[council[at]gnso.icann.org] Dear Council Members, Please find the draft minutes of the GNSO Council teleconference held on 28 September 2006. Please note that there is a Summary of Work Items arising from the minutes at the end. Please let me know if you would like any changes made. Thank you very much. Kind regards, Glen ---------------------------------------------------------------------- 28 September 2006 Proposed agenda and meeting documents List of attendees: Philip Sheppard - Commercial & Business Users C. Marilyn Cade - Commercial & Business Users C. Alistair Dixon - Commercial & Business Users C Greg Ruth - ISCPC Antonio Harris - ISCPC - absent Tony Holmes - ISCPC Thomas Keller- Registrars Ross Rader - Registrars Bruce Tonkin - Registrars - absent - apologies Ken Stubbs - gTLD registries June Seo - gTLD registries Cary Karp - gTLD registries Lucy Nichols - Intellectual Property Interests C - absent - apologies Ute Decker - Intellectual Property Interests C - absent - apologies Kiyoshi Tsuru - Intellectual Property Interests C Robin Gross - NCUC. Norbert Klein - NCUC. - absent - apologies Mawaki Chango - NCUC - absent Sophia Bekele - Nominating Committee appointee - absent Maureen Cubberley - Nominating Committee appointee - absent - apologies Avri Doria - Nominating Committee appointee 13 Council Members (18 Votes quorum) ICANN Staff Dan Halloran - Deputy General Counsel Kurt Pritz - Vice President, Business Operations Denise Michel - Vice President, Policy Development Olof Nordling - Manager, Policy Development Coordination Liz Williams - Senior Policy Counselor Glen de Saint Géry - GNSO Secretariat Maria Farrell - Policy Officer - asent - apologies GNSO Council Liaisons Suzanne Sene - GAC Liaison - absent - apologies Bret Fausett - ALAC Liaison - absent Rita Rodin - ICANN Board member Quorum present at 12:10 UTC. MP3 Recording Philip Sheppard chaired this meeting Approval of the agenda Ken Stubbs requested an update on LSE report consultations. Item 1: Update any statements of interest No updates recorded Item 2: Approval of the GNSO Council minutes of 20 July and 3 August 2006. Ken Stubbs seconded by Marilyn Cade, moved the adoption of both sets of minutes. Motion approved. Alistair Dixon abstained from approving the minutes of 20 July 2006 Avri Doria abstained from approving the minutes of 3 August 2006 Decision 1: The GNSO Council minutes of 20 July and 3 August 2006 were adopted. It was noted that status reports were required on work items in both sets of minutes. A proposal was made to note action items at the end of the minutes and follow up on the progress at the next meeting. Item 3: Correspondence - Clarification sought by PDP-Feb06 task force on whether the outcomes of the PDP would affect gTLD contracts in existence at the time the Board approves the policy. See http://www.gnso.icann.org/correspondence/cubberley-to-tonkin-25aug06.pdf The letter was resent to the Council list during the meeting. http://gnso.icann.org/mailing-lists/archives/council/msg02867.html Philip Sheppard proposed deferring the substance of the letter to the next meeting as some Council members had not seen the correspondence, but outlined the General Counsels response. http://gnso.icann.org/mailing-lists/archives/council/msg02867.html The letter opened by recognising the nature of the Council's request, the difficulty that faced the task force because there was no uniform language on consensus policy in terms of what was included or not under the consensus policy references in contracts which used wording such as, 'that under certain circumstance the policy recommended by the GNSO Council can create binding obligations on registries and registrars'. An extensive example was given of the consensus policy clauses in the .jobs registry agreement which included five ' picket fence' categories of scoping areas for which consensus policies applied. It was difficult to be precise about what was in scope without knowing the exact nature of the issue and comparing it with the five picket fence categories. Philip Sheppard referred to Bruce Tonkin's recommendation http://gnso.icann.org/mailing-lists/archives/council/msg02865.html I recommend that the GNSO Council ask the Board to delay making a decision on changes to the existing gTLD agreements (biz, info, org) until the Sao Paulo ICANN meeting in December 2006, and that the Board at the time, take into account the level of consensus reached around the issues being considered in the PDP-Feb 06 task force. There was general support for the PDP-Feb06 task force to continue its work and appoint an interim chair. Given the present situation,additional staffing support was required and that council should lend support to senior staff to examine providing additional resources, including support for a face to face meeting. Ken Stubbs commented that the Registry constituency had strong feelings about delaying decisions on changes to the existing gTLD agreements, and was not in agreement with the delay. The discussion was strongly in favour of the ICANN Board hearing the public discussion during and the transparency that the ICANN meetings in Sao Paulo would provide to critical issues that related to consensus policy. Rita Rodin commented that the Board was clearly aware of the different factions in the community and as much information as possible given to the Board in Sao Paulo would be helpful. The GNSO Council would assist the PDPFeb06 task force to prioritize issues. The task force should not give up on concluding its work by Sao Paulo, what was being agreed was a worst case scenario if all the work was not concluded, Philip Sheppard, seconded by Ross Rader proposed: 1. The GNSO Council resolves: a) To instruct the PDPFeb06 task force to continue its work, to appoint an interim chair b) To instruct staff to propose a work schedule in agreement with the interim chair and Task Force this week and carry it out c) To ask the General Counsel within 14 days to list all ICANN agreements sections on consensus policy d) To ask the General Counsel within 14 days to compare and contrast the PDP06 Terms of Reference with the so –called “picket fence” consensus policy areas and provide a without prejudice assessment of likelihood of in or out of scope indicating uncertainty as necessary. Passed by acclaim. Philip Sheppard, seconded by Ross Rader proposed: The GNSO Council resolves: To request the Board to delay any decision on the .biz .info and .org agreements until the ICANN Board meeting after the Sao Paolo ICANN meetings 2006 and to take into account the current outcome of the PDPFeb06 task force at that time. Avri Doria's friendly amendment was accepted: 'until the ICANN Board meeting after the Sao Paolo ICANN meetings 2006' Roll call vote. The motion passed. 11 votes in favour, (Marilyn Cade, Alistair Dixon, Philip Sheppard, Tony Holmes, Greg Ruth, Robin Gross, Ross Rader, Tom Keller, Avri Doria) 6 votes against, (Cary karp, Ken Stubbs, June Seo) (Kiyoshi Tsuru dropped off the call at the time of the vote) Decision 2: 1. The GNSO Council resolves: a) To instruct the PDPFeb06 task force to continue its work, to appoint an interim chair b) To instruct staff to propose a work schedule in agreement with the interim chair and Task Force this week and carry it out c) To ask the General Counsel within 14 days to list all ICANN agreements sections on consensus policy d) To ask the General Counsel within 14 days to compare and contrast the PDP06 Terms of Reference with the so –called “picket fence” consensus policy areas and provide a without prejudice assessment of likelihood of in or out of scope indicating uncertainty as necessary. Decision 3: The GNSO Council resolves: To request the Board to delay any decision on the .biz .info and .org agreements until the ICANN Board meeting after the Sao Paolo ICANN meetings 2006 and to take into account the current outcome of the PDPFeb06 task force at that time. Item 4: Proposed bylaws amendment to improve transparency with respect to contract approvals - update from General Counsel on action with respect to the GNSO request of 18 August 05 regarding proposed changes to ICANN bylaws to improve transparency with respect to contract approvals Philip Sheppard outlined the background to item 4 that related to an August 2005 request from the Council to the ICANN Board that the GNSO should have notification when there were changes in contract provisions made by ICANN agreements. At the time there was a suggestion to change ARTICLE III: TRANSPARENCY in the bylaws http://www.icann.org/general/archive-bylaws/bylaws-28feb06.htm#III and to amend Section 6 NOTICE AND COMMENT ON POLICY ACTIONS to add in 'policies or contracts'. On examination, the General counsel's office suggested creating a new section 7 under the transparency article: Notice and comment on gTLD agreement approvals "With respect to any proposed GTLD registry or registrar agreement that includes material contractual provisions that substantially differ from other past ICANN agreements, ICANN will notify the GNSO Council and post the proposed agreement with a public comment forum on the ICANN website at least twenty-one days (and if practical, longer) prior to any final approval of the agreement." Dan Halloran commented that the goal, in preparing this language, was to attempt to meet the GNSO's needs, while not (inadvertently) requiring the ICANN Board to post every consulting contract or grammar correction to a registry agreement. The original text from Jon Nevett suggested putting 'contract approvals' in section 6 which covers how ICANN treats proposed new policies that could affect third parties and in some cases parties that have agreed to comply with policies, but have not specifically agreed to follow a particular policy. In this case, proven bi-lateral agreements between ICANN and a contracted party which are recognised to have an impact on third parties. This clarified exactly which contracts would be subject, particularly any gTLD registry or registrar agreement with material provisions that substantially differed from past ICANN agreements. This proposed new Bylaws provision would require ICANN to notify the GNSO Council and allow for at least a 21-day public comment period before approving any GTLD (sponsored or unsponsored) registry or registrar agreement that is substantially different from other past ICANN agreements: The question arose whether 'substantially' would be the appropriate word as the circumstances related to contractual conditions that would result in some policy changes. A substantial change to a TLD might not necessarily be a substantial difference from other TLDs. For example, changing dot aero from a restricted TLD for the airline transport industry to an open restricted TLD would be a substantial difference for dot aero but it would be the same as other ICANN contracts. This point should be caught in revised language. Philip Sheppard noted that Council agreed in principle with a new section 7 but the issue was the precise wording. It was suggested that Jon Nevett, the author of the original text, and Alistair Dixon work off line to make a joint proposal to present to Council at the next meeting on 19 October. Marilyn Cade proposed, as a formal procedure, to invite the authors of proposals to the GNSO Council meeting at which the proposal would be discussed. Item 5: Next steps with respect to Internationalised Domain Names (IDNs) - the proposed terms of reference on an IDN PDP was reviewed in the context of the draft recommendations for new gTLD arising from the Amsterdam meeting Philip Sheppard outlined that Council had agreed on a separate policy development process (PDP) on IDNs acknowledging the current PDP on new Top level domains as well. There was general agreement on the IDN terms of reference, http://gnso.icann.org/issues/idn-tlds/issues-report-02aug06.htm#f which following consultation, also had support from the Board and the ccNSO. Since then there had been a set of recommendations from the new gTLD committee meeting in Amsterdam http://gnso.icann.org/issues/new-gtlds/recom-summary-14sep06.htm which had led to a possible mismatch between the IDN terms of reference and the Amsterdam recommendations. Olof Nordling reported that there was certain agreement on the same treatment for IDN and non IDN gTLD applications which should also apply to the pre-reservation of IDN gTLD labels in the first new gTLD round. In addition, the contractual conditions for any new gTLD would require observance of the IETF standards, RFC and ICANN IDN guidelines thus many of the foreseen issues in the IDN Issues report would be resolved by the recommendations and agreed principles leaving only details. Among the details, would be vetting strings, and the minimum length for strings, and inferring from the current practice, a minimum would be three code points for an IDN gTLD. In addition, the rules governing permissible scripts or language in an IDN label should be agreed upon before a request would be launched for the next TLD round, provided that pre-registration were accepted. A new issue, related to implementation would be the extent of the processes for vetting and checking in pre-registration. With regard to permissible scripts and language, the IDN guidelines would be strictly applied to top level domains. The number of issues that need to be dealt with in advance of a request for proposal would be reduced and others, such as the UDRP, would require modification for IDN and non IDN gTLDs which could be treated the same way. Philip Sheppard suggested requesting Olof Nordling, working on IDNs and Liz Williams covering the PDP on new gTLDs to work together and examine a proposal for refined terms of reference bearing in mind the outcome of the Amsterdam meetings, overlap areas, and produce a list of work items on IDNs. At the next meeting it could be decided whether or not to go forward with a PDP mechanism on that set of issues or look at an alternative. Comments indicated that the PDP provided a tool where policy was needed and a means of exploring issues to ensure the Council is informed and would be able to make informed decisions. The current terms of reference for IDNs seemed to require significant adjustment to take into account the experience gained and may have to be refined continually. In essence there was no difference between one alphabet and another when used to indicate a top level domain label but because there was a political component which did not map neatly into the ccTLD or gTLD current dichotomy, either a new category of TLDs was needed or there should be clarity on which policy would apply. Philip Sheppard proposed two work items: Olof Nordling was requested to prepare for the next Council meeting on 19 October 2006, 1. proposed changed terms of reference for IDNs, indicating clearly deletions and changes that related to the relationship between the IDN PDP current terms of reference and the present status of the new gTLD PDP Dec05. 2. take into account the country code and overlap issues which could be included in the same analysis or separately. Item 7: Motion proposed by Philip Sheppard Proposes revised text http://gnso.icann.org/mailing-lists/archives/council/msg02861.html Whereas: Article X section 3.4 of the ICANN bylaws states: “The GNSO Council is responsible for managing the policy development process of the GNSO. It shall adopt such procedures as it sees fit to carry out that responsibility, provided that such procedures are approved by the Board, and further provided that, until any modifications are recommended by the GNSO Council and approved by the Board, the applicable procedures shall be as set forth in Section 6 of this Article”. Article X section 6 of the bylaws states: “Initially, the policy-development procedures to be followed by the GNSO shall be as stated in Annex A to these Bylaws”. Annex A of the bylaws contains procedures for the GNSO policy development process; Experience has shown that the procedures of Annex A are inappropriate for the work of the GNSO; Recommendation 5 of the 2004 GNSO Council review recommended changing the procedures; The ICANN by-laws are not the place for such procedures which may need to be re-visited frequently. The GNSO Council resolves: a) To request ICANN staff to draft a new set of procedures within 30 days reflecting the experience of previous PDPs and the recommendations of the Council review 2004; b) To request ICANN staff to submit those new procedures to Council for approval; c) To request ICANN staff to then inform the Board that the Council has adopted new procedures; d) and that therefore the Council requests the Board: - to approve its new procedures; - resolves to delete Article X section 6 and Annex A of the by-laws; - resolves to change section 3.4 to read: “The GNSO Council is responsible for managing the policy development process of the GNSO. It shall adopt such procedures as it sees fit to carry out that responsibility, provided that such procedures are approved by the Board. The Board will execute the following procedure within 60 days of the completion of a GNSO policy development process: - In the event that the Council reached a Supermajority Vote, the Board shall adopt the policy according to the Council Supermajority Vote recommendation unless by a vote of more than sixty-six (66%) percent of the Board determines that such policy is not in the best interests of the ICANN community or ICANN. - In the event that the Board determines not to act in accordance with the Council Supermajority Vote recommendation, the Board shall (i) articulate the reasons for its determination in a report to the Council (the "Board Statement"); and (ii) submit the Board Statement to the Council. The background to this proposal was not only Council's experience with the PDP and the timelines, which were originally a set of guidelines, and then became the annex to the ICANN bylaws, but it also referred to an action item in the Partick Sharry review of the Council. Discussion indicated that the proposal did not remove the PDP from the bylaws, but removed the management of all the sub elements of the PDP from the bylaws. It allowed flexibility in policy management appropriately in the hands of the Council rather than being enshrined in the bylaws. While there was support for the proposal, Ken Stubbs, supported by Tom Keller and Kiyoshi Tsuru requested a specific delay for a vote to be taken. Philip Sheppard, seconded by Alistair Dixon, proposed: The GNSO Council resolves to direct staff to begin gathering the information data, conduct the research and pull together all the back ground and historical information that would be needed for the review and then recommend changes to the PDP. Passed by acclaim Motion in Item 7 deferred. Decision 4. The GNSO Council resolves to direct staff to begin gathering the information data, conduct the research and pull together all the back ground and historical information that would be needed for the review and then recommend changes to the PDP. Item 6: Next steps for improving the GNSO structure and processes Taking into account the 2004 review of the GNSO Council, the about to be released review of the GNSO by the London School of Economics, and the experience of the Council, consider the next steps to identify changes to be made, and identify any changes required in the bylaws to allow these changes. On Tuesday, 3 October, 2006, at 12:00 UTC, a teleconference is scheduled with a short powerpoint presentation from Prof. Patrick Dunleavy followed by a question and answer session for Council and constituency members and other interested parties. The LSE, via scheduling through the Secretariat, was available to brief any constituencies on the LSE Report. Marilyn Cade noted that it should not be interpreted as lack of interest because some constituencies did not request separate briefings from the LSE. The ICANN Bylaws required a review of the GNSO, a report to be published, and the ICANN Board to review and take appropriate action on the report. Denise Michel outlined a collaborative approach, forming 2 joint Board GNSO working groups to consider the LSE Report (annexes) and the previous Patrick Sharry report, to improve the GNSO policy activities, structure, operations and communication. The mandate of the joint working groups would be to broadly solicit input and then recommend specific changes for the GNSO. Issues to be addressed would include the policy development process, voting and representation on the Council, GNSO representation on the Board, the GNSO constituencies, stakeholder participation structure, staffing and support of the Council and constituencies, and other operational issues related to the workings of the GNSO, distribution of information and solicitation of comments, including improvement of the website and the use of mail server lists. Denise further recommended that the working groups be populated by a combination of GNSO, community and Board members, with representation from the Government Advisory Committee and the At Large Advisory Committee. In reaction to the joint working groups it was clarified that the Supporting Organisations made up ICANN as opposed to the ICANN Board dictating to the supporting organisations. A comparative survey of policy making in other groups made up of multi-stakeholders was suggested. A specific dedicated staff person was suggested to maintain the oversight and coordination of the joint working groups. Item 8: Update on planning for Sao Paulo The Secretariat posted a skeleton schedule to the Council list and councillors were requested to comment. http://gnso.icann.org/mailing-lists/archives/council/msg02866.html Item 9: AOB No items stated. Philip Sheppard formally closed the meeting and thanked everybody for participating. The meeting ended: 13:05 UTC Next GNSO Council teleconference 19 October at 12:00 UTC see: Calendar Summary of Work Items arising from the minutes: 1. A proposal was made to note action items at the end of the minutes and follow up on the progress at the next meeting. 2. Marilyn Cade proposed, as a formal procedure, to invite the authors of proposals to the GNSO Council meeting at which the proposal would be discussed. 3. Decision 2: 1. The GNSO Council resolves: a) To instruct the PDPFeb06 task force to continue its work, to appoint an interim chair b) To instruct staff to propose a work schedule in agreement with the interim chair and Task Force this week and carry it out c) To ask the General Counsel within 14 days to list all ICANN agreements sections on consensus policy d) To ask the General Counsel within 14 days to compare and contrast the PDP06 Terms of Reference with the so –called “picket fence” consensus policy areas and provide a without prejudice assessment of likelihood of in or out of scope indicating uncertainty as necessary. 4. Decision 3: The GNSO Council resolves: To request the Board to delay any decision on the .biz .info and .org agreements until the ICANN Board meeting after the Sao Paolo ICANN meetings 2006 and to take into account the current outcome of the PDPFeb06 task force at that time. 5. New Section 7: Notice and comment on gTLD agreement approvals It was suggested that Jon Nevett, the author of the original text, and Alistair Dixon work off line to make a joint proposal to present to Council at the next meeting on 19 October. "With respect to any proposed GTLD registry or registrar agreement that includes material contractual provisions that substantially differ from other past ICANN agreements, ICANN will notify the GNSO Council and post the proposed agreement with a public comment forum on the ICANN website at least twenty-one days (and if practical, longer) prior to any final approval of the agreement." 6. Olof Nordling was requested to prepare for the next Council meeting on 19 October 2006, 1. proposed changed terms of reference for IDNs, indicating clearly deletions and changes that related to the relationship between the IDN PDP current terms of reference and the present status of the new gTLD PDP Dec05. 2. take into account the country code and overlap issues which could be included in the same analysis or separately. 7. Decision 4. The GNSO Council resolves to direct staff to begin gathering the information data, conduct the research and pull together all the back ground and historical information that would be needed for the review and then recommend changes to the PDP. Glen de Saint Géry GNSO Secretariat - ICANN gnso.secretariat[at]gnso.icann.org http://gnso.icann.org