Minutes | Special Meeting of the ICANN Board 8 November 2012

A Special Meeting of the ICANN Board of Directors was held telephonically on 8 November 2012 at 18:00 UTC.

Steve Crocker promptly called the meeting to order.

In addition to the Chair the following Directors participated in all or part of the meeting: Sébastien Bachollet, Fadi Chehadé (President and CEO), Bertrand de La Chapelle, Chris Disspain, Bill Graham, Olga Madruga-Forti, Erika Mann, Gonzalo Navarro, Ray Plzak, George Sadowsky, Mike Silber, Bruce Tonkin (Vice Chair), and Kuo-Wei Wu.

The following Board Liaisons participated in all or part of the meeting: Francisco da Silva (TLG Liaison), Heather Dryden (GAC Liaison); and Thomas Narten (IETF Liaison).

Cherine Chalaby, Ram Mohan (SSAC Liaison), Judith Vazquez, and Suzanne Woolf (RSSAC Liaison) sent apologies.

  1. Main Agenda:
    1. WHOIS Policy Review Team Report
    2. .com Agreement Renewal Update


  1. Main Agenda:

    1. WHOIS Policy Review Team Report

      The Chair reviewed the proposed resolution and rationale with the Board.

      George Sadowsky noted that WHOIS issues are not unique to the GNSO, and cautioned that the resolution must address WHOIS as an ICANN-wide issue.

      Chris Disspain disagreed with George, as the resolution is about gTLD WHOIS issues, and that the Board is not evaluating how, at this time, to impose an entirely different WHOIS system. For example, some of the practices within ccTLDs already address some of the items highlighted in the recent SSAC report that can serve as models for the gTLD space. However, the questions raised in the SSAC report may not be complete, so additional time may be needed for their consideration. Chris cautioned that the Board should not lose sight of the fact that there has been a separate proposal on the auditing of WHOIS accuracy that is not appropriately dealt with this resolution.

      Ray Plzak agreed with Chris that the resolution is about the gTLDs and the GNSO. Ray noted that there are also WHOIS practices within the ASO that have been the subject of discussion for many years. The ASO also agreed, in Toronto, to take the Whois Review Team Report and look to seek what could be applied to the different regions under their policy processes. Given that work, it's premature to discuss anything beyond the current resolution at this time.

      George accepted the clarifications from Chris and Ray, and noted his concern over launching a process that depends upon the GNSO for closure, as the WHOIS issue has been under consideration there for over 10 years.

      Bruce Tonkin cautioned that the Board should not be overly dependent on any one single advisory committee in terms of addressing WHOIS related issues. In addition to the SSAC, advice has been received from the ALAC and the GAC, and the GNSO has done a lot of work on the fundamental questions as well. Bruce noted that it is important to engage with the stakeholders in the GNSO community, as this work will directly bind them. The resolution as drafted will help get pre-work done and provide input to the GNSO to give more change of reaching an implementable decision.

      Bertrand de La Chapelle noted that while he does not disagree with Chris, he has concerns of treating WHOIS within ccTLDs as a purely sovereign manner, as he believes it is a matter of security of the infrastructure and an issue affecting the global public interest, but that's an issue for the future discussion. This resolution also brings to light the idea that we can start discussing new ways of integrating other parts of the ICANN community into the GNSO PDP to make sure issues are brought to closure. Bertrand then raised some questions about the rationale and the structure of the proposed resolution.

      Sébastien Bachollet agreed with Ray and Chris that the resolution does not have to address other parts of the ICANN community, such as RIRs and ccTLDs, and provided some suggestions about the scope of the proposed resolution.

      Chris confirmed that the resolution should allow for looking at the advice provided by entities throughout ICANN, and that the intention of the resolution is to try to get sufficient work done in advance of presenting the expert information to the GNSO in the hopes of bringing this work to closure in the GNSO. However, we need to have bounds to the work that we're asking the expert work to do will make the work take longer. Addressing the more global issues is a step-by-step process.

      The Chair stated that everyone knows that the WHOIS system that is in place is deeply flawed and has been for a long time. The WHOIS system was put together at the time of ARPANET to identify the system administrators and has started evolving over the past 40 years. Today, the relationship between the holder of the domain name and the registrar is structurally separate from the information posted in the WHOIS database. The Chair noted his opinion that this brings instability into the system, and its time to look at that instability. The Board's decision today says that we're not going to perpetuate the existing system without taking further action, and we have obligations to meet under the Affirmation of Commitments. Speaking forcefully on this issue will support the SSAC's work on WHOIS. The Chair provided a proposed sequence of events to guide the work expected as a result of the resolution and suggested some questions that could assist in bounding the expert group's work.

      Olga Madruga-Forti addressed the Chair's comment on billing and relationship information being separate from WHOIS information, and noted it as a very important point to address. If you can separate the customer information, there is little incentive for the administration information to be maintained as current or correct. Olga then provided some suggestions of how the outcomes of the expert work can be efficiently staged for a PDP, if necessary, and to be responsive to the Review Team's report.

      Ray noted that it is important to have the resolution drafted in a manner that the President and CEO is able to scope the work he is being tasked to do in an appropriate fashion.

      Heather Dryden commented that there has been ongoing work within the GAC on these issues, as well as various GAC advice provided over the years, and agreed with Bertrand that there has to be considerations of how to address the Review Team's recommendations in a manner that brings in all facets of the community into the policy work on this. Heather stressed that the Affirmation of Commitments specifically referenced national legislation, and urged that the Board consider that the GAC has implicitly endorsed the Affirmation of the Commitments and the resulting review teams, as well as the recommendations of the WHOIS Review Team. Heather noted that this touches on other ongoing work within ICANN, such as the RAA negotiations and addressing issues of conflicts with national laws. The path forward to address the WHOIS Review Team recommendations is important, as it is a major issue that has not yet been addressed, and the GAC needs to be as involved as possible in any policy development work and in drawing out the key issues or disagreements between the parts of the ICANN community on this issue.

      Thomas Narten expressed his support for Ray's comments, made some suggestions for the modification of the resolution.

      Bertrand stressed that the resolution must demonstrate the seriousness with which the Board considers and addresses this issue. The work that is anticipated as a result of this resolution places a huge responsibility on ICANN to find the right way to move forward, and should be worded in a manner that the community understands that ICANN is not just kicking the can down the road.

      Chris agreed with Bertrand on the import of this decision, and made some suggestions on how to address issues of contractual compliance within the resolution while still making clear that there has to be a methodology reached to establish new WHOIS policy.

      Heather noted that the Board might have to later address the issue of when the community fails to find consensus on this topic.

      The Chair confirmed that the Board is trying to move forward, past the lack of community consensus, to acknowledge the work that has been done over the years on WHOIS and then to strike out on a new course.

      Bertrand suggested that the Board should take more time to consider this resolution, and postpone decision.

      The Chair identified that there is a deadline of 11 November 2012 for the Board to take action, timed from the receipt of the Review Team's report, so there is an urgency. The Chair and the Board then engaged in a discussion of how the resolution and rationale could be modified to address the concerns raised within the discussion.

      Upon reaching agreement on the wording of the resolution, the President and CEO suggested to the Board that, given the import of this decision, that care should be given in crafting the final rationale and explaining the Board's decision to the WHOIS Review Team as soon as possible.

      The Board agreed with the proposal to reach out to the WHOIS Review Team, and further agreed to refine the rationale offline within the coming days.

      At Bruce Tonkin's suggestion, the Board agreed to take a decision on the resolution, while also passing a resolution approving the holding of the resolution for a period of days to allow the rationale to be crafted to the Board's satisfaction.

      The Board then took the following decision:

      Whereas, the WHOIS Policy Review Team Report was submitted to the Board on 11 May 2012 and was the subject of extensive public comment and community discussion;

      Whereas, the Review Team's work has encouraged the Board and community to re-examine the fundamental purpose and objectives of collecting, maintaining and providing access to gTLD registration data, has inspired renewed and new efforts to enforce current WHOIS policy and contractual conditions, and has served as a catalyst for launching a new approach to long-standing directory services challenges;

      Resolved (2012.11.08.01), the Board directs the CEO to launch a new effort to redefine the purpose of collecting, maintaining and providing access to gTLD registration data, and consider safeguards for protecting data, as a foundation for new gTLD policy and contractual negotiations, as appropriate (as detailed in the 1 November 2012 Board paper entitled, "Action Plan to Address WHOIS Policy Review Team Report Recommendations"—ICANN Board Submission Number 2012-11-08-01 [PDF, 266 KB]), and hereby directs preparation of an Issue Report on the purpose of collecting and maintaining gTLD registration data, and on solutions to improve accuracy and access to gTLD registration data, as part of a Board-initiated GNSO policy development process;

      Resolved (2012.11.08.02), the Board directs the CEO to continue to fully enforce existing consensus policy and contractual conditions relating to the collection, access and accuracy of gTLD registration data (referred to as gTLD WHOIS data), and increase efforts to communicate, conduct outreach on, and ensure compliance with existing policy and conditions relating to WHOIS (as detailed in the 1 November 2012 Summary of the Board Action entitled, "WHOIS Policy Review Team Report Recommendations").

      Resolved (2012.11.08.03), pursuant to Article III, Section 5.4 of the Bylaws, the Board directs that the contents of this resolution and rationale shall not be made publicly available until 19 November 2012.

      All Board members in attendance approved of Resolutions 2012.11.08.01, 2012.11.08.02 and 2012.11.08.03. Cherine Chalaby and Judith Vazquez were unavailable to vote on the Resolutions. The resolutions carried.

      Rationale for Resolutions 2012.11.08.01 – 2012.11.08.02

      The Affirmation of Commitments (AoC) between ICANN and the U.S. Department of Commerce commits ICANN to enforcing its existing policy relating to WHOIS (subject to applicable laws), which "requires that ICANN implement measures to maintain timely, unrestricted and public access to accurate and complete WHOIS information, including registrant, technical, billing, and administrative contact information." The AoC obligates ICANN to organize no less frequently than every three years a community review of WHOIS policy and its implementation to assess the extent to which WHOIS policy is effective and its implementation meets the legitimate needs of law enforcement and promotes consumer trust. The AoC further commits ICANN's Board to publish for public comment the report submitted by the Review Team, and to take action on the report within six months of its submission.

      The Team's volunteer members were appointed by ICANN's CEO and the GAC Chair, per the AoC requirements, and reflected the broad Internet community's interests in WHOIS policy. For 18 months, the Team conducted fact-finding, including meetings with ICANN's relevant Supporting Organizations and Advisory Committees, members of the broader Internet community, and other interested parties, and issued a draft report for public comment before submitting its Final Report to the Board on 11 May 2012. The Report was posted for two months of public comment and the Board requested input from ICANN's Supporting Organizations and Advisory Committees. Community discussion and input on the Report continued through the ICANN Toronto meeting in October 2012.

      The GAC and ALAC endorsed the WHOIS review report, SSAC provided a response in SAC055 (http://www.icann.org/en/groups/ssac/documents/sac-055-en.pdf [PDF, 348 KB]), and the GNSO provided a response by constituency (http://gnso.icann.org/en/correspondence/robinson-to-icann-board-07nov12-en.pdf [PDF, 377 KB]).

      There is general agreement on the objective of strengthening the enforcement of existing consensus policies and contracts and the WHOIS Review Team Report provides many relevant recommendations to that effect.

      However, both the WHOIS Review Team Report and the SSAC comments highlighted the limits of the current framework for gTLD directory services and the need to move beyond the present contractual provisions. The WHOIS Review Team for instance clearly stated that "the current system is broken and needs to be repaired." Likewise, the SSAC report stated that "the foundational problem facing all 'WHOIS' discussions is understanding the purpose of domain name registration data", that "there is a critical need for a policy defining the purpose of collecting and maintaining registration data" and suggested that "the formation of a properly authorized committee to drive solutions to these questions first, and to then derive a universal policy from the answers, is the appropriate sequence of steps to address the WHOIS Review Team's report."

      Indeed, the WHOIS protocol is over 25 years old (the current version is documented in RFC3912 dated September 2004, and the original version is documented in RFC812 dated March 1982). Furthermore, ICANN's requirements for domain name registration data collection, access and accuracy for gTLD registries and registrars are largely unchanged after more than 12 years of GNSO task forces, working groups, workshops, surveys and studies. Concerns of access, accuracy, privacy, obsolescence of protocols in an evolving name space, and costs to change remain unresolved.

      In this context, taking into account these inputs and community concerns, the Board has determined that a broad and responsive action is required and has decided to implement a two-pronged approach. Accordingly, the Board is simultaneously:

      1. Directing the President and CEO to continue to fully enforce existing consensus policy and contractual conditions as well as to increase efforts to communicate, conduct outreach on, and ensure compliance with such existing policy and conditions.
      2. Directing the President and CEO to launch a new effort focused on the purpose and provision of gTLD directory services, to serve as the foundation of an upcoming Board-initiated gNSO PDP. The outcomes of this work should act as guidance to the Issue Report that will be presented as part of the GNSO's policy development work; as a result, the Issues Report is not expected to be produced until such time as the President and CEO determines that his work has progressed to a point that it can serve as a basis of work within the PDP.

      On both aspects, additional information is contained in the document, "Action Plan to Address WHOIS Policy Review Team Report Recommendations – ICANN Board Submission Number 2012-11-08-01" (http://www.icann.org/en/groups/board/documents/briefing-materials-1-08nov12-en.pdf [PDF, 266 KB]).

      As part of the work of the President and CEO to ensure continued compliance with existing policy and conditions, the President and CEO has moved the Compliance Department to report directly to the President and CEO (http://www.icann.org/en/news/announcements/announcement-14sep12-en.htm), and the Board granted financial authorization to establish a Contractual Compliance Audit Program through an independent Service Provider (http://www.icann.org/en/groups/board/documents/resolutions-03oct12-en.htm#1.d)

      Furthermore, appropriate liaison will be established with the ongoing work undertaken in the IETF WG on the Web Extensible Internet Registration Data Service (WEIRDS) Protocol to ensure coherence.

      The Board strongly feels that taking this two-pronged approach is essential to fulfill ICANN's responsibility to act in the global public interest.

      The initiation of a focused work on Whois is expected to have an impact on financial resources as the research and work progresses. If the resource needs are greater than the amounts currently budgeted to perform work on Whois-related issues, the President and CEO will bring any additional resource needs to the Board Finance Committee for consideration, in line with existing contingency fund request practices.

      This action is not expected to have an immediate impact on the security, stability or resiliency of the DNS, though the outcomes of this work may result in positive impacts.

      This is an Organizational Administrative Function of the Board for which the Board received public comment, at http://www.icann.org/en/news/public-comment/whois-rt-final-report-11may12-en.htm.

    2. .com Agreement Renewal Update

      The Board received an update from the General Counsel and Secretary on the status of the renewal of the .com Registry Agreement. No action was requested or taken.

      The Chair called the meeting to a close.

Published on 21 December 2012.