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Preliminary Report for the Special Meeting of the ICANN Board of Directors 18 December 2007

[Formal Minutes are still to be approved by the ICANN Board]

A Special Meeting of the ICANN Board of Directors was held via teleconference on 18 December 2007. Chairman Peter Dengate Thrush called the meeting to order at 8.00 PM Pacific Daylight Time (PDT).

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, Rita Rodin, Jean-Jacques Subrenat, Bruce Tonkin, President and CEO Paul Twomey. The following Board Liaisons participated in all or part of the meeting: Steve Crocker, SSAC 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: David Wodelet and Janis Karklins

Also, the following ICANN Staff participated in all or part of the meeting: John Jeffrey, General Counsel and Secretary; Doug Brent, Chief Operating Officer; Kevin Wilson, Chief Financial Officer; Kurt Pritz, Senior Vice President, Services; Theresa Swinehart, Vice President, Global and Strategic Partnerships; David Conrad, Vice President, Research and IANA Strategy; Denise Michel, Vice President, Policy; Donna Austin, Manager, Governmental Relations.

The Executive Committee of the Board set the Board Agenda for this Special Meeting of the Board during its meeting on 11 December 2007.

The Board discussed and took action on the following matters:

Approval of Minutes for 20 November 2007 Special Board Meeting

Susan Crawford moved and Dennis Jennings seconded the motion to accept the minutes of the meeting of 20 November 2007.

Harald Alvestrand requested that the spelling of his name be corrected and Jean-Jacques Subrenat reminded that his name has a hyphen.

A voice vote was taken of all Board Members present and the Board Members present approved the motion by a vote of 13 to 0.

Njeri Rionge abstained as she was not present for the call.

Discussion of .TEL Contractual Amendment

Kurt Pritz introduced the topic and noted that the Board has discussed the proposed amendment to the TELNIC contract at various stages. The proposed amendment was evaluated by staff in three ways - as a new registry service via the Registry Services Evaluation Policy also known as the Funnel process; as a request under the draft Procedure for Handling WHOIS Conflicts with Privacy Law; and as a contract amendment requiring public posting, opportunity for comment and Board approval. This process involved extensive community consultation including the UK GAC representative, the UK Information Commissioner’s Office, the IP constituency, At-Large and other parts of the community. This resulted in a contract amendment that enabled TELNIC to move forward and an amendment that apparently complies with UK law and is also close to existing Whois contractual requirements. There have been three amendments proposed since the previous public posting of the Telnic proposal that are described in the accompanying documentation.

Susan Crawford noted that the reasoning for the amendments is very clear and she will support them. However, she noted the process for evaluating the amendment was unfair that she wanted her concerns about her view of the process that the proposed amendment underwent be made part of the record. Her comments, which she asked be added from an email that she sent to the Board were as follows:

"There wasn't a predictable process from a registry operator's point of view, and this is the kind of ad hoc behavior on ICANN's part that triggered the VeriSign lawsuit. That lawsuit led to the institution of a registry services "funnel" - but what's the process for non-registry service amendments?

Here is the problem, as I see it. Based on advice it received from its national regulator, Telnic proposed in February or April of this year (the document bears both dates) that it (1) charge a small fee (as .NAME does) for (2) one-off access to personal information about natural person-registrants who (3) had not opted into (agreed affirmatively to) the public display of this personal information.

Now, several months later, after objections from the IP community, we have an amendment that says requestors can have (1) free (2) blanket (one-time assertion of need is enough) access to personal information about natural person-registrants who (3) have failed to opt *out* from the public display of private information (have failed to say that they want their information shielded from public view).

The problem is that Telnic probably had no idea that its proposed amendment to its contract with ICANN would be "unacceptable" and could not have predicted how long this would take. I don't see why the initial proposal couldn't have been accepted - it seems quite similar to what .name has. I don't understand why a registry operator can't charge a small fee for access to this data. The fee provides an additional speed bump to abuse that seems useful. I don't understand why "monitoring" businesses that want to ensure that their raw material is free get to require that ICANN ensure that this material is free. I also don't understand why the opt-in had to be changed to an opt-out.

More importantly, I don't see why a registry operator should have to go through this kind of ad hoc process for an element of its contract that is not a consensus policy. (Whois was made up and applied to the registries from the beginning; it was never subject to a consensus policy process, and indeed it appears that there is no consensus in support of whois in existence right now.)

As I say, I plan to vote for this amendment. But we have to fix the way these amendments are processed, and I expect this to change in the coming year."

The Chair noted for new Board members that they are able to have statements recorded in the minutes. He asked the Secretary and General Counsel to ensure the points from her email was incorporated in the minutes.

Jean-Jacques Subrenat advised that he shared Susan’s concerns as did Steve Goldstein particularly in light of the introduction of new gTLDs and the prospect of coming up with special procedures every time.

The Chair noted that there was nothing in this process that will act as a precedent. This issue arose in an unusual context and at a time when the WHOIS conflicts with national law procedure was being considered.

Rita Rodin noted that she is TELNIC’s counsel and that she would abstain from voting on this issue. Despite her noted conflict she did indicate on the record that she agreed with the sentiments raised regarding the process. She also noted that TELNIC had considered the WHOIS ‘opt in’ to be something that might be attractive to registrants from a business model perspective, while still providing parties who demonstrated a need for information with the ability to receive it. She hoped that in developing a process going forward, that there would be flexibility to take into account new business models for new TLDs. She also hoped that the current WHOIS national law process could be finalized as soon as possible so as to bring clarity to the process and community.

Paul Twomey sought clarification on what element of the process were noted as allegedly unfair. Susan Crawford advised that the original proposal contained a small fee for access to information for registrants not to opt out of having information presented, would have to affirmed information to be displayed for information to be available. Several months later the proposal is something opposite—the unfairness is TELNIC has no leverage to request from ICANN what is quite reasonable, WHOIS had not been a consensus policy when the terms were developed by DOC when setting up the contract. They should have been allowed with very little change and the process followed struck her as unfair.

The Chair posed the question: "you don’t think the process of negotiation and consultation regarding the different position was fair"?

Susan Crawford responded that she was not sure much flexibility in what to agree with, was available to the registry.

Paul Twomey noted that Telnic put forward positions which were published for public comment in accordance with Board public comment principles, comments received sought clarification of the UK Information Commissioner’s Office advice and that clarification resulted in the proposal presently in front of the Board which has TELNIC’s support.

Wendy Seltzer noted that she also has concerns with process and would also categorize it as unfair as early comments provided on the issue were not reflected in latter communications.

The Chair reflected that there was no objection to the outcome but given the concerns about the process it would be best to discuss these concerns in the context of the agenda item relating to WHOIS and national laws.

Rajasekhar Ramaraj moved and Bruce Tonkin seconded the following resolution:

  • Whereas, Telnic has submitted an amendment to Appendix 1, Appendix 5 and Appendix S, part VI to limit the public display of Whois information for .TEL registrants.
  • Whereas, ICANN has evaluated the proposed amendment in three ways: 1) as a new registry service via the Registry Services Evaluation Policy; 2) as a request under the draft Procedure for Handling Conflicts with Whois and Privacy Law; and 3) as a contract amendment requiring public comment and Board approval.
  • Whereas, the evaluation under the threshold test of the Registry Services Evaluation Policy found no likelihood of security and stability or competition issues associated with the proposal.
  • Whereas, ICANN consulted with the UK GAC representative and the UK Information Commissioner’s Office as the relevant national government authority for advice on the request for derogation from ICANN gTLD Whois policy.
  • Whereas, ICANN staff conducted good-faith negotiations with Telnic to modify the proposed amendments in accordance with its procedures and based on public comments raised by the ICANN community.
  • It is hereby resolved (__.2007) that the .TEL amendment is approved, and the President and General Counsel are authorized to take such actions as appropriate to implement the amendment.

Dennis Jennings sought clarification on what was being proposed.

Kurt Pritz advised that the Board is voting whether to approve a new appendix S that revises TELNIC’s WHOIS obligations from the current agreement.

Paul Twomey questioned whether it would be useful to consider some amendment to the resolution language, that throughout this negotiation which has been asking for a deviation from an existing policy that we have been clear with the applicant that this is a standalone request that comes from their jurisdiction, unique circumstance to date and ask the General Counsel to draft something to this effect.

The Chair agreed it would be useful to make this clear. John Jeffrey provided proposed wording from the .NAME agreement. Susan Crawford and Rita Rodin requested that the language not be drafted at his moment and that time be allowed to consider drafting. There was additional discussion over the proposed language. The additional proposed language was circulated and was further amended following questions and discussion by the Chair, Bruce Tonkin, John Jeffrey, and Susan Crawford.

Rajasekhar Ramaraj moved and Bruce Tonkin seconded the following resolution:

  • Whereas, Telnic has submitted an amendment to Appendix 1, Appendix 5 and Appendix S, part VI to limit the public display of Whois information for .TEL registrants.
  • Whereas, ICANN has evaluated the proposed amendment in three ways: 1) as a new registry service via the Registry Services Evaluation Policy; 2) as a request under the draft Procedure for Handling Conflicts with Whois and Privacy Law; and 3) as a contract amendment requiring public comment and Board approval.
  • Whereas, the evaluation under the threshold test of the Registry Services Evaluation Policy found no likelihood of security and stability or competition issues associated with the proposal.
  • Whereas, ICANN consulted with the UK GAC representative and the UK Information Commissioner’s Office as the relevant national government authority for advice on the request for derogation from ICANN gTLD Whois policy.
  • Whereas, ICANN staff conducted good-faith negotiations with Telnic to modify the proposed amendments in accordance with its procedures and based on public comments raised by the ICANN community.
  • Whereas, the Board concludes that the requested modifications are justified by the unique business and legal circumstances of the .TEL top-level domain, and the approval of these modifications should not be viewed as establishing a precedent that applies to other circumstances;
  • It is hereby resolved (__.2007) that the .TEL amendment is approved, and the President and General Counsel are authorized to take such actions as appropriate to implement the amendment.

A voice vote was taken of all Board Members present and the Board Members present approved the motion by a vote of 13 to 0. Rita Rodin abstained from voting as she acts as TELNIC’s counsel.

Whois Conflict of National Laws Procedure

The Chair noted that this item is for information only with an anticipated vote to be taken in January.

Kurt Pritz advised that the GNSO approved the policy recommendation and directed staff to implement the procedure and solicit advice from the GAC on this issue in 2006. ICANN staff drafted a procedure for the implementation of policy for consideration by the GAC and community that was posted in December 2006. Preliminary GAC advice was provided in San Juan, and the final version of this advice was provided at the Los Angeles meeting:

"… specific cases should be referred to the relevant national government for advice on the authority of the request for derogation from the ICANN gTLD WHOIS policy."

In light of this advice, staff has revised the draft procedure and made some amendments. The revised version has been posted and the changes have been highlighted for those reviewing procedure. The changes reflect that ICANN should work with relevant national governments and should operate in conformance with national laws. In reviewing the procedure, staff also took the opportunity to amend the procedure to make provision for the General Counsel to redact certain parts of a report required by procedure to protect all parties. Typically the Board takes policy recommendations under advisement and upon approval of policy recommendations directs staff to implement the policy recommendation. The Board can let the procedure become effective after the notice period, or, alternatively ask to vote on the procedure in a subsequent meeting.

The Chair asked how the concerns raised by Wendy, that comments received in early comment periods on a particular request would also be considered in subsequent comment periods.

Kurt Pritz advised that the process of comments and iteration provides a good tension in that registries could solicit a contract change that is a larger than necessary deviation from the WHOIS policy. Form the policy it can be inferred that a registry or registrar should construct a change that is still acceptable to national law but deviates from existing WHOIS requirements as little as possible. This tension works toward that result. Kurt agreed that Susan’s categorization of this as a lengthy process that won’t scale in the future is true and the iteration must be changed from the one that considered the Telnic change.

The Chair reflected that where a submission is received from an interest group, making a claim for a need to depart from the process and they should make the law invoked explicit. Such decisions require an explanation of the national law and the negotiation process, and in this case the process was all too secret.

Kurt Pritz advised that the process calls for a description of the law that is in play and a summary of the law regulation involved in the process. In the case of TELNIC, the UK Information Commissioner’s Office referred to entire body of privacy law and the data protection act. The process was public from posting original proposal, seeking comments, posting amended form. That part of the process was very public. Discussions and communications with governments may need to be confidential to some extent based on the government action.

Bruce Tonkin asked if in the interests of transparency we can go a little further than the current version by indicating the actual laws being invoked by the government, i.e., the reference to the legislation and law should be public.

Kurt Pritz indicated that this requirement was included in the procedure.

The Chair referred the discussion back the resolution of the previous agenda item.

Discussion of ICANN Strategic Plan July 2008 – June 2011

The Chair congratulated Doug Brent, the ICANN Management Team and ICANN Staff on the development of the strategic plan. Doug Brent advised that a three year process was commenced in San Juan, and continued through with a draft issues paper that was posted in six languages, feedback was sought from the community, and is now back with the Board for a decision. Comments previously received by the Board have been accommodated, for example focus more on outcomes and an effort has been made to do that. The Plan has been reformatted to make it more accessible.

The Chair noted comments from Raimundo Beca and Dennis Jennings will be taken into account and included in the Plan. He asked the Board to approve the Plan subject to the latest contributions. There were additional comments referenced from emails from Harald Alvestrand and supported by Susan Crawford, regarding approving this version but reviewing again in six months, as scheduled. The Chair noted that with reference to the mechanism for spilling the Board, and compensating the board, he understood from Doug that this discussion would best be included in the accountability framework principles.

Dennis Jennings moved and Jean-Jacques Subrenat seconded the following resolution:

Whereas, ICANN's July 2008 through June 2011 Strategic Plan is based on consultation with the community through workshops held in multiple languages at ICANN meetings, through Supporting Organizations and Advisory Committees and through public forums on the ICANN website.

Whereas, the 2008-2011 Strategic Plan gives a brief description of the environment that ICANN is likely to face in the next years and outlines eight strategic objectives for the ICANN community.

Whereas, the strategic objectives in the plan will form the framework around which the July 2008 through June 2009 Operational Plan and the associated budget are constructed.

Whereas, members of the community have been very generous with their time and the Board appreciates the work that they have done.

Resolved (07.___), the Board approves the July 2008- June 2011 Strategic Plan, and directs the President and staff to move forward with the community-based operational planning process based on the strategic objectives as set forth in the plan.

A voice vote was taken of all Board Members present and all Board Members present approved the motion unanimously by a vote of 14 to 0.

Update on New gTLD Process

Kurt Pritz advised that this item was specifically about ICANN’s efforts to secure consulting services to write a Request for Proposals (RFP) for new gTLDs. ICANN will be requesting applications for new gTLDs through this RFP. Since the Board’s last discussion on this issue staff has accomplished much to clarify discussion points, the roles played by consultants in developing the RFP, and the costs associated with effort.

The cost estimates were originally quite high. Staff has had several days of face-to-face meetings, in Marina del Rey and with representatives from Deloitte ( Brussels) and Interisle ( Boston). To guide discussion Kurt took the liberty of sending a three-slide power point presentation. Looking at first slide – project management approach to leadership position and plan results in timely implementation of new gTLDs. Executive management is playing a role, as are middle-management and line staff. There are no consultants on the project team. The work breakdown structure defines pieces of work to be done and the project schedule. The consultants are used judiciously; they are not hired to augment the project team, but are part of balancing the work. Second of the three slides—defines the parties, scope and costs of the consultancy. Small agreements with two parties just under 50k in exchange met here and are developing a project plan for the scope of work and the timetable. This includes a sum of 30 project deliverables: Interisle is responsible for two elements—technical and confusingly similar which has been the subject of a lot of Board discussion. Deloitte are to work on three work breakdown structure deliverable—business criteria, how to resolve two applications for the same string, integration into one RFP. They will also perform cost analysis, RFP and helping with risk analysis. Last slide—tracking project costs to budget. The final project cost was set out for the Board. Other cost items include Deloitte’s LA office helping out with an operational impact analysis. Ability of staff to grow to accommodate many TLDs, fits well within budget.

Jean-Jacques Subrenat expressed concern about the use of the term ‘staff thought leadership’ and suggested instead "staff leadership". He also expressed concern about the assertion that the two agreements (to) provide cultural, geography and expert area diversity. As a Board member from outside the US and UK language and culture area, he considered it not convincing that the choice of Deloitte and Interisle be put forward as an example of geographic, cultural or expert diversity. In matters related to outside consultants in general, he called for greater efforts at true diversification.

Kurt Pritz advised that among other key reasons, the intent was to convey the benefits of hiring two consultants: one from Europe which is more business focuses and one from the US with technical expertise increases provides a diversity of expertise that hiring one could provide. Paul Twomey informed the Board that the Interisle group was the lowest price bidder, by a significant amount, of seven submissions received for the new gTLD work.

Jean-Jacques Subrenat reflected on some discussions of the Board Governance Committee (BGC) about the selection of consultants to undertake the proposed ALAC review. The Committee has raised concerns about the perceptions associated with engaging Interisle given that the leader is a former Board member. He asked how Deloitte’s and Interisle were selected for this project?

Kurt Pritz advised that the choice had come before the discussion by the BGC, and he pointed out that of the seven applicants, Interisle possessed the technical capability and knowledge that would enable them to hit the ground running and the price was attractive. Also, based upon previous experience they were likely to complete their work on time.

The Chair asked if the Board was happy with the explanation of the two projects and the costs?

Bruce Tonkin advised that one of the things coming out of the GNSO community is that there is no visibility of what ICANN staff and the Board have been doing on this issue since the LA meeting. This has been a big work effort by the GNSO and it would be appreciated if an updated could be provided on the appointment of Deloitte’s and Interisle and the scope of their work, and the work being done by Staff.

The Chair thanked Kurt for the clarification and requested that Bruce’s comments be acted on.

Discussion of Joint Project Agreement (JPA) with the NTIA

Paul Twomey advised that the mid-term review of the JPA has commenced. It was announced by then Assistant Secretary of Commerce, John Kneuer, at the LA meeting noting that it is a joint initiative of ICANN and the Department of Commerce (DOC) but will be run under DOC's procedures for such Notices of Inquiry. There is quite a range of members of the ICANN community that want to submit comments and have approached staff about the best way to respond. There are three pieces of work are being completed in December which may assist the community develop their response:

The annual report.

The Accountability and Transparency Frameworks and Principles Document (Management Operating Principles) has been developed over the past six months and the final version will be available soon. The final version draws on feedback received from the GAC during the Los Angeles Meeting, Definitions of Accountability in the ICANN Environment, and others describing the demands and intersections required by ICANN operating in a public, corporate and legal environment. The document is structured around these three elements. The review has shown that the accountability framework for ICANN is comprehensive and complex but is very robust and it is good to see it in one place. Paul Twomey noted that the community should be proud of the comprehensive accountability framework it has developed for ICANN. He further noted that in the spirit of continuous improvement, the Document suggests two concepts be further considered as part of the usual ICANN internal reviews: looking at expanding the mechanisms for the Board to reconsider its decisions; and exploring further Board member terms and what process may be available in rare extreme cases for the community to move to have Board positions spilled and refilled.

The third document is an ICANN evaluation of performance and accompanying Board resolution based on a chapter in the annual report which is more a public facing explanation of the evaluation for those not necessarily close followers of ICANN. The aim is have these documents available to the community by the end of December so the community can use this information in their own contribution in responding to the Notice of Inquiry by 15 February 2008. It is expected that there will be a public consultation process by DOC later in period but no date has been formalized. Jean-Jacques Subrenat expressed his readiness to facilitate response to the notice of inquiry from his own country, France, and also more widely from other countries, for instance those which have in common the French language (the "francophone" area). President and CEO Paul Twomey welcomed this, and indicated he would be getting back soon on this point, since ICANN would be looking for Board members to participate, especially in home countries, to mobilize and assist internet communities to respond to the Notice of Inquiry.

Discussion of Supporting IPv6 in the Root Server System

Doug Brent set out some introductory comments regarding the issue and information that had been provided to the Board. David Conrad indicated that IANA has received requests from four root server operators, F, K, M, Y to add IPv6 addresses to the appropriate files/databases to enable IPv6-only service for root name servers. While IANA has added and modified IPv4 address for root servers in the past, the addition of IPv6 addresses can be argued to be a new process that has some technical considerations as well as potential policy implications.

There were elements of the discussion among Board Members on this topic that were controversial and there had been much Board level discussion relating to this matter via email. A number of approaches were discussed regarding an appropriate resolution on the matter and the Chair sought comments from Board members and liaisons.

Steve Crocker, Thomas Narten, Suzanne Woolf, Harald Alvestrand, David Conrad, Paul Twomey, the Chair, Bruce Tonkin and Raimundo Beca engaged in a discussion regarding the appropriate approach and wording for the resolution and whether a resolution was required.

Following this discussion, Steven Goldstein moved and Harald Alvestrand seconded the following resolution:

Whereas, in the interests of aiding IPv6 deployment, the ICANN

Board believes IPv6 capability should be added to the root server system

without undue delay,

Whereas, the RSSAC/SSAC report SAC 018 has done a careful study of the

technical issues with adding IPv6 addresses to the root:

It is hereby resolved (__.2007) that the Board requests that IANA staff add

IPv6 capability as offered by the individual IPv4 root server operators to

the existing root name servers after a 45-day public notification period

using the methods and practices used to add or modify IPv4 addresses.

A voice vote was taken of all Board Members present, who approved the motion by a vote of 13 to 0. Raimundo Beca abstained from the vote because he did not consider this action necessary.

Discussion of President/CEO’s Performance Review Goals (From Compensation Committee Discussion)

The Chair advised that some months ago the previous Chair circulated work prepared by the Compensation Committee on the CEO’s performance review and goals. There was not formal vote adopting these goals and the Chair considered that it would be appropriate to do so.

The Chair moved and Steve Goldstein seconded a motion to adopt the matrix as recommended by the Compensation Committee

Njeri Rionge informed the Board of the process undertaken to develop the matrix, which included use of an outside consultant to provide feedback on a 360-degree feedback exercise of the CEO’s performance by senior staff and other independent evaluation processes.

A voice vote was taken of all Board Members present and all Board Members present approved the motion by a vote of 13 to 0. Harald Alvestrand abstained, as he had not seen the document.

Update on Formation of BGC’s ALAC Review Working Group (From BGC Discussion)

Roberto Gaetano (Chair of the BGC) advised that the BGC is in the process of selecting a contractor to undertake the review and nominating people for the working group. Eight people have responded positively to their nomination and he would like to circulate in the following days a proposal to the BGC to select the people who have responded positively to avoid further delay. Once the working group is established and a Chairman nominated the work can commence hopefully early in the New Year. In terms of selection of a contractor, a proposal on table and there are widely different views on who are the preferred candidates. The only way to resolve this is at the next teleconference and to go with the majority vote. Aiming to have the working group operational by 10 January at the latest.

Bruce Tonkin requested an update on the GNSO review. Roberto Gaetano, as BGC Chair, advised that the next step is with the GNSO working group. Substantial comments were received from different constituencies at the deadline and these are to be incorporated into the document, however, because the comments are substantial and diverge from the current draft a teleconference of the working group is proposed between 27 and 31 December to assist with the process. A new draft agreement will pass to BGC for discussion at that level and it is unlikely to come before the Board until February. This would be a reasonable timeline to enable discussion and approval at Delhi.

Steve Goldstein advised that Interisle is one of the candidates for the ALAC review. It is proposed that the BGC choose the contractor and the working group deal with the preferred contractor.

Jean-Jacques Subrenat advised that what several of us said in the BGC meeting that be sure you have technical and valid criteria for the choice of Interisle and familiarity of the leader with ICANN and ICANN affairs, but we should also consider the image side of it for the public at large in having the same contractor for some issues. There is no doubt that Interisle is very good, it is more a concern about perceptions.

Other Business: The Chair advised that he is looking forward to the review of all committees and asked directors that the work be completed in time for discussion in Riga. As a result of staff planning work he has asked that a calendar be circulated to the Board that provides dates of events and should have soon for next year.

The Chair wished everyone a happy holiday season and closed the meeting at 10.14 PST.