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Draft Minutes of the Special Board Meeting 23 April 2009

A Special Meeting of the ICANN Board of Directors was held via teleconference 23 April 2009 @ 20.00 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: Roberto Gaetano (Vice Chairman), Harald Tveit Alvestrand, Raimundo Beca, Steve Crocker, Demi Getschko, Steven Goldstein, Dennis Jennings, Rajasekhar Ramaraj, Rita Rodin Johnston, Jean‐Jacques Subrenat, Bruce Tonkin, Paul Twomey (President and CEO.

The following Board Liaisons participated in all or part of the meeting: Janis Karklins, GAC Liaison; Ram Mohan, SSAC Liaison; Thomas Narten, IETF Liaison; Thomas Roessler, TLG Liaison; Wendy Seltzer, ALAC Liaison; and Suzanne Woolf, RSSAC Liaison. Katim Touray and Dave Wodelet were not present for the meeting.

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; Paul Levins, Executive Officer and Vice President, Corporate Affairs; Kevin Wilson, Chief Financial Operator; Denise Michel, Vice President, Policy; Nick Tomasso, General Manager, Meetings and Conferences; Diane Schroeder, Director, Board Support; Barbara Roseman, General Operations Manager, IANA; Kim Davies, Manager, Root Zone Services; Rob Hoggarth, Senior Policy Director; Liz Gasster, Senior Policy Support , and Leo Vagoda, Manager, and Samantha Eisner, Senior Counsel.

A. Consent Agenda

The Board discussed the proposed resolutions on the Consent Agenda, made adjustments and approved the following resolutions, unanimously, 13-0. The Resolutions were moved together by Steve Goldstein and Dennis Jennings seconded the motion. In addition to the board member not present, Roberto Gaetano was not available to vote on these resolutions.

  1. Approval of Minutes – 3 February 2009 and 12 February 2009

    Resolved (2009-04-23-01), the Board hereby approves the minutes of the 3 February 2009 and 12 February 2009 Board Meetings.

  2. Approval of Board Audit Committee's Recommendation for Engagement of Auditors for FY09-10

    Whereas, the ICANN Bylaws in Article XVI, Section 3 <http://www.icann.org/general/bylaws.htm>, requires that at the end of the fiscal year, the books of ICANN must be audited by certified public accountants. The Bylaws also state that the appointment of the fiscal auditors shall be the responsibility of the Board.

    Whereas, the Board Audit Committee and staff interviewed Moss Adams LLP.

    Whereas, the Chair of the Board Audit Committee has received a proposal from Moss Adams LLP to be engaged as the auditor for the fiscal year ending 30 June 2009.

    Whereas, the Board Audit Committee has reviewed the proposed engagement letter and professional services agreement and recommends to the Board that ICANN enter into this engagement.

    Whereas, the Board Audit Committee has requested staff to investigate best practice guidelines and options for switching partners and/or engaging other auditors in subsequent audits given that Moss Adams LLP has served as ICANN's auditor for the past four years.

    Resolved (2009-04-23-02), the Board authorizes the Chief Financial Officer of ICANN to engage Moss Adams LLP as the auditors for fiscal year ending 30 June 2009.

  3. Approval of Board Governance Committee's Recommendation regarding Ombudsman Framework

    Whereas the Ombudsman submitted a draft Ombudsman Framework to the Board for approval;

    Whereas the draft Ombudsman Framework was posted for public comment;

    Whereas at the Board's request the BGC suggested revisions to the Framework and had several discussions with the Ombudsman about those revisions;

    Whereas the BGC and the Ombudsman reached agreement on revised language to the Ombudsman Framework;

    Whereas the revised Ombudsman Framework documents the procedures and processes under which the Ombudsman currently operates; and

    Whereas the Ombudsman Framework was posted for a 30-day pubic comment period and no comments were received.

    It is hereby resolved (2009.04.23.03) that the Ombudsman Framework as revised and posted at http://www.icann.org/en/public-comment/#reomfr is approved.

  4. Approval of Board Governance Committee's Recommendation for Posting of the Revised Conflict of Interest Policy for Public Comment

    Whereas the Board adopted the current Conflicts of Interest Policy on 4 March 1999;

    Whereas the Board Governance Committee had reviewed and revised the Conflict of Interest Policy;

    Whereas the Board Governance Committee has approved requesting the ICANN Board to post the revised Conflict of Interest policy for public comment; and

    [It is hereby resolved (2009.04.23.04), that the revised Conflict of Interest Policy be posted for Public Comment.

  5. Approval of Redelegation of .NG

    Whereas, the .NG top-level domain is the designated country-code for Nigeria.

    Whereas, ICANN has received a request for redelegation of .NG to the Nigeria Internet Registration Association.

    Whereas, ICANN has reviewed the request, and has determined that the proposed redelegation would be in the best interest of the local and global Internet communities.

    It is hereby resolved (2009.04.23.05), that the proposed redelegation of the .NG domain to the Nigeria Internet Registration Association is approved.

  6. Approval of Staff to Follow the Global Policy Proposal for the Allocation of IPv4 Blocks to Regional Internet Regisries

    Whereas, the Board's Review Procedures for Global Internet Number Resource Policies Forwarded for Ratification by the ASO Address Council in Accordance with the ASO MoU, in its Article 1 states that "When, in accordance with step 1 in the Global Policy Development Process of the ASO MoU (Attachment A, article 1), ICANN staff liaising with the addressing community becomes aware of a global policy development within the scope of the ASO MoU, ICANN staff informs the ICANN Board of this development. The Board decides, as and when appropriate, that this development should be followed by ICANN staff and instructs the ICANN CEO to assign staff for this purpose. ICANN staff so assigned shall inform all ICANN Supporting Organizations and Advisory Committees, shall establish an ICANN web page to be kept up to date and shall compile a background report to be kept up to date on this global policy development. This background report shall be provided to the Board as requested.".

    Whereas, ICANN staff has informed the Board that a Global Policy Proposal for the Allocation of IPv4 Blocks to Regional Internet Registries is in development and that this Proposal has entered the first adoption steps within the individual RIRs as well as being recognized by the ASO AC as a valid Global Policy Proposal.

    Whereas, the Global Policy Proposal for the Allocation of IPv4 Blocks to Regional Internet Registries is identified as a global policy development within the scope of the ASO MoU.

    It is hereby resolved (2009.04.23.06), that the Board requests that the development of a Global Policy Proposal for the Allocation of IPv4 Blocks to Regional Internet Registries be followed by ICANN staff in line with the Board's Review Procedures for such policy proposals and instructs the ICANN CEO to assign staff for this purpose.

    Approved on consent agenda pending Staff editing the title of the policy.

    Resolutions 2009.04.23.01; 2009.04.23.02; 2009.04.23.03; 2009.04.23.04; 2009.04.23.05; and 2009.04.23.06 were approved in a single vote approving the consent agenda items. All Board Members present unanimously approved this resolution.

B. Regular Agenda

  1. GNSO Improvements
    1. Implementation Efforts and Council Restructuring

      Denise Michel presented the issues and indicated that Staff had provided the board with comprehensive background information, and that the topics were being dealt with in detail in conjunction with the Structural Improvements Committee (SIC). The SIC set out a time for May 14th before the board retreat to go in depth on a number of issues outlined. Accordingly, Staff and the SIC Chair were recommending for the board requests that they come back to the board with guidance on several of these issues.

      Denise indicated that the GNSO community, in implementing the very comprehensive GNSO improvements report and restructuring resolutions at the board, has encountered substantial implementation challenges that would benefit from additional input from the board. Staff has recommended that the SIC, take the lead in evaluating a number of these issues and discussing them in detail and coming back to the board with specific recommendations on action in many of these areas.

      Denise highlighted that there are a number of decisions that will require board engagement and action over the next several months, including the following:

      The decision on whether to approve four new stakeholder group petitions and charters.

      Consideration and action on the submission of six GNSO constituency renewals. That's renewal of the existing constituencies.

      Decisions on the formal petitions by potential new GNSO constituencies. Those include the cyber safety constituency, a proposed consumers constituency, an IDN TLD constituency, and potentially a group of city TLD individuals and organizations.

      Additional decisions required of the board over the next few months in this area include decisions regarding the election process for board seats number 13 and 14, a resolution of the role and representation of individual users in the GNSO, and approval of final bylaw amendments that await the resolution of some outstanding structural issues that are explained in the board paper that you have.

      Denise noted that to reach these decisions, the board will need to evaluate a number of community proposals, some of which diverge from the original architecture and vision that's been advanced by the GNSO improvements report and approved by the board.

      The resolution that the staff has proposed, again, asks the Structural Improvements Committee to provide recommendations and guidance to the board and the community regarding the appropriate bylaw or stakeholder group charter mechanism necessary and request that the SIC provide a report to the board in May explaining their progress that has been made and to discuss the current transition timetable for seating the new GNSO council.

      Denise noted that the GNSO improvements report calls for the establishment of four broad stakeholder groups to the registrars and registry stakeholder groups on the contracted side, and on the non-contracted side, the commercial stakeholder group and the noncommercial stakeholder group. The primary purpose articulated in the GNSO improvements report for these stakeholder groups would be to bring the constituencies in these respective areas together. She also indicated that some of the discussions and disagreements that have arisen in the community relate to whether the constituency model should be maintained or whether constituencies should be done away with and all of the activities and authority be invested in the stakeholder group. And, in particular, there's been a lot of discussion and focused efforts around how the council seats will be filled.

      Denise called the Board's attention correspondence that it had received from the intellectual property, ISP, and business constituency leaders asking the board to postpone the seating of a new council because they feel that the current noncommercial stakeholder group is not properly diverse and broadly representative. She noted that two separate proposals have been sent to the board, two separate visions --The Chair asked what the feeling of the board was related to it

      Bruce Tonkin noted that what the GNSO review did was to say it should move to these broad stakeholder groups as being, primarily a council structure, so we have a commercial stakeholder group and a contracted party stakeholder group, and then within those there are some broad areas, like registries and registrars. Bruce noted that what the report was less clear about was, what's the role for constituencies. In other words, do we have three layers, which is stakeholders, constituencies, and constituency members, or do we have two layers, which is stakeholders and let's call it stakeholder members?

      Bruce indicated that there's a lot of management structure that is working very effectively at the constituency level today. So his stated view was that the Board shouldn't break what already is working and is already established, because it takes a while to establish these structures. He noted that there are constituencies, but then the question is, what do you get as a constituency?

      The Chair thanked Bruce and indicated that he thought he was absolutely right in relation to the points about these constituencies have taken time to build. Some of them are quite complicated structures. The Chair noted that, on the other hand, there couldn't be the same link, between being a constituency and holding a council seat. There could be any number of constituencies in the noncommercial, far more constituencies than there are seats to go around, and that was part of the original design.

      Steve Goldstein noted that the idea that seems to be proposed by both the registries, registrars, and by Milton Mueller in the noncommercial is that the constituencies, for the most part, are somewhat redundant and might serve as -- informal, social purposes, but could become a drag on the organizations if they consumed too much by way of resources.

      The Chair noted that the resolution calls for a report in May, which is nine days following the meeting.

      Rita Rodin Johnston noted that there are a number of competing concerns. There's a number of different ways that some of the constituencies have proposed reorganizing, and that those issues are the fundamental questions.

      Denise Michel noted that the board has received proposed stakeholder group charters from all of the current constituencies, all of the stakeholder groups, that effectively empower the current constituencies as stakeholder groups, and that they were all seeking seats on the council.

      Denise Michel pointed out that this is the nexus of the disagreement and the controversy that has emerged, where you have the GNSO improvements report approved by the board is that, it articulates a very lightweight umbrella of stakeholder groups as a very lightweight organizational layer to bring together like-minded stake- -- like-minded groups, but still emphasized the importance of constituencies and emphasized the need to bring in many more constituencies and many more diverse constituencies. And so there's that vision, and then the stakeholder group charters, some of which do away with constituencies, and the challenge of encouraging new constituencies to form and come in without clearly articulated benefits, for power-sharing.

      After reviewing the various proposals with staff, the Chair asked if the Board would be able during the meeting to approve any of the previous constituencies?

      Harald Alvestrand stated that he wouldn't be ready to move on any of the current ones since he did not perceive them as on the agenda and had not vetted them. The Chair noted that without a review of the specific papers it would be difficult to move forward. He asked that if the Board wanted to move forward during the next meeting, would the materials be available within a sufficient time to approve some of these constituencies?

      Denise Michel indicated that staff could have the requisite analysis and papers to the board, within a week of the meeting.

      The Chair asked how board members felt about moving on that?

      Steve Goldstein: This really deals more with the stakeholder groups and the constituencies, and that until the board has a firm handle on how council seats are to be allocated from constituencies or from stakeholder groups, he thought they should hold off on things.

      Rita Rodin Johnston agreed with Steve's comments. She also asked how does the new layer affect people trying to create stakeholder groups and dissolve constituencies. She asked how that affects their ability to elect council members? The Chair thanked Rita for her important questions.

      The Chair noted that the Board is asking the Structural Improvements Committee to evaluate the proposals and progress made to date regarding the four new stakeholder group charters, to ensure that they contain all the necessary requirements, the expectations, and oversight mechanisms. He asked, is that really what we want them to do, or can we be clearer and more helpful in our request?

      Rita Rodin Johnston asked why it was something that the Structural Improvements Committee was doing, and why isn't it staff moving forward and saying that it either meets these criteria or it doesn't? Denise Michel indicated that staff can do that.

      Jean-Jacques Subrenat indicated that as a member of the SIC, that SIC has a lot of things to do. He noted that Rita's suggestion is interesting if we can ask staff to bring it forward, at least to a stage where the SIC contribution would be an added value.

      The Chair asked whether this required a resolution, then? Denise Michel noted that the discussion was very helpful, and the resolution was entirely optional.

      The Chair noted that he would be quite happy not to put this resolution, which was sending these things to the SIC, and, effectively, keep asking the staff to do what they're doing, which is answering these questions and coming back to us. Steve Goldstein noted that the board should minimize the number of resolutions we pass and pass only when needed.

      The Chair noted that he was more concerned with burdening the SIC with a whole new project, and indicated that he would not move the resolution, but would request that we keep doing what we're doing, and requested another similar session at the next meeting. He then asked staff about the potential impact on timelines.

      Robert Hoggarth stated that from a practical standpoint, a number of the constituencies / stakeholder groups have said, if we don't have approval of our existing charters in the very near term, they don't have the internal mechanisms to elect the people in the appropriate time frame to be seated by June. He noted that staff also received notice from the registry constituency that they will be submitting a revised stakeholder group charter themselves, which will likely be itself subject to another comment period.

      Rob noted that if you look at the time frames between now and June, there are some fundamental time challenges for meeting that in and of it. He also noted that another aspect of that was that, as we've looked at the stakeholder group charters and reviewed the various comments, regardless of whether you are a proponent of the stakeholder group primacy model or the constituency foundation, that the general feedback has been that there is not enough detail in many of the charters to assure the openness, fairness, and transparency that would be expected requirements of the ICANN bylaws. Accordingly, he noted that there would likely be additional dialogue between staff, community, and the board ultimately before the board would likely approve these charters.

      Rob further noted that staff would certainly make all due efforts to have items for the Board's consideration by the May board meeting. That would certainly potentially include some of the new constituency filings and may also, depending on the nature and resolution of some of these discussions on the NCSG side, be some potential resolutions and decisions on the stakeholder group charters also in May.

  2. New gTLD Implementation Updates

    Kurt Pritz provided a detailed update on implementation of new gTLDs. The specific items discussed were:

    1. Implementation Recommendation Team

      Kurt Pritz discussed the work to date of the Implementation Recommendation Team formed pursuant to the Board's resolution in Mexico City, and noted that there is a publicly available ICANN wiki on all of the overarching issues, including the IRT For the IRT, the wiki contains an identification of all 18 members with forthcoming statements of interest for each, as well as meeting notes. Papers fashioning five proposed solutions will also be posted there at the end of the week. The five papers address : 1) Use of protected marks at the second level/a White List; 2) Rapid Takedown mechanisms; 3) Post-delegation dispute resolution at the top level; 4) Thick WHOIS in registries; and 5) Confusion and similarity and the use of algorithm at the second level. The IRT is hosting a meeting on 11-13 May 2009 in San Francisco and continues to hold weekly teleconferences. Kurt reported that community consultations on the IRT proposals will begin at the Sydney meeting, with two or three additional consultations in different regions including North America and Europe. Kurt noted the significant amount of effort expended by the members of the IRT in generating this work. There was a discussion about the Internet Commerce Association's letter and complaint to the ombudsman, and Kurt noted that he would make sure that it was reviewed by Staff as well as by the IRT.

    2. Geographical Names

      Kurt provided an update to the Board that staff is working to present a proposal for Board consideration, pending review of the forthcoming GAC response to ICANN's 17 March 2009 letter. There was discussion among Kurt, the Chair, GAC Chair Janis Karklins and anticipated timing of a GAC letter on the issues.

    3. Timeframe

      Kurt noted that staff will work to provide comment analysis on Version 2 of the Applicant Guidebook and updates to relevant portions of Version 2 in advance of the Sydney meeting as well as information to guide and assist community discussion on the overarching issues. The SSAC/RSSAC Scalability study is underway with a steering group and a report will be published for public comment prior to the Seoul meeting. Steve Crocker provided some additional information on the report, noting that it was one of the better efforts that he had seen.

  3. Approval of Seoul Budget - October 2009 Meeting Location

    Nick Tomasso presented the Seoul Meeting Budget for approval. It had been previously discussed at the Finance Committee level and approved and Nick responded to the board's specific questions regarding the details of negotiations and facilities.

    Following the discussion Steve Goldstein moved and Jean-Jacques Subrenat seconded the following resolution:

    Whereas, ICANN intends to hold the third meeting of 2009 in Seoul;

    Whereas management and staff have refined and reduced the expense associated with conducting the Meeting in Seoul through discussions and negotiations with the National Internet Development Agency of Korea (NIDA);

    The Board agrees that Seoul, Korea be the location for ICANN's October 2009 Meeting.

    It is hereby resolved ( 2009.04.23.07 ) that the Board accepts the budget of $1.992M for the ICANN Meeting to be held in Seoul in October 2009.

    All Board Members present unanimously approved this resolution.

    Staff also reported that it will be submitting a recommendation to the Board for an ICANN meeting in Africa from 7-12 March 2010.

  4. Agenda for Upcoming Board Retreat

    Board discussed a proposed agenda for the upcoming Board retreat. Items for discussion include overarching issues on new gTLDs and the way forward for the organization.

  5. Other Business
    1. Phased Allocation Process for Single & Two-Character Domain Names in .BIZ, including proposed Contract Amendment

      The Board reviewed the proposed contract amendment to the .BIZ Registry Agreement and received a comment summary from staff. The Board determined that further Board consideration was needed [regarding potential alteration in price term in Agreement].

    2. Registrar Accreditation Agreement Update

      The Board considered action on the pending amendments to the Registrar Accreditation Agreement during its 23 April 2009 Board Meeting. It was noted that the Public Comment period ended on 6 April 2009 and ICANN Staff provided a summary to the Board prior to the Board Meeting.

      In addition, ICANN had recent discussions with the US Department of Commerce, following up on concerns originally raised in the DOC's 1 August 2008 letter.

      Based upon the board discussion, it determined that staff should prepare a letter to the DOC, confirming the benefits of the new RAA, prior to the Board's final approval.

      The board noted its intention to act on the amendments during its next board meeting in May 2009.

      Bruce Tonkin withdrew himself from the discussion due to a stated conflict of interest.

    3. Notice of Inquiry/JPA discussion – A discussion was held in private session.
    4. Discussion of Charter of Community-Wide Working Group to Review The Structure of ICANN's Present Geographic Regions

      Board discussed the charter submitted by staff on the Community-Wide Working Group and noted that ICANN's Address Supporting Organization (ASO) was not included therein. The Board elected to hold this matter over for further discussion.

    5. Discussion of Posting for Public Comment the Plan for Enhancing Internet Security, Stability & Resiliency

      Greg Rattray presented the proposed Plan to the Board. The Board provided Staff with suggested additions, both online and raised some additional comments during the meeting, regarding how to address the Plan to resolve Board concerns regarding the initial drafts of the document. Following on from the discussion, the Chair moved and Steve Goldstein seconded the resolution below:

      Resolved (2009-04-23-08) that the Board approves of the posting of the Plan for Enhancing Internet Security, Stability & Resiliency for public comment within one week, pending Staff working with the Board to amend the Plan to meet the Board's concerns.

      All Board Members present unanimously approved this resolution.

    6. Approval of Board Governance Committee's Recommendation of Procedures for Board Nominations

      Withdrawn from the Board agenda for further consideration by the Board Governance Committee

  6. Board Executive Session

    Any actions taken during this section remain confidential.

Session Adjourned.