Minutes | Board Accountability Mechanisms Committee (BAMC) Meeting 3 December 2019

Board Accountability Mechanisms Committee (BAMC) Attendees: Becky Burr, Chris Disspain, Avri Doria, Mandla Msimang, Nigel Roberts and León Sanchez (Chair)

BAMC Apologies: Sarah Deutsch

Other Board Member Attendees: Maarten Botterman, Merike Käo and Matthew Shears

ICANN Organization Attendees: James Caulfield (VP, Risk Management), Samantha Eisner (Deputy General Counsel), John Jeffrey (General Counsel and Secretary), Aaron Jimenez (Board Operations Specialist), Elizabeth Le (Associate General Counsel), Cyrus Namazi (Senior VP, Global Domains Division), Wendy Profit (Senior Manager, Board Operations) and Amy Stathos (Deputy General Counsel)

The following is a summary of discussions, actions taken, and actions identified:

  1. Reconsideration Request 19-3 (Electronic Frontier Foundation, .ORG renewal) – The Committee received a briefing from ICANN organization regarding Reconsideration Request 19-3 submitted by Electronic Frontier Foundation (EFF or Requestor) seeking reconsideration of ICANN org's 2019 renewal of the .ORG Registry Agreement (RA), insofar as the renewal permits the registry operator (Public Interest Registry (PIR)) to, "'at its election, implement additional protections of the legal rights of third parties' unilaterally and without further consultation with existing .ORG registrants or the ICANN community" and applies the Uniform Rapid Suspension (URS) rules to .ORG registrants. The Requestor also claims that ICANN org's inclusion of the rights protection mechanism in the .ORG renewed RA "run[s] contrary to ICANN's [B]ylaws." The Requestor also seeks reconsideration of an alleged Board inaction on the basis that the ICANN Board did not vote on the .ORG renewed RA, alleging that this inaction was based on the Board's consideration of inaccurate relevant information and the Board's failure to consider material information.

    After discussion, including consideration of the arguments raised by the Requestor in its written rebuttal and oral presentation, the BAMC found that reconsideration is not warranted because ICANN org's execution of the .ORG renewed RA did not contradict ICANN's Bylaws, policies, or procedures; ICANN staff did not fail to consider material information or rely on false or inaccurate information in executing the RA; and the Board did not fail to consider material information or rely on false or inaccurate information by allowing ICANN org to execute the RA without voting on it prior to execution. With respect to the URS, the committee discussed that the Rights Protection Mechanisms in all gTLDs PDP has not been completed, that no URS policy has been recommended or adopted, and whether inclusion of URS while it is subject to a PDP was an issue. It was also noted that if a consensus policy is developed and adopted by the Board, those gTLD registry operators to whom the Board-adopted policy recommendations would apply will be bound by that policy.

    The BAMC also acknowledged that many members of the .ORG community have voiced substantial concerns regarding the terms of the .ORG renewed RA, and noted that the .ORG community is in the best position to engage PIR in that important discussion and that it is within any registry's right to propose contract amendments for evaluation by ICANN org. The BAMC also noted that Request 19-3 concerns the 30 June 2019 renewal of the .ORG RA and the information available at that time. The subsequent acquisition of PIR, which was announced four months after the execution of the .ORG renewed RA, did not impact ICANN org's determination that ICANN's Mission and Core Values were best served by migrating the .ORG RA to the Base RA. The results of that acquisition is something that ICANN org will be evaluating as part of its normal process in such circumstances.

    The BAMC recommended that the Board deny Request 19-3. One BAMC member voted against the BAMC's recommendation that the Board deny Request 19-3. Sarah Deutsch recused herself by not attending the meeting due to potential conflict of interest.

    • Action:

      • ICANN org to prepare materials for Board consideration.

Published on 21 January 2020