A Regular Meeting of the ICANN Board of Directors was held in Los Angeles, California on 8 September 2019 at 10:30 local time.
Cherine Chalaby, Chair, promptly called the meeting to order.
In addition to the Chair, the following Directors participated in all or part of the meeting: Maarten Botterman, Becky Burr, Ron da Silva, Chris Disspain (Vice Chair), Sarah Deutsch, Avri Doria, Rafael Lito Ibarra, Danko Jevtovic, Khaled Koubaa, Akinori Maemura, Göran Marby (President and CEO), Nigel Roberts, Léon Sanchez, Matthew Shears, and Tripti Sinha.
The following Board Liaisons participated in all or part of the meeting: Harald Alverstrand (IETF Liaison), Manal Ismail (GAC Liaison), Merike Kaeo (SSAC Liaison), and Kaveh Ranjbar (RSSAC Liaison).
Observing: Mandla Msimang and Ihab Osman.
Secretary: John Jeffrey (General Counsel and Secretary).
The following ICANN Executives and Staff participated in all or part of the meeting: Xavier Calvez (Chief Financial Officer), Mandy Carver (VP for Government Engagement – Global Coordination), Sally Newell Cohen (SVP, Global Communications), David Conrad (Chief Technology Officer), Sally Costerton (Sr Advisor to President & SVP, Global Stakeholder Engagement), John Jeffrey (General Counsel and Secretary), Aaron Jimenez (Board Operations Specialist), Elizabeth Le (Associate General Counsel), Cyrus Namazi (Senior Vice President, Global Domains Division), David Olive (Senior Vice President, Policy Development Support), Ashwin Rangan (SVP, Engineering & Chief Information Officer), Amy Stathos (Deputy General Counsel), Theresa Swinehart (Senior Vice President, Multistakeholder Strategy and Strategic Initiatives), and Gina Villavicencio (SVP, Global Human Resources).
- Approval of Minutes
- RSSAC Appointments
- NomCom Chair and Chair Elect Appointments
- Approval of the Standard Bylaws Amendments to the RSSAC and SSAC composition
- Approval of Fundamental Bylaws Amendment to composition of the IANA Naming Functions Review
- ITU-D Membership Acknowledgement
- Delegation of the .ευ ("eu") domain representing the European Union in Greek script to EURid vzw/asbl.
- Reconsideration Request 19-1: Colombian Government re: .AMAZON
- GAC Advice: Marrakech Communiqué (June 2019)
The Chair opened the meeting and introduced the agenda. He noted that the names of the appointees as the Nominating Committee Chair and Chair Elect would not be public until the candidates had been notified.
Avri Doria moved the adoption of the resolution to adopt the consent agenda, and Becky Burr seconded. The Chair called for a vote, and the Board took the following actions:
Approval of Minutes
Resolved (2019.09.08.01), the Board approves the minutes of the 1 March 2019 Special Meeting of the ICANN Board and the 23 June 2019 Regular Meeting of the ICANN Board.
Whereas, the ICANN Bylaws call for the establishment of the Root Server System Advisory Committee (RSSAC) with the role to advise the ICANN community and ICANN Board of Directors on matters relating to the operation, administration, security, and integrity of the Internet's Root Server System.
Whereas, the ICANN Bylaws call for the ICANN Board of Directors to appoint one RSSAC member from each root server operator organization, based on recommendations from the RSSAC Co-Chairs.
Whereas, the RSSAC Co-Chairs have recommended to the ICANN Board of Directors the appointments of representatives from Defense Information Systems Agency; National Aeronautics and Space Administration (NASA); University of Maryland; and United States Army Research Laboratory to the RSSAC.
Resolved (2019.09.08.02), the ICANN Board of Directors appoints Keith Bluestein, Howard Kash, Karl Reuss, and Kevin Wright to the RSSAC through 31 December 2022.
Rationale for Resolution 2019.09.08.02
In May 2013, the root server operator organizations agreed to an initial membership of representatives for the RSSAC, each nominating an individual. The ICANN Board of Directors approved the initial membership of the RSSAC in July 2013 with staggered terms. The current term for the representatives from Defense Information Systems Agency; National Aeronautics and Space Administration (NASA); University of Maryland; and United States Army Research Laboratory expires 31 December 2019.
Today, the Board is taking action pursuant to Article 12, Section 12.2 (c)(ii) of the ICANN Bylaws to appoint members to the RSSAC.
The appointment of RSSAC members is not anticipated to have any fiscal impact on the ICANN organization that has not already been accounted for in the budgeted resources necessary for ongoing support of the RSSAC.
This resolution is an Organizational Administrative Function for which no public comment is required. The appointment of RSSAC members contributes to the public interest and the commitment of the ICANN organization to strengthen the security, stability, and resiliency of the DNS.
NomCom Chair and Chair Elect Appointments
Whereas, the BGC reviewed the Expressions of Interest from candidates for the 2020 Nominating Committee ("NomCom") Chair and Chair-Elect, considered the NomCom members' evaluations of the 2019 NomCom leadership and members who expressed interest in serving in a leadership position, and conducted interviews of candidates.
Whereas, the BGC has recommended that Jay Sudowski be appointed as the 2020 NomCom Chair and Ole Jacobsen be appointed as the 2020 NomCom Chair-Elect.
Resolved (2019.09.08.03), the Board hereby appoints Jay Sudowski as the 2020 Nominating Committee Chair and Ole Jacobsen as the 2020 Nominating Committee Chair-Elect.
Rationale for Resolutions 2019.09.08.03
ICANN's Bylaws require the Board to appoint the Nominating Committee (NomCom) Chair and NomCom Chair-Elect. See ICANN Bylaws, Article 8, Section 8.1. The Board has delegated the responsibility for recommending the NomCom Chair and Chair-Elect for Board approval to the Board Governance Committee (BGC). (See BGC Charter at http://www.icann.org/en/committees/board-governance/charter.htm.) The BGC oversaw the posting of a call for expressions of interest (EOI) on 24 May 2019 seeking EOIs by 15 June 2019 (see (https://www.icann.org/news/announcement-2019-05-24-en), which was then extended to 5 July 2019 (https://www.icann.org/news/announcement-2-2019-06-14-en).
As input into the selection of 2020 the NomCom leadership positions, the BGC reviewed and discussed the received EOIs, reviewed the NomCom members' evaluations of the 2019 NomCom leadership and 2019 NomCom members who expressed interest in serving in a NomCom leadership position, and interviewed candidates. Following the above actions and further discussion, the BGC agreed on recommendations to the Board for the 2020 NomCom Chair and Chair-Elect.
The Board has considered and agrees with the BGC's recommendation for the 2020 NomCom Chair and 2019 NomCom Chair-Elect. The Board also would like to thank all who expressed interest in becoming part of the 2020 NomCom leadership.
Appointing a NomCom Chair and Chair-Elect identified through a public EOI process, including interviews of the candidates, is in the public interest as it positively affects the transparency and accountability of ICANN. It is also fully consistent with ICANN's mission.
Adopting the BGC's recommendation has no financial impact on ICANN that was not otherwise anticipated, and will not negatively impact the security, stability and resiliency of the domain name system.
This is an Organizational Administrative Function not requiring public comment.
Approval of the Standard Bylaws Amendments to the RSSAC and SSAC composition
Whereas, Article 12, Section 12.2(b) of the Bylaws governs the Security and Stability Advisory Committee (SSAC), and Article 12, Section 12.2(c) governs the Root Server System Advisory Committee (RSSAC).
Whereas, under the current Bylaws Article 12, Section 12.2(b) (ii), the SSAC is not permitted to limit the number of terms the SSAC chair may serve, and the SSAC proposes amendments to that Article to remove language referring to the chair's term, which will give the SSAC the ability to impose term limits if it so chooses.
Whereas, under the current Bylaws Article 12, Section 12.2(c)(ii), the RSSAC is to be led by two co-chairs, and the RSSAC proposed amendments to Article 12 that would require only a singular chair.
Whereas both the SSAC and RSSAC were motivated to request these amendments as part of the implementation of the recommendations arising out of their most recent organizational reviews.
Whereas, on 3 May 2019, pursuant to the Standard Bylaws amendment process at Section 25.1(b) of the ICANN Bylaws, the ICANN Board approved the posting of these proposed Bylaws amendments for public comment.
Whereas, the amendments were posted for public comment from 10 June 2019 – 9 August 2019. Two comments were received, and both were supportive of the changes.
Whereas, the Organizational Effectiveness Committee of the Board recommends the approval of the Bylaws changes related to the SSAC and RSSAC leadership, as posted for public comment.
Resolved (2019.09.08.04), pursuant to Section 25.1 of the ICANN Bylaws, the Board approves the amendments to Article 12, Section 12.2(b)(ii) and Section 12.2(c)(ii) as posted for public comment, and directs the ICANN President and CEO, or his designee, to continue with the Standard Bylaws amendment process for these sections.
Rationale for Resolution 2019.09.08.04
The Board is taking this action today at the request of the SSAC and RSSAC and in support of the organizational reviews required under Section 4.4 of the ICANN Bylaws. The Final Report of the Independent Review of SSAC by Analysis Group recommended that term limits be applicable for the leadership of the SSAC, which the Bylaws do not allow at this time. Flexibility in the structure of the RSSAC leadership is proposed as an implementation item in direct response to a recommendation arising out of the organizational review of the RSSAC regarding issues of succession.
These changes were jointly posted for public comment, with two comments received. The ICANN Business Constituency and the Non-Commercial Stakeholder Group were each in support of the proposed Bylaws changes. These comments were reflected in a staff report.
Today's action does not pose any identified fiscal impact, nor does it impact the security, stability or resiliency of the Internet's DNS. This action serves ICANN's mission in ensuring the stable and secure operation of the Internet's unique identifier systems through supporting the continued evolution of the governance of these two key advisory committees. In addition, this action supports the accountability mandates of organizational review process, as each of the requested changes arise out of that process. It is in the public interest as following the Bylaws-mandated amendment process supports ICANN's multistakeholder community and allows ICANN to remain accountable to its Bylaws-mandated mechanisms.
This is an Organizational Administrative Function for which public comment was received.
Approval of Fundamental Bylaws Amendment to composition of the IANA Naming Functions Review
Whereas, Article 18 of the ICANN Bylaws requires ICANN to cause periodic reviews of the performance of the IANA Naming Function.
Whereas, the first IANA Naming Function Review was commenced by the Board in September 2018 and the appointing entities began the work to comprise the IANA Naming Function Review Team (IFR Team).
Whereas, due to changing composition of the ccNSO in the years since the IANA Stewardship Transition, the ccNSO Council had difficulty locating a non-ccNSO ccTLD representative as required by Section 18.7(b) of the ICANN Bylaws. As a result, this significantly delayed the completion of composition of the IFR Team, and this same difficulty is anticipated to arise for future IANA Naming Function Reviews.
Whereas, on 12 April 2019 the ccNSO Council, through its Chair, requested the ICANN Board to initiate an amendment to the ICANN Bylaws to remedy this situation, and proposed language for such amendment.
Whereas, on 31 May 2019, following a recommendation from the Board's Organizational Effectiveness Committee, responsible for coordinating the Board's oversight of the IANA Naming Functions Review, the ICANN Board directed ICANN org to post the proposed amendments for public comment and initiate the Fundamental Bylaws Amendment Process under Section 25.2 of the ICANN Bylaws.
Whereas, the proposed amendment to Section 18.7 of the ICANN Bylaws was posted for public comment from 10 June – 9 August 2019. Six comments were received, and no commenters were opposed to the amendment.
Whereas, the OEC recommends that the Board approve the amendments to Section 18.7 of the ICANN Bylaws, as posted for public comment, and direct ICANN org to continue with the Fundamental Bylaws Amendment process.
Resolved (2019.09.08.05), the ICANN Board approves the amendments to Section 18.7 of the ICANN Bylaws as posted from public comment. The Board directs the President and CEO, or his designee(s), to continue with the Fundamental Bylaws Amendment Process under Section 25.2 of the ICANN Bylaws.
Rationale for Resolution 2019.09.08.05
Moving forward with the Fundamental Bylaws Amendment Process is in direct response to the request of the ccNSO Council, and also supports the new accountability and oversight mechanisms designed by the community in the IANA Stewardship Transition Process. The IANA Naming Function Review is an important part of the accountability and oversight of IANA's performance of the Naming Function and was a key aspect of the Transition proposal. During the pendency of Bylaws' change process to date, the ccNSO Council was eventually, was eventually able, through considerable effort and perseverance, to locate a non-ccNSO member ccTLD manager to serve on the current IANA Naming Function Review Team However the ccNSO Council is likely to be unable to complete the required composition of the IANA Naming Function Review Teams in the future unless we continue with this change. Taking this action today is a step forward to making sure that the IANA Naming Function Reviews can proceed in a manner that the ICANN community collectively supports, as will be identified through the Fundamental Bylaws process.
This action is based on a review of the ccNSO's initial request to change the Bylaws and a review of the public comments received on the proposed amendments, including the Staff Report of the Public Comment Proceeding. There were six unique comments submitted, including from the ccNSO Council, the Business Constituency, the Registries Stakeholder Group, the Non-Commercial Stakeholder Group, the At-Large Advisory Council, and an individual affiliated with Nominet. The ccNSO, BC, RySG, ALAC and individual commenter all supported the Bylaws change as proposed. The NCSG, while not opposing the recommendation, suggested that a requirement for best efforts to identify a non-ccNSO should also be incorporated into the Bylaws. The individual commenter, who participates in ccNSO processes, warned against being too proscriptive in the Bylaws regarding the ccNSO processes. None of the commenters opposed the proposed language. No other commenter, including the ccNSO, supported the NCSG's recommendation for further change the proposed language.
The Board recognizes that the RySG, which is also responsible for the appointment of two members to the IFR, included in its comment a suggestion for further amendment of the composition requirements so as to relax some of the RySG's obligations as it relates to geographic diversity of its selected members. The action today on the amendments proposed by the ccNSO does not preclude further amendment to this section of the Bylaws and does not make any assessment of the RySG's proposal. The Board looks further to continued dialogue with the RySG and the broader community if additional issues are identified through the running of the IFR, and to considering issues of geographic diversity alongside the work that is arising out of the impending implementation of the diversity recommendations from Work Stream 2 of the Cross-Community Working Group on Enhancing ICANN Accountability.
Today's action does not pose any identified fiscal impact, nor does it impact the security, stability or resiliency of the Internet's DNS. This action serves ICANN's mission of coordinating the allocation and assignment of names in the root zone, as it will allow continued oversight over how ICANN serves that naming function. It is in the public interest as following the Bylaws-mandated amendment process supports ICANN's multistakeholder community and allows ICANN to remain accountable to its Bylaws-mandated mechanisms.
This is an Organizational Administrative Function for which public comment was received.
ITU-D Membership Acknowledgement
Whereas, after discussion and support from the Board, ICANN organization applied for ITU-D sector membership, and also sought a fee waiver for membership, if approved.
Whereas, ICANN's engagement with the ITU-D is based on the importance of effective engagement within the ITU and its membership, alongside other members of the technical community, in order to effectively communicate the role of ICANN, and, as appropriate to defend our Mission and multistakeholder processes.
Whereas, in June 2019, ICANN was informed that its application for sector membership was approved, and that the fee waiver was granted.
Resolved (2019.09.08.06), the Board thanks the ITU for the approval of ICANN's application as a sector member of the ITU-D, and thanks the ITU for the granting of the fee waiver. The Board directs ICANN's President and CEO, or his designee, to review the appropriate next steps for ICANN's participation within the ITU-D following the approval of the application and in accordance with ICANN's organizational engagement strategy.
Rationale for Resolution 2019.09.08.06
As part of the technical community, ICANN has had a long history of engagement with the International Telecommunications Union (ITU). In the past, as part of the now-defunct Technical Liaisons Group (TLG), the ITU was responsible for seating a liaison to the ICANN Board every third year. Though the TLG was disbanded a few years ago, the ability to maintain engagement opportunities with the ITU has remained important to ICANN.
ICANN's application for sector membership to the ITU-D, and the resulting approval of that application on a fee-waived basis, is an important recognition of the reciprocal relationship between the two organizations. ICANN's ability to serve as a sector member in the ITU-D provides an opportunity for ICANN org to effectively communicate the role of ICANN, and as appropriate, to defend ICANN's Mission and multistakeholder processes.
This action is within ICANN's mission as ICANN's engagement with other technical organizations serves and enhances ICANN's ability to ensure the stable and secure operation of the Internet's unique identifier system. It is in the public interest in that it upholds and recognizes the role of other entities in the broader ecosystem and the value in keeping open lines of communication, as well as upholding the value of ICANN's multistakeholder model.
This action is not expected to have an impact on ICANN's resources or a direct impact on the security or stability of the Internet's DNS. This is an Organizational Administrative Function for which public comment is not required.
All members of the Board present voted in favor of Resolutions 2019.09.08.01, 2019.09.08.02, 2019.09.08.03, 2019.09.08.04, 2019.09.08.05, and 2019.09.08.06. The Resolutions carried.
Delegation of the .ευ ("eu") domain representing the European Union in Greek script to EURid vzw/asbl.
Chris Disspain introduced the agenda item. He explained the Board's role in the process for deleting ccTLDs, which is to confirm that IANA has followed proper procedures. He also provided some background information concerning previous process steps leading up to the delegation of .ευ, including those to address potential string confusion and an appeal mechanism. Göran Marby, the President and CEO, expressed thanks to the ccNSO, the SSAC, and their representatives for helping to resolve this issue.
Chris Disspain moved the proposed resolution, and Tripti Sinha seconded. After discussion, the Board took the following action:
Resolved (2019.09.08.07), as part of the exercise of its responsibilities under the IANA Naming Function Contract with ICANN, IANA has reviewed and evaluated the request to delegate the .ευ top-level domain to EURid vsw/asbl. The documentation demonstrates that the proper procedures were followed in evaluating the request.
All members of the Board present voted in favor of Resolution 2019.09.08.07. The Resolution carried.
Rationale for Resolutions 2019.09.08.07
Why the Board is addressing the issue now?
In accordance with the IANA Naming Function Contract, IANA has evaluated a request for ccTLD delegation and is presenting its report to the Board for review. This review by the Board is intended to ensure that the proper procedures were followed.
What is the proposal being considered?
The proposal is to approve a request to create the .ευ country-code top-level domain in Greek script and assign the role of manager to EURid vsw/asbl.
Which stakeholders or others were consulted?
In the course of evaluating a delegation application, IANA consulted with the applicant and other interested parties. As part of the application process, the applicant needs to describe consultations that were performed within the country concerning the ccTLD, and their applicability to their local Internet community.
What concerns or issues were raised by the community?
IANA is not aware of any significant issues or concerns raised by the community in relation to this request.
What significant materials did the Board review?
[REDACTED – Sensitive Delegation Information]
What factors the Board found to be significant?
The Board did not identify any specific factors of concern with this request.
Are there positive or negative community impacts?
The timely approval of country-code domain name managers that meet the various public interest criteria is positive toward ICANN's overall mission, the local communities to which country- code top-level domains are designated to serve, and responsive to obligations under the IANA Naming Function Contract.
Are there financial impacts or ramifications on ICANN (strategic plan, operating plan, budget); the community; and/or the public?
The administration of country-code delegations in the DNS root zone is part of the IANA functions, and the delegation action should not cause any significant variance on pre-planned expenditure. It is not the role of ICANN to assess the financial impact of the internal operations of country-code top-level domains within a country.
Are there any security, stability or resiliency issues relating to the DNS?
ICANN does not believe this request poses any notable risks to security, stability or resiliency. This is an Organizational Administrative Function not requiring public comment.
Reconsideration Request 19-1: Colombian Government re: .AMAZON
Léon Sanchez introduced the agenda item. He provided an overview of Reconsideration Request 19-1, explaining that the government of Colombia filed the request challenging some resolutions adopted by the Board on 15 May 2019. Léon reported that the Board Accountability Mechanisms Committee (BAMC) considered the Reconsideration Request and has recommended that the Board deny the request. He reiterated that the BAMC's recommendation and the Board's proposed action come as the result of the BAMC and the Board reviewing the relevant materials associated with Reconsideration Request 19-1 and considering the merits of the request.
The Chair inquired about next steps if the Board were to accept the BAMC's recommendation, and Cyrus Namazi outlined the next steps to continue processing the .AMAZON applications, which would include changing the status of the application from "on hold" to "active" and publishing the proposed Public Interest Commitments and application for Specification 13 for a notice period of 30 days. Cyrus stated that following the 30-day notice period, ICANN org would consider all the comments received, if any, and depending on the nature of the comments, would make any changes necessary. The next step would be the contracting phase.
Danko Jevtovic and Tripti Sinha advised that they would be abstaining from consideration of the matter, citing potential conflicts of interest.
Nigel Roberts moved the proposed resolution, and Sarah Deutsch seconded. Following discussion, the Chair called for a vote and the Board took the following action:
Whereas, the Government of Colombia (Requestor), submitted Reconsideration Request 19-1 seeking reconsideration of ICANN Board Resolutions 2019.05.15.13–2019.05.15.15 (15 May 2019 Resolutions).
Whereas, the Requestor suggests that the Board failed to consider material information and that the Board relied on inaccurate information when it adopted the 15 May 2019 Resolutions.
Whereas, the Requestor further suggests that the Board violated the ICANN Bylaws by not publishing the agenda for the 15 May 2019 Board meeting until the day before the meeting was scheduled to take place.
Whereas, the Requestor further suggests that ICANN organization violated the ICANN Bylaws regarding transparency by scheduling a closed meeting during ICANN65 with the ICANN Registries Stakeholder Group to discuss a potential process for amending previously contracted-for Public Interest Commitments.
Whereas, the Board Accountability Mechanisms Committee (BAMC) previously determined that Request 19-1 is sufficiently stated and sent Request 19-1 to the Ombudsman for consideration in accordance with Article 4, Section 4.2(j) and (k) of the ICANN Bylaws.
Whereas, the Ombudsman recused himself from this matter pursuant to Article 4, Section 4.2(l)(iii) of the Bylaws.
Whereas, the BAMC carefully considered the merits of Request 19-1 and all relevant materials and recommended that Request 19-1 be denied because the Board adopted the 15 May 2019 Resolutions based on accurate and complete information and because neither the Board nor ICANN org took any action in contradiction of ICANN's Bylaws.
Whereas, pursuant to Article 4, Section 4.2(q) of the ICANN Bylaws, the Requestor has 15 days from the receipt of the BAMC's Recommendation on Request 19-1 to submit a rebuttal. No rebuttal was filed by the 29 August 2019 deadline and none has been received to date.
Resolved (2019.09.08.08), the Board adopts the BAMC Recommendation on Request 19-1.
Fourteen members of the Board voted in favor of Resolution 2019.09.08.08. Danko Jevtovic and Tripti Sinha abstained from voting. The Resolution carried.
Rationale for Resolution 2019.09.08.08
Brief Summary and Recommendation
The full factual background is set forth in the BAMC Recommendation on Request 19-1 (BAMC Recommendation), which the Board has reviewed and considered, and which is incorporated here.
On 14 August 2019, the BAMC evaluated Request 19-1 and all relevant materials and recommended that the Board deny Request 19-1 because the 15 May 2019 Resolutions were adopted based on accurate and complete information. The BAMC further recommended that the Board deny Request 19-1 because neither the Board nor ICANN organization took any action in contradiction of ICANN's Bylaws.
Pursuant to Article 4, Section 4.2(q), the Requestor has 15 days from the receipt of the BAMC's Recommendation on Request 19-1 to submit a rebuttal. No rebuttal was filed by the 29 August 2019 deadline and none has been received to date.
The issues are as follows:
- Whether the Board adopted the 15 May 2019 Resolutions based on false or inaccurate relevant information, or without consideration of material information.
- Whether the Board adopted the 15 May 2019 Resolutions contrary to ICANN's Bylaws, which require that "[a]t least seven days in advance of each Board meeting (or if not practicable, as far in advance as is practicable), a notice of such meeting and, to the extent known, an agenda for the meeting shall be posted."1
- Whether ICANN org or the ICANN Board violated ICANN's Bylaws, which require that ICANN "operate to the maximum extent feasible in an open and transparent manner,"2 by holding a closed meeting with the Registries Stakeholder Group (RySG) to discuss a potential process to modify Public Interest Commitments (PICs).
Analysis and Rationale
The Board Did Not Fail to Consider Material Information Before Adopting the Resolutions.
The Board did consider all relevant materials in adopting the 15 May 2019 Resolutions. The Requestor suggests that "ICANN Staff and Board . . . failed to consider the detailed legal concerns raised in a [7 April 2019] communication to Amazon the Company in which the ICANN CEO, ICANN Board Chair, and ICANN GAC Chair were all copied."3 Relatedly, the Requestor notes that "the Colombian government offered other governance structures" in its 7 April 2019 communication to the Amazon corporation, but that it "does not appear that the ICANN Board even consider[ed] this potential option in seeking to achieve a mutually agreeable resolution between the parties."4 Contrary to the Requestor's assertion, the Board considered the issues set forth in the Requestor's 7 April 2019 Letter as part of its discussion on the Amazon corporation's April 2019 Proposal at the Board workshop from 1-3 May 2019. Hence, the BAMC concluded, and the Board agrees, that there is no evidence that the Board failed to consider material information in adopting the 15 May 2019 Resolutions.5
The Board considered the "legal concerns" raised in the Requestor's 7 April 2019 Letter.
The Requestor's conclusion that the Board did not consider the Requestor's "legal concerns" is based solely on the Requestor's assertion that it "has been unable to find [the 7 April 2019] communication listed on the ICANN public correspondence website or in any of the cited references in the Resolution[s]."6 However, the Requestor's 7 April 2019 Letter was addressed to the Amazon corporation, not to the ICANN Board, ICANN org, or any individual associated with ICANN.7 ICANN org's President and CEO, as well as the Board Chair, were simply copied on the communication.8 It is not ICANN's policy or practice to publicly post communications between third parties on which it is only copied.
While the Board acknowledges that the Requestor's 7 April 2019 Letter was not specifically identified in the 15 May 2019 Resolutions under the "What materials did the Board review" section of the Rationale, the legal concerns and the proposed joint governance structure for the .AMAZON TLDs set forth in the Requestor's 7 April 2019 Letter were also discussed in other correspondence from the ACTO member states that the Board considered and listed in adopting the 15 May 2019 Resolutions.9 Specifically, the legal concerns and proposed joint governance structure were included in the 11 April 2019 letter from the Secretary General of ACTO to the ICANN Board Chair,10 and the letters from Ambassador Zaluar of Brazil to the ICANN Board of 23 April 201911 and 7 May 2019.12 Further, ACTO noted in its 11 April 2019 letter to the Board that the ACTO member states "have presented many times in the past years . . . their joint and clear position about the baseline for an agreement, i.e., a shared governance of the TLD."13 These letters were identified in the "What materials did the Board review" section to the 15 May 2019 Resolutions.14
The Board considered the alternative governance models suggested by the Requestor and ACTO member states.
Contrary to the Requestor's claims, the Board did consider the alternative governance models proposed by the Requestor and ACTO member states when the Board adopted the 15 May 2019 Resolutions. The fact that the Board did not accept the proposed joint governance models is not evidence that the Board failed to consider the proposals. 15 It should further be noted that the alternative governance models were not material to the question before the Board when it adopted the Resolutions. That is, pursuant to the 10 March 2019 Resolutions, the Board was to consider whether the Amazon corporation's proposal was acceptable, not to compare the Amazon corporation's proposal with alternatives proposed by other stakeholders. Nevertheless, the Board did consider the proposed alternative governance models.
- The Board considered the "legal concerns" raised in the Requestor's 7 April 2019 Letter.
The Board Did Not Adopt the 15 May 2019 Resolutions Based on False or Inaccurate Information.
The ICANN Board did not approve Amazon corporation's Specification 13 Applications when it adopted the 15 May 2019 Resolutions.
The Requestor claims that in adopting the 15 May 2019 Resolutions, "[t]he ICANN Board appears to blindly accept Amazon the Company's representation that operating the contested string under a Specification 13 designation would be consistent with existing ICANN established best practice and would safeguard all parties' best interests."16 According to the Request, "that is not the case," and is therefore inaccurate information, because "only the trademark owner, its affiliates and licensees are permitted to use domain names in a Specification 13 (aka Brand) TLD," and the Requestor "cannot see how Amazon Inc's proposal to permit ACTO members to be beneficial registrants of the domain names is acceptable under the existing ICANN registry contractual framework."17
The Board's determination in the 15 May 2019 Resolutions that ICANN org should "continue processing" the .AMAZON applications "according to the policies and procedures of the New gTLD Program" was not a determination that the Amazon corporation is automatically entitled to move forward to delegation of the .AMAZON TLDs, nor did the Board's action constitute approval of the Amazon corporation's Specification 13 applications to operate as .BRAND TLDs. In adopting the 15 May 2019 Resolutions, the Board acknowledged that the .AMAZON applications still needed to go through the remaining application processes in accordance with the Applicant Guidebook.18
While the Board was aware of the Amazon corporation's intention of operating the .AMAZON TLDs as .BRAND TLDs,19 the 15 May 2019 Resolutions did not take a position on the propriety of any Specification 13 application because individual Specification 13 applications are evaluated and approved or denied by ICANN org.20 The Board notes that the Amazon corporation had not yet submitted a formal Specification 13 application for the proposed .AMAZON TLDs when the Board approved the 15 May 2019 Resolutions. Because the Board did not take a position on the propriety of any Specification 13 application, it did not rely on any "representations" about Specification 13, and therefore those representations do not support the Requestor's claim that the Board relied on inaccurate information when it enacted the 15 May 2019 Resolutions.
Specification 13 status is not necessarily incongruent with the proposed PICs.
The Requestor claims that Amazon corporation's proposed PICs would automatically be incongruent with any Specification 13 application submitted by the Amazon corporation. The Board does not agree with the Requestor's conclusion. Specification 13 requires, among other things, that only the Registry Operator (here, this would be the Amazon corporation), "its Affiliates or Trademark Licensees are registrants of domain names in the TLD and control the DNS records associated with domain names at any level in the TLD." 21 There is no prohibition on allowing third parties to use domain names in a .BRAND TLD, which was what the Amazon corporation proposed to do.22
The Requestor states that it advised the Board of the conflict between Amazon corporation's Specification 11 and 13 designations in the Requestor's 7 April 2019 Letter. The Board notes that the Requestor actually concedes in the letter that the proposed PICs do not inherently conflict with Specification 13. That is, the Requestor does not assert that the proposed PICs actually violate Specification 13, but rather, the Requestor posits that the proposed PICs "violate the spirit of the Specification 13 guidance and the best practice of ICANN Org in approving Specification 13 requests."23 Because Specification 13 does not prohibit the type of use (without third-party registration) that the Amazon corporation proposed, the Requestor's assertions about the "spirit" of Specification 13 are misplaced and not grounds for reconsideration.24
Finally, the Requestor's concerns about Specification 13 appear to arise from a belief that, if the Amazon corporation applies for and receives Specification 13 status for the proposed .AMAZON TLDs, such status will nullify or diminish the effect of the PICs.25 While the Board understands the Requestor's concerns, they are unfounded and premature at this stage. Amazon corporation's Specification 13 status has no bearing on its Specification 11 PICs. The approval of a Specification 13 to an eventual registry agreement and the designation of a TLD as a .BRAND TLD does not nullify the Registry Operator's Specification 11 PICs. A Registry Operator will be contractually bound by its Specification 11 commitments and its Specification 13 obligations, if applicable. Each Specification has its own enforcement mechanisms. A Registry Operator's failure to operate in compliance with its Specification 11 PICs shall be subject to the Public Interest Commitment Dispute Resolution Procedure.26 Similarly, upon a Registry Operator's failure to satisfy the requirements of Specification 13, "(i) the TLD shall immediately cease to be a .BRAND TLD, (ii) Registry Operator shall immediately comply with the provisions of the [Registry] Agreement as no longer modified by [ ] Specification 13 [ ] and (iii) the provisions of [the] Specification 13 [ ] shall thereafter no longer have any effect."27 Thus, if an actual conflict should arise between the Amazon corporation's Specifications 11 and 13, there are safeguards in place to address such conflicts.
- The ICANN Board did not approve Amazon corporation's Specification 13 Applications when it adopted the 15 May 2019 Resolutions.
The Board's Adoption of the Resolutions Was Consistent with ICANN's Bylaws.
The Requestor claims that the Board adopted the Resolutions in contravention of the ICANN Bylaws because "the agenda for the 15-May-2019 ICANN Board meeting was published one (1) day in advance of the actual meeting."28 In the Requestor's view, this violated Article 3.4 of the ICANN Bylaws, which required that "[a]t least seven days in advance of each Board meeting (or if not practicable, as far in advance as is practicable), a notice of such meeting and, to the extent known, an agenda for the meeting shall be posted."29 As the Requestor acknowledges, "the bylaws provide some latitude" with respect to this provision by including "qualifiers like 'as is practicable.'"30 In this case, the 15 May 2019 meeting was set to address the urgent matter of the GNSO EPDP Recommendations on the Temporary Specification for gTLD Registration Data, because the Temporary Specification was set to expire.31 Given the circumstances, the agenda for the meeting was not finalized until 14 May 2019, when it was promptly posted as soon as practicable. Therefore, the timing of when the agenda was posted was consistent with the Bylaws.
No Meeting Was Scheduled with the RySG to Discuss a Potential Process to Modify PICs.
The Board agrees with the BAMC that Request 19-1 does not identify a violation of ICANN Bylaws, policies, or procedures because there was no private meeting between ICANN org and the RySG during ICANN 65 about a process for modifying previously agreed to PICs. Rather, the meeting cited by the Requestor concerned the process for enforcing PICs (the PIC Dispute Resolution Process, or PICDRP).
For the foregoing reasons, the Board concludes that reconsideration is not warranted.
This action is within ICANN's Mission and is in the public interest as it is important to ensure that, in carrying out its Mission, ICANN is accountable to the community for operating within the Articles of Incorporation, Bylaws, and other established procedures, by having a process in place by which a person or entity materially affected by an action of the ICANN Board or Staff may request reconsideration of that action or inaction by the Board. Adopting the BAMC's Recommendation has no financial impact on ICANN and will not negatively impact the security, stability and resiliency of the domain name system.
This decision is an Organizational Administrative Function that does not require public comment.
- The Board Did Not Fail to Consider Material Information Before Adopting the Resolutions.
- Brief Summary and Recommendation
GAC Advice: Marrakech Communiqué (June 2019)
Maarten Botterman introduced the agenda item. He provided the Board with an overview of the process to develop the Board's scorecard to address the GAC advice in the Marrakech Communiqué, which included an exchange with the GAC to understand the advice. He noted that the scorecard reflects responses to previous advice, as there was no new advice provided in the Marrakech Communiqué. The previous advice that was considered related to the .AMAZON applications, two-character country codes as second-level domain names, and WHOIS and data protection. With regard to the .AMAZON applications, he suggested that the scorecard be updated to take into account the Board's recent action on Reconsideration Request 19-1.
Léon Sanchez moved the proposed resolution, and Ron da Silva seconded. After discussion, the Board took the following action:
Whereas, the Governmental Advisory Committee (GAC) met during the ICANN65 meeting in Marrakech, Morocco and issued a communiqué on 27 June 2019 ("Marrakech Communiqué"), which contains follow-up to previous advice but no new consensus advice. The follow-up to previous advice concerns the .AMAZON applications, Two-Character Country Codes as Second Level Domain Names, and WHOIS and Data Protection.
Whereas, in a 19 July 2019 letter, the GNSO Council provided its feedback to the Board concerning the follow-up to previous advice contained in the Marrakech Communiqué.
Whereas, the Board developed a scorecard to respond to the GAC's follow-up to previous advice in the Marrakech Communiqué, taking into account previous dialogue between the Board and the GAC on the topics as well as the information provided by the GNSO Council.
Resolved (2019.09.08.09), the Board adopts the scorecard titled "GAC Advice – Marrakech Communiqué: Actions and Updates (8 September 2019)" in response to items of GAC follow-up to previous advice in the Marrakech Communiqué.
All members of the Board present voted in favor of Resolution 2019.09.08.09. The Resolution carried.
Rationale for Resolutions 2019.09.08.09
Article 12, Section 12.2(a)(ix) of the ICANN Bylaws permits the GAC to "put issues to the Board directly, either by way of comment or prior advice, or by way of specifically recommending action or new policy development or revision to existing policies." In its Marrakech Communiqué (27 June 2019), the GAC issued follow-up to previous advice to the Board on .AMAZON applications, Two-Character Country Codes as Second Level Domain Names, and WHOIS and Data Protection. The GAC did not provide any new items of consensus advice. The ICANN Bylaws require the Board to take into account the GAC's advice on public policy matters in the formulation and adoption of the polices. If the Board decides to take an action that is not consistent with the GAC advice, it must inform the GAC and state the reasons why it decided not to follow the advice. Any GAC advice approved by a full consensus of the GAC (as defined in the Bylaws) may only be rejected by a vote of no less than 60% of the Board, and the GAC and the Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.
The Board is taking action today on all follow-up items in the Marrakech Communiqué.
The Board's actions are described in the scorecard dated 8 September 2019.
In adopting its response to the GAC follow-up to previous advice in the Marrakech Communiqué, the Board reviewed various materials, including, but not limited to, the following materials and documents:
- Board resolution of 27 January 2019 regarding the Barcelona Communiqué: https://www.icann.org/resources/board-material/resolutions-2019-01-27-en#2.c
- Board resolutions of 15 May 2019 regarding the Kobe Communiqué and .AMAZON: https://www.icann.org/resources/board-material/resolutions-2019-05-15-en#1.a
- Marrakech Communiqué (27 June 2019): https://www.icann.org/en/system/files/correspondence/gac-to-icann-27jun19-en.pdf [PDF, 135 KB]
- The GNSO Council's review of the follow-up to previous advice in the Marrakech Communiqué as presented in the 19 July 2019 letter to the Board: https://www.icann.org/en/system/files/correspondence/drazek-et-al-to-chalaby-19jul19-en.pdf
The adoption of the GAC follow-up to previous advice as provided in the scorecard will have a positive impact on the community because it will assist with resolving the advice from the GAC concerning gTLDs and other matters. There are no foreseen fiscal impacts associated with the adoption of this resolution. Approval of the resolution will not impact security, stability or resiliency issues relating to the DNS. This is an Organizational Administrative Function that does not require public comment.
The Chair welcomed Mandla Msimang and Ihab Osman as the two new Board members selected by the Nominating Committee to be seated on the Board at the 2019 Annual General Meeting. The Chair also congratulated Maarten Botterman for having been selected by the Nominating Committee to serve on the Board for a second term.
The Chair adjourned the meeting.
Published on 8 November 2019
1 ICANN Bylaws, 18 June 2018, Art. 3 § 3.4.
2 Id. at § 3.1.
3 Request 19-1, § 8, at Pg. 5.
4 Id. at Pg. 7.
5 In connection with the shared governance model, the Request also asks that "ICANN Org direct SSAC to prepare [a] report for the ICANN Board to address the security and stability concerns raised by Amazon the Company in connection with the concurrent use proposal made by the Colombia government." Request 19-1, § 9, at Pg. 11. However, such information is not relevant to the issue at hand. Moreover, a Request for Reconsideration is not the appropriate forum in which to request such relief. See Bylaws Art. 4, § 4.2. A Request for Reconsideration is likewise not the appropriate forum for the Requestor's request that the ICANN Board "be provided with a confidential briefing document on the approximately thirty-seven Specification 13 requests that were either 'Not Approved or Withdrawn.'" Request 19-1, § 9, at Pg. 11.
6 See id. at Pg.5.
7 See id. at Attachment, Pg. 17.
8 See id.
9 The Requestor's 7 April 2019 Letter cited several models of joint governance, including the .SAS TLD governance model.
14 See, e.g., https://www.icann.org/en/system/files/correspondence/zaluar-to-chalaby-23apr19-en.pdf; https://www.icann.org/en/system/files/correspondence/glaser-to-chalaby-29apr19-en.pdf. See also ICANN Reference Materials to Paper No. 2019-05-15-1c, Attachment B (https://www.icann.org/en/system/files/bm/briefing-materials-2-redacted-15may19-en.pdf) (describing 23 April 2019 letter from the Brazilian government to ICANN); 23 April 2019 letter from Brazilian government to ICANN (https://www.icann.org/en/system/files/correspondence/zaluar-to-chalaby-23apr19-en.pdf) (asserting that "the applied-for string would be operated as a closed .BRAND gTLD, which would foreclose the actual sharing of domains under the .AMAZON TLDs for purposes other than the protection and promotion of the brand").
15 See Request 19-1, § 8, at Pg. 7.
16 Request 19-1, § 8, at Pg.6.
17 See id. § 8,at Pg.6.
18 Resolution 2019.05.15.13 (https://www.icann.org/resources/board-material/resolutions-2019-05-15-en#1.c).
19 Letter from Amazon to ICANN Board at Pg. 3, 17 April 2019 (https://www.icann.org/en/system/files/correspondence/huseman-to-chalaby-17apr19-en.pdf).
20 See .BRAND TLD Application Process, Pgs. 6-7 (https://newgtlds.icann.org/en/applicants/agb/base-agreement-spec-13-application-form-15jul14-en.pdf).
21 Applications to Qualify for Specification 13 to the Registry Agreement (https://newgtlds.icann.org/en/applicants/agb/base-agreement-contracting/specification-13-applications).
22 See id.
23 Request 19-1, Attachment, at Pg. 2.
24 The Requestor asks that the Board either confirm that the plan proposed by the Amazon corporation is consistent with ICANN's policies and practices or, alternatively, reconsider the Resolutions if the plan is inconsistent with ICANN's policies and practices. Request 19-1, §§ 8–9, at Pg. 7, 11. As a preliminary matter, a Request for Reconsideration is not the appropriate forum in which to ask the Board to "confirm" the Board's determination; in evaluating a Request for Reconsideration, the BAMC and Board consider whether the Board's action—here, the Resolutions—contradicted ICANN's established policies and procedures. See Bylaws Art. 4, § 4.2. The BAMC concluded that the Resolutions are consistent with ICANN's established policies and procedures, and with ICANN's Bylaws. As a result, Reconsideration is not warranted.
25 See Request 19-1, § 8, at Pg. 6 ("[W]e cannot see how Amazon Inc's proposal to permit ACTO members to be beneficial registrants of the domain names is acceptable . . . the fact remains that the ACTO members would be the beneficial registrants and would thus violate the terms of Specification 13.").
26 Base Specification 11, updated 31 July 2017 (https://newgtlds.icann.org/sites/default/files/agreements/agreement-approved-31jul17-en.pdf); Public Interest Commitment Dispute Resolution Procedure (https://www.icann.org/resources/pages/picdrp-2014-01-09-en; http://newgtlds.icann.org/en/applicants/agb/picdrp-19dec13-en.pdf.)
27 Base Specification 13, updated 31 July 2017 (https://newgtlds.icann.org/sites/default/files/agreements/agreement-approved-specification-13-31jul17-en.pdf).
28 Request 19-1, § 8, at Pg. 9.