GNSO Council Open meeting LA Minutes

Last Updated: 31 August 2009
Date: 
31 October 2007
31 October 2007

Proposed agenda and documents

List of attendees:
Philip Sheppard - Commercial & Business Users C -absent - apologies
Mike Rodenbaugh - Commercial & Business Users C.
Bilal Beiram - Commercial & Business Users C
Greg Ruth - ISCPC
Antonio Harris - ISCPC
Tony Holmes - ISCPC
Thomas Keller- Registrars - Remote participation
Ross Rader - Registrars
Adrian Kinderis - Registrars
Chuck Gomes - gTLD registries
Edmon Chung - gTLD registries
Cary Karp - gTLD registries
Kristina Rosette - Intellectual Property Interests C
Ute Decker - Intellectual Property Interests C
Cyril Chau - Intellectual Property Interests C
Robin Gross - NCUC
Norbert Klein - NCUC
Mawaki Chango - NCUC - remote participation
Sophia Bekele - Nominating Committee appointee - absent - apologies
Jon Bing - Nominating Committee appointee
Avri Doria - Nominating Committee appointee

19 Council Members
(25 Votes - quorum)

ICANN Staff

Denise Michel - Vice President, Policy Development
Dan Halloran - Deputy General Counsel
Olof Nordling - Manager, Policy Development Coordination
Kurt Pritz - Senior Vice President, Services
Craig Schwartz - Chief gTLD Registry Liaison
Patrick Jones - Registry Liaison Manager
Karla Valente - gTLD Registry Liaison
Liz Gasster - Senior Policy Officer
Glen de Saint G�ry - GNSO Secretariat

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

Rita Rodin - ICANN Board member - remote participation
Bruce Tonkin - ICANN Board member

Audio Cast
Webcast

Transcription

Avri Doria chaired the meeting.

Approval of the agenda

Item 1: Update any Statements of Interest
Mike Rodenbaugh
noted that he had updated his statement of interest

Avri Doria
explained that the meeting would follow a new procedure:
- Each topic would be prefaced by a short report on the current state of the issue,
- Council discussion would follow
- Discussion would be open to the floor,
- Finally Councul's closing discussion and vote if appropriate.


Item 2: Intergovernmental Organization Dispute Resolution Process (IGO-DRP)
http://gnso.icann.org/drafts/gnso-igo-drp-report-v2-28sep07.pdf

Olof Nordling presented the issue
http://gnso.icann.org/correspondence/igodrp-gnso-council-31oct07.pdf
Protection of IGO Names and abbreviations as domain names arose as a subsection of the WIPO II
recommendations. These were discussed at the GNSO Council meeting in Wellington in relation to the new gTLD process, included in the GAC principles for new gTLDs. The Reserved Names working group concluded that reserved name status was not appropriate for IGO names.
http://gnso.icann.org/issues/igo-names/issues-report-igo-drp-15jun07.pdf.
During the GNSO Council meeting in San Juan
http://gnso.icann.org/meetings/minutes-gnso-27jun07.shtml
staff was requested to draft a Dispute Resolution policy
http://gnso.icann.org/drafts/gnso-igo-drp-report-v2-28sep07.pdf
A major procedural difference from the Universal Dispute Resolution Procedure (UDRP) is that appeals can be made to an arbitral tribunal instead of a national court.

Key provisions
In the case of a dispute, the IGO plaintiff has to prove that the defendant's domain suggests to the public that a connection to the IGO exists or misleads the public as to the existence of such a connection. The outcome is not a given, the panel would rule in favour of the defendant if there was no such alleged connection that could confuse the public.
- There are certain IGOs, notably the Red Cross, where the underlying treaty stipulates how to use that particular IGO name or abbreviation. Violation of the rules for use in such a treaty would constitute an additional ground for objection and dispute resolution.

Olof Nordling clarified that the purpose of the particular procedure related specifically to the second level, but that the issue needed to be addressed for existing gTLDs as well.
Kristina Rosette added that there was no agreement in international law for existing mechanisms to address the issue. The IPC was willing to form a group of interested, informed stakeholders including members of the GAC with a goal of reviewing the draft proposal and, reporting back to the Council not later than February 2008.
Robin Gross commented that it was an unnecessary piece of special-interest legislation.

Steve Metalitz, IPC Chair, commenting from the floor supported the idea of further work by a small group.

Jon Bing added that there was no agreement on the protection of the abbreviations or names on the international level, but that in many translations, there was explicit prohibition to use those abbreviations to confuse with the membership of the nation in the international organizations under discussion.
National prohibitions exist and creates complications which was exactly one of the reasons why current dispute resolution procedure should be avoided.
Jon Bing went on to say that there was no international consensus on the protection of those organizations. The nature of the disagreement mainly referred to which organizations should enjoy protection and there was great variance in that respect.

Mike Palage, from the floor cautioned against overstepping the protection that IGOs were afforded under international law by trying to fill the void that existed.
Mike O'Connor, from the floor, speaking as an individual, member of the CBUC supported the IPC work.
Wendy Seltzer, from the floor expressed concern at the proposed dispute resolution procedure in that it went further than the UDRP in being unfriendly to the registrant of a domain name, and suggested that the process be
stopped in its tracks.

Kristina Rosette, seconded by Jon Bing proposed

Whereas, the Council has previously requested and received both the 15June 2007 "GNSO Issues Report on Dispute Handling for IGO Names and Abbreviations"
http://gnso.icann.org/issues/igo-names/issues-report-igo-drp-15jun07.pdf
and the 28 September 2007 "Staff Report on Draft IGO Domain Name Dispute Resolution Procedure;"
http://gnso.icann.org/drafts/gnso-igo-drp-report-v2-28sep07.pdf
and

Whereas, the Council believes that further work on the draft IGO Domain Name Dispute Resolution Procedure is appropriate before voting on whether to initiate a policy development process on this issue; and

Whereas, the Intellectual Property Constituency is willing to lead a small ad hoc group to review and consider a proposed draft dispute resolution procedure,

Now, therefore, be it resolved that the Council authorizes the creation of a small ad hoc group of interested informed and representative stakeholders and members of the GAC to review, consider and propose as
appropriate revisions to the Draft IGO Domain Name Dispute Resolution Procedure set forth in the Staff Report, and instructs the ad hoc group to report to the Council with its recommendations not later than 15 February 2008.

Discussion indicated that the motion should be more specific with an explicit statement of scope.

Susan Crawford, ICANN Board Director and member of the Board Governance Committee working group on GNSO improvements, commented that the IPC was being quite helpful, as they represented domain
name owners as well as having concerns about dispute resolution for trademark-like rights and domain names. Susan encouraged the idea of a broadly-representative, well-led, brief-in-time working group that would address the serious issues about the dispute resolution policy that had been raised and report back to the Council.

Avri Doria called for a roll call vote.

The resolution did not pass.

12 votes in favour
Ute Decker, Kristina Rosette, Cyril Chua, Tony Holmes, Tony Harris, Greg
Ruth, Jon Bing, Avri Doria, (one vote each)
Adrian Kinderis, Ross Rader (2 votes each)

8 Votes against:
Robin Gross, Norbert Klein, (one vote each)
Cary Karp, Chuck Gomes, Edmon Chung (2 votes each)

5 Abstentions:
Mike Rodenbaugh, Bilal Beiram, Mawaki Chango (one vote each) Tom Keller
(2 votes)
Total 25 votes

Philip Sheppard and Sophia Bekele - Absent (one vote each)

Item 3: Domain Tasting report

Avri Doria stated that following a request from ALAC the GNSO Council requested an Issues Report on domain tasting. After receiving the report, The GNSO Council decided to create an ad hoc group for
further fact-finding on domain tasting and this group submitted an Outcomes report

Mike Rodenbaugh, seconded by Kristina Rosette proposed the following motion:

Whereas the Issues Report on Domain Tasting has been released and discussed
and
Whereas, the GNSO Council acknowledges the Final Outcomes Report of the ad hoc group on Domain Tasting, the Council hereby initiates a Policy Development Process, and pursuant to Sections 4 and 8 of Annex A of the Bylaws,

The GNSO council resolves to initiate a PDP to address the issues set forth in the Issues Report by Staff and in the Outcomes Report of the ad hoc group and encourages staff to apply ICANN's fee collections to names
registered and subsequently deregistered during the add-grace period.

Ross Rader, though not for domain tasting, was not in favour of initiating a policy development process (PDP) because, in his view, there were practical steps that ICANN staff could take immediately to address the issue of tasting such as ending the waiver of fees on domains that are tasted during the 5-day grace period.

Robin Gross expressed concern on commencing a PDP based on the Final Outcomes Report.

Dan Halloran confirmed that the waiver of fees on domains that are tasted during the 5-day add grace period could be ended by a budget process in consultation with the ICANN Board and the Registrars.

Tim Ruiz supported Ross and agreed with Dan Halloran that the transaction fee change did not require a PDP to become part of the budget, thus neither would any modification require it. However, Tim urged Council to avoid forming a task force if a PDP were initiated.

Ross Rader proposed an amendment, seconded by Mike Rodenbaugh, to the motion to mention a specific request for staff to look at the possibility of trying to curb tasting through the application of the fee to names deleted during the add-grace period, either through the budgeting process or other means.

Comments from the floor:
Philip Corwin, Council of the Internet Commerce Association wanted to be on the record that their association supported the action taken by PIR which effectively eradicated domain tasting on dot org. The association adopted a member code of conduct which strongly opposed abusive tasting and the total elimination of kiting and supported the action by Council to eliminate abusive tasting and totally eradicate kiting as quickly as possible.

Jon Nevett, chair of the Registrar Constituency clarified that the Registrar Constituency would not have to approve the fee change. However, under the agreement the Registrars had with ICANN and the Registrar Accreditation Agreement, two-thirds of registrars would need to approve any fees that are applied to them.

Kurt Pritz, ICANN Senior Vice President, Services commented that as it would be a change to budget, it would require approvals from the Registrar constituency and the ICANN board. ICANN was planning to post an advanced copy of the budget in February 2008.

Ross Rader asked if there was an immediate practical action that could be taken through an interim or special budgeting process specifically around this very narrow collection.

Kurt Pritz responded that anything was possible and a process could be mapped out with a timetable attached.

Avri Doria called for a voice vote on the motion proposed by Mike Rodenbaugh, seconded by Kristina Rosette and amended by Ross Rader.

Kristina Rosette requested a roll call vote.

18 Votes in favour:
Mike Rodenbaugh, Bilal Beiram, Ute Decker, Kristina Rosette, Cyril Chua,
Tony Holmes, Tony Harris, Greg Ruth, Jon Bing, Robin Gross, Norbert
Klein, Mawaki Chango, (one vote each) Cary Karp, Chuck Gomes, Edmon
Chung (2 votes each)

5 votes against: Adrian Kinderis (2 votes), Tom Keller (2 votes), Avri Doria (one vote).

2 Votes abstaining: Ross Rader (2 votes).
Total 25 votes

Philip Sheppard and Sophia Bekele - Absent (one vote each).

Decision 1:
Whereas the Issues Report on Domain Tasting has been released and discussed
and
Whereas, the GNSO Council acknowledges the Final Outcomes Report of the ad hoc group on Domain Tasting, the Council hereby initiates a Policy Development Process, and pursuant
to Sections 4 and 8 of Annex A of the Bylaws,

The GNSO council resolves to initiate a PDP to address the issues set forth in the Issues Report by Staff and in the Outcomes Report of the ad hoc group and encourages staff to apply ICANN's fee collections to names registered and subsequently deregistered during the add-grace period.

Avri Doria called for a voice vote on the motion proposed by Mike Rodenbaugh, seconded by Kristina Rosette with the accepted amendment that 'Olof Nordling' be replaced with 'the
ICANN staff manager.

Whereas, the GNSO Council has resolved to initiate a Policy Development Process on Domain Tasting, and pursuant to Sections 4 and 8 of Annex A of the Bylaws, resolves as follows:

1. To request that each constituency appoint a representative to solicit the constituency's views on the issues presented in the Issues Report by Staff and in the Outcomes Report of the ad hoc group. Each such representative is asked to submit a Constituency Statement to the ICANN staff manager within thirty-five (35) calendar days of this resolution.
2. To request that ICANN Staff take all Constituency Statements, the two prior reports, and other information and compile (and post on the Comment Site) an Initial Report within fifty (50) calendar days of this resolution.
3. Thereafter, the PDP shall follow the provisions of Item 9 of Annex A of the Bylaws, in creating a Final Report for Council.

The motion passed unanimously by voice vote.

Decision 2
Whereas, the GNSO Council has resolved to initiate a Policy Development Process on Domain Tasting, and pursuant to Sections 4 and 8 of Annex A of the Bylaws, resolves as follows:

1. To request that each constituency appoint a representative to solicit the constituency's views on the issues presented in the Issues Report by Staff and in the Outcomes Report of the ad hoc group. Each such representative is asked to submit a Constituency Statement to the ICANN staff manager within thirty-five (35) calendar days of this resolution.
2. To request that ICANN Staff take all Constituency Statements, the two prior reports, and other information and compile (and post on the Comment Site) an Initial Report within fifty (50) calendar days of this resolution.
3. Thereafter, the PDP shall follow the provisions of Item 9 of Annex A of the Bylaws, in creating a Final Report for Council


Item 4: Whois – report, open and council discussion, Vote on motions
(http://gnso.icann.org/drafts/icann-staff-overview-of-whois11oct07.pdf
)

Avri Doria, summarising the WHOIS process, noted that the WHOIS Task Force in its Final Report recommended an Operational Point of Contact (OPoC). The GNSO Council decided to create a working group
that would discuss the implementation details, responsibilities and functions of the OPoC.
The Outcomes Report of the WHOIS working group suggested some responses to the issues within OPoC but did not satisfactorily answer constituency and community concerns.
The public comments reflected the same concerns as those of the Task Force, the Working Group, and the Council.

Avri Doria noted that the three motions before the Council were circulated for comment in the Final Staff Report.

Motion #1 offered by Avri Doria, seconded by Ross Rader

Whereas the WHOIS Task Force has delivered its report and
Whereas the Outcomes report of WHOIS Working Group on OPOC implementation issues has also been released and
Whereas the ICANN staff has produced notes on a proposed implementation and
Whereas the GNSO constituencies and the larger community have reviewed and commented on both reports and the proposed implementation notes

Resolved:
The GNSO council supports the OPOC recommendation as contained in the Task Force report and requests that the staff consult the report of the Working Group and all follow-on discussions, including comments supplied by the constituencies during the review and by the community during the open review, in creating a proposed implementation of OPOC.

The council further requests that the staff consult with the GNSO and the community at large once it has developed this proposed implementation plan.

Motion #2 offered by Kristina Rosette, seconded by Mike Rodenbaugh

WHEREAS:
1. The GNSO Council hereby accepts the Working Group report and acknowledges the tremendous effort by Working Group participants and ICANN staff.
2. The GNSO Council does not consider the Working Group report as an adequate basis for any implementation of the Operational Point of Contact (OPOC) proposal, due to the inability to reach agreement on a number of key issues identified in the charter of the Working Group.
3. The GNSO Council notes that no comprehensive, objective study has yet been made of key factual issues regarding the WHOIS system, and that future ICANN policymaking could greatly benefit from the results of such a study.
THEREFORE BE IT RESOLVED:
1. The GNSO Council thanks all of the volunteers, consultants, staff and others who have participated in the GNSO's examination of WHOIS policy over the last four years.
2. Building on the work done in response to paragraph (c) of the GNSO Council Resolution #3 of September 6, 2007, the Council requests that ICANN staff take the necessary steps to proceed with a comprehensive, objective study on the issues identified by the WHOIS Working Group, by the Governmental Advisory Committee in its statement of principles on WHOIS, and by the Council. These issues include the characteristics of gTLD registrants, the uses and abuses of WHOIS data, and a review and analysis of the different proxy services available today. Specifically, the Council directs the staff to present for its review a draft Request for Proposals for such a study, including a proposed budget and timeline, and a methodology for outreach to knowledgeable parties, within 90 days from the date of adoption of this resolution.
3. The GNSO Council will take the results of this study, once completed, into account in deciding on the next steps in WHOIS policy development.

Motion #3
- conditional motion offered by Ross Rader, seconded by Mawaki Chango (may be withdrawn if Doria motion above is approved)

Whereas;

(i) The GNSO Council has considered the reports of the WHOIS Working Group and WHOIS Task Force, and;
(ii) That the GNSO Council vote on resolution [XXXXX] (Whois Motion 1) failed to produce supermajority or majority support for the recommendations of the report of the Task Force, and;
(iii) The GNSO Council considers that the results of this vote signifies the continued lack of consensus on the key issues and possible solutions to those issues, both within the Council, the GNSO and between key stakeholder groups, and;
(iv) The GNSO Council recognizes that there is no standing consensus policy concerning the management of the WHOIS service and data provided to the public through that service by ICANN's contracted commercial operators, the registries and registrars, save and except the WHOIS Data Reminder Policy and the WHOIS Marketing Restriction Policy, and;
(v) That significant policy must have the support of the Internet and DNS community and without that support, those policies cannot be reasonably implemented or enforced.

Therefore be it resolved;

(i) That, with regret, the GNSO Council advises the ICANN staff and Board of Directors of the lack of general consensus on the key issues and solutions pertaining to gTLD WHOIS, and;
(ii) That due to this lack of consensus the GNSO Council recommends that the Board consider "sunsetting" the existing current contractual requirements concerning WHOIS for registries, registrars and registrants that are not supported by consensus policy by removing these unsupported provisions from the current operating agreements between ICANN and its contracted parties, and;
(iii) That these provisions be sunset no later than the end of the 2008 ICANN Annual General Meeting and;
(iv) That such provisions will remain sunset until such time that consensus policy in this area has been developed to replace the sunset provisions, at which point they will be eliminated or modified.

Ross Rader proposed that the motions be entered as read.

Avri Doria explained that Council would first add amendments to the proposed motions, and then invite discussion.
Avri Doria proposed that a roll call vote be taken on motions 1, 2 and 3 in sequence.

Avri Doria, seconded by Ross Rader proposed:

Whereas the WHOIS Task Force has delivered its report and
Whereas the Outcomes report of WHOIS Working Group on OPOC implementation issues has also been released and
Whereas the ICANN staff has produced notes on a proposed implementation and
Whereas the GNSO constituencies and the larger community have reviewed and commented on both reports and the proposed implementation notes

Resolved:
The GNSO council supports the OPOC recommendation as contained in the Task Force report and requests that the staff consult the report of the Working Group and all follow-on discussions, including comments supplied by the constituencies during the review and by the community during the open review, in creating a proposed implementation of OPOC.

The council further requests that the staff consult with the GNSO and the community at large once it has developed this proposed implementation plan.

The motion did not pass

17 votes against: Mike Rodenbaugh, Bilal Beiram, Ute Decker, Kristina Rosette, Cyril Chua, Tony Harris, Tony Holmes, Greg Ruth, Jon Bing, Robin Gross, Norbert Klein, (one vote each)
Edmon Chung, Chuck Gomes, Cary Karp (2 votes each)

7 votes in favour: Adrian Kinderis, Ross Rader, Tom Keller, (2 votes each) Avri Doria (one vote)

1 abstention: Mawaki Chango

Philip Sheppard and Sophia Bekele were absent, and did not vote.

Motion 2

WHEREAS;
1. The GNSO Council recently received the Whois Working Group final report

and;

2. The GNSO Council acknowledges that the broad range of stakeholders with interests in this issue led to a wide range of views of what the policy issues are and how to best address those policy issues with solutions that can be supported by the consensus of the community:
and

3. The GNSO Council observes that the Working Group failed to reach agreement on several of the key issues identified in the charter of the Working Group
http://gnso.icann.org/issues/whois-privacy/whois-wg/whois-working-group-charter-16apr07.pdf

and

4. That broadly, the scope of the issues in this area evolved substantially over the term of this Policy Development Process since it was originally chartered: and

5. A comprehensive, objective and quantifiable understanding of key factual issues regarding the gTLD Whois system will benefit future GNSO policy development efforts: and

6. The rights and requirements of natural persons, the legal and business communities, anti-crime and law enforcement and registrars in the areas of privacy, access, enforcement, investigation, consumer protection and research would benefit from future policy development by the GNSO.

THEREFORE, Be it resolved that the GNSO Council;
1. Sincerely thanks all of the volunteers, advisors, consultants, staff, stakeholders, observers and constituency participants who have contributed to the GNSO's examination of Whois policy over the last four years, and

2. Formally ends the Policy Development Process on gTLD Whois without making any recommendations for specific policy changes to ICANN’s Board of Director, and

3. Recognizes the demand for future policy development including, but not limited to, ensuring appropriate privacy safeguards for natural persons, lawful access to data for rights enforcement, consumer protection, law enforcement and anti-crime purposes and will immediately initiate the following sequential actions: 1) Council shall provide additional definition regarding the potential data gathering and study requirements 2) staff shall provide the Council with rough cost estimates for various components of data gathering and studies no later
than February 15th, 2008; 3) the Council will decide what data gathering and studies would be pursued; and 4) staff will perform the resulting data gathering and studies and report the results back to the Council.

4. May initiate policy development activities in this area, as supported by the findings of the data-gathering and study activities upon their completion.

The motion passed with a supermajority vote.

17 Votes in favour: Mike Rodenbaugh, Bilal Beiram, Ute Decker, Kristina Rosette, Cyril Chua, Tony Holmes, Tony Harris, Greg Ruth, Robin Gross, Norbert Klein, Jon Bing (one vote each) Chuck Gomes, Cary Karp, Edmon Chung (2 votes each)

7 Votes against: Adrian Kinderis, Tom Keller, Ross Rader, (2 votes
each) Avri Doria, (one vote).

1 abstention: Mawaki Chango (one vote).

Philip Sheppard and Sophia Bekele - Absent (one vote each).

Avri Doria opened the Council discussion on motion 2 stating that Ross Rader had sent an amendment to motion 2 to the Council list, Kristina Rosette in accepting it as a friendly amendment, proposed further amendments to Ross's amendment to read in clause 6 after "anti-crime" "legal and business communities".
(http://gnso.icann.org/mailing-lists/archives/council/msg04066.html)

Ross Rader explained that the purpose of his amendments to motion 2, as presented by Kristina Rosette, was two-fold:

"a) to conclude the policy development work of the GNSO on the issue of Whois until such time that we have identified specific issues that we can break down into discrete policy development activities. I do not believe that we attempt again a broad reform of Whois but rather, focus on smaller, narrower sets of issues in the field that we can deal with in short periods of time while still achieving meaningful results, and;

b) to focus the study work required to line up against specific policy areas where we need further information in order to understand the scope of issues or work required. A broad study of Whois will probably be as effective and useful as a broad PDP on Whois. However, narrower more focused study - or several of them even - will likely bring us much closer to understanding the issues we need to properly consider in our policy work."

Ross Rader read the amended motion into the minutes.
WHEREAS;
1. The GNSO Council has recently received the Whois Working Group final report and

2. The GNSO Council acknowledges that the broad range of stakeholders with interests in this issue has lead to a wide range of views of what the policy issues are and how to best address those policy issues with solutions that can be supported by the consensus of the community, and

3. The GNSO Council observes that the Working Group failed to reach agreement on several of the key issues identified in the charter of the Working Group, and

4. That broadly, the scope of the issues in this area have evolved substantially over the term of this Policy Development Process since it was originally chartered, and

5. A comprehensive, objective and quantifiable understanding of key factual issues regarding the gTLD Whois system will benefit future GNSO policy development efforts, and;

6. The rights and requirements of natural persons, anti-crime and law enforcement, registries and registrars in the areas of privacy, access, enforcement, investigation, consumer protection and research would benefit from future policy development by the GNSO.

THEREFORE, Be it resolved that the GNSO Council:

1. Sincerely thanks all of the volunteers, advisors, consultants, staff, stakeholders, observers and constituency participants who have contributed to the GNSO's
examination of Whois policy over the last four years, and;

2. Formally ends the Policy Development Process on gTLD Whois without making any recommendations for specific policy changes to ICANN's Board of Directors, and

3. Recognizes the demand for future policy development in several key areas and will immediately undertake to identify what specific policy development work is required and create a data-gathering and study plan to support this policy development no later than February 15th, 2008.

4. May initiate policy development activities in this area, as supported by the findings of the data-gathering and study activities upon their completion.

Norbert Klein noted that he disagreed, because it was not clear, what the inclusion of the amendment to the amendment would mean, adding the "legal community". What was intended by "legal community", Law Enforcement was a clear and identifiable entity in different national laws but "legal community" was a vague
term which might create confusion.

Kristina Rosette commented that subject to the addition of a further minor amendment, and recognizing Norbert's question, she was happy to try and work on some language that would be more specific and acceptable to Norbert, while still accomplishing her intended meaning.

Kristina proposed adding into the sixth "whereas" clause after "natural persons" and before "anticrime" -- "legal and business communities," recognizing that those were communities of persons and institutions that currently used WHOIS data and access and needed to have access to WHOIS data.

Kristina added that with more specificity regarding "legal professionals" such as the "legal and business communities" the friendly amendment would be acceptable.

Ross Rader commented that those communities were not intentionally left out and accepted the friendly amendment.

Robin Gross expressed concern by the additional words, because as Norbert Klein pointed out, a 'legal community' could be very broad, including not-so-ethical lawyers who wanted to send out not-so-legally-accurate cease and desist letters and drew attention to the chilling effects of that.

Kristina Rosette expressed concern that the community was being broadened rather than narrowed down.

Chuck Gomes reported that discussions in the Registry Constituency indicated concerns about asking staff to do a series of studies that would be costly without knowing what the estimated costs were going to be. It would be helpful if the staff could provide cost estimates of the different elements of the studies so that Council could assess whether the value of the studies would justify the costs.

Avri Doria expressed similar concerns and rather than starting the studies "immediately" as noted in the motion, first, the terms of reference and scope of the studies should be well defined.

In addition, Council should be in a position to give the staff guidance on the study by the February date.

Avri also expressed concern about the word "immediately undertake".

Kristina Rosette commented that she would be amenable to deleting "immediately" given that the motion was already date-restricted with regard to February 15th. "Promptly" was offered an an alternative.

Ross Rader clarified that the purpose of the amendment was not to postpone WHOIS discussions but to kill the open-ended policy development process that Council had been engaged in for the last seven years and pick one or two very important aspects of that discussion and move forward policy development work, which included closing off the issue of extending publication exemptions to natural persons.
"Simply continuing with the status quo is not an acceptable answer. It is clear that there is not a consensus around that status quo and we need to recognize that and actively take action. So I am very much in favor of leaving this amendment as-is, to ensure that everyone is very clear that we have work to do and that we are engaging in that work."

Liz Gasster, Senior Policy officer suggested, sequencing the study activities and shared the concerns about the broad and undefined practical aspects of the study. Liz appreciated Chuck Gomes's concern about the costs, and commented that staff would be prepared to do research on costs suggesting a two-part approach:
1. more specific direction from the Council about the scope of the studies once there were more detailed and accurate cost estimates
2. respond to further comments or direction that the council might have following the staff submission on estimated costs based on the scoping that the council might initially do to help guide the staff.

Robin Gross proposed a friendly amendment to No. 3 under the "therefore" that would read "3. Recognizes the demand for future policy development in several key areas, "Including the protection of the privacy rights of natural persons."

Kristina Rosette acknowledged Robin's concern but did not accept the friendly amendment.

Norbert Klein enquired why, accepting Robin's amendment would be a problem?

Kristina Rosette commented that it was too restrictive and would necessitate the addition of "appropriate access to data for rights enforcement, for consumer protection, for law enforcement anticrime, for legitimate business purposes such as, for example, facilitating the auctions of domain names at traffic and the like."
which she did not believe would be acceptable.

Chuck Gomes, temporarily in the chair, asked for clarification on why Council was trying to identify the future policy work that needed to be done before there were any studies?

Jon Bing commented that there was justification for mentioning the data protection rights or privacy rights of individuals. In October, prior to the meeting, there were communications from the Article 29 Data Protection Working Group asking ICANN to contact them and to continue work on the issue which would be useful in relation to the application of the EU International Data Protection legislation with respect to WHOIS services.

Jon suggested that the Article 29 data Protection Working Group should be informed that although the policy development process was concluded, the specific issue had not been concluded. If this was not part of the recommendation, then the response to an invitation for cooperation around the question should be addressed separately.

Ross Rader reiterated that the purpose of the amendment was to rescope the engagement in the work rather than undertaking further studies and basing the policy development work on those studies. "I am strongly against just engaging in a broad study in the hopes that we will identify further work."

Chuck Gomes was supportive of ending the PDP.

Ross Rader commented that he had proposed motion 3 which was intended to bring the opposing parties together under a 'vague and distant threat, hoping that they would come to a compromise.'
Certain discussions indicated another option which was to engage in a narrowly defined study, because a broader study might result in a situation similar to the current one.

Avri Doria clarified that Motion 2 specified a schedule and instructions for the Council to start working on immediately and to produce responses by February 15th, while in Motion 1 or Motion 3, there were outstanding issues that Council and the ICANN legal staff would have to review if the motions passed.

Comments at the public microphone:

Milton Mueller, chair of the Non-Commercial users constituency, a previous Task Force member and sub-Working Group leader, commenting from the audience, expressed concern that the same list of conflicting interests that had been debated since 2000 would still be debated.
Council was offering no guidance to future studies with regard to what had been learned over the last seven years. Major media were watching the WHOIS process and expected a response from ICANN.

Milton made 3 suggestions
1. As Jon Bing pointed out, that the correspondence received from Data Protection Authorities, indicated that action should be taken with regard to natural persons, a key point where the working group actually reached some agreement such as forming a separate category.
2. Access mechanisms for whatever shielded data there was going to be, required studying. Clearly, this was a concern of the business and law enforcement communities. Access was difficult problem that should be earmarked.
3. Since there is experience with Country Code Top Level Domains that shield WHOIS data, a study should be requested on the impact on law enforcement and other problems that were associated or alleged to be associated with shielding WHOIS data.
The whereas clause in number 6,
"6. The rights and requirements of natural persons, anti-crime and law enforcement, registries and registrars in the areas of privacy, access, enforcement, investigation, consumer protection and research would benefit from future policy development by the GNSO."
Milton believed was a confession of confusion and papering over a rather miserable failure.

Jordyn Buchanan, who chaired various previous working groups and chaired the Task Force that produced the recommendation that was the subject of motion 1, did not support more studies and believed that the open-ended way Motion 2 was currently presented was not useful. Gathering additional data based on specific questions would be more productive.
"I know everyone is well-intended here, but as Milton points out, we've been doing this for a long time. It may be there are places where we don't have data but the points of conflict, I think are very well understood and unlikely to be resolved by throwing more studies at it. In fact, that gives us yet another excuse to not make any substantive decisions on this process."

Steve Delbianco with NetChoice, a WHOIS Working Group and Commercial and Business Users Constituency member, was in favour of Ross Rader's amended motion.
"I would even like to acknowledge Milton Mueller and Robin for raising, over the past several years, the concerns that there are with respect to people who are afraid their privacy can't be protected on WHOIS.
Sounding the alarm like they did had the predictable effect of provoking the market to respond leading registrars to offer proxy services today that allow any natural person to naturally want to protect their identity by asking for a proxy. That is a market response. Another, is that many registrars will either shield the data that is in WHOIS through CAPTCHA mechanisms, technical mechanisms and other ways to stop the WHOIS information from being used for spam. Again, it is a market response that even the SSAC acknowledged can significantly reduce any incremental spam that might be coming out of the WHOIS display.
I conclude by saying that moving to conclude this PDP along the lines of Ross' motion is in no way an indictment of ICANN process or a failure of ICANN process. I think, rather, it shows that a process that cements into stone the assumptions of seven years ago and begins to solidify people's positions over a long period of time is not likely to serve the general interests of the Internet community.
Rather, it shows that on the Internet it is very easy for a process like this to be overcome by events. And that's particularly true when you look at how fast we move on Internet time."

Kristina Rosette proposed amending motion 2 in the" Whereas" clause:

From: 3. Recognizes the demand for future policy development in several key areas and will immediately undertake to identify what specific policy development work is required and create a data-gathering and study plan to support this policy development no later than February 15th, 2008.

to:

3. Recognizes the demand for future policy development in several key areas, including but not limited to ensuring appropriate privacy safeguards for natural persons, appropriate access to data for rights enforcement, consumer protection, law enforcement and anti-crime purposes and other specifically identified issues.

Robin Gross was concerned that the amended language was too broad and suggested changing "appropriate access" to "lawful access" so that there would be a legal right to have access to the information. It should be recognised that privacy rights needed to be addressed and Data Privacy Commissioners should be informed that work was progressing along these lines.

Tony Holmes expressed concern with the removal of "for appropriate access", commenting that it may be broad, but there was a broad set of issues that were not resolved. It appeared as though there was an attempt to narrow them down to people's particular specific concerns.
"I think we can waste a lot of time trying to do this because the reality is that we do have to face up to these things and that debate needs to take place in a new PDP, not in the current one. So I have a problem with that change."
After considerable wordsmithing there was agreement that "appropriate access" be replaced with "lawful access".

Chuck Gomes offered a friendly amendment on Motion 2 which Avri Doria read into the minutes;
“Recognizes the demand for future policy development, including, but not limited to, ensuring appropriate privacy safeguards for natural persons, appropriate access for data for rights enforcement, consumer protection, law enforcement and anticrime purposes, and will immediately initiate the following sequential actions: 1: Council shall provide additional definitions regarding the potential data gathering and study requirements; 2: Staff shall provide the council with rough cost estimates for various components of data gathering and studies; 3) the council will decide what data gathering and studies would be pursued; and 4) staff will perform the resulting data gathering and studies and report the results back to the council.”

Chuck Gomes noted that a time limit was not included but that he did not object to one and agreed with Avri Doria to insert “No later than February 15th” into item 4), i.e. that staff would perform the relevant data gathering no later than February 15th, 2008.

Kristina Rosette accepted the friendly amendment.

Liz Gasster noted the request of the GAC on 30 October to have input on the contours of the studies, and that this might affect the timing of the study given the interval required for the GAC to provide input. Liz Gasster suggested the February 15th deadline be reconsidered if the GNSO wished to accommodate the GAC's request for providing input.

Ross Rader welcomed comments from all corners of the community but said “we do need to facilitate a very, very narrow and quick time line along these lines and I would hope that the GAC would be able to respond within those time lines. To the extent they can't, there will be further work on this issue going forward, further opportunity to liaise and comment on that, but I do not think it is appropriate for the council to narrow its time lines to specifically allow the GAC to tailor our study on specific issues.”

Bruce Tonkin, ICANN Board director speaking from the floor, observed that there were two distinct parts of Motion 2; one dealing with the conclusion of the current policy development process, which is set out in the bylaws, and the other commissioning some further work of the staff. Having consulted with ICANN’s Deputy General Counsel, Dan Halloran, Bruce advised the Council to separate those two issues. Bruce said the Council needed to vote on whether to accept the policy recommendations resulting from the policy development process and report to the ICANN Board. If a supermajority vote was achieved, the report would go to the Board with a supermajority recommendation. If the supermajority vote was not reached, the report would still go to the Board as a Board Report, but with the positions of the different constituencies and the result of the vote. Given this, Bruce suggested the Council make a single motion resolving the PDP. Bruce recommended that regarding the motion specifying the data collection, the Council give it more thought and vote on it at the next meeting of council. This would give the Council time to consult and get the wording of the direction to staff, given the big cost implications. Bruce agreed with previous comments by Milton Mueller that it is necessary to bound the scope of further study and allow time to consult with constituents and the GAC.

Avri Doria noted that the Council had already done that by defeating Motion 1 which was the Task Force’s recommendation for the OPoC and that this result would be put forward to the Board.
Avri said Motion 2 “basically puts another period on things being ended and recommends what's going on further” and also that the direction on further studies may make the recommendation to the Board richer and more contentful. Avri said the Council could have just stopped with defeating Motion 1, if it wished, but that Motion 2 is essentially a continuing motion.

Milton Mueller, speaking from the floor, recommended that the Council not commission studies on the fly but rather scope them out carefully.

Avri Doria said that if she understood the motion correctly, it was “saying that we're going to provide additional definition regarding potential studies by February 15. It's not saying that that's done as of today.”

Ross Rader described the intent of the amendment he put forward; “that the Council will identify which specific areas we need further policy in, and only when we have made that determination will we engage in further study, and that those areas of study will be specifically limited to those specific policy development activities. The causality, I believe, in the amendment is very, very clear that we will first look at the PDP and then ask the questions.”

Milton Mueller said that from what he saw of Motion 2, as amended, “it looked like you were saying specific things about the type of studies you wanted done. And what you're suggesting is that you -- you should not do that. You should wait. You should just say, "We'll do further studies" but you say nothing about what they are until you've thought about it more carefully.”

Chuck Gomes suggested that the Council postpone motions 2 and, by default, Motion 3, to do some more work and avoid crafting the scope on the fly.

Avri Doria said that with only 12 minutes left of assigned meeting time, and two agenda items tabled to the Council’s next full meeting, that this could be considered. Avri noted that the Council had “essentially terminated the PDP by rejecting the recommendation of the task force and that the next two items essentially become recommendations for things to do next.”

Adrian Kinderis asked Avri to elaborate on "essentially defeated” noting that the motion either was defeated or it was not. We either have or we have not.

Arvi Doria responded that the Council did vote on the recommendation of the task force, saying no to OPOC.

Ross Rader asked, to be “explicitly, painfully aware of what we've just not done, we have ended the PDP on WHOIS, is that correct?” He also asked to confirm that the Council has made no other decisions.

Arvi Doria said that these were true.

Ross Rader said “I would like to enter into the record how explicitly disappointed I am in this forum for not moving this issue forward today. I do not think we have done the community any favors as a result of this discussion, and I'm only saying this because I'm leaving council today, and I would have hoped that we could have moved this issue forward.” Ross also hoped that the Council would move this issue forward in the future, saying “it just pains me that we are leaving this as unfinished business at this time.”

Chuck Gomes addressed Ross, saying his concern with regard to deciding on the policy issues could be easily inserted into the language Chuck had sent by making it the first action in the sequential action items.

Ross Rader said he would be happy to consult with Council at any point in the future but that the discussion today “is very typical of the discussions that we've had on this, and it's not entirely a fruitful or productive discussion” and that he hoped the community could move beyond that.

Jordan Buchanan spoke from the floor, describing the motion as “profoundly silly” and asked why the Council was “spending time talking about procedure that doesn't actually advance the cause at all, which seems to be the only thing that this could possibly do?”

Adrian Kinderis said he shared Jordan’s frustration.

Avri
said it was not silly because it added to the comments the Council would include in the Board Report.

Olof Nordling reminded the Council that if a supermajority vote was not reached, a clear statement of all positions by Council members should be included in the Board Report, and asked Council to provide those.

Avri Doria agreed and said the Board Report needs to include a clear statement of all of the councillors' positions on the issues and that it should include the motions that were not voted on.

Mike Rodenbaugh said he did not find Motion 2 to be silly either, except possibly the first part where he agreed with Jordyn. He said “It takes into consideration the views of almost every constituency that while we need to end the PDP on the terms that the task force came to, we still see obviously very significant issues with WHOIS in general. And while there is sure to be debate on what precisely the scope of the studies and the number of studies and the cost of studies that could be done to further inform the issue, almost all the constituencies have requested studies of various kinds, including the GAC, and so to ignore that I think would be silly.”

Kristina Rosette said she agreed with Ross that it was important to wrap up the issue, and suggested taking a five minute break and using additional time to keep going.

Avri Doria said the Council could vote on language, if it could agree to the language, and questioned whether the Council could manage “friendly amendments, amendments to the amendments, votes on the amendments, that whether we could actually complete all of that, even in the next half hour”.

Chuck Gomes suggested spending the remaining time on the two remaining agenda items and said he understood people’s frustration as Whois had been a frustrating issue for six years.

Cyril Chua said the Council should go for a vote.

Alan Greenberg said that as the Council had ended the other PDP, it would be unconscionable to leave this room without a commitment to a task with a deadline on it.

Avri Doria said that if she could be told what wording Council would be voting on, she would have no problem calling the vote on Motion 2 at the moment.

Avri Doria asked Kristina Rosette if she accepted Chuck’s proposal.

Kristina Rosette said she accepted Chuck’s proposal.

Avri Doria said a quick amendment was needed on replacing appropriate access to lawful access and said she would call for a vote.

Avri Doria said the first vote is on the amendment and would be a roll call vote as it was the only way to replace appropriate access with lawful access in this clause.

Kristina Rosette accepted the change as a friendly amendment.

Ross Rader asked Avri to read out the motion. She said the clause that has been amended several times, 3, “recognizes the demand for future policy development, including, but not limited to, ensuring appropriate privacy safeguards for natural persons, lawful access to data for rights enforcement, consumer protection, law enforcement and anticrime purposes and will immediately initiate the following sequential actions: 1) council shall provide additional definition regarding the potential data gathering and study requirements no later than February 15th, 2008; 2) staff shall provide the council with rough cost statements for various components of data gathering and studies; 3) the council will decide what data gathering and studies would be pursued; and 4) staff will perform the resulting data gathering and studies and report the results back to council."

Chuck Gomes proposed a friendly amendment to his own, as it would not take until February 15th for the Council to provide additional definition. to carry this out.
Cyril Chua and Kristina Rosette accepted the friendly amendment.

Avri Doria began to take the roll call vote and took Cary Karp’s vote, which was in favour.

Ross Rader intervened to say “this is not the amendment that I put forward in any way, shape, or form. I think procedurally, this discussion has been a disaster, and I'm completely withdrawing my original amendment at this point.”

Mike Rodenbaugh said the amendment had been accepted as part of a motion and that Ross should have made a motion.

Ross Rader said that at the very least, he was making that statement for the record.

Avri Doria continued with the roll call vote.

The results of the roll call vote on Motion 2:

17 Votes in favour:
Mike Rodenbaugh, Bilal Beiram, Ute Decker, Kristina Rosette, Cyril Chua, Tony Holmes, Tony Harris, Greg Ruth, Jon Bing, Robin Gross, Norbert Klein, (one vote each) Cary Karp, Chuck Gomes, Edmon Chung (2 votes each)

7 votes against: Adrian kinderis, Tom Keller, Ross Rader, (2 votes each) Avri Doria, (one vote).

1 abstention : Mawaki Chango (one vote).
Total 25 votes

Philip Sheppard and Sophia Bekele - Absent (one vote each)

The Motion passed with a supermajority.

Avri Doria called for a roll call vote on motion 3 which would be included in the Board report with the vote.

Motion #3 - conditional motion offered by Ross Rader, seconded by Mawaki Chango

Whereas;(i) The GNSO Council has considered the reports of the WHOIS Working Group and WHOIS Task Force, and;
(ii) That the GNSO Council vote on resolution, [XXXX] (Whois Motion 1) failed to produce supermajority or majority support for the recommendations of the report of the Task Force, and;
(iii) The GNSO Council considers that the results of this vote signifies the continued lack of consensus on the key issues and possible solutions to those issues, both within the Council, the GNSO and between key stakeholder groups, and;
(iv) The GNSO Council recognizes that there is no standing consensus policy concerning the management of the WHOIS service and data provided to the public through that service by ICANN's contracted commercial operators, the registries and registrars, save and except the WHOIS Data Reminder Policy and the WHOIS Marketing Restriction Policy, and;
(v) That significant policy must have the support of the Internet and DNS community and without that support, those policies cannot be reasonably implemented or enforced.Therefore be it resolved;

(i) That, with regret, the GNSO Council advises the ICANN staff and Board of Directors of the lack of general consensus on the key issues and solutions pertaining to gTLD WHOIS, and;
(ii) That due to this lack of consensus the GNSO Council recommends that the Board consider "sunsetting" the existing current contractual requirements concerning WHOIS for registries, registrars and registrants that are not supported by consensus policy by removing these unsupported provisions from the current operating agreements between ICANN and its contracted parties, and;
(iii) That these provisions be sunset no later than the end of the 2008 ICANN Annual General Meeting and;
(iv) That such provisions will remain sunset until such time that consensus policy in this area has been developed to replace the sunset provisions, at which point they will be eliminated or modified.

The motion did not pass but will be included in the Board Report.

13 votes against:
Mike Rodenbaugh, Bilal Beiram, Ute Decker, Kristina Rosette, Cyril Chua, Tony Harris, Tony Holmes, Greg Ruth, Jon Bing, (one vote each)
Edmon Chung, Chuck Gomes, (2 votes each)

10 in favour:
Robin Gross, Norbert Klein, Mawaki Chango, Avri Doria, (one vote each) Adrian Kinderis, Tom Keller, Ross Rader (two votes each)

Cary Karp (two votes) had left at the time of voting.

Total 23 votes
Philip Sheppard and Sophia Bekele absent, did not vote.

Item 5: IDN ccTLD
(http://gnso.icann.org/drafts/ccnso-gac-issues-paper-idn-cctld-draft-gnso-comments-wg-12oct07.pdf
)

Chuck Gomes reminded Council that the ICANN Board requested a response from Council on the ccNSO GAC issues paper on IDNs by the Los Angeles meeting, and that Council was also failing in that regard.

Item 6: Registrar Transfer policy update

Chuck Gomes expressed his frustration at the rejection of the proposal to take a vote on the Inter-register transfer motion on initiating a PDP.

Item 7 AOB

7.1 Vote of thanks to Liz Willaims

Avri Doria on behalf of the Council proposed:

Whereas Dr Liz Williams, as Senior Policy Counselor for ICANN, has been the ICANN Staff Manager assigned to support the GNSO's Policy Development Process (PDP) on new gTLDs, since December 2005.

Whereas this PDP trialled a number of new approaches in GNSO policy development, including the use of inter-sessional face-to-face meetings, calls for formal papers with the ability for the authors to present those papers and have dialog with the committee, and the use of working groups to analyse topics such as IDNs, reserved names, and protecting the rights of others. The success of the working groups became the foundation of the Board Governance Committee's GNSO Review Working Group recommendations on using working groups as the main approach for policy development.

Whereas Liz worked tirelessly to secure support for many of these initiatives, and pull together a huge amount of public input, meeting transcripts, and GNSO constituency contributions into a final set of principles, recommendations, and guidelines, along with a large range of supporting material that will assist the ICANN staff in implementing the policy.

Whereas Liz completed the final report on the policy for new gTLDs in August 2007, finished her term of office with ICANN in September 2007.

It is resolved that the GNSO expresses its sincere gratitude for her service to the ICANN community and wishes her every success in her next endeavours.

The motion passed unanamously by voice vote.

Avri Doria thanked the Council members whose terms ended and were leaving the Council and presented those present with a small token of appreciation, namely Ross Rader, Registrar constituency, Cary Karp gTLD Registry constituency, Sophia Bekele, Nominating Committee appointee and Mawaki Chango NCUC.
Avri also welcomed the new Council members, Olga Cavalli, Nominating Committee appointee, Tim Ruiz Registrar constituency and Jordi Iparraguirre gTLD Registry constituency.

Avri Doria thanked everyone for their participation and adjourned the meeting.

The meeting ended at 12:30 local time.

Next GNSO Council teleconference will be on Tuesday 20 November 2007 at 21:00 UTC.
see: Calendar