Hello All, The staff have issued a preliminary report of the ICANN Board teleconference held last week on 11 Sept 2007. Note that you can see that the minutes of the Board meetings are becoming more detailed in terms of reporting the nature of the discussion. Relevant pieces of information for the GNSO Council are: - The location for the ICANN meeting in Feb 2008 is Delhi, India - appointment of Hagen Hultzsch as chair of the nominating committee for next year - there was a discussion on proposed .post agreement, and renewal of .aero and .museum - various exceptions are being sought relating to consensus policies and use of registrars by gTLD registries - my comments were mainly related to taking a uniform approach rather than a case-by-case approach - there was a discussion about the WHOIS policy work - you can see my comments below - generally from reading this list I was not too optimistic that the Council would reach broad agreement in support of a new WHOIS recommendation. I have copied the relevant sections from: http://www.icann.org/minutes/prelim-report-11sep07.htm that cover the discussion on the registry agreements and WHOIS. Any feedback from the Council or Council members on matters before the Board relating to generic top level domain names would be welcome. Regards, Bruce Tonkin GNSO elected ICANN Board member From: http://www.icann.org/minutes/prelim-report-11sep07.htm Status Report on discussions with the UPU regarding .POST and renewal agreements for .AERO and .MUSEUM ======================================================================== ============================== Kurt Pritz advised that there are issues in common with all the ongoing sTLD negotiations (.MUSEUM, .AERO, and .POST). In some cases negotiations are close to conclusion and in other cases, additional negotiation is required. These issues have come up in other recent registry negotiations and these issues have been themes for discussion across the gTLD community. First, registries are seeking limitations to the requirement to comply with ICANN consensus policies and have to follow and comply with consensus policies. The second issue is the requirement to use ICANN accredited registrars to register names in gTLD registries. The third issue is the request for a clause in the agreement requiring indemnification by ICANN to registries for costs associated with compliance to consensus policies. This last clause was included in old gTLD agreements but was eliminated in all new gTLD (including sTLD) agreements. Indemnification was seen as necessary in early days of gTLD development but as the market and registries have matured, it has become apparent that this form of indemnification is not necessary or desirable in the future development of the DNS. Steve Goldstein asked what it means to comply with consensus policies? Kurt Pritz advised that the ccNSO, GNSO or ASO are designated to recommend consensus policy to Board. When the Board approves the consensus policy, it is incorporated by reference into the gTLD agreements. Steve Goldstein clarified that after a contract is signed these can be amended because there are new consensus policies. Kurt Pritz responded that registry agreements include a clause that requires compliance with consensus policy even when the policy is approved after the contract is executed. Sponsored TLDs, by their definition, have significant policy making authority. So certain policy-making authority is reserved to the sponsoring organization in sTLDs. Recent sTLD agreements include requirement for compliance with consensus policy, including the process for considering new registry services - a stability and security threshold review. As these contractual issues were raised, ICANN facilitated public discussion on each and requested public explanations of the sTLDs as to why these contract changes are important to them. It is important for the Board to understand that the public discussion will not necessarily lead to agreement across constituency groups and the Board may be left to decide whether certain agreement terms should be approved in the face of criticism. Kurt then reviewed the negotiating status on each of the registries, as follows: Negotiation status - .MUSEUM: This negotiation is complete, a second version of the agreement is posted for public comment. The controversial issue was that .MUSEUM asked to "self-register" 5000 names. The reason was that .MUSEUM wished to replace the functionality of their "wildcard" that .MUSEUM was giving up in this negotiation. After registrar constituency criticism, Cary Karp met with the registrar constituency in Lisbon. Through that discussion, the contract language evolved to what is posted, including a reduction in the number of names to 4000. The proposed new language was posted on 31 August 2007 and thus far, there has been no comment from the registrar community, which has been primary in its opposition. ICANN Staff anticipates asking the Board to approve the agreement at the 16 October 2007 Board Meeting. Negotiation status - .AERO: Many contractual issues have been resolved, however, some core issues remain uncompleted. The sponsor SITA states that, in the proposed agreement, the language does not adequately protect the sponsor's delegated policy making authority. They have requested a significant exemption from consensus policy compliance. SITA also requested that the old indemnification clause remain in their contract even thought the clause in other agreements has been eliminated. They claim they should not be responsible for costs arising from ICANN actions. Finally, they wish to eliminate the clause present in other agreements that prohibits registries from owning a 15% interest in a gTLD registrar. Their reason is, that in their large organization, a registrar may be acquired without notice to the sponsoring organization. While negotiations are amicable, ICANN Staff and SITA disagree on the approach to these three core issues. Staff continues to work for a conclusion that SITA and ICANN Staff can mutually recommend. Negotiation status - .POST: UPU, the sponsor, has in recent months invigorated the negotiation. The issues here are similar. The UPU seeks exemption from consensus policy and to include indemnification by ICANN for certain costs to the registry. Additionally, their scheme does not plan to utilize ICANN registrars for their 300-400 primary registrations of their member states (uk.POST, for example). These requests have been based on the UPU's special status as a U.N. organization. ICANN has posted a UPU position paper describing their business plan and model to the gTLD constituency group, which has been offered to the community for input. The UPU would like to complete negotiations before the Los Angeles ICANN Meeting, but time is running short for appropriate comment periods and the issues remain controversial. Susan Crawford considered that in relation to the consensus policy structure, it will be important for ICANN to stick with the consensus policy model as it gives ICANN legitimacy and consistency in dealing with registries so long as the right process has been used to achieve the policy. Susan acknowledged the difficulty but concluded that it is essential that the consensus policy clause remain in the agreement. With regard to business models, she hoped it would not always be the case that ICANN-accredited registrars were to be used. Bruce Tonkin noted that in the context of the new gTLD process where the aim is to get consistency in agreements, he is wary of considering agreements on a case-by-case basis. The requirements to adhere to Consensus policy and use ICANN accredited registrars are covered in the proposed new gTLDs policy. His view is that given how hard it is to develop consensus policies these should be adhered to by registries and registrars noting for example that the new gTLD process has taken two years of intensive negotiation and has been through rigorous process. The use of registrars has been part of new gTLD discussion between registries and registrars and the general principle is that the registrar should be accredited by ICANN and should be treated equally. There have been some discussions over whether there should continue to be restrictions on the level of ownership by a registry of a registrar, and whether a registry may also be accredited as a registrar for its TLD. With regard to .POST and the three to four hundred names, there should be a separation between domain name allocation and domain name records maintenance. The .POST application may pre-allocate names as part of the TLD proposal; but maintenance of records could still be done by registrars . It is likely that registrars are already maintaining other domain name records for potential .POST registrants. Kurt Pritz advised that the clean division between registrar and registry is based upon policy and practice and it dates from the beginning the gTLD model structure. The agreements state that a registry cannot own 15% of registrar. The discussion between the roles of registries and registrars is ongoing about how distinction can be kept and business models accommodated. Raimundo Beca asked if the date of November 2 is definite or if it can be moved. Raimundo reflected that we should be careful not to give the UPU any favors, as they are an organization that has a history of monopoly and now there is competition. They should have to comply with the consensus policies. He noted that the UPU and the ITU have a similar history and that the ITU does not have it's own TLD, but is registered under ITU.INT Kurt Pritz advised regarding the November 2 date, the UPU requested ICANN Board approvals by that date so the UPU Congress can consider approving the agreement. We will make every effort to resolve all issues in time for that but have indicated that the deadline might be problematic because of the public debate around this agreement. Question was raised regarding whether the UPU could possibly consider the proposed agreement before Board approval. Steve Goldstein noted that he was against giving special consideration on consensus, indemnity, and registrar with exception of .MUSEUM. If you look ahead to 10,000 TLDs it will be difficult to go forward without common agreement. Steve Goldstein does not want to alienate the registry community, and he does not want ICANN to indemnify the TLD sponsors against consensus policies, so if such clauses were included in these agreements, he would vote "no". Steve Crocker noted that he had previously reviewed this issue and that with regard to .MUSEUM and other special registries using registrars, there is not enough business for those registrars to participate. He noted that .MUSEUM has problems getting the attention of registrars. The idea was to create competition but when registrations fall below a threshold it makes the business model difficult. Its nice to have a one size fits all but this does not fit the facts of the matter. Steve indicated that if we're going to encourage or have a system in place favorable to registries 100,000 minimum business model then we have to have the ability to use a mechanism other than a competitive registrars system. Bruce Tonkin advised that what Steve explained registrars understand, but the concern about considering on a case by case is the use of a series of precedents and trying to look at the issue as a whole and come up with something workable and in recognition of the points made. Steve Crocker noted that he had no problem with the framework developed to deal with those issues but considered that what we have now does not work. Information Update on GNSO's WHOIS Policy Development ===================================================== Denise Michel advised that the GNSO has an ongoing PDP on WHOIS and at a recent GSNO Council meeting a schedule was laid out for WHOIS reports. Council will have a final vote on task force and working group reports that staff are finalizing. Staff was asked to engage in some studies on registrars and misuses, the study is also expected to review processes available today, and other studies staff is working on. An implementation assessment is being prepared on issues involved on what is referred to as the operational point of contact (OPOC) proposal. The working group report completed in March intended a point of contact in lieu of a registrant. More recently the GNSO Council established a short term working group to look at the OPOC issue, and the working group examined the roles and responsibilities of OPOC not fulfilled, legitimate interest, third party contact information should be based on registered name holder, registrants use of domain name. The working group report has some points of agreement and some of points of significant disagreement. Staff is compiling all this information for Council consideration. Susan Crawford asked the timing for when board will get the report from the GNSO. Denise Michel advised that it is very fluid at this point in that with regard to OPOC, at one point there was strong agreement on the ability to consider OPOC proposal and the support for that proposal decreased as we got further into the detail of implementation and effects on registry and registrars became apparent. So there are many open issues and the important step is the staff development of implementation notes. The timing is unknown. Janis Karklins recognized that the GNSO council has used words in GAC WHOIS principles recommendations for action for study on use and misuses of WHOIS data, which is appreciated by the GAC. He is happy that staff has started compiling the data and will prepare a report. He asked about the timeline for the completion of the work and what sources will be used in compiling report. Liz Gasser confirmed that recommendations made by the GAC have been incorporated into the GNSO discussion. Staff is undertaking work to obtain information regarding the uses and potential misuses of information, the use of proxy services as it affects Whois accuracy, and Whois contractual compliance. Staff will provide additional updates on activities. There are some preparatory activities that will guide staff about additional work. Staff will be giving an update to GNSO on 4 October. Bruce Tonkin advised that conflicting draft resolutions have been circulating on the Council list regarding next steps on the WHOIS proposals, however as registries and registrars appear to be withdrawing their support for the taskforce proposal on OPAC, as modified by proposals from the WHOIS working group, he expects Council will say they can't reach an agreement. The Chair asked if the parties in debate agreed accurate information is available, was who has access to the information the primary issue. Bruce Tonkin advised that the work had stopped on accuracy until improvements were made on access control, and that many in the GNSO believe that registrants would be more willing to provide accurate information if it was not publicly available. The Chair suggested that maybe there is a kernel of agreement for drawing together the different sides.