[To: council[at]gnso.icann.org] Dear Council members, Please find the draft GNSO Council teleconference minutes of 6 February 2006. Please let me know if ther are changes you would like made. Thank you very much. Kind regards, Glen 6 February 2006 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 - proxy to Tony Harris/Greg Ruth if necessary Thomas Keller- Registrars Ross Rader - Registrars - proxy Bruce Tonkin if necessary Bruce Tonkin - Registrars Ken Stubbs - gTLD registries June Seo - gTLD registries - proxy to Ken Stubbs Cary Karp - gTLD registries Lucy Nichols - Intellectual Property Interests C - absent - apologies - proxy to Kiyoshi Tsuru/Ute Decker Ute Decker - Intellectual Property Interests C - proxy to Kiyoshi Tsuru if necessary Kiyoshi Tsuru - Intellectual Property Interests C. Robin Gross - NCUC. Norbert Klein - NCUC. - absent Mawaki Chango - NCUC Sophia Bekele - Nominating Committee appointee Maureen Cubberley - Nominating Committee appointee Avri Doria - Nominating Committee appointee - proxy to Robin Gross if necessary 19 Council Members ICANN Staff John Jeffrey - General Counsel Kurt Pritz - Vice President, Business Operations Olof Nordling - Manager, Policy Development Coordination Maria Farrell - ICANN GNSO Policy Support Officer Liz Williams - Senior Policy Counselor - absent - apologies Glen de Saint Géry - GNSO Secretariat GNSO Council Liaisons Suzanne Sene - GAC Liaison Bret Fausett - ALAC Liaison - absent - apologies Michael Palage - ICANN Board member Quorum present at 19:08 UTC. MP3 Recording Bruce Tonkin chaired this teleconference. Approval of agenda Marilyn Cade requested a discussion on the draft comment to the ICANN Board under item 7, Any Other Business. Item 1: Approval of minutes - GNSO Council teleconference minutes 17 January 2006 The approval of the minutes deferred to next Council meeting. Bruce Tonkin asked John Jeffrey to provide some advice, on how the Council should manage Statements of Interest, related to the purpose of the council in comparison with the purpose of the ICANN board, and to elaborate on the role of councilors and voting circumstances. The ICANN Board's policy, required declaring certain interests as well as disclosing financial interests on a certain vote while the council advocated positions on behalf of their constituencies. John Jeffrey applauded the council for examining the issue and believed that the council should develop its own policy. Councilors have specific interests and promote the interests of their constituencies which is different to the Board which acts on behalf of the organization, not for specific interests. Maureen Cubberley, referred to CIRA board's conflict of interest policy based on a set of principles, and suggested that the Council adopt a similar framework. The basic idea was that everybody would be required to openly disclose a potential, real or perceived conflict before the board or council dealt with any issues specific to it. The onus was on individuals to immediately declare an issue, rather than make a one time or annual declaration. Furthermore, if councillors became aware of conflicting interests on the part of another council members they would be responsible for announcing the potential conflicts. John Jeffrey commented that the state of the art of conflicts in the American corporate world had changed dramatically with the Sarbane-Oxley rules and additional transparency requirements for public boards. Some of the requirements had been transmitted to non- profit organisations such as ICANN. The standards had shifted in what might be declared as an interest, to what might relate to future interests and possible interests relating to relationships that have been created or not yet formalized at the time of the issue or the vote. State of the art of conflicts required the contemporaneous disclosure of interest as opposed to an annual statement which may or may not be up to date at the point of discussion. Council should carefully consider such issues in establishing a policy. The ICANN Board's Conflicts Committee created a questionnaire, providing detailed information on how to set out conflicts and bridge cultural or other issues relating to conflicts. Conflicts are convoluted and complicated for lawyers and even for those specialized in the area. Cary Karp asked how the distinction was perceived between a councillor advocating a constituency interest and speaking more broadly about issues before the Council, but not necessarily specifically relating to the constituency represented. John Jeffrey responded that personal interests, distinct to the constituency, were worth pointing out and would be relevant for the ICANN Board to consider in examining Council's vote. An explanation of how an interest might conflict with an issue or a particular vote would be relevant to the Council whether it were constituency based or not . The process should be as transparent as possible and if interests would impact or would have the potential to impact a vote or discussion they should be clearly stated. Marilyn Cade suggested working on a set of guidelines as a longer term project and having further dialogue with general Counsel on the issue. Marilyn noted that there was the tendency to believe mentioning the company that employed someone actually described their interest while it was not the case. Sophia Bekele commented that as ICANN was based on a constituency model it was difficult to define conflict of interests because they existed in the organisation's basic structure. Therefore, a unique approach was required to address issues such as transparency and define "transparent". Item 2: Issues Report on policy issues raised in the proposed .com agreement - consider the issues report (due 1 February 2006) - decide whether to initiate the PDP Bruce Tonkin inquired whether any councillor had a new conflict on the issue, since the statements of interest during the Council meeting in Vancouver 2 December 2005, or whether any councillor, who had joined the Council since the Vancouver meetings had a particular interest in the topic? Bruce Tonkin referring to the StaffIssues Report on the dotCOM agreement , 1 February 2006 said that a decision had to be made whether to initiate a policy development process on the basis of the Issues Report or whether further action should be taken. Marilyn Cade proposed that the Council move ahead with initiating the policy development process with the definition of the intent of Council. Marilyn commented that from previous discussions in Vancouver, the conference call on 17 January 2006, constituency and other contributions on the proposed dot COM agreement there was a narrowness of interpretation in the Issues Report that was not consistent with Council's intent . While the Issue Report captured a resume of the issues, discussions in Vancouver and the Commercial and Business constituency position noted that there were issues embedded in the proposed dot COM agreement that had implications for the existing and future registry tld agreements which did not appear as the interpretation in some parts of the Issues Report. Marilyn further noted that Council could always be approached and was willing to clarify its intent. Olof Nordling clarified that Staff, on a short statement and the resolution from the Council, were requested to provide an Issues Report related to the dotCom proposed agreement, taking into account the various views that the constituencies had expressed which narrowed it down rather than making it generally applicable to the existing policy development process on new tlds which included a chapter on contractual conditions. Ken Stubbs believed that the staff addressed the specific request from council, and expressed concern that moving the target may pervert the process, developed in part by council members, set out in the ICANN bylaws. Ken suggested that clearer guidelines were needed when requesting an Issues Report and Council needed to examine the policy development process in the future to make it work more effectively. There were legal issues involved that impacted far beyond the issues report and the gTLD expansion process which were not within the issues under discussion. Philip Sheppard remarked that the essence of the dissonance on the issues report seemed to arise because it was solely predicated on the 17 January 2006 Council resolution and did not factor in Council's intent, a direct follow up from the report on 2 December 2005, which explicitly mapped out Council's concern and the broader implications of the settlement. Therefore, the interest in the issue as a policy development process, and not specific to one contract that developed from the secondary resolution. Bruce Tonkin summarizing the discussion, asked the following questions: Whether General Counsel had only listened to the January 17 2006 mp3 recording of the Council meeting ? Whether the proposed issues in Section D of the Issues Report were within ICANN's mission and the GNSO responsibilities with respect to that mission ? "Discussion of the Proposed Issues Registry Agreements Renewal Should the registry agreements provide that consensus policies may not affect certain terms in the agreement, Should ICANN registry agreements prescribe or limit the prices for registry services, Are ICANN fees defined in registry agreements subject to policy discussion, Should the uses of traffic data available to registry as a consequence of registry operation be restricted, Should registry agreements require the specific investment levels in the areas of development and infrastructure " John Jeffrey commented that the issues in section d were not evaluated with the scope of ICANN' s mission and the GNSO responsibilities in mind, so it should be taken under advisement. The Staff faced the problem that what Council requested on 17 January 2006 did not mention wider scope. General Counsel listened to the mp3 recording of the GNSO Council meeting on January 17, 2006 to determine whether it was possible to elicit a broader meaning. Its scope indicated that it was focused on the .com registry agreement which formed the base of the analysis. John commented that it was difficult to go back to the December 2, 2005 resolution that he had previously he listened to, but had not been considered in forming this opinion, and try to imply what the council meant by January 17, 2006. The report attempted to identify the issues Council commented on regarding the constituency statements but not relating to a specific agreement. The policy development process guidelines specify that staff should not find options for the solutions. Olof Nordling commented that Staff tried to extract general information with a view to informing the new TLD policy development process in developing consensus policy applicable to broader contractual conditions for TLDs. Bruce Tonkin mentioned that as an option to move forward and referred to the 4th item in the terms of reference of the new gTLD PDP initiated in December 2005 concerning contractual conditions. It was Council's expectation that the conditions applied to all gTLDS and perhaps a clarification should be issued stating that the outcome of the policy development process would be consensus policy that applied to all gTLDs. Bruce Tonkin noted further that the Terms of Reference for new gTLDs had been put out for comment and the Council agreed to them so they were not to change. Grant Forsyth proposed an alternative solution. In the ICANN bylaws, annex A, describing the policy development process, Council could proceed with a policy development process, even though General Counsel's opinion considered it out of scope, with a 66% vote in favour. Thus Grant Forsyth proposed that Council vote to start a policy development process based on the Staff Issues Report . John Jeffrey commented that council needed to understand whether, by the motion, they wanted to move forward with the review of the .com proposed registry agreement. If that were the case, the issues report accepted, the Staff's view that deemed it out of scope overridden, would Council then be saying that the issue of reviewing the single proposed dotCOM agreement was appropriate and was that Council's intention? The language in Council’s resolution was clear " that the Council solicit an issues a report related to the .com proposed agreement in relation to the various views that have been expressed by the constituencies." It did not say an "issues report relating to the various issues that have been raised by the constituencies as part of the .com proposed agreement review". It was not the same thing, Council was authorising a policy development process to review the .com proposed agreement if it went forward. John Jeffrey went on to say that the resolution itself called on the .com agreement, it did not mention that it applied to broader issues. It was suggested that it would be more appropriate for Council to re frame the issue appropriately and send it back for a second issues report. This suggestion raised the time it would involve as the ICANN board was moving ahead with .dotCOM proposed agreement and the window needed to be used immediately. Maureen Cubberley supported moving ahead with a policy development process not specific to the proposed dotCOM agreement but covering cover new and existing gTLD agreement and questioned whether there were more than the 6 issues in Section D, Discussion of Proposed Issues, mentioned in the Staff Issue Report on pages 5, 6 and 7. Bruce Tonkin summarised and commented that Council members needed to consider the legal advice heard . John Jeffrey had pointed out that the Issues Report was produced in response to the wording of the January 17 2006 meeting. Marilyn Cade and Grant Forsyth had recommended adjusting motion before Council to include broader issues. Grant Forsyth, seconded by Marilyn Cade proposed the motion: Council resolves to initiate a Policy Development Process in line with it's 17 January 2006 request for an issues report the intent of which was to address the broader policy issues raised." The motion carried with a supermajority of votes of council members present. Vote: 19 votes in favour, Marilyn Cade, Philip Sheppard, Grant Forsyth, (CBUC) Ute Decker, Kiyoshi Tsuru, (IPC) Tony Holmes, Tony Harris, Greg Ruth, (ISPCPC) Robin Gross (NCUC), Bruce Tonkin (2), Ross Rader (2), Tom Keller (2)(Registrars constituency), Maureen Cubberley, Sophia Bekele, Avri Doria (Nominating committee appointees), (18 votes) 6 votes against, Cary Karp (2), Ken Stubbs (2), June Seo (2) (gTLD registries constituency) 1 abstention Mawaki Chango (NCUC) In addition, Kiyoshi Tsuru voted a proxy in favour for Lucy Nichols (IPC) who was absent. 1 person was not on the call Norbert Klein (NCUC) June Seo verified his vote: I hereby verify that I voted "No" on the motion below. Just to clarify my intentions for the proxy statement I made during the initial voting procedure, I think I should have made statements in advance on why I wanted to do it earlier than my proxy statement. As I mentioned during the call, I am in the Council to represent my constituency's position, not my personal one. The Articles of Operations of the gTLD Constituency also require me to represent the views of the Constituency. I do not believe there are any conflicts of interests for me to vote in this motion, but I wanted to avoid any probable misperceptions of conflicts of interests by giving my proxy to Ken. Decision 1: Council resolves to initiate a Policy Development Process in line with it's 17 January 2006 request for an issues report the intent of which was to address the broader policy issues raised." Item 3: Initial Report on new gTLDs - consider constituency statements and public comments (due 31 January 2006) - discuss content of Initial Report (due on 15 February 2006) Olof Nordling reported that not all constituencies had provided their statement. Item 4: Next meeting - 21 February 2006 - Consider holding a two day physical meeting around 21 February 2006 in Washington, DC to advance the work on policy issues in items 2 and 3 above Bruce Tonkin stated that given the community pressure to move ahead quickly with policy work on new gTLDs, a face-to-face committee meeting was proposed in Washington DC. in mid February. Bruce Tonkin, seconded by Philip Sheppard proposed a procedural motion To hold a GNSO Council teleconference on 16 February 2006 and to hold a physical meeting of GNSO Council committee where constituencies could send one or more representatives round about 24/25 February 2006 in Washington DC. A procedural motion was passed by the GNSO Council by roll call vote 22 votes in favour. Ute Decker, Kiyoshi Tsuru with proxy for Lucy Nichols, and Greg Ruth did not vote as they had dropped off the call, and Norbert Klein was not present on the call from the beginning. Decision 2: A procedural motion was passed by the GNSO Council To hold a GNSO Council teleconference on 16 February 2006 and to hold a physical meeting of GNSO Council committee where constituencies could send one or more representatives round about 24/25 February 2006 in Washington DC. Bruce Tonkin clarified that the teleconference on 16 February would address the Terms of Reference for the new policy development process on " Council resolves to initiate a Policy Development Process in line with it's 17 January 2006 request for an issues report the intent of which was to address the broader policy issues raised." Item 5: Statements of Interest - deferred Item 6: Discussion of latest IAB draft on IDNs - deferred to a specific teleconference Item 7 Any Other Business Bruce Tonkin referred to Marilyn Cade's posting and proposed to contact Dr. Vint Cerf and to ascertain the best way for the GNSO Council to provide advice to The ICANN Board. Bruce Tonkin declared the GNSO meeting closed and thanked everybody for participating. The meeting ended: 21:40 UTC. Next GNSO Council teleconference 16 February 2006 at 19:00 UTC see: Calendar -- Glen de Saint Géry GNSO Secretariat - ICANN gnso.secretariat[at]gnso.icann.org http://gnso.icann.org