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Approved Resolutions | Regular Meeting of the ICANN Board | 21 January 2023

1. Consent Agenda

a. Appointment of Root Server Operator Organization Representative to the RSSAC

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

Whereas, the ICANN Bylaws call for the ICANN Board of Directors to appoint one RSSAC member from each root server operator organization, based on recommendations from the RSSAC Chair.

Whereas, the RSSAC Chair has recommended to the ICANN Board of Directors the appointment of a representative from Internet Systems Consortium to the RSSAC.

Resolved (2023.01.21.01), the ICANN Board of Directors appoints Jeff Osborn to the RSSAC through 31 December 2024.

Rationale for Resolution 2023.01.21.01

In May 2013, the root server operator organizations agreed to an initial membership of representatives for the RSSAC, each nominating an individual. The ICANN Board of Directors approved the initial membership of the RSSAC in July 2013 with staggered terms. The representative from Internet Systems Consortium, Fred Baker, resigned from RSSAC on 31 December 2022.

Today, the Board is taking action pursuant to Article 12, Section 12.2 (c)(ii) of the ICANN Bylaws to appoint members to the RSSAC.

The appointment of the RSSAC members is not anticipated to have any fiscal impact on the ICANN organization that has not already been accounted for in the 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 the RSSAC members contributes to the public interest and the commitment of the ICANN organization to strengthen the security, stability, and resiliency of the DNS in the public interest and in accordance with ICANN's mission.

b. Appointment of Root Server System Advisory Committee (RSSAC) Chair

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

Whereas, the ICANN Bylaws call for the RSSAC to be led by a chair that would be appointed by the ICANN Board of Directors.

Whereas, the RSSAC went through a 30-day nomination period for the RSSAC chair election process.

Whereas, Jeff Osborn achieved the majority of the votes in the election that concluded on 16 December 2022.

Whereas, the RSSAC has recommended to the ICANN Board of Directors the appointment of Jeff Osborn as the RSSAC chair.

Resolved (2023.01.21.02), the ICANN Board of Directors appoints Jeff Osborn as the RSSAC chair through 31 December 2024.

Rationale for Resolution 2023.01.21.02

The ICANN Bylaws require the Board to appoint the chair of the RSSAC. The Board relies on recommendations from the RSSAC in making that appointment. The term of the outgoing RSSAC chair Fred Baker expired on 31 December 2022.

The appointment of the RSSAC chair is not anticipated to have any fiscal impact on the ICANN organization that has not already been accounted for in the 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 the RSSAC chair contributes to the commitment of the ICANN organization to strengthen the security, stability, and resiliency of the DNS in the public interest and in accordance with ICANN's mission.

c. Revisions to the ICANN Documentary Information Disclosure Policy

Whereas, ICANN organization maintains the ICANN Documentary Information Disclosure Policy (DIDP) through which members of the public can request that ICANN's documentary information, that has not already been made public as a matter of course, be made publicly available.

Whereas, in June 2018, as part of the Cross Community Working Group on Enhancing ICANN Accountability's Work Stream 2 (WS2) effort, a group of consensus-based recommendations on accountability enhancements were issued and included, among other categories, recommendations on transparency. (WS2 Final Report, Recommendations 8.)

Whereas, the Board approved the WS2 recommendations contained in the WS2 Final Report in 2019 and directed ICANN org to commence implementation as soon as it is feasible within the parameters of the annual budget and operating plan and the WS2 Implementation Assessment Report.

Whereas, the WS2 recommendations included 21 recommendations relating to the DIDP, as set forth in Recommendations 8.1.1 through 8.1.21. Recommendations 8.1.13, 8.1.19, and 8.1.20 also referenced potential new roles for the Office of the Ombudsman or the Complaints Office relating to the DIDP.

Whereas, to fulfill the DIDP-related Board-approved WS2 recommendations, ICANN org prepared a proposed revised DIDP and published it for public comment. ICANN org also sought community input on the Board-approved WS2 recommendation on the potential expansion of the Office of the Ombudsman or Complaints Office related to the DIDP.

Whereas, ICANN org considered the community feedback received on the proposed revised DIDP and, where appropriate, incorporated the input into the "Revised ICANN Documentary Information Disclosure Policy".

Whereas, the Board Accountability Mechanisms Committee (BAMC) considered the proposed revisions to the DIDP in light of the WS2 Recommendations and the public comment on the proposed updates, including comments received on the potential DIDP-related role of the Office of Ombudsman or Complaints Office within the DIDP Process.

Whereas, the BAMC recommended that the Board approve the updates to the DIDP as set forth in the document titled "Revised ICANN Documentary Information Disclosure Policy" as part of the org's implementation of the DIDP-related Board-approved WS2 recommendations.

Resolved (2023.01.21.03), the Board approves the revised DIDP as set forth in the document titled "ICANN Documentary Information Disclosure Policy (As amended 21 January 2023)".

Rationale for Resolution 2023.01.21.03

The ICANN Documentary Information Disclosure Policy (DIDP) allows members of the public to request that ICANN's documentary information, which ICANN organization has not already made public as a matter of course, be made publicly available. ICANN org, as a matter of course and as part of its commitment to transparency, already makes a large amount of information publicly available. The DIDP describes the types of information that the public can expect to be available and establishes the ability for members of the public to request ICANN to publish additional documents within its possession, custody, or control. The DIDP obligates ICANN org to respond to those requests for documentary information, and ICANN org makes all DIDP Requests and Responses publicly available.

The DIDP was initially developed after community consultation in 2009 and was updated in 2012, again after community consultation. As part of the Cross-Community Working Group on Enhancing ICANN Accountability Work Stream 2 (WS2) effort, a group of consensus-based recommendations were issued regarding, among other categories, transparency. (WS2 Final Report, Recommendation 8.) In November 2019, the ICANN Board approved the consensus recommendations contained in the WS2 Final Report and directed org to start implementing them within the parameters of the annual budget and operating plan and the WS2 Implementation Assessment Report.

The Board-approved WS2 recommendation on transparency, Recommendation 8, included 21 recommendations relating to the DIDP. (See WS2 Final Report, Recommendations 8.1.1 – 8.1.21.) Three of the 21 recommendations on the DIDP, Recommendations 8.1.13, 8.1.19, and 8.1.20, referenced potential new roles for the Office of the Ombudsman or Complaints Office relating to the DIDP.

To fulfill the WS2 recommendations relating to the DIDP, ICANN org revised the DIDP and updated the process document for responding to DIDP requests to align with the DIDP revisions. ICANN org consulted the community through the public comment process on the proposed revised DIDP as well as the potential Office of the Ombudsman or the Complaints Office involvement in the DIDP process. ICANN org utilized the criteria set forth in WS2's Recommendation 5.11 as it relates to the potential expansion of the Office of the Ombudsman beyond the fairness-based complaints that are already within the Ombudsman's responsibilities.

ICANN org considered the community feedback on the proposed revised DIDP and agreed with the commenters on the importance of DIDP. Many of the comments received had already been addressed by the proposed revised DIDP. (See Public Comment Summary Report, Attachment C to the Reference Materials.) Some comments objected to the already Board-approved DIDP-related WS2 recommendations, rather than the proposed implementation of those recommendations. ICANN org is not in a position to incorporate suggested changes to the DIDP that diverge from or change the Board-approved WS2 recommendations, which before they were submitted for Board approval, were approved by the chartering organizations for the WS2 effort and subject to Public Comment.

With respect to the WS2 recommendation regarding the potential expansion of the Office of the Ombudsman or Complaints Office relating to the DIDP, the DIDP does not need to be further revised to include the Office of the Ombudsman and/or Complaints Office for requestors to avail themselves of these review mechanisms, as they are already available to all requestors. Community inputs received on expansion of the Office of the Ombudsman role beyond its fairness determinations did not support the WS2's potential expansion.

Notwithstanding the foregoing, the following language has been added to the revised DIDP to specifically highlight the availability of Office of the Ombudsman if a requestor is not satisfied with a DIDP response:

To the extent a requestor chooses to seek review of a response to a request pursuant to the DIDP, a requestor may seek any of the accountability mechanisms afforded under the Bylaws to the extent applicable, such as the Reconsideration Request process in accordance with Bylaws, Article 4, Section 4.2, or the Independent Review Process in accordance with Bylaws, Article 4, Section 4.3, or Ombudsman process if a requestor believes that the response was unfair in accordance with Bylaws, Article 5.

The BAMC considered the proposed revised DIDP and recommended that the Board approve the revised DIDP is as set forth in the document titled "ICANN Documentary Information Disclosure Policy (As amended 21 January 2023)".

The Board is taking this action today as part of the implementation of the approved WS2 recommendations. Action on Board-approved WS2 recommendations is anticipated in Article 27, Section 27.1 of the ICANN Bylaws, and taking this action is consistent with ICANN's Mission. This action also serves the public interest in reinforcing ICANN's commitment to transparency.

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

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

As required by the ICANN Bylaws, the revisions to the DIDP were already the subject of public comment as discussed above.

d. Revisions to the Board Code of Conduct

Whereas, the Board Governance Committee's (BGC) scope of responsibilities includes oversight of the Board of Directors' Code of Conduct (Code), which involves periodic reviews of the Code, and making recommendations for changes to the Code to the Board as necessary.

Whereas, the BGC recently recommended and reviewed suggested changes to the Code to clarify the Code as it relates to Board member's conduct when acting in their own capacity while serving on the ICANN Board.

Whereas, the BGC recommended that the Board approve revisions to the Code to add clarity.

Resolved (2023.01.21.04), the Board adopts the revised Board of Directors' Code of Conduct.

Rationale for Resolution 2023.01.21.04

Adopting the revised Board of Directors' Code of Conduct (Code) is consistent with ICANN's mission and commitments to ensuring legitimacy and sustainability of the ICANN multistakeholder model by ensuring that the Board members are operating at the highest ethical standards.

The Board Governance Committee has recommended that the Code be revised to enhance the clarity of the Code as it relates to Board members acting in their own capacity while serving on the ICANN Board.

This decision is squarely within the public interest as it is expected to positively impact the manner in which the ICANN Board operates with the public.

The adoption of the revised Code is not expected to have a fiscal impact on ICANN organization.

This decision should not have any negative impact on the security, stability or resiliency of the domain name system.

This is an Organizational Administrative Function not requiring public comment.

2. Main Agenda

a. Approval of Minutes

Resolved (2023.01.21.05), the Board approves the minutes of the 13 July 2022 Special Meeting of the ICANN Board, the 27 July 2022 Special Meeting of the ICANN Board, the 22 September 2022 Regular Meeting of the ICANN Board, the 22 September 2022 Organizational Meeting of the ICANN Board, the 16 November 2022 Special Meeting of the ICANN Board, the 14 December 2022 Special Meeting of the ICANN Board, and the 21 December 2022 Special Meeting of the ICANN Board.

b. Consideration of the Namecheap, Inc. v. ICANN (.BIZ, .INFO, .ORG) Independent Review Process Final Declaration

Whereas, the Final Declaration in the Namecheap, Inc. v. ICANN Independent Review Process regarding .BIZ, .INFO, and .ORG (Namecheap IRP) was issued on 26 December 2022.

Whereas, among other things, the IRP Panel found that "Namecheap has prevailed on some, but not all of its claims," declared that ICANN violated its Articles of Incorporation and/or Bylaws in the manner set forth in the Final Declaration, and declared that ICANN shall reimburse Namecheap the sum of US$58,750 for its share of the IRP costs in accordance with the Bylaws. (Final Declaration at ¶¶ 451, 452, 486, 505.)

Whereas, the IRP Panel made an "overall recommendation […] that the ICANN Board analyze and discuss what steps to take to remedy both the specific violations found by the Panel, and to improve its overall decision making process to ensure that similar violations do not occur in the future," and made certain further recommendations as set forth in the Final Declaration. (Final Declaration at ¶¶ 493, 497-504.)

Whereas, in accordance with Article 4, Section 4.3(x) of the applicable version of the Bylaws, the Board has considered the Final Declaration.

Resolved (2023.01.21.06), the Board acknowledges that the IRP Panel declared the following: (i) Namecheap prevailed on certain of its claims in the Namecheap, Inc. v. ICANN Independent Review Process; (ii) ICANN violated its Articles of Incorporation and/or Bylaws in the manner set forth in the Final Declaration; and (iii) ICANN shall reimburse Namecheap the sum of US$58,750.1

Resolved (2023.01.21.07), the Board directs the Interim President and CEO, or her designee(s), to take all steps necessary to reimburse Namecheap in the amount of US$58,750.

Resolved (2023.01.21.08), further consideration is needed regarding the IRP Panel's non-binding recommendations set forth in the Final Declaration.

Resolved (2023.01.21.09), the Board asks the Board Accountability Mechanisms Committee (BAMC) to review, consider, and evaluate the IRP Panel's Final Declaration and recommendations, and to provide the Board with its recommendation(s) regarding next steps for the Board to consider.

Rationale for Resolutions 2023.01.21.06 – 2023.01.21.09

The 2013 .BIZ, .INFO, and .ORG Registry Agreements (2013 Registry Agreements) were all due to expire in June 2019. In anticipation of the expiration of these agreements, ICANN staff entered into separate negotiations with the respective registry operators to renew the agreements. As with all legacy registry agreements, ICANN's preference was to transition the 2013 Registry Agreements to the "Base Registry Agreement," given its additional protections for registrars and registrants and increased operational efficiencies for ICANN, registry operators, registrars, and registrants. The .BIZ, .INFO, and .ORG registry operators were also interested in moving to and requested to transition to the Base Registry Agreement. The Base Registry Agreement does not contain price control provisions, whereas the 2013 Registry Agreements previously contained such provisions. After conducting its due diligence and briefing the Board regarding the rationale for transitioning .BIZ, .INFO, and .ORG to the Base Registry Agreement, ICANN staff proceeded to renew the Registry Agreements in June 2019 (2019 Registry Agreements) on the Base Registry Agreement as proposed.

Namecheap, Inc. (an ICANN accredited registrar) initiated an Independent Review Process (IRP) in February 2020, challenging the lack of price control provisions in the 2019 Registry Agreements, and ICANN organization's consideration of Public Interest Registry's (PIR's) request for indirect change of control (Change of Control Request). With respect to Namecheap's claims regarding the lack of price control provisions, Namecheap asserted that: (a) ICANN was not transparent in its decision-making process regarding not including price control provisions in the 2019 Registry Agreements; (b) the lack of price control provisions resulted in disparate treatment of .BIZ, .INFO, and .ORG, as compared to similar legacy TLDs such as .COM and .NET; and (c) the lack of price control provisions in the 2019 Registry Agreements violated the renewal clause (Section 4.2) of the 2013 Registry Agreements for .BIZ, .INFO, and .ORG. With respect to Namecheap's claims regarding PIR's Change of Control Request, the Panel dismissed those claims when it granted certain portions of ICANN's motion to dismiss in February 2021.

The final IRP hearing took place from 28 March 2022 to 1 April 2022, and the IRP Panel issued its Final Declaration on 26 December 2022.

In the Final Declaration, the IRP Panel indicated that Namecheap had "prevailed on some, but not all of its claims." (Final Declaration at ¶ 451.) In particular, the Panel agreed with ICANN that Namecheap failed to prove its claim that the removal of the price controls amounted to discriminatory treatment under the Bylaws, because price controls continue to exist in the Registry Agreements for .COM, .NET, and .NAME. The Panel further agreed with ICANN that several of Namecheap's claims were untimely, including all claims involving the .BIZ Registry Agreement renewal, the claim that ICANN should not have allowed registries and registrars to vertically integrate, and the claim that ICANN violated a policy from February 2006 relating to the renewal of legacy Registry Agreements.

Namecheap prevailed on its specific claims regarding the lack of price control provisions in the 2019 Registry Agreements for .INFO and .ORG, with the Panel finding three violations of the Articles of Incorporations and/or Bylaws. Specifically, the Panel declared that:

  • "ICANN's approval of the 2019 Registry Agreements for .ORG and .INFO without price caps violated Article III of the Articles of Incorporation and Sections 1.2(a). 1.2(b), and 3.1 of the Bylaws because ICANN did not act in an open and transparent manner;"
  • "ICANN's approval of the 2019 Registry Agreements for .ORG and .INFO without price caps violated Sections 2.1, 3.4, 3.5, and 3.6(a) of the Bylaws because it involved a policy decision to be made by the ICANN Board, and the ICANN Board did not approve this decision or comply with the procedural requirements for formal Board action;" and
  • "ICANN's approval of the 2019 Registry Agreements for .ORG and .INFO without price caps violated Articles II and III of the Articles of Incorporation and Section 1.2(b)(ii) of the Bylaws because ICANN did not comply with the procedural requirements for ensuring that ICANN promotes the global public interest and acts for the benefit of the Internet community as a whole."

The Panel denied Namecheap's request for cost shifting of legal fees. The Panel found that "neither party has asserted 'frivolous or abusive' claims or defenses." "Accordingly, the Panel applies the general rule that ICANN shall bear all administrative costs paid to the ICDR (including arbitrator fees), and that each party should bear its own legal and expert witness fees and expenses." (Final Declaration at ¶ 451.) The Panel ordered ICANN to reimburse Namecheap the sum of US$58,750.00, the amount that Namecheap paid in IRP costs before ICANN had had the chance to reimburse Namecheap.2 (Final Declaration at ¶ 452.)

In light of its declarations and its view that the noted violations "are procedural rather than substantive in nature," "[t]he Panel's overall recommendation is that the ICANN Board analyze and discuss what steps to take to remedy both the specific violations found by the Panel, and to improve its overall decision making process to ensure that similar violations do not occur in the future." (Final Declaration at ¶ 493.) The Panel also recommended the following (Final Declaration at ¶¶ 497-504):

  • "[D]ecisions as to how to implement the Panel's rulings in this IRP should be made by the ICANN Board";
  • "[T]he ICANN Board should consider creating and implementing a process to conduct further analysis of whether including price caps in the Registry Agreements for .ORG and .INFO is in the global public interest" that encourages participation of diverse stakeholders and "should be conducted in an open and transparent manner that avoids the violations found by the Panel";
  • "[W]hile the ICANN Board should consider what remedial measures to take as to both .ORG and .INFO, the measures for .ORG may be stronger and more extensive than for .INFO" in light of the Panel's finding "that the evidence that price controls should be retained is much stronger for .ORG than for .INFO";
  • "[T]he Board consider whether to retain an expert consultant to conduct a study on issues raised by the Price Cap Decision, such as whether .ORG and .INFO have sufficient market power that price caps may be desirable" and should explain the reasons for not conducting further expert analysis if that decision is made";
  • "[I]f the Board concludes that some form of price controls for .ORG and/or .INFO are in the global public interest, the Panel recommends that ICANN seek to amend the 2019 Registry Agreements to include appropriate price controls";
  • "[T]he ICANN Board may wish to consider approaching the registry operators for .ORG and .INFO about agreeing to some form of price controls, even before evaluating whether price caps are needed and taking the other measures noted above"; and
  • The "Board consider revisions to ICANN's decision making process to reduce the risk of similar procedural violations in the future," such as "adopt[ing] guidelines for determining what decisions involve policy matters for the Board to decide, or what are the issues on which public comments should be obtained."

The Panel also noted: "While providing recommendations is consistent with the purpose of the independent review process, the Panel notes that it has no expertise or experience regarding the internal operations of ICANN, or with the diverse stakeholders in the global Internet community, aside from information presented in this proceeding. Thus, the Panel's recommendations are directed at identifying issues and measures that ICANN should consider and analyze further, in consultation with the Internet community." (Final Declaration at ¶ 492.)

The Board appreciates that the parties participated in good faith in the IRP, and acknowledges that a neutral third-party Panel determined that Namecheap prevailed on certain of its claims, declared that ICANN violated its Articles of Incorporation and/or Bylaws in the manner set forth in the Final Declaration, and declared that ICANN should reimburse Namecheap for its share of the IRP costs as set forth in the Final Declaration. The Board is therefore adopting this resolution so as to not delay the reimbursement of Namecheap for these costs, while the Board continues to consider the Panel's recommendations and/or next steps relating to this matter.

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, which is why the Panel's recommendations are being referred to the Board Accountability Mechanisms Committee (BAMC) for thorough consideration and formulating its recommendation(s) to the Board on next steps.

This action is within ICANN's Mission and is in the public interest as it is important to ensure that, in carrying out its Mission, ICANN is accountable to the community for operating within the Articles of Incorporation, Bylaws, and other established procedures. This accountability includes having a process in place by which a person or entity materially and adversely affected by a Board or organization action or inaction may challenge that action or inaction.

Taking this decision is expected to have a direct financial impact on ICANN in the amount the Panel declared ICANN should reimburse the prevailing party, which was anticipated under the current budget. Further review and analysis of the Panel's recommendations 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.

Published on 24 January 2023

Footnotes

[1] ICANN already agreed, pursuant to the Bylaws, that it would pay for the administrative costs of maintaining an IRP, including panelist fees.

[2] ICANN had already agreed, pursuant to the Bylaws, that it would pay for the administrative costs of maintaining an IRP, including panelist fees.