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Minutes | Regular Meeting of the ICANN Board

A Regular Meeting of the ICANN Board of Directors was held in person on 16 March 2017 in Copenhagen, Denmark at 17:00 local time.

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

In addition to the Chair, the following Directors participated in all or part of the meeting: Rinalia Abdul Rahim, Maarten Botterman, Becky Burr, Cherine Chalaby (Vice Chair), Ron da Silva, Chris Disspain, Asha Hemrajani, Rafael Lito Ibarra, Khaled Koubaa, Markus Kummer, Akinori Maemura, Göran Marby (President and CEO), George Sadowsky, Mike Silber, and Lousewies van der Laan.

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

Secretary: John Jeffrey (General Counsel and Secretary).

  1. Consent Agenda:
    1. Approval of Board Meeting Minutes
    2. Appointment of new members to the SSAC
    3. Appointment of F-Root Server Operator Representative to the RSSAC
    4. Renewal of .MOBI registry contract
    5. Approval of GNSO Council Request for CEO & Registrar Stakeholder Group to evaluate alternatives for the implementation of Inter-Registrar Transfer Policy Part C (IRTP-C)
    6. Approval of Revised Delegation of Authority Guidelines regarding PTI
    7. Thank You to Local Host of ICANN 58 Meeting
    8. Thank you to Sponsors of ICANN 58 Meeting
    9. Thank you to Interpreters, Staff, Event and Hotel Teams of ICANN 58 Meeting
  2. Main Agenda:
    1. Organizational Effectiveness Committee Charter Revisions
    2. Consideration of the Gulf Cooperation Council v. ICANN Independent Review Process Final Declaration
    3. Consideration of the dot Sport Limited v. ICANN Independent Review Process Final Declaration
    4. Approval of Community Anti-Harassment Policy
    5. AOB
      1. Protections for Red Cross/Red Crescent Movement Identifiers in gTLDs
      2. Thank You to Glen de Saint Géry

 

  1. Consent Agenda:

    The Chair provided a brief overview of the items on the Consent Agenda, and noted that Board members could request to remove any items from the Consent Agenda to the Main Agenda to allow for discussion of the matter. The Chair then called for a vote, and the Board took the following action:

    Resolved, the following resolutions in this Consent Agenda are approved:

    1. Approval of Board Meeting Minutes

      Resolved (2017.03.16.01), the Board approves the minutes of the 3 February 2017 Regular Meeting of the ICANN Board.

    2. Appointment of new members to the SSAC

      Whereas, the Security and Stability Advisory Committee (SSAC) reviews its membership and makes adjustments from time-to-time.

      Whereas, the SSAC Membership Committee, on behalf of the SSAC, requests that the Board should appoint Jay Daley and Cristian Hesselman to the SSAC for three-year terms beginning immediately upon approval by the Board and ending on 31 December 2019.

      Resolved (2017.03.16.02), that the ICANN Board of Directors appoints Jay Daley and Cristian Hesselman to the SSAC for three-year terms beginning immediately upon approval of the Board and ending on 31 December 2019.

      Rationale for Resolution 2017.03.16.02

      The SSAC is a diverse group of individuals whose expertise in specific subject matters enables the SSAC to fulfil 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 naming and address allocation systems.

      The SSAC's continued operation as a competent body is dependent on the accumulation of talented subject matter experts who have consented to volunteer their time and energies to the execution of the SSAC mission. Jay Daley is well known from his long history with NZRS Ltd and Nominet UK. He has broad technical knowledge of all aspects of domain name registries and registry operations, especially ccTLDs. He has a Ph.D. in Computer Science. For Christian Hesselman's work, security has always been an important consideration. He brings experience in ccTLD registry operations (.nl), working with "big data" especially DNS data (including privacy friendly use of data), and significant experience directing and managing technical teams.

      The SSAC believes Jay Daley and Cristian Hesselman would be significant contributing members of the SSAC.

    3. Appointment of F-Root Server Operator Representative to the RSSAC

      Whereas, the ICANN Bylaws call for the establishment of a Root Server System Advisory Committee (RSSAC) with the role to advise the ICANN community and Board on matters relating to the operation, administration, security, and integrity of the Root Server System of the Internet.

      Whereas, the ICANN Bylaws call for appointment by the Board of Directors of RSSAC members based on recommendations from the RSSAC Co-Chairs.

      Whereas, the RSSAC Co-Chairs recommended for consideration by the Board of Directors the appointment of a representative from the F-root server operator to the RSSAC.

      Resolved (2017.03.16.03), the Board of Directors appoints to the RSSAC the representative from F-root server operator, Fred Baker, through 31 December 2018.

      Rationale for Resolution 2017.03.16.03

      In May 2013, the root server operators (RSO) agreed to an initial membership of RSO representatives for RSSAC, and each RSO nominated an individual. The Board of Directors approved the initial membership of RSSAC in July 2013 with staggered terms.

      Brian Reid has been serving as the F-root server operator representative since March 2016. On 17 January 2017, the F-root server operator, Internet Systems Consortium, requested to change its representative from Brian Reid to Fred Baker for the remainder of the term.

      The appointment of this RSSAC member is not anticipated to have any fiscal impact on ICANN, though there are budgeted resources necessary for ongoing support of the RSSAC.

      This resolution is an organizational administrative function for which no public comment is required. The appointment of RSSAC members contributes to the commitment of ICANN to strengthening the security, stability, and resiliency of the DNS.

    4. Renewal of .MOBI registry contract

      Whereas, ICANN commenced a public comment period from 23 December 2016 through 01 February 2017 on the proposed Renewal Registry Agreement for the .MOBI TLD.

      Whereas, the.MOBI Renewal Registry Agreement includes modified provisions to bring the .MOBI Registry Agreement into line with the form of the New gTLD Registry Agreement.

      Whereas, the Renewal Registry Agreement includes the first transition of a sponsored community top-level domain to a standard unsponsored top-level domain, the addition of certain rights protection mechanisms, the inclusion of public interest commitments, the ability to release previously reserved two-character labels subject to certain requirements, and incorporates the same fee schedule applicable to new gTLD Registry Operators.

      Whereas, the .MOBI Renewal Registry Agreement no longer reflects a sponsored community top-level domain and transitions the .MOBI TLD to a standard, unsponsored generic top-level domain.

      Whereas, the public comment forum on the proposed Renewal Registry Agreement closed on 01 February 2017, with ICANN receiving comments from four (4) independent organizations. A summary and analysis of the comments were provided to the Board.

      Whereas, the Board has determined that no revisions to the proposed .MOBI Renewal Registry Agreement are necessary after taking the comments into account.

      Resolved (2017.03.16.04), the proposed .MOBI Renewal Registry Agreement is approved and the President and CEO, or his designee(s), is authorized to take such actions as appropriate to finalize and execute the Agreement.

      Rationale for Resolution 2017.03.16.04

      Why the Board is addressing the issue now?

      ICANN Org and Afilias Technologies Limited (the "Registry Operator") entered into a Registry Agreement on 10 July 2005 for operation of the .MOBI top-level domain. The current .MOBI Registry Agreement expires on 31 March 2017. The proposed Renewal Registry Agreement was posted for public comment between 23 December 2016 and 01 February 2017. At this time, the Board is approving the proposed .MOBI Renewal Registry Agreement for the continued operation of the .MOBI top-level domain by the Registry Operator including the transition of the operations of the legacy .MOBI top-level domain to an unsponsored generic top-level domain using substantially the same terms offered to New gTLDs under the form of New gTLD Registry Agreement.

      What is the proposal being considered?

      The proposed .MOBI Renewal Registry Agreement, approved by the Board, includes modified provisions to bring the Agreement in line with the form of the New gTLD Registry Agreement. The modifications include: updating technical specifications; Public Interest Commitments including the obligation to only use registrars under the 2013 Registrar Accreditation Agreement; and requiring the implementation of additional Rights Protection Mechanisms, namely the Uniform Rapid Suspension and the Post-Delegation Dispute Resolution Procedure.

      While the .MOBI top-level domain will no longer be a sponsored community top-level domain, all approved registry services in the legacy .MOBI Registry Agreement carry over to the proposed Renewal Registry Agreement. These approved registry services include the common TLD Zone Contents language, Anti-Abuse Services, Registry Lock, Bulk Transfer After Partial Portfolio Acquisition, Searchable Whois, Whois Contact Lookup, and second-level Internationalized Doman Names. The Approved Services for .MOBI also include a 270-day implementation grace period to allow sufficient time for Afilias to complete the transition of its technical operations to meet the requirements of the renewal agreement.

      With regard to the Schedule of Reserved Names, the renewal Registry Agreement retains the ability of the Registry Operator to allocate previously reserved single-character labels at the second level within .MOBI through ICANN Org-accredited registrars based on its implementation process. Additionally, the Registry Operator may also release previously reserved two-character names to the extent that the registry operator reaches agreement with the government and country-code manager, or the ISO 3166 maintenance agency. The Registry Operator may also propose release of these names based on its implementation of measures to avoid confusion with the corresponding country codes.

      Additionally, the Sponsorship Charter contained in the previous .MOBI Registry Agreement in Appendix S was not carried over to the.MOBI Renewal Registry Agreement. While prior legacy sponsorship charters have been carried over to the form New gTLD Registry Agreement in the form of Specification 12 (Community Registration Policies), the proposed .MOBI Renewal Registry Agreement will not be a sponsored or community top-level domain. ICANN Org highlighted this material change in the request for public comment, no comments or objections were received on this topic.

      Which stakeholders or others were consulted?

      ICANN Org conducted a public comment period on the proposed .MOBI Renewal Registry Agreement package of terms from 23 December 2016 through 01 February 2017. Subsequently, ICANN Org summarized, analyzed and published a report of public comments. Additionally, ICANN Org engaged in bilateral negotiations with the Registry Operator to agree to the package of terms to be included in the proposed Renewal Registry Agreement that was posted for public comment.

      What concerns or issues were raised by the community?

      The public comment forum on the proposed .MOBI Renewal Registry Agreement closed on 01 February 2017, with ICANN Org receiving four comments. The comments were comprised of commentary from four independent organizations summarized in the three main categories listed below.

      1. Inclusion of new gTLD rights protection mechanisms and safeguards in legacy gTLDs: Some commenters expressed support for the inclusion of certain rights protection mechanisms, such as Uniform Rapid Suspension and Trademark Post-Delegation Dispute Resolution Procedure, and the inclusion of the Public Interest Commitments (i.e., safeguards) contained in the New gTLD Registry Agreement such as the requirement to use registrars under the 2013 Registrar Accreditation Agreement. Others expressed concern over the inclusion of New gTLD rights protection mechanisms into legacy agreements. They argued that these provisions should not be added as a result of bilateral contract negotiations but should be addressed through the policy development process.
      2. Transition to a new fee schedule: Some commenters suggested Global Domains Division personnel are using economic leverage, i.e. fee reductions, in the proposed Renewal Registry Agreement to induce registry operators to accept non-economic provisions of the New gTLD Registry Agreement, such as those noted in 1 above.
      3. Negotiation process for the proposed renewal of the .MOBI Registry Agreement and legacy gTLD registry agreement negotiations in general: Some commenters questioned whether the negotiation process for renewing and amending legacy registry agreements is sufficiently transparent and how the renewal agreement was arrived at.
        • Other: Additionally, one comment submitted referred to "Registry Level Transaction Fee Adjustment Approval Date" being conditioned upon ICANN Org's sole discretion that 'no unresolved compliance issues remain'. However, the proposed .MOBI Renewal Registry agreement does not include such a provision and it appears the comment was referring to a previously posted public comment announcement related to a contract amendment for a different gTLD.

      What significant materials did the Board review?

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

      What factors has the Board found to be significant?

      The Board carefully considered the public comments received for the Renewal Registry Agreement, along with the summary and analysis of those comments. The Board also considered the terms agreed to by the Registry Operator as part of the bilateral negotiations with ICANN Org. While the Board acknowledges the concerns expressed by some community members regarding the inclusion of the Uniform Rapid Suspension, Post-Delegation Dispute Resolution Procedure, and Public Interest Commitments in the Renewal Registry Agreement, the Board notes that the inclusion of the these provisions is based on the bilateral negotiations between ICANN Org and the Registry Operator, where Registry Operator expressed their interest to renew their registry agreement based on the form of the New gTLD Registry Agreement.

      The Uniform Rapid Suspension, Post-Delegation Dispute Resolution Procedure, and Public Interest Commitments have not been adopted as Consensus Policy. As such, ICANN Org has no ability to make these provisions mandatory for any TLDs other than new gTLD applicants who applied during the 2012 New gTLD round. However, a legacy Registry Operator may agree to adopt these provisions during bilateral negotiations and as a result of moving to the form of the New gTLD Base Registry Agreement.

      Accordingly, the Board's approval of the proposed .MOBI Renewal Registry Agreement does not mandate the addition of Uniform Rapid Suspension, Post-Delegation Dispute Resolution Procedure, and Public Interest Commitments as mandatory requirements for legacy TLDs. These provisions are only adopted on a case-by-case basis as a result of bilateral negotiations.

      The Board acknowledges comments questioning whether Global Domains Division personnel are using economic leverage, i.e. fee reductions, in the proposed Renewal Registry Agreement to induce registry operators to accept non-economic provisions of the new gTLD Registry Agreement, such as additional rights protection mechanism and public interest commitments. The Board notes that as with other terms in the renewal agreement, the fee reduction is the result of bilateral negotiations and agreement between ICANN Org and the Afilias. The updated fee schedule is the same schedule contained in previously renewed legacy gTLDs, namely .CAT, .JOBS, .PRO, .TEL, and .TRAVEL. The legacy renewal process includes Global Domains Division personnel evaluating the fiscal impact to ICANN Org's budget. As with other legacy gTLDs, this evaluation was completed and Global Domains Division personnel concluded the result would have minimal, negative fiscal impact. The effect of the fee change to ICANN Org's annual budget was also considered as part of the evaluation.

      The Board acknowledges comments questioning whether the negotiation process for renewing and amending legacy registry agreements is transparent enough and how the renewal agreement was arrived at. All Registry Operators have the ability to negotiate the terms of their Registry Agreement with ICANN Org, which inherently means discussions between the two contracted parties – ICANN Org and the applicable Registry Operator. This was the case with Afilias and the.MOBI renewal agreement. The Board notes the process is straightforward and involves discussions between the two parties until agreement is reached. Once agreement is reached, ICANN Org invites community feedback through the public comment process to ensure transparency and to collect valuable input.

      The Board notes that current .MOBI Registry Agreement calls for presumptive renewal of the agreement at its expiration so long as certain requirements are met. The .MOBI Renewal Registry Agreement is subject to the negotiation of renewal terms reasonably acceptable to ICANN Org and the Registry Operator. The renewal terms approved by the Board are the result of the bilateral negotiations called for in the current .MOBI Registry Agreement, and transitioning to the form of the New gTLD Registry Agreement would not violate established GNSO policy. As described below, the new form of the registry agreement offers positive technical and operational advantages, in addition to benefits to registrants and the Internet community including public interest commitments, requiring the use of registrars under the 2013 Registrar Accreditation Agreement, and the ability for ICANN Org to designate an emergency interim registry operator in the event that emergency thresholds for critical registry services is reached.

      Are there positive or negative community impacts?

      The Board's approval of the Renewal Registry Agreement offers positive technical and operational benefits. Pursuant to Renewal Registry Agreement, in the event that any of the emergency thresholds for registry functions is reached, Registry Operator agrees that ICANN Org may designate an emergency interim Registry Operator of the registry for the TLD, which would mitigate the risks to the stability and security of the Domain Name System. Also, technical onboarding of the Registry Operator to comply with the provisions in the New gTLD Agreement will allow the registry to use uniform and automated processes, which will facilitate operation of the TLD. As part of the renewal process, ICANN Org conducts a review of contractual compliance under the .MOBI Registry Agreement. Afilias was found to be in substantial compliance with its contractual requirements.

      There will also be positive impacts on registrars and registrants. The transition to the form of the New gTLD Registry Agreement will provide consistency across all registries leading to a more predictable environment for end-users. The fact the .MOBI Renewal Registry Agreement mandates the use of accredited registrars that are subject to the 2013 Registrar Accreditation Agreement, provides numerous benefits to registrars and registrants. The .MOBI Renewal Registry Agreement also requires the Registry Operator adopt additional rights protection mechanisms to protect rights holders and public interest commitments which provide benefits to intellectual property constituents and the public.

      Are there fiscal impacts or ramifications on ICANN Org (strategic plan, operating plan, budget); the community; and/or the public?

      There is no significant fiscal impact expected from the .MOBI Renewal Registry Agreement. It should be noted that as a result of approval of the Renewal Registry Agreement, projected annual registry fees to ICANN Org will result in a minimal negative fiscal impact. This change has been considered in ICANN Org's budget.

      Are there any security, stability or resiliency issues relating to the DNS?

      The .MOBI Renewal Registry Agreement is not expected to create any security, stability, or resiliency issues related to the DNS. The Renewal Registry Agreement in fact includes terms intended to allow for swifter action in the event of certain threats to the security or stability of the DNS, as well as other technical benefits expected to provide consistency across all registries leading to a more predictable environment for end-users.

    5. Approval of GNSO Council Request for CEO & Registrar Stakeholder Group to evaluate alternatives for the implementation of Inter-Registrar Transfer Policy Part C (IRTP-C)

      Whereas, the Generic Names Supporting Organization (GNSO) Council sent a letter [PDF, 109 KB] to the ICANN Board on 1 December 2016 ("GNSO Council Letter") regarding implementation concerns with the Inter-Registrar Transfer Policy ("Transfer Policy") – Part C.

      Whereas, the GNSO Council Letter requested the Board to instruct ICANN Org to work with the Registrar Stakeholder Group and other interested parties to evaluate alternatives for the implementation concerns related to Transfer Policy Part C.

      Resolved (2017.03.16.05), the Board instructs the ICANN President and CEO, or his designee(s), to work with the Registrar Stakeholder Group and other interested parties to evaluate alternatives for the implementation concerns related to Transfer Policy Part C and to report back to the GNSO Council with the results of the discussion.

      Rationale for Resolution 2017.03.16.05

      Why is the Board addressing this issue now?

      On 1 December 2016, the Generic Names Supporting Organization (GNSO) Council delivered a letter [PDF, 109 KB] to the ICANN Board, in which it raised concerns related to the implementation of Transfer Policy Part C. The Board is addressing the issue now because the updated Transfer Policy has already been implemented, and the policy cannot be modified without direction from the Board.

      What is the proposal being considered?

      The GNSO Council delivered a letter [PDF, 109 KB] to the ICANN Board, in which it is requesting the Board to do the following: (1) instruct ICANN Org to work with the Registrar Stakeholder Group and other interested parties to evaluate alternatives for evaluation of the implementation concerns, which could include moving this issue to the Privacy & Proxy Services Accreditation Issues Implementation Review Team, reconstituting the Transfer Policy Part C Implementation Review Team, or employing some other new mechanisms under the Policy & Implementation principles and requirements from the from the GNSO Policy & Implementation Working Group Final Recommendations Report [PDF, 1.53 MB], adopted by the GNSO Council; and (2) instruct ICANN Org to defer any privacy/proxy service compliance enforcement from the Transfer Policy relating to the enabling or disabling of privacy/proxy services pending further consultation and determination of this issue.

      Specifically, the concerns relate to whether the addition/removal of a privacy/proxy service potentially triggers the 60-day inter-registrar transfer lock described in the updated Transfer Policy. The policy recommendations were silent with respect to the addition/removal of privacy/proxy services, and at the time the policy was implemented, the current issue and potential harms described by the GNSO Council were not brought to ICANN org's attention.

      The requests from the GNSO Council seek to further discuss the addition/removal of privacy/proxy services and the potential harms associated with the 60-day inter-registrar transfer lock in the updated Transfer Policy.

      What stakeholders or others were consulted?

      These updates to the Transfer Policy were discussed with the GNSO Council, Registrar Stakeholder Group, and the ICANN community at multiple public sessions at ICANN meetings.

      What significant materials did the Board review?

      In adopting its response to the GNSO Council Letter, the Board reviewed various materials, including, but not limited to, the following materials and documents:

      Are there positive or negative community impacts?

      The adoption of the GNSO Council's request will have a positive impact on the community because it will ensure that the community can further discuss an issue the Working Group failed to address, as well as the potential harms the GNSO Council described regarding the addition/removal of privacy/proxy services within the Transfer Policy.

      Are there fiscal impacts or ramifications on ICANN (strategic plan, operating plan, budget); the community; and/or the public?

      There is no fiscal impact expected.

      Are there any security, stability or resiliency issues relating to the DNS?

      Approval of the resolution will not impact security, stability or resiliency issues relating to the DNS. This is an Organizational Administrative function that does not require public comment.

    6. Approval of Revised Delegation of Authority Guidelines regarding PTI

      Whereas, on 8 November 2016, the ICANN Board adopted Delegation of Authority Guidelines to set out a clear line of delegation of authority between the role of the Board and the roles of CEO and management. The Board noted therein that "the Guidelines shall be reviewed regularly and amended from time to time by resolution of the Board."

      Whereas, the Board has considered how to properly reflect the relationship between the ICANN Organization and ICANN's affiliate, Public Technical Identifiers (PTI), in terms of roles of ICANN Board and the ICANN CEO.

      Whereas, identifying the line of delegation authority in the ICANN Organization as it relates to PTI is beneficial for transparency and clarity.

      Resolved (2017.03.16.06), the Board hereby adopts the updated "ICANN Delegation of Authority Guidelines" to continue to provide clear guidance and clarification of roles between the ICANN Board and the ICANN CEO/Management ("Guidelines").

      Rationale for Resolution 2017.03.16.06

      The Board is taking action at this time in furtherance of its adoption of a set of guidelines, the "ICANN Delegation of Authority Guidelines," to provide greater clarity of roles between the Board and CEO/Management. As resolved on 8 November 2016, the Guidelines were anticipated to need updating and modification, and the process for such modification includes resolution of the Board.

      As ICANN has gained experience in operating its affiliate, Public Technical Identifiers (PTI), as the contractor performing the IANA functions on behalf of ICANN (the IANA Functions Operator), there is a continued need for clarity in the relationship between ICANN and PTI, and the ICANN CEO's responsibilities for the operation of the IANA Functions. The modification to the Guidelines as adopted today is limited to reflecting this core area of delegation of authority.

      By adopting these updated Guidelines, the Board intends to ensure that the Board and CEO/Management continue to operate within the scope of its mission. The Board's approval of the Guidelines will have positive impact on the community as it provides additional transparency and clarity about the roles and responsibilities of key members in the ICANN organization. Additionally, it provides additional accountability to the community by clearly defining the roles and responsibilities.

      There is no anticipated fiscal impact of the Board taking this action, and there are no expected security, stability, or resiliency issues related to the DNS associated with the Board's approval of the Guidelines.

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

    7. Thank You to Local Host of ICANN 58 Meeting

      The Board wishes to extend its thanks to Minister Mette Bock, Minister for Culture and the local host organizer, Danish Business Authority and Danish Internet Forum.

    8. Thank you to Sponsors of ICANN 58 Meeting

      The Board wishes to thank the following sponsors: Verisign, Dyn, Knipp Median und Kommunikation GmbH, The Canadian Internet Registration Authority, Afilias plc, Uniregistry, Public Interest Registry, China Internet Network Information Center, Nominet, CentralNic Group PLC, Radix, Dataprovider.

    9. Thank you to Interpreters, Staff, Event and Hotel Teams of ICANN 58 Meeting

      The Board expresses its deepest appreciation to the scribes, interpreters, audio-visual team, technical teams, and the entire ICANN staff for their efforts in facilitating the smooth operation of the meeting. The Board would also like to thank the management and staff of the Bella Center Copenhagen for providing a wonderful facility to hold this event. Special thanks are extended to Maiken Schultz, International Senior Sales Manager; Camilla Nevers, Project Manager, Congress Planning & Project Management; Stine Holmgren, Congress Coordinator, Congress Planning & Project Management; Linda Laugesen, Project Manager, Congress Planning & Project Management; Simon Jones, Assistant Food & Beverage Manager; Tsvetana Mazeva-Katsanevakis, Group Reservation Supervisor, Congress Contracting and Planning; Camelia Maria Uilecan, Group Reservation Coordinator, Congress Contracting and Planning; Mads Nielsen, IT Manager; and Bart Van Campen from ASP Group.

    All members of the Board present voted in favor of Resolutions 2017.03.16.01, 2017.03.16.02, 2017.03.16.03, 2017.03.16.04, 2017.03.16.05, and 2017.03.16.06. The Resolutions carried.

  2. Main Agenda:

    1. Organizational Effectiveness Committee Charter Revisions

      Rinalia Abdul Rahim, Chair of the Organizational Effectiveness Committee Charter (OEC), introduced the agenda item. She explained that the OEC is responsible for the review and oversight of policies, processes, and procedures relating to ICANN's organizational reviews. Rinalia also noted that there are parallels in the process of conducting organizational reviews and specific reviews. Currently, the oversight of specific reviews has not been assigned to a specific Board committee.

      Rinalia stated that the OEC is proposing to amend its current charter to expand its oversight to include Specific Reviews. She reported that the Board Governance Committee evaluated this proposed modification, and highlighted that the proposed amendment will allow the Board to have higher efficiency and effectiveness in addressing the reviews which will support the Board's ability to meet its accountability and transparency obligations.

      The Chair considered the motion to be moved and it received a second. The Board took the following action:

      Whereas, the Organizational Effectiveness Committee of the ICANN Board is responsible for review and oversight of policies, processes, and procedures relating to ICANN's Organizational Reviews, mandated by Section 4.4, in accordance with its current charter.

      Whereas, there are parallels in the process of conducting Organizational Reviews and Specific Reviews, with an opportunity for streamlining and providing greater consistency to all reviews.

      Whereas, the Organizational Effectiveness Committee has proposed to amend its current charter to expand its oversight to include Specific Reviews, with which the Board Governance Committee agrees.

      Resolved (2017.03.16.07), that the Board approves the proposed revisions to the charter of the Organizational Effectiveness Committee to expand its oversight to include Specific Reviews.

      All members of the Board present voted in favor of Resolution 2017.03.16.07. The Resolution carried.

      Rationale for Resolution 2017.03.16.07

      Why is the Board addressing the issue?

      The Board is addressing this issue because the oversight of Specific Reviews has not been assigned to a specific Board Committee and there is an opportunity for centralizing oversight of all review processes into one ICANN Board Committee, namely the OEC.  It is appropriate to consolidate all reviews under the over-arching responsibility of the OEC to ensure that similar standards are consistently applied across all reviews.

      What is the proposal being considered?

      The Board is modifying the OEC charter to include responsibility for oversight of Specific Reviews from Section 4.6 of the Bylaws, as well as clean-up Bylaws references to match the ICANN Bylaws effective 1 October 2016.

      Which stakeholders or others were consulted?

      The OEC proposed this change and is willing to take on this role. The BGC is required to evaluate proposed modifications to charters, and the BGC has affirmed its support for the recommendation. No community consultation is required.

      What significant materials did the Board review?

      The Board reviewed the proposed revisions to the 2015 Organizational Effectiveness Committee charter, and the BGC's recommendations.

      Are there positive or negative community impacts?

      The proposed revisions are intended to unify the oversight responsibility for Organizational and Specific Reviews, thereby facilitating the streamlining of the Board oversight of both types of reviews. This change in the oversight of the process of reviews is expected to have a positive impact on the effectiveness and efficiency of Organizational and Specific Reviews and by extension provide better transparency and accountability to the community.

      Are there fiscal impacts or ramifications on ICANN (strategic plan, operating plan, and budget); the community; and/or the public?

      There will be no fiscal impact or adverse ramifications on ICANN's strategic and operating plans from the proposed changes.

      Are there any security, stability or resiliency issues relating to the DNS?

      There are no security, stability or resiliency issues relating to the DNS as the result of this action.

    2. Consideration of the Gulf Cooperation Council v. ICANN Independent Review Process Final Declaration

      Chris Disspain, Chair of the Board Governance Committee, introduced the agenda item, and read the proposed action to be taken by the Board.

      Chris moved and Mike Silber seconded the resolution. The Board took the following action:

      Whereas, on 24 October 2016, ICANN received the Independent Review Process (IRP) Final Declaration in the IRP filed by the Gulf Cooperation Council (GCC) against ICANN (Final Declaration).

      Whereas, the IRP Panel declared that "the GCC is the prevailing Party," and the "action of the ICANN Board with respect to the application of Asia Green relating to the '.persiangulf' gTLD was inconsistent with the Articles of Incorporation and Bylaws of ICANN." (Final Declaration at pg. 45, X.3-4 and pg. 44, X.1, ¶¶ 143, 145.)

      Whereas, the Panel recommended that the "Board take no further action on the '.persiangulf' gTLD application, and in specific not sign the registry agreement with Asia Green, or any other entity, in relation to the '.persiangulf' gTLD." (Final Declaration at pg. 44, X.2.)

      Whereas, after thorough review and consideration of the Final Declaration, and as set forth in more detail in the Rationale section below, it seems that the Panel may have based its findings and recommendation on what may be unsupported conclusions and/or incorrect factual premises, and may not have given due consideration to the Board's consideration of facts and materials relevant to the GCC's concerns.

      Whereas, in accordance with Article IV, section 3.21 of the operative ICANN Bylaws, the Board has considered the Final Declarations.

      Resolved (2017.03.16.08), the Board has determined that further consideration and analysis of the Final Declaration is needed, and directs the ICANN President and CEO, or his designee(s), to conduct or cause to be conducted a further analysis of the Panel's factual premises and conclusions, and of the Board's ability to accept certain aspects of the Final Declaration while potentially rejecting other aspects of the Final Declaration.

      All members of the Board present voted in favor of Resolution 2017.03.16.08. The Resolution carried.

      Rationale for Resolution 2017.03.16.08

      The Gulf Cooperation Council (GCC) initiated Independent Review Process (IRP) proceedings challenging the New gTLD Program Committee's (NGPC's) decision on 10 September 2013 that "ICANN will continue to process [the .PERSIANGULF] application in accordance with the established procedures in the [Guidebook.]" (See Resolution 2013.09.10.NG03 (Annex 1), available at https://www.icann.org/resources/board-material/resolutions-new-gtld-2013-09-10-en#2.c.) The GCC objected to the application for the .PERSIANGULF generic top level domain (gTLD) submitted by Asia Green IT System Ltd. (Asia Green) due to what the GCC described as a long-standing naming dispute in which the "Arab nations that border the Gulf prefer the name 'Arabian Gulf'" instead of the name "Persian Gulf." (See IRP Request, ¶ 3, available at https://www.icann.org/en/system/files/files/gcc-irp-request-05dec14-en.pdf [PDF, 2. 44 MB].)

      The GCC, and certain of its member States, first voiced concerns over Asia Green's .PERSIANGULF application (Application) in 2012. The governments of the United Arab Emirates, Oman, Baharain and Qatar sent letters to the GAC and ICANN invoking the Governmental Advisory Committee's (GAC's) Early Warning system regarding the Application and requesting that the GAC issue advice regarding whether a .PERSIANGULF gTLD is appropriate. As a result, on 20 November 2012, as set forth in the Guidebook, the GAC issued an Early Warning on the Application claiming that "[t]he applied for new gTLD is problematic and refers to a geographical place with [a] disputed name" and "[l]ack[s] […] community involvement and support." (See GAC Early Warning at https://gacweb.icann.org/display/gacweb/GAC+Early+Warnings?preview=/27131927/27197754/Persiangulf-AE-55439.pdf [PDF, 93 KB].)

      Subsequently, in December 2012, ICANN's Independent Objector (IO) reviewed the GCC's concerns, concluded that the Application was not contrary to generally accepted legal norms of morality and public order, and therefore found that he had no basis to object to the Application.

      On 13 March 2013, the GCC filed a Community Objection against the Application. While the GCC's Community Objection was pending, the GAC met during ICANN's Beijing, China meeting in April 2013. In the Beijing Communiqué, the GAC issued several different types of advice on numerous gTLD applications and advised ICANN that it wanted to give further consideration at its next meeting in Durban, South Africa to several gTLD applications, including the application for .PERSIANGULF, and requested that ICANN not proceed beyond initial evaluation of these applications until the further consideration was concluded. (See Beijing Communiqué available at https://www.icann.org/en/system/files/correspondence/gac-to-board-11apr13-en.pdf [PDF, 156 KB].)

      As required by the Guidebook, the NGPC considered the GAC advice provided in the Beijing Communiqué and, on 4 June 2013, adopted a Scorecard reflecting its response.  The NGPC accepted the GAC's request for additional time to consider several other applications, including the .PERSIANGULF application, clarifying that "ICANN will not proceed beyond initial evaluation of these identified strings" until the GAC has had additional time to provide advice on the applications. The NGPC also noted that Community Objections had been filed regarding several of these applications, including the .PERSIANGULF application. (See NGPC Resolution 2013.06.04.NG01 available at https://www.icann.org/resources/board-material/resolutions-new-gtld-2013-06-04-en.)

      During the week of 13 July 2013, the GAC met during the ICANN Public Meeting in Durban, South Africa. In the Durban Communiqué, which was the official statement from the GAC to ICANN as a result of the Durban meeting, the GAC informed ICANN that it "finalized its consideration" of the Application and that the GAC "does not object" to the Application proceeding.  In other words, the GAC effectively provided no advice to the Board regarding the application for .PERSIANGULF. Thereafter, the NGPC met on 10 September 2013 to consider the Durban Communiqué and adopted an NGPC Scorecard reflecting the NGPC's response. (See NGPC Resolution 2013.09.10.NG03 available at https://www.icann.org/resources/board-material/resolutions-new-gtld-2013-09-10-en#2.c.) In its Scorecard, which was publicly posted on 12 September 2013, the NGPC noted that the GAC "has finalized it consideration of the following string, and does not object to it proceeding: .persiangulf." In addition, the NGPC stated that "ICANN will continue to process that application in accordance with the established procedures in the [Guidebook]," but noted that the GCC's Community Objection to the Application remained pending.

      Following that, on 30 October 2013, an independent expert appointed by the International Chamber of Commerce (ICC) determined that the GCC's formal Community Objection to the Application did not prevail.

      In November 2013, the GAC approved and posted the Durban Meeting Minutes on its website, which memorialized that certain GAC members expressed concerns regarding the Application. (See GAC Durban Minutes, IRP Request Annex 34 available at https://www.icann.org/en/system/files/files/gcc-irp-request-annex-26-05dec14-en.pdf [PDF, 17.7 MB].)

      The GCC's IRP Request, submitted on 5 December 2014, sought a declaration stating that the NGPC's decision to proceed with the Application violates ICANN's Articles and Bylaws, and recommending to the Board that ICANN take no further action on the .PERSIANGULF gTLD. (See Final Declaration, ¶ 65.)

      On 19 October 2016, the three-member IRP Panel (Panel) issued its Final Declaration as to the merits, which was circulated to the parties on 24 October 2016 (https://www.icann.org/en/system/files/files/irp-gcc-final-declaration-24oct16-en.pdf [PDF, 2.52 MB]). On 15 December 2016, the Panel issued its Final Declaration As To Costs (https://www.icann.org/en/system/files/files/irp-gcc-final-declaration-costs-15dec16-en.pdf [PDF, 91 KB]). After consideration and discussion, pursuant to Article IV, Section 3.21 of the operative ICANN Bylaws, the Board has determined that further consideration and analysis of the Panel's findings and recommendations (summarized below, and available in full at https://www.icann.org/resources/pages/gcc-v-icann-2014-12-06-en is needed.

      The Panel declared the GCC to be the prevailing party, and declared that the "action of the ICANN Board with respect to the application of Asia Green relating to the '.persiangulf' gTLD was inconsistent with the Articles of Incorporation and Bylaws of ICANN." (Final Declaration at pgs. 44-45, X.1, X.3.) The Panel further declared that "ICANN is to bear the totality of the GCC's costs in relation to the IRP process," and "shall reimburse the GCC the sum of $107,924.16 upon demonstration by GCC that these incurred costs have been paid." (Final Declaration As To Costs at pg. 6, V.2.)

      The Panel premised its declaration on the conclusion that the Board's reliance upon the explicit language of Module 3.1 of the Guidebook was "unduly formalistic and simplistic" (Final Declaration at ¶ 126), and that the Board should have conducted a further inquiry into and beyond the Durban Communiqué as it related to the Application even though the GAC "advice" provided in the Durban Communiqué indicated that the GAC had "finalized its consideration" of the Application and "does not object" to the Application proceeding.  In other words, the GAC effectively provided no advice regarding the processing of .PERSIANGULF. The Panel further acknowledged that "the GAC sent a missive to the ICANN Board that fell outside all three permissible forms for its advice" (id. at ¶ 127), noting that the GAC did not follow GAC Operating Principle 47, which "provides that the GAC is to work on the basis of consensus, and '[w]here consensus is not possible, the Chair shall convey the full range of views expressed by members to the ICANN Board.'" (Final Declaration at ¶ 128 (emphasis omitted).) The Panel further acknowledged that the GAC did not relay the GCC's "serious concerns as formal advice to the ICANN Board under the second advice option in Module 3.1 of the Guidebook" – noting that, if it had, then "there would necessarily have been further inquiry by and dialogue with the Board." (Final Declaration at ¶ 129.)

      Nevertheless, the Panel in effect determined that the Application and the GAC "advice" regarding the Application in the Durban Communiqué should have been treated differently due to the sensitivities regarding the "Persian Gulf" and "Arabian Gulf" naming dispute and because "[t]he record reveals not only substantial sensitivity with respect to Asia Green's '.persiangulf' application but also general discord around religious or culturally tinged geographic gTLD names." (Final Declaration at ¶ 131.) According to the Panel, the Board should have gone beyond the processes and procedures set forth in the Guidebook for responding to GAC Advice because "[i]n addition to the Durban Minutes, the pending Community Objection, and public awareness of the sensitivities of the 'Persian Gulf'-'Arabian Gulf' naming dispute, the Durban Communiqué itself [] contained an express recommendation that 'ICANN collaborate with the GAC in refining, for future rounds, the Applicant Guidebook with regard to the protection of terms with national, cultural, geographic and religious significance.'" (Final Declaration at ¶ 131.) The Panel further stated that "[t]hese materials and this general knowledge could and should have come into play, if not as a matter of following GAC advice then as part of the Board's responsibility to fulfil [sic] ICANN's mission and core values." (Final Declaration at ¶ 131.)

      In sum, the Panel stated that it "is not convinced that just because the GAC failed to express the GCC's concerns (made in their role as GAC members) in the Durban Communiqué that the Board did not need to consider these concerns." (Final Declaration at ¶ 131.) The Panel further stated that the Board should have reviewed and considered the GAC member concerns expressed in the GAC Durban Meeting Minutes (which were posted by the GAC in November 2013 – one month after the NGPC's 10 September 2013 Resolution adopting the GAC Advice).

      Based on these conclusions, the Panel declared that the Board: (i) failed to fulfil its transparency and fairness obligations (id. at ¶ 143); (ii) "failed to exercise due diligence and care in having a reasonable amount of facts in front of them before deciding, on 10 September 2013, to allow the '.persiangulf' application to proceed" (id. at ¶ 145) (quotes and emphasis omitted); and (iii) "could not have exercised independent judgment in taking the decision, believed to be in the best interests of the company, as they did not have the benefit of proper due diligence and all the necessary facts" (id. at ¶ 145) (quotes and emphasis omitted).

      The Panel also declared that: (i) "an IRP Panel cannot abuse [its] independence to substitute its own view of the underlying merits of the contested action for the view of the Board, which has substantive discretion"; and (ii) "an IRP Panel is not entrusted with second-guessing the Board, but rather 'with declaring whether the Board has acted consistently with the provisions of [the ICANN] Articles of Incorporation and Bylaws'." (Final Declaration at ¶ 94.)

      In addition, the Panel recommended that "the ICANN Board take no further action on the '.persiangulf' gTLD application, and in specific not sign the registry agreement with Asia Green, or any other entity, in relation to the '.persiangulf' gTLD." (Final Declaration at pg. 44, X.2.)

      As required, the Board has considered the Final Declarations. As this Board has previously indicated, the Board takes very seriously the results of one of ICANN's long-standing accountability mechanisms and has not yet made any final conclusions on this matter. In particular, after conducting an initial review of the Panel's conclusions, the Board's consideration of information relevant to the GCC's concerns, and the mandates set forth in the Guidebook for responding to GAC Advice, the Board has determined that further consideration and analysis of the Panel's factual premises and conclusions is needed.

      The Panel may not have given due consideration to the Board's awareness of, and sensitivity to, the GCC's concerns, which were communicated through letters from the objecting countries and the GAC Early Warning in 2012, and the Board's response to the GAC's Beijing Communiqué, accepting the GAC's request for additional time to consider several applications, including the .PERSIANGULF application. The Board was also aware of and considered the following facts that: (i) the Independent Objector reviewed the GCC's concerns and found that he had no basis to object to the Application; (ii) the ICC-appointed expert reviewed and rejected the GCC's Community Objection; and (iii) the GAC did not reach consensus or non-consensus objection advice regarding the Application (as evidenced by the Durban Communiqué). Furthermore, the Board was well versed regarding the New gTLD Program policies (developed with community input), which provide multiple safeguards for geographic names and opportunities for the GCC's concerns to be heard—all of which the GCC pursued but was unable to prevail.

      Furthermore, even though the Panel references Module 3.1 of the Guidebook, the Panel may have disregarded the fact that the GAC did not provide advice to the ICANN Board that required further inquiry or dialogue. The Durban Communiqué was unequivocal that the GAC "does not object" to the Application proceeding. Similarly, the GAC Operating Principle 46 (Article XII) is clear that: "Advice from the GAC to the ICANN Board shall be communicated through the Chair." As such, GAC Meeting Minutes do not constitute GAC Advice. If the Board were to adopt the Panel's recommendation, it would result in the Board treating the .PERSIANGULF application differently than every other application that was not the subject of GAC Advice pursuant to Module 3.1, which in and of itself would be a violation of ICANN's Bylaws.

      Given the Board's questions regarding the Panel's factual premises and the conclusions based upon those premises, the Board has determined that additional consideration is needed and has directed the President and CEO, or his designee(s), to conduct or cause to be conducted a further analysis of the Panel's factual premises and conclusions, and of the Board's ability to accept certain aspects of the Final Declaration while potentially rejecting other aspects of the Final Declaration.

      The Board is cognizant that it is a very serious step to consider options besides fully adopting an IRP Final Declaration; however, the Board believes that it must determine if the Panel misunderstood the facts, misconstrued the Bylaws, or exceeded the scope of the IRP.

      The Board recognizes the importance of this decision and wants to make clear that it takes the results of all ICANN Accountability Mechanisms very seriously, including the non-binding recommendations. The Board must also take seriously the policies and procedures set forth in the Applicant Guidebook, which were developed over years of community efforts and inputs.

      Taking this decision is not expected to have a direct financial impact on the organization, although if it does, such impact has been contemplated. Conducting further review and analysis of the Panel's Final Declarations will not have any direct impact on the security, stability or resiliency of the domain name system.

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

    3. Consideration of the dot Sport Limited v. ICANN Independent Review Process Final Declaration

      Chris Disspain, Chair of the Board Governance Committee, introduced the agenda item. Chris read the proposed actions to be taken by the Board with respect to the dot Sport Limited Independent Review Process Final Declaration.

      The Board Chair asked for expressions of conflict of interest. Becky Burr and George Sadowsky noted conflicts and abstained from voting. Becky further noted for the record that she has abstained from consideration of the .SPORT matter through the entire process as Neustar, Inc. is a back-end registry services provider for a .SPORT applicant.

      Chris noted that the IRP Final Declaration did not take into account the Ombudsman's final report on the complaint that dot Sport Limited filed with the Ombudsman. Chris further advised that the Board Governance Committee will take the final report into consideration at the next stage of consideration.

      Chris moved and Rinaia Abdul Rahim seconded the proposed resolution. The Board took the following action:

      Whereas, the Final Declaration in the Independent Review Process (IRP) filed by dot Sport Limited (dSL) against ICANN (Final Declaration) was issued on 31 January 2017.

      Whereas, the IRP Panel declared dSL to be the prevailing party, and declared that the "action of the ICANN Board in failing substantively to consider the evidence of apparent bias of the Expert arising after the Expert Determination had been rendered was inconsistent with the Articles [of Incorporation], Bylaws and/or the Applicant Guidebook." (Final Declaration [PDF, 518 KB] at ¶ 9.1(a).)

      Whereas, the IRP Panel further declared that: (i) "ICANN shall reimburse to the Claimant its share of fees and expenses of the Panel and ICDR in the sum of US$79,211.64 upon demonstration by Claimant that these incurred fees and expenses have been paid"; and (ii) each party "shall be responsible for its own fees and expenses." (Final Declaration [PDF, 518 KB] at ¶¶ 8.5 and 9.1(c).)

      Whereas, the Panel recommended that the "Board reconsider its decisions on the Reconsideration Requests, in the aggregate, weighing the new evidence in its entirety against the standard applicable to neutrals as set out in the IBA Conflict Guidelines." (Final Declaration [PDF, 518 KB] at ¶ 9.1(b).)

      Whereas, in accordance with Article IV, section 3.21 of the operative ICANN Bylaws, the Board has considered the Final Declaration.

      Resolved (2017.03.16.09), the Board accepts the following aspects of the Final Declaration: (i) dSL is the prevailing party in the dot Sport Limited v. ICANN IRP; (ii) ICANN shall reimburse dSL "its share of fees and expenses of the Panel and ICDR in the sum of US$79,211.64 upon demonstration by [dSL] that these incurred fees and expenses have been paid"; and (iii) each party "shall be responsible for its own fees and expenses."

      Resolved (2017.03.16.10), the Board directs the President and CEO, or his designee(s), to take all steps necessary to implement the IRP Panel's recommendation that the "Board reconsider its decisions on the Reconsideration Requests, in the aggregate, weighing the new evidence in its entirety against the standard applicable to neutrals as set out in the IBA Conflict Guidelines" in accordance with the Bylaws in effect when the Board made its previous determinations on dSL's Reconsideration Requests.

      Thirteen Directors voted in favor of Resolutions 2017.03.16.09 and 2017.03.16.10. Becky Burr and George Sadowsky abstained. The Resolutions carried.

      Rationale for Resolutions 2017.03.16.09 – 2017.03.16.10

      dot Sport Limited (dSL) initiated Independent Review Process (IRP) proceedings challenging the Expert Determination upholding the community objection filed against dSL's application by SportAccord, and the Board's denial of dSL's two Reconsideration Requests. In both the Reconsideration Requests and the IRP, dSL claimed that the Expert Panelist "was not properly trained and […] had created a reasonable appearance of bias."

      dSL and SportAccord each applied to operate the .SPORT gTLD. On 13 March 2013, SportAccord, an umbrella organization for international sports federations and other sport-related international associations, filed a community objection against dSL's application (Application), asserting that there was "substantial opposition to the Application from a significant portion of the community to which the gTLD string may be explicitly or implicitly targeted" (Community Objection).

      On 20 June 2013, the International Chamber of Commerce (ICC) – the relevant dispute resolution provider – appointed Jonathan P. Taylor as the expert to assess SportAccord's Community Objection. dSL objected to Mr. Taylor's appointment on 27 June 2013, on the basis that Mr. Taylor was a sports lawyer and noted that he had represented the International Rugby Board and worked for the International Olympics Committee (IOC). On 25 July 2013, the ICC determined not to confirm the appointment of Mr. Taylor. On 29 July 2013, the ICC nominated Dr. Guido Santiago Tawil to consider SportAccord's Community Objection and notified the parties of the appointment. Dr. Santiago Tawil provided his CV and filled out a Declaration of Acceptance and Availability and Statement of Impartiality and Independence, stating that he had nothing to disclose and could be impartial and independent. Dr. Santiago Tawil's practice focuses not on sports law, but on international arbitration, administrative law, and regulator practice. dSL did not object to Dr. Tawil's appointment (Expert).

      On 23 October 2013, the Expert rendered a determination upholding SportAccord's Community Objection (Expert Determination). Following the issuance of the Expert Determination, dSL indicated that it had discovered that Dr. Santiago Tawil had co-chaired a panel at a conference in February 2011 (Conference) entitled "The quest for optimizing the dispute resolution process in major sport-hosting events."

      On 2 November 2013, dSL filed Reconsideration Request 13-16 (Request 13-16), seeking reconsideration of the Expert Determination on the grounds that: (1) the Expert applied the wrong standard for assessing community objections; and (ii) the Expert failed to disclose material information relevant to his appointment, meaning his involvement in the Conference. dSL argued that the Expert's involvement in the Conference indicated that the Expert was attempting to create connections within the organized sporting industry, an industry of which SportAccord was a part. On 8 January 2014, ICANN's Board Governance Committee (BGC) denied Request 13-16. With respect to dSL's argument about the Expert's alleged failure to disclosure information relevant to his involvement in the Conference, the BGC noted that pursuant to the Guidebook, the ICC Rules of Expertise govern challenges to the appointment of experts, and that dSL had provided no evidence that either the Expert, or the ICC itself, had failed to follow the ICC's rules.

      On 6 February 2014, dSL filed a complaint with ICANN's Ombudsman ("Complaint") reiterating the arguments dSL had raised in Request 13-16 regarding the substantive findings of the Expert Determination.

      According to dSL, on 25 March 2014, it discovered that: (i) DirecTV, a client of the Expert's firm, acquired broadcasting rights for the Olympics from the IOC on 7 February 2014; and (ii) a partner in the Expert's law firm is the president of Torneos y Competencias S.A. (TyC), a company that has a history of securing Olympic broadcasting rights. dSL forwarded this information to ICANN's Ombudsman in support of its Complaint.

      In addition, on 27 March 2014, dSL sent a letter to the ICC regarding this information, stating that in dSL's view there was "little question… that Dr. Tawil provided false and/or information [sic] in respect to his declaration of impartiality" and requesting further information regarding the "specific steps leading to the selection and the appointment of Dr. Guido Tawil by the relevant ICC Standing Committee, including but not limited to any correspondence, minutes and the CVs of other potential candidates who may have been suggested." On 29 March 2014, the ICC responded and informed dSL that the ICC's Rules and the Practice Note "set a specific time limit for objections," and that the case had been closed and "neither the [Practice Note] nor the [ICC's] Rules provide[d] a basis for reopening of a matter or a challenge of the Expert after closure of the matter."

      On 31 March 2014, without seeking comment from the ICC, and relying solely on the ICC's letter to dSL, the Ombudsman sent an email to ICANN, copying dSL, regarding dSL's Complaint and recommending that the Community Objection be reheard with a different expert. On 1 April 2014, the ICC sent a letter to ICANN, objecting that the Ombudsman had never contacted the ICC for comment regarding the issue of the Expert and that it "was not given the opportunity to provide [the Ombudsman] with information relevant to the issues raised in the letter or to request additional comments from the concerned expert." In response, the Ombudsman clarified for dSL that his email was not a final report and recommendation, and offered the ICC a chance to comment.

      On 2 April 2014, dSL filed Reconsideration Request 14-10 (Request 14-10), seeking reconsideration of: (i) the BGC's denial of Request 13-16; (ii) the Expert Determination, and (iii) the ICC's appointment of the Expert. As a result, the Ombudsman closed dSL's pending Complaint – pursuant to Article V, Section 2 of ICANN's Bylaws, a complaint with the Ombudsman may not be pursued concurrently with another accountability mechanism, such as a request for reconsideration. On or about 13 May 2014, the Ombudsman advised ICANN that dSL had confirmed that it was fully aware of this Bylaws provision and chose to pursue its Request 14-10, rather than its Complaint with the Ombudsman.

      On 21 June 2014, the BGC recommended that the Request 14-10 be denied, finding that dSL's arguments regarding the allegedly newly- discovered information regarding the Expert's conflict of interest were not timely, under the ICC's rules, and did not support reconsideration because neither the DirecTV contract nor the TyC relationship was evidence of a conflict of interest sufficient to support reconsideration. On 18 July 2014, ICANN's New gTLD Program Committee ("NGPC") accepted the BGC's recommendation.

      dSL then initiated a Cooperative Engagement Process (CEP) with ICANN, and subsequently filed an IRP. dSL's IRP Request, submitted on 24 March 2015, requested that ICANN be "required either to overturn the determination […] and allow the Claimant's application to proceed on its own merits, or to have the community objection reheard by an independent and impartial expert who has received proper and transparent training."

      On 31 January 2017, the three-member IRP Panel (Panel) issued its Final Declaration. After consideration and discussion, pursuant to Article IV, Section 3.21 of the operative ICANN Bylaws, the Board adopts certain findings of the Panel, which are summarized below, and can be found in full at https://www.icann.org/en/system/files/files/irp-dot-sport-final-declaration-31jan17-en.pdf [PDF, 518 KB].

      The IRP Panel declared dSL to be the prevailing party, and determined that the "action of the ICANN Board in failing substantively to consider the evidence of apparent bias of the Expert arising after the Expert Determination had been rendered was inconsistent with the Articles [of Incorporation], Bylaws and/or the Applicant Guidebook." (Final Declaration at ¶ 9.1(a).)

      Specifically, the IRP Panel declared that "it is for the ICANN Board, through its NGPC, BGC and/or Ombudsman, to preserve and enhance the reliability of the system, the competitive environment of the registration process and the neutrality, objectivity, integrity and fairness of the decision-making system." (Final Declaration [PDF, 518 KB] at ¶ 7.71 (emphasis in original).) The IRP Panel further stated that the "duty of impartiality and independence is an ongoing one; the duty to disclose information that may, in the eyes of a party, give rise to concerns as to the impartiality or independence of the Expert continues throughout the dispute resolution process until a final decision is rendered." (Final Declaration [PDF, 518 KB] at ¶ 7.57.) The IRP Panel further indicated that "[h]ad the BGC considered and assessed the new information and determined that it did not give rise to a material concern as to lack of independence or impartiality so as to undermine the integrity or fairness of the Expert Determination, and refused reconsideration on that basis, that action or decision may have been unreviewable." (Final Declaration [PDF, 518 KB] at ¶ 7.73.)

      The IRP Panel further declared that: (i) the ICANN Board "did not follow or refer to [the Ombudsman's] recommendation in considering the Reconsideration Request," which the IRP Panel determined was a "relevant factor for this IRP Panel's consideration as to whether or not the ICANN Board acted in accordance with its governing documents" (Final Declaration [PDF, 518 KB] at ¶¶ 7.76-7.77)1; and (ii) "the BGC did not consider the IBA Conflict Guidelines (although it accepts in its submissions in this IRP that they are the standard governing neutrals), or any other standards for the requirements of independence and impartiality in neutral, binding, decision-making bodies" (Final Declaration [PDF, 518 KB] at ¶ 7.88).

      The IRP Panel also declared that "[t]he BGC failed to take into account the problems that arise from what the Expert did not disclose in his Statement of Impartiality and Independence. He did not disclose the panel participation that gave rise to the first Reconsideration Request, nor any existing DirecTV relationship that ultimately gave rise to the DirecTV Contract or the TyC Relationship. […] All or some of these matters may give rise to apparent bias and the fact that they were not disclosed cannot be preclusive of any reconsideration in relation to them." (Final Declaration [PDF, 518 KB] at ¶ 7.83 (emphasis in original).)

      The IRP Panel further declared that "the IRP Panel is of the view that in order to have upheld the integrity of the system, in accordance with its Core Values, the ICANN Board was required properly to consider whether allegations of apparent bias in fact gave rise to a basis for reconsideration of an Expert Determination. It failed to do so and, consequently, is in breach of its governing documents." (Final Declaration [PDF, 518 KB] at ¶ 7.90.)

      The IRP Panel further declared that: (i) the ICDR and Panel fees and expenses "shall be borne entirely by ICANN"; (ii) "ICANN shall reimburse to the Claimant its share of fees and expenses of the Panel and ICDR in the sum of US$79,211.64 upon demonstration by Claimant that these incurred fees and expenses have been paid"; and (iii) each party "shall be responsible for its own fees and expenses." (Final Declaration at ¶¶ 8.5 and 9.1(c).)

      The IRP Panel further declared that: (i) "neither the NGPC acceptance of the Expert Determination nor the IRP itself is intended to be an appeal process or forum for substantive review of Expert Determinations"; (ii) "at present no such appeal process [for Expert Determinations] exists"; and (iii) "[a]ccordingly, it is not currently possible for the Claimant to seek or obtain substantive review of the Expert Determination." (Final Declaration [PDF, 518 KB] at ¶¶ 7.49-7.50.)

      The IRP Panel recommended that the "Board reconsider its decisions on the Reconsideration Requests, in the aggregate, weighing the new evidence in its entirety against the standard applicable to neutrals as set out in the IBA Conflict Guidelines." (Final Declaration [PDF, 518 KB] at ¶ 9.1(b).)2

      As required, the Board has considered the Final Declaration. As this Board has previously indicated, the Board takes very seriously the results of one of ICANN's long-standing accountability mechanisms. The Board notes that the scope of the relevant reconsideration requests was limited to determining whether established policies or processes were followed (in this instance, by third-party providers) as compared to a substantive review of the underlying impartiality allegation. However, for the reasons set forth in this Resolution and Rationale, the Board has accepted the IRP Panel's Final Declaration as indicated above. In implementing the IRP Panel's recommendation, dSL's Reconsideration Requests will be re-reviewed in accordance with the Bylaws in effect when the Board made its previous determinations on dSL's Reconsideration Requests, as those are the Bylaws that were in place when the Board (via the BGC and NGPC, respectively) made its determinations at issue in the IRP.

      Taking this decision is not expected to have a direct financial impact on the organization, although if it does, such impact has been contemplated. Adopting the IRP Panel's Final Declaration will not have any direct impact on the security, stability or resiliency of the domain name system.

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

    4. Approval of Community Anti-Harassment Policy

      Maarten Botterman introduced the agenda item. He stated that the Board agreed explicitly to address the issue of anti-harassment after a triggering event at ICANN55. The development and approval of the Community Anti-Harassment Policy (Policy) is part of the Board's commitment to address the matter.

      Maarten explained that the Policy was developed with community consultation through a public comment proceeding. All comments from the public comment proceeding were considered by the Board. Additionally, the Board took into consideration the community feedback provided during the community session during ICANN58. In particular, Marteen noted that the Board recognized the discussion during the community session relating to the role of the Office of the Ombudsman in the reporting and complaint aspect of the Policy. Notwithstanding the fact that the current Ombudsman has expertise in this area, the Board will continue to monitor any issues that arise as a result of using the Ombudsman for this purpose. Maarten further noted that while the Policy only applies to the ICANN community and not the ICANN Organization, the Organization has in place an established anti-harassment internal policy. As part of implementing the Policy, ICANN will have an education and awareness campaign for the community.

      George Sadowsky expressed his support for the proposed Policy, and regret that the Policy started as a response to an unpleasant event at an ICANN event. George noted that the adoption of this Policy should bring ICANN closer to an environment characterized by fair and respectful treatment by everyone in the community, particularly for the members who are new to the ICANN community or who are considering joining the community.

      Khaled Koubaa reiterated his support for the Policy, and suggested that the Policy be available in various languages so that the community would be able to read the Policy and be guided by it.

      Cherine Chalaby noted that following the community session on the Policy, the resolution was revised to make ICANN Organization's Human Resources department available to assist in complaints where the complainant has indicated a preference to engage with a person of a different gender than the current Ombudsman.

      The Chair acknowledged that the resolution reflects that there was an incident and a heightened awareness of other incidents. The Chair emphasized that ICANN takes this issue very seriously.

      Maarten moved and Ram Mohan seconded the proposed resolution. The Board then took the following action:

      Whereas, during and after ICANN55, the issue of certain community-member conduct toward one another was raised in various sessions and lists, and the Board agreed to address this matter.

      Whereas, among other things, the Board approved revised the ICANN Expected Standards of Behavior, and directed "the President and CEO, or his designees to retain an expert . . . to assist in the development of a Community anti-harassment policy/procedure to be followed at ICANN Public Meetings, which could include items such as complaints handling and resolution and enforcement processes." (Resolution 2016.05.15.05)

      Whereas, the Board authorized the posting for public comment a proposed ICANN Community Anti-Harassment Policy (Policy) for the community's consideration and input.

      Whereas, all the comments received during the public comment period generally supported the proposed Community Anti-Harassment Policy.

      Whereas, some comments called for the addition of enhancements to the Policy and some raised questions about the role of the Ombudsman in evaluating complaints initiated under the Community Anti-Harassment Policy.

      Resolved (2017.03.16.11), the Board hereby adopts the Community Anti-Harassment Policy as revised to address some issues raised during the public comment period.

      Resolved (2017.03.16.12), the Board directs the President and CEO, or his designee(s), to (1) ensure that the Organization continues to monitor whether the Office of the Ombudsman is the appropriate place for Community members to file a complaint under the Community Anti-Harassment Policy, and to annually review the Policy for future enhancements, as needed; (2) make ICANN Organization's Human Resources department available to assist in complaints where the complainant has indicated a preference to engage with a person of a different gender than the current Ombudsman.

      All members of the Board present voted in favor of Resolutions 2017.03.16.11 and 2017.03.16.12. The Resolutions carried.

      Rationale for Resolution 2017.03.16.11 – 2017.03.16.12

      During and after ICANN55, the issue of certain community-member conduct towards one another was raised in various sessions and lists, and the Board agreed to address this matter. In response, the Board approved revised ICANN Expected Standards of Behavior, and directed "the President and CEO, or his designees to retain an expert…to assist in the development of a Community anti-harassment policy/procedure to be followed at ICANN Public Meetings, which could include items such as complaints handling and resolution and enforcement processes." (Resolution 2016.05.15.05)

      In November 2016, the Board authorized the posting for public comment a proposed ICANN Community Anti-Harassment Policy (Policy) [PDF, 72 KB]. The Policy sets out how participants in the ICANN community are expected to behave when participating in ICANN's multistakeholder processes. It was created following consultation with experts and after consideration of the public comments received on the already adopted revised Expected Standards of Behavior. As was stated in response to the comments received on the proposed revisions to the Expected Standards of Behavior, the next anticipated step was to develop and post for public comment a more detailed policy and complaint procedure. The Policy sets out how participants in the ICANN community are expected to behave when participating in ICANN's multistakeholder processes, as well as a complaint and handling procedures for when community members feel that someone has violated the Policy.

      Fourteen comments were submitted during the public comment period, which the Board has considered. Additionally, after the close of the public comment period, ICANN was made aware that the Centre for Internet and Society (CIS) unsuccessfully attempted to submit a comment during the public comment period. CIS's comment has been provided to the Board for consideration. Overall, the commenters applauded the development of the Policy. Several organizations and individuals suggested the inclusion of a mission statement. Some commenters suggested that the Policy make clear that the definition of harassment means unwelcomed nonconsensual conduct, particularly given that the appropriateness of conduct may vary by social norms. Some commenters indicated that the Office of the Ombudsman should not handle evaluation of complaints made under the Policy because it appears to vest too much power in the Office of the Ombudsman.

      As always, the Board thanks and appreciates the commenters for their views about certain terminology in the Policy. The Board also acknowledges and appreciates the questions raised about whether the Office of the Ombudsman is best suited to handle complaints made under the Policy.

      Based on the comments received, the Organization has made some terminology revisions to address many of the comments. Those are reflected in the redline version of the draft Policy, which is attached as an exhibit to the Reference Materials. With respect to the comments made about the Office of the Ombudsman, the Board agrees that these comments are worthy of further consideration. However, the Board is also concerned that the development of another mechanism or structure to handle complaints made under the Policy would cause further delay in adopting this important Policy. Accordingly, the Board has resolved to adopt the Policy as revised, but to direct the Organization to further evaluate the comments about the Office of the Ombudsman, and monitor any issues that arise as a result of using the Ombudsman for this purpose.

      As part of that further evaluation process, the Board would like to point out that the Office of the Ombudsman is chartered to address complaints that may be made under the Policy. As stated in Article 5, Section 5.2 of the Bylaws,

      The principal function of the Ombudsman shall be to provide an independent internal evaluation of complaints by members of the ICANN community who believe that the ICANN staff, Board or an ICANN constituent body has treated them unfairly. The Ombudsman shall serve as an objective advocate for fairness, and shall seek to evaluate and where possible resolve complaints about unfair or inappropriate treatment by ICANN staff, the Board, or ICANN constituent bodies, clarifying the issues and using conflict resolution tools such as negotiation, facilitation, and "shuttle diplomacy" to achieve these results.

      (Bylaws, Art. 5, § 5.2, https://www.icann.org/resources/pages/governance/bylaws-en/#article5.) In light of the above, it does seem that handling complaints from the community about how others in the community are treating them is directly in line with the function the Office of the Ombudsman is intended to serve under the Bylaws.

      Nevertheless, the Board does take seriously the comments received about the Office of the Ombudsman. Accordingly, the Board has directed the President and CEO, or his designee(s), to ensure that the Organization continues to monitor whether the Office of the Ombudsman is the appropriate place for Community members to file a complaint under the Policy, and to annually review the Policy for future enhancements, as needed.

      As part of implementing the Policy, ICANN will have an education and awareness campaign for the community.

      The Board further notes that while the Policy applies to participants in the ICANN community, the Board acknowledges that persons who work for the Organization should be free from harassment and that the Organization has in place an established anti-harassment internal policy.

      This action is not intended to have any financial impact on the organization and no direct impact on the security, stability or resiliency of the domain name system.

      This is an Organizational Administrative Action not requiring public comment at this stage as the underlying Policy has already been subject to public comment.

    5. AOB

      1. Protections for Red Cross/Red Crescent Movement Identifiers in gTLDs

        Markus Kummer introduced the agenda item and explained that there are inconsistencies between Governmental Advisory Committee (GAC) public policy advice and Generic Names Supporting Organization (GNSO) consensus policy recommendations regarding second-level protections in all gTLDs for certain identifiers of the Red Cross and Red Crescent Movement. This proposed resolution came about because of facilitated discussions between the GNSO and the GAC, at ICANN57 in Hyderabad and continuing to ICANN58.

        Markus noted that the proposed resolution requests the GNSO to consider amending its consensus policy recommendations regarding certain identifiers of the Red Cross and Red Crescent Movement. Markus also thanked all of the those who participated in the facilitated discussions during ICANN58.

        Lito Ibarra suggested an amendment to the resolution to make it clear that the request from the Board to the GNSO is for the GNSO to "consider" amending its consensus policy recommendations. Chris Disspain noted that the wording of the resolution had been discussed with the respresentatives from the GAC and the GNSO, and suggested that the Board not amend the language. Chris highlighted that the language of the resolution seemed to already reflect that the Board is making a request of the GNSO – not mandating the GNSO to take a particular action. Khaled Koubaa agreed, and Lito withdrew his proposed amendment.

        Cherine Chalaby acknowledged the progress made on this topic and expressed his appreciation for the amount of work that has been spent to reach this point. Other Directors shared the same sentiment and thanked Bruce Tonkin for his work.

        Markus moved and Cherine Chalaby seconded the resolution. The Board then took the following action:

        Whereas, at ICANN57 in Hyderabad the Board proposed that the GAC and the GNSO engage in a facilitated, good faith discussion to attempt to resolve outstanding inconsistencies between GAC public policy advice and GNSO consensus policy recommendations regarding second-level protections in all gTLDs for the identifiers (names and acronyms) of International Governmental Organizations (IGOs) and International Non-Governmental Organizations (INGOs). This includes certain identifiers of the International Red Cross and Red Crescent Movement (referred to as "Scope 2 Identifiers" in the Policy Development Process (PDP) Working Group Final Report on the Protection of IGO and INGO Identifiers in All gTLDs [PDF, 644 KB]).

        Whereas, the Board acknowledged that any outcome of any dialogue between the affected parties would be conditioned on, and would be reviewed according to, the GAC's and the GNSO's own internal processes.

        Whereas, representatives from the GAC and the GNSO engaged in a facilitated discussion at ICANN58 in Copenhagen concerning protections for International Red Cross and Red Crescent Movement identifiers (Recommendation 5) in Section 3.1. of the PDP Working Group's Final Report.

        Whereas, the starting place for the facilitated discussion was a problem statement and briefing materials reviewed by the affected parties (https://community.icann.org/x/hIPRAw).

        Whereas, during the facilitated discussion, the interested parties discussed the following matters:

        (1) The GAC's rationale for seeking permanent protections for the identifiers of the International Red Cross and Red Crescent Movement and its respective components (including the 190 National Red Cross and Red Crescent Societies and the Movement's two international organizations – the International Committee of the Red Cross and the International Federation of Red Cross and Red Crescent Societies), is grounded in the protections of the designations "Red Cross", "Red Crescent", "Red Lion and Sun", and "Red Crystal" under the laws in force in multiple national jurisdictions; and the global public policy considerations in the protections of the identifiers of the respective Red Cross and Red Crescent organizations from forms of misuse in the domain name system, including from fraud and embezzlement in times of humanitarian crises.

        (2) The list of names of the National Red Cross and Red Crescent National Societies submitted for protection is finite and comprises the names of the 190 National Societies recognized within the International Red Cross and Red Crescent Movement – the Movement – both in English and in each National Society's official national language(s) and script(s).

        The number of National Societies (see the official list of National Societies at http://www.ifrc.org/Docs/ExcelExport/NS_Directory.pdf [PDF, 657 KB]) is limited and only subject to increase further to the future recognition within the Movement of new National Societies (a development that remains subject to a strict process and to strict conditions defined in the Statutes of the Movement). In accordance with the Fundamental Principle of Unity, there can only be one National Red Cross, Red Crescent or Red Crystal Society in any one country.

        The National Societies' names submitted for protection in the DNS include the official names of the 190 National Societies recognized within the Movement, as well as where these are distinct, their usual names.

        (3) The respective Red Cross and Red Crescent organizations should preserve the ability to register their names should they require to do so, and there are no other legitimate uses for these names.

        Whereas, the participants in the facilitated discussion took note that, following the completion of the GNSO PDP, the GAC provided additional guidance as to the specific International Red Cross and Red Crescent Movement identifiers for which protections were being sought (https://gacweb.icann.org/download/attachments/28278854/Final%20Communique%20-%20Singapore%202014.pdf?version=1&modificationDate=1397225538000&api=v2 [PDF, 145 KB]).

        Whereas, the GAC issued advice to the ICANN Board in the Copenhagen Communique [PDF, 190 KB] to "request the GNSO without delay to re-examine its 2013 recommendations pertaining to the protections of Red Cross and Red Crescent names and identifiers (defined as 'Scope 2' names in the GNSO process) which were inconsistent with GAC Advice."

        Whereas, the Board has considered the outputs from the facilitated discussion and the GAC's advice in the context of ICANN's mission and ICANN's commitment to carry out its mission in conformity with relevant principles of international law and international conventions and applicable local law, as expressed in ICANN's Bylaws.

        Resolved (2017.03.16.13), the Board requests that the GNSO initiate its process for Amendments or Modifications of Approved Policies, as described in Section 16 of the GNSO PDP Manual, to consider amending Recommendation 5 in Section 3.1. of the PDP Working Group Final Report, as follows:

        (1) The full names of the 190 Red Cross National Societies and the full names of the International Committee of the Red Cross and International Federation of Red Cross and Red Crescent Societies are to be placed into Specification 5 of the Base gTLD Registry Agreement, with an exception procedure to be created for cases where the relevant Red Cross Red Crescent Movement organization wishes to apply for their protected string at the second level;

        (2) In placing the specified identifiers into Specification 5 of the Base gTLD Registry Agreement, this should apply to an exact match of the full name of the relevant National Society recognized by the International Red Cross and Red Crescent Movement (in English and the official languages of its state of origin), the full names International Committee of the Red Cross and International Federation of Red Cross and Red Crescent Societies (in the six official United Nations languages) and a defined limited set of variations of these names; and

        (3) In considering the Board's request, the Council is requested to duly take into account these factors and the public policy advice to reserve the finite list of names of the Red Cross and Red Crescent National Societies, as recognized within the International Red Cross and Red Crescent Movement, in all gTLDs.

        Resolved (2017.03.16.14), the Board thanks Dr. Bruce Tonkin for facilitating the GAC-GNSO discussions on this topic, and thanks the GAC and the GNSO representatives who participated in the facilitated discussions for their good faith participation and willingness to work toward a reconciliation of the matter.

        All members of the Board present voted in favor of Resolutions 2017.03.16.13 and 2017.03.16.14. The Resolutions carried.

        Rationale for Resolutions 2017.03.16.13 – 2017.03.16.14

        Why is the Board addressing the issue now?

        The Board is taking action at this time to advance the community discussions regarding second-level protections in all gTLDs for the identifiers of the International Red Cross Red Crescent Movement. The Board's resolution is related to previous Board actions to address GAC advice and GNSO consensus policy recommendations on the broader issue of protections in gTLDs for the identifiers (names and acronyms) of International Governmental Organizations (IGOs) and International Non-Governmental Organizations (INGOs).

        In November 2013, the GNSO completed a Policy Development Process (PDP), which resulted in consensus policy recommendations for protecting the identifiers of IGOs and INGOs at the top and second level in all gTLDs.

         On 30 April 2014, the Board approved some, but not all, of the GNSO Council consensus policy recommendations from the PDP Working Group's Final Report on the Protection of IGO and INGO Identifiers in All gTLDs [PDF, 644 KB]. At that time, the Board requested additional time to consider the remaining consensus policy recommendations because the Board had received conflicting advice from the GAC on the same topic. The Board decided to facilitate discussions among the relevant parties to reconcile the differences between the GNSO policy recommendations and the GAC advice on the topic.

        Between June 2014 and January 2015 the Board and the GNSO Council engaged in discussions of the inconsistency between GAC advice and GNSO-approved policy, which raised the possibility of the GNSO considering a modification of its PDP recommendation concerning the Scope 2 Identifiers of the International Red Cross and Red Crescent Movement (see, e.g., letter from the Board's New gTLD Program Committee (NGPC) Chair to the GNSO Chair of 16 June 2014: https://gnso.icann.org/en/correspondence/chalaby-to-robinson-24jul14-en.pdf [PDF, 276 KB]). Most recently, at ICANN57 the Board proposed that the GAC and the GNSO engage in a facilitated, good faith discussion to attempt to resolve outstanding inconsistencies between GAC advice and GNSO consensus policy recommendations. This included certain identifiers of the International Red Cross and Red Crescent Movement (referred to as "Scope 2 Identifiers" by the PDP Working Group).

        What is the proposal being considered?

        At ICANN58, representatives from the GAC and the GNSO engaged in a facilitated discussion concerning protections for the International Red Cross Red Crescent Movement identifiers (Recommendations 5 and 6 in Section 3.1. of the PDP Working Group's Final Report). This discussion was based on materials reviewed by the affected parties. These specific identifiers under discussion were the 190 names3 of the National Red Cross and Red Crescent Societies (e.g. The Gambia Red Cross Society) (referred to as "Scope 2 Identifiers" by the PDP Working Group).

        The GNSO consensus policy recommendations reflected in the 10 November 2013 Final Report are that the Scope 2 Identifiers are to be placed into the Trademark Clearinghouse for protection via a 90-days Claims Notification process. Representatives of the Movement who participated in the PDP Working Group submitted a minority statement to the PDP Working Group's Final Report noting that the proposed protections for the Scope 2 Identifiers do not reflect the legal protections accorded to the Movement's designations and emblems under international law and local laws in force in multiple jurisdictions.

        Following completion of the GNSO PDP, the GAC provided additional guidance to the Board in its March 2014 Singapore Communique [PDF, 145 KB] regarding protections for the International Red Cross Red Crescent Movement. The GAC referred to its previous advice that the terms associated with the Movement should be protected permanently from unauthorized use, and clarified that this should include the 189 (now 190) National Red Cross and Red Crescent Societies, in English and the official languages of their respective states of origin, as well as the full names of the International Committee of the Red Cross and International Federation of the Red Cross and Red Crescent Societies, in the six (6) United Nations languages.

        During the facilitated discussion, the affected parties discussed the following matters:

        (1) The GAC's rationale for seeking permanent protections for the identifiers of the International Red Cross and Red Crescent Movement and its respective components (including the 190 National Red Cross and Red Crescent Societies and the Movement's two international organizations – the International Committee of the Red Cross and the International Federation of Red Cross and Red Crescent Societies), is grounded in the protections of the designations "Red Cross", "Red Crescent", "Red Lion and Sun", and "Red Crystal" under the laws in force in multiple national jurisdictions; and the global public policy considerations in the protections of the identifiers of the respective Red Cross and Red Crescent organizations from forms of misuse in the domain name system, including from fraud and embezzlement in times of humanitarian crises.

        (2) The list of names of the National Red Cross and Red Crescent National Societies submitted for protection is finite and comprises the names of the 190 National Societies recognized within the International Red Cross and Red Crescent Movement – the Movement – both in English and in each National Society's official national language(s) and script(s).

        The number of National Societies (see the official list of National Societies at http://www.ifrc.org/Docs/ExcelExport/NS_Directory.pdf [PDF, 657 KB]) is limited and only subject to increase further to the future recognition within the Movement of new National Societies (a development that remains subject to a strict process and to strict conditions defined in the Statutes of the Movement). In accordance with the Fundamental Principle of Unity, there can only be one National Red Cross, Red Crescent or Red Crystal Society in any one country.

        The National Societies' names submitted for protection in the DNS include the official names of the 190 National Societies recognized within the Movement, as well as where these are distinct, their usual names.

        (3) The respective Red Cross and Red Crescent organizations should preserve the ability to register their names should they require to do so, and there are no other legitimate uses for these names.

        The participants in the facilitated discussion noted that, following the completion of the PDP, the GAC provided additional guidance as to the specific Movement identifiers for which protection was being sought. Given this, the Board is now requesting that the GNSO Council initiate its process for Amendments or Modifications of Approved Policies, as described in Section 16 of the GNSO PDP Manual, to consider amending Recommendation 5 in Section 3.1. of the PDP Working Group Final Report as follows:

        (1) The full names of the 190 Red Cross National Societies and the full names of the International Committee of the Red Cross and International Federation of Red Cross and Red Crescent Societies are to be placed into Specification 5 of the Base gTLD Registry Agreement, with an exception procedure to be created for cases where the relevant Red Cross Red Crescent Movement organization wishes to apply for their protected string at the second level;

        (2) In placing the specified identifiers into Specification 5 of the Registry Agreement, this should apply to an exact match of the full name of the relevant National Society recognized by the International Red Cross and Red Crescent Movement (in English and the official languages of its state of origin), the full names International Committee of the Red Cross and International Federation of Red Cross and Red Crescent Societies (in the six official United Nations languages) and a defined limited set of variations of these names; and

        (3) In considering the Board's request, the Council is requested to duly take into account these factors and the public policy advice to reserve the finite list of names of the Red Cross and Red Crescent National Societies, as recognized within the International Red Cross and Red Crescent Movement, in all gTLDs.

        As described in the GNSO PDP Manual, the GNSO Council may modify or amend consensus policies prior to final approval by the ICANN Board. This process for doing so includes reconvening or reforming the PDP Team to consider the proposed amendments or modifications, publishing for public comment the proposed revisions or modifications, and GNSO Council consideration of the proposed amendments or modifications.

        Which stakeholders or others were consulted?

        The matter of protections for identifiers of the International Red Cross and Red Crescent Movement has been under discussion in various parts of the community for several years. If the GNSO Council accepts the Board's request to consider amending its consensus policy recommendations, any resulting proposed modifications will be the subject of a public comment period.

        What concerns or issues were raised by the community?

        The community has requested that the Board move forward with resolving this open issue as soon as possible. Additionally, other community concerns about protections for IGOs and INGOs in the GNSO policy recommendations are summarized in rationale to Board Resolutions 2014.04.30.03 – 2014.04.30.05, which is incorporated here.

        What significant materials did the Board review?

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

        • PDP Working Group Final Report
        • GAC Singapore Communique (March 2014)
        • Problem Statement and briefing materials prepared for the GAC-GNSO facilitated dialogue at ICANN58
        • GNSO PDP Manual

        What factors the Board found to be significant?

        In taking this action, the Board has considered the outputs from the GAC-GNSO facilitated discussion in the context of ICANN's mission and ICANN's commitment to carry out its mission in conformity with relevant principles of international law and international conventions and applicable local law, as expressed in ICANN's Bylaws. The Board has also considered its role in considering the consensus policy recommendations developed as part of the bottom-up policy development process, as well as its role in considering advice from the GAC.

        Are there positive or negative community impacts?

        By adopting this resolution, the Board is taking a step to advance the community's work on developing a final resolution of the scope of protections for International Red Cross and Red Crescent Movement identifiers. There are additional outstanding consensus policy recommendations from the Final Report on the Protection of IGO and INGO Identifiers in All gTLDs. The Board will continue to work on a path forward on these remaining open issues related to the protections for IGOs and INGOs.

        Are there fiscal impacts or ramifications on ICANN (strategic plan, operating plan, budget); the community; and/or the public?

        There are no anticipated fiscal impacts on ICANN, the community or the public related to the Board's action.

        Are there any security, stability or resiliency issues relating to the DNS?

        There are no security, stability, or resiliency issues related to the DNS as a result of the Board's action.

        This is an Organizational Administrative Function of ICANN not requiring public comment.

      2. Thank You to Glen de Saint Géry

        Becky Burr introduced the agenda item to thank Glen de Saint Géry for her service to ICANN and the community.

        Becky moved and the Chair seconded the resolution. The Board took the following action:

        Resolved (2017.03.16.15), Glen de Saint Géry has earned the deep appreciation of the ICANN Board for her dedicated service to the ICANN community. The Board wishes her well in her future endeavors within the ICANN community and beyond.

        All members of the Board present voted in favor of Resolution 2017.03.16.15. The Resolution carried.

      The Chair then called the meeting to a close.

Published on 19 May 2017


1 After the issuance of the Final Declaration, SportAccord contacted the IRP Panel and indicated that the Ombudsman issued a final report on 25 August 2014, and therefore suggested that the Panel made a mistake in paragraph 7.77 of the Final Declaration. The Panel responded "that it will not make any changes to the Final Declaration" because: (1) "no application has been made by either party pursuant to the ICDR Rules to correct 'any clerical, typographical, or computational error in the Declaration,' including at paragraph 7.77"; (2) "it is not clear that any change to the Final Declaration in relation to Sport Accord's concerns regarding paragraph 7.7 would fall within the scope of 'any clerical, typographical, or computational error' for the Panel to correct on its own initiative"; and (3) the discussion in the Final Declaration at paragraph 7.77 remains accurate in the context of the discussion because the Ombudsman had not proceeded to a final report prior to the Second Reconsideration Request decision."

2 On 1 March 2017, SportAccord sent a letter to the Board Governance Committee, providing SportAccord's analysis of the Final Declaration and suggested procedures for moving forward with the Panel's recommendation (available at https://www.icann.org/en/system/files/correspondence/baumann-to-disspain-01mar17-en.pdf [PDF, 467 KB]).

3 At the time of the development of the consensus policy recommendations, there were 189 National Society names. One additional National Society was approved in the intervening period and a few additional names are in the process of being approved.

Domain Name System
Internationalized Domain Name ,IDN,"IDNs are domain names that include characters used in the local representation of languages that are not written with the twenty-six letters of the basic Latin alphabet ""a-z"". An IDN can contain Latin letters with diacritical marks, as required by many European languages, or may consist of characters from non-Latin scripts such as Arabic or Chinese. Many languages also use other types of digits than the European ""0-9"". The basic Latin alphabet together with the European-Arabic digits are, for the purpose of domain names, termed ""ASCII characters"" (ASCII = American Standard Code for Information Interchange). These are also included in the broader range of ""Unicode characters"" that provides the basis for IDNs. The ""hostname rule"" requires that all domain names of the type under consideration here are stored in the DNS using only the ASCII characters listed above, with the one further addition of the hyphen ""-"". The Unicode form of an IDN therefore requires special encoding before it is entered into the DNS. The following terminology is used when distinguishing between these forms: A domain name consists of a series of ""labels"" (separated by ""dots""). The ASCII form of an IDN label is termed an ""A-label"". All operations defined in the DNS protocol use A-labels exclusively. The Unicode form, which a user expects to be displayed, is termed a ""U-label"". The difference may be illustrated with the Hindi word for ""test"" — परीका — appearing here as a U-label would (in the Devanagari script). A special form of ""ASCII compatible encoding"" (abbreviated ACE) is applied to this to produce the corresponding A-label: xn--11b5bs1di. A domain name that only includes ASCII letters, digits, and hyphens is termed an ""LDH label"". Although the definitions of A-labels and LDH-labels overlap, a name consisting exclusively of LDH labels, such as""icann.org"" is not an IDN."