GNSO Council Teleconference Minutes

Last Updated: 31 August 2009
Date: 
15 March 2007

15 March 2007

Proposed agenda and related documents

List of attendees:
Philip Sheppard - Commercial & Business Users C.
Mike Rodenbaugh - Commercial & Business Users C.
Alistair Dixon - Commercial & Business Users C
Greg Ruth - ISCPC
Antonio Harris - ISCPC
Tony Holmes - ISCPC
Thomas Keller- Registrars - absent apologies
Ross Rader - Registrars -absent
Bruce Tonkin - Registrars
Chuck Gomes - gTLD registries
Edmon Chung - gTLD registries - absent
Cary Karp - gTLD registries
Kristina Rosette - Intellectual Property Interests C
Ute Decker - Intellectual Property Interests C - absent apologies
Kiyoshi Tsuru - Intellectual Property Interests C - absent
Robin Gross - NCUC.
Norbert Klein - NCUC.
Mawaki Chango - NCUC - absent - apologies
Sophia Bekele - Nominating Committee appointee - absent -apology received after meeting
Jon Bing - Nominating Committee appointee
Avri Doria - Nominating Committee appointee- absent - apologies

13 Council Members
(14 Votes - quorum)

ICANN Staff
Dan Halloran - Deputy General Counsel
Sue Jonklaas - Regional Business Advisor, Asia-Pacific, General Counsel
Denise Michel - Vice President, Policy Development
Olof Nordling - Manager, Policy Development Coordination
Liz Williams - Senior Policy Counselor
Maria Farrell - GNSO Policy Officer
Karen Lentz - gTLD Registry Liaison
Glen de Saint G�ry - GNSO Secretariat

Invited guests:
Jordyn Buchanan - WHOIS task force chair
Ram Mohan - GNSO IDN working group chair

Rita Rodin - ICANN Board member - absent - apologies

GNSO Council Liaisons
Suzanne Sene - GAC Liaison
Alan Greenberg - ALAC Liaison

Quorum present at 20:10 UTC.

MP3 Recording

Bruce Tonkin chaired this meeting

Approval of the agenda

Item 1: Update any Statements of Interest
No updates

Item 2: Approval of the GNSO Council minutes of 1 February 2007
Chuck Gomes
moved the adoption of the GNSO Council minutes of 1 February 2007

Motion approved.

Approval of the GNSO Council minutes of 1 February 2007

Decision 1: The GNSO Council minutes of 1 February 2007 were adopted.

Item 3: Working Group on "Protecting the rights of others"
- Ratify statement of work at:
http://www.gnso.icann.org/mailing-lists/archives/council/msg03230.html

- propose extension of deadline until May 2007

Kristina Rosette proposed a motion that the revised charter for the working group on "Protecting the rights of others" be adopted by the GNSO Council.

http://www.gnso.icann.org/mailing-lists/archives/council/msg03230.html

The motion passed by vote of acclamation.

Decision 2: The GNSO Council approved the revised charter for the working group on "Protecting the rights of others
Background

There is a new gTLD committee of the GNSO that is developing policy recommendations with respect to the introduction of new gTLDs. In addition to policy recommendations, the committee is also considering
guidelines that may assist the ICANN staff in preparing an application process, and also creating a framework agreement for registry operators.

The current registrar accreditation agreement requires that Registered Name Holders represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name, nor the manner in which it is directly or indirectly used, infringes the legal rights of any third party. ICANN also has a Consensus Policy called the Uniform Dispute Resolution Policy (UDRP) that is intended for resolving disputes between the registrant and any third party over the registration and use of an Internet domain name.

In past new gTLD rounds, applicants for new gTLDs have been required to implement measures that discourage registration of domain names that infringe intellectual property rights; reserve specific names to prevent inappropriate name registrations; minimize abusive registrations; comply with applicable trademark and anti-cybersquatting legislation; and provide protections (other than exceptions that may be applicable during the start-up period) for famous name and trademark owners. There have been a range of approaches used which vary in terms of both cost to registrants and third parties affected by registration, and effectiveness.

As part of the new gTLD committee's deliberations, there has been some discussion about what additional protections beyond the current terms in the registration agreement and existing dispute resolution mechanisms
should be in place to the protect the legal rights of others during the domain name registration process, particularly during the initial start up of a new gTLD where there is contention for what Registrants perceive
as the "best" names.

Purpose:

The purpose of the working group is to:

(1) Document the additional protections implemented by existing gTLD operators beyond the current terms in the registration agreement and existing dispute resolution mechanisms to the protect the legal rights of others during the domain name registration process, particularly during the initial start up of a new gTLD where there is contention for what Registrants perceive as the "best" names. The documentation should identify the problems that the protections were intended to solve. The working group should establish definitions of terms used in this document to ensure a common understanding amongst members of the working group. These definitions would only be in the context of the document, and without prejudice to the meaning of these terms in other legal contexts.

(2) Determine whether to recommend to Council a best practices approach to providing any additional protections beyond the current registration agreement and UDRP policy for the legal rights of others during the
domain name registration process, particularly during the initial start up of a new gTLD where there is contention for what Registrants perceive as the "best" names. A best practices document could be incorporated into the material for the application process for new gTLD applicants. The GNSO could elect in future to use the policy development process (PDP) to create a Consensus Policy in this area.

Suggested Outline of Working Group Work Plan

I. Analyze Existing Rights Protection Mechanisms

A. Identify relevant existing TLDs (not limited to gTLDs)

B. Identify both issues that existing preventive mechanisms are designed to solve and new issues that may have developed

C. Describe existing rights protection mechanisms

1. Eligibility

2. Rights bases or requirements

3. Submission process and costs of submission

4. Review of applications

5. Challenge mechanism and cost of mechanism

D. Issues arising out of or related to the existing rights protection mechanisms

1. Eligibility

2. Rights bases or requirements

3. Review of applications

4. Allocation

E. Analyze Quantitative Effectiveness - relation between preventing the dispute and resolving the dispute

1. Define quantitative effectiveness in light of the issues identified in I.B.

2. Number of preventive registrations, number of preventive registrations vs. overall number of registrations; proportion of registrations that are purely defensive

3. Number of challenges overall and in relation to number of registrations; challenger success rate

4. Evaluate quantitative success in light of the issues identified in I.B.

F. Analyze Qualitative Effectiveness

1. Define qualitative success and set forth criteria for any evaluation in light of issues identified in I.B.

2. Nature of use of names registered during start up period

3. Whether rights protection mechanism process protects rights in a cost-effective manner in light of issues identified in I.B.

4. Evaluate qualitative effectivess in light of issues identified in I.B.

G. Impact on registries and registrars

1. Resource allocation

a) Development of rights protection mechanism

b) Implementation of rights protection mechanism

2. Other considerations

H. Impact on other affect parties

II. Identify Commonalities and Variances among existing rights protection mechanisms, including the evaluation by affected parties.

A. Eligibility Commonalities and Variances

B. Procedural Commonalities and Variances

1. Submission

2. Review

3. Challenge

C. Level of Satisfaction

1. Prior Rights Owners

2. Registrars

3. Registries

4. Other Categories

III. Scalability of rights protection mechanisms

A. Feasibility

Conclusions derived from I and II above -- effectiveness; impact on registrars, registries, and other affected parties; concerns of IP owner and holders of other rights

B. Implementation Considerations

IV. Identify and Evaluate Alternative Mechanisms

A. Alternatives

B. Evaluation

Suggested Working Group Membership

The following list sets out initial ideas for experts that would provide useful contributions. The list is neither binding nor enumerative.

* Owners of globally famous brands from different regions.
* INTA Internet Committee member
* Rights protection mechanism dispute panelist
* Non-profit educational or charitable organization representative
* Registrars with experience in preventive rights protection mechanisms
* Registries with experience in preventive rights protection mechanisms
* Representative from EURid or PWC, EURid validation agent
* Commercial financial institution representative (because of concerns over consumer protection and concerns related to fishing and identity theft)
* IPC designee
* NCUC designee
* ISP designee
* BC designee
* WIPO representative (given WIPO's expertise in evaluating existing rights protection mechanisms)

1. Voting:

In general, the working group should operate using a rough consensus approach. Every effort should be made to arrive at positions that most or all of the group members are willing to support. "Straw poll voting" should be used to determine whether there is rough consensus on particular issues. In order to ensure that each constituency does not have to provide the same number of members, constituencies, regardless of number of representatives, can hold 3 votes, and each individual nominating committee councilor hold one vote. Liaisons are non voting.

2. Membership

The Working Group is open for membership to Councilors and to GNSO Constituency members; advisory committees (e.g., ALAC, GAC) may appoint non-voting liaisons to the working group. Members may be added by the constituencies and the Advisory groups at any time during the work of the WG. The ccNSO could be invited to have representatives participate as observers because there may be implications for the treatment of the two letter country codes, which are presently reserved at all levels. The WG may invite external experts as speakers or advisors (in the role of observer) that may be able to constructively contribute to the effort.

Every effort should be made to ensure that the working group include and consider the varying points of view on key issues. It is more important that all varying points of view are examined and reflected than for
every constituency or group to have representation or equal numbers of members. If this goal is achieved and recommendations are developed that have rough consensus of the group, then the full Council, with balanced representation from all constituencies and NomCom appointees, will then have opportunity to act.

Members should be selected who can commit sufficient time during the next three-four months to facilitate achievement of the targeted accomplishments describe in the next section (Working Timeline).

The Council will appoint an initial or interim chair [or co-chairs] and the Working Group should, at its initial meeting, elect or confirm the chair and co-chair(s).

3. Working Timeline

The Working Group is asked to convene at the earliest possible time and to achieve the following targets:
1. Progress report at least one week prior to the start of the Lisbon ICANN meetings (16 March 2007).
2. Final report at least one week prior to the April 2007 GNSO Council meeting.

Timeline:

The working group should conclude its work in time to provide a report for the GNSO Council meeting in April 2007

Kristina Rosette proposed a procedural motion that the Council approve extending the timeline for the working group on the Protection of the Rights of Others from the end of April to May 17, in order for the report to be considered at the GNSO Council meeting on 24 May 2007.

The motion passed by vote of acclamation.

Decision 3: The Council extended the timeline for the working group on the Protection of the Rights of Others from the end of April to May 17, in order for the report to be considered at the GNSO Council meeting on 24 May 2007.

Item 4: Observers in working groups

- Ratify observer rules for working groups at:
http://www.gnso.icann.org/mailing-lists/archives/council/msg03272.html

"Observers: Observers shall not be members of or entitled to vote on the working group, but otherwise shall be entitled to participate on equal footing with members of the working group. In particular observers will be able to join the mailing list, and attend teleconferences or physical meetings."

To guard against some of the behaviour that can occur with unregulated mailing lists, observers must provide their real name, organisation (if associated with an organisation) and contact details to the GNSO secretariat, and the GNSO secretariat will verify at least their email address and phone contact information. Observers will also be requested to provide a public statement of interest, as for working group members.

Where a person joins an already established working group, this will be on the basis that it is their responsibility to read the existing documents, listen to teleconference recordings, and read the mailing list discussions before commenting on topics that have already been dealt with by the working group.

During the discussion the following comments were highlighted:

The question was posed whether the working group structure was within the Council's scope to consider because there appeared to be a potential recommendation for modifying the current constituency structure, which belonged in the broader spectrum of GNSO improvements under consideration.

With regards to disruptive observer behaviour, it was suggested that the chair of the working group and the working group itself deal with such issues, and this measure failing, the issue could be raised for the Council to review and a sub-committee formed to consider the issue and make recommendations to the Council.
Private email exchange would be preferable to open list exchange in the case of obstructive or disruptive behaviour, while the suspension of a member should be undertaken with the agreement of the group.

Historical experience indicated that another form of sanction to be considered would be empowering the working group or task force chair to temporarily suspend posting rights for the offending member. While, in terms of a more permanent sanction, Council should make the decision as elected representatives.
Council should establish Working group procedures reserving the right to change if necessary.

Concern was expressed that not only was disruptive behaviour an issue, but that observers could deliberately shift the focus of the work to suit special interest groups. Balancing out requests for participation at the outset, so that no one group could dominate would be a way of preventing capture positions.

The number of participants in a working group should be flexible and could be managed by assigning the work to sub-groups. There should be relative flexibility with regard to who joins the working to the extent that it would be manageable as this would be favourably perceived by the community.
The working group should not be considered as a decision-making body.

In the case of late-comers to the group the responsibility should be on the individual to inform themselves of the prior work. There should be a cut off date for joining the group.

Bruce Tonkin seconded by Alistair Dixon proposed, endorsing the observer rules for working groups.

The motion passed by vote of acclamation.

Decision 4: The Council endorsed the observer rules for working groups.

"Observers: Observers shall not be members of or entitled to vote on the working group, but otherwise shall be entitled to participate on equal footing with members of the working group. In particular observers will be able to join the mailing list, and attend teleconferences or physical meetings."

To guard against some of the behaviour that can occur with unregulated mailing lists, observers must provide their real name, organisation (if associated with an organisation) and contact details to the GNSO secretariat, and the GNSO secretariat will verify at least their email address and phone contact information. Observers will also be requested to provide a public statement of interest, as for working group members.

Where a person joins an already established working group, this will be on the basis that it is their responsibility to read the existing documents, listen to teleconference recordings, and read the mailing list discussions before commenting on topics that have already been dealt with by the working group.

Council further recommended that the suggestions made during the meeting, should be ratified as further working procedures, at the following Council meeting on Wednesday 27 March 2007.

Item 5: Update progress from IDN working group
- report from Ram Mohan

Ram Mohan
reported that the GNSO IDN working group, consisting of 30 plus voting members and 5 observers had made excellent progress. There had been robust communication on the mailing list and during teleconferences. The group started in January with paired meetings twice a week, to accommodate different time zones but went to one call a week. The charter was to examine four key IDN-based documents, then to review a number of open policy items in order to arrive at some conclusions whether there were policy items requiring further investigation in a policy development process.
A draft outcomes report indicating areas of agreement and areas of support by the working group membership is due to be released to the Council on March 21 2007.

The group was productive in bringing together a wide range of individuals, with different levels of knowledge and experience, some who represented constituencies and others who partook in their own individual capacity.

Some of the IDN working groups' output has been reflected in the outcomes of the Reserved Names working group and the Protection of Rights of Others working group.

The chairs of the GAC IDN committee, and the ccNSO IDN working group, have liaised regularly and kept each other updated on their respective committees work. The GNSO IDN working group appointed one of its members as a liaison to the joint ccTLD-GAC working group on IDN. There was however no formal liaison with the President’s Advisory Committee on IDNs.

The report is due to be circulated to the ccNSO and the GAC working groups for their comments as well as to the President’s Advisory Committee on IDNs. The working group mandate has concluded after the last call on 20 March.

Item 6: Update from WHOIS task force
- final report
- meeting with GAC in Lisbon
- next steps - possible implementation working group

Jordyn Buchanan reported that the WHOIS task force had issued its final report. The task force recommended a set of policy recommendations in the form of the OPoC proposal,
supported by a majority on the task force which are the recommendations of the task force.
A minority position was endorsed by three constituencies.
Summary of the task force recommendations:
The amount of information that is displayed in the WHOIS system for the registrant is significantly reduced.The only information that would be displayed would be the registrants name, information about the country and technical information about the domains.

The administrative and technical contact would be replaced by a new form of contact called the Operational Point of Contact. That person would be responsible for resolving or passing on information to help to resolve any operational issues within the domain.

Changes include the way complaints about accuracy are handled. A requirement is introduced that registrars, upon discovering the information or upon being notified that the information is inaccurate, and confirming that to be so, actually, either suspend the domain name or delete it.

There are changes that require the registrar to verify, that the email address that's provided in response to a complaint to update the information actually works and is responded to by whoever the contact is.

There was a strong minority that had a different set of policy recommendations that have also been included in the report, called the Special Circumstances proposal.

This proposal doesn’t change the default information that's displayed in WHOIS.

If information in WHOIS were used for a specific bad purpose by some third party, it would allow a registrant to request their information be removed from WHOIS.

That request would be evaluated by a third party based on the set of criteria, and if the criteria were met, the registrant information would be removed from WHOIS.

One other point worth noting, in the terms of reference was if the information that was displayed in WHOIS were changed, there should be an alternative means of getting access to that information. There were not clear proposals on how to deal with this particular issue other than simply contact the registrar and obtain the information that way.

The current report finalizes the rest of the terms of reference and The work of the WHOIS task force has concluded.

Bruce Tonkin thanked Jordyn Buchanan and the WHOIS task force for their long and sustained work.
The following steps would be to consider forming an implementation working group.

Chuck Gomes commented that the registries would oppose implementing the OPoC proposal before a solution to access had been resolved.
Philip Sheppard expressed concern about the language used to describe the outcomes of the report about the characterization of minority report as being basically, three constituencies, representative of thousands of people, of thousands of organizations around the world, being characterized in that way.The reason why some voted against was that there was a substantial list of unresolved issues.

Maria Farrell clarified that the staff was preparing a document on potential implementation issues arising from the task force recommendation of the OPoC proposal, and the Special Circumstances proposal, to clarify outstanding issues in both proposals.

Bruce Tonkin commented that it would be useful for the groups who have opposed the supermajority to articulate what they consider as difficult to accept as Council should identify the remaining issues that might be solvable in an attempt to increase the majority.

Bruce Tonkin proposed working on further improvements to the OPoC and the special circumstances separately, with the Opoc proposal being considered first, on that basis that the two proposals were not mutually exclusive. The further work on OpoC could be done via an implementation working group – similar to that used to finalise the recommendations of the transfers task force before submitting them to the Board.

Suzanne Sene commented that the GAC would be interested in better understanding what the Council intended to do with the task force report and the next steps that lay ahead.

Item 7: Update on PDP-Feb 06 - contractual conditions for existing gTLDs
- final report
- summary of any consensus recommendations

Liz Williams
reported that the draft final task force report on the PDP-Feb 06 - contractual conditions for existing gTLDs had been published for public comment which will run through to 28 March 2007.

The policy recommendations are:

There should be a policy guiding registry agreement renewal.

1A.2 Registry agreements should be a commercially reasonable length.

2A The present limitations to Consensus Policies are appropriate and should continue.

2B Certain policy making responsibility should be delegated to the sponsored gTLD operators.

4A In order to improve ICANN accountability and effective business planning by registries, ICANN staff should immediately implement a system that avoids individual negotiations of ICANN fees and provides consistency unless there is an established justification for disparate treatment.

4B The ICANN Board should establish a Task Force or Advisory Committee to examine budgeting issues, including the manner and allocation of revenue collection, budget oversight and budget approval processes. This group should solicit and review public comments on the issues.

5 In order to determine whether there is a need for a new consensus policy on the collection and use of registry data, including traffic data, for purposes other than which is was collected, there is first a need for a properly targeted study by an independent third party on the data collected and the uses to which it is put.

The study should provide appropriate safeguards to protect any data provided for the purposes of the study, and the confidentiality of which registry, or other group, provides the data. The findings of the study should be published and available for public review. A Statement of Work should be developed by the GNSO Council, with appropriate public review, to cover an analysis of the concerns for data collection and use, the practice involved in collection and use of data - including traffic data, and the availability, when appropriate, for non-discriminatory access to that data.

It is recommended that a current processes document be developed, describing the current registry practices for the collection of data and the uses of that data, for example, but not limited to, operating the registry; preparing marketing materials to promote registration of domain names; gathering of 'null' returns, ensuring the integrity of the Registry, or the DNS. This report should be available to the group doing the external study and should be made available to the public for comment.

After examining the results of the independent study and public discussions recommended above, the GNSO Council should examine the findings and determine what, if any, further policy process is required.

6A ICANN should establish baseline requirements for the security and stability of registries and anything above that would be negotiated on a case-by-case basis, if necessary. Baseline requirements should be recommended to the Board by the Security and Stability Advisory Committee (SSAC) after consultation with the gTLD registry operators. In determining those recommendations, the SSAC should solicit and consider public comments.

The Council is not expected to take action on the report until after the Lisbon meeting at the conclusion of the public comment period on 28 March 2007.

Item 8: Update on PDP-Dec 05 - new gTLDs

- status of report for Lisbon

- meeting with GAC in Lisbon

- further work to be done

The draft final report on the PDP-Dec 05 - new gTLDs has been published

3 elements of work still need to be concluded:

- A discussion on dispute resolutions to understand the options was proposed for the GNSO new gTLD committee.

- The work of the Reserved Names and the Protection of Rights of Others working group which would provide input to the new gTLDS process.

- The elements that relate to string criteria would be reviewed in light of any final GAC principles relating to new gTLDs.

Item 9: Update progress from Reserved Names working group
- report from Chuck Gomes

Chuck Gomes reported that the Reserved Names working group had concluded its work and will publish a report to meet the deadline 16 March, for consideration during the New gTLD committee work in Lisbon.

Bruce Tonkin clarified that procedurally, the GNSO Council does not need to wait for the GAC to provide its recommendations. The Council, could complete the work, submit it to the Board which may then receive GAC input.

Item 10: GNSO Board election

- Bruce Tonkin hand over the chair, and will not participate as a Council member

- update from staff on next steps

- opportunity for Council and constituency leadership to interview
candidates

Bruce Tonkin handed the Chair to Philip Sheppard the past chair of the Council.
Philip Sheppard referred to the election procedures and the candidate's statement .

Philip Sheppard proposed an interactive session during the Lisbon meetings to interview Bruce Tonkin, the only candidate for the position and to further proceed with the scheduled election procedures.

Philip Sheppard handed the chair back to Bruce Tonkin.

Bruce Tonkin formally closed the meeting and thanked everyone for their participation.

The meeting ended: 21 :40 UTC

Next GNSO Council meeting will be in the Corinthia hotel in Lisbon on 28 March 2007 at 10:30 UTC.
see: Calendar

Summary of Work Items arising from the minutes:

1.Compile the suggestions for observer participation in working groups and present for ratification at the next Council meeting.

2. Schedule working group meetings in Lisbon as well as a session for dispute resolution options

3. Schedule an Interactive session during the Lisbon meetings to interview Bruce Tonkin, candidate for Board seat 13.