Transcript Part IV - EC-POP Meeting with ICANN Board Members

Transcript part 4
DRAFT

[BEGINNING OF TAPE 4, SIDE A]

Christopher Wilkinson: The . . . Where additional adjustments are necessary to . . . for the consensus to become operational. I do not favor a recursive debate, and I think the public authorities, starting here, and I hope that my counterparts in the United States recognize the same responsibility. Do have a responsibility vis-à-vis their authorities and their members to be able to tell the difference between a real consensus that can be achieved, and an argument where at least half of the argument seems to be about avoiding a consensus. That is a very different situation, and it has to be appreciated. But on the other aspects of your question, I would refer to the members of the board. And then I agree with the chairman that we should return the chair to Madam Dyson and continue the final session.

Kenneth Neil Cukier: There will be a press conference at 5:30.

[??]: Okay. Still, I don't know if you want to reply now or to open the final session.

Esther Dyson: I'd like to reply to this. ___________________ brief . . .

[??]: I'm sure _______________________ a good debate for the final session. But it is your responsibility.

Esther Dyson: _________________ if you just want to say what you want to say, and I'll deal with this.

[??]: Only ___________________. Of course, we are in the process to have a harmonization as well of the different use from the different public entities affecting ICANN from. And that's true. That's true that we have a more clear recognition. It is necessary to this language from the European countries and the European stakeholders. They're from the American guans[??] up to now. That this is a clear situation. And I think that a meeting like that, a conference like that, all the process, is a very important help. It is a very important support to convince to other countries, particularly the United States, that Europe is an important part in this process. And we have the support from the European countries, the European Internet, the stakeholders. This aspect, this parameter, cannot be ignored at all. That is clear. And that is the position we have. Another different thing is the ICANN board must be a board. It must be a board working on the rule of super majority and the rule of consensus. We are working this way. And thanks to working in this way, with the help of some people like Christopher, we arrive for _______________ to introduce, in the last week, significant amendments, coming not only from the most _______________, coming not only from our American partners. Coming from the European Partnership, from the European Commission. Some of these amendments, in my view, are fundamental for the purpose of this _______________. The purpose of how to interact public policies with the interests of the private stakeholders of Internet.

Of course, we are working on the ways of the benefitter approach of everybody. And we have very much confidence in that we are in the right track to have this recognition that this absolutely fundamental for continues working on. And I think that the spirit of the European parts, the spirit of these meetings is a tremendous support for getting this. And I am sure that having a chairperson like Esther, the input for this meeting will be very important for this to arrive to this point. Thank you very much.

Esther Dyson: Yeh, Eric, I want to respond to that. And let me first give you a somewhat personal response. I know this is the point at which we should all start holding hands and singing, but I personally feel somewhat insulted at the notion that this is a war between American interests and European interests. And I do not feel that I represent America. Yes, I'm American, but I do not represent the American government. I don't represent the American point of view. I take great offense when the American Congress starts complaining that we're handing over American property to foreign interests. But in the same way, I encourage you to see yourself not as a European citizen, but as a world citizen. And that is our goal. It's not to balance European interests and American interests, but it really is to look at the various interests of the Internet stakeholders, most of which do not operate per country, and to try and balance those. And so we genuinely are trying to do this. It's not easy, and we have lots of different groups, all of whom turn themselves into interest groups, rather than considering the system as a whole. And that's what we are most trying to do.

I secondly just want to say please, the U.S. government did not simply read the New York Times article and call us up and tell us what to do. It was somewhat different. And these were decisions of the board as a whole. In the future, we will, indeed, be publishing roll call votes on important issues. But we did get together as a board, amazingly enough, all 10 of us, on the telephone, and argue over these issues.

On the issue of privacy, I've thought a lot about this one too. And it seems to me, individual citizens should have a great deal of privacy. But when you decide to sit on a board like this, and you make a certain amount of sacrifice of your time, you also sacrifice some of your privacy. You are, no longer, simply an individual citizen. You are directly involved in responsibility for systems, whether or not they're assets, but for systems and functions in which the public-at-large has a genuine interest. And, therefore, I think you have a responsibility to disclose a little more than you might have to as a private citizen. And this is something that we all, individually as board members, agreed to take on. So having said that, I can shortly open the last session in a much more conciliatory way.

[??]: So according to your words, it isn't a closed decision on public policy interest, and I give the floor back to Esther for the final _____________. Thank you.

[??]: First of all, could all the moderators and speakers who are still in the room, come to the table so . . . according to available seats, so that . . .?

Esther Dyson: Well, I'm not sure what we want to do in this final session, other than hear remaining questions and points of view that for some reason were not sufficiently aired earlier. And I will use the chairman's prerogative to make sure that they are aired somewhat briefly. But I'd like to start the conclusion, first of all, by thanking Christopher Wilkinson for hosting us in the first place. All of you here, those of you still here, for coming to participate and share your points of view, and educate us. I want to assure you that in addition to the board members sitting here, the other board members will be getting the transcript and will also be getting a report from those of us who are here, of what happened and what your concerns are.

As you can tell, we're going through very much of an education process. We were selected, specifically, not to have too much history, so that we could have open minds. Unfortunately, some of us may be considered to have empty minds in this context, and we're trying to fill them as rapidly as we can.

A second thing that is worth note is that the traditional system by which the Internet was governed had a lot of trust from its stakeholders. It grew up organically. Nobody noticed it really when it began, other than its users. And so it gained legitimacy by working and being the place where people went to get names and addresses and protocols, and everything worked fine. We are now heading to a stage where certain parts of our past have become a burden. One part of that is the Americanness of it. Another is the fact that while it worked very well, it wasn't very explicit. And there weren't, other than the protocols themselves, there weren't a lot of procedures and policies for resolving disputes. A lot of things were left unanswered or handled in a very ad hoc manner. And we're living with some of that past right now. So we, as a new board, as the initial board, have come in without legitimacy, with some authority, whatever authority you think the U.S. government had in the first place, and a challenge to win both trust and legitimacy over the next couple of years by our actions, by the transparency of our decisions, and, frankly, the quality of our decisions. If they're transparent and stupid, that isn't going to get us very far. We understand that, and we understand the challenges that face us. And that's one reason, quite apart from our bylaws, and all the requirements for transparency, that we're here. We need good advice from people who have thought about these issues. Some of the arguments, as Bob Shaw said, you've done all the work for us. But we need to see what it is you've done. We need to pick the arrows out of your backs and try and resolve some of these issues with all the light you can shine on them, and all the light you are shining on us. So we hope that in the space of 2 years, we can do that well and credibly, and create an organization and a set of policies and procedures that the permanent board will take over and use to evolve in the future as the Internet, itself, evolves.

So again, I want to thank everybody here, our very patient board members, and everyone on this panel, and open it up. It's 5 o'clock, but those of you who wish to stay, we're . . . I think most of us are happy to stand here and answer questions.

Daniel Karrenberg: Just to be on the record and be perfectly clear, Daniel Karrenberg, RIPE-NCC. The RIPE-NCC and its membership, which is an international organization with members from more than 80 countries, has participated constructively in the development of the current ICANN structure. And we have publicly welcomed Version 5 of the bylaws, and would like to proceed on this basis. However, I had some discussions with my board and some of the members today, and we are concerned about the changes made to Article 6, Section 1.F, which basically changes the voting procedures and . . . about policy proposals, voting procedures of the board, to say that no recommendation of the supporting organizations can be adopted unless the board's in favor of adoption would be sufficient for adoption by the board without taking a count of either the directors nominated or for election by that supporting organization or their votes.

It will be . . . Given the history of this process, during which the influence of the supporting organization has been consistently diluted, this may just go one step too far. It will be very difficult to sell this to our supporting organization or to our membership basically, especially since there's a perception. And I note the word perception here, that this was put into the bylaws based on comments by very few vociferous people. And the reference to newspaper articles here comes also to mind of the members that I have spoken to. So I would ask the board to either reconsider this, or help us, and help us forcefully to counter these perceptions and to sell it to our membership.

Erik Huizer: I'd like to second that from the IETF perspective. I haven't been able to talk about this with the IAB and the IETF yet, but I've had a couple of e-mails about it by now. If you look at the way it's phrased now, that means that the 9 at-large members can vote against any proposal from any SO. And since we haven't got a clear structure yet for 9 at-large members, which makes it very difficult to put some trust in that just to say it will be filled in __________________. It's very difficult at this point in time to put some trust in that. I'm very curious as to how I need to sell this to the IETF, that they are not allowed to vote on their own proposals.

Esther Dyson: To some extent, we hope to relieve you of that burden because I think it's . . . Hans is planning to come to IETF, right? And so will I and Mike Roberts. And we will be there as we are here, to talk to you, listen to you, try and persuade you that . . . I mean, you can take a conspiratorial point of view and say that the at-large members have some vested interest in defeating your proposals. And they don't. We all have a common interest in the Internet continuing to work stably. IETF and the address people, in particular, . . . There's less political reason . . . There's no reason to try and foil you. But I do think it's legitimate that you should be able to persuade a majority of the board without yourselves, of the validity of whatever proposal exists. And so this was not a plot by the Boston Working Group. It was, I believe, a proper check and balance.

Erik Huizer: I think the first issue works both ways.

[??]: Maybe I can comment on this issue. I believe it's important to note that the changes which were made to the bylaws last Saturday, and which were sent to the Department of Commerce last Monday, were a unanimous vote of all initial board members. So these changes are carried. And I believe that you should consider these changes all in one. It is a set of improvements after serious consideration by the members of the board. You should also not go to the legal speak in the bylaws itself, but you should also read the transmittal letter to the Department of Commerce signed by Esther, and you should probably read and you'll find it all at www.ICANN.org. The press release, it will be available outside, what the intention of these changes are. And, of course, reading the legal text of bylaws, you can always dream up the situations which you may not wish or like. But may I give this in the consideration, that decisions and policy decisions of proposals by the supporting organizations are very important decisions for the Internet community. And we have discussed, also, that these decisions would merit a two-thirds majority. And if you start counting the number of votes, the situation we have written down now in the bylaws is more or less equal to a two-thirds majority. You need quite a number of the, let's say, representatives on the board, to carry a proposal. And I do know that whatever you decide, you will always meet opposition. We haven't gone to that through our journey around the world, and probably we will again when we travel further. I feel confident that the decision which has been laid now in the bylaws is a good one to start from. And as Esther keeps reminding us, this is only one moment in time, and it will evolve in the future when the supporting organizations get their place and the at-large membership will be defined and board members from the at-large membership will be chosen. Thank you.

[??]: I'd just like to come back and comment from the perspective of . . . The ICC certainly discussed this in business issues and had made several submissions seeking stronger voting, higher voting, super majorities. So in principle, I think we would feel this is a sensible move and would support ICANN on that. Because also thinking about it, I think it does believe . . . It does, actually, safeguard against the issue of capture. And it removes concerns. You can't claim that that SO is captured if it hasn't swung the vote with it. So I think that that's actually quite a valuable safeguard, looking at it on the face of it.

Roberto Gaetano: Thank you. Roberto Gaetano from ETSI. Also a member of CORE. I think I can pretty well live with a new set of bylaws as long as we can make sure that this is . . . the intention was to get to a final package where we could accept certain modification, even some for which we were not completely in agreement. I'm talking about the EC-POP group, because I personally share the concern expressed by Daniel Karrenberg. But I accept, also, the principle that at a certain point, you need to make a negotiation and then get to a final set. And you need to make also some concessions. So as long as this is the final set, and this will get the ICANN board to be finally recognized and empowered by the NTIA, and finally we can turn the page and get into business, okay. I can make the effort and swallow the parts that I don't like. But if this is another chapter of this absurd situation in which we slide sideways from a set that was the fifth set of bylaws where we had overwhelming consensus all over the world with the exception of a very small minority, and if we continue to slide sideways towards the position of the Boston Working Group and the ORSC, I think that this support to the new set of bylaws will start becoming slimmer. So I think that . . . Trying to summarize, I think that it is okay, as long as it is the final step and the final setup. But I don't think that the EC-POP and the other people that have constituted the majority of their[??] support to ICANN starting from Version 3 and then Version 5, will be able to swallow some other modification that's maybe down the road. Thank you.

Esther Dyson: All I can say is, stand by. We're hoping to assuage those concerns eminently, but we haven't yet got word. Believe me. The moment we know, we'll tell you. Did you have a comment, Chris?

Christopher Wilkinson: No.

Esther Dyson: There was a question over here.

Ivan Pope: Ivan Pope. Net Names, again. I'm just going to be a little bit obsessive here and go back to the 11th Amendment to the ___________________ Agreement. I know that this is very interesting about the bylaws. And I know that ICANN are gonna merge them. But it's very important to me that there's some real things going on in the real world, seeing as I've come here today to ICANN and not to talk to the EU or the other people who've moderated groups. I just want to obsess slightly on one specific question of ICANN. Assuming that ICANN is NEWCO, as referred to in the 11th Amendment, it says that on December the 1st, NEWCO is supposed to designate 10 individuals to make up a technical advisory group to look at the functionalist[??] interface specification for the shared registration system that NSI put together. That's about 6 days away in my estimation. I'd like to ask NEWCO, aka ICANN, whether they have those 10 people designated, when they intend to release a list of those 10 people, and if not, what they think is gonna happen next. This is very very important from a business perspective. And that's my perspective. Thank you.

Esther Dyson: Assuming it happens, the moment we were to become NEWCO, we would have to start dealing with that. Unfortunately, I think probably December 1st is unrealistic. But we are aware of this particular deadline that doesn't yet apply to us. And we're gonna try and do things like that as rapidly as possible.

[??]: Could I _______________ as a _______________, whether you have an expected time frame to become NEWCO, or whether it's just going to drift towards the end of the year and beyond. Because this is now very seriously affecting a lot of planning that needs to go on in the real world. Thank you.

Esther Dyson: Patrick, do we have any news?

Patrick Worms: Not yet.

Esther Dyson: Not yet. Okay. Imminently. As I said before, this is the day before a holiday. We're hoping to get some word before the holiday. We also cannot presume. We can't be . . .

Ivan Pope: Sorry to obsess like this, but it seems to me that if you got the go-ahead tomorrow, then you're gonna start working on this group of 10 people. So you're not even prepared for the event.

Esther Dyson: There are some people who have been thinking about it, but we do not have a list yet ready to spring upon the world. But no, it's not a surprise to us that these things exist. These requirements.

[??]: I know I'm not one to address that question to the Commission. But two or three supplementary points. First of all, the Commission has already said, officially, that the 11th Amendment is a significant issue from the point of view of competition policy, and it is currently being reviewed by DG4, and if necessary, the Commission in the U.S. Department of Justice will communicate on the matter.

Secondly, the objective of a shared registry database, at least for the existing Internet gTLDs, was, in fact, an agreed position. One of the few agreed positions nearly 18 months ago. There is, to our mind, no political . . . There has been no political obstacle in the past 18 months, to introducing a shared registry system with a common SRS as some considerable time ago. So I share Ivan's impatience, although I have no brief for this particular form of registration system.

Finally, the SRS ought to be standardized. Each registry, particularly if we have multiple registries, . . . Because each registrar is going to be dealing on behalf of its customers, with a wide range of TLD registries in different parts of the world, in different markets, in different languages. There is no reason, whatsoever, in addition to impose on the registrars, different technologies. This is a simple interface; it should be standardized.

[??]: If I may just make a comment in that regard. And, of course, we have our own standards organization already built in. And I hope that the first standardization effort that is going on will intimately involve the IETF and the IAB, and, therefore, signal forward how the ICANN will operate.

Amadeu Abril i Abril: Well, you know, we are approaching Christmas, and when I was officially a child, I'm only mentally a child right now, I remember that when we approached Christmas, it was an exciting time, because we were waiting for what we called the Kings of Orient that present some gifts. This is, you know, the _____________, the _______________ los Nicklaus, or Santa Claus, or call as you want. We always had some _______________ of legitimacy of this strange person. You always suspected that our parents were behind the cabal, allowing those people to come and bring the presents. Well, no matter all that. What we really wanted is that they accomplish our wishes, and we judge it their legitimacy against the gifts we got, you know? Here in Europe, we tend to believe that you are the __________ and __________ Claus and Santa Claus and La Befana[??] and the Kings of Orient, all together. I mean, we are ready to accept that you are the board, and we applaud that. We suspect some of the cabals behind your magic brushes of selection, but, you know, some of there are also our parents, so we don't complain. Bad. You know, ultimately, we will judge your ________________ to be _____________ Santa Claus and the Kings of Orient against the gifts you bring. And the gifts you bring us echoing something like Daniel or Ivan said is first, that you learn, very soon, to distinguish noise from voice, as you see where I mean.

Second, you are not here in order to compete for the Hamurabi Code International Award for the best ever written bylaws for international associations. We can leave with less-than-perfect bylaws, provided that these bylaws are used for certain policies for the well and the good of the Internet. And this is exactly what we want from you. Thanks.

Esther Dyson: I can't imagine any finer conclusion to this meeting. Do you have . . .?

[??]: ______________________.

Esther Dyson: I'm not sure we're ready for that. Maybe you can all have some beer and we hope you will toast us with champagne the next time we come before you.

Again, I want to thank everybody involved here, starting with the EU and Christopher, all the panelists who shared their wisdom, all the attendees who also shared their wisdom, and especially Abril who shared a metaphor. Thank you very much.

Esther Dyson: If anybody would like to hear a very carefully-phrased announcement which I'm not going to read because I can't read his handwriting, and this is written by the lawyers, I here present to you Patrick Worms, our P.R. Counsel, who's going to read you a very carefully-hedged statement.

Patrick Worms: This is the kind of writing that I would never be able to get down on paper, so listen carefully. "I can announce today, that it has been advised by the U.S. government, that the government will enter into a Memorandum of Understanding with ICANN, pursuant to which ICANN will become responsible for the privatization of the domain name system."