Minutes for Special Meeting of the ICANN Board of Directors
A Special Meeting of the ICANN Board of Directors was held via teleconference on 16 October 2007. Chairman Vinton Cerf called the meeting to order at 1.11 P.M. U.S. Pacific Daylight Time (PDT).
The following Directors participated in all or part of the meeting: Raimundo Beca, Chairman Vinton G. Cerf, Susan Crawford, Peter Dengate Thrush, Vice Chairman Roberto Gaetano, Demi Getschko, Steven Goldstein, Joichi Ito, Njeri Rionge, Rita Rodin; Vanda Scartezini; President and CEO Paul Twomey; Bruce Tonkin; and David Wodelet. The following Board Liaisons participated in all or part of the meeting: Steve Crocker, SSAC Liaison; and, Janis Karklins, GAC Liaison. The following Board Members and Liaisons were not present on the call: Vittorio Bertola, Thomas Narten, Rajasekhar Ramaraj, Suzanne Woolf, and Francisco da Silva. The following individuals who have been nominated for board service as directors commencing with the 2007 Annual General Meeting, were present as observers: Harald Alvestrand, Dennis Jennings, and Jean-Jacques Subrenat, as Nominating Committee Nominees to the ICANN Board of Directors; and, Wendy Seltzer, ALAC Liaison designate.
The following ICANN Officers and Staff participated in all or part of the meeting: John Jeffrey, General Counsel and Secretary; Doug Brent, Chief Operating Officer; Kevin Wilson, Chief Financial Officer; Kurt Pritz, Senior Vice President, Business Operations; Barbara Roseman, General Operations Manager, IANA; Denise Michel, Vice President, Policy Development; David Conrad, Vice President of Research and IANA Strategy; and, Donna Austin, Manager, Governmental Relations.
The Board discussed and took action on the following matters:
Approval of Board Minutes from Special Meeting of the ICANN Board, 11 September 2007
The Chair introduced the proposed Board Minutes from the meeting of 11 September 2007 which had been circulated to the Board earlier and posted to the website as a preliminary report.
Steve Goldstein moved and Demi Getschko seconded to adopt the Board minutes of 11 September 2007 without correction.
Resolved (07.80), the minutes of the Board Meeting of 11 September 2007 are approved.
A voice vote was taken of all Board Members present, and the motion was approved unanimously by a vote of 13-0. In addition to the Board Member not present for the meeting, there were technical difficulties relating to joining Raimundo Beca to the call in time to cast his vote.
IANA Related Issues:
Redelegation of the .BM (Bermuda) Domain
Barbara Roseman advised that the request from Bermuda for redelegation was well supported. On 8 May 2007, IANA received a request for the redelegation of the .BM (Bermuda) top-level domain. The .BM domain was originally delegated in March 1993 to Bermuda College. A request for the delegation of .BM was submitted in August 2003. A letter from the Government of Bermuda supported the request, however the request was ultimately closed in March 2005 due to a lack of supplemental documentation. The change does not involve changes to the authoritative name servers for .BM, as the proposed recipient of the delegation, which is the Registrar General of Bermuda, is already the de facto manager of the .BM domain. Staff recommended that the Board approve the re-delegation.
Steve Goldstein moved and Bruce Tonkin seconded the following resolution:
Whereas, the .BM top-level domain is the designated country-code for Bermuda;
Whereas, ICANN has received a request for redelegation of .BM to the Registrar General of Bermuda;
Whereas, ICANN has reviewed the request, and has determined that the proposed redelegation would be in the best interest of the local and global Internet communities.
It is hereby resolved (07.81), that the proposed redelegation of the .BM domain to the Registrar General of Bermuda is approved.
A voice vote was taken of all Board Members present and the motion was approved unanimously by a vote of 14-0.
Discussion of the Applications for Delegation of the .EH (Western Sahara) Domain
Barbara Roseman advised that there has been no further progress on the delegation of .EH and Staff has reached the point where they are unable to take any further action.
Staff explained that there are currently two applicants for the delegation of the country code top-level domain (ccTLD) .EH (Western Sahara). Both requests meet the technical criteria for managing a top-level domain. In cases like this, IANA has a long-standing policy of requesting that the two contesting applicants work together to find a mutual solution that will serve the needs of the local Internet community in the best possible fashion. ICANN does not see a way to approve the .EH ccTLD delegation to one of the applicants without violating its long-standing policy unless the contesting parties are able to reach an agreement, either through their current negotiations, or through some alternate means.
Paul Twomey noted that according to existing procedure in this circumstance Staff would close the ticket, until such time as the issue regarding multiple applicants is resolved.
The Chair closed off this session requesting that it be noted in the meeting that a report was received from Staff on this matter, and that Staff will continue to act according to procedures.
Discussion of Registry Services Proposal from Telnic (.TEL) re: Public Display of WHOIS information
Kurt Pritz advised that this is submitted for information only to acquaint Board with issues regarding the Telnic proposal and in preparation for a possible board vote at a later meeting. The Telnic proposal contains a complex set of issues. Two major questions arise: by what standard should proposal be measured and how should this proposal be evaluated against that standard.
Telnic submitted a proposal to limit the public display of Whois information. This is of interest to constituencies who have an interest in access to full Whois information such as the Intellectual Property constituency who seek to protect the rights of their clients.
Kurt Pritz indicated further, that issues were raised regarding what the proposed change should be measured against, and cited three available tools: 1) the process for considering registry services (funnel process); 2) the Whois Procedure for Conflicts with National Laws; and 3) a request for registry contract change. In this case the staff is using all three standards.
The registry services funnel process provides a threshold question to evaluate whether there are stability or security issues associated with the proposal. In this case no such issues were identified.
The Whois Procedure for Conflicts with National Laws is not yet implemented pending GAC input, however, interim GAC advice on this procedure was published at the ICANN San Juan meeting. This draft procedure suggests public consultation and requires Board approval. This evaluation is not complete, and is expected to be discussed at the upcoming Los Angeles ICANN Meeting.
Finally, the proposal is being evaluated as a material contract change, requiring public posting and Board approval. As a result of public consultations, there have been a number of iterations of the proposal.
With respect to the Whois Procedure for Conflicts with National Laws there are two issues in the evaluation of the proposal that require careful analysis.
First, is an evaluation of whether there is government action that might conflict with ICANN contractual Whois requirements? Telnic is not scheduled to start registry operations until early 2008 and there is a question as to whether there is a government action absent an actual violation of a national law.
The second issue is whether the modifications to the proposal made by Telnic sufficiently address concerns raised by members of the community. As a result of comment in reaction to their first proposal, Telnic has significantly modified its request. The 13-step procedure for an interested party with a reason to gain access to full information has been eliminated. It has been replaced with a streamlined process where qualified individual have full access through a user name and password issued by Telnic. In another change, Telnic abolished a fee for the service, replacing it with some additional authentication procedure. With this and other changes, the test is whether the modifications to the proposal made by Telnic sufficiently address concerns raised by members of the community and whether the changes preserves the ability to comply with contractual obligations to the greatest extent possible. To answer those questions, ICANN has held follow-up consultations with the UK Information Commissioner’s Office and the IP constituency. The next step will be to post the amended proposal by Telnic and weigh community response as part of this analysis.
After that, the procedure calls for a General Counsel report to the Board (essentially a Board paper) asking the Board to consider the Telnic procedure. Noting this was for information and not looking for Board action, the Chair asked what is the expectation for next steps.
Kurt Pritz advised that the revised proposal would be posted for public comment to help determine if the modifications have addressed community concerns. After this discussion and an additional staff report, the Board will be prepared to take a vote.
The Chair inquired whether this would be included on the Los Angeles Meeting Agenda. Kurt replied that Telnic has made recent changes to the proposal in response to additional feedback. There is not time for a public comment period between now and the LA meeting.
Steve Goldstein asked if law enforcement requirements had been examined and their need to access. The Chair asked if he could interpret the statement—the information collected by a registry or registrar is not made public but avenues exist for law enforcement agencies to obtain information but not through public display. Law enforcement has long had the ability on a national basis to obtain other information considered private. Law enforcement access is not impaired. There is a strong IP interest in obtaining data.
Steve Crocker noted that he has come to understand that for United States law enforcement authorities, that if a law enforcement agency is given non-public access without using a warrant they cannot use this information in a court process.
Susan Crawford noted that there will be a report in Los Angeles on Whois issues in general and all of these concerns can be aired then.
Janis Karklins advised that GAC agreed that we would try to accomplish the work relating to GAC advice on the conflicts policy during the Los Angeles Meeting. He noted that there has been an active exchange among GAC members, with the European members relatively optimistic to reach agreement. The GAC will be working in Los Angeles on a draft that has been circulated but he is not optimistic that the GAC will be able to complete this work because of serious difference in approach to data protection in different countries.
Janis noted as a personal comment on Telnic—no responsible business would engage on any operation that would lead them to the court. Instead they would try to find a solution to get the procedure right from the start. ICANN should be sensitive to this approach.
Bruce Tonkin noted in this debate is what a lot of lawyers want to see is written advice from a privacy commissioner and then challenge this advice. A privacy commissioner does not want to publish what could be used in court. Staff has done a lot of due diligence, spoken to UK GAC representative who has confirmed it is normal procedure that the Commission would provide advice in confidence. A lot of information relied on here is private. Bruce raised the issue of how to handle such confidentially provided information going forward.
The Chair noted that it might be that we will have difficulty in establishing a uniform policy for Whois data and may end up with regional or national policies. The policy would depend on where the data is stored. This would not be unlike what we have with other industries that have private information. Rita Rodin completely agreed with that principle. She has concern if we continue to seek to have something uniform, then ICANN will have officials debating this forever.
Financial Approvals and Finance Committee Recommendations
Advanced Approval of Consolidated Travel Expenditures exceeding Officer Authority
The Chair advised that this is a question of approving consolidated travel expenses, noting that the Executive Committee recently had to approve a very large payment to American Express because we are consolidating all travel on one credit account. Although this provides better financial controls, it also means that the a recent payment due in October 2007 (which was $467,000) exceeds the authority limit of any officer or group of officers of ICANN to approve, even though the expenditures are within the currently approved ICANN Budget. Accordingly, the Chair requested that authority be provided to allow payments for budgeted travel expenditures to be made and a proposal has been received from staff and discussed in the Finance Committee. Doug Brent advised that a prepared resolution had been prepared with the assistance of General Counsel. Doug set out the proposed language, which is set out below as the approved resolution.
The Chair noted that this is a sensible thing to do and clears off the Executive Committee calendar. Steven Goldstein was very much in favor of the proposal, but inquired as to whether $600,000 was going to be enough.
Doug Brent advised that there may come a bill that’s bigger than that. The question is what number staff and Board are comfortable with. If a bill is received for more than the amount approved, Staff would return to the Board for approval.
The Chair offered an alternative to an absolute limit, would be to authorize to make a payment so long as the amount did not exceed the budget. The authority for the travel budget has already been generated.
Doug Brent advised that this could be managed. Paul Twomey agreed that he is comfortable with that as a resolution, but would like reporting back from management to the Finance Committee that payment has been made, and Doug Brent agreed. The Chair suggested staff might report regularly on travel expenses to the Board Executive Committee.
Bruce Tonkin suggested a report for each Board meeting that reports expenditure against the plan. Travel budget is x and year to date is y, so if half way through year and almost spent travel budget questions could be asked. Susan Crawford supported Bruce Tonkin idea for regular reporting. Doug Brent advised that such reporting could include a broad monthly financial reporting at the board level, as well.
The Chair asked if we could separate reporting out. There was acknowledgement by a number of Board Members that the Board is interested in reporting on a monthly basis.
The proposed resolution was offered for a vote by the Chairman, with regard to action on this resolution to allow expenditure not to exceed a cumulative approved budget for travel, Susan Crawford noted that the proposed resolution is set for a very limited time, to February 2008. Kevin Wilson confirmed that this would allow time for the Staff to submit revisions to the authorization policy to the Board Finance Committee and the Board. Doug Brent advised that he would like to come back with thorough proposal to cover all authorization issues so that we don’t have to take up additional board time on an ad hoc basis around this.
The resolution read as follows:
Whereas, ICANN has significant travel expenditures each month, which are included in the FY07-08 board approved budget;
Whereas, ICANN’s airfare and hotel booking costs were recently consolidated onto one primary American Express credit card;
Whereas, ICANN now receives invoices monthly of amounts in the mid six figures from American Express, which can easily exceed disbursement limits of ICANN staff;
Whereas, late payment of the American Express bill can cause ICANN to be forced to pay late fees, and possibly be declined coverage;
Whereas, department heads, the COO, and the CFO review all staff expense reports and the American Express bill in detail,
Whereas, within 6 months staff will propose a new disbursement policy for ICANN that will maintain adequate financial controls, allow more efficient processing of disbursements, and allow the board to focus on more meaningful and significant matters,
Resolved (07.82), the COO and/or CFO are authorized to make disbursements to American Express for invoices up to US$600,000 per month through February 2008 for travel related costs that are within budget guidelines.
A voice vote was taken of all Board members present and the motion was approved unanimously by a vote of 14-0.
Approval of Sydney Office Lease
Doug Brent advised that this matter comes to the Board from a recommendation of the Board Finance Committee. The existing facility lease has been brought to a close with fairly short notice by the existing landlord and it has always been part of the plan to relocate; however, our landlord has become adamant about moving us out of the existing temporary office space in Sydney. A number of alternative approaches were considered, and, the proposed option makes the most sense. This has been reviewed with the Finance committee and it is above budget, but the overage is not substantial and can be contained within the overall existing budget.
The Chair noted that Doug Brent has asked us to move expeditiously on this. He would like to entertain a motion to adopt the proposal to sign the contract for the Sydney office as proposed by staff.
Vanda Scartezini moved and Steven Goldstein seconded the following resolution:
Whereas, The ICANN Board of Directors approved opening an ICANN office in Sydney, Australia in November, 2006.
Whereas, ICANN intends to have a continued presence in Sydney Australia for the foreseeable future, and that this presence requires a physical office location.
Whereas, ICANN staff has evaluated alternative locations and options for office space in Sydney, Australia.
Resolved (07.83), the COO and/or CFO are hereby authorized to enter into a lease for office space in Sydney, Australia with monthly costs of up to US$10,000.00 (AUD 11,115.60 at current exchange rates) for a term of five years or less.
A voice vote was taken of all Board Members present and the motion was approved unanimously by a vote of 13-0.
John Jeffrey asked for a clarification of who was voting as two Board Members had dropped off the call during the discussion of this matter. It was determined and recorded for the record, that Peter Dengate Thrush was not available for this vote due to technical reasons, but rejoined during the discussion of the following matter.
Approval of Foreign Exchange Contracts
Kevin Wilson advised that this is a two-part resolution for foreign exchange contracts with Union Bank, which have been discussed and was being recommended by the Board Finance Committee. The first part is wording required by Union Bank allowing ICANN to enter into foreign exchange contracts; the second is simply reaffirmation of disbursement rules, and not based on risky hedging of currency.
Raimundo Beca moved and Steve Goldstein seconded the following the resolution. There was additional discussion as the Chair noted it sounds like a very sensible move on the part of Staff, and inquired as to the additional currencies in which ICANN currently makes payments to Staff. Kevin Wilson advised that yes, predominantly in Euros, Australian and Canadian currencies. The Chair asked if there are limitations on currencies, and Kevin Wilson advised that there were not.
The resolutions read as follows:
Whereas, ICANN processes a significant number of disbursements denominated in foreign currencies such as Euro, Australian dollars, and Canadian dollars in the normal course of business.
Whereas, ICANN’s disbursements, including those denominated in foreign currencies, are in compliance and will continues to be in compliance with the disbursement requirements set forth by the board of directors.
Whereas, ICANN has historically purchased foreign currency contracts on a spot basis (i.e., settled within 2 business days) in order to make disbursements in the requested foreign currency.
Whereas, ICANN desires to purchase foreign currency contracts on terms of up to 60 days in order to purchase the foreign currency at a lower cost to ICANN.
Whereas, ICANN desires to enter into foreign currency contracts through Union Bank of California.
First, it is hereby resolved (07.84), in order to meet the requirements of Union Bank of California’s foreign exchange department, that
any one of the following:
- Chief Operating Officer
- Chief Financial Officer
acting alone, is authorized in the name and on behalf of ICANN from time to time, by telephonic, electronic, oral or written means (a) to execute on behalf of ICANN and deliver to Union Bank of California, N.A. (“Bank”), the foregoing Foreign Exchange Agreement, and (b) to delegate the agents or employees of ICANN (“Authorized Representative”) the authority, acting alone or in combination, to take any or all of the following actions: (i) to enter into, execute or modify, upon such terms as such Authorized Representatives shall approve, any spot or forward purchase or sale of foreign exchange, any swap or option on foreign exchange, or any combination thereof (“FX Transaction”), (ii) to confirm any FX Transaction, (iii) to accept or direct the transfer to Customer or to any third party, or the disposition, of any funds payable to ICANN or to any third party, or the disposition, of any funds payable to ICANN pursuant to an FX Transaction and (iv) to verify any Payment Instruction.
Further resolved (07.85), that the authority given under this Resolution shall be retroactive and any and all acts so authorized that were performed prior to the formal adoption hereof are hereby approved and ratified. In the event two or more resolutions of Customer are concurrently in effect, the provisions of each shall be cumulative, unless the most recent shall specifically provide otherwise. The authority given hereby shall remain in full force and effect, and Bank is authorized and requested to rely and act thereon, until Bank’s Global Markets Group shall have received a certified copy of a further resolution of ICANN amending, rescinding or revoking this Resolution.
Also Second, it is hereby resolved (07.86), that the CFO and COO are authorized to enter in foreign currency contracts with the Union Bank of California: (i) using due care and strong internal controls; (ii) not to exceed the specific existing actual or predicted foreign currency denominated obligations due in the period of the contract; (iii) in no instance to exceed a term of 60 days; (iv) and in no instance to exceed the amounts for specific disbursements that the Board has authorized the CFO to make (currently set at US $25,000 alone, US $50,000 with a second officer, and $75,000 with the COO).
A voice vote was taken of all Board Members present and the motion was approved unanimously by a vote of 14-0.
Update on Annual General Meeting Tasks
The Chair advised that Board members that the General Counsel and Secretary wished to remind them that 1) they should be providing information to the Board Governance Committee relating to which Committees they are interested in serving on during the next board term, before the AGM, and 2) that Board Members should submit their conflicts of interest statements before the Los Angeles Meeting so that they can be reviewed by the Board’s Conflicts of Interest Committee.
The Chair advised that Steve Crocker had requested to raise the item of a ‘stability and security fund’. Steve Crocker said that the matter was directed to Paul Twomey, and is triggered by a note from SSAC on another matter on single letter domains, that the proceeds should go towards a ‘security and stability fund’. He noted that Paul has talked about this from time to time and if this is now being put forward as part of a specific proposal he would like to move it into the core of the organizations dialogue.
Paul Twomey advised that there was no proposal for such a fund formally on the table. He advised that the Board would see in the planned public posting of the strategic plan later this week, that there had been a lot of focus by the community on security and stability issues during the consultation process and in that consultation the exploration of resources and skills and interacting with other stakeholders had been raised as point for further exploration. It remained to see what further input was received on the issue in the next round of consultation on the Strategic Plan draft. Separate to this there was a public consultation on following the GNSO work on a call for the establishment of single letter second-level domain names. Paul indicated that there had been suggestions made during private conversations with registrars over the last 12 months or more that at least some of the proceeds from such a process should be dedicated to augmenting ICANN’s security and stability function and the idea of a fund to meet this targeted proceeds had been discussed. Paul also indicated that ICANN had received a fair amount of additional questions and interest about cyber-security, including Unique Identifier issues with botnet operations, and ICANN’s role in recent weeks and months.
Kurt Pritz advised that the GNSO Reserve Name Working Group established as part of work on new gTLDs, made a recommendation that single letters be released and proposed possible uses of revenue. Public consultation will be sought at the request of council. The Chair reflected that it seems that there would be significant opportunity to expend funds on security and stability, if we are in a position to enable progress in that dimension.
Susan Crawford raised concerns, in that it is not clear if it’s part of ICANN’s role to delve into issues about botnets, which seems to be being met by private actions in other parts of the world. If there is a fund, it should be considered openly.
The Chair said that it would helpful to have clarity on the tasks associated with such a fund.
The last item on the agenda has to do with status of various reviews.
Denise Michel advised that with regard to the GNSO review: the Board Governance Committee has a final draft of GNSO improvements final reports. Report was finalized and posted and there will be a workshop on Monday in LA to layout the recommendations.
On Nominating Committee review: Interisle is completing their report to Board and will be posted for comment as soon as this week. Interisle will be in LA and presenting their review at a workshop on Wednesday. They will also be available to brief the Board and other constituencies.
On ALAC review: the Board Governance Committee is considering applications from three responses to the RFP and will make decision soon. The ALAC Review Working Group will be a small group of current and former Board members who will manage the review. The charter and working group membership will be available soon.
With regard to the RSSAC review: a draft is currently with RSSAC, the Board Governance Committee will have a draft terms of reference posted for public comment at the end of this month.
The Chair noted that there is a lot of progress.
Steve Crocker noted that this is last telephonic Board meeting that the Chair will be leading under his tenure and in recognition of this occasion and event, he proposed formal recognition of Vint’s significant contributions by calling for 5 seconds of silence, noting that this will also be discussed in Los Angeles.
Peter Dengate Thrush suggested acclamation would be appropriate for what is an extraordinary contribution by the Chair, particularly the telephonic meetings, where we always think you’re sitting at board room surrounded by staff, but understand that the conditions are generally not ideal and that the Chair gets through great deal of work from various parts of the world. Steve Crocker agreed noting that Vint was currently traveling in Asia, where it was just coming up on 6.00 AM.
Jean-Jacque Subrenat noted that this is his first teleconference and he is impressed by the precision and depth of knowledge and resourcefulness of the Chair and thanked him.
The Chair thanked the Board Members and Staff for their words and noted that none of this works without them. The Chair looks forward seeing everyone face-to-face in LA.
Steve Goldstein moved a motion to adjourn and the Chairman Vint Cerf called for objections, of which there were none, and formally adjourned the meeting.
Meeting closed at 2.33 PM U.S. Pacific Daylight Time (PDT).