Minutes of the GNSO Council Meeting 14 February 2013

Agenda and Documents

The meeting started at 11:03 UTC.
http://tinyurl.com/alhxou5

List of attendees: NCA – Non Voting – Jennifer Wolfe

Contracted Parties House
Registrar Stakeholder Group: Mason Cole, Yoav Keren, Volker Greimann
gTLD Registries Stakeholder Group: Jeff Neuman, Jonathan Robinson, Ching Chiao
Nominating Committee Appointee (NCA): Thomas Rickert

Non-Contracted Parties House
Commercial Stakeholder Group (CSG): Wolf-Ulrich Knoben, Zahid Jamil, John Berard, Osvaldo Novoa, Brian Winterfeldt, Petter Rindforth
Non Commercial Stakeholder Group (NCSG): Maria Farrell, Joy Liddicoat - absent, apologies, temporary alternate Norbert Klein, Magaly Pazello, absent proxy to Maria Farrell, Wendy Seltzer, David Cake, Wolfgang Kleinwächter, absent proxy to David Cake
Nominating Committee Appointee (NCA): Lanre Ajayi

GNSO Council Liaisons/Observers:
Alan Greenberg – ALAC Liaison
Han Chuan Lee– ccNSO Observer

ICANN Staff
Akram Atallah - Chief Operating Officer
David Olive - VP Policy Development
Rob Hoggarth - Senior Policy Director
Margie Milam - Senior Policy Counselor
Marika Konings - Senior Policy Director
Julie Hedlund – Policy Director
Barbara Roseman – Policy Director
Berry Cobb – Policy consultant
Brian Peck – Policy Director
Carlos Reyes – Policy Analyst
Lars Hoffmann – Policy Analyst
Karen Lentz - Operations & Policy Research Director
Glen de Saint Géry - GNSO Secretariat
Eric Evrard- Systems Engineer

Guest
Chris Disspain – ICANN Board

MP3 Recording
Adobe Chat Transcript
Transcript

Item 1: Administrative matters

1.1 Roll Call

1.2 Statement of interest updates.

• Maria Farrell has updated her statement of interest

1.3 Review/amend agenda

1.4.Note the status of minutes for the Council meeting on 17 January 2013 and the minutes of the Council meeting on 21 January 2013 have been approved per the GNSO Operating Procedures.

Item 2: Opening Remarks from Chair

In his opening remarks, Jonathan noted the ongoing work in building productive relationships with the other Supporting Organisations and Advisory committees, especially the GAC. He mentioned the Council leaders meeting with Staff in Amsterdam, noted that the 'Pending' was removed from Project List title and included a brief review of the Projects List and the Action List

Petter Rindforth enquired about the status of the Fake Renewal Notice Drafting Team and said that he would pursue the question on the Council mailing list

Item 3: Consent agenda

It was agreed to formally close the following projects and remove them from the Projects List.

• Outreach Task Force
• RAPWG Recommendation on Cross-TLD Registration Scam
  Note: Any Council member can re-open the discussion on any of these items in the future, should it be deemed necessary.

The question was asked whether a motion was needed to formally close projects, but as these are not formal Policy Development Processes (PDPs) the interpretation has been that taking an action recorded in the minutes will officially close the project.

Item 4: INFORMATION & DISCUSSION – Recent meetings in Amsterdam & LA

Mason Cole provided an overview of the Council Leadership / Staff meeting that took place in Amsterdam.

The following action items arose from the discussions:

Effective operational management of the Council
Action Item #1: Explore ways to improve the communication and interaction between the two houses and the different SO/ACs to allow for greater coordination and better understanding of the issues and agendas of the various actors in the policy process, including exploring the possibility of organizing an intercessional meeting or special session that would be focused on promoting collaboration between Council members.

Action Item #2: With a view to make the launch of Issue Reports - and by extension Policy Development Process (PDPs) - more informed and effective, the existing template that is in the PDP manual should be further promoted by posting it on the GNSO Council web-site. Council members should be strongly encouraged to complete the template prior to tabling their request. Staff should also investigate whether the template could be modified to serve for requests that are not PDP related. This template might encourage stakeholders to elaborate on motivation for their request including their potential goal, consequences, outcome and costs of the policy that they are seeking.

Action Item #3: Encourage Council members to serve as a 'shepherd' who takes a form of ownership of a certain issue and is therefore able to follow up on the discussions and serve as a point of reference for other Council members who may have questions. This would follow a similar model which is currently being used by the ICANN Board. Such a 'shepherd' would also be paired with a member of the ICANN policy staff to ensure that there is additional support available, if needed.

Action Item #4: Wolf-Ulrich was asked to report to the NCPH about this (Amsterdam) meeting as well as report on the outcome of the following week's (L. A.) meeting to the Council leadership.

Improving work efficiency and knowledge of new and existing Council members
Action Item #5: Staff to publish modules for GNSO Council input and review by mid-February.

Action item #6: Aim to publish the first draft of the GNSO Council Agenda for the next meeting two weeks in advance of the next meeting.

Workload management
Action item #7: Include links to WG work plans and upcoming milestones in the project list (Policy Staff).

Bejing
Action Item #8: Provide additional guidance to Constituencies and Stakeholder Groups (SGs) to report on at the beginning of the Wednesday GNSO Council meeting in Beijing.

Action Item #9: Reach out to the ccNSO, GAC and ICANN Board to confirm joint meetings in Beijing and already provide them with a list of suggested topics for discussion.

Government Advisory Committee (GAC)
Action Item #10: GNSO Council communication with the GAC ought to be improved, for example by institutionalizing information sharing between the GAC and the GNSO Council. Propose this as a topic for the next GNSO - GAC meeting in Beijing.

Jonathan Robinson concluded by clarifying that the idea of an inter-sessional meeting for the Council arose after the ICANN meetings in Toronto. The Council was elected at the end of the ICANN meeting when councilors had not had the opportunity to meet each other face to face and yet they are expected to work closely and effectively together on some potentially contentious topics.

Further he emphasized the apparent requirement for the Council to consider ways to provide policy input without necessarily having to go through the full Policy Development Process, a case in point being the current topic before the Council on closed TLDs.

Jonathan Robinson confirmed the appointment of Wolf-Ulrich Knoben as the vice chair of the Council elected by the Non-Contracted Parties House for the remainder of the current term.

Wolf-Ulrich Knoben reported on the Non Contracted Parties House (NCPH) meeting that took place in Los Angeles in January 2013.
The intention of the meeting was to bridge the gap between the Toronto and the Beijing meetings and afford an opportunity to the NCPH to meet with ICANN Senior Staff and the CEO outside of ICANN meetings and for the Commercial Stakeholder Group to interact with the Non Commercial Stakeholder Group.
The possibilities of more 'roundtables' with other sectors of the DNS industry were discussed. There was an opportunity to meet and interact with the ICANN Board who was in Los Angeles for a Board workshop. Clarifications were provided on the topic of WHOIS. In summary, the specific advantage of the meetings was the availability of Staff to interact directly with the Stakeholder Group participants and address a variety of important topics.

Action Item:
Glen de Saint Géry to circulate action items from Amsterdam meeting to mailing list

Item 5: UPDATE & DISCUSSION - Trademark Clearinghouse (TMCH) Straw man Proposal and Defensive Registrations (15 Minutes)

Mason Cole reported that the initial draft of the letter was circulated to the council on December 28 2012, discussion followed, changes were made, a revised draft was circulated, and the current status is that there is general agreement on the content and voice of the letter except on the part of the IPC and BC.
Highlights of the discussion:

There is expected to be a communication from Fadi reconciling the position between Amsterdam and L. A. on the TMCH and dealing with further issues on operational readiness.
There are concerns about the accuracy of the language. If the draft letter remains substantially in the current form, the IPC and potentially the BC may submit minority statements.
Councilors who have concerns, especially with particular fine details on any of the sub-points in the letter were encouraged to make them known to the drafting team.
On the issues where there is agreement that they are policy, it was advocated that the Council should at least indicate what steps will be taken and take action.
Karen Lentz, responding to some views expressed about the letter including whether or not it will have any impact as decisions have already been made, said that decisions have not already been made. Staff is examining the comments, is aware of the Council discussions and is expecting guidance from the Council.  If Council were to decide to undertake policy work, Staff would want to know about it in advance of being able to make a determination on where they are on the straw man.

In general, Council approved sending the letter and a common view of the content of the letter is desirable.

Action Item:
Brian Winterfeldt to send additional IPC comments to the mailing list. All to work with Mason Cole to finalize draft letter by 21 February 2013.

Item 6: UPDATE & DISCUSSION – Board requested advice on second level protections for certain IGO names and acronyms

Thomas Rickert's report addressed two aspects:

1. Provide an update to the council on the work that is going on in the Policy Development Process (PDP),
2. Provide an update on the discussion regarding the upcoming February 28, 2013 deadline.

On 1 Above:

The working group has weekly two hour conference calls, substantive discussions on the mailing list and subgroups working on specific issues in parallel.
The group has gathered a complete collection of the pros and cons and the various positions that are represented in the community on special protections which provides a very robust foundation for discussion and policy response.
Views expressed:
Some working group members wish to see evidence of harm to those that are requesting protections because they would like to understand the size and nature of the problem to be able to address it properly.  Staff has carried out a survey on existing domain registrations in 30 TLDs as a base.
Some working group members are of the view that certain designations need to be protected per se, and that there is no need to evidence harm, because treaties or national laws actually do provide the protection that they seek and their request is for ICANN to implement those protections. The challenge is that some want certain information before granting protections or considering protections, and others are unwilling or reluctant to provide that information.

With respect to this issue, the working group is eagerly awaiting the response from the ICANN General Council, to whom a request has been sent asking the following:

Is ICANN aware of any jurisdiction in which a statute, treaty or other applicable law prohibits either or both of the following actions by or under the authority of ICANN:

1. the assignment by ICANN at the top level, or
2. the registration by a registry or a registrar accredited by ICANN of a domain name requested by any party at the second level, of the name or acronym of an intergovernmental organization (IGO) or an international non-governmental organization receiving protections under treaties and statutes under multiple jurisdictions (INGO)?

If the findings of General Counsel were positive, it would be a compliance issue rather than a policy matter.

The working group has been discussing potential qualification criteria for those organizations to be eligible to be protected. There seems to be support by many participants for the requirement of protection by Treaty and multiple national jurisdictions and possibly additional criteria.

Progress has also been made in defining what potential protection mechanisms might look like.

One problem the group has identified is that current and future RPMs are reactive or curative, while proactive protections are sought. Also, current RPMs are not open to those requesting protections.

There appears to be some common ground to recommend that the existing and upcoming Rights Protection Mechanisms RPMs might be opened up so that all beneficiaries of these protections could use these curative or reactive reactions in cases where identical or similar strings are taken by unlawful or by illegitimate registrations by third parties.

Consideration is being given to defining the processes and the remedies. There seems to be a common understanding that the reserved names list is not the right tool to be used since an RSEP procedure would be needed so that eligible parties can use protected strings.

A level of complexity has recently been added to the discussions because some working group participants have understood the task of the working group not only to be confined to organizations names and acronyms, but that they also perceive it to include similar strings, both at the top as well as second level. So there is a request to carry out string similarity reviews both at the top as well as the second level.

However, there seems to be some common ground in that a model should be considered as a RPM that is comparable to the TMCH, i.e. to have a central repository of data (e.g. strings and organizations) and services built on top of that. Various remedies and their impact are also under discussion, i.e. blocking of registrations, notifications to registrants, eligibility checks or other special treatment of requests to register domain names. The group is also discussing exemption procedures to allow for legitimate third party use, but the details are yet unclear.

Generally, a response from General Counsel in the near future would be strongly appreciated for clarification purposes.

With respect to point 2 above, the 28 February 2013 deadline:

The working group has discussed the matter and while the Chair has proposed that the February 28 deadline would be given the same treatment as the January 31 deadline, i.e. that no concerns should be voiced but that the answer of the presence or absence of concerns would be subject to the outcome of the PDP, there were reservations against such approach. It was suggested that the GNSO Council takes the view that it is in the public interest that the group continues their work and there is no need for an urgent decision and that the Board will continue to be updated on progress.

Comment: The case for preliminary reserving of names seems to be premature.

Action Item:
Thomas Rickert to send the first draft of a possible Council response based on Council discussions on 14 February 2013 to the GNSO Council for review.

Item 7: INFORMATION & DISCUSSION – The issue of "closed generic" TLDs

Karen Lentz provided Council with the following report

• There is a request for GNSO to provide policy guidance on this topic if it wishes to do so
• There is a public comment period happening in parallel
• This is a result of a New gTLD Program Committee resolution on 2 February 2013
• The Board's New gTLD Program Committee looked at this issue due to comments in Toronto and additional correspondence and discussions relating to some of the gTLD applications received
• Many of these comments suggested that ICANN adopt new rules or use the exemption from the Code of Conduct in the registry agreement to address concerns
• Various parties have identified different concerns, but there is not a common definition for what is a "closed generic"
• Specific policy addressing this has not been identified
• The Committee considered it important to understand the background of the issue and the concerns expressed – refer to the posted rationale for this resolution
• The Committee will consider GNSO input, public comment, as well as the additional analysis directed in the resolution

Chris Disspain thanked Jonathan Robinson for the opportunity to attend the Council call and commented that the Board understands that it is not always easy for the GNSO Council to respond as a Council to questions like this (the issue of "closed TLDs) but if there is a way of doing so that would be helpful.

Jeff Neuman commented that the issue had been addressed in 2000 and 2005, and at  some point, the Board and the new gTLD program committee needs to respect the value of precedent, needs to respect things going forward as initially planned and not continue to reopen issues that were already considered.

There is an opportunity for comment that specifically deals with any  history and the Board is looking for a clear understanding of the history which the Council can provide as part of its response.

Action Item:
Agreement to submit a response to the request from the board and a request to go to the council for a Councilor to lead the  drafting of a  response based on Council discussions on 14 February 2013.

Item 8: UPDATE & DISCUSSION – Policy vs. Implementation

Action item

• Encourage input to Public Comment Forum
  https://www.icann.org/en/news/public-comment/policy-implementation-31jan13-en.htm
• Identify volunteers from the GNSO, including one from the GNSO Council, to participate in the informal organizing committee for the policy vs. implementation session in Beijing.
• Opportunity to respond as Council.

Item 9: UPDATE & DISCUSSION - Whois Privacy and Proxy Relay and Reveal Study

Barbara Roseman provided Council with Lyman Chapin's presentation of the results of the survey that evaluated the feasibility of conducting a future in-depth study into communication Relay and identity Reveal requests sent for gTLD domain names registered using Proxy and Privacy services.

Jonathan Robinson noted  from the Council discussion that there is advocacy for moving ahead with the study but pending clarification on how Expert Working Group and potentially the study  feed into the issue report and the Policy Development process (PDP)

Action Item:

• Council to discuss topic with Fadi Chehadé and the ICANN Board at the Beijing meetings.
• Barbara Roseman to provide budget information and the scope of the study if it is already available.

Item 10: INFORMATION & DISCUSSION – Planning for Beijing

Action Item:
Mason Cole will update the Council list on the Beijing meeting preparations.

Item 11: Any Other Business

11.1 Alan Greenberg highlighted the continued delays on implementing the Post-Expiration Domain Name Recovery (PEDNR) PDP and the Expired Registration Recovery Policy (ERRP). It's now being close to two years since the GNSO approved the recommendations. It's been 14 months since the Board approved it and it's been over two months since the public commentary was closed.

Action Item:
Staff committed to sending an update to the Council mailing list.

11.2 Ching Chiao commented as a follow-up on the WHOIS expert working group that  it may be worthwhile to exam ICANN's current methodology of using paid expert groups to resolve complicated and historical problems such as WHOIS, IDN Variant, etc., and whether it is more efficient than community volunteers with assistance from the Staff.

Jonathan Robinson adjourned the GNSO Council meeting and thanked everyone for their participation.

The meeting was adjourned at 13:02 UTC.

The next GNSO Council meeting will take place on Thursday, 14 March 2013 at 15:00 UTC.
See: Calendar