[council[at]gnso.icann.org] Dear Council Members, Please find the revised draft minutes of the GNSO Council teleconference held on 20 July 2006. Please let me know if you would like any other changes made. Thank you very much. Kind regards, Glen .................................................................... 20 July 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 - absent - apologies Greg Ruth - ISCPC Antonio Harris - ISCPC - absent - apologies Tony Holmes - ISCPC Thomas Keller- Registrars Ross Rader - Registrars Bruce Tonkin - Registrars 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 Kiyoshi Tsuru - Intellectual Property Interests C - absent - apologies Robin Gross - NCUC. Norbert Klein - NCUC. - absent - apologies Mawaki Chango - NCUC Sophia Bekele - Nominating Committee appointee - absent Maureen Cubberley - Nominating Committee appointee - absent - apologies Avri Doria - Nominating Committee appointee 14 Council Members ICANN Staff Denise Michel - Vice President, Policy Development Olof Nordling - Manager, Policy Development Coordination Liz Williams - Senior Policy Counselor Glen de Saint Géry - GNSO Secretariat GNSO Council Liaisons Suzanne Sene - GAC Liaison Bret Fausett - ALAC Liaison Quorum present at 12:07 UTC. MP3 Recording Bruce Tonkin chaired this meeting Approval of the agenda Marilyn Cade requested two topics under Any Other Business: 1. Council input to the ICANN strategic plan 2. Council input to the program committee for the ICANN meetings in Sao Paulo The Secretariat asked for approval of the GNSO Council minutes of 18 May 2006 and 28 June 2006 to be added to the agenda. Item 1: Update any statements of interest No updates noted Item 2: Approval of the GNSO Council minutes of 18 May 2006 and 28 June 2006. The minutes of the GNSO Council minutes of 28 June 2006 were deferred to the next Council meeting on 3 August 2006. Philip Sheppard moved for the adoption of the GNSO Council minutes of 18 May 2006. The adoption of the GNSO Council minutes of 18 May 2006 was unanimously approved. Decision 1: The GNSO Council minutes of 18 May 2006 adopted Item 3: Vote on tabled WHOIS motion from Marrakech Bruce Tonkin reminded Council that the motion in response to the extensive community and Government input on the definition of the purpose of WHOIS, based on the discussions at the Marrakech meeting, and seconded by Tony Holmes, had undergone further discussion on the GNSO council mailing list. Bruce Tonkin proposed withdrawing the motion on the table from the Marrakech meeting and replacing it with two separate motions: - one relating to the WHOIS service - one relating to the data that is collected by registrars. Motion One on the WHOIS service "The GNSO Council notes that the WHOIS definition approved by the GNSO Council on 18 April 06, as a working definition to allow the WHOIS task force to proceed with its work, is related to the service that provides public access to some of the data collected by registrars. It is not a definition of the purpose of the data collected by the registrars in the course of registering a domain name for their customers. In response to the extensive community and Government input on the definition of the purpose of WHOIS, the GNSO Council agrees to undertake the following steps: (1) Each Council member that voted in favour of the definition may provide a brief explanation of the reason for supporting the resolution and their understanding of its meaning. (2) The ICANN staff will provide a summary of the other interpretations of the definition that have been expressed during the public comment period, and subsequently in correspondence from the public and Governments. (3) The GNSO Council requests that the WHOIS task force continue with their work as specified in the terms of reference taking into account the recent input that has been provided. (4) The GNSO Council will take the Final Report (as specified in clause 9(c) of the GNSO PDP process) from the WHOIS task force after the task force finishes its work on all the terms of reference, engage in further dialogue with the Advisory Committees (including the GAC, SSAC and ALAC), and consider improving the wording of the WHOIS service definition so that it is broadly understandable. Note that the WHOIS Task force will produce a Task Force Report (as specified in clause 7(e) of the GNSO PDP process) later in 2006 that addresses all terms of reference. This report will be subject to a further public comment process, and the output of this public comment will be incorporated into the Final Report. Note that the previous clause (3) in the motion posted on 13 July 2006 that related to the purposes for collecting data is now the subject of a separate motion (see below)." Two friendly amendments were proposed: (a) by Cary Karp amending the language in (1) to read "Any Council member who.. " (b) by Bret Fausett, the ALAC Liaison to the GNSO Council, as ALAC had participated in the work of the WHOIS task Force, for the motion to include the option for an Advisory Committee that supports the current definition to also make a statement for the record through the appropriate liaison to the GNSO Council. The amendments were accepted and the motion proposed by Bruce Tonkin was seconded by Marilyn Cade. Discussion on the motion clarified the following areas: - The assertion that the voted definition of the WHOIS purpose is that of the WHOIS service is consistent with the WHOIS Task Force Terms of Reference that request the definition of the purpose of WHOIS service. - The definition refers to data that is made public, but some of the data collected to display via WHOIS , may be collected for other purposes. - There was uncertainty in the community why the council voted in favour of formulation 1, and while it was not possible for the Council as whole to give a response, the intent of the present motion was to give individual council members the opportunity to explain why they supported the motion. Mawaki Chango commented that after speaking against the initial motion proposed in Marrakesh, he was comfortable with the latest change that did not request, but gave the opportunity to the council members to explain their vote, if they so wished. Mawaki noted, however, that the new version of the numbered paragraph (1) of the Motion One may introduce a non desirable imbalance with the numbered paragraph (2), assuming that they were coupled in the initial design of the motion, so that those who voted for the current definition should explain their rationale while the staff would compile and present the rationale of those who opposed that definition. In the current version of the motion, only those of the relevant Council members who are willing to do so may provide an explanation of their vote for the current definition. With the likelihood that there may only be a few, the request to the staff to compile the opposing views may become less relevant. - Calling on an elected constituency representative to account individually for their vote retroactively caused some concern as some constituencies direct how their representatives should vote on a particular issue. A reference was made to the ICANN Board vote on the dotCOM agreement where members stated their reasons for their vote. Clarification was given that Board members had a standard procedure where after a formal vote, any Board member could voluntarily go on record and comment on their vote. It was generally accepted that at any time a Council member would have the opportunity to explain a vote via the public GNSO Council mailing list. It was also noted that several Council members may choose to make a joint statement. Mawaki Chango commented that without prejudice of how the Board conducted its consultations and deliberations prior to its final decisions, the Council had had lengthy debates and exchange of arguments before the WHOIS definition vote, all of which was documented on a public mailing list. In fact, most of the letters the Council had received were not asking for an explanation of the vote, but contending that the Council voted for the wrong definition, and therefore, should change its vote. Mawaki considered any further explanation to respond to that contention as useless for that very reason, which he believed was related to what the Council Chair, Bruce Tonkin, called "the end objectives of those that support the two formulations," in his email to the Council list, dated 20 July 2006: 'regarding Powerpoint presentation in the GNSO/GAC workshop on Monday 26 June 2006. "It seems to me that the debate is not really about the formulations - which are really almost the same purely from a language point of view, but the concern is about the end objectives of those that support the two formulations. I think there is far more variation in the end objectives of the various constituencies, than there is variation in the two formulations. [...] Rather than waste further time on debating the formulations, it seems to me personally that we probably need to move on and discuss a possible reference implementation e.g the operational point of contact (oPOC) that may not be quite as bad or good as some had hoped, but it might actually improve the effectiveness of the WHOIS service for us all." (BRUCE TONKIN: CHAIR, GNSO COUNCIL) Mawaki commented "I am not sure yet what getting who voted in support of formulation one, to state their reasons why they supported formulation 1 will achieve, but I am happy to try it and see what we learn." - The motion's intent was to direct the WHOIS task force to continue its work, while taking additional input into consideration. - The timeline mentioned in the motion referred to the' task force report' in the policy development process in the ICANN bylaws, which is the report that deals with the complete terms of reference and is published for public comment before the Final Report is produced. The expectation is that the task force report would be ready for public input at the Sao Paulo meetings, but this could be subject to change depending on the progress of the WHOIS task force. . The Government Advisory Committee should be made aware of the timeline and their assistance sought to accommodate the process. Philip Sheppard and Ross Rader both supported the motion and called the question: Bruce Tonkin seconded by Marilyn Cade proposed a motion on the WHOIS service: "The GNSO Council notes that the WHOIS definition approved by the GNSO Council on 18 April 06, as a working definition to allow the WHOIS task force to proceed with its work, is related to the service that provides public access to some of the data collected by registrars. It is not a definition of the purpose of the data collected by the registrars in the course of registering a domain name for their customers. In response to the extensive community and Government input on the definition of the purpose of WHOIS, the GNSO Council agrees to undertake the following steps: (1) Any Council member who voted in favour of the definition may provide a brief explanation of the reason for supporting the resolution and their understanding of its meaning. An Advisory Committee that supports the current definition may also make a statement for the record through the appropriate liaison to the GNSO Council. (2) The ICANN staff will provide a summary of the other interpretations of the definition that have been expressed during the public comment period, and subsequently in correspondence from the public and Governments. (3) The GNSO Council requests that the WHOIS task force continue with their work as specified in the terms of reference taking into account the recent input that has been provided. (4) The GNSO Council will take the Final Report (as specified in clause 9(c) of the GNSO PDP process) from the WHOIS task force after the task force finishes its work on all the terms of reference, engage in further dialogue with the Advisory Committees (including the GAC, SSAC and ALAC), and consider improving the wording of the WHOIS service definition so that it is broadly understandable. Note that the WHOIS Task force will produce a Task Force Report (as specified in clause 7(e) of the GNSO PDP process) later in 2006 that addresses all terms of reference. This report will be subject to a further public comment process, and the output of this public comment will be incorporated into the Final Report. Note that the previous clause (3) in the motion posted on 13 July 2006 that related to the purposes for collecting data is now the subject of a separate motion. The motion passed by voice vote. 20 votes in favour: Philip Sheppard, Marilyn Cade, Tony Holmes, Greg Ruth, Mawaki Chango, Robin Gross, Avri Doria, Ute Decker, Ken Stubbs, Cary Karp, June Seo, Bruce Tonkin, Ross Rader, Tom Keller. Council members absent who did not vote: Alistair Dixon, Tony Harris, Lucy Nichols, Kiyoshi Tsuru, Norbert Klein, Sophia Bekele, Maureen Cubberley. Decision 2: "The GNSO Council notes that the WHOIS definition approved by the GNSO Council on 18 April 06, as a working definition to allow the WHOIS task force to proceed with its work, is related to the service that provides public access to some of the data collected by registrars. It is not a definition of the purpose of the data collected by the registrars in the course of registering a domain name for their customers. In response to the extensive community and Government input on the definition of the purpose of WHOIS, the GNSO Council agrees to undertake the following steps: (1) Any Council member who voted in favour of the definition may provide a brief explanation of the reason for supporting the resolution and their understanding of its meaning. An Advisory Committee that supports the current definition may also make a statement for the record through the appropriate liaison to the GNSO Council. (2) The ICANN staff will provide a summary of the other interpretations of the definition that have been expressed during the public comment period, and subsequently in correspondence from the public and Governments. (3) The GNSO Council requests that the WHOIS task force continue with their work as specified in the terms of reference taking into account the recent input that has been provided. (4) The GNSO Council will take the Final Report (as specified in clause 9(c) of the GNSO PDP process) from the WHOIS task force after the task force finishes its work on all the terms of reference, engage in further dialogue with the Advisory Committees (including the GAC, SSAC and ALAC), and consider improving the wording of the WHOIS service definition so that it is broadly understandable. Note that the WHOIS Task force will produce a Task Force Report (as specified in clause 7(e) of the GNSO PDP process) later in 2006 that addresses all terms of reference. This report will be subject to a further public comment process, and the output of this public comment will be incorporated into the Final Report. Note that the previous clause (3) in the motion posted on 13 July 2006 that related to the purposes for collecting data is now the subject of a separate motion. Bruce Tonkin introduced the second motion and stated that it related to the data that is collected by registrars and what happened with that data collected. It was intended as a parallel activity to the WHOIS task force work. The definition of "Personal data" in clause 1.6 of the Registrar Accreditation Agreement: Personal data refers to any identified or identifiable natural person. It was noted that even a work address for a natural person could be considered as personal data. Bruce Tonkin, seconded by Marilyn Cade proposed the motion: "The GNSO Council notes that, consistent with generally accepted privacy principles, Registrars are required under clause 3.7.7.4 of the Registrar Accreditation Agreement to provide notice to each new or renewed Registered Name Holder stating: (i) The purposes for which any Personal Data collected from the applicant are intended; (ii) The intended recipients or categories of recipients of the data (including the Registry Operator and others who will receive the data from Registry Operator); (iii) Which data are obligatory and which data, if any, are voluntary; and (iv) How the Registered Name Holder or data subject can access and, if necessary, rectify the data held about them. To further understand the range of purposes for which data is intended, the GNSO proposes the following steps: (1) The ICANN staff will review a representative sample of registrar agreements with Registered Name Holders, taking into account the issues of geographical diversity and rule of law variances, to identify some of the purposes for which registrars collect Personal Data in the course of registering a domain name for their customers. (2) The ICANN staff will review a representative sample of cctld registry or cctld registrar agreements with registrants, taking into account the issues of geographical diversity and rule of law variances, to identify some of the purposes for which these organisations collect Personal Data from registrants. (3) The ICANN staff will summarise the current material that has resulted from WHOIS discussions since 2002 that document the current uses and abuses of the Personal Data that is currently made public through the WHOIS service. (4) Supported by the material produced in steps (1), (2) and (3) above, the Council will undertake a dialogue with the ICANN Advisory Committee's, such as the GAC, SSAC and ALAC, regarding the purposes for collecting Personal Data, and discuss whether any policy development is required in this area consistent with ICANN's mission and core values. The dialogue should seek to examine and understand consumer protection, privacy/data protection and law enforcement perspectives." The motion carried with a vote by acclamation. There were no abstentions and no votes against Decision 3: "The GNSO Council notes that, consistent with generally accepted privacy principles, Registrars are required under clause 3.7.7.4 of the Registrar Accreditation Agreement to provide notice to each new or renewed Registered Name Holder stating: (i) The purposes for which any Personal Data collected from the applicant are intended; (ii) The intended recipients or categories of recipients of the data (including the Registry Operator and others who will receive the data from Registry Operator); (iii) Which data are obligatory and which data, if any, are voluntary; and (iv) How the Registered Name Holder or data subject can access and, if necessary, rectify the data held about them. To further understand the range of purposes for which data is intended, the GNSO proposes the following steps: (1) The ICANN staff will review a representative sample of registrar agreements with Registered Name Holders, taking into account the issues of geographical diversity and rule of law variances, to identify some of the purposes for which registrars collect Personal Data in the course of registering a domain name for their customers. (2) The ICANN staff will review a representative sample of cctld registry or cctld registrar agreements with registrants, taking into account the issues of geographical diversity and rule of law variances, to identify some of the purposes for which these organisations collect Personal Data from registrants. (3) The ICANN staff will summarise the current material that has resulted from WHOIS discussions since 2002 that document the current uses and abuses of the Personal Data that is currently made public through the WHOIS service. (4) Supported by the material produced in steps (1), (2) and (3) above, the Council will undertake a dialogue with the ICANN Advisory Committee's, such as the GAC, SSAC and ALAC, regarding the purposes for collecting Personal Data, and discuss whether any policy development is required in this area consistent with ICANN's mission and core values. The dialogue should seek to examine and understand consumer protection, privacy/data protection and law enforcement perspectives." Item 4: Vote to initiate IDN-gTLD PDP [PDP-Jul06] - updated IDN issues report with proposed terms of reference to be provided by Olof Nordling by 13 July 06 Bruce Tonkin stated that there had been requests for more time to work on the IDN Issues Report and the proposed terms of reference before initiating a policy development process. Olof Nordling reported that the focus of the IDN Issues Report, since the Marrakech meeting, had been on the proposed terms of reference in preparation for approval at the current Council meeting. It was suggested that staff should work towards a substantive report representative of all workshops, historical materials on the topic and taking into account any input from councillors . The Constituencies are encouraged to reflect on what impact IDNs have on the current policy work on new gTLDs and whether the current policy assumptions are correct, because IDN based gTLDs are a subcategory of new gTLDs. The Council, in consultation with the constituencies should progress with parallel work on refining the terms of reference . A new draft of the terms of reference will be available by 27 July, 7 days before the next Council meeting on 3 August 2006 where a vote will be taken to initiate a policy development process. Item 5: Update on PDP-Dec05 - new gTLDs - confirm planning for face-to-face meeting Dr Liz Williams reported that the latest version of the New gTLDs report, which reflects the inputs from the GNSO public forum in Marrakech and other commentary from the 15 June meeting was being reviewed by Dan Halloran, deputy General Counsel. Council members should work closely with their constituencies to consult on the revised report which will be released in the week of 24 July, and bring the feed back to the face to face meeting in Amsterdam. Appropriate questions are being developed for a public comment period and Council members are encouraged to provide input. A face to face meeting for the committee for new gTLDs, open to interested observers, has been scheduled for 29, 30 and 31 August 2006, in Amsterdam. The Initial Report will be sent to the other Supporting Organisation, the GAC and the ALAC for review and comments. The Final report is targeted for presenting to the Board at the ICANN meetings in Sao Paulo. Dr. Liz Williams wished her thanks to be recorded to all those who had contributed and been closely involved in the process. Item 6: Update on PDP-Feb06 - Contractual conditions for existing gTLDs Dr Liz Willaims reported that the three actions items from the Marrakech meeting were underway: Release an updated version of report Propose a draft schedule Propose a series of materials The updated version of the Report on PDP-Feb06 - Contractual conditions for existing gTLDs which includes the input from the Marrakech meeting is being reviewed by Dan Halloran, deputy General Counsel, and will be released shortly. In the interim period, a request has been made for recommendations with respect to written materials and related experts. It is expected that at the end of September the impact of the expert materials on the preliminary report could be evaluated. An opportunity for a discussion or briefing from experts in this area required more work from the task force to identify where the specific input from specific people might fall. Marilyn Cade was not in agreement delaying this step and considered that access to advice and dialogue with anti-trust and competition experts earlier in the process, would be more advantageous. Dr. Liz Williams undertook to consult with the task force chair, Maureen Cubberley, on the issue of experts and the date for the next task force meeting. Item 7: Any other business: 7.1 Input to the ICANN Strategic plan Marilyn Cade called for a group of volunteers, comprising of councillors and constituency members who would be interested in collecting input in those areas of the ICANN strategic plan that impacted the Council to contact her off line. 7.2 ICANN meetings in Sao Paulo Council members should provide input for requirements during the Sao Paulo meetings. Bruce Tonkin suggested that two topics for discussion with the Government Advisory Committee would be new gTLDs and WHOIS. The Secretariat will enquire what visa arrangements ICANN is making for Brazil. Bruce Tonkin formally closed the meeting and thanked everybody for participating. The meeting ended: 13:59 UTC Next GNSO Council teleconference 3 August at 12:00 UTC see: Calendar -- Glen de Saint Géry GNSO Secretariat - ICANN gnso.secretariat[at]gnso.icann.org http://gnso.icann.org