GNSO Council minutes

Last Updated: 31 August 2009
Date: 
12 April 2006

12 April 2006

Proposed agenda and related documents

List of attendees:
Philip Sheppard - Commercial & Business Users C.
Marilyn Cade - Commercial & Business Users C.
Alistair Dixon - Commercial & Business Users C
Greg Ruth - ISCPC
Antonio Harris - ISCPC
Tony Holmes - ISCPC
Thomas Keller- Registrars
Ross Rader - Registrars
Bruce Tonkin - Registrars
Ken Stubbs - gTLD registries
June Seo - gTLD registries
Cary Karp - gTLD registries
Lucy Nichols - Intellectual Property Interests C
Ute Decker - Intellectual Property Interests C
Kiyoshi Tsuru - Intellectual Property Interests C.
Robin Gross - NCUC.
Norbert Klein - NCUC.
Mawaki Chango - NCUC
Sophia Bekele - Nominating Committee appointee
Maureen Cubberley - Nominating Committee appointee
Avri Doria - Nominating Committee appointee

21 Council Members

ICANN Staff
Dan Halloran - Deputy General Counsel
Olof Nordling - Manager, Policy Development Coordination
Liz Williams - Senior Policy Counselor
Glen de Saint Géry - GNSO Secretariat

GNSO Council Liaisons
Suzanne Sene - GAC Liaison
Bret Fausett - ALAC Liaison - absent

Quorum present at 14:07 UTC.

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To access Self Service Reports, please go to:
https://e-meetings.mci.com/ss/r.php?c=7733405&h=e&i=0949844601310690

MP3 Recording

Bruce Tonkin chaired this teleconference.

Approval of agenda

Item 3: Briefing by General Counsel's office on implications of Article 6(1)(a) and (b) of the Paris Convention for the Protection of Industrial Property:
http://www.wipo.int/treaties/en/ip/paris/trtdocs_wo020.html#P155_22332

This convention dates back to 1883 and was last amended in 1979.

Note that the States that are signatories of this convention are:
http://www.wipo.int/treaties/en/documents/pdf/d-paris.pdf

Bruce Tonkin reported that Dr. Paul Twomey had suggested that a small group of representatives from the General Counsel's office, WIPO and the Intellectual Property (IP) constituency review the implications of article 6 and bring forward a suggestion to the GNSO Council on how to proceed with the issue.

As background see the correspondence from Francis Gurry to Vint Cerf:
http://www.icann.org/correspondence/gurry-to-icann-14jan04.pdf Francis Gurryhttp://www.icann.org/correspondence/gurry-to-cerf_twomey-15nov05.pdf

Marilyn Cade suggested a two part approach:

1. Was there sufficient basis under international law for the protection of IGO names?
2. If so, was there sufficient interest in the GNSO Council to develop a process to deal with IGOs?

Philip Sheppard commented that as part of the President's working group on WIPO he would strongly advise against a group of council members who are not experts to look at the Paris Convention and make conclusions. The President's working group concluded that the Paris convention does provide a hook in international law but would need a separate dispute resolution process from the existing UDRP.

It was generally agreed that the Intellectual Property Interests constituency schedule a separate conference call with representatives from the General Counsel's office and WIPO, reach agreement on the implication of the Paris Treaty on the protection of IGOs and propose an approach to a dispute resolutions process with certain key elements, such as the current number of organisations affected, then make a recommendation to the GNSO Council as to whether or not a policy development process is required. At that point the GNSO Council would vote on whether or not to initiate such a process.

ACTION ITEM
The Intellectual Property Interests constituency schedule a separate conference call with representatives from the General Counsel's office and WIPO, reach agreement on the implication of the Paris Treaty on the protection of IGOs and propose an approach to a dispute resolutions process with certain key elements, such as the current number of organisations affected, then make a recommendation to the GNSO Council as to whether or not a policy development process is required.

Item 2: WHOIS statement of purpose

Formulation 1:
"The purpose of the gTLD Whois service is to provide information sufficient to contact a responsible party for a particular gTLD domain name who can resolve, or reliably pass on data to a party who can resolve, issues related to the configuration of the records associated with the domain name within a DNS nameserver."

Formulation 2:
"The purpose of the gTLD Whois service is to provide information sufficient to contact a responsible party or parties for a particular gTLD domain name who can resolve, or reliably pass on data to a party who can resolve, technical, legal or other issues related to the registration or use of a domain name."

Bruce Tonkin, seconded by Tom Keller proposed a motion to use the first formulation for discussion as a working definition to allow the task force to proceed on terms of reference (2), (3), and (4)
(see: http://gnso.icann.org/policies/terms-of-reference.html )"

BEGIN
The GNSO Council recommends that the WHOIS task force use the following definition:

"The purpose of the gTLD Whois service is to provide information sufficient to contact a responsible party for a particular gTLD domain name who can resolve, or reliably pass on data to a party who can resolve, issues related to the configuration of the records associated with the domain name within a DNS nameserver."

as a working definition to allow the task force to proceed on terms of reference (2), (3), and (4) (see: http://gnso.icann.org/policies/terms-of-reference.html )
END

A straw pole vote taken during the GNSO Council meeting in Wellington on 29 March 2006 on the 2 formulations proposed in the Final task force report on the purpose of WHOIS and WHOIS contacts, indicated that Formulation 1 received the most support.

Philip Sheppard, seconded by Alistair Dixon, proposed an amendment to the substantive motion.
The discussion on the amendment proceeded the discussion on the substantive motion.

Compromise definition on WHOIS purpose
BEGIN
The purpose for which the data that populates the gTLD Whois service is collected and processed is to provide information sufficient to be able:
 to identify who the name holder is, and
 to contact the name holder, or his designated representative,
to resolve, or reliably pass on data to a party who can resolve,
technical, networking, or legal issues related to the registration or use of a gTLD domain name.
END

Note: This definition is explicitly silent on questions of subsequent access to data or data publication. It also removes the overly wide “or other uses” phrase in a previous definition.

The amendment addressed the topic from a different direction, looking at the purpose of collecting WHOIS data, and stimulated discussion on the council mailing list which was worth considering.

The background to the compromise was stated as follows:
- It was not intended to be a new formulation 2 but a new approach and thus an amendment to the proposed vote.
- The new wording seeks to accommodate numerous concerns expressed at the Wellington Council meeting and in the WHOIS task force report:
1. it speaks not of the purpose of "WHOIS" but the purpose for which the "data is collected". This reflects the concerns rightly raised by the non-commercial constituency in that previous definitions were not compliant with data protection laws such as the EU data protection directive. The intent here is that the scope should be no wider than the scope of such laws.
2. The new wording removes the overly wide phrase "or other uses" phrase in a previous definition. In this way it stays compliant also with data protection laws in that purpose has to be explicit.
3. The definition is silent on questions of subsequent access to data or data publication.
This issue was raised by the Registrars in that the purpose of WHOIS was being defined in the context of the current manifestation of WHOIS with its current open access and publication. This definition is intended not to make any assumption about access.
4. In the same way this definition is not intended to override any subsequent debate on privacy.

Various council members expressed that they were against the amendment because:
- it ran counter to, and would nullify the content of the original motion,
- that the motion was not relevant to the question being asked and officially requested that it be stricken from the discussion
- that the amendment was not implementable.
The task force had asked Council to pick between two formulations which the task force prepared and there should be no confusion as to the status of the formulations. The work of the Whois task force was focused on the question on "purpose" in the terms of reference. The amendment answered an entirely different question and would require the task force to restart its work looking at the issues of data collection.

Concern was expressed about moving to a vote without a response from the Government Advisory Committee (GAC), which had indicated that they wanted to provide input during the joint GNSO Council/ GAC meeting in Wellington and in the GAC communiqué .
http://gac.icann.org/web/communiques/gac24com.pdf

It was brought to Council's attention that notification of the intended vote on the policy matters arising from the meeting in Wellington was recorded in the public archives, when the agenda for the Council meeting in Wellington was published.

see: http://www.gnso.icann.org/mailing-lists/archives/council/msg02252.html

[NOTE: The Task Force report was published for public comment in January 2006, and the final report was presented to the Council on 18 March 2006. As per the PDP process, the Council would normally vote on the report 10 days later]

Suzanne Sene, the GAC representative, recalled that the Wellington meeting was the first opportunity the GAC had had to discuss the final WHOIS task force report that contained the 2 formulations. A considerable time was needed for the GAC to respond and Suzanne reminded the council that in 2004 the Whois task force 2 attempted to survey the GAC, but the GAC had to inform the Whois task force that the timetables were not workable and the GAC was not able to respond in time. There is work in progress to establish a GAC principles concept paper that would be shared with the Council to inform their work. While the GAC understood that there was a timing issue, it should be noted that the GAC was not aware that the vote on the 2 formulations would be so soon after the Wellington meeting and had the GAC realised this, the discussion in Wellington would have been different.
The GAC was motivated to work directly with the GNSO council and felt a responsibility in informing the private sector as to government's perspective on the range of public policy interests affected by and related to WHOIS data and the outcome of the vote was important.

Bruce Tonkin commented procedurally on the process of the WHOIS task force:
first the terms of reference 1 & 2 (TOR) were being addressed by agreeing on a definition for the purpose of the WHOIS service and contact, secondly, the TOR 3, & 4 whether the data collected should be available for public access, and if not how should it be accessed, would be examined, then the purpose could be reviewed.
A numerical order was followed in developing the process, if further task force work indicates that the purpose should be changed, the task force was free to recommend the change . The proposed definition did not lock the task force in, nor engage it forever, nor would it be forwarded to the ICANN Board.
As stated in the original motion
"The GNSO Council recommends that the WHOIS task force use the following
definition as a working definition to allow the task force to proceed on terms of
reference (2), (3), and (4)


Ken Stubbs called the question to vote on the amendment proposed by Philip Sheppard and seconded by Alistair Dixon.

The purpose for which the data that populates the gTLD Whois service is collected and processed is to provide information sufficient to be able:
 to identify who the name holder is, and
 to contact the name holder, or his designated representative,
to resolve, or reliably pass on data to a party who can resolve,
technical, networking, or legal issues related to the registration or use of a gTLD domain name.

A roll call vote was taken.
The motion failed

9 votes in favour (Philip Sheppard, Marilyn Cade, Alistair Dixon (CBUC)
Ute Decker, Lucy Nichols, Kiyoshi Tsuru (IPC) Tony Holmes, Tony Harris,
Greg Ruth (ISPCPC)
18 votes against (Robin Gross, Mawaki Chango, Norbert Klein (NCUC), Cary
Karp, Ken Stubbs, June Seo (gTLD Registries constituency), Bruce Tonkin,
Ross Rader, Tom Keller (Registrars constituency), Maureen Cubberley,
Avri Doria, Sophia Bekele (Nominating committee appointees)

Avri Doria and Ken Stubbs called the question to proceed on the original motion proposed by Bruce Tonkin and seconded by Tom Keller.

A roll call vote was taken.
Motion passed

18 votes in favour: Robin Gross, Mawaki Chango, Norbert Klein (NCUC), Cary
Karp, Ken Stubbs, June Seo (gTLD Registries constituency), Bruce Tonkin,
Ross Rader, Tom Keller (Registrars constituency), Maureen Cubberley,
Avri Doria, Sophia Bekele (Nominating committee appointees)
9 votes against: Philip Sheppard, Marilyn Cade, Alistair Dixon (CBUC)
Ute Decker, Lucy Nichols, Kiyoshi Tsuru (IPC) Tony Holmes, Tony Harris,
Greg Ruth (ISPCPC)

Tony Holmes asked that the in the light of the GAC comments, that the GNSO Council chair's remarks be recorded and the Council vote conveyed to the GAC with the message that the vote would be used as a basis for the WHOIS task force moving ahead with its work.

Bruce Tonkin recommended that the input from the outstanding request with the GAC to identify the public policy issues surrounding WHOIS be used to guide the further work of the WHOIS task force.

Topics that required attention were ongoing interactions with the GAC and more timely input from the GAC.

Suzanne Sene requested that there should be a particular agreed approach of procedure between the GAC and the GNSO. Further it would be informative for the GAC to know that the GNSO Council had voted on the formulations but the GAC would need additional clarification and information on how it would guide subsequent task force work in setting parameters for the next steps.
The GAC and the GNSO should seek to structure more focused exchanges on how formulation 1 would guide the task force work and where it would be optimal to get feed back from different governments, mindful of the fact that all governments have different legal structures and different GAC members operated differently in capital. The United States favoured formulation 2.

Bruce Tonkin commented that the outcome of the terms of reference 2 or 3 could not be prejudged and the work in progress would indicate how the definition would be used.

Bruce Tonkin emphasised that the WHOIS task force Terms of Reference do not affect data being collected, only the public display of data via the WHOIS service.

Bruce Tonkin encouraged council members to document their reasons for the way they voted on the council mailing list.

Decision 1:
The GNSO Council recommends that the WHOIS task force use the following definition:

"The purpose of the gTLD Whois service is to provide information sufficient to contact a responsible party for a particular gTLD domain name who can resolve, or reliably pass on data to a party who can resolve, issues related to the configuration of the records associated with the domain name within a DNS nameserver."

as a working definition to allow the task force to proceed on terms of reference (2), (3), and (4) (see: http://gnso.icann.org/policies/terms-of-reference.html )


Item 4: Process to fill vacancy of ICANN Board seat 14

In accordance with section 12, Article VI:
"1. A vacancy or vacancies in the Board of Directors shall be deemed to exist in the case of the death, resignation, or removal of any Director; if the authorized number of Directors is increased; or if a Director has been declared of unsound mind by a final order of court or convicted of a felony or incarcerated for more than 90 days as a result of a criminal conviction or has been found by final order or judgment of any court to have breached a duty under Sections 5230 et seq. of the CNPBCL. Any vacancy occurring on the Board of Directors shall be filled by the Nominating Committee, unless (a) that Director was selected by a Supporting Organization, in which case that vacancy shall be filled by that Supporting Organization, or (b) that Director was the President, in which case the vacancy shall be filled in accordance with the provisions of Article XIII of these Bylaws. The selecting body shall give written notice to the Secretary of ICANN of their appointments to fill vac
ancies. A Director selected to fill a vacancy on the Board shall serve for the unexpired term of his or her predecessor in office and until a successor has been selected and qualified. No reduction of the authorized number of Directors shall have the effect of removing a Director prior to the expiration of the Director's term of office."

And

Article X, Section 3, paragraph 6:
"6. The GNSO Council shall make selections to fill Seats 13 and 14 on the ICANN Board by written ballot or by action at a meeting; any such selection must have affirmative votes comprising a majority of the votes of all the members of the GNSO Council. Notification of the GNSO Council's selections shall be given by the GNSO Chair in writing to the ICANN Secretary, consistent with Article VI, Sections 8(4) and 12(1)."

Bruce Tonkin commented that the vacancy of ICANN Board seat 14 had not been anticipated, thus the nomination period may need to be longer to give council members sufficient time to consult with their constituencies.

Ken Stubbs, seconded by Ross Rader proposed a procedural motion that:

"The GNSO Council proposes opening nominations for candidates for ICANN Board seat #14 for a period of 28 days from Sunday 16 April to Saturday 13 May 2006."

Bruce Tonkin
proposed that the Council schedule a teleconference after the nominations closed to interview the candidates.

Ken Stubbs, seconded by Avri Doria proposed an amendment to the procedural motion that:

"The GNSO Council proposes opening nominations for candidates for ICANN Board seat #14 for a period of 21 days from Sunday 16 April to Saturday 6 May 2006."

A roll call vote was taken
The procedural motion passed unanimously

Decision 3:
"The GNSO Council proposes opening nominations for candidates for ICANN Board seat #14 for a period of 21 days from Sunday 16 April to Saturday 6 May 2006."

Bruce Tonkin seconded by Ross Rader proposed a vote of thanks to Michael Palage, outgoing ICANN Board member.

The GNSO Council thanked Michael Palage for his time on the ICANN Board and his willingness to communicate and work close to the GNSO Council during that period.

Unanimously acclaimed by voice vote.

Decision 3:
The GNSO Council thanked Michael Palage for his time on the ICANN Board and his willingness to communicate and work close to the GNSO Council during that period.


Item 4: Any other business

4.1. Updated GNSO operational plan

Marilyn Cade drew Council's attention to the updated operational plan, and commented that any requests for funding arising from the plan should be put forward.

4.2. Policy development face to face meetings
Bruce Tonkin commented that he was waiting for a matrix of availability from the secretariat.
Bruce Tonkin had formally asked Dr. Paul Twomey to fund travel support for the council members to attend a policy development working session.

4.3. WHOIS task force
Avri Doria expressed interest in becoming involved in the WHOIS task force.
Bruce Tonkin commented he did not think there was an issue being an observer with the right to speak during meetings, but like the liaisons, with no vote.

4.4. Marilyn Cade reminded Council that General Counsel's advice was still needed with respect to the decision made during the GNSO Council meeting of 18 August 2005, ie Decision 2: To defer voting on the revised consensus recommendation with respect to improving notification and consent for the use of contact data in the Whois system at the present council meeting and that the council seeks legal advice on the implications that have been raised with respect to privacy.

[Note a formal request has not yet been made to the General Counsel's office as a well formulated description of the concern has yet to be provided by members of the Council]

Bruce Tonkin asked councillors for feed back on the Verizon NET Conferencing used during the teleconference and for feedback on the transcript.

Bruce Tonkin thanked the council members for their participation.

The meeting ended at 15:36 CET

Next GNSO Council teleconference 18 May 2006 at 12:00 UTC