[To: council@dnso.org] Dear Council members, Please find the draft minutes, in text and html version, for the GNSO Council teleconference on August 14, 2003. If you would like any changes made, please let me know. Thank you very much. Glen GNSO Secretariat gnso.secretariat@gnso.icann.org ---------------------------------------------------------------------------- --------------- 15 August 2003. Proposed agenda and related documents List of attendees: Philip Sheppard - Commercial & Business users C. Marilyn Cade - Commercial & Business users C. Grant Forsyth - Commercial & Business users C. Greg Ruth - ISCPC Antonio Harris - ISCPC Tony Holmes - ISCPC - absent, apologies, proxy to Antonio Harris/Greg Ruth Thomas Keller- Registrars Ken Stubbs - Registrars Bruce Tonkin - Registrars Jeff Neuman - gTLD Jordyn Buchanan - gTLD Cary Karp - gTLD Ellen Shankman - Intellectual Property Interests C. - absent, apologies, proxy to Laurence Djolakian Laurence Djolakian - Intellectual Property Interests C. Lynda Roesch - Intellectual Property Interests C. Milton Mueller - Non Commercial users C. Chun Eung Hwi - Non Commercial users C. -absent, apologies, proxy to Milton Mueller Gabriel Pineiro - Non Commercial users C. - absent Alick Wilson Demi Getschko Amadeu Abril I Abril 17 Council Members Audri Mukhopadhyay - GAC Liaison - absent, apologies Thomas Roessler- ALAC Liaison Roger Cochetti, Budget committee chair attended for item 7 on the agenda. Elisabeth Porteneuve - ccTLD Liaison Glen de Saint Géry - GNSO Secretariat Quorum present at 14:07 CET MP3 recording http://gnso-audio.icann.org/GNSO-20030814.mp3 Bruce Tonkin chaired this teleconference. Item 1: Approval of the Agenda Agenda approved Item 2: Summary of last meeting Philip Sheppard/Ken Stubbs moved the adoption of the minutes seconded by Marilyn Cade. The Council approved the adoption of the minutes, with Amadeu Abril l Abril abstaining Decision 1: Motion adopted. Matters arising from the minutes: 1. The GNSO chair was asked to liaise with the president of ICANN in connection with GNSO Council communication with the ICANN Board. Bruce Tonkin did not discuss this but posted a suggestion to Council explaining that the aim was to meet quarterly, via teleconference with the ICANN Board, to brief it on policy work undertaken and address any issues with regard to processes and procedures. 2. Liaise with the ICANN President on WIPO II recommendations - Item 3 on the agenda. 3. Discussion about new gTLDs as raised by Jeff Newman to be addresses in Item 8 Any Other Business Item 3: Update on ICANN President's working group on WIPO-II recommendations Bruce Tonkin reported that the ICANN President had invited 6 members from the Government Advisory Committee to participate in the working group and asked the GNSO Council to nominate 6 participants. Bruce recommended that each constituency should nominate one person so that the GNSO Council representatives on the President's working group would represent a broad cross section of interests. In response to a question from Jeff Neuman as to the purpose of the group, Bruce Tonkin referred to: A discussion by the Board regarding the appropriate next steps for consideration of the WIPO recommendations Whereas, the World Intellectual Property Organization (WIPO) sent ICANN a letter dated 21 February 2003 providing information about two decisions, concerning recommendations about the names and acronyms of International Intergovernmental Organizations and about the names of countries, which WIPO member states requested be transmitted to ICANN; Whereas, in resolution 03.22 the Board requested the President to inform the Governmental Advisory Committee, the Supporting Organizations, and the other Advisory Committees of the 21 February 2003 letter from WIPO and to invite their comments; Whereas, advice and comments were received from the At-Large Advisory Committee (ALAC), the GNSO Council, the Governmental Advisory Committee (GAC), and the Intellectual Property Interests and the Commercial and Business Users Constituencies of the GNSO; Whereas, the Board has considered the advice and comments received, as well as the discussion and analysis in the 1 June 2003 General Counsel's Briefing Concerning Policy-Development Process on WIPO-2 Recommendations; Resolved [03.83] that the President is directed to form, in consultation with the chairs of the GNSO Council, the ALAC, and the GAC, a working group including participants in the GNSO, the ALAC, and the GAC as well as Board members, for the purpose of analyzing the practical and technical aspects of implementing the WIPO recommendations, and notably the implications for the UDRP; and Further resolved [03.84] that the President and General Counsel are directed to investigate and analyze legal aspects of the relationship between ICANN's mission and the recommendations conveyed by the 12 February 2003 letter from WIPO, and to report to the Board and to the working group formed under resolution 03.83 on the result of that investigation and analysis. Among topics to be considered should be whether implementation of the WIPO recommendations would require ICANN to prescribe adherence to normative rules, not based on established laws, for the resolution of competing third-party claims to rights to register names. Amadeu Abril l Abril clarified that the purpose of the ICANN President's working group was not to look at implementation but to study the implications, how, if and what, and to map out the question. Difficult legal questions arise where protection is sought for matters which are not protected under law at a national level. Six participants from the GNSO are preferable to one, and at least some of those participants should have a legal background in international law. Marilyn Cade drew attention to the way WIPO l and WIPO ll had come about. The former was a request for a fast track study with broad participation followed by a process in ICANN to determine what outcome should be related to the UDRP. The latter was a study of the implications of the recommendations that came from within WIPO itself. Bruce Tonkin, seconded by Milton Mueller, proposed: that the GNSO Council requires each constituency to nominate one person to represent the GNSO Council on the President's working group to deal with the WIPO ll recommendations. The Council unanimously approved the motion. Decision 2. Each constituency is required to nominate one person to represent the GNSO Council on the President's working group to deal with the WIPO ll recommendations. Item 4. Discussion of Staff Managers report on UDRP Bruce Tonkin summarized saying that the report was divided into procedural and substantive issues. The Acting General Counsel of ICANN considered that most of the substantive issues and some of the procedural issues would extend beyond ICANN's mission. Procedural Issues: 01. Should there be improved centralized, searchable access to administrative panel decisions 02. Should complainant and respondent filings be publicly available 03. Should complainants and respondents be allowed to amend and/or supplement their filings? 04. Should the provider and panel selection processes be modified to address concerns about potential conflicts of interest? 05. Should standards for accrediting providers and panelists be promulgated? 06. Should transfers of proceedings between providers be permitted? 07. Should refunds of providers' fees in the event of settlement be mandatory and standardized? 08. Should the notice requirements be amended? 09. Should the procedure for implementing orders to transfer registrations be amended? 10.Should administrative panel decisions be subject to internal appellate review? Substantive Issues: 11. Should the policy be changed to require registrars to wait until appeal deadlines expire before taking action in response to court orders? 12. Should the policy be amended with respect to protection for non-registered marks? 13. Should the policy be amended to provide guidance regarding the interpretation of "confusing similarity"? 14. Should multiple complaints be allowed concerning the same registration and registrant? 15. Should the policy address the question of whether "holding" constitutes "use"? 16. Should "settlement negotiation" communications be excluded as permissible evidence of bad faith? 17. Should complainants be required to post a bond and/or pay a penalty in order to deter "reverse domain-name hijacking"? 18. Should the policy expressly include affirmative defenses? 19. Should administrative panel decisions have precedential effect? 20. Should "cancellation" (deletion of the registration allowing subsequent re-registration by anybody) continue to be an available remedy? Bruce Tonkin supported by Marilyn Cade, proposed that each constituency prioritize five issues from the total and then the GNSO Council would ask if they were in ICANN's scope in an answer to Council members who did not agree with the delimitation considered by ICANN that most of the substantive issues would extend beyond ICANN's mission and that some of the issues could be possible changes but in fact were not solicited by anyone. Bruce Tonkin also proposed that after the elements were identified, there should be a discussion with ICANN General Counsel as to the scope of the issues within ICANN's mission. Thomas Roessler, ALAC Liaison, said that ICANN should certainly not extend the UDRP to take up complex cases better dealt with in court, but that -- on the other hand -- it is certainly within ICANN's mission to either cut back or fix policy where it has already invaded realms better left to courts. On outreach done by the ALAC, it was felt that there was too little time for thorough outreach on these complex issues, but that ALAC had some expertise available on UDRP, and would be interested in continuing to participate in the discussion. Bruce Tonkin, seconded by Milton Mueller, proposed: That the GNSO requests each constituency to review the list of issues presented in the Staff Manager's report on UDRP and identify the top five issues from the report that the constituency believes has the highest priority for policy development. This should be done by the next GNSO Council meeting on September 25. The Council unanimously approved the motion. Decision 3 : Each constituency is requested to review the list of issues presented in the Staff Manager's report on UDRP and identify the top five issues from the report that the constituency believes has the highest priority for policy development. This should be done by the next GNSO Council meeting on September 25. Item 5. Update on WHOIS Privacy Steering Group Bruce Tonkin, acting chair of the WHOIS Privacy Steering Committee, reported that during the teleconference held on 7/8 August, each member had been asked to identify five top issues in the Staff Manager's report on WHOIS privacy issues. 1. Two issues in general received the majority of votes: 5. Are the current requirements that registrars make disclosures to, and obtain consent by, registrants concerning the uses of collected data adequate and appropriate? (See RAA §§ 3.7.7.4 to 3.7.7.6.) 10. Are the current means of query-based access appropriate? Should both web-based access and port-43 access be required? (RAA § 3.3.1.) 2. The chair, requested as outcome of the streering group, that each constituency should formally review the top five issues and report back their positions to the GNSO Secretariat so that the issues could be collated and developed as the terms of reference for one or more task forces. 3. Related to the WHOIS Privacy Steering Committee work, the ICANN President, Paul Twomey informally chairs a group that coordinates representatives from GAC, RIRs, IETF to identify what issues raised in the WHOIS workshop are appropriate for further analysis. The topics discussed included status of the IETF CRISP work, documenting uses for each data element collected at the time of registration, possibility of classifying types of registrants, and different approaches taken by cctld operators. 4. Work is going on in Internet Engineering Task Force on new registry data access protocol. John Klensin, the IETF liaison on the ICANN Board requested input from each GNSO constituency on the requirements of this protocol. 5. Alick Wilson recommended, that each constituency review the data that must be collected by registrars currently, identify which elements should be mandatory and, in addition, identify for each of these elements the consequences if the data element was not available. 6. The information gathered is to be shared with the other ICANN Groups. Item 6. Discussion on council structure - The ICANN nominating committee appointed 3 members to the GNSO Council in June 2003 http://www.icann.org/announcements/announcement-16jun03.htm - the ICANN by-laws require each constituency to appoint 2 representatives to the GNSO to take up office at the conclusion of the ICANN annual meeting in 2003 http://www.icann.org/general/bylaws.htm#X - the ICANN by-laws require a review of the GNSO WITHIN 1 year following the adoption of the ICANN by-laws (15 Dec 2002) http://www.icann.org/general/bylaws.htm#IV Bruce Tonkin summarized saying that the ICANN bylaws provide for the appointment of two, and no longer three, constituency representatives on the GNSO council after the ICANN general meeting in 2003. The bylaws further require a review of the GNSO to be initiated no later than 15 December 2003 and to be completed in time for Board consideration at ICANN's annual meeting in 2004. Members of the Council requested a change as stated in the motion below. Philip Sheppard, one of the originators of the motion, along with Ken Stubbs, Ellen Shankman and Antonio Harris, stated that the essence of the motion was a change in timetable, which called for the review first and then an examination whether the change from 3 to 2 representatives per constituency was necessary. Philip Sheppard accepted the motion as amended by Jeff Neuman to Council: Proposed language by Marilyn Cade 2. To perform a review of the GNSO council in or around June 2004, WHICH SHOULD INCLUDE AMONG OTHER ASPECTS OF THE REVIEW CRITERIA, A RECOMMENDATION REGARDING NUMBER OF REPRESENTATIVES PER CONSTITUENCY. was amended by Jeff Neuman to read: 2. To perform a review of the GNSO council in or around June 2004 which should include among other aspects of the review criteria, an analysis of the efficacy of having three representatives from each constituency on the GNSO Council. Amadeu Abril l Abril, stated that he would not vote on the resolution as he had been a Board member at the time of the Reform and had voted for 2 representatives. Milton Mueller supported two representatives and said that with possible new constituencies being added in the future, three representatives would make the structure unwieldy. Marilyn Cade supported maintaining 3 representatives and an assessment from within the Council rather than an outside review process. Antonio Harris supported 3 representatives to lessen the work load of representatives and to ensure geographical diversity Bruce Tonkin, from an engineering point of view, found advantages in assessing the impact after one year, of the first change made by the three representatives from the nominating committee. Philip Sheppard proposed the motion, as amended by Jeff Neuman: Whereas, the Names Council resolution of 1st August 2002 called for "three representatives per Constituency on the GNSO Council". Whereas, ICANN core value 2.4 is: - "Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making". Whereas, ICANN core value 2.7 is: - "Employing open and transparent policy development mechanisms that (i) promote well-informed decisions based on expert advice, and (ii) ensure that those entities most affected can assist in the policy development process." Whereas, by-law article XX.5.8 states: "In the absence of further action on the topic by the New Board, each of the GNSO constituencies shall select two representatives to the GNSO Council.." "..no later than 1 October 2003." The GNSO council resolves that: Three representatives per Constituency is consistent with ICANN core value 2.4 on geographic and cultural diversity within the constituency as the majority of ICANN regions are represented. . Three representatives per Constituency is consistent with ICANN core value 2.7 on well-informed decision making. Experience has shown that three representatives improves the constituencies ability to share the workload of a council member, to be able to participate in task forces of the council, and to more effectively communicate with multiple regions. And therefore the GNSO Council requests the Board to make two changes in its review timetable: 1. To change the transition article to allow three representatives per constituency on the GNSO Council until the end of the ICANN annual meeting 2004; 2. To perform a review of the GNSO council in or around June 2004 which should include among other aspects of the review criteria, an analysis of the efficacy of having three representatives from each constituency on the GNSO Council. The Council approved the motion by a vote: - 21 in favour( proxy votes for Tony Holmes, Lynda Roesch, Ellen Shankman) - 1 Against (Milton Mueller) - 4 Abstentions (Amadeu Abril lAbril, Alick Wilson, Demi Getschko, proxy vote carried by Milton Mueller for Chun Eung Hwi) During the teleconference the following message was received from Chun Eung Hwi and only read after the teleconference. GNSO Secretariat I clearly support a resolution which make sure to have three representatives per constituency. If I could not be on the call, I will give my proxy to Milton Mueller. Decision 4: - Schedule a joint teleconference with ICANN Board - Formally submit the motion as a request for an amendment to the Bylaws: And therefore the GNSO Council requests the Board to make two changes in its review timetable: 1. To change the transition article to allow three representatives per constituency on the GNSO Council until the end of the ICANN annual meeting 2004; 2. To perform a review of the GNSO council in or around June 2004 which should include among other aspects of the review criteria, an analysis of the efficacy of having three representatives from each constituency on the GNSO Council. - GNSO Chair, Bruce Tonkin to liaise with ICANN President, Paul Twomey on joint ICANN Board teleconference on the topic Philip Sheppard leaves the call, hands proxy to Grant Forsyth Item 7: Budget committee report Bruce Tonkin stated that the items to be discussed were: - the current state of the budget - the transition costs of the GNSO website from AFNIC to ICANN management Roger Cochetti, GNSO Budget committee chair, joins call. Roger Cochetti reminded Council that the GNSO budget for 2003 was for six months as ICANN planned to cover the costs for the GNSO after July. The Constituency dues assessments were based on 6 months spending. On June 30, 2003, the Budget committee met, and by the end of June there were no arrangements in place to cover the costs of FISAT Inc. the Secretariat's firm, and AFNIC, the website operator. The budget committee agreed to cover the costs for FISAT Inc. and AFNIC for the month of July if these were not met by ICANN. With routine spending the current balance amounts to approximately $26 700.00.. The original plan after July was to close off the books and the balance of funds would go to the GNSO for administrative expenses. Budget Committee recommendations on larger issues: Closing out old account - constituency debts over years. Constituency debt was never forgiven so no constituency ever officially subsidized another constituency. Council was never supportive of debt forgiveness. The budget committee recommends a compromise between debt forgiveness and permanent carrying debts on the ICANN Books Once all the expenses for June and July are fully paid, the DNSO/GNSO books would be closed and a new account established for administrative miscellaneous expenses. The new account would be funded by the balance from the old to the new account. The new account would be handled by another form of administration. The debt would not be officially forgiven but would be irrelevant and the books closed. Bruce Tonkin, seconded by Greg Ruth, proposed: 1. When all payments had been made the DNSO/GNSO account should be closed. 2. With the closure of the account, the Council budget committee would be disbanded 3. Balance of funds transferred to new GNSO administration miscellaneous account. 4. Procedure be established for management of the new account. The Council members unanimously approved the motion Bruce Tonkin summarized the DNSO/GNSO website transition saying that the expectations were for ICANN to take over the management of the DNSO/GNSO website by June, 2003. The GNSO secretariat notified the GNSO chair that the end of June timetable would not be feasible. Bruce Tonkin spoke to Paul Twomey in Montreal and suggested that the current provider, AFNIC continue services till the end of the transition in July, 2003. The GNSO Secretariat was instructed to verbally speak to the director of AFNIC and verbally received the assurance that the services would continue until the end of the transition period. Bruce Tonkin has since spoken to the ICANN President who confirmed that the expense had not been budgeted for by ICANN and ICANN did not formally engage the French provider during July. Bruce Tonkin, seconded by Ken Stubbs, proposed the following recommendation: That Council authorize the additional $1980 expense incurred by AFNIC for the transition of the DNSO/GNSO website to ICANN administration. The Council members unanimously approved the motion Decision 5: That Council authorize the additional $1980 expense incurred by AFNIC. Bruce Tonkin, seconded by Amadeu Abril l Abril, on behalf of the GNSO Council proposed a motion of thanks to Roger Cochetti for his efforts as budget committee chair in the first half of the year, and for chairing the committee for two years on a voluntary basis. The Council members unanimously approved the motion Item 8: Any Other Business Bruce Tonkin stated that Jeff Neuman had raised a problem relating to new gTLDs Bruce Tonkin mentioned that it was a software problem that required upgrading and education of the public which should be undertaken as soon as possible. It was suggested that ICANN send out an advisory note and that the Internet Engineering Task Force, (IETF) should also be asked to send out an advisory note as well. Bruce Tonkin proposed to finalize the document and use all possible council contacts to propagate the message Jeff Neuman proposed; - Forming a group to do outreach as soon as possible. - That each constituency send one representative to the group. - To coordinate with the Security committee and the GNSO Council Bruce Tonkin declared GNSO teleconference closed, and thanked everybody for attending. The meeting ended: 16:10 CET, 14:10 UTC, 00:10, 15 August, Melbourne. Next GNSO Council teleconference: Thursday September 25, 2003 at 12:00 UTC see:http://www.gnso.icann.org/calendar/