > AusRegistry International Pty Ltd > Level 8, 10 Queens Road > Melbourne. Victoria Australia. 3004 > Ph: +61 3 9866 3710 > Fax: +61 3 9866 1970 > Email: adrian(a)ausregistry.com > Web: www.ausregistryinternational.com > > The information contained in this communication is intended for the > named recipients only. It is subject to copyright and may contain > legally privileged and confidential information and if you are not an > intended recipient you must not use, copy, distribute or take > any action > in reliance on it. If you have received this communication in error, > please delete all copies from your system and notify us immediately. > > > -----Original Message----- > From: owner-council(a)gnso.icann.org > [mailto:owner-council@gnso.icann.org] > On Behalf Of Mike Rodenbaugh > Sent: Monday, 3 March 2008 1:33 PM > To: gnso-dt-wg(a)icann.org; 'Council GNSO' > Subject: [council] Motions re Domain Tasting > > The Domain Tasting team has devised the following motion, which > effectively would put the attached substantive motion out for public > comments for 21 days and set a timeline for final vote in our April 17 > Council meeting. > > Whereas, the GNSO Council has discussed the Issues Report on Domain > Tasting and the Final Outcomes Report of the ad hoc group on Domain > Tasting; > > Whereas, the GNSO Council resolved on 31 October 2007 to > launch a PDP on > Domain Tasting and to request Constituency Impact Statements with > respect to issues set forth in the Issues Report and in the Final > Outcomes Report; > > Whereas, the GNSO Council authorized on 17 January 2008 the > formation of > a small design team to develop a plan for the deliberations on the > Domain Tasting PDP (the "Design Team"), the principal volunteers to > which had been members of the Ad Hoc Group on Domain Tasting and were > well-informed of both the Final Outcomes Report of the Ad Hoc Group on > Domain Tasting and the GNSO Initial Report on Domain Tasting > (collectively with the Issues Report, the "Reports on Domain > Tasting"); > > Whereas, the Design Team has met and agreed on a Draft Motion > [attached] > to be set out for public comment and for Constituency Impact review; > > The GNSO Council RESOLVES: > > 1. The Draft Motion shall be posted for 21-day public comment on > March 7, > 2008. Each Constituency shall have 21 days from March 7, 2008 > to update > its Constituency Impact Statement with respect to this > motion, if it so > chooses. > The deadline for amended Statements shall be March 28, 2008. > > 2. ICANN Staff please shall provide a summary of any public comments > and/or amended Constituency Impact Statements to the Council, via > submission of a Final Report with respect to this PDP, by > April 4, 2008. > > 3. The Design Team shall then meet and confer with respect to the > Final > Report, in order to consider any public comments and/or amended > Constituency Impact Statements and to consider any suggested > amendments > to the Draft Motion, and shall recommend a Final Motion to be > considered > by Council for vote in its scheduled meeting April 17, 2008. > > 4. It is the intention of the GNSO for the Staff to produce a Board > Report on this PDP for consideration by the ICANN Board, in the hope > that the Board may vote on any recommendations of the GNSO > with respect > to this PDP, at the scheduled ICANN meeting in Paris in June, 2008 > > > > Mike Rodenbaugh > > > > > > > > > > > >

1 0

RE: [council] Motions re Domain Tasting
by Tim Ruiz March 5, 2008

March 5, 2008

Mike, Let's stay rational here. The Staff and Counsel may have stated the opinion that tasting was within scope, but that doesn't mean that every element of any policy proposal we come up is viable under current contracts. That's all we're saying. If the Council does send something to the Board it just seems reasonable that if there is a question about it actually being implementable that we first try to resolve that. I apologize that it didn't dawn on me during our team meeings, but then I'm not a lawyer. Regarding the concern most on the team had regarding Jeff's initial comments on 3.1 of the registry agreements, I think Jeff's last post helps clear that up, at least for me. So we just need John's opinion on the refund issue and whether or not that constitutes prescribing or limiting the price of a registry service. Pretty simple question that he should be able to answer within a couple of weeks (probably less). Noting however, that it may not necessarily be the opinion of the registries but at least we'll have done our due dilligence if the Council decides to send the recommendation to the Board. Tim -------- Original Message -------- Subject: RE: [council] Motions re Domain Tasting From: "Mike Rodenbaugh" <mxrodenbaugh(a)yahoo.com> Date: Tue, March 04, 2008 6:11 pm To: "'Tim Ruiz'" <tim(a)godaddy.com>, "'Adrian Kinderis'" <adrian(a)ausregistry.com.au> Cc: "'Registrars Constituency'" <registrars(a)gnso.icann.org>, <owner-council(a)gnso.icann.org>, <gnso-dt-wg(a)icann.org>, "'GNSO Council'" <council(a)gnso.icann.org> I do not like the idea that one Constituency can come up with any legal theory and demand that be the subject of ICANN Counsel opinion, while all policy development work goes on hold to wait for that opinion. Though I maintain complete respect for ICANN Counsel, their opinion may not be the final opinion that matters on issues of contract interpretation or otherwise. In order to avoid litigation, ICANN's much safer position is to side with the parties they contract with, rather than any other party who would have a much tougher time suing ICANN successfully on a contract (or 'third party beneficiary') theory. So I see this as another ploy for contracting parties to delay or derail policy development that they don't like, and we ought not let that become a precedent. While I also would like ICANN's counsel's view on the outlandish position set out by Jeff Neuman (purportedly on behalf of the Registry Constituency), I do not think that issue, or this one now raised by the Registrars, should roadblock the policy development work of the GNSO Council. We should continue our work and let the legal proceedings take their separate course. Again, the ICANN Counsel has already found the domain tasting issue to be within scope of GNSO policy work, nine months ago, after this sort of 'excess delete fee' proposal was already enacted by PIR through ICANN process, discussed in the initial Staff report that included Counsel's opinion, and so presumably it was understood to be a potential outcome of the GNSO as well. Thanks, -Mike -----Original Message----- From: Tim Ruiz [mailto:tim@godaddy.com] Sent: Tuesday, March 04, 2008 2:32 PM To: Adrian Kinderis Cc: Registrars Constituency; Mike Rodenbaugh; owner-council(a)gnso.icann.org; gnso-dt-wg(a)icann.org; GNSO Council Subject: RE: [council] Motions re Domain Tasting Mike, In fact, I believe we need an answer from Counsel to the other question as well (raised as a result of Jeff's reference to 3.1(b)(iv) of the registry agreements) before we proceed any further with any policy work at all. The role registries are playing here in the definition of consensus needs to be fully and clearly understood, as much as and even more than the picket fence. Tim -------- Original Message -------- Subject: RE: [council] Motions re Domain Tasting From: "Adrian Kinderis" <adrian(a)ausregistry.com.au> Date: Tue, March 04, 2008 3:48 pm To: "Mike Rodenbaugh" <mxrodenbaugh(a)yahoo.com>, <owner-council(a)gnso.icann.org>, <gnso-dt-wg(a)icann.org>, "GNSO Council" <council(a)gnso.icann.org> Cc: "Registrars Constituency" <registrars(a)gnso.icann.org> Thanks Mike. Unfortunately, myself and other members of the RC disagree. We would prefer to get specific advice from ICANN General Counsel before proceeding. Can you please forward your motion for review? Thanks. Adrian Kinderis Managing Director AusRegistry Group Pty Ltd Level 8, 10 Queens Road Melbourne. Victoria Australia. 3004 Ph: +61 3 9866 3710 Fax: +61 3 9866 1970 Email: adrian(a)ausregistry.com Web: www.ausregistrygroup.com The information contained in this communication is intended for the named recipients only. It is subject to copyright and may contain legally privileged and confidential information and if you are not an intended recipient you must not use, copy, distribute or take any action in reliance on it. If you have received this communication in error, please delete all copies from your system and notify us immediately. -----Original Message----- From: Mike Rodenbaugh [mailto:mxrodenbaugh@yahoo.com] Sent: Wednesday, 5 March 2008 3:47 AM To: Adrian Kinderis; owner-council(a)gnso.icann.org; gnso-dt-wg(a)icann.org; 'GNSO Council' Cc: 'Registrars Constituency' Subject: RE: [council] Motions re Domain Tasting I do not see how this would prescribe or limit the price of a Registry Service. It simply says that whatever price is charged cannot be refunded under certain circumstances, in order to mitigate a practice that the ICANN Counsel has already found to be within GNSO policy-making purview. I think there is no harm in continuing with the 21-day public comment period, and hopefully we can get any additional guidance from Counsel during that timeframe as well. -Mike Rodenbaugh -----Original Message----- From: Adrian Kinderis [mailto:adrian@ausregistry.com.au] Sent: Monday, March 03, 2008 2:30 PM To: mxrodenbaugh(a)yahoo.com; owner-council(a)gnso.icann.org; gnso-dt-wg(a)icann.org; GNSO Council Cc: Registrars Constituency Subject: RE: [council] Motions re Domain Tasting Thanks for your response Mike. One question from the Registrar Constituency to the Council; Is it possible to get ICANN General Counsel's Office to review this proposal and advise whether it is viable under the existing registry agreements? The .com agreement states that Consensus Policies may not "prescribe or limit the price of Registry Services" (see Section 3.1(b)(v)(A) http://www.icann.org/tlds/agreements/verisign/registry-agmt-com-01mar06.htm) .. Would a policy dictating how much VeriSign could refund registrars during the AGP be considered a prescription or limitation on the price of Registry Services? This is fundamental to the progressing of this issue and was discussed briefly at the meeting in India. We, the Registrar Constituency, would certainly like to have this answered prior to utilising resources in reviewing a proposal that may, indeed, be unenforceable. Thanks. Adrian Kinderis Managing Director AusRegistry Group Pty Ltd Level 8, 10 Queens Road Melbourne. Victoria Australia. 3004 Ph: +61 3 9866 3710 Fax: +61 3 9866 1970 Email: adrian(a)ausregistry.com Web: www.ausregistrygroup.com The information contained in this communication is intended for the named recipients only. It is subject to copyright and may contain legally privileged and confidential information and if you are not an intended recipient you must not use, copy, distribute or take any action in reliance on it. If you have received this communication in error, please delete all copies from your system and notify us immediately. -----Original Message----- From: Mike Rodenbaugh [mailto:mxrodenbaugh@yahoo.com] Sent: Tuesday, 4 March 2008 12:19 AM To: Adrian Kinderis; owner-council(a)gnso.icann.org; gnso-dt-wg(a)icann.org; GNSO Council Cc: Registrars Constituency Subject: Re: [council] Motions re Domain Tasting Hi Adrian. The team was me, Kristina, Tim, Alan and recently Jeff Neuman. Text was unanimously agreed although i made some minor edits at last turn that some may not have seen. There is precedent for Council to monitor implementation of its policies, and seemed like a good idea for this. Thanks, Mike -----Original Message----- From: "Adrian Kinderis" <adrian(a)ausregistry.com.au> Date: Mon, 3 Mar 2008 14:57:11 To:"Mike Rodenbaugh" <mxrodenbaugh(a)yahoo.com>, <gnso-dt-wg(a)icann.org>, "Council GNSO" <council(a)gnso.icann.org> Cc:"Registrars Constituency" <registrars(a)gnso.icann.org> Subject: RE: [council] Motions re Domain Tasting Mike, I have a few issues with what you have suggested but will wait for the Registrar Constituency's response prior to proposing them. That said, I am not sure I understand Part 3 of your motion and would like some clarification. I am of the opinion that once the Board decides on supporting a request or a policy, that it becomes a "Board policy". Why are we instructing staff to report back to the GNSO council? Surely the Board would want to grapple with the effectiveness and implications arising out of the policy "they" implemented. It is up to them, I would think, to set the parameters of measurement. I could be wrong, but I thought that we, as the GNSO Council were to suggest policy and provide background to enable the ICANN Board to make informed decisions. It is the ICANN Board that makes policy and reviews the effectiveness of those decisions. Is it our job to get ICANN staff to report to us on matters of the Board? Also, can you please provide some clarity around "the Design Team" (perhaps just to remind me again). Who were the members exactly and how did you arrive at the motion? How was consensus for the actual wording reached? Thanks for this and sorry if I am backtracking unnecessarily. Regards, Adrian Kinderis Chief Executive Officer AusRegistry International Pty Ltd Level 8, 10 Queens Road Melbourne. Victoria Australia. 3004 Ph: +61 3 9866 3710 Fax: +61 3 9866 1970 Email: adrian(a)ausregistry.com Web: www.ausregistryinternational.com The information contained in this communication is intended for the named recipients only. It is subject to copyright and may contain legally privileged and confidential information and if you are not an intended recipient you must not use, copy, distribute or take any action in reliance on it. If you have received this communication in error, please delete all copies from your system and notify us immediately. -----Original Message----- From: owner-council(a)gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mike Rodenbaugh Sent: Monday, 3 March 2008 1:33 PM To: gnso-dt-wg(a)icann.org; 'Council GNSO' Subject: [council] Motions re Domain Tasting The Domain Tasting team has devised the following motion, which effectively would put the attached substantive motion out for public comments for 21 days and set a timeline for final vote in our April 17 Council meeting. Whereas, the GNSO Council has discussed the Issues Report on Domain Tasting and the Final Outcomes Report of the ad hoc group on Domain Tasting; Whereas, the GNSO Council resolved on 31 October 2007 to launch a PDP on Domain Tasting and to request Constituency Impact Statements with respect to issues set forth in the Issues Report and in the Final Outcomes Report; Whereas, the GNSO Council authorized on 17 January 2008 the formation of a small design team to develop a plan for the deliberations on the Domain Tasting PDP (the "Design Team"), the principal volunteers to which had been members of the Ad Hoc Group on Domain Tasting and were well-informed of both the Final Outcomes Report of the Ad Hoc Group on Domain Tasting and the GNSO Initial Report on Domain Tasting (collectively with the Issues Report, the "Reports on Domain Tasting"); Whereas, the Design Team has met and agreed on a Draft Motion [attached] to be set out for public comment and for Constituency Impact review; The GNSO Council RESOLVES: 1. The Draft Motion shall be posted for 21-day public comment on March 7, 2008. Each Constituency shall have 21 days from March 7, 2008 to update its Constituency Impact Statement with respect to this motion, if it so chooses. The deadline for amended Statements shall be March 28, 2008. 2. ICANN Staff please shall provide a summary of any public comments and/or amended Constituency Impact Statements to the Council, via submission of a Final Report with respect to this PDP, by April 4, 2008. 3. The Design Team shall then meet and confer with respect to the Final Report, in order to consider any public comments and/or amended Constituency Impact Statements and to consider any suggested amendments to the Draft Motion, and shall recommend a Final Motion to be considered by Council for vote in its scheduled meeting April 17, 2008. 4. It is the intention of the GNSO for the Staff to produce a Board Report on this PDP for consideration by the ICANN Board, in the hope that the Board may vote on any recommendations of the GNSO with respect to this PDP, at the scheduled ICANN meeting in Paris in June, 2008 Mike Rodenbaugh

3 3

FW: [gnso-dt-wg] RE: [council] Motions re Domain Tasting
by Gomes, Chuck March 5, 2008

March 5, 2008

Hopefully this will clarify this issue. Chuck -----Original Message----- From: owner-gnso-dt-wg(a)icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Neuman, Jeff Sent: Tuesday, March 04, 2008 9:12 PM To: Mike Rodenbaugh; Tim Ruiz; Adrian Kinderis Cc: Registrars Constituency; owner-council(a)gnso.icann.org; gnso-dt-wg(a)icann.org; GNSO Council Subject: RE: [gnso-dt-wg] RE: [council] Motions re Domain Tasting Ok. I think this has gotten a little out of hand, so let me set the record straight here and I would appreciate this being posted on the Council list (and Registrars list), since I do not have posting privileges on those. Here are the facts regarding the supposed "outlandish position" I have taken so people can judge for themselves what actually took place. The following is from actual e-mails sent (which are public record) on 2/22 and 2/26. It is also important to understand the context in which my statements were made. A. On Feb 22nd the following took place: a) There was a debate as to whether a supermajority vote of the council was needed to establish a consensus policy that was enforceable against the registries (or registrars for that matter) and to force the registries implement a policy (assuming that the proper PDP process was followed). b) In response to that debate, Avri posted the definition of Consensus Policies from the ICANN Bylaws and used that definition to make the point that a supermajority of Council members was not needed, but only a majority was needed for the Board to react. c) I posted a response to Avri that stated even if that was true under the ICANN Bylaws, you also needed to look at what is in the registry agreements to see whether the Board can actually impose any policies on the registries. More specifically, I stated: "Yes, the Board can act, but again, that Board decision, in my view (and in the view of the other registries) would not be binding on the gTLD Registry Operators because that would not be viewed as "consensus of Internet stakeholders". After all, if a majority is not even deemed to reflect the view of the Council, then how can it represent a Consensus of Internet stakeholder. The reason I am using the phrase "consensus of Internet stakeholders" is because that is the phrase that is used in the gTLD contracts. See below which is taken from Section 3.1(b)(iv) of the .com agreement (See http://www.icann.org/tlds/agreements/verisign/registry-agmt-com-01mar06. htm) which states: "Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including the operators of gTLDs. Consensus Policies shall relate to one or more of the following: (1) issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, Security and/or Stability of the Internet or DNS; (2) functional and performance specifications for the provision of Registry Services (as defined in Section 3.1(d)(iii) below); (3) Security and Stability of the registry database for the TLD; (4) registry policies reasonably necessary to implement Consensus Policies relating to registry operations or registrars; or (5) resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names). Such categories of issues referred to in the preceding sentence shall include, without limitation: Particularly important is the phrase "including the operators of gTLDs". Now before you try to argue that it is modified by the phrase "to the extent possible", let me state that the following: 1. "To the extent possible" does not mean that if the registries are on the losing side of the vote it is not "possible" to achieve gTLD operator support for a proposal on domain tasting. 2. The gTLD Registries have indicated on a number of occassions that we do believe a proposal to eliminate tasting (in TLDs where tasting has occurred) can garner the registry operators support. We are committed to working with you to achieve that. We just need to find a solution that takes into consideration the differences of each of the registries. B. Now, comment 1 above was to prevent someone from making the argument that "Well, the registries voted against the proposal and therefore it was not 'possible' to get a consensus." In other words, that language is in there to take the focus away from voting and to focus stakeholders on attempting to find compromises that all stakeholders could live with. Otherwise the impacted parties, whether they be registrars or registries, can be ignored completely in policy development. C. After that was posted, a number of people took that to mean that I was stating that the registries "had to agree on a policy" before it became a consensus policy. I never stated that theory. That is how others interpreted my comments. D. Tim Ruiz followed up with a note on 2/25 stating "Jeff and Chuck, is it either of your opinions that the quote above means that in order for consensus to exist it must include the consensus agreement of the gTLD operators? Or Jeff, were you intending to point out that a consensus of Internet stakeholders was only valid if gTLD operators were included as stakeholders but not that they necessarily have to agree with the policy?" D. I followed up with a response that stated: "I know this is going to sound like a non-answer to your question, but the only thing I am going to say at this point is that there were a number of tradeoffs made by the registries in the new agreements (whether for .com, .biz, .info, etc.) that were made. ICANN insisted on this new definition of Consensus Policies (as opposed to the old definition in the 2001 agreements - which by the way the 2001 agreements mirror your registrar accreditation agreement). In the new definition for registries (but not registrars), there is no longer a voting requirement for consensus policies and there are less protections for the registries (unlike the 2001 agreements). In addition, we lost the indemnity protections we used to have. In exchange, we wanted to make sure that gTLD Registries were included as key players in determining what consensus policies were, especially where we were the most impacted by the policy changes. We wanted to avoid situations (like this almost became), where the Council disregarded the opinions of the registries and came up with policies without adequate consultation or analysis of the impacts of the new policies/solutions on the registries. I hope that gives you some insight. And I know if ICANN changed (or wanted to change) the definition of "Consensus Policies" in the registrar agreements like it did for the registry agreements, you would be just as vigilant as we are being." E. In summary, I NEVER stated that we could not have a consensus policy without the registries agreeing to the actual policy. I merely pointed out what was in the contracts that the registries had and the background for that provision. I am not going to provide the registries' legal interpretation of that provision because even if I knew how all of the registries interpreted that statement from a legal standpoint (which I don't), it is not appropriate for me to give you anyone's legal position on the matter. You have every right to ask the ICANN GC on what his interpretation is, but I will warn you that his interpretation may or may not be the same interpretation that each registry has and just because he believes the sentence means one thing does not necessarily mean that that is what the other side believes and that his view is enforceable on the contracted parties. F. From NeuStar's perspective, and I have shared this with the RyC, the current motion to put this topic on tasting out for public comment is acceptable and we are in favor of the motion. I cannot speak for any other registry on this however. Jeffrey J. Neuman, Esq. Sr. Director, Law, Advanced Services & Business Development NeuStar, Inc. e-mail: Jeff.Neuman(a)Neustar.us -----Original Message----- From: owner-gnso-dt-wg(a)icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Mike Rodenbaugh Sent: Tuesday, March 04, 2008 7:12 PM To: 'Tim Ruiz'; 'Adrian Kinderis' Cc: 'Registrars Constituency'; owner-council(a)gnso.icann.org; gnso-dt-wg(a)icann.org; 'GNSO Council' Subject: [gnso-dt-wg] RE: [council] Motions re Domain Tasting I do not like the idea that one Constituency can come up with any legal theory and demand that be the subject of ICANN Counsel opinion, while all policy development work goes on hold to wait for that opinion. Though I maintain complete respect for ICANN Counsel, their opinion may not be the final opinion that matters on issues of contract interpretation or otherwise. In order to avoid litigation, ICANN's much safer position is to side with the parties they contract with, rather than any other party who would have a much tougher time suing ICANN successfully on a contract (or 'third party beneficiary') theory. So I see this as another ploy for contracting parties to delay or derail policy development that they don't like, and we ought not let that become a precedent. While I also would like ICANN's counsel's view on the outlandish position set out by Jeff Neuman (purportedly on behalf of the Registry Constituency), I do not think that issue, or this one now raised by the Registrars, should roadblock the policy development work of the GNSO Council. We should continue our work and let the legal proceedings take their separate course. Again, the ICANN Counsel has already found the domain tasting issue to be within scope of GNSO policy work, nine months ago, after this sort of 'excess delete fee' proposal was already enacted by PIR through ICANN process, discussed in the initial Staff report that included Counsel's opinion, and so presumably it was understood to be a potential outcome of the GNSO as well. Thanks, -Mike

1 0

RE: [council] Motions re Domain Tasting
by Tim Ruiz March 5, 2008

March 5, 2008

Mike, In fact, I believe we need an answer from Counsel to the other question as well (raised as a result of Jeff's reference to 3.1(b)(iv) of the registry agreements) before we proceed any further with any policy work at all. The role registries are playing here in the definition of consensus needs to be fully and clearly understood, as much as and even more than the picket fence. Tim -------- Original Message -------- Subject: RE: [council] Motions re Domain Tasting From: "Adrian Kinderis" <adrian(a)ausregistry.com.au> Date: Tue, March 04, 2008 3:48 pm To: "Mike Rodenbaugh" <mxrodenbaugh(a)yahoo.com>, <owner-council(a)gnso.icann.org>, <gnso-dt-wg(a)icann.org>, "GNSO Council" <council(a)gnso.icann.org> Cc: "Registrars Constituency" <registrars(a)gnso.icann.org> Thanks Mike. Unfortunately, myself and other members of the RC disagree. We would prefer to get specific advice from ICANN General Counsel before proceeding. Can you please forward your motion for review? Thanks. Adrian Kinderis Managing Director AusRegistry Group Pty Ltd Level 8, 10 Queens Road Melbourne. Victoria Australia. 3004 Ph: +61 3 9866 3710 Fax: +61 3 9866 1970 Email: adrian(a)ausregistry.com Web: www.ausregistrygroup.com The information contained in this communication is intended for the named recipients only. It is subject to copyright and may contain legally privileged and confidential information and if you are not an intended recipient you must not use, copy, distribute or take any action in reliance on it. If you have received this communication in error, please delete all copies from your system and notify us immediately. -----Original Message----- From: Mike Rodenbaugh [mailto:mxrodenbaugh@yahoo.com] Sent: Wednesday, 5 March 2008 3:47 AM To: Adrian Kinderis; owner-council(a)gnso.icann.org; gnso-dt-wg(a)icann.org; 'GNSO Council' Cc: 'Registrars Constituency' Subject: RE: [council] Motions re Domain Tasting I do not see how this would prescribe or limit the price of a Registry Service. It simply says that whatever price is charged cannot be refunded under certain circumstances, in order to mitigate a practice that the ICANN Counsel has already found to be within GNSO policy-making purview. I think there is no harm in continuing with the 21-day public comment period, and hopefully we can get any additional guidance from Counsel during that timeframe as well. -Mike Rodenbaugh -----Original Message----- From: Adrian Kinderis [mailto:adrian@ausregistry.com.au] Sent: Monday, March 03, 2008 2:30 PM To: mxrodenbaugh(a)yahoo.com; owner-council(a)gnso.icann.org; gnso-dt-wg(a)icann.org; GNSO Council Cc: Registrars Constituency Subject: RE: [council] Motions re Domain Tasting Thanks for your response Mike. One question from the Registrar Constituency to the Council; Is it possible to get ICANN General Counsel's Office to review this proposal and advise whether it is viable under the existing registry agreements? The .com agreement states that Consensus Policies may not "prescribe or limit the price of Registry Services" (see Section 3.1(b)(v)(A) http://www.icann.org/tlds/agreements/verisign/registry-agmt-com-01mar06.htm) Would a policy dictating how much VeriSign could refund registrars during the AGP be considered a prescription or limitation on the price of Registry Services? This is fundamental to the progressing of this issue and was discussed briefly at the meeting in India. We, the Registrar Constituency, would certainly like to have this answered prior to utilising resources in reviewing a proposal that may, indeed, be unenforceable. Thanks. Adrian Kinderis Managing Director AusRegistry Group Pty Ltd Level 8, 10 Queens Road Melbourne. Victoria Australia. 3004 Ph: +61 3 9866 3710 Fax: +61 3 9866 1970 Email: adrian(a)ausregistry.com Web: www.ausregistrygroup.com The information contained in this communication is intended for the named recipients only. It is subject to copyright and may contain legally privileged and confidential information and if you are not an intended recipient you must not use, copy, distribute or take any action in reliance on it. If you have received this communication in error, please delete all copies from your system and notify us immediately. -----Original Message----- From: Mike Rodenbaugh [mailto:mxrodenbaugh@yahoo.com] Sent: Tuesday, 4 March 2008 12:19 AM To: Adrian Kinderis; owner-council(a)gnso.icann.org; gnso-dt-wg(a)icann.org; GNSO Council Cc: Registrars Constituency Subject: Re: [council] Motions re Domain Tasting Hi Adrian. The team was me, Kristina, Tim, Alan and recently Jeff Neuman. Text was unanimously agreed although i made some minor edits at last turn that some may not have seen. There is precedent for Council to monitor implementation of its policies, and seemed like a good idea for this. Thanks, Mike -----Original Message----- From: "Adrian Kinderis" <adrian(a)ausregistry.com.au> Date: Mon, 3 Mar 2008 14:57:11 To:"Mike Rodenbaugh" <mxrodenbaugh(a)yahoo.com>, <gnso-dt-wg(a)icann.org>, "Council GNSO" <council(a)gnso.icann.org> Cc:"Registrars Constituency" <registrars(a)gnso.icann.org> Subject: RE: [council] Motions re Domain Tasting Mike, I have a few issues with what you have suggested but will wait for the Registrar Constituency's response prior to proposing them. That said, I am not sure I understand Part 3 of your motion and would like some clarification. I am of the opinion that once the Board decides on supporting a request or a policy, that it becomes a "Board policy". Why are we instructing staff to report back to the GNSO council? Surely the Board would want to grapple with the effectiveness and implications arising out of the policy "they" implemented. It is up to them, I would think, to set the parameters of measurement. I could be wrong, but I thought that we, as the GNSO Council were to suggest policy and provide background to enable the ICANN Board to make informed decisions. It is the ICANN Board that makes policy and reviews the effectiveness of those decisions. Is it our job to get ICANN staff to report to us on matters of the Board? Also, can you please provide some clarity around "the Design Team" (perhaps just to remind me again). Who were the members exactly and how did you arrive at the motion? How was consensus for the actual wording reached? Thanks for this and sorry if I am backtracking unnecessarily. Regards, Adrian Kinderis Chief Executive Officer AusRegistry International Pty Ltd Level 8, 10 Queens Road Melbourne. Victoria Australia. 3004 Ph: +61 3 9866 3710 Fax: +61 3 9866 1970 Email: adrian(a)ausregistry.com Web: www.ausregistryinternational.com The information contained in this communication is intended for the named recipients only. It is subject to copyright and may contain legally privileged and confidential information and if you are not an intended recipient you must not use, copy, distribute or take any action in reliance on it. If you have received this communication in error, please delete all copies from your system and notify us immediately. -----Original Message----- From: owner-council(a)gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mike Rodenbaugh Sent: Monday, 3 March 2008 1:33 PM To: gnso-dt-wg(a)icann.org; 'Council GNSO' Subject: [council] Motions re Domain Tasting The Domain Tasting team has devised the following motion, which effectively would put the attached substantive motion out for public comments for 21 days and set a timeline for final vote in our April 17 Council meeting. Whereas, the GNSO Council has discussed the Issues Report on Domain Tasting and the Final Outcomes Report of the ad hoc group on Domain Tasting; Whereas, the GNSO Council resolved on 31 October 2007 to launch a PDP on Domain Tasting and to request Constituency Impact Statements with respect to issues set forth in the Issues Report and in the Final Outcomes Report; Whereas, the GNSO Council authorized on 17 January 2008 the formation of a small design team to develop a plan for the deliberations on the Domain Tasting PDP (the "Design Team"), the principal volunteers to which had been members of the Ad Hoc Group on Domain Tasting and were well-informed of both the Final Outcomes Report of the Ad Hoc Group on Domain Tasting and the GNSO Initial Report on Domain Tasting (collectively with the Issues Report, the "Reports on Domain Tasting"); Whereas, the Design Team has met and agreed on a Draft Motion [attached] to be set out for public comment and for Constituency Impact review; The GNSO Council RESOLVES: 1. The Draft Motion shall be posted for 21-day public comment on March 7, 2008. Each Constituency shall have 21 days from March 7, 2008 to update its Constituency Impact Statement with respect to this motion, if it so chooses. The deadline for amended Statements shall be March 28, 2008. 2. ICANN Staff please shall provide a summary of any public comments and/or amended Constituency Impact Statements to the Council, via submission of a Final Report with respect to this PDP, by April 4, 2008. 3. The Design Team shall then meet and confer with respect to the Final Report, in order to consider any public comments and/or amended Constituency Impact Statements and to consider any suggested amendments to the Draft Motion, and shall recommend a Final Motion to be considered by Council for vote in its scheduled meeting April 17, 2008. 4. It is the intention of the GNSO for the Staff to produce a Board Report on this PDP for consideration by the ICANN Board, in the hope that the Board may vote on any recommendations of the GNSO with respect to this PDP, at the scheduled ICANN meeting in Paris in June, 2008 Mike Rodenbaugh

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Motions re Domain Tasting
by Mike Rodenbaugh March 4, 2008

March 4, 2008

The Domain Tasting team has devised the following motion, which effectively would put the attached substantive motion out for public comments for 21 days and set a timeline for final vote in our April 17 Council meeting. Whereas, the GNSO Council has discussed the Issues Report on Domain Tasting and the Final Outcomes Report of the ad hoc group on Domain Tasting; Whereas, the GNSO Council resolved on 31 October 2007 to launch a PDP on Domain Tasting and to request Constituency Impact Statements with respect to issues set forth in the Issues Report and in the Final Outcomes Report; Whereas, the GNSO Council authorized on 17 January 2008 the formation of a small design team to develop a plan for the deliberations on the Domain Tasting PDP (the "Design Team"), the principal volunteers to which had been members of the Ad Hoc Group on Domain Tasting and were well-informed of both the Final Outcomes Report of the Ad Hoc Group on Domain Tasting and the GNSO Initial Report on Domain Tasting (collectively with the Issues Report, the "Reports on Domain Tasting"); Whereas, the Design Team has met and agreed on a Draft Motion [attached] to be set out for public comment and for Constituency Impact review; The GNSO Council RESOLVES: 1. The Draft Motion shall be posted for 21-day public comment on March 7, 2008. Each Constituency shall have 21 days from March 7, 2008 to update its Constituency Impact Statement with respect to this motion, if it so chooses. The deadline for amended Statements shall be March 28, 2008. 2. ICANN Staff please shall provide a summary of any public comments and/or amended Constituency Impact Statements to the Council, via submission of a Final Report with respect to this PDP, by April 4, 2008. 3. The Design Team shall then meet and confer with respect to the Final Report, in order to consider any public comments and/or amended Constituency Impact Statements and to consider any suggested amendments to the Draft Motion, and shall recommend a Final Motion to be considered by Council for vote in its scheduled meeting April 17, 2008. 4. It is the intention of the GNSO for the Staff to produce a Board Report on this PDP for consideration by the ICANN Board, in the hope that the Board may vote on any recommendations of the GNSO with respect to this PDP, at the scheduled ICANN meeting in Paris in June, 2008 Mike Rodenbaugh

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