Minutes | Special Meeting of the ICANN Board
A Special Meeting of the ICANN Board of Directors was held telephonically on 27 June 2013 at 21:00 UTC.
Steve Crocker, Chair, promptly called the meeting to order.
The following Directors participated in all or part of the meeting: Sébastien Bachollet, Fadi Chehadé (President and CEO), Cherine Chalaby, Bertrand de La Chapelle, Chris Disspain, Bill Graham, Olga Madruga-Forti, Erika Mann, Gonzalo Navarro, Ray Plzak, George Sadowsky, Bruce Tonkin (Vice Chair), Judith Vazquez, and Kuo-Wei Wu. Mike Silber sent apologies.
The following Board Liaisons participated in all or part of the meeting: Francisco da Silva (TLG Liaison), Heather Dryden (GAC Liaison), Ram Mohan (SSAC Liaison), Thomas Narten (IETF Liaison), and Suzanne Woolf (RSSAC Liaison).
The following ICANN staff participated in all or part of the meeting: Akram Atallah, Chief Operating Officer; John Jeffrey, General Counsel and Secretary; David Olive, Vice President, Policy Development Support; Megan Bishop, Michelle Bright, Samantha Eisner, Kim Davies, Elise Gerich, Allen Grogan, Dan Halloran, Jamie Hedlund, Margie Milam, Cyrus Namazi, and Amy Stathos.
Jonne Soininen was present as an invited observer.
- Consent Agenda
- Main Agenda
- Executive Session
The Chair opened up the meeting. Prior to introducing the Consent Agenda, the Chair and the President and CEO provided a status update on the planning and logistics of the upcoming ICANN meeting in Durban, South Africa on 14-18 July 2013.
The Chair introduced the items on the Consent Agenda. Sebastian Bachollet requested, and the Chair agreed, that the confidential matter before the Board be moved off the Consent Agenda to the Main Agenda -- Executive Session. George Sadowsky moved and Sebastian Bachollet seconded the resolutions in the Consent Agenda and the Board took the following action:
Resolved, the following resolutions in this Consent Agenda are approved:
Resolved (2013.06.27.01), the Board approves the minutes of the 18 May 2013 Regular Meeting of the ICANN Board.
Whereas, the Security and Stability Advisory Committee (SSAC) does review its membership and make adjustments from time-to-time.
Whereas, the SSAC Membership Committee, on behalf of the SSAC, requests that the Board should appoint Ben Butler to the SSAC.
It is resolved (2013.06.27.02) that the Board appoints Ben Butler to the SSAC.
The SSAC is a diverse group of individuals whose expertise in specific subject matters enables the SSAC to fulfill its charter and execute its mission. Since its inception, the SSAC has invited individuals with deep knowledge and experience in technical and security areas that are critical to the security and stability of the Internet's domain name system.
The SSAC's continued operation as a competent body is dependent on the accrual of talented subject matter experts who have consented to volunteer their time and energies to the execution of the SSAC mission. Ben Butler brings valuable skills to the SSAC. Specifically, he brings his experience as Director of Network Abuse at GoDaddy, a large registrar. Also, Mr. Butler brings experience as a host provider and contacts with other host providers, both of which are needed additions to the SSAC. Finally, he brings his strong knowledge of DNS abuse issues.
Whereas, ICANN and Street Solutions have negotiated in good faith the terms for a proposed statement of work for the development of the Automated Registrar Onboarding System (AROS);
Whereas, the Board has reviewed the terms of the proposed Statement of Work for ICANN;
Whereas, approval is required to commit ICANN funds in the amount of USD $650,450;
Whereas, execution of the agreement enables the development of this tool to support Registries and Registrars accreditation;
Resolved (2013.06.27.03), the Board authorizes the President and CEO to enter into the proposed agreement with Solutions Street.
Resolved (2013.06.27.04), the request to approve the contract with Solutions Street for the development of the Automated Registrar Onboarding System (AROS) is approved.
ICANN's Disbursement Policy limits ICANN officers from contracting for or disbursing more than US $500,000.00 per obligation. ICANN is therefore adhering to its policy in seeking the Board's approval to enter into these contractual obligations that exceed the $500,000 per obligation item. ICANN identified a vendor to build the AROS system and the contract with the vendor is estimated at $650,450, including license.
The proposed solution is an Automated Registrar Onboarding System (AROS) for ICANN accredited Registrars. The system described in this document is intended to provide Registrars with a consistent user interface for managing information about their Registrar and when requesting accreditation by (primarily) Generic Top-Level Domain Registries, a workspace in which Registries can manage accreditation requests from Registrars, and an administrative interface that allows an ICANN-designated Administrator to manage AROS.
The requirements for the system were developed by the Working Group (WG) composed of representatives from the Registry and Registrar stakeholder groups, ICANN staff and an outside consultant specialized in requirements. The representatives from the registry and registrar groups (three of each) are volunteers identified by the respective stakeholder chairs. In addition to the working team described, staff has conducted surveys with registries and registrars on two occasions to validate the requirements.
The Board's approval of entering into this contractual obligation will have a positive impact on the community because it will allow for a more timely and efficient way for the registries and registrars to contract. By doing that, ICANN is empowering a more competitive and efficient environment. There are fiscal impacts on ICANN but all of those impacts have been anticipated in the approved FY 2013 and draft FY 2014 budgets. There will not be any security, stability or resiliency issues relating to the domain names system.
Fifteen members of the Board approved Resolutions 2013.06.27.01, 2013.06.27.02, 2013.06.27.03, and 2013.06.27.04. Mike Silber was unavailable to vote. The Resolutions carried.
The Chair provided a summary of the .ID and .EE redelgation requests and the .MOH delegation request.
The Chair explained that these items were moved from the consent agenda to the main agenda for discussion on whether the proposed rationales are sufficiently detailed to explain to the community what ICANN is doing and why ICANN is doing it.
Kuo-Wei Wu said that the process of reviewing delegation or redelegation requests should follow the procedures set forth under the IANA Functions Contract. The IANA Department performs the review of the request, and submits a request for delegation or redelegation to the Board after the IANA Department determines the criteria for the request has been met. Any follow up questions from the Board on the specific content of a request must be sent back to the IANA Department to address, following process.
Bruce Tonkin noted that the IANA Department manages a webpage containing detailed reports of delegations/redelegations. He suggested providing a link to the webpage in brief Board resolution as a possible solution.
The President and CEO asked the Chair for clarification as to why the Board is involved in the delegation/redelegation process rather than this being an IANA Department function.
The Chair explained that the approval of ccTLD delegation/redelegation has historically been moved up the chain and put in front of the Board because of the import of the decision. Over time, there has been a question where the line between oversight of process vs. decision should be drawn. The most recent IANA Functions Contract now distances the Board from the delegation/redelegation process, though the Board still maintains oversight of the process.
The President and CEO asked (1) what the IANA Committee ("IC") is doing if these requests have to come up to the Board and whether the IC can take care of the checks; and (2) what needs to be done so that the oversight is not at the Board level?
The Chair acknowledged that the President and CEO's questions are directly relevant and suggested that these questions be addressed in two separate conversations – one on Board process and another on the interaction of all the moving parts. The Chair committed to getting the questions answered and closure on these issues over the next few weeks.
Bertrand de La Chapelle noted that the rationales on the current version of the resolutions have been heavily modified from the previous version and introduce some new important statements. He expressed concerns over the formulation of these statements and inquired as to the best way to forward his comments/suggestions.
Chris Disspain suggested that the Board continue the discussion regarding the .ID and .EE redelegation requests and .MOH delegation request to the next Board meeting in Durban, South Africa to allow further discussion on the rationales. He noted that there were two issues on point. The first issue concerns the actual resolutions for the delegation and redelegation requests. The second issue is the higher one regarding the overall process.
Francisco da Silva also suggested these items be discussed at a face-to-face meeting.
The Chair agreed to continue the resolutions to the Durban meeting. The Chair suggested that the discussions regarding the overall principles and process for consideration of ccTLD delegation and redelegation requests and the role of the Board in these matters take place in a Board workshop in Durban before putting it on the agenda for a formal meeting.
Kuo-Wei requested that Board members send their comments to the IANA Department in advance of the Board workshop so as to allow the IANA Department time to prepare all the documentation necessary for the face-to-face meeting.
The President and CEO agreed with Kuo-Wei's comment, and asked Bertrand to type up his comments/suggestions regarding the .ID and .EE redelegation requests and .MOH delegation request. Ray Plzak agreed.
Bertrand supported the decision to move the discussions to the Durban meeting. He noted that while he had no issue with the formulations that were in the Board book, he had issues with other modifications, particularly the wording, and committed to providing his comments in advance of the Durban meeting. With respect to the issue of the Board's role in the overall process, Bertrand noted that there was a very conscious intent to limit and very closely circumscribe the responsibilities of ICANN and the Board, and he was interested in discussing the rationale behind that and why those specific formulations were chosen.
Kuo-Wei noted that the workshop discussion should only be about format and procedure, and not a particular ccTLD. The Chair agreed.
Chris Disspain introduced the issue. There is a request from the ccNSO Council for the implementation of a second panel to perform a second evaluation step for string similarity review in the IDN ccTLD Fast Track Process. This is intended to be a test to experiment with the addition of a new panel in the Fast Track to make sure that this works. The Extended Process Similarity Review Panel ("EPSRP") would provide the IDN ccTLD Fast Track applications that were not passed by the first review panel an opportunity to be reviewed again by the EPSRP during the Fast Track process rather than waiting for the full IDN ccTLD policy to be both passed and implemented.
Ram Mohan advised that his previous concerns on this issue—understanding the differences in the process for IDN ccTLDs as compared to the gTLD process—have been resolved. First, there is a path forward for the root LGR procedures to get added in. Second, there is an action coming out of this Board meeting that will allow Ram to send a note over to the ccNSO Chair, copying Chris, which will then be converted into a policy update on the ccNSO side. Accordingly, he is prepared to have this resolution move forward.
Sebastian Bachollet suggested revising the resolved clauses so that the written description of the EPSRP matches what Chris described. It appears from the wording of the resolution that the second and first panels decide the same thing, one after another, which is not the case.
Olga Madruga-Forti asked for explanation of the standard that would be used by the EPSRP for the string similarity review and how it compares to what the GAC has asked the Board to reconsider regarding the Fast Track.
Chris explained that the two processes are completely separate. The ccTLD IDN policy deals with a different set of circumstances than in the New gTLD Program. For ccTLDs, the policy only concerns IDNs, not ASCII-based strings. The set of IDNs is very limited. However, there is an issue that exists in certain scripts where many letters are similar to those in other scripts, such as Cyrillic compared to ASCII. In those circumstances, it is possible to have an applied-for IDN string in Cyrillic that a country believes represents their country in Cyrillic look identical to or very similar to a two-letter ASCII country code, or possibly a currently three-letter gTLD ASCII code. In the Fast Track, the string similarity review panel makes its determination around that technical issue. The criteria utilized by the panel that reviews these issues are similar to the criteria utilized by the panel that reviewed string similarity in the new gTLD process. This has created some issues for the ccTLD community, because the evaluation has been done on a purely technical basis. And for that reason, the ccTLD community has decided that there should be an ability for an unsuccessful Fast Track applicant to have string similarity reviewed a second time in a slightly different way.
Thomas Narten asked how the first review panel differs from the second review panel.
Chris explained that the second panel is an entirely separate process that is undertaken by scientists who have an understanding of how people see text and how their brains process it. As documented in the background papers, a huge amount of work has been accomplished to find a way of having a back-stop position that is not just a purely technical look at the two characters or three characters within the string.
Thomas asked how this relates to back to the New gTLD Program and whether a similar second evaluation would be possible in the next phase of the New gTLD Program.
Chris said that may be a possibility but stressed that the ccTLD and gTLD evaluation processes are separate.
The Board discussed a proposal to add the word "appeal" in the resolution to describe the EPSRP. The General Counsel and Secretary suggested alternative words. Chris reiterated that this is not an appeal. An appeal implies that the same criteria are considered. The criteria utilized by the second panel are much deeper than that utilized by the first panel. The Board agreed that no amendment was needed.
Ram Mohan asked for clarification as to whether the two panels will follow one another in sequence in every case.
Chris clarified that the intent is not to have both panels reviewing every application. The process that is outlined in the documents clearly states that the applicant has a right to a second panel review in the event the first panel refuses the application.
Kuo-Wei Wu asked whether the proposed resolution conflicts with the NTIA contract for the IANA Functions.
The General Counsel and Secretary advised that there would be no conflict between this resolution and the NITA contract.
Chris confirmed that the IDN ccTLD Fast Track process is a pre-process to ccTLD delegation. It happens before the application for a delegation is made to the IANA Department. Once the Fast Track process is completed, the application still has to go through the proper IANA Department process. The NTIA contract is not relevant to until the IDN ccTLD application reaches the IANA Department phase.
Chris moved and the President and CEO seconded the proposed resolution.
The Board then took the following action:
Whereas, the ICANN Board of Directors approved the Fast Track Implementation Plan on 30 October 2009 (http://www.icann.org/en/minutes/resolutions-30oct09-en.htm#2);
Whereas, under the IDN ccTLD Fast Track process, one independent panel performs both the technical and string similarity evaluation (the DNS Stability Evaluation);
Whereas, the ccNSO developed and the ccNSO Council passed the recommendations for the IDN ccTLD String Selection Policy to include a two-panel process for string similarity evaluation (http://ccnso.icann.org/node/38787 [PDF, 117 KB]);
Whereas, ICANN has received multiple inputs and advice from the community calling for additional transparency and consistency of the string similarity evaluation, including Advice from the Governmental Advisory Committee;
Whereas, the ccNSO chairperson sent a request to the ICANN Board of Directors to implement the two-panel process for string similarity review in the IDN ccTLD Fast Track Process;
RESOLVED (2013.06.27.05), the ICANN Board of Directors approves amending the Fast Track Implementation Plan to implement the two-panel process for string similarity review in the IDN ccTLD Fast Track Process. The President and CEO is directed to incorporate the amendment into the Fast Track Implementation Plan previously adopted by the ICANN Board on 30 October 2009 (amended on 8 December 2011) and implement the amendment as soon as practicable.
RESOLVED (2013.06.27.06), the ICANN Board of Directors approves amending the Fast Track Implementation Plan to allow for all pending requests for IDN ccTLD strings under the Fast Track Process to have the option to request evaluation by the new Extended Process Similarity Review Panel (EPSRP) once the EPSRP is comprised.
Twelve members of the Board approved Resolutions 2013.06.27.05 and 2013.06.27.06. Kuo-Wei Wu opposed. Ray Plzak and Sebastian Bachollet abstained. Mike Silber was unavailable to vote. The Resolutions carried.
Why is the Board addressing this issue now?
The ccNSO IDN ccTLD PDP is nearing its completion. One of the proposals under the expected policy recommendation is to introduce a two–panel mechanism for the confusing similarity review of requested IDN ccTLD strings. As one of the purposes for the introduction of the IDN ccTLD Fast Track is to experiment with a methodology for the selection of IDN ccTLD strings, thereby, informing the ccNSO Policy Development Process while meeting near-term demand for the introduction of IDN ccTLDs. The introduction of the two-panel mechanism as a test bed within the Fast Track Process allows for testing and refining, if needed, of the proposed two-panel mechanism and methodology. Modifying the Fast Track Process in this way is also expected to achieve the goal of meeting near-term demands for the continued introduction of IDN ccTLDs. Finally, the community has long been calling for a modification to the string similarity review within the Fast Track Process, and following the ccNSO's guidance here will enhance ICANN's accountability.
What is the proposal being considered?
The proposed modification to the Fast Track Implementation Plan is to introduce a second, independent expert Panel to review IDN ccTLD Fast Track strings regarding confusing similarity. This is in addition to the existing string similarity review panel. The proposal also calls for all pending Fast Track IDN ccTLD string requests, including those that have previously failed the string similarity review, to have the option of requesting that their application be reviewed by the EPSRP. This will allow all pending and future applications to go through consistent evaluations, while having no impact on those applications have already successfully passed through the Fast Track Process. Those that successfully passed would never have needed to proceed to the EPSRP in any event.
Which stakeholders or others were consulted?
The string similarity topic was the focus of the two annual reviews of the IDN ccTLD Fast Track Process to date. It has been discussed at public sessions held during ccNSO meetings since the ICANN San Francisco meeting in March 2011.
In April 2013, the ccNSO Council adopted the Final Report on the IDN country code Policy development process (http://ccnso.icann.org/workinggroups/idn-ccpdp-final-29mar13-en.pdf [PDF, 376 KB]).
This Report includes the proposals of IDN ccPDP working group 1(IDN ccPDP WG 1), which have gone through extensive public consultations. IDN ccPDP WG 1 focused on the development of draft policy recommendations for the selection of IDN ccTLDs associated with the territories listed in the ISO 3166-1 list, which in time should replace the IDN ccTLD Fast Track methodology. The proposals include the introduction of two panels for the string confusion similarity validation, whereby the second panel provides a final and definite review of the string, based on scientific research. Public comment received during both annual reviews, support the introduction of the second panel. In addition the Governmental Advisory Committee advised, among others, the ICANN Board to:
- Reconsider recently refused IDNs under the Fast Track Process, in particular those nominated by public or national authorities.
- To create a mechanism of appeal that will allow challenging the decisions on confusability related to proposed IDN ccTLDs, without prejudice to the previous bullet and for transparency and accountability purposes.
While the EPSRP is not an appeals process, it will serve to provide a different type of string similarity review on a separate basis from the existing string similarity panel. The introduction of the EPSRP will also provide a path for review of those IDN ccTLD Fast Track Applicants that did not successfully pass the existing string similarity panel review. In this way, taking this action will address the ccNSO's community-built recommendations as well as GAC advice.
Are there fiscal impacts or ramifications on ICANN?
This amendment will have a budgetary implication in that ICANN will have to empanel a second group of experts to perform a second and final validation of the requested IDN ccTLD string. This amendment is not expected to have an impact on the security or stability of the DNS.
Following the vote on Resolutions 2013.06.27.05 – 2013.06.27.06, the Board members discussed a process for dealing with controversial issues, and agreed that the issue should be referred to the Board Governance Committee for further consideration.
The Chair presented the agenda topic to the Committee. The General Counsel and Secretary called for a conflicts of interest check. Ram Mohan and Bruce Tonkin noted that they were abstaining from consideration of this matter due to potential conflicts of interest. The Board agreed that Ram and Bruce may be present during the discussion but Bruce must abstain from voting on the matter.
Akram Atallah led the Board's discussion of the 2013 Registrar Accreditation Agreement (RAA), noting that this is a major milestone. The parties have been negotiating this agreement for over years and there is finally a version on which ICANN is in agreement with the registrars' negotiating team. The draft agreement was posted for public comment. Following the close of the public comment period, the comments were summarized and posted. ICANN reviewed the public comments with the registrars, as well as changes resulting from the public comments. ICANN implemented some clarifications requested through the public comments. The registrars' negotiating team was very accommodating and worked with ICANN on the language. The proposed 2013 RAA contains a lot of progress over the 2009 agreement, including the addition of terms to address the 2009 law enforcement recommendations as well as providing a clear path for negotiation and amendment to the RAA. Both parties are now looking to move forward with the new agreement and for the Board ratify it.
Erika Mann asked for clarification on the wording of the rationale, and recommended some changes to wording that was accepted. She also asked whether the different data retention obligations under the law enforcement recommendations have changed from the discussion a year ago. Erika noted that the legal environment, including the data retention obligations, are different and she doesn't want ICANN to face any liability issues.
Akram commented that the data retention obligation in the proposed 2013 RAA is "per applicable local law" and deferred to Samantha Eisner.
Samantha advised that the data retention obligations are similar to the data retention obligations that were within the 2009 RAA, though there is more detail on the items of data that need to be retained. A new component of the data retention requirements is a very detailed process for how registrars can seek a waiver from ICANN in the event that any of those obligations are inconsistent with their national laws. The registrars have been very happy with this development. They, particularly those from Europe, have identified that it will be extremely helpful in how they can work with the RAA.
Erika remarked that this is a good turn of events.
Judith Vasquez stated that she received confirmation that there was a level of comfort from the community regarding the current draft of the 2013 RAA.
Bertrand de La Chapelle asked whether the reference to "12 LEA requests were the fundamental basis for re-opening the negotiation on the RAA" was accurate. According to his recollection, when he was in the GAC and they passed the 12 LEA requests, the concept of renegotiating the RAA was already underway. Bertrand wondered if there was a benefit to highlighting this fact.
The General Counsel and Secretary confirmed the accuracy of the statement.
The Chair stated that, according to his recollection, the negotiations have been under way for quite some time. And then in Dakar, the GAC took the Board to task for not making progress on behalf of the law enforcement community. The Board then passed a resolution to jump-start the negotiation process, and there has been vigorous negotiationever since then.
Thomas Narten clarified that at the time of the Board's Dakar resolution, the RAA discussions were stalled. Though it was agreed there would be a renegotiation following the approval of the RAA, and that effort started, it later stalled. The impetus of restarting the negotiations was from the law enforcement recommendations.
Bertrand de La Chapelle clarified that the 12 LEA requests were not the basis for re-opening the negotiations but rater the impetus to re-open.
Judith stated that it is inappropriate to touch the contents of the draft RAA, which has already been agreed up on by ICANN management and the registrars negotiating team.
Erika and the Chair agreed with Judith. Erika noted that the Board is not making any changes to the document.
The Board discussed generally the number of registrars expected to sign the 2013 RAA. Bruce Tonkin noted that the registrars had selected a team to negotiate with ICANN Staff. Once the Board approves the agreement, then each registrar will seek its own legal advice as to the timing of signing. While the registrars do not have to sign a new RAA until their agreement expires, they understand that they will need to enter into a new agreement to be able to offer second-level registrations in the new gTLDs.
The Chair stated that there are two important measures to the numbers of registrars expected to sign the 2013 RAA -- how many of the registrars are represented, and how may registrants are represented. With respect to the first measure, Akram previously advised the Board that the registrars negotiating team properly represented the entire registrar community.
The President and CEO moved and Chris seconded the proposed resolution.
The Board then took the following action:
Whereas, ICANN and a group selected by the Registrar Stakeholder Group, the Registrar Negotiating Team, have been negotiating amendments to ICANN's 2009 Registrar Accreditation Agreement (RAA) since 2011.
Whereas, the negotiations have resulted in the proposed 2013 RAA, that addresses all 12 recommendations provided in 2009 from law enforcement, as well as other revisions.
Whereas, ICANN is committed to having the 2013 RAA in place before the delegation of gTLDs through the New gTLD Program.
Whereas, ICANN and Registrars require sufficient time to transition to the terms of the 2013 RAA, and Board approval will provide the necessary surety of the applicable terms.
Resolved (2013.06.27.07), the Board approves the form of the 2013 RAA.
Resolved (2013.06.27.08), the President and CEO is directed to take all necessary steps to proceed to execution of the 2013 RAA with all eligible Registrars and registrar applicants.
Resolved (2013.06.27.09), the Board thanks the Registrar Stakeholder Group, and particularly the members of the Registrar Negotiating Team, for their dedication, time and effort in the negotiation process.
Fourteen members of the Board approved Resolutions 2013.06.27.07, 2013.06.27.08, and 2013.06.27.09. Bruce Tonkin abstained. Mike Silber was unavailable to vote. The Resolutions carried.
Why is the Board addressing this issue now?
The long-standing negotiations on the 2013 RAA have come to a successful close, and a proposed 2013 RAA was presented to the Board. It is important for the 2013 RAA to be approved at this time, as the Board has accepted the GAC Advice in the Beijing Communiqué that the "the 2013 Registrar Accreditation Agreement should be finalized before any new gTLD contracts are approved." Approving the 2013 RAA now allows the Board to meet this advice. In addition, ICANN has made multiple representations to the community that the 2013 RAA will be in place prior to the delegation of new gTLDs. Approving the 2013 RAA now also gives ICANN and the registrars certainty of the new terms that will be applicable, and allows both ICANN and the registrars to move forward with implementation work to meet the heightened obligations. Finally, the ICANN community has been long awaiting the new RAA after following the negotiations since the end of 2011.
What is the proposal being considered?
The 2013 RAA includes provisions addressed to protect registrants through a further updated contractual framework. The 2013 RAA reflects hard-fought concessions on many of key issues raised throughout the negotiations, as well as issues raised within public comment. The 2013 RAA, represents a significant improvement over the current 2009 version, and significantly raises performance requirements for every ICANN accredited registrar, thereby bringing dramatic improvements to the domain name ecosystem.
The highlights of this proposed 2013 RAA include:
The 12 Law Enforcement Recommendations that served as the impetus for these negotiations are all addressed in this proposed draft. The attached Law Enforcement Summary Chart identifies the section or specification of the 2013 RAA that addressed each recommendation. Some of the highlights include the creation of an abuse point of contact at each registrar, Whois verification and validation requirements at the registrant and the account holder levels, stronger language on registrar obligations for resellers, and new data retention obligations.
Enhanced Compliance Tools including broader suspension and termination tools, clarification of audit rights and access to information to facilitate ongoing investigations, and annual certification requirements.
A Registrant Rights and Responsibilities Document that sets out, in clear and simple language, the rights and responsibilities that are set out in the 2013 RAA, such as the types of information that registrants can expect to be made available to them about terms and conditions of registrations, fees and customer service processes. The document also emphasizes the registrant's role in providing accurate contact information, and responsibilities in maintaining domain name registrations. These enumerated rights and responsibilities are not comprehensive of all registrant rights and responsibilities set out in consensus policies, however this document is closely tied to the terms of the 2013 RAA.
Registrar Responsibility for Reseller Compliance with all appropriate terms of the RAA.
Consolidation with the Registry Agreement for New gTLDs. Where appropriate, ICANN and the Registrar NT have agreed to mirror language from the Registry Agreement, to allow for contracts that are better aligned. The New gTLD Registry Agreement and the 2013 RAA are anticipated to complement each other as Registries and Registrars move towards agreements that better reflect the changing marketplace.
Proxy and Privacy Provider Interim Requirements. ICANN and the Registrar NT have agreed to interim protections that will be in place for proxy and privacy services offered through registrars. These interim protections will require that information is made available on items such as customer service processes and when a provider will relay information on the underlying user of the domain name registration. While these are not comprehensive of the protections that some have requested to be put in place for proxy and privacy providers, these interim protections will provide a more responsible marketplace until a formal accreditation program is developed.
Which stakeholders or others were consulted?
The RAA negotiations were initiated because of proposals raised by the law enforcement community. Throughout the negotiations, ICANN and the Registrar NT consulted with representatives of law enforcement and the Governmental Advisory Committee (GAC) regarding how the 12 law enforcement recommendations were implemented. A summary of how the law enforcement recommendations were integrated into the 2013 RAA is available at http://www.icann.org/en/news/public-comment/proposed-raa-22apr13-en.htm. The GAC noted its appreciation for the improvements to the RAA that incorporate the 2009 GAC-Law Enforcement Recommendations, and also noted that it is pleased with the progress on providing verification and improving accuracy of registrant data and supports continuing efforts to identify preventative mechanism that help deter criminal or other illegal activity.
In addition to consultations with law enforcements and the GAC, ICANN has hosted public, interactive sessions on the RAA negotiations at the Costa Rica, Prague, Toronto and Beijing meetings. Upon request, representatives from ICANN staff also made presentations to the GNSO Council, At-Large working groups, various constituencies and stakeholder groups in the GNSO, and law enforcement representatives. In addition, ICANN has posted three versions of the RAA publicly, with public comment sought in March 2013 and April 2013. The 22 April 2013 public comment was over the proposed final 2013 RAA, which included all agreements between ICANN and the Registrar NT. Nineteen commenters participated in the 22 April 2013 comment forum, including representatives of the Registrar Stakeholder Group, the ALAC, the Intellectual Property Constituency and the Business Constituency. In support of the posting of the proposed final 2013 RAA, ICANN hosted an interactive webinar in May 2013 that was attended by more than 100 attendees on the phone and in Adobe Connect.
After review of the public comments, ICANN also consulted with the Registrar Negotiating Team again to confirm the Registrars' support for identified changes.
What concerns or issues were raised by the community?
Throughout the course of the negotiations, concerns have been raised on variety of issues within the proposed RAA, which were taken into the account in the negotiations. For example, there was significant concern raised in parts of the community regarding over-development of proxy and privacy service standards outside of the policy development process. As a result, ICANN and the Registrar NT identified a solution that set out minimum standards for registrars to impose on proxy and privacy services offered at registration, while setting out a path to community involvement in the development of a Proxy/Privacy Accreditation Program. However, this did not alleviate all concerns in this area, nor were all concerns able to be handled in this fashion.
With this last posting of the proposed 2013 RAA, the main areas of concern raised were the following:
For Whois Accuracy, the IPC, BC and other commenters supported the use of pre-resolution verification, as opposed to allowing a 15-day window after resolution within which the verification could occur. This request for pre-resolution verification has been raised previously in the negotiations, and because of the potential for large change to the domain name registration process, as well as the ongoing work to create a new method of dealing with gTLD Registration Data, it was determined – and explained to the community – that the pre-resolution verification was not feasible for introduction at this time, without further community work and development.
Similarly there have been requests for verification of both an email and phone number, over registrar and other's concerns that it is not always feasible – and in some areas of the world nearly impossible – to perform phone verification. Further changes in this areas were also deferred in favor of the ongoing work on gTLD Registration Data.
For registrations through proxy and privacy service providers, multiple commenters called for (as they had been calling for throughout the RAA development process) verification of the data of the underlying customer. As we previously explained to the community, the forthcoming policy work on a Proxy and Privacy Accreditation Program will be place to develop these sorts of requirements, as the lines of enforcement will be clearer in that situation. In addition, many in the community opposed the introduction of this type of requirement at this time. Similarly, the community is currently not in consensus on the mechanism for more explicit requirements for the reveal and relay of underlying customer data, and though many have commented that ICANN should put those types of requirements in place now, that work has also been deferred to the larger community-based policy work on Accreditation. One common concern recently raised in regards to the proxy/privacy obligations set forth in the 2013 RAA was that we needed to be clearer about the applicability to resellers, and ICANN has taken that change on and it is reflected in the 2013 RAA as approved by the Board.
Some commenters raised concerns about the new Registrant Rights and Responsibilities document, suggesting that it does not go far enough in recognizing more general rights and responsibilities. Because of the specific purpose of the Registrant Rights and Responsibilities specification – which is to track to the terms of the 2013 RAA – we have clarified the title of the document. If the community wishes to produce a broader declaration of the rights and responsibilities, nothing within the 2013 RAA would preclude that work.
Some commenters noted concerns that the amendment processes put in place were too onerous for ICANN in the event that it wished to put an amendment in place over the objection of the Registrars. However, ICANN believes that the Board-approved amendment process reflected in the 2013 RAA is a balance that recognizes the role of policy development in the multistakeholder model, and though complex, provides a powerful mechanism in the event it ever needs to be invoked.
While commenters were generally supportive of the 2013 RAA and the advancements that it brings, many of those same commenters noted dissatisfaction with the process that led to the development of the 2013 RAA. Many were dissatisfied that the negotiations were bilateral, without even an opportunity for community observation of the negotiation sessions, let alone the ability to propose language during the negotiations. While it is too late to modify the process used previously, it is important to recall that the RAA itself did not include any path to negotiation; the process to be used was not clear. To help assure that the community will have a voice in future amendments to the RAA, the RAA now incorporates specific public comment requirements when amendments are under consideration or negotiations have been initiated.
Included here is a summary of some of key concerns raised. A full summary and analysis of the comments on the proposed final RAA (posted at http://www.icann.org/en/news/public-comment/report-comments-proposed-raa-21jun13-en.pdf [PDF, 188 KB]) has also been considered as part of the decision on the RAA. That summary and analysis also identified areas where the 2013 RAA reflects modifications in response to comments received.
What significant materials did the Board review?
The Board reviewed the:
- 2013 RAA and incorporated Specifications
- Summary of Changes between the 2013 RAA and the 22 April 2013 Version
- Final Clarifications to RAA after Consultation with Registars
- 22 April 2013 Public Comment Summary and Analysis
- March 2013 Public Comment Summary and Analysis
- Summary of Addressing Law Enforcement Recommendations
- GAC's Beijing Communiqué
What factors the Board found to be significant?
The Board found that many factors significant in reaching this decision. First is the intense participation of the Registrar NT and the statements of support that have been made by the Registrar community for this 2013 RAA. Second, the fact that the 2013 RAA incorporates the 12 GAC-Law Enforcement Recommendations, which was the basis for opening the negotiations, as well as the GAC's support for the results of the negotiations is a major factor in support of the 2013 RAA. Further, though there are areas where the ICANN community would like to see changes to the 2013 RAA, the community statements are overwhelmingly in favor of the advancements achieved in this new RAA. The fact that there are paths for the continuation of work on the major areas that the community has identified as concerns, including the Expert Working Group on the gTLD Registration Data and the work towards a Privacy/Proxy Accreditation Program, allows community discussion to continue on some of the more challenging issues raised within this negotiation that have not been solved to the level that some in the community wish. The improvements in the 2013 RAA, including the enhanced compliance tools, advancements in Whois, clearer obligations of resellers, are timely and should be in place prior to delegation of new gTLDs, so that all gTLDs entered through the New gTLD Program will be covered by these terms.
Finally, the Board found significant that the Registrar Stakeholder Group is supportive of the 2013 RAA.
What alternatives were considered by the Board?
Because of the path that the 2013 RAA took to come to the Board, the Board has not considered any alternatives other than the alternative of delaying the approval of the agreement. However, the Board did review the community recommendations of the items that should be added to or removed from the 2013 RAA as alternatives.
Are there positive or negative community impacts?
The introduction of the 2013 RAA is expected to have positive impacts, as the changes that are going to be put in place with the enhanced obligations are expected to result in a maturing of the role of registrars within the DNS. The 2013 RAA will give tools to ICANN, Registrars and registrants for clearer understanding of obligations, rights and access to information. The biggest risk for the development of negative impacts will come from lack of understanding of the new obligations – registrants and registrars alike will face new requirements. Educational efforts can help counter these negative impacts.
Are there fiscal impacts or ramifications on ICANN (strategic plan, operating plan, budget); the community; and/or the public?
The new obligations under the 2013 RAA will impose fiscal ramifications on registrars, as they have new operational obligations to meet under the agreement and they will need to revise systems and processes to meet these obligations. The 2013 RAA includes a transitional term to give time for implementation. ICANN similarly will have to revise its contractual enforcement efforts, which may have a minimal fiscal impact, as the growth of the Contractual Compliance Team has already been included with the budget. The educational outreach necessary to help assure that Registrars and registrants alike understand these new obligations will also impose require fiscal resources from ICANN. There is a potential that increases in registrar operational costs will result in increase of prices to consumers, but there is no documentation available at this time to support that this will occur.
Are there any security, stability or resiliency issues relating to the DNS?
The 2013 RAA, which includes technical requirements such as support of IDNs and DNSSEC, will contribute to the maintenance of the security, stability and resiliency of the DNS.
This is an Organizational Administrative Function for which public comment was received.
Following the vote, the Chair thanked and congratulated Staff for a "stellar piece of work." The President and CEO thanked Akram, as well as Akram's team, Cyrus Namazi, Samantha Eisner and Margie Milam for the work done to bring the negotiations to a conclusion. This is a real milestone for ICANN.
Bruce commented on the importance of an education campaign given that there are a quite a few significant changes in the agreement. The Chair agreed.
The Chair also noted that the discussions about privacy considerations and observing local laws should be brought into the Expert Working Group ("EWG"), which is trying to develop a comprehensive next generation directory service.
The President and CEO agreed with the Chair and requested that staff carry this work through to the EWG. The President and CEO also agreed to direct the new ICANN communications lead, Duncan Burns, to put together a good, clear communication campaign to clarify what is in the RAA, what we have accomplished, and how it will serve the community. The President and CEO also acknowledged the great work of the registrars.
The Chair requested that Staff report to the Board on a regular basis what the uptake is, the progress, and if there are any issues with respect to the acceptance of the new 2013 RAA.
Sebastian Bachollet inquired about the public comment process for the Expert Working Group on gTLD Directory Services. He noted that the process is different than the normal process and wanted to know the reasoning. The Chair noted that this issue will be resolved in a more appropriate forum.
Sebastian also inquired about the status of the dotless domains issue. Thomas Narten noted that the IAB has been having discussions about this issue. There is some feeling on that side that dotless domains are inconsistent with IETF standards. Thomas asked whether the follow up SSAC report will be issued before the Durban meeting, whether there will be an opportunity to discuss the report in Durban, and whether there will be a public comment period before the Board is asked to act on any recommendations.
Akram Atallah reported that there will be a public comment period on the results of the report. The report is actually driven by a Board resolution asking for a study on dotless domains and additional informational on their benefits and disadvantages. ICANN has received a lot of requests from applicants that want to use dotless domains, resulting a push to get the paper issued so that it can be put out for public comment and submitted to the Board to decide whether to ban dotless domain domains or whether to have something different.
The Board discussed the timing of the SSAC report, noting that it will not be issued in time for discussion in Durban. The report will likely be discussed at the Board workshop in September.
The Board entered an executive session without staff present. The Board undertook the following actions during its executive session:
Resolved (2013.06.27.13), specific items of this resolution shall remain confidential as an "action relating to personnel or employment matters", pursuant to Article III, section 5.2 of the ICANN Bylaws, and the entire resolution shall remain confidential pursuant to this same Bylaws provision pending determination by the President and CEO that the non-confidential portion can be made public.
Published on 23 August 2013