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Minutes of the Special Meeting of the ICANN Board of Directors 1 October 2008

A Special Meeting of the ICANN Board of Directors was held via teleconference 1 October 2008 @ 0300 UTC. Chairman Peter Dengate Thrush promptly called the meeting to order.

In addition to Chairman Peter Dengate Thrush the following Directors participated in all or part of the meeting: Harald Alvestrand, Raimundo Beca, Susan Crawford, Vice Chairman Roberto Gaetano, Demi Getschko; Steven Goldstein, Dennis Jennings, Rajasekhar Ramaraj, Njeri Rionge (joined in progress), Jean-Jacques Subrenat, Bruce Tonkin, President and CEO Paul Twomey, and David Wodelet. The following Board Liaisons participated in all or part of the meeting: Steve Crocker, SSAC Liaison; Janis Karklins, GAC Liaison; Thomas Narten, IETF Liaison; Reinhard Scholl, TLG Liaison; Wendy Seltzer, ALAC Liaison; and Suzanne Woolf, RSSAC Liaison. The following Board Members were not present on the call: Rita Rodin.

Also, the following ICANN Management and Staff participated in all or part of the meeting: John Jeffrey, General Counsel and Secretary; Doug Brent, Chief Operating Officer; Kurt Pritz, Senior Vice President, Services; Kevin Wilson, Chief Financial Operator; Denise Michel, Vice President, Policy; Barbara Roseman, General Operations Manager, IANA; Kim Davies, Manager, Root Zone Services; Rob Hoggarth, Senior Policy Director; Liz Gasster, Senior Policy Counselor, Policy Support; Diane Schroeder, Director, Board Support, Donna Austin, Manager, Governmental Relations, Mike Zupke, Registrar Liaison Manager, and Craig Schwartz, Chief gTLD Registry Liaison.

The Chairman confirmed the agenda for the meeting and noted that Board Member Rita Rodin was recently married, and expressed that he had conveyed best wishes on behalf of the entire board.

The Chairman also thanked staff for supporting the recent board retreat in Santa Monica.

Approval of Minutes of 28 August 2008

 The Chair moved and Raimundo Beca seconded the motion to accept the minutes of the 28 August 2008 meeting, which have been posted as the Preliminary Report of that meeting.

It is, Resolved (2008-10-01-01) that the Minutes of the Special Board Meeting of 28 August 2008 are hereby approved.

A voice vote was taken of all Board Members present, and the motion was approved by a vote of 13 to 0, with no abstentions. In addition to Rita Rodin, Njeri Rionge was not present for a number of the initial votes.

President’s Report

The Chair noted the receipt by the Board of the President’s Report and noted that it was accepted as read. Paul Twomey noted specific attention to the main work items of staff.

Directors’ Code of Conduct

Steve Goldstein spoke regarding the public comments that had been received and considered by ICANN. John Jeffrey provided a summary of the public comments, noting specifically comments from the Business Constituency, INTA, and the IPC. John Jeffrey further noted that the Board Governance Committee had elected to move forward with the approval of the Code of Conduct and was requesting that the Board direct the Conflicts of Interest Committee to review the Conflicts of Interest Policy with particular regard to the comments that were raised. Steve Goldstein indicated that the comments that were received were well regarded and considered to be very important to this process.

Raimundo Beca raised a concern regarding an overlapping with the framework of accountability that the board voted on in Delhi in February 2008. He indicated that he believed the code of conduct could be confusing for the public and proposed to put into the resolution to ask the staff to build a new framework which includes in one instrument all the codes of conduct. The Chair asked whether this could be managed by the Conflicts of Interest Committee to evaluate and agreed that it may be easier to handle all such related issues in one document. Peter noted that the Conflicts of Interest Committee has already initiated a review of its COI policy and the committee.

Dennis Jennings raised an issue regarding the language in the Code of Conduct that states that Board Members cannot arbitrarily state that they represent the Board of ICANN. The Chair asked whether this could be reviewed in 12 months time, with a review of the document to be calendared for that time. Steve Goldstein noted that the language indicates that the President or his designates speak on behalf of the organization and the Chair is to speak on behalf of the Board at the agreement of the Board. Dennis Jennings inquired whether when Board Members are asked to speak at an event whether they are representing ICANN. The Chair pointed out that the issue might relate to when Board Members are speaking as individuals. John Jeffrey pointed out that it is important for Board Members to understand when they are speaking for the Board and as individuals, and also noted that the 12-month review is called for within the Code of Conduct. The Chair confirmed that the review was built-in to the document and called for a vote, with Steve Goldstein seconding, the following motion.

Whereas the members of ICANN's Board of Directors are committed to maintaining a high standard of ethical conduct;

Whereas the Board Governance Committee developed a Board of Directors’ Code of

Conduct (“DCC”) to provide the Board with guiding principles for conducting themselves in an ethical manner;

Whereas the DCC was posted for public comment from 15 July 2008 through 29

August 2008;

Whereas ICANN has received public comments from the community (i.e. ICANN’s

Business Constituency, the International Trademark Association, and the Coalition for Online Accountability), and the Board Governance Committee has found merit in comments submitted;

It is, Resolved (2008.10.01.02), the Board of Directors adopts the ICANN Directors’ Code of Conduct (“DCC”), and refers the DCC to the Board’s Conflicts of Interest (“COI”) Committee for implementation.

Also, it is, Resolved (2008.10.01.03), the Board of Directors asks the COI Committee, as part of its implementation of the DCC, to review and consider public comments in extending the DCC’s reach and in reviewing possible changes to the COI Policy.

A voice vote was taken of all Board Members present for each resolution, and the motion was approved by a vote of 13 to 0, with no abstentions.

De-Accredited Registrar Transition Procedure

Mike Zupke gave a high-level overview of the De-Accredited Registrar Transition Procedure, which is intended to provide a rapid, objective and predictable procedure for transitioning names from a de-accredited registrar to an ICANN-accredited registrar and enhance the protection for registrants.

Mike noted that the procedure was developed following the participatory workshop held during the ICANN meeting in Delhi and public consultation on the proposed procedure. This is intended to work in tandem with the bulk transfer provision in the Inter-Registrar Transfer Policy when a registrar becomes de-accredited. Mike summarized the procedure and took questions from the Board. He noted that the procedure is intended to be a flexible process. ICANN has been using the procedure in an interim basis for several months.

Jean-Jacques Subrenat recommended that the resolution direct Staff to review the procedure on its anniversary and thereafter at longer intervals.

The Chair asked how ICANN measured community support for the procedure in absence of comments. Mike noted that the procedure was developed from the inputs received in Delhi and that the inputs were generally well-received. Staff undertook efforts to include a diverse group of stakeholders in the workshop.

Harald Tveit Alvestrand noted that the procedure proposed auctions in the case of a de-accredited registrar and he questioned how funds might be handed in such situations. Mike said this was an important point and that auctions were generally expected to operate as an exception to the normal process.

The Chairman said that he assume revenue resulting from an auction would go to the de-accredited registrar, and not to ICANN.

John Jeffrey noted the case-by-case nature of the procedure. The Chairman added that it should be clear there is no intention to gain revenue through this process. Bruce Tonkin noted that this was not clear in the document and there should be an explicit statement that in principle any funds from the procedure would not go to ICANN. John Jeffrey noted that this discussion would be included in the minutes. Susan Crawford added, that she believed these comments were correct, save for payment of outstanding fees owed by the de-accredited registrar to ICANN.

Harald requested clarification of the procedure's guidelines for when ICANN chooses RFP or auction.

There was discussion between Jean-Jacques Subrenat, the Chairman and Bruce Tonkin on where to insert language in the procedure as a high-level principle that the procedure is to enhance the protection of registrants, and any benefits from auction would generally go to pay outstanding ICANN feed and the remainder would be left to the de-accredited registrar in general. The procedure was then modified to explicitly note that its purpose is to protect registrants, not generate revenue for ICANN. Bruce Tonkin noted his conflict of interest as a potential receiving registrar.

The Chairman noted that the procedure should be reviewed from time to time for effectiveness. The resolution relating to the amended text, was then moved by Steve Goldstein and seconded by Jean-Jacques Subrenat

Whereas, Staff has implemented a Registrar Data Escrow program to protect registrants through the escrowing of certain registration data for use upon de-accreditation of an ICANN-accredited registrar;

Whereas, Staff has developed a set of processes entitled the De-Accredited Registrar

Transition Procedure in consultation with the ICANN community to facilitate timely transition of gTLD registrations upon de-accreditation of a registrar to another accredited registrar;

Whereas, the De-Accredited Registrar Transition Procedure has been posted by ICANN for public comment and utilized by Staff on an interim basis;

Whereas, the Board requested that the purpose of the procedure reflect the goal of enhancing the protection to the registrants and that any benefits from an auction would generally go to pay outstanding ICANN fees, with the remainder left for the de-accredited registrar where appropriate;

It is hereby resolved (2008.10.01.04) that the Board adopts the De-Accredited Registrar Transition Procedure and further directs Staff to periodically re-evaluate its effectiveness as the registrar marketplace evolves and make modifications to the procedure as appropriate.

A voice vote was taken of all Board Members present for each resolution, and the motion was approved by a vote of 14 to 0, with no abstentions.

The Board offered thanks to Staff for their work.

Financial Approval of Contractor Agreement for Multiple Language Algorithms relating to New gTLD Program Implementation

Craig Schwartz set out the process ICANN staff pursued to develop a consistent and predictable tool (i.e., the algorithm) to inform the “string confusion” element of the new gTLD project. The development of an algorithm is intended to support the Board approved GNSO recommendation that “Strings should not be confusingly similar to an existing top-level domain or a Reserved Name.”

Paul Twomey noted that is to allocate funds necessary to create the production version of the algorithm. Steve Goldstein questioned whether the contractor would be able to sell the algorithm tool to other people. Craig Schwartz noted that the tool is owned by the contractor and licensed to ICANN. Steve Goldstein asked whether some could gain a prospective advantage by licensing it from the contractor and using it to assess their proposed applications in the process.

John Jeffrey indicated that the tool is intended to be made available to applicants for testing their strings before formal submission and that he believed that the tool was similar to tools used by the contractor in support of national trademark offices and others and that it may not be useful or necessary for us to obtain proprietary rights over the tool applied to our use. John Jeffrey further noted that we had gained advantage from the contractors work for others, as well. The Chair noted that we should protect the ICANN position as warranted. Susan noted that we should be able to get something from the work that is objectively worth paying for and that we should guard against upgrades being escalated inappropriately.

Harald disagreed with Steve Goldstein’s position on this point, indicating that if the contractor goes ahead and sells the product for matching strings to a million other people, the world will be a better place. The algorithms will be tested and that should not cause harm to ICANN. Susan Crawford agreed.

Harald asked whether visual comparison is included in the evaluative tools, and Craig Schwartz responded that the new work would include this component.

Janis Karklins inquired about other language scripts including Korean, Japanese and Arabic languages. Craig Schwartz indicated that the contractor timeline would have those completed by December 2008.

Wendy Seltzer inquired about whether the use by the applicants is included in the licensing. Doug Brent responded that the intention is for the applicants to test their strings. He noted that it is computationally expensive for the whole world to use it, but that if we wanted to do that, the license would let us. Doug Brent further noted that this matters because this comes to internal controls. A budgeted item and an item funded by incremental budget, we’re taking a strict view of not taking a large project and splitting it up into different pieces. We have a good process for this and for implementing next round of changes. We’re taking it to the board with the dates in question. The licensing, and use by our community has remained an important part of this discussion. The Chairman noted that he particularly appreciated the point that this will eventually go back into the other part of the budget, the new gTLD budget, and will be from the cost neutral and cost recovery approach.

Peter Dengate Thrush called for more questions and hearing none he moved the following resolution, which was seconded by Raimundo Beca:

Whereas staff recommended the purchase of algorithm services as required as part of the FY09 Operating Plan and Budget;

Whereas staff researched and investigated multiple options for algorithm service providers, performed due diligence, and identified SWORD as the preferred provider;

Resolved (2008.10.01.05), the Board authorizes the CEO, COO and/or General Counsel to enter into an agreement for algorithm-related services with SWORD for up to US$700,000.

A voice vote was taken of all Board Members present for each resolution, and the motion was approved by a vote of 14 to 0, with no abstentions.

GNSO Council Restructuring

Denise Michel walked the Board through the work on implementation developments regarding GNSO restructuring since the last Board Meeting. She also noted that there are 6 significant matters that carried over for a Board decision from the previous meeting including 1) the role of the 3 rd Nominating Committee Appointee; 2) the processes for electing council leadership; 3) the process for filling board seats 13 and 14; 4) the voting thresholds for Council decisions; 5) the timing for implementation of these elements; and 6) the role of Individual Internet users and their representation in the ICANN structure.

The Chairman noted that the staff briefing materials provided would help the Board work through the issues one-by-one. He suggested that the Board go through the resolutions and vote on each in succession. The following Whereas clauses apply to each of the resolutions below:

Whereas, during its 28 August 2008 meeting the Board made several important decisions regarding the new GNSO Council’s structure, composition, and implementation timing. These decisions included the formation of four new Stakeholder Groups that comprise a new bicameral (two-house) voting structure that was recommended by the Working Group on GNSO Council Restructuring – the WG-GCR.

Whereas, during its 30 September meeting the Board concluded consideration of the WG-GCR Report including its recommendations on Nominating Committee Appointees, election of Council leadership, election of Board seats #13 and #14, voting thresholds for various Council decisions, the role of individual Internet users and their representation within the GNSO, as well as the timing for the implementation of these elements and other key implementation issues.

Role of Third Nominating Committee Appointee

Denise pointed out that the Working Group on GNSO Council Restructuring (WG-GCR) proposed that a 3 rd Nominating Committee Appointee (NCA) be designated to serve as a non-voting member of the Council as a whole. Staff recommended that the Board approve the proposal.

The Chairman noted that there was initial concern expressed during the last Board meeting that all Council members should have votes. He noted that the Board came to realize that requiring such a condition would necessitate a complete reworking of the WG-GCR proposals collectively. Although he believes that all Council should have a voice and a vote, he noted that in this instance the 3 rd NCA will have a significant voice on the new Council. He indicated his view that the Board should go forward and accept the recommendation.

Steve Goldstein noted that he also originally wanted all three NCAs to have a vote, but that after listening to Peter and Denise’s comments, he changed his position and agrees that there is a rationale for them all not to have a vote.

The Chairman called for other comments and questions and then proposed the first recommendation for a vote, and then Steve Goldstein – seconded:

It is, Resolved (2008.10.01.06), as recommended by the WG-GCR, the Board authorizes a third Council-level non-voting Nominating Committee Appointee to serve on the Council whose presence could preserve an independent aspect on the Council and could provide useful management support as the Council moves toward a working group management function.

A voice vote was taken of all Board Members present and the motion was approved by a vote of 14 to 0, with no abstentions.

The Process for Electing Council Leadership

During the previous discussion, Bruce Tonkin noted that in the original WG-GCR Report there was mention of making the 3 rd NCA available to take on the role of Chair if the Council was unable to elect a Chair. Denise Michel noted that this discussion was related to the next issue regarding the election of the Chair and vice Chairs.

Peter Dengate Thrush noted that the WG-GCR had proposed electing the Chair and Vice Chair of the Council with 60% of the vote. A fallback option was that in the event of a failure to produce a Chair the 3 rd Council-level NCA would serve as voting Chair. Peter noted that there was not agreement on this in the previous Board discussion. He noted that Staff recommends the Board authorize electing the Chair consistent with the WG-GCR proposal, but that no fall back position is necessary. Staff suggested that if the 60% support is not found, there should be subsequent balloting until a Chair is elected.

The Chairman asked whether it was safe to assume the risk, and noted that there had never been a deadlock in previous GNSO Council elections. He asked for Bruce Tonkin’s view. Bruce Tonkin indicated that he supported the staff position, and noted that if the Council can’t select a Chair it’s got a much more serious problem.

Susan Crawford also noted that previous GNSO Chairs have always been elected with a higher threshold than the 60%, and indicated her support for that approach and the staff recommendation. She also noted her support that the Nominating Committee Appointee not being the fall back position for a Chair.

The Chairman asked Rob Hoggarth to provide a sense of the compromises that led to this, noting that the board should only turn down a working group recommendation on a well, informed basis.

Rob Hoggarth indicated that there had not been a full consensus of the WG-GCR on this proposal and that there was opposition to the 3rd NCA fall back option by the Intellectual Property Constituency and the Business Constituency. He also noted that there mere existence of the 3 rd Council-level non-voting NCA was a non-consensus compromise of WG-GCR participants.

Denise Michel noted that this proposal did not receive full consensus support of the working group, and expressed concerns that it might be difficult for the Nominating Committee to find an individual who exhibited the ideal qualifications of independence from ICANN groups, knowledgeable of the organization and ability to lead the Council if necessary. She said if a fall back option is needed, the GNSO should be asked to consider it further in its implementation plan.

Steve Goldstein suggested that the Board could direct the GNSO to consider the option further and come back with a full consensus suggestion of how to deal with the issue if members felt strongly that some fall-back option was still needed.

The Chairman noted that the board does not need to decide the fallback mechanism for them and have it recorded as part of the resolution. The Chairman suggested adopting the staff resolution.

With this change the Chairman moved the following resolution and Raimundo Beca seconded:

It is, Resolved (2008.10.01.07), the Board authorizes the GNSO Council to elect a Chair consistent with the recommendation of the WG-GCR – that the GNSO Chair be elected by a vote of 60% of both voting houses and each voting house has the flexibility to create a process for selecting its own Vice Chair. The Board directs the Council to develop a process for subsequent balloting, if needed, until a Council Chair is duly elected. This process should be developed before the first Chair election of the newly structured Council.

A voice vote was taken of all Board Members present for the resolution, and the motion was approved by a vote of 14 to 0, with no abstentions.

Process for Filling Board Seats 13 and 14

Denise Michel set out the issues regarding election of ICANN Board Seats 13 and 14, indicating that Staff did not take a position but suggested the board consider whether the mechanism proposed of electing each seat from different “houses” of the GNSO would have the effect of creating a perception of a greater appearance of a representative role.

John Jeffrey raised an issue of whether the language in the WG-GCR proposal was clear that board seats should not act as representatives from the supporting organization that appointed them, and confirmed that under California law, it is the responsibility of a Director to represent the entire organization once selected.

The Chairman agreed that the language used could be made more clear so as to not conflict with the fiduciary obligations of Board members.

John Jeffrey also pointed out that he thought that narrowing the number of individuals and constituency groups that would be electing each seat would potentially create a negative perception. John Jeffrey suggested that requiring at least 60% of support from both houses would limit the concerns that one house could select the board members and the other would not, while still not limiting the number of individuals and constituency groups involved in the discussion.

The Chairman indicated that he would support the approach of having 60% support of both houses for each board seat. John Jeffrey added that this would require a consensus from both houses for the good of the whole, rather than only one house selecting members more aligned to their interests. John Jeffrey pointed out that when staff looked back through the voting records, there were no recent instances where a Board member from the GNSO was selected by fewer than 60% of the GNSO.

The Chairman confirmed that in his recollection only the DNSO elections in 1999 were very narrowly contested. He added that if we require some joint voting, the perception of a representation issue would be effectively dealt with, and accordingly recommended a vote of both houses. He argued for requiring directors to come from different houses but be appointed by 60% from each.

Susan Crawford indicated that she respectfully disagreed, noting that the suggestions were hard fought within the working group. She noted that the whether it is the entire council or the “house”, it is still a segment of the ICANN community that can elect two directors to the Board.

Susan indicated that she was opposed to the exclusionary rule aspect of the WG-GCR proposal, noting mischief might be created in laying out the characteristics of directors in such detail. She indicated that if you had applied it in the past, Bruce Tonkin and Vint Cerf couldn’t both have served on the Board at the same time.

The Chairman asked which part of the resolution Susan was opposing; the exclusionary rule or the 60% voting or both? Susan Crawford noted that she was opposing the exclusionary rule.

Dennis Jennings suggested that it might be helpful to consider nominations separately from election. Each house nominates the Board member but the GNSO elects it jointly. The Chairman pointed out that he believed that was the current position under consideration.

Harald Tveit Alvestrand suggested that we should just go with the voting. If they make a bad selection than it would work against both houses.

Dennis Jennings indicated his support for John Jeffrey’s suggestion that election should require 60% voting from the Council as a whole.

Raimundo Beca indicated that John makes a strong point and noted that we’re not in a hurry, and that it could be considered further in consultation with the GNSO. He suggested discussing it with the GNSO Council and/or working group. He noted that it is some time before the next election. He suggested that it would be useful to discuss, one house electing the nominees and both houses voting for the election. That would guarantee the nominees at least would be with the agreement of both the houses, but would not be representative of either house.

Steve Goldstein agreed with Susan Crawford and spoke against the exclusionary rule. He said he didn’t want to rule out people who could be casually affiliated with the same group, such as IP lawyers or registrars. He liked the idea to separate the nomination from the election, and Raimundo Beca seemed to second that noting it was a good compromise and seemed to be workable.

The Chairman asked Rob Hoggarth his opinion having supported the working group. Rob noted the value of both suggestions - the separation of nominations and voting, and the elimination of the exclusionary language.

The Chairman conducted a quick set of straw polls on the open issues, noting that there was limited support for the exclusionary rule, only one director supported the working group recommendation and that most were against the working group proposal in favor of the Beca/Jennings proposal.

The Chairman asked Denise Michel on her view of the way to proceed in light of the Board’s concern with the working group’s recommendation. Denise noted that the majority of the constituencies see this as an integral part of their overall support for the consensus. Some constituencies have asked for a clear articulation of the board’s concerns on this issue, and have asked for an opportunity to address alternative proposals. As neither Board seat will need to be filled immediately, she suggested that the Board ask the GNSO to consider the alternatives and consider the concerns of the board members and the General Counsel. The Chairman asked whether a proactive resolution would be useful to clarify a path moving forward and Denise Michel agreed that this would be useful.

The Chairman then asked whether deferring this decision would be likely to cause any problems? Rob Hoggarth responded that based on the fact that the Board is opposed to the recommendation in the straw poll, that giving the community the opportunity to address alternatives seemed like a reasonable compromise, and that the community would likely be willing to discuss and work through the issues .

The Chairman asked whether the proposals on the table should be put through as proposed paths. Wendy Seltzer suggested that putting the information through with the General Counsel’s viewpoint would unduly bias the discussion. John Jeffrey noted that his views would be set out in the detailed minutes.

The Chairman noted that the GNSO wanted to hear the views, and that it did not seem that doing so would give the General Counsel’s view undue weight, but that the General Counsel’s view point should in fact be an important part of the discussion.

The Chair moved and Steve Goldstein seconded the following resolution:

It is, Resolved (2008.10.01.08), the Board and General Counsel have outstanding questions about the WG-GCR recommendations regarding Board seat elections and directs Staff to share these with the community and seek additional input.

A voice vote was taken of all Board Members present for each resolution, and the motion was approved by a vote of 13 to 0, with one abstention from Bruce Tonkin who indicated that he is currently seated in one of the relevant board seats (#13).

Voting Thresholds for Council Decisions

Denise Michel indicated that it was Staff’s recommendation to accept all the voting thresholds except relating to the removal of NCAs. She indicated that this issue could be considered further as a part of the Nominating Committee Review and subsequent improvement efforts.

Harald Alvestrand and Bruce Tonkin indicated their support for the Staff’s recommendation.

Peter Dengate Thrush moved the following resolution and Raimundo Beca seconded:

It is, Resolved (2008.10.01.09), the Board adopts all voting thresholds proposed in the WG-GCR Report. The Board requests that the GNSO develop any additional voting thresholds or categories that may be needed as part of its proposed GNSO Improvements Implementation Plan to be submitted to the Board for approval.

A voice vote was taken of all Board Members present for each resolution, and the motion was approved by a vote of 14 to 0, with no abstentions.

Timing for Implementation of GNSO Improvements

Denise Michel indicated that the Board’s original implementation timetable for seating the new Council was January 2009. She said concerns have been raised in the GNSO community that the schedule is too aggressive. Denise Michel indicated that in light of those concerns the Staff recommends that the Board adopt a multi-phase schedule for the implementation with a completion target of June 2009 for seating the new Council. The timetable would include specific interim steps and deadlines and the Board would direct the GNSO Council to submit an implementation plan soon..

The Chairman asked Susan Crawford to provide insights regarding implementation timing based upon her work on the GNSO Implementation Planning Team. Susan Crawford noted that the groups wanting a delay include the IPC, BC and ISPCP. The Registry and Registrar constituencies and the NCUC want the new structure implemented as soon as possible. ALAC is concerned at the aggressive schedule but has not objected. She noted that the process has been dragging on since 2006.

Susan Crawford noted that it is realistic and important to transfer to a bicameral structure by end of 2008 and give the groups the chance in the Cairo meeting to work it in. The alternative is more lobbying and some gaming. The Chairman noted that the counter-point is that we have to allow implementation to happen and the timetable must be achievable by all parties and potential parties to the process - bearing in mind most participants are volunteers with time constraints. Susan Crawford added that the NCUC has the most outreach to do and expects to meet the timeline.

The Chairman asked whether the quick timeline was achievable. Steve Goldstein inquired whether staff would be ready to do its part by January, bearing in mind the holiday season. Denise Michel noted that staff would bring all the resources it has to bear to make the implementation happen. She noted concerns expressed about the significant amount of work needed by the constituencies themselves to transition - not just the NCUC but also the ISP, and IPC and BC.

Denise Michel also noted that people interested in forming new constituency groups had approached staff and Board Members. With a 2008 deadline we wouldn’t be able to assist new groups going through the process in time to participate in the transition in a meaningful way. To fulfill the role of expanding and diversifying the participants, trying to complete this by January would be aggressive, and she recommended that the Board look at the timing issue carefully.

Steve Goldstein noted how important it is that ICANN be able to meet the commitments it has made regarding timing and suggested that we need to hold off until the ICANN Mexico City Meeting in March 2009.

Wendy Seltzer indicated that the board should simply dictate that the organization must get its resources together to orchestrate what is needed to make this happen.

Susan Crawford noted that to make a bicameral structure work, the stakeholder groups will be named but not complete, and that is why it was set up this way.

The Chairman asked the CEO about resourcing constraints between the meeting and January. Paul Twomey noted that there are resourcing constraints with new gTLDs and other important issues being worked on as well, and he indicated that January is a very difficult date to make successful.

The Chairman noted general agreement with Wendy Seltzer that the Board should just set the direction and staff should work to make it happen, but that it is just not a question of bodies in seats. Denise Michel pointed out that it is not just a question of staff resources, and noted that there are many activities going on in the GNSO, and that it may even be harder to get volunteer time between now and January.

Wendy Seltzer noted her understanding that this is not a fixed set of constituencies set in January and static from that point forward, and that we could give the volunteers the resources they need to set up. The Chairman agreed noting that it is a question of staff providing the support to the volunteers to write the charters and do the work. Dennis Jennings noted his support for the staff’s concerns and the alternative process.

Bruce Tonkin indicated that he remains wary of the Board imposing its own timetable, and asked Denise about the path forward with the GNSO implementation group. Denise Michel noted that the small implementation group has discussed it and, believe that it is not their responsibility.

Denise Michel noted that as for the deadline, we’ve heard from each constituency. The ISPCPs have suggested June, IPC - December, and some others a general concern that it’s just too aggressive (acknowledging that a quicker transition is less difficult for the Registries and Registrars) . She also indicated that others raised the issue that if you rush this and require a January deadline you lock in the existing constituencies and structure and you won’t have effected much change.

The Chairman inquired about the likely community reaction to a new timetable, indicating that it looked like a middle course. Denise Michel agreed.

Wendy suggested that participants are wearing out with processes that don’t have fixed time table and don’t conclude. Bruce Tonkin responded that this does have a fixed timetable. He confirmed that having reviewed the GNSO agenda, they’re packed and that the GNSO has limited resources, as well. He noted that if you want the GNSO to do policy work, than they cannot concentrate on these issues solely in the meantime.

The Chairman suggested some escalations to the proposed timetable moving the June dates back to March. Denise Michel responded that it would be useful to have face-to-face time to resolve outstanding issues in Mexico City.

The Chairman noted the value of having Board review in Mexico City, and Denise Michel agreed, noting that the Board would need to explicitly approve each stakeholder group.

Denise Michel confirmed that the existing council processes would stay in effect until June.

The Chairman asked for specific discussion of the following proposed resolution and moved for their adoption, with Dennis Jennings seconding the following motion to approve the resolution:

It is, Resolved (2008.10.01.15), the Board amends its previous implementation timetable and directs that the transition to a new bicameral GNSO Council voting structure take place over a phased implementation schedule that begins immediately and ends in June 2009 with the seating of the new Council. The implementation phases will be as follows:

Phase 1 – GNSO Council restructuring implementation plan submitted in advance of the December 2008 Board Meeting;

Phase 2 – Existing Constituencies submit confirmation documents to the Board for review in advance of the February 2009 Board Meeting;

Phase 3 – Stakeholder Groups submit formal plans for Board approval for consideration at the ICANN Mexico City Board meeting; and

Phase 4 – Stakeholder Groups with plans approved by the Board select Council representatives, and the newly structured GNSO Council is seated by the June 2009 Asia-Pacific ICANN Meeting.

A voice vote was taken of all Board Members present, and the motion was approved by a vote of 12 to 1 with one abstention, with Susan Crawford opposing, and Harald Alvestrand abstaining.

The Chairman asked for specific discussion of the following proposed resolutions and the board agreed with the approach and moved for adoption of the following resolutions, with Steve Goldstein seconding the following motion to approve the resolutions:

It is, Resolved (2008.10.01.10), the Board acknowledges Staff’s development of the “Notice of Intent” documentation for potential new constituencies and directs Staff to develop a formal petition and charter template that will assist applicants in satisfying the formative criteria (consistent with the ICANN Bylaws) to facilitate the Board’s evaluation of petitions to form new constituencies. Staff also is directed to work with the existing GNSO constituencies to design and develop a streamlined process along with appropriate mechanisms that will assist with the Board’s timely recognition and approval of existing constituencies.

It is, Resolved (2008.10.01.11), the Board reinforces its support for the following principles pertaining to the formation of the new Stakeholder Groups, and requests that all constituency members and other relevant parties comply with the principles included in the BGC Working Group’s GNSO Improvements Report approved by the Board in establishing the newly formed structures, including:

  • The need to better represent the wide variety of groups and individuals that compose the global ICANN community, in a structure that can change more easily with the gTLD environment and stakeholders.
  • The inclusion of new actors/participants, where applicable, and the expansion of constituencies within Stakeholder Groups, where applicable.

It is, further Resolved (2008.10.01.12), that the Board further directs Staff to work with existing constituencies to develop a set of streamlined processes (along with appropriate templates, tools, or other mechanisms) that will assist in the formation of these new Stakeholder Groups and also facilitate the Board’s subsequent review and approval of those structures.

It is, Resolved (2008.10.01.13), the Board directs that plans for each of the four new Stakeholder Groups, that are consistent with the above principles, be submitted to the Board for consideration at the ICANN Mexico City Board meeting. The plans must be reviewed and approved by the Board before a newly structured GNSO Council is seated in June 2009. The Board will consider the need for interim action to fill Council seats in the event that it finds any Stakeholder Group plans to be deficient or delayed.

A voice vote was taken of all Board Members present for each resolution, and the motions were approved by a vote of 14 to 0, with no abstentions.

Role of Individual Internet Users and Related Issues

Denise Michel noted that the last issue on the Council restructuring agenda is the role of individual Internet users and their representation in the ICANN structure, especially in the non-contracted party house of the GNSO. She noted that the Staff recommendation is to have the current NCUC work with the ALAC and the broader At-Large community and other GNSO constituencies to jointly develop an implementation plan to be submitted to the Board for approval.

Steve Goldstein indicated that he would like to postpone this discussion because of the late hour and the significance of the issue – especially as it impacted the action of the NCUC. The Chairman asked about the potential impact of postponing this issue.

Denise Michel noted that a potential consequence is that it leaves unresolved the issue of the standing and involvement of potential individual users in the new GNSO structure and community uncertainty would continue until a decision was reached.

It was agreed that this issue should be discussed at a later date and the following resolution was put on the table by the Chairman and seconded by Steve Goldstein:

It is, Resolved (2008.10.01.14), The Board requests additional community dialogue and input on the appropriate role and representation of individual Internet users, including individual commercial and non-commercial Internet users, in the GNSO. Input from the GNSO, the ALAC and At-Large community, and any relevant applicants for new constituencies, would be particularly helpful and should address the inclusion of registrants and individual users in the GNSO in a manner that compliments the ALAC and its supporting structures, and ensures that registrants’ and individual Internet users’ gTLD interests are effectively represented within the GNSO.

A voice vote was taken of all Board Members present for the resolution, and the motion was approved by a vote of 14 to 0, with no abstentions.

IT Equipment Purchase Financial Approval

Rajasekhar Ramaraj, Board Finance Committee Chair, stated that this is purchase is for equipment for ICANN’s technical infrastructure, including L-Root. He then had technical difficulty and dropped of the line for a few minutes, at which point Kevin Wilson continued that the purchase is in budget, it has been well researched and negotiated.

Kevin Wilson also pointed out that the Board Finance Committee (BFC) extensively discussed the matter and unanimously voted to recommend that the Board approve. He also stated that while any individual purchase order is within management’s authority of disbursement, because the overall purchase for the equipment was more than $500,000, staff thought it was important to bring to the Board.

The Chair acknowledge Doug’s comment and then noting that the purchase had been properly vetted, he ask Ramaraj to make the motion to approve the purchase.

Ramaraj moved, JJS seconded the following motion:

Whereas the Board finance committee and staff recommend that the purchase of IT equipment is required as part of the FY09 Operating Plan and Budget,

It is, Resolved (2008.10.01.16), that the Board approves the purchase and authorization for payment by the CFO of up to US$800,000 of IT equipment to a single specified vendor, as set out within documentation to the Board relating to such purchases.

A roll call was taken, and ten board members remained on the call. A number of Board Members had to drop off of the call due to the call running over time.

A voice vote was taken of all Board Members present for each resolution, and the motion was approved by a vote of 10 to 0, with no abstentions.

Approval of Board Governance Committee’s Recommendation for ICANN Security and Stability Advisory Committee (SSAC) Review – Terms of Reference, Request for Proposals, and Working Group Charter

John Jeffrey stated that in front of the Board is a recommendation from the BGC relating to the SSAC review ToR, RFP and WG charter.

Dennis Jennings noted that, as chair of the working group he could give some background if needed. The Chair asked just for the hot spots and Dennis stated that he did not believe there were any. He noted that the papers were drafted carefully, with a lot of input and they were thoroughly vetted through the BGC. Dennis stated that they are in front of the Board with some urgency so much of the work can get done in Cairo. Steve Goldstein reiterated that the papers had been extensively reviewed in the BGC.

The Chair moved that the Board approve all three papers. Dennis Jennings seconded the following motion:

Whereas the ICANN community has embarked on a series of reviews in accordance with its Bylaws and as part of its commitment to continuous improvement;

Whereas the Board Governance Committee has formed the SSAC Review Working Group to oversee the review of the Security and Stability Advisory Committee;

Whereas the Working Group has developed a Charter for its work;

Whereas a Terms of Reference for the review of the Security and Stability Advisory Committee has been developed in consultation with the community;

Whereas a Request for Proposal was developed by the SSAC Review Working Group in consultation with the SSAC to seek an independent reviewer to conduct a review based on this Terms of Reference;

Whereas the SSAC Review Working Group has discussed these documents with the Board Governance Committee;

Whereas the Board Governance Committee recommends that the Board approve these documents;

It is, Resolved (2008.10.01.17), that the Board approves the Charter for the SSAC

Review Working Group and the Terms of Reference and Request for Proposal for the SSAC Review.

A voice vote was taken of all Board Members present for each resolution, and the motion was approved by a vote of 10 to 0, with no abstentions.

Approval of Board Governance Committee’s Recommendation for ICANN’s Root Server System Advisory Committee (RSSAC) Review Independent Review Contractor

Harald Alvestrand explained that after receiving proposals, two were considered the front-runners. Harald noted that the BGC suggested that staff seek some additional information from the two before making a recommendation. Harald noted that staff did so and the WG and the BGC agreed on the contractor being recommended to the Board.

The Chairman asked the proposal was within budget and Steve Goldstein indicated that it was.

Harald Alvestrand moved and Steve Goldstein seconded the following motion:

Whereas the ICANN community has embarked on a series of reviews as part of its commitment to continuous improvement;

Whereas a Terms of Reference for the review of the Root Server System Advisory

Committee has been developed in consultation with the community;

Whereas a Request for Proposal was posted in July seeking an independent reviewer to conduct a review based on this Terms of Reference;

Whereas the RSSAC review WG appointed by the Board has reviewed all the applications received to this RFP;

Whereas the RSSAC Review WG has discussed its rationale and conclusions with the Board Governance Committee and the Board Governance Committee has recommended that the Board approve the appointment of Westlake Consulting;

It is, Resolved (2008.10.01.18), that the Board approve the appointment of Westlake Consulting as the independent reviewer for the RSSAC Review.

A voice vote was taken of all Board Members present for each resolution, and the motion was approved by a vote of 10 to 0, with no abstentions.

Single-Character Name Requests from DotCoop and dotMobi

Kurt Pritz and Patrick Jones introduced the proposed contract amendments from DotCoop and dotMobi for the allocation of single-character second-level domain names. They noted that single-character names had previously come before the Board during the 29 May and 31 July Board meetings. It was noted that since the July Board meeting, ICANN has completed public comment on the proposed contractual amendments. Both sponsored registries are seeking to allocate single-character second-level domain names via request for proposals processes for the benefit of their sponsored TLD communities. These are the only pending funnel requests related to single-character second-level domain names.

Patrick Jones noted that these requests were unique as they were sponsored TLDs, their agreements provide some deference in policy-making, and their proposals were consistent with the Single-Character Second-Level Domain Name Allocation Framework document, which recognized that a one-size-fits-all approach for allocation of single-characters may not work for all gTLD registries. He noted that the options before the Board were to approve the proposed contract amendments or in the alternative, defer action at this time until further work could be conducted on a bottom-up effort for allocation of single-character second-level domain names.

Patrick Jones stated that bottom-up process has occurred since January 2007 with the GNSO Reserved Names Working Group, which recommended that single-character second-level domain names be released, and that release should be contingent on appropriate allocation frameworks. He also mentioned that community consultation was conducted on two occasions on potential allocation methods and most recently on the single-character second-level allocation framework document. The DotCoop and dotMobi proposals did not receive any comments, but did receive nine comments of support during the Allocation Framework comment period.

Paul Twomey stated that ICANN had received comments from the community that ICANN explore alternative sources of revenue, and that this discussion was continuing. The Chairman asked if action on these proposals could be deferred, as he had concerns about how proceeds may be dealt with. This proposal was supported by Harald Alvestrand and Dennis Jennings. Paul Twomey asked how DotCoop and dotMobi proposed to handle allocation, and Patrick Jones responded that both proposed processes based on evaluation criteria, with a minimal fee for the RFP and no auction mechanism would be used.

The Board decided to defer action on the DotCoop and dotMobi amendments until the next available meeting for continued work from a group of gTLD registries and registrars, and called for the following resolution, which was seconded by Steve Goldstein:

It is, Resolved (2008.10.01.19), the Board defers action on these proposals pending a more thorough review of the communications and results of the bottom-up process and efforts of the working group on allocation of Single-Character, Second Level-Domains (SC-SLDs) relating to the gTLD registries.

A voice vote was taken of all Board Members present, and the motion was approved by a vote of 10 to 0, with no abstentions. The Chairman asked for an update to be provided during the Cairo meeting.

Update on President’s Strategy Committee; & Travel Expense Authorization for Board Members Appointed to the President’s Strategy Committee

The Chairman noted that the PSC had decided to conduct research on improving institutional confidence issues before them and that such outreach had been conducted at the LACNIC Meeting in Uruguay, APNIC Meeting in Christchurch, and that others were planned including a meeting scheduled for Washington DC, the following day, where approximately 150 people were expected.

The Chairman introduced the item clarifying that although specific line-item approval is not required for the Board to approve the President’s Strategy Committee work, that there were a number of Board Members that were involved and that the Board should approve their individual travel.

John Jeffrey noted that this was not an extraordinary request for approval and that the Board and the Executive Committee regularly approve Director’s travel expenditures.

Steve Goldstein indicated that he disagreed and that he had raised concerns previously about Board Members individually participating in the PSC. He noted that he believed the line between management oversight and board oversight, was blurred when it came to the PSC. Steve Goldstein noted that since he had raised this concern in the past and that although he honors the work conducted by his colleagues, he would be voting against the expense approvals.

Paul Twomey acknowledged Steve Goldstein’s position, but indicated that there will be opportunities to put forward the questions that he is raising as part of the board review process. Paul Twomey noted that the Board Reviewers had indicated that they would likely have a final report to present in Cairo. He indicated that he believed the board review process was a good place to raise such concerns in the future regarding board versus management roles. Steve Goldstein noted that no matter what happens in the future, he would still vote against the expenditures during the current meeting.

Dennis Jennings added that he is uncomfortable providing an advisory committee to the President, a consultative role. He indicated concern that he is not clear who is responsible for the outcomes from the PSC. He noted further that he has no problem with board members being involved but is more concerned about the conflation of board and management activity. Dennis Jennings noted that he will not vote against the expenditures but did want to state his discomfort with this issue.

The Chairman noted that this could be discussed in more detail at the Board Workshop in Cairo, if others wanted to discuss it.

Harald Alvestrand noted that he is uncomfortable with putting some Board members in a position of being on the PSC, and that he was even more uncomfortable with non-members of the Board being on the PSC.

Paul Twomey noted that Board members who joined the Board since the PSC was chartered have made these observations. He noted that it is quite appropriate to have this discussion again at Cairo and that he supported having the discussion there.

The Chairman moved the following resolution and Dennis Jennings seconded:

Whereas the following Board members are also members of the President’s

Strategy Committee; Peter Dengate Thrush, Raimundo Beca, Jean-Jacques


Whereas travel authorization is required to support these members’ participation in planned outreach activities during the consultation process on Improving Institutional Confidence in ICANN, including to specified meetings in Montevideo (Raimundo Beca), Washington D.C. (Peter Dengate Thrush, Raimundo Beca, Jean- Jacques Subrenat), Brussels (Jean-Jacques Subrenat), expected forthcoming in Middle East region (two Board/PSC members TBA, post-Cairo meeting) and Addis Ababa (Afrinic meeting, Raimundo Beca);

Whereas explicit authorization is required to approve travel support for these global outreach activities by Board members;

It is, Resolved (2008.10.01.20), that the Board authorizes travel support for Board Members who are also members of the President’s Strategy Committee to attend meetings and consultations during the FY08-09 ‘Improving Institutional Confidence’ outreach process.

A voice vote was taken of all Board Members present for each resolution, and the motion was approved by a vote of 9 to 1 negative vote case by Steve Goldstein for the reasons stated above, with no abstentions.


The Chairman noted that the other matters will be accepted as read, and thanked the board for working for nearly three hours to get through the action items on the agenda.

The meeting ended at approximately 05.52 UTC.