Minutes | Special Meeting of the ICANN Board 27 May 2016

A Special Meeting of the ICANN Board of Directors was held telephonically on 27 May 2016 at 13:00 UTC.

Steve Crocker, Chair, promptly called the meeting to order.

In addition to the Chair, the following Directors participated in all or part of the meeting: Rinalia Abdul Rahim, Cherine Chalaby (Vice Chair), Ron da Silva, Chris Disspain, Asha Hemrajani, Rafael Lito Ibarra, Markus Kummer, Erika Mann, Göran Marby (President and CEO), George Sadowsky, Mike Silber, Bruce Tonkin, Lousewies van der Laan, and Kuo-Wei Wu.

The following Board Liaisons participated in all or part of the meeting: Ram Mohan (SSAC Liaison), Thomas Schneider (GAC Liaison), Jonne Soininen (IETF Liaison), and Suzanne Woolf (RSSAC Liaison).

The following Directors sent their apologies: Bruno Lanvin.

Secretary: John Jeffrey (General Counsel and Secretary).

The following ICANN Executives and Staff participated in all or part of the meeting: Grace Abuhamad (Public Policy Manager); Akram Atallah (President, Global Domains Division; Michelle Bright (Board Operations Content Manager); Duncan Burns (Vice President, Global Communications); Sally Costerton (Senior Advisor to the President and Senior Vice President, Global Stakeholder Engagement); Samantha Eisner (Associate General Counsel); Teresa Elias (Manager, Board Operations Administrative Services);Jamie Hedlund (Vice President, Strategic Programs, Global Domain Division); Tarek Kamel (Sr. Advisor to the President – Gov. Engagement); Melissa King (VP, Board Operations); Vinciane Koenigsfeld (Board Operations Content Manager); Trang Nguyen(Senior Director GDD Operations); David Olive (Senior Vice President, Policy Development Support and General Manager, ICANN Regional Headquarters – Istanbul); Wendy Profit (Board Operations Specialist); Erika Randall (Senior Counsel); Amy Stathos (Deputy General Counsel); and Theresa Swinehart (Sr. Advisor to the President on Strategy).

These are the Minutes of the Special Meeting of the ICANN Board, which took place on 27 May 2016.

  1. Main Agenda:
    1. Approval of New ICANN Bylaws for IANA Stewardship Transition
    2. Posting of Draft Restated ICANN Articles of Incorporation for Public Comment resulting from IANA Stewardship Transition
    3. Service Level Agreement (SLA) with RIRs for the IANA Numbering Services
    4. IETF MoU Supplemental Agreement
    5. AOB - Reconfirming Board resolution on .HOTEL and .ECO IRP Declaration

 

  1. Main Agenda:

    1. Approval of New ICANN Bylaws for IANA Stewardship Transition

      Cherine Chalaby introduced the agenda item. He provided the Board with a status update about the effort to prepare revisions to the ICANN Bylaws to be consistent with the IANA Stewardship Transition Coordination Group's IANA Stewardship Transition Proposal, and the Cross Community Working Group on Enhancing ICANN Accountability's Work Stream 1 Report (collectively, the "Transition Proposals"). Since Marrakech, the multistakeholder community worked to create a new set of ICANN bylaws setting out the various changes to the current ICANN Bylaws to give effect to the Transition Proposals. Cherine informed the Board that the draft new Bylaws were posted for public comment on 21 April 2016 for 30 days. After the close of the comment period, a detailed analysis of the comments was published. His update to the Board included a discussion of the public comments received on the draft new Bylaws posted for comment, as well as proposed changes to address the comments.

      The General Counsel affirmed that the proposed changes to the Bylaws to address the public comments are consistent with the Transition Proposals. Additionally, Cherine reported that the co-chairs of the CCWG confirmed that external counsel to the CCWG and CWG also affirmed that the proposed changes are consistent with the Transition Proposals.

      Bruce Tonkin and Rinalia Abdul Rahim suggested changes to clarify the proposed resolution. Chris Disspain moved, and Asha Hemrajani seconded the resolution. The Board took the following action:

      Whereas, on 14 March 2014, the National Telecommunications and Information Administration (NTIA) of the United States Department of Commerce announced its intention to transition the stewardship of the IANA Functions to the global multistakeholder community.

      Whereas, on 10 March 2016, Internet Corporation for Assigned Names and Numbers (ICANN) accepted and transmitted to the NTIA the following transition documents: (i) the IANA Stewardship Transition Coordination Group's IANA Stewardship Transition Proposal, and (ii) the Cross Community Working Group on Enhancing ICANN Accountability's Work Stream 1 Report (collectively, the "Transition Proposals").

      Whereas, ICANN lawyers and the independent law firms hired to assist the community in the development of the Transition Proposals, worked diligently to create a new set of Bylaws setting out the various proposed changes to ICANN's current bylaws to give effect to the Transition Proposals. Their work was supported by a Bylaws Coordination Group, formed at the ICANN55 Meeting in Marrakech and comprised of community members from the various groups that contributed to the Transition Proposals.

      Whereas, the draft Bylaws were posted for public comment on 21 April 2016 for a period of 30 days. Upon the close of the comments, a detailed analysis of the comments was performed and modifications were made to the Bylaws in response to the public comments. ICANN coordinated with the independent law firms on the revisions.

      Whereas, ICANN's General Counsel has affirmed that the proposed New ICANN Bylaws remain consistent with the Transition Proposals and recommends that they be adopted to allow for implementation planning to continue.

      Whereas, the revisions to the Bylaws were shared with the Bylaws Coordination Group that was empowered to advise the legal drafting teams in advance of consideration by the Board. The Board then considered the inputs and reactions of the Bylaws Coordination Group as well as the public comment summary and analysis.

      Resolved (2016.05.27.01), the ICANN Board adopts the New ICANN Bylaws as revised on 26 May 2016 [PDF, 1.42 MB].

      Resolved (2016.05.27.02), the New ICANN Bylaws will be deemed effective upon the expiration the IANA Functions Contract between ICANN and NTIA. The Board reaffirms its Resolution 2016.03.10.18, stating, "The Board is committed to working with the community to identify the portions of the CCWG-Accountability recommendations that can be implemented in the event that it is determined that ICANN's obligations to perform the IANA Functions will remain under contract with NTIA."

      Resolved (2016.05.27.03), the President and CEO, or his designee, is directed to plan for the implementation of the Bylaws so that ICANN is operationally ready to meet its obligations in the event NTIA approves of the IANA Stewardship Transition Proposal and the IANA Functions Contract expires.

      Resolved (2016.05.27.04), the Board approves of the transmittal of confirmation to NTIA of the adoption of these Bylaws.

      All members of the Board present voted in favor of Resolutions 2016.05.27.01 – 2016.05.27.04. Bruno Lanvin was unavailable to vote on Resolutions 2016.05.27.01 – 2016.05.27.04. Bruno affirmed his support for the Resolutions but his vote is not recorded since he was not present for the meeting. The Resolutions carried.

      Rationale for Resolutions 2016.05.27.01 – 2016.05.27.04

      The adoption of the New Bylaws is a crucial step in the planning for the implementation of the Transition Proposals. NTIA has stated that it needs to see that changes to the Bylaws have been adopted sufficient to implement the Transition Proposals before NTIA can complete its review of the Transition Proposals. This timely adoption of the Bylaws is necessary to support the global multistakeholder community's work towards a successful transition of the stewardship of the IANA functions.

      These New Bylaws are the product of intensive work of the legal teams in coordination with the ICANN community. The community work was supported through the Bylaws Coordination Group as well as the CWG-Stewardship and the Cross-Community Working Group on Enhancing ICANN Accountability. The Bylaws were posted for a 30-day public comment period, and 31 comments were received. Each of the comments was considered and analyzed, and explanation was provided on whether the Bylaws required modification to reflect the issues raised within the comment. The legal teams continued their close coordination in developing the necessary updates to the Bylaws.

      Notably, while there was substantial comment on the Bylaws, there was not need for significant redrafting of any provisions in response to comments. While edits were made to achieve the final Bylaws, there was near unanimous agreement among the commenters that the Bylaws as posted were faithful representations of the Transition Proposals. Only minor clarifications were required to maintain consistency with those Proposals.

      In taking this action, the Board relied upon:

      The Board also relied upon the General Counsel and Secretary's affirmation that the Bylaws reflected the Transition Proposals, as well as the statements of independent counsel during the Bylaws Coordination Group meeting that the modifications to the Bylaws continued to support the Transition Proposals.

      The adoption of these Bylaws is in line with ICANN's commitment to accountability and transparency. First, the Bylaws include new and enhanced tools for the community to hold ICANN accountable. This action confirms ICANN's commitment to adopt these changes. Second, adoption of the Bylaws at this time confirms ICANN's commitment to supporting the Transition Proposals, as it is responsive to NTIA's need for documentation of ICANN's commitment to the accountability changes called for in the Transition Proposals.

      The adoption of these New Bylaws changes is not anticipated to have any impact on the security, stability or resiliency of the DNS. There will be resource implications, including significant resources to plan for the implementation of the new structures and mechanisms called for in the Bylaws. It is also anticipated that there could be significant resource implications once the new Bylaws are made effective, for example in the potential costs of the enhanced Independent Review Process or other mechanisms.

      This is an Organizational Administrative Function for which public comments were received.

    2. Posting of Draft Restated ICANN Articles of Incorporation for Public Comment resulting from IANA Stewardship Transition

      Cherine Chalaby introduced the agenda item, and updated the Board on the work undertaken to prepare revisions to the ICANN Articles of Incorporation to be consistent with the IANA Stewardship Transition Coordination Group's IANA Stewardship Transition Proposal, and the Cross Community Working Group on Enhancing ICANN Accountability's Work Stream 1 Report (collectively, the "Transition Proposals"). As part of the update, it was noted that ICANN's legal team worked with external legal counsel to the CCWG and CWG on the draft Articles of Incorporation, and it was recommended that the revised Articles of Incorporation be published for community comment.

      Lito Ibarra moved, and Bruce Tonkin seconded the resolution. The Board took the following action:

      Whereas, on 14 March 2014, the National Telecommunications and Information Administration (NTIA) of the United States Department of Commerce announced its intention to transition the stewardship of the IANA Functions to the global multistakeholder community.

      Whereas, on 10 March 2016, Internet Corporation for Assigned Names and Numbers (ICANN) accepted and transmitted to the NTIA the following transition documents: (i) the IANA Stewardship Transition Coordination Group's IANA Stewardship Transition Proposal, and (ii) the Cross Community Working Group on Enhancing ICANN Accountability's Work Stream 1 Report (collectively, the "Transition Proposals").

      Whereas, in addition to requiring changes to the Bylaws, the Transition Proposals also require ICANN's Articles of Incorporation to be modified. ICANN's lawyers, together with the independent law firms hired to assist the community in the development of the Transition Proposals, developed a draft Restated Articles of Incorporation that is agreed to be consistent with those Proposals.

      Resolved (2015.05.27.05), the ICANN Board approves the posting of the draft Restated Articles of Incorporation for public comment on the ICANN website as soon as reasonably practicable.

      All members of the Board present voted in favor of Resolution 2016.05.27.05. Bruno Lanvin was unavailable to vote on Resolution 2016.05.27.05. Bruno affirmed his support for the Resolution but his vote is not recorded since he was not present for the meeting. The Resolution carried.

      Rationale for Resolution 2016.05.27.05

      The posting for public comment of these proposed Restated Articles of Incorporation is another required step towards planning for the implementation of the Transition Proposals. These Restated Articles must be adopted prior to any transition of the stewardship of the IANA Functions.

      The proposed Restated Articles were developed through a cooperative effort among the ICANN legal team and the CCWG-Accountability and CWG-Stewardship selected independent counsel. The goal was to develop Restated Articles that are consistent with the proposal and implement the required enhancements.

      The posting of these Restated Articles for public comment is in line with ICANN's commitment to accountability and transparency. All public comments will be evaluated and presented to the Board for consideration and decision. There are no fiscal impacts in submitting this document for public comment. The posting of these proposed Restated Articles changes is not anticipated to have any impact on the security, stability or resiliency of the DNS.

      This is an Organizational Administrative Function for which public comment is not required.

    3. Service Level Agreement (SLA) with RIRs for the IANA Numbering Services

      Lito Ibarra introduced the agenda item, and the Board considered approving the Service Level Agreement (SLA) with the Regional Internet Registries (RIRs) for the IANA numbering services. The SLA is one of the requirements from the package of proposals that the Board approved on 10 March 2016 to transition NTIA's stewardship of the IANA function to the global multistakeholder community. Lito informed the Board that ICANN and the RIRs worked to develop the SLA. He made note of some of the provisions of the agreement such as the term of the agreement and performance expectations. He also noted that there were multiple rounds of public consultation periods associated with the drafting of the SLA, and that the SLA would be effective if and when the transition takes place. Göran Marbry provided an update on next steps if the SLA were approved by the Board.

      Ron da Silva moved, and Kuo-Wei Wu seconded the resolution. The Board took the following action:

      Whereas, on 10 March 2016, the Board approved a package of proposals to transition NTIA's stewardship of the IANA function to the global multistakeholder community (the "Proposal").

      Whereas, the Proposal contains a requirement for a Service Level Agreement (SLA) between ICANN and the five Regional Internet Registries (RIRs) for the performance of the numbering services.

      Whereas, the Proposal contains eleven principles for the IANA Service Level Agreement.

      Whereas, the RIRs drafted the proposed SLA in accordance with the IANA Service Level Agreement principles in the Proposal following an open and transparent process, including public comment period of each version via the ianaxfer mailing list <https://www.nro.net/pipermail/ianaxfer>. The RIRs also had discussions and meetings with ICANN during the drafting process, and ICANN submitted written comments on various versions of the proposed SLA to the ianaxfer mailing list.

      Resolved (2016.05.27.06), the President and CEO, or his designee(s), is authorized to take such actions as appropriate to finalize and execute the Service Level Agreement with the Regional Internet Registries for the IANA Numbering Services as contemplated by the Proposal.

      All members of the Board present voted in favor of Resolution 2016.05.27.06. Bruno Lanvin was unavailable to vote on Resolution 2016.05.27.06. Bruno affirmed his support for the Resolution but his vote is not recorded since he was not present for the meeting. The Resolution carried.

      Rationale for Resolution 2016.05.27.06

      Today, the Board is taking action to approve the Service Level Agreement (SLA) between ICANN and the Regional Internet Registries (RIRs) for the IANA Numbering Services. This action follows-on from the Board's 10 March 2016 resolution, where the Board approved a package of proposals developed by the global Internet community to transition NTIA's stewardship of the IANA functions to the global multistakeholder community (the "Proposal"). One of the requirements in the Proposal is the creation of an SLA between ICANN and the RIRs. The Proposal contains eleven principles for this SLA. The SLA is the contractual agreement between ICANN and the RIRs for the delivery of the numbering services. As such, it contains performance expectations, and specifies escalation paths and dispute resolution mechanisms in the event of non-performance.

      The terms of the SLA automatically renews every 5 years, unless either ICANN or the RIRs elects to not renew for any reason (with or without cause) by providing 12 months notice prior to the expiration of the then-current term. In the event of non-renewal or termination, the RIRs have sole discretion in selecting a successor operator.

      The SLA allows for ICANN to sub-contract the performance of the numbering services with consent from the RIRs. It also contains condition precedent language, which is a provision that says the SLA will not become effective unless and until the transition happens. This will allow ICANN to continue to fulfill its obligation under the current IANA function contract with NTIA until the transition happens.

      The RIRs initiated a process to draft the proposed SLA in accordance with the IANA Service Level Agreement principles in the Proposal, which went through multiple rounds of public comment via the RIR's ianaxfer mailing list. There were six versions of the proposed SLA, and each went through a public comment process. The RIRs considered and addressed the comments in each version as appropriate. ICANN contributed comments to the ianaxfer mailing list and also had informational discussions with the RIRs.

      As part of its deliberations, the Board reviewed various materials, including, but not limited to, the following materials and documents:

      The Board's approval of the proposed SLA will have positive impact on the community as it fulfills one of the requirements from the Proposal endorsed by the global stakeholder community and approved by the Board on 10 March 2016. Additionally, approval of the SLA will help ensure that ICANN meets the expectations of the number community for the continued performance of the numbering services in accordance with the service level needs of the numbering community.

      The proposed SLA, in its section 5, indicates that a portion equivalent to US$650,000 of the contribution made by the RIRs to ICANN contemplated in the exchange of letters between ICANN and the NRO (2007 and 2009) is to reimburse ICANN for the costs of operating the IANA numbering services. Consequently, this portion of US$650,000 constitutes a donor-restricted contribution to ICANN, which ICANN will need to ensure is adequately identified in its financial statements, and correctly applied to the funding of the PTI for the IANA numbering services.

      There are no expected security, stability, or resiliency issues related to the DNS associated with the Board's approval of the SLA.

      This decision is an Organizational Administrative Function that does not require public comment.

    4. IETF MoU Supplemental Agreement

      Akaram Atallah provided the Board with an update on the draft Supplemental Agreement to the Memorandum of Understanding (MoU) between ICANN and the IETF. Akram noted that the MoU and the Supplemental Agreement commits ICANN to perform the functions necessary for implementation of the protocol parameters, and that the Supplemental Agreement would not take effect until 1 October 2016, or when the stewardship transition occurs as long as it happens within 90 days of that date. The Chair asked about next steps if the agreement were approved and executed, and Akram reported that the agreement would be posted for community information.

      Cherine Chalaby moved, and Asha Hemrajani seconded the resolution. The Board took the following action:

      Whereas, on 10 March 2016, the Board approved a package of proposals to transition NTIA's stewardship of the IANA function to the global multistakeholder community (the "Proposal").

      Whereas, the Proposal calls for ICANN to maintain its existing Memorandum of Understanding (MoU) with the Internet Engineering Task Force (IETF) for the performance of the protocol parameters functions, which has been in place since 2000. Each year a service level agreement is negotiated that supplements the MoU (the "MoU Supplemental Agreement").

      Whereas, ICANN and the IETF have agreed to a final MoU Supplemental Agreement for 2016.

      Whereas, the 2016 IETF MoU Supplemental Agreement has been drafted in accordance with the IETF guidelines for contracted services.

      Resolved (2016.05.27.07), the President and CEO, or his designee(s), is authorized to take such actions as appropriate to finalize and execute the 2016 IETF MoU Supplemental Agreement with the IETF for the protocol parameters registries function as contemplated by the Proposal.

      All members of the Board present voted in favor of Resolution 2016.05.27.07. Bruno Lanvin was unavailable to vote on Resolution 2016.05.27.07. Bruno affirmed his support for the Resolution but his vote is not recorded since he was not present for the meeting. The Resolution carried.

      Rationale for Resolution 2016.05.27.07

      Today, the Board is taking action to approve the 2016 IETF MoU Supplemental Agreement between ICANN and the IETF for the performance of the protocol parameters function. This action follows-on from the Board's 10 March 2016 resolution, where the Board approved a package of proposals developed by the global Internet community to transition NTIA's stewardship of the IANA functions to the global multistakeholder community (the "Proposal").

      A memorandum of understanding (MoU) between ICANN and the IETF community has been in place since 2000. Each year a service level agreement is negotiated that supplements the MoU. One of the requirements in the Proposal is the completion of an IETF MoU Supplemental Agreement between ICANN and the IETF. The parties have completed negotiations for the 2016 IETF MoU Supplemental Agreement, which the Board is approving at this time.

      The 2016 IETF MoU Supplemental Agreement contains service level agreements for the performance of the protocol parameters registries function agreed to by ICANN and the IETF. The MoU Supplemental Agreement was drafted in accordance with the IETF guidelines for contracted services. Sub-contracting of the performance of the protocol parameters registries function is not prohibited by the MoU Supplemental Agreement, and the IETF has indicated that it has no objection to ICANN subcontracting the performance of the protocol parameters registries function <https://comments.ianacg.org/pdf/submission/submission72.pdf> [PDF, 332 KB]. The effective date of the MoU Supplemental Agreement takes into account the transition timeline and states that it will be effective as of 1 October 2016 unless the IANA Agreement between NTIA and ICANN has not ended or terminated, and then it will become effective at that time, so long as such event occurs within three (3) months of that date.

      As part of its deliberations, the Board reviewed various materials, including, but not limited to, the following materials and documents:

      The Board's approval of the proposed 2016 IETF MoU Supplemental Agreement will have positive impact on the community as it fulfills one of the requirements from the Proposal endorsed by the global stakeholder community and approved by the Board on 10 March 2016. Additionally, approval of the 2016 IETF MoU Supplemental Agreement will help ensure that ICANN meets the expectations of the Protocol Parameters Registries Community for the continued performance of the protocol parameters registries function in accordance with the service level needs of the Protocol Parameters Registries Community.

      There are no expected security, stability, or resiliency issues related to the DNS associated with the Board's approval of the SLA.

      This decision is an Organizational Administrative Function that does not require public comment.

    5. AOB - Reconfirming Board resolution on .HOTEL and .ECO IRP Declaration

      Amy Stathos introduced the Agenda item. She reported that on 10 March 2016 at the Board's public meeting, the Board adopted the Final Declaration issued by the IRP Panel in the consolidated IRP proceedings related to .HOTEL and .ECO. Amy noted that following the adoption of the resolution, George Sadowsky raised some concerns, and Board members have expressed concerns or support for those concerns, about the speed at which the resolution was passed. George wanted to ensure that the record on the Board's vote and any voting statement that Board members would like to have included are transparent to the community. The resolutions were considered passed by the Secretary at the time of the public meeting, but in light of the circumstances (and in acting with an abundance of caution and transparency) the Board is raising the issue and assuring that the issue that was not read into the record during the public meeting was fully considered and voted on.

      George Sadowsky moved, and Erika Mann seconded the resolution. The Board took the following action:

      Whereas, at its meeting on 10 March 2016, the Board passed the following resolution https://www.icann.org/resources/board-material/resolutions-2016-03-10-en#2.a, adopting findings found in the Final Declaration [PDF, 2.16 MB] issued on 12 February 2016, in the consolidated Independent Review Process (IRP) proceedings relating to .HOTEL and .ECO. The resolutions of that meeting have been confirmed as approved by the Secretary, as posted on the ICANN website.

      Whereas, members of the Board raised some concerns about the speed at which the resolution was passed, and wanted to ensure that the record on the Board's vote, and any voting statement that Board members would like to include, were clear and fully transparent.

      Resolved (2016.05.27.08), the Board hereby reaffirms the following resolution it passed on 10 March 2016: https://www.icann.org/resources/board-material/resolutions-2016-03-10-en#2.a.

      All members of the Board present voted in favor of Resolution 2016.05.27.08. Bruno Lanvin was unavailable to vote on Resolution 2016.05.27.08. Bruno affirmed his support for the Resolution but his vote is not recorded since he was not present for the meeting. The Resolution carried.

      Rationale for Resolution 2016.05.27.08

      ICANN is committed to ensuring that the record on Board decisions is clear and fully reflect Board members' views. The Board does note that the Secretary considers the resolution found at https://www.icann.org/resources/board-material/resolutions-2016-03-10-en#2.a to have been properly passed at the time of the Board's public meeting on 10 March 2016. However, in light of the questions raised by one Board member, and in acting with an abundance of caution and transparency, we are reaffirming that resolution to ensure that the issue was fully considered and properly voted on, and that Board members' views are fully set forth on the record.

      Reaffirming the Board's prior resolution will have no financial impact on the organization and no direct impact on the security, stability or resiliency of the domain name system.

      This is an Organizational Administrative function that does not require public comment.

Published on 27 June 2016