INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS
A meeting of the Board of Directors of the Internet Corporation for Assigned Names and Numbers ("ICANN") was held by teleconference on May 4, 2000. The following Directors of the Corporation were present by telephone: Esther Dyson, Chairman, Jean-François Abramatic, Robert Blokzijl Greg Crew, Philip Davidson, Frank Fitzsimmons, Ken Fockler, Hans Kraaijenbrink, Michael Roberts, Linda S. Wilson, and Pindar Wong. Director Amadeu Abril i Abril joined the teleconference while it was in progress. Also present on the teleconference were Louis Touton, Vice-President, Secretary, and General Counsel of the Corporation; Andrew McLaughlin, Chief Financial Officer of the Corporation; and Joe Sims of Jones, Day, Reavis & Pogue.
The meeting was called to order by Esther Dyson at 5:12 am U.S. Pacific Daylight Time.
Mr. Touton proposed that the Board formally approve the minutes of the Board meetings of February 10, March 10, and April 6, 2000, as presented to the Board. Upon motion duly made and seconded, the Board unanimously adopted the following resolution:
[RC 99-4] The Reconsideration Committee recommends that the Board deny Reconsideration Request 99-4. This request for reconsideration was submitted by Mr. Karl Auerbach, seeking reconsideration of "the November 4, 1999 adoption of the DOC/ICANN/NSI Agreement and the November 10, 1999 signing of the agreement." The challenged Board action is Resolution 99.132 (adopted on November 4, 1999), which authorized the president to sign various agreements with Network Solutions (NSI) and the United States Department of Commerce (DOC).
RR 99-4 was submitted on November 17, 1999, well within the 30 day period required by the Reconsideration Policy.
Article III, Section 4(a) of the ICANN bylaws permit "person[s] affected by an action of the Corporation" to seek Board reconsideration of that action. Under the Reconsideration Policy, requests must explain "the manner by which the requesting party will be affected by the action." In response, Mr. Auerbach states:
"I have several domain names registered with Network Solutions. As the result of provisions in the registration agreements between NSI and myself, the terms of the DOC/ICANN/NSI Agreement will substantially affect the policies that NSI imposes on me.
"The DOC/ICANN/NSI Agreement will affect those rights, contractual or property, that I have in those domain names and my rights vis-a-vis third parties, such as holders of trade and service marks, who may make claims on those domain names.
"These impacts are shared with over 5.5 million others who have domain name registrations with Network Solutions.
"In addition, I am a stockholder in several corporations that derive a significant part of their revenue from operations using their domain name. The DOC/ICANN/NSI Agreement changes the likelihood that those corporations' domain names may be rescinded or lost. Thus the Agreement has a financial impact on the valuation of those corporations and of my portfolio."
As a preliminary observation, the Reconsideration Committee notes that Mr. Auerbach appears to be describing effects which did did not result from the Board's November 4, 1999 action to authorize of the signing of the DOC/ICANN/NSI agreements (Resolution 99.132). Rather, Mr. Auerbach describes effects that, as he describes them, flow from a prior action of the Board, namely the adoption of the uniform dispute resolution policy on August 26, 1999 (Resolutions 99.81 through 99.85).
Setting aside the issue of timeliness, the point is important because the essence of Mr. Auerbach's request is the contention that the ICANN/NSI/DoC agreements should first have been submitted to the DNSO before being considered by the Board, as was the case with the uniform dispute resolution policy. In other words, the request complains that the agreements should have gone through the DNSO, but the harm he cites is clearly attributable to a policy which did, in fact, come through the DNSO.
In Resolution 99.81, the Board accepted a DNSO recommendation that a uniform dispute resolution policy be adopted for all ICANN-accredited registrars. Since October 7, 1998 – the date on which NSI and the DOC entered Amendment 11 to their Cooperative Agreement – NSI was legally obligated to become an ICANN-accredited registrar. NSI's adoption of the uniform dispute resolution policy was thus the result of its legal obligation formed in October 1998, combined with NSI's decision to comply with this obligation by approving the proposed ICANN/NSI/DoC agreements in late September 1999. Thus, the effects cited by Mr. Auerbach in his request are the result not of the Board's November 4, 1999, resolution, but of earlier actions establishing the relationship between ICANN and accredited registrars and implementing the uniform dispute resolution policy.
Thus, in a strict sense, Mr. Auerbach is not a "person affected" by the November 4, 1999 Board action, in that his "rights, contractual or property, that [he has] in those domain names and [his] rights vis-a-vis third parties" were not altered by Resolution 99.132.
Nevertheless, the Committee notes that Mr. Auerbach has in good faith raised a substantial issue with respect to the Board's authority to take action in the absence of a recommendation from a Supporting Organization council. Though the issue is not technically required to resolve RR 99-4, the Committee believes that Mr. Auerbach deserves a detailed response to his claims.
Mr. Auerbach asks the Board to rescind its November 4, 1999 authorization to sign the ICANN/NSI/DoC agreements. As grounds for rescission, the request asserts that "the Board's action contravenes Article VI[,] Section 2(c)" of the Bylaws. The request states:
"Under Article VI Section 2(c) of the ICANN bylaws, the ICANN board is obligated to refer to the Domain Name Supporting Organization those proposals 'not received from a Supporting Organization' and which pertain to the domain name system."
While this accurately states the general tenor of Section 2(c), it fails to note the effect of Article VI, Section 2(g):
"Nothing in this Section 2 is intended to limit the powers of the Board or the Corporation to act on matters not within the scope of primary responsibility of a Supporting Organization or to take actions that the Board finds are necessary or appropriate to further the purposes of the Corporation."
This provision confers on the Board the ability to act when necessary or appropriate to promote ICANN's purposes, even without a referral to one or more of the supporting organizations. Although the Board uses this ability sparingly, it is particularly appropriate – indeed, essential – in matters relating to the formalization and implementation of ICANN's basic relationships with the other entities (name and address registries and registrars, for example) and that are necessary to accomplish the smooth transition to private-sector technical management of the Internet. The timely establishment of this initial set of relationships – subject, of course, to public review and comment – is vital to ICANN's fulfillment of the mission envisioned for it in the White Paper. The Committee believes, therefore, that these were appropriate matters for Board action under Articcle VI, Section 2(g). The Committee also notes that the ICANN/NSI/DoC agreements were posted for public review and comment for over a month prior to their approval. The agreements were the subject of considerable public discussion and debate, both online and at the Los Angeles meetings, and were the subject of extensive Board deliberations. In approving these agreements, the Board was aware that it had the power to act pursuant to Article VI, Section 2(g), deeming this situation to be one of those rare instances in which action without a supporting organization recommendation was necessary.
Finally, RR 99-4 also seeks reconsideration of the President's November 10, 1999 signing of the agreements. The President was specifically authorized by resolution 99.132 to sign the agreements. For the reasons stated above, the request for reconsideration of the signing is not justified.
Accordingly, the Reconsideration Committee recommends that Reconsideration Request 99-4 be denied.
NOTE: Director Abril i Abril did not participate in the discussion of Reconsideration Request 99-4, and abstains from the Committee's vote on it.
After discussion, the following motion was duly made, seconded, and adopted unanimously by the Board:
RESOLVED [00.30] that, for the reasons set forth in the Reconsideration Committee's Recommendation RC 99-4, the Board denies the request for reconsideration submitted by Karl Auerbach on November 17, 2000.
Mr. Abril i Abril was not present for this portion of the meeting.
Ms. Wilson and Mr. McLaughlin gave a report concerning the nominating and election committees, including their consultation with various individuals and the status of their efforts to locate highly qualified persons willing to serve on the committees. During this discussion, Mr. Abril i Abril joined the meeting.
The following motion was duly made, seconded, and adopted unanimously by the Board:
Whereas, at its meeting in Cairo on 10 March 2000 the Board determined that five At-Large Directors should be selected by a process involving a Nominating Committee and a direct ballot by qualified ICANN non-statutory members, such Directors to be seated at the conclusion of the annual meeting in 2000;
RESOLVED [00.31] that there shall be a temporary committee called the Nominating Committee, which shall consist of Linda Wilson (Chair), Jean-François Abramatic, Mads Bryde Andersen, John Klensin, Jun Murai, Charles Musisi, and Alejandro Pisanty. The committee shall have the following charter:
"There shall be a Nominating Committee responsible for nominating a set of candidates for five At-Large Director seats, to be placed on the ballot for consideration and selection by the At-Large members of ICANN in the year 2000. The Nominating Committee will solicit and accept recommendations for candidates from the global Internet community. The Nominating Committee may also affirmatively recruit candidates for nomination."
RESOLVED FURTHER [00.32] that there shall be a temporary committee called the Election committee, which shall consist of Greg Crew (Chair), Charles Costello, Lorrie Faith Cranor, Patrik Fältström, Ken Fockler, Hans Kraaijenbrink, and Nguyen Huu Dong. The committee shall have the following charter:
"There shall be an At-Large Election Committee responsible for recommending to the Board for its approval procedures regarding the At Large elections, including campaigning, voting, measures to prevent fraud, etc. The committee will also be responsible for oversight and monitoring of those processes. The committee shall operate to the extent practical in an open and transparent manner, giving due regard to protecting the confidentiality of private information of ICANN At-Large members, proprietary information of election companies, and other matters (such as certain information regarding anti-fraud measures) that should be kept confidential to promote the committee's mission."
RESOLVED FURTHER [00.33] that these temporary committees shall serve pursuant to their charters and will cease to exist as soon as they have carried out the functions identified in their charters, which shall be no later than the sooner of (a) the seating of the five At-Large Directors to be selected by 1 November 2000 or (b) 1 January 2001. Each committee may establish its own rules and procedures, which must be consistent with its charter and the Corporation's bylaws as they exist from time to time.
The Board discussed the likely schedule for the At-Large election to be conducted according to the principles adopted at the Board's 10 March meeting in Cairo. Mr. McLaughlin gave the following tentative schedule:
1. Posting of implementation materials for action at June meeting – late May>
2. Posting of implementation materials for action at July meeting in Yokohama – June
3. Determination of the ballot (now - August 20)
a. Nominated by the Nominating Committee (now - July 20)
b. Self-nomination (July 20 - August 20)
4. Campaign period (August 20 - September 20)
5. Vote by the At Large Members (September 20 - October 1)
Mr. Roberts gave a report on the status of formulation of ICANN's budget for the 2000-2001 fiscal year. He described the background of the budget process, which has involved significant input of representatives of domain-name registrars and registries and IP-address registries, who are slated to provide the revenue necessary to meet ICANN's cost-recovery needs. With some minor editorial suggestions, the Board informally approved the posting of the budget for public comment.
The meeting was adjourned at 6:35 am U.S. Pacific Daylight Time.