Minutes | Board Governance Committee (BGC) Meeting
BGC Attendees: Rinalia Abdul Rahim, Cherine Chalaby, Chris Disspain (Chair), Asha Hemrajani, Markus Kummer, Mike Silber, and Ram Mohan
Other Board Member Attendees: Ron da Silva, Lousewies van der Laan
ICANN Executive and Staff Attendees: Akram Atallah (President, Global Domains Division), Michelle Bright (Board Operations Content Manager), Samantha Eisner (Deputy General Counsel), John Jeffrey (General Counsel and Secretary), Vinciane Koenigsfeld (Board Operations Content Manager), Elizabeth Le (Senior Counsel), Wendy Profit (Manager, Board Operations), Lisa Saulino (Board Operations Senior Coordinator), and Amy Stathos (Deputy General Counsel)
The following is a summary of discussions, actions taken, and actions identified:
Reconsideration Requests 13-16 and 14-10 – The BGC received a briefing on Reconsideration Requests 13-16 and 14-10 (collectively the Requests), filed by dot Sport Limited (the Requestor) challenging the Expert Determination upholding the community objection filed against the Requestor's application for the .SPORT string (Expert Determination) on the basis that the Expert that presided over the objection proceeding failed to disclose certain evidence of alleged bias. The BGC and Board previously denied Requests 13-16 and 14-10 because the Requests did not state a basis for consideration. The Requestor initiated Independent Review Process (IRP) proceedings against ICANN challenging the Expert Determination, and the BGC's and Board's denial of Requests 13-16 and 14-10. The Requestor was named as the prevailing party in the IRP. As part of its findings, 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." On 16 March 2017, the Board accepted the IRP Panel's recommendation and directed the BGC to re-evaluate the relevant Reconsideration Requests. The BGC has now re-evaluated Requests 13-16 and 14-10 in accordance with the Board's directive. The BGC carefully considered whether the alleged evidence of apparent bias should have been disclosed by the Expert in light of the IBA Conflict Guidelines. The BGC also evaluated the Ombudsman Final Report, which was issued after the NGPC's determination on Request 14-10. The BGC notes that its previous findings regarding timeliness of delivery by the Requester to ICANN of the alleged conduct that the Requester suggested should have been disclose by the Expert are not relevant to the BGC's re-evaluation of Requests 13-16 and 14-10. Following careful consideration of the alleged evidence of bias in light of the IBA Conflict Guidelines, the BGC has concluded that the Guidelines did not mandate the Expert to disclose that: (i) DirecTV, a client of the Expert's law firm, acquired broadcasting rights for the Olympics from the International Olympic Committee on 7 February 2014 (the DirecTV Contract); (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 (the TyC Relationship); or (iii) the Expert 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." Accordingly, because the Expert was not required under the IBA Conflict Guidelines to disclose any of the alleged conduct giving rise to the claims of apparent bias asserted by the Requestor, reconsideration is not warranted. The BGC further concluded that the alleged conflicts 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. The BGC approved a motion recommending that the Board again deny Requests 13-16 and 14-10.
- Action: ICANN organization to prepare briefing materials for consideration by the Board.
Reconsideration Request 17-1 – The BGC received a briefing on Reconsideration Request 17-1 (Request 17-1) filed by Russ Smith, seeking reconsideration of the ICANN Contractual Compliance department's decisions to close both his WHOIS Service Level Agreement (SLA) Complaint concerning the domain name directorschoice.com, and his follow-up complaint expressing his dissatisfaction with the handling of his WHOIS SLA Complaint without making the requested historical WHOIS data for directorschoice.com available. The Requestor is the named registrant for directorschoice.com. The Requestor submitted a WHOIS SLA Complaint essentially asking ICANN to produce, or compel Verisign to produce, the historical WHOIS data for directorschoice.com, which the Requestor stated Verisign refused to do. ICANN's Contractual Compliance department reviewed the WHOIS SLA Complaint and concluded that: (i) the Registrar Accreditation Agreement (RAA) does not require registrars to provide historical WHOIS data; (ii) the RAA does not apply to registry operators (i.e., Verisign that operates the .COM registry); and (iii) no other ICANN contractual obligation or any established policy requires registry operators to maintain and provide historical WHOIS data. ICANN's Contractual Compliance department then advised the Requestor that ICANN does not have the contractual authority to address any "customer-service related matters that fall outside of the Registrar Accreditation Agreement [ ] or Registry Agreement [ ] and ICANN policies" and thereafter closed the Requestor's WHOIS SLA Complaint. Thereafter, the Requestor submitted another complaint with ICANN's Contractual Compliance department (Complaint Ticket), expressing his dissatisfaction with the handling of his WHOIS SLA Complaint and again requesting that ICANN provide, or compel Verisign to provide, the historical WHOIS data for directorschoice.com. The Contractual Compliance department again determined, and informed the Requestor that the WHOIS SLA Complaint "did not implicate a breach of an ICANN policy or agreement." The Requestor claims that reconsideration of ICANN's decision to close the WHOIS SLA Complaint and Complaint Ticket without action is warranted for two reasons. First, the Requestor claims that making historical WHOIS data publicly available was required under the 2009 Affirmation of Commitments by the United States Department of Commerce and ICANN (AoC), the RAAs, and the Registry Agreements (RAs). The Requestor claims that the WHOIS SLA Complaint was closed "without consideration of material information" in violation of Article 4, Section 2(c)(ii) of ICANN's Bylaws.
The BGC noted that Request 17-1 was submitted pursuant to the Reconsideration process under new Bylaws, which requires that, upon receipt a reconsideration request, the BGC first determine if the request if sufficiently stated. If so, the request is sent to the Ombudsman for review and consideration. On 6 April 2017, the BGC determined that the Request is sufficiently stated and sent the Request to the Ombudsman for review and consideration. The Ombudsman thereafter recused himself from this matter pursuant to Article 4, Section 4.2(l)(iii) of the Bylaws. Following careful consideration of the merits of Request 17-1, the BGC concluded that ICANN did not violate ICANN's Mission, Commitments and Core Values or any established ICANN policy(ies) in its treatment of the WHOIS SLA Complaint or the Complaint Ticket because there is no established policy or procedure that requires ICANN to make historical WHOIS data available to the public. The BGC also concluded that Reconsideration is not warranted because ICANN Contractual Compliance considered all material information when it closed the WHOIS SLA Complaint. The BGC approved a motion recommending that the Board again deny Request 17-1.
- Action: ICANN organization to prepare briefing materials for consideration by the Board.
360 Degree Reviews for Board Members – The BGC discussed the cadence of 360 degree reviews for Board members for their feedback and whether the cadence should be every 18 months versus a continual performance evaluation process. The BGC debated which would provide the most effective feedback for Board members. The BGC also discussed whether a staggered cadence for new and existing Board members of 12 and 18 months, respectively would be more appropriate. The BGC discussed the importance of the reviews as an tool for Board members to help improve their performance over time. The BGC also discussed how the feedback should be discussed with the Board members and it was agreed to consider that the Board Chair, along with another Board member at the choice of the Board member being reviewed.
- ICANN organization to provide timing options for the reviews and the estimated associated costs for each option for the BGC's consideration.
- ICANN organization to present options to the BGC for consideration as to how the Board Chair should provide feedback to the Board members being reviewed.
Community Priority Evaluation (CPE) Process Review Update – The BGC received a briefing on the status of the CPE process review. The first track of the review, which focuses on gathering information and materials from the ICANN organization, including interviews and document collection, was completed in early March 2017. The second track, which focuses on gathering information and materials from the CPE provider, is still ongoing. FTI Consulting Inc.'s (FTI) Global Risk and Investigations Practice (GRIP) and Technology Practice, the consultants conducting the review, is currently waiting on responses from the CPE provider related to the requests for information and documents. The CPE provider is seeking to provide its responses to the information requests by the end of next week and is currently evaluating the document requests. Once the underlying information and data collection is complete, FTI anticipates that it will be able to inform ICANN of its findings within approximately two weeks. The ICANN organization noted that it will be publishing an update on the status of the review within the next few days.
- Action: ICANN organization to continue providing the BGC with updates on the status of the review.
Update on the publication of Committee Activity Reports – The BGC was advised that all the Committee Activity Reports for June to December 2016 have been published. The BGC noted that it previously considered whether some standardization process can be implemented to the format of the Committee Activity Reports. However, it appears that the Committee Activity Reports are already standardize to the extent possible and thus, the format of the Committee Activity Reports of the next publication period (January to June 2017) will not change. One BGC member inquired whether there was a way to capture the number of times the reports are accessed and downloaded from ICANN's website.
- Action: ICANN organization to follow up with Web-admin team regarding availability of statistics on the number of times Committee Activity Reports are accessed and downloaded.
Any Other Business
Nominating Committee (NomCom) Call for Expressions of Interest (EOI) for 2018 NomCom Chair and Chair-Elect – The BGC approved the posting of the Call for EOI for the 2018 NomCom Chair and Chair-Elect, with the deadline for application submission to be after ICANN 59.
Published on 14 June 2017.