[To: council[at]gnso.icann.org] Dear Council Members, Attached, and in plain text below, please find the draft minutes of the GNSO Council teleconference held on 11 October 2007. Please let me know if you would like any changes made. Thank you very much. Kind regards, Glen ----------------------------------------------------------------------- 11 October 2007 Proposed agenda and documents List of attendees: Philip Sheppard - Commercial & Business Users C Mike Rodenbaugh - Commercial & Business Users C. Bilal Beiram - Commercial & Business Users C - absent - apologies Greg Ruth - ISCPC Antonio Harris - ISCPC Tony Holmes - ISCPC - absent - apologies Thomas Keller- Registrars Ross Rader - Registrars Adrian Kinderis - Registrars - absent - aplogies Chuck Gomes - gTLD registries Edmon Chung - gTLD registries Cary Karp - gTLD registries Kristina Rosette - Intellectual Property Interests C Ute Decker - Intellectual Property Interests C - absent - aplogies Cyril Chau - Intellectual Property Interests C Robin Gross - NCUC Norbert Klein - NCUC Mawaki Chango - NCUC - absent Sophia Bekele - Nominating Committee appointee - absent - apologies Jon Bing - Nominating Committee appointee - absent - apologies Avri Doria - Nominating Committee appointee 15 Council Members (20 Votes - quorum) ICANN Staff Denise Michel - Vice President, Policy Development Dan Halloran - Deputy General Counsel Olof Nordling - Manager, Policy Development Coordination Kurt Pritz - Senior Vice President, Services Craig Schwartz - Chief gTLD Registry Liaison Patrick Jones - Registry Liaison Manager Karla Valente - gTLD Registry Liaison Glen de Saint Géry - GNSO Secretariat GNSO Council Liaisons Suzanne Sene - GAC Liaison - absent - apologies Alan Greenberg - ALAC Liaison Rita Rodin - ICANN Board member Bruce Tonkin - ICANN Board member - absent - apologies Invited Observers Tim Ruiz - Registrar Olga Cavalli - Nom Com appointee after AGM Jon Nevett - Registrar Constituency chair Ray Fasett - Registry Liz Gasster - consultant MP3 Recording Avri Doria chaired the meeting. Approval of the agenda Avri Doria proposed changing the sequence of the agenda items: - moving Item 5 to Item 3 - adding an Item 4: Discussion on PDP timing Item 1: Update any Statements of Interest Avri Doria noted that her statement of interest had been updated in accordance with General Counsel's request. Avri also commented that Sophia Bekele had updated her statement of interest. Item 2: Approval of the draft GNSO Council minutes of 30 August 2007 Approval of the draft GNSO Council minutes of 6 September 2007 Approval of the draft GNSO Council minutes of 20 September 2007 Avri Doria seconded by Chuck Gomes moved the adoption of the GNSO Council minutes of 30 August 2007. Motion approved Avri Doria seconded by Chuck Gomes moved the adoption of the GNSO Council minutes of 6 September 2007 Motion approved Avri Doria seconded by Chuck Gomes moved the adoption of the GNSO Council minutes of 20 September 2007 Motion approved Decision 1: The Council approved the GNSO Council minutes of 30 August 2007 GNSO Council minutes of 6 September 2007 GNSO Council minutes of 20 September 2007 Item 3: LA gTLD Workshop planning - New gTLD Workshop plans http://gnso.icann.org/mailing-lists/archives/council/msg03924.html Chuck Gomes commented on key items in the new gTLD workshop plan that had been developed by a small group, led by himself, and which included Avri Doria, Kristina Rosette, Adrian Kinderis, Denise Michel, Kurt Pritz, Craig Schwartz, Karen Lentz and Karla Valente. The goals of the workshop are twofold: - community understanding of the recommendations, principles and implementation guidelines - for the community to share comments for the Board's benefit as the Board will supposedly be taking action during the Los Angeles meeting. Chuck drew attention to the following key items: 3. Try to achieve a good balance between panel and audience participation, while realizing that some items may involve more presentation than interaction 4. Avoid re-debate of the issues by panel and/or Council members 7. Councilors, New gTLD Committee members and ICANN Staff members who are not on the panel should be encouraged to participate with other audience participants during the interactive session using a special microphone set up for that purpose, but in doing so, they should: a. Set good examples for being concise and to the point b. Try to add additional clarity regarding how the committee arrived at the final positions c. Aim to reinforce the decisions made by the committee and the Council d. Avoid using this forum to re-attempt to make changes that were not accepted in the PDP work or by the Council. 8. All Council members should support the recommendations in a way that is constructive with the goal of increasing understanding of the thought processes that happened in the PDP process that led to the final recommendations. 9. Reading of lengthy portions of the report should be avoided; instead a. Those with online access during the meeting should be encouraged to link to the report; hard copies at least for Part A of the report should be available for those who do not have on-line access. b. Clear reference to well-identified sections of the report should be made when the need arises. c. Participants should be encouraged to read relevant portions of the report on their own. Session Breakdown Chuck Gomes proposed modifying the session breakdown by moving all the items dealing with contractual conditions to session two, which was the shortest session, and all the non contractual issues to session one to allow for a more coherency and a better time balance. The following assumptions were made in developing a list of panel members: • Having people on panels who are topically prepared is more important than having every constituency represented. • Panel size should be kept to a minimum to maximize time efficiency. The primary criterion for panel member recommendations was significant participation in the New gTLD Committee, not just working groups of that committee. Chris Disspain, chair of the ccNSO, was selected to be the Workshop moderator. Several panel participants were changed round due to the proposed change in topics during the sessions. In summary, session one would deal the selection process and introductory type information related to the report and the recommendations. Session two would cover contractual conditions and Session three would cover recommendations, three, six, twelve, and twenty. In each case, the related implementation guidelines would be discussed and all of the principles except for principal G, would be covered in Session one. Principal G would be covered in Session three, because it related closely to the recommendations in that section. The following comments arose from Chuck's overview: Rita Rodin emphasised that the Board was interested in hearing comments from the different constituencies, the varying points of view, where consensus could be reached and which were the contentious issues, rather than revisiting and rediscussing the issues in order for the Board to have as complete a picture as possible, when it started its deliberations. Denise Michel reported that all efforts had been made to minimise conflicts with other sessions during the workshop and the Board members would be present. Rita Rodin suggested that the GNSO provide a schedule which stipulated where Board participation was important to encourage Board member's presence at such sessions. Ray Fassett commenting on the recommendation "Application must be of a commercially reasonable length.” asked whether the committee had determined the length of time. Chuck Gomes noted that in the base contract, published some months ago, ten years had been mentioned. The draft versions of the RFP and the base contract would be ready after the LA meetings and would be posted for public comments at that time. It was suggested that the ALAC and the GAC liaisons to Council should be available in front of the audience along with Council members, not on the panel, to give supplementary information if required. The group was thanked for all the efforts that had gone into the new gTLD workshop planning. Avri Doria thanked the visitors for their participation on the call. Item 4: Discussion on PDP timing Avri Doria noted that the agenda item was prompted by two issue reports that Council had received, one on IGO Names and abbreviations and one on Domain Tasting which, following the strict timing set out in the ICANN bylaws policy development process (PDP), necessitated that the Council vote during the current meeting whether or not to initiate a policy development processes. If the vote for PDP would be successful another vote would follow on whether to form a task force or not. There appeared to be two points of view. - that the PDP processes and the appropriate timing should be followed, in which case, Avri pointed out the timing for 120 days that followed : - that more time was needed in the constituencies to reflect on the Issue Reports and a vote should be taken at the Los Angeles meeting Avri Doria suggested sending the following statement to the ICANN Board: The GNSO considers the timings contained in the bylaws impossible for proper policy development process. This has been discussed in the LSE Report and reinforced in many constituency statements on the topic of GNSO Reform. In order to continue its PDP deliberative process while waiting for the final report from the Board Governance working group, the GNSO requests that the Board vote to remove the timing requirement as currently defined in the bylaws. Chuck Gomes was supportive of the motion. Until the GNSO improvements would be implemented and the PDP revised timing would continue to an issue. Philip Sheppard commented that it behooved Council to adhere to the existing bylaw mandated deadlines, particularly in starting the process and then possibly make adjustments as the process progressed. Ross Rader was supportive of the approach but emphasised that it was necessary to work within a more pragmatic and realistic set of timelines than those outlined in the bylaws. Norbert Klein suggested recording timings so that the information could be used in adjusting the future regulations relating to the PDP. Mike Rodenbaugh commented that not all the timelines needed adjustment. The length of time for public comment periods and collection of constituency statements were reasonable. Kristina Rosette suggested going back to the constituencies and identifying what timelines could be agreed upon and why rather than leaving the issue open ended. Avri Doria proposed removing the motion, which had not been seconded, based on the Council discussion which was not in favour of removing timelines but tended towards a case by case approach. Item 5: Intergovernmental Organization Dispute Resolution Process (IGO-DRP) Report and Decision on next steps Olof Nordling reported on the staff draft Intergovernmental Organizations Domain Name Dispute Resolution Procedure which was intended to apply to dispute resolutions and procedures at the second level for new gTLDs. The object of the report was to mirror the WIPO 2 recommendations, an integral part of the UDRP, in a separate text. The report set out how these mechanisms would function,how they would be referenced in the new gTLD registry agreement and then in the registrar agreements as they became accredited for the new TLD. Olof drew attention to the key provisions in the report, section 4: "a. Applicable Disputes. You are required to submit to a mandatory administrative proceeding in the event that an International Intergovernmental Organization (IGO) (a “complainant”) asserts to the applicable Provider, in compliance with the Rules of Procedure, that (i) the registration or use, as a domain name, of the name or abbreviation of the complainant that has been communicated under Article 6ter of the Paris Convention is of a nature: (a) to suggest to the public that a connection exists between the domain name holder and the complainant; or (b) to mislead the public as to the existence of a connection between the domain name holder and the complainant; or (ii) on the ground that the registration or use, as a domain name, of a name or abbreviation of the complainant protected under an international treaty violates the terms of that treaty. In the administrative proceeding, the complainant must prove that any of the elements (i)(a) or {i)(b) or (ii) - is present. As background: On 24 May 2007, the GNSO Council passed a resolution "Whereas the GNSO Council requested at its meeting on 12 April 2006 that the Intellectual Property Interests constituency following consultations make a recommendation to the GNSO Council as to whether or not a policy development process is required. Whereas, the GNSO Council recognizes the recommendation put forward by the IPC Constituency regarding possible measures in line with WIPO-2 to protect International Intergovernmental Organizations (IGO) names and abbreviations as domain names. Whereas, the GNSO Council notes that measures to protect IGO names and abbreviations are requested in the GAC principles for New gTLDs. Whereas, the GNSO Council notes that WIPO is the maintenance agency for the authoritative list of relevant IGO names and abbreviations protected under Article 6ter of the Paris Convention (http://www.wipo.int/article6ter/en/ ). The GNSO Council requests that the staff produce an issues report on the policy issues associated with adequately handling disputes relating to IGO names and abbreviations as domain names. The GNSO Council also requests that the staff liaise with WIPO to utilize its knowledge and experience of WIPO-2." Chuck Gomes questioned differentiating between new TLD’s and existing TLD’s with regard to the proposed policy as it was a significant policy issue that would apply to new and existing gTLDs. The Government Advisory Committee had provided input that there should be such provisions, it was not included in the objection process nor in the Reserved Names discussions, nor at the second level where the issue would reside. The fundamental question was whether Council was examining a proposal to apply to names in the past and the future or only in the future? Avri Doria suggested further discussion during the GNSO working sessions in Los Angeles and proposed voting on whether or not to initiate a PDP at the current meeting. Avri Doria, seconded by Norbert Klein proposed the following motion The GNSO Council resolves to postpone the decision to initiate a policy development process (PDP) on the Intergovernmental Organization Dispute Resolution Process (IGO-DRP) until the open meeting on 31 October in Los Angeles. The motion passed unanimously by voice vote. Decision 2: The GNSO Council resolved to postpone the decision to initiate a policy development process (PDP) on the Intergovernmental Organization Dispute Resolution Process (IGO-DRP) until the open meeting on 31 October in Los Angeles Item 4: Domain Tasting report and decision on next step (20) http://www.gnso.icann.org/drafts/gnso-domain-tasting-adhoc-outcomes-report-f... Mike Rodenbaugh reported that the Domain Tasting ad hoc working group was tasked with accumulating factual information with regards to the issues outlined in staff issues report on domain tasting. http://gnso.icann.org/issues/domain-tasting/gnso-domain-tasting-report-14jun... The group met almost every week for several months and gathered information particularly in the form of a questionnaire that went out to all of the constituencies. Approximately 200 response were received, the vast majority indicating that there was an issue with domain tasting and wanted to see some sort of resolution to the issue. In addition the Registrar’s constituency contributed information on various non-tasting uses that Registrars had for the Added Grace Period (AGP). The Registries provided information in the form of graphs, tables and statistics from Neustar and Afflias. The group was asked to draft terms of reference (ToR) that could be considered by the Council in the event that a PDP would be initiated. Draft Terms of Reference: 1. Review and assess all the effects of domain tasting activities that have been identified. 2. Judge whether the overall effects justify measures to be taken to impede domain tasting. 3. If the answer to 2 is affirmative, then consider the potential impacts of measures on the Constituencies, and recommend measures designed to impede domain tasting. Ross Rader commented that in order to properly consider the forthcoming recommendations of the working group on tasting, he sought further data from staff as background information. Specifically, Ross wished to understand staff experience in enforcing clause 3.74 of the Registrar Accreditation Agreement. http://www.icann.org/registrars/ra-agreement-17may01.htm a) How many enforcement cases had been opened related to this clause in the last 5 years? b) How were these cases resolved? c) Did staff view 3.7.4 as an effective hedge against abuse of the AGP, if so, why? If not, why not? Denise Michel mentioned that an Economic Research Assistant had been retained and would take the working group output and provide additional information on issues such as a performance analysis, add grace deletes and other data points that would be useful for the Council's deliberations. This data would, however, not be available before October 31, 2007. Alan Greenberg did not support delaying a PDP process beyond the Los Angeles meeting. Chuck Gomes commented that he had currently no direction from the Registry constituency as to how to vote on the matter. Ross Rader was not supportive of voting on the issue without having a response to his questions, and the Registrar constituency had not specifically been consulted on voting. In addition, Ross recommended exploring practical steps that would remove the problem immediately. Furthermore, he did not believe that it was an issue for a policy development process. Philip Sheppard commented that looking at the question from a higher level, public interest prospective the issue was trying to correct harm that was out in the community and it behooved Council to act, as swiftly as possible, force timelines and to encourage staff to obtain the necessary information. Philip wished Council to take the attitude “Yes we recognize it’s a problem. Let’s go ahead with it, as quickly as possible." Kristina Rosette, Tony Harris, Robin Gross and Alan Greenberg were supportive of waiting until Los Angeles to enlist further input from the community. Avri Doria seconded by Chuck Gomes proposed the following motion The GNSO Council resolves to postpone the decision to initiate a policy development process (PDP) on the Domain Name Tasting issue until the open meeting on 31 October in Los Angeles. Avri Doria called for a roll call vote. 17 Votes in of favour of postponing the decision: Kristina Rosette, Tony Harris (on condition that there would be a vote on 31 October 2007), Greg Ruth, Robin Gross, Norbert Klein, Mawaki Chango, Avri Doria (each one vote) Chuck Gomes, Edmon Chung, Cary Karp, Tom Keller, Ross Rader (two votes each) 1 vote against Philip Sheppard 1 abstention Mike Rodenbaugh The motion passed. Decision 3: The GNSO Council resolved to postpone the decision to initiate a policy development process (PDP) on the Domain Name Tasting issue until the open meeting on 31 October in Los Angeles. Item 6: Registrar Transfer Policy Plan On 20 September, the GNSO Council resolved: iii). That the GNSO Council form a short-term planning group to analyse and prioritize the policy issues raised in the report "Communication to GNSO on Policy Issues Arising from Transfer Review" before the Council further considers a PDP on any of the work discussed in the report." Avri Doria called for a volunteers including a volunteer to lead the group, and added that the leader and the participants did not necessarily have to be Council members, though some Council participation was desirable. Ross Rader was appointed as the lead for the short-term planning group, Tim Ruiz and Tom Keller from the Registrar constituency, and Barbara Steele, proposed by Chuck Gomes volunteered to join the group. Olof Nordling and Karen Lentz were designated as the staff support for the group. The NCUC, IPC and ALAC indicated that they would name volunteers from their respective groups. The Issues paper would be published during the week beginning 15 October 2007. Item 7. Kristina Rosette empasised the importance of receiving substantive long documents well in advance of the Los Angeles meetings so that Councillors would have the necessary time to prepare. Item 8: Action Item review http://gnso.icann.org/meetings/pending-action-list.pdf WHOIS: Liz Gasster reported that the WHOIS staff implementation report and the staff overview, final report would be delivered to meet the 15 October timeline. New gTLDs had been discussed under Item 3. The IGO names and abbreviations would be a subject for open Council discussion in Los Angeles. Domain Tasting would be a subject for open Council discussion in Los Angeles. Response to Board resolution regarding IDN ccTLDs would be a subject for open Council discussion in Los Angeles. Registrar Transfer Policy Review: the volunteer group was in formation and the Staff Issues Report would be produced by 19 October 2007 Proxy voting: Avri Doria had received a response, but was awaiting permission from General Counsel to share it with the Council. The ICANN bylaws are explicit about councillors being able to communicate with each other at the time of voting and that has been interpreted to mean no proxy vote. Motion on term limits 2006-nov-06: Avri Doria reported that the Board Governance group would be reporting on this in their report. Question regarding WHOIS motion #2: Avri Doria reported that the response would be discussed at the Los Angeles meeting. Avri Doria adjourned the GNSO Council meeting and thanked everyone for their participation. The meeting ended at 16:10 UTC. Next GNSO Council open meeting will be in Los Angeles on 31 October 2007 at 8:30 local time UTC. see: Calendar Action Items arising from the minutes Item 4: Avri Doria undertook to obtain a response from ICANN staff on Ross Rader's questions: - to understand staff experience in enforcing clause 3.74 of the Registrar Accreditation Agreement. http://www.icann.org/registrars/ra-agreement-17may01.htm a) How many enforcement cases had been opened related to this clause in the last 5 years? b) How were these cases resolved? c) Did staff view 3.7.4 as an effective hedge against abuse of the AGP, if so, why? If not, why not? Item 6. GNSO Secretariat to follow up and collect the names of volunteers from other constituencies before the LA meetings Glen de Saint Géry GNSO Secretariat - ICANN gnso.secretariat[at]gnso.icann.org http://gnso.icann.org