GNSO Council Luxembourg Meeting Minutes

12 July 2005.

Proposed agenda and documents

List of attendees:
Philip Sheppard - Commercial & Business users C.
Marilyn Cade - Commercial & Business users C.
Grant Forsyth - Commercial & Business users C.
Greg Ruth - ISCPC
Antonio Harris - ISCPC
Tony Holmes - ISCPC
Thomas Keller- Registrars
Ross Rader - Registrars
Bruce Tonkin - Registrars
Ken Stubbs - gTLD registries
Philip Colebrook - gTLD registries
Cary Karp - gTLD registries
Lucy Nichols - Intellectual Property Interests C
Niklas Lagergren - Intellectual Property Interests C
Kiyoshi Tsuru - Intellectual Property Interests C.
Robin Gross- Non Commercial users C.
Marc Schneiders - Non Commercial users C. - proxy to Robin Gross
Norbert Klein - Non Commercial users C.
Alick Wilson - Nominating Committee appointee - absent - proxy to Maureen Cubberley/Bruce Tonkin
Maureen Cubberley - Nominating Committee appointee - remote participation but inaudible due to technical issue - proxy to Ross Rader

13 Council Members

Kurt Pritz - Vice President, Business Operations
John Jeffrey - ICANN General Counsel
Dan Halloran - Deputy General Counsel
Olof Nordling - Senior Policy Officer
Maria Farrell - GNSO Policy Officer
Glen de Saint G�ry - GNSO Secretariat


Bret Fausett - ALAC Liaison
Suzanna Sene - GAC Liaison -absent - apologies


Avri Doria - Observer as Nominating Committee proposed appointee

Michael Palage - ICANN Board
Alejandro Pisanty - ICANN Board

Real Time Captioning
Quorum present at :15:40 local time,

Bruce Tonkin chaired the meeting.

Item 1: Approval of agenda
Bruce Tonkin proposed adding under Item 3 an update by General Counsel on the changes in the dot NET agreement.
Marilyn Cade requested adding under Item 9: Any Other Business, a resolution on the dot NET agreement for consideration by the Council
Grant Forsyth proposed adding under Item 9: Any Other Business, the appointment of the Vice President for policy development support.
Philip Sheppard remarked that the Council meeting was at the end of the day and urged that it be viewed as a priority meeting of the day in the future.

Item 2: Approve the minutes of the GNSO Council teleconference 23 June 2005.
Ken Stubbs moved the adoption of the GNSO Council teleconference minutes of 23 June 2005

The motion was carried.

Decision 1: Minutes of the GNSO Council Teleconference held on 23 June 2005 were adopted.

Item 3: Staff report
- current areas of work - WHOIS, new gtlds, transfers, IDNs
Bruce Tonkin asked John Jeffrey, ICANN General Counsel, to comment on some of the recent changes in the dot NET agreement, namely the open pricing after 18 months and the exclusion from consensus policies with respect to the registry services approval process.

John Jeffrey responded that with regard to the new registry services funnel with the consensus policy restriction, the negotiations were intended to give certainty to what the funnel would look like as of the time of negotiation and ICANN believed, as they were in litigation with that party, that it was essential to entering into a fair agreement that the provision was locked down and able to reflect a non moving position, that reflected the policy development to that point , but also provided a specific dispute resolution mechanism for the very issue that was the dispute.
In answer to a question from Marilyn Cade whether the dot NET agreement would create a precedent for the dot COM re bid, John Jeffrey responded that dot COM was not presumed to be a re bid but a renewal. In terms of negotiating an agreement around dot COM the funnel would be relevant.
John Jeffrey went on to comment that the renewal provision was considered to be part of the RFP (request for proposal) bid. The specific limitations that were put around it were related to the negotiation in order to provide certainty to the negotiation and the resulting settlement.

Item 4: Consideration of revised consensus recommendation with respect
to improving notification and consent for the use of contact data in the
Whois system.

Bruce Tonkin proposed updating the recommendation based on recent input and requested the ICANN legal team to review the recommendation in its current draft form and add appropriate legal language which could be included in the new Registrar Accreditation Agreement.
Niklas Lagergren requested adding a specific reference to clause 3.7.7 5 of the Registrar Accreditation Agreement which requires the registrant to consent to the data processing referred to in clause 3.7.7.4 (already described in the recommendation).

Item 5: Consideration of Final report on the process for use by ICANN in
considering requests for consent and related contractual amendments to
allow changes in the architecture operation of a gTLD registry.

Bruce Tonkin commented that there were specific questions raised by the registrars concerning the changes that could happen in a registry agreement that could impact the competition in the registrar industry, namely, had ICANN spoken to any of the potential regulators and did ICANN have a degree of confidence that they would be able to respond in a timely manner to a concern raised by members of the registrar industry?
John Jeffrey responded that skilled antitrust outside counsel had been consulted in this area.
" The outside Counsel met with and discussed this with the US Department of Justice Anti-trust division and I believe with the FTC, exactly whether the competition issues could be considered seriously in response to a letter from ICANN describing potential competition issues with a new registry service."
The outside counsel was Joe Sims of Jones Day.
A further question raised by the registrars was how the experts would be selected on the standing panel for security and how experts would be selected at the initial determination of a fast track or review process.
John Jeffrey responded that it was an operational question with no clear answer just yet. The standing panel would be a public list of members.
To a question concerning the $650,000 budget allocation for the standing panel, Kurt Pritz commented that the methodology for the allocation was a combination of a small stipend and some expected level of activity. It was difficult to accurately budget without knowing how many requests would come through for new services.

Bruce Tonkin summarised:

- The process for use by ICANN in considering requests for consent and related contractual amendments to allow changes in the architecture operation of a gTLD registry was at the final report stage.
- Voting on the report was deferred to reflect on the recent changes with the dot NET agreement and the input received at the Luxembourg meetings.
- Councillors were encouraged to review the process and provide input on operational issues.

Item 6: Approval of voting rules for combined WHOIS task force

When a task force provides a final report to the council there is a formal requirement that it includes information on voting and there was a general level of agreement that the voting methodology be prefaced and a distinction made between procedural and policy related issues where in the former the people present vote and in the latter a more formal procedure is undertaken to collect all the votes.

Bruce Tonkin, seconded by Ross Rader proposed a procedural motion:

The voting rules of the Whois task force will consist of three votes per constituency to be voted as each constituency wishes.

The motion carried unanimously by show of hands.

Decision 2: The voting rules of the Whois task force will consist of three votes per constituency to be voted as each constituency wishes.

Item 7: new gtlds
- next steps

Bruce Tonkin commenting on "New TLD questions" the ICANN staff published said the proposed next step forward should be a meeting between the GNSO and ccNSO Councils and the ICANN Board to collaborate in the joint management of the policy area.

In clarifying whether TLDS, gTLDs or ccTLDs were the issue, Ross Rader referred to prior Names Council statement, 4 April 2000 mentioned at an ICANN Board meeting on 16 July 2000 which specified new gTLDS.

ACTION

- The ICANN staff collect the historical information needed to inform Council as to current ICANN policy regarding the matter of new TLDs.
- Identify the policy issues

Item 8: Discussion of ICANN operational/budget plan

Bruce Tonkin commented that parts of the operating plan that related to policy, including what additional resources were going to be applied to policy were discussed at the GNSO Council administrative meeting held on Sunday 10 July 2005.
Concern was expressed at the inadequacy of detail in the operational plan and general agreement was reached to provide more detail on areas that were going to affect the GNSO Council for the next year.

Note: The following discussion was with respect to providing guidance to the chair of the GNSO Council in providing feedback to the ICANN Board on the views that were widely shared within the meetings of the GNSO community earlier in the week. The motions thus did not have the benefit of discussion within the constituencies, prior to the meeting of the GNSO Council

The GNSO Council does not currently believe that there is a consensus of the ICANN community in the support of the strategic plan. The Council encourages the development of a consensus-based strategic plan.

The motion carried with 3 abstentions. The abstentions were from the GNSO Council members that felt they could not vote without first consulting with their constituencies.

Guidance to the Chair for presentation to the ICANN Board: The GNSO Council does not currently believe that there is a consensus of the ICANN community in the support of the strategic plan. The Council encourages the development of a consensus-based strategic plan.

Item 9: Any other business

1. Appointment of the Vice President for policy development support
Grant Forsyth withdrew his proposed addition to the agenda, the appointment of the Vice President for policy development support and requested it to be deferred to the next Council meeting.

2. Motion on dot NET agreement
Bruce Tonkin proposed a motion to clarify the view of the GNSO Council members in response to Marilyn Cade's concern about the dot NET agreement:

The GNSO Council expresses its concern to the Board that the final .net agreement was not posted for public comment prior to approval, given the significant changes made to the agreement from the previously posted draft.

The motion carried with 16 in favour and 9 abstentions. The abstentions were from the GNSO Council members that felt they could not vote without first consulting with their constituencies.

Guidance to the Chair for presentation to the ICANN Board: The GNSO Council expresses its concern to the Board that the final .net agreement was not posted for public comment prior to approval, given the significant changes made to the agreement from the previously posted draft.

Cary Karp, supported by Ken Stubbs and Lucy Nichols expressed concern about the fact that he represented a constituency, was bound to vote in accordance with the constituency's wishes and there had been no time for consultation with the constituency on the motion before it was put to the vote.

Bruce Tonkin clarified that the vote did not concern a binding policy but served rather as guidance in making a report for the Public Forum on the activities of the GNSO.

Bruce Tonkin declared GNSO meeting closed, thanked everybody for attending, those councillors on the phone and the audience for their participation.

The meeting ended: 18 :55 ( local time CET)

• Next GNSO Council teleconference Thursday, July 28, 2005 at 12:00 UTC.
  see: Calendar