M .... Berkman’s participation on the 14th.

W It looks like Berkman will be facilitating. We’re still working out the details and hope to announce something on Monday.

M Okay. So today it’s safe to go ahead and get tickets if we’re coming?

W What would that decision depend on? Whether....

M Whether the meeting’s in Boston I imagine.

W It will be in Cambridge.

Coordinator Excuse Michael Roberts joins.

M Hi Michael.

M Hello

M Welcome to the call.

Coordinator Excuse me, Frank Fitzsimmons joins.

Karl I think we’ll have to have everyone announces before they speak. We’ll have enough voices. By the way, this is Karl.

M Hi, Karl.

Karl Who else do we have on.

Milton Hi Karl. Milton.

Karl Hi, I recognize your voice. I think it’s a procedure everyone should identify who they are before they speak. If nothing else it makes the transcript a lot easier.

Coordinator Excuse me, Miss Dyson’s joining you now. And at this time I would like to let everyone know that this call will be recorded. If you would have any objection today you may disconnect at this time.

Esther Hi everybody. You heard the announcement that we’re being taped. It’s a legal requirement to notify you all and who all is here.

Dan Dan Steinberg

Karl Karl Auerbach

Esther Hi Karl, I was hoping for your little summary.

Karl Oh, I got home from the play a little late.

David David Steele from the Boston Group.

Milton Milton Mueller.

Helen Ellen Rony from the Boston Group as well.

Hans Hello this is Hans.

Esther Excuse me, Michael Weinberg joins and Geraldine ... And Jun Murai is still missing. And Frank.

Frank I’m here Esther.

Esther Oh, great. Okay.

Molly Molly Van Houweling

Diane This is Diane Cabell from BWG.

Tony And Tony Rutkowski

Esther Okay, there are two of our board members still not here and Jonathan Zittrain from Berkman said he might come. But we should probably get going. Did you all receive the brief agenda?

All Yes.

Esther Okay. Let me just take one or two minutes to start off and then what we really would like to do is hear your thoughts about these three sets of issues.

George Esther, this is George. If I could interrupt. It’s Diane and Tony and Beth. Is there anyone else?

Esther Oh, yes. There’s a lot. Why don’t I just read the list. From our board it’s Frank Fitzsimmons, Hans Kraaijenbrink, Mike Roberts, Greg Crew, Mike Weinberg. Jun Murai from the board not yet here. George Conrades, Geraldine ..., Dan ... Dan Steinberg, Karl Auerbach, Milton Mueller, Ellen Rony, David Steele, Molly Shaffer who’s with ... Berkman and will be taking notes.

Esther Mr. Murai just joined. Hello Jun. Diane Cabell, and Tony Rutkowski.

Eric And Eric Weisberg.

M Was Richard Sexton in here?

M He’s not in yet. Neither is Jay ... But, they know where it is.

M Those were the other two we were expecting.

M Mikki’s not coming I take it.

M No, she’s in the air right now.

Esther Okay. Let me just tell me slightly where we are. We are working as you can imagine, on revising our bylaws. And what we want to do is get the bylaws in a shape where you feel you have a little buy-in. And we are still fairly representing all the people who supported the last set of bylaws. And ideally get transfer of authorization from the US government and then go forward and work on a lot of details on implementing the bylaws. If we do membership, how we do memberships. If we do SO’s, how we do that. How do we actually do a lot of the specifics of creating transparency and openness. And so this is very far from being the last chance to change things but it is an initial and fairly formal step that we’re heading into.

And so what we’d like to do today is talk to you about what seems to be the three big issues. Accountability and representation, technical advise and unbiased expertise, and conflict of interest and how to avoid them.

Mike Esther, have been some discussion about the call being taped?

Esther Yes, it is being taped. I’m sorry if you missed that announcement. And it’s important that you all know that for legal reasons.

Karl And we should also identify ourselves before we speak.

Esther That’s a good idea. Thanks Karl.

(Static on the line; hard to hear speaker)

Eric Esther, this is Eric. Our concern is that we would like to start the discussion of how we’re going to have our input to the board ...

M Somebody’s on a cell phone I think.

Eric That’s me. I’ll try to get somewhere where I can speak more clearly. We’re interested in what process is going to be followed.

Esther Yeah. Well, the process is this phone call. I mean, we’re trying to really discuss some standard issues and not focus too much on the process. It’s this phone call and then we will get back to you I hope by Tuesday, Wednesday with final bylaws that we believe meet most of your concerns.

Eric Well, we’re interested in something more engaging, frankly, than that.

Esther Like what?

Eric Like discussing in some forum each of the items, one by one, detail by detail.

Esther That is what we are trying to do right now.

Eric No, what you’re talking about doing, as I understand it, is coming at us with the product. Not engaging us as the product is being developed.

Esther We are trying to listen to your input today. We don’t, I mean, believe me, the drafting session with 6 or 9 of us on the board is bad enough. We really do not want to do a joint drafting session.

M Eric, can I jump in here for a moment?

Eric Sure.

M First of all you may want to consider calling back on a land line.

M Yeah, there’s a lot of noise. It’s really hard to hear.

Eric Let’s see if that took care of it.

M Well, it’s still cutting in and out making background noise. I suggest you call back on a land line. But, second point is, Esther, the NTIA document said consult which it tends to indicate a two-way dialogue. And that’s what I was concerned about if there is in fact two ways.

Esther Right. Well, we really are trying to do that right now. And remember to say who you are when you talk. I mean, I would be very happy to go into the substance and actually talk about some of these issues.

Karl Why don’t we begin and see how it works.

Esther Thanks Karl.

Coordinator Excuse me, Richard Sexton now joins.

Richard Hello everybody.

W This is being recorded, Richard.

Richard Jolly good. Who’s all here so far?

Esther A long list. Just about everybody. We’re now going to talk about membership. We’re, how do I say this, we’re pretty much agreed that we’re going to have to make this a membership organization. We’re still concerned about how we’re going to do it. And we would love some of your comments on this.

Richard You asked the right ticket.

Esther And I’m not sure who wants to speak now.

Richard I think Dan’s our designated speaker, isn’t he?

M Well, he speaks for ORSC. What do you say, Dan?

Karl Jumping in about membership. The notion of membership we figure has two characteristics. One it’s something that’s really important and secondly it’s going to be really a difficult problem to come up with a universally acceptable form.

Coordinator Jonathan Zittrain joins.

Esther Hi Jonathan.

Jonathan Hi there.

Esther We’re being taped and we’re talking about membership. This is Karl speaking.

Karl Anyway, membership is going to be a tough issue to work out the details. So we know it’s going to take a fair amount of going back and forth. It was our position in the BWG not to create a membership board simply because we didn’t have enough time and didn’t believe we knew the answer. So that’s why we put into our proposed amendment that the initial board be mandated to create a membership organization. And we believe that’s actually a good thing because putting essentially a hard limit tends to make people agree on the hard issues rather than giving them an excuse to avoid the hard issues.

Esther Right, which is what the government is trying to do to us right now.

Karl So we were thinking that, ignoring the fact that ORSC has a membership structure defined, that if one is not adopted at the outset we certainly would like to have it mandated. We also think that it would probably be a good mechanism if the board would establish a membership committee to focus this discussion and possibly open the seats on that committee to a broader scope of people than just the board itself.

Eric To follow up, our concern is that who ever is on your board, whatever their views are is going to define the nature of the membership. And if it is not fairly representative, if your board is not fairly representative a definition would almost, it has not be, then whatever you end up with is going to be subject to question challenge. The issue is not simple. You can’t define it simply as individuals or organization, as how you define individuals or define organization you have multiple possibilities and our proposal was that we have a representative.

The only known representative, or generally representative group of stakeholders at the IFWP, the only way we knew, and the two things are coupled, that is if for the board to have the authority to determine the nature of the membership there would also have to be a representative board doing it. The board that is not representative, then it’s not in a position legitimately to define membership. So we had a ... Have an election of the IFWP to the board, that board representative with defined membership. That is still our position.

Esther I’m not sure the IFWP is representative either, to be honest.

Eric All right, then find another way of doing it.

Esther Yeah, well that is the challenge that we all face.

Eric But the fact that you’re not sure of it, that doesn’t mean that it isn’t, it only means that you’re not sure of it.

Esther Well....

Eric No, there’s reason to believe that it is representative.

Esther How many women does it have versus men, just for starters?

M We have Mikki.

M I think there was pretty good female representation.

Esther Remember to say who you are please. Then I’d like to hear from our own board, too.

Eric Why raise that anyway. Do women use the Internet differently than men?

Esther I don’t know. I’m just trying to sort of point out how this is a challenge which is why we’re going to take the better part of a year figuring it out I think.

David So I guess I just want to stick in here....

Eric The point is that no one comes up with or has attempted to come up with any other suggestion. We have one thing on the table. That’s the IFWP, which was structured and which as we went along we felt was representative.

Esther But that was you who were in it feeling it was representative.

Richard Can I make a comment about that? The IFWP thing was created by Kathy Kleiman and and Mikki Barry and Becky Burr in the original meeting. There were more women than men. And all the conferences I went to, and that was two out of three, it was pretty even. I think a lot more of the men spoke, but a lot more women were there nodding their heads or shaking their heads and making notes. I don’t think there was any disproportion by race, religion, color, creed or sex to be honest.

Karl With respect to whether the IFWP represents a fair measure of an electorate for a vote creating a board, either initial or subsequent, I think we can clearly say that it represents definitely a significant subset. We can clearly add in for example, everyone who added a comment to the NTIA white paper, or the green paper, or the NOI before that, anybody who has a domain name, anybody who has an IP address, we can actually create a reasonable electorate and I propose by a process by which we contact the individuals electronically and ask them to opt in rather than opt out. We probably could form an electorate of possibly not more than a few thousand which would be a number we could actually handle.

Esther Yes. And then Charlie Nesson would say, how are you going to deal with all the people outside the United States who are not as wired to, you know, don’t happen to be friends with, I mean...

Karl That’s a challenge we’re going to have no matter what.

Hans This is Hans from the board and from Europe. May I ask the question to who was speaking, why the representation of the initial board is so important if the initial board and the organization commits itself to a fully transparent process in setting up a membership structure, so as asking the internet community--the international internet community--what are your proposals? Communicating through the internet, through e-mail, and in discussing several proposals to come to a unified accepted membership structure.

Karl I think you were asking the question of, let me take an answer to it. Then I take it your question was essentially what’s the difference between having an election for an initial board and having a transparent process that the initial board follows.

Hans Yep.

Karl And it really is a matter of trust. I mean, that’s what we’re coming down to here is we’ve got to learn to create a trust mechanism. And I think the members of the initial board are basically fine and good people, as far as... I don’t know very many of you, I know a few. The concern basically is one builds trust by giving authority to someone and letting them exercise it. And the step that’s been missing is the giving of authority. So there’s sort of this already built into the process by the fact we didn’t have an election for initial board, a sense that people have already been disenfranchised. And we don’t need any initial hostility beyond what we’ve already got.

Eric I think the issue is different than that. I think that who is on the board is going to determine what the results are. You can’t get around it.

Esther I think it would if we didn’t, to be blunt, if we didn’t have you watching our every step.

Eric It doesn’t matter whether we’re watching. We can’t even be there while you guys are discussing what the bylaws are going to be. We’re not even able to participate as you told us a moment ago.

Hans But, everyone knows the bylaws. There have been subsequent versions published on the internet.

Eric You’re making an assumption. I do not accept the bylaws as you have them or as you are discussing them.

Esther Right. And we are listening to you now and again, as I keep trying to say I don’t want to put, let me put this on the table reasonably early here. If we committed to have membership and then --

Eric Why if, as I understand it there is not if. I don’t even like discussing if.

Esther Just like Clinton, let’s not even discuss is.

Eric No, this is not a negotiating--

M Remember, Esther, this is being recorded and transcribed.

Greg Can I comment, this is Greg Crew, that this process needs some form of group to get it running. And I think there may be some semantics around the interim board. I think given that there’s been a lot of input to this whole process from around the world, the decision to try to create a small board of people who hadn’t been involved in the process to try to set it up--

Esther And they’re well meaning.

Greg is where we are coming from. I have not background in the debate that’s been going on about how the mainline system, etc., is going to be administered by the people that are interested in it. There would be great difficulty coming from nothing to an election process. And although know they have various bodies like your own, would put your hands up and say we can do it or we know of a body that can do it. It would be very difficult I think to find a body that was interested, representative of the total constituency worldwide. And so you should look at this initial board as being a body put up, set up to try and get this process running.

Jay This is Jay Fenello. To answer the question, I think Karl is right. It goes back to the question of trust. If an interim board is required, and regardless of where it came from, had some of our concerns been addressed along the way we would have much more trust in the process. But certain things like putting some bound on the limits of what the interim can and can’t do in the initial bylaws has been discussed many times in the IFWP process and was simply ignored in the final version of the ICANN draft bylaws that had been put forward. So that is not a conducive process to building trust and many of us have been led astray many times during this process and so we’re gun shy. And that’s primarily what I think the problem is.

George Jay, this is George. If I could make a suggestion.

Jay Sure.

George Please let Esther finish her sentence. And then react to that because what happened here is she was interrupted and we got off on the semantics here or the if’s issue. Let her finish that sentence. I have an idea of what she’s going to say and I think that will give us more meat to chew on in terms of how we shall proceed on membership.

Jay Sure.

Esther Thank you George. I also just want to make one point. We have put in more constraining provisions and we understand that concern. And when we come out with our new set you’ll see more of that in there. But let me just go back to...

Yeah, we basically agree, there has to be a membership structure. We don’t know what it is. And excuse the word if, but it’s simply we haven’t published the new bylaws yet. So I don’t know the word to put in.

Stef This is Stef, the fact that we appear to be discussing bylaws that we’ve never seen makes it really difficult.

George If you let Esther finish the sentence please.

Esther Yes, if we gave you the bylaws then you would say we’d already done them and you’d be unhappy about that. Excuse me, we’re trying to discuss what we should put in the bylaws that you will see.

Hans And basically, for the clarity of the discussion, we are still discussing the by-law’s fifth version as published on the internet. And what the board is considering is make some changes to the by-law on the basis of the known comments of the ORSC and the BWG.

Esther Thank you Hans.

Karl Okay, this is Karl. One thing both BWG and ORSC, I don’t want to speak for ORSC, but both of our proposals call for change in the articles as well as the bylaws.

Esther Yeah.

Karl So we need to make sure that we’re talking about having available for modification the articles as well.

David This is David from the Boston working group. I guess we’ve strayed again from the concept of the board back to the concept of membership. And I guess what I think what we’re trying to do here is put the horse before the cart. And in steering the conversation, at least I am, steering the conversation back towards the creation of the board.

One of the only comments that I think everybody has agreed to is that the process has to be very open. And the current board as I understand it, was not generated in open process. And so before a current board begins modifying the bylaws and the articles, it seems appropriate to address the concerns as to the closed nature of the selection process and the method of .....

Esther This is Esther, let me deal with that. Unfortunately we’re here and that’s why you’re, I mean, we’re not going to resign on this. And we were not selected openly. I don’t know why I was selected. I did not negotiate with anybody or promise anybody to do anything. I’m not beholden to anybody. And you can ask all the other board members on what conditions they joined. But the fact is we can’t go back on that. We need to work forward from here.

Milton Can I address that? This is Milton Mueller. I don’t realistically think that anybody here expects you to resign .... I think we’re, and I don’t think it’s unfortunate that some of the board members we have were appointed by any stretch of the imagination. What I think you have to realize is a reality is two things about that. First of all if you read the comments and the NTIA proceeding you’ll find out that literally half, possibly more, of the people who endorsed ICANN expressed concerns about the interim board, either the process or the missing geographic representation of some sort or both.

Esther Yeah, we know.

Milton So I don’t think it’s unrealistic to talk about expanding the interim board and that would really bolster the kind of trust and representativeness. And I think that that was explicitly mentioned in the NTIA letter that that was something that could be contemplated.

Linda Excuse me, just a minute, to identify that I’m on the line. This is Linda Wilson.

Esther Hi Linda.

W You’re being recorded, Linda.

Linda Thank you.

Eric This is Eric again.

Milton Wait a minute Eric, I put something to Esther. I’d like to get a response.

Esther Okay. And certainly the other board members are a part of what I’m hoping to do here is have you get a little feel for who the other board members are.

George Esther, this is George. I think you ought to log that suggestion. That will bring up a whole set of issues about how one might do that. But I think you have to decide the way we organize this call today so that we won’t be on here into the night, that you and we have called out these three major issues that we understand are of concern by the various postings in response to the bylaws. And certainly one clear one is the one you first served up which is membership.

And this phone call today was to get a sense, if not in person at least over the phone, from BWG and ORSC, about at least three of the major issues. We’re getting a sense today, and I honestly, you need to finish your sentence on if we have state that we are going to establish a membership model then finish that sentence and see what kind of reaction you’ll get. That’ll help me on one of the major issues we all agreed we need to discuss with these folks.

Esther Okay, fair enough. If we agree to establish a membership organization and we acknowledge that we don’t know how to do that and we commit that we will consult with not just you, but with many outsiders from a representative group, and you can argue what that might be, but that we will do this openly and solicit suggestions on how to do it, would that overcome this major objection, this one issue of membership?

Eric This is Eric. There is a forum representative, no one has discussed, our group here, telephone, any deficiencies perceives in make-up or the manner in which that group ... together, or how it might ... there is such a position. And by the way my definition of the IFWP is all people who have attended an IFWP meeting or have joined the IFWP mailing list to-date or in the future since it’s an open list. My suggestion is that that body, talking about expanding the board, that body is capable of holding an election and ... people. If we’re talking about defining membership in that body which has been discussing this issue for several months is the appropriate body to address the issue. Not people who have not dealt with or coming to the issue cold.

Esther We can certainly put that out as a suggestion and see what the comments are on that.

Eric That is not just a suggestion, it is our proposal from NTIA which I would assume has already been addressed by your group.

Diane Cabell. May I ask for a clarification, if you can, on what kind of language or what kind of proposal you had. You know, is it a general "we will commit to a membership structure" suggestion you’re talking about. Is that what you’re suggesting at this point in time or did you have something more complex in mind.

Esther No, basically it was the BWG position. And now let me follow up on George’s comment which is I’m happy to stay here as long as you want. But we did commit to doing this phone call in an hour and a half and then a few more minutes for wrap up. And so I’d like to go to the next, I’d like to get the last few comments that we can write down and go to the next session, and again, which is technical advice and unbiased expertise, AKA the SO’s.

George Yeah, Esther, this is George again. If you could just contrast the wording that’s in the bylaws today which I believe has caused some concern and some wording that we, in other words, changed that wording, that we believe would at least put on the table the fact that we would work for a membership model, even though we don’t know how to do that.

Esther Yes, we would do that.

George That’s all I’m trying, that’s the only sense of what we’re trying to get today because we’re talking only about the initial set of bylaws. We’re not trying to resolve at all how this is done. We may use a variety of mechanism it seems to me to get broader input on how it would be done. Be we are really working on some specific wording here in terms of the bylaws. If you could just contrast the two statements.

Esther Yeah, the statements are pretty clear. One is we will try and the other one is we will. And my if question was how that, if we committed that if we will figure out how to create a membership structure, that in some form or other we’ll elect the board members in the future.

George Great.

Jay This is Jay. I think that that was the major issue with the ICANN draft that there was the big if. And if that’s removed we understand that membership is going to determine control over this organization for a very long time, and a lot of care needs to be taken in how that membership is structured.

George Right.

Jay So I think that will address our primary concern, at least in my opinion.

Eric Why not do it with using IFWP, go back to the IFWP and say look, we do not know the answer. We have not really studied it. You guys have been talking about it for several months, or ones that are interested. Why don’t you guys give us a recommendation and then we will consider that.

Esther Yes. I can commit that we would certainly consider a recommendation from the IFWP but we would not, I mean, we would consider it and we would consider what other people said about it.

Diane May I ask one more question. If you insert in the by-law "we will move to membership," is there some way we can be confident that it will be a membership that will be more broad based, because that was tied into the second issue you were about to go to which is SO structures.

Esther We could put in a word representative. I don’t see any harm in doing that. Of course, we could argue all day long over what that means, but certainly that’s the intent.

Hans This is Hans ... maybe the most simple solution is that the board commits itself to install a membership structure. And I believe that we have organized an open meeting in Boston on the 14th of November. And one of the issues there again, will be to listen to everyone. I believe not only the IFWP but also other parties who wish to comment, to recommend a full representativity of the internet society in our organization.

Karl This is Karl again. Diane hadn’t completed her sentence and I was wondering if she had more to add.

Diane My only comment was before we moved on is that a minimal "we will commit to membership" is a different thing from saying the membership will be representative . . . and all that language that we had about the goal of what you’re trying to accomplish by that membership. So I’m hearing you’re not, in this point in time, suggesting all that language be included, you’re just suggesting that you make a positive commitment to a membership structure.

Esther Well, what I’m actually saying is we’re listening to you now and we’ll have to go back and figure out some words and then...

George Esther, this is George. I would have said as a member of the board, I would have said yes to that because I don’t, and I think we can tell everybody today that we certainly are going to create methods by which we will dialogue on how the membership structure should work and the pro’s and con’s of various constructs, since none of us knows how to do it. We were just trying to get the language simple and remove the initial barrier which was somewhat weasel-worded I guess could be the expression, and get it to a commitment to go to a membership model whatever that may be. But it’s very clear that we’ll have to solicit a lot of input and dialogue on the pro’s and con’s of various approaches.

Stef May I make a suggestion? This is Stef. Let’s move up a level of abstraction on this and say that I’m sure that we will all agree that what you’re talking about doing in concept is fine and we’ll agree with that. But we’ll all withhold our judgment on it until we see the real text which you promise to show us.

Esther That’s right. And which we also, I mean, that’s exactly what we’d like to do. We’d like to take what you said, go back, take out the weasel-words and put in some real words and come back to you.

Jay There’s also a complicating factor if I may, this is Jay Fenello. If you have read Tamar Frankel’s recent comments on the public list, there is a reason why incorporation in the state of California is inappropriate for membership organizations. And I’m not a legal scholar, I don’t understand it, but I do want to bring it forward as an issue.

Esther Thank you. We’ll deal with it.

Tony Esther?

Esther And then we really have to move on. Go ahead Tony.

Tony Esther, Tony . I would underscore George’s emphasis that we focus preferably on text here in some concrete way. And along those lines, Mike Weinberg was in a draft for a potential Delaware incorporation, going to manifest the existing draft, or morph into a member class structure. I was wondering whether in the next iteration that was going to be reflected. That would certainly help in the movement towards defining this as a membership organization.

Mike Tony, this is Mike Weinberg I don’t understand your question.

Tony Well, remember in the drafting process you were going to convert the draft into a Delaware incorporation? I was wondering whether that exists and that’s what’s going to move forward.

Diane I believe ORSC has done that. This is Diane Cabell. Their draft does that to the large extent.

Stef We should ask Dan to speak to what we did. Because frankly what we, this is Stef, what we have asked for is what is in those bylaws. So we don’t feel the need to constantly resay it all the time. It’s right there in writing.

Esther Okay. We will have to look at all these details over the next couple of days. But it’s clear that we will commit to a membership structure and that we need to figure out.

Dan Just to follow up what Stef was saying, this is Dan Steinberg, Mike and I can talk about this off line and not bore the other people on the list with the fine legal details in corporate law.

Esther That would be terrific. But obviously Mike has to check with the board as well.

Karl This is Karl again. And I would encourage that Tamra Frankel be involved. She’s quite an expert in a lot of these structures.

Stef Stef again, if you want to take our incorporated shell and use it, it’s yours.

Esther Thank you.

Richard May I make a closing comment on this section here? This is Richard Sexton, ORSC. I guess three comments here. One is

M Only one.

Richard Just a short one. First of all I think we should all appreciate the fact, and in a sense pat ourselves on the back for the fact that we have meetings that although they’re not regularly scheduled, one seems to pop every six months, or less. So that’s fairly comforting. And we have a decent community now of a reasonably stable mailing list as opposed to the earlier efforts three years ago, but that’s all good. I think it’s important.

The second thing, I’d like to address the comment of the board on trust and resigning and crap like that. I think we’re, at least as ORSC is concerned, we’re all quite convinced that we don’t care who the board is if the bylaws and the articles and incorporation are sound. You can have Genghis Khan or whatever you feel the villains are on the board and you can’t do any harm. So we don’t really care who the board is.

Esther Yeah. But we want to actually be able to do some good.

M No offense.

M The point is I’m sure you will.

Esther I understand that and you’re right. But the challenges, how do you, I mean, I’ve thought about this a lot. And take one very small example. ....

Richard Can I just finish Esther?

Esther Sure.

Richard I’ve got one last quick point. So we’re fairly happy with the board. The last point is on the membership structure and it seems to me at this juncture ICANNN has three choices. They can say we’re not going to have membership, or they can say we’re going to study it and we’ll make one, or they can say here’s our idea of membership, please modify it. And it seems to me the latter is the tact that ORSC took. We’re not sold on the fact that membership structure is the end-all be-all. If people like it’s that’s great. But if not it just becomes, you know, the initial point and set of iterative because of approximation. So in the interest of time, because I always get nervous when I hear we’ll study it for a year and it becomes two years old whatever. Would that be prudent, that tact?

Esther I think it would be prudent to say that we will do it and then look at the ORSC’s approach and various others. But not start--

Richard But there aren’t various others.

Esther Well, look for them.

George Let’s not haggle over how many there are. It’s a matter of fact to count.

Esther Now we need to go on.

Karl I just wanted to sort of make a segue into .... With respect to membership. Since the power on the board is derived from both from, I’m assuming we’re going to have membership, the power will come both from the membership structure and as a corporation, apparently structured from the SO point of members. Is this a good time to start talking about SO appointments?

Esther Yes. Go ahead.

Karl Then I will continue. The BWG position was that the supporting organizations were originally though of both the funding sources and to a large extent the bodies of technical expertise. And as such they were given fairly strong power under the bylaws, in a sense that they are the soul source which all of the initiatives can be initiated. And the board has relatively few grounds to not accept those policies and issues. We thought that that power coupled with the ability to also appoint members to the board, to the large extent initiated the power of the at-large members of the board.

Esther Right.

Karl So we saw two alternatives to that. One was to say that the SO’s would not be the soul source of policies, that the board could also initiate them. And that also the board need not accept the policies initiated by the board. That it had essentially unfettered discretion to accept or refuse them. That would tend to make a more even balance of power. That was one alternative.

The other was to say, which was the lesser alternative in my mind, not necessarily as good but less changes which is why the BWG took it, was to remove the ability of the supporting organizations to appoint as it were, directors to the board.

M Is that an either or?

Karl I would, I personally would prefer the former construction, the BWG proposed the latter because our charter was to make a minimum set of changes.

Eric This is Eric. I actually prefer the latter.

Esther But don’t let them be directors.

Karl Yes.

Eric I would do away with the term supporting organizations all together and go back to the way we talked about them .... that is as councils. Have them organize as part of, not separate from and autonomous from ICANN or whatever the name should be. And not have them effecting board members.

Esther Right.

Eric And I think you understood, or I hope you understood the little exchange that Karl and I had on that forwarded to you. But every level of resolution where---as you have different stages of election, by the time you get through the people at the bottom don’t really have any say in the SO’s voices.

Esther Right. The minority’s being kind of.....

M Diluted.

Esther Yeah.

Eric With not doubt each level. That is, that just isn’t of interest to me at all.

Karl Eric, this is Karl again. Eric’s actually alluding to a broader issue which is if we get into a, whether it be membership or the membership of SO’s, if we have a strongly class based structure it tends to concentrate the power into the majorities in each class and thus submersing the majority. It’s sort of a gerrymandering effect.

Eric Yeah. It is the reversal of what is called for in the NTIA. Instead of bottom up it becomes entirely top down.

M Yeah, that’s true.

Eric And that is not acceptable.

George This is George. Just let me make sure, I think I understand. I want to make sure I understand. At first I thought the issue was one of the officers of the supporting groups either appointing or themselves being on the board. But what I’m hearing now is a concern even about representation from the supporting organizations. It’s just off the board.

M That’s correct.

Jay This is Jay. There’s also the issue of entrenchment. When the board, when the ICANN board goes forward with recognizing the council’s or the supporting organization or whatever you call them, there’s a certain bias that would tend to favor the entrenched stakeholders. For example in the IP registries you have three IP registries that only represent a fraction of the entire IP address space who are organized enough to take over that function. Same thing with the executive boards of the IETF taking over the protocol’s function. These are strong concerns about entrenchment and capture and need to be addressed I believe now.

M ARIN, for example, only has approximately 160 members. Yet, they represent .... virtually who has an IP address.

Esther Somebody’s cell phone is .....

M I couldn’t hear that.

Karl This is Karl again. Just the fact of representation. ARIN for example which would be on the numbers council has literally only 160 members. Yet they claim to represent every user of the internet. And because the SO’s in the current plan elect their own membership, not elect, define their own membership structure, essentially whoever gets in the door first can slam it on whoever follows. And that tends to entrench their control.

So we see the supporting organizations as better cast as permanent advisory committees than as the sources of strong policy. We would think of them as having the right to initiate policy and having the right to continue their existence. However, we would like policy to be initiated by the board itself.

For example, one situation we hypothesized was, suppose the names organization adopts a policy that says the main names will be subservient to trademarks. The board would pretty much have to accept that under the current bylaws because there would be, I mean, it was an open process, it’s not against the nature of the corporation, so on and so forth. The board would be required to accept it.

Suppose at a later date we discover this is just a horrible policy but the names organization would not, is not willing to initiate a change to that. The board under the current structure would have no power to initiate a proposal that would say let’s change this. And we’d end up with a situation in which the initial decision by the names organization could not be overturned despite an overwhelming majority of the membership of, behind the at-large members and perhaps under every other supporting organization.

We’re very concerned about the very intense power these supporting organizations. And by adding to them both the power to elect board members and the power to make mandatory policy initiatives, we think that’s just too much of a focus.

Richard If I could add to that, this is Richard Sexton, ORSC. As far as domain names are concerned you have about 230 country code administrators that have banned together and will say we have all the TLD’s except for 4. Well, yeah, but there’s 4 million under those four. There’s under a million in total on those 230. You know, we’re setting a company to do domain name ... you give in and assign most of the board seats. The representation is a funny thing there, too. You’ve got to be very careful not to, to recognize any group as saying that we have control.

Milton This is Milton. If I could amplify on that, the names issue for a second. It’s very clear that the country code feel, the administrators view the names organization as something they are going to capture. And what this creates is a situation in which you have an organization that’s bound to become a Cartel because you have some of the world’s national suppliers of name registry services on a global scale in control of the policy making organization for names. And it’s clear that any policies or practices that would open up that market to competition that might undermined these particular national monopolies would not be received favorably within that supporting organization.

M What would even be legal. Tony?

Esther Legal under who’s law, that’s one of the issues.

M US laws. That’s what ICANN is. Is Tony there?

Esther ICANN is an international organization.

M It’s a Delaware corporation or a California corporation that abides by those laws.

Esther Yes. But... yes...

Dan This is Dan Steinberg. I think dealing with would it be legal is getting a little away from the focus of our discussion. I think we should be focusing on what we want to do and then let the lawyers make it legal.

Esther You’re right. Let me just ask, I’m finding this discussion very interesting and I’m wondering if anybody from the board has any comments or questions as you keep going?

Mike This is Mike Roberts. I’d like to ask a question, and that is the draft bylaws, the ones that are posted, provide that the SO’s have to come up with an open impartial and so forth membership structure that has to be approved by the board. Presumably whether it’s otherwise broken down into classes with proportional representation or whatever, that something along the lines of those requirements is likely to be required at the parent level as well.

So if the requirements for impartial and effective representation in terms of structure were essentially synonymous with regard to the at-large at the parent level and with regard to the SO’s at the three areas of expertise, what is your view then about the problem.

Milton If I could answer that, this is Milton. It’s very clear that in those kinds of situations the people with a lot to gain regardless of whether they’re a minority, a very small minority, the TLD registries in particular have a lot to gain, and the ordinary internet user has a very abstract and kind of diluted interest in the outcome of names policy. So regardless if membership is open or not in the domain name supporting organization, that organization is going to be dominated by registries, by the economic interest of registries.

But the same would be true of the address supporting organization. And I don’t really know enough about what’s going on in the protocol world to say much about that.

Mike This is Mike Weinberg. Can I ask a question? I’m trying to understand the balance here. I the supporting organization’s under the structure that’s currently in the bylaws, had lesser power to implement policy, and that power shifted more to the board, would it then be a problem that a particular supporting organization was able to select three of the 19 board members?

Karl Let me jump in, this is Karl. You said implement the policy.

Mike Well, develop the policy.

Esther To vote on and define.

Mike If you reduced that power and shifted that power, if the SO’s were more advisory in developing policy, and the policy decisions then were made by the board.

Esther Yeah, I mean, if simply the board did not have to adopt the recommendation.

M But you’re still putting half the board in the hands of the SO’s.

Esther But there’s three different ones. ...

Karl This is Karl again. Remember I said that there really are in my mind two distinct alternatives. One was to remove the ability of the SO’s to nominate those additional 9 board members in groups three of three, three. Or, make it so that the board can initiate policy in these matters and make the SO’s policy initiative merely advisory to the board. I see those as two alternatives. And it doesn’t matter which one prefers.

M How does the ORSC feel about that?

Dan Well, I think , this is Dan Steinberg.

M What did we say in our bylaws?

Dan Well, in our bylaws we follow basically the same line as the Boston Working Group and ask that the councils or SO’s not vote for board members. And just to extend this discussion a bit, my personal feeling, because we haven’t looked at it as a group from that angle yet, is it becomes part of the membership question. You can’t sort of talk about moving toward a membership structure and then at the same time saying well, half the members are coming from the supporting organizations. I think the best way to do that is to take away their membership voting rights from the SO’s as an explicit council group and then let, finally make them to have them be represented under the membership structure which you would eventually develop. You may end up giving the same people the same votes but at least it comes under the guise of membership and not under the guise of the people who are dictating policy are the ones who are voting the board members.

Mike This is Mike Weinberg, Esther. I think ORSC proposal, the way it’s membership structure was put together, certain of the classes of the members that had rights to elect certain members of directors were basically matched up pretty well with what the supporting organizations were going to look like, at least in my mind. And so maybe we have a bit of semantics here between SO’s electing directors as SO’s and the same people who be in an SO electing directors as a class of members.

George Yeah, that Mike, George, that’s what I was kind of picking at a bit. I did want to get the broader question on the table. But I wonder is the sub-question is there a difference between let’s say from just when we have the SO structure as in terms of board representation, what’s the difference between, if any, in these folks minds between having the directors of the SO’s on the board versus elected representatives from the SO’s on the board, comma, assuming they’re not the director’s of the SO’s.

Richard Well, the problem with that is you have the, Richard Saxton, ORSC, you have the entrenched facilities that are currently selling IP addresses and selling domain names and they have money for lawyers and money for marketing, whatever. The want-to-be’s simply can not compete with that. ... So if the entrenched people get to, as a class, elect board members, and I know there’s three of them, but at large, you find the same people in those three areas. You’re going to create something that’s prone to capture. It seems to be echoed both between the ORSC and BWG that the SO’s should make great suggestions but they should not have control on policy.

Stef This is Stef again. May I try to bounce it up one level again? The basic issue that I see which I think it was Conrades asked the question, was what’s the difference between these things. I think it’s very different for a class of membership with lots of people in it to be electing board members of ICANN .... and also board members of the SO than it is to have the elect members of the board of ... of the DNSO. And then have the DNSO board elect members to the ICANN board. It think that’s the difference. It’s direct versus indirect.

M Okay. I understand.

Tony This is Tony. And also Mike, one of the legal issues that was dealt with in that change was pointed out by Karl. You’re setting up a fundamental conflict of interest. If the representative from the supporting organization sits on the board will also be on the board basically reviewing the positions, in terms of policies, coming from that supporting organization, it’s a fundamental conflict that unless you break that apart that uh, those board members would have to recluse themselves in theory for every single policy manner.

M Yeah. Minor detail.

Esther I’m not as concerned about that. I am, I am, I mean, I find the notion that the SO’s basically decide the board’s policy certainly. And I’m not speaking for the board, I’m speaking for myself. But I find that a point worth noting and it will be.

Jay This is Jay. Fenello..

M ...... conversation with .....

M I can’t hear.

M As I understand NTIA and the US government’s position, they agreed that the SO’s should not have representation on the board. That was explicit.

Esther I didn’t see it in their letter.

M It was not in their letter. This was our telephone conversation. I mean, it may have been in the letter.

M No, it wasn’t in the letter. But you’re right. It was in his discussion with us.

M He was absolute. This was not even a negotiable matter. It was absolute. They agreed that it should not be.

Diane I’m sorry, Esther, you were about, you were starting your presentation on your feeling on this point.

Esther I just said I thought that that was a point worth noting.

Karl This is Karl jumping in a little bit more. Part of the premise of the SO’s was that they would be the technical authorities on particular matters. And having been on the internet since 1973 and working in this whole area of coming up with standards, coming up with finding numbers, there isn’t that much technical.

M I agree.

Karl The most technical part is in the IP address area for dealing with aggregated route. And to a certain extent, the technical, these advisory committees, whether you call them SO’s or whatever, if they’re also the technical resource on which the board is relying for evaluating these issues, and that they are also board members, that gives them essentially a triple role in this.

Esther There is, in fact, a provision for advisory committees which would not be the SO’s. But clearly that is an issue and again we note your point.

Jay This is Jay Fenello. This topic was discussed at length in Barcelona for the DNSO’s supporting organization meeting. One of the, there was a balance there between having a flow of information between the SO or whatever it turns out to be and the ICANN board. And what we kind of came up with was non-voting representation on the board from the SO’s, and vice versa.

M What is on-voting representation?

Esther That is an interesting thing to achieve.

Jay I don’t know what the legal concept, but it was something that the DNSO at least in the discussion would accommodating non-voting members on their board.

Esther So it’s like a service.

Jay Exactly.

M Non-voting members have the right to speak as well.

Stef Non-voting members sounds like a heavy hand. This is Stef. The advisory board made up of people like that found it much more reasonable.

Karl This is Karl again. There’s been a lot of talk about SO’s. What are they? Are they separate legal entities or are they entities within the context of ICANN? It’s been somewhat vague about whether they should be separate entities or not. And I personally believe they should be literally, just sub-committee’s of ICANN and have membership who may be employed by other companies or what have you. But they shouldn’t be separate legal entities.

M Likewise was what Magaziner thought in his conversation with us.

Stef Stef here, there’s the interesting proposition that they’re also going to supply money.

Esther That’s significant.

Karl This is Karl again. With respect to the finances, in the BWG proposal we had set forth this definition of this very vague notion of fundamental assets. These are the things that come from the government, the domain name route, the IP address space. And it was our business model that the board of ICANN itself would enter into a direct license agreement with operations entities, maybe NSI, maybe the ..... whomever, who actually use these assets under certain conditions. And this is how you would want to exercise control over use of these assets. In return there would be licensees coming back. This essentially removed the SO’s as a source of funding. It also created a much clearer business model because then the board would be entering into explicit contracts with explicit licensees and explicit terms and conditions rather than relying on the good nature of the SO to .... bubble up.

Esther Okay, so the idea is sort of get licensees and more like taxes on the users than get it from the SO’s.

Karl Yeah, the first form is more like the original article of the confederation of the United States where the federal government was dependent on the states, their good nature to, pun, grant money. It had no central control. Unless the central government, in this case the ICANN board, literally, at the mercy of the individual states or in this case the SO’s, a better business model is to let the board run this organization, figure out based on it’s business plan what it’s income needs are for the year, and enter into explicitly agreements with the operational companies rather than go through an end level degree of indirection to the SO of licensing these assets. Which all that does is promote less control, less accountability, it’s a worse business model, it’s a better way of hiding things.

Stef Stef here. Does the franchise model make more sense?

Karl Essentially that’s what’s happening here is that ICANN would be licensing, franchising, whatever, the use of pieces of the IP address space to the three .... for example. Or TLD’s to whomever’s going to operate those. The privilege of operating the root zone to whomever’s supposed to operate that.

David David here jumping in. Just one other note on that model was that those fundamental assets could not be permanently sold off. They could only be leased out or licensed out for a specific period of time.

Karl Yeah, this is in the BWG article.

Stef That would preclude say, a company like NSI from taking, quote ownership, close quote, of the dot-com command.

Jay This is Jay Fenello. I guess we’ve changed the topic to financial accountability.

Esther Yeah, which is sort of where we’re heading anyway. This is very interesting and helpful. And I know we’re all learning.

Jay This topic also came up at the DNSO meeting. And one of the criteria that would be a requirement is there being some kind of financial control on the ICANN board as to how much money they can raise and how much money they can spend. And I would be curious to know how the BWG proposal implements that control. Also I’d like to describe what the DNSO came up with which was the ICANN board would put forward a budget request for the SO’s to fund and the SO’s would then, upon approval, figure out how to assess their membership for those fees. This model was something that had a two step balance approach so that all funding request would have to be approved before they were expended.

Karl Well, this is Karl again, answering for BWG, we didn’t establish an exact mechanism for that. We just said that there will be a business plan created by the end of the end. That’s how it would run it’s business as I real live business would. As far as funding flowing through the SO’s, again, this is jumping back to the previous discussion of whether they are in fact funding sources or whether the board enters into direct arrangement with those from whom the money will come from. And I personally don’t like the funding coming through the SO’s because it does add a layer of indirection and another place for hiding money in accounting games and all those sort of things.

Eric Well, you’ve got all these separate organization, each one of which you have to start worrying about what they’re rules are, how you going to assure they’re going to be transparent and representative and what have you. It’s much easier if you just organize the one organization than have to organizations would be a nightmare. And some of, you know, you’re just increasing the chances of getting one of those organizations to go awry.

Esther I want to actually make a response to that which is we could easily have a single government without an executive and a legislative and a judicial branch. Sometimes there’s a point to having some separation of power.

Eric No, we’re in favor of creating mechanism for section. The question is do you want to have numerous organizations which are not directly accountable to the central, I mean, why do you want to have four organizations or five organization instead of one. What is the benefit?

Esther To be decentralized.

Diane No, he’s saying you don’t control, there’s no authority structure over those other entities. There’s not enough. So it’s not a central organization at all.

Karl If they’re separate legal organizations and there’s a source of money, one would have to enter into fairly explicit contracts with them in order to have a legally enforceable right to get something out of them. And I believe it’s better for the entity to enter into direct contracts with the sources of the funds rather than have to go through an intermediary.

Mike This is Mike Weinberg, I think that the thinking historically and when ... was putting a proposal forth was not that the supporting organization would be the primary source of funds. That it would be a source of funds. And therefore, in order for a supporting organization to sign up to be a supporting organization have to meet all the criteria set forth in the bylaws about openness and due process and those sorts of things. And it would also have to make a financial commitment to the organization. But I don’t think that the contemplation was is that that’s where most of the money would come from.

Karl Well, the articles actually say the SO’s are the primary source of funding.

Mike I think that they are a primary source of funding.

Karl Okay, a primary source of funding.

M It’s hard to have multiple primary.

Richard This is Richard Sexton from ORSC. The thing that concerns me is if you say the SO’s are the source of funding and they’re going to charge the people that they do work for or hold assets for pretty much carte blanch. If you shift the model around such that you say the end user or the internet is getting some resource and there is some amount of work that needs to be done to delegate that resource and they should pay an appropriate fee, that has one advantage in that there are probably half or more than half of the current IP addresses were given out for free. They’re not being charged anything per year. And there is millions or billions of dollars if you said it’s going to cost this much.

Now the reason they’re still free is it’s no work. The records are in there. They’re static, they don’t change. If you want to change one of those records you probably have to $5 or $20 or whatever. But, if you suddenly say that Annon can go and charge everybody for an IP address you’re going to have a backlash on your hands something awful.

M Yes.

Richard So I think you’ve got to assess the fees. What actually has to get done. IP’s don’t cost anything. Domain names don’t cost anything. The act of delegating them does. Make the user pay for that. Allow a reasonable mark-up for a business, be allowed to do that and you don’t have the SO’s bring things in control.

Linda I have to leave the call now to go to another call. This is Linda Wilson. This has been very helpful input and I look forward to further discussion.

Esther Thank you very much Linda. Bye.

Stef I’d like to pop in with another one of my higher level of abstractions. We’re talking about delegating names. And I want to raise up the issue very clearly that we need to be very careful about this language that we’re using because we’re going to fall into an assumption. That somebody actually owns all the TLD’s and delegates them to people who want to use them.

And this leads me with a very strange question as to what happens if somebody comes up with a name that nobody ever thought of before and comes in and says I’d like to use this name. And the route operate says, of course, we own it even though we never though of it before and so we’d like to rent it to you now. It occurs to me that we’re really doing with route is offering advertising space for which we charge.

M Yes. That’s right.

Stef It’s really an advertising model not an ownership delegation model.

Karl This is Karl speaking. I would disagree. What we’ve got is a good will asset which is the route does not need to be recognized, but most people do. And there’s a power.

W A legitimacy it gets.

Karl Yes, to edit the basic data structures, the files, the zone files that we’re comprising the route. That is a privilege or right which can be licensed by the board of this entity or by the SO and that license agreement can say you will add things under the following conditions. And one can lay out those conditions. And one of the conditions is we’ll work on new conditions as funny situations arise.

Dan But Karl, that’s not a disagreement with what Stef said.

Stef Karl, this is Stef. I agree with Dan. That doesn’t disagree with what I said at all. What I said was what you’re buying, what you’re paying for, and what the zone owner has a right to do is to edit the advertising in the zone and so they can either agree to take an advertisement or not.

Esther This is fascinating but we probably need to....

Stef I just wanted to put that issue on the table and say, be very careful because the semantics and the words you use in discussing this have assumptions buried in them that are going to make a big difference.

M One more thing on the SO’s. I want to make this clear. The proposal for SO’s did not come from the IFWP, but was produced I guess by. Isn’t that right, Mike?

Mike Yes.

M That was something during all of our discussion we did not contemplate nor propose and so it was just popped on us at the last minute.

M I think they were in there since the first draft.

M In your draft but not in the IFWP process.

W But it’s been around for a while.

Karl This is Karl speaking. And jumping back. I didn’t like the SO’s from the moment I saw them. And many of us have a real problem with the process by which the success of drafts were arrived. And without going into it let’s just say that many of us have had significant objection which we made in what we thought was the legitimate forum for discussing this in general and found out that their still there. So we have a lot of sensitivity to this notion of, well, it was there at the beginning so you lose your ability to object now.

M Well, if I could expand on that there were consensus calls in those meetings and the fact that the SO should have the ... as universally wrote it down. ... was in the room.

Karl Yes, but in the IFWP meeting.

M In all of them. I mean, that’s a lot of people around the world.

Dan This is Dan Steinberg. Can we not focus on the past history and what we’re trying to do here.

Karl We’re discussing legitimacy right here.

Dan Yeah, but before the legitimacy we’re talking about the concept of the SO’s and something looked a lot like an SO was in white paper. We’re just trying to make it into something that we can live with.

Esther Yes, thank you.

M That’s really the ORSC position, is we’re just trying to make it into something we can work with. Yeah.

M It was just their idea at the time.

Stef And if that couldn’t help if we looked at the ORSC bylaws in that area and asked the ICANN board to comment, what would you need to change to work with this.

Esther Well, as with the other, we will, with luck we might look at the transcript and see what was said here and go back and look at some of these things. And we will get back to you on it. If there’s any closing comments on this bit.

M Well, let me just say, there’s a good, I don’t know if you’ve seen it, I hope you have. There’s a very good comparison chart by Ellen Rony on the NTIA sight that lists in three columns all the bylaws. Have you guys seen that?

Esther Yes.

M Yes.

M Just to finish that, if you guys could look at that and tell us, it might be less work for you to start with the ORSC bylaws and say we can add this and change this and then you’re done. I did my help, I don’t know.

Ellen There’s a correction to those bylaws that are on the NTIA site. So may I direct you to the more updated version at .... .

Esther Hold on, let me right that down.

Ellen This is important because...

M Can you send the URL in a message please.

Ellen Sure.

M That would be a lot favored than playing broken telephone.

Ellen A mistake was found on the NTIA posting so I want you to have the latest and greatest. I will send it.

M Thank you for doing it Ellen.

M Are we all on the .... list? Anybody not?

All No.

Esther I will make sure that the board gets it. Great.

M I’m assuming that anything we send to Esther gets to the board and that’s the efficient way to do it.

Esther Just about. There are some things that don’t to be honest because--- the stuff that’s important does indeed.

M And if you send to Esther with a request to be sent to the board.

Esther Absolutely, there is no way it wouldn’t reach the board.

M Thank you.

M Esther doesn’t send us all her flame mail.

M And we’re grateful for that.

Ellen I don’t know if you have a sense of where the different groups are as you walk away from the SO role question.

Esther Well, to be honest we have a much better understanding of what the issues are, maybe less of where each group is. But certainly we’re not, we’re trying to focus on what we’re trying to accomplish more than ...

Eric Are you disturbed by the fact that you’re making a decision regarding matters that other people have possibly more knowledge.

Esther Well that’s why we’re here to learn.

Eric Yeah, but why is it that the students are deciding what should be done.

George This is George, at the risk of offending you, let me just say that whether or not individuals are ahead of others, what we’re trying to do today is take the responses as we understand them in three groups and learn more about each and get to a point where we could have an initial set of bylaws that then would require some work, further work, but that at least allow them to proceed. And we did not want to proceed with the fifth revision without having interactions with you and others.

Eric I understand that. But my concern is that there are many things that you are going to miss and you’re not going to have anyone there talking with you about them as you go. Or you will have people talking about it but not us.

Esther Eric, we will be getting back to you in a day or two with the new version. We don’t expect perfection. We understand that some things are harder to change than others. And as with the membership, we’re punting on the specifics. We can’t probably do as much of that with the SO’s. But believe me, we’ve got Mike Weinberg here who’s a lawyer.

Eric Say that again, the last part. What you can not do with the SO’s and why.

George Today.

Esther It’s harder to punt on the SO’s because they’re always SO’s waiting.

Eric Yeah, I agree with you. I don’t think you should punt on the SO’s. That’s a pretty easy one from my point of view.

George Okay.

Richard Can I ask a question here. Richard Saxton. Actually, let me ask it later.

M Thank you Richard.

Esther Discretion is the better part of valor. Okay. The conflict of interest and, first of all we’ve looked at both your proposals and we’ve adopted some wording. We’ve sort of consolidated some of these issues as we worked toward the next version of the bylaws. And we think we’ve addressed most of them but again, I’d like to hear a little more of what you have to say.

Stef Well, this is Stef. I’d like to again look at it at the higher level of abstraction and just say that the simple way that I’ve always dealt with conflict of interest in all of my own work is to announce what they all are and make it known and let everybody be aware of it. So I think that---

M I think that’s pretty much what .....

Stef The publication of conflict of interest facts is what we need. That’s a starter.

Esther Okay, that’s the major issue then. Simply disclosure and openness.

Eric And then to apply to the employees as well as to the board members.

M At least executive employees.

Eric Yeah.

Jay This is Jay Fenello. I would add to that a couple things. Reporting meeting minutes a month after the fact is not as open as transcripts. Having open meeting where people can listen on the spot is even more open. Having the ability to recall directors if they are completely out of line with the people who have put them in place is a powerful means of maintaining accountability. These are things that I don’t believe are in the current draft and are things that I would say would be very useful in helping to instill accountability into this new organization.

Karl This is Karl here. I agree with all those. And the notion of we’re on the internet and the meetings for years have been on the end bone. And I personally built high quality audio video stuff for the internet. To the extent possible, let’s try to get this stuff on-line in real time.

Eric Is there any interest in, and I agree with that. Is there any interest in--- I just lost what I was getting at.

David This is David, I’ll jump in here and just ask, Esther, you had laid out three specific areas that you wanted to address. And I want to make sure that we address those and then have a chance to go back to our conversation that we had before we jumped into the three topics. Have we addressed those three issues to your satisfaction?

Esther I think I’ve learned a lot. I’d like to hear what the rest of the board, whether you have any questions or comments.

George No, I think there were two parts though in the response to the last on conflict of interest. One was certainly this reclaimer to disclose any conflicts and do that on a regular basis. The other, though, was more to an accountability point and having uh, real time or open meetings if you will. And I think, it’s not clear to me. We all have discussed that and I think we’ll need to think about that as well.

Esther Well, we’ve certainly discussed having open meetings with the public. We do not, let me say something. I said this to our board too, even at the Electronic Frontier Foundation, our board meetings are private. We publish minutes. They’re, you know, I think we could probably do better minutes. But I don’t think the board wants to have open board meetings. We do want to publish, and afterwards I thought 30 days is rather slow, too. And I think we would aim to do it more quickly.

W Great. Let me make a suggestion.

Esther Sure.

Eric EFF is a different kind of organization than what we’re talking about here.

Esther Yeah.

Eric We are managing public asset. We are really a public, EFF is just ... in the world thinks ought to happen. This organization actually is government.

M Can I offer a suggestion here Eric. As far as the open meetings, I mean, yeah, it’s be nice. I think what she needs to do is ask Karl to set one up and then have people slowly get into it and see how it works. But you do have a situation where I can turn my television on and I can watch the Canadian government or I can watch the US government do its business. And to have the internet government not be in that position, given all the ...., seems kind of silly.

Karl This is Karl, remember the old thing about sausage and legislation, you don’t want either one made.

Stef Well, in this particular instance I think we need to watch it being made.

M And also about the conflict of interest, the current ICANN draft has a bunch of pointers to sections of California law. And we are a Delaware corporation and there’s no equivalent Delaware laws. So what I ended up doing was pulling all the language out and sticking it in the ORSC bylaws just from the California laws. Now the things you guys have been talking about so far, they’re pretty much in there. When you take what the Delaware laws say about conflict of interest which is basically you say what they are and then go and do your business. But you’ve got to say what they are. Added to all the California stuff that’s in there now, I think that if you look at the ORSC bylaws from a conflict of interest point of view, if you’ve got any modifications you can find that need to be made, great, suggest them. But I think that’s about as far as you’re going to reasonably get. So you might want to take a good look at those.

Eric Let me follow up on this. As opposed to the EFF, it’s not disclosing of assets or doing anything people can make money off of. And you’re not sending people all around the world.

M I think we can see this point, Eric. I think we know the EFF’s a different organization.

Eric Okay, and that means that we are going to be open in a governmental sense rather than in a---

M Well, it depends on if Karl can get it to work or not.

M Well if.... finish your conversation.

Eric No, if it’s a done deal then I’m through.

Esther No, it’s-- we, again, we need to think about this one.

Eric Well, I agree that you need to think about it, but I think you need to think about it differently than you were.

Esther Okay, well, then that’s again, this is.

Hans This is Hans. May I ask a question to either the ORSC or the BWG. Is a cabinet meeting in the United States, is that on television in public?

M Yeah. They are.

M They are?

M Oh, you mean the executive branch meetings?

Hans Yes.

M Executive branches are not public.

Hans Oh.

Eric But you were talking about a legislative meeting.

Hans The meetings, if I may refer it to the European situation, meetings of Parliament are public. But the executive, which is the government, is not public.

Diane But you are doing both, that’s our point.

M Yes, true.

Esther That’s our point.

M In fact, as a model, if you were to establish something that had separations of powers and the ability to tax with representation, etc., the same way that we have in the states, then a lot of these issues will have already been addressed before. But when you have an organization that crosses so many boundaries I think you’re hearing a large number of us saying it needs to be an open process and much more open than you’re originally thinking about.

Eric In the United States, for instances, my school board or my city council can not, more than two people who are on that body can not meet and discuss public business except by first making an announcement and allowing the public to be present.

Esther Have you ever asked them how effective that is?

Eric Yeah, we govern as effectively as anyone I know. So the answer to your question is yes, it is effective.

Karl Like we couldn’t have this call for example.

Esther Yeah.

Stef Well, the call is being transcribed and I assume it’s going to be published openly.

Esther Yes it is.

Karl Karl trying to jump in. Essentially there are government and sunshine laws within the US. And the administrative executive agencies really push hard on not being open in violating these. So it’s a very strong tension there. And I know that we also have to deal with the fact that we want to honor the best privacy practices we can so we have to be careful on some of these to find the right balances. And I would say the board should have a less expectation of privacy than the average citizen with respect to these particular matters in discussions.

However, there’s a very great piece of wisdom. If you’ve known me long enough you’ll get sick of me repeating this. And it’s King Alphonso the VII of Spain. And he said one should not make laws for things that rarely happen. And when you get into these conflict of interest situations, the number of twists and turns is just subject to, there’s no limitation. To the extent you’ve got to have a dynamic structure with somebody who’s perhaps a board committee or something like that that’s actively watching these situations in which board members are encouraged or in fact required to go to and make consultations internally rather than necessarily making their own decision.

Esther I’d like to comment on both these things now for a second. This is Esther. First of all I really, I feel so strongly that the best remedy for conflict of interest is simply disclosure and that you’re right about you can have all these laws but, especially if there’s a membership structure. There’s some notion that we just won’t vote for people who don’t disclose their tax returns or whatever. And so you need to create that culture as well.

On the board meeting thing, I mean, I’ve seen this in board meetings. Frequently if you’re in public you’re going to posture for somebody. Like sometimes you’re going to be willing to compromise if people aren’t watching. But if somebody elected you to.... and so sometimes really these meetings can be more productive if they’re private because people just can’t come to consensus.

Eric That cuts two ways.

Esther It does.

Eric You can compromise on principles that you should not compromise on.

Esther It’s true but it does also work the other way and I’m just pointing that out.

Jay This is Jay. Given that you’ll have the apparent ability to tax the users of the internet, I would argue for the more open route. It would be better to not implement policy that would result in taxation than to, make it easy to implement policy that will effect everybody.

Eric Let me follow up on that one more time. There is the idea that one has, that each of us individually has a higher morality than the people as a whole. And therefore we should not have to expose what we’re doing to the public because we might feel compelled to do what they want us to do. Has a degree of arrogance to it. The public may require that we .... better than we would if we were not being watch. I think that’s what Jay’s saying. And I believe that that’s true.

Karl I would suggest, and this is Karl, that the default be open.

Esther I mean, it’s just when I watch what goes on in Congress, the way people grandstand because they’re being watched, it sort of makes me think that you... sorry, Ellen go ahead.

Diane I know, but was it worse when we couldn’t see that. You know, was the legislation better?

Esther In some cases I think.

Diane I don’t know. I can’t make that assessment. It certainly is a burden on the people that have to make law. I don’t think anyone here would deny that. It’s harder for the people who are operating when every single word is permanently engraved and you can’t be as flexible.

Stef If I may, I’d like to endorse what Karl was saying is that in addition to simple exposure of conflict of interest information, that there should also perhaps be a committee of the board that deals with the issues to which people who may thing they’re getting into one of these situations and discuss it with them and find a way to avoid the conflict as well as just do it and then get exposed and then have a problem. So having a committee of the board would deal with conflict of interest in addition to the requirement for disclosure, I guess somebody... it provides a place to go talk about something which really is very important. And then I take this back to the other question we were just discussing is to whether everything should be a fishbowl or not. There are times when private conversation is the way you find a way to resolve conflicts. And open conversation and speaking in public is not the way. If we watch political debates we see that very little is ever resolved in one of those.

M Or e-mail.

Stef Or public e-mail.

Eric I disagree on both of those.

Dan This is Dan Steinberg. I’m sorry this is a wonderful conversation but I have a previous engagement. I just wanted to thank everyone for what went on today.

Esther Thank you very much. Thanks for helping organize it and I’m sure you’ll hear from the others what happened at the end which I hope it’s coming soon.

Dan I look forward to getting a tape in the mail tomorrow morning.

M Eric was speaking.

Eric I through. Diane was speaking also.

Diane I was just going to ask if we were going to get a question period from us.

Esther Oh, yes. I kept saying would the board please comment. Please do.

Diane I’m sorry, it’s Diane Cabell I’m not the board.

Esther Oh, excuse me. Go ahead. Sorry, let’s finish with Eric and whoever and then..

Milton I think Eric was done, this is Milton. I had a very brief comment to make and that is that on the question of transparency and openness, that if you, I think that we all understand that there’s a trade-off to be made there. And if you handle the membership issue and the SO structure right people will be willing to cut you a lot more slack on the transparency.

M Yeah, I agree.

Jay This is Jay with one final comment on this openness question. We’re looking for examples from ESS and we’re looking at examples from the US House and Senate. And I’m thinking back to a little piece that Esther had written about how the internet will essentially transform governments. And I think we need to give it the opportunity to do so. And while there certainly are situations where a private meeting of the board would be appropriate and desirable. I think that someone who said it, the default method for holding these meetings should be as open as possible.

Esther Point noted.

Eric I have a proposal. This is Eric. That ... amongst ourselves a little .....

M I can’t hear anything.

Eric I suggest that we have a list discussion of particular specific language on various, just go through the proposal clause by clause and try to discuss it as a group. We have some experience with that and it’s worked. I believe it would work very well.

Stef I believe that is what is planned is that a draft, a new draft from ICANN will be presented for discussion and we will then have a discussion. This is Stef.

David This is David with a quick question about that. Esther, do you plan on, and I guess we need to ask this question in light of our previous conversation about openness. Do you feel it’s appropriate to circulate a draft of that proposal to these two groups, both the Boston Working Group and the ORSC group prior to formalizing that? And the reason I ask that question is seems that once that proposal has been released to the public it’s a lot harder to make changes to it. And if there was some minor tweaking that may have ....

M Dave before I answer can I make a point about that. If we sanction that then we would allow the board to circulate this IBM and Microsoft and whoever.

M Right.

M That way there would be dragons.

M I agree.

Dave Well, that was kind of my question was that’s certainly a double edge sword.

Esther And it’s not very open.

M Well, nothing you do is open.

Diane Well, it’s not unopened. .......

M That’s not good to hear.

M .... I don’t think that was member of the board that said that.

Esther I’ll tell you what I’m planning. Again, I’m only the chairman. And I can’t unilaterally change what we have decided. And the board here listening knows that and is expecting me to behave properly and so forth. Our plan was to get back together, obviously consider what we’ve heard today, and come up with a new draft and then basically have it be the final draft. But I guess it’s the word circulate, I mean, we wanted to let you know about it before we said it’s done and sent it off to Ira. As I said, also we don’t really want to have a joint drafting session because it’s been difficult enough internally.

Richard Now, this is a question I wanted to ask earlier, Esther. When you say you’ll ask for comments from people, and my gets back to a process. When you come up with a new draft who do you guys show it to and who do you solicit comments from?

M And what is the purpose of the November 14th meeting.

Esther Okay. Okay. First of all we’ve been instructed as a Department of Commerce that we specifically need to pay attention to BWG and the ORSC. And so that’s kind of the default at this point. The November 14th meeting, that is designed to be the first of many because we at this point we want closed board meetings but we also want a lot of open meetings with the public. And not just in Boston, but in Europe, in Asia, and in other places. And our notion would be that we would have a regular board meeting and probably a public meeting together in many places around the world and continue obviously to do quite of few of them in the US. But the November 14th meeting is, we’ve got our draft bylaws, we’ve hope that we’ve gotten some measure of support from the BWG and the ORSC. There they are, ideally, of course, they would have been out already, and as you can tell by reading these bylaws there’s a lot of holes in them still. There’s a lot of things to be determined. There’s a lot of implementation to work on. There may be even some changes to be made to the bylaws. And so the purpose of that first meeting is to start what’s going to be a year long transition process.

Stef This is Stef. That there are several ways to be open. One is to be very open about what you’re going to adopt in advance and making sure that there’s a valid channel for getting comments and for people voicing their opinions and so forth. And I can’t believe that it’s necessary in order to have openness to prevent all private consultation on these bylaws. All conversations about the bylaws by anybody everywhere do not have to be public. What has to be public is what it is that you’re actually going to adopt with sufficient time and a mechanism for taking comments.

Esther Yeah, I guess you’re right. And we did that with version 5. And now we’re taking the consequences.

Stef Who did that with version 5?

Esther Who did what?

M The word we there, it was unclear.

Stef You said we did that with version 5. You mean to get version 6?

Esther Yes.

Stef Oh, okay. You mean ICANN, the current ICANN board is doing that now with version 5 to produce a version 6 and we hope that you’re also considering the BWG comments and the ORSC bylaws as comments to that process also.

Esther Absolutely.

Stef So that you’re really not doing it from version 5 but from the combination of these.

Esther We’re starting with the public, when you asked what was public, it was version 5 and the comments.

Stef Yeah.

Esther And talking to you today is still part of that process.

George That’s right, this is George. I think, Stef, also, if I understood his point, which I thought was a good one is that it also doesn’t prevent at any time private consultation with anyone on wording.

Esther Right.

Jay And a simple change in wording can make, this is Jay, can make a big difference in how acceptable it is to the various communities.

Esther Well, that’s why... So I’m getting the sense from George which I would be happy to do, but again, the rest of the board, that we could send you version 5.7 or something.

M Sure.

Karl Yeah, this is Karl speaking. And just to remind that a lot of these points also refer to the articles in corporation as well as to the bylaws.

Esther Yeah.

George Yeah. That wasn’t exactly my point, it was more that Stef was saying that it’s possible for you, for example, to have a conversation with someone who’s on the phone today for example, about specific wording of the particular paragraph. That’s different than this circulation issue which raises the other issues that were just commented on.

Esther Okay. Maybe Mike Weinberg would actually, along with Jeff and the lawyers, I mean, to be honest I think it should be the lawyers doing this rather than us.

M Oh, the actual drafting, sure.

Esther And the wording stuff.

Karl I don’t trust the lawyers. This is Karl speaking.

Diane Yeah, that was what we thought was going to be set up. This is Diane Cabell. That’s the format we thought we would be operating in.

Esther Okay, I think it probably is. And forgive me for mis-stating.

Jay This is Jay once again. I still have questions about process from here. You’re going to announce a final revision to--

M No, a next revision.

Esther Can I just ask Mike Weinberg if that, is he there?

Mike Yeah, I’m here. I think I would be happy to have wording suggestions from anybody on the phone call. I think it would be better so I could actually get the drafting done if each of the groups could appoint one person, perhaps a lawyer, to be their designated to do that. So I don’t have 20 people on the phone.

M Dan Steinberg is the ORSC designated team leader for all of this effort we’re trying to do to help you.

Esther Okay, thank you.

Dan And what about BWG?

M Karl is the designated lawyer, negotiator.

Karl Okay, I’ll accept the designation

M We cast about for a name and decided team leader was a good idea.

Dan But obviously drafting is one thing and getting guidance from the board on the structural concepts that they want is something entirely different. And Esther, feel free to interrupt me if I’m saying something wrong, but what I would expect to happen is that the current ICANN board would get together and talk about the issues raised in this call as well as the other issues raised in your submissions. There are a lot of things we haven’t discussed. And give me some guidance on what route they want to go on. And I can try to put some language together on that and I can work with each of you on that.

It’s absolutely clear to me that we’re never going to reach 100% consensus on 100% of the issues because even the BWG and ORSC are kind of ... opposed on some of the issues.

George Mike, this is George. I just want to put my finger in the book at this point. That’s precisely why in the final analysis the board has to vote on the final language.

Mike Yes.

George But I think this idea that you could be the recipient of specific suggestions on the basis of this phone call for wording is appropriate. And then of course it gets brought together and the board will make one more run at it before having to do its work which is well, here’s our best shot.

Richard Yeah, George. This is Richard from ORSC. I think we have 7 points we bulleted on the main, first paragraph of our proposal. I think we’re in disagreement with the BWG with about 2 of those points. So I think 5 there’s broad consensus on. And that’s also the 5 points that were raised by ... and the comments on the NTIA sight. So I don’t think it’s quite as gloomy as that.

George Well, I didn’t mean for that to be gloomy. I was really talking about that when Mike said, gee, it’s going to be tough getting resolution among everybody, I think that’s the reason that somebody finally then has to break the ties, if you will, or how ever it’s said. And that is the purpose of the board. And then we go on. But at least I think we should offer the opportunity here to work some specific language.

Richard Yeah. That is really what we were trying to do and we put forward the actual incorporated ORSC with bylaws. That was our way of expressing it. And if I might I’d like to just quickly read the 7 areas.

Greg This is Greg, I have to drop out now. My thanks to everyone for the input.

Esther Okay, Greg, thank you very much. Is everyone else still there and...

M Sure.

Milton Yes, this is Milton Muller. I have to go now also.

W I have to go now.

Esther All right, let me just do sort of the reverse roll call.

Richard Well, maybe I should put these in a message then.

M I think that’s right.

Esther I think that would be very helpful. Great.

Eric This is Eric. Let me say just this one thing.

Milton Wait a minute Eric, I have to go here. I thought I had the floor and I’d like to make a final comment.

Esther Yes, say who you are.

Milton This is Milton Muller. I just want to raise the issue, I hope it doesn’t cause trouble because I’m going to hang up as soon as I raise it. But it sounds like given the time table you’re describing that the prospect of adding people either by election or some other method to the interim board is something you would not receive very favorably. If that is in fact the case, I think you ought to take extremely seriously Karl’s suggestion that your membership committee be expanded to include people that are nominated to you by people who are not part of the existing group that nominated you. That this would be a major trust building exercise and would really expand the support for the organization.

Diane I’m sorry, can you repeat that.

Stef I believe that he’s suggesting that you should form a membership advisory committee that would work on the membership structure problem outside the board but with some board members, of course, being on it.

Esther The point is getting some outside....

Stef To get some outside help and get some motion. Be actually moving on the problem.

Esther Right.

George Esther, this is George. I think though, Milton made an initial assumption that may not be correct about the fact that we would not be expanding the interim board over this period of time. I’m unclear on this point. Is that your point, Milton, that you believe that the board will get no larger than it is? The interim board will get no larger than it is today?

Esther The at-large board I think he meant, right?

Milton I was hoping that it would, but I was given the fact that it looks like you’re going to be settling the bylaws in a couple of days and moving forward that it sounded like it would not.

Eric Certainly you will have made the decision that.....

M I understand your point.

David This is David. Let me just check in. I think what Milton is saying is that it’s his line in the sand is that additional members will not be added to the interim board until after the change to the bylaws and articles for incorporation.

George Yeah, this is George, that’s helpful. I understand his point.

David And actually I had mentioned earlier in the call that I wanted to follow back up with some open issues that I have with respect to the interim board. And maybe this is a good time to do that now.

Milton Okay, I’ve got to go. Sorry.

Esther Okay, thank you very much.

Stef This is Stef. There’s a high level, abstract, conceptual point that I would like to make.

Eric Yeah, but you’re making the assumption that we can follow it.

Stef Well, you will. The point is that I’ve discovered that a vote is not a voice. And that there’s a real need because of all this conflict and all of the distrust that’s been built up to, you know, the real problem in this whole thing is how we’re going to build trust because we’ve destroyed almost all of it in the process. And so one of the reasons that electing people to the board is so bloody important is because nobody trusts anybody anymore and in large doses.

Esther Right.

Stef And so we need a way to drain away the distrust and find a way to build trust. And one of those is, is this idea I’ve been pushing on fair hearing panels. Where people can go with their complaints and their issues and get a hearing without having to go to court to do it and without having to go find a bunch of other people to gather up themselves and become a power block.

M Are you talking about external....

Stef Well, basically they were the external to the board. Yeah. They would be appointed to go conduct hearings on a particular thing and one of them that I think is really important is the back log of ill will that I now and then call a bag of puss that is out there to be drained in the DNS, TLD area. There’s so much amity and distrust in that area that if we don’t do something outside of the courts, it’s all going to go into the courts.

David This is David, I wanted to jump off of his comment and just kind of put my comment in which is to say that there has been a large amount of mistrust and that distrust has built up as a result of the closed process. And I think I would encourage Esther to pick whatever steps you could which would help to remedy that distrust. And I have a couple specific ideas as well, if you’d be willing to hear them.

Esther I am, it depends again on....

George Esther, it’s George. It’s almost 5 and I have to go at 5. We’re a half hour over and I apologize for that.

Esther I know. Just before you go I want to really thank you because you’ve been very helpful. And I’d like to hear Dave’s things but maybe there’s some other important points that need to be done before 5.

David Certainly. Certainly my points would take a back seat to any substantive issues that we would want to discuss.

Esther And I’m here either after 5 or on the phone.

Jay This is Jay. I tried to get this question in earlier and it has to do with process from here. You will be announcing a revised set of bylaws and then you’ll be having the November 14th meeting. Where is your negotiations with the US government in that. Will the meeting in Boston occur before or after you negotiate with US government.

Esther We will certainly have started negotiating with the US government but we don’t control that.

M It depends on the Department of Commerce.

Esther I mean, ideally, what will happen is we, the lawyers, our lawyers will get together with your two designated people. The board will get together and decide what it’s going to do on some of these issues. We’ll come up with a draft on, we have a conference call with Ira on Wednesday. Ideally, we would send them the draft on Wednesday, although at that point you probably wouldn’t have enough time to read it. But ideally we would indeed get the approval of the Congress Department before November 14th.

Karl This is Karl. You said your lawyer will be talking to us, our designees and I guess I’m one of those. Who are those lawyers?

Esther Mike Weinberg and others.

Eric What’s your e-mail address Mike?

Mike It’s mweinberg@jonesday.com

Stef Jonesday is without a dash?

Mike That’s correct. One word.

M Just a quick question since we’ve got .... on the phone. Mike, where are you located?

Mike In Dallas.

M Okay.

M We can gather for the celebratory party in Texas.

Eric Engelwood on Texhoma is where we’re going to have it.

Mike Not too far from here.

Esther Okay.

George Esther, I’ve got to go. Thank you so much.

Esther Thank you so much. I’ll be in touch with you.

Diane You’re hoping to have something for Ira on Wednesday is what you’re saying.

Esther We’re hoping to. We’re not going to, you know, there’s no point in getting something to him before it’s ready. But, we’d really like to get this done before November 14th so that we can then move forward on the implementation rather than still be arguing over the past. But we’ve got to get it so that it will be accepted.

Diane So are you asking for some affirmative response from BWG or ORSC to say yes we support your draft?

Esther We will be, and it may be we support it with reservations but we hope we will get your support.

M Who is still here?

All Richard Sexton, Karl Auerbach, Dave, Jay Fenello, Jonathan Zittrain, Mike Weinberg, Ellen Rony, Diane Cabell, Molly, Tony Rutkowski and Frank Fitzsimmons.

W Many of your board members are not on this call at this moment?

Esther That’s correct. Although they were at the beginning. Jun are you still there?

Jun Yes.

W Three board members?

Esther I think there’s a few. There’s Mike, there’s me, there’s John, there’s Frank. Any other board members. Hans.

W For your open forum, are you hoping to get a sense of validation out of that or is it, or have you decided exactly what function that’s going to have.

Esther It’s going to have a number of functions. Of course we’d love to get a sense of validation. But, we also, there really are a lot of things we need advice on and suggestions. So this issue of membership is one of them. And there will probably be some proposals and some specifics. Ideas usually get better when people comment on them.

Eric There is one other issue, you mentioned, Mike, a couple times. I just realized that under your concept Mike is a board member.

Esther Yes.

Eric And you understand of course that we agree with that.

Esther Right. And we discussed that at the board meeting.

Eric .... is one thing, to agree with .... but not really as a board member.

Esther Again, that’s not something that’s likely to be changed.

M I got distracted there. What’s the subject we’re talking about?

Esther It’s whether Mike should be a board member. There was some discussion about it.

M Yeah, the BWG position was that he should not be. He’s probably listening in and grumbling at us.

Esther Well, no. We discussed this at the board meeting. He knows.

Eric It’s only temporary so he’s deciding on what ....

Esther We’re all temporary.

Eric Yes, I understand that but we’re talking about him now.

M Yes, but he was elected without a set of bylaws to justify, correct?

Mike The corporation has not adopted by laws, that’s correct.

M And so it’s certainly outside the bounds of what even the community who have supported the ICANN draft have agreed to.

M What does that mean?

M That means that we had a draft ICANN by-law that you have presumed to go forward under and you have taken an extra step to incorporate a interim president that was not agreed to. And you’ve done so without adopting bylaws to justify that.

Mike I’m sorry. I don’t follow that. The current draft ICANN bylaws which haven’t been adopted provide that the president, CEO would be a member of the board.

Karl This is Karl, asking what bylaws are in effect right now that...

Mike There are no bylaws in effect.

Karl Then I would add, I’m not attacking, I’m just asking. I wonder what bylaws in effect is there the power to actually have a president.

Mike That’s dealt with under the California codes.

Karl Transitional portion?

Mike Yes.

Eric It’s irrelevant. You guys do what ever you want to do.

Esther Yeah, at this point there are some things that are done.

Karl Yeah, we just need to make sure that there’s enough, there’s a trust building exercise. This is Karl. And we don’t want to trip over any sensitive issues and cause any more distrust.

Esther We want to, number one, make the bylaws better. We’re not just trying to compromise for the sake of compromise. We’re trying to listen to you and do what we think is better.

M I think we did good work.

Eric Not only that, you have to understand that mistrust is not as a result of fear out there who are looking for something to squabble about. We have a consensus that we arrived at through our process and it’s been validated through community comments NTIA and the NTIA’s suggestion of those comments ... of what it learned indicates that what was done was not consistent with what the rest of the world thought should be done. So there is a basis for a lack of confidence.

M Yeah, we wish these phone calls had been initiated 6 months ago.

Esther Yeah, we weren’t there either and we’re trying to rebuild the trust.

M You don’t have to apologize.

Esther Well, I’m not. I’m just stating something. And we know we can’t do it with one phone call. We know we can’t do it with three phone calls and an open meeting. It’s going to be a long process.

Eric My question is, is there going to be a wrap up meeting of any kind with IFWP.

Hans I don’t know.

Eric That to me is how you get confidence.

M Isn’t that the Boston meeting coming up on the 14th?

Eric No, a wrap up meeting is something that is organized intent of determining what the consensus of the community is specific issues and allowing the community ....

Esther With all due respect, there’s not going to be a wrap up meeting until about a year from now. We’re going to have a lot of meetings over the course of the next year.

Eric Now you said something important. This is something that I was hoping to hear. I didn’t think a year from now would be the appropriate time. I was hoping to do it sooner. If there’s going to be a wrap up meeting a year from now, then that’s going to make a big difference to a lot of people. Then the question is, is it going to be a wrap up meeting of the IFWP? Who is it going to be a wrap up meeting of?

Esther Well, I probably misspoke again because we hope that the permanent, I mean, one thing we’re trying to do is build a permanent board so that this thing is never going to be wrapped up. Because new issues will always come up.

Eric Well, wrap up meeting had a meaning and a content.

Esther Okay, what, describe it then because I’m not answering correctly.

Eric Okay. We had a process that went on for four months. We were about the finalize what we agreed, those are the people who participated, what should be done. That was going to occur in a wrap up meeting and then we were going to have a governance to follow from that. It’s going to be an organization created as a result of the consensus of the IFWP. That’s what we’re asking.

Mike Isn’t what the IFWP does up to the IFWP?

Eric No. The IFWP was torpedoed .... brought back to the surface.

Esther Who is the IFWP, I mean, who would be the designated person for the IFWP, Tumar?

M It’s very vague.

Eric The IFWP, let’s say Tumar.

M She’s the chair.

Eric If your organization, let’s call you an organization. You don’t have a membership, it gives you legitimacy.

Esther Just call us, if your group. That’s okay.

Eric If your group were to say IFWP reform yourself, recreate, reassemble, then you could become the IFWP. You could be the organizer of the IFWP. You could then have the IFWP perform its functions and you provide the leadership for it.

Esther Okay, so your thing is again sort of make the IFWP your membership.

Eric That’s it. There. You don’t have to go out and create something new. It’s already there. You’ve got AT&T, you’ve got Bell South, you’ve got WorldCom. You’ve got everybody that you can think of participating already. You have CIX, you have IFPC, you’ve got ... , you’ve got Educom. So everybody who’s anybody has participated.

Esther Do we have individuals? Do we have the guy who uses AOL.

Eric Yes, absolutely. You’ve got everybody. Everybody who was ever interested in this subject.

Esther Well, we have to, ....

Eric Those people who did not show up, did not show up because they didn’t want to show up. Anybody who had any inclination of interest showed up.

M I have to admit that a .... DNS ... since I started charging, there is a pack mentality if look from list to list. And when the government legitimizes the ... process or appear to, everybody went to the ... list. I mean if you said DNS it’s happened there. And if you weren’t there you were just, you were not a part of it. It’s a shame there have been so many lists ... just one. But it really has come down to the main ..... is the old stand-by and the IFWP list, I don’t know anyone, as a TLD ratio want-to-be I think I know everybody. I don’t know anyone even remotely interested or IP or protocols that isn’t on that list.

Esther Yeah, I mean, I guess I have a certain, it’s like people who don’t vote deserve the government they get.

W There are clearly some people who don’t have a lot of money and time that they can spend on the internet. And those are voices that need to be taken into account.

M It has to be taken into account by those who show up and vote. If they don’t show up and vote, then they don’t show up and vote. What can you do. You’re not going to go out and whip them. You’re not going to make them interested enough to know what they’re talking about.

Esther Anyway, I’m having a meeting with Karl on Monday. And I would be happy to hear more about this from him.

M Yeah, it’s ... last call, if people don’t have a lot of money to use the internet what do they care about the domain names and ... anyway.

Esther Maybe they will. And maybe they’re are poor people using the internet ....

W ... And that’s why that BWG membership that is broader than simply people that are here now.

M If they don’t use the net what are they going to use?

Esther Anyway, I’m afraid we’re getting off track here.

Frank Yeah, are there any one or two brief subjects, whether it’s finishing the process question or maybe one other subject we want to cover before we terminate.

Ellen This is Ellen and I have a question about the next three days. Just correct me if I’m wrong. Your process is you’re going to meet with the board and discuss this. You were going to meet with Karl on Monday. The ORSC and the BWG have been encouraged to send you specific wording. And private conversations may be held and you each, you will discuss with the team leaders of BWG and ORSC privately. But here’s my question, you expect by Wednesday to have a revised document but you have said that you would send a prior version or before you go to ... with that you would be sending a copy of that to BWG and ORSC. Is that true? You said version 5.7. In other words something in process of being completed.

Esther Honestly I can’t commit to that because the board needs to ....

M It’s the board’s decision to do it.

Esther And so I just can’t give you an answer.

Ellen Well, one of the things that my ... is we all want consensus. We all want this to work. We’ve been through the DNS wars. And I think if you go on Wednesday, this is my opinion, not BWG’s necessarily, if you go with a completed thing on Wednesday there will still be people who feel disenfranchised. But if you go with a document that BWG and ORSC has had a chance to review and we all, all three groups say yes, it’s not perfect for any of us but we agree with it, then it becomes something in the internet communities that is more acceptable?

Esther Right.

Ellen And so I would encourage you do that before you go to Magaziner.

Esther Thank you. Ellen? I just can’t speak for the board without checking with the board. But we will, I mean we’re really going to take that into account.

Ellen Because if you don’t you know what will happen. You will hear more of the same, it hasn’t been open. And you will start off with a lot of flack. You will start off your new, this new board with a lot of flack from people who are not in on this conversation but who have been monitoring these events and closely involved all the way along. But the weight of BWG and ORSC, because we represent different points of view, makes it a broader consensus and I know that that’s what Magaziner was trying to achieve.

Esther Yes, and it’s what we are trying achieve as well.

Ellen I know that.

David This is David, I just wanted to follow back up with my question earlier about legitimacy and openness. This is a good time. I think we’ve kind of dispelled most of the other more substantive issues.

Esther Okay, I just again want to make sure that those who want to leave can leave.

David Yeah, those who want to leave before I speak can certainly feel free to do so.

Frank This is Frank, I’m going to have to go. Two things, one, thanks everybody for participating and thank you Esther for having the courage to chair the call.

Esther You’re very welcome.

Mike And this is Mike Weinberg. I’ve got about 5 more minutes.

Esther Okay, we’ll stop doing people’s stuff in a moment. So, go ahead.

David Right, specifically, there have been a number of concerns that have been addressed about the legitimacy of the board, particularly with respect to the openness in which it was created. And while I realize that there are some things that can’t be spoken, I think one of the ways that would help to dispel and remedy some of the ill will would be to kind of come out and openly acknowledge the method that was used to selecting interim board.

Esther That is actually a good suggestion. I don’t know if it’s possible because I don’t know what the method was. And I think it probably varied from region to region.

David All right. In this wonderful day and age of discovery I have a feeling that if enough people made it a high enough priority that the information could certainly be constructed. And I think that it would probably go far to help ...

M Zita is probably the one to start with.

David Zita may have some information as I’m sure Joe Sims might as well. But I think that an honest, open account of both what the criteria and who actually picked would be good. For example, can you say who called you and said, Esther, would you be interested in serving?

Esther I actually can. And I’m prepared to do that right now because I sort of feel if you tell the truth you’re safe. The, and I don’t remember the details, but the notion was first suggested to me by Roger Cochetti from IBM and Ira Magaziner himself. And then, and I think that was in Aspen in August. And then I sort of, they didn’t ask me to do anything and they said would you be interested. And they sort of mentioned that it was a good thing that I was not involved in all of this. So I figured the best thing I could do was just not to get involved. But then of course I was reading the press so I heard it was close.

M Well, plus you wrote your book and that was pretty involved, Esther.

Esther It wasn’t. If you read it, it was very naive. And I’m involved in the internet but I wasn’t involved in this conflict because I couldn’t figure it out.

M I’m quite comfortable calling that part naive.

Tony Esther, Tony Rutkowski. Kind of a quasi legal question that Mike may need to answer. Who is presently responsible for the corporation? Is it Herb Schorr?

Mike The board of directors.

Eric What about amending the article.

Tony Okay so Herb no longer is responsible pursuant, as was pursuant to the letter?

Mike I’m not sure what that means, he’s responsible for it. I think the board of directors will be putting forth a recommendation to Commerce which Commerce can either accept or reject.

Esther Yeah, we don’t own ... yet. We’re just responsible for the corporation as I get it.

Mike It’s a corporation that has nothing and has done nothing.

Tony The reason I raise that is the Department of Commerce’s letter I believe was to Herb.

Esther Yes.

David This is David. I had made a specific written request to Becky Berg at NTIA I guess with respect to the letter that she had sent to the Boston Working Group asking us to be in discussion, about discussing these issues with Herb. And I had specifically asked Becky to provide us with some kind of a paper trail that says, now we’d like you to begin these discussion with, blank. In this case the board and Esther, of course. Didn’t get that. But we’re here today, so. I guess the request is still valid. At some point probably a formal statement that says these are the people you should be talking with. These are the people who are going to be formalizing this process.

Esther You mean to you or to us?

David Probably from NTIA to you, seems more appropriate. But I guess it wouldn’t hurt to be open about getting that to the others as well.

Esther I mean, we sort of, I thought we kind of got that letter.

David Which letter are you referring?

Esther The one that says go to talk to BWG and ORSC.

David We didn’t get a copy of that letter.

M It was addressed to Herb, it was published and it was related to the proposal that was put forth to create ICANN, which was a already formed California corporation that now has a Board of Directors that Esther is the Chairman of.

Karl Karl speaking. Is this a matter of filling in the gaps of successorship legitimacy that we have a trail. And the other one being, is, since we are talking about things that do effect the articles themselves, it’s unclear whether the board has the power or has to go back to the incorporators to do that.

Mike We could do it either way. And we could change the articles, that’s not a problem, legally.

Karl The board has the power to do that then.

Mike Either the board can or the incorporators could.

M Who were the incorporators?

Mike The incorporators are a couple of legal assistance I think.

M Oh, okay, back there at the law firm. Okay.

M All we have to do is go to them with money and maybe …

Mike I think it would be done actually by the board. I think the incorporators, I don’t know. I have not looked at that aspect of California law but I doubt the incorporators have anything to do anymore.

Esther I know companies can change their incorporation so presumably it’s the board of directors who does it.

M Well, at this point you can change the incorporation without ....

Mike The hard part is agreeing on changes to be made. The easy part is getting them changed.

Esther It’s doing it. Yeah, I think that’s fair.

Diane This is Diane Cabell. Do you have any current plan to add members to the board soon?

Esther Other than through the SO process we have no current plan.

Eric Do you have an intent to go through the SO process?

M That’s what the published bylaws say.

Eric The ones we’re going to change. What is the intent?

Esther Well, the intent now is to go see what we’re going to change. And I can’t just tell you the intent because I can’t unilaterally tell the board what to do.

Eric No, I understand that but there may actually be an intent to go ahead with those, which is what I, had I read it.

Esther what I think we’re going to try and do is figure out how to accommodate some of your concerns within the SO structure. But the SO structure itself needs a whole lot of flushing out.

Diane So it is a work in progress at the moment.

Esther Yes.

Hans And the board will at least try also to listen to the international community on this.

Esther Yes, Hans. Thank you.

M That’s going to be a tough nut that has to be cracked is how do we step out of the United State’s focus and get the greater international acceptance.

Esther Yes. Well, one purpose, I mean, again, I don’t know how I was picked. And I certainly wasn’t picked by them as chairman, I was picked by the board as chairman. I speak three languages and I love traveling. So we’re going to be very aggressively going out to the rest of the world. And we’re having a meeting similar to the November 14th meeting. It probably won’t be similar because it’s Europe, but you know, similar goal in Brussels on November 25th.

Karl This is Karl again. I did have some more questions I wanted to just quickly ask before we head out. I won’t go into the fact that, like the BWG proposal’s and the ORSC proposals have some additional sections and we each have our own favorite piece of language which, we don’t want you to forget that they also exist and haven’t .... this conversation like my fundamental assets and preamble and things like that. I wrote some of the language, I feel real pride in it.

Anyway, but there’s an area that hasn’t been discussed yet and it’s going to be somewhat troublesome. And it doesn’t have to do directly with ICANN. It’s the question of the legitimacy and proprietary and the statutory authority for the government transfers to the new entity. I just want to warn everyone that there may be some trouble in dealing with that.

Esther In what way? I mean aside from Congressmen.

Karl Well, it is somewhat unclear. I have not yet been able to discover what statutory authority NTIA would have for transferring the authority to a private organization. And I think it’s just important that they clarify their own authority and we know that it exists.

Eric I have one thing I want to cover before we leave and that is one reason, or the reason that Boston Working Group just an election using a process such as the single transferable vote. And I don’t know if you guys understand how that works, mechanism, a cumulative voting mechanism such as that assures representation of all kinds of interest, both geographic and otherwise without having to go through any kind of artificial limitation or formulation.

Esther Okay, this is the sort of cumulative voting, you can vote 19 times for one person?

Eric Actually STV does not allow that. STV works differently. The cumulative voting that you’re speaking of is the standard corporate form of cumulative voting. STV is used in British Commonwealth, primarily, but also in the United States to some extent. I think it works well. Karl says he doesn’t understand it well enough now .... I mean he doesn’t disagree with it but he just isn’t ready to say absolutely in his own mind that it is the best way to go. But that’s what we recommended in our proposal.

What it does is you vote 19 times for 19 different people. The computer throws out everybody, first of all picks everyone who wins clearly. So if you have somebody who gets enough votes, if someone gets 1/19th plus one of the vote he’s in. And then all of the second, all of the votes below his get thrown back into everybody else’s. And so it just resolves very quickly. The computer resolves everything down so that the most popular people get elected. It’s unlike the cumulative voting that you are familiar with. It makes it so the kook factor, it wipes out the kook factor in my opinion. That’s how I think it works.

Esther Well, it’s worth exploring. And you know, this is the sort of thing that we won’t have decided in the next draft.

M The membership committee probably.

Esther And if you can, we should go look at your wording.

Eric No, we didn’t, no, no, understand this. Yeah, that was our wording for the initial board. It was not, we did not make a recommendation for the membership because the IFWP did not have the opportunity to resolve that issue, we agreed that there would be a membership but we didn’t agree -- what happened was, and I’m sorry you weren’t really a part of this.

Tony Esther, I just want to say good-bye. And I have only one thing to say to you, Trick-or-Treat. This is Tony.

Esther Tony, thanks a lot. Lots of candy corn to you.

David This is David, I’m going to leave as well, Esther, thank you for your time and your efforts in this area.

Jay This is Jay and I’m going to agree and also say that Esther, and the board, if this is any indication, I think you guys are doing great and it’s a welcome relief.

Esther Thank you.

Eric Any other rats leaving the ship?

Diane Diane Cabell, I’ve got to go put that candy out. Thank you very much. Good luck.

Esther Thanks a lot Diane. Look forward to meeting you all.

M I’m going to have to run as well.

Esther Who’s left. I’m just going to say good-bye to the last few.

-- Karl, Mike Weinberg, ... , Richard.

Esther Okay, now who was going to give the, is it time for the seven points?

M They were doing it e-mail.

Eric Let me finish on whatever it was I was about to say if I could. I don’t remember what it was.

Esther You were talking about the voting.

M And I think we should look at the STV system and then we’re done.

Karl And then I would suggest that that kind of detailed issue is probably best for the membership committee we talked about. And as Milton said and I think it may have gotten lost, it was the notion of making sure that that committee consisted of some reasonably large subset of non-board members as a way of building confidence in the outside community.

Esther Yeah. Is Mike Weinberg still here.

Mike Yes I am.

Esther Okay, I think that’s an important point.

Mike I agree.

Esther And that’s not in the bylaws and it doesn’t need to be right now but it’s certainly something we can do.

Hans It’s not precluded in the bylaws.

Esther No, it’s not and that’s the point.

Hans We have the possibility to institute a committee.

M It would be such a great statement to the community.

Esther Okay.

Eric Okay, I remember what I was going to say and it wasn’t that important. It was simply that the consensus that was reported was unanimous consensus and what we were left to do after we determined the unanimous consensus was would have membership go back and define it by some....

Richard The IFWP and it’s list can be pro-active in that area. You can take the, you know, there were two suggestions of membership. One from Dick Nolan and one from myself. You can just take those and discuss them, modify them. If you can come up with one by the time you get a membership committee they can go, well--

Esther Here’s some good suggestions.

Richard Yes. I mean, that might be the fastest way to do that.

F Richard, I think it was useless that we can’t even agree on lunch.

Richard Yes it was. But I mean, if you can get 80% consensus on---

Eric That little facile argument has to be put down. That you can’t agree on lunch. You can agree on lunch.

M I think we can come up with a membership structure. I don’t think we can agree on lunch.

Esther Yeah, I think one’s just tougher.

M We just have to remember we have the factors of various people out there who put a lot of materials out there and confused a lot of people with various strange type subjects.

Richard I have one question and I brought it up before, I didn’t really get a satisfactory answer to. And it sounds petty and it sounds like I’m probing at the board. But, if you want I can go into the couple of years of history of why this kind of thing is a sensitivity. I don’t think I need to do that. This had to go back to you can’t use the net to do this stuff because there are people who don’t have time or money or are poor to get into this. And my question is how are you going to talk to those people then.

Esther I don’t know. But I do know that there are some who, maybe you e-mail to a representative number of community ... around the US. I don’t know. I’m just saying that it’s not that simple and I do want us to think about these things. I don’t think it’s the duty of the net to save the poor or fix social injustice. But at the same time I want to make sure that when we say representative it’s representative.

Karl This is Karl. One thing which we’re doing here is this is probably the first instance of a number of exercises like this. Because there are going to be other issues that come up ....... being the one that’s biggest in my mind. Which these same sort of debates are going to come about. And we’re setting a model. And we should try as best as possible to set a good model.

Esther Good point, too.

M Not only that, the structure that we lay down has a particular function today. But other functions are going to be added to it in the future unless we provide in the articles that they shall not be added to it. A limitation may be in order if the structure is going to be of a certain type. If the structure presumes that we will only do what we are setting out to do today, and by the say that is a complicated issue, too. I can explain why saying that we’re only going to do the main names and IP numbers and protocols. Actually opens you up to deciding whether or not you’re going to allow spam or pornography or a bunch of other things. At any rate, if you can figure a way to keep those issues out, the interest of the rest of the community out, you may be able to come up with a different kind of structure. But my suspicion is that you’re going to lay down some major foundation. And if it’s not representative and if it’s not democratic, everything that goes after that is going to suffer from the same problem.

Ellen This is Ellen. The white paper very specifically said this is not going to be a monolithic structure for Internet governance. And that’s an important point that has been lost in the media. The media keeps talking about this in terms of government instead of administration. And that invites people to bring in issues of content and spam. And I do agree that that needs to be clarified.

M Yeah, we do know that institutions tend to acquire more power as they go along.

M If somebody offers you the domain name in internet dot .... refuse it.

Eric There’s a lot of pressure out there to make the internet, to make this governance entity govern these other issues.

M Yes, that’s very true.

Eric And that is a big fight. They want that as part of the contracts that are entered into with the registrars, that they’re going to not discriminate, that they’re going to have a arbitration boards that everybody agrees that they’re going to submit to, rules of intellectual property will be honored that may or may not be national laws in the various state. There’s going to be discussion on whether or not you can use your IP addresses in order to promote SPAM. They say that there’s going to be limitations, but the argument is no, you do not have the authority as a nation to write laws, but you do have the authority to set contractual ....

M We can impose policies which have the impact of international law.

Eric ..... and that’s the intent of many people. And by the time you start drawing up all these contracts you’re going to have to be doing all of those things that we say that you’re not going to do in an organization that is not representative of the whole world, of the trademark holders, of the users of the internet. And so while we say that we’re going to do only certain things, the truth is that a lot of people have already planned on how we’re going to do this thing with this entity.

W That’s an education process that needs to be communicate. Because the white paper was very clear what specific issues and areas this new corporation will be dealing with.

Eric Well, look at the articles and tell me how it is limited.

W Well, I don’t know that it’s limited in the thing, but I mean point is valid that that was clearly, specifically stated in the white paper.

M Yeah, that’s what we stuck in the ORSC bylaws. We put in language to address that.

Karl This is Karl speaking, but if the board has the power to amend the entire bylaws and articles, it can wipe out any restriction. Secondly the government will not have any on-going authority over this separate entity to do this. And thirdly there’s going to be a lot of fuzzy areas. It’s all with domain name registration issues, the privacy of them. That’s an important issue and it’s something that was raised at the first Reston meeting.

Esther Yes. And it’s all going to evolve.

Eric And privacy is going to be something that we cover through contractual limitations as well.

M But we are enacting essentially international law here.

M What’s domain name law?

Esther I think at this point I’m going to --

M We’re all tired. I think we should probably--

Esther And again, I am going to be having

Eric But it’s critical that you understand that these issues exist.

Esther Oh, I do. I do.

Eric People are telling me that they don’t exist. But they do exist.

Esther Yes. I understand they exist and again, just bear with us so that we can handle a few of them first and then get on to the others.

Eric Yeah, but you may think, you may not realize that you are disposing of an issue whenever you do whatever you’re doing.

Esther Okay, well, remind us.

Eric I won’t have the opportunity. You know, what is our role to keep reminding you. We’re not a permanent adjunct to you.

Esther No, but I assume you’re going to be there watching us and coming to our open meetings. I mean, seriously, that’s my assumption.

Eric Maybe it’s a good assumption, maybe it’s not. I don’t know.

Esther Well, I can’t image you guys are going to go away.

Karl This is Karl. We’re pretty enthusiastic. We’ll stick to here.

Esther I mean, that’s why the notion of a wrap up meeting, to be honest, I mean, there may be an IFWP wrap up meeting. But our purpose is the interim board, is to create a permanent structure that will be able to evolve. Not a permanent structure that’s stuck.

Eric That’s the purpose of the wrap up meeting.

Esther Okay. But the point I’m trying to make is...

Hans I think maybe, Esther, if I may cut in for one brief moment. At least in my experience there is a talk for the initial board who has a fully operational organization that the first of October next year what everyone feels happy with. And if we can not accomplish that I think that we and maybe the internet community have failed

Esther Is what? Soap?

M Failed

Esther But what’s the word.

M Failed completely.

Esther No, what’s the word for failed, soap.

Hans Have failed.

M I have a summary here of everything I think we’ve covered off in four lines here. Can I just read this out and then sign off?

Esther Great.

M We discussed membership and came up with the idea that it’s mandatory and it will be explored. SO, the consensus seem to be for SO’s to revert to the general names council, IP council, not the smaller organization who have less power. The conflict of interest, full disclosure even for board committees appeared to be what everyone felt. It seems I can produce a new draft. Negotiate with appointed ORSC and BWG lawyers. Have a conference call on with Ira on Wednesday on the draft, we present it there. And intend to secure the government assets before November 14th ... will want us to mail our 7 points to everyone and start a membership organization composition discussion on the ... list. I think that’s what I got out of this. Have I missed anything?

Mike Can Mike Weinberg the lawyer make one legal comment on that?

Esther And then I have a comment to make.

Mike You said that everybody agreed on it. I don’t think the board of ICANN has met and agreed on anything yet. I think that is an accurate summary, though, of the issues that were discussed.

M I’m reporting this as the consensus I heard from the phone call. It didn’t hear any stark opposition. If the board ... later and then disagrees, that’s....

Esther On SO’s it was more complicated than that. On everything else I think, Mike is correct, the board didn’t agree to anything but I think you’ve got a good sense. On the SO’s I really think we need to....

M Where is the support for the SO’s coming from?

M From the members of the SO’s.

M Because I mean, this is something that community is not aware of, the support for the SO’s.

Mike Mike Weinberg here. I think that there’s a process that came from a lot of different areas. I think that there’s a lot of support from the technical community and a lot of support from the business community.

M As a member of the IETF, I can say that I think the IETF has been mis-reported. That is my own, whatever value you give to it.

M I’d think you’d be hard pressed if you said show me the support. I think you’d be hard pressed to find it. I think it comes from a small but vocal minority.

Eric You said technical community. You’re arrogating to certain people a voice speak for others.

M There is unanimity on nothing in these bylaws.

Eric I understand that but what I’m saying there seems to be an assumption that someone, we don’t know who, has determined that these SO’s are sacrosanct for some reason. That they represent someone’s requirement. And I’m just trying to figure out who’s requirement they are. Because they have not been the requirement of the community as ... very solemn session.

M Yeah, there’s a lot of people upsetting a lot of interest from .... and ... on down. It’s hard to drag up, in my opinion, support for the SO’s. I ask you guys the question. Where do you feel the support’s coming from? Could you tell us.

Eric Let me give you an example.

M Hang on Eric, can I answer this question. Where is the support from the SO’s coming from?

Eric Yes, go ahead and answer it.

Mike I think I did answer it. I think we had widespread support from technical constituencies and from the business communities worldwide.

M What do you mean by that Mike?

Mike I mean that there are a lot of people who commented on the roles of the supporting organizations. I think that the role of the supporting organization was adjusted in every, each of the first five drafts of the bylaws are published as a result of these comments.

M Yeah, that reflects the fact that initial discussion was bifurcated into two major areas of discussion. There were those who were essential involved with the IFWP thinking that was the discussion area. And amongst that group there was a fairly large dismissal of the need of the ... proposal itself and of the supporting organizations. And then there was essentially the group of people who supported the ... proposal moved over to a more closed discussion group. And to a certain extent the comments were made by the people, I’m getting the words tangled here. The people who gave comments had very few people who were opposed to that notion, I’m getting the words all screwed up here but the body that was talking about it were already enthused about it. And the people who were not enthused about it were talking in other communities. It wasn’t making comments to the IANA group.

Eric We’re not even able to say who they were? Can’t measure their consensus to any kind of a vote. You don’t know who they were, what they said. I mean, we only have someone’s representation that this is what they thought. All the people we do know about don’t feel that way.

Esther Let me try and find out--

Eric I’m a member of ARIN, that’s a registry, the internet IP registry. We had this discussion, it’s board is not unanimous on this.

M Again, I think there’s unanimity on almost nothing.

Eric Yeah, but this is something that if you report represents a consensus of someone. Where is that consensus. I have not seen it.

M And as a member of the IETF and also the previous co-chair of the IETF policy working group. And I can’t see that there’s been a focused discussion, and it was in the IETF community on this, and essentially that the, a few people within the IETF said let’s go with this largely because John Postell was a God to us and we followed him. It’s hard to say that the technical community was represented in that decision. It’s more like a few voices within the technical community were heard but not everyone. We’ve got this problem everywhere of who represents whom.

Eric Not only that, their satisfaction in the world, technical world, if that’s the definition, if you’re going to have SO’s, let them originate policy. That’s enough to give them. You don’t to have to give them the whole...

Esther Yeah, this is the area we’re going to investigate most. And I just, the discussion has been very useful. I can’t say much more.

M If you’re like the rest of us, I think you’re kind of burned-out.

M I’m going to go guys. I’ve just changed my little notes to say that there’s a discussion about this SO issue. But I’ll send a copy to everybody.

Esther Thank you.

Mike Esther, is it possible for you to give me a call in my office. This is Mike Weinberg. Just for 2 minutes. Then I got to take my kids trick-or-treating.

Esther Sure. You must be 214 something.

Mike Yes. 969-2945.

Esther Okay. And Karl are you still on.

Karl Oh, yes.

Richard It’s been great talking to you guys. This is Richard from ORSC.

Esther It’s been wonderful. It really has been.

Eric And Mike, you and I can meet sometime.

Mike Yes.

Esther And there’s almost nobody left here but I’m meeting with Karl on Monday and I’d be happy to meet with any of you, although obviously time and location are--

W Will you be attending the memorial for John Postell?

Esther I will not. I didn’t know him and I just sort of felt it would be really tacky to go even though it would be sort of useful.

M Well, you missed knowing a good person.

Esther Yes. I just felt that a memorial service is for people that knew someone, so I won’t be there.

Jun I will be there.

Esther Okay, good Jun. Yes I know you will. I’m glad. And you can represent us and I encourage you all to find Jun and say hello to him.

M Is it in LA?

Esther Yes.

W November 4th I believe.

Hans All right, bye guys.

Esther I’m sorry, it’s the 4th.

M Well, I look forward to meeting you all.

Ellen I’m going to sign off, too. This is Ellen. Thank you so much. I will sent you that URL for the bylaws comparison.

Esther Thank you very much Ellen.

Eric That is a little side issue. They put the office ICANN, in Los Angeles County. I said, they put the office for ICANN in Los Angeles County and I’m not sure that that is necessary.

M I’d be happy to have it here in Santa Cruz or Monterey.

Esther I’d rather have it in Tuvalu....... Well, it must be late for Hans.

Hans ... It’s a quarter to 12. It’s the end of a Saturday night. But we don’t have Halloween here in the Netherlands. So, it’s not much of a problem. Okay, thanks Esther for doing a great job. Thanks everyone else for inputting in. And I wish you all a happy Halloween.

Esther See you on the 14th.

Hans Will we be in touch by e-mail.

Esther I’m going to put in another request for another phone meeting which I realized I should have done while everybody was on the phone, but anyway. Talk to you soon. ... Okay, Jonathan?

Jonathan Yeah, I’m still here. I’m still listening. I’m done. I’m burned-out.

Esther I will see you at 9 on Monday morning.

Jonathan And I’m going to try to put together the materials.

Eric And Karl?

Karl Yes.

Eric I think you and I need to talk a little bit tomorrow maybe.

Karl Yeah, I’ll be home tomorrow working on it.

Eric I’ll give you a call.

Esther Okay. And I’ll be in my office tomorrow and then flying out to California in the evening. So, if you need anything.

Eric Karl, give me your home number again.

Karl (831)423-8585. It’s in the phone book. The first is my fax number.

Eric Okay, I’m off too.

Esther Thank you guys, both. Good-bye.