INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS
A meeting of the Board of Directors of the Internet Corporation for Assigned Names and Numbers ("ICANN") was held by teleconference on June 6, 2000. The following Directors of the Corporation were present by telephone: Esther Dyson, Chairman, Jean-François Abramatic, Amadeu Abril i Abril, Vint Cerf, Jonathan Cohen, Phil Davidson, Ken Fockler, Hans Kraaijenbrink, Michael Roberts, Linda S. Wilson, and Pindar Wong. Directors Geraldine Capdeboscq, Greg Crew, Jun Murai, and Alejandro Pisanty joined the teleconference while it was in progress. Also present on the teleconference were Louis Touton, Vice-President, Secretary, and General Counsel of the Corporation; Andrew McLaughlin, Chief Financial Officer of the Corporation; and Joe Sims of Jones, Day, Reavis & Pogue.
The meeting was called to order by Esther Dyson at 5:07 am U.S. Pacific Daylight Time.
Mr. McLaughlin reported that the Reconsideration Committee has adopted three recommendations, with respect to requests 99-1, 00-4, and 00-5, that are ready for Board consideration. Early in the Board's discussion of these matters, directors Geraldine Capdeboscq, Greg Crew, and Jun Murai joined the teleconference.
The Committee has adopted the following recommendation on Request for Reconsideration 99-1:
[RC 99-1] On June 25, 1999, the Reconsideration Committee received a request for reconsideration from Eric Brunner and Robert Gough relating to ICANN's recognition of the Intellectual Property Constituency (IPC) of the Domain Name Supporting Organization. The request complains of ICANN's decision not to recognize a distinct DNSO constituency for "indigenous intellectual property" interests. The request raises questions about the Intellectual Property Constituency (IPC)'s membership criteria and their application; the openness and transparency of its procedures; the process by which the IPC was recognized; and whether any bylaws "or other guidelines" were violated by the parties involved. The request asks for three specific remedies:
"(1) modification of the provisional recognition to extend to our group, in effect, partitioning a single constituency in recognition that no compromise between corporate and indigenous groups was achieved, and that the exclusion of either is unnecessary, and actionable.
"(2) modification of subsequent language concerning WIPO's work product to reflect its inadequacy, consistent with our formal response to WIPO RFC3, on record at WIPO's web site.
"(3) modification of the VI-B(3)(b)(7) constituency allocation of seats on the Names Council, transferring one seat from the group provisionally recognized at Berlin (corporate) to our (indigneous) group."
The crux of the request appears to be a feeling that the indigenous intellectual property group led by Messrs. Brunner and Gough was not treated fairly by the other IPC organizers, and that a separate constituency with its own Names Council representative should be created. [Request 2 appears to have nothing to do with the recognition of the IPC, reflecting instead a substantive disagreement with the recommendations of the World Intellectual Property Organization relating to domain names.]
In response to the request, the Reconsideration Committee asked a series of questions to the IPC, which are posted at http://www.icann.org/reconsideration/ipc-letter-27dec99.htm. Mr. Steve Metalitz, then president of the IPC, responded to the questions; his response is posted at http://www.icann.org/reconsideration/metalitz-response-10jan00.htm. Mr. Brunner followed with a response of his own, posted at http://www.icann.org/reconsideration/brunner-response-13jan00.htm.
Over the past 11 months, the ICANN staff and the Reconsideration Committee (in its past and present incarnations) have scrutinized the structure and By-laws of the IPC, both in theory and in practice. See http://ipc.songbird.com/IPC_Bylaws_dec_15_correct.htm. The Committee has observed the operation of the IPC over an extended period of time, and concludes that there is no basis on which to alter or overturn its recognition by the Board. The IPC is open to new members (including Messrs. Brunner and Gough and any organizations represented by them); it has applied its membership criteria evenhandedly; it is reasonably open and transparent; and it was recognized on the basis of a general community consensus (which obviously did not include Messrs. Brunner and Gough, but was nevertheless an evident consensus).
The Committee notes that all current members of the IPC have been required to complete and submit applications for membership, something it appears Messrs. Brunner and Gough have elected not to do. As Mr. Metalitz notes in his response, Messrs. Brunner and Gough have been invited to apply for membership in the constituency. Through Mr. Metalitz, the IPC has stated publicly its commitment to treat any such applications fairly and impartially, consistent with its stated policies. As members of the IPC, Messrs. Brunner and Gough would be able to take part in its activities and deliberations on an equal basis with any other members, and to advocate for indigenous intellectual property interests within the IPC and the DNSO. The Reconsideration Committee sincerely hopes they will do so. In the meantime, the Committee sees no reason to revoke or alter the Board's recognition of the IPC.
In sum, the Reconsideration Committee recommends that the Board take no action in response to RR 99-1.
With respect to Request for Reconsideration No. 00-4, the Committee adopted the following recommendation:
[RC 00-4] On May 6, 2000, the Reconsideration Committee received a request for reconsideration from Bret Fausett, complaining that no minutes for the April 6, 2000 Special Meeting of the Board had been posted as of the time of his request. Mr. Fausett asks the Reconsideration Committee to take two steps:
"(a) prompt posting of detailed minutes of April 6, 2000 Special Meeting; and
"(b) formulation of internal ICANN policy to ensure future compliance with Article III, Section 2 of the Bylaws."
In response to point (a), the Committee notes that the minutes for that meeting were posted on March [sic, May] 9, approximately twelve days late. Accordingly, this request has already been met.
In response to point (b), the Committee agrees that ICANN should have an improved procedure for informing the community about actions taken during its telephone meetings, while nevertheless allowing all 19 members of the Board sufficient time to review and edit the draft minutes of the Secretary to ensure accuracy before they are publicly posted. The Committee believes that this can be accomplished by amending the Bylaws to require that any resolutions passed by the Board be posted within five (5) business days, while requiring that full minutes be posted no later than the day after the date on which the Board formally approves them. In that way, ICANN can provide rapid notice of actual actions, without having to wait for the entire Board to complete its work on the full minutes, which record discussions and housekeeping matters.
Article III, Section 2 of the ICANN Bylaws currently states:
"ACCESS TO INFORMATION
"All minutes of meetings of the Board, the At Large Council, Supporting Organizations (and any councils thereof) and Committees shall be approved promptly by the originating body. No later than twenty-one (21) days after each meeting, draft minutes shall be made publicly available on a publicly-accessible Internet World Wide Web site maintained by the Corporation (the "Web Site"); provided, however, that any minutes relating to personnel or employment matters, legal matters (to the extent the Board determines is necessary or appropriate to protect the interests of the Corporation), matters that the Corporation is prohibited by law or contract from disclosing publicly and other matters that the Board determines, by a three-quarters (3/4) vote of Directors voting, are not appropriate for public distribution shall not be included in the minutes made publicly available. For any matters that the Board determines not to disclose, the Board shall describe in generic terms in the relevant minutes the reason for such nondisclosure."
The Reconsideration Committee proposes that Article III, Section 2 be amended to read as follows:
"ACCESS TO INFORMATION
"(A) All minutes of meetings of the Board, Supporting Organizations (and any councils thereof) and Committees shall be approved promptly by the originating body.
"(B) No later than five (5) days after each meeting, any actions taken by the Board shall be made publicly available in a preliminary report on a publicly-accessible Internet World Wide Web site maintained by the Corporation (the "Web Site"); provided, however, that any actions relating to personnel or employment matters, legal matters (to the extent the Board determines is necessary or appropriate to protect the interests of the Corporation), matters that the Corporation is prohibited by law or contract from disclosing publicly and other matters that the Board determines, by a three-quarters (3/4) vote of Directors voting, are not appropriate for public distribution shall not be included in the preliminary report made publicly available. For any matters that the Board determines not to disclose, the Board shall describe in generic terms in the relevant preliminary report the reason for such nondisclosure.
"(C) No later than the day after the date on which they are formally approved by the Board, the minutes shall be made publicly available on the Web Site; provided, however, that any minutes relating to personnel or employment matters, legal matters (to the extent the Board determines is necessary or appropriate to protect the interests of the Corporation), matters that the Corporation is prohibited by law or contract from disclosing publicly and other matters that the Board determines, by a three-quarters (3/4) vote of Directors voting, are not appropriate for public distribution shall not be included in the minutes made publicly available. For any matters that the Board determines not to disclose, the Board shall describe in generic terms in the relevant minutes the reason for such nondisclosure."
In sum, in response to RR 00-4, the Reconsideration Committee will recommend to the Board that it consider adoption of the foregoing amendment to the Bylaws.
Finally, with respect to Request for Reconsideration No. 00-5, the Committee adopted the following recommendation:
[RC 00-5] The Reconsideration Committee received on 11 May, 2000, a request for reconsideration from James Trefil, submitted on behalf of Adam Corelli. Mr. Correlli is the registrant of a domain name which was the subject of a recent administrative proceeding pursuant to ICANN's Uniform Domain Name Dispute Resolution Policy (UDRP). The proceeding was handled by the National Arbitration Forum, which posted the resulting administrative decision on April 12, 2000 (NAF File No. FA0094235). The decision has been posted by the National Arbitration Forum at http://www.arbforum.com/domains/decisions/94235.htm. Links to the decision have been posted on the ICANN site on the various lists of UDRP proceedings and decisions, such as the List of Proceedings Arranged by Commencement Date; the List of Proceedings Arranged by Proceeding Number; and the List of Proceedings Arranged by Domain Name.
Unhappy with the outcome of the administrative decision, Mr. Corelli exercised his right under Paragraph 4(k) of the Uniform Dispute Resolution Policy to challenge the result by filing a lawsuit in U.S. federal court (Corelli v. T.M. Pacific Co., United States District Court for the Eastern District of Virginia, Civ. Action No. 00-701-A, filed April 27, 2000). Quite understandably, Mr. Corelli is not pleased with the decision's determination of bad faith in his registration and use of the domain name.
In his reconsideration request, Mr. Corelli asks that the ICANN Board reconsider the decision to maintain a link to the administrative decision on the ICANN website. [At one point, Mr. Corelli states that ICANN continues to "post" the NAF decision "on its web site". The Committee notes that this characterization is mistaken, as the administrative decisions are posted by the dispute resolution providers themselves, and simply linked from the ICANN site. Likewise, Mr. Corelli mistakenly characterizes the decision as being "ICA[N]N's"; rather, the decision has been rendered by the National Arbitration Forum, an approved dispute resolution provider.]
Specifically, Mr. Corelli asks "that the link to the text of the opinion be removed from ICANN's web site, and that the status of the dispute be shown as 'judicial determination pending.'" Moreover, "[i]f removing the link to the opinion is contrary to an existing ICANN policy, Mr. Corelli requests that such policy be reconsidered and modified."
The Committee notes that the Uniform Dispute Resolution Policy requires dispute resolution providers to publish "all decisions under this Policy . . . in full over the Internet," except when the Panel determines to redact portions:
"4.j. Notification and Publication. The Provider shall notify us of any decision made by an Administrative Panel with respect to a domain name you have registered with us. All decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision."
Likewise, the Rules for the UDRP provide:
"16.(b) Except if the Panel determines otherwise (see Paragraph 4(j) of the Policy), the Provider shall publish the full decision and the date of its implementation on a publicly accessible web site. In any event, the portion of any decision determining a complaint to have been brought in bad faith (see Paragraph 15(e) of these Rules) shall be published."
This policy was adopted after a lengthy and open consensus-building process. Many individuals expressed a strong view that the administrative dispute resolution providers should be required to operate transparently by posting all of their decisions on the Internet. The publication of all opinions allows the broad community of interested and/or affected individuals to analyze and evaluate the results of decisions, the strength and validity of the panelists' reasoning, etc. In effect, the mandatory posting rule permits any individual to form an independent judgment about how well the dispute resolution providers and panelists are doing their appointed tasks. Such transparency and openness is essential: the UDRP is in its infancy, and public scrutiny and input will be necessary if ICANN and the dispute resolution providers are to properly evaluate and make improvements to the policy.
While the Policy and Rules apply only to registrars and dispute resolution providers, the ICANN staff has provided regularly updated web pages that index administrative proceedings from all approved dispute resolution providers, including information known to ICANN (the existence of the dispute, along with a link to or notation of the resolution). The ICANN tables do not include notations relating to subsequent litigation, because the ICANN staff is simply too small and too overstretched to monitor and verify the hundreds of legal disputes that will surely ensue. The Reconsideration Committee finds the ICANN staff indices to be a valuable service for the benefit of interested and affected parties, and believes that ICANN should continue to provide the listed information in full.
Moreover, the Committee observes that the administration decision which Mr. Corelli objects to is merely an administrative decision, setting forth the panelist's view of the facts, along with her opinions. While Mr. Corelli is certainly correct that his U.S. federal lawsuit may eventually render the decision moot, the suit does not alter the fact that an administrative proceeding was filed and that it produced a decision. The principles of openness and transparency that underlie the UDRP's publication rule argue strongly in favor of continuing the publication rule.
Accordingly, the Reconsideration Committee recommends that the Board reject Mr. Corelli's requests in RR 00-5. The Committee urges Messrs. Corelli and Trefil to advocate their views on the publication rule to the broader community during ICANN's review of the UDRP later this year.
The Board discussed the three recommendations of the Reconsideration Committee. In the discussion of Request 00-5, the question was raised whether ICANN should undertake to report on its web site the status of court proceedings related to UDRP proceedings. Doing so would involve reviewing and making assessments about the validity and effect of various documents filed in courts throughout the world and would likely lead to disputes among the litigating parties as to the accuracy of ICANN's posted summaries. It was noted that Request 00-5 was not asking that such a procedure be established. In the discussion, the ICANN staff was informally advised to place a notice on the pertinent web pages alerting readers of the possibility of related court proceedings that are not reflected on the web pages, and it has done so.
The following motion was duly made, seconded, and adopted by the Board:
RESOLVED [00.34] that the Reconsideration Committee's Recommendations RC 99-1, 00-4, and 00-5 are adopted for the reasons stated in those recommendations. With respect to RC 00-4, the Board directs the staff to post the proposed bylaw changes for public review and comment in advance of the Board's meeting in Yokohama.
The vote was unanimous, except Mr. Cohen noted his abstention with respect to Request No. 99-1.
Mr. Roberts noted that the Board's resolutions authorizing the signing of checks on behalf of the Corporation did not reflect various changes in personnel and should be updated. A discussion ensued regarding the procedures for authorization and payment of expenses. It was generally agreed that the Audit Committee was responsible for reviewing the adequacy of the Corporation's internal controls and should do so in connection with the upcoming end of the Corporation's fiscal year. During this discussion, Alejandro Pisanty joined the call.
The following motion was duly made, seconded, and unanimously adopted by the Board:
RESOLVED [00.35] that the Vice President and General Counsel, Louis Touton, and the Chief Financial Officer, Andrew McLaughlin, and each one of them, may authorize disbursements of the Corporation's funds, and sign checks of the Corporation, in amounts of $10,000 or less.
FURTHER RESOLVED [00.36] that the President of the Corporation, Michael Roberts, may authorize disbursements of the Corporation's funds, and sign checks of the Corporation, in amounts of $50,000 or less.
FURTHER RESOLVED [00.37] that the President of the Corporation, Michael Roberts, may authorize disbursements of the Corporation's funds, and sign checks of the Corporation, in amounts exceeding $50,000, when so authorized by action of the Board or the Executive Committee.
FURTHER RESOLVED [00.38] that the Vice President and General Counsel, Louis Touton, may authorize disbursements of the Corporation's funds, and sign checks, in amounts not exceeding $20,000, to the order of the Darwin Group, Inc., that fulfill the terms of the professional services contract between the Corporation and the Darwin Group for the services of Michael Roberts.
FURTHER RESOLVED [00.39] that the authorizations to disburse funds and to sign checks as set forth in Board resolutions 98.12, 99.7 and 99.59 shall cease to be effective as of the adoption of this resolution.
Mr. Roberts presented the Board with a proposed budget. He summarized the proposed budget, which was developed through consultation of the budget group and posted for public comment on May 4, 2000. He also summarized the comments that were received on the public comment forum devoted to the proposed budget. During this discussion, Mr. Crew left the teleconference.
It was noted that ICANN's establishment of stable funding relationships with some segments of the community (particularly ccTLD managers) has not been finalized, so that timely collection of a portion of ICANN's revenue in the adopted FY 1999-2000 budget, as well as in the proposed FY 2000-2001 budget, is uncertain.
The following motion was duly made, seconded, and unanimously adopted by the Board:
Whereas, the bylaws of the Corporation require that the President shall prepare and submit to the Board a proposed annual budget of the Corporation for the next fiscal year.
Whereas, the President and other members of the staff have followed an open and consultative process in developing the budget, including a budget presentation and discussion in the public meeting in Cairo in March, on several occasions with the registry/registrar budget group composed of representatives of the domain name and address registries and the gTLD name registrars, and through posting of the proposed budget for public comment.
Whereas, the President has submitted to the Board a proposed budget prepared through that consultative process for FY00-01, commencing July 1, 2000, which proposed budget is ordered attached to the minutes of this meeting (the "Proposed Budget").
Whereas, the Proposed FY00-01 Budget provides for total revenue of USD $5.024 million, total expenditures of $4.219 million and total capital equipment purchases and contribution to working capital and operating reserve of $805,000.
Whereas, the Board has reviewed the Proposed Budget and has found that its adoption is in the best interest of the Corporation.
FURTHER RESOLVED [00.42] that the President is directed to present to the Board, at its Yokohama meeting in July 2000, a report analyzing the fiscal year-end financial results of the corporation as of June 30, 2000, including any significant variances in anticipated income and expense, and to make recommendations for any revisions to the FY00-01 Budget that may be necessary in light of the year-end results and other matters affecting the budget.
Mr. McLaughlin noted that on 19 May the staff posted a set of proposed rules for self-nomination of candidates for At-Large directors and established a public comment forum on the proposal. He also summarized the comments received to date. He recommended that the Board give preliminary approval to a few aspects of the proposal (relating to the timing of the self-nomination phase, the data elements to be submitted by candidates for self-nomination, and the posting of candidate information on the ICANN website) that are necessary to proceed in an orderly way, but that the comment period on the other aspects be extended until shortly before the Yokohama meeting, at which time the Board could consider giving final approval to a complete set of procedures.
After discussion, the following motion was duly made, seconded, and unanimously adopted by the Board:
Whereas, the staff posted on 19 May a set of proposed rules for the self-nomination phase of the At Large election process;
Whereas, a number of helpful public comments and constructive criticisms have been posted; and
Whereas, the Board wishes to provide additional time for public review and comment and to defer final decision on the rules until its next meeting in Yokohama, while recognizing the staff's need for sufficient guidance to properly construct and implement the online interface and database components necessary to launch the self-nomination phase shortly after the Yokohama meetings; it is
RESOLVED [00.43] that the Board generally approves the staff's proposed rules insofar as they relate to the timing of the self-nomination phase, the data elements to be submitted by candidates for self-nomination, and the posting of candidate information on the ICANN website (Rules 1 - 5);
FURTHER RESOLVED [00.45] that the deadline for new At Large membership applications for purposes of participating in this year's At Large election is tentatively set for 31 July, subject to final ratification in Yokohama.
Mr. Touton gave a report summarizing progress toward formulation of documents concerning ICANN's relationships with ccTLDs. In Cairo, the Government Advisory Committee presented a proposal concerning the administration and delegation of ccTLDs. The Board adopted Resolution 00.13 authorizing the President and staff to work with the ccTLD managers, Governmental Advisory Committee, and other interested parties to prepare draft language for contracts, policy statements, and/or communications, including appropriate funding arrangements, to be presented to the Board and posted for public comment. Since that time, various groups of ccTLD managers have been working on proposals responding to the Government Advisory Committee's report, but no document having consensus support among ccTLD managers has emerged. A draft agreement is being prepared by the staff for possible consideration by the affected parties. It would not change the present policies that currently apply to ccTLDs, but would provide the flexibility for changes in policy to reflect discussions among ccTLD managers, governments, ICANN, and others. Once a draft is completed, it will be disseminated to the community for comments.
Article V, Section 6 of the bylaws provides that the Board should periodically define ICANN's five Geographic Regions:
As used herein, each of the following shall be a "Geographic Region": Europe; Asia/Australia/Pacific; Latin America/Caribbean islands; Africa; North America. The specific countries included in each Geographic Region shall be determined by the Board, and this Section shall be reviewed by the Board from time to time (but at least every three years) to determine whether any change is appropriate, taking account of the evolution of the Internet.
In connection with the selection of At-Large Directors this year, it is important to more precisely define the allocation of countries to the regions. It was agreed that the issue should be considered at the Yokohama meeting, and that the staff should gather community comment beforehand.
Mr. Touton noted that amendments to the bylaws are necessary formally to implement the changes to the At-Large membership program set forth in Resolution 00.18, adopted by the Board at the Cairo meeting. The staff will post proposed amendments for public comment and the matter will be considered in Yokohama.
Mr. Cerf gave a brief report on the activities of the Executive Search Committee. The committee, working with Christopher Mill, is in the process of identifying candidates for a permanent CEO. The committee will meet in Yokohama to assess progress.
The meeting was adjourned at 6:35 am U.S. Pacific Daylight Time.