[council] Extract from GNSO Council draft minutes, 18 August 2005

["GNSO.SECRETARIAT@xxxxxxxxxxxxxx" <gnso.secretariat@xxxxxxxxxxxxxx>]

[To: council[at]gnso.icann.org]

Dear Council members,

Please find attached an extract from the GNSO Council draft minutes, 18 
August 2005.
Please let me know whether you would like any changes made.

This extract will be provided to the Board along with the
proposed bylaw changes by the GNSO Chair, Bruce Tonkin.

Thank you very much.
Kind regards,

Glen
--
Glen de Saint Géry
GNSO Secretariat - ICANN
gnso.secretariat[at]gnso.icann.org
http://gnso.icann.org

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<p align="center"><font face="Arial, Helvetica, sans-serif"><strong>Extract 
from the GNSO Council draft minutes 18 August 2005</strong> </font> </p>
<p><font face="Arial, Helvetica, sans-serif">Proposed <a 
href="http://www.gnso.icann.org/meetings/agenda-gnso-18aug05.shtml";>agenda and 
related documents </a></font></p>
<p><font face="Arial, Helvetica, sans-serif"><b>List of attendees:</b><br>
  Philip Sheppard - Commercial &amp; Business Users C. - absent - apologies - 
proxy to Grant Forsyth/Marilyn Cade <br>
  Marilyn Cade - Commercial &amp; Business Users C. <br>
  Grant Forsyth - Commercial &amp; Business Users C<br>
  Greg Ruth - ISCPC <br>
  Antonio Harris - ISCPC   <br>
  Tony Holmes - ISCPC - absent - apologies - proxy to Tony Harris/Greg Ruth<br>
  Thomas Keller- Registrars <br>
  Ross Rader - Registrars   <br>
  Bruce Tonkin - Registrars <br>
  Ken Stubbs - gTLD registries <br>
  Philip Colebrook - gTLD registries <br>
  Cary Karp - gTLD registries <br>
  Lucy Nichols - Intellectual Property Interests C<br>
  Niklas Lagergren - Intellectual Property Interests C  - absent <br>
  Kiyoshi Tsuru - Intellectual Property Interests C. <br>
  Robin Gross - Non Commercial Users C.<br>
  Norbert Klein - Non Commercial Users C. <br>
  Alick Wilson   </font><font face="Arial, Helvetica, sans-serif">- Nominating 
Committee appointee - absent <br>
  Maureen Cubberley - Nominating Committee appointee  - absent - apologies  - 
proxy to Ross Rader/Bruce Tonkin <br>
  Avri Doria -  Nominating Committee appointee 
  </font></p>
<p> <font face="Arial, Helvetica, sans-serif"> 15 Council Members<br>
  <br>
  <b>ICANN Staff</b><br>
  John Jeffrey - ICANN General Counsel <br>
  Kurt Pritz - Vice President, Business Operations  <br>
  Olof Nordling - Manager, Policy Development Coordination  <br>
  Maria Farrell - ICANN GNSO Policy Support Officer<br>
  Liz Williams - Senior Policy Counselor <br>
  Glen de Saint Géry - GNSO Secretariat <br>
  <br>
  <br>
  <b>GNSO Council Liaisons</b><br>
 Suzanne Sene - GAC Liaison <br>
 Bret Fausett - acting ALAC Liaison <br>
 <br>
  Michael Palage - ICANN Board member <br>
  <br>
  <strong>Invited guests:<br>
  Whois 
  task force </strong><br>
  Jordyn Buchanan - Chair WHOIS Task Force <br>
  Tim Ruiz<br>
  Kathy Kleiman<br>
  <strong>Registrar Constituency</strong><br>
  Bhavin Turakhia - Chair Registrars constituency <br>
  Jonathon Nevett - Chair Dot NET RRA Comments working group within the 
registrars constituency <br>
  <br>
  <a href="http://gnso-audio.icann.org/GNSO-Council-20050818.mp3";>MP3 
Recording</a><BR>
  <br>
  <strong>Item 8: Discussion of proposed changes to ICANN bylaws to improve 
transparency with respect to contract approvals<BR>
- see<BR>
http://www.gnso.icann.org/mailing-lists/archives/council/msg01224.html<BR>
- presentation from chair of registrars constituency and chair of registrar 
constituency subcommittee reviewing bylaws</strong><br>
<BR>
<strong>Marilyn Cade</strong>  introduced the item on the agenda as author of 
an amendment to the <a 
href="http://www.gnso.icann.org/mailing-lists/archives/council/msg01224.html";>proposed
 changes to the ICANN bylaws to improve transparency by the registrar 
constituency</a> and proposed that a registrar address the topic.<br>
<strong>Jonathon Nevett, </strong>chair of the registrar constituency working 
group for comments on the .net RAA (Registry-Registrar Agreement) stated that 
for the past year the registrar community had concerns about the contracting 
process, in particular relating to the community's right to have an opportunity 
of notice and to be heard with regard to ICANN related contracts. The issue 
first arose in November 2004 when Verisign had an amendment to the .net and the 
.com Registry-Registrar agreements with the registrars approved without 
registrars' input, knowledge or an opportunity  to be heard. This was followed 
by the recent . net agreement where material changes were made to the dot net 
agreement, these were signed by ICANN and the registry, again without 
knowledge, input or comment from the community. In order to address those 
concerns, an amendment to the ICANN bylaws was drafted to support  one of 
ICANN's core values which is to operate in an open and transparent manner, 
consistent with procedures designed to ensure fairness.  The suggested changes 
were made to <a 
href="http://www.icann.org/general/archive-bylaws/bylaws-08apr05.htm#III";>article
 3, Transparency, section 6</a> , which relates to a &quot;notice and comment 
on policy actions&quot; and &quot;contract approvals&quot; were added. It 
should be noted that it does not apply to all contracts but is limited to 
specific contracts that are material or that substantially affect the operation 
of the Internet or third parties, thus the major material contracts that impact 
the community. What is currently in place for policy actions, a 21 day advance 
notice and opportunity to be heard, would apply to contracts before the board 
approves the contracts. Before the ICANN Board approved the contracts and they 
were signed by ICANN there should be an opportunity to be heard and to review 
the agreements. <br>
Changes were also suggested in <a 
href="http://www.icann.org/general/archive-bylaws/bylaws-08apr05.htm#XV";>article
 15, section 1 Contracts.</a><br>
<strong><br>
Jonathon Nevett</strong> concluded by 
stating that </font><font face="Arial, Helvetica, sans-serif">the registrar 
constituency was supportive of  Marilyn Cade's added section  d:<br>
  <em>d. In those cases where the policy action or contract affects public 
policy concerns, notify the relevant Supporting Organization&rsquo;s policy 
council and take into account any advice presented by said Council on its  own 
initiative or at the Board&rsquo;s request. </em><br>
  <br>
  and was looking for the GNSO to support the amendments to the bylaws to 
ensure openness and transparency in the contracting process.  <br>
  <br>
  <strong>ARTICLE III: TRANSPARENCY<br>
  <br>
  Section 6. NOTICE AND COMMENT ON POLICY ACTIONS <em>AND CONTRACT APPROVALS<br>
  <br>
  </em></strong>1. With respect to any policies <em>or contracts</em> that are 
being considered by the Board for adoption <em>or approval</em> that 
substantially affect the operation of the Internet or third parties, including 
the imposition of any fees or charges, ICANN shall: <br>
  <br>
  a. provide public notice on the Website explaining what policies <em>or 
contracts </em>are being considered for adoption <em>or approval</em> and why, 
at least twenty-one days (and if practical, earlier) prior to any action by the 
Board; <br>
  <br>
  </font><font face="Arial, Helvetica, sans-serif"> b. provide a reasonable 
opportunity for parties to comment on the adoption of the proposed policies 
<em>or approval of the proposed contracts,</em> to see the comments of others, 
and to reply to those comments, prior to any action by the Board; and<br>
  <br>
  </font><font face="Arial, Helvetica, sans-serif">c. in those cases where the 
policy action <em>or contract </em>affects public policy concerns, to request 
the opinion of the Governmental Advisory Committee and take duly in to account 
any advice timely presented by the Governmental Advisory Committee on its own 
initiative or at the Board's request. <br>
  <em><br>
d. In those cases where the policy action or contract affects public policy 
concerns, notify the relevant Supporting Organization&rsquo;s policy council 
and take into account any advice presented by said Council on its its own 
initiative or at the Board&rsquo;s request. </em></font></p>
<p><font face="Arial, Helvetica, sans-serif"> 2. Where both practically 
feasible and consistent with the relevant policy development process, an 
in-person public forum shall also be held for discussion of any proposed 
policies as described in <a 
href="http://www.icann.org/general/bylaws.htm#III-6.1b#III-6.1b";>Section 
6(1)(b) of this Article</a>, prior to any final Board action. <br>
  <br>
</font><font face="Arial, Helvetica, sans-serif"> 3. After taking action on any 
policy <em>or contract </em>subject to this Section, the Board shall publish in 
the meeting minutes the reasons for any action taken, the vote of each Director 
to r voting on the action, and the separate statement of any Director to r 
desiring publication of such a statement. </font></p>
<p><font face="Arial, Helvetica, sans-serif"><strong> 
&nbsp;</strong></font><font face="Arial, Helvetica, sans-serif"><strong>ARTICLE 
XV: GENERAL PROVISIONS</strong></font><strong><br>
</strong><font face="Arial, Helvetica, sans-serif"><strong> Section 1. 
CONTRACTS</strong></font></p>
<p> <font face="Arial, Helvetica, sans-serif"><em>Consistent with ICANN&rsquo;s 
transparency principles in Article III, the Board must approve all of 
ICANN&rsquo;s material contracts in advance of execution. </em><br>
The Board may authorize any Officer or Officers, agent or agents, to enter in 
to any contract or execute or deliver any instrument in the name of and on 
behalf of ICANN, and such authority may be general or confined to specific 
instances. In the absence of a contrary Board authorization, contracts and 
instruments may only be executed by the following Officers: President, any Vice 
President, or the CFO. Unless authorized or ratified by the Board, no other 
Officer, agent, or employee shall have any power or authority to bind ICANN or 
to render it liable for any debts or obligations. <em>Before ICANN enters in to 
or approves a contract that may have a material impact on a third party member 
of the Internet community, such contract must be published for public comment 
in final form and in its entirety (only information constituting trade secrets 
may be excluded when necessary) for at least 21 days before the Board can 
approve the contract for execution. </em></font></p>
<p><em><font face="Arial, Helvetica, sans-serif">Suggested changes in Italics 
</font> <br>
</em><font face="Arial, Helvetica, sans-serif"><br>
  <strong>Marilyn Cade </strong>in addressing &quot;section d&quot; clarified 
that <br>
  &quot;
  section d was added as, from the changes proposed by the registrars, which 
she personally supported, it was quite clear that ICANN was  required in 
section c, to consult with the Government Advisory Committee (GAC) on public 
policy, and considered that it was clear that ICANN should consult with the 
relevant Supporting Organizations. In the dot net negotiation, changes were 
made in the contracts which affected the standing of consensus policy in the 
definition of security and stability and also in the definition of new registry 
services which is at variance, even if minimally so, from the consensus policy 
that Council had underway. A consultation, even closed, with Council could have 
been expected on those issues as they involved consensus policy. Having 
observed behaviorally that consultation was not guaranteed by the bylaws, the 
section was added requiring a consultation with the relevant Supporting 
Organizations. A friendly amendment is offered to the proposal and that is 
striking the word &quot;public&quot; in d in relation to public policy, as that 
may be a sensitive topic to the GAC and the intention was to capture the policy 
obligations and the responsibilities of the Council.<br>
  see amended text:<br>
  <em>d. In those cases where the policy action or contract affects  policy 
concerns, notify the relevant Supporting Organization&rsquo;s policy council 
and take into account any advice presented by said Council on its its own 
initiative or at the Board&rsquo;s request. </em>  <br>
  <br>
  <strong>Bruce Tonkin</strong> commented that the intent was to make sure that 
major agreements such as registry agreements that could affect many parties 
went through a public review before ICANN finally signed them, but that there 
appeared to be concerns with the current drafting that other types of contracts 
might be included.<br>
  <strong>John Jeffrey</strong> commented   from a staff perspective it was 
understood that the recommendation concerned issues that were raised in 
Luxembourg and were being presently articulated. Marilyn Cade's proposed change 
to the language was  important  and there was also some question regarding 
whether the scope of the language on which contracts would be included in such 
process was  concise enough.<br> 
  John Jeffrey went on to say that clearly input from the Council was 
appreciated and  that the Board should consider the recommendation, but passing 
on specific language would not be appropriate at this early stage given that 
the Board would need to consider the input, and any Bylaw change  would require 
a public comment period   before it could be approved.<br>
  <strong>Bruce Tonkin </strong>asked whether  it would be a reasonable action 
for the  Council to support the changes,  forward them to the Board and then 
the Board would be seeking advice from General Counsel on how best to meet the 
intent of the GNSO ?<br>
  <strong>John Jeffrey</strong> assumed that the Board would seek the General 
Counsel's office advice and then the board would either request additional 
information from the Council or submit the recommendation to a public comment 
process and take the comments into account.<br>
  <strong>Bhavin Turakhia</strong>, the Registrar constituency chair reiterated 
what Jon Nevett mentioned and stated clearly that the intention was not to 
micro manage the contract approval process. Among registrars and  in the 
community there had been a high level of support in the direction to get the 
changes in the recommendation incorporated to ensure that such situations would 
not be repeated.<br>
  <strong>Avri Doria</strong> emphasized the importance of and supported 
passing on the recommendation to the Board. <br>
  <strong>Phil Colebrook </strong>commented on a procedural matter that the 
current holiday season  made consultation in the constituency difficult and it 
was an important issue for registries. <br>
  <strong>Bruce Tonkin</strong> responded that if the Council did consider 
sending the recommendation to the Board there would still be an opportunity for 
public comment as part of the Board's normal processes for considering a bylaw 
change. <br>
  <br>
  <strong>Marilyn Cade</strong> seconded by <strong>Avri Doria</strong> 
proposed a motion <br>
  <strong>That the Council forward as advice, to the ICANN Board the proposed 
bylaw changes and note that the Council supports the ICANN Board undertaking 
the proper review process in order to consider approval of the bylaw 
changes.</strong><br>
<br>
  <strong>Cary Karp</strong> seconded by <strong>Philip Colebrook</strong> 
proposed a procedural motion: <br>
  <strong>To defer the vote on the motion proposed by Marilyn Cade and Avri 
Doria on the suggested bylaw changes to the middle of September.<br>
  </strong><br>
  <strong>Marilyn Cade</strong> responded referring to her <a 
href="http://www.gnso.icann.org/mailing-lists/archives/council/msg01224.html";>posting
 on the council list</a> and asked for the comment to be minuted, that the need 
for these changes arose out of actions that occurred that affected the 
council's role and affected the broader community in Luxembourg. Extensive 
discussion took place in public forums, in the Council itself and in the 
constituencies. The outcome of what happened in the dot net agreement was what 
had led to a proposal for the bylaw changes. <br>
It was not a new topic and there had been extensive discussion inspite of the 
holidays.<br>
If the motion carried, the Board would put forward a public comment process and 
further comments could be provided by any one in the community at that time. 
<br>
<br>
<strong>Bruce Tonkin</strong> put the <strong>procedural  motion to the 
vote</strong>.<br>
<br>
<strong>Ken Stubbs</strong> commenting before the vote said that it was 
confusing as it appeared that the voting was on language rather than a concept 
which was an issue that the constituency would like to discuss in greater depth 
and there had been no time to do this since the motion had been put before the 
Council.<br>
<br>
<strong>The procedural motion</strong> received 7 votes in favour, Cary Karp, 
Ken Stubbs and Philip Colebrook 2 votes each and Robin Gross, 16 votes against 
out of a total of 26 votes. (Niklas Largergren, Alick Wilson absent without 
proxy, Kiyoshi Tsuru dropped off call without proxy) <br>
  <strong>The motion failed.
  <br>
  </strong></font><font face="Arial, Helvetica, sans-serif"><br>
  <strong>Bruce Tonkin</strong> put the motion to the vote. <br>
  <strong>Marilyn Cade</strong> seconded by <strong>Avri Doria</strong> 
proposed a motion <br>
  <strong>That the Council forward as advice, to the ICANN Board the proposed 
bylaw changes and note that the Council supports the ICANN Board undertaking 
the proper review process in order to consider approval of the bylaw 
changes.</strong><br>
  </font><font face="Arial, Helvetica, sans-serif"><br>
  The motion received 17 voted in favour, Philip Colebrook, 2 votes, against, 
Cary Karp and Ken Stubbs, 4 votes, abstained out of a total of 26 votes. <br>
  (Niklas Largergren, Alick Wilson absent without proxy, Kiyoshi Tsuru dropped 
off call without proxy)<br>
  The motion carried.<br>
  <br>
  <strong>Decision: That the Council forward as advice, to the ICANN Board the 
proposed bylaw changes and note that the Council supports the ICANN Board 
undertaking the proper review process in order to consider approval of the 
bylaw changes.</strong><br>
  <br>
  <strong>Bruce Tonkin </strong>thanked <strong>Jonathon Nevett </strong>and 
<strong>Bhavin Turakhia</strong> for their participation.<br>
  </font></p>
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