Preliminary Report for Special Meeting of the ICANN Board of Directors 12 February 2007

[Formal Minutes are still to be approved by the ICANN Board]

A Special Meeting of the ICANN Board of Directors was held via teleconference on 12 February 2006 and was called to order at 1:10 P.M. U.S. Pacific Standard Time (PST) US.

Chairman Vinton G. Cerf advised that he had a virus that made it difficult to speak and requested Alejandro Pisanty chair the meeting. Vice Chair, Roberto Gaetano was on the call as well, but was unable to chair the meeting due to his being unavailable during a portion of the Board Meeting. The following other Board Directors participated in all or part of the meeting: Steve Crocker, Raimundo Beca, Susan Crawford, Demi Getschko, Steven Goldstein, Joichi Ito, Rita Rodin, Vanda Scartezini, Paul Twomey and Dave Wodelet. Board Members Peter Dengate Thrush, Njeri Rionge and Rajasekhar Ramaraj were not present on the teleconference. The following Board Liaisons participated in all or part of the meeting: Vittorio Bertola, ALAC Liaison; Janis Karklins, GAC Liaison-Elect; Mohammed Sharil Tarmizi, GAC Liaison; and Suzanne Woolf RSSAC Liaison.

John Jeffrey, General Counsel and Secretary; Paul Levins, Executive Officer and Vice President, Corporate Affairs; Doug Brent, Chief Operating Officer; Kurt Pritz, Senior Vice President, Business Operations; Denise Michel, Vice President Policy Development; David Conrad, IANA General Manager; Kim Davies, IANA Technical Liaison; Barbara Roseman, IANA Operations Manager; Theresa Swinehart, Vice President of Global and Strategic Partnerships; and, Dan Halloran, Deputy General Counsel also participated in the meeting.

Approval of 16 January 2007 Board Minutes

The Acting Chair introduced the minutes of the meeting of 16 January 2007. Vint Cerf noted these minutes were by far the most complete set that the Board had yet made available. He thanked staff for their efforts.

Following this Alejandro Pisanty moved and Steve Goldstein seconded the following resolution:

Resolved (07.07) the minutes of the Board Meeting of 16 January 2007 are approved.

The Board approved the resolution unanimously, by voice vote.

Authorization to open bank account to assist Registrar Constituency

Kurt Pritz explained that ICANN Staff had been requested by the Registrar Constituency to provide assistance opening a checking account. Previously, the Chair of the Constituency has opened a checking account in his or her own name. As the Constituency is not formally incorporated, they have asked ICANN to open the account on their behalf with the Chair and Deputy Chair being authorized to sign checks.

Resolved (07.08), that staff is authorized to open a bank account to assist the Registrar Constituency.

The Board approved the resolution unanimously, by voice vote

Consideration of Proposed .XXX Registry Agreement and recent public comment period

John Jeffrey introduced this item. John asked the board to consider a decision-making process on the pending issues along the following three issue areas: 1) community review and public comment of the agreement and the sufficiency of the proposed agreement; 2) the status of advice from the Government Advisory Committee (GAC) and a clarification of the letter from the GAC Chair and Chair-Elect, and whether additional public policy advice had been received or was expected following the Wellington Communiqué ; and 3) how ICM measures up against the RFP criteria.

John noted in relation to community input that since the initial application on the proposed application and revised contract, there had been over 200,000 emails sent to ICANN and additionally over 1300 separate comments had been received in the public comment forums established by ICANN.

John noted a summary of the most recent public comments on the revised agreement posted from 5 January 2007 to 5 February 2007 was provided to the board and was to be posted, publicly. John reported that Staff received over 600 public comments and approximately 55,579 emails (from an email campaign on a website) during and since this period. Of the comments posted to the public forum, 488 (77%) were opposed and 107 (16%) expressed support, with the others not indicating a view. Of the emails, nearly all were written on the same form opposing the introduction of the sTLD.

John also noted that it was important that the Board in making any decision on this matter should take into account the extensive public comments on this issue and the Board's review of this information should be noted.

Vint Cerf asked whether in the breakdown of comments, it was possible to determine what fraction of the adult online content community supported the creation of the domain. John noted that the support of the adult online content community was an issue area that had been raised in various comments, but indicated that it would be difficult to measure the participation of the larger community in this manner, since only those that wished to participate in the forum would do so. Rita Rodin indicated that a note in the Board materials prepared by staff indicated that during the 5 January through 5 February 2007 public comment period, 88 commentators identified themselves as web masters of adult content of whom 65 were opposed to the development of the .XXX domain and 23 were in favor. Kurt Pritz said that in relation to the issue of establishing whether there was support for domain creation amongst a sponsorship community that ICM had provided extensive evidence for a sponsorsed community and that documentation of this could be found in the application. Kurt also pointed out that, at the Board's request, additional information had been presented to them during ICANN's Mar del Plata Meeting.

Vint Cerf noted that he had been notified by email that there was a meeting of the adult online community that had recently taken place to discuss the creation of the new .XXX domain, and that the meeting was attended by ICM. John Jeffrey noted that he was informed that the meeting had taken place approximately one week earlier, and that Stuart Lawley of ICM had participated in a panel discussion. John also indicated that he was informed that it was sparsely attended and that there was no transcript of the panel discussion at this point. Vint Cerf asked whether by inference that meant there was no groundswell of support for the creation of the domain at that meeting. John Jeffrey reflected that he did not believe that there was enough information about the conference to support that conclusion. Vint Cerf advised that a transcript of the meeting had been offered to him, but it was not yet available.

Vint Cerf asked for an update on the status of the agreement that was posted. John Jeffrey said that subsequent to the posting of the agreement on 5 January Susan Crawford amongst other Board Members had asked for clarification of language in the posted version of Appendix S. Upon review of the agreement with ICM's attorneys both sides negotiated additional clarifying language into a new version of that Appendix.

These discussions and relevant changes to the Appendix were finalized last week on 8 February. Vint Cerf asked whether these modifications needed to be subject to a public comment period. John Jeffrey advised that ICM believed the changes were non-substantive and that ICM would rather not have a further comment period. ICM indicated a clear preference for the Board to act as soon as possible on the existing proposal based on documents that had already been available for public comment since 05 January 2007. John's view was that the Board's position had been consistent since the .NET agreement that any change should be posted for a public comment period. However, John believed that it was the Board's task to evaluate the posted 5 January version and that only if the Board did not agree that this was sufficient should the Board discuss whether or not to post a revised Appendix S for public comment.

There was some discussion by a variety of Board members and Liaisons including Vint Cerf, Sharil Tarmizi, Rita Rodin, and Steve Goldstein suggesting that the new version should be posted highlighting the revised Appendix S, which would show the differences between the version of Appendix S posted on 05 January 2007 and the new version of Appendix S. Vint Cerf said that he viewed the changes in Appendix S as being centered on ICANN's ability to enforce conditions on ICM. There was not similar concentration upon what ICM can do to enforce conditions on Registrants. However, Susan Crawford indicated there was a section of the proposed contract that provided for ICM to enforce some conditions on Registrants.

Paul Twomey made a procedural point that the Board at its Luxembourg meeting (July 2005) decided that any document that may affect a third party, would always be posted for a comment period of 21 days.

Rita Rodin asked if there was a consensus that the Board should post the revised Appendix S for comment. John Jeffrey agreed that if the Board wanted to discuss the new Appendix S, that a sufficient a case for posting seemed to be established.

Vint Cerf asked for clarification on the issue of non-resolving registrations. He asked whether a request for a domain name not to resolve would incur a request for payment to the Registrar. That is, would payment be required to ensure that a name linked to a .XXX domain would not resolve. John Jeffrey advised that the agreement would permit ICM to charge in these circumstances. Susan Crawford added that ICM had made it clear however that such requests would be "deeply discounted" and would probably be limited to cost recovery. Susan noted ICM was attempting to address concerns in advance by individuals who may believe their name or some other words of significance should be prevented from resolving to a .XXX domain with a payment of a minimal fee.

Rita Rodin stated that she believed it was important to separate visceral or emotional feelings from the technical criteria when making a decision about the proposed .XXX domain. She noted that she was not on the Board during the previous discussions on .XXX and thus in preparation for the meeting had reviewed the materials prepared by staff and other information available about the proposed domain. Based on this review she had some concerns about whether the proposal met the criteria set forth in the RFP. For example, she noted that it was not clear to her whether the sponsoring community seeking to run the domain genuinely could be said to represent the adult on-line community. However Rita requested that John Jeffrey and Paul Twomey confirm that this sort of discussion should take place during this meeting. She said that she did not want to reopen issues if they had already had been decided by the Board.

Vint Cerf noted that had been the subject of debate by the Board in earlier discussions in 2006. He said that representatives of ICM had given a one-hour presentation at ICANN's Mar del Plata Meeting in April 2005 where they demonstrated what they believed was support from the adult online community. However, Vint said that it was his belief that in recent times (over the last six months) there seemed to have been a more negative reaction from members of the adult online community to the proposal. Rita Rodin agreed, saying that a review of the materials indicates that there seems to be a "splintering" of support in the adult on-line community. She thought this splintering suggested there may not be widespread support within the adult online community for the proposal. She was also concerned that approval of this domain in these circumstances would cause ICM to become a de facto arbiter of policies for pornography on the Internet. She expressed the view that she was not comfortable with ICANN saying to a self-defined group that they could define policy around pornography on the Internet. This was not part of ICANN's technical decision-making remit, she believed.

Kurt Pritz said that the last time ICANN had asked ICM to demonstrate support from the adult online community they had provided written support from about 24 major suppliers of adult online content. He acknowledged that ICANN had not asked ICM specifically about their level of support since the Board's decision on .XXX in June 2005.

Paul Twomey said the Board needed to focus in this discussion on the three issues presented, which he stated as whether there was a requirement for additional public comment period for the new version of Appendix S; clarification of issues to do with GAC advice — for example, whether additional public policy advice was expected following the Wellington Communiqué and the status of the letter from the Chair and Chair elect; and whether ICM had demonstrated to the Board's satisfaction that it had met criteria against the RFP for sTLDs.

Vint Cerf agreed that the sponsorship grouping for a new TLD was difficult to define. He noted that consideration of .MOBI and .TRAVEL had been made more complex by this feature. He thought the intent of establishing a defined sponsorship community was to "hand off" policy development to the sponsoring group, so that ICANN would not be in the position of formulating policy but would be making decisions based on technical parameters. However, he believed what had happened in the case of the .XXX proposal was that a "thicket of regulation" had been created, but it was not clear if this will apply to a significant proportion of the online community or not.

Susan Crawford expressed the view that no group can demonstrate in advance that they will meet the interests and concerns of all members in their community and that this was an unrealistic expectation to place on any applicant. She also said that if that test was applied to any sponsor group for a new sTLD, none would ever be approved.

Roberto Gaetano said that he believed that there was significant opposition from the adult entertainment industry as they come to understand the repercussions and operation of this domain. He thought a substantial number in that community had changed their mind over the last six months. He said when the Board has evidence of substantial opposition that must be taken into account. He noted for .TRAVEL the Board had only one statement of opposition. In this case there had been hundreds.

Rita Rodin echoed what she saw as both Vint and Roberto's views. She believed that the reason ICANN had public comment periods was to take into account the views expressed during them. If the Board does not pay attention to those views, she said, this would support the oft-mentioned argument that the Board does pay attention to the community.

Raimundo Beca said he believed three things were relevant. First, the Board needed to determine whether to go to a further period of consultation of 21 days for the new version of Appendix S. Second, that there was substantial opposition that had been recorded in recent times. Third, that the Board needed a letter from ICM demonstrating that they had continued support from the majority of the adult online entertainment industry.

The Acting Chair indicated that he sensed from listening to the discussion that a majority of Board members held "serious concerns" about the level of support for the creation of the domain from the particular sponsoring community. He conducted a "straw poll" by asking each Board member and Liaison to express their view in relation to this matter, recognizing that Liaisons do not have a vote. He indicated he held serious concerns. Other Board Members and Liaisons who identified themselves as having "serious concerns" included Vint Cerf, Steve Goldstein, Rita Rodin, Roberto Gaetano, Vanda Scartezini, Demi Getschko, Sharil Tarmizi, Raimundo Beca, Vittorio Bertola and Suzanne Woolf. Vittorio Bertola noted that notwithstanding his concerns the ALAC did not yet have a final and unanimous view on whether the domain should be created or not, and in any case, as it had said previously, did not support the requirement of the sponsorship for new TLDs in itself.

Susan Crawford, Joichi Ito, and Dave Wodelet stated that they did not have serious concerns about the sponsorship criteria, and expressed the view that it was an inappropriate burden to place on ICM to ensure that the entire adult online community was supportive of the proposed domain. Paul Twomey expressed the view that he had concerns but had not reached a final conclusion as to their seriousness. Susan Crawford also wanted it made clear in the minutes of the meeting that a self-described community of sponsorship for the proposed domain was sufficient for some members of the Board including herself.

Following this discussion, Alejandro Pisanty moved and Vint Cerf seconded a request for a vote on the following resolution:

Whereas, a majority of the Board has serious concerns about whether the proposed .XXX domain has the support of a clearly-defined sponsored community as per the criteria for sponsored TLDs;

Whereas, a minority of the Board believed that the self described community of sponsorship made known by the proponent of the .XXX domain, ICM Registry, was sufficient to meet the criteria for an sTLD.

Resolved (07.08) that:

  1. the revised version of Appendix S be exposed to a public comment period of no less than 21 days; and
  2. ICANN Staff consult with ICM and provide further information to the Board prior to its next meeting, so as to inform a decision by the Board about whether sponsorship criteria is met for the creation of a new .XXX sTLD.

The Board approved the resolution unanimously, by voice vote.

Paul Twomey requested that issues regarding the GAC letter and GAC advice be discussed further at the next Board meeting. Sharil Tarmizi said that the letter from the Chair and Chair-Elect of the GAC, had been provided to the Board after its meeting on 16 January 2007 and was a response that had been signed off by Janis Karklins and himself rather than the whole GAC. Janis clarified that an unfortunate miscommunication led to a rescheduling of the GAC conference call on 17 January 2007 and that had prevented broader participation. Those GAC members who participated in the call felt that the GAC had to respond ICANN's call for comments. The first draft response was sent to the GAC mailing list and subsequent comments received led to further redrafting. A final version of the letter was sent to the GAC mailing list and GAC members had a final opportunity to comment, in the absence of which, the final draft would be adopted as the version to be sent out to ICANN. No comments were received and the letter was sent to the Chairman of ICANN. Janis stressed that the letter should not be considered as formal advice since no formal request has been received from the Board. He reiterated that the Wellington Communique remains a valid and important expression of the GAC's views on the proposed .XXX domain. Susan Crawford asked what particular concerns governments had and Janis Karklins referred to the GAC Wellington Communiqué is the only formal expression of the GAC on this matter.

Consideration and follow up from last meeting on .UM ( United States Minor Outlying Islands)

At the last meeting, the Board resolved that the delegation of .UM be removed from the DNS root and that it be returned to unassigned status. David Conrad provided an update on this item. The Board was provided with an update on progress relating to this issue.

Consideration of additional information regarding the .GW ( Guinea-Bissau) Redelegation request

The Board was provided with an update on the progress of this redelegation request

Conclusion of meeting The remaining board agenda items will be addressed at the next meeting. The Acting Chair adjourned the meeting at 3:04 pm PST.